Madras High Court
Kovilpatti Nadar Uravinmurai Sangam vs K.A.Velumani on 3 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar, D.Bharatha Chakravarthy
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.11.2023
(Reserved on 20.09.2023)
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA
CHAKRAVARTHY
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
and
Connected Miscellaneous Petitions
W.A(MD)No.1520 of 2022:-
Kovilpatti Nadar Uravinmurai Sangam, Kovilpatti,
(Registration No.S.23/1955),
Old No.32, New No.65,
Pathrakaliamman Kovil Street,
Kovilpatti-628 501,
Rep by its
The President (Ad-Hoc Arrangement) ...
Appellant
-vs-
1. K.A.Velumani
2. V.Abraham Ayyadurai
3. M.Paramasivam
4. M.Sudhakar
Page 1 of 38
https://www.mhc.tn.gov.in/judis
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
5. K.A.Balasubramanian
6. K.Thanga Mariappan
7. The State of Tamilnadu,
Rep. by the District Registrar,
Palayamkottai,
Tirunelveli District.
8. V.Nagarajan,
The Advocate Commissioner/Election Officer,
Kovilpatti Nadar Uravinmurai Sangam,
Kamarajar International Academy (CBSE),
Pasuvanthanai Road,
Pandavarmangalam,
Kovilpatti-628 501. ... Respondents
PRAYER : Appeal filed under Clause 15 of the Letters
Patent, against the order dated 20.12.2022 made in W.P(MD)No.
28053 of 2022.
For Appellant in all W.As : Mr.V.Ragavachari, Senior Counsel,
for
Mr.C.Mayilvahana Rajendran
W.A(MD)No.1520/2022:-
For R2 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.P.M.Vishnuvarthanan
For R7 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
W.A(MD)No.1212/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.K.Jeyamohan
For R2 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)Nos.1211 and 1213 to 1219 & 1013/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
M/s.Isaac Chambers
For R2 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)No.1512/2022:-
For R1 to R12 : Mr.Isaac Mohanlal, Senior Counsel for
M/s.Isaac Chambers
For R13 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
W.A(MD)No.1521/2022:-
For R1 : Mr.Isaac Mohanlal, Senior Counsel for
Mr.P.M.Vishnuvarthanan
For R5 : Mr.R.Baskaran, Additional Advocate
General assisted by Mr.J.Ashok,
Additional Government Pleader
For R7 & R8 : Mr.M.Veeranthiran
Government Advocate (Criminal Side)
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W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
COMMON JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.] All the appeals are connected and the issue to be resolved in these appeals are almost common and therefore, all these appeals are disposed of by this common judgment.
2. Brief facts that are necessary for disposal of all these appeals are as follows:-
In all the above appeals, a registered society by name, Kovilpatti Nadar Uravinmurai Sangam, represented by its office- bearers is the appellant. It is admitted that Kovilpatti Nadar Uravinmurai Sangam (hereinafter referred to as ''Society'') is a Society registered originally under the Societies Registration Act, 1860, in 1955. After coming into force of the Tamilnadu Societies Registration Act, 1975, the Society is deemed to be registered under the State Act in view of Section 53 of the State Act. Page 4 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 2.1. The Society is governed by its own bye-laws. As per the bye-laws of the Society, the Society is administered by the Administrative Committee consisting of 65 members. The elected members of the Society have to elect the President of the Society.
The President then shall select and appoint the Vice President, Secretary and Treasurer of the Society from among the remaining elected members of the Administrative committee. The President of the Society is also empowered to constitute sub-committees for administering the Society as well as the six educational institutions established by the Society.
2.2. For about 15 years, there appears to be some issues among members regarding the election that was conducted to elect the members for the Administrative Committee. The elected members of the Committee shall be in office for a period of three years. Before the election for the triennium 2014-2017, one of the members filed W.P(MD)No.15101 of 2014 for issuance of a Writ of Mandamus, to direct the District Registrar of Societies to nominate an officer for the conduct of election of office-bearers of the Society in the general body meeting scheduled to be held on Page 5 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 28.09.2014 with a further direction to the District Registrar of Societies to consider the writ petitioner's request and to pass appropriate orders. The said writ petition was disposed of on 11.09.2014.
