Madras High Court
S.Vetrivel vs Tamil Nadu Advocates Association on 9 April, 2011
Author: V.Periya Karuppiah
Bench: R.Banumathi, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2011
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
O.S.A.Nos.88 of 2011 and M.P.Nos.1 and 2 of 2011
and
O.S.A.Nos.98 of 2011 and M.P.Nos.1,2 and 3 of 2011
S.Vetrivel .. Appellant in OSA.No.88 of 2011
Gini Manuel .. Appellant in OSA.No.98 of 2011
Vs.
1. Tamil Nadu Advocates Association
rep. By its Secretary M.Baskar
196, New Additional Law Chambers,
High court Buildings,
Chennai 600 104
2. The Bar Council of Tamil Nadu
rep. By its Secretary,
High Court Campus,
Chennai 600 014.
3. The Bar Council of India,
rep. By its Secretary,
No.225, Okhla Industrial Area Phase III,
New Delhi 110 020.
.. Respondents in both the OSAs
Appeals filed under Order XXXVI Rule 1 of O.S. Rules r/w clause 15 of the Letters Patent of Madras High Court Original side Rules against the orders made in Application No.1600 of 2011 and Application No.78 of 2011 respectively in C.S.No.7 of 2011.
For Appellant in OSA.88/2011: Mr.V.Selvaraj
For Appellant in OSA.98/2011: Mr.S.Conscious Ilango
For Respondents in
both the Appeals : Mr.S.Prabhakaran
for Mr.W.M.Abdul Majeed
for R1
Mr.S.Y.Masood
for R2
Mr.K.Venkatakrishnan for R3.
COMMON JUDGMENT
V.PERIYA KARUPPIAH.,J The appeal in O.S.A.No.88 of 2011 is preferred by the applicant in A.No.1600 of 2011 in C.S.No.7 of 2011 against the order of the learned single Judge dated 21.03.2011 in negativating the claim of the petitioner to recall the Order dated 8.3.2011 invalidating all the votes polled at District Court Campus at Nagercoil and Padmanabapuram and direct the Judge-Commissioner to count the votes polled at District Court campus at Nagercoil and Padmanabapuram.
2. The appellant in O.S.A.No.98 of 2011 is the third party and a contesting candidate belonging to the said Bar who was permitted by us to prefer the Appeal against the order passed by the learned single Judge.
3. The appeal in O.S.A.No.98 of 2011 is directed against the order passed by the learned single Judge in A.No.78 of 2011 in C.S.No.7 of 2011 dated 8.3.2011 in invalidating the entire votes polled in the ballet box of Padmanabapuram Bar Election invoking Rule 25(2) of Bar Council of Tamil Nadu Rules.
4. The learned counsel for the appellant in O.S.A.No.88 of 2011 would submit in his argument that the first respondent/plaintiff has filed the suit with four prayers, but they have been granted by virtue of an order passed by the learned single Judge on 08.03.2011 itself and if it is permitted it will bring chaos and therefore, the appellant has filed an application before the learned single Judge for recalling the orders passed on 08.03.2011, but the same was dismissed by the learned single Judge without any reasons. He would further submit in his argument that the suit has been filed for declaration, permanent injunction and for other reliefs and when all the reliefs enumerated from 1 to 3 have become infructuous, how the suit is proceeded further by appointing a Commissioner to conduct the election of the Bar Council which is ought to have been granted only after recording evidence and the learned single Judge who is to follow Civil Procedure Code has assumed jurisdiction and had appointed the Commissioner. He would further submit in his argument that disputes could be raised only by the voters and they can only file a suit for conducting any election and the suit filed by the Association will not sustain and the suit itself would go. He would also draw our attention to Rule 8 of Bar Council of India. He would further submit in his argument that Section 20 of the Societies Registration Act is a bar for filing a suit by the Society. The plaintiff cannot claim as a juristic person and Sections 20 to 22 of Tamil Nadu Societies Registration Act will prohibit the plaintiff from filing any suit. He would also draw the attention of the Court to a judgment of the Hon'ble Apex Court reported in (2003) 8 SCC 413 in between "Illachi Devi (dead) by Lrs., and others ..vs.. Jain Society, Protection of Orphans India and Others" for the said principle. He would further submit in his argument that the order passed by the learned single Judge on 08.03.2011 was in a wrong suit and such an order is not sustainable when the suit itself is not maintainable. He would further submit in his argument that the suit is of representative character and therefore a permission should have been sought for by the plaintiff under Order 1 Rule 8 CPC so as to maintain the suit, but such a permission was not obtained by the plaintiff and on that aspect also the suit is not maintainable. He would further submit in his argument that order of the learned single Judge dated 08.03.2011, in passing directions to Commissioner to conduct the elections and based upon the said elections, passing order without giving notice to the persons concerned in invalidating the votes more than 1000 at Nagercoil and 200 at Padmanabapuram, is in total violation of the principles of natural justice. He would further submit that the learned single Judge cannot pass such an order in an interlocutory stage when it is especially a Civil Suit. The assumption of the jurisdiction in a Civil Suit cannot be possible to pass any orders without giving opportunity to parties concerned. He would further submit that the affected persons should have been impleaded in the suit and an opportunity to file Written Statement should have been given before passing any final order against the appellant and other aggrieved persons. The reports of the Returning Officer or the videographs cannot be a ground to invalidate the entire election held in Nagercoil as well as Padmanabapuram. He would also submit in his argument that a letter/complaint of a candidate, namely, Mr.Issac Mohanlal, was relied upon by the learned single Judge and the votes polled at Nagercoil have been declared as invalid, which is not sound. He would further submit in his argument that the invalidation of votes polled at Nagercoil and Padmanabapuram under Rule 25(2) of the Bar Council of Tamil Nadu Election Rules, 1975 cannot be held sustainable because the said Rule would relate to tampering of ballot boxes only. Even otherwise the said Rule should have been utilised only at the time of counting of votes and the Court is not empowered to pass such an order invalidating the votes, which is the duty of the Presiding Officer. He would also submit in his argument that even otherwise the learned single Judge is not satisfied with the election conducted at Nagercoil and Padmanabapuram, the learned single Judge should have ordered for re-polling in respect of the aforesaid two booths and thereafter only, counting should have been ordered. He would further submit in his argument that total invalidation of votes itself would go to show that the rights of the voters of the said two booths are seriously affected.
