Madras High Court
C.Jacob Sumithran vs Young Men'S Christian Association on 31 January, 2013
Author: R.Banumathi
Bench: R.Banumathi, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2013 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE K.K.SASIDHARAN O.S.A.NOS.460 AND 461 OF 2012 1.C.Jacob Sumithran 2.George Fernandez 3.B.Watson, 4.S.D.Joseph .. Appellants in both O.SAs Vs. Young Men's Christian Association, represented by its General Secretary, having Office at 24/223, NSC Bose Road, Chennai 600 041. .. Respondent in both O.SAs Prayer: Original Side Appeals in O.S.A.Nos.460 and 461 of 2012 are filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 9 of O.S.Rules against the Order dated 10.12.2012 made in Applications in O.A.Nos.1029 and 10-30 of 2012 respectively in C.S.No.791 of 2012 on the file of this Court. For Appellants : Mr.Silambanian Senior Counsel for M/s.Profexs Associates For Respondent : Mr.G.Rajagopalan Senior Counsel for Mr.V.R.Thangavelu JUDGMENT
R.BANUMATHI,J.
Being aggrieved by the order dated 10.12.2012 passed by the learned single Judge dismissing the Application Nos.1029 and 1030 of 2012 in C.S.No.791 of 2012 and declining to grant temporary injunction restraining the respondent/defendant from conducting elections to the Board of Directors pursuant to the election notification dated 15.11.2012 issued by the respondent and also from conducting any election to the Board of Trustees and to restrain the present Board of Trustees to fill any vacancy in the Board of Trustees as per clause "Appointment of Trustees" in Trust Deed dated 18.10.1900 and as per Clause 11 Board of Trustees in Trust deed dated 9.2.1949.
2. It is the case of appellants/plaintiffs that they are the present trustees of the Board of Trustees of the Madras YMCA established and governed by the trust deed dated 1900 and 1949. The Madras YMCA was formed on 26.8.1890 and was registered as a Society bearing Registration No.15/1890 under the Societies Registration Act No.XXI of 1860. The YMCA Madras Trust was established by a Trust Deed dated 18.10.1900, registered as Document No.1890 of 1900 and another Trust deed dated 9.3.1949 registered as Document No.302 of 1949 and is governed by a Board of Trustees as per the provisions of Trust Deed dated 18.10.1900 and 9.3.1949. As per the Trust deed, the administration of properties is vested with the Board of Trustees of YMCA Madras. The day to day management of the establishment is carried out by the YMCA through their Board of Directors in consultation with the Trustees. The functions of Trust and power to manage the Trust vest with Trustees and the General Secretary and Board of Directors do not have any power to remove or suspend them. The unilateral decision of General Secretary to designate himself as Managing Trustee and manage the Trust at his whims and fancies must be removed. The Board of Directors has unilaterally by a rotation removed the Trust, which is contrary to the provisions of the Trust Deed and usurping of the powers of the Trustees and giving the Board the powers of Trustees is illegal as per the provisions of the Trust Deeds and has lead to mismanagement, misappropriation and corruption. In violation of the Trust deed, The term of the trustees was limited to a period of 3 years. By a resolution dated 6.6.2012, the Board has suspended three trustees beyond the scope of their powers as only fellow trustees may take action on trustees who are acting against the interest of the Trust.
3. It is the further case of appellants that in respect of election to Management Committee, illegal system of postal ballot is followed by Madras YMCA, which is contrary to the provisions of the Societies Act and is being followed so that to their advantage they can handpick persons who will the "yes men" to the General Secretary. The members are enrolled illegally and they were converted as full members to enable them to vote. The Board members are running religious groups that are not recognised by The Churches of India and are inducting their employees and their followers into YMCA who are not eligible to be the members as per the bye-laws of the Madras YMCA for purpose of having sizeable votes.
4. It is also the case of appellants that the amendments brought to Bye Laws in 2004 were inconsistent to the original purpose of formation of Association and in contradiction to Trust Deeds of 1900 and 1940 . When the treasurer and President of YMCA questioned the irregularities in a General Body meeting held on 12.11.2012, they were removed from primary membership of YMCA and their positions, which shows that the functioning of YMCA and the manner in which the Board of Directors are indulging in illegal activities.
