Madras High Court
Kovilpatti Nadar Uravinmurai ... vs K.A.Velumani on 3 November, 2023
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.11.2023
(Reserved on 20.09.2023)
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA
CHAKRAVARTHY
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
and
Connected Miscellaneous Petitions
W.A(MD)No.1520 of 2022:-
Kovilpatti Nadar Uravinmurai Sangam, Kovilpatti,
(Registration No.S.23/1955),
Old No.32, New No.65,
Pathrakaliamman Kovil Street,
Kovilpatti-628 501,
Rep by its
The President (Ad-Hoc Arrangement) ...
Appellant
-vs-
1. K.A.Velumani
2. V.Abraham Ayyadurai
3. M.Paramasivam
4. M.Sudhakar
Page 1 of 38
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
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5. K.A.Balasubramanian
6. K.Thanga Mariappan
7. The State of Tamilnadu,
Rep. by the District Registrar,
Palayamkottai,
Tirunelveli District.
8. V.Nagarajan,
The Advocate Commissioner/Election Officer,
Kovilpatti Nadar Uravinmurai Sangam,
Kamarajar International Academy (CBSE),
Pasuvanthanai Road,
Pandavarmangalam,
Kovilpatti-628 501. ... Respondents
PRAYER : Appeal filed under Clause 15 of the Letters
Patent, against the order dated 20.12.2022 made in W.P(MD)No.
28053 of 2022.
For Appellant in all W.As : Mr.V.Ragavachari, Senior Counsel,
for
Mr.C.Mayilvahana Rajendran
W.A(MD)No.1520/2022:-
For R2 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.P.M.Vishnuvarthanan
For R7 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
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W.A(MD)No.1212/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.K.Jeyamohan
For R2 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)Nos.1211 and 1213 to 1219 & 1013/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
M/s.Isaac Chambers
For R2 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)No.1512/2022:-
For R1 to R12 : Mr.Isaac Mohanlal, Senior Counsel for
M/s.Isaac Chambers
For R13 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)No.1521/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.P.M.Vishnuvarthanan
For R5 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
For R7 & R8 : Mr.M.Veeranthiran
Government Advocate (Criminal Side)
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COMMON JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.]
All the appeals are connected and the issue to be
resolved in these appeals are almost common and therefore, all
these appeals are disposed of by this common judgment.
2. Brief facts that are necessary for disposal of all these
appeals are as follows:-
In all the above appeals, a registered society by name,
Kovilpatti Nadar Uravinmurai Sangam, represented by its office-
bearers is the appellant. It is admitted that Kovilpatti Nadar
Uravinmurai Sangam (hereinafter referred to as ''Society'') is a
Society registered originally under the Societies Registration Act,
1860, in 1955. After coming into force of the Tamilnadu Societies
Registration Act, 1975, the Society is deemed to be registered
under the State Act in view of Section 53 of the State Act.
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2.1. The Society is governed by its own bye-laws. As per
the bye-laws of the Society, the Society is administered by the
Administrative Committee consisting of 65 members. The elected
members of the Society have to elect the President of the Society.
The President then shall select and appoint the Vice President,
Secretary and Treasurer of the Society from among the remaining
elected members of the Administrative committee. The President
of the Society is also empowered to constitute sub-committees for
administering the Society as well as the six educational
institutions established by the Society.
2.2. For about 15 years, there appears to be some issues
among members regarding the election that was conducted to
elect the members for the Administrative Committee. The elected
members of the Committee shall be in office for a period of three
years. Before the election for the triennium 2014-2017, one of
the members filed W.P(MD)No.15101 of 2014 for issuance of a
Writ of Mandamus, to direct the District Registrar of Societies to
nominate an officer for the conduct of election of office-bearers of
the Society in the general body meeting scheduled to be held on
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28.09.2014 with a further direction to the District Registrar of
Societies to consider the writ petitioner's request and to pass
appropriate orders. The said writ petition was disposed of on
11.09.2014.
