BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED:
22. 01.2014 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)No.10722 of 2013 Jeddiya Sathya alias Sathya .. Petitioner vs 01.The Superintendent of Police Tuticorin District, Tuticorin 02. The Deputy Superintendent of Police Sathankulam, Tuticorin District 03. The Inspector of Police Nazareth Police Station Nazareth Tiruchendur Taluk Tuticorin District 04. The Pastorate Chairman Nazareth Pastorate Dasan Street Nazareth, Tiruchendur Taluk Tuticorin District 05. The Diocese Treasurer Tuticorin Nazareth Diocese Diocese Office Caldwell Higher Secondary School Tuticorin 06. W.Devadoss 07. J.Simson 08. D.Selvasingh 09. C.Augustin Paulraj 10. R.Silakkiamani 11. P.Vijaya 12. A.Kumar 13. S.Hendry Jones (R6 to R13 impleaded vide order of Court dated 12.7.2013 in MP(MD) No.4 of 2013) 14. S.D.K.Rajan 15. D.Mohan Raj Arumainayagam 16. Rev.Devaraj Gnanasing 17. Rev.S.G.Lourdhuraj Jeyasingh (R14 to R17 impleaded vide order of Court dated 22.8.2013 in MP(MD) No.8 of 2013) 18. K.Livingston Manickraj 19. E.Vijayaranan 20. J.Santhakumari 21. C.Edward Johnson Paul 22. D.Jueudoss Samuel 23. Raja Sekar 24. S.Premkumar Rajasingh 25. E.Sekaran Samraj 26. D.Iyyadurai 27. A.Peter (R18 to R27 impleaded vide order of Court dated 22.8.2013 in M.P.(MD)No.9 of 2013) .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, forbearing the respondents 2 to 5 from conducting the other stages of election for the Tuticorin-Nazareth pastorate on 6.7.2013 or any other date in view of the pendency of the civil suit in O.S.No.177 of 2013 on the file of the Principal Sub Court, Tuticorin and also directing the 1st respondent to take action against the respondents 2 and 3 for flouting the order of civil Court by providing police protection to respondents 4 and 5 in conducting the election on 15.6.2013. !For Petitioner ... Mr.G.R.Swaminathan for Mr.T.Antony Arulraj ^For Respondents ... Mr.K.Guru Additional Government Pleader for R1 to R3 Mr.R.Shankar Ganesh for R4 Mr.G.Praburajadurai for R5 Mr.N.Dilip Kumar for R6 to R13 Mr.S.Meenakshisundaram for R14 to R17 Mr.AR.L.Sundaresan Senior Counsel for Mr.J.Barathan for R18 to R27 :
ORDERA peculiar fact has brought back this writ petition for taking a re-look at the grievance directed to be redressed by the Hon'ble Division Bench of this Court in its order dated 6.8.2013 passed in W.A.(MD) Nos.835 to 839 and 848 to 850 of 2013 filed by the respondents 6 to 11 and 13 herein.
2. The facts in brief leading to the dispute needs a quick reference as follows. The writ petitioner-Mr.Jeddiya Sathya alias Sathya has approached this Court by filing the present writ petition seeking a writ of mandamus, to forbear the Deputy Superintendent of Police, Tuticorin District, the Inspector of Police, Nazareth Police Station, Tuticorin District, the Pastorate Chairman, Nazareth Pastorate, Tiruchendur Taluk and the Diocese Treasurer, Tuticorin Nazareth Diocese, Diocese Office, Caldwell Higher Secondary School, Tuticorin from conducting the other stages of election for the Tuticorin-Nazareth Pastorate on 6.7.2013 in view of the pendency of the civil suit in O.S.No.177 of 2013 on the file of the Principal Sub Court, Tuticorin with a further prayer to direct the Superintendent of Police, Tuticorin District to take action against the respondents 2 and 3 for flouting the order of civil Court by providing police protection to the respondents 4 and 5 in conducting the election on 15.6.2013. The further grievance of the writ petitioner is that the Pastorate Chairman, Nazareth Pastorate, Tiruchendur Taluk, Tuticorin District and the Diocese Treasurer, Tuticorin Nazareth Diocese, Diocese Office, Caldwell Higher Secondary School, Tuticorin had conducted the pastorate election on 2.6.2013 for the Tuticorin-Nazareth Diocese violating all the election rules and regulations contained in the bye-laws. Even disqualified persons contested the election and they were also declared as elected. His further grievance shows that the voters list contained the names of even dead persons. When similar other serious irregularities were found, the writ petitioner along with others made a complaint to the respondents 4 and 5, namely, the Pastorate Chairman, Nazareth Pastorate and the Diocese Treasurer, Tuticorin Nazareth Diocese to rectify the defects and thereafter to conduct a fresh election.
