Madras High Court
Ms.D.Prasanna vs A.B.Fathima Sulthanam on 5 May, 2011
Author: R.Banumathi
Bench: R.Banumathi, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.05.2011
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
O.S.A.Nos.115, 116, 124 and 139 of 2011
and M.P.Nos.1, 1 & 1 of 2011
O.S.A.No.115 of 2011
1. Ms.D.Prasanna
Advocate,
No.364 , New Additional Law Chambers,
High Court Buildings,
Chennai 600 104.
2. Ms.V.Alamelu,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
3. Ms.G.Kavitha,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
4. Ms.R.Vidya,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai. ..Appellants
Vs.
1. A.B.Fathima Sulthanam
W/o E.Gulab,
No.17, III Floor, Sivasankaran Apartmetns,
Sivasanakaran Salai, Teynampet,
Chennai 600 018.
2. The Women Lawyers Association,
represented by its Secretary,
High Court Buildings,
Chennai 600 104.
3. S.Thamizharasi,
Advocate,
No.301, New Law Chambers,
High Court Buildings,
Chennai 600 104.
4. Ms.V.Nalini
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai 600 104.
5. Ms.N.Beulah John Selvaraj,
Advocate,
No.333, New Additional Law Chambers,
High Court Buildings,
Chennai 600 104.
6. Ms.G.V.Shoba,
Advocate,
No.78, Additional Law Chambers,
High Court Buildings,
Chennai 600 014.
7. Ms.S.Suseela Devi,
Advocate,
Women lawyers Association,
High Court Buildings,
Chennai.
8. Ms.K.Nandini,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
9. Ms.J.Sundara Kanchani,
Advocate,
No.157, New Law Chambers,
High Court Buildings,
Chennai.
10. Ms.D.Mary Rose Poongothai,
Advocate,
Women lawyers Association,
High Court Buildings,
Chennai. ..Respondents.
Prayer in OSA.115 of 2011:
Appeal filed under Order XXXVI Rule 9 of O.S.Rules read with Clause 15 of the Letters Patent against the Order and Decree dated 9.4.2011 passed in O.A.No.330 of 2011 in C.S.No.243 of 2011.
For Appellants : Mr.N.G.R.Prasad
for M/s. Row and Reddy
For Respondents : Mr.V.Raghavachari
for M/s. Nesreen banu for R1
Mrs. Chitra Sampath for R2 & R4
Mr.V.Prakash, Senior Counsel
for Ms.V.Vanitha for R3
Ms.D.Nagasaila for R5
Mr.T.V.Ramanujam, Senior Counsel
for Mr.M.A.Srinivasan for R6
Mrs.V.J.Latha for R8
No appearance for R7, R9 & R10.
O.S.A.No.116 of 2011
1. The Women Lawyers Association,
rep. by its Secretary,
High Court Buildings,
Chennai.
2. Ms.V.Nalini,
Advocate
Women Lawyers Association,
Additional Law Chambers,
High Court Buildings,
Chennai 600 104. ..Appellants
Vs.
1. A.B.Fathima Sulthanam
W/o E.Gulab,
No.17, III Floor, Sivasankaran Apartments,
Sivasanakaran Salai, Teynampet,
Chennai8 600 018.
2. Ms.D.Prasanna
Advocate,
No.364 , New Additional Law Chambers,
High Court Buildings,
Chennai 600 104.
3. S.Thamizharasi,
Advocate,
No.301, New Law Chambers,
High Court Buildings,
Chennai 600 104.
4. Ms.N.Beulah John Selvaraj,
Advocate,
No.333, New Additional Law Chambers,
High Court Buildings,
Chennai 600 104.
5. Ms.G.V.Shoba,
Advocate,
No.78, Additional Law Chambers,
High Court Buildings,
Chennai 600 014.
6. Ms.V.Alamelu,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
7. Ms.G.Kavitha,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
8. Ms.S.Suseela Devi,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
5. Ms.V.Nalini
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai 600 104.
10. Ms.R.Vidya,
Advocate,
Women Lawyers Association,
High Court Buildings,
Chennai.
11. Ms.Sundara Kanchani,
Advocate,
No.170, New Law Chambers,
High Court Buildings,
Chennai.
12. Ms.Mary Rose Poongothai,
Advocate
Women Lawyers Association,
High Court Buildings,
Chennai. ..Respondents.
Prayer in O.S.A.No.116 of 2011:
Appeal filed under Order XXXVI Rule 9 of Original Side Rules read with Clause 15 of Letters Patent against the order and decree dated 9.4.2011 made in O.A.No.330 of 2011 in C.S.No.243 of 2011.
For Appellants : Mrs.Chitra Sampath
For Respondents : Mr.V.Raghavacnari
for Ms.M.Nasereen Banu for R1
Mr.N.G.R.Prasad
for M/s. Row and Reddy
for R2, R6, R7 and R10.
Mr.V.Prakash, Senior Counsel
for Ms.V.Vanitha for R3
Ms.D.Nagasaila for R4
Mr.T.V.Ramanujam, Senior Counsel
for Mr.M.A.srinivasan for R5
Mrs.V.J.Latha for R9
No appearance for R8, R11 & R12.
O.S.A.No.124 of 2011
1. T.Jeyasudha,
W/o Thulasiraman,
No.B-1, 5th Main road Thirumalai Nagar,
Asthinapuram, Chrompet
Chennai 600 044.
2. Magesh Sheela,
Women Lawyers Association,
High Court,
Chennai.
3. S.Punitha,
D/o Shanmugam,
Women Lawyers Association,
High Court , Chennai.
4. L.Vijayalakshmi,
D/o D.Loganathan,
No.10, S.R.Koil Street,
Periyakuppam,
Thiruvallur.
5. B.Arthi,
D/o Bhaskaran,
No.31, Dr.Ambedkar Street,
Arumbakkam,
Chennai 600 106.
6. T.Malathy,
D/o S.V.Thanikachalam,
No.3/33, Dr.Ambedkar Main Road,
Cholavaram,
Chennai 600 067. ..Appellants.
-Vs-
1. Women Lawyers Association,
rep. By its Secretary,
1st Floor, Additional Law Chambers,
High Court, Chennai.
2. Ms.V.Jeya Rohini,
Member,
Women Lawyers Association,
High Court Building,
Chennai 600 104. ..Respondents.
Prayer in OSA.124 of 2011:
Appeal filed under Order XXXVI Rule 9 of O.S.Rules R/w Clause 15 of Letters Patent against the order dated 9.4.2011 made in Application No.1805 of 2011 in C.S.no.215 of 2011.
For Appellants : Mr.S.R.Rajagopal
for Mr.V.Anil Kumar
For Respondents : Mrs.Chitra Sampath for R1
Mr.S.Prabhakaran for R2
for Mr.R.Annamalai
O.S.A.No.139 of 2011
Ms.V.Jeya Rohini,
Member,
Women Lawyers Association,
High Court Building,
Chennai 600 104. ..Appellant
-Vs-
The Women Lawyers Association,
rep. By its Secretary,
First Floor, Additional Law Chambers,
High Court,
Chennai 600 014. ..Respondent
Prayer in OSA.No.139 of 2011
Appeal filed under Order XXXVI Rule 1l of Original Side Rules read with Clause 15of Letters Patent Act against the order and decretal order dated 9.4.2011 made in Application No.1805 of 2011 in C.S.No.215 of 2011.
For Appellant : Mr.S.Prabhakaran
for Mr.R.Annamalai
For Respondent : Mrs.Chitra Sampath.
COMMON JUDGMENT
(The judgment of the Court was delivered by V.PERIYA KARUPPIAH.,J.) 1. (a) O.S.A.No.115 of 2011 This appeal is directed against the order passed by the learned single Judge in A.No.330 of 2011 in C.S.No.243 of 2011 along with A.Nos. 1805 of 2011 in C.S.No.215 of 2011 and A.Nos. 331 and 1910 of 2011 in C.S.No.243 of 2011 by respondents 2, 7, 8 and 11 (defendants 2, 7 8 and 11 in the suit).
(b) O.S.A.No.116 of 2011This appeal is directed against the order passed by the learned single Judge in A.No.330 of 2011 in C.S.No.243 of 2011 along with A.Nos. 1805 of 2011 in C.S.No.215 of 2011 and A.Nos. 331 and 1910 of 2011 in C.S.No.243 of 2011 by the first respondent (first defendant).
(c) O.S.A.No.124 of 2011This appeal is directed against the finding in paragraph 23(c) of the order passed by the learned single Judge in A.No.1805 of 2011 in C.S.No.215 of 2011 along with A.Nos. 331 and 1910 of 2011 in C.S.No.243 of 2011 by the appellants who were the parties sought to be impleaded in the suit.
