Madras High Court
V.N.Subramaniam vs Tamil Nadu Advocate'S Association 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.122, 123, 126 to 128, 129, 138, 140 to 149 and 154 of 2011
V.N.Subramaniam ... Appellant in
O.S.A.Nos.122,123,
148 and 149 of 2011
P.Paramasivam .... Appellant in O.S.A.Nos.126 to 128
and 138 of 2011
S.K.Velu ... Appellant in
O.S.A.No.129 of 2011
K.R.R.Aiyyappamani ... Appellant in
O.S.A.Nos.140 to 143 of 2011
N.Marappan ... Appellant in
O.S.A.Nos.144 to 147 of
2011
Elephant G.Rajendran ... Appellant in O.S.A.
No.154 of 2011
Vs.
1. Tamil Nadu Advocate's Association
represented by its Secretary M.Baskar
196, New Addl.Law Chambers,
High Court Buildings,
Chennai 600 104.
2. The Bar Council of Tamil Nadu,
rep.by its Secretary,
High Court Campus, Chennai- 600 104.
3. The Bar Council of India,
rep.by its Secretary, 225,
Okhla Industrial Area,
Phase III, New Delhi 110 020 ..... Respondents
1 to 3 in all Appeals
4. Elephant G.Rajendran
5. S.Vetrivel
President
Bar Association
Nagercoil. .... Respondents 4 and 5
in O.S.A.Nos.122, 123
126, 127, 140,
141 and 145 of 2011.
4.Mr.Elephant G.Rajendran
5.R.K.Chandramohan
6. S.Vetrivel,
President,
Bar Association,
Nagercoil
7. P.Paulpillai
President,
Padmanabapuram Bar Association,
Thuckalay, Kanyakumari District
8. N.S.Ziauddin ... Respondents 4 to 8
in O.S.A.Nos.128, 138,
142, 143 and 146 to 149
of 2011
4.Mr.Elephant G.Rajendran
5.R.K.Chandramohan
6. N.S.Ziauddeen
7.Mr.S.Vetrivel
President, Bar Association,
Nagercoil
8.Mr.P.Paulpillai, S/o.Ponnumuthu
President, Padmanabhapuram
Bar Association
Thuckalay
Kanyakumari District. .... Respondents 4 to 8
in O.S.A.No.129 of 2011
4.Mr.S.Vetrivel
President, Bar Association,
Nagercoil
5. Mr.Elephant G.Rajendran ... Respondents 4 and 5 in
O.S.A.No.144 of 2011
6. K.R.R.Aiyappamani
7. P.S.Amalraj
8. S.Prabakaran
9. R.Arunachalam
10. R.K.Chandramohan
11. K.K.S.Jayaraman
12. K.Kathiravan
13. V.Karthikeyan
14. K.Rajarajan
15. M.Velmurugan
16. P.Paramasivam
17. V.N.Subramaniam
18. V.Yuvaraj
19. T. Michael Stanis Prabhu
20. A.Natarajan
21.N.Sampath
22.E.T.Rajendran
23. D.Selvam
24. M.Varadhan
25. K.Veluchamy
26. S.K.Vel
27. K.Ranganathan
28. G.Thalaimuthurasu
29. A.A.Venkatesan ...... Respondents 6 to 29
in O.S.A.Nos.144 and 145
of 2011 and Respondents 9 to 32 in
O.S.A.Nos.146 and 147 of 2011 Respondents No.6 to 29
in O.S.A.Nos.144 and 145 of 2011,
who are Respondents No.9 to
32 in O.S.A.Nos.146 and 147 of 2011
are given up.
4.Mr.S.Vetrivel
President,
Bar Association,
Nagercoil ... Respondent No.4
in O.S.A.No.154 of 2011
Original Side Appeals in O.S.A.Nos.126, 127 and 128 of 2011 are filed against the order dated 18.4.2011 made in Application Nos.1739, 1740 and 2184 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
Original Side Appeals in O.S.A.Nos.129 and 138 of 2011 is filed against the order dated 18.4.2011 made in Application No.2185 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
Original Side Appeals in O.S.A.Nos.140 to 143 of 2011 are filed against the order dated 18.4.2011 made in Application No.1739, 1740, 2184 and 2185 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
Original Side Appeals in O.S.A.Nos.144 to 147 of 2011 are filed against the order dated 18.4.2011 made in Application No.1739, 1740, 2184 and 2185 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
Original Side Appeals in O.S.A.Nos.148 and 149 of 2011 are filed against the order dated 18.4.2011 made in Application Nos. 2184 and 2185 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
Original Side Appeal in O.S.A.No.154 of 2011 is filed against the Order dated 18.4.2011 in Application No.1740 of 2011 in C.S.No.7 of 2011 on the file of this Court.
For Appellant in : Mr.S.Parthasarathy,
O.S.A.Nos.122,123, Sr.Counsel
148 and 149 of 2011 and
Mr.S.Lakshmanasamy
For Appellant in O.S.A.Nos. :Ms.P.T.Asha
144 to 147 of 2011 for
M/s.Sarvabhauman
Associates
For Appellant in : Mr.T.R.Rajagopal,Sr.Counsel
O.S.A.Nos.126 to 128 and
and 138 of 2011 Mr.S.S.Rajesh
For Appellant in : Mr.Vijay Narayan,Sr.Counsel
O.S.A.No.129 of 2011 and
Mr.S.Giridharan
For Appellant in : Ms.Chitra Sampath
O.S.A.Nos.140 to 143 for
of 2011 Mr.Abdul Waheb of
M/s.Anand Abdul & Vinodh
For Appellant in : Mr.Elephant G.Rajendran
O.S.A.Nos.154 of 2011 and - party in person
for Respondent No.4 in
O.S.A.Nos.122,123,126 to 129,
138, 140 to 143, 145 to 149
and Respondent No.5 in
O.S.A.No.144 of 2011.
For Respondent No.1 : Mr.S.Prabakaran
in O.S.A.Nos.122, 123,126, for Mr.Abdul Majeed
to 129,138, 140 to 149
and 154 of 2011
(T.N.Advocates Assn.)
For Respondent No.2 in : Mr.K.Venkatakrishnan
O.S.A.Nos.122, 123, 126 to for Mr.S.Y.Masood
129,138 and 140 to 149
and 154 of 2011
(Bar Council of Tamilnadu)
For Respondent No.3 in : Mr.K.Venkatakrishnan
O.S.A.Nos.122, 123, 126 to
129, 138, 140 to 147 and
154 of 2011
(Bar Council of India)
For Respondent No.8 in : Mr.A.K.Sriram
O.S.A.Nos.128, 138,142,
143 and 146 to 149 of 2011
and for Respondent No.6
in O.S.A.No.129 of 2011
For Respondent No.5 in : No Appearance
O.S.A.Nos.122, 123, 126
127, 140, 141 and 145
of 2011, for Respondent
No.6 in O.S.A.Nos.128,138,
142,143 and 146 to 149
of 2011, for
Respondent No.7 in
O.S.A.No.129 of 2011 and
for Respondent No.4
in O.S.A.Nos.144 and 154
of 2011.
(Mr.S.Vetrivel)
For Respondent No.5 in : No Appearance
O.S.A.No.128 of 2011
and for Respondent No.5
in O.S.A.No.129 of 2011
(Mr.R.K.Chandramohan)
For Respondent No.7 in : No Appearance
O.S.A.Nos.128, 138, 142,
143 and 146 to 149 of 2011
(Mr.Paulpillai)
For Mr.P.Vaithialingam,
Advocate of Omalur : Mr.R.C.Paul Kanagaraj
COMMON JUDGMENT
R.BANUMATHI,J Being aggrieved by the common impugned Order dated 18.4.2011 in Application Nos.1739 and 1740 of 2011 filed by Mr.Elephant G.Rajendran and Application Nos.2184 and 2185 of 2011 filed by Mr.N.S.Ziauddeen in C.S.No.7 of 2011, wherein and by which the learned single Judge interdicted the six elected members viz., Mr.K.R.R.Aiyappamani, Mr.N.Marappan, Mr.K.Kathiravan, Mr.P.Paramasivam, Mr.V.N.Subramaniam and Mr.S.K.Vel from exercising their voting rights as members of Bar Council of Tamil Nadu and re-constituting the Election Tribunal and also directing the above six elected members to face enquiry before the re-constituted Election Tribunal, five elected members (except Mr.K.Kathiravan) have preferred these appeals. Being aggrieved by the order denying investigation by Crime Branch, C.I.D. in respect of alleged corrupt practices during the Election of Bar Council, Mr.Elephant G.Rajendran filed O.S.A.No.154 of 2011.
2. The suit C.S.No.7 of 2011 arises on the following facts:
The Bar Council of Tamil Nadu is a statutory body created under the Advocates Act, 1961 with statutory rights and obligations. As per Section 3 of Advocates Act, there shall be a State Bar Council. As per section 3(3) of the Act, there shall be a Chairman and Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed. As per Section 8 of the Act, the term of office of elected member of a State Bar Council shall be five years from the date of publication of the result of his election.
3. The last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010. In terms of the provisions of Section 8 of the Advocates Act and by virtue of resolution No.77 of 2010 passed by the Bar Council of India, the term of office of the Bar Council of Tamil Nadu was extended for a period of six months with effect from 12.10.2010. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed resolutions fixing the date of election to the Bar Council of Tamil Nadu and Puducherry on 4.3.2011. By another resolution, special committee comprising of five senior advocates of High Court viz., Mr.G.Masilamani, Mr.M.Raveendran, Mr.S.V.Jayaramn, Mr.M.Venkatachalapathy and Mr.T.V.Ramanujam were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions for the conduct of free and fair election and also power to nominate any number of advocates. To assist them in the conduct of elections., three advocates viz., Mr. T.V.Krishnakumar, Mr.S.Muthukrishnan and Mr.K.Mahendiran were appointed as Election tribunal as contemplated by the Rules. By 4th resolution, Bar Council of Tamil Nadu resolved to hand over the administration of the State Bar Council to the Advocate General with a power to sign the cheques and operate the Bank accounts jointly with the Secretary. The election notification was issued on 27.12.2010 and the same was published in Tamil Nadu Government Gazette Part VI - Section 1, No.51-A. The notification was also published in the news papers on the following day and Press Release was issued by the Advocate General on 30.12.2010 confirming the election schedule and the appointment of the Secretary to the Bar Council of Tamil Nadu as the Returning Officer.