2.3. Again, another writ petition was also filed in W.P(MD)No.14140 of 2014, for issuance of a direction to the District Registrar of Societies to take action as per Sections 36 and 37 of the Tamilnadu Societies Registration Act, 1975, for the purpose of conducting elections to the Society. The said writ petition was also disposed of with a direction to the District Registrar of Societies to consider the writ petitioner's request and to pass appropriate orders by appointing an independent observer to conduct election. Subsequently, on account of some developments, another writ petition came to be filed in W.P(MD)Nos.17302 of 2014 by a member of the Society namely, Mr.Thangamariappan, for issuance of a Writ of Mandamus to nominate an officer to conduct the election of office-bearers of the Society in accordance with the earlier directions of this Court in W.P(MD)Nos.14140 and 15101 of 2014. This Court by order Page 6 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 dated 29.10.2014, appointed an Advocate by name, Mr.V.Sitharanjandhas (Late) to conduct the general body election for the Society and the election for the new office-bearers of the Society for the triennium 2014-2017 was conducted on 28.12.2014 under the supervision of the Advocate who was appointed as Observer.
2.4. It is admitted that there was election for the triennium 2017-2020 which came to an end in March 2020. However, it is stated that the office-bearers who were elected for the triennium 2017-2020 continue in office. It appears that the Secretary of the Society called for a general body meeting in November 2020 for the purpose of conducting election. Meanwhile, a few members of the Society filed a writ petition in W.P(MD)No.18415 of 2020 before this Court for issuance of a Writ of Mandamus, directing the District Registrar to nominate an Observer for holding election for the period 2020-2023. It is stated before this Court that by order dated 11.12.2020, a senior member of the Bar by name, Mr.V.Nagarajan was appointed as Advocate Commissioner, to conduct the election of office-bearers of the Society. We are Page 7 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 unable to find what had happened pursuant to the said direction of this Court. However, it is admitted that no election was conducted pursuant to the direction.
2.5. However, another writ petition was filed by one Vijayakumar in W.P(MD)No.4304 of 2022 for identical relief namely, to issue a Writ of Mandamus, directing the District Registrar to conduct the election of office-bearers of the Society by nominating an officer of the District Registrar as Observer. A learned Single Judge of this Court by order dated 10.03.2022 by consent of the parties to the writ petition, appointed Mr.V.Nagarajan, Advocate, as Advocate Commissioner to conduct the election of office-bearers of the Society in accordance with the bye-laws of the Society. The operative portion of the order dated 10.03.2022 reads as follows:-
5.By consent of both the parties, Mr.V.Nagarajan, Advocate (Enrl.No. 1295/1993), (Mob.No.98651 15292), having office at No.62, Law Chambers, High Court Building, Madurai-23, is appointed as Advocate Commissioner to conduct election Page 8 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 of office bearers of the Kovilpatti Nadar Uravinmurai Sangam (Registration No. 23/1995) by issuing election notification in accordance with the bye laws of the Society.
The details of the election in accordance with the bye laws of the Society shall be fixed by the Advocate Commissioner. After conducting the election in accordance with the bye laws of the Society and after completion of the election process, the Advocate Commissioner is directed to submit a report to the Registry of this Court.'' 2.6. The Advocate Commissioner filed an interim report along with the memo dated 14.07.2022. It is seen from the interim report submitted by the Advocate Commissioner that he has addressed a letter to the District Registrar, Palayamkottai, on 21.03.2022, to nominate one of his subordinates as an Observer as directed by the learned Single Judge while appointing him as an Advocate Commissioner. The Advocate Commissioner also requested the District Registrar to issue a copy of the members list of the Society as per Form-VI. The Advocate Commissioner has specifically referred to the request of the President and Page 9 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Secretary of the Society to extend the time to the members to pay their 'Thalaikattu Vari' upto the commencement of the festival of Pathrakali Amman temple. A list of members filed by the Society in Form-VI to the District Registrar of Societies for the year 2018-2019 is also obtained by the Advocate Commissioner from the Registrar on 01.04.2022. The Advocate Commissioner also referred to the list of members who were removed from the Society.
