Madras High Court
C.Dharmalingam vs The District Registrar on 11 February, 2010
Author: Prabha Sridevan
Bench: Prabha Sridevan, B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 11/02/2010
Coram
THE HONOURABLE Mrs.JUSTICE PRABHA SRIDEVAN
and
THE HONOURABLE Mr.JUSTICE B.RAJENDRAN
Writ Appeal (MD)No.715 of 2009
and
M.P.(MD)No.1 of 2009
C.Dharmalingam ... Appellant/
Respondent No.7
vs
1.The District Registrar,
Office of the District Registrar,
Madurai South, Palace Road,
Madurai.
2.Nadar Mahajana Sangam,
rep.by through its General Secretary
G.Karikol Raj,
No.2, South Chithirai Street, Madurai.
3.Nadar Mahajana Sangam Kamaraj Polytechnic
Paribalana Sabai,
Palavizhai, Kanyakumari District,
through its Secretary,
No.2, south Chithrai Street, Madurai.
4.S.Sathasivan
5.Karikol Raj
6.S.Sadasivam ... Respondents 1-6/
Respondents 1-6
7.G.Kannan
8.S.Vanchiko ... Respondents 7 & 8/
Petitioners
Writ Appeal under Clause 15 of Letters Patent against the order of the
learned Single Judge, dated 04.12.2009, made in W.P.(MD)No.5528/2009.
!For Appellant ... Mr.V.Raghavachari for
Mr.N.Sathish Babu
^For Respondent-1 ... Mr.R.Janakiramulu,
Spl.Govt.Pleader.
For Respondent-2 ... Mr.R.Vijayakumar
For Respondents 3 & 5 ... Mr.M.Vallinayagam
For Respondent-6 ... Mr.B.Saravanan
For Respondents 7 & 8 ... Mr.A.L.Somayaji,
Senior Counsel for
Mr.H.Arumugam
For Respondent-4 ... No appearance.
Mr.V.Sitaranjan Das,
Advocate Commissioner.
:JUDGMENT
PRABHA SRIDEVAN,J The District Registrar, Madurai South, was faced with as many as Form-VII filed by the members of the 3rd respondent and returned all the Forms by the order dated 30.10.2008. This order was not attacked. But, instead, the 7th and 8th respondents herein, filed W.P.(MD)No.5528 of 2009 praying for a writ of mandamus for conduct of election for the period from 05.11.2008 to 2011 in respect of the 3rd respondent herein, namely Nadar Mahajana Sangam Kamaraj Polytechnic Paribalana Sabai ("Sabai" in short), along with a direction to the 2nd respondent parent Sangam, namely Nadar Mahajana Sangam ("Sangam" in short) to take charge of the administration of the 3rd respondent Sabai. The learned Single Judge held the election of the 7th respondent, the appellant herein, was invalid, set it aside, ordered fresh election and appointed an Advocate Commissioner to facilitate the election. Against this, the present appeal has been filed.
2.The 2nd respondent Sangam is a society registered under the Tamil Nadu Societies Registration Act (in short "the Act"). The members of the Nadar Community all over India are eligible to become members of the Sangam. One of the educational institutions run by the Sangam is the 3rd respondent Sabai, which is also registered under the Tamil Nadu Societies Registration Act. As per the bye-laws of the 3rd respondent Sabai, all the special life members of the 2nd respondent Sangam, the parent Sangam, automatically become the members of the 3rd respondent Sabai. It is, in respect of the election to the 3rd respondent Sabai, the present dispute has arisen. Atleast, four elections are alleged to have been held and each party points out defects in the election of the other and thereby they are unable to see eye-to-eye with each other. Smooth functioning amongst the members is necessary for the management and administration of the educational institution.
3.After hearing the counsel on both sides, we asked the counsel whether it would be in the interest of the educational institution to create a vacuum to continue, since the Registrar had returned all the Form-VIIs that were submitted to him and had directed the parties to resolve the dispute in the civil Court? Various suggestions were made by the learned counsel on either side, which naturally were not acceptable to the other side. We asked them whether it was not in the interest of the Democratic functioning of the Sabai that they agree to convene the General Body Meeting and decide how the election should be conducted. All of them agreed. On 04.02.2010, when the matter came up, all the parties agreed for convening an Extraordinary General Body Meeting and agreed that it will be presided over by a retired High Court Judge to be named by us. They also agreed that the Advocate Commissioner Mr.V.Sitaranjan Das will issue notice for calling the General Body Meeting and the conduct of election. This was only because they do not want the notice to be issued by any one party who may claim that it indicates a stamp of approval by this Court on that party. The matter was posted on 05.02.2010. We requested the Advocate Commissioner to suggest the venue which will be suitable for conduct of the General Body Meeting. Therefore, the directions that will be given by us at the end of this order, is really a consensus order which is agreed to by parties.