3. As the respondents 4 and 5 did not consider the genuine request, the writ petitioner and two other persons filed a suit in O.S.No.177 of 2013 on the file of the Principal Subordinate Court, Tuticorin and in the pending suit, I.A.No.468 of 2013 was filed seeking an order of ad-interim injunction. Considering the prayer, the learned trial Judge granted an order of ad-interim injunction till 28.6.2013. Although the said order of injunction was served upon the respondents by the Amin of the lower Court, the respondents 4 and 5 refused to receive the summons, hence, the Court Amin pasted the order of the trial Court on the house of the Diocese Treasurer, the fifth respondent herein and thereupon filed a report to the Court. Subsequently, a written complaint was also submitted to the police. Again no action was taken, as a result, law and order problem prevailed in the locality as on 15.6.2013. Since the order of injunction passed by the trial Court in I.A.No.468 of 2013 in O.S.No.177 of 2013, even after being served upon the respondents 4 and 5, was violated and the respondents 2 and 3, the Deputy Superintendent of Police, Sathankulam and the Inspector of Police, Nazareth Police Station, colluding with the Pastorate Chairman and the Diocese Treasurer, the respondents 4 and 5, failed to prevent the illegal election, on the basis of the order of injunction granted in I.A.No.468 of 2013 dated 14.6.2013, the writ petitioner was constrained to approach this Court invoking the extraordinary remedy under Article 226 of the Constitution of India. In view of the aforementioned circumstances, pending the writ petition, the writ petitioner sought for an interim injunction restraining the respondents 2 to 5 from conducting the other stages of election for the Tuticorin-Nazareth Pastorate on 6.7.2013, since the ad-interim injunction obtained by the petitioner in I.A.No.468 of 2013 in O.S.No.177 of 2013 granted by the trial Court was vilolated.
4. This Court, by order dated 4.7.2013, after being apprised of the situation that the Court Amin had served the order of injunction and, even after service of the interim order dated 14.6.2013, the respondents refused to receive the said order and again proceeded further to hold the election, granted an order of interim injunction restraining the respondents 4 and 5 from conducting any election in respect of Nazareth Pastorate. After the grant of the above order of injunction, the fourth respondent-Pastorate Chairman filed M.P.(MD) No.2 of 2013 to vacate the interim order granted by this Court on 4.7.2013. Again the very same respondent also filed M.P.(MD) No.3 of 2013 to direct the fifth respondent- Diocese Treasurer to maintain status quo ante to 6.7.2013 and to conduct the election scheduled on 6.7.2013 on a further date as per the Church rules. Again the impleaded respondents 6 to 13/writ appellants filed M.P.(MD) No.5 of 2013 to pass an order of injunction restraining the writ petitioner and the respondents 1 to 5 from conducting any further election for Tuticorin-Nazareth Diocesan Council scheduled on 7.8.2013 and 8.8.2013.
5. Pointing out to the order of interim injunction granted by the trial Court in I.A.No.468 of 2013 in O.S.No.177 of 2013 dated 14.6.2013, the learned counsel for the petitioner submitted that despite the order of the trial Court, when the private respondents had flouted the order of injunction, this Court, being the superior Court, was constrained to pass an order on 4.7.2013 granting another order of interim injunction restraining the respondents 4 and 5 from conducting any election to the Nazareth Pastorate. Again complaining that when the writ petitioner had remitted the membership fees, his name was periodically omitted in the voters list dated 7.4.2013, as a result, his further representation dated 22.4.2013 was also made to the CSI Diocese, but no action was taken. In view of the above, the writ petitioner filed a civil suit along with the interlocutory application. In spite of the grant of interim order as mentioned above, the respondents 4 and 5 proceeded to conduct the election in collusion with the police officers. Therefore, what was granted by the trial Court on 14.6.2013 by way of interim injunction was again repeated by this Court on 4.7.2013, hence, he sought for confirmation of the said order.
6. The learned counsel appearing for the fourth respondent, opposing the above contentions, replied before this Court that the first stage of election was conducted on 2.6.2013 and 8.6.2013, the second stage of election was conducted on 15.6.2013, the third stage of election was scheduled to be held on 6.7.2013 and the fourth stage was scheduled to be held on 7.8.2013 and 8.8.2013 respectively, whereas the writ petitioner was ex-communicated from the membership of Canon Arthur Margoshias Council of Nazareth Pastorate. Moreover, the name of the writ petitioner was not even found included in the voters list, as he had not paid the Church dues of Rs.21,000/- and there were also arrears of rent. Besides, he was also evicted from the premises during February, 2012 by an order passed in E.P.No.57 of 2010 on the file of the District Munsif, Srivaikundam. Only due to this reason, the name of the writ petitioner was not included in the voters list for diocesan election as per Chapter 10-B Rule 3(ii), which states that failure to pay the Church dues, lease dues or rent of mission properties or of dues to Diocesan Institute before 31st March of every year would result in disqualification. 'Church dues' is one among the disqualification against voting right commonly applicable to all the persons. That apart, when the voters list was published in Nazareth Pastorate on 7.4.2013, the writ petitioner filed an appeal before the Election Tribunal aggrieved by the non-inclusion of his name in the voters list and the Election Tribunal also rejected his appeal and the results of the inclusion of the names of the voters were also communicated to all the pastorates on 8.5.2013. Suppressing all these things, he filed a suit in O.S.No.177 of 2013 on the file of the Principal Subordinate Court, Tuticorin seeking for a declaration that the elections held for the Nazareth Pastorate was null and void. Further, when the suit was filed one day prior to the second stage of election, namely, 14.6.2013, the suit itself was not maintainable, therefore, he had no right to seek for any declaration. In the meanwhile, the first stage of election was held on 2.6.2013 and 8.6.2013 respectively. However, again in the election scheduled to be held on 15.6.2013, the voters/elected representatives were 86 persons. Only these persons alone have the voting rights in the second stage of election scheduled to be held on 15.6.2013. Out of these 86 voters, two of them were nominated representatives. Further, as per Church Rule 86, voters shall assemble inside the Church at 7.00 A.M., and thereafter the door would be closed. The ordinary members of the Church cannot open the door, since the door would be kept closed till the election was over and as such, after the completion of election, the door was opened at 11.00 A.M. Only thereafter, the Pastorate Chairman returned to his house at 1.00 P.M., and at that time he found the order of injunction pasted on the compound wall of his house. Adding further, it was stated that when his house was situated 200 meters away from the Church, there was no occasion to know about the order of injunction. Therefore, it was the claim of the fourth respondent that he had not refused to receive the copy of injunction order. Further, it was pleaded that the respondents 4 and 5 are not statutory authorities or instrumentality of the State, therefore, the writ petition would not lie under Article 226 of the Constitution of India. Moreover, when the writ petitioner had already approached the civil Court for remedy, it is not open to him to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India.
