Tamil Nadu Mahajana Sangam, Represented by Its President C. Venkatasubbu and anr. Vs. Balaguru, Advocate Receiver, Mannar Thirumalai Naicker College and ors. - Court Judgment

Excerpt:
election - advocate receiver - tamil nadu societies registration act, 1975 - society registered and restricted to particular community - dispute arose regarding election of committee and advocate receiver appointed by court to conduct election of society - advocate receiver conducted election of society - election sought to be declared invalid - advocate receiver appointed by court to act in accordance with direction of court and he was empowered to induct new members into society - election was valid - article 226 cannot be invoked in such circumstances. - orderprabha sridevan, j.1. the two revisions under article 227 of the constitution of india and w.p.no. 25648 of 2002 are related to the conduct of election in the mannar thirumalai naicker college society (hereinafter called 'the society'). the society is established by a linguistic minority. the society has its bye-laws and administers educational institutions through a committee, which is an elected body. membership is restricted to persons of the naidu community and enrolment is by making donations/contributions. when a dispute arose in 1993 suits regarding the then elected committee were filed. in the second appeals that arose out of them, an advocate commissioner was appointed to conduct the elections and an advocate receiver to manage the society in the interregnum. new members.....

Judgment:
ORDER

Prabha Sridevan, J.

1. The two Revisions under Article 227 of the Constitution of India and W.P.No. 25648 of 2002 are related to the conduct of election in the Mannar Thirumalai Naicker College Society (hereinafter called 'the Society'). The Society is established by a linguistic minority. The Society has its bye-laws and administers educational institutions through a Committee, which is an elected Body. Membership is restricted to persons of the Naidu Community and enrolment is by making donations/contributions. When a dispute arose in 1993 suits regarding the then elected Committee were filed. In the Second Appeals that arose out of them, an Advocate Commissioner was appointed to conduct the elections and an Advocate Receiver to manage the Society in the interregnum. New members were inducted by the Advocate Receiver and an election was conducted and the results declared. The grievance is, the enrolment was illegal and beyond the powers of the Advocate Commissioner and created an imbalance in the composition of members and therefore, the election is invalid.

2. According to the learned counsel for the petitioner, it was found by this Court in S.A.Nos. 1649 and 1650 of 1998,which arose out of the two suits of the year 1994 that the Society was not functioning in accordance with the Tamil Nadu Societies Registration Act, 1975 (hereinafter referred to as 'the Act') and the bye-laws and therefore, this Court was pleased to appoint an Advocate Commissioner and Advocate Receiver for conduct of elections in 1998. Therefore, the conduct of the election ought to have been only on the basis of membership that existed on that date. The Electoral Roll had subsequently been altered totally so as to change the composition of the members by the induction of new members during the period when the Advocate Receiver was in management of the Society. The Advocate Receiver had no power to enroll new members. All that he had to do was to conduct election on the basis of the existing membership list. The induction of new members must be set aside, in view of Jt. Registrar of Co-operative Societies v. T.A. Kuttappan, : AIR2000SC2378 , where it was held that the administrator or a Committee appointed by the Registrar during the supersession of the elected Committee had no power to enrol new members. If this is accepted, the votes of the members who had been enroled violating the provisions of the Act were invalid and the election conducted was also invalid in the eye of law. The elected Body cannot be recognised as a validly elected body and all proceedings that had taken place thereafter deserves to be set aside. It was further submitted that every registered society is bound to have a register of members which shall be filed with the Registrar also. Notice of any change among the members of the Society shall be filed within such period as may be prescribed. This notice must be filled in Form VII with the Registrar. According to the learned counsel for the petitioner when the right to enroll new members rests with the General Body, enrolment of new members when there was no General Body Meeting cannot be taken note of. It was also submitted that this election held in contravention of the law, was challenged by a writ petition which was dismissed observing that the elections having been held, the right of the petitioner was to file an election petition. This was confirmed by the Division Bench. In the Special Leave Petition, the Supreme Court observed that the High Court had fallen in error in directing the petitioner to file an election petition since such a remedy was not available in the Act and that the High Court ought to have decided the dispute relating to illegal enrolment of members and therefore, gave liberty to the petitioner to raise this dispute and have it decided by the appropriate forum, and that, it is only pursuant to this direction that the Writ Petition have been filed. As regards the revisions, C.R.P.No. 164 of 2002 has been filed against the order of the learned Sub-Judge handing over charge to the newly elected Secretary on 7.3.2001 and C.R.P.No. 165 of 2002 is against the order of the learned Judge declaring the elections.