2.7. In the meanwhile, one of the members of the Society filed a writ petition in W.P(MD)No.8558 of 2022 seeking a direction to the Advocate Commissioner to rectify the defect in the members list. This Court by order dated 28.04.2022 disposed of W.P(MD)No.8558 of 2022 in the following lines:-
''4.This Court has perused and
examined the members list. As seen from the
members list, there are glaring
discrepancies. As rightly contended by the learned Counsel for the petitioner, there are double entries and common member numbers in the membership list. Unless and Page 10 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 until the same is rectified, no useful purpose will be served, if the election is conducted as per the schedule fixed by the Advocate Commissioner. The petitioner is also interested in participating in the election, but his only grievance is with regard to the discrepancies in the members list.
5.This Court, after giving due consideration to the aforementioned factors, is of the considered view that the it is better and advisable if the election is postponed to enable the respondents 2 and 3 to rectify the defects in the members list. The learned Counsel for the respondents 2 and 3 is also agreeable for postponement of the election and he undertakes to instruct the Advocate Commissioner accordingly. The respondents 2 and 3 are permitted to rectify the membership list by including all the eligible members for the Kovilpatti Nadar Uravinmurai Sangam within a period of two months from the date of receipt of a copy of this order. Only after finalisation of the membership list, the Advocate Commissioner shall issue a fresh election notification for the Page 11 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 conduct of the election for the Kovilpatti Nadar Uravinmurai Sangam.'' 2.8. On receipt of the order passed by this Court dated 28.04.2022, in W.P(MD)No.8558 of 2022, it is stated by the Advocate Commissioner in his final report dated 19.01.2023 that the Secretary of the Society had submitted the rectified members list for the year 2018-2019 in Form-VI as approved by the District Registrar, Tirunelveli, on 15.11.2022. The said rectified members' list had been displayed in the election office notice board calling for objections/suggestion from the members.
2.9. Some of the members found that their names had been removed from the list of eligible voters. It appears that several persons whose names are not found in the list of eligible voters, approached this Court by filing 10 writ petitions in W.P(MD)Nos.13642 and 15351 to 15359 of 2022. The petitioners in all the 10 writ petitions alleged that they were removed from the membership of the Society for no valid ground. This Court by order dated 20.07.2022 allowed all the writ petitions after quashing the communication regarding removal of the writ Page 12 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 petitioners from the basic membership. However, many of the members found their names missing from the voters list. Meanwhile, the Advocate Commissioner issued the election notification on 23.11.2022 which was published on 24.11.2022. Several people filed their objections after finding that their names are not included in the voters' list.
2.10. Challenging the common order passed by the learned Single Judge in W.P(MD)Nos.13642 and 15351 to 15359, dated 20.07.2022, the Society preferred a batch of writ appeals in W.A(MD)Nos.1013 and 1211 to 1219 of 2022. During the pendency of the writ appeals, this Court by order dated 08.09.2022 in W.A(MD)No.1013/2022 and CMP(MD)No. 8156/2022 has directed that the order of the learned Single Judge in W.P(MD)Nos.13642 of 2022 be kept in abeyance. Thereafter, by a common order dated 08.12.2022, in W.A(MD)Nos.1013 and 1211 to 1219 of 2022, this Court permitted the 1st respondent in all the said ten appeals who are the writ petitioners in W.P(MD)No.13642 and 15351 to 15359 of 2022 to approach the Advocate Commissioner on 09.12.2022 for Page 13 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 submitting their applications complying with all requirements for issuing nomination papers for contesting the election. A further direction was also issued to the Advocate Commissioner to scrutinize all the nomination papers submitted by the candidates who have complied with the requisite eligibility criteria. It is to be noted that in the said order, there was an observation that those who have paid Mahamai on or before 15.06.2022 alone have to be considered by the Advocate Commissioner. However, the said order was subject to further orders to be passed by this Court in the main appeals.
2.11. In the meanwhile, four other writ petitions were filed challenging non inclusion of writ petitioners' names and to consider the joint objection raised by them and to include the writ petitioners' names in the voters' list. Those writ petitions are W.P(MD)Nos.27650, 28053, 28071 and 28282 of 2022. All the four writ petitions were allowed by a learned Single Judge of this Court by order dated 20.12.2022.
