Madras High Court
P.Jeyasingh Malraj vs The District Registrar ... on 21 July, 2021
W.P(MD)No.11311 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.07.2021
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P(MD)No.11311 of 2021
and
W.M.P(MD) Nos.8832 and 10803 of 2021
P.Jeyasingh Malraj ... Petitioner
Vs.
1.The District Registrar (Administration),
Cheranmahadevi Registration District,
Cheranmahadevi, Tirunelveli District.
2.The District Educational Officer,
Tirunelveli District.
3.The District Educational Officer,
Valliyoor, Tirunelveli District.
4.The District Educational Officer,
Cheranmahadevi, Tirunelveli District.
5.The District Educational Officer,
Tiruchendur, Thoothukudi District.
6.S.Thomas Walker
7.R.Paul George ... Respondents
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W.P(MD)No.11311 of 2021
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarifed Mandamus, to call for the
records of the impugned order in Na.Ka.No.3701/A2/2020 dated 21.06.2021
on the file of first respondent and quash the same and further directing the
first respondent to conduct an election to the Tirunelveli CMS Evangelical
Church Society by appointing a Special Officer.
For Petitioner : Mr.G.Prabhu Rajadurai
For RR 1 to 5 : Mr.P.Subbaraj
Counsel for State
For R – 6 : Mr.Isaac Mohanlal
Senior counsel
for M/s.Isaac Chamber
ORDER
The petitioner assails an order dated 21.06.2021 of the first
respondent by which the Form VII submitted by the sixth and seventh
respondents herein was taken on file. A consequential prayer is also made
for the conduct of elections to the Tirunelveli CMS Evangelical Church
Society by appointing a special officer for such purpose.
2.The Tirunelveli CMS Evangelical Church is a society
registered under the provisions of the Societies Registration Act, 1860. All
the members of the said society constitute the general body. Such general
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W.P(MD)No.11311 of 2021
body elects the Management Committee for a period of three (3) years,
which is referred to as a triennium. From and out of the members of such
Management Committee, office bearers such as President, Secretary,
Treasurer and the like are appointed. Disputes arose between groups of
members/office bearers and such disputes resulted in the filing of O.S.
No.418 of 2012. The petitioner herein was a party, namely, the second
defendant in O.S.No.418 of 2012. The judgment and decree in O.S.No.418
of 2012 was carried in appeal by filing A.S.No.110 of 2018 before the
appellate Court. The said appeal suit was disposed of on 23.07.2019. The
decision of the appellate Court was challenged in S.A.(MD).No.543 of 2019.
S.A.(MD).No.543 of 2019 was disposed of on 21.01.2020. The said second
appeal was disposed of on the ground that it had become infructuous
inasmuch as it pertained to the elections for the triennium 2012 to 2014.
Since the elections for the triennium 2020 to 2022 had been conducted in the
mean time and the validity thereof was under question, the Court left it open
to the parties to challenge the validity of the election held on 16.11.2019 by
way of separate appropriate proceedings.
3.Thereafter, the sixth and seventh respondents endeavoured to file
Form VII in relation to the election held in 2019. By proceedings dated
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W.P(MD)No.11311 of 2021
29.06.2020, the first respondent declined to receive and take on file such
Form VII. This formed the subject matter of two separate writ petitions filed
by the sixth and seventh respondents herein. The said writ petitions were
W.P.(MD).No.10532 of 2020, which was filed by the sixth respondent
herein, and W.P.(MD).No.11099 of 2020, which was filed by the seventh
respondent. By a common order dated 28.09.2020, the said writ petitions
were disposed of by setting aside the order dated 29.06.2020 and remanding
the matter to the District Registrar (Administration), Cheranmahadevi
Tirunelveli District (the District Registrar) with a direction to hold a fresh
inquiry and pass orders in accordance with law after hearing both parties.
By such order, it was also indicated that it is open to the District Registrar
(Administration) to issue notice to other interested parties also in view of the
suits filed by such parties. The impugned order dated 21.06.2021 was issued
pursuant to the directions issued in the above mentioned Writ Petitions.