7. It is only at this juncture more emphasis and focus were placed before this Court on the maintainability of the writ petition. The learned counsel appearing for the impleaded respondents 6 to 13/writ appellants contended that there are 17 pastorates in their council named Arthur Margoschis Church Council under the Tuticorin Nazareth Diocese and when elections are held at four stages for Tuticorin Nazareth Diocese, members of the Diocesan Council and pastorate committee are elected in the first stage of election. The second stage of election is for pastorate committee, namely, office bearers of various sub committees like finance sub-committee, elementary school sub-committee, sub- committee for mission and evangelism. Even representatives to the Church council from the pastorate committee and pastorate representative to the institutional governing board would fall in the second stage of election. It was also stated that the third stage is relating to conduct of elections for the Secretary of the Church council, representatives for various sub-committees like finance sub-committee, elementary school sub-committee, sub-committee for mission and evangelism, four diocesan council executive members etc. The fourth and the last stage of election is held in the newly formed Diocesan council and the elected members will take oath and then elections for the office bearers of the diocese will be held for the posts of Vice Chairman, clergical Secretary and lay Secretary. Only thereafter, elections will be held for three general pool executives, namely, lone clergy executive and nomination for standing committee and several other high posts. He pleaded that in all the pastorates, elections are independently held and the candidates selected shall move forward to higher stages of diocesan council to enable them to participate and occupy the offices of various institutions, establishments and other committees established and run by Church of South India, Tuticorin Nazareth Diocese. Adding further, learned counsel for the impleaded respondents submitted that when hundreds of educational institutions, namely, elementary, middle schools, higher secondary schools, special schools, arts and science colleges, nursing colleges, engineering colleges, polytechnic colleges, teacher training institutes, industrial training institutes, B.Ed. colleges and hospitals are allowed to be managed by the elected representatives, the impleaded respondents 6 to 13 have been elected unanimously under different categories of diocesan worker, yet, they were systematically denied their valuable right to contest and get elected in the next stage to occupy and manage the affairs of the institutions, with the result, as the elections are held once in four years, if the re-elections are not ordered, great prejudice would be caused to them. Since the impleaded respondents were systematically deprived of contesting the elections by the high drama intelligently organized and though the interim injunction granted by this Court on 4.7.2013 was restricted only to Nazareth Pastorate and the members of Nazareth sabha, even the members of other sabhas were also prevented from participating and voting in the Church council. Incidentally, the impleaded respondents were also restrained from participating in the election to Canon Arthur Margoschis Church Council, Nazareth. Hence, a prayer was made to restrain the respondents 1 to 5 from conducting any further election for the Tuticorin- Nazareth Diocesan Council scheduled to be held on 7.8.2013 and 8.8.2013 pending disposal of the writ petition and also prayed for a direction to the respondents 4 and 5 to conduct election to Canon Arthur Margoschis Church Council afresh in the light of the final orders to be passed in the writ petition.
8. After noting the respective contentions made by the parties, when the issue of maintainability of the writ petition was also pressed into service by the fourth respondent on the ground that no writ would lie against the respondents 4 and 5, my learned Brother, while considering the preliminary objection as to the maintainability of the writ petition, taking note of the status of the Pastorate Chairman, Nazareth Pastorate and the Diocese Treasurer, Tuticorin Nazareth Diocese that they would not fall under the instrumentality or agency of the State or statutory body of the State Government or Central Government, by order dated 31.7.2013, vacated the interim injunction and refused to exercise the extraordinary jurisdiction to interfere with the civil dispute, as it is to be decided on appreciation of evidence. Aggrieved by the said order, W.A.(MD) Nos.835 to 839 and 848 to 850 of 2013 were filed.
9. The main contention of the impleaded respondents/writ appellants was that by virtue of the writ petition, which is not even maintainable before this Court, as held by the learned Judge by his order dated 31.7.2013, an interim order of injunction restraining the respondents 4 and 5 from conducting any election to the Nazareth Pastorate was obtained, as a result, no further elections were held, in which the writ appellants had lost their valuable right of participating in the said elections, namely, Canon Arthur Margoschis Church Council. The further grievance of the writ appellants was that, but for the interim order of injunction obtained by the writ petitioner on 4.7.2013, which was subsequently vacated, they would have successfully participated in the election held on 6.7.2013. But unfortunately, they have been deprived of participating in the election scheduled on 7.8.2013 and 8.8.2013. Therefore, it was canvassed before the Hon'ble Division Bench that their right should be protected and the restitution should be ordered. Accepting their contention that hardship has been caused to the Nazareth Pastorate by not allowing the respondents 6 to 13/writ appellants to become elected representatives to administer various educational institutions, the Hon'ble Division Bench was of the view that the right and interest of the impleaded respondents should be protected. Till then the results of the elections held on 7.8.2013 and 8.8.2013 were directed to be not published until further orders, till the writ petition was finally decided.
