Madras High Court
The Tamilnadu Evangelical Lutheran ... vs Daniel Shanmugam .. Ist on 12 March, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Civil Revision Petition(MD).No.538 OF 2010 and M.P.(MD).Nos.2 and 3 of 2010 The Tamilnadu Evangelical Lutheran Church Represented by its present Secretary, E.D.Charles, Having office at Tranquebar House, Melaptuthur, Trichy. .. Petitioner/Ist respondent/Ist defendant Vs 1.Daniel Shanmugam .. Ist respondent/ petitioner/plaintiff 2.The Tamilnadu Evangelical Lutheran Church Represented by its President/Bishop Rt.Rev.Dr.H.A.Martin Having office at Tranquebar House, Melaputhur, Trichy. 3.Rev V.T.Samuel Thangaraj C.C.Member, 119, Clock Tower Church TELC Zone Church, Thanjavur Road, Trichy. 4.Rev.I.Thangaraj C.C.Member Pastor, TELC, 56, Chettipalayam road, Polanur. 5.P.E.Jeyaraj C.C.Member 25C, Tranquebar House, Trichy. 6.R.Benjamin Jayaraj C.C.Member, 4.2A, End Street, Sri nagar, Ramanathapuram, Coimbatore. 7.I.Premkumar C.C.Member, Head Master, U.C.Hr.Sec. School Madurai. 8.J.D.Wilson, C.C.Member No.30, Lingam Nagar, Kulimant Road, Maruthankurichi, Somarasam Pettai, Trichy. .. Respondents 2 to 8/respondents 2 to 8/ defendants 2 to 8 Prayer This civil revision petition is filed under Article 227 of the Constitution of India against the order dated 03.03.2010 in I.A.No.91 of 2010 in O.S.No.120 of 2010 on the file of the learned I Additional Sub Judge, Madurai. !For Petitioner ... Mr.Masilamani Senior Counsel ^For Respondents ... Mr.B.Saravanan for R1 Mr.C.Lawrance for R2 Mr.Issac Mohanlal for R3, R4, R5 and R7 Mr.VR.Shanmuganathan for R6 and R8 :ORDER
This civil revision petition has been preferred under Article 227 of the Constitution of India against an interim order passed by the learned I Additional Sub Judge, Madurai, in I.A.No.91 of 2010 in O.S.No.120 of 2010, dated 03.03.2010.
2. The first respondent in the interim application before the civil Court, who is also the first defendant, has filed the present revision petition.
3. The first respondent has filed a suit against the petitioner and others, challenging the notification issued by the first respondent, dated 28.01.2010, calling for the election of members to the Venerable Church Council for the 41st Triennium (2010-2013) for the period between 07.05.2010 to 06.05.2013. As per the said notification, which is challenged in the suit, a schedule for conduct of election has been issued which is as follows; *The first announcement of the convening of the P.Conference should be made on 14.02.2010 along with the Tentative Voters' List.
*The Final Voters' List should be prepared by the Pastorate Committee on 20.02.2010.
*The Second announcement should be made on 21.02.2010.
*The third announcement should be made on 28.02.2010.
*The Election should be conducted in the P.Conference on 07.03.2010.
*The results of the elections should be announced to the congregation members on 14.03.2010."
*Thereafter, there are further proceedings like no objections should be submitted with election results on or before 25.03.2010. Objections to be received by the Chairman Pastorate Committee from Pastorate Conference members.
*Declaration of the Church Fund Contributors is to be checked with the declaration made before the end of 31st March 2010.
*The number of Synod Delegates to be elected from each Pastorate will be intimated one month before namely 04.04.2010 and lastly the 41st Triennial Synod 2010-2013 to be held on for the purpose of election of members to the Venerable Church Council, declaration of results and for the installation of newly elected Church Council Members on 5th, 6th and 7th of May 2010.
4. The first respondent, as it is seen from the plaint filed before the trial Court, is aggrieved by the notification, which refers to conducting of election by way of amended bye-laws governing the petitioner society.
