BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.04.2014 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD)No.12133 of 2013 and M.P.(MD).Nos.1 & 2 of 2013 K.Muthukumara Pillai ..Petitioner versus 1.The Inspector General of Registration, Chennai - 600 028.
2.The District Collector, Kanyakumari District, at Nagercoil, Kanyakumari District.
3.The Director of Collegiate Education, Chennai - 600 006.
4.The Joint Director of Collegiate Education, Tirunelveli- 627 007.
5.Lekshmipuram College Society, Lekshmipuram, Kanyakumari District -629 802, rep.
by its President.
6.V.Lekshmannan Pillai 7.C.Subramanian 8.M.Shanmugam ..Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the entire records relating to the proceedings in No.10618/12/13, dated 28.06.2013 on the file of the fiRs.respondent, confirming the proceedings No.6341/A2/2009, dated 30.04.2013 on the file of the 2nd respondent and the consequential order issued by the third respondent in proceedings Moo.Mu.No.18815/F2/2013, dated 10.05.2013, based on the order of the 2nd respondent and quash the same and direct the respondents 1 and 2 to accept and file the Form VII, dated 27.08.2012, submitted by the petitioner on 27.08.2012 for the 5th respondent- society for the triennium, 2012-2015 and the respondents 3 and 4 to recognize the petitioner as the Secretary of the Lekshmipuram College of Arts and Science, Lekshmipuram, Kanyakumari District.
!For Petitioner : Mr.K.N.Thambi ^For respondents : Mr.K.P.Krishnadass, 1 to 4 Government Advocate For respondents : Mr.P.Subramanian 5 & 6 For 7th respondent : Mr.F.X.Eugene :ORDER
This writ petition has been filed by the petitioner for a Writ of Certiorarified Mandamus to call for the records relating to the fiRs.respondent in proceedings No.10618/12/13, dated 28.06.2013, confirming the order passed by the 2nd respondent in proceedings No.6341/A2/2009, dated 30.04.2013 and the consequential order passed by the 3rd respondent in Moo.Mu.No.18815/F2/2013, dated 10.05.2013 based on the order of the second respondent and quash the same and to direct the respondents 1 and 2 to accept the Form VII, dated 27.08.2012, submitted by the petitioner for the 5th respondent society for the triennium 2012-2015 and to further direct the respondents 3 and 4 to recognize the petitioner as the Secretary of the Lekshmipuram College of Arts and Science, Lekshmipuram, Kanyakumari District.
2.The brief facts which are necessary to decide the issue involved in the present writ petition are as follows; (a) The 5th respondent society viz., Lekshmipuram College Society, is a registered society under the Tamil Nadu Societies Registration Act.
The 5th respondent society is running a college by name Lekshmipuram College of Arts and Science, Lekshmipuram, Kanyakumari District and the said college is a Government Aided cum Self-finance college.
The election to the Board of Directors and other office bearers of the society would be held for each triennium.
For the triennium 2009-2012, the petitioner was the president of the society and the Secretary of the College.
When the petitioner filed Form VII, as prescribed in the Tamil Nadu Societies Registration Rules, 1978, containing the office- bearers of the society for the triennium 2009-2012, before the 2nd respondent, one K.Ramadhas submitted similar Form VII before the 2nd respondent for the same society for the said triennium.
After enquiry, the 2nd respondent issued his order in Proceedings No.6341/A2/09, dated 06.11.2009, informing that the form VII submitted by the petitioner has been accepted.
Aggrieved over the same, the said Ramadhas filed W.P.No.26385 of 2009 before this Court as against the petitioner, the Secretary of the Society Mr.K.Ramesh and otheRs.(b)While so, the election to the Board of Directors and Office bearers of the society for the triennium 2012-2015 were duly conducted with strict adherence to the provisions of law and the bye-laws of the society.
Thereafter, the election and assumption of office by the new office bearers of the society were duly intimated to the 2nd respondent by way of Form VII on 27.08.2012 and the necessary fee of Rs.100/- for filling the same was paid under receipt dated 27.08.2012.
Since the society was in need of certified copies of the said Form VII for the triennium 2012-2015, for the purpose of running its college by getting grant-in-aid from the Government, the petitioner approached the 2nd respondent for the issuance of certified copy of Form VII for the society, but the 2nd respondent did not issue the same.