4. The 1st respondent Tamil Nadu Advocates Association is registered under the Societies Registration Act with Registration No.98/2008. In the plaint in C.S.No.7 of 2011, the 1st respondent/Plaintiff Association alleged that in the earlier election held in 2005, the election was marred by unprecedented malpractices and gross irregularities were committed by many contesting members. Stating that Plaintiff Association is interested in ensuring a free, fair and transparent election for the Bar Council of Tamil Nadu to be held in March, 2011, the suit has been filed by the 1st respondent/plaintiff represented by its Secretary seeking interalia various directions.
5. Pointing out that inspite of appointment of Committee in the previous elections, there were irregularities in the conduct of free and fair elections, on 12.1.2011, the learned single Judge passed an elaborate order appointing Justice K.P.Sivasubramaniam (Retired) as a Commissioner to oversee and monitor the elections to the State Bar Council. In the said order dated 12.1.2011, the learned single Judge interalia issued various directions as to:- (i) printing of ballot papers; (ii) taking ballot papers to the respective polling stations; (iii) conduct of elections; (iv) involving judicial officers in the Districts and moffusal in nominating an independent observers and to receive ballot papers and sending them back to Madras with police protection and (v) directions as to the transportation of boxes containing polled ballot papers to Chennai and other directions.
6. By the Order dated 2.2.2011, learned single Judge issued further directions involving the judicial officers in the conduct of election to the Bar Council of Tamil Nadu and Puducherry. Detailed reference to various directions may not be necessary. Suffice it to note that the election to the State Bar Council was held on 4.3.2011 under strict vigil. The Judge Commissioner has strictly monitored the conduct of election and the elections were held in strict compliance of the directions of the learned single Judge and also by the Judge-Commissioner. Excepting the stray incidents, the elections were held in free, fair and transparent manner. The counting of votes had commenced on 9.3.2011 and completed on 2.4.2011. The 25 members viz., (1) Mr.K.R.R.Aiyyappamani, Advocate, Salem, (2) Mr.P.S.Amalraj, Advocate, Chennai, (3) Mr.S.Prabakaran, Advocate, Chennai, (4) Mr.R.Arunachalam, Advocate, Coimbatore, (5) Mr.N.Marappan, Advocate, Karur, (6) Mr.R.K.Chandramohen, Advocate, Trichy, (7) Mr.K.K.S.Jayaraman, Advocate, Kancheepuram, (8) Mr.K.Kathiravan, Advocate, Gingee, (9) Mr.V.Karthikeyan, Advocate, Thanjavur, (10) Mr.K.Rajarajan, Advocate, Virudhunagar, (11) Mr.M.Velmurugan, Advocate, Chennai, (12) Mr.P.Paramasivam, Advocate, Salem, (13) Mr.V.N.Subramaniam, Advocate, Erode, (14) Mr.V.Yuvaraj, Advocate, Krishnagiri, (15) Mr.T.Michael Stanis Prabhu, Advocate, Tuticorin, (16) Mr.A.Natarajan, Advocate, Chennai (17) Mr.N.Sampath, Advocate, Cuddalore, (18) Mr.E.T.Rajendran, Advocate, Madurai, (19) Mr.D.Selvam, Advocate, Chennai, (20) Mr.M.Varadhan, Advocate, Chengalpattu, (21) Mr.K.Veluchamy, Advocate, Madurai, (22) Mr.S.K.Vel, Advocate, Namakkal, (23) Mr.K.Ranganathan, Advocate, Puducherry, (24) Mr.G.Thalaimuthurasu, Advocate, Madurai and (25) Mr.Ariyalur Annasamy Venkatesan, Advocate, Chennai were declared elected as members of the Bar Council of Tamil Nadu. Advocate General has certified the list of elected candidates. As per Rule 34 of the Election Rules of Bar Council of Tamil Nadu, the list of elected members was published in the Tamilnadu Government Gazette on 5.4.2011.
7. As per the order in Application No.450 of 2011, 4th respondent Mr.Elephant G.Rajendran was impleaded as 3rd defendant. The 4th respondent/3rd defendant filed applications A.No.1244 of 2011 to implead Mr.Chandramohan, former Chairman of Bar Council as 4th defendant and A.No.1245 of 2011 seeking for a direction not to allow Mr.Chandramohan to contest the elections to be held on 4.3.2011. The learned single Judge ordered both the applications. On the orders in A.No.1244 of 2011, Mr.Chandramohan was impleaded as 4th defendant and in A.No.1245 of 2011, the learned single Judge directed the Bar Council of Tamil Nadu not to permit Mr.Chandramohan to assume office and discharge the functions as elected member of the Bar Council of Tamil Nadu and Puducherry in the event of his being declared successful till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate direction from the Apex Court,which ever is earlier. The said order was the subject matter of challenge in O.S.A.Nos.78 and 79 of 2011 and both the appeals came to be dismissed by us by the judgment dated 9.4.2011.
8. Certain malpractices were reported in Nagercoil and Padmanabapuram of Kanyakumari District. On the report filed by the Polling Observers and Judge Commissioner, earlier, by common order dated 8.3.2011 made in Application Nos.450, 1205, 1244 and 1246 of 2011, the learned single Judge has invalidated the votes polled at Nagercoil and Padmanabapuram. The applications filed by Nagercoil Bar Association in A.No.1600 of 2011 and the Padmanabapuram Bar Association in A.No.1628 of 2011 came to be dismissed on 23.1.2011, which was the subject matter of appeal before us in O.S.A.Nos.88 and 98 of 2011. Both the appeals were dismissed by us by the Judgment dated 9.4.2011.
9. Our earlier judgments in the above appeals would have little relevance. We are referring to those appeals only to narrate the background facts.
10. The factual background of filing of Application A.Nos.1739 and 1740 of 2011:
As pointed out earlier, the counting of votes commenced on 9.3.2011 and completed on 2.4.2011. The 4th respondent Mr.Elephant G.Rajendran filed the applications in A.Nos.1739 and 1740 of 2011 stating that he received letter/affidavits from some of the Advocates from the State (i) Smt.Aruljothi of the Bhavani Bar stating that one of the contesting candidates contributed Rs.1 lakh to Bhavani Bar Association; (ii) one Mr.M.Siva Suresh of Mettupalayam has sworn to an affidavit to the effect that one of the contesting candidates by name Ayyappamani distributed gold coins and Rs.3,500/- to the voters; (iii) an Advocate by name Mr.G.Muniyandi of Mettupalayam has sent his sworn affidavit stating that one Mr.K.P.Narayanan had given diaries to the voters to lure them to vote in his favour; (iv) two other candidates by name Mr.S.K.Velu and Mr.V.N.Subramanian have distributed Rs.10 lakhs to the voters; (v) Advocate by name Mr.Thamarai Selvan of Salem District has sent an affidavit stating that the candidate by name Mr.Paramasivam gifted a travel bag to him to tender his vote in favour of Mr.Paramasivam. On those allegations, the 4th respondent in Application No.1739 of 2011 prayed for a direction to the Secretary, Bar Council of Tamil Nadu not to declare the Bar Council Election results till the disposal of his applications. In Application No.1740 of 2011, 4th respondent prayed to "direct the Addl.D.G.P., Crime Branch C.I.D. to investigate the malpractice/ corrupt practices and other illegal happenings took place during the Bar Council Election and to file a report within two weeks."
11. The factual background of filing of Application A.Nos.2184 and 2185 of 2011:
Mr.N.S.Ziauddeen has filed these applications making allegations without actually naming any particular candidate. In these applications, Mr.N.S.Ziaudeen has alleged that there are F.I.Rs pending against members and further averred that extraneous considerations have played vital part in the election and alleged that a candidate from Salem has given gold coins to the voters along with money and also alleged various corrupt practices. In the said two applications, Mr.N.S.Ziauddeen prayed:
(i) to constitute a Special Election Tribunal to enquire into the activities; and
(ii) to stay the declaration of results of the elections held on 4.3.2011 pending submission of the report by the Special Election Tribunal.
12. The Judge - Commissioner had also filed the report expressing his concern about certain malpractices brought to his notice. In the report, the Judge Commissioner expressed his concern about money playing a major part in the election. Observing that serious allegations of corrupt practices are averred in the affidavits and that the Court is continually monitoring the election process, by the impugned order, the learned single Judge interalia issued four major directions:
(i) Advocate General is discharging the functions of Bar Council and that the Advocate General has consented that the new Election Tribunal could be re-constituted. The Election Tribunal already constituted was superseded and in the place of Election Tribunal already constituted, new Election Tribunal was directed to be constituted.
(ii) Affidavits of Mr.Elephant G.Rajendran and Ziauddeen and other Advocates P.Vaithialingam, Advocate of Omalur, Mr.Thamarai Selvan, Advocate, Salem, Mr.G.Muniyandi, Advocate, Mettupalayam, Mr.M.Siva Suresh, Advocate, Mettupalayam were ordered to be forwarded to the Election Tribunal.
(iii) Election Tribunal was directed to hold enquiry and after completion of the enquiry, Election Tribunal was directed to prepare a report regarding its findings and submit the same in a sealed cover to the Court on or before 30.6.2011.