5. Learned counsel for the appellant/third party in O.S.A.No.98 of 2011 would submit in his arguments that the appellant has contested the Bar Council Election and he was one of the candidates and his serial number is 111 and the suit filed by the plaintiff before the learned single Judge is not maintainable in view of Rule 35 of the Bar Council of Tamil Nadu Election Rules and a voter alone can file a suit for the conduct of a fair election. He would further submit that the present dispute cannot be raised by the plaintiff before the election is completed and it is for the Election Tribunal to look into the matters and even if the suit is maintainable, all the contesting candidates should be impleaded and in the absence of candidates, any order passed by the Court is not maintainable. He would further submit that the order passed on 8.3.2011 by the learned single Judge is not sustainable in law. He would further submit that the election process held at Padmanabapuram Bar Association was not tainted with any illegality and therefore, the invalidation of votes polled at Padmanabapuram is absolutely not sustainable. He would further submit that the learned single Judge has no jurisdiction to assume the powers of Election Tribunal and to invalidate the votes polled at Padmanabapuram. He would submit that the alleged observers of the Poll are not the authorised persons and therefore, their report cannot be looked into. Even otherwise their report would go to show that there were no illegal activities taken place at Padmanapuram Bar Association during the process of Election of Bar Council and those reasons stated by the Observers are not sufficient to invoke Rule 35(2) of the Bar Council of Tamil Nadu Election Rules. He would further submit that the denial of votes would deprive the members from electing their own members. The learned single Judge ought to have waited for recording of oral evidence for the purpose of invalidating the votes and it cannot act on the report of the alleged Observers. He would also submit that all the votes should have been counted for the purpose of finding the intention of the voters, but the votes polled at Padmanabapuram Bar Association have been invalidated without any just cause and therefore, the prospects of the appellant being elected was also lost. He would further submit that the non-showing of identity cards to the Observers is not at all the requirement and it must be shown to the Polling Officers only and except the said lacunae, no other flaw has been mentioned in the report of the Observers. He would also bring it to the notice of this Court, the judgement of the Hon'ble Apex Court reported in (1984) 2 SCC 64 in between "Daulat Ram Chauhan ..vs.. Anand Sharma"; (2011) 1 SCC 503 in between "Joseph M.Puthussery ..vs.. T.S.John and others" and 1980 Supplementary SCC 53 in between "S.Raghbir Singh Gill ..vs.. S.Gurcharan Singh Tohra and others" in support of his arguments. He would also submit that the appellant is seriously affected by the order passed by the learned single Judge dated 8.3.2011. He would also submit that the learned single Judge could have ordered re-polling in Padmanabapuram Bar Association if he was actually convinced with the reasons mentioned in the reports of the Observers. Therefore, he would request the Court to set aside the order of invalidating the votes polled at Padmanabapuram Bar Association and to order re-polling and re-counting of the Bar Council Election and thus, the appeal in O.S.A.No.98 of 2011 may be allowed.
6. Mr.S.Prabhakaran learned counsel for the first respondent would submit in his arguments that the suit has been laid validly and it has been sustainable in law. He would further submit in his argument that the court has validly appointed the Commissioner to conduct the election of the Bar Council from 172 booths containing 63,000 lawyers and an order has been passed by the learned single Judge in accordance with the Bar Council Rules and all the proceedings are being circulated to the Presidents of the Bar Association, Advocate Associations of every District of the State as well as the Union Territory of Pondicherry and the President of Nagercoil as well as the President of Padmanabapuram have also been intimated about the order passed by the learned Single Judge dated 12.1.2011 and they did not file any appeal against the said order. He would further submit that the said order passed by the learned Single Judge has also been circulated to the members of every Bar Association and it cannot be said that the members of the Bar have been affected by the order of the learned Single Judge. He would also submit that the learned Single Judge has got every power under Section 151 C.P.C. to assume jurisdiction. The provisions of Section 94(e) of supplementary proceedings would empower the learned single Judge to pass interlocutory order in order to render justice. He would further submit in his arguments that the order passed by the learned Single Judge on 12.1.2011 was circulated to every member of the Bar and therefore, there is no necessity for seeking permission to file a suit under Order 1 Rule 8 C.P.C. If any person aggrieved can very well approach the Court for suitable orders. Accordingly, the appellants have approached the court for recalling the order and therefore, it cannot be contended that the suit itself is not maintainable. He would submit in his arguments that the invalidation of votes by the learned single Judge was promptly done, after seeing the illegalities in polling the votes at the booths in Nagercoil and Padmanabapuram. The illegality in polling the votes would be sufficient to invalidate the votes under Rule 25(2) of the Bar Council of Tamil Nadu Election Rules. He would also submit in his argument that when an order has been passed by the learned single Judge on 12.1.2011 and in accordance with the said order, the appellant and others have complied with the conduct of elections, where the Court is monitoring the election and having participated in the election by the appellants and its members, they come forward with a plea that the suit is not maintainable and the order passed on 12.1.2011 is not sustainable, under the guise of the plea to set aside the order dated 8.3.2011. He would further submit in his argument that the entire election is being monitored by the court and the appellant even if aggrieved could have approached the learned single Judge for getting orders and the third party who is said to have been affected by the order passed by the learned single Judge can not approach the Appellate Court directly and they could have approached the learned single Judge for suitable orders. He would further submit in his arguments that the election process is almost over and at this stage, the request of the appellants cannot be acceded to. He would further submit that the order passed by the learned single Judge in invalidating the votes polled in Nagercoil as well as Padmanabapuram are promptly done in order to avoid furtherance of illegality and therefore, there is no reason to interfere with the order passed by the learned single Judge and he requests for the dismissal of the appeals.