2.12. W.A(MD)No.1512 of 2022 is directed against the Page 14 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 order passed in W.P(MD)No.28071 of 2022; W.A(MD)No.1513 of 2022 is directed against the order in W.P(MD)No.28282 of 2022; W.A(MD)No.1520 of 2022 is directed against the order in W.P(MD)No.28053 of 2022; W.A(MD)No.1521 of 2022 is directed against the order made in W.P(MD)No.27650 of 2022 and W.A(MD)Nos.1013 and 1211 to 1219 of 2022 are against the common order of the learned Single Judge of this Court dated 20.07.2022 in W.P(MD)No.13642 of 2022 and 9 other writ petitions namely, W.P(MD)Nos.15351 to 15359 of 2022.
2.13. The Advocate Commissioner in his final report that issue of nomination has stated forms was commenced on 07.12.2022 by 10.00 a.m and closed on the same day at 04.00 p.m. It is admitted that the Advocate Commissioner has received 158 nomination forms and collected a sum of Rs.79,000/- towards nomination forms. The Advocate Commissioner also referred to an incident at the instance of one member namely, TKT.Thilagarathinam Nadar. The Advocate Commissioner has further stated that another 10 nomination forms were issued on 09.12.2022 to 10 other members/candidates as per the direction Page 15 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 of this Court in W.A(MD)Nos.1013 and 1211 to 1219 of 2022, dated 08.12.2022. It is stated that out of 168 nomination forms issued, only 136 candidates filed their nominations. It is also stated that at the time of scrutiny of nomination forms on 11.12.2022, the Advocate Commissioner found only 90 nominations in order and they were accepted. 46 nominations according to the Advocate Commissioner were found to be defective and hence they were rejected. Though the Advocate Commissioner has not given in his report the reasons for rejecting the nominations, he has stated that such reasons for rejection of nominations were duly recorded in the respective nomination forms. Even out of the 10 nominations submitted pursuant to the direction of this Court, the Advocate Commissioner seems to have rejected nominations of seven candidates including one M.T.M.Thangaraj. It is stated that the final list of contesting candidates was published and displayed in the notice board consisting of 88 candidates.
2.14. It is to be noted that this Court while granting Page 16 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 interim orders, allowed the election process to go on but restrained the Advocate Commissioner to declare the results of election for a period of four weeks. The Advocate Commissioner in his report stated that on 25.12.2022, the election was conducted and polling of votes was commenced at 09.00 a.m in all the eight polling booths selected by the Advocate Commissioner. After the closing of poll at 04.00 p.m., the Advocate Commissioner has also counted the votes at 06.15 p.m in the presence of the Election Observer who was sent by the District Registrar and two other agents from each group. The Advocate Commissioner has also stated that the whole process of election was videographed from the commencement of polling till counting of votes. As per the orders of this Court, the Advocate Commissioner has withheld the results of election after conducting the election as stated by him in his final report.
3. Learned counsels appearing for the writ petitioners, particularly, learned Senior Counsel, Mr.Issac Mohanlal, submitted that the whole process of election is vitiated, as the Advocate Commissioner has rejected nominations of 46 Page 17 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 candidates belonged to one group only on account of the fact those candidates had not paid Mahamai for the year 2022. Learned Senior Counsel further submitted that all the candidates whose nominations were rejected by the Advocate Commissioner have serious objections to accept the final report of the Advocate Commissioner and submitted that the Advocate Commissioner ought to have prepared the list as per the approved list of membership in tune with Form-VI submitted by the Society before the District Registrar, since a direction has been issued by this Court in the order dated 28.04.2022 passed in W.P(MD)No. 8558 of 2022, to rectify the membership list. Learned Senior Counsel further submitted that the names of all the candidates whose nominations were rejected by the Advocate Commissioner are found in the approved list handed over to the Advocate Commissioner and that the election conducted by the Advocate Commissioner rejecting the nominations of more than 46 candidates belonging to one group is biased and wholly is solely illegal and therefore, this Court should direct fresh election after scrutiny of nominations of all the candidates who are all members as per the membership list obtained by the Advocate Page 18 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Commissioner himself.