(iv) Six candidates viz., Mr.K.R.R.Aiyappa Mani, Mr.N.Marappan, Mr.K.Kathiravan, Mr.P.Paramasivam, Mr.V.N.Subramaniam and Mr.S.K.Vel shall not exercise any rights or discharge any functions as elected members of the Bar Council of Tamil Nadu. The above six persons may participate in the meetings of the Council, but they shall have no voting rights and the six persons shall not be nominated to any of the Committees of the Bar Council. The six persons shall not be entitled either to contest or to vote in the election to the post of Chairman.
(v) On the basis of the outcome of the enquiry to be conducted by the Election Tribunal, the election to the post of Chairman shall stand deferred.
13. It is to be pointed out that the appellants, who are the elected members and Mr.K.Kathiravan were not parties in the applications in A.Nos.1739, 1740, 2184 and 2185 of 2011 filed by Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen. Since the appellants were not parties in those applications, leave was granted to all the appellants to file appeals. On leave granted by this Court, challenging the impugned order, the appellants have preferred appeals.
14. We have heard all the learned counsel appearing for the appellants. The Appellant in O.S.A.Nos.122, 123, 148 and 149 of 2011 is represented by learned Senior Counsel Mr.S.Parthasarathy appearing along with Mr.S.Lakshmanasamy. The Appellant in O.S.A.Nos.144 to 147 of 2011 is represented by Ms.P.T.Asha on behalf of M/s.Sarvabhauman Associates. The Appellant in O.S.A.Nos.126 to 128 and 138 of 2011 is represented by Mr.T.R.Rajagopal, Senior Counsel and Mr.S.S.Rajesh. The Appellant in O.S.A.No.129 of 2011 is represented by learned Senior Counsel Mr.Vijay Narayan appearing along with Mr.S.Giridharan. The Appellant in O.S.A.Nos.140 to 143 of 2011 are represented by Ms.Chitra Sampath for M/s.Anand Abdul & Vinodh. We have also heard Mr.Elephant G.Rajendran, who appeared as party in person in O.S.A.Nos.154 of 2011 as appellant and in other appeals as respondent. We have heard Mr.Prabakaran, learned counsel appearing for Tamil Nadu Advocates Association, Mr.S.Y.Masood, learned counsel appearing for the Bar Council of Tamil Nadu, Mr.K.Venkatakrishnan, learned counsel appearing for the Bar Council of India and Mr.A.K.Sriram, learned counsel appearing for Mr.N.S.Ziauddeen.
15. The learned Senior Counsel Mr.Vijay Narayan appearing for the Appellant - Mr.S.K.Velu has submitted that all the directions issued by the learned single Judge are in flagrant violation of the statutory rules and no Court can issue directions against the statutory provisions. Placing reliance upon the decision of Supreme Court in POONAM VS. SUMITTANWAR, ((2010) 4 SCC 460), the learned Senior Counsel would further contend that Court should not issue any direction to waive the statutory requirement and Court cannot supplant the substantive law by ignoring the statutory provisions. The learned Senior Counsel laid emphasis that there is no provision of law to prevent the Appellant, who was elected as member from functioning as member of the State Bar Council. The learned Senior Counsel submitted that the supporting affidavits of three advocates filed by Mr.Elephant G.Rajendran are devoid of material particulars against the appellant. Arguments were also advanced assailing the direction of the learned single Judge reconstituting the Election Tribunal, when Election Tribunal constituted by the State Bar Council is already in existence.
16. On behalf of the appellant - Mr.V.N.Subramaniam, learned Senior Counsel Mr.S.Parthasarathy has submitted that the the affidavits are bereft of particulars and the impugned order was passed in gross violation of principles of natural justice and in all the four applications viz., A.Nos.1739, 1740, 2184 and 2185 of 2011, the six elected candidates were not even made as parties and without impleading them the order came to be passed. The learned Senior Counsel would further contend that the matter is with reference to the proceedings initiated in the Suit and not in a public interest litigation and in the Civil Suit, the parties are governed by the Civil Procedure Code or the High Court Original Side Rules. Drawing the Court's attention to various affidavits, the learned Senior Counsel further submitted that the alleged three supporting affidavits of various advocates filed by Mr.Elephant G.Rajendran are bereft of particulars and it would be unsafe to act upon such affidavits and the learned single Judge erred in referring those affidavits to the Election Tribunal.
17. Reiterating the above submissions, onbehalf of the appellant Mr.P.Paramasivam, the learned Senior Counsel Mr.T.R.Rajagopal has submitted that when the appellants are elected by large number of legal fraternity, while dealing in a civil suit, the learned single Judge did not have jurisdiction to injunct the elected members from functioning as members. It was further submitted that based on one stray petition/affidavit, the learned single Judge erred in upsetting the entire democratic process of election, which the appellants have gone through.
18. On behalf of the Appellant - Mr.K.R.R.Aiyyappamani, learned Counsel Ms.Chitra Sampath drawing our attention to the various affidavits, has contended that learned single Judge erred in deviating from the statutory provision Rule 36 of the Election Rules of Bar Council of Tamil Nadu. Drawing our attention to the various affidavits, the learned counsel would contend that absolutely there are no specific allegations against the appellant Aiyyappamani and the affidavits are bereft of particulars. It was further submitted that the averments in the affidavits are only hearsay. The learned counsel would further submit that only after appellant Aiyyappamani has crossed the mark of the required votes, the applications came to be filed only with a view to discredit the appellant, who was successful in the election.
19. On behalf of the appellant - Mr.N.Marappan, learned counsel Ms.P.T.Asha has submitted that absolutely there is no reference about the appellant in any of the affidavits filed by Mr.Elephant G.Rajendran. While so, the learned single Judge erred in debarring the appellant- Mr.N.Marappan from functioning as a member of the State Bar Council.
20. We have heard Mr.S.Prabakaran, learned counsel appearing for the Tamil Nadu Advocates Association. Supporting the findings of the learned single Judge, learned counsel Mr.Prabakaran has mainly assailed the validity of the Resolution dated 23.12.2010 passed by the Bar Council of Tamil Nadu. The main contention of the learned counsel Mr.Prabakaran is that the tenure of the elected members of Bar Council of Tamil Nadu expired even on 12.10.2010 and in the absence of specific communication from Bar Council of India extending their tenure in terms of proviso to Section 8, on 23.12.2010, Bar Council of Tamil Nadu was a non-existent body and it cannot pass resolution constituting the Election Tribunal. The learned counsel would further contend that when the term of the then members had already expired, the learned single Judge rightly issued direction re-constituting the Election Tribunal and there is nothing to show that the single Judge exceeded the jurisdiction. It was further argued that under Section 94(e) of CPC supplementary proceedings would empower the single Judge to pass appropriate orders to meet the ends of justice and therefore it cannot be said that the single Judge has usurped the powers of the Bar Council of Tamil Nadu. In support of his contention, Mr.Prabakaran relied upon the judgment of Supreme Court in BABU VERGHESE V. BAR COUNCIL OF KERALA, ((1999) 3 SCC 422).
21. Laying emphasis upon the Judge Commissioner's Report Mr.Elephant G.Rajendran has submitted that the entire poll process was riven with corrupt practices and there was widespread allegations of corruption and buying of associations. Learned Counsel submitted that having regard to the widespread allegations of corruption, the learned single Judge ought to have ordered independent investigation by C.B.,C.I.D and till such time the declaration of election results ought to have been stayed. Being aggrieved with the order of the learned single Judge in not ordering for investigation by the police, Mr.Elephant G.Rajendran has preferred O.S.A.No.154 of 2011.
22. Mr.A.K.Sriram, learned counsel appearing for Mr.N.S.Ziauddeen - applicant in A.Nos.2184 and 2185 of 2011 has submitted that the applicant has neither contested the election nor an aspirant for the post in future and in view of the widespread corrupt practices and buying of associations, to ensure the integrity and calibre of the Institution Bar Council of Tamil Nadu, the appellant has filed Application Nos.2184 and 2185 of 2011. The learned counsel would further submit that having regard to the Judge - Commissioner's report, the learned single Judge rightly constituted the Election Tribunal in the place of the Tribunal already constituted by the Bar Council of Tamil Nadu and the Order of learned single Judge does not suffer from any infirmity.
23. Much argument was advanced by Mr.Prabakaran assailing the Resolution passed by the Bar Council of Tamil Nadu on 23.12.2010. The main contention of Mr.Prabakaran is that in terms of proviso to Section 8 of Advocates Act, term of Bar Council of Tamil Nadu was not extended and when there was no valid body in existence, on the statement made by Advocate General, who is in-charge of the day to day administration of the Bar Council of Tamil Nadu, the learned single Judge rightly re-constituted Election Tribunal superseding the Election tribunal already constituted by Resolution passed on 23.12.2010. Extensive arguments were advanced assailing the correctness of the extension of the term of the Bar Council of Tamil Nadu. We propose to deal with the said contention little later, after individually dealing with various directions issued by the learned single Judge. Lest, we may go astray from the main points falling for consideration in these appeals.
24. Prayers in the four applications are beyond the scope of the suit:-
In the plaint, the plaintiff has prayed for
(i) for declaration that the Press Release dated 30.12.2010 (R.O.C.No.1733 of 2010) announcing the election to the Bar Council of Tamil Nadu on 4.3.2011 is null and void;
(ii) declaring that the electoral rolls published by State Bar Council is for the election of its members to be held on 4.3.2011 is null and void;
(iii) appointing a retired Judge of the High Court to conduct the election of members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcing of successful candidates and
(iv) grant an order of permanent injunction restraining State Bar Council from proceeding with the electoral process in pursuance of its press release dated 30.10.2010 (R.O.C.No.1733 of 2010).