(d) O.S.A.No.139 of 2011This appeal is directed against the order passed in A.No.1805 of 2011 in C.S.No.215 of 2011 along with A.Nos. 331 and 1910 of 2011 in C.S.No.243 of 2011 by the applicant/plaintiff.
2. All the four appeals have been preferred by the parties to the application in A.No.1805 of 2011 in C.S.No.215 of 2011, O.A.Nos.330 of 2011 and 331 of 2011 and A.No.1910 of 2011 in C.S.No.243 of 2011.
3. The suit in C.S.No.215 of 2011 was filed by the applicant/plaintiff in A.No.1805 of 2011 for certain reliefs as stated in the plaint. The first defendant is the Women Lawyers Association, a Society registered under the provisions of Tamil Nadu Societies Registration Act and its registration number is 65/1990 which would be referred as W.L.A. hereinafter for convenience sake.
4. The object of W.L.A. is to promote rights and welfare of the women and children through legislation and also to advise them in exercise of their rights and to maintain rights and privilege of the women lawyers. The said W.L.A. is governed by bye-laws of the Association which was formed on 14.01.1990. Any women lawyer/law graduate/law student is eligible to become its member. The women lawyers who are practising in law are qualified as ordinary members. Women law graduates and women law students who become the members of W.L.A. are considered as associate members. The said ordinary members alone have the right to vote and to contest the election of office bearers of the Association. The particulars of office bearers to be elected from its ordinary members and the rules governing the election and the Annual General Meetings to be conducted for the said W.L.A. and the system of removing the members are enunciated in its bye laws. The election to the Executive Committee which consists of President, Vice-President, Secretary, Treasurer, Librarian and five Committee Members would be done in the month of April biannually.
5. The aforesaid suit in C.S.No.215 of 2011 was filed by a member of the W.L.A. who also filed an application in A.No.1805 of 2011 to appoint two independent respectable Election Officers to conduct the election of Executive Committee Member of W.L.A. during the month of April 2011 as decided by the said Association. According to the plaint filed by the plaintiff in C.S.No.215 of 2011, the election for the Office bearers of W.L.A. was likely to be held on 20.04.2011 and the nomination of two Election Officers in an extra ordinary General Body meeting convened on 28.02.2011 was in contravention of certain important requisites of convening the General Body Meeting. The reliefs sought for by the applicant in C.S.No.215 of 2011 are as follows:
(i) declaring that the resolution dated 28.02.2011 passed by the General Body of the defendant association, appointing two election officers namely (1) Ms. Sundara Kanchana and (2) Miss.Mary Rose Poongothai, for the election of executive committee members of the defendant association, scheduled to be held on 20.04.2011 is null and void and non-est in law.
(ii) appointing two Independent and respectable election officers, from the members of the defendant association, to conduct the election for the executive committee members of the defendant association, scheduled to be held on 20.04.2011.
(iii) granting such other reliefs or relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iv) and awarding the costs of the suit and thus render justice.
6. At the time of filing the said suit, a permission petition was filed in A.No.1804 of 2011 for prosecuting the suit in a representative capacity under Order 1 Rule 8 C.P.C. and the learned single Judge has granted permission to the request of the applicant/plaintiff in A.No.1804 of 2011. As said already the applicant/plaintiff had filed the Application in A.No.1805 of 2011 seeking for appointment of two independent and respectable election officers from the members of the respondent Association (WLA) to conduct the election for Executive Members of the respondent Association scheduled to be held on 20.4.2011, pending disposal of the suit.
7. However yet another suit was filed in C.S.No.243 of 2011 by another member of W.L.A. against the W.L.A. and its Office bearers and the Election Officers appointed to conduct election on 20.04.2011 and for certain reliefs. The plaintiff, in the said suit, being an ordinary member of the said Association has raised several grounds apart from the grounds mentioned in the earlier suit filed in the representative capacity for the following reliefs.
"(a) For a declaration that the Annual general Meeting held on 28.02.2011 notifying the election to be held, to elect the office bearers of 1st defendant Association/Society for the period 2011-2013 as invalid, being in contravention of the bye-laws of the 1st defendant society.
(b) Consequently to grant an order of injunction restraining the defendants 1, 12 and13 from conducting the Election for the 1st defendant Association pursuant to the Annual General Meeting held on 28.02.2011 for the period 2011-2013 to be held on 20.04.2011.
(c) Consequently to grant an order of injunction restraining the defendants 2 to 11 from functioning and discharging their duties and powers as the Office Bearers of the 1st defendant Association.
(d) to frame a scheme, regarding scrutiny of new members who have not completed 3 years of membership in Women Lawyers Association and non-resident members and
(e) to pass such further or other orders and render justice."
8. The said plaintiff has filed three applications in O.A.No.330 of 2011, 331 of 2011 and A.No.1910 of 2011 for the respective reliefs of (i) an order of ad-interim injunction restraining the respondents 12 and 13 (Election Officers appointed for conducting election on 20.4.2011) from conducting the election of the first respondent Association -W.L.A. for the period 2011-2013 to be held on 20.04.2011 till the disposal of the suit; (ii) to grant an order of interim injunction restraining the respondents 2 to 11 (Office bearers of the first respondent Association W.L.A.) from interfering with the activities of the first respondent Association - W.L.A., till the disposal of the suit; and (iii) to appoint two Commissioners to maintain the accounts and to look after the day today affairs of the first respondent Association, till the disposal of the suit.
9. All the four applications were taken up by the learned single Judge and after hearing the arguments of all the parties, the learned single Judge had dismissed O.A.No.331 of 2011 and A.No.1910 of 2011 in C.S.No.243 of 2011 and had passed a restricted order jointly in A.No.1805 of 2011 in C.S.No.215 of 2011 and O.A.No. 330 of 2011 in C.S.No.243 of 2011. No appeal has been preferred against the dismissal of the injunction application filed against the Office bearers of W.L.A. in O.A.No.331 of 2011 and also against the order of dismissal passed in A.No.1910 of 2011, an application to appoint the Commissioner to conduct the day-to-day administration of the first respondent Association (WLA). The appeals have been directed only upon the orders passed in A.No.1805 of 2011 in C.S.No.215 of 2011 and O.A.No.330 of 2011 in C.S.No.243 of 2011.
10. Learned single Judge had passed orders in A.No.1805 of 2011 in C.S.No.215 of 2011 and O.A.No.330 of 2011 in C.S.No.243 of 2011, with the following directions.
"(a) Mrs.Hema Sampath, Senior Advocate, 55 Law Chambers, is appointed as the Election Commissioner to monitor, supervise and conduct the elections to the Women Lawyers' Association. She shall be assisted by a Committee of 3 members viz., (i) Mrs.Sudha Ramalingam; (ii) Mrs.AL.Ganthimathi; and (iii) Ms.P.T.Asha, Advocates.
(b)The Election Commissioners appointed by the Association shall hand over the files containing the applications of newly enrolled members along with the proofs submitted by them, to the Election Commissioner. The 24 receipt books handed over by the Election Commissioners in Open Court, shall also be taken by Mrs.Hema Sampath, the Election Commissioner.
(c)The Election Commissioner and the Committee appointed above, shall scrutinise all the Application Forms of newly enrolled members and shall also scrutinise the receipt books and find out how many of them have been duly and properly enrolled in accordance with the bye-laws and how many of them have been improperly enrolled in violation of the bye-laws.
(d) The Secretary of the Association shall hand over to Mrs.Hema Sampath, Election Commissioner, the list of eligible voters already prepared by the Association. The Secretary shall also take 4 xerox copies of such lists and hand over them to Mrs.Hema Sampath.
(e) The xerox copies of the voters list handed over by the Secretary, shall be displayed in all the four Notice Boards of the Association along with a notice inviting objections from persons, about (i) the wrongful deletion of the names of any persons; (ii) the wrongful inclusion of the names of any persons; and (iii) any discrepancies if found. The notice issued by the Election Commissioner appointed herein and pasted in all the four Notice Boards shall clearly indicate that objections are to be filed with the Election Commissioner, within one week from the date of publishing of the notice. The notice may also indicate that the objections need not be confined to the individual grievances of the members lodging the objections, but may also be in respect of the wrongful inclusion or exclusion of the names of others, so that the correctness of the list of eligible voters could really be to be tested.
(f) The Election Commissioner and the Committee appointed herein shall start scrutiny of the Application Forms of new members and find out the genuineness of the applications submitted by them, the genuineness of the document of proof enclosed to the application and find out whether such persons were eligible to be admitted as members.
(g) The final list of voters may be published by the Election Commissioner and the Committee, on or before 30.04.2011.
