IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2010 CORAM THE HON'BLE MR.JUSTICE G.RAJASURIA O.A.Nos.1340, 1341, 1342 of 2009 and Application No.6908 of 2009 in C.S.No.1157 of 2009 ORDER :
Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these applications would run thus:
The respondent No.1,viz., Cine Technicians of South India is a registered association under the Tamil Nadu Societies Registration Act, 1975, in which the applicants are “active members”, apart from they having been once the office bearers of it. At the time of filing these applications, they apprehended that the first respondent association was under the clutches of a few individuals and they planned to conduct the election for office bearers without inviting all the members to participate in the election for voting and also for contesting the election, if they choose to do so. As such, these four applications have been filed seeking the following prayers:-
O.A.No.1340 of 2009 to appoint an Interim Administrator pendente lite to take charge and to discharge the duties and functions of the first defendant as interim administrator, pending disposal of the suit.
O.A.No.1341 of 2009 to grant an interim mandatory injunction directing the first respondent/first defendant to hold election to the various office bearers of the association under the supervision of an officer appointed by this Honourable Court with the valid electorate list to be prepared by an officer appointed by this Honourable court, pending disposal of the suit.
O.A.No.1342 of 2009 to grant an interim injunction restraining the respondents 1 and 2/defendants 1 and 2 for holding the election to the office bearers of the first defendant pursuant to the election Notification has been issued for 2009-2011 will be held on Sunday, the 27th December 2009 at 9.00 a.m at the South India Film Chamber Theatre at 605, Anna Salai, Chennai 6 or any subsequent date or dates except in accordance with the Constitution of the first defendant, pending disposal of the suit.
Application No.6908 of 2009 to appoint an independent Election Officer for preparing a valid electorate list and conduct a proper election to the first respondent/first defendant pending disposal of the suit.
(extracted as such)
2. Refuting and challenging, impugning and contradicting, the allegations in the affidavits accompanying these applications, the respondents filed their counter affidavit.
3. The learned counsel for the applicants, placing reliance on the averments in the affidavits accompanying these applications has set out his argument, the gist and kernel of it would run thus:
a. The proper notification for election has not been published or communicated to the members so as to enable them to contest in the election and also to vote in the election.
b. There was a large scale mismanagement as well as siphoning of the funds of the association and enquiry is also pending before the authority under the Tamil Nadu Societies Registration Act, 1975.
c. Based on certain cooked up documents some of the personnel in the said association including the erstwhile office bearers of it have conducted the election , which is not worthy of being upheld by this court.
d. Unless an independent Administrator or an officer of the court is appointed so as to conduct the election, strictly in accordance with the bye-laws of the society, there would not be any chance of the members participating in the election and voting would arise.
e. The following persons, viz.,K.Ramachandra Kurup, V.Srinivasa Murthy, K.N.Venkiteswaran, S.N.R.Balasubramaniam , Mylai S.Kumar and M.R.Srinivasan have been in charge of the affairs of the said association for a pretty long time and among them the said K.Ramachandra Kurup has been in the office as President consecutively for more than five years and in such a case, bye-law No.27 prohibits such a person contesting the election. However, it appears, he also contested the election and he claims to have been elected unopposed.
Accordingly, he prays for ordering the aforesaid applications as prayed for.
4. By way of torpedoing and pulverising the arguments as put forth on the side of the applicants, the learned counsel for the respondents would put forth his argument, the pith and marrow of it would run thus:
(i) Page Nos.133 to 145 of the typed set of papers filed by the respondents would evince and display that individual notices about the election were sent under certificate of postings to the persons concerned.
(ii) The notification for the election has been properly made and 14 days’ notice as contemplated under bye-law 21 was also given.
(iii) The said Ramachandra Kurup as alleged by the applicant has not been the President or any other office bearer of R1 consecutively for a period of five years and as such, there is no question of disqualification befalling on him.
(iv) As ordered by this court, the election was properly conducted and the ballot papers were presented to this court in sealed cover along with the necessary cover as well as the C.Ds concerned.
Accordingly, he prays for the dismissal of these applications and he also prays for permitting the respondents to go ahead with the counting of the votes and declaring the results.
5. The points for consideration are as to :
1. Whether any interim administrator has to be appointed for the purpose of conducting election afresh?
2. Whether so far the proceedings undertaken by the personnel of R1 are vitiated in view of having allegedly not adhered to the bye-laws of the R1 association?
6. Heard both sides.
Point Nos.1 and 2:
7. Both the points are taken together for discussion as they are inter-linked and interwoven with each another.
8. I recollect and call up the maxim Secundum allegata et probata {According to what is alleged and proved, according to the allegations and proofs.} Any amount of evidence without the backing of the pleadings would not be tenable. Wherefore, in this case, the learned counsel for the respondents would submit that absolutely there is no plea on the side of the applicants to the effect that the proposed contestants for the office bearers post of R1 association have been in occupation of any post for a consecutive period of five years.