3. As regards the Revision, the learned counsel submitted that the Sub-Judge, Madurai erred in affixing its seal of approval on this illegal election and therefore, the petitions under Article 227 of the Constitution of India were filed against the orders declaring the result and handing over charge. It was submitted that the Advocate-Commissioner and the Advocate Receiver both filed an application in the suit, the former for permission to receive donations and the later for the amendment of the bye-laws. The Sub-Court merely directed the Receiver to receive the donations and declined permission to amend the bye-laws. There was nothing in the order of the Sub-Court, Madurai to indicate that the Advocate Commissioner was permitted to enroll new members. According to the learned counsel, the petitioners are repeatedly knocking at the doors of justice claiming that the affairs of the College-Society are not being managed according to the provisions of the Act. They have unsuccessfully initiated one proceeding after another only to find that in the meantime the respondents are merrily conducting elections which have no legal basis. The learned counsel would further submit that merely because the elections for this year have been concluded, the writ petitions and the civil revision petitions should not be dismissed as infructuous, and that the legality of the dispute must be decided. He relied on

(i) Babu Verghese and Ors. v. Bar Council of Kerala, : [1999]1SCR1121 ; (ii) The Chief Commissioner of Ajmer v. Radhey Shyam Dani, : [1957]1SCR68 and (iii) Bar Council of Delhi v. Surjeet Singh, : [1980]3SCR946

in which the elections held on the basis of void and ultra vires rules or provisos were set aside by the Supreme Court. According to the learned counsel, these decisions would clearly apply to the present case.

4. The learned Senior Counsel who appeared for the respondents and whose submissions were adopted by the learned counsel for the Advocate Receiver and the Advocate Commissioner would submit that the petitioners can have no grievance since the elected Body has been elected unanimously. There was a fair and proper conduct of elections and the elections that have been conducted after the appointment of the Advocate Commissioner and the Advocate Receiver have advanced the welfare of the Society they have put up constructions, increased the funds of the society etc. and in no way can the petitioners be said to be aggrieved. The learned Senior Counsel pointed out that in fact in one of the orders passed by the Registrar in 2004 it was observed that the grievance of the petitioners ought to be ventilated by attending the General Body Meeting instead of launching one case after another. The learned Senior counsel submitted that before the Sub-Court an application I.A.No. 59 of 2000 was filed and the Advocate Commissioner had prayed for the permission to receive donations from the members and after contest the Sub-Judge, Madurai had granted it. Against this C.R.P.No. 925 of 2000 was filed by the respondents. This was dismissed as withdrawn on 29.9.2000. A subsequent clarification petition that was filed was also dismissed and therefore, nothing really survives in the present Revisions, which is only an attempt to resurrect the same grievance that has already been put an end to, in C.R.P.No. 925 of 2000.

5. The learned counsel would further submit that the decision in Jt. Registrar of Co-operative Societies v. T.A. Kuttappan, : AIR2000SC2378 will not apply to this case. That was a case where the Administrator was appointed by the Registrar and his powers were circumscribed by the language of the Section, whereas the Advocate Commissioner was appointed by this Court to manage the affairs of the Society and by periodic applications to the Sub-Judge, Madurai, he had obtained directions to effectively manage the Society and whenever new members have been inducted, Form VII has been filed and this was to the knowledge of the petitioner and therefore, there is no cause of action for this Court to exercise its jurisdiction under Article 227 of the Constitution of India.

