Madras High Court
A. Mathivanan And G. Chandrasekaran vs The District Registrar (Societies) ... on 15 May, 2008
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. Heard Mr. D.S.S. Sundar for the petitioner in W.P. No. 4461 of 2008, Mr. V. Bharathidasan for the petitioner in W.P. No. 4465 of 2008, Mr. Janakiramalu, Special Government Pleader for Respondent No. 1 , Mr.M. Vallinayagam for Respondents 2 and 3 and Mr.R. Vijayakumar for Respondents 4 and 5 in each of the writ petition.
2. Prayer in W.P. No. 4461 of 2008 is for issuing a writ of Mandamus directing the first respondent, the District Registrar [Societies] Administration, Madurai, to take charge of the election process of the second respondent Society and conduct the election under his direct supervision after preparing eligible voters list according to the bye-law of the Society and issue identity cards in a foolproof manner and also by rescheduling the election notification dated 2.5.2008 issued by the second respondent society.
The prayer in the connected W.P. No. 4465 of 2008 is for a direction to the first respondent to consider the representation of the petitioner dated 1.5.2008 and to take appropriate action for ensuring participation of all the members of the second respondent in accordance with the bye-laws in the election of the office bearers and for ensuring the holding of election in a free and fair manner.
3. Respondent Nos. 2 and 4 are the registered societies, presently governed by the Tamil Nadu Societies Registration Act. As per bye-law 5(a) of the second respondent Society, all the members of the Governing Council of Nadar Mahajana Sangam (present fourth respondent) shall be the members of General Body of College Peravai (present second respondent). As per bye-law 5(c), all such members of the General Body are required to bring identity card issued by the Nadar Mahajana Sangam to attend the General Body Meeting of the second respondent society. Bye-law 32 of the 4th respondent Society is as follows:
GOVERNING COUNCIL:
It is the duty of the Governing Council to implement all the activities of the Society. The Members of the Governing Council are:
1. President
2. Vice President
3. General Secretary
4. Three Joint Secretaries
5. A Treasurer
6. The persons elected in the ratio of 1:100 from among the ordinary Members.
7. The Special Life Members, Special Members who has given donation as per bye law of 8(a) and 8(b)
8. Representatives of branch Societies which give donations per bye law 81.
9. Representatives of Uravin Murai which give donations as per bye law 91.
10(a) The Secretaries of Circle who were elected as per Rule 10(b).
10(b) For the purpose of member circles to have close association with the Society each circle should be divided into two parts.
(As per the translated copy furnished by the petitioner).
3.1 In other words, the members of the Governing Council are either various office bearers of the 4th respondent society or other members as enumerated in clauses 6 to 10 of bye-law 32 of the 4th respondent society.
4. The main grievance of the petitioners is to the effect that without electing / nominating the members as required under bye-law 32 Clauses 6, 8 and 9, the election of office bearers for the 2nd respondent has been scheduled to be held only with a view to perpetuate the old management. It is further stated that no person representing the categories 6,8 and 9, who are also supposed to be members of the society, are not available as no election has been held in respect of those categories by the parent society, namely, the fourth respondent. It is further asserted that even in respect of category 7, namely, the Special Life Members and Special Members, who have given donation as per the bye-laws 8(a) and 8(b), majority persons are being deprived of their right to vote as the identity cards have not been issued to many of such Special Life Members. It is also asserted in the writ petition that challenging similar fraudulent election held during the year 2005, a suit has been filed by the petitioner in W.P. No. 4461 of 2008, which is yet to be decided. It is further asserted that if a similar tainted election is permitted to be held without proper preparation of the voters list and by depriving the majority of the voters from participating in the election, illegal action of the Respondent Nos. 2 and 4 through their respective Secretaries, namely, the Respondents 3 and 5 respectively, who are hand in glove, illegality would be perpetuated.
5. A counter affidavit has been filed on behalf of Respondents 2 and 3 sworn to by Respondent No. 3. It is contended in such counter affidavit that the writ petitions are not maintainable and at any rate no order should be passed stalling the election process, which has already commenced. The assertion to the effect that about 70,000 ordinary members are being deprived of their participation has been denied by stating that there is no ordinary member in the parent society as on date and, therefore, holding election in the ratio of 1 out of 100 ordinary members to the Governing Council of the parent society does not arise. Similarly regarding the nominees of branch societies and nominees of Uravinmurai to the Governing Council it is stated that such branch societies and Uravinmurai have not nominated any member to the Governing Council of the parent society. It has been stated that out of 5 categories relating to which grievance has been made, four categories are not available and the other category consists of 2 kinds of membership, namely, Special Life Member and Special Member. So far as Special Life Members are concerned, they are all listed in the General Body Membership list of the second respondent society and, therefore, there cannot be any grievance. It is further stated that as per bye- law 8(b) of the fourth respondent, a Special Member is a person who paid a sum of Rs. 50/- per year as donation and there is no such person available and, therefore, there is no question of ignoring any Special Member. It is further stated that the photo identity cards are required to avoid any impersonation. The allegation relating to alleged illegality in the previous election had been denied and it is contended that at any rate a suit has been filed and such matter cannot be re-agitated.