9. The averments in the plaint as well as the affidavits would support the contention of the learned counsel for the respondent and as such, I would like to observe that it is open for the applicant that if at all they stick on to the aforesaid oral plea, it is for them to file necessary application and raise the issue based on Bye-law 27, whereupon appropriate orders would be passed.
10. What I could understand from the contention of the learned counsel for the applicants is that their main contention is that there was no proper notice of the Notification relating to election.
11. The learned counsel for the respondent invited the attention of this court to page Nos.133 to 145 of the typed set of papers and more specifically the postal seals found thereon and contended that properly the members were put on notice about the election Notification. In my opinion, correctly the postal seals bearing the date 26.11.2009 are found on those pages and obviously and axiomatically, the election was held on 27.12.2009 and it could rightly be understood that there was a gap of more than 14 days between the date of despatch of those notices pertaining to election Notification to as many as 500 members, and the date of election.
12. Bye-law 21 is extracted here under for ready reference:
“Fourteen days’ notice (exclusive of the day on which the notice is served or deemed to be served but inclusive of the day for which notice is given) of every General Body Meeting, Ordinary or Extra Ordinary specifying the day, hour and place of the meeting and the business to be transacted, shall be given to the members.”
13. The learned counsel for the applicants by making reference to the aforesaid bye-law would develop his argument that even as per the said Notification published by R1, the date for filing of nomination was 09.12.2009, whereas from the records, it cannot be understood that there was a gap of 14 days time between the date of despatch of notice on 27.11.2009 and 09.12.2009. I would like to clarify that what the aforesaid bye-law contemplates is that there should be a gap of at least 14 days notice between the date of notice of election and the date of conduct of the general body wherein the election has to be held and applying that standard, if viewed, the specification of the date of filing of nomination as 09.12.2009 cannot ex facie and prima facie be found fault with.
14. Illustrations (e) and (f) coupled with exception to Illustration (f) to Section 114 of the Indian Evidence Act are reproduced here under for ready reference:
“114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (e) That judicial and official acts have been regularly performed;
Illustration (f) That the common course of business has been followed in particular cases;
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:-
As to illustration (f) – The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances.”
A bare poring over and perusal of the aforesaid excerpts would amply make the point clear that a letter duly posted under Certificate of Posting, could be presumed to have reached the destination unless any abnormality intercepted the normal course. Here there is nothing to indicate or convey that the course of postal correspondence got intercepted.
15. Accordingly, for the purpose of passing this order, this court could rightly rely upon the postal seals bearing the date 26.11.2009 on those papers, so to say, on page Nos.133 to 145 of the respondents typed set of papers, coupled with the copy of the receipt issued by Department of Posts, subject to the applicants proving the contrary during trial. As such, the contention on the side of the applicants that the materials as contained in page Nos.133 to 145 of the respondents typed set of papers are concocted ones, cannot be accepted and upheld, countenanced and acted upon, at this stage. Once again, to the risk of repetition but without being tautologous, I would observe that it is for the applicants to prove that there is really fraud perpetrated by R1’s officials or office bearers in sending such communications but now there is no such ex facie or prima facie proof to that effect.
16. The learned counsel for the respondents would submit that two auditors viz., S.R.Seetharaman and Subramaniam were appointed for the purpose of conducting the election. When this court raised the query as under what authority they acted as election officers, the learned counsel for the respondents would submit that it is the Executive Committee of R1, which nominated them to conduct the election in the General Body of R1.
17. In the bye-laws, there is no specific indication as to who should be the election officer. What one could understand by going through the bye-law No.26 of D1’s Association is that there is no specific provision as to who should conduct the election. I would like to call-up and recollect the following maxims:
(i)Expressio unius, exclusio alterius. {The express mention of one thing implies the exclusion of another.}
(ii) Expressum facit cessare tacitum. {Mention of one or more things of a particular class may be regarded as silently excluding other members of the class.}
(iii) Generalia specialibus non derogant. {Generalities do not derogate from special provisions.}
The above sister maxims would display and demonstrate that, when there is no specification in the bye-laws itself as to who should be the election officer, then the court at this stage cannot arrive at a conclusion that appointment of the Auditors as election officers was beyond the scope of the bye-laws of R1.
18. The learned counsel for the applicants also would submit that those auditors happened to be the auditors of R1 Association. Whereas the learned counsel for the respondents would gainsay and deny such an averment emerging from the applicants’ side and submit that they were independent auditors. Be that as it may, once again it is a matter of detail, which has to be gone into at the time of trial.