6. The bye-laws of the Society have been produced. Bye-law No. 6 shows that only the persons belonging to the Naidu community who fall under any of the categories mentioned therein are enrolled as members.

The college committee comprises of ten members as per bye-law No. 10, (a) two persons from donors who have given Rs. 1,00,000 and above; (b) two persons from donors who have given Rs. 25,000 to Rs. 99,999; (c) two persons from donors who have given Rs. 10,000 to Rs. 24,999 (d) one person from donors who have given Rs. 5,000 to Rs. 9,999; (e) one person from donors who have given Rs. 1000 to Rs. 4999; (f) one person from and out of the representatives of the Tamil Nadu Naidu Mahajana Sangam and other Sangams who have given Rs. 1000 and more and (g) one person from those who have given Rs. 261 to Rs. 999. Therefore, it is clear that the only qualification to become a member of the Society or the members in the Educational Committee is that one should belong to the Community and one should have made contribution or donation.

7. In Second Appeal Nos. 1649 and 1650 of 1998 final orders were passed on 3.1.2000 which is the starting point of the present case. There, S.S. Subramani, J., found that the election held on 27.2.1994 was not valid since it was not conducted as per the bye-laws. Therefore, the learned Judge directed the II Additional Sub-Judge, Madurai to appoint a competent person or persons to hold elections of the Mannar Thirumalai Naicker College according to the bye-laws. The Advocate Commissioner so appointed was directed to conduct the election strictly in accordance with the bye-laws and the Sub-Court was directed to declare the results after getting the report from the Commissioner. Thereafter, the learned Judge considered what is to be done in the interregnum, since the plaintiff was not validly elected and the defendants had been continuing in office long after the lapse of their term and cannot be allowed to be in Management. Therefore, an Advocate Receiver was directed to be appointed to manage the affairs of the Society with the assistance of the plaintiff and the first defendant. The matter was again listed on 25.1.2000, at the instance of the appellants. The following order was passed:

'Once Receiver is appointed, the Receiver can seek necessary direction from the lower Court as to how to conduct the election and from whom the expense will have to be met or who could deposit the amount. The funds of the society is also available. Before the lower Court, the Founder-Trustee can also move necessary application and get necessary direction and if permitted, he can finance the Receiver for holding election. The appellants also wanted some directions regarding the electoral roll. That is also a matter which the Receiver will have to move the lower Court after he takes necessary action for holding the election. If he feels that there is any confusion or doubt about the electoral roll or about the members to be enrolled, he may move the lower Court who shall give necessary direction after hearing parties.'

This order has become final. In I.A.No. 59 of 2000, in O.S.No. 365 of 1994 a memo was filed by the Advocate-Election Commissioner for approval of the changes suggested in the Rules, specifically referring to the 'individuals enrolled themselves as members by paying fees fifteen days before election should be eligible to vote in the election.'

8. This was objected to by the revision petitioner herein on the ground that the last approved electoral list is the one approved by the XVIII Annual General Body Meeting on 1.11.1992 and those members alone could attend and exercise their votes. The Advocate Receiver also filed a memo in I.A.No. 61 of 2000 for permission whether donation sent by community people can be accepted. An objection was raised by the petitioner herein that the receipt of donations would raise claims not only for the right to vote in the election but also to file nominations for and to contest for the post of membership and that therefore, the receipt of donations must be deferred and should not be permitted at this juncture. By an order dated 24.3.2000, the Sub-Judge, Madurai permitted the Advocate Commissioner to receive the donations either in cash or through demand draft and to forward the names of the donors to the Advocate Commissioner who was taking steps to conduct the election atleast 15 days before the date on which the election was fixed. In I.A.No. 61 of 2000, the learned Sub-Judge observed as follows:

This order was also passed in the presence of the petitioner.