4.The petitioner assails the impugned order on multiple grounds. The
principal ground on which he assails the order is that he was not heard
before such order was passed. Indeed, the petitioner contends that the
impugned order contravenes the order passed by this Court on 28.09.2020 in
the two Writ Petitions adverted to above. The second contention of the
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W.P(MD)No.11311 of 2021
petitioner is that only persons in the Management Committee can be elected
as office bearers. For such purpose, Clause 14 of the bylaws of the society
is relied upon. The third contention is that both Paul George and the
petitioner were removed at the same meeting and that, therefore, the
acceptance of Form VII by which the said Paul George has been elected as
an office bearer is unlawful. The petitioner also contends that only an
Election Officer can conduct the election of office bearers, and that the
election is vitiated on this account.
5.The petitioner seeks to controvert the contention that the Writ
Petition is not maintainable because the society has not been impleaded on
the basis that there is a vacuum in the society and, therefore, it does not
make any difference whether the society is impleaded as a party or not. With
regard to the scope of inquiry by the Registrar under the Tamil Nadu
Societies Registration Act 1975, the petitioner contends that the decision of
the Registrar is to be made on the basis of a summary inquiry. Such
summary inquiry should take note of the bylaws of the society concerned as
also the resolutions passed at the relevant general body and Management
Committee meetings. In the case at hand, the petitioner contends that the
District Registrar failed to fulfil the statutory mandate of conducting at least
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W.P(MD)No.11311 of 2021
a summary inquiry so as to arrive at a prima facie view on the validity of the
forms filed by the sixth and seventh respondents.
6.In support of these submissions, the petitioner relies upon the
judgment of the Full Bench of this Court in C.M.S.Evangelical Suvi David
Memorial Higher Secondary School Committee Vs. The District Registrar
and Others, Cheranmahadevi, which is reported in 2005 (2) MLJ 335 and,
in particular, paragraph 18 thereof. In addition, the judgment in
C.Dharmalingam Vs. District Registrar, reported in 2011(4) MLJ 755 and,
in particular, paragraph 27 thereof is relied upon to contend that the Court
may supervise the conduct of fresh elections in such situation.
7. On the contrary, the sixth respondent submits that the writ petition
is not maintainable without impleading the Society. In addition, the sixth
respondent contends that the petitioner is not a member of the Society and
was removed from membership as early as in 2011. Therefore, it is
submitted that the petitioner does not have the locus standi to maintain the
writ petition. The next contention of the sixth respondent is that the present
dispute does not pertain to the elections for the triennium 2012-2014. As
such, the litigation originating in O.S.No.418 of 2012 and culminating in the
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W.P(MD)No.11311 of 2021
order passed in the Special Leave Petition arising out of the judgment in
S.A.(MD).No.543 of 2019 is not of direct relevance. According to the sixth
respondent, the only relevance of such proceedings is the liberty granted to
the parties to challenge the validity of the election held on 16.11.2019 by
way of appropriate proceedings. By adverting to the fact that the petitioner
was the second defendant in the said proceedings, the sixth respondent
contends that the petitioner should have challenged the elections held on
16.11.2019 if he was aggrieved by such election. On account of having
failed to challenge the election held on 16.11.2019, the sixth respondent
contends that the present challenge to the ministerial act of taking the Form
VII on file is not maintainable.
8. As regards the contention that the petitioner was not heard before
the impugned order was passed, the sixth respondent draws the attention of
the Court to the order passed in W.P.(MD).Nos.10532 and 11099 of 2020.
On such basis, it is contended that the petitioner was not, admittedly, a party
to either writ petition. The Court directed the Registrar to hold a fresh
inquiry and pass orders after hearing both parties. According to the sixth
respondent, the expression 'both parties' refers to the sixth and seventh
respondents herein. With regard to the reference to 'other interested
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W.P(MD)No.11311 of 2021
persons', the sixth respondent points out that two suits were filed by third
parties by way of O.S.No.222 of 2019 and O.S.No.207 of 2019. By such
suits, the election for the triennium 2019-2022 was challenged. Therefore, it
is contended that the sentence in the relevant order which leaves it open to
the District Registrar (Administration) to issue notice to other interested
persons should be construed as referring to the plaintiffs in the above
mentioned two suits challenging the elections for triennium 2019-2022.