4. Learned Senior Counsel referred to a contempt petition filed by one M.T.M.Thangaraj in Cont.P(MD)No.1160 of 2022 and that the Advocate Commissioner has circulated a voters' list before this Court when the contempt petition was listed and that the said voters' list given by the Advocate Commissioner contains the names of all the 46 candidates whose nominations were rejected by the Advocate Commissioner. While disposing of the writ petitions filed by the 10 members of the Society challenging removal of their names from the voters' list, the learned Single Judge found that such removal of the names of the 10 writ petitioners by the office-bearers who are continuing in office after the tenure of three years cannot be accepted as valid. The question of maintainability was also argued before the learned Single Judge elaborately and the learned Single Judge considering the fact that the Society is running several Government aided educational institutions, held that the Society should be made amenable to the writ jurisdiction. Having regard to overall circumstances and the patent illegality in the scrutiny Page 19 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 of nominations by the Advocate Commissioner, the learned Single Judge held that removal of the writ petitioners from the membership roll is improper and without jurisdiction and that therefore the writ petitions are maintainable by considering several precedents and the fact that the election itself is scheduled only by order of Court.
5. Mr.V.Ragavachari, Learned Senior Counsel for the appellants submitted that these writ appeals are filed challenging the orders of the learned Single Judge in a batch of cases mainly on the ground that writ petitions under Article 226 of the Constitution of India are not maintainable as the appellant's Society is not a 'State' or 'other authority' under Article 12 of the Constitution. Stating that the appellant is neither funded nor owned or controlled by the Government, learned Senior Counsel submitted that the learned Single Judge failed to consider the maintainability in a proper perspective. It is contended that the Society which is just a private body constituted under the Societies Registration Act and governed by its own bye-laws and which is not discharging any public duty or performing any Page 20 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 public function is not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India.
6. Learned Senior Counsel appearing for the appellants further submitted that as per the bye-laws of the Society, a person eligible to vote and participate in the election, ought to have paid Mahamai. Stating that the Advocate Commissioner has rightly rejected the nominations of 46 persons, learned Senior Counsel then submitted that the writ appeals are to be allowed and that the Advocate Commissioner should be directed to publish the results of the election. Referring to the fact that only persons who have paid Subscription, Thalaikattu Vari and Mahamai[as far as traders members are concerned] are eligible to vote for electing 65 members of the Administrative Committee, learned Senior Counsel further submitted that appropriate orders should be passed by this Court to ensure that the Society is administered by the elected members of the committee pursuant to the election conducted by the Advocate Commissioner.
7. Learned Senior Counsel referred to the judgment of a Page 21 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 learned Single Judge of this Court in W.P(MD)No.30472 of 2022 dated 12.12.2022. The question whether the writ petition would lie against a Church of South India Synod even in respect of mal- administration or election disputes was decided in the affirmative by a Division Bench in W.A(MD)No.878 of 2019. Referring to two other Division Bench judgments taking a contrary view, a learned Single Judge directed the Registry to place the matter before the Hon'ble Chief Justice for constituting a Larger Bench to resolve the conflict and to finally pronounce on the maintainability of the writ petition against the Society in relation to election disputes. Learned Senior Counsel appearing for the appellant then relied upon the judgment of the Hon'ble Supreme Court in the case of Praga Tools Corporation vs. C.V.Imanual and others reported in AIR 1969 SC 1306 wherein, it is held that a company registered and governed by the provisions of the Companies Act, 1956, is not a 'State'. Learned Senior Counsel then relied upon the judgment of the Hon'ble Supreme Court in the case of P.R.Murlidharan and others vs. Swami Dharmananda Theertha Padar and others reported in 2006 (4) SCC 501, for a Page 22 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 proposition that a writ proceedings cannot be a substitute for a civil suit.
