Madras High Court
G.John Kennady vs The Most Rev. Moderator on 27 January, 2021
W.A.(MD)No.202 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.202 of 2021
and
C.M.P.(MD)Nos.624 & 625 of 2021
G.John Kennady ... Appellant/Petitioner
Vs.
1.The Most Rev. Moderator,
Church of South India,
5, Whites Road,
Royapettah, Chennai – 14.
2.The Tirunelveli CSI Diocese,
Rep. by its Bishop,
176B, Trivandrum Road,
Tirunelveli,
Tirunelveli District.
3.The Tirunelveli Diocese Trust Association,
Old No.18, New No.19,
North – High Ground Road,
Palayamkottai,
Tirunelveli – 627 002.
4.The Registrar of Companies,
Ministry of Corporate Affairs,
Block No.6, 'B' Wing,
Second Floor, Shastri Bhavan,
D.No.26, Haddows Road,
Chennai – 600 006. ... Respondents / Respondents
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W.A.(MD)No.202 of 2021
Prayer : Appeal filed under Clause 15 of the Letters Patent Act against the order
passed by this Court in W.M.P.(MD)No.10425 of 2020 in W.P.(MD)No.12111 of
2020, dated 11.01.2021.
For Appellant : Ms.J.Anandhavalli
For R2 : Mr.G.Prabhu Rajadurai
Standing Counsel
For Administrator : Mr.G.Thankasivan
*****
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
This appeal has been preferred by the appellant, who was incidentally
the writ petitioner, seeking to set aside the order of the learned Single Judge
with one specific grievance – Permission granted to vote and contest in the
ensuing election with the payment of subscription [Sangam Amount] of
Rs.300/-, which includes the extension of time to those who have paid Rs.100/-
and above already. The payment of the said amount, as per the Constitution of
the Diocese, would entitle a person either to vote or contest. In other words, the
Sangam amount in the nature of contribution may vary from Rs.100/- and
above.
2.The appellant, who is the writ petitioner along with one another
person challenged the impugned order dated 08.09.2020, passed by Respondent
No.1, which is a communication sent to the learned Administrators stating that
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W.A.(MD)No.202 of 2021
the Sangam amount for the purpose of Election to Committees and Council
shall be the amount not less than Rs.300. The said decision is sought to be
assailed on the premise that it does not have the sanction of law.
3.On an earlier occasion, taking note of the inter se dispute emanating
in the conduct of election, two retired Hon'ble Judges of this Court were
appointed as Administrators in W.P.(MD)Nos.21134 of 2017, etc. batch, dated
05.08.2019. The decision of the learned Single Judge was approved by the
judgment of the Division Bench of this Court in W.A.(MD)Nos.878 of 2019 etc.
batch, dated 25.02.2020.
4.The learned Single Judge on the first instance passed an order, dated
05.11.2020, stating that the persons, who have paid the contribution of Rs.100/-
and above as against Rs.300/- per year can be permitted to vote and contest,
subject to the orders to be passed. Therefore, this is an interim arrangement
made, we deem it to appropriate to record the directions issued by the learned
Single Judge:-
''17.In such view of the matter, this Court issues the following
directions:
(i)The learned Administrators on their discretion, shall
appoint three independent persons as Election Tribunals (one for two
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W.A.(MD)No.202 of 2021
pastorate councils), two Election Officers and also nominate
independent Observers to assist the Election Officers, for free and fair
conduct of the elections to the entire Diocese.
(ii)The Election Officers shall direct the Pastorate Chairman
of the respective Pastorates, to prepare the eligible voters' list,
irrespective of payment of Sangam amount as Rs.100/- and above by
the members, publish the same in the notice board of the respective
churches, call for objections, if any. Necessary report be submitted to
the Election Officers. On receipt of the same, the Election Officers shall
finalise the voters' list. It is made clear that the eligibility criteria for
the voters to cast their votes / contest the election, cannot be
determined based on the quantum of sangam amount, which is subject
to the result of the present writ petitions.
(iii)The Election Officers shall invite nominations through the
Chairman of each pastorates and scrutinise the same, as per law.
(iv)The Election Officers shall prepare schedule for the four
phases of elections of the CSI Diocese and proceed with the same
accordingly.
(v)The Election Officers shall also decide the venue of polls
and date, time and venue for counting votes and also the date for
declaring the result of the election.
(vi)The Election Officers shall report each and every aspects
of the election process to the learned Administrators, without any
default.
(vii)The Election Officers shall conduct the elections for the
available respective posts, in consultation with the learned
Administrators.
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W.A.(MD)No.202 of 2021
(viii)The Observers shall assist the Election Officers and
ensure the peaceful conduct of elections in each of the pastorates.
(ix)If there is any disturbance created by any one, it is open
to the learned Administrators / Election Officers to seek police
protection.
(x)The Moderator and his Commissary, Synod, Executive
Council members, Pastorate members and all concerned, should
co-operate with the learned Administrators / Election Officers, in all
aspects of the election process.
(xi)The Diocese shall meet out all the expenses to be incurred
for the election of the CSI Diocese.