2.3. Again, another writ petition was also filed in
W.P(MD)No.14140 of 2014, for issuance of a direction to the
District Registrar of Societies to take action as per Sections 36
and 37 of the Tamilnadu Societies Registration Act, 1975, for the
purpose of conducting elections to the Society. The said writ
petition was also disposed of with a direction to the District
Registrar of Societies to consider the writ petitioner's request and
to pass appropriate orders by appointing an independent
observer to conduct election. Subsequently, on account of some
developments, another writ petition came to be filed in
W.P(MD)Nos.17302 of 2014 by a member of the Society namely,
Mr.Thangamariappan, for issuance of a Writ of Mandamus to
nominate an officer to conduct the election of office-bearers of the
Society in accordance with the earlier directions of this Court in
W.P(MD)Nos.14140 and 15101 of 2014. This Court by order
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dated 29.10.2014, appointed an Advocate by name,
Mr.V.Sitharanjandhas (Late) to conduct the general body election
for the Society and the election for the new office-bearers of the
Society for the triennium 2014-2017 was conducted on
28.12.2014 under the supervision of the Advocate who was
appointed as Observer.
2.4. It is admitted that there was election for the triennium
2017-2020 which came to an end in March 2020. However, it is
stated that the office-bearers who were elected for the triennium
2017-2020 continue in office. It appears that the Secretary of the
Society called for a general body meeting in November 2020 for
the purpose of conducting election. Meanwhile, a few members of
the Society filed a writ petition in W.P(MD)No.18415 of 2020
before this Court for issuance of a Writ of Mandamus, directing
the District Registrar to nominate an Observer for holding
election for the period 2020-2023. It is stated before this Court
that by order dated 11.12.2020, a senior member of the Bar by
name, Mr.V.Nagarajan was appointed as Advocate Commissioner,
to conduct the election of office-bearers of the Society. We are
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unable to find what had happened pursuant to the said direction
of this Court. However, it is admitted that no election was
conducted pursuant to the direction.
2.5. However, another writ petition was filed by one
Vijayakumar in W.P(MD)No.4304 of 2022 for identical relief
namely, to issue a Writ of Mandamus, directing the District
Registrar to conduct the election of office-bearers of the Society
by nominating an officer of the District Registrar as Observer. A
learned Single Judge of this Court by order dated 10.03.2022 by
consent of the parties to the writ petition, appointed
Mr.V.Nagarajan, Advocate, as Advocate Commissioner to conduct
the election of office-bearers of the Society in accordance with the
bye-laws of the Society. The operative portion of the order dated
10.03.2022 reads as follows:-
5.By consent of both the parties,
Mr.V.Nagarajan, Advocate (Enrl.No.
1295/1993), (Mob.No.98651 15292), having
office at No.62, Law Chambers, High Court
Building, Madurai-23, is appointed as
Advocate Commissioner to conduct election
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of office bearers of the Kovilpatti Nadar
Uravinmurai Sangam (Registration No.
23/1995) by issuing election notification in
accordance with the bye laws of the Society.
The details of the election in accordance with
the bye laws of the Society shall be fixed by
the Advocate Commissioner. After conducting
the election in accordance with the bye laws
of the Society and after completion of the
election process, the Advocate Commissioner
is directed to submit a report to the Registry
of this Court.''
2.6. The Advocate Commissioner filed an interim report
along with the memo dated 14.07.2022. It is seen from the
interim report submitted by the Advocate Commissioner that he
has addressed a letter to the District Registrar, Palayamkottai, on
21.03.2022, to nominate one of his subordinates as an Observer
as directed by the learned Single Judge while appointing him as
an Advocate Commissioner. The Advocate Commissioner also
requested the District Registrar to issue a copy of the members
list of the Society as per Form-VI. The Advocate Commissioner
has specifically referred to the request of the President and
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Secretary of the Society to extend the time to the members to pay
their 'Thalaikattu Vari' upto the commencement of the festival of
Pathrakali Amman temple. A list of members filed by the Society
in Form-VI to the District Registrar of Societies for the year
2018-2019 is also obtained by the Advocate Commissioner from
the Registrar on 01.04.2022. The Advocate Commissioner also
referred to the list of members who were removed from the
Society.