8. This Court considered the submissions made on either side in the light of the admitted facts and materials produced.
9. On the question of maintainability, there are several judgments expressing vies which are conflicting. While deciding whether a writ is maintainable in a given set of circumstances, the first question that would arise for consideration is whether a person against whom, a writ is filed, is a State and satisfies the definition of 'State' or 'other authority' within the meaning of Article 12. However, writ petitions against persons who are charged with public duties are often brought under the definition of 'State' or 'other authority' within the meaning of Article 12 of the Constitution of India. The Society in this case is not a Government or Quasi-Government. Definitely, the Society will not come under the definition of 'local authority'. However, the Hon'ble Supreme Court noticing the policies of the Government and other factors, expanded the scope of 'other authorities' under Page 23 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Article 12 by judicial pronouncements. Even though an organization is not part of the Government or Government Department still such Organizations which are discharging public duties are held amenable under Article 226. Corporations or Societies created by the Statute which are expected to perform certain public duties, are brought under the definition of 'other authorities'. When a Corporation or Establishment is discharging a public duty, they can be brought under the definition of 'State' within the meaning of Article 12 of the Constitution. This Court is unable to discard the reasons stated by the learned Single Judge to hold that the writ petition in the present case is maintainable. It is not in dispute that the Society is in existence for nearly eight decades. It is admitted that the Society is now running the following six educational institutions:-
i. Nadar Middle School, Kovilpatti; ii. Nadar Higher Secondary School, Kovilpatti; iii. Kovilpatti Nadar Kamaraj Matriculation School, Kovilpatti; iv. ICM Middle School, Kovilpatti;
v. Nadar Uravinmurai Sangam – SS Duraisamy Nadar Page 24 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Mariammal College; and vi. Kamaraj International Academy, Kovilpatti.
10. Most of the educational institutions above referred to are Government aided institutions. As per the Tamil Nadu Societies Registration Act, 1975, every Society is expected to be administered by the representatives of the general body who are elected by majority. The Society is expected to exist as a Public Trust while administering educational institutions. It is the elected members of the Administrative Committee of Society who are entitled to nominate the educational agency for all these educational institutions. All these educational institutions nominated by the Society have statutory obligations and therefore, the Society is expected to perform a public duty and the educational agency has a responsible role.
11. In the administration of educational institutions which are intended to serve the public with legal and moral obligations, the Educational Agencies nominated by elected office bearers of the Society are governed by statutes. When a serious issue is Page 25 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 raised by alleging illegal disqualification and rejection of nominations of substantial number of members of General Body belonged to one particular group, this Court is of the view that the maintainability of the writ petition has to be considered in broad perspectives keeping in mind, the larger interest of the students, public and institutions rather than the interest of the individuals. When the society is also a Public Trust in running several Educational Institutions with statutory obligations, this Court is unable to discard the judicial precedents relied upon by the learned Single Judge to hold that the writ petitions are maintainable.
12. It is now admitted that the present office-bearers who were elected for the triennium 2017-2020 are in office since 2017. As rightly held by the learned Single Judge, extension of tenure of the office-bearers who assumed office in 2017 was just assumed by the incumbents without any election for a long period. It is seen that the Advocate Commissioner has prepared a list of eligible voters without including substantial number of members of the general body. It is admitted that the Advocate Page 26 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Commissioner has received the authenticated list of eligible members from the District Registrar during the time when the Advocate Commissioner commenced the election process pursuant to orders of this Court. The election was postponed because of pendency of a few writ petitions which were also relating to finalisation of voters' list as it was alleged that several members were removed from the list without any enquiry. When the list of eligible members as reflected from Form-VI submitted by the Society itself is available with the Advocate Commissioner, the Advocate Commissioner on his own altered the electoral roll of the Society. The writ petitioners whose names found in the list of eligible members as per Form VI obtained from the District Registrar, are now made ineligible artificially by the Advocate Commissioner at the time of scrutiny of nominations. None of the persons who are in office have raised any serious issue about the eligibility of members whose names are found in the list obtained by the Advocate Commissioner from the District Registrar. The number of members who are eligible to vote in the general body are less than 2500 and it is not a difficult task for the Advocate Commissioner to give a fair opportunity to the eligible members to Page 27 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 pay subscription or Mahamai as a specific allegation is made by one of the groups that Mahamai, all these years are being collected by the servants of the Society from the trader members.
13 It is seen that the Society is administered by the office- bearers whose term/tenure expired in 2020. Therefore, it appears that an attempt is made by one group to oust substantial number of prospective candidates thereby preventing rival group from participating in the election. The petitioners in all the writ petitions appear to be belonging to one particular group. The conduct of election by the Advocate Commissioner is unfair without at least getting a clarification from this Court about the eligibility of voters. It is not in dispute that the names of the writ petitioners were removed from the list of members of the general body. The learned Single Judge found that the office-bearers whose tenure had already been expired, cannot remove the writ petitioners from the membership roll. The said view is supported by admitted facts.