4.It may have been sufficient not to dilate upon the matters argued by the counsel since they had agreed to a particular course of action, but several legal issues are raised, which we must address. So, we will deal with them and finally give our directions regarding the conduct of the General Body Meeting and the conduct of election.
5.Bye-law 9 of the 3rd respondent Sabai provides that all the special life members of the Parent Sangam will be members of Sabai. Bye-law 10(a) provides a General Body Meeting to be convened once a year in June at Madurai. The date, place, time and the subjects to be discussed would be communicated by 21 days notice to all the members by the Secretary. Atleast 50% should be present at the meeting. At the meeting, the Executive Committee to run the Kamaraj Polytechnic College will be selected for a period of three years by the Parent Sangam. At this meeting, the Sangam will select from the Executive Committee a governing council consisting of President, Vice-president, Secretary, Treasurer and seven Executive Members. If the Executive Committee thinks it necessary or if there is a requisition from not less than 100 members, an Extraordinary General Body Meeting will be convened. These are roughly the important bye-laws for this case.
6.A batch of writ petitions were filed by various members to enquire into the affairs of the 2nd respondent Sangam and conduct elections and also to enquire into the 3rd respondent Sabai. One of the writ petitions was for a direction to the District Registrar (Societies), the 1st respondent herein, to take charge and conduct the election for the year 2006-2009. One Udayakumar filed W.P.(MD)No.9814/2007 to restrain the Sabai from proceeding to convene the Executive Committee Meeting. Thereafter, he withdrew it. He subsequently filed W.P.(MD)No.382 of 2008 for a direction to consider his representation, dated 03.12.2007, seeking action under Section 34-A of the Act to suspend the Board of Directors. K.Chandru, J passed an order in these batch of writ petitions on 12.08.2008, dismissing some of them as having become infructuous, since the Registrar had accepted the Form VII. The learned Judge relied on (2008) 1 MLJ 1308 - R.Muralidaran and Others vs. District Registrar, South Madras and another, where it was held that a writ will not lie against any ministerial act performed by the Registrar of Societies, including the acceptance or rejection of Form-VII, dismissed the writ petition. The Learned Judge referred to the power of the Registrar as considered by the Full Bench in 2005(2) CTC 161 - C.M.S.Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal, through its Secretary Sri S.David Stephen vs. The District Registrar, Cheranmahadevi, and also the observations of the Division Bench in the decision cited supra and held that the aggrieved persons will have to move the appropriate civil court.
7.The writ petitioner T.Udayakumar mentioned above alone filed W.A.(MD)No.543/2008. The Division Bench observed that no person can take advantage of Form-VII which was accepted by the District Registrar but, since the three year period of the committee was due to come to an end, they were not inclined to decide the question whether the Form-VII filed was proper or not. The Division Bench also did not find it necessary for remanding the matter to the authorities to decide as to whether any action was taken under Section 34-A of the Act. The appellant/petitioner was given liberty to bring this order to the notice of the competent authority so as to ensure that early election is held after completion of the period of existing committee which was going to be lapsed by the end of October/4th November,2008 and to decide under whose supervision, the election was to be conducted under law. It was further made clear that no person can take advantage of Form-VII as was accepted by the District Registrar, Madurai (South) by letter dated 25th April, 2008.
8.A requisition was given by one R.S.Johnson and 450 members on 02.07.2008 to convene the General Body Meeting. On 25.09.2008, a suit i O.S.No.602/2008 was filed by the 4th respondent herein to restrain the Extra- ordinary General Body Meeting from being convened and seeking temporary injunction. On 26.09.2008, the I-Additional Sub-Judge, Madurai, granted permission. A Meeting was convened by R.S.Johnson as per the direction but, on the same day, the appellant also claimed that he fixed another election committee to conduct the election alleging that he conducted a separate Extraordinary General Body Meeting. It is thereafter four elections were alleged to have been conducted by four different groups and suits were also filed by the parties herein.
9.We see from the facts narrated that each party notified that election will be held on a particular date, at a particular venue. Some documents are produced to show that the date and venue alleged to have been fixed by the appellant could not have been fixed by him. Finally, on 16.10.2008, the appellant claims that their group was elected. On 26.10.2008 there was an order under Section 144 Cr.P.C. In view of the said order, paper publication was made for change of venue of the election and the 5th respondent claims that he was elected as Secretary in the election held on 29.10.2008. O.S.No.651/2008 was filed before the Sub-Court, Madurai, to declare the election of the 5th respondent as null and void. O.S.No.683/2008 was filed by the 5th respondent for declaration that the 5th respondent's election is valid and the other elections are invalid. O.S.No.1063/2008 was filed for a declaration that other elections were invalid. Then O.S.No.435/2008 was filed before the Sub- Court, Nagercoil, and interim injunction was granted against the 4th respondent from interfering with the process of the 5th respondent taking over charge. On 12.12.2008, the 5th respondent took charge. It is thereafter the present writ petition was filed and the order was passed.