10. The learned counsel appearing for the impleaded respondents 6 to 13 contended before this Court that when the 18 educational institutions are coming within the limits of Nazareth Pastorate, namely, elementary, middle schools, higher secondary schools, special schools, arts and science colleges, nursing colleges, engineering colleges, polytechnic colleges, teacher training institutes, industrial training institutes, B.Ed. colleges and hospitals, they are allowed to be managed by the elected representatives of the Diocesan council, unfortunately, by operation of the interim order granted by this Court on 4.7.2013, which was vacated on 31.7.2013, the entire Nazareth Pastorate was restrained from forming part of the administrative body incharge of the affairs of Tuticorin Nazareth diocese. By virtue of the interim order granted by this Court, when the impleaded respondents, who are also members of the Nazareth Pastorate, were restrained from participating in the election, they are unable to get elected to administer as elected members of the above mentioned educational institutions, hospitals, nursing colleges, old age homes, school for deaf. Moreover, unsuitable and totally ineligible persons were allowed to become elected representatives of various institutions which are more than 150 years old. This will give a huge blow to the entire pastorate. Therefore, he pleaded, the valuable rights of the respondents/writ appellants, having been wrongly deprived of by the order passed by this Court on the misrepresentation made by the writ petitioner before this Court in collusion with the respondents 1 to 5, in exercise of the inherent and plenary power conferred under Article 226 of the Constitution of India, this Court, to meet the ends of justice, should put back the parties in the same position as they had been placed immediately before the order was passed. Adding further, it was stated that it is the duty of the Court as a policy to set the wrong right and not allow the perpetuation of a wrong doing. Concluding his submissions, it was stated that when this Court, by vacating the interim order in its order dated 31.7.2013 on the ground that the writ petition was not maintainable, on appeal, the Hon'ble Division Bench, after appreciating the valuable rights of the parties in the writ petition, came to the clear conclusion that the rights of the writ appellants have been completely deprived of for no fault of them in the election, namely, Canon Arthur Margoschis Church Council, Nazareth held on 6.7.2013, 7.8.2013 and 8.8.2013, and to protect their interest and the right of all the appellants, results of the elections were directed not to be declared till the writ petition is decided, resultantly, the elections directed to be held on 7.8.2013 and 8.8.2013 by the Hon'ble Division Bench should be held invalid and re-election should be ordered, so that the rightful and lawful elected representatives would be able to contest in the election for Canon Arthur Margoschis Church Council, Nazareth in order to administer the affairs of the various educational institutions and hospitals mentioned above. Otherwise, if restitution is not granted, outsiders will be controlling these institutions, that will not be good to the entire pastorate.
11. Mr.AR.L.Sundaresan, learned senior counsel appearing for the impleaded respondents 18 to 27, supporting the submissions made by the learned counsel for the impleaded respondents 6 to 13/writ appellants, reiterated that grave prejudices are inflicted to the respondents 18 to 27, similar to the injury and prejudice caused to the respondents 6 to 13, by virtue of the order of interim injunction granted by this Court on 4.7.2013 restraining the Pastorate Chairman, Nazareth Pastorate and the Diocese Treasurer from conducting any election to the Nazareth Pastorate. Adding further, he argued that when this Court injuncted the respondents 4 and 5 from conducting the election, by misusing the strength of the order, the respondents 4 and 5 erroneously and illegally restrained the respondents from contesting to various posts in Canon Arthur Margoschis Church Council and for the Tuticorin Nazareth Diocese. Therefore, the rights and interests of the respondents 18 to 27 also should be protected and the results of the elections held on 7.8.2013 and 8.8.2013 should not be published and held invalid. Moreover, it is pleaded, it is an admitted case that the interim order of injunction granted by the trial Court on 14.6.2013 in I.A.No.468 of 2013 had been apparently flouted by the respondents 4 and 5 in collusion with the respondents 2 and 3 and finally wrong candidates were elected to manage the pastorate. When there is disobedience of its order, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of a wrong doing and in circumstances like this, to restore justice at any cost, this Court has been conferred with inherent powers. Therefore, this Court is bound to exercise its inherent power in the interest of justice by putting back the parties in the same position as they stood prior to the holding of election. In doing so, this Court, he pleaded, should not hesitate to interfere with the third parties rights, as the rule of law, ultimately, has to be restored. Placing heavy reliance on the Full Bench judgment of this Court in the case of Century Flour Mills Ltd., v. S.Suppiah and others, AIR1975Madras 270, he again prayed for an order on the basis of the Full Bench direction to put back the parties in the position as they stood immediately prior to the election. Concluding his submissions, the learned senior counsel contended that when the genuine grievance of the respondents 6 to 13 were brought to the notice of the Hon'ble Division Bench that they have been unfairly and fraudulently omitted by the fifth respondent-Diocese Treasurer from the voters list and they have been consequently prevented from exercising their voting right in the diocese election, specifically stating that when the order was passed by the Hon'ble Division Bench on 6.8.2013, the Commissioner Mr.M.Ajmal Khan was directed to be present at the Nazareth on 7.8.2013 and 8.8.2013 with a specific direction that the members who got elected on 6.7.2013 from Canon Arthur Margoschis Church Council should be permitted to vote in the election held on 7.8.2013 and 8.8.2013, but their votes should be collected in a separate sealed box and should be brought to the High Court, Madurai Bench to be in the custody of the Registrar, Madurai Bench until further orders to be passed in the writ petition. Therefore, he pleaded that after the publication of the eligible voters list in the said election at 7.00 A.M. on 7.8.2013 for Diocesan Council, the respondents 18 to 27 herein, who are also entitled to vote, as they had been nominated by the Bishop of Tuticorin Nazareth Diocese on 2.4.2013, were again prevented by the fifth respondent from entering into the venue of election, namely, St.John's Cathedral Church, Nazareth. Thereafter, when all the respondents approached the advocate commissioner/retired District Judge Mr.Retnaraj and ventilated their grievance by submitting their written representation stating that all the respondents are entitled to vote, as they had been nominated by the Bishop of Tuticorin Nazareth Diocese on 2.4.2013, again the advocate commissioner refused to even receive their objections. The further appeal to the advocate commissioner Mr.Ajmal Khan appointed by this Court also evoked no response. The said attitude shows that the respondents 18 to 27 have been unfairly and fraudulently omitted by the fifth respondent from the voters list and consequently they have been prevented from exercising their voting right in the election to the Diocesan Council. The Hon'ble Division Bench also, in its order dated 6.8.2013, held that the writ appellants therein have been deprived of their valuable right for no fault of them in the Canon Arthur Margoschis Church Council, Nazareth. In view of that, he pleaded that the parties should be put back in the same position as they stood immediately prior to the election.