2.7. In the meanwhile, one of the members of the Society
filed a writ petition in W.P(MD)No.8558 of 2022 seeking a
direction to the Advocate Commissioner to rectify the defect in the
members list. This Court by order dated 28.04.2022 disposed of
W.P(MD)No.8558 of 2022 in the following lines:-
''4.This Court has perused and
examined the members list. As seen from the
members list, there are glaring
discrepancies. As rightly contended by the
learned Counsel for the petitioner, there are
double entries and common member
numbers in the membership list. Unless and
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until the same is rectified, no useful purpose
will be served, if the election is conducted as
per the schedule fixed by the Advocate
Commissioner. The petitioner is also
interested in participating in the election, but
his only grievance is with regard to the
discrepancies in the members list.
5.This Court, after giving due
consideration to the aforementioned factors,
is of the considered view that the it is better
and advisable if the election is postponed to
enable the respondents 2 and 3 to rectify the
defects in the members list. The learned
Counsel for the respondents 2 and 3 is also
agreeable for postponement of the election
and he undertakes to instruct the Advocate
Commissioner accordingly. The respondents
2 and 3 are permitted to rectify the
membership list by including all the eligible
members for the Kovilpatti Nadar
Uravinmurai Sangam within a period of two
months from the date of receipt of a copy of
this order. Only after finalisation of the
membership list, the Advocate Commissioner
shall issue a fresh election notification for the
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conduct of the election for the Kovilpatti
Nadar Uravinmurai Sangam.''
2.8. On receipt of the order passed by this Court dated
28.04.2022, in W.P(MD)No.8558 of 2022, it is stated by the
Advocate Commissioner in his final report dated 19.01.2023 that
the Secretary of the Society had submitted the rectified members
list for the year 2018-2019 in Form-VI as approved by the District
Registrar, Tirunelveli, on 15.11.2022. The said rectified
members' list had been displayed in the election office notice
board calling for objections/suggestion from the members.
2.9. Some of the members found that their names had
been removed from the list of eligible voters. It appears that
several persons whose names are not found in the list of eligible
voters, approached this Court by filing 10 writ petitions in
W.P(MD)Nos.13642 and 15351 to 15359 of 2022. The petitioners
in all the 10 writ petitions alleged that they were removed from
the membership of the Society for no valid ground. This Court by
order dated 20.07.2022 allowed all the writ petitions after
quashing the communication regarding removal of the writ
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petitioners from the basic membership. However, many of the
members found their names missing from the voters list.
Meanwhile, the Advocate Commissioner issued the election
notification on 23.11.2022 which was published on 24.11.2022.
Several people filed their objections after finding that their names
are not included in the voters' list.
2.10. Challenging the common order passed by the
learned Single Judge in W.P(MD)Nos.13642 and 15351 to 15359,
dated 20.07.2022, the Society preferred a batch of writ appeals in
W.A(MD)Nos.1013 and 1211 to 1219 of 2022. During the
pendency of the writ appeals, this Court by order dated
08.09.2022 in W.A(MD)No.1013/2022 and CMP(MD)No.
8156/2022 has directed that the order of the learned Single
Judge in W.P(MD)Nos.13642 of 2022 be kept in abeyance.
Thereafter, by a common order dated 08.12.2022, in
W.A(MD)Nos.1013 and 1211 to 1219 of 2022, this Court
permitted the 1st respondent in all the said ten appeals who are
the writ petitioners in W.P(MD)No.13642 and 15351 to 15359 of
2022 to approach the Advocate Commissioner on 09.12.2022 for
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submitting their applications complying with all requirements for
issuing nomination papers for contesting the election. A further
direction was also issued to the Advocate Commissioner to
scrutinize all the nomination papers submitted by the candidates
who have complied with the requisite eligibility criteria. It is to be
noted that in the said order, there was an observation that those
who have paid Mahamai on or before 15.06.2022 alone have to be
considered by the Advocate Commissioner. However, the said
order was subject to further orders to be passed by this Court in
the main appeals.
2.11. In the meanwhile, four other writ petitions were
filed challenging non inclusion of writ petitioners' names and to
consider the joint objection raised by them and to include the writ
petitioners' names in the voters' list. Those writ petitions are
W.P(MD)Nos.27650, 28053, 28071 and 28282 of 2022. All the
four writ petitions were allowed by a learned Single Judge of this
Court by order dated 20.12.2022.