10.It was also submitted by the learned counsel for the respondents that the names of the members shown in the appellant's list and Respondent No.4's list would show that there is considerable overlapping and that would prove that the alleged election of the appellant cannot be accepted. It was also submitted that in law, the appellant could not have convened the Extraordinary General Body Meeting, since as per Section 28 of the Act, only on the requisition of a member, an extraordinary General Body Meeting is convened and the only requisition was by one R.S.Johnson and 450 others. The appellant had not given a requisition and could not have convened the Extraordinary General Body Meeting.
11.On the side of the appellant, it was submitted that the prayer in the writ petition could not have been granted. In view of the directions given by the Division Bench in W.A.(MD)No.543/2008, the learned Single Judge had only one option and that was to dismiss the writ petition, The validity of election could only be decided in the civil suits. Without the benefit of documentary or oral evidence, the learned Single Judge could not have set aside the election. The Full Bench has clearly stated that when Form-VII submitted to the Registrar, he can either accept or reject but, he cannot declare the election valid or invalid and for that he had to direct the parties to go before the civil Court, so the learned Single Judge could, at best, had directed the parties to await the outcome of the proceedings before the civil court. When we asked the learned counsel whether the election that had been conducted pursuant to the order under challenge can be accepted to avoid further expenses, learned counsel submitted, not without some justification, that since the election was held subject to the result of the writ appeal, the voting was much lower than what otherwise have been.
12.2005(2) CTC 161 had to be considered by a Full Bench because the correctness of 1994 WLR 779 - K.Arivananthapandian and another v. Nadar Mahajana Sangam, etc. and three others was doubted. That was a case filed against the 2nd respondent Sangam herein. In fact, one might say without any fear of disagreement that the law relating to the role of the Registrar under the Societies Registration Act has been shaped almost by the litigation generated either by members of the 2nd respondent Sangam has been involved. In 1994 WLR 779, Form-VII were submitted by two groups. The writ petitioner claimed that his Form-VII was accepted by the District Registrar. But, thereafter, at the instance of the other group, the Registrar issued a notice for conduct of enquiry. The question was whether under Section 36 of the Act, the District Registrar has power to enquire into the matter as to who are the elected President, Vice-President and members of the Sangam and if so, what is the extent of his power. The Division Bench felt that it is the Registrar who administers the Act and when Form-VII is filed and the correctness is challenged by one or the other parties, the Registrar can enquire and find out as to who are the persons elected to the committee. The Division Bench held that the members of the Society who claim to have been elected can undoubtedly approach the civil Court to have their claim adjudicated. But, "on a conspectus of the provisions contained in the Act, we are of the view that the Registrar has power under Section 36 of the Act to go into the question in the case of challenge made to Form-VII and determine on holding an enquiry as per the provisions contained in S.36 of the Act, whether Form-VII filed is correct or not". It is further observed, in the event he comes to the view that Form-VII is not correct and nobody has been elected, it would be open to him to give a direction to hold a fresh election as Sub.S.(9) of S.36 clearly empowers him to give such directions as he deemed fit under the circumstances of the Case and of course, as already pointed out, such a direction would be subject to the right of the parties to have the matter adjudicated by the Court.
13.The correctness of this decision was questioned before another Division Bench, which felt that they could not locate any power of adjudication of dispute regarding validity of election of the managing Committee under Section 36. Therefore the matter was referred to the Full Bench. The Full Bench in 2005(2) CTC 161 cited Supra, in paragraphs 18 and 20 held:
"18.The power of the Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction. The said power cannot be construed as the power of appeal. Under Section 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent the society based upon question of fact. A plain reading of Section 36 shows that the Registrar could look only the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No.VII in order to effect change in the register. The power of the Registrar to call for information and explanation under Section 34 does not contemplate any power to examine witnesses or to allow opportunity for cross examination of witnesses. The power in our view is incidental and it is only for the purpose of maintaining correct records. As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the inquiry is limited only for the purpose of making entries in the register. However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the Writ Jurisdiction.
19....
20. As the power of the Registrar to hold enquiry is only to arrive at a prima facie conclusion as to the correctness of the particulars given in Form VII, the provision of sub-section (9) of Section 36 should also be understood to mean that he could issue such directions to the registered society or any of the member of the society only with reference to the details furnished in Form VII. It must also be borne in mind that the enquiry under Section 36 is not only limited to the regular affairs of the society and such affairs not only include the constitution of a registered society but also to the working and financial condition, and hence the power of the Registrar to issue such direction under sub-section (9) of Section 36 of the Act, in regard to the constitution of the registered society must be understood in the context of Form VII. Section 14 obligates the registered society to maintain a register containing the names, addresses and occupations of its members. Section 15 further mandates such registered society shall file with the Registrar a copy of the register maintained by it under Section 14 and from time to time file with the Registrar notice of any change among the members of the committee. In the absence of failure to comply with Section 14, the Registrar could only resort to to the power under Section 37 to cancel the registration. Hence, the power under sub- section (9) of Section 36 cannot be stretched to a power on the Registrar to direct the registered society to hold fresh election. A direction to hold fresh election would amount to indirectly setting aside the earlier election and such power is not conferred on the Registrar under any of the provisions of the Act. So long as the election is not declared invalid in the manner known to law, no direction for fresh election could be ordered. Validity of the election could very well be decided only by the competent Civil Court as the parties are entitled to let in their evidence to sustain their respective claims. In the event the Registrar satisfies himself as to the particulars furnished in Form VII as correct, he should enter the names in the register maintained for that purpose. In the event if he does not satisfy as to the particulars and thereby does not accept Form VII, he has to issue a direction relegating the parties to approach the Civil Court for appropriate orders and thereafter shall act as per the orders of the Civil Court. ......."