12. The learned counsel appearing for the fifth respondent-Diocese Treasurer, opposing the relief of restitution, sought for dismissal of the writ petition on the ground that when the writ petition filed before this Court has been found to be not maintainable and the civil suit filed in O.S.No.177 of 2013 on the file of the Principal Subordinate Court, Tuticorin is pending for consideration, this Court should not entertain the writ petition, since no writ will lie against the respondents 4 and 5. Moreover, they are neither statutory parties nor instrumentality of the State. Adding further, it was stated that conducting of election at various stages for the diocese of Nazareth or Pastorate, as the case may be, cannot be the subject matter of litigation under Article 226 of the Constitution of India. It was also his contention that the diocese is governed by an apex body known as Diocesan Council comprising of 375 members, which is divided into six Church councils and each Church council is comprised of various districts and each district has one or more number of Churches and various institutions are under its supervision. In every four years, election to these committees and councils would take place at various levels involving complex process. Continuing his argument, he stated that when the election would start at the district committee level, Church council level and would end up for the election to the executive committee and the office bearers at the Diocesan Council level, any dispute relating to the election cannot be decided by this Court, as the same should be left open to be decided by the competent election tribunal or to be canvassed in the pending suit in O.S.No.177 of 2013. Adding further, it was stated that when the grievance of the writ petitioner as well as the injunction order was only to the election to the Nazareth pastorate, the order passed at the admission stage by this Court on 4.7.2013 restraining the fourth and fifth respondents from conducting any election to the Nazareth pastorate, on being misled by the writ petitioner, have put the respondents 4 and 5 to great prejudice. Moreover, when the elections to the next level, namely, Church Council level as well as the Church council chairman were completed, the question of restitution of the rights of the impleaded respondents/writ appellants does not arise, for the reason that the prayer for restitution will further complicate the election process, which was already over and will further open the flood gates for so many litigations and the election process will never be completed. Therefore, opposing the said prayer, he further submitted that it is not a fit case for discretionary relief of restitution, since the grant of such prayer for restitution would create more hardships for the fifth respondent. In support of his submissions, he relied upon the judgment of the Hon'ble Apex Court in Atma Singh and others v. State of Punjab and others, (1981) 2 SCC657for the proposition that when once election is held, the elected representatives are entitled to run their full term.
13. It was also stated that when this Court held that the writ petition is not maintainable by a detailed order dated 31.7.2013 for the reason that the Nazareth Pastorate does not fall under Article 226 of the Constitution of India, the rights agitated before this Court cannot be exercised for enforcement of civil right and since all the affected parties are having an alternative remedy, it will be proper for them to approach only the election tribunal to go into the legality or otherwise of the conduct of the election. It was also contended that the elections held to the Church council level cannot be challenged in the present writ petition. In fact, when the elections were completed, the elected representatives should be allowed to perform their duties, as otherwise the elected representatives will be deprived of their valuable rights.
14. Heard the learned counsel for the parties. The C.S.I. Tuticorin- Nazareth Diocese, being the apex body administered by the Diocesan Council through its executive committee including Bishop; Diocese Treasurer, Clergymen on the regular cadre, comprises of six Church councils and they are as follows:- (i) Rev.G.U.Pope Church Council, Sawyerpuram (ii) Rev.John Thomas Church Council, Meignanapuram (iii) Canon Margoschis Church Council, Nazareth (iv) Rev.Caldwell Church Council, Tuticorin (v) Rev.Thavidu Sundaranar Church Council, Sathankulam (vi) Rev.Ragland Church Council, Kovilpatti The lis emanated only from the Canon Arthur Margoschis Church Council, Nazareth, which also consists of 17 pastorates. Among the 17 pastorates, the dispute has arisen only in respect of Nazareth Pastorate. Again the said Nazareth Pastorate comprises of seven Church sabhas and they are as follows: (i)Thirumaraiyur Sabha; (ii)Maninagar Sabha; (iii) Vagaunthankuppam Sabha; (iv)Nazareth Sabha; (v)Manikavasagapuram Sabha; (vi)Dhiraviyapuram Sabha; (vii)Thiruvalluvar Colony Sabha.