2.12. W.A(MD)No.1512 of 2022 is directed against the
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order passed in W.P(MD)No.28071 of 2022; W.A(MD)No.1513 of
2022 is directed against the order in W.P(MD)No.28282 of 2022;
W.A(MD)No.1520 of 2022 is directed against the order in
W.P(MD)No.28053 of 2022; W.A(MD)No.1521 of 2022 is directed
against the order made in W.P(MD)No.27650 of 2022 and
W.A(MD)Nos.1013 and 1211 to 1219 of 2022 are against the
common order of the learned Single Judge of this Court dated
20.07.2022 in W.P(MD)No.13642 of 2022 and 9 other writ
petitions namely, W.P(MD)Nos.15351 to 15359 of 2022.
2.13. The Advocate Commissioner in his final report
that issue of nomination has stated forms was commenced on
07.12.2022 by 10.00 a.m and closed on the same day at 04.00
p.m. It is admitted that the Advocate Commissioner has received
158 nomination forms and collected a sum of Rs.79,000/-
towards nomination forms. The Advocate Commissioner also
referred to an incident at the instance of one member namely,
TKT.Thilagarathinam Nadar. The Advocate Commissioner has
further stated that another 10 nomination forms were issued on
09.12.2022 to 10 other members/candidates as per the direction
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of this Court in W.A(MD)Nos.1013 and 1211 to 1219 of 2022,
dated 08.12.2022. It is stated that out of 168 nomination forms
issued, only 136 candidates filed their nominations. It is also
stated that at the time of scrutiny of nomination forms on
11.12.2022, the Advocate Commissioner found only 90
nominations in order and they were accepted. 46 nominations
according to the Advocate Commissioner were found to be
defective and hence they were rejected. Though the Advocate
Commissioner has not given in his report the reasons for
rejecting the nominations, he has stated that such reasons for
rejection of nominations were duly recorded in the respective
nomination forms. Even out of the 10 nominations submitted
pursuant to the direction of this Court, the Advocate
Commissioner seems to have rejected nominations of seven
candidates including one M.T.M.Thangaraj. It is stated that the
final list of contesting candidates was published and displayed in
the notice board consisting of 88 candidates.
2.14. It is to be noted that this Court while granting
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interim orders, allowed the election process to go on but
restrained the Advocate Commissioner to declare the results of
election for a period of four weeks. The Advocate Commissioner
in his report stated that on 25.12.2022, the election was
conducted and polling of votes was commenced at 09.00 a.m in
all the eight polling booths selected by the Advocate
Commissioner. After the closing of poll at 04.00 p.m., the
Advocate Commissioner has also counted the votes at 06.15 p.m
in the presence of the Election Observer who was sent by the
District Registrar and two other agents from each group. The
Advocate Commissioner has also stated that the whole process of
election was videographed from the commencement of polling till
counting of votes. As per the orders of this Court, the Advocate
Commissioner has withheld the results of election after
conducting the election as stated by him in his final report.
3. Learned counsels appearing for the writ petitioners,
particularly, learned Senior Counsel, Mr.Issac Mohanlal,
submitted that the whole process of election is vitiated, as the
Advocate Commissioner has rejected nominations of 46
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candidates belonged to one group only on account of the fact
those candidates had not paid Mahamai for the year 2022.
Learned Senior Counsel further submitted that all the candidates
whose nominations were rejected by the Advocate Commissioner
have serious objections to accept the final report of the Advocate
Commissioner and submitted that the Advocate Commissioner
ought to have prepared the list as per the approved list of
membership in tune with Form-VI submitted by the Society
before the District Registrar, since a direction has been issued by
this Court in the order dated 28.04.2022 passed in W.P(MD)No.
8558 of 2022, to rectify the membership list. Learned Senior
Counsel further submitted that the names of all the candidates
whose nominations were rejected by the Advocate Commissioner
are found in the approved list handed over to the Advocate
Commissioner and that the election conducted by the Advocate
Commissioner rejecting the nominations of more than 46
candidates belonging to one group is biased and wholly is solely
illegal and therefore, this Court should direct fresh election after
scrutiny of nominations of all the candidates who are all
members as per the membership list obtained by the Advocate
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Commissioner himself.