(h) The revised election schedule shall be as follows:-
(1) Dates for filing nominations - 8th and 9th of June 2011.
(2) Date for withdrawal of nominations 10.06.2011.
(3) Date for publishing the list of eligible contestants 13.6.2011.
(4) Date of the election shall be - 16.06.2011.
(5) Date of counting shall be 18th and 19th June 2011.
(6) Date of declaration of results- 19.06.2011.
(i) The Election Commissioner shall also examine the complaints with regard to the en masse payment of subscriptions by the present office bearers and submit a report, on or before 25.4.2011, so that the action to be taken on these complaints could be examined before the date of filing of the nominations."
11. The appellant in O.S.A.No.115 of 2011 was aggrieved over the appointment of the Election Commissioners as directed in the order made in paragraphs 23(a) to (f). The appellant in O.S.A.No.116 of 2011 was aggrieved by the order passed by the learned single Judge in O.A.No.330 of 2011 in C.S.No.243 of 2011 as detailed in paragraph 23.
12. However, the appellant in O.S.A.No.124 of 2011 was aggrieved by the order of the learned single Judge which is directed in paragraph 23(c). The appellant in O.S.A.No.139 of 2011 was aggrieved against the order passed in A.No.1805 of 2011 in C.S.No.215 of 2011.
13. Therefore, we could see that the appellants in O.S.A.Nos. 115 and 116 of 2011 are sailing on the same boat whereas the appellants in O.S.A.No.124 of 2011 has supported the case of the appellants in O.S.A.No.115 and 116 of 2011 but required modification only in respect of paragraph 29(c) of the order. The appellant in O.S.A.No.139 of 2011 is entirely in a different stand which against the disallowing the relief made in A.No.1805 of 2011.
14. The foremost points emerged for discussion and for conclusion would be as to whether the Extraordinary General Meeting (E.G.M.) held on 28.02.2011 by the W.L.A. is in accordance with bye-laws governing the convening of meetings and a valid one. Incidentally, it is also to be seen whether it would confirm to the provisions of the Tamil Nadu Societies Registration Act. Even if the said Extraordinary General Meeting held on 28.2.2011 is a valid one, we have to find out as to whether the Returning Officers appointed by the general body held on 28.02.2011 were hand picked and are biased and whether they could be put in charge to conduct the election. Further, it is also to be seen whether there was any mal-practice or irregularity in the course of inclusion of members to the W.L.A. and any practice has been adopted by the Office bearers in paying the money and collecting the receipts in en bloc and the en masse inclusion of members was with the intention of gathering of votes in their favour. Further, whether the swelling of applicants for en masse enrolment in the Society W.L.A. would affect the election for the Executive Committee Members of W.L.A.
15. Furthermore, we have to decide as to whether the learned single Judge was justified in appointing Senior Counsel Mrs.Hema Sampath as the Election Commissioner and the three Committee Members viz., Mrs.Sudha Ramalingam, Mrs.AL.Ganthimathi and Ms.P.T.Asha for assisting the Election Commissioner in the place of Election Officers appointed by Extraordinary General Meeting of W.L.A.
16. Mr.N.G.R.Prasad, learned counsel appearing for the appellant in O.S.A.No.115 of 2011 would submit in his arguments that the General Body was convened on 28.02.2011 on the resolution passed by the Executive Committee held on 27.1.2011 and in the said General Body Meeting the Election was scheduled to be conducted on 20.4.2011 and the Election Officers were also elected in a democratic way and thus, two Election officers were elected in the General Body and were appointed and the election process started from the date of the said General Body Meeting held on 28.2.2011 and it has to go on on and there cannot be any disturbance to the election which was decided by the General Body of W.L.A. held in accordance with its bye laws. He would also submit in his arguments that there was no dispute that the General Body Meeting held on 28.2.2011 and the plaintiff in C.S.No.215 of 2011 herself had participated in the said meeting and in her presence the Election Officers were elected and were appointed by the General Body and the relief sought for, by the said plaintiff as applicant in A.No.1805 of 2011 for appointment of some other two independent persons to conduct the election after declaring that the General Body held on 28.2.2011 was null and void, cannot be ordered. He would also submit that the relief sought for, by the said applicant is mutually contradictory and the plaintiff in C.S.No.215 of 2011 had suppressed the fact that she participated in the said General Body Meeting held on 28.02.2011 and therefore, the relief sought for, by her need not be granted. He would also submit that the learned single Judge had appointed Mr.Hema Sampath, learned senior counsel as Election Officer for conducting the election and three Election Committee Members namely Mrs.Sudha Ramalingam, Mrs.AL.Ganthimathi and Ms.P.T.Asha to assist the Election Commissioner cannot be sustained because the Election Officers elected by the General Body were replaced for no fault of theirs by the learned single Judge and therefore, the order passed by the learned single Judge cannot be sustained. He would also refer to the contents governing the election of an Executive Committee of W.L.A. in Bye law No.20. He would also submit that the appointment of two Returning Officers would be sufficient if the Executive Committee had appointed them but in this case, the General Body itself had elected as in the previous year and therefore, the Election Officers who had obtained highest votes were appointed and therefore, it cannot be simply set aside by the learned single Judge. He would draw the attention of the Court that the General Body was convened on the basis of the resolution passed by the Executive Committee Meeting held on 27.1.2011 and it was immediately put up in the Notice Boards on 28.1.2011 of W.L.A and more than 21 days notice was given for the said General Body Meeting and it is valid in terms of Rule 21 of the bye laws of W.L.A. as well as the General Rules for convening the General Body Meeting under Rule 19 of the Bye-laws. He would further submit that there was no evidence to show that the Election Officers are hand picked and close friends of the present President and therefore, there is no necessity to deny them with the duty entrusted by the Extraordinary General Body of W.L.A.
17. Supporting the arguments advanced by Mr.N.G.R. Prasad, learned counsel appearing for the appellant in O.S.A.No.115 of 2011, Mr.Chitra Sampath, learned counsel for the appellant in O.S.A.No.116 of 2011 would submit in her arguments that for convening an Extraordinary General Meeting, the approval of the Executive Committee would be sufficient and accordingly, the Executive Committee Meeting was convened on 27.01.2011 and it had passed a resolution to convene the Extra-ordinary General Meeting on 28.02.2011 and proper notice was affixed in the Notice Board of W.L.A. and the same was also published in Dinakaran Newspaper as new item. Therefore, the Extra-ordinary General Body Meeting convened on 28.2.2011 was a valid one and nobody denied that there was General Body Meeting convened on 28.02.2011. She would further submit that even otherwise the applicant in A.No.1805 of 2011 in C.S.No.215 of 2011 namely Mrs.Jeya Rohini attended the said meeting and she subscribed her signature in Serial No.61 and she has not endorsed any other contradictory intention against the resolution passed in the General body and therefore she is estopped from contending that there was no notice given to such General Body Meeting and that the said General Body Meeting was not a valid one. She would also submit in her arguments that the plaintiff in C.S.No.215 of 2011 and the plaintiff in C.S.No.243 of 2011 have filed the respective suits only on 28.03.2011 and 30.3.2011 respectively, long after they themselves participated in the election process, collecting the subscriptions from their prospective voters and had accepted the course of election but after finding that they would not be successful in the election had come forward with these suits with evil designs. She would also submit that the conduct of election was handed over to the Election Officers appointed by the General Body as decided in the Extraordinary General Meeting held on 28.2.2011 by conducting an election in the General Body Meeting itself and accordingly, the present Election Officers were elected on getting highest two ranks in securing votes. Therefore, she would also request the Court that the appointment of Election Commissioner by the learned single Judge would intervene the election and selection of the Returning Officers in a democratic way and therefore, it cannot be sustained. She would further submit that the collection of subscription was done by everybody in order to facilitate the members to pay their arrears by collecting the money from them and it was not done by the Office bearers only as mentioned by the learned single Judge. She would also request the Court to go through the receipt book and the application forms produced by the Election Commissioner appointed by the learned single Judge before this Court and to decide. She would further submit that the Extra ordinary General Body was found to have been in accordance with the bye laws and the provisions of Tamil Nadu Societies Registration Act, by the learned single Judge but the plaintiff in C.S.No.215 of 2011 having participated, had filed the appeal in O.S.A.No.139 of 2011 questioning the said General Body Meeting, which is not sustainable. Therefore, she would request the Court that the reasons assigned by the learned single Judge in respect of the validity of the Extra-ordinary General Body Meeting may be found correct and the contentions raised by the plaintiffs in C.S.No.215 of 2011 and the appellants in O.S.A.No.124 of 2011 may be rejected.