Therefore, the society filed a writ petition in W.P.(MD).No.13812 of 2012 before this Court against the 2nd respondent for a writ of Mandamus directing him to issue five certified copies of Form VII, dated 27.08.2012, submitted by the society within a stipulated time.
(c)In the said writ petition, the 6th respondent herein impleading himself claimed that he had also submitted a Form VII for the society for 2012-2015, showing the 7th respondent herein as its Secretary.
By order dated 07.12.2013, this Court directed the 2nd respondent to conclude the enquiry already initiated by him in the matter, as indicated in his communication dated 12.12.2012, as expeditiously as possible on or before 30.04.2013.
Thereafter, the 2nd respondent by his proceedings No.6341/A2/2009, dated 30.04.2013, accepted Form VII submitted by the committee headed by the 6th respondent and rejected Form VII submitted by the committee headed by the petitioner.
Consequently, the 3rd respondent issued order in his proceedings in Moo.Mu.No.18815/F2/2013, dated 10.05.2013, recognizing the 7th respondent as the Secretary of the College.
Aggrieved over the same, the petitioner filed W.P.(MD).No.8075 of 2013 before this Court, but subsequently he withdrew the same, since the 1st respondent initiated enquiry against the order passed by the 2nd respondent, dated 30.04.2013.
But, by proceedings No.10618/12/13, dated 28.06.2013, the 1st respondent refused to interfere with the order of the 2nd respondent and thereby confirmed the form VII filed by the 6th respondent.
Aggrieved over the same, the present writ petition has been filed for the relief stated supra.
3.Along with the writ petition, the petitioner herein filed M.P.(MD).No.1 of 2013 for interim stay of the operation of the impugned proceedings and M.P.(MD).No.2 of 2013 for interim injunction restraining the respondents 5 to 7 from making any appointment to the 5th respondent society and restraining the respondents 3 and 4 from approving any appointment to the same pending disposal of the writ petition.
4.When the writ petition came up for admission on 26.07.2013, this Court has granted an interim order to the effect that ".any action taken by the respondents will be subject to the result of the writ petition".Thereafter, when the matter was taken up on 12.02.2014, it was brought to the notice of the Court that the publication of notification has already been made.
Therefore, this Court, by giving liberty to the respondents 5 to 7 to proceed with the selection process, directed them not to appoint anybody until 26.02.2014 and thereafter, the said interim order was extended periodically.
5.The 2nd respondent has filed a counter stating that presently the committee headed by the 6th respondent herein is running the society without any complaints.
The acceptance of Form VII is only a ministerial act performed by the 2nd respondent and the same cannot be challenged under the writ petition.
The remedy for the petitioner lies only before the Civil Court.
Even for the triennium 2009-2012, the petitioner has produced bogus and fraudulently created documents.
For the triennium 2012-2015 also, the 6th respondent and his team were duly elected by the General Body of the society on 23.07.2012 by observing due procedure as contemplated in the byelaws.
Thus, he sought for a dismissal of the writ petition.
6.The respondents 5 to 7 filed their counter stating that the 5th respondent society is having its registered office as per the certificate of registration and byelaws.
It is not situated at Lakshmipuram as described in the cause title of the 5th respondent and only in order to confuse the legal status of the society and in order to show as if the 5th respondent society is having its office in that place, the petitioner has showed that address.
Further the prayer made in the writ petition itself is not maintainable as per settled law.
Presently the 7th respondent is acting as a Secretary.
While so, the petitioner made a public notice in a local daily stating that the people need not contact the respondents including the 7th respondent with respect to college affairs and because of the said advertisement so many hurdles were caused to the regular functioning of the college.
Thus, he prays for dismissal of the writ petition.
7.It is the main submission of the learned counsel for the petitioner that the 7th respondent herein is the Joint Secretary of the Kanyakumari District Advocates' Branch of a political party and he addressed a letter dated 15.10.2012 in the letter Head of one of the Political parties to one of the Ministers for State requesting him to instruct the 2nd respondent to accept the Form VII submitted by the 6th respondent and thereafter, the said letter was forwarded to the 2nd respondent.
In this regard, the learned counsel for the petitioner has also invited the attention of this Court to the said letters obtained by him under the Right to Information Act and submitted that only based on the said letter, the second respondent had accepted the Form VII of the 6th respondent and therefore, the impugned orders are tainted with mala fide and bias.
8.The next fold of submission of the learned counsel for the petitioner is that the 6th respondent group issued notice dated 07.07.2012 stating that a meeting of the Board of Directors of the Society would be held on 22.07.2012.