4. Learned Senior Counsel referred to a contempt
petition filed by one M.T.M.Thangaraj in Cont.P(MD)No.1160 of
2022 and that the Advocate Commissioner has circulated a
voters' list before this Court when the contempt petition was
listed and that the said voters' list given by the Advocate
Commissioner contains the names of all the 46 candidates whose
nominations were rejected by the Advocate Commissioner. While
disposing of the writ petitions filed by the 10 members of the
Society challenging removal of their names from the voters' list,
the learned Single Judge found that such removal of the names of
the 10 writ petitioners by the office-bearers who are continuing in
office after the tenure of three years cannot be accepted as valid.
The question of maintainability was also argued before the
learned Single Judge elaborately and the learned Single Judge
considering the fact that the Society is running several
Government aided educational institutions, held that the Society
should be made amenable to the writ jurisdiction. Having regard
to overall circumstances and the patent illegality in the scrutiny
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of nominations by the Advocate Commissioner, the learned Single
Judge held that removal of the writ petitioners from the
membership roll is improper and without jurisdiction and that
therefore the writ petitions are maintainable by considering
several precedents and the fact that the election itself is
scheduled only by order of Court.
5. Mr.V.Ragavachari, Learned Senior Counsel for the
appellants submitted that these writ appeals are filed challenging
the orders of the learned Single Judge in a batch of cases mainly
on the ground that writ petitions under Article 226 of the
Constitution of India are not maintainable as the appellant's
Society is not a 'State' or 'other authority' under Article 12 of the
Constitution. Stating that the appellant is neither funded nor
owned or controlled by the Government, learned Senior Counsel
submitted that the learned Single Judge failed to consider the
maintainability in a proper perspective. It is contended that the
Society which is just a private body constituted under the
Societies Registration Act and governed by its own bye-laws and
which is not discharging any public duty or performing any
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public function is not amenable to the jurisdiction of this Court
under Article 226 of the Constitution of India.
6. Learned Senior Counsel appearing for the appellants
further submitted that as per the bye-laws of the Society, a
person eligible to vote and participate in the election, ought to
have paid Mahamai. Stating that the Advocate Commissioner has
rightly rejected the nominations of 46 persons, learned Senior
Counsel then submitted that the writ appeals are to be allowed
and that the Advocate Commissioner should be directed to
publish the results of the election. Referring to the fact that only
persons who have paid Subscription, Thalaikattu Vari and
Mahamai[as far as traders members are concerned] are eligible to
vote for electing 65 members of the Administrative Committee,
learned Senior Counsel further submitted that appropriate orders
should be passed by this Court to ensure that the Society is
administered by the elected members of the committee pursuant
to the election conducted by the Advocate Commissioner.
7. Learned Senior Counsel referred to the judgment of a
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learned Single Judge of this Court in W.P(MD)No.30472 of 2022
dated 12.12.2022. The question whether the writ petition would
lie against a Church of South India Synod even in respect of mal-
administration or election disputes was decided in the affirmative
by a Division Bench in W.A(MD)No.878 of 2019. Referring to two
other Division Bench judgments taking a contrary view, a learned
Single Judge directed the Registry to place the matter before the
Hon'ble Chief Justice for constituting a Larger Bench to resolve
the conflict and to finally pronounce on the maintainability of the
writ petition against the Society in relation to election disputes.
Learned Senior Counsel appearing for the appellant then relied
upon the judgment of the Hon'ble Supreme Court in the case of
Praga Tools Corporation vs. C.V.Imanual and others reported
in AIR 1969 SC 1306 wherein, it is held that a company
registered and governed by the provisions of the Companies Act,
1956, is not a 'State'. Learned Senior Counsel then relied upon
the judgment of the Hon'ble Supreme Court in the case of
P.R.Murlidharan and others vs. Swami Dharmananda
Theertha Padar and others reported in 2006 (4) SCC 501, for a
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proposition that a writ proceedings cannot be a substitute for a
civil suit.
8. This Court considered the submissions made on either
side in the light of the admitted facts and materials produced.