9. The next contention on behalf of the sixth respondent is that the
writ petition is liable to fail for non-joinder of necessary parties. For such
purpose, the sixth respondent adverts to the Form VII filed in respect of the
election on 16.11.2019 and points out that such Form VII contains a list of
about forty five persons. Therefore, the petitioner should have joined these
persons as parties because the quashing of the impugned order would affect
the civil rights of such parties. With regard to the scope of Sections 34 and
36 of the Tamil Nadu Societies Registration Act 1975, the sixth respondent
contends that the Registrar plays a very limited role, which can be described
as ministerial. In support of such contention, the judgment of the Division
Bench of this Court in R.Muralidaran and Others Vs. District Registrar,
South Madras (R.Muralidaran), which is reported in 2008 (1) MLJ 1308, is
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W.P(MD)No.11311 of 2021
relied upon. In particular, the sixth respondent places emphasis on
paragraphs 25, 33, 36 and 39 of such judgment so as to contend that the
scope of judicial review against the orders of the registrar by which Form
VII is accepted is extremely limited. In this connection, it is contended that
the primary or substantive event is the relevant election and the party
aggrieved by the election should challenge the election by approaching the
jurisdictional civil court. Such party cannot, by way of judicial review, seek
to indirectly assail the election in the guise of assailing the ministerial act of
taking the Form VII on file. The sixth respondent also points out that a
single petitioner has come before this Court assailing the acceptance of
Form VII and that the society runs about 27 schools. As such, the
functioning of the Society should not be jeopardised at the behest of one
individual.
10.The State makes very brief submissions. The State relies upon
Paragraph 7 of its counter-affidavit and submits that the District Registrar
conducted an inquiry in accordance with the orders passed by this Court on
28.09.2020. The State also submits that it is not necessary to appoint a
Special Officer in the facts and circumstances and that electoral disputes
between the private parties should be carried to an appropriate civil court.
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W.P(MD)No.11311 of 2021
11.The rival contentions were duly taken note of and the documents
on record examined. The first question that arises for consideration is
whether the impugned order is liable to be interfered with on account of not
providing a hearing to the petitioner herein. In order to examine this issue, it
is necessary to advert to the order passed by this Court on 28.09.2020.
Without doubt, the petitioner is not a party to the said order. By such order,
the Registrar was directed to hold a fresh inquiry and pass orders after
hearing both parties. As correctly contended by learned Senior Counsel for
the sixth respondent, the expression 'both parties' does not refer to the
petitioner herein. Instead, it refers to the sixth and seventh respondents
herein. As regards the sentence: " It is also open to the District Registrar
(Administration) to issue notice to other interested parties also", the said
sentence does not contain a mandatory direction. Instead, discretion was
vested in the District Registrar (Administration) to issue notice to other
interested parties. The consequential question that arises is as to who such
interested parties are. The subsequent sentence of the order of this Court
throws light on this question. The said sentence refers to suits filed by
different persons. Given the fact that the subject matter of the writ petition
was the election held on 22.11.2019 for the triennium 2019-2022, the
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W.P(MD)No.11311 of 2021
expression 'interested persons' would apply to all those who challenged the
elections for triennium 2019-2022.
12.While it is true that the Court adverted to the order by which
S.A(MD).No.543 of 2019 was dismissed, it cannot be reasonably implied
therefrom that the Court directed the District Registrar (Administration) to
hear the petitioner, who was the second defendant in the said second appeal.
Therefore, it cannot be said that the impugned order is vitiated because the
petitioner was not heard. On this issue, it is also pertinent to bear in mind
that the Society concerned has a large number of members. If the contention
of the petitioner were to be accepted, each member would be able to assail
the taking of Form VII on record on the ground that such member was not
heard before a decision was taken in the matter.