15. For better reference, it may be mentioned that the dispute raised by the writ petitioner concerns with the election held for the Nazareth Church Sabha. The four categories of voters are formed by the bye-laws of the Church sabha and they are (i) clergy; (ii) pastorate workers; (iii) diocesan workers and (iv) congregation representatives. When the elections are held basically in four stages, the first stage of election consists of two parts. In the first part, elections were held on 2.6.2013 for the church sabha for electing congregational representatives, namely, laymen to the pastorate committee and congregational representatives to the diocese council. In the second part, elections were held on 8.6.2013 for electing diocesan worker representative from their respective sub categories of schools, colleges, hospitals, etc. When the elections are held once in four years, as mentioned above, the candidates who get selected in the first stage of elections are allowed to contest or vote in the second stage of district committee election. Again the candidates who get selected in the district committee election are allowed to contest and vote in the church council election. It is at this juncture, when the respondents 4 and 5, namely, the Pastorate Chairman, Nazareth Pastorate and the Diocese Treasurer, Tuticorin- Nazareth Diocese conducted the pastorate election on 2.6.2013, the writ petitioner Mr.Jeddiya Sathya @ Sathya, alleging violation of all election rules and regulations enshrined in the church bye-laws, complained that the voters list contained the names of even dead persons and the disqualified persons were allowed to contest to get elected. That apart, it was alleged that there were serious irregularities. However, when a complaint was made to the respondents 4 and 5 to rectify the defects and thereafter to conduct fresh election, the respondents 4 and 5 refused to consider the complaint of the writ petitioner. Therefore, the petitioner and two other persons filed a civil suit in O.S.No.177 of 2013 on the file of the Principal Subordinate Court, Tuticorin and also moved an interlocutory application in I.A.No.468 of 2013 for grant of ad-interim injunction. The learned trial Judge, during the pendency of the civil suit in O.S.No.177 of 2013, on entertaining the interlocutory application in I.A.No.468 of 2013, granted an order of interim injunction till 28.6.2013. This Court could see that although the order of interim injunction granted by the learned trial Judge on 14.6.2013 restraining the respondents 4 and 5 from conducting the further election for Nazareth Pastorate till 28.6.2013 was served by the Court Amin on the Chief Officer, the same appears to have been ignored. Thereupon the Court Amin pasted the same on the compound wall of the residence of the fifth respondent. Thereafter, after the voters list was published in Nazareth Pastorate on 7.4.2013, the first stage of election was held on 2.6.2013 and 8.6.2013 respectively. Only in the second stage of election scheduled to be held on 15.6.2013, as per Church Rule 86, voters shall assemble inside the church at 7.00 A.M. on 15.6.2013 and thereafter the door would be closed and till the elections are over, the door would not be opened. In the meanwhile, the regular Holy Mass, opening prayer, attendance were conducted. Peculiarly, one day prior to the second stage of election, namely, on 14.6.2013, a suit was filed and an interim order of injunction was obtained and after obtaining the said order on 14.6.2013, subsequently, another order of interim injunction was obtained from this Court in this writ petition on 4.7.2013 by pleading that the interim order granted by the trial Court was flouted by the respondents 4 and 5. Moreover, when the said order of interim injunction is restricted only to Nazareth Pastorate and to the members of Nazareth Sabha, unfortunately, the respondents 4 and 5 taking strength of that order prevented even the other innocent voters like the impleaded parties/writ appellants, with the result, they are prevented from voting, contesting and controlling various institutions.
16. It is also important to bear in mind the allegation made by the respondents 4 and 5 against the writ petitioner, who had also filed a civil suit in O.S.No.177 of 2013, that he was an ineligible voter. But, unfortunately, when an order of interim injunction was granted on 14.6.2013 restraining the respondents 4 and 5 from conducting the election and when the said order was sought to be served upon the Chief Officer and the same was refused to be received, the Court Amin submitted a report stating that the respondents deliberately refused to receive the court notice and only on consideration of the said aspect in the writ petition, this Court, by order dated 4.7.2013, had passed another order of injunction restraining the respondents 4 and 5 from conducting any election to the Nazareth Pastorate. Therefore, it must be mentioned herein that when the learned civil Judge had granted an order of interim injunction in I.A.No.468 of 2013 on 14.6.2013, the respondents 4 and 5 were prevented from conducting the second stage of election scheduled on 15.6.2013. But, unfortunately, despite the interim order having been granted on 14.6.2013 in I.A.No.468 of 2013, the respondents 4 and 5, with impunity, proceeded to conduct the election on 15.6.2013. Therefore, this Court by looking at the state of affairs, wherein the order of interim injunction granted by the trial Court having been openly flouted, passed an order of interim injunction on 4.7.2013. Moreover, when the interim injunction granted by this Court was restricted only to Nazareth Pastorate and the members of Nazareth Sabha, unfortunately, the respondents 4 and 5 wrongly and deliberately prevented the members of other sabhas from participating and voting in the church council. In fact, when the writ petitioner, who according to the respondents 4 and 5, was ineligible to be included in the voters list, rightly or wrongly, obtained an order of interim injunction on 14.6.2013 from the trial Court in I.A.No.468 of 2013 in O.S.No.177 of 2013, as highlighted above, in the guise of implementing the order dated 4.7.2013, the respondents 4 and 5 prevented others including the innocent impleaded respondents 6 to 13 and 18 to 27 from casting their votes in the election held for the Nazareth Pastorate. Therefore, the impleaded parties cannot be left to suffer grave prejudice, as they are forced to lose the election for about four years.