9. On the question of maintainability, there are several
judgments expressing vies which are conflicting. While deciding
whether a writ is maintainable in a given set of circumstances,
the first question that would arise for consideration is whether a
person against whom, a writ is filed, is a State and satisfies the
definition of 'State' or 'other authority' within the meaning of
Article 12. However, writ petitions against persons who are
charged with public duties are often brought under the definition
of 'State' or 'other authority' within the meaning of Article 12 of
the Constitution of India. The Society in this case is not a
Government or Quasi-Government. Definitely, the Society will
not come under the definition of 'local authority'. However, the
Hon'ble Supreme Court noticing the policies of the Government
and other factors, expanded the scope of 'other authorities' under
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Article 12 by judicial pronouncements. Even though an
organization is not part of the Government or Government
Department still such Organizations which are discharging public
duties are held amenable under Article 226. Corporations or
Societies created by the Statute which are expected to perform
certain public duties, are brought under the definition of 'other
authorities'. When a Corporation or Establishment is discharging
a public duty, they can be brought under the definition of 'State'
within the meaning of Article 12 of the Constitution. This Court
is unable to discard the reasons stated by the learned Single
Judge to hold that the writ petition in the present case is
maintainable. It is not in dispute that the Society is in existence
for nearly eight decades. It is admitted that the Society is now
running the following six educational institutions:-
i. Nadar Middle School, Kovilpatti;
ii. Nadar Higher Secondary School, Kovilpatti;
iii. Kovilpatti Nadar Kamaraj Matriculation School,
Kovilpatti; iv. ICM Middle School, Kovilpatti;
v. Nadar Uravinmurai Sangam – SS Duraisamy Nadar
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
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Mariammal College; and
vi. Kamaraj International Academy, Kovilpatti.
10. Most of the educational institutions above referred to
are Government aided institutions. As per the Tamil Nadu
Societies Registration Act, 1975, every Society is expected to be
administered by the representatives of the general body who are
elected by majority. The Society is expected to exist as a Public
Trust while administering educational institutions. It is the
elected members of the Administrative Committee of Society who
are entitled to nominate the educational agency for all these
educational institutions. All these educational institutions
nominated by the Society have statutory obligations and
therefore, the Society is expected to perform a public duty and
the educational agency has a responsible role.
11. In the administration of educational institutions which
are intended to serve the public with legal and moral obligations,
the Educational Agencies nominated by elected office bearers of
the Society are governed by statutes. When a serious issue is
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raised by alleging illegal disqualification and rejection of
nominations of substantial number of members of General Body
belonged to one particular group, this Court is of the view that
the maintainability of the writ petition has to be considered in
broad perspectives keeping in mind, the larger interest of the
students, public and institutions rather than the interest of the
individuals. When the society is also a Public Trust in running
several Educational Institutions with statutory obligations, this
Court is unable to discard the judicial precedents relied upon by
the learned Single Judge to hold that the writ petitions are
maintainable.
12. It is now admitted that the present office-bearers who
were elected for the triennium 2017-2020 are in office since
2017. As rightly held by the learned Single Judge, extension of
tenure of the office-bearers who assumed office in 2017 was just
assumed by the incumbents without any election for a long
period. It is seen that the Advocate Commissioner has prepared a
list of eligible voters without including substantial number of
members of the general body. It is admitted that the Advocate
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Commissioner has received the authenticated list of eligible
members from the District Registrar during the time when the
Advocate Commissioner commenced the election process
pursuant to orders of this Court. The election was postponed
because of pendency of a few writ petitions which were also
relating to finalisation of voters' list as it was alleged that several
members were removed from the list without any enquiry. When
the list of eligible members as reflected from Form-VI submitted
by the Society itself is available with the Advocate Commissioner,
the Advocate Commissioner on his own altered the electoral roll
of the Society. The writ petitioners whose names found in the list
of eligible members as per Form VI obtained from the District
Registrar, are now made ineligible artificially by the Advocate
Commissioner at the time of scrutiny of nominations. None of the
persons who are in office have raised any serious issue about the
eligibility of members whose names are found in the list obtained
by the Advocate Commissioner from the District Registrar. The
number of members who are eligible to vote in the general body
are less than 2500 and it is not a difficult task for the Advocate
Commissioner to give a fair opportunity to the eligible members to
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
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pay subscription or Mahamai as a specific allegation is made by
one of the groups that Mahamai, all these years are being
collected by the servants of the Society from the trader members.