14. Article 226 of the Constitution in unmistakable terms Page 28 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 confers wide powers to the High Court. A Writ of Mandamus is held to be maintainable even against a private authority discharging a public duty. We have already seen that the appellant Society is running several aided educational institutions. As in this case, the Society gave its express consent when a third party filed writ petition seeking this Court's direction to hold election through the Advocate Commissioner to be appointed by this Court. From the sequence of events, a few writ petitions were entertained in relation to finalisation of voters list in the presence of the Society. The Society which has readily accepted for appointment of Advocate Commissioner to conduct the election, had not raised any objection as to the maintainability of the writ petition which could have been raised even earlier.
15. Coming to the next issue whether the writ petitioners are eligible to participate in the election, it is the contention of the learned Senior Counsel for the writ petitioners that the candidates whose nominations had been rejected by the Advocate Commissioner are members as per the list obtained by the Page 29 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 Advocate Commissioner himself from the District Registrar. As per the bye-laws of the Society, only persons who are paying Subscription, Thalaikattu Vari and Mahamai are entitled to contest the election. However, when there is no election for the period 2020-2023 and the people who were elected for the previous term were continuing in office on ad hoc basis, the Advocate Commissioner ought to have at least fixed the time limit within which the members who want to contest the election, should pay Mahamai. Since the final report of the Advocate Commissioner reveals that nomination of 46 members belonged to one group who contest the election in a particular symbol [fish], we are unable to discard the genuine grievance of the writ petitioners that Mahamai which has been collected by the servants of the Society, was not collected for the year 2022 or 2023 and that this will lead to an unfair election.
16. Learned Senior Counsel appearing for the writ petitioners further submitted that there was no scrutiny of nominations in the presence of candidates after issuing due Page 30 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 notice to them. It is submitted that instead of going by the membership list, the Advocate Commissioner decided the eligibility of candidates by asking them to produce the receipt for payment of Mahamai. In the election notification issued by the Advocate Commissioner, it is stated that persons who have paid Subscription, Thalaikattu Vari and Mahamai as on date, alone are entitled to contest or vote. In such circumstances, the qualifi of members whose names are found in Form-VI obtained by the Advocate Commissioner is illegal. However, strangely, for reasons best known to him, the Advocate Commissioner has started requiring proof for payment of Mahamai. It is in the said circumstances this Court has no hesitation to record that the Advocate Commissioner has committed a serious irregularity in the process of conducting the election and there is a conscious effort by the rival group to prevent a large number of eligible candidates from contesting the election.
17. Before the learned Single Judge in W.P(MD)Nos.27650, 28053, 28071 and 28282 of 2022, the respective petitioners have filed writ petitions challenging the election notification dated Page 31 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 23.11.2022 and the list of membership and for a direction to include the names of the petitioners in the voters list before the Advocate Commissioner proceed with the election. The common grievance of all the petitioners in the aforesaid four writ petitions is about non inclusion of their names in the final voters' list. Therefore, they prayed for inclusion of their names in the voters' list to enable them to contest the election. W.P(MD)No.28282 of 2022 was filed to quash the list issued by the Advocate Commissioner dated 12.12.2022 rejecting the nominations of the petitioners in the writ petition from contesting the election and to direct the Advocate Commissioner to permit the petitioners to contest the election of the Society.
18. The grievance of the petitioners in the first batch of 10 writ petitions namely, W.P(MD)Nos.13642 and 15351 to 15359 of 2022 is also about their disqualification by the erstwhile office- bearers of the Society from contesting or participating the election. The learned Single Judge allowed the said 10 writ petitions only on the ground that the present office-bearers whose tenure had come to an end long back, cannot disqualify the Page 32 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 members who are already in the membership roll. In all the writ petitions, the grievance expressed by the respective petitioners is about the artificial exclusion of substantial members from participating in the election or contesting the election by the Advocate Commissioner. The second batch of writ petitions were also allowed by the learned Single Judge after holding that the persons whose names found place in the voters' list circulated earlier on 17.11.2022 cannot be prevented from contesting the election in accordance with the bye-laws of the Society.