17. No doubt, this Court although in its order dated 31.7.2013 had held against the writ petitioner that no writ is maintainable against the private respondents, namely, the Pastorate Chairman, Nazareth Pastorate and the Diocese Treasurer, as they are neither statutory authorities nor State or instrumentality of the State under Article 12 of the Constitution of India, the Hon'ble Division Bench set aside the said order dated 31.7.2013 holding that the writ petitioner, after obtaining a wrong order of injunction on 4.7.2013 from this Court, deliberately prevented the innocent impleaded respondents from casting their votes and also from contesting to various posts to represent hundreds of educational institutions, namely, elementary, middle, higher secondary, special schools, arts and science colleges, nursing colleges, engineering colleges and hospitals, hence, their rights and interests should be protected, inasmuch as the candidates elected from these pastorates are allowed to contest and manage the affairs of all these institutions and the said elections are also held once in four years, the writ petitioner, in collusion with the respondents 4 and 5, had staged a high drama depriving the right and interest of the impleaded respondents and in these processes, this Court was taken for a ride to pass the order dated 4.7.2013. Taking note of the foul play engineered by the writ petitioner, who was an ineligible voter in the election to be held as mentioned above and the further damage done by the respondents 4 and 5 in preventing the impleaded respondents from voting and contesting the elections held to be Nazareth Pastorate, disagreeing with the non-grant of any relief to the writ appellants/impleaded respondents 6 to 13, in its order dated 6.8.2013, the Hon'ble Division Bench came to the conclusion that since the writ appellants have been deprived of their valuable rights for no fault of them in the election, namely, Canon Arthur Margoschis Church Council, Nazareth and also further thought it fit to protect their interest and right. On this basis, while allowing the election to be held on 7.8.2013 and 8.8.2013, directed not to declare the results till the writ petition is decided, accordingly appointed Mr.Ajmal Khan as a Court Commissioner to be present along with the District Judge, who was already appointed as Commissioner, for conducting the election purely for getting the votes of these members. Again, when the impleaded respondents represented before the Advocate Commissioner and the District Judge, in spite of their intervention, the respondents 4 and 5 did not allow them to participate in the election. Therefore, this Court is unable to close its judicious eyes on the only technicality that the writ petitioner, who approached the civil Court and also this Court, should be permitted to take the benefit of interim order dated 4.7.2013 passed by this Court, as the Hon'ble Division Bench in its order dated 6.8.2013, had also vacated the interim order by order dated 31.7.2013 and thereby held that the interests and rights of the writ appellants/impleaded respondents should be protected.
18. The second significant fact which needs emphasis here is that the writ petitioner, after obtaining the order of interim injunction against the respondents 4 and 5 from conducting the election to the Nazareth Pastorate, resultantly, preventing the writ appellants/impleaded respondents from contesting the election held on 7.8.2013 and 8.8.2013, subsequently, after the writ petition was listed for hearing, a letter of withdrawal dated 2.9.2013 was filed by the writ petitioner seeking permission of this Court to withdraw the writ petition and the said letter reads as follows:- ".I am the petitioner counsel in the above said writ petition. While the above matter was came up on previous hearing before Mr.Justice N.Kirubakaran was pleased to adjourn the above writ petition on tomorrow to withdraw the writ petition for which the memo also filed before His Lordship. But I came to know now the matter has not been listed tomorrow. Hence I request before the Hon'ble Registry may be listed the case for withdrawal tomorrow (3.9.2013) in ".Withdrawal caption". before this Hon'ble High Court and thus render justice.". The above letter of withdrawal also shows the deliberate intention of the writ petitioner that somehow or other the impleaded respondents/writ appellants should be deprived of their valuable rights to contest, vote in the above mentioned election so as to get elected to manage various institutions. In this context, it is more appropriate to rely upon the judgment of the Apex Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others, 2011 (5) CTC221 wherein the Apex Court has held that a party cannot have the benefit of interim order after withdrawing the main writ petition, because the withdrawal means to go away or retire from battle. It is also to be pointed out that after the matter was remanded to this Court, the letter of withdrawal was filed by the writ petitioner only with an oblique motive to deprive the impleaded respondents of their valuable right to contest the elections. However, series of objections were made against the letter of withdrawal by the learned counsel for the impleaded respondents requesting the Court to proceed with the merits of the matter to neutralize the effect of all consequential orders passed by this Court, since the Court cannot be used only for interim relief alone. Indeed the maxim ".Actus curiae neminem gravabit". - An act of the Court shall prejudice no man, becomes applicable in this case also. In such a situation, this Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. In fact, the Hon'ble Apex Court in the decision in Kalabharathi Advertising (supra) has held as follows:- ".22. It is a settled legal proposition that the forum of the Writ Court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (vide: State of Orissa v. Madan Gopal Rungta, AIR1952SC12 Amarsarjit Singh v. State of Punjab, AIR1962SC1305 State of Orissa v. Ram Chandra Dev, AIR1964SC685 State of Bihar v. Rambalak Singh ".Balak". & Ors., AIR1966SC1441 and Premier Automobiles Ltd. V. Kamlakar Shantaram Wadke & Ors., AIR1975SC2238.
24. It is not permissible for a party to file a Writ Petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ Court would continue. The benefit of the interim relief automatically gets withdrawn/neutralized on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after losing the case in the Court. The Court should also pass orders expressly neutralizing the effect of all consequential orders passed in pursuance of the interim order passed by the Court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits. (vide Abhimanyoo Ram v. State of U.P., 2008 (17) SCC73.".
19. In yet another judgment in Amarjeet Singh and others v. Devi Ratan and others, (2010) 1 MLJ833(SC), the Hon'ble Apex Court has held as follows:- ".18. In South Eastern Coalfields Ltd., v. State of M.P. and others, AIR2003SC4482 (2003) 8 SCC648 this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding being place in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. The Court further held: "...Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance, in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated...". Similarly, in Karnataka Rare Earth and another v. Senior Geologist, Department of Mines and Geology and another, AIR2004SC2915: (2004) 2 SCC783 a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have passed an interim order.".