The 2nd agenda for the said meeting was with regard to conduct of election for 2012- 2015.
But, in the alleged Form VII submitted by the 6th respondent it has been stated as if the election was held on 23.07.2012 i.e., next day to the date of meeting of the Board of Directors held on 22.07.2012 and the election process cannot be done in one day as there are various procedures to be followed as per byelaws.
Thus, the learned counsel for the petitioner submitted that the respondents 6 to 8 without facing election by creating false documents filed the Form VII and the same ought to have been rejected by the 2nd respondent.
Further the learned counsel for the petitioner by inviting the attention of this Court to the nomination forms submitted by the group headed by the 6th respondent contended that in none of the nomination forMs.the name of the seconders was not mentioned and therefore, the said nomination forms are not valid as per byelaws of the society.
Thus, the learned counsel for the petitioner submitted that the impugned orders passed by the fiRs.respondent, confirming the order of the 2nd respondents without considering all these aspects proves the mala fides and arbitrariness and therefore, the writ petition is maintainable.
In support of his contention, the learned counsel for the petitioner relied upon the following judgments: (a)(1995) 5 SCCC302(Anirudhsinhji Karansinhji Jadeja and another versus State of Gujarat) (b)(2010) 13 SCC427(Oryx Fisheries Private Limited versus Union of India and otheRs.(c)(1993) 4 SCC10(Rattan Lal Sharma versus Managing Committee, Dr.Hariram Co.education HSS and otheRs.(d)(2014) 2 SCC401(J.Jayalalithaa and others versus State of Karnataka and otheRs.9.The learned counsel for the respondents submitted that it is incorrect to state that the impugned order is illegal, arbitrary and mala fide.
The fifth respondent herein and his team of office bearers have been duly elected by the General Body of the society on 23.07.2012 and the 6th respondent was elected as President of the society and 7th respondent was elected as Secretary of the society, upon serving notice to 241 members of the society, including 16 'B' class membeRs.as per the list of members of the society as on 2007-2008 and the election was duly conducted and the Form VII was also filed before the 2nd respondent herein on 26.07.2012 itself, intimating the election of 40 Directors and also the subsequent election of the Management Committee, among the 40 DirectORS.for the due and proper administration of the College.
Further the learned counsel for the respondents submitted that the petitioner herein produced bogus and fraudulently created documents for the triennium 2009-2012 and hence, a suit came to be filed in O.S.No.111 of 2009 before the District Munsif Court, Eraniel and a criminal case was also registered against the petitioner and one K.Ramesh in Crime No.84 of 2010 under Sections 420, 468 & 471 IPC and after investigation the same was taken on file in C.C.No.30 of 2012 by the learned Judicial Magistrate Court No.I, Nagercoil and the same is pending trial.
In fact, the said K.Ramesh was arrested and enlarged on bail and the petitioner has obtained anticipatory bail.
Further, on enquiry the second respondent found that the petitioner has sent notice to 289 membeRs.whereas as per the approved membership for the year 2007-2008, there are only 241 members in the 5th respondent society.
Thus, the second respondent found that Form VII filed by the petitioner is not proper and rejected the same.
10.The learned Additional Government Pleader submitted that it is incorrect to state that on the basis of the letter forwarded by the Minister, the impugned orders were issued and such submission made by the learned counsel for the petitioner is mere surmise and conjuncture and there is absolutely no material to show that the impugned order was passed arbitrarily.
There is absolutely no mala fide or arbitrariness on the part of the respondents.
11.I have carefully heard the rival submissions made on both sides and perused the materials available on record.
12.While, according to the learned counsel for the petitioner, the act of the second respondent in passing the impugned order and the act of the fiRs.respondent in confirming the said order is totally arbitrary and tainted with mala fide, according to the learned counsel for the respondents, the impugned order was passed by the second respondent on being prima facie satisfied with the form VII filed by the 6th respondent in the enquiry conducted by him.
Before going into the claims and rival claims made by the parties, this Court is inclined to decide the maintainability of the writ petition.
13.At this juncture, this Court is of the view that it would be appropriate to look into a Full Bench judgment of this Court reported in 2005(2) CTC161(C.M.S.Evangelicacl Suvi David Memorial Higher Secondary School versus The District Registrar, Cheranmahadevi).wherein the Full Bench of this Court in paragraph No.18 has held as follows; ".18.The power of the Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction.