5. The petitioner is a registered Society under the Societies Registration Act XXI of 1860, a Central Act and after the advent of Tamil Nadu Societies Registration Act, it is deemed to be a Society under the Tamil Nadu Act. The constitution and function of the petitioner society is governed by the Church Rules. There were two bodies maintaining the petitioner Society namely Synod and Synod Continuation Committee (SCC). Under the Bye-law governing the petitioner society, it is seen that the Synod is the General Body of the Society which decides all matters concerning their general and spiritual welfare stated to be the sovereign legislative body of the Church.
6. On the other hand, the Synod Continuation Committee (SCC) consists of members from the Synod and also others. It is stated to be the general body of Tamil Evangelical Lutheran Church with various functions entrusted to it relating to the administration and legislative matters of the Church and various other activities.
7. It is seen that the activities of the Church which were maintained by the petitioner society was peaceful till the completion of the 38th Triennial Synod. It appears that only in the 39th Triennial Synod, which is the period between 2004-2007, certain disputes have started surfacing in the administration which resulted in various litigation and it is seen that due to the pendency of various cases, the Synod of the said 39th Triennial could not take charge for the specified period and ultimately it is stated that the 39th Triennial Synod has functioned only eight months, while for the remaining period, the administration was in the hands of Bishop.
8. Likewise it appears in the 40th Triennial Synod, which is the period between 2007-2010, there has been some litigations especially relating to construction of one of the Rules governing the Church as to whether a person could be an office bearer for more than two consecutive terms. The matter was ultimately taken to the High Court and taking note of the fact that various suits are filed in the State of Tamil Nadu, the High Court on its original side has taken all those suits into its file and ultimately a decision was arrived, as against which an appeal was filed in O.S.A No.388 of 2007 etc batch. The first bench of the principle seat of this Court, while holding that there is no bar for a person who has been holding office for consecutive two terms to have re-elected, while confirming the learned Single judge's order by which a scheme of election was prepared, has given revised date for the election of the Synod. The the Division Bench in his judgment, dated 06.03.2008, ultimately by framing a scheme of election has held as follows;
i) The Synod is always for a triennium and the consistency maintained from the first synod of 1887-1890 till the 39th synod of 2004-2007 should be maintained for the future years also except for any special Synod as provided under Rule 133.
ii)The 39th Triennial Synod ended in May 2007 and the 40th Triennial Synod should be for the period 2007-2010.
iii) The tenure of the Church Council should always synchronise with the Triennial Synod.
iv) The Church Council members are entitled to get re-elected any number of terms and Rule 117 (Note 2) which conflicts with section 15(5) of Tamil Nadu Societies Registration Act, 1975 cannot therefore operate.
v) The 40th Triennial Synod should be held as per schedule of dates prescribed in para 60 of this order.
vi) The first appellant-Bishop is directed to hold the 40th Triennial Synod and the election for the Church Council Members as per rules."
9. The said judgment of the Division Bench came to be confirmed by the Honourable Apex Court in the order dated 07.04.2008 confirming the revised schedule given by the Division Bench and directing the election process to continue from the stage which was left due to said litigation with a further direction to the Honourable Justice J.Kanagaraj (Retd), who was appointed as an Administrator by the order of the learned Single Judge, to continue to perform his function by completing the election. It is stated that in that process in the 40th Triennial also there has been some disruption in the Synod taking over all the full period of three years, with the result that the 40th Triennial Synod has functioning only for two years, the remaining one year period having been entrusted with the Bishop for administration. Now, it is for the 41st Triennial Synod, another legal battle has been commenced and the present suit filed in the trial Court appears to be one such incident.