25. As per the election schedule fixed by the Resolution No.373 of 2010 dated 23.12.2010, the elections were held on 4.3.2011. Counting of votes commenced on 9.3.2011 and completed on 2.4.2011 and election results were announced on the same day. As pointed out earlier, on 5.4.2011, the Advocate General has certified the 25 members as duly elected as members of the Bar Council of Tamil Nadu and it was also published in the Gazette on 20.4.2011. Thereafter, in our considered view, almost nothing further remains in the Suit for consideration except to record the result of the election and the aggrieved parties, if any, to have recourse, in accordance with the statutory provisions. Of course, as per Rule 34(3) of the Election Rules, on the publication of the list in the Official Gazette, the persons, whose names, appeared in the list, shall be deemed to have been declared elected. But the fact remains, that when the Application Nos.1739 and 1740 of 2011 were filed by Mr.Elephant G.Rajendran on 17.3.2011, election already completed and counting of votes commenced. By the time application Nos.2184 and 2185 of 2011 came to be filed by Mr.N.S.Ziauddeen on 11.4.2011, the election results were announced and list of elected members was also certified by the Advocate General on 5.4.2011.
26. In Application Nos.1739 of 2011, applicant Mr.Elephant G.Rajendran has prayed for:-
"direction to the Secretary, Bar Council of Tamil Nadu not to declare the Bar Council Election results till the disposal of the application"
and in Application No.1740 of 2011, he prayed to "direct the Addl.D.G.P., Crime Branch C.I.D. to investigate the malpractice corrupt practices and other illegal reports took place during the Bar Council Election and to file a report within two weeks."
Mr.N.S.Ziauddeen has filed Applications in A.Nos.2184 and 2185 of 2011 praying:-
(i) to constitute a Special Election Tribunal to enquire into the activities; and
(ii) to stay the declaration of results of the elections held on 4.3.2011 pending submission of the report by the Special Election Tribunal.
By reading the prayer in the plaint and the prayers in the applications, it is clear that the prayers sought for in the applications are beyond the scope of the suit.
27. As rightly contended by the learned Senior Counsel Mr.Parthasarathy, the plaintiff has filed the civil suit seeking for various reliefs and we are dealing with a Civil Suit, which is an adversarial litigation. The rights of parties are to be determined on the basis of the averments in the plaint, the issues framed/points falling for determination in the suit. The reliefs prayed for in the applications should be within the limits of the main prayer in the suit. It is not, as if the Court was dealing with, a public interest litigation but a civil suit. Merely because in the Order dated 12.1.2011, the learned single Judge has observed that "the Court will monitor the progress of the entire election process till the results are announced", it does not mean that the Court can stretch its arms as that of a public interest litigation. The Court ought not to have extended its jurisdiction beyond the scope of the suit itself. In our considered view, after declaration of the results of the election to the Bar Council of Tamil Nadu, nothing more remains to be adjudicated in the suit.
28. Violation of Principles of natural justice:- When certain corrupt practices were alleged against the elected learned members of the Bar, in fairness, they ought to have been impleaded as respondents in the applications. When allegations were made against the appellants, leave alone the vagueness in the affidavits, they ought to have been impleaded as respondents in the applications. Without impleading the appellants, the order ought not to have been passed. Whenever there are allegations of misconduct, corrupt practices, the fundamental principle is that audi alterem partem has to be complied with. The learned single Judge fell in error in passing the impugned order in the applications in which the appellants were not shown as respondents, nor notice was ordered to them.
29. What are the requirements of natural justice in a case of this kind? - Firstly, the person against whom certain allegations are made should know the nature of allegations made; secondly that he should be given an opportunity to state his case. When appellants were not made parties in the applications, and non-affording of opportunity to the appellants and the violation of principles of natural justice has caused serious prejudice to the appellants, who have been elected as members of the Bar Council of Tamil Nadu in a democratic manner. We would have set aside the impugned order only on the ground of violation of principles of natural justice. Since each and every one of the directions of the learned single Judge is in violation of the statutory rules, it is necessary to deal with individually each and every one of the directions issued by the learned single Judge, which are in clear violation of the statutory rules.
30. Direction to constitute the Election Tribunal:- In A.No.2184 of 2011, the applicant Mr.N.S.Ziauddeen has prayed to constitute Special Election Tribunal to inquire into the activities detailed in the affidavit. As pointed out earlier, the prayer in the application is not within the scope of the prayer in the main suit. In compliance of Rule 36(1), by the Resolution No.375/2010 dated 23.12.2010, the Bar Council of Tamil Nadu constituted the Election Tribunal consisting of:-
(i) Shri T.V.Krishnakumar, Advocate,
(ii) Shri S.Muthukrishnan, Advocate
(iii) Shri K.Mahendiran, Advocate By the resolution No.376 of 2010 passed on 23.12.2010, day to day administration of the Bar Council of Tamil Nadu was handed over to the Advocate General. On the statement made by the Advocate General, the learned single Judge re-constituted the Election tribunal after superseding the Tribunal already appointed by the Resolution of Bar Council of Tamil Nadu dated 23.12.2010. The direction of the learned single Judge reads as under:
".... The learned Advocate General suggested that this Court could order an inquiry by an Election Tribunal, reconstituted after superseding the Tribunal appointed by the resolution dated 23.12.2010. Since this suggestion is made by the learned Advocate General himself, who now discharges all the functions of the Bar Council, I am of the view that the Election Tribunal could be re-constituted. It is needless to point out that the power to reconstitute an Election Tribunal vests with the Bar Council under Rule 36 (1) and the Bar Council itself has conceded that the same could be re-constituted. The power to constitute includes the power to reconstitute. Therefore, there is no legal impediment for me to re-constitute the Tribunal...."
31. Under Rule 36 of the Election Rules, the Election tribunal is constituted for the purpose of deciding all the disputes under Rule 35. Rule 36 reads as under:
"36. (1) All disputes under the above rule shall be decided by Election Tribunal consisting of three advocates of more than 10 years standing on the Roll of this Bar Council appointed by the Bar Council on or before the date on which the election is fixed. The Secretary of the Bar Council shall act as the Registrar of the Tribunal. Senior among the three shall be Chairman of the Tribunal.
(2) Where there is or are one or more vacancies in the tribunal by reason of death, resignation or any cause whatsoever the same shall be filled up by one Bar Council of India from amongst advocates on the roll of the State Bar Council concerned."
32. Let us now analyse the essentials of Rule 36:-
(i) under Rule 36, Election Tribunal is constituted for the purpose of deciding disputes only to cases falling under Rule 35 and not any other;
(ii) Such Election Tribunal has to be appointed by the Bar Council (State Bar Council) with three advocates of more than ten years standing on the roll of the Bar Council;
(iii) Election Tribunal has to be constituted on or before the date of election. While so, the learned single Judge erred in taking the consent of the Advocate General to reconstitute the Election tribunal.
33. The direction of the learned single Judge to re-constitute the Tribunal is in violation of law for the reasons:-
(i) there was validly constituted Tribunal already in existence;
(ii) no reason was given by the Advocate General to change the Election Tribunal already in existence;
(iii) no reasons were stated by the learned single Judge to change the Election Tribunal then in existence; and
(iv) the Election Tribunal has to be notified on or before the election and cannot be notified after the election.
The results were announced on 2.4.2011. The direction of the learned single Judge re-constituting the Tribunal is much after declaration of results. The direction of the learned single Judge to re-constitute the Tribunal is in clear violation of Rule 36.
34. Direction to refer complaints allegedly received from some of the advocates and affidavits of Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen and to treat them as Election Petitions. Violation of Rule 35 of Election Rules of Bar Council of Tamil Nadu:
In his applications, Mr.Elephant G.Rajendran referred to affidavits of certain advocates said to have been received by him viz, Affidavits of (i) Mr.P.Thamarai Selvan, Advocate, having office at Ramamurthypudur, Puthumariyamman Koil Post, Salem-3 having enrollment No.509/88; (ii) one Mr.G.Muniyandi, Advocate having office at No.30, Krishnaswamy Nadar Lane, Mettupalayam Post, Coimbatore having enrollment No.1051/2007; (iii) one Mr.Siva Suresh, Advocate, having office at No.9/4/20, Annur Road, Mettupalayam Post, Coimbatore having enrollment No.1189/98 and (iv) one Mr.P.Vaithialingam, Past President of Omalur Advocates Bar Association alleging corrupt practices against Mr.KR.R.Aiyappa Mani, Mr.N.Marappan, Mr.K.Kathiravan, Mr.P.Paramasivam, Mr.V.N.Subramaniam and Mr.S.K.Vel. After extracting the contents of affidavit/letter allegedly sent by Mr.P.Vaithialingam, the learned single Judge referred the complaints received against the six advocates to the Election Tribunal re-constituted by the learned single Judge.
35. In doing so, the learned single Judge appears to have solicited the suggestions from applicant Mr.Elephant G.Rajendran and the other applicant Mr.N.S.Ziauddeen,as seen from paragraph No.20 of the impugned judgment, which reads as under:
"20. Two suggestions have emerged at the Bar as to the possible course of action available to me. While one is by Mr.Elephant G.Rajendran, who suggests an investigation to be conducted by a Police Officer of the rank of Additional Director General of Police, the other is by Mr.N.S.Ziauddeen, who suggests the constitution of a Special Election Tribunal to enquire into the allegations and to submit a report. Both of them also request that the declaration of results be withheld."