(xii)Needless to state that the decision of the learned
Administrators is final and the same is binding on all the parties.
(xiii)The learned Administrators shall file a detailed report
enclosing necessary documents before this Court, on or before
24.11.2020.
18.Post these matters on 24.11.2020, for passing further
orders.''
5.The aforesaid order was modified by the subsequent order, dated
11.01.2021, accepting the report submitted by the learned Administrators. The
said report suggests that it would be difficult to undertake the process as
directed by the learned Single Judge, as it would amount to derail the process of
election apart from allowing ineligible persons to contest and vote, of course, in
the event of this Court holding that fixation of Rs.300/- as Sangam amount as
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W.A.(MD)No.202 of 2021
justified. The order under challenge, dated 11.01.2021, took into consideration
the report of the learned Administrators and the operative portion of the said
order is re-produced hereunder:-
''3.2. However, the learned Administrators filed Report No.7
dated 07.01.2021, the relevant paragraphs of which, for better
appreciation, are reproduced hereunder:
“3.In the order dated 18.12.2020, it is stated that submissions
have been made by the respective counsel justifying their rival stand. If
this Hon'ble Court is taking a view that Rs.300/- per year as mentioned
in the CSI Tirunelveli Diocesan Constitution as submitted by the
concerned respective counsel, the congregation members, who have
paid Rs.100/- per year may be given a chance to pay the balance
amount of Rs.200/- per year for three years and time may be granted
till 28.01.2021 as the filing of nomination is fixed as 31.01.2021. The
contention of the learned counsel for the petitioner in WP.No.12295 of
2020 that some of the members are expressing their inability and the
members will give an undertaking to pay in future is not proper as
exercising voting right is a privilege which can be availed only by the
persons who are satisfying the norms/ rules regarding payment of
SANGAM and extending time for payment for the difference in amount
itself is a concession as about 70,641 members have not paid Rs.300/-
per year as SANGAM (only 16,198 persons have paid Rs.300/- as
SANGAM). It is respectfully submitted that giving permission to vote/
contest by giving an undertaking will create legal complications as one
could vote /contest without paying the prescribed SANGAM before
voting or filing of nomination to contest. Hence, the Administrators are
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of the view that in case this Hon'ble Court decides the SANGAM
amount payable is Rs.300/- per year, such of those members who have
paid only Rs.100/- may be given time to pay the balance of Rs.200/-
each for three years before the Pastorate Chairman of the concerned
Church or the person in charge of the church to conduct election on or
before 28.01.2021 and produce the payment receipt while exercising
their voting right.
4.It is submitted that such of those members who are willing
to pay Rs.200/- each for three years and on paying the same, the
pastorate chairman has to update the voters list for the voting which is
fixed on 07.02.2020 so that the election schedule already announced
need not be changed. The Chairman of the concerned pastorate or the
person in charge of the church shall be directed to give announcement
to pay the Additional Sangam amounts for three years during the
Divine Worship Service in the following Sunday after the order is
pronounced by this Hon'ble Court.”
3.3.It is an admitted fact that the rules for election is
governed by bye-laws, according to which, the quantum of sangam
amount is only Rs.300/- per year. As per the Constitution of CSI
Diocese, the payment of Sangam is mandatory for casting vote as well
as for contesting in the election. The learned Administrators in their
aforesaid report no.7, clearly pointed out that there are about 70641
members, who have paid less than Rs.300/- per year as sangam; and
that granting permission to them by giving an undertaking, will create
legal complications with respect to the election process. There is an
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W.A.(MD)No.202 of 2021
urgent need for speedy election of the CSI Tirunelveli Diocese. Taking
note of all these aspects, this Court, in the interest of the institutions
run by the Diocese of Tirunelveli and administered by TDTA, is inclined
to issue the following directions:
(i)The congregation members, who have paid less than Rs.
300/- per year towards subscription / Sangam, shall pay the balance
amount for three years to the Pastorate Chairman/ in-charge of the
concerned Church, on or before 28.01.2021 and produce the receipt to
the Election Officer, if required, for casting their votes.
(ii)The Chairman of the concerned Pastorates or the person
in-charge of the Church shall give an announcement on the
forthcoming Church day, as regards the payment of the Sangam amount
at Rs.300/- per year for three years and upon receipt of the same,
they shall update the voters list for voting, which is scheduled to be
fixed on 07.02.2021 and submit the same to the Election Officer, after
marking a copy to the learned Administrators.
(iii)The learned Administrators shall proceed with the
election process, as scheduled. There is no modification with regard to
the dates already fixed.
(iv)The police authorities shall provide necessary assistance
for the conduct of election of the CSI Diocese in a peaceful manner.
4.1 As regards the issue relating to merger of some
churches with other Pastorates, the learned counsel for the learned
Administrators drew the attention of this Court to the paragraph no.4
of the Report No.4 dated 01.09.2020 filed by the learned
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Administrators, wherein, it is stated that having regard to the fact that
the candidates can contest only on the basis of the Sangam payment,
they have passed an order on 17.08.2020, not to decide the said issue at
this stage and ordered to continue the same position and requested the
newly elected body of the Diocese to consider the said issue after
ascertaining the views of the General body of the church concerned by
conducting secret ballot.