19. The learned counsel for the applicant inviting the attention of this court to the typed set of papers would strenuously submit that there were large scale mismanagement and siphoning of funds of the R1’s Association. He would also state that the lease deed dated 08.07.2002 is only a tip of an iceberg as an extent of 5 acres and odd of land belonging to R1 in Mangadu was leased out illegally and unauthorisedly with an ulterior motive in favour of a third party by some personnel of R1, apparently for a song. He would also submit that there were other large scale mismanagements, which are under the gaze and scrutiny of the Authority under the Tamil Nadu Societies Registration Act.
20. I would like to incidentally point out that the present suit is not a comprehensive suit relating to those matters, but as of now, what I could understand from the prayers is that this suit is mainly concerning the conduct of the election and I would like to reproduce here under the prayers in the plaint also.
– for appointment of an Administrator pendente lite to take charge and to discharge the duties and functions of the first defendant as Administrator.
-for a mandatory injunction directing the appointment of Election Officer for the proper conduct of elections to be held on 27.12.2009 at 9.00 am at the South India Film Chamber Theatre at 605, Anna Salai, Chennai 600 006.
– for a mandatory injunction directing the first defendant Association to conduct an election of the office bearers to the first defendant Association to be held on 27.12.2009 at 9.00 a.m at the South India Film Chamber Theatre at 605, Anna Salai, Chennai 600 006 in accordance with the bye-laws of the first defendant association after preparing a valid electorate by the officer appointed by this Hon’ble Court.
– for a mandatory injunction directing the first defendant association to conduct an election of the office bearers to the first defendant Association in accordance with the rules and Articles of the first defendant association by appointing an officer of this Hon’ble Court.
– for a permanent injunction restraining the defendants 1 and 2 their men, agents and servants and any one claiming through them from functioning or discharging their duties and obligations as office bearers of the first defendant Association or deal with the movable or immovable properties of the first defendant till such time a valid election is conducted to the first defendant by the Election Officer to be appointed by this Hon’ble Court.
– costs of the suit.
(extracted as such)
Hence, I would like to observe that it is for the applicant’s who are admittedly and indubitably, unassailably and unarguably, the active members of the Association to take appropriate steps to see that the properties of the Association are preserved and as of now, I could see no ex facie or prima facie irregularity in the conduct of the election and accordingly, I would like to refrain from passing any order as prayed for by the applicants and the democratic process should proceed further and it cannot be throttled.
21. The learned counsel for the applicants cited the following decisions and certain excerpts from those precedents would run thus:
1. AIR (39) 1952 Supreme Court 64 (N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and others)
“16. The conclusions which I have arrived at may be summed up briefly as follows:
1. Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
………………………………………………..
………………………………………………..”
2. 2000 (4) LLN 733 (O.P.Gupta vs. Union of India and others)
“7. It is seen from the record that the writ petition has been filed with reference to an election of an association,a Trade Union registered under the Trade Unions Act. It is settled by a catena of decisions that an election of an association is a matter of internal management of Association wherein no fundamental right or legal right of the appellant-petitioner is involved and consequently, the appellant-petitioner cannot invoke the jurisdiction of this Court under Art.226 of the Constitution of India. It is also settled by many rulings of the Apex Court that the word “election” comprehends the entire process starting from the notification calling upon the association to elect the office-bearers and culminating in the candidate being declared elected. A person aggrieved by any election process is expected to wait till the election results are announced and then challenge the same by filing a suit or an election petition. This proposition of law has been laid down by the Hon’ble Supreme Court in the case of N.P.Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem (AIR (39) 1952 SC 64). In the said decision, the Supreme Court has held:
“Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of”.
22. A perusal of those judgments would connote and denote, display and demonstrate that once election process has commenced even in respect of societies, the court should be reluctant to interfere. However, the learned counsel for the applicants would point out that if the very Notification itself is lacking in merit, then the court could interfere. I would like to observe that in appropriate matters, certainly, civil court is not helpless and the member of the society is also not precluded from approaching this court for getting appropriate remedy.
23. The decision of this court reported in 1997 (1) CTC 77 (R.Lakshmipathy vs. Madras Gymkhana Club, by its President Madras) is not relevant to this case as it is concerning with automatic expulsion of a member from the club on his committing default in paying the arrears despite notice to comply with the demand within the stipulated time.
24. Here, my discussion supra would evince and expatiate that ex facie and prima facie, there is no irregularity in the publication of the Notification and in the subsequent conduct of the election. Despite the election having taken place on 27.12.2009, till date, no affidavit or complaint has emerged from the applicants’ side raising their accusative finger as against the conduct of the election on 27.12.2009.