14.In 2008(1) MLJ 1308, which was referred to by K.Chandru, J in the order referred to supra, the question was whether the direction of the District Registrar directing to conduct a fresh election was correct. The Division Bench, in paragraphs 32, 33 and 36 held:
"32.From a bare reading of sub-section(1) of Section 34, it is clear that the only obligation cast upon the Registrar, upon receipt of any document or Form filed under the Act, is to call for any further information or explanation in respect of any matter, to which, such document relates to. Sub-section (3) makes it still more clear by prescribing that the Registrar may annex such information or explanation to the original document filed with him. Therefore, if Form No.VII is filed with the Registrar, as required by Section 15(1) of the Act read with Rule 17(2) of the Rules, all that the Registrar can do is only to call for further information or explanation under Section 34(1) and keep the information or explanation received by him as an annexure to the original document. This is nothing but a mere ministerial function and hence, it cannot be challenged by way of a writ petition under Article 226 of the Constitution of India.
33.In any event, the filing of Form No.VII is only a consequential action to an election purportedly conducted. The acceptance of such a Form by the Registrar would neither affix a seal of approval on the validity of the election nor would the rejection of Form No.VII by the Registrar, invalidate an election properly conducted. Therefore, a person, who is aggrieved by an election, should only go before a Civil Court challenging the election. A person aggrieved by an election cannot challenge the acceptance or rejection of Form No.VII by the Registrar as a short cut to invalidate an election. ..... .....
36.In fact, the Full Bench has gone to the extent of holding that the Registrar has no power to direct a Society to hold fresh election, even while invoking the jurisdiction under Section 36 of the Act. It is made clear by the Full Bench that an election can be set at naught only by the Civil Court in a suit and not even in an inquiry under Section 36. The necessary corollary of such a conclusion by the Full Bench is that what is not possible even in an inquiry under Section 36, cannot be made possible while receiving Form No.VII and looking into it under Section 34. Therefore the acceptance or rejection of Form No.VII and the action of the Registrar in calling for additional information or explanation under Section 34 is a mere ministerial act, not amenable to the writ jurisdiction of this Court. Therefore, the writ petition, out of which, the present appeal arises, is itself not maintainable."
15.This was followed by (2009) 4 MLJ 461 - P.V.Kadiravn v. Kallar Kalvi Kazhagam. A writ petition was filed against an order of the District Registrar accepting Form No.VII by one group and a finding is recorded, subject to the outcome of the suit. The Division Bench held in Paragraphs 17 and 19:
"17.Section 34 of the Act deals with the power of the Registrar to call information or explanation. A reading of section 34(1) would reveal that where the Registrar, on perusal of any document which a registered society is required to file with the Registrar under the provisions of the Act and where the Registrar is of the opinion that any information or explanation is necessary with respect to any matter to which such document purports to relate, he may, by order in writing, call on the registered society filing the document to furnish in writing such information or explanation within such time he may specify in the order. As is seen from Section 34(3), on receipt of such information or explanation, the Registrar may annex the same to the original document filed with him and the additional document so annexed by the Registrar shall be subject to the like provisions as to inspection and the taking of copies as the original document is subject.
18. ....
19,The power of the Registrar under Section 34 is thus only incidental and it is only for the purpose of maintaining correct records. Form No.VII prescribes the format in which a notice of any change among the members of the society or the committee is to be filed before the Registrar. Filing of Form No.VII is only consequential to any change i.e. change of members of change of constitution of the committee. As we have pointed out earlier, Form No.VII so filed is only for the purpose of maintaining separate file in respect of each registered society."
16.Just a month later, another Division Bench in 2008-4-L.W.1080 - C.M.S.Evangelical Suvi David Memorial Higher Secondary School Committee v. District Registrar, Cheranmahadevi & Others, held that "It is apparent that the Division Bench in R.Muralidaran's case and the subsequent decisions, which have merely followed the R.Muralidaran's case, have been rendered by ignoring many relevant and vital statutory provisions and statutory rules such as Sections 26(4), 29, 35, 37(c), 46 to 48 of the Act and Rule 49, 50 and 51 of the Rules. Therefore, it can be concluded that such decisions have been rendered per incuriam" and thereafter the Division Bench held in paragraph 36:
"36.In view of the foregoing analysis of all the relevant provisions and the ratio of the Full Bench decision, our conclusions are as follows:-
(i)The ratio of the Full Bench decision is only to the effect that the Registrar does not have any power either under Section 34 or 36 of the Tamil Nadu Societies Registration Act, 1975, to cancel the election to the committee, and, or to direct holding of fresh election.