10. The petitioner society appears to have resolved in its Synod Continuation Committee (SCC) in the year 2007 to have the bye-law of the society amended. That appears to be on the basis that there has been some objections from the Registrar of the Societies to the effect that as per the Bye-law governing the Society there appears to be two general bodies one in the name of Synod and another in the name of Synod Continuation Committee (SCC) and that is not permissible as per the provisions of the Tamil Nadu Societies Registration Act, that is evident from the fact that as early as in the year 2001, the Registrar of Societies, Tiruchirapalli has raised such objections. By the said order directing the Society to taking necessary steps so as to have the bye-laws as per the provisions of the Tamil Nadu Societies Registration Act, after certain communications with the registering authority, it appears that in the month of May, 2007 the Synod Continuation Committee (SCC) has resolved to amend the Bye-laws and after such resolution was made, amended Bye-law was presented before the registering authority in that year itself for registration as per the provisions of the Tamil Nadu Societies Registration Act.
11. The major change which appears to have been inducted by the amendment by removing the Synod Continuation Committee (SCC) as per the communication of the registering authority and in accordance with the provision of the Tamil Nadu Societies Registration Act. One of the bodies of the Petitioner's society namely Synod Continuation Committee (SCC) came to be dispensed with and the powers entrusted with the Synod Continuation Committee (SCC) has been vested with the Synod.
12. There is another major change in the bye-laws of the society. Under the original bye, the synod should meet once in three years and there was no provisions for having annual meeting. Under the Tamil Nadu Societies Registration Act conducting of annual meeting of the general body is a mandatory requirement and therefore it is stated that the amendment has been made to enable the synod of the society to convene annual general body meeting every year.
13. It appears that the registering authority with whom the amended bye- laws were submitted has not proceeded to act as per the provisions of the Tamil Nadu Societies Registering Act, even though a certified copy of the proposed amendment has been furnished to the parties. It was in those circumstances there are some communications to show that inasmuch as the period for the 41st Triennial was fast approaching, the petitioner by its letter dated 14.08.2009 addressed to the Registrar wanted a clarification as to whether the 41st Triennial proceedings should be conducted as per the amended bye-laws or as per the original bye-laws. In response to the said letter, the Registrar of the Societies in his reply dated 19.08.2009 has stated that as per the provisions of the Tamil Nadu Societies Registration Act, 1975 the amendment will have the effect from the date of passing of the amendment. In the said letter, the registrar has also stated that unless in the resolution amending the original bye-law, it is stipulated that the amendment would come into effect from the date of its registration, the amended bye-law is deemed to have given effect. The operative portion of the letter is as follows;
"rA;f bghJf;FGtpy; Jiztpjp jpUj;jk; Bkw;bfhz;L xg;g[jy; bgwg;gl;l ehs; KjBy Jiztpjp jpUj;jA;fs; mKYf;F bfhz;L tug;glyhk;.
Bkw;go jpUj;jA;fSf;F rl;lg{h;t mA;fPfhuk; bgwg;gl;l gpd;dBu mKYf;F tUk; vd;W jPh;khdk; epiwt[Btw;wg;gl;oUg;gpd; jhkjk; Vw;fg;gl;lhy; kl;LBk mKYf;F tUk;. vdBt Jiztpjpfs; bghJf;FGtpy; mA;fPfhuk; bgwg;gl;l epiyapy; mKYf;F bfhz;L tuyhk; vd;W bjspt[iu tHA;fg;gLfpwJ."
14. It is thereafter the petitioner has issued the election notification which is the subject matter of challenge before the civil Court. One factor which is relevant to be mentioned is that the Synod of the petitioner society consists apart from the Bishop and other eight members, which includes the Secretary who is the petitioner herein and the respondents 3 to 8 in this writ petition, who are all the defendants in the suit. It is not in dispute that either these respondents or the pastors holding the posts at the relevant point of time, when the resolution was passed making amendments to the bye-laws were consenting parties for such resolution. Even though such resolution came to be passed in May 2007, none of these respondents either have raised objections about such resolution or have approached the competent legal forum challenging the said resolution. Of course Mr.Issac Mohanlal, the learned counsel appearing for the respondents namely 3 to 5 and 7 would submit that there was no occasion for these respondents to challenge the resolution due to the reasons that as per the Tamil Nadu Societies Registration Act, 1975 the resolution would be operative only after the same is registered by the competent authority and inasmuch as it has not been registered so far, the rights of these respondents are still available as and when such registration certificate is issued. But, unfortunately that is not the issue to be decided in this case. The issue to be decided in this case is that at the time of filing the suit, when the election process has already commenced, whether the Court can restrain the election process to continue. While deciding about the prima facie case and balance of convenience, necessarily the Courts are expected to take into account the conduct of the parties dehors the other merits which may be ultimately decided by the civil Court. In this Case as far as these respondents are concerned, who are now raising their objections about the validity of the amendments which have been effected by way of resolution before 2 1/2 years ago, have never raised their voice against the consequential damage which are alleged to be caused to the Society by virtue of the amendments. As it is stated in the pleadings before the civil Court, as far as the first respondent who is the plaintiff in the suit, he is admittedly one among more than one lakh voters who have to decide in the election to be held for the 41st Triennial Synod as per the notification.