36. It is pertinent to note that Mr.S.Prabakaran, learned counsel appearing for the plaintiff fairly submitted before the single Judge that in contrast to the earlier elections held in 2005, the elections in 2011 were conducted in a free, fair and transparent manner. The learned single Judge directed the constitution of the Election Tribunal and observed that (i) the letter of Mr.P.Vaithialingam of Omalur Advocates Bar Association (ii) affidavit of Mr.P.Thamarai Selvan, (iii) affidavit of Mr.G.Muniandi, (iv) affidavit of Mr.M.Siva Suresh (v) affidavit of Mr.Elephant G.Rajendran and (vi) affidavit of Mr.N.S.Ziaudden could be forwarded to the Election Tribunal to be treated as election petitions. The learned single Judge further directed the Election Tribunal to hold an enquiry and send the report to the Court in a sealed cover. The direction of the learned single Judge referring the affidavits to the Election Tribunal for being treated as Election Petitions is in clear violation of Rule 35 of Election Rules of Bar Council of Tamil Nadu.
37. Rule 35 prescribes the procedure for contesting the validity of the election of a candidate declared to have been elected to the Council. Rule 35 reads as under:
"35. (1) Any voter may contest the validity of the election of a candidate declared to have been elected to the Council by a petition signed by him and supported by an affidavit and delivered to the Secretary personally or sent by Registered Post to the Secretary within 15 days from the date of publication of the results in the Official Gazette.
(2) Such petition shall be accompanied by a fee of Rs.1000/- by way of demand draft in favour of the Secretary, Bar Council of Tamil Nadu and it is not refundable.
(3) No election shall be called in question except one or more of the following grounds:
(a) Fraud, Coercion or undue influence and any form of corruption in the conduct of the election.
(b) Violation of the provisions of the Act or rules or commission of an election offence or irregularity materially affect the results of the Election.
(4) Such petition shall include as respondents the contesting candidates with their addresses. The affidavit and petition shall be accompanied by as many copies thereof as there are respondents."
38. As per Rule 35(1), any voter may contest the validity of the election of a candidate declared to have been elected to the Council by a petition signed by him supported by an affidavit. As pointed out earlier, the learned single Judge forwarded the letter of Mr.P.Vaithialingam of Omalur Advocates Bar Association and the affidavit of Mr.P.Thamarai Selvan, Mr.G.Muniandi, Mr.M.Siva Suresh, Mr.Elephant G.Rajendran and Mr.N.S.Ziaudden to the Election Tribunal to be treated as election petitions. As per Rule 2(xix), 'voter' means a person whose name is included in the Electoral Roll. As per Rule 35(1), only a voter is entitled to question the validity of election of a candidate declared to have been elected to the Council. It is not known whether the deponents Mr.P.Thamarai Selvan, Mr.G.Muniandi and Mr.M.Siva Suresh are eligible voters. It is pertinent to note that Salem Bar Association had issued a certificate to the effect that Mr.P.Thamarai Selvan. S/o.Palanisamy (Enll.No.509/1988) said to be residing at Ramamurthypudur, behind R.K.Ganesh Teater, Puthumariamman Koil Post, Salem 3 is not the member of the Salem Bar Association. In so far as Mr.P.Vaithialingam, during the course of arguments, he appeared before us and represented by learned counsel Mr.R.C.Paul Kanagaraj. Mr.P.Vaithalingam had also filed an affidavit stating that he has not sent any complaint, which is alleged to have been sent by him and this Court has also verified Identity Card of Mr.P.Vaithiyalingam bearing M.S.No.1169 of 1992, which was produced by him and the affidavit was ordered to be received. Referring the affidavits to the Election Tribunal is on presumptive footing that the deponents are eligible voters.
39. As per Rule 35(1), if any voter wants to challenge the election, he has to sign the petition, supported by an affidavit, which has to be delivered to the Secretary personally or by Registered Post with Acknowledgement due. Election Petition has to be presented only in the manner prescribed under Rule 35(1). The affidavits sent to applicant Mr.Elephant G.Rajendran or to the Court cannot be treated as Election Petitions. Direction of learned single Judge to treat the affidavits of the above said advocates and also applicants Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen is in clear violation of Rule 35(1).
40. As per Rule 35(1), the Election Petition has to be filed within fifteen days from the date of publication of the results in the Official Gazette. As per Rule 34(3), the members shall be deemed to have been declared elected only on the publication of the list of the persons elected in the Official Gazette. Rule 35(1) thus contemplates that the Election Petition could be filed only after the Gazette Notification and within fifteen days from the date of publication of the results in the Official Gazette. The affidavits, which are stated to have been received by Mr.Elephant G.Rajendran are much earlier to the publication of results in the Official Gazette. The learned single Judge has completely ignored the statutory rules by issuing direction to forward the affidavits and to treat them as Election Petitions and is in clear violation of Rule 35(1).
41. As per Rule 35(4), the Election Petition contesting the validity of election of a successful candidate shall include as respondents, the contesting candidates with their addresses. The affidavit and petition shall be accompanied as many copies thereof as there are respondents. In the election of State Bar Council - 2011, 172 candidates have contested in the election. Therefore, as per Rule 35(4), the Election Petition has to include all 172 contesting candidates as respondents. Under the Representation of People's Act, a petition challenging the election of a successful candidate is required to set out certain particulars and to join all contesting candidates as necessary parties to that petition, and if it omits to comply with any of the mandatory provisions of the Act the election petition is liable to be dismissed under Section 86(1) of that Act.
42. As per Rule 38, the powers of the Tribunal shall be of a Civil Court under the Civil Procedure Code and the enquiry regarding the election Petition shall be governed by Civil Procedure Code. The Election Petition shall include all 172 candidates as respondents along with their addresses and as many copies of affidavits and petitions have to be filed as there are respondents. Hence, for service of notice to the respondents, who are the contesting candidates, Order 5 C.P.C. will be applicable. In our considered view, the learned single Judge erred in proceeding under the presumptive footing by presuming that the deponents are ready to file the necessary copies for serving on the respondents and also meeting the expenses for serving notice on all the 172 contesting candidates. The direction referring the affidavits of the deponents as well as the affidavits of the applicants Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen to the Election Tribunal is in clear violation of Rule 35(4).
43. As per Rule 35(2), Election Petition shall be accompanied by a fee of Rs.1,000/- by way of demand draft in favour of the Secretary, Bar Council of Tamil Nadu and it is not refundable. Neither the affidavits of the advocates Mr.P.Thamarai Selvan, Mr.G.Muniyandi and Mr.Siva Suresh nor the affidavits of applicants Mr.G.Rajendran and Mr.N.S.Ziauddeen are accompanied by a fee of Rs.1,000/-. The learned single Judge observed that since election is monitored by Court from day one, small deviation from the Election Rules, such as non-payment of fee of Rs.1,000/- as prescribed by Rule 35(2) and non-compliance with the strict Rules of procedure prescribed under Rule 35(1) need not be considered as flagrant violation of the Rule. When the statutory rules stipulate to do a certain thing in a certain way, the thing must be done in that way or not at all. The learned single Judge fell in error in saying that non-payment of fee of Rs.1,000/- as prescribed by Rule 35(2) is only a small deviation and that it need not be considered as a flagrant deviation of the Rules.
44. It is fairly well settled that when any particular procedure is prescribed under any statute, the act must be done in that manner or not at all. In BABU VERGHESE VS. BAR COUNCIL OF KERALA, (AIR 1999 SC 1281= (1999) 3 SCC 422), the Supreme Court held as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 = AIR 1936 PC 253, who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662 = AIR 1961 SC 1527. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358 = (1964) A1 SCWR 57 and the rule laid down in Nazir Ahmad case (supra), was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
45. The Courts are meant to enforce the law. No Court can issue a direction to deviate from the statutory rules. In this regard, the learned Senior Counsel Mr.Vijay Narayan placed reliance upon POONAM VS. SUMIT TANWAR, ((2010) 4 SCC 460), wherein the Supreme Court held as under:
"7. The courts are meant to enforce the law and therefore, are not expected to issue a direction in contravention of law or to direct the statutory authority to act in contravention of law. While deciding the said case, reliance has been placed upon a large number of judgments of this Court including Constitution Bench judgments of this Court viz. Prem Chand Garg v. Excise Commissioner, (AIR 1963 SC 996); Supreme Court Bar Assn. v. Union of IndiA ((1998) 4 SCC 409) and E.S.P. Rajaram v. Union of India ((2001) 2 SCC 186)"
46. As per Rule 35(3), election can be called in question only on the grounds of fraud, coercion or undue influence and any form of corruption in the conduct of the election. Further violation of the provisions of the Act or rules or commission of an election offence or irregularity materially affect the result of the Election. Let us now consider the affidavits themselves. The learned single Judge directed that the letter of Mr.P.Vaithiyalingam, Advocate of Omalur Bar Association, affidavits of Mr.P.Thamarai Selvan, Mr.G.Muniandi, Mr.M.Siva Suresh and the affidavits of applicants - Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen to the Election Tribunal to be forwarded to the re-constituted Election Tribunal to be treated as Election Petitions. As pointed out earlier, Mr.P.Vaithialingam (M.S.No.1169 of 1992) of Omalur Advocates Bar Association has denied having sent any such letter head paper of Omalur Advocates Bar Association. Mr.P.Thamarai Selvan is stated to be not a member of Salem Bar Association.
47. By a perusal of the affidavits of Mr.P.Thamarai Selvan, Mr.G.Muniyandi, Mr.M.Siva Suresh, it is seen that all the three affidavits are attested by the same advocate Mr.R.Sivakumar (M.S.No.582/1999). Excepting one paragraph, the other averments in all the three affidavits are verbatim the same. All the affidavits only refer to the media reports as to the alleged corrupt practices. All three affidavits are only hear say and particularly not stated against anybody about the receipt of money and the affidavits are very vague. In the affidavits, prima facie, there is no allegation of corruption. In the affidavits, there are no averments as to how the deponents came to know about the alleged corrupt practices. The averments in the affidavit of Mr.Elephant G.Rajendran also only refer to the affidavits received by him. The averments in the affidavit of Mr.Elephant G.Rajendran do not contain any specific allegations. Equally, there are no specific allegations in the affidavit filed by Mr.N.S.Ziauddeen. All the averments are only general allegations and no specific allegations are made against any individual. It is pertinent to note that Mr.N.S.Ziauddeen appears to have filed the application only on 7.4.2011 and by that time the final results came to be declared and the Advocate General has also certified the list of declared elected candidates.