The said power cannot be construed as the power of appeal.
Under Section 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent the society based upon the question of fact.
A plaint reading of Section 36 shows that the Registrar could look only the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No.VII in order to effect change in the register.
The power of the Registrar to call for information and explanation under Section 34 does not contemplate any power to examine witnesses or to allow opportunity for cross examination of witnesses.
The power in our view is incidental and it is only for the purpose of maintaining correct records.
As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the inquiry is limited only for the purpose of making entries in the register.
However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the writ jurisdiction.
14.From the reading of the above judgment, it is clear that the acceptance of Form VII by the Registrar is only a ministerial act and the power of the Registrar to conduct enquiry is only for a limited purpose to find out whether the constitution of the members are valid and such enquiry is limited only for the purpose of making entries in the register.
But, in the same judgment, it is stated that the exercise of the power by the District Registrar must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the writ jurisdiction.
Relying on the same, the learned counsel for the petitioner submitted that this writ petition is maintainable.
15.It is also relevant to refer to the judgment reported in 2008 (1) MLJ1308(R.Muralidharan and others versus District Registrar).wherein at paragraph Nos.32 and 33, it has been held as follows; 32.From a bare reading of sub-section(1) of Section 34, it is clear that the only obligation cast upon the Registrar, upon receipt of any document or Form filed under the Act, is to call for any further information or explanation in respect of any matter, to which, such document relates to.
Sub-section (3) makes it still more clear by prescribing that the Registrar may annex such information or explanation to the original document filed with him.
Therefore, if Form No.VII is filed with the Registrar, as required by Section 15(1) of the Act read with Rule 17(2) of the Rules, all that the Registrar can do is only to call for further information or explanation under Section 34(1) and keep the information or explanation received by him as an annexure to the original document.
This is nothing but a mere ministerial function and hence, it cannot be challenged by way of a writ petition under Article 226 of the Constitution of India.
33.In any event, 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.
This is why the Full Bench of this Court, in C.M.S.Evangelical Suvi David Memorial Higher Secondary School Committee versus District Registrar, Cheranmahadevi and four others (2005) 2 MLJ335: 2005 (2) LW550held that the power under Section 34 is only incidental and that it was only for the purpose of maintaining correct records.
16.From the reading of the above judgment, it is clear that the filing of Form No.VII is only a consequential action to an election purportedly conducted and 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 and the aggrieved person should only go before a Civil Court challenging the election and the person who is aggrieved by an election, cannot challenge the acceptance or rejection of Form No.VII by the Registrar as a short cut to invalidate the election.
17.The dictum laid down by the Division Bench of this Court is squarely applicable to the facts of this case, as in this case also the petitioner aggrieved by the election stated to be held on 23.07.2012 challenged the acceptance and rejection of Form No.VII by the Registrar as a short cut to invalidate the said election.
18.However, according to the petitioner, due to political pressure, the fraudulent documents submitted by the 6th respondent group was accepted and therefore, the impugned orders are tainted with mala fide and arbitrariness, whereas, according to the official respondents, the petitioner submitted fraudulent documents and therefore, his Form VII was rejected and therefore, the impugned orders are valid.
Though the learned counsel for the petitioner, during the couRs.of his argument by relying on certain instances persuaded this Court to accept his submission that the impugned orders passed by the official respondents are tainted with arbitrariness and mala fide, in my considered opinion, unless the arbitrariness is apparent in passing the impugned orders or if there is any tangible evidence to straightaway come to a conclusion that the impugned orders are tainted with mala fide, this Court cannot quash the orders impugned herein, because this Court cannot conduct any roving enquiry in the writ petition.
In the instant case, in my considered opinion, the submission made by the learned counsel for the petitioner by pointing out various instances has to be established only through oral and documentary evidence by initiating appropriate legal proceedings.
Hence, this Court is of the view that this writ petition is not maintainable.
19.In view of the above, this writ petition is liable to be dismissed and accordingly dismissed.
No costs.
Consequently, connected miscellaneous petitions are also dismissed.
gcg To 1.The Inspector General of Registration, Chennai - 600 028.
2.The District Collector, Kanyakumari District, at Nagercoil, Kanyakumari District.
3.The Director of Collegiate Education, Chennai - 600 006.
4.The Joint Director of Collegiate Education, Tirunelveli- 627 007.