5. The respondent issued notice dated 15.11.2012 to Full members calling for nominations for conducting elections to the Board of Directors. According to the appellant, the said letter is in violation of election procedure as the notice has not been sent before 15th November and proves the mala fide intention of the current Board of Directors and violation of the constitution of Madras YMCA. The Madras YMCA under its current Board of Directors have been continuing in its illegal activities towards misappropriation of assets and finances of Madras YMCA. The breakdown of fair electoral process through irregular electoral methods of postal ballots and deviation from the Tamil Nadu Societies Act in governance of the Association has to be rectified and there will be irreparable loss to members of YMCA and the community as a whole, if the same is not rectified
6. It is the case of respondent that the membership of appellants 1, 2 and 4 with the respondent Association has been suspended on the ground of involving in Anti-YMCA activities and have no locus standi to initiate the above proceedings. The Nominating Committee had followed due procedure to fill up seven vacancies in Board of Directors for the term 2013-2015 and the elected Board members have assumed office on 2.1.2013. As per the resolution of the Annual General Body held on 8.6.1998, Trust deeds of 1900 and 1949 have been amended and the High Court has approved the amended Trust Deed on 20.11.2000, while passing orders in O.A.No.516 of 1999 and 417 of 2000 in C.S.No.624 of 1999. From that date, election to the Board of Trust of YMCA has been conducted every three years. The term of office for the 8 trustees was to expire on 28.1.2013 and therefore the election process for filling up the vacancies commenced on 7.1.2013, whereby the election notification was sent to full members along with notice calling for Special General Body meeting scheduled to be held on 31.1.2013 and the trustees would be elected on the floor of the Special General Body to be held at the registered office. The suit in C.S.No.791 of 2012 is not maintainable as the appellants failed to obtain leave to initiate the suit as the suit pertains to the Trust. The relief sought for in the application do not fall in line with the relief sought for in the suit.
7. The learned single Judge held that though as per Constitution of YMCA it was necessary to issue notice before 15.11.2012, the date cannot be held to be mandatory as the Bye-laws of Society had no force of law and are merely contractual. The learned single Judge further held that the notice dated 15.11.2012 had been sent to all the members and once the members have been given full opportunity to contest the election/nominating the candidates, appellants/plaintiffs cannot be said to have made out a prima facie case and on those findings the learned single judge dismissed the applications.
8. Challenging the Order in O.A.No.1029 of 2012, which is in respect of election to the Directors, the learned Senior Counsel for appellants Mr.Silambanan submitted that act of the respondents in not issuing notice before 15.11.2012 is violation of Constitution of YMCA and the learned single Judge was not right in saying that there was no violation of mandatory provision. The learned Senior Counsel further submitted that the Board of Directors ought to have issued notice before 15.11.2012 and the Board of Directors deliberately violated the Constitution and the Bye-laws to suit their convenience and to cover up their illegal action of nominating members since Full Members will not have sufficient time to nominate their preference and prayed for setting aside the order passed in O.A.No.1029 of 2012.
9. The learned Senior Counsel Mr.G.Rajagopalan appearing for the respondent submitted that the membership of appellants 1,2 and 4 have been suspended on the ground of involving in anti- YMCA activities and as such the appellants have no locus standi to initiate proceedings in view of the suspension order. The learned Senior Counsel submitted that the election to the Board of Governors was over on 21.12.2012 and the elected Board members have assumed office on 2.1.2013 and while so no injunction could be granted.
10. As pointed out earlier, the YMCA Madras Trust was established by a Trust Deed dated 18.10.1900, registered as Document No.1890 of 1900 and another Trust Deed dated 09.03.1949 registered as Document No.302 of 1949. The Trust is governed by a Board of Trustees as per the provisions of the Trust Deeds of 1900 and 1949. The Constitution has provided with full members of YMCA. The day to day management of the establishment is carried on by the YMCA through the Board of Directors in consultation with the trustees. The administration of the properties is vested with Board of Trustees of the YMCA, Madras as per the Trust deed. In C.S.No.624 of 1999, by the Order dated 20.11.2000, the Court directed amendment of the Trust and approved the proposed amendment. The amendment allowed in the said order in C.S.No.624 of 1999 has been incorporated in the Trust Deed.
11. Article III Sections 1 and 2 of the Constitution of YMCA pertains to annual elections to the Board of Directors, which reads as under:-
"ARTICLE III MANAGEMENT:
"Section 1: The Association shall be managed by a Board of Directors composed of not more than 22 members, of whom the General Secretary shall be an ex-officio member, and the others elected by and from among the Full Members of the Association, and shall hold office as hereinafter provided for.
Section 2: The Directors shall hold office for three years, seven being elected annually. The retiring Directors shall be eligible for re-election. The election shall be conducted as follows:-
(a) At the first ordinary meeting of the Board of Directors in the year, a Nominating Committee of three members of the Board whose term does not expire with the current year shall be appointed.