7. Learned counsel appearing for the second respondent / Bar Council of Tamil Nadu, Mr.S.Y.Masood would submit in his arguments that the election process has been started in accordance with the directions issued by the learned single Judge and it was communicated to every Bar Associations and Advocate Associations having the list of candidates who are numbering 172 all over the State of TamilNadu and Pondicherry. He would further submit in his arguments that according to the direction of the learned single Judge dated 12.1.2011, the Commissioner has been appointed and according to the instructions given by the Commissioner who is a retired Judge of this Court, the nominations were received and they were perused and finalised and thereafter, the ballot papers were printed and since there was similarly named persons, for conducting the election, the photographs were ordered to be printed against the name of each candidate and therefore, the printing of ballot papers would cost more than Rs.15 lakhs. He would further submit in his arguments that the Special Observers were appointed by the Bar Council of Tamil Nadu for each and every booth to get the reports of prompt and perfect polling in each and every polling booths and accordingly, the Polling Officers from the local Bars were also appointed for the purpose of conducting elections and all these were done in accordance with the circulars along with the orders of the learned single Judge communicated to every Bar Associations and therefore, every members are deemed to have known about the orders of the learned single Judge and also election procedure as ordered by the learned single Judge. He would further submit in his argument that the local Special Observers appointed by the Bar Council of Tamil Nadu have been sent to every booth in advance and they have done their duty promptly and apart from that, videographs have been taken in every booth and the said system has been followed in every booth except the booths at Nagercoil and Pondicherry. He would further submit that expenditure was incurred for the special observers sent by the Bar council of Tamil Nadu during the conduct of election. He would further submit that the expenditure for Bar Council Election would be approximately Rs.50 lakhs which has to be ascertained to a correct figure. He would further submit in his argument that as per the directions of the learned single Judge, after invalidating the votes polled at Nagercoil and Pondicherry the counting has been completed and out of 172 candidates who have contested, 135 were eliminated and the candidates who have obtained the first votes have been declared elected and the remaining candidates totalling 25 persons have also been ascertained and therefore, the claim for re-polling or for passing status quo ante to the said order may not be possible and it would cause much inconvenience not only to the second respondent / Bar Council of Tamil Nadu, but also to every persons who have been elected. Moreover, he would submit in his arguments that the expenditure caused would be repeated once again and it would be impossible to conduct such election at the huge cost of Rs.15 lakhs once again. He would also submit in his arguments that the learned single Judge is empowered to pass interlocutory orders since the said orders passed by the learned single Judge dated 12.1.2011 streamlining the conduct of Bar Council Elections have been communicated to every Bar Association by the second respondent and they have kept quiet and now they have come to question the said order. He would also submit that the orders dated 12.1.2011 have not been questioned and it is not feasible for the appellants to come forward to question the basis of the order passed on 8.3.2011. The orders passed by the learned single Judge on 8.3.2011 invalidating the votes polled at Nagercoil and Padmanabapuram are perfectly in order since the large scale violation of Election Rules were inferred by the report submitted by the Poll Observers. He would further submit that the Special Poll Observers appointed for the Nagercoil namely Mr.L.Chandrakumar and Mr.V.Parthiban have submitted the report and on seeing the report it could be easily understood that the voters were not permitted to vote by the Polling Officer, but he simply obtained the signatures from the respective voters in the Ballot papers and the volunteers immediately took custody of the ballot papers from the Polling Officer and shoved the same into the ballot box. He would also submit in his argument that the voters were not given any chance even to look at the ballot papers and the same exercise continued and therefore, the marking of votes in the ballot papers were not freely exercised by the voters of Nagercoil Bar. He would also draw the attention of the court that the videographs were not done at the voting place, but it was turned outside and no video cassette has been submitted by the Polling Officer to the Bar Council of Tamil Nadu. He would further submit that the report of the Special Observer at Nagercoil stating that the Advocates who are supposed to uphold the values of democratic exercise have reduced the same into a sad and sordid state travesty would go to show that the polling was not done properly at Nagercoil and even if re-polling is ordered, it would be so. Therefore, the learned single Judge has come to a correct conclusion that the Poll of voting at Nagercoil is not valid and the invocation of Rule 25(2) of the Bar Council of Tamil Nadu Election Rules is appropriate. He would also submit in his argument that the situation at Padmanabapuram is not less than the Nagercoil and it could be seen from the report of the Special Polling Observer sent for the Polling at Padmanabpuram booth namely Mr.K.Krishnamurthy and Mr.R.Gokulraj. He would also submit that the report of the Special Observer would go to show that the voters at Padmanabapuram Bar did not show the identity cards to them and the objection raised to the Polling Officer was not at all heeded. It is also mentioned in the report that the indelible ink has not been put to 30% of the voters who voted there. Such voters have turned again and have exercised the franchise for the second time also and double voting was also done in the said booth and therefore it cannot be considered that the voters who are to vote have voted in the said booths and it could not be ascertained the number of dual voting. He would further submit in his arguments that such a voting of dual vote voted by the members for the second time as well as the non-use of indelible ink would cause the entire poll at Padmanabapuram Bar a futile one. He would further submit that the learned single Judge has considered all these circumstances and had exercised Rules 20 and 25(2) of the Bar Council of Tamil Nadu Election Rules and has come to the decision of invalidating the votes which was very much correct and therefore, there cannot be any prejudice caused to the appellants in both the appeals. He would further submit in his arguments that the election results have almost been reached to a final stage and 25 members have been elected and their names have been listed. In the mean time if any status quo ante is ordered or re-polling is ordered, it will certainly affect the entire other voters as well as the elected persons from out of the said Bar Council Election. Moreover, he would also draw the attention of the court that the huge expenditure incurred will have to be once again incurred by the Bar Counsel of Tamil Nadu. Therefore, the balance of convenience is also in favour of the second respondent and not in favour of the appellants. He would once again submit in his arguments that the appellants have kept quiet for a long period without questioning the order passed by the learned single Judge on 12.01.2011 and had obeyed the orders by receiving the circulars and participating in the election and this is not a Forum to agitate or to set aside the order passed by the learned single Judge in the present circumstances. Therefore, he would request the Court that both the appeals are to be dismissed and there may not be any interference of the order passed by the learned single Judge.
8. Heard, Mr.V.Selvaraj, learned counsel appearing for the appellant in O.S.A.No.88 of 2011, Mr.S.Conscious Ilango, learned counsel appearing for the appellant in O.S.A.No.98 of 2011, Mr.S.Prabhakaran, learned counsel appearing for the first respondent - Tamil Nadu Advocates Association, Mr.S.Y.Masood, learned counsel appearing for the second respondent - Bar Council of Tamil Nadu and Mr.K.Venkatakrishnan, learned counsel appearing for the third respondent - Bar Council of India.