(ii)If the Registrar of the Societies is not satisfied about the correctness of the Form VII, he need not take such Form VII on file, but he can direct the parties to approach the Civil Court to establish the validity of the election.
(iii)When any notice in Form VII is received by the Registrar, he is required to find out whether such notice has emanated from appropriate authority. Obviously, he is also required to find out whether the persons claiming to be the members are in fact the members of the society. Since the register maintained in the office of the Registrar is supposed to contain the names of such members, it is not difficult for the Registrar to find out as to who are the members of the society.
(iv)Section 36 of the Act contemplates that, if necessary, the Registrar can call upon the persons likely to have information, knowledge in the matter for enquiry and for recording of statements on oath.
(v)Such conclusion by the Registrar is only for the purpose of maintenance of correct records, but any such order regarding membership of the society or election to the committee for he purpose of maintenance of records is obviously subject to the decision of the Civil Court, whether final or interlocutory order. However, till any contrary order is passed by the Civil Court, either finally or even by interlocutory order, the authorities under the Tamil Nadu Societies Registration Act, 1975 or under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, are not expected to go beyond such taking of Form VII. There is no concept of accepting as many as Form VII are possible as adoption of such a course would obviously result in chaotic conditions.
(vi)It is immaterial as to whether the order of the Registrar is considered as "administrative" or ministerial". If, while passing the order, the Registrar acts arbitrarily, it would be open to the Writ court to consider the matter within the accepted parameters of writ jurisdiction and pass any appropriate order. Under what circumstances the High Court can interfere would obviously depend upon the facts and circumstances of each case."
17.With great respect, the Division Bench, which held that the decision in R.Muralidaran's case was per incuriam, had failed to take note of the law laid down regarding the binding nature of the precedents of a co-ordinate Bench. In 2009(8) SCC 646 - Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn., the Supreme Court held:
"57. We may notice some decisions of this Court as regards the binding nature of the precedents of a coordinate Bench. In Union of India v. Raghubir Singh8 this Court has held: (SCC pp. 777, paras 27-28) "27. ... It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. ...
28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court."
See also Union of India v. Godfrey Philips India Ltd.
[(1995) 4 SCC 369]
58. In Sub-Committee of Judicial Accountability v. Union of India [(1992) 4 SCC 97] this Court has held: (SCC p.98, para 5) "5. ... Indeed, no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench."
59. In Central Board of Dawoodi Bohra Community v. State of Maharashtra [(2005) 2 SCC 673] this Court has held: (SCC pp. 682-83, para 12) "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2)... It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted."
60. We are in agreement with all the above observations of this Court. Ranjan Chemicals was bound by the decision rendered in Indian Bank [(2006) 5 SCC 72] being a coordinate Bench. It could not have taken a contrary view."
18.In 2008-4-L.W.1080, which commented about Muralidaran as being per incuriam, there is an extract from 1992 (2) MLJ 302 - Philip Jeyasingh v. The Jt.Regr.of Co-op.Societies, which is judgment of a Full Bench. But in the same case, the Full Bench has laid down principles to be followed by our Courts, which follow the law of precedents. This judgment is virtually a treatise on the subject. We extract the following.
"9. .... As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, reference is made to a larger Bench."
"19.Thus, the law of precedents has been uniform throughout the country for over a century. Occasional aberrations by Judges sitting singly or in Division Benches hve not only been frowned upon, but condemned outright by higher Courts. the following principles can be culled out from the myriad case laws, (a)A Single Judge is bound by the decision of a Division Bench and if he does not agree with it, he shall refer the matter to a larger Bench (b)A fortiori, he is bound by the judgment of a Full Bench and if he does not agree with its ratio, he shall place the papers before the Chief Justice to consider whether a larger Bench should be constituted for considering the question (c)A Division Bench is bound by the decision of another Division Bench and if it wants to differ it shall refer the matter to the Full Bench (d)A fortiori a Division Bench is bound by the decision of a Full Bench and if it wants to differ, it shall place the paper before the Chief Justice to consider whether a larger Bench should be consulted for reconsidering the question (e)the decision of a Full Bench is binding on the court including a subsequent full Bench until it is overruled by a higher Court or a larger Bench. (f)A decision of a Full Bench can be reconsidered only by a larger Bench specially constituted by the Chief Justice for deciding the question. (g)Even the obiter dictum of a Full is entitled to great weight. (h)The binding effect of a prior decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided (i)the decision of the Supreme Court is binding on the High Court and the latter cannot ignore it on the ground that some relevant provisions of law were not brought to the notice of the Supreme Court or some aspects of the matter in question were not considered by the Supreme Court."