(b) The Nominating Committee shall give notice to all Full Members before the 15th of November each year, calling from them nominations which they desire to make for the vacancies. Such nominations shall be signed by the member nominating, and shall be sent within ten days of the issue of the notice. The nominating Committee shall then prepare out of the nominations so made, a list of not less than fourteen nominations for the purpose of voting under Article III, Section 2(C).
............ "
12. Seven vacancies of Directors arose on 1.1.2013. For the seven vacancies in the Board of Directors for the term 2013-15, the Full Members list is said to have been displayed on from 1st to 7th November, 2012. For the seven vacancies in Board of Directors, in compliance of Section 2, notice was sent to Full Members of YMCA on 15.11.2012 informing them that full members are entitled as Full Members entitled to nominate maximum 14 full members to be in the fora for election to the Board of Directors and nomination forms were despatched on 15.11.2012. After scrutinising the nominations, elections were held on 21.12.2012. The learned Senior Counsel for respondent submitted that on declaration of results, the elected Board members have assumed office on 2.1.2013 at the first Board meeting scheduled for the year. When the new Board of Directors have already assumed office, the relief of injunction sought for in O.A.NO.1029 of 2012 restraining YMCA from conducting election to the Board of Directors cannot be sustained.
13. Grievance of appellants is that as per Section 2 of the Constitution, notice was not issued to the Full Members before 15th of November and therefore election held on 21.12.2012 is illegal. As pointed out by the learned single Judge, notice along with the nomination and list of full members (vide typed set pages 16 to 19) were sent to each of the Full Member. Since the notices were sent to all the Full Members, it cannot be said that there was violation of mandatory provisions.
14. So far as conduct of election to the Board of Directors is concerned, appellants have alleged (i) Full members stated in the list were not properly enrolled; (ii) postal ballots were not sent to the Full Members. In the plaint, there are no specific allegations indicating names of the Full members not properly enclosed or the list of names of Full members to whom postal ballots were not sent. The alleged violations could be gone into only at the time of trial when the parties adduce oral and documentary evidence.
15. O.S.A.No.461 of 2012 O.A.No.1030 of 2012:- Insofar as election to Board of Trustees scheduled for 31.1.2013 is concerned, the learned Senior Counsel for appellants submitted that as per Clause 11 of Trust deed dated 9.2.1949 (page 149) the trustees failed to go into the contents of the said clause. The learned Senior Counsel submitted that as per Clause 11, the number of trustees shall never be less than four and if at any time it reduces below four and trustees do not immediately fill up the same, even in such cases, the Board of Directors can only give notice for the time being to call upon the surviving trustee or trustees to appoint requisite number of trustees and the Trust deed requires the trustees to fill up vacancies. The learned Senior Counsel further submitted that Board of Directors are acting against the Trust deed and encroaching upon the powers of the Trustees and the action taken by the Board of Directors in removing or suspending the trustees is in violation of the Trust Deed and the learned single Judge failed to go into all these issues.
16. Taking us through the amendment allowed in C.S.No.624 of 1999, the learned Senior Counsel for respondent submitted that the Hon'ble Court has allowed the amendment to the Trust deed by the order dated 20.11.2000 to hold the election to the trustees and the term of trustees was fixed at three years. According to the learned counsel, term of trustees will expire on 28.1.2013 and as consequence the election to fill up the said vacancies of trustees was called for on 7th of January, 2013 and communication in this regard was sent to all the Full members and 21 days notice was given for conduct of general body, which is scheduled to be held on 31.1.2013 and the election process is in accordance with the Trust deed and the appellants could have no valid objection.
17. As pointed out earlier, the High Court allowed the amendment to the Trust Deed by Order dated 20.11.2000 in C.S.No.624 of 1999, whereby the strength of trustees has been enhanced to 9 including the Ex.Officio trustee and the term was fixed at three years.
18. Article VI, the portion of which is relevant to the case, reads as under:
"TRUSTEES:
The immovable properties of the Association shall be vested in a Board of Trustees whose constitution and duties are regulated by the term of the Trust Deeds
(i) The Trust shall be named as YMCA Madras Trust.
(ii) The Trust shall consist of the Trustees to be elected by the full members of YMCA Madras.
(iii) The Strength of the Trustees will stand enhanced to nine.
(iv) The Trustees shall hold office for a period of three years from the date of election and every Trustee so elected shall be eligible for re-election for a further period of three years. No Trustee shall be eligible to hold office for more than two consecutive terms.
(v) The Trustees shall be elected from among the full members of YMCA with genuine interest in the welfare, growth and development of YMCA Madras and its activities.
(vi) The General Secretary of YMCA shall be an ex-officio Trustee and will be in charge of the day-to-day administration and management of the trust and its affairs. All the records of the Trust shall remain under the custody of the ex-officio Trustees at the registered office."