6. A Similar counter affidavit has been filed on behalf of Respondent Nos. 4 and 5 sworn to by Respondent No. 5.
7. A reply affidavit has been filed by the petitioner in W.P. No. 4461 of 2008 reiterating the stand taken in the writ petition and highlighting certain aspects.
8. In course of hearing, learned Counsels appearing for the petitioners submitted that without sending the representatives as contemplated in categories 6 to 10, on the basis of the defective membership, such election should not be held. It is further contended that even in respect of Special Life Members, who by virtue of the bye-laws automatically become the members of the Governing Council of the second respondent, a condition has been imposed relating to right to vote on the basis of production of identity card issued by the Election Committee and on production of other identity as contemplated. In this connection, referring to the list of the Special Life Members, it is submitted that majority of such persons have not been issued identity card thereby debarring such persons from participating in the election as voters.
9. Bye Law No. 8 of the fourth respondent society enumerates that there are four categories of members in the Sangam, which are as follows:
8. There are 4 categories of members in the Sangam
(a) Special life member who paid a sum of Rs. 400/- at a time as donation.
(b) Special member who paid a sum of Rs. 50/- per year as donation.
(c) Ordinary life member who paid a sum of Rs. 50/- at a time as donation.
(d) Ordinary member who paid a sum of Rs. 5/- (Rupees five only) per year as donation).
As per bye-law No. 9, Special Life Members and Special Members are the Council Members of the Sangam.
10. As per bye-law 32 of such 4th respondent society, the members of the Governing Council inter alia consists of the persons elected in the ratio of 1 : 100 from among the ordinary members. As per bye-law 5(a) of 2nd respondent society all the members of the Governing Council of Nadar Mahajan Sangam shall be the members of the General Body of the College Peravai. As already indicated, the Governing Council of 4th respondent consists of several Ex- officio members as well as those in categories 6 to 10.
11. The contention of the petitioners is to the effect that though as per bye-law 32 the persons elected in the ratio of 1 : 100 from among the ordinary members are the members of the Governing Council of Respondent No. 4 and, therefore, automatic members are General Body of the second respondent society, since no election has been held as contemplated, all such ordinary members of the fourth respondent any right of becoming member of the Governing Council and consequently the member of the General Body of the second respondent.
12. Learned Counsels appearing for Respondent Nos. 2 to 5 have combated such submissions by stating that as per bye-law 32(clause 6) of the fourth respondent society, a person is to be elected in the ratio of 1: 100 from among the "ordinary members". As per bye-law 8(d) of the fourth respondent, an ordinary member is a person who has paid a sum of Rs. 5/- per year as donation and there is no such person available. In this context it is submitted by the counsels appearing for Respondents 2 to 5 that as per bye law 8(c), an ordinary life member who paid a sum of Rs. 50/- at a time as donation is a different category, which does not come within the expression "ordinary member" as contemplated in bye-law 32 (clause 6). According to the counsels for the respondents, the category referred to in bye-law 32(clause 6) is only relatable to ordinary member as categoriesed under bye-law 8(d) and it has got no reference to the "ordinary life member" as indicated in bye-law 8(c). Learned Counsels have not at all disputed that there are about 71,000 ordinary life members who have paid a sum of Rs. 50/- at a time as donation as contemplated in bye-law 8(c). While not disputing about the existence of such ordinary life members, it is contended that such ordinary life members cannot be equated with "ordinary members" as contemplated in bye-law 8(d) and 32(clause 6).