18. Per contra, Mr.S.Prabhakaran, learned counsel appearing for the appellant in O.S.A.No.139 of 2011 would submit in his argument that the General body meeting convened by the Society (W.L.A.) on 28.02.2011 is not legally sustainable. He would further submit that the bye laws of W.L.A. would disclose that the Returning Officers would have been appointed by the Executive Committee and therefore, it is an exclusive domain of the Executive Committee as per Clause 20(b) of the Bye-laws of W.L.A., but said Executive Committee instead of exercising its power, delegated the said power to the General Body of the Society (W.L.A.) and the legal requirements as per the bye laws were not followed in respect of the Extra ordinary General Body Meeting. He would also submit that Section 28(3) of the Tamil Nadu Societies Registration Act 1975 mandates the compliance of procedures as envisaged under section 26(3) of the said Act but all those requirements were not fulfilled in the convening of the Extra-ordinary General Body Meeting on 28.2.2011. He would also submit that the place, object of the meeting, day and time of the meeting should have been specified in the said notice. He would also submit that if really any particular member are about to be appointed as Returning Officers, the said subject should have also been notified in the notice and therefore, the appointment of two Returning Officers in the General Body meeting dated 28.2.2011 is patently illegal and unsustainable in law since the same is in violation of section 26(3) of the said Act. He would further submit that the reasons given by the learned single Judge that the said two officers appointed by the General Body were not made as the parties and therefore, the appointment of those two persons as Returning Officers cannot be sustained, for the reason that the suit itself was filed by the plaintiff (C.S.No.215 of 2011) in a representative capacity and it was allowed by the learned single Judge in his order made in A.No.1804 of 2011. He would also submit that the said Returning Officers were brought before the Court in the connected suit and applications and their response was also elicited by the learned single Judge and therefore, their absence in the suit i.e., C.S.No.215 of 2011 will not pave way to disallow the claim of the plaintiff. He would also submit that the said Returning Officers and the Office bearers of the Association -W.L.A. did not file any application to implead themselves in the suit filed by the plaintiff, in the representative capacity. He would therefore, argue that no order could be passed against the two Returning Officers in their absence and any order would not sustain. He would also submit that the request of the appellant/plaintiff in A.No.1805 of 2011 ought to have been accepted in toto and two independent and respectable Election Officers from the members of the respondent Association (W.L.A.) should have been appointed to conduct the election for Executive Committee members of the respondent association scheduled to be held on 20.4.2011. Therefore, he would request the Court to allow the appeal and thereby to allow the application filed by the applicant in A.No.1805 of 2011 after setting aside the findings in the order passed by the learned single Judge.
19. Mr.V.Raghavachari, learned counsel appearing for the first respondent/plaintiff in C.S.No.243 of 2011 would submit in his argument that the General Body Meeting convened on 28.02.2011 was not in conformity with the provisions of Tamil Nadu Societies Registration Act and the election notification was not published in accordance with the bye laws. He would further submit that the proceedings of the Association (W.L.A.) were conducted as per the bye-laws of the Association. He would also submit in his arguments that notice was not properly given for the Extraordinary General Meeting according to Sections 26(3) and 28 of the Tamil Nadu Societies Registration Act, the Rule 28 which would show that the rules applicable to Annual General Meeting would apply to the Extraordinary General Body Meeting also . He would further submit that the method of giving notice for such convening of General Body Meeting is enunciated under section 25(2) of the said Tamil Nadu Societies Registration Rules and such mode of giving notice was not adopted for the Extraordinary General Meeting convened on 28.2.2011 and therefore, the election process said to have been commenced from the date of such meeting has not begun at all and therefore, the Returning Officers said to have been appointed in the said General Body Meeting are also not sustainable. He would also draw the attention of the Court to the judgement of this Court reported in 2001 (3) CTC 486 (R.Karuppan, Advocate v. P.K.Rajagopal, Secretary, Advocates' Assocation, High Court ) in support of his arguments. He would further submit that reasonable persons were appointed to scrutinise the nominations and the election to be conducted by W.L.A. and therefore, there is no harm in upholding the learned single Judge's order in not entrusting the Returning Officers appointed by the Extra-ordinary General Body Meeting held on 28.2.2011, to conduct the elections .
20. Learned Senior Counsel Mr.V.Prakash who appears for the third respondent/ third defendant Mrs. S.Thamilarasi, the Vice-President of the Association and Mrs.Nagasaila, learned counsel appearing for the 5th respondent/5th defendant Treasurer of the Women Lawyers Association who have not seriously contested in respect of the convening of Extraordinary General Meeting.
21. Mr.S.R.Rajagopal, learned counsel appearing for the appellants in O.S.A.No.124 of 2011 had advanced arguments in different points and has not seriously questioned the convening of Extraordinary General Meeting held on 28.2.2011.
22. We have considered the submissions of the learned counsel appearing for the parties with regard to the point as to the validity of the Extraordinary General Meeting held on 28.2.2011.
23. It is no body's case that an Extraordinary General Meeting was not held on 28.02.2011 or without conducting the General Body Meeting, it was resolved to conduct the election for the Executive Committee of the Association- Women Lawyers' Association on 20.04.2011 and the Returning Officers Ms.Sundara Kanchani and Miss.Mary Rose Poongothai were appointed by the Officer Bearers of Women Lawyers' Association. The minutes of the Extraordinary General Meeting held on 28.02.2011 has been produced in the typed set and on perusal we could see that as many as 132 members attended the General Body Meeting and the resolution passed would read that the election to be held on 19.03.2011 or 20.04.2011. Apart from the election, the General Body had decided to celebrate certain other events like annual day and other sports events. Similarly, the convening of the Executive Committee meeting was also not denied that it did not happen on 27.01.2011. The said minutes has also been produced in the typed set. According to the said Executive Committee meeting held on 27.01.2011, it was decided to convene an Extraordinary General Meeting on 28.02.2011. Admittedly, the said resolution has been pasted in the Notice Board of the Association (WLA) on 01.03.2011 and publication in the 'Dinakaran' newspaper was effected in the form of news item on 02.03.2011. It is contended that the said notice given by the Women Lawyers' Association for the Extraordinary General Meeting to be scheduled on 28.02.2011 was not done in accordance with the provisions of the Tamil Nadu Societies Registration Act, 1975, and therefore the said meeting cannot be held as a valid one. The Learned counsel for the appellants in OSA.Nos.139 of 2011 and 124 of 2011 would state that any Extraordinary General Meeting conducted by the Association must be in accordance with the requirement in Sections 26 (2) and (3) of the said Act coupled with the provisions stipulated in Section 28(3) of the said Act. Apart from that they would also draw our attention to the Rules framed under the said Act especially under Rule 27(2) read with Rule 25. According to their submission, any Extraordinary General Meeting scheduled to have been conducted by an association must conform to the requirement of notice required for an annual general meeting.
24. Sections 26(2) and (3) would run as follows:-
"Section 26. Annual General Meeting :-
(1) ....
(2) Notice of every such general meeting shall be given by the registered society to its members within such period as may be prescribed before the day appointed for the meeting.
(3) The notice shall specify the day, hour and place and the object of the meeting and, in case any amendment of a bye-law or objects of association as contained in the memorandum is intended to be proposed, shall contain a copy of every such amendment."
25. The aforesaid provisions are applicable to an Annual General Meeting of any Association. According to Section 28(3) of the said Act, those provisions are also applicable for an Extraordinary General Meeting (E.G.M.) also. However, it has been contended by the Learned counsel for the appellants in O.S.A.Nos.115 and 116 of 2011 that the object of the meeting was clearly mentioned in the resolution i.e., for conducting election and therefore it includes everything and even for the appointment of Returning Officers for the conduct of election. They would also contend that the Executive Committee meeting conducted on 27.01.2011 has clearly mentioned the day and place and therefore the provisions of Section 26(3) is complied with. Apart from that they would also point out that the factum of convening of meeting on 28.02.2011 was published in the Newspaper as news item on 02.03.2011 and the same was affixed in the Association Notice Boards on 01.03.2011 and therefore sufficient notice more than 21 days as required under Rules 25(2) and (3) of the Tamilnadu Societies Registration Rules have also been complied with. Their further contention would be that clause 21(1) of the bye laws governing the association W.L.A. has given a liberty to convene an Extraordinary General Meeting 'at any time' when the Executive Committee meeting wants to convene. When we consider these circumstances, we could see that there is no dispute that an Executive Committee meeting was held on 27.01.2011 and it had decided to convene an Extraordinary General Meeting on 28.02.2011. The said notice of Extraordinary General Meeting was pasted on 01.03.2011 in the Notice Boards of Women Lawyers Association. It is also not disputed that the same has been published in 'Dinakaran' Newspaper on 02.03.2011 in the form of a 'news' item. At this stage, we need not go into detail as to whether the publication includes news item also or an advertisement only. It can be prima facie said that the news published by any newspaper is also a publication of a fact intended to reach parties concerned. Therefore, we can prima-facie find that the requirement of Rules 25(2) and (3) coupled with Rule 27(2) of the Tamil Nadu Societies Registration Rules have been complied with.