So, the latter Division Bench ought to have followed these principles. If the Division Bench really disagreed with R.Muralidaran, it should have referred the matter for consideration by a Full Bench . The course adopted was not in accordance with Philip Jeyasingh Full Bench.
19.Hence there is no difference at all in the three judgments, C.M.S.Evangelical Full Bench, R.Muralidaran and 2008-4-L.W.1080 on the extent of the power of the Registrar under Section 36 of the Act, which we have already extracted. The Division Bench in R.Muralidaran's case had not run counter to the Full Bench decision. It had explained what is the meaning of "ministerial Act"
and that it is an act which follows the procedure, but which does not involve any exercise of discretion and it called the act of the Registrar as Ministerial. The Full Bench also meant the same thing in different words. The Full Bench said that the Registrar could look only at the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form-VII in order to effect change in the Registers. It did not give him any power to examine witnesses. The power was only for the purpose of maintenance of records.
20.R.Muralidaran did not reduce the Registrars acts to a mere ministerial one. Paragraph 19 clearly shows this. R.Muralidaran explained the duties performed by the Registrar can be demarcated into three categories as
(a)Ministerial, (b)Administrative and (c)Quasi-judicial. R.Muralidaran also held that there can be no iota of doubt about the availability of the power of judicial review over the administrative functions which has an element of discretion and the quasi judicial functions which also has an element of discretion. However, certain functions of the Registrar are merely ministerial in the sense there is no discretion left to the Registrar. Registrar performs these acts in obedience to the procedure laid down in accordance with law, which imposes time, mode and occasion of its performance and that nothing remains for judgment or discretion. To that extent, R.Muralidaran said the acceptance or return of Form-VII is nothing but a ministerial act. The Full Bench also held the Registrar will have to examine by making an enquiry for the limited purpose of making entries in the Register as to whether to believe or not to believe, prima facie to accept or to reject Form No.VII in order to effect change in the Register. So, it is not correct to say R.Muralidaran had completely diluted the power of the Registrar as a mere ministerial function. It had not done so. We have already seen that R.Muralidaran held that since the act was ministerial, it was not amenable to the judicial review. There can be no doubt even if a ministerial power has been exercised so contrary to the procedure and it shows that not even modicum of adherence to procedure has been followed by the Registrar, it will, of course amenable to judicial review. With due respect, the latter Division Bench in 2008-4-L.W.1080 could have said that if even a ministerial act is so contrary to law, the Court will have no hesitation in interfering under Article 226, instead of commenting upon the entire judgment as per incuriam.
21.The Registrar's power has been dealt with in detail by the Full Bench in paragraph 18 as well as paragraph 20. The Full Bench has also clearly says that validity of the election can only be decided by the competent civil court. The Registrar may satisfy himself as to the particulars furnished in Form-VII as correct and he shall enter the names in the Register maintained for that purpose. We have also seen from paragraph 20 extracted supra, that if he is not satisfied with the particulars, then he has to issue a direction relegating the parties to approach the civil court for appropriate orders. The Full Bench also held that arbitrary exercise of power is amenable to writ jurisdiction.
22.In R.Muralidaran, the Division Bench has dealt with in detail about the power of the Registrar which can either administrative, quasi-judicial or ministerial and to what extent the order where amenable to judicial review. The Division Bench also held that acceptance of Form No.VII by the Registrar is not a declaration regarding the validity of the election. Therefore the Division Bench also said, following the Full Bench, that the party aggrieved should only go before a civil court and a person aggrieved by an election cannot challenge the acceptance or rejection of From-VII by the Registrar as a short cut to invalidate the election. In 2008(4) L.W.1080 too, in the conclusion, the Division Bench held that the Registrar does not have power to cancel the election or to direct holding of election and if the Registrar is not satisfied about the correctness of Form No.VII, he need not accept it and he can direct the parties to approach the Civil Court. When Notice in Form No.VII is received by the Registrar, he has to verify certain particulars and finally held it is immaterial as to whether the order of the Registrar is considered as "administrative" or ministerial, if it is arbitrary, the writ court can consider. Therefore, we do not see any deviation in either of the orders from the principles laid down by the Full Bench in Christian Suvi Case. But, we do hold, with due respect, that the per incuriam comment was in deviation from the principles laid down in Philip Jeyasingh Full Bench.