13. The aforesaid submission of the counsels for Respondents 2 to 5 can at best be described as ingenious. If such an interpretation is accepted and it is held that the expression "the persons elected in the ratio of 1: 100 from among the ordinary members" would not refer to "ordinary life member" as contemplated in bye-law 8(c) and only referable to bye-law 8(d), it would have the effect of depriving sizeable members of the Sangam the opportunity of becoming the members of the Governing Council. Such an interpretation is also against any logic. If such an interpretation is accepted, it would mean that an ordinary member who paid a sum of Rs. 5/- per year as donation is entitled to become a member of the Governing Council, whereas "ordinary life member", who paid a sum of Rs. 50/- as one time donation, would be deprived of sending a representative to the Governing Council or being even elected as a member of the Governing Council. It is quite well known that in any institution many people are taken as life members by paying a lumpsum higher amount as compared to the annual membership fee. This is invariably done with a view to collect a higher amount at one time instead of collecting very meager amount every year. In my considered opinion, the submission made by the learned Counsel for Respondents 2 to 5 that an "ordinary life member" who paid a sum of Rs. 50/- at a time as donation does not come within the expression "the persons elected in the ratio of 1: 100 from among the ordinary members", is on the face of it unacceptable. In other words, an ordinary life member who has paid a sum of Rs. 50/- at a time as donation is also to be considered as an ordinary member within the meaning of bye-law 32 (clause 6).
14. Learned Counsel for Respondent No. 2 in alternative has submitted that even assuming that an ordinary life member as contemplated in bye-law 8(c) also comes within the expression as contemplated in bye-law 32 (entry 6), it is for the fourth respondent Society to hold such election and merely because such election has not been held, the General Body of the second respondent for holding the election cannot be and should not be postponed. Learned Counsel has therefore submitted that it is for the fourth respondent to elect such members of the Governing Council as contemplated in bye-law 32 (clause 6) but, that cannot be a ground to set aside the election or postpone the election.
15. Learned Counsels for the petitioners have referred to the decisions of the Supreme Court (Bar Council of India v. Surjeet Singh) and (Ahmednagar Zilla S.D.V.& P. Sangh Ltd. and Anr. v. State Of Maharashtra and Ors.) in support of the contention that when the voters list is not prepared in accordance with the rules, the High Court can interfere even at the intermediate stage and the aggrieved party need not wait till the completion of the election process for filing appropriate election petition.
16. Learned Counsel for Respondent No. 2, on the other hand, has placed reliance upon the decision of the Supreme Court (Shri Sant Sadguru Janardan Swami [Moingiri Maharaj] Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors.) in support of his contention, if at all there is a defective voters list, such question should not be decided once the election process is started and if any person is aggrieved he can pursue his remedy by challenging the election.
17. In the present case, an aggrieved party can always initiate appropriate proceedings before the competent forum challenging the election and the election process should not be stalled in the midstream. Even though there are a few decisions of the Supreme Court holding that in appropriate case a Court can and should intervene, I do not think it is appropriate to postpone the election in the present case. It is, however, made clear that even though I am not inclined to intervene in the election process by postponing the election, it is always open to any aggrieved person to challenge the election in accordance with law which shall be decided on its own merits as and when the occasion arises.
18. Learned Counsels for the petitioners have further submitted that the members who are coming within the categories 8 to 10 of bye-law 32 are also not included. In this connection, the submission of the learned Counsel for Respondent No. 2 is to the effect that it is for the concerned Society to send their representatives and merely because it is not done, the election process should not be stalled.
19. In course of hearing, learned Counsels for the petitioners have submitted that since it is the object of all the democratic institutions to hold free and fair election, it would be more appropriate to direct the first respondent to send an official nominee and also to nominate an Advocate so that such Observers can ensure a free and fair election.
20. Learned Counsels for Respondent Nos. 2 and 5 have resisted such submission by contending that as per the bye-law it is for the appropriate election committee to hold the election and, therefore, there is no requirement for nominating any other person. Learned Counsels have, however, submitted that since the election is held by General Body, as per Section 26 of the Tamil Nadu Societies Registration Act, it is always open to the first respondent to send an Observer to attend such meeting.
21. Having regard to the facts and circumstances and with a view to allay any apprehension relating to the fairness of the election, I think in the interest of justice it would be appropriate to give a direction to Respondent No. 1 to nominate an official nominee to remain present on the date of election to be held on 25.5.2008. Similarly, I feel interest of justice would be served by nominating an Advocate of this Bar to be an "Observer" in such election on the said date. Accordingly, the District Registrar (Societies)Administration is directed to nominate an officer to be present on the date of election to be held on 25.5.2008 and similarly Mr. Veera. Kathiravan, Advocate, is nominated to remain present on the date of election as an Observer. It shall be the duty of such official nominee and the Court appointed Observer to ensure free and fair election.