13.As regards the rival contentions on the scope of inquiry under
Sections 34 and 36 of the Tamil Nadu Societies Registration Act 1975, the
issue is clearly no longer res integra. The Full Bench of this Court
concluded that the inquiry is intended to be summary and for the purpose of
arriving at a prima facie view with regard to the subject matter of inquiry.
The petitioner contended that the District Registrar should have ascertained
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W.P(MD)No.11311 of 2021
whether the office bearers were members of the relevant management
committee. The petitioner further contended that if such scrutiny had been
undertaken, the District Registrar would not have taken on file the relevant
form. On this issue, the sixth respondent countered such contention by
pointing out that there were two meetings each of the general body and the
management committee on 16.11.2019 and 23.02.2021. Therefore, it was
pointed out that all the office bearers were first elected as members of the
management committee. An adjudication on such aspects is not necessary in
course of a summary inquiry especially when the relevant Form VII was not
contested before the District Registrar. If the impugned order is examined
from the perspective of testing whether a summary inquiry was conducted, it
cannot be said that the District Registrar failed to perform the duty of
conducting a summary inquiry for purposes of arriving at a prima facie view.
14.Indeed, as correctly contended by the sixth respondent, the
petitioner did not challenge the elections held in 2019 in spite of the fact that
the order in the second appeal granted liberty in such regard. On this issue,
the Division Bench, in paragraph 33 of R.Muralidaran, in relevant part, held
as under:
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W.P(MD)No.11311 of 2021
"...the filing of Form No. VII is only a consequential action
to an election purportedly conducted. The acceptance of such a
Form by the Registrar would neither affix a seal of approval on the
validity of the election nor would the rejection of Form No. VII by
the Registrar, invalidate an election properly conducted. Therefore,
a person, who is aggrieved by an election, should only go before a
Civil Court challenging the election. A person aggrieved by an
election cannot challenge the acceptance or rejection of Form No.
VII by the Registrar as a short cut to invalidate an election...."
Needless to say, the petitioner still has the option of challenging the
elections of 2019 and/or 2021 by approaching the jurisdictional civil court in
such regard or seek to implead himself in the pending suits. In such
proceedings, given the wide ambit of the civil court's jurisdiction, it would
be possible for the civil court to examine the validity of the general body
meeting as well as the validity of the constitution of the management
committee and election of the office bearers. Although the sixth respondent
raised the issue pertaining to the removal of the petitioner from the
membership of the Society, it is not necessary to enter findings on such issue
in view of the conclusion drawn above as regards the challenge to the
impugned order. It is open to the sixth respondent to canvass such issue in
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W.P(MD)No.11311 of 2021
future proceedings.
15. For the reasons set out above, W.P(MD).No.11311 of 2021 is
dismissed without any order as to costs by leaving it open to the petitioner to
approach a jurisdictional civil court in order to impugn the elections held in
2019 and/or any subsequent elections, including appointments of office
bearers. In such event, the Form VII filed by the sixth and seventh
respondents and taken on file by the District Registrar (Administration)
would be subject to and abide by the outcome of such civil suit. The
petitioner also has the option of seeking to implead himself in the two
pending suits whereby the elections of 2019 are under challenge.
Consequently, W.M.P(MD) Nos.8832 and 10803 of 2021 are closed.
21.09.2021
Index : Yes
Internet : Yes
rm/pkn
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.P(MD)No.11311 of 2021
To
1.The District Registrar (Administration),
Cheranmahadevi Registration District,
Cheranmahadevi, Tirunelveli District.
2.The District Educational Officer,
Tirunelveli District.
3.The District Educational Officer,
Valliyoor, Tirunelveli District.
4.The District Educational Officer,
Cheranmahadevi, Tirunelveli District.
5.The District Educational Officer,
Tiruchendur, Thoothukudi District.
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W.P(MD)No.11311 of 2021
SENTHILKUMAR RAMAMOORTHY, J.
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W.P(MD)No.11311 of 2021
21.09.2021
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