15. A reading of the plaint filed by the first respondent shows that the same has not been filed in a representative capacity. It is true that such permission to file or continue a suit in representative capacity under Order I Rule 8 CPC can be obtained at any point of time. As on today, the plaintiff in the suit namely the first respondent has filed the suit in his individual capacity as a voter. No where in the pleading, on the face of it, it reveals the plaintiff's right as a voter has been taken away nor is the case in the pleading that the rights of the other eligible voters are taken away. But the ground on which the suit has been laid is basically on the validity of the resolution namely amendments which were brought to the bye-laws. Even though the ultimate prayer in the suit is challenging the notification calling for election, the entire pleadings goes on in questioning the validity of the resolution. Whether such resolution has been passed in accordance with law or the bye-laws of the society are not, is a matter which has to be ultimately decided by the civil Court.
16. It is relevant to point out that the first respondent/plaintiff, who is one of the voters, has also chosen to wait after nearly more than one month after election notification was issued and after the election process has commenced just three days before the election he has filed the suit before the trial Court and the trial Court passed an order of injunction on 03.03.2010 restraining the petitioner herein from conducting the election on the basis of the notification dated 28.01.2010. The trial Court has granted the order on a prima facie finding that the elections are being conducted on the basis of an amendment which is not lawful. But the trial Court failed to take note of the fact that much before the Court passed the said order, election process has commenced as early as on 28.01.2010 by the notification. It is also relevant in this regard to refer to some of the averments made by the first respondent in the affidavit filed by him in the interlocutory application for injunction which would have prompted the learned trial Judge to pass the said order of injunction in this case. In the affidavit the first respondent has stated as if there are many cases pending against the said election notification and other Courts have granted order of interim injunction. As correctly pointed out by the learned counsel for the respondents 6 and 8, Mr.Shanmuganathan, who are also the other members governing the Society, in the affidavit the first respondent has chosen to state as if in O.S.No.196 of 2009, the District Munsif, Thirupathur has passed an order of injunction from implementing the notification dated 28.01.2010. It is also stated in the said affidavit that the District Munsif, Lalgudi in O.S.No.33 of 2001 has also granted temporary injunction from implementing the notification dated 28.01.2010. The relevant portion of the said affidavit filed by the first respondent is as follows;
"The co-option of Rev.M.D.Jayaraj was challenged by one of the members of the Society before the District Munsif of Thirupathur in O.S.No.196 of 2009 and after hearing both the parties and Learned Munsif was pleased to pass an order of injunction retraining the respondents/ defendants from implementing the notification No.1/2010 vide order dated 11.01.2010 in I.A.No.699 of 2009. In that way one among the members of the Lalgudi Pastorate Council filed a suit as against the respondents/defendants before the District Munsif of Lalgudi in O.S.No.33 of 2010 and obtained temporary injunction as against the respondents/defendantsfor conducting election by implementing the notification No.1/2010 dated 28.01.2010."