9. 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 for 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.Jayaraman, 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 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 paper 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.
10. 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. With a view to ensure 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 (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).
11. 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 ensuing elections to the State Bar Council. In the said order, 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 independent observers and to receive ballot papers and sending them back to Madras with police protection and (v) directions as to the transportation of polled boxes and other directions.
12. In the said order dated 12.1.2011, the learned single Judge extended the time for payment of arrears of subscription till 24.1.2011 and directed the State Bar Council to issue circulars to all the Bar Associations/Advocate Associations, who in turn, shall display the same in the Notice Boards to enable the members, whose names are not found in the electoral rolls, to take necessary steps, and final revised electoral rolls are directed to be published on or before 31.1.2011. In paragraph No.16(xix), the learned single Judge observed as under:
"The Court will monitor the progress of the entire election process till the results are announced".
13. The learned single Judge made it clear that the Commissioner was appointed only for the purpose of overseeing and monitoring the election process. All other functions of the Bar Council such as enrolment, signing of cheques, etc., are to be carried out by the Advocate General as per the resolution passed by the Bar Council.
14. The Order dated 12.1.2011 was ordered to be communicated to all the judicial officers as well as to all the Bar Associations/ Advocate Associations, the relevant portion of which reads as under:
(xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder."
15. In pursuance of the Order dated 12.1.2011, Bar Council of Tamil Nadu sent circular R.O.C.No.35 of 2011 dated 12.01.2011 informing all the Bar Associations/Advocates Associations about the order passed in Application Nos.78 and 18 of 2011 in C.S.No.7 of 2011 (dated 12.01.2011) that the arrears of subscription towards Advocates Welfare Fund (B.C.I.) could be paid till 24.01.2011. In the said circular, the State Bar Council requested the Bar Associations/Advocates Associations to display the Circular conspicuously in the Notice Board of their Association so as to inform all the members of the Bar Associations.
16. A news item appeared in the Times of India in its Chennai Edition reported that some of the Bar Associations have sold out their votes en bloc was brought to the notice of the Court by Elephant Rajendran, who filed Application No.450 of 2011 seeking to implead himself as a defendant and praying for issuance of directions:- (i) Some of the Judicial Officers shall be present during the time of voting; (ii) ballot boxes shall be brought to one particular place under the direct supervision of the Presiding Judge; (iii) All the ballot boxes shall be collected and be brought to Chennai and kept in any one of the rooms in the High Court or City Civial Court under strict police protection; (iv) All the ballot boxes received from all the 172 police stations, through the police vans shall be received by the Registrar- Management and shall be kept in safe custody under lock and key and seal and the lock and key shall thereafter be handed to Justice K.P.Sivasubramaniam; (v) Shuffling of ballot papers of one or two Districts before actual counting; (vi) poll observers shall be nominated by the Judicial Officers to bring it to the notice of the Judge Commissioner any malpractices adopted by the candidates including the donations offered by the candidates.
17. In pursuance of the Order of appointment of Election Commissioner - Justice K.P.Sivasubramaniam (Retd.), the learned Judge Commissioner issued general instructions to the candidates and voters in R.O.C.No.91 of 2011 dated 28.01.2011. In pursuance of the Order dated 2.2.2011, again, in R.O.C.No.132 of 2011 dated 11.02.2011, Judge Commissioner issued further instructions to the candidates and voters.
18. In so far as Nagercoial, Mr.L.Chandrakumar and Mr.V.Parthiban were appointed as Special Poll observers apart from local observers. The Poll Observers have filed report stating that at the beginning itself, the local observer/polling officer and other advocates, who gathered at the polling arena, have unequivocally informed Special Poll Observers that the Bar has unanimously taken a decision to vote for only one candidate Sri Padmanaban, whose name was shown as Serial No.90 in the ballot paper in view of his assurance of significant financial assistance for the welfare of all the members of the Bar. In the report, the Special Poll Observers further stated that when the polling commenced, the polling officers merely obtained the signatures of respective voters in the poll papers and the so called volunteers immediately took custody of the ballot papers and shoved the same into the ballot box and the voters were not given any chance even to look at the ballot paper. The Special Poll Observers have further reported that marking of votes was done by the Polling Officer himself and when the Special Poll Observers have raised objection, the Polling Officer instructed the voters themselves to mark the first preference vote for Sri Padmanaban and not to vote for anyone else and the Polling Officer ensured the voters to cast his or her vote only for the said candidate. It was further reported that the said approach of the Polling Officer was only for some time and thereafter he conveniently returned to the earlier method of marking of vote by himself and the singular agenda set for the day was to obtain first preference vote to Sri Padmanaban. Videography arranged for the election was said to be simply eye wash. Based on the report of the Special Poll Observers, learned Judge Commissioner filed a report before the Court.
19. Mr.V.Prakash, Senior Advocate was the Special Poll Observer nominated for Padmanabapuram. Due to personal inconvenience, since Mr.V.Prakash, Senior Advocate could not attend the work assigned, Mr.K.Krishnamoorthy and Mr.R.Gokulraj, Advocates from the Senior Advocate Mr.V.Prakash's Office as Special Poll Observers of Padmanabapuram. In their turn, the Special Poll Observers have reported that during election, nobody showed I.D.cards and the objection of the Special Poll Observers in this regard was rejected by the Polling Officer. Indelible ink was also not put to nearly 30 percent of the voters. The Special Poll Observers reported that there has been dual voting subsequently by showing the Identity Card. The Special Poll Observers noted that members of Padmanabapuram Bar Association did not comply with the requirements of fair electoral process for the reasons "Voters did not show their Identity Cards, therefore identity of voters could not be ascertained.; There has been unascertainable number of dual voting."
20. Based on the report of the Special Poll Observers, the learned single Judge Commissioner filed a report before the Court requesting the Court to pass suitable orders. The independent poll observer from Nagercoil did not send his report immediately after elections.