13 It is seen that the Society is administered by the office-
bearers whose term/tenure expired in 2020. Therefore, it
appears that an attempt is made by one group to oust substantial
number of prospective candidates thereby preventing rival group
from participating in the election. The petitioners in all the writ
petitions appear to be belonging to one particular group. The
conduct of election by the Advocate Commissioner is unfair
without at least getting a clarification from this Court about the
eligibility of voters. It is not in dispute that the names of the writ
petitioners were removed from the list of members of the general
body. The learned Single Judge found that the office-bearers
whose tenure had already been expired, cannot remove the writ
petitioners from the membership roll. The said view is supported
by admitted facts.
14. Article 226 of the Constitution in unmistakable terms
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confers wide powers to the High Court. A Writ of Mandamus is
held to be maintainable even against a private authority
discharging a public duty. We have already seen that the
appellant Society is running several aided educational
institutions. As in this case, the Society gave its express consent
when a third party filed writ petition seeking this Court's
direction to hold election through the Advocate Commissioner to
be appointed by this Court. From the sequence of events, a few
writ petitions were entertained in relation to finalisation of voters
list in the presence of the Society. The Society which has readily
accepted for appointment of Advocate Commissioner to conduct
the election, had not raised any objection as to the
maintainability of the writ petition which could have been raised
even earlier.
15. Coming to the next issue whether the writ petitioners
are eligible to participate in the election, it is the contention of the
learned Senior Counsel for the writ petitioners that the
candidates whose nominations had been rejected by the Advocate
Commissioner are members as per the list obtained by the
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Advocate Commissioner himself from the District Registrar. As
per the bye-laws of the Society, only persons who are paying
Subscription, Thalaikattu Vari and Mahamai are entitled to
contest the election. However, when there is no election for the
period 2020-2023 and the people who were elected for the
previous term were continuing in office on ad hoc basis, the
Advocate Commissioner ought to have at least fixed the time limit
within which the members who want to contest the election,
should pay Mahamai. Since the final report of the Advocate
Commissioner reveals that nomination of 46 members belonged
to one group who contest the election in a particular symbol
[fish], we are unable to discard the genuine grievance of the writ
petitioners that Mahamai which has been collected by the
servants of the Society, was not collected for the year 2022 or
2023 and that this will lead to an unfair election.
16. Learned Senior Counsel appearing for the writ
petitioners further submitted that there was no scrutiny of
nominations in the presence of candidates after issuing due
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notice to them. It is submitted that instead of going by the
membership list, the Advocate Commissioner decided the
eligibility of candidates by asking them to produce the receipt for
payment of Mahamai. In the election notification issued by the
Advocate Commissioner, it is stated that persons who have paid
Subscription, Thalaikattu Vari and Mahamai as on date, alone
are entitled to contest or vote. In such circumstances, the qualifi
of members whose names are found in Form-VI obtained by the
Advocate Commissioner is illegal. However, strangely, for reasons
best known to him, the Advocate Commissioner has started
requiring proof for payment of Mahamai. It is in the said
circumstances this Court has no hesitation to record that the
Advocate Commissioner has committed a serious irregularity in
the process of conducting the election and there is a conscious
effort by the rival group to prevent a large number of eligible
candidates from contesting the election.
17. Before the learned Single Judge in W.P(MD)Nos.27650,
28053, 28071 and 28282 of 2022, the respective petitioners have
filed writ petitions challenging the election notification dated
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
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23.11.2022 and the list of membership and for a direction to
include the names of the petitioners in the voters list before the
Advocate Commissioner proceed with the election. The common
grievance of all the petitioners in the aforesaid four writ petitions
is about non inclusion of their names in the final voters' list.
Therefore, they prayed for inclusion of their names in the voters'
list to enable them to contest the election. W.P(MD)No.28282 of
2022 was filed to quash the list issued by the Advocate
Commissioner dated 12.12.2022 rejecting the nominations of the
petitioners in the writ petition from contesting the election and to
direct the Advocate Commissioner to permit the petitioners to
contest the election of the Society.
18. The grievance of the petitioners in the first batch of 10
writ petitions namely, W.P(MD)Nos.13642 and 15351 to 15359 of
2022 is also about their disqualification by the erstwhile office-
bearers of the Society from contesting or participating the
election. The learned Single Judge allowed the said 10 writ
petitions only on the ground that the present office-bearers whose
tenure had come to an end long back, cannot disqualify the
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
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members who are already in the membership roll. In all the writ
petitions, the grievance expressed by the respective petitioners is
about the artificial exclusion of substantial members from
participating in the election or contesting the election by the
Advocate Commissioner. The second batch of writ petitions were
also allowed by the learned Single Judge after holding that the
persons whose names found place in the voters' list circulated
earlier on 17.11.2022 cannot be prevented from contesting the
election in accordance with the bye-laws of the Society.