9. In I.A.No. 59 of 2000, which was for amendment of the bye-laws, the learned Sub-Judge observed:

The second respondent referred to above is the petitioner herein. Therefore, on 24.3.2000 in I.A.No. 61 of 2000, the learned Judge had observed that as per the bye-laws the persons who gave donation have voting rights and that it is better that the receipt of donations is limited to enable the smooth conduct of election. On 6.9.2000, in I.A.No. 59 of 2000, the learned Subordinate Judge, Madurai observed that the submissions made by the petitioner herein indicate that the petitioner wants the election to be conducted according to his wish. Against the order passed in I.A.No. 59 of 2000, C.R.P.No. 925 of 2000 was filed. In that V. Kanagaraj, J., noted that an amicable compromise had been arrived at and after giving directions as to the date on which the elections to be conducted, the revisions were dismissed as withdrawn.

10. It is relevant to note that in C.R.P.No. 925 of 2000, the present revision petitioner had raised inter alia the following ground.

'The learned Judge has failed to note that acceptance of donations upto 15 days of election would cripple the election. The observation of the learned Sub-Judge that the bye-law of the Society permits the donors to vote and therefore, the donations given by them are accepted is not tenable in law.'

The petitioner sought for a clarification of the order in C.R.P.No. 925 of 2000 in which it was submitted that if the Commissioner indulged in last minute attempt to enrol members it would introduce imbalance in the Voting structure and pattern of society. This petition was dismissed as not maintainable. Thereafter, the writ petitioners herein filed, W.P.No. 18106 of 2000 and C.R.P.No. 3079 of 2000 for quashing the electoral list, but the petitioner was given liberty to challenge the validity of the election. Against this W.A. No. 2303 of 2000 was filed. That was also dismissed. A contempt petition that was filed by the revision petitioners herein for wilful disobedience of the order dated 19.9.2000 in C.R.P.No. 925 of 2000 was also dismissed.

11. Against the order passed by the Division Bench the petitioner went upto the Supreme Court and the Supreme Court passed the following order:

'On examining the provisions of the Tamil Nadu Societies Registration Act, we do not find that the said Act provides for an election petition to be filed challenging an election to the management of the society. The High Court obviously was in error on that score. But having regard to the facts that the election has already been held, in the absence of any provisions in the Act for redressal of the same, it is the appropriate forum, which may be a civil Court or in a given case the High Court depending upon the facts of the case.'

12. In Jt. Registrar of Co-operative Societies v. T.A. Kuttappan, : AIR2000SC2378 , the Supreme Court considered the provisions of the Karnataka Act and the Kerala Act with regard to the appointment of a Special Officer by the State Government on a report made by the Registrar. The Supreme Court observed that,