19. It is to be noted that the election was scheduled to be held on 25.12.2022. In the first batch of writ petitions, several persons expressed their grievance that they were disqualified. Thereafter, the first batch of writ petitions were allowed in favour of the writ petitioners with a specific observation that the decision of the Executive Committee disqualifying several members after the expiry of their tenure is a nullity in law. However, by order dated 08.12.2022, a Division Bench of this Court while hearing the writ appeals as against the first batch of writ petitions, has observed that those who paid Mahamai on or before 15.06.2022 Page 33 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 alone have to be considered by the Advocate Commissioner. This order is not on the basis of any decision or any issue raised or answered by this Court. Moreover, the said observation is subject to further order that may be passed in the appeals later. Since this Court finds that rejection of nomination of 46 candidates belonging to one group is illegal, erroneous and biased, the whole election itself is illegal and void. Therefore, this Court finds no reason to differ from the view expressed by the learned Single Judge in allowing the writ petitions. Therefore, the election conducted by the Advocate Commissioner is held as invalid.
20. Considering the admitted facts and circumstances of the case, this Court is inclined to issue following directions:-
(i) The same Advocate Commissioner is directed to hold fresh election for the period of three years from the date of assuming office.
(ii) The Advocate Commissioner is directed to include the names of all the petitioners in the writ petitions which were allowed by the learned Single Judge on 20.07.2022 as well as on Page 34 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 20.12.2022.
(iii) The Advocate Commissioner is directed to prepare the list of eligible members as per the list which was obtained by him earlier and circulated on 17.11.2022 as indicated by the learned Single Judge in the order dated 20.12.2022.
(iv) The members who have not paid Subscription / Thalaikattu Vari / Mahamai, shall pay the same within a period of four weeks from the date of receipt of a copy of this order directly to the Advocate Commissioner along with a demand draft for the sum.
(v) The Advocate Commissioner shall thereafter publish the list of eligible voters as well as the persons who are eligible to contest as per the bye-laws giving period of two weeks time for filing objections. After considering the objections, final list of eligible voters as well as the list of members eligible to contest shall be published.
(vi) The Advocate Commissioner shall thereafter publish election notification specifying the date of election in any leading newspaper having wide circulation in the locality.
(vii)The scrutiny of nominations shall be after due Page 35 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 intimation to the contestants. Any one of the authorised representatives or the contesting candidates can be permitted by the Advocate Commissioner at the time of scrutiny of nominations. The persons whose nominations are rejected, should be informed by individual communications stating the reasons for rejection of the nominations. A fair procedure shall be followed by the Commissioner in the whole process.
(viii) The Advocate Commissioner is directed to adhere to the rules and bye-laws and ensure free and fair election keeping in mind the real object behind Section 15 of the Societies Registration Act.
(ix) The appellant Society is directed to pay a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) by way of additional remuneration to the Advocate Commissioner. It is open to the Advocate Commissioner to seek additional remuneration depending upon the time taken by him to complete the process of election from the beginning to end.
(x) After declaration of results by the Advocate Commissioner, he shall file a report before this Court.
(xi) Considering the fact that the elected officers are going to Page 36 of 38 https://www.mhc.tn.gov.in/judis W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 administer the educational institutions of the Society to serve the community as well the public, any serious irregularity in the conduct of election or interference by individual member will be viewed seriously by this Court even to initiate appropriate proceedings for criminal contempt.
21. All the Writ Appeals are disposed of with the above directions. No costs. Connected miscellaneous petitions are closed.
[SSSRJ] [DBCJ]
03.11.2023
Index : Yes / No
Neutral Citation : Yes / No
bala
To
The District Registrar,
The State of Tamilnadu,
Palayamkottai,
Tirunelveli District.
Page 37 of 38
https://www.mhc.tn.gov.in/judis
W.A(MD)Nos.1520, 1211 to 1219, 1512,
1513, 1521 and 1013 of 2022
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
bala
PRE-DELIVERY COMMON JUDGMENT MADE IN
W.A(MD)Nos.1520, 1211 to 1219, 1512, 1513, 1521 and 1013 of 2022 DATED : 03.11.2023 Page 38 of 38 https://www.mhc.tn.gov.in/judis