19. It is to be noted that the election was scheduled to be
held on 25.12.2022. In the first batch of writ petitions, several
persons expressed their grievance that they were disqualified.
Thereafter, the first batch of writ petitions were allowed in favour
of the writ petitioners with a specific observation that the decision
of the Executive Committee disqualifying several members after
the expiry of their tenure is a nullity in law. However, by order
dated 08.12.2022, a Division Bench of this Court while hearing
the writ appeals as against the first batch of writ petitions, has
observed that those who paid Mahamai on or before 15.06.2022
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alone have to be considered by the Advocate Commissioner. This
order is not on the basis of any decision or any issue raised or
answered by this Court. Moreover, the said observation is
subject to further order that may be passed in the appeals later.
Since this Court finds that rejection of nomination of 46
candidates belonging to one group is illegal, erroneous and
biased, the whole election itself is illegal and void. Therefore, this
Court finds no reason to differ from the view expressed by the
learned Single Judge in allowing the writ petitions. Therefore, the
election conducted by the Advocate Commissioner is held as
invalid.
20. Considering the admitted facts and circumstances of
the case, this Court is inclined to issue following directions:-
(i) The same Advocate Commissioner is directed to hold
fresh election for the period of three years from the date of
assuming office.
(ii) The Advocate Commissioner is directed to include the
names of all the petitioners in the writ petitions which were
allowed by the learned Single Judge on 20.07.2022 as well as on
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20.12.2022.
(iii) The Advocate Commissioner is directed to prepare the
list of eligible members as per the list which was obtained by him
earlier and circulated on 17.11.2022 as indicated by the learned
Single Judge in the order dated 20.12.2022.
(iv) The members who have not paid Subscription /
Thalaikattu Vari / Mahamai, shall pay the same within a period
of four weeks from the date of receipt of a copy of this order
directly to the Advocate Commissioner along with a demand draft
for the sum.
(v) The Advocate Commissioner shall thereafter publish the
list of eligible voters as well as the persons who are eligible to
contest as per the bye-laws giving period of two weeks time for
filing objections. After considering the objections, final list of
eligible voters as well as the list of members eligible to contest
shall be published.
(vi) The Advocate Commissioner shall thereafter publish
election notification specifying the date of election in any leading
newspaper having wide circulation in the locality.
(vii)The scrutiny of nominations shall be after due
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intimation to the contestants. Any one of the authorised
representatives or the contesting candidates can be permitted by
the Advocate Commissioner at the time of scrutiny of
nominations. The persons whose nominations are rejected,
should be informed by individual communications stating the
reasons for rejection of the nominations. A fair procedure shall be
followed by the Commissioner in the whole process.
(viii) The Advocate Commissioner is directed to adhere to the
rules and bye-laws and ensure free and fair election keeping in
mind the real object behind Section 15 of the Societies
Registration Act.
(ix) The appellant Society is directed to pay a sum of Rs.
5,00,000/- (Rupees Five Lakhs only) by way of additional
remuneration to the Advocate Commissioner. It is open to the
Advocate Commissioner to seek additional remuneration
depending upon the time taken by him to complete the process of
election from the beginning to end.
(x) After declaration of results by the Advocate
Commissioner, he shall file a report before this Court.
(xi) Considering the fact that the elected officers are going to
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administer the educational institutions of the Society to serve the
community as well the public, any serious irregularity in the
conduct of election or interference by individual member will be
viewed seriously by this Court even to initiate appropriate
proceedings for criminal contempt.
21. All the Writ Appeals are disposed of with the above
directions. No costs. Connected miscellaneous petitions are
closed.
[SSSRJ] [DBCJ]
03.11.2023
Index : Yes / No
Neutral Citation : Yes / No
bala
To
The District Registrar,
The State of Tamilnadu,
Palayamkottai,
Tirunelveli District.
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
bala
PRE-DELIVERY COMMON JUDGMENT MADE IN
W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521
and 1013 of 2022
DATED : 03.11.2023
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