'7. If we carefully analyse the provisions of the Act, it would be clear that the administrator or a Committee appointed while the Committee of Management of the Society is under supersession cannot have the power to enroll new members and such a question ought not to be decided merely by indulging in an exercise on semantics in ascertaining the meaning of the expression 'have power to exercise all or any of the function.....'. Whether an authority is discharging a function or exercising a power will have to be ascertained with reference to the nature of the function or the power discharged or exercised in the background of the enactment. Often we do express that functions are discharged or powers exercised or vice versa depending upon the context of the duty or power enjoined under the law if the two expressions are inter-changeable. What is necessary to bear in mind is that nature of function or power exercised and not the manner in which it is done. Indeed this Court, while considering the provisions of Section 30-A of the Karnataka Act, which enabled a Special Officer appointed to exercise and perform all the powers and functions of the Committee of Management or any officer of the Cooperative Society (and not merely functions), to the view that the administrator or a special officer can exercise powers and functions only as may be required to the interests of the Co-operative Society. In that context, it was stated that he should conduct elections as enjoined under law, that is, he is to conduct elections with the members as on the rolls and by necessary implication, he is not vested with power to enrol new members of the society. We may add that a Co-operative Society is expected to function in a democratic, manner through an elected Committee of Management and that Committee of Management is empowered to enroll new members. Enrolment of new members would involve alteration of the composition of the society itself and such a power should be exercised by an elected Committee rather than by an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession. This Court has taken the view, it did, bearing in mind these aspects, though not spelt out in the course of the judgment. Even where the language of Section 30-A of the Karnataka Act empowered a special Officer to exercise and perform all the powers and functions of Committee of Management of a Co-operative Society fell for consideration, this Court having expressed that view, we do not think, there is any need to explore the difference in the meaning of the expressions 'have power to exercise all or any of the functions of the Committee' in the Act and 'exercise all or any of the functions of the Committee' in the Karnataka Act as they are not different and are in substance one and the same and difference in language will assume no importance. What is of significance is that when the Committee of Management of the Co-operative Society commits any default or is negligent in the performance of the duties imposed under the Acts, rules and the bye-laws, which is prejudicial to the interest of the society, the same is superseded and an administrator or a Committee is imposed thereon. The duty of such a Committee or an administrator is to set right to default, if any, and to enable the society to carry on its functions as enjoined by law. Thus, the role of an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession, is, only to bring on an even keel a ship which was in doldrums. If that is the objective and is borne in mind, the interpretation of these provisions will not be difficult.'

13. In this case, the powers of the Commissioner appears to be slightly different. The Commissioner is not appointed by the Registrar which is the statutory authority and can have no power beyond and above the statute. The Commissioner was appointed by the Court which give him the power to act according to the directions.

14. In the Second Appeals, the learned Judge had directed the Commissioner to conduct the election and therefore, the Advocate Commissioner's power was restricted to conduct of the election. But there was another officer of Court appointed by S.S. Subramani, J., in the same judgment and he was the Receiver, who was directed to manage the affairs of the society. There was also a sequel to this order. On 25.1.2000, at the instance of the appellants, an order was passed that if there is any confusion or doubt about the electoral roll or about the members to be enrolled, he may move the lower Court who shall give necessary direction after hearing the parties. The use of the words 'members to be enrolled' must refer to members not in existence as on 1.1.1992 as per the XVIII Annual General Body Meeting. It clearly refers to the members, who are enrolled after the judgment in Second Appeal. The Advocate Receiver only had to get the directions of the Sub-Court if he had any doubt in this regard. We have seen that the only qualification for the enrolment of the members is that the members should belong to the Naidu Community and should make donations to the Society. No other qualification is stipulated. The learned Sub-Judge had also passed an order that as per the bye-laws a donor gets the right to vote. This has become final. The petitioner raised the objection that the electoral list should be frozen as on 1992. That was rejected. A specific direction was given to the Advocate-receiver to give the names of the donors to the Advocate Commissioner list within fifteen days before the election. This cannot be a meaningless direction. It is clearly intended that such members should have the right to vote, otherwise no purpose would be achieved by stipulating the time frame within which the names of the members should reach the Advocate Commissioner. The reference to makes the meaning clear. The learned Sub-Judge wanted the names to be forwarded well in advance so that the Advocate Commissioner could determine the persons who had the right to vote. The petitioners also knew this, let there be no doubt in this regard. This is seen from the ground raised in the civil revision petition and extracted above. Therefore, the dismissal of the civil revision petition as withdrawn sets at rest the objection against the Advocate Commissioner enrolling new members once for all. The decision reported in Jt. Registrar of Co-operative Societies v. T.A. Kuttappan, : AIR2000SC2378 case does not apply to the facts of this case because S.S. Subramani, J., clearly gave the Advocate Commissioner the power to enroll members, since the Advocate Commissioner was directed to get clarifications of necessary with regard to the members to be enrolled. This direction cannot be ignored nor can it be construed as a meaningless statement. This order has become final.