48. In the report filed by the Judge Commissioner on 10.4.2011, the Judge Commissioner refers to the complaints received by him from Mr.P.Vaithialingam dated 17.3.2011, (2) Mr.R.Srinivasan, Advocate, Salem, (3) Affidavit of Mr.Elephant G.Rajendran dated 30.3.2011. The report of the Judge Commissioner thus only refers to the complaints received by the Commissioner.
49. Election Petition is a serious matter and it cannot be treated lightly. It is fairly well settled that in the election petitions all material facts must be pleaded by the party in support of the case set by him and in the absence of pleadings, the party cannot be allowed to lead evidence. Failure to state even a single material fact would result in dismissal of the suit or petition. Emphasising the necessity for averments of material facts, in ANIL VASUDEV SALGAONKAR VS. NARESH KUSHALI SHIGAONKAR, ((2009) 9 SCC 310), the Supreme Court has held as under:
"57. It is settled legal position that all material facts must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of material facts on which the petitioner relies.
........
59. In the context of a charge of corrupt practice, material facts would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if material facts are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.
50. As pointed out earlier, in the three affidavits of Mr.P.Thamarai Selvan, Mr.G.Muniyandi and Mr.M.Sivasuresh and also the affidavits of Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen, the material facts are not pleaded. Before referring the affidavits to the Election Tribunal for being treated as Election Petitions, the learned single Judge ought to have been prima facie satisfied as to the material facts averred as to the alleged corrupt practices. The affidavits are bereft of particulars and the learned single Judge erred in referring the above said affidavits to the Election tribunal for treating them as Election Petitions.
51. If really the deponents P. Thamarai Selvan, G.Muniyandi and M.Siva Suresh came to know about the alleged corrupt practices, they could have preferred the complaints before the Election Commissioner then and there. The learned single Judge did not keep in view that there was no contemporaneous complaints by the deponents. Mr.Elephant G.Rajendran filed applications Nos.1739 and 1740 of 2011 on 17.3.2011 and later came to be re-presented only on 21.3.2011 and taken on file on 22.3.2011. It is pertinent to note that even by 22.3.2011, one of the appellants Mr.Aiyyappamani obtained more than the quota and he was declared elected. Mr.Elephant G. Rajendran, who himself was a contesting candidate, filed the Petitions only on 17.3.2011. Mr.N.S.Ziauddeen filed Application Nos.2184 and 2185 of 2011 on 7.4.2011 and by that time the results of the election were announced and the list of elected candidates were fully certified by the Advocate General. Under no stretch of imagination, the affidavits filed by the deponents Mr.Elephant G.Rajendran and Mr.N.S.Ziauddeen and the alleged letter of Mr.P.Vaithialingam could be treated as Election Petitions. The direction of the learned single Judge in referring the affidavits to the Election Tribunal is in clear violation of Rule 35.
52. As per Rule 38, the powers of the Election Tribunal shall be of a Civil Court under Civil Procedure Code and the enquiry regarding the Election Petition shall be governed by the Civil Procedure Code. In UDHAV SINGH VS. MADHAV RAO SCINDIA, (1977) 1 SCC 511, the Supreme Court held that under the Representation of People's Act, failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge, are liable to be struck off under Order 6 Rule 16 C.P.C. If the petition is based solely on those facts, which suffer from lack of material facts, the petition is liable to be summarily rejected for want of cause of action. The material facts would mean all basic facts constituting the ingredients of a particular corrupt practice. If material facts are missing, they cannot be supplied after the expiry of period of limitation for filing the Election Petition and the pleading becomes deficient. In the instant case, the election of members elected by the democratic process cannot be sought to be challenged on vague averments. By referring the affidavits to the Election Tribunal, the learned single Judge allowed the election of the declared candidates to be challenged on mere affidavits, which are bereft of material particulars. Learned single Judge fell in error by referring the affidavits to the Election Tribunal and not justified in upsetting the democratic process of election.
53. Direction forbidding the six elected candidates not to exercise any rights or discharge any function as elected members of the Bar Council:- After referring the affidavits to the Election Tribunal, by the impugned order, the learned single Judge further interdicted the six candidates from exercising any voting rights or discharge any functions as elected members of the Bar Council. The learned single Judge further directed that the six persons shall not be nominated to any of the Committees of the Bar Council and that they shall not be entitled to contest or vote to the election to the post of Chairman.
54. Challenging the above directions, the learned Senior Counsel Mr.Vijay Narayan submitted that the directions of the learned single Judge barring the six candidates from exercising any functions is totally outside the scope of the Act or Rules and it is unknown to any election procedures in the country. The learned Senior Counsel would further contend that even for the highest forum of Parliament or State Legislature, if an Election Petition is filed, it does not mean that the candidate cannot exercise his functions as Member of Parliament or Member of Legislative Assembly and nowhere in the Representation of People's Act or any other law, it is contemplated that a candidate, who has been successfully elected, will cease to exercise his functions till the disposal of the Election Petition and the learned single Judge has totally gone outside the scope of the suit and the provisions of law.
55. The learned Senior Counsel Mr.S.Parthasarathy and Mr.T.R.Rajagopal would submit that when the six candidates were elected by a large number of legal fraternity, on one stray petition, the learned single Judge upset the entire democratic process causing serious prejudice to the elected members. It was further submitted that even the Election Tribunal constituted by Bar Council of Tamil Nadu Rules, have no such power to restrain any member of the Bar Council from exercising his or its right under the Act and while so direction of the learned single Judge interdicting six elected members from exercising their rights is totally erroneous.
56. Rule 38 deals with the powers of the Tribunal. As per Rule 38, the powers of the Tribunal shall be of a Civil Court under the Civil Procedure Code and the enquiry regarding Election Petition shall be governed by the Civil Procedure Code. Rule 38 stipulates that the Election Tribunal shall have no power to restrain any member of the Bar Council from exercising his or its right under the Act. When the Election Tribunal constituted as per the statutory rules itself has no power to restrain any elected member of the Bar Council from exercising his or its rights under the Act, the learned single Judge erred in passing the impugned order restraining the six candidates from discharging the functions as members and also directing that the six candidates shall not be made as members in any of the Committees. The order of the learned single Judge is in clear violation of the statutory rules and well established principles.
57. As pointed out earlier, under Rule 38, the powers of the Tribunal shall be of a Civil Court and the Civil Procedure Code and the enquiry regarding the Election Petition shall be governed by the Civil Procedure Code, subject to the proviso therein. Rule 40 stipulates that any party to the election dispute under Rule 35 aggrieved by the decision of the Election Tribunal or Tribunals, shall be entitled to prefer an appeal to the Bar Council of India by filing a petition signed by him. The Appeal Petition is to be delivered to the Secretary of Bar Council of India either in person or by Registered Post within fifteen days from the date of the order in question.
58. While referring the affidavits to the re-constituted Election Tribunal, the learned single Judge directed the Election tribunal to send its report regarding its findings in a sealed cover to the Court on or before 30.6.2011. Direction to produce the findings in the Court in a sealed cover is unknown to any procedure. Here again, the learned single Judge erred in proceeding to issue direction in violation of the statutory rules and also clipping the powers of the Election Tribunal.
59. Direction to re-constitute Election Tribunal and the contentions advanced challenging the extension of term of State Bar Council:- The term of the State Bar Council expired on 11.10.2010. In the proceedings of the meeting of the State Bar Council held on 17.7.2010, Resolution No.271 of 2010 dated 17.7.2010 was passed to request the Bar Council of India for extension of the term of office of the present elected members of the Bar Council of Tamil Nadu for the period of six months from 12.10.2010 under proviso to Section 8 of the Advocates Act. Again, a letter was sent from State Bar Council on 22.7.2010 requesting for extension of the term of Bar Council of Tamil Nadu with effect from 12.10.2010.
60. Considering the letter of Bar Council of Tamil Nadu dated 22.7.2010, Bar Council of India held the meeting on 22.8.2010 and 23.8.2010 and passed resolution No.77 of 2010 extending the term of the State Bar Council of Tamil Nadu and Pondicherry for six months with effect from 12.10.2010 under proviso to Section 8 of the Advocates Act. The extension of the term of State Bar Council was communicated to the Bar Council of Tamil Nadu by the letter dated 3.9.2010. On the strength of the said extension, State Bar Council convened the meeting on 23.12.2010 and passed four resolutions:
(i) Resolution No.373 of 2010 Fixing Election schedule
(ii) Resolution No.374 of 2010 - Appointing a Special Committee consisting of five Senior Advocates and to supervise and monitor the conduct of Bar Council election;
(iii) Resolution No.375 of 2010 appointing the members of the Election Tribunal to perform the functions of the Election Tribunal as contemplated in the Rules viz., (i)Mr.T.V.Krishnakumar, Advocate, (ii) Mr.S.Muthukrishnan, Advocate and (iii) Mr.K.Mahendran, Advocate.
(iv) Resolution No.376 of 2010 in and by which to ensure fairness in the election to the State Bar Council, the members have resolved to hand over the administration of the Bar Council to the Advocate General and to authorise Advocate General and Secretary to jointly sign the Cheques and to operate the Bank accounts.
61. In the impugned order, by superseding the Election Tribunal already constituted the learned single Judge directed re-constitution of the Election Tribunal with the members (1) Mr.G.Rajagopalan, Senior Advocate as its Chairman, (2) Mr.M.K.Kabir, Senior Advocate and (3) Mr.N.L.Rajah, Advocate.