19. The term of trustees expired on 28.1.2013. Election to fill up 8 vacancies as trustees were called for on 7.1.2013. Communication in this regard was sent to all the Full members by S.Edwin Abraham, Interim General Secretary/ Ex-Officio Trustee. The said communication regarding the election of Board of Trustees for the term 2013-15 dated 7.1.2013 reads as under:
"To 07.01.2013 FULL MEMBERS YMCA MADRAS. .......
In pursuance to the above the term of 8 Board of Trustees will fall vacant on 28.01.2013 Election will be held on the floor for electing 8 Board of Trustees for the term 2013-2015 at the Special General Body Meeting to be held on 31.01.2013 at 4 p.m. at YMCA Registered office 223, NSC Bose Road, Chennai 600 001.
A list of Full Members is attached herewith for reference.
Yours Sincerely, S.Edwin Abraham Interim General Secretary/ Ex-Officio Trustee Note: Any member, who has got grievances, if any, on the conduct of the above Election, may seek remedy as per provision in the Constitution under Article VA(ii)"
20. The learned Senior Counsel for appellant has drawn our attention to Clause 11 and submitted that where at any time the number of trustees are reduced to below 4, and the trustees do not immediately fill up the same, even in such cases, the Board of Directors can only give notice for the time being to call upon the surviving trustees to appoint requisite number of trustees. It is the case of appellants that the Trust Deed requires the trustees themselves to fill up the vacancies and the appellants placed reliance upon Clauses 10 and 11 of the Trust Deed dated 9.2.1949. Clauses 10 and 11 of the Trust Deed reads as under:
"10. If any vacancy or vacancies occur in the Board of Trustees either by death, resignation, insolvency or otherwise, the continuing trustees shall appoint new trustee or trustees for the vacancy or vacancies.
11. The number of Trustees shall never by (sic. be) less than four. If and whenever the number of Trustees are reduced below four and the continuing Trustees fail to fill up the vacancies so as to bring the number to four, it shall be lawful for the Board of Directors of the Association by a notice in writing under the hand of the Secretary or President for the time being to call upon the surviving trustee or trustees to appoint the requisite number of trustees and if they neglect to make such appointments within three calendar months from the date of notice it shall be lawful for the Directors at any time while the number remains less than four, to appoint a new trustee or trustees of these presents as fully and as effectually as the surviving or continuing trustees or trustee could if so minded have done."
21. By a careful reading of Clauses 10 and 11, it is seen that Clauses 10 and 11 deal with a situation where the vacancies occurred in the Board of the Trustees, either by death, resignation, insolvency or otherwise, in which case, the continuing trustee shall appoint new trustee or trustees for the vacancy or vacancies. As per the amendment allowed by the Order of the Court dated 20.11.2000, the trustees are to be elected by the Full Members of YMCA and the trustees shall hold office for a period of three years. When the term of election of trustees expired, the appellants cannot rely upon Clauses 10 and 11, which deal with specific instance of vacancies, which occur in the Board of Trustees either by death, resignation, insolvency or otherwise.
22. Insofar as the contention regarding the violation that no proper notice was issued for election to the Board of Trustees, as pointed out earlier, on 7.1.2013, the Interim General Secretary/ Ex.Officio Trustee has issued a notice to all the Full members regarding the election to the Board of Trustees.
23. It is pertinent to note that the appellants 1, 2 and 4, were the full members of YMCA and their membership was suspended on 6.6.2012 for involving in anti-YMCA activities. It was stated that the appellants have not challenged the suspension order dated 6.6.2012. The appellants have neither established a prima facie case nor balance of convenience in their favour. In any event, as pointed out in the notice dated 7.1.2013, any member, who has got grievance, if any, on the conduct of the Election, can seek remedy as per the provision in the Constitution of YMCA. We do not find any violation in the said notice. When the term of Board of trustees expired by efflux of time, the Bye-law is silent as to who is to conduct the election. The interim General Secretary of YMCA is in-charge of day to day affairs of administration. The Interim General Secretary has issued the said notice dated 7.1.2013. The learned single Judge has rightly refused to grant interim injunction. We are of the view that the order of learned single Judge does not suffer from any infirmity warranting interference of this Court and both the appeals are liable to be dismissed.
24. In the result, both the appeals are dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
usk ============================================================================= After pronouncing the judgment, learned senior counsel for the appellants submitted that the present suit in C.S.No.791 of 2012 may be ordered to be clubbed along with C.S.No.624 of 1999, which is already pending.
It is for the appellants to make a request before the learned single Judge and the learned single Judge shall consider the request on its own merits.
mmi