26. As regards Sections 26(2) and 26(3), we could see that the notice given through Notice Board and Newspaper which are more prior to 21 days from the date of such meeting held on 28.02.2011 and the fact that it was held for the purpose of deciding the election, it has to be deemed that both the provisions have been satisfied by passing resolution in the Executive Committee meeting held on 27.01.2011 and also through exhibiting the said resolution in the Notice Boards and through publication in Newspaper. We are also satisfied to see clause 21(1) of the bye laws of the Association (W.L.A.) and according to the said bye law, the Women Lawyers Association can convene an Extraordinary General Meeting 'at any time' as decided by the Executive Committee and the other mode of convening an Extraordinary General Meeting is in pursuance of a written request signed by atleast 15 members of Women Lawyers Association. As far as the second category of Extraordinary General Meeting as requested by 15 or more members of Women Lawyers Association, the duration of 21 days has been prescribed by the said bye-laws. However, in respect of the Extraordinary General Meeting convened by the decision of the Executive Committee meeting be done at any time and therefore the requirement of all these provisions under Rules 25(2) and (3) of Tamil Nadu Societies Registration Rules are not strictly applicable to the present Extraordinary General Body Meeting held on 28.02.2011 and even otherwise they were found to have been prima facie complied. Therefore, we are also concurring with the finding reached by the learned Single Judge in this regard.
27. It is curious to note that the plaintiff in C.S.No.215 of 2011 (appellant in O.S.A.No.139 of 2011) prayed in the suit in part of para 15(ii) seeking for two independent and respectable election officers to conduct the election for Executive Committee members of the defendant Association scheduled to be held on 20.04.2011. It could be taken that she has accepted for the conduct of election on 20.04.2011 as per the decision reached in Extraordinary General Meeting by Women Lawyers Association. Furthermore, on perusal of the minutes recorded by the Extraordinary General Meeting held on 28.02.2011, the plaintiff in C.S.No.215 of 2011 had attended the said meeting and had put her signature in Sl.No.61. Before putting her signature, she did not subscribe any objection to the resolution passed in the Extraordinary General Meeting. The attendance of the plaintiff has not been disclosed in the plaint filed by her. In the said circumstances, the plaintiff / appellant in OSA.No.139 of 2011 is estopped from questioning the meeting held on 28.02.2011. We are of the considered opinion that the meeting conducted on 28.02.2011 was not in violation of bye laws 21(1) and Rules 25(2) and 25(3) of the Tamil Nadu Societies Registration Rules coupled with Sections 26(3) and 28(3) of the said Act.
28. Nextly, when we consider other points, Mrs. Nagasaila, learned counsel appearing for the 4th respondent/5th defendant in C.S.No.243 of 2011 would contend in her arguments that the 5th defendant is one of the Office bearers working as Treasurer in W.L.A., 4th respondent/5th defendant, and she would file an affidavit of in respect of the functioning of the association and the practice adopted by it in receiving the subscription and arrears of subscription and other payments. She would also submit in her arguments that the members /office bearers would collect the receipts from W.L.A but however, money would come only after March 2011. She would point out the incidents mentioned in the affidavit filed by the 4th respondent complaining against the staffs of W.L.A. who brought such filled cash receipts contained approximately in 5 to 6 books for the signature of the 4th respondent and when she asked for cash in respect of the said payments made in the receipt books, they informed her that the President Mrs.Prasanna directed them to fill up the receipt books and the amounts would be paid later and therefore, she refused to sign the receipt books without receiving the cash. Learned counsel would further refer to the affidavit of the 4th respondent and argue that the unsigned cash receipts were also utilised for preparing the voter's list and when 4th respondent questioned the staff, they told her that the President Mrs. Prasanna instructed them to put up and therefore, the 4th respondent instructed the staff not to put the voter's list without payment of subscription amount and on her objections, the staff struck all the names of the members who did not pay the subscription and thereafter put up the list of valid voters. She would further argue that on 11.3.2011 a sum of Rs.59,000/- was brought to the 4th respondent by staff along with receipt books and the 4th respondent also signed the receipt books only to the extent of the said cash received by her. She would also submit that the treasurer/4th respondent instructed the staff to deposit the said amount of Rs.59,000/- on 14.3.2011, as 12th and 13th March 2011 were Saturday and Sunday and they were holidays for W.L.A. She would further argue that the 4th respondent had also received another sum of Rs.1,41,500/- on 15.3.2011 towards the subscription amounts and she has received the said money after signing the receipt books and deposited the same in the bank account of the Association. She would further submit that such payment of subscription were received till 26.3.2011. She would further argue that whenever a person pays subscription, the staff would note down the receipt number for which cash has been paid and obtain the signature of the person, who hand over the cash to them. In the receipt books numbering 4, 6, 7, 8, 9 and 10 having Receipt Nos. 301 to 400 for a sum of Rs.12,085/-, in Receipt Nos. 518 to 600 for a sum of Rs.13,955/-; in receipt Nos. 601 to 700 for a sum of Rs.170,075/-; in Receipt Nos. 701 to 800 for a sum of Rs.17,025/-; in Receipt Nos. 801 to 900 for a sum of Rs.17,920/- and in Receipt Nos. 901 to 989 for a sum of Rs.39,390/- respectively, in total, a sum of Rs.1,17,950/- contain the signature of Mrs.Prasanna, the present President of W.L.A. She would also submit that similar endorsements were made by those persons who collected the subscriptions or paid the subscriptions for or on behalf of the members and it could be seen in the receipt books or receipts. She would also submit that even though these facts have been explained before the learned single Judge, it was not pointed out as one of the reasons to appoint the Election Commissioner. She would further submit that the affidavit filed by the 4th respondent may be considered especially the paragraph No.10 of the said affidavit and appeals may be dismissed, confirming the directions of the learned single Judge.
29. Mr.T.V.Ramanujam, learned senior counsel appearing for Mr.M.A.Srinivasan for the 6th respondent would submit in his argument that it is a matter to be considered, for the long run of W.L.A. and suitable amendments have to be made in the bye-laws of the Association. He would further submit that if necessary , the matter could be settled by way of narrowing down the differences in between the persons aggrieved and the paramount consideration would be the welfare of the women lawyers who are the members of the W.L.A.
30. Mrs.V.J.Latha, learned counsel appearing for the 8th respondent would submit in her arguments that the appeal in O.S.A.No.116 of 2011 was filed by W.L.A which cannot be an aggrieved party. She would further submit that the Association, W.L.A. cannot ventilate the grievance of an individual person and it should strive only for the collective cause. She would also submit in her arguments that there could not be any grievance against the appointment of Election Commissioner and the committee for conducting the election. Therefore, she would request the Court to dismiss the appeals.
31. Mrs.Chitra Sampath, learned counsel appearing for the appellant in O.S.A.No.116 of 2011 would submit in her arguments that the Extra-ordinary General Body Meeting convened on 28.2.2011 had elected the Returning Officers, Ms.J.Sundara Kanchani and Ms.D.Mary Rose Poongothai and when the General Body Meeting is a validly convened one, then the election of the Returning Officers through democratic way cannot be interfered by the learned single Judge and therefore, the said order passed by the learned single Judge has to be interfered. She would also submit in her arguments that the accusation against the Office Bearers that they have paid money even without getting instructions from the intending members and the existing members, from their pockets and had enrolled the members in en masse would not be correct. She would also submit that the intending members have for their convenience sake paid the subscription amount and on collecting the subscription, the Office Bearers would pay to the W.L.A. and the receipts were received by the person who collected and paid the money and thereafter, the receipts would be distributed to the members or new members. She would also submit that there will not be any harm in collecting the money from the intending members and pay it to the W.L.A. by which the Association alone would be benefited. She would also submit that as per the bye-laws of the Association-W.L.A., the members who are not in arrears of payment of subscription and other dues are only eligible to vote in the election and the office bearers had handed over the charge of the affairs of the Association-W.L.A. to the Returning Officers on 26.3.2011 and thereafter, there was no enrolment of any new members nor any payment of subscription to the office bearers. Therefore, the allegations made by the 4th respondent/Treasurer contrary which are contrary to the facts and are not sustainable and those allegations could be subjected during, and be decided only after full-fledged trial. The receipt books for which subscription have been paid were entered and the treasurer had promptly signed in every receipt and while entries were made by the staff, the dates have been mechanically entered wrongly in respect of the dates. Therefore, she would submit that there is no en masse enrolment of new members nor any payment by the office bearers on behalf of any of the members towards arrears of subscription. She would also request the Court that the validly elected Returning Officers may not be disturbed as they were elected in democratic way.