62. The Election Tribunal has to be notified on or before the election and cannot be notified after the election. As discussed earlier, re-constitution of the Election Tribunal is in violation of Rule 36(1). There was a validly constituted Tribunal already in existence. Observing that the Advocate General is discharging functions and duties of the Bar Council of Tamil Nadu and that the Advocate General suggested that the Court could re-constitute the Election Tribunal, the learned single Judge appears to have reconstituted the Election Tribunal in the place of the Election Tribunal constituted by the duly elected members of the State Bar Council. Without any reason, the Advocate General appears to have given consent/suggestion for changing the existing Tribunal. The consent/suggestion by the Advocate General is in violation of the statutory provision Rule 36(1).
63. Challenging the extension of term of State Bar Council, the learned counsel for plaintiff Mr.Prabakaran has advanced elaborate arguments contending that the tenure of State Bar Council expired even on 11.10.2010 and after that, the State Bar Council has no power to convene any meeting and what ever Committee was constituted in the meeting held on 23.12.2010 is not valid. It was further submitted that even assuming there was extension, all the functions came to be handed over to the Advocate General directly and that it has to be handed over to the Bar Council of India and the Bar Council of India in turn may either constitute a Special Committee in terms of Section 8-A or may hand over the authority to the Advocate General. The learned counsel would further contend that the extension of tenure was not received in time and only xerox copy of the letter was produced and therefore the members were not competent to convene the meeting on 23.12.2010.
64. Placing reliance upon BABU VERGHESE VS. BAR COUNCIL OF KERALA, (AIR 1999 SC 1281= (1999) 3 SCC 422), it was contended that extension by the Bar Council of India has to be granted before expiry of original term and absolutely there was no material to show that the extension by the Bar Council of India was granted before the expiry of original term and therefore the then elected members of State Bar Council had no jurisdiction to convene the meeting on 23.12.2010 and consequently the resolutions passed on 23.12.2010 are not valid. It was further submitted that in the absence of any valid resolutions being passed, the learned single Judge was right in superseding the Election Tribunal already appointed by the State Bar Council by the Resolution No.375 of 2010 dated 23.12.2010. It was further argued that since charges were handed over to the Advocate General and the Advocate General was in-charge of day to day administration of the State Bar Council, the learned single Judge rightly took the views of Advocate General and was right in reconstituting the Election Tribunal. In essence, the submission of Mr.Prabakaran is that no materials were produced to show that the extension by the Bar Council of India was granted before the expiry of original term of State Bar Council and the resolutions passed on 23.12.2010 are not valid resolutions.
65. The above submissions of the learned counsel Mr.Prabakaran cannot be countenanced. As pointed out earlier, by the resolution No.77/2010, dated 22.8.2010 and 23.8.2010 the Bar Council of India extended the term of the State Bar Council of Tamil Nadu with effect from 12.10.2010 in terms of proviso to Section 8 of Advocates Act, 1961. The said resolution was also communicated to the State Bar Council by the communication dated 3.9.2010.
66. The learned counsel Mr.Prabakaran has submitted that the Plaintiff Association has filed Petition under Section 6 of the Right to Information Act, 2005 raising certain queries including the queries (i) whether any order has been passed by the Bar Council of India extending the term of Office bearers beyond the period of five years; and (ii) whether extension of the term of the members of the Bar Council of Tamil Nadu has been made before the expiry of the five years term and if so to furnish the details. Responding to the said petition filed under Section 6, by the communication dated 28.12.2010, the Bar Council of Tamil Nadu informed the Plaintiff Association that Bar Council of Tamil Nadu have been informed by the Bar Council of India that the present term has been extended for a further period of six months and that Bar Council of Tamil Nadu is yet to receive the official communication from the Bar Council of India. The Plaintiff Association was also informed that the Bar Council of Tamil Nadu has been informed that the extension of the term of the present office bearers has been made before the expiry of five years term. Drawing our attention to the said communication dated 28.12.2010, the learned counsel for the Plaintiff Association Mr.Prabhakaran has submitted that till 28.12.2010 Bar Council of Tamil Nadu did not receive the communication extending the term of the office bearers and in the absence of communication extending their term, the communication dated 3.9.2010 cannot be relied upon by the State Bar Council. The learned counsel further submitted that the said communication dated 3.9.2010 has been subsequently brought into existence and therefore the meeting held on 23.12.2010 was not a validly convened meeting and the resolutions passed in the said meeting are not valid resolutions.
67. The above contention of the Plaintiff cannot be countenanced. As pointed out earlier, by the resolution No.77 of 2010 passed in the meetings dated 22.8.2010 and 23.8.2010, Bar Council of India extended the term of Bar Council of Tamil Nadu with effect from 12.10.2010 in terms of proviso to Section 8 of Advocates Act, 1969. The said extension was well before the expiry of the term of the office bearers. Producing the above resolutions passed by the Bar Council of India, Mr.Venkatakrishnan, learned counsel for Bar Council of India has submitted that on the strength of the said extension, State Bar Council convened the meeting on 23.12.2010 and passed four resolutions and the same cannot be challenged. In fact, even in the reply given by the State Bar Council dated 28.12.2010, it has been clearly stated that the Bar Council of India has extended the period of office bearers of Bar Council of Tamil Nadu for a further period of six months and the said extension has been made before the expiry of five years term. In our considered view, the delay in communication of the extension cannot in any way affect the meeting held on 23.12.2010 and the resolutions passed thereon.
68. In BABU VERGHESE VS. BAR COUNCIL OF KERALA, (AIR 1999 SC 1281= (1999) 3 SCC 422) relied on by the learned counsel Mr.Prabakaran, the term of Kerala State Bar Council expired on 27.1.1997. Resolution extending the term of tenure of State Bar Council was circulated to all its members on 13.1.1997 proposing to extend the term for a period of six months. In its meeting held on 8.2.1997, Bar Council of India confirmed the resolution extending the tenure for six months. During this period (i.e., before confirmation of the resolution extending the term), elections were held and new State Bar Council for Kerala was elected. In such facts and circumstances, the Supreme Court held that the Elections conducted by the Kerala Bar Council after the expiry of its term were wholly illegal and the Hon'ble Supreme Court set aside the High Court's order. The facts of the case on hand stand entirely on different footing. In the instant case, as pointed out, the tenure of the Bar Council of Tamil Nadu was extended by Bar Council of India well within the time by the Resolution dated 22.8.2010 and 23.8.2010.
69. At this juncture, we may usefully refer to Section 8 of the Advocates Act, 1961, which reads as under:-
"Section 8. The Term of office of State Bar Council:- The term of office of an elected member of a State Bar Council (other than an elected member thereof referred to in Section 54) shall be five years from the date of publication of the result of his election:
PROVIDED THAT where a State Bar Council fails to provide for the election of its members before the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing, extend the said term, the Bar Council of India may, by order, for reasons to be recorded in writing, extend the said term for a period not exceeding six months.
On a perusal of the aforesaid provisions of Section 8, it is clear that the term of State Bar Council is for five years and it can be extended by another six months in writing by the Bar Council of India.
70. Section 8-A deals with constitution of Special Committee in absence of election. The said provision reads as under:
"Section 8-A. Constitution of Special Committee in the absence of election. - (1) Where a State Bar Council fails to provide for the election of its members before the expiry of the term of five years or the extended term, as the case may be, referred to in section 8, the Bar Council of India shall, on and from the date immediately following the day of such expiry, constitute a Special Committee.
(2) On the constitution of the Special Committee and until the State Bar Council is constituted -
(a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee;
(b) all rights, liabilities and obligations of the State Bar Council, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Special Committee;
(c) all proceedings pending before the State Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the Special Committee.
(3) The Special Committee constituted under sub-section (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold elections to the State Bar Council within a period of six months from the date of its constitution under sub-section (1), and where, for any reason the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorded by it in writing, extend the said period.
71. On a conjoint reading of Sections 8 and 8-A, it is seen that where a State Bar Council fails to provide for election of its members before the expiry of the term of five years or extended term, as the case may be, there are other protective provisions under Section 8-A of the Advocates Act. Thus, there is an in-built mechanism provided under the Act to carry out the work of the Bar Council when the elected body ceases to exist by operation of law. The provisions do not contemplate any vacuum. As rightly contended by the learned Senior Counsel Mr.Vijay Narayanan, by resolution dated 23.12.2010 and handing over charge to the Advocate General, the Bar Council of Tamil Nadu was not superseded. By merely handing over charge to the Advocate General, Advocate General himself does not become the Bar Council. The Advocate General is only an ex-officio member of the Bar Council to whom the members volunteered to hand over the charge, in order to ensure day to day administration of State Bar Council is not hampered and to ensure free and fair elections.
72. The then elected members, though continued as Office bearers, voluntarily handed over the charge to the Advocate General. As per the Resolution No.376 of 2010 dated 23.12.2010, the charges were handed over to the Advocate General for discharging the day to day administration like Advocates enrolment and to sign cheques along with the Secretary to the State Bar Council. Merely because the charges were handed over to the Advocate General, the Advocate General does not become a State Bar Council. While so, the learned single Judge was not justified in taking the suggestion/consent of Advocate General to re-constitute the Election Tribunal already constituted by the duly elected members of the State Bar Council. In our considered view, the suggestion made by the Advocate General to re-constitute the Committee is in clear violation of the statutory provisions Rule 36(1). While making such suggestion, the learned Advocate General did not keep in view the statutory mandate that the Election Tribunal has to be notified prior to the election and the same cannot be notified after the election. The direction of the learned single Judge re-constituting the Election Tribunal with (1) Mr.G.Rajaopalan, Senior Advocate as its Chairman, (2) Mr.M.K.Kabir, Senior Advocate and Mr.N.L.Rajah, Advocate as its members is in clear violation of the statuary provision Rule 36(1) and cannot be sustained.