21. Invoking Rule 25(2) of Bar Council of Tamil Nadu Election Rules, the learned single Judge invalidated the voters polled in the District Court Campus at Nagercoil and at Padmanabapuram on the following findings:
"..... Therefore, I have no alternative than to take the second opinion. I know that it is a very hard option. But I am in a position of a surgeon today. When a patient had consistently and deliberately violated all prescriptions and warnings given at a time when the earliest symptoms showed up, leading to the disease reaching an advanced stage, the Doctor has no option except to resort to surgery. Since it is in the interest of the patient himself, it is unavoidable.
43. I am conscious of the consequences of invalidating the votes polled at two booths, by invoking Rule 25(2), especially when the election is by means of a single transferable vote. But in S.Raghbir Singh Gill Vs. S.Gurcharan Singh Tohra (1980 Supp SCC 53), the Supreme Court went to the extent of holding in para 43 that once tampering is held proved, in the circumstances permit and evidence of unquestionable character is available, it would be perfectly legitimate for the court even to ascertain the person in whose favour the vote was cast before it was tampered with. Thus the power of the Court even to go beyond, is well recognised.
44. In any case, the Bar Council of Tamil Nadu Election Rules does not speak of any alternative other than invalidating the tampered ballot boxes under Rule 25(2). Therefore, it is hereby ordered that all the votes polled in the District Court campus at Nagercoil and at Padmanabapuram shall be treated as invalid. They need not be counted. The learned Judge may proceed to count the votes from all other booths from 9.3.2011 onwards and file a report....."
22. Insofar as Padmanabapuram, the report of the Poll Observer Mr.S.Alwin Vethamony did not send his report immediately after the elections, but sent the report after the orders were reserved by the single Judge on 15.03.2011.
23. Observing that the voting in two places were just a farce and that there had been clear violation of rules and the general instructions and that there was no free and fair election both in Nagercoil and in Padmanabapuram, by an elaborate order dated 21.03.2011, the learned single Judge invalidated the votes polled in Nagercoil as well as in Padmanabapuram. The learned single Judge observed that as per the Rules, there is no provision for re -polling and that the Court has no alternative except to accept the report of the Special Observers and no grounds were made out to recall the earlier order passed on 08.03.2011. Challenging the said order dated 21.03.2011, Nagercoil Bar Association has preferred O.S.A.No.88 of 2011.
24. In the backdrop of the case, when we see the maintainability of the suit we could understand that the suit was filed by a Society, namely, Tamil Nadu Advocates Association represented through its Secretary for the reliefs mentioned in the plaint. The contention of the appellant would be that the said suit was not filed under Order 1 Rule 8 CPC since the election to be conducted on behalf of Bar Council of Tamil Nadu would involve the rights of each and every voter numbering nearly about 63,000 throughout the State of Tamil Nadu and Pondicherry. Of course, the suit was not filed after obtaining a prior permission from the Court under Order 1 Rule 8 CPC and no such procedure contemplated under those provisions have been followed.
25. The prayers in the said suit would be as follows:
(i) Declaring that the Press Release dated 30.12.2010 (R.O.C.No.1733 of 2010) issued by the first defendant, 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 the first defendant, in preparation for the election of members to the Bar Council of Tamil Nadu, to be held on 4.3.2011 is null and void
(iii) appointing a retired Hon'ble Judge of this Hon'ble Court to conduct the election of members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcement of the successful candidates;
(iv) grant an order of permanent injunction restraining the defendant from proceeding with the electoral process in pursuance of its press release dated 30.10.2010 (R.O.C.No.1733 of 2010); and
(v) directing the first defendant to pay the cost of the suit.
26. Order 1 Rule 8 C.P.C. applies to representative suits. To avoid conflicting decisions and to avoid multiplicity of proceedings, where there are numerous persons having the same interest in a suit, one or more of them with the permission of the Court sue or be sued or defend in such suit on behalf of others. Order 1 rule 8 C.P.C. formulates an exception to the general rule that all persons interested in a suit shall be parties thereto. Of course, under Order 1 Rule 8 C.P.C., proper course is to obtain permission from the Court before instituting the suit in a representative capacity. Proper notice and its service are imperative. Though plaintiff Tamil Nadu Advocates Association is an Association of advocates, the suit - C.S.No.7 of 2011 was not instituted under Order 1 Rule 8 C.P.C. and leave of the Court has not been obtained to institute the suit in a representative capacity.
27. On going through the materials and various orders, we find that even though the requirements of Order 1 Rule 8 C.P.C. were not complied with, the plaint averments are to the effect to ensure free and fair elections. After filing of the suit, sufficient notice of the suit was given to all the Bar Associations in the State of Tamil Nadu and Puducherry. As pointed out earlier, to ensure that the elections be held in free and fair manner, and to avoid any malpractices, on 12.1.2011, the learned single Judge has appointed Justice K.P.Sivasubramaniam (Retd.) as Commissioner to oversee and monitor the elections to the State Bar Council. By the order dated 12.1.2011 and 2.2.2011, the learned single Judge issued various directions regarding conduct of the election, carrying of ballot boxes.
28. As pointed out earlier, by the Order dated 12.1.2011, the learned single Judge extended the time for payment of arrears of subscription towards advocates welfare fund till 24.1.2011 and directed Bar Council of Tamil Nadu to issue circulars to all the Bar Associations/Advocates Associations so that all the members are put on notice of the directions issued in A.Nos.78 and 18 of 2011 in C.S.NO.7 of 2011. The learned single Judge directed the Secretary of the Bar Council of Tamil Nadu to send Circular to all the Bar Associations/Advocates Associations, who in turn shall display the same in their notice Board, to enable the members, whose names are not found in the electoral rolls, to take necessary steps. The learned single Judge also directed that after that exercise final revised electoral rolls shall be published on or before 31.1.2011. In pursuance of the said directions, Bar Council of Tamil Nadu sent Circular Roc.No.35 of 2011 dated 12.1.2011, which reads as under:
"Sub: Extension of time for payment of subscription towards Advocates
Welfare Fund (B.C.I.) and
change of address IntimationReg.
Ref: Order passed in Appn.Nos.78 & 18 of 2011 in C.S.No.7 of 2011, dated
12.01.2011.