20. In fact, way back in the year 1966, the Hon'ble Apex Court, aptly summing up the maxim ".Actus curiae neminem gravabit". - Act of Court should do no harm to litigant, has held that there is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.
21. Now the test is whether on account of an act of the party persuading the Court to pass an order dated 4.7.2013, which is also held at the end by order dated 31.7.2013 as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered a loss or prejudice which it would not have suffered, but for the order of the Court and the act of such party.
22. At the risk of repetition, it may be mentioned that the writ petitioner came to this Court alleging that even an order of injunction passed by the trial Court dated 14.6.2013 in I.A.No.468 of 2013 in O.S.No.177 of 2013 was violated. Taking note of the said allegation that the order of the trial Court passed in favour of the plaintiff/writ petitioner herein has been violated, this Court passed another order dated 4.7.2013 preventing the respondents 4 and 5 from holding further elections on 6.7.2013. Sadly ignoring this order, elections were held on 6.7.2013 to various posts to the Canon Arthur Margoschis Church Council. Subsequently, the impleaded respondents and others were prevented from voting in the elections held on 7.8.2013 and 8.8.2013 for the C.S.I.Tuticorin Nazareth Council. Therefore, the prima facie case made out by the learned counsel for the respondents 6 to 13 and 18 to 27 is that the Bishop's Commissionery appointed by the moderator of the synod, conducted the Canon Arthur Margoshis Church Council election on 6.7.2013 without allowing all the representatives, who were already elected from the seven churches/sabhas, with the result, all the seven churches lost their representatives who are expected to hold office in various committees. When the respondents 6 to 13 have been elected under different categories of diocesan worker and pastorate worker unanimously, in the subsequent elections held on 6.7.2013 to the Canan Arthur Margoschis Church Council, there was no contest, because no other person filed nomination. But sadly, the respondents 4 and 5 deliberately prevented these respondents from taking part in the election held on 6.7.2013. When the order of injunction granted by this Court on 4.7.2013 was restricted only to Nazareth Pastorate and members of Nazareth Sabha, even members of other sabhas were also prevented from participating in the election to Canon Arthur Margoschis Church Council, because using the said order, the respondents 4 and 5 wantonly prevented these respondents from taking part in the election. The above facts clearly prove that the respondents 6 to 13, who are the petitioners in M.P.(MD) No.12 of 2013, have been elected under different categories of diocesan worker and pastorate worker unanimously. Admittedly, in the Canan Arthur Margoschis Church Council election held on 6.7.2013, under their categories, there was no contest or no other person had filed nomination. Therefore, their election to the Church Council was confirmed. But, unfortunately, they were prevented by the Pastorate Chairman only on the basis of the interim order passed by this Court on 4.7.2013. These facts clearly show that the writ petitioner wrongly came to this Court and after getting an order of interim injunction dated 4.7.2013, the respondents 4 and 5, wrongly using the said order, prevented the respondents 6 to 13 and 18 to 27 from taking part in the election. In this context, it is appropriate to recall the basic fundamentals of the administration of justice that no man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedures of irregularities. Rules or procedures are only handmaids of justice and not mistress of the justice. If a man has been wrong, so long as it lies within the human machinery of administration of justice, that wrong must be remedied. A timely reference can be made to the decision in A.R.Antulay v. R.S.Nayak reported in (1988) 2 SCC602 wherein the Hon'ble Apex Court has held in identical circumstances that one of the first and highest duty of all Courts is to take care that the act of the Court does no injury to any other suitors. Above all, when the writ petitioner and the respondents 4 and 5 have misused the politeness of the order passed by this Court under Article 226 of the Constitution of India, only this Court, by exercising its inherent power, is duty bound to rectify the mistake on the well established principle that no man should suffer because of the mistake of the Court, by relegating the innocent parties to seek remedy from some other forum for the prejudice suffered at the hands of this Court, hence, I am of the considered view that the wrong occasioned should be rectified by placing the parties in the original position. Moreover, all rules of the Court are nothing but provisions intended to secure proper administration of justice. In fact, Ex debito justitiae, we must do justice to him.
23. In view of the aforesaid settled legal position, this Court is justified in putting back the impleaded respondents in the same position as they stood immediately prior to the elections held on 7.8.2013 and 8.8.2013, when they have been prevented from contesting the elections for various posts including Secretary, Treasurer, Executive and others, with the result they have also lost their opportunity to vote, contest and get elected in the said elections. Accordingly, when the Hon'ble Division Bench, in order to protect the interests and rights of the parties, had already directed that the results of the election held on 7.8.2013 and 8.8.2013 shall not be published until further orders and that the entire process along with the results of the election shall be subject to the result of the writ petition, this Court, finding that the interests and rights of the impleaded respondents/writ appellants have been seriously affected, hereby directs that the sealed box containing the votes shall not be opened and they are directed to be destroyed, consequently, the respondents 4 and 5 are directed to conduct the re-elections to the Canon Margoschis Church Council and Tuticorin Nazareth CSI Diocese Council by including all the eligible voters, candidates and representatives from Tuticorin Nazareth Pastorate. Needless to mention that the elections held on 7.8.2013 and 8.8.2013 are invalid for the reasons mentioned above. With these observations, the writ petition stands disposed of. Consequently, the connected M.P (MD) Nos.10 to 16 of 2013 are closed. No costs. ss To 1. The Superintendent of Police Tuticorin District Tuticorin 2. The Deputy Superintendent of Police Sathankulam Tuticorin District 3. The Inspector of Police Nazareth Police Station Nazareth Tiruchendur Taluk Tuticorin District