32. Mr.N.G.R. Prasad learned counsel appearing for the appellant in O.S.A.No.115 of 2011 would submit in his arguments that the subscriptions were collected by the appellant from those members who were intending to become new members of the Society and were paid by her to the Association and she also obtained those receipts for distributing to them the members who paid subscriptions. He would further submit that it is not a hard and fast rule that the members alone have to come over to pay the subscription or to submit the applications. He would also refer to receipt books submitted by the Election Commissioner before the Court and state that every person who is intending to contest the election have indulged in collecting the subscriptions from new members as well as arrears of subscription from the existing members and it is not the appellant alone collected and paid the same to the Treasurer and it is not an en masse enrolment for her benefit. He had presented a synopsis containing particulars of the receipt books which would show various names like Ms.Louisal, Thamizh Selvi, sister of S.Thamizharasi, Beulah John Selvaraj, Rajkumari Koteeswaran, Tamilarasi, Vanitha, Prasanna, Remy, the junior of Beula John Selvaraj, Gajalakshmi, Jeya Rohini, Fathima Sulthana, Santhakumar, Manjula Devi and those persons who have put their initials as 'DP', 'ST', 'NSR', 'L', 'VN', & 'GVS' and would submit that the said method of paying the subscription by one person on behalf of other persons would be only after collecting the subscription from those persons and it cannot be considered as contributed by the persons who received the receipts for others. He would further submit in his arguments that if really the affidavits of the 5th respondent is accepted, except her all other persons have indulged in en masse enrolment of new members to pay the arrears of subscription of others to benefit the payers. The receipt books would be evident to show that the plaintiffs in both the suits have also collected the subscription and paid the money and collected the receipts on behalf of other persons and therefore, they cannot complain that the appellant in O.S.A.No.115 of 2011 alone, was indulged in collecting and paying the subscription of behalf of others. He would further submit that it is not an en masse enrolment of new members but was only the collection of subscription on behalf of others and paying the same to the association-W.L.A. so as to help others and to benefit W.L.A. each other. He would therefore, request the Court that no reasoning was given by the learned Single Judge for not permitting the Returning Officers to conduct the election even though they were elected through a democratic way. He would further submit that the allegations made in the affidavit filed by the 5th respondent has to be considered as to its genuineness only through a full-fledged trial and it cannot be taken as a gospel truth since the receipt books would otherwise against the 5th respondent, the maker of the affidavit. Therefore, he would request the Court to interfere with the appointment of Election Commissioner and to permit the Returning Officers who were elected by the Extraordinary General Body Meeting held on 28.02.2011 to conduct the election of the Executive Committee of W.L.A.
33. Mr.S.R.Rajagopal, learned counsel appearing for the appellant in O.S.A.No.124 of 2011 would submit in his arguments that the learned single Judge having held that there was no bye-law prohibiting or prescribing enrolment of out station Women Lawyers or prescribing a cut off date upto which a person can be enrolled as a member, ought not to have given a direction in paragraph 23(c) of the order empowering the committee to perform certain functions. The said order is against the bye-laws of the Association-WLA. He would further submit that the scrutinising of the application forms of the newly enrolled members and the receipt books cannot be sustained as they are in accordance with the bye-laws. Therefore, it has to be set aside. Hence, he would request the Court that the finding in paragraph 23(c) of the order passed by the learned single Judge in A.No.1805 of 2011 dated 9.4.2011 is liable to be set aside and the appeal in O.S.A.No.124 of 2011 may be allowed.
34. While we consider these points, we could find that the learned single Judge has passed the following order in paragraph 23 of the judgment, the main reason for arriving to the conclusion before summarising the directions as herein below:
" 23. But in the case on hand, the payment of subscriptions by a few office bearers on behalf of hundreds of members, en block, has raised a on controversy. If these controversies are to be sorted out and an election conducted in a free and fair manner, I am of the view that it is better to appoint a Senior Member of the Bar to conduct the election with the assistance of a Committee of Tellers. Therefore, without recording any finding on any of the allegations against the Election Officers appointed by the General Body, the application O.A.No.330 of 2011 is disposed of with the following directions:-"
35. In the said order passed by the learned single Judge, it has been categorically mentioned that the payment of subscription was made by few office bearers on behalf of hundreds of members en bloc had raised the controversy. However, when we peruse the receipt books and list of receipt books produced before us, we could see that the present Office bearers namely President D.Prasanna was not alone indulged in paying the subscription in en bloc but also several persons viz., Louisal Ramesh, Rajkumari Koteeswaran, S.Tamizharasi, Beulah John Selvaraj,Remy junior of Beula John Sevaraj, Gajalakshmi, Jeya Rohini- plaintiff in C.S.No.215 of 2011 and Fathima Sulthana plaintiff in C.S.No.243 of 2011 have also paid the subscriptions on behalf of others. Whether those subscriptions were paid by the persons who received the receipt on behalf of others or have they collected the money from the members or the new members of W.L.A. and paid them to the Association could be verified only in a full-fledged trial/ enquiry.
36. The submissions of the 4th respondent in her affidavit paragraph No.10, would go to show that the endorsement in respect of Receipt Nos. 401 to 450 in Book No.5 and Receipt Nos. 280 to 300 in Book No.3 were received by her since some of her colleagues practising outside High Court Campus could not be put to inconvenience for waiting for the 4th respondent to come and sign the receipts in order to receive them and for the sake of their convenience she left behind few signed receipts with the staff in order to facilitate the immediate issuance of receipts. It is also referred by her that in order to ensure the said signed receipts are not misused, she made an endorsement noting down the receipt numbers in the above said books. However, on going through the receipt books, she has signed not only in the receipt book Nos.3 and 5 but also in Book No.15 and in receipt Nos. 1431 to 1442 dated 14.3.2011 on behalf of Mrs.Fathima Sulthana -plaintiff in C.S.No.243 of 2011 and in Book No.21 in receipt Nos. 2015 to 2017 and 2019. It is also mentioned in various receipt books bearing Book Nos.12,13, 16, 18, 19, 20 that one Ms. Remy, junior of the 5th respondent was said to have signed on behalf of the 5th respondent and received the receipts.
37. Considering these circumstances, we are of the view that all these explanations could be gone into only with the help of the evidence adduced on the basis of the pleadings made by them. At this stage, what would be the powers of the Court amidst the election process which have been admittedly started.
38. Mr.V.Raghavachari learned counsel who appears for the first respondent /plaintiff in C.S.No.243 of 2011 would submit in his arguments that there was a series of mal-practice in gathering the members for the Association and after the election has been announced, the office bearers of W.L.A have indulged in enrolment of new members 'en masse' and it could be evidenced that the list of valid voters of last year election was only 1100 and this had now zoomed to 1990 members and there was enormous increase of 890 voters and 600 of them are non-residents, distance about 500 kms away from Madras and non-practioners were also found place in the Association and the arrears of subscription of old locker dues , creche dues were paid in lump sum by the Presidential candidates and members supporting them. He would also submit that the candidates who are contesting for the post of President and Secretary of W.L.A. have paid huge sum towards arrears of subscription and enrolment of new members and have taken receipts from the association in bulk. He would also submit that the present President had sent SMS to all the valid voters in the list as " Dear Member, arrears for the year 2011-2012 updated your receipt No.xxx, Mrs.D.Prasanna, Advocate WLA.9884586466/ 9884438614" which would show that they paid subscription of their choice and the receipt books would go to show that it has been entered in an alphabetical order flouting all norms. He would refer to the receipts in receipt books commenced from Receipt No.601 to 900 in which it had been ended in alphabetical order but the dates namely 21.1.2011 has been interpolated in the midst of the date 24.1.2011 and it would go to show that the entire receipt books have been manipulated for the purpose of suiting the candidates. He would further submit that massive new admissions numbering 124 were made on 10.3.2011 and how it would be possible for 124 members to form a queue in W.L.A. to get themselves enrolled from various parts of Tamilnadu on a single day. He would further submit that the 'en masse' enrolment of 233 members on 14.3.2011 from outside the limits of Chennai hailing from Tirunelveli, Madurai, Villupuram, Coimbatore, Dindigul, Tiruchirappalli and 156 members issued with receipts on enrolment as new members on 15.3.2011 would go to show that the members outside Chennai City and even outside the State of Tamil Nadu were enrolled as members of W.L.A and the candidates aspiring to the post of President and Secretary are indiscriminately including members and freebies also started reaching the homes of respective members. He would also submit that watches, gift articles free recreational trips were being arranged and the young members are being lured and exploited by the present set of office bearers. He would also submit that the present President and Secretary have gifted three bureau type lockers to W.L.A Association at Poonamallee and Alandur. He would also submit that the members whose arrears have been paid should have been placed in the list of voters only after the approval of General Body but how the defaulted members who did not pay the arrears in time were enlisted in the voters without the approval of General Body. He would also submit that the new members to the tune of 800 were enrolled and they did not sign even in the application forms . He would also submit that such anomalies should have been considered and the appointment of two independent election commissioners should have been made for the purpose of conducting the elections as sought for in the application in A.No.1805 of 2011.