----
This is to inform you that His Lordship Mr.Justice V.Ramasubramanian by an order dated 12.01.2011 has directed the Bar Council of Tamil Nadu to receive the arrears of subscription towards Advocates Welfare Fund (B.C.I.) till 24.01.2011 and also the change of address, if any to be communicated to the Secretary, Bar Council of Tamil Nadu and the same has to reach the undersigned on or before 24.01.2011. I am herewith enclosing the copy of the Order passed by His Lordship Mr.Justice V.Ramasubramanian dated 12.01.2011. Kindly exhibit the said order conspicuously in the notice board of your Association so as to inform all the members of Your Bar.
I further request you to kindly send the name, address and telephone No./Cellphone no. of the President and Secretary of the Bar Association concerned immediately."
29. In pursuance to the Circular in R.O.C.No.35 of 2011 dated 12.1.2011 issued by the Bar Council of Tamil Nadu, the members have paid their arrears of subscriptions towards Advocates Welfare Fund within the extended time. It was stated that considerable number of advocates were benefited by extension of time for payment of subscription. It was thereafter the revised electoral list was published by the Bar Council of Tamil Nadu. The revised electoral rolls was also communicated to all the Bar Associations/Adverts Associations in R.O.C.No.88 of 2011 dated 31.1.2011. The said R.O.C. again makes a reference to C.S.No.7 of 2011 and the Order dated 12.1.2011. It is thus seen that the Circulars from Bar Council of Tamil Nadu makes a reference to C.S.No.7 of 2011 and the Order passed in A.Nos.78 and 18 of 2011 dated 12.1.2011. Inspite of the order being communicated to all the Bar Associations/Advocates Associations, nobody raised any objection as to the suit or questioned the jurisdiction of the Court. Even though put on notice about the suit - C.S.No.7 of 2011 and various orders/directions issued thereon, the members of Bar have not raised any objection as to the jurisdiction of the Court and thus acquiesced in the jurisdiction of the Original Side of the High Court.
30. In the Order dated 12.1.2011, the learned single Judge also issued directions to the Registrar-General to send copies of the Order to all the Judicial Officers to enable them to nominate local poll observers. The said Order reads as under:
(xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder."
31. In pursuance to the said Order, the Registrar-General has sent to communication to all the Judicial Officers in the State of Tamil Nadu to enable them to nominate independent Poll observers, receiving ballot papers and sending them to Chennai whom the work was entrusted. Registrar-General circulated the copy of the Order involving Judicial Officers as to the conduct of election, sending ballot papers to Chennai with necessary police protection. As per the Order of the learned single Judge dated 2.2.2011, the Registrar Management has to receive all the ballot boxes and hand over the same to the Judge Commissioner.
32. In R.O.C.No.91 of 2011 dated 28.01.2011, Justice K.P.Sivasubramaniam (Retd.) issued general instructions to candidates and voters as to the conduct of elections. Again, in R.O.C.NO.132 of 2011 dated 11.02.2011, the Commissioner had issued further general instructions to the candidates and voters. In R.O.C.No.230 of 2011 dated 25.02.2011, Justice KP.Sivasubramaniam who was appointed as the Commissioner had issued instructions to Poll Observers and Special Poll Observers.
33. Various directions issued by the learned single Judge were thus communicated by the Bar Council of Tamil Nadu to the lawyers and the High Court Registry to the Judicial Officers and Judge-Commissioner also issued instructions and Bar Associations/ Advocates Associations were put on notice about the suit C.S.No.7 of 2011 and the High Court on its Original Side has seized up the matter and that the single Judge is continually monitoring the election of the State Bar Council. Elections were held in strict compliance of the directions. In our considered view, even though the requirements of Order 1 Rule 8 C.P.C. have not been complied with, the advocates in the State of Tamil Nadu, who are having the interest, had sufficient notice about the suit. Inspite of the various circulars in pursuance to Order dated 12.1.2011 and 2.2.2011 being circulated/communicated to all the Bar Associations/Advocate Associations, there was no objection as to the suit or as to the jurisdiction of the High Court in entertaining the Suit on its original Side and issuing directions. The acquiescence and the strict compliance of the directions of the Order dated 12.1.2011 and 2.2.2011, in our considered view would amount to waiver and no valid objection could be raised as to the maintainability of the suit -C.S.No.7 of 2011 as a representative suit. Therefore, we could come to a conclusion that the suit is maintainable in view of the waiver of all the parties, who had participated in the election in pursuance of the order passed by the learned single Judge on 12.01.2011.
34. It has also been contended that all the candidates who are contesting the election should have been made as a party in the suit and only then the suit could be maintained. As discussed earlier, in respect of the maintainability of the suit under Order 1 Rule 8 CPC will also answer the questions raised for the impleadment of all the candidates in the suit.
35. Coming to the question of validity of the order passed on 08.03.2011, we have to consider the memo filed by the Judge-Commissioner on 07.03.2011 and the reports of the Special Observers, namely, Mr.L.Chandrakumar and V.Parthiban appointed for the polling booth at Nagercoil within District Court Complex and the report of the Special Observers, namely, Mr.K.Krishnamoorthy and R. Gokulraj sent to polling booth at Padmanabapuram. The report of the Special Observers, Nagercoil would run as follows :
"At the beginning itself, the local observer, the polling officer, volunteer and the other Advocates who gathered at the polling arena have unequivocally informed the undersigned special poll observers that the bar had unanimously taken a decision to vote for only one candidate. Sri Padmanaban whose name was shown at Serial No.90 in the Ballot paper in view of his assurance of significant financial assistance for the welfare of all the members of the bar.