23.Next we come to the order of the learned Single Judge. In this case, the Registrar by order dated 30.10.2008, may be roughly translated, stated as follows:
The Form No.7 submitted by T.Immanuel would show that at the meeting held in Uma Catering Hall 150 members were elected unopposed. As per the Form No.VII submitted by S.Sadhasivam, the meeting was held at Sri Babu Shankar Thirumana Maaligai, where 149 members were elected. The Registrar has verified and held that these proceedings were not in accordance with the Circular No.7790/E1/2008, dated 23.10.2008 and that without taking into account the circular, even though the election was announced, on the same day two groups had conducted the election in two different places and two forms have been filed and in the applications given by S.Gananaprakasam and S.Ganimurugan, it is alleged that the members were not given sufficient opportunity to contest the election. According to the Registrar, when the General Body Meeting was not held at the place where it was announced, a notice ought to have been given to all the members, after giving due opportunity and only the election, which is conducted after giving due opportunity to every one, would be a properly conducted election and therefore the proceedings were contrary to Section 26 of the Act. A Form-II was given by C.Dharmalingam stating that on 27.09.2008 at the meeting held in Sermathai Vasan Ladies College, an election committee consisting of five persons were elected and after publication of the same in 'Malai Malar', the final list of contesting candidates was published on 15.10.2008 and since not more than 151 members contested, all were declared elected and Form No.VII was filed. On the requisition given by R.S.Johnson on 27.09.2008, an election committee was appointed which first announced that the election would be conducted at Madurai Nagamalai Nadar Mahajana Sangam S.Vellaisami College but, in view of Section 144 Cr.P.C. proceedings, it was decided to hold it at Sermathai Vasan Ladies College and at the election held on 29.10.2008, members were elected and Form-VII was filed. The Registrar then noted that for the same Sangam, four groups had conducted four different elections and the Registrar cannot decided which was properly conducted election. The Registrar then followed the Full Bench decision, wherein it was held that in the event the Registrar is not satisfied as to the particulars and he therefore cannot accept Form No.VII and he has to only issue a direction to the parties to approach the civil court, the Registrar found himself unable to accept any of the Form No.VII, since he was not satisfied with the particulars.
He also followed the order passed by the Division Bench in W.A.No.543/2008, wherein it was held that when the Form No.VII is alleged to be contrary to the bye-laws and the Form No.VII was accepted subject to the decision of the Court and when this Court had not given its decision in this regard, no one could take advantage of the Form No.VII which had been accepted by the District Registrar by letter dated 25.04.2008. So the Registrar returned all the Form No.VII.
24.It was contended by learned counsel Mr.Vallinayagam that the Registrar ought to have accepted that Form No.7 which had conformed to the procedure. We do not think that the said submission can be accepted, since the Full Bench had held that the Registrar can look only to the provisions of the Rules and the prima facie materials to arrive at a conclusion either to believe or not to believe Form No.VII. By looking at the prima facie materials, which are four different elections for one Sangam and the provisions of the Act and Rules and the bye-laws, the Registrar did not accept any of the Form No.VII. The act that he performs is to receive the Form. He cannot decide whether the election conducted was validly conducted and on that basis to decide whether change among the members should be accepted. But, however, he has the duty to see whether the Form No.VII is in conformity with the requirement of law. Therefore, according to the Registrar none of the Form No.VIIs deserved acceptance and he rejected them. Suits were also pending. Further, the Registrar could not have directed fresh election. That would run foul of the Full Bench decision. On this sole ground, the writ petition ought to have been dismissed.
25.At this stage, we have to refer to the judgment in Writ Appeal No.543/2008, which directed the writ petitioner (Udhayakumar) to bring the order to the notice of the competent authority to ensure that early election is held and to decide under whose supervision the election is to be conducted under law. This "competent authority" cannot be the Registrar. That would not be in accordance with the decision of the Full Bench. It can only be the General Body that would be in accordance with the bye-laws.
26.In this case, if the parties herein had not agreed that the General Body Meeting could be convened for the purpose of selecting the election committee, we would have allowed the writ appeal dismissing the writ petition leaving the civil courts to decide the matter. That is the only course which we could have taken following the Full Bench and the Division Bench. We cannot and must not set aside elections. Validity of elections can only be decided by civil court where no special fora are not constituted for the purpose. Exercising jurisdiction under Article 226, we cannot do it. Therefore, the order of the learned single Judge is set aside.
27.This would not have been in the interest of the institution to allow a vacuum till the courts decide the suits. It is evident that there is a constant struggle and tension amongst the members and there is, in fact, "scramble for power". We do not want to mince words this is exactly what it is, namely "scramble for power". But, fortunately, for the health of the institution, the members realised that a state of vacuum or a state of uncertainty would not be in the interest of anybody. They agreed before us that a General Body Meeting could be convened under the supervision of a retired High Court Judge, which will uphold the democratic process while ensuring that matters are conducted with civility and dignity.
28.The prayer in the writ petition cannot be granted, since it is not the 1st respondent, the District Registrar, who can conduct elections. He only receives the Form VII that is filed after the election. It is the General Body alone which decides which should be the election body and the manner in which the election should should be held. Therefore we mould the relief and pass the following order, by consent.
(i)We request Mr.Justice P.Shanmugam, Retired High Court Judge, to preside over, as an observer, at the Extraordinary General Body Meeting to be held on 7th March, 2010 and ensure that the decisions are properly taken and in accordance with law.