39. Mr.S.Prabakaran, Learned counsel for the appellant in O.S.A.No.139 of 2011 (Plaintiff in C.S.No.215 of 2011) would submit in his argument that as per clause 14(1)(b) of the bye laws of Women Lawyers Association, no office-bearers will contest for the same post for more than two consecutive terms and clause 14(1)(a) of the bye laws deals with the constitution of Executive Committee and in respect of the election and the remaining sub-clauses in clause-14 deals with duties and responsibilities of the said office-bearers. He would further submit in his argument that the learned Single Judge had given his finding in para-12 of the order to the effect that the request of the appellant in OSA.Nos.139 of 2011 for replacing the election officers with two independent and respectable election officers from the members of the defendant association to conduct the election to be held on 20.04.2011 as not sustainable. He would also submit that the reasons given by the learned Single Judge was that the Returning Officers were appointed by the General Body in a meeting convened on 28.02.2011 despite the Executive Committee is competent to do so and however, it had not implemented nor to accept the decision taken by the General Body of Women Lawyers Association. He would also submit that such a finding given by the learned Single Judge is not correct in accordance with the law and even it has been decided by the learned Single Judge to appoint an Election Commissioner Mrs. Hema Sampath, learned Senior Counsel along with three other counsel namely, Mrs.Sudha Ramalingam, Mrs.A.L.Gandhimathi and Ms.P.T.Asha as committee to assist the Commissioner, which is contradictory. He would further argue that the said finding reached by the learned Single Judge that the two Returning Officers appointed by the General Body Meeting should have been set aside in view of the latter decision reached by the learned Single Judge. He would also reiterate the reasons putforth by the Learned counsel for the plaintiff in C.S.No.243 of 2011, in respect of the malpractices taken place after the election has been declared to the Election Commissioner of Women Lawyers Association. He would further submit that merely because the plaintiff in C.S.No.215 of 2011 attended the meeting held on 28.02.2011, it will not validate the said meeting nor the appointment of Returning Officers made in the said meeting would be held valid. He would further submit that the tenure of the Executive Committee meeting was over by 31.03.2011 and the Executive Committee has no business to convene any meeting thereafter prior to the election and to pass any resolutions. He would submit that 824 new members were inducted, but the office bearers had taken the shelter that the voter's list as on 31.03.2011 should have been taken into account and therefore the 'en masse' enrolment of new members and updating of old members by paying subscription to them would lead to confusion and the present bye laws of the Association (WLA) are requiring a thorough scrutiny and change and suitable amendment should also be done for the future of the Women Lawyers Association. He would also submit that the suit filed in C.S.No.243 of 2011 was also filed for framing of a scheme and therefore suitable directions may be given for constituting a Committee for framing of a scheme to suggest amendment of bye laws. Therefore, he would request the Court to allow the OSA.No.139 of 2011 and to appoint two independent election Officers as requested by the appellant in her application before the learned Single Judge in A.No.1805 of 2011.
40. The learned Senior Counsel Mr.V.Prakash appearing for the third respondent / third defendant in C.S.No.243 of 2011 would submit in his argument that the receipt books and the application forms were handed over by the Association (WLA) to the Election Commissioner appointed by the learned Single Judge, Mrs.Hema Sampath, in pursuance of his Order and the receipt books and the application forms have been produced into Court by the said learned Senior Counsel, Mrs.Hema Sampath before this Court and they would disclose the 'en masse' enrolment of new members as well as updating of existing members by payment of arrears of subscription and other fees. He would further submit that the judgment passed by the learned Single Judge was not affected by any perversity and the appellants who are questioning the said judgment have not shown any such perversity in order to set aside the findings reached by the learned Single Judge. The appointment of Election Commissioner by the learned Single Judge was not opposed by anybody and the order passed in para-23(c) for arriving to a conclusion is perfectly in order.
41. Learned Senior counsel Mr.V.Prakash would also cite the judgment of the Honourable Apex Court reported in (2000) 8 SCC 216 in between Election Commissioner of India through secretary and Ashok Kumar and others, in respect of the extent of intervention of courts in the election matters. He would also submit that the bye laws of the Society is of contractual nature and they can work along with statutory provisions. Therefore, the learned single Judge has come to a correct conclusion and no interference is necessary and therefore the appeals should be dismissed.
42. On giving anxious consideration to the submission to these points, we could see in the judgment of the Hon'ble Apex Court reported in 2000 (8) SCC 216 (Election Commissioner of India through Secretary ..vs.. Ashok Kumar and others), it has been categorically laid down in respect of jurisdiction of courts in interfering with the election process. The relevant passage would run thus:-
"32. (1) ...
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
Applying the above principles laid down by the Hon'ble Apex Court in this judgment we have to exercise much care to set right any flaw or to remove obstacles by passing suitable orders.
43. With the said approach, when we look into the facts and circumstances of this case, we could see that there was a heavy inflow of enrolment of new members and the payment of arrears of subscription by its members immediately after the decision of the Extraordinary General Meeting, calling for elections. It was contended by the plaintiff in both the suits that the office bearers especially the President had indulged in bulk payment of subscription on behalf of others and members in enrolled 'en masse' so as to get benefit out of it. The learned Single Judge had also come to a conclusion that the office bearers had 'en masse' enrolled new members as well as paid arrears of subscription to the existing members which have to be scrutinized by the Election Commissioner. On verification of the receipt books, we have found that some of the present office bearers of the Women Lawyers Association and other interested candidates who intend to contest the elections and the plaintiffs in both the suits have also paid subscription on behalf of others and received the receipts on their behalf. Therefore, whether there is any malafide on the part of the payment of bulk subscription made by those persons enlisted above have to be tested, by scrutinising the receipt books. It could be possible only by independent persons who are not aspiring to be the office bearers of the Association (Women Lawyers Association). At the same time, we have to bear in mind that the Returning Officers were elected by the Extraordinary General Meeting held on 28.02.2011 for the conduct of election.
44. According to the plaintiffs in both the suits, the Returning Officers were handpicked by the present President of the Women Lawyers Association, in order to help her in the ensuing election and in the last election also they were appointed as Returning Officers. No doubt, it is true that they were the Returning Officers in the earlier election also. On a perusal of the resolution passed in the Extraordinary General Meeting dated 28.02.2011, we could see that the Returning Officers, namely, Ms.Sundara Kanchani and Ms.Mary Rose Poongothai were elected in the Extraordinary General Meeting, since they contested along with other members and obtained the highest two places. No doubt, it is a democratic way of electing the Returning Officers. We have already discussed in the earlier issue that the said General Body Meeting was attended by the plaintiff in C.S.No.215 of 2011 and the said meeting was prima-facie found to be a valid meeting. The averments made in both the plaints have not stated anything against the Returning Officers towards their disqualification like contesting in the elections nor they cease to be the members etc,. The only reason assigned by the plaintiffs would be that the Returning Officers were the close friends of present President of Women Lawyers Association. The said reason cannot be a ground for rejecting their election to be the Returning Officers of the election held in a democratic way in the Extraordinary General Meeting convened on 28.02.2011. Therefore, their service cannot be discarded for conducting the elections. The learned Single Judge had decided in Para-23(c) of his order that they cannot be removed from the Returning Officership. However, the learned Single Judge had come to a conclusion to appoint an Election Commissioner, namely, Mrs.Hema Sampath, Senior Counsel, for the purpose of conducting the election on a prima-facie finding that there was an 'en masse' enrolment and en bloc payment of arrears of subscription which raised doubts in the mind of the learned Single Judge.
45. The bye laws of the association will govern as far as the election of the office bearers of the Executive Committee. The relevant clause is 20 of the bye laws, which would run thus:-
20. Election:
(a) The election of Executive Committee including office bearers shall be conducted once in two years in the month of April.
(b) The election shall be conducted by 2 Returning Officers appointed by the executive Committee. The Election Officers shall not be a member of the Executive Committee and they have no right to stand for the election.
(c) The election shall be conducted by the secret ballot. The Returning Officers before conducting the elections will draw up a programme of election which shall include list of members who are ineligible to vote for having arrears in subscription and dues, valid list of voters, time for submission of nominations, valid list of nominations, time for withdrawal, final list of nomination, time for voting date of voting.