When the polling commenced at 10.00 a.m., the polling officer, who was expected to discharge his duties impartially and without partisan approach, started issuing ballot papers to the voters after marking first preference vote to one candidate. Sri Padmanaban at Serial 90. The polling officer merely obtained the signatures from the respective voters in the ballot papers and the so called volunteers immediately took custody of the ballot papers and shoved the same into the ballot box. The voters were not given any chance to even look at the ballot paper. Voters also (barring a few) appeared to be in tandem with such sham exercise. The marking of vote by polling officer himself was objected to by the undersigned and as immediate response to the objection, the polling officer instructed the voters themselves to mark this first preference vote for Sri Padmanaban and not to vote for any one else. He made and ensured voters to cast his or her vote only for the said candidate. However, this approach of the polling officer was only for some time and he conveniently returned to his earlier method of marking the vote himself. In any event, whether marking of vote by polling officer himself or by the voters themselves, it did not make any difference, as the singular agenda set for the day was to obtain first preference vote to Sri Padmanaban from all voters under all circumstances. The agenda appeared to be fulfilled as the curtains were drawn on the election at 5.00 p.m. The videography arranged for the election was simply an eye wash. The videographers, the undersigned learnt were asked to remain in one position and in one spot at the entry far away from the polling area. Videographers were merely covering the activity wherein the voters were given these tokens to enable them to receive the ballot papers at the polling area. The volunteers who were in charge of issue of tokens to the voters never properly checked the identity of the voters as per the election specifications. Tokens were given for the asking. The videography had been deliberately kept out of the polling area, as otherwise, the farcical exercise of voting which took place would have got exposed in no uncertain terms.
Out of 921 votes polled, there were only handful of voters (not more than half a dozen) who exercised their franchise independently. Even these voters came under severe pressure from the volunteers more particularly, the so called local observer that they should vote for Sri Padmanaban. In fact, the said local observer who was supposed to oversee fair conduct of the election was loudly chiding one of the voters for inadvertently marking his vote invalidly at serial No.90 by saying that he should have been more responsible having consented to taking payment from the candidate concerned.
Around 2.00 p.m., almost all the voters who stood in the queue had polled and there were only few voters waiting to cast their votes. At that time, approximately, around 550 votes had been polled. Around 2.45 p.m., onwards, there were no voters waiting, but polling continued unabatedly and uninterruptedly with help of the volunteers and few other proactive advocates, proactive polling officer and the local observer. On behalf of the voters who remained absent, the volunteers took turns in affixing their signatures against the names of the absentee voters and were polling their votes. The undersigned could see that some of the advocates including few woman advocates repeatedly casting their votes every now and then with impunity. This mockery went on till the close of the election at 5.00 p.m. At least from 3.00 p.m., to 5.00 p.m., the undersigned did not find any new voter coming to cast his or her vote. Out of total 948 votes, 921 votes came to be polled in the fashion (except of course few votes) as indicated above.
The entire election process from the issue of tokens, till the casting of votes has been vitiated by illegitimate method collectively adopted by the local Bar. It appears that the advocates who are supposed to uphold the values of democratic exercise have reduced the same into a sad and sordid state travesty."
36. The aforesaid report would go to show that how the polling was performed at Nagercoil in violation of the Bar Council of Tamil Nadu Election Rules and the general instructions given by the Judge / Commissioner in his circular.
37. Similarly, the report given by the Special Observers from Padmanabapuram on 07.03.2011 would run as follows:
"3. When we requested the I.D. Cards to be shown the polling officer, observer and agent said, it is not required as they are local members known to them. And no body showed I.D.Cards to us and our objection in this regard was rejected by polling officer. Indelible ink also was not put to nearly about 30% of the voters.
4. We were sent as Special Observers to ensure fairness in electoral process integral to which is the ensuring of identity of the voters failing which even non lawyers can vote. When we raised this issue, it was vociferously rejected.
5. There has also been dual voting by subsequently showing the identity card.
Therefore, in view of the fact Padmanabapuram did not have the discipline to comply with the requirement of fair electoral process, we recommend that entire ballot from Padmanabapuram be rejected.
The reasons for the same are:-
a. Voters did not show their Identity Cards, therefore identity of voters could not be ascertained.
b. There has been unascertainable number of dual voting.
The total number of voters : 292 The total number of votes polled : 218"
38. The learned single Judge had considered the reports of the Special Poll Observers sent by the Judge-Commissioner to Nagercoil and Padmanabapuram which were also extracted supra. It is no doubt true that the Bar Council of Tamil Nadu Election Rules have not been followed, but violated in both the aforesaid booths and the entire polling has been made questionable. The instructions and circular issued by the Judge Commissioner would also go to show that any violation on the part of any voter or any officer will make the votes invalidate. For better understanding of the said instructions, it is better to extract the report of the Judge-Commissioner.
"5. I leave it to the Hon'ble Court to issue appropriate directions for the said context. At this juncture, I wish to point out that amidst rumours and even reports in newspapers about buying of bar associations and bribing of voters, I had issued specific instructions on 28.1.2011 and 11.2.2011 to the candidates and voters (annexed herewith) making it very clear that any malpractice, rigging or any act which would materially affect the polling in a booth will result in invalidating the entire polling in that booth and votes polled in that booth shall not be counted. In spite of the said warning, the enlightened voters at Nagercoil and Padmanabapuram appear to have thought that they are above law."
39. Moreover the rules contemplated under Rules 20 and 22 of the Bar Council of Tamil Nadu Election Rules have also been violated freely with the help of the Polling Officer. According to Rule 20 of the Bar Council of Tamil Nadu Election Rules, secret ballots as well as franchising of votes is contemplated and the vote should be put by the voter inside the sealed box kept for that purpose. According to Rule 22 of the Bar Council of Tamil Nadu Election Rules, the voter shall put No.1 or 2 or 3 as to his choice over the candidates in the appropriate boxes, in the ballot paper. The indelible ink is planned to put on the index finger of the voter in order to avoid double voting. It has been ordered to put such indelible ink on the right index finger instead of left index finger considering the voters will participate in the ensuing general election. As far as these rules are concerned, the report of the Special Observers in Nagercoil would go to show that the Polling Officer and the volunteers of local Bar have seized all the ballot papers immediately after the signatures put by the voters and with the help of the Polling Officer, they put No.1 against the name of one Mr.Padmanaban, a local contestant of the Bar Council and the volunteers have shoved the votes into the ballot box. The Special Observers are neutral persons appointed by the Judge Commissioner and they cannot be simply brushed aside. The videograph taken at the Polling Station in Nagercoil has not yet been despatched by the Polling Officer to the Judge- Commissioner. We could also see the letter from one of the candidates, namely, Mr.Issac Mohanlal whose name has been enrolled in Nagercoil Bar Association, which would speak volume in support of the reports of Special Observers of the Nagercoil Polling Station.