15. The records show that the Advocate Receiver had filed Form No. 7, whenever a person was enrolled as a new member. This register is a public document available to anyone on payment of charge. This is in consonance with the power given to the Advocate Receiver, by this Court for management of the College Society till the elected Committee takes charge.

16. The allegations that one section of Naidu community is oppressing the other has not been made out. There is no basis for this. There are no statistics to show that the enrolment of new members has caused imbalance.

17. The democratic process within the society must be kept unsullied, no doubt. But here, the petitioners do not appear to be genuinely aggrieved, but appear to be peeved persons who have decided to be 'inconvenient', since they have not had their way. If any rule or proviso is ultra vires the law and if the election process is therefore, vitiated, the petitioners' plea must be upheld. But that is not so and hence the petitioners' prayers must be rejected.

18. As seen already, the Advocate Receiver who was asked to manage the affairs of the Society had been periodically filing Form VII which would indicate the enrolment of new members and even before V. Kanagaraj, J., the parties had agreed that the election process can go ahead and that is why notwithstanding the ground that was raised as indicated above, the revision petitioner had withdrawn the civil revision petition and allowed an order of dismissal to be passed. Perhaps, at this stage, he wanted to wait and watch for the results and decide thereafter, the course of action. Therefore, perhaps what the petitioner is aggrieved about is not the voting but the result of the counting. Once the votes were counted and he did not find the result to his liking the attack is launched. In fact, in the earlier writ petition that was filed which culminated in the order passed by the Supreme Court, S. Jagadeesan, J., as he then was, noted that the third respondent-Sangam which is the petitioner in the revision petition did not object to the orders of the Lower Court and perhaps, on difference of opinion, the present revision has been filed. Therefore, while the learned counsel for the petitioners would submit that the petitioners have been knocking at the doors of justice, their bona fides are not quite clear.

19. To sum up,

(a) the Advocate Commissioner was given the liberty to seek directions from the Sub-Judge. Madurai when members are to be enrolled '(vide judgment in Second Appeal). This implies he was given the power to enrol new members. This judgment stands unassailed. (b) Jt. Registrar of Co-operative Societies v. T.A. Kuttappan, : AIR2000SC2378 cannot apply since there the powers of the administrator were described and circumscribed by the Statute and he cannot travel beyond; e) the membership is dependent on payment of donation alone, provided of course, the donor was a Naidu. It appears from the bye-laws that there is an automatic enrolment of a member of the community, if he makes a donation. d) This is why the Sub-Court found that the bye-laws show that a person who makes a donation becomes a member and gets the right to vote. This has become final. e) The petitioners' claim that election can be conducted only with electoral list of 1992 has been rejected. This has become final. f) On the memos filed by Advocate Receiver and the Advocate Commissioner, the Sub-Judge had directed the Advocate Receiver to receive the donation and submit the list of donors to the Advocate Commissioner, atleast 15 days prior to, election. This has become final. This implies that the Advocate Receiver was permitted to enrol new members in view of (c) above; (g) The order of dismissal of the civil revision petition 'as withdrawn' sets at rest the question covered by (d), (e) and (f) above; they cannot be resuscitated; (h) The liberty given by the Supreme Court to agitate the dispute and have it adjudicated on merits does not mean that the petitioners' case was accepted. In fact, after the dismissal of the civil revision petition, nothing survives. In any event, the Supreme Court, directed the dispute to be adjudicated on merits. On a consideration of the facts and on merits, it is found that these issues have been 'heard' and decided and cannot be raised again and further the Advocate Commissioner's powers were granted by this Court, unlimited by the statutory restraints which were present in the case before Supreme Court; (i) Article 227 of the Constitution of India cannot be invoked, since the declaring of results and handing over of charge which are apparently the causes of action for the filing of the civil revision petition are not fresh causes of action but are in fact, the culmination of the various events which had taken place consequent to the order passed in the second appeal, which has become final.

20. For all these reasons these petitions are dismissed. No costs. The connected miscellaneous petition is also dismissed.