4.2 In the light of the above, this Court directs the
learned Administrators to act in line with paragraph no.4 of the Report
No.4 dated 01.09.2020 filed by them.
5. Post on 20.01.2021 for filing reports and for reporting
compliance.''
6.Assailing the aforesaid order, the appellant / writ petitioner in W.P.
(MD)No.12111 of 2020 has approached this Court. The learned counsel
appearing for the appellant submitted that the writ petitioner in W.P.(MD)No.
12295 of 2020 has not filed appeal against the said order.
7.The learned counsel appearing for the appellant submitted that the
order passed by the learned Single Judge requires to be interfered with, since
the earlier order has been accepted by both sides. As a consequence of the order
passed, the list of eligible voters is likely to be changed. There is no power or
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W.A.(MD)No.202 of 2021
authority for respondent No.1 to enhance the Sangam amount without the
sanction and approval of the Synod. There was a communication to this effect,
followed by a Resolution representing the Synod. Therefore, the order requires
interference.
8.The learned counsel appearing for respondent No.2 submitted that
the resolution of the Synod, as sought to be relied upon by the learned counsel
for the appellant, has been withdrawn. As on today, the Constitution of the
Diocese would indicate the Sangam amount as Rs.300/-. This is only an interim
order and the appellant on a wrong factual premise has come forward to file this
Writ Appeal.
9.The learned counsel representing the learned Administrators
submitted that in compliance of the order passed by the learned Single Judge,
more than 10,000 persons have paid the differential amount and same has been
continuing still and if any change is made at this stage, the same would be
difficult for the learned Administrators to proceed further. Therefore, it is
requested that the appeal has to be dismissed.
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W.A.(MD)No.202 of 2021
10.The Writ Petition has been filed by the appellant seeking a Writ of
Declaration, declaring the communication of respondent No.1, fixing of
Sangam amount in CSI Diocese not less than Rs.300/- for the purpose of
election to the Committee and Councils as null and void. Two Writ Petitions
have been filed. If at all, the appellant has got any grievance, he can be advised
to restrict it only to himself. We are not dealing with the Public Interest
Litigation as against an election likely to be conducted.
11.The learned Administrators, who consented to undertake the said
job are Men of pure knowledge and wisdom. It is only pursuant to the wisdom
expressed in conducting the ensuing election, a report was filed. The learned
Single Judge has rightly accepted the report. After all, the learned
Administrators were assigned with the task of conducting the election in a fair
and free manner. Right to vote and contest are obviously not constitutional
rights. They are governed by Statutes.
12.In the case on hand, a specified amount has been fixed for vote and
contest. As stated, the decision has been accepted by one and all, except two
persons, namely, the appellant herein and another. Certainly, the appellant
cannot raise any plea by contending inter alia that many of the persons may not
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be in a position to vote in view of increase in Sangam amount. As of now, the
Constitution says a sum of Rs.300/- as Sangam amount.
13.The contention of the learned counsel appearing for the appellant
that it is not open to the contesting respondent to support the order under
challenge, having agreed under the earlier order, will not hold water as we are
concerned with the suggestions made by the learned Administrators after
considering the relevant materials furnished in the form of report for the
purpose of conduct of election. When such a view has been expressed, after a
conscious consideration of relevant materials, the same cannot be found fault
with, as rightly done by the learned Single Judge.
14.The issue as to whether the said amount fixed at Rs.300/- as
Sangam amount is correct or not as against Rs.100/-, as contended by the
learned counsel appearing for the appellant, can certainly be gone into at a later
point of time. In any case, even if the appellant succeeds, his entitlement will
be very little. Had not the appellant approached this Court, certainly the
election would have been conducted with Rs.300/- as Sangam amount. That is
the reason why, the appellant has approached this Court. After all, this is only an
interim arrangement and no body can be sure, who would come successful in
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W.A.(MD)No.202 of 2021
the election. Suffice to state that except the limited interest of the appellant,
insofar as his case is concerned, he cannot canvass beyond and it is possible that
the appellant's faction would still become victorious in the election. The
arrangement is only a process for conduct of the election. Since the learned
Administrators are in-charge for quite some time, it is better for this Court not
to express anything than what they have suggested.
15.In such view of the matter, we do not find any reason to interfere
with the order of the learned Single Judge, especially, when the election process
is going on, particularly, in line with the submissions made by the learned
Administrators that there is substantial enthusiasm to make the increased
payment of Sangam amount to facilitate the person to vote.
16.This Writ Appeal is dismissed accordingly. No costs.
Consequently, connected Miscellaneous Petitions are closed.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes 27.01.2021
smn2
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
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W.A.(MD)No.202 of 2021
To
The Registrar of Companies,
Ministry of Corporate Affairs,
Block No.6, 'B' Wing,
Second Floor, Shastri Bhavan,
D.No.26, Haddows Road,
Chennai – 600 006.
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W.A.(MD)No.202 of 2021
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
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W.A.(MD)No.202 of 2021
27.01.2021
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