(ii)Mr.V.Sitaranjan Das, Advocate Commissioner, shall also be present at the meeting to assist the learned Judge.
(iii)The Agenda in the Extraordinary General Body Meeting is only to elect/nominate the Election Committee and to fix the date of election and venue of election.
(iv)The Advocate Commissioner shall effect publication in "Daily Thanthi", immediately, so that the members have 21 days notice. The venue of the election will be Sourashtra Boys Higher Secondary School, Kamaraj Salai, Madurai. The time will be at 11.00 a.m. on 07.03.2010.
(v)The appellant and the respondents will each submit five names of members, who are either Doctors, Lawyers or Engineers or Professors and out of the 10 names, the learned Judge shall, by drawing lots, pick-out five names who shall form Election Committee.
(vi)The Election Committee shall then announce at the Meeting to be held on the 7th March,2010 the date of election.
(vii)The Advocate Commissioner may also request the assistance of Police to ensure that no untoward incident takes place at the meeting on 07.03.2010.
(viii)With regard to the genuineness of the members, the Advocate Commissioner as well as the Election Committee shall accept identity card which shows that the holder is a Life Member, PAN Card, Driving Licence, Voters ID or Passport, all of which will contain photographs of the voters satisfy themselves regarding the identity and ensure that their names tally with the list of voters which is with the Advocate Commissioner. The signatures of the members should be obtained.
(ix)The Advocate Commissioner is already having the list of voters, since he had conducted the election pursuant to the order of the learned Single Judge and that list will be the basis on which the election will be conducted.
(x)The Advocate Commissioner will also assist the Election Committee until the election is over.
(xi)Any suit or proceedings filed to challenge the announcement of election/election pursuant to this order shall be filed only before the Principal Sub-Court, Madurai. This direction is given so that there will not be multifarious proceedings in various courts and since the Registered Office of the 3rd respondent Sabai is also within the jurisdiction of the said Court.
(xii)Since this order is passed by consent, no injunction granted by any civil court will stop either the convening of the Extraordinary General Body Meeting or the conduct of election on the date decided by the Election Committee pursuant to these directions.
(xiii)The Ballot Boxes containing polled ballot papers and now kept in the custody of the Registrar shall be emptied by the Registrar, who will ensure that they are all destroyed. The empty ballot boxes, along with other two boxes containing records and one bag containing keys, will be returned to the Advocate Commissioner. The unused ballot papers, which are with the Advocate Commissioner, are also permitted to be destroyed.
(xiv)It is needless to say that in view of the above consent order, the suits, namely O.S.Nos.602, 633 and 683 of 2008 on the file of Sub-Court, Madurai, O.S.Nos.878, 1063 and 1103 of 2008 on the file of District Munsif, Madurai and O.S.No.435 of 2008 on the file of Sub-Court, Nagercoil, filed in respect of the elections allegedly taken place on 16.10.2008 and thereafter, have become infructuous. But, however, the parties shall withdraw the suits from the respective courts.
(xv)All the expenditure for the conduct of the General Body Meeting, Election as well as the publication and all expenses incurred by the Advocate Commissioner in this regard will be borne by the 3rd respondent Sabai. (xvi)It appears that the amounts of the Sabai at Tamil Nadu Mercantile Bank, Main Branch, Nagercoil, in A/c.Nos.004677 and 008727, have been frozen to an extent of Rs.40 lakhs. The Bank will permit withdrawal of the amount to pay to the Advocate Commissioner for the expenses of conducting General Body Meeting, which will be certified by the Advocate Commissioner. (xvii)Learned Advocate Commissioner submits that apart from the initial remuneration paid, his final remuneration has not been paid to him for the work done pursuant to the order in the writ petition and that three Advocates by name (i)Mr.V.Nagarajan; (ii)Mr.A.Kesavan and (iii)Mr.S.Arunkumar have also assisted him. A sum of Rs.50,000/- (Rupees fifty thousand) to the Advocate Commissioner and Rs.10,000/- (Rupees ten thousand) each to the three Advocates who assisted the Advocate Commissioner will be paid by the Sabai. (xviii)We fix as remuneration a sum of Rs.50,000/- (Rupees fifty thousand) to be paid to the learned High Court Judge, apart from travel, boarding and lodging expenses. Apart from what is stated in Clause (xvii) above, we fix as initial remuneration Rs.25,000/- (Rupees twenty five thousand) for the Advocate Commissioner.
29.With the above directions, we dispose of the writ appeal. No order as to costs. Connected M.P.(MD)No.1 of 2009 is closed. The Advocate Commissioner may file a Memo, along with a report, and bring up this matter, after the election is over, for final remuneration.
30.Copies of this order shall be marked to the Hon'ble Retired High Court Judge, Advocate Commissioner, Registrar (Judicial) of this Bench and the Chief Educational Officer, Madurai.
gb To
1.The District Registrar, Office of the District Registrar, Madurai South, Palace Road, Madurai.