73. Absolutely, there was no justification for the learned single Judge to re-constitute the Election Tribunal when the Election Tribunal already constituted by the duly elected members as per the Resolution No.375 of 2010 dated 23.12.2010 was in existence. Merely because the Court was monitoring the election process, the learned single Judge was not justified in upsetting the resolutions passed by the Bar Council of Tamil Nadu on 23.12.2010.
74. During the course of arguments, it was brought to our notice that one of the members of the Election Tribunal appointed by virtue of Resolution No.375/2010 dated 23.12.2010 Mr.S.Muthukrishnan, Advocate has resigned from the Tribunal. The statutory rule takes care of such vacancies in the Tribunal. As per Rule 36(2), where there is or are one or more vacancies in the tribunal by reason of death, resignation or any cause whatsoever the same shall be filled up by Bar Council of India from amongst advocates on the roll of the State Bar Council concerned. Therefore, as per Rule 36(2), it is for the State Bar Council to write to the Bar Council of India to fill up the vacancy from amongst the advocates on the roll of the State Bar Council concerned.
75. Mr.Prabakaran has vehemently advanced arguments challenging the validity of the very resolutions dated 23.12.2010. By a perusal of the plaint, it is seen that the plaintiff Association has not challenged the resolutions dated 23.12.2010 in the suit. In the plaint, the plaintiff has only challenged the Press Release dated 30.12.2010 and also electoral rolls. The same arguments were advanced before the learned single Judge and the same were earlier considered and rejected by the learned single Judge by his earlier order dated 12.1.2011. In our considered view, learned counsel for Plaintiff Mr.Prabakaran is not right in challenging the resolutions dated 23.12.2010 without pleading. The Resolution No.373 of 2010 dated 23.12.2010 pertains to the Election Schedule as per which the date of election was on 4.3.2011 and other dates annexed thereon. As per the said Election Schedule, stipulated by the said resolution, the elections were held on 4.3.2011. Learned counsel Mr.Prabakaran appearing for the plaintiff himself has contested the election and was declared elected as a member., When the elections were conducted as per the above said resolution election schedule and stipulated in the meeting on 23.12.2010, it is not open to the plaintiff to challenge the resolutions dated 23.12.2010 nor can challenge the extension of tenure by the Bar Council of India within time. The plaintiff cannot approbate and reprobate.
76. O.S.A.No.154 of 2011:
In Application No.1739 of 2011, Mr.Elephant G.Rajendran prayed for direction to the Secretary, Bar Council of Tamil Nadu not to declare the Bar Council Election results till the disposal of the application and in Application No.1740 of 2011 prayed to direct the Addl.D.G.P., Crime Branch C.I.D. to investigate the malpractice corrupt practices and other illegal acts which took place during the Bar Council Election and to file a report. Being aggrieved by the non-granting of the said reliefs, Mr.Elephant G.Rajendran has preferred this appeal. Drawing our attention to the Commissioner's report, Mr.Elephant G.Rajendran has contended that the Commissioner's report would show the corrupt practices and wide spread allegations of corruption, buying of associations and individual voters and therefore it would be appropriate to direct the Additional D.G.P.,to enquire into the corrupt practices.
77. As discussed earlier, the validity of election of a candidate could be challenged only as per the statutory provisions Rules of Bar Council of Tamil Nadu. On the basis of vague averments, such an investigation by the police cannot be ordered upsetting the entire democratic process. That apart, as we pointed out earlier, the application was presented on 17.3.2011 and re-presented on 22.3.2011. Even on 22.3.2011, Mr.Aiyyappamani crossed the mark and declared elected. Though Mr.Elephant G.Rajendran is stated to be espousing the cause of the lawyers, it is pertinent to note that Mr.Elephant G.Rajendran himself contested in the election and came to be eliminated at the early stages of counting. The prayer of Mr.Elephant G.Rajendran to direct police to investigate into the election process and the alleged corrupt practices cannot be countenanced and the appeal preferred by Mr.Elephant G.Rajendran is bound to fail.
78. Summing up our conclusions:- It is to be pointed out that the counting was completed on 2.4.2011 and on 5.4.2011, Advocate General has certified the 25 members duly elected as members of the Bar Council of Tamil Nadu and the same was forwarded to the Government of Tamil Nadu for publication in the Gazette and the Gazette notification was also issued on 20.4.2011. After the counting was completed and after the Advocate General has certified the list of elected members, the prayer in the suit itself has been substantially granted. In the Order dated 12.1.2011, even as per the observation of the learned single Judge, Court will monitor the progress of the entire election only till the results are announced. Of course, as per Rule 34(3), only on the publication of the list in the official gazette, the persons, whose names appeared in the list, shall be deemed to have been declared elected. Of course, the list of elected members of the Bar Council was published in the Gazettee only on 20.4.2011.
79. In our considered view, after the Advocate General has certified the duly elected members on 5.4.2011, the Court did not have any jurisdiction to deal with the matter any further. All that remains is that the Court has to record the results of the election and dispose of the suit. On the Original Side, in the Civil Suit, it would not be appropriate for the Court to take up the task of issuing general directions as to the conduct of elections to the State Bar Council. Any such general directions need more deliberations, hearing of the Bar Council of India, State Bar Council and views of all the Bar Associations throughout the State. Such a wider exercise and deliberation may not be possible in a Civil Suit, which is more in the nature of adversarial litigation.
80. On the allegations of corruption, perhaps, under the impression and anxiety to keep the poll free from malpractices, the learned Judge appears to have passed the impugned order. In our considered view, the impugned order is not only in gross violation of principles of natural justice but the learned single Judge has stretched the judicial arms afar.
81. Of course, the Judge Commissioner has filed a report expressing his anguish about the malady affecting the election and that money playing key role. The Judge Commissioner has elaborated the role of money in the conduct of Bar Council election and his views/reasons for such large scale of corrupt practices in the conduct of election to the Bar Council. The Judge Commissioner has expressed his general impression as under:
"I ask myself the question, whether I feel happy about the entire election process. To be honest, I do not feel happy. .....
The most depressing feature of this election is that not withstanding all steps taken to regulate the election process, the fact remains that money had played a major part in the election and some of the successful candidates had managed to win the election not with their popularity or record of service to the society or to the profession, but only by means of the money they have spent."
82. The views of Judge Commissioner in his Report appears to have substantially weighed with the learned single Judge. Under the impression that the Court is duty bound to cleanse the conduct of polls to the Bar Council, the learned single Judge appears to have transgressed the jurisdiction of the Civil Court. The learned single Judge was not dealing with a public interest litigation. The dispute is in a Civil suit, which is in the nature of adversarial litigation governed by the Original Side Rules and the provisions of Civil Procedure Code. By the impugned order, the democratic system of election of members to the State Bar Council has been upset. We are of the view that by the impugned order, the learned single Judge overstepped the limits. Each and every one of the direction issued by the learned single Judge are demonstrably in violation of the statutory provisions and rules. No Court can issue directions in derogation of the statutory provisions and rules. Therefore, the order passed by the learned single Judge cannot be sustained and is liable to be set aside.
83. Rule 35(1) of Bar Council of Tamil Nadu stipulates any voter may contest the validity of the election of a candidate declared to have been elected to the Council by a Petition signed by him and supported by an affidavit and delivered to the Secretary personally or sent by Registered Post to the Secretary within 15 days from the date of publication of the results in the Official Gazette. Results were published in the Official Gazette on 20.04.2011. Time of 15 days stipulated in Rule 35(1) expires on 05.05.2011. Since the matter is involved in the litigation, it is necessary to extend the time to contest the validity of the election of a candidate declared to have been elected to the Council. We have upheld the validity of the Election Tribunal constituted by the State Bar Council by the resolution dated 23.12.2010 comprising of (i)Mr.T.V.Krishnakumar, Advocate; (ii)Mr.S.Muthukrishnan, Advocate and (iii) Mr.K.Mahendiran, Advocate. Therefore, 15 days time is granted from the date of this order for any voter to contest the validity of the election of a candidate declared to have been elected to the State Bar Council. In the mean while, as per Rule 36(2), the Bar Council of Tamil Nadu shall write to the Bar Council of India to fill up the vacancy of the Election Tribunal caused due to the resignation of Mr.S.Muthukrishnan, Advocate.
84. For the fore-going reasons, the impugned common order dated 18.4.2011 made in Application Nos.1739, 1740, 2184 and 2185 of 2011 of the learned single Judge is set aside and all the Original Side Appeals (except O.S.A.No.154 of 2011 filed by Mr.Elephant G.Rajendran) are allowed. O.S.A.No.154 of 2011 is dismissed. The Bar Council of Tamil Nadu is directed to proceed further to conduct the election for the posts of Chairman and Vice-Chairman and also the constitution of the various Committees.
For the reasons stated in Paragraph-83, 15 days time is granted from this date to any voter intending to contest the validity of the election of a candidate declared to have been elected to the Council. Bar Council of Tamil Nadu is directed to send a Circular immediately to all the Bar Associations throughout the State of Tamil Nadu regarding extension of time granted for preferring Election Petition. As per Rule 36(2), Bar Council of Tamil Nadu shall write to the Bar Council of India to fill up the vacancy of Election Tribunal caused due to the resignation of Mr.S.Muthukrishnan, Advocate.
However, there is no order as to costs. Consequently, all the connected miscellaneous petitions are closed.
(R.B.I., J.) (V.P.K.,J.) 05.05.2011 Index: Yes Internet: Yes Note to Office: Issue copy of order tomorrow. B/o usk 5.5.2011 To 1. The Sub-Asst.Registrar Original Side High Court Madras. R.BANUMATHI, J. and V.PERIYA KARUPPIAH,J. usk Common Judgment in O.S.A.No.122 of 2011 etc., batch 05.05.2011