22. Learned Counsels for the petitioners have also submitted that even a Special Life Member, who is ipso facto being a member of the Governing Council of the fourth respondent, is ipso facto member of the General Body of the second respondent and in respect of such category also there is large scale interference in the free election inasmuch as the identity card having not been issued to several persons thereby defeating the very object of holding election.
23. Learned Counsel for the respondents, on the other hand, submitted that the documents produced by the petitioners relate to the election list of members during the year 2005 and on that basis it cannot be said that many persons would be deprived of their right to vote.
24. The decision to allow the persons to vote only on the basis of the identity card issued by the competent committee is only to ensure free and fair election and to prevent the impersonators from voting. Therefore, the idea of issuing identity card to the voters is obviously laudable. However, since the object of issuing such identity card is to ensure free and fair election, it can be held that, if the identity of the voter can be otherwise established, such voter may not be deprived the right to vote merely because he is not in possession of the identity card issued by the appropriate committee. As a matter of fact, learned Counsel for Respondent No. 2 fairly suggested that apart from the voters who are in possession of identity cards issued by the appropriate committee, other voters who are in possession of voter identity card issued by the State Election Commission, Passport issued by the appropriate authority or PAN Card issued by the Income Tax authorities or driving licence containing the photograph of the driver issued by the competent authority can also be permitted to vote.
25. This submission made by the petitioner and practically accepted by the learned Counsel for Respondent No. 2, is acceptable. Therefore, it would be appropriate to direct that any voter in possession of any of the following shall be permitted to vote:
(a) Photo Identity Card issued by the Nadar Mahajana Sangam.
(b) Photo Identity Card issued by the Election Commission of India / State Election Commission.
(c) Passport
(d) PAN Card issued by the Income Tax Department.
(e) Driving licence, containing the photograph of the driver.
26. To avoid any misgiving in the matter, it is further directed that identity of the voter is to be verified by the official nominee and the Court appointed Observer and in case of any dispute relating to identity of the voter, it can be decided by the official nominee, the Court appointed Observer and one representative of the Committee of the second respondent. The official nominee is required to file a report regarding the election to the District Registrar (Societies) Administration, with a copy to the Registrar (Judicial) of Madras High Court, Madurai Bench and similarly the Court appointed Observer is required to file a report regarding the election before the Registrar (Judicial) of Madras High Court, Madurai Bench and such reports shall be kept on record by the Registrar (Judicial) of Madras High Court, Madurai Bench and authenticated certified copy shall be made available to any of the parties.
27. The writ petitions are disposed of subject to the above observations and the following directions:
(i) The District Registrar will nominate an Officer to be present at the General Meeting scheduled to be held on 25th May, 2008.
(ii) Mr. Veera. Kathiravan, Advocate, is nominated to remain present as an Observer. A sum of Rs. 20,000/- (Rupees twenty thousand only) shall be paid to him towards his remuneration and expenses by the petitioner in W.P.(MD)No. 4461/2008 and petitioner in W.P.(MD)No. 4465/2008 and respondent No. 2 in W.P.(MD)No. 4465/2008 and respondent No. 4 in W.P.(MD)No. 4461/2008 in equal proportion on or before 22nd May, 2008.
(iii) It shall be the duty of the Official Nominee and the Court appointed Observer to ensure free and fair election.
(iv) Any voter in possession of any of the following shall be permitted to vote:
(a) Photo Identity Card issued by the Nadar Mahajana Sangam.
(b) Photo Identity Card issued by the Election Commission of India / State Election Commission.
(c) Passport
(d) PAN Card issued by the Income Tax Department.
(e) Driving licence, containing the photograph of the driver.
(v) The identity, as per the above, is to be verified by the official nominee and the Court appointed Observer and in case of any dispute relating to identity, it can be decided by the official nominee, the Court appointed Observer and one representative of the Committee of the second respondent.
(vi) The official nominee is required to file a report regarding the election to the District Registrar, with a copy to the Registrar (Judicial) of Madras High Court, Madurai Bench.
(vii) The Court appointed Observer shall file a report regarding the election before the Registrar (Judicial) of Madras High Court, Madurai Bench.
(viii) Such reports shall be kept on record by the Registrar (Judicial) of Madras High Court, Madurai Bench and authenticated certified copy shall be made available to any of the parties on appropriate application.
(ix) The copies of the above directions shall be made available by the Registry to all the counsels appearing for the parties as well as Mr.R. Janakiramulu, learned Special Government Pleader.
(x) All the parties are directed to act on the basis of such directions. Connected M.Ps.are closed.