(d) Members who are on the rolls and not in arrears as on 31st March of the relevant election year will be eligible to contest, and vote in the election.
46. According to clause 20(d), the members who are on the roll and not in arrears as on 31st March of the relevant election year will be eligible to contest and vote in the election. Therefore, it has been contended that the subscription collected by the association ended by 26.03.2011 and it is for the Returning Officers to collect subscription, if anybody thereafter pay, till 31.03.2011 and to prepare the valid voters' list on that basis and as on 31.03.2011 in accordance with clause 20 of the bye laws. The reason given by the learned Single Judge that en bloc payment of subscription by the office bearers of the Association and especially the signature of the second defendant, Ms.D.Prasanna, the present President of the Association was found and it cannot be very lightly discarded as an act of charity or a large part of the act is not only an instant, but we can find that the other prospective candidates for the elections including the plaintiffs have also paid such subscription on behalf of others and it has to be decided as to whether it was paid by the persons who received the receipts or collected as subscription from the individual members, and paid by the person who received the receipts in 'en bloc'. Therefore, the payment of such 'en bloc' subscription by individual members referred to above including office bearers are the collected money from the said persons or the money paid by the persons on behalf of others have to be 'prima facie' gone into and to find out the real nature of payment of new subscriptions or arrears of subscriptions. In the said circumstances , the finding of the learned Single Judge against any one of such person including the present office bearers cannot be correct. Therefore, the subscriptions paid through the receipt books produced before the Court and the application forms submitted for the enrolment of new members are necessarily to be scrutinized by the Returning Officers or Election Commissioners, who are put in charge of election. In the said circumstances, the request of the appellant in OSA.No.124 of 2011 that there is no necessity for the Election Officers nor the Election Commissioner appointed to scrutinize all the application forms of newly enrolled members and the receipt books so as to find out how many of them have been duly and properly enrolled in accordance with the bye laws and how many of them enrolled in violation of the bye laws, cannot be set aside.
47. Such a scrutiny is required from the independent persons like the Election Commissioner appointed by the learned Single Judge Mrs.Hema Sampath, learned Senior Counsel. Similarly, the said Election Commissioner appointed by the learned Single Judge has also to be assisted by a Committee. Even though the service of Election Commissioner appointed by the learned Single Judge is necessary for such scrutinization and finalisation of voters list, we do not wish to upset the decision of the Extraordinary General Meeting democratically elected the Returning Officers namely, Ms.Sundara Kanchani and Ms.Mary Rose Poongothai. They are also to be put in service to continue along with the said Committee members namely, Mrs.Sudha Ramalingam, Mrs.AL.Gandhimathi and Ms.P.T.Asha to assist the Election Commissioner in her duty assigned by the learned Single Judge. Therefore, we are of the firm view that the order passed by the learned Single Judge in para-23(a) is modified by the inclusion of the Returning Officers elected by the Extraordinary General Meeting held on 28.02.2011. The direction given in para-23(b) that the Returning Officers appointed by the association shall hand over the files containing the applications of newly enrolled members along with the proof submitted by them to the Election Commissioner is also modified with a direction that the Returning Officers appointed by the Extraordinary General Meeting of Women Lawyers Association shall also join with the Committee of three members to assist the Election Commissioner and to form a larger Committee of five members to assist Mrs.Hema Sampath, learned Senior Counsel, 55 Law Chambers, the Election Commissioner appointed for that purpose. In other respects, the direction given by the learned Single Judge is upheld and we do not want to interfere with.
48. The Women Lawyers Association is constituted on a noble object to promote not only the welfare of the women lawyers, but also women and children. The legal profession gives immense satisfaction to the woman lawyer individually and collectively viz., the Association to serve the women and children and contributing to their upliftment. The legal battle in between its members will certainly make its members to deviate from its goal to achieve its object stated in its Memorandum. The existing bye-laws are indirectly the cause for the confusion and the in fight in between its members, which culminated to the present dispute in between its members. Therefore, we are of the firm view that the existing bye-laws have to be suitably amended after thorough scrutiny through an independent body having much interest in the welfare of the functions of the association W.L.A. The bye-laws to be amended shall be in such a way that it should not be interfered or the affairs of the association -W.L.A shall not be interfered by any third parties. Therefore, we have to entrust the matter to the present Election Commissioner, Mrs.Hema Sampath, Senior Counsel and the Committee Members for such a noble job for amending the bye-laws in order to update wherever it is necessary, in order to make convenient the amendment of bye- laws so as to meet the challenges of today and to give its proposal in the form of report for being implemented by the newly elected body, in the ensuing elections.
49. The directions, in these appeals after interfering with two of the directions and the findings of the learned Single Judge are being summed up as follows:
"(i) Mrs.Hema Sampath, Senior Advocate, 55 Law Chambers, is appointed as the Election Commissioner to monitor, supervise and conduct the elections to the Women Lawyers' Association. She shall be assisted by a Committee of 5 members viz., (i) Mrs.Sudha Ramalingam; (ii) Mrs.AL.Ganthimathi; and (iii) Ms.P.T.Asha, Advocates; and (iv) Ms.Sundara Kanchani and (v) Ms.Mary Rose Poongothai. (Nos.(iv) and (v) were elected in the Extraordinary General Meeting of Women Lawyers' Association held on 28.02.2011).
(ii) The Election Commissioner shall be handed over with the receipt books and the application forms produced by her into Court, as such, by the Registry immediately.
(iii) The Election Commissioner and the Committee appointed above, shall scrutinise all the Application Forms of newly enrolled members and shall also scrutinise the receipt books and find out how many of them have been duly and properly enrolled in accordance with the bye-laws and how many of them have been improperly enrolled in violation of the bye-laws.
(iv) The Secretary of the Association shall hand over to Mrs.Hema Sampath, Election Commissioner, the list of eligible voters already prepared by the Association. The Secretary shall also take 6 xerox copies of such lists and hand over them to Mrs.Hema Sampath.
(v) The xerox copies of the voters list handed over by the Secretary, shall be displayed in all the four Notice Boards of the Association along with a notice inviting objections from persons, about (i) the wrongful deletion of the names of any persons; (ii) the wrongful inclusion of the names of any persons; and (iii) any discrepancies if found. The notice issued by the Election Commissioner appointed herein and pasted in all the four Notice Boards shall clearly indicate that objections are to be filed with the Election Commissioner, within one week from the date of publishing of the notice. The notice may also indicate that the objections need not be confined to the individual grievances of the members lodging the objections, but may also be in respect of the wrongful inclusion or exclusion of the names of others, so that the correctness of the list of eligible voters could really be to be tested.
(vi) The Election Commissioner and the Committee appointed herein shall start scrutiny of the Application Forms of new members and find out the genuineness of the applications submitted by them, the genuineness of the document of proof enclosed to the application and find out whether such persons were eligible to be admitted as members.
(vii) The final list of voters shall be published by the Election Commissioner and the Committee, on or before 22.06.2011.
(viii) The revised election schedule shall be as follows:-
(1) Dates for filing nominations - 29th and 30th June 2011 (2) Date for withdrawal of nominations 5th July 2011 (3) Date for publishing the list of eligible contestants 6th July 2011 .
(4) Date of the election shall be - 08.07.2011 (5) Date of counting shall be on the same day.
(6) Date of declaration of results- immediately after the completion of counting preferably on the same day of election and counting.
(ix) The Election Commissioner along with the Committee member shall also examine the complaints with regard to the en masse payment of subscriptions by any member and to file exhaustive report regarding the election held and conducted by her and the Committee immediately after the declaration of results before this Court.
(x) We are also inclined to direct the Election Commissioner and the five committee members as stated supra to continue as a Committee for amending the Bye laws and to file a separate detailed report on that subject before the learned Single Judge within one month from the date of constitution of popular, new, executive Committee.
50. With the aforesaid findings and directions, the appeals in OSA.Nos.115 and 116 of 2011 are partly allowed to that extent mentioned above and the Appeals in OSA.Nos.124 and 139 of 2011 are dismissed. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
(R.B.I.J.,) (V.P.K.,J.) 05.05.2011 Index:Yes/No Internet:Yes/No vsi/mra Note to Registry :
1) Registry is directed to issue copy of this order to Mrs.Hema Sampath, Senior Advocate, who is appointed as Election Commissioner, at free of cost.
2) Registry is also directed to hand over the receipt books and the application forms as per the direction in para-49(ii), immediately.
mra R.BANUMATHI.,J.
AND V.PERIYA KARUPPIAH.,J.
Vsi/mra O.S.A.Nos.115, 116,124 and 139 of 2011 05.05.2011