17. On the other hand, a reference to the said proceedings mentioned in the affidavit shows that I.A.No.699 of 2009 in O.S.No.196 of 2009 was finally disposed of by the District Munsif, Thirupathur by which a decree has been passed as against Rev.M.D.Jayaraj and the defendants 1 and 2 in the said suit, namely The Tamil Evangelical Lutheran Church by the Secretary E.D.Charles, the petitioner herein, and the Bishop, Tiruchy. The said order passed by the learned District Munsif, Thirupathur was not with reference to the said election notification. Again in respect of the other suit which has been referred to by the first respondent in the affidavit filed before the civil Court that in O.S.No.33 of 2010 on the file of the District Munsif, Lalgudi, the application filed in I.A.No.88 of 2010 against the Tamil Evangelical Lutheran Church represented by Rev.M.Rethinam, Lalgudi Region, while disposing of the said application, the learned trial Judge while accepting the stand of the third respondent that the notification cannot be stopped in respect of other regions, has restricted the order of injunction only in respect of the region under the control of the third defendant therein namely Lalgudi region. Therefore, on fact it is clear that the first respondent has not approached the trial Court in praying for an order of interim injunction with clean hands and certain wrong facts have been brought to the notice of the Court which would have prompted the learned trial Judge to grant the order of injunction.
18. Be that as it may, now that the law has been well settled that when election process has commenced, it is not for the Court to interfere except in cases where there are gross violation of rights of the voters being taken away. There is one other aspect to decide the balance of convenience at the first instance. As far as the first respondent/plaintiff is concerned, his right to take part in the election has not been taken away. Secondly even assuming that there has been some illegality committed in amending the bye-laws, it is not as if the first respondent is left in lurch. Ultimately the trial Court is entitled to go into the validity or otherwise of the resolution passed in respect of the amended bye-laws which were effected in May 2007 and if a conclusion is arrived at by the trial Court on appreciation of evidence and appreciation of various provisions of bye-laws that the basic structure of the church activities or the religious society is sought to be taken away, certainly the civil Court is entitled to declare that the elections conducted consequentially as null and void. It is not as if by such election certain illegalities or injustice has been caused to the administration of the Church as well as other institutions under its control.
19. As far as the respondents who are now opposing the amendment, certainly the trial Court has to decide as to whether by their conduct they are estopped from turning around against the amendment which was effected before 2 1/2 years ago in their presence for which they are consenting parties and ultimately while deciding about the validity or otherwise of the said amendments, the trial Court has to go into various other aspects and therefore unless and until the civil Court comes to such final decision, in my considered view it is not fair to scuttle the election process especially when the election process is half way through. As per the interim order passed by this Court election were directed to be conducted on 07.03.2010 and the results were directed to be kept in abeyance. As it is seen in the schedule the next step in the election process is to declare the result on 14.03.2010 followed by no objections and other procedures which I have narrated above and ultimately it is on the 05, 06 and 07th May, 2010, the Synod is going to be installed and in between that there are various procedure after the election which are given in the schedule. I do not see that any gross injustice going to be caused to anyone especially to the petitioner society as well as to the various institution which are stated to be under its control by allowing the election process to continue.
20. Mr.Issac Mohanlal, the learned counsel for the above said respondents in all eloquent force would contend that prima facie the amendments which are proposed in the year 2007 are not valid in the context of Section 12 of the Tamil Nadu Societies Registration Act, 1975. It is his submission that while the resolution would be given effect to from the date of passing, the validity is to be ascertained only after the registration of the said amendment. According to him, even if it is due to the fault on the registering authority, it cannot be presumed as if the the registration has already come into effect unless the provision explicitly provide such a deeming clause.
21. It is relevant to refer to Section 12 of the Tamil Nadu Societies Registration Act, 1975, which is as follows;
Amendment of memorandum and bye-laws:- (1) A registered Society may, by special resolution, amend the provision of its memorandum relating to the objects of the registered society so far as may be required to enable it-
(a) to carry on the administration of the registered society more economically or more efficiently; or
(b) to attain its main purpose by new or improved means; or
(c) to amalgamate with any other registred society; or
(c) to divide itself into two or more societies.