40. Similar to the incidents at Nagercoil, the things happened at Padmanabapuram would also be very serious. According to the report of the Special Observers, the local members want to vote without identity cards and without putting the indelible ink to 30% of the voters. It is also seen that double voting was done with the active collusion of the polling officer from the local Bar. The identity cards were not shown by anybody for voting in the said booth. The special observers apprehended that some non-lawyers could have also voted since they did not show any identity card for the purpose of voting.
41. It is quite sure that the observers reports in both the polling stations, namely, Nagercoil and in Padmanabapram would go to show that the votes shoved inside the ballot boxes cannot be identified as to which of the votes have been validly voted and which other votes have been illegally voted. In the said circumstances, the learned Single Judge had come to the conclusion of invalidating the votes polled at the said two booths by invoking Rule 25(2) of the Bar Counsel of Tamil Nadu Election Rules. The learned single Judge would also have considered the option of re-polling, but had not adopted the same for the reason that the situation in the said two polling stations namely Nagercoil and Padmanabapuram are extra- ordinary and grave in nature.
42. If some other reasons have been attributed for invalidating the votes polled at both the stations, it could be considered as normal circumstances and we would also have accepted the contention of the appellants that no opportunity was given to the Nagercoil Bar as well as Padmanabapuram Bar before declaring the votes polled therein are invalid. But the circumstances were different in Nagercoil and Padmanabhapuram. Therefore, we are of the considered opinion that the decision reached by the learned single Judge in taking the extreme step of invalidating the votes of the aforesaid two polling booths is found correct. In the facts and circumstances of the case, we are unable to accept the contention that non-affording of opportunity vitiates the order passed by the learned single Judge. The incidents and sequences happened at the polling stations at Nagercoil and Padmanabapuram would go to show that they have not only violated the Bar Council of Tamil Nadu Election Rules, but also the instructions given by the Judge Commissioner in the circular making it clear that any tampering of votes would lead to invalidation of such votes. The voters as well as the Polling Officers appointed on their behalf are knowledgeable persons who would understand the strict circular and the election rules governing the election conducted by the Judge Commissioner appointed by this Court by virtue of the order dated 12.1.2001. Every voter would be deemed to have been notified with the said order, circulars and other informations. In addition to that, the learned single Judge had considered the past conduct of the said centres in conducting the elections in similar manner in the year 2005. The excuse put forth by the appellants would be that they wanted to elect and choose their own Bar Council Member from the local Bar. Accordingly, they passed resolution and therefore, it would not prejudice the rights of the voters in voting in favour of a particular candidate. It is for such body of persons to do the things within the four corners of law. Being the interpreters of law, the voters as well as the polling officers in both the centres who are respecting law, could have performed their resolution in accordance with the Election Rules as well as the instructions given by the Judge Commissioner. But what we find is that the election rules and the instructions were flouted in both the centres. The irregularities, violation of Election Rules and earlier instructions are writ large on the face of the report of the Commissioner for invalidating the votes.
43. Law is indispensably essential for the authoritative and peaceful resolution of all conflicts, for ensuring the orderly development of society, for maintaining the Rule of Law, for promoting social justice, for safeguarding liberty and for protecting basic human rights and fundamental freedoms. It is no doubt true that the law is supreme and it has to be held above, but the report of the Special Observer and the report of the Judge Commissioner would go to show that the election Rules and the instructions of the Commissioner had been violated by the Bar members through out the polling at Nagercoil and Padmanabapuram which would sadden everybody and such deterioration in upkeeping the law, would certainly affect orderliness. Law is the guardian of the Society muchless to every member of the Society. Civilization would not have developed or cultured without the protection of law. Upkeeping of law should have been very strictly adhered to which is the need of the hour . Therefore, the reasons given by the learned single Judge for not ordering re-polling but to invalidate the votes polled at Nagercoil and Padmanabapuram are quite convincing.
44. The appellant in O.S.A.No.98 of 2011 was arguing that he was not given any opportunity for stating his case. The said appellant was also one of the candidates who had accepted the verdict of the learned single Judge dated 12.1.2011 and had participated in the election by filing nomination. He was very well aware of the order passed by the learned Single Judge on 8.3.2011 and unlike the appellant in O.S.A.No.88 of 2011, he did not file any application before the learned single Judge for recalling the said order. He had approached this Court by filing this appeal only on 28.3.2011 when the votes were counted and the result was likely to go against him. The laches on his part would also disentitle him from the grant of any relief.
45. The learned counsel for the second respondent - Bar Council of Tamil Nadu would file a status report regarding the counting of votes in which he had stated that 25 members have been elected in the Bar Council Elections conducted on 4.3.2011. The name of the appellant in O.S.A.No.98 of 2011 is not found in the list. In such circumstances, we are afraid that if any re-polling or re-election is ordered, it will certainly affect the returned candidates from the election conducted on huge expenditure, approximately to the tune of about Rs.50,00,000/- (Rupees fifty lakhs only) which would very much affect the second respondent. Such a re-polling or re-election is not feasible since it would cause prejudice to the elected candidates as well as the second respondent-Bar Council of Tamil Nadu and Pondicherry for no fault of theirs,but purely on the violation of the Election Rules and general instructions given by the Judge-Commissioner at Nagercoil and Padmanabapuram Polling Station. The election process had reached to a level of declaration of the result and at this juncture, we are of the considered view that there is no necessity to interfere with the orders passed by the learned single Judge.
46. Therefore, we are of the considered view that there is no reason to interfere with the order dated 8.3.2011 and 21.03.2011 passed by the learned single Judge in Application No.1600 of 2011 and the appeal filed by the appellant in O.S.A.No.88 of 2011 is liable to be dismissed. Accordingly, O.S.A.No.88 of 2011 is dismissed. The same would be applicable to the appeal filed in O.S.A.No.98 of 2011. Therefore, O.S.A.No.98 of 2011 is also dismissed. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
(R.B.I.J.,) (V.P.K.,J.) 09.04.2011 Index:Yes/No Internet:Yes/No vsi/mra
Note : The ballot papers produced for perusal of the Court in Nos. 025203 and 025204 shall form part of the record.
R.BANUMATHI.,J.
AND V.PERIYA KARUPPIAH.,J.
Vsi/mra Pre-delivery judgement O.S.A.Nos.88 and 98 of 2011 09.04.2011