(2) A registered society may, by special resolution, amend its bye-laws. (3) An amendment of the memorandum or the bye-laws shall be registered and on such registration shall take effect from the date of the passing of such special resolution.
(4) If the Registrar is satisfied that any amendment of the memorandum or the bye-laws is not contrary to the provisions of this Act, or the rules made thereunder, he may register the amendment. When the Registrar registers an amendment of the memorandum or the bye-laws, he shall issue to the registered society a copy of the amendment certified by him, which shall be conclusive evidence that the amendment has been duly registered.
22. A combined reading of Section 12(3) and 12(4) of the Tamil Nadu Societies Registration Act, 1975 would make it clear that registration is a statutory requirement for the purpose of amending bye-law, but when the statutory requirements are complied with, the resolution is given effect from the date of its passing. After the amended bye-law is presented to the registering authority, the registrar has a legal obligation to find out as to whether the proposed amendment of bye-laws are contrary to the provisions to the Act and Rules made thereunder. Therefore, if and when the registering authority raised objections to the proposed amendment on the grounds it is contrary to the provisions of the Act and rules, certainly the proposed amendment cannot be given effect. As long as such objections are not raised by the registering authority, when the proposal for registration of the amendment is pending for long years, it cannot be said that the proposed amendment cannot be give effect to, if it is not contra to the provisions of the Tamil Nadu Societies Registration Act, 1975 and the rules made thereunder. The combined effect of Section 12 (3) and 12(4), in my considered view means that unless and until the registering authority raises objections to the validity of the proposed amendment, on the ground that it is contra to the provisions of the Tamil Nadu Societies Registration Act, 1975 and Rules made thereunder, any act done by the Society in the interregnum period cannot be said to be invalid merely because the formality of registration has not been complied with. A combined reading of Section 12(3) and 12(4) of the Act makes it clear that the law makers intended to give more weightage on the authorities who have passed the resolution on the presumption that any society will not go against its interest. If any Society decided to go against its interest, there is a check created in the said provision. These are the things which are to be gone into by the trial court after appreciation of evidence and so on.
23. A close scrutiny of the various judgments relied upon by Mr.Issac Mohanlal would show that they are all cases where the voters power were taken away and the voter list where in question and it was in those circumstances, the Honourable Supreme Court has clearly laid down that when the voters power are taken away in the election, election cannot be allowed to be continued. On the factual matrix which has been discussed in this case, it is only the bye-laws in respect of which the validity or otherwise are yet to be decided by the trial Court. Therefore, it is not possible to accept the contention of the learned counsel for the respondents that the election process should be scuttled.
24. In such view of the matter, the civil revision petition stands allowed and the order of the learned trial Judge in I.A.No.91 of 2010 in O.S.No.120 of 2010 stands set aside with permission to the petitioner to proceed with the election process, however, making it clear that such election would be subject to the result of the final decision which may be arrived at by the Civil Court in O.S.No.120 of 2010. Consequently, the connected miscellaneous petitions are closed.
25. Taking note of the fact that the 41st Triennial Synod is to take charge on 5th, 6th and 7th of May 2010, I am of the considered view that in order to put an end to this controversy since it relates to not only the religious activities of the petitioner society but also various educational institutions in its control, the Civil Court should take up the suit immediately and decide expeditiously by giving top priority to the suit and accordingly, the I Additional Sub Judge, Madurai is directed to take up the O.S.No.120 of 2010 and decide the same after giving opportunity to all the parties concerned, within a period of three months from the date of receipt of a copy of this order.
26. This Court would place on record the persuasiveness of Mr.Masilamani, the learned Senior Counsel appearing for the petitioner, Mr.B.Saravanan the learned counsel for the first respondent, Mr.C.Lawrance the learned counsel for the second respondent, Mr.Issac Mohanlan the learned counsel for the respondents 3 to 5 and 7 and Mr.VR.Shanmuganathan the learned counsel for the respondents 6 and 8, but for whose cooperation it would have been difficult to conclude this case in such a short span of time.
JIKR To I Additional Sub Judge Madurai.