25. The quorum for the General Body Meeting is 25 as stood expatiated by Bye-law 23 of R1 and in this case the number of persons who were present at the General Body on 27.12.2009 was undisputably far above the quorum prescribed. The learned counsel for the respondents would expound and explain by spot lighting the fact that those five hundred members are residing in various distant places in south India from that of Chennai where the General Body meeting had taken place. Wherefore, this court cannot countenance and uphold the argument of the learned counsel for the applicants that the thin population at the General Body meeting on 27.12.2009 would bespeak the futility and falsity of the General Body Meeting. The very fact of bye-laws contemplating 25 members as quorum would speak volumes that one should not expect majority of the total number of members of R1 should necessarily be present for transacting business at the General Body Meeting. Out of the two applicants, as put forth by the learned counsel for the respondents without fear of contradiction, one voted also and the other one also was very much present at the General Body held on 27.12.2009. The learned counsel for the respondents also would clarify that by virtue of the amendment of the bye-laws, as found enclosed in the type set, now for every biennial period, elections are conducted.
26. Hence, I am of the view that those precedents cited supra are not in favour of the applicants. Per contra, the dicta as found enunciated in those decisions are in favour of the respondents.
27. The learned counsel for the respondents cited the following decisions and certain excerpts from it would run thus:
(i) (1996) 3 SCC 416 (Boddula Krishnaiah and another vs. State Election Commisioner, A.P.and others)
“11. Thus it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.
12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.”
(ii) (2006)11 SCC 624 (I.Nelson and another vs. Kallayam Pastorate and others)
“17. We fail to understand as to why the Inspector General of Registration, who was impleaded as a party in the suit, also did not bring the relevant provisions of the Tamil Nadu Act to the notice of the High Court. The statutory authority, while allowing the impugned order to be passed by the High Court, abdicated itself of its statutory functions. The society might not be, in fact, registered as such under the 1975 Act, but, as it was registered under the 1860 Act, we have no other option but to hold that it was deemed to be registered also under the 1975 Act. Having regard to the provisions contained in Section 53 thereof, once the society became a society registered under the 1975 Act, all the consequences arising there under shall ensue. It was, therefore, for the statutory authorities to take recourse to such actions as are provided for in the 1975 Act or the Rules framed thereunder. In the event, the society became defunct or other statutory requirements were not complied with by the members of the society, penal measures could have been taken but in no situation the election of the office-bearers could have been set aside. Right to contest an election of an office-bearer of the society is a statutory right of the member thereof. Such a right also exists under the bye-laws of the society. It is not the case of the respondents that the bye-laws of the society are invalid in law. Once a valid election was held, the High Court, in our opinion, could not have directed setting aside of an election only on the purported ground that it became defunct. An almost similar question came up before this court in Board of Control for Cricket in India vs. Netaji Cricket Club wherein this Court, despite its jurisdiction under Article 142 of the Constitution of India, did not venture to consider the validity or otherwise of the election of the office-bearers of BCCI as they had not been impleaded as parties therein, stating: (SCC p.763, para 84)
“84. On 11.10.2004, we had, after hearing the counsel for the parties observed that if a situation arises this court would go into the validity of the election of the office bearers of the Board held in the meeting dated 29.09.2004, but, as indicated hereinbefore, we did so under a mistaken belief that the Board would be represented by the new office-bearers and, thus, all parties would be before us. However, it now stands admitted that the office-bearers either in their personal capacity or official capacity are not before us. They may have notice of the pendency of this proceeding. They may be sitting on the fence and watching the proceedings of this court. But, unless they are made parties in these proceedings, we would not be in a position to entertain the dispute as regards validity of the meeting of 29.09.2004 resulting in the election of the office-bearers. Giving an opportunity of hearing to the elected members in a dispute of this nature is imperative and not a matter of mere procedure, formality or technicality. The election dispute, therefore,must be adjudicated upon by a proper forum”.
18. There is, therefore, no reason as to why the elected members should not be allowed to carry on the activities of the society wherefor they were duly elected. We may, however, hasten to add that when we say so, we do not intend to pronounce on the validity or otherwise of the elections held. If any application has been filed by a person aggrieved for setting aside an election, the same undoubtedly, will have to be disposed of in accordance with law.
19. But, for the reasons stated hereinbefore, in our opinion, the High Court in the pending suit could not have done so. It should have relegated the parties to take recourse to such remedies as are available in law for questioning the validity of the election before the appropriate forum(s).”
(iii) JT 1993 (4) S.C. 573 (Ramchandra Ganpat Shinde and another vs. State of Maharashtra and others)
…………………”Once the election process was set in motion according to law any illegality or irregularity committed while the election process is in progress or the conduct of the election is vitiated by any illegality or irregularity in its process, the proper remedy is to lay the action before the tribunal constituted under the Act by means of an election petition and have the dispute adjudicated without the election process being interdicted or retarded in its midway. The High Court or this Court while exercising the constituent plenary power under Arts.226 or 32 or under 136, as the case may be, would decline to interfere with the election process and relegate the parties to take recourse to the alternative remedy of the election petition provided under the statute……………..”
(emphasis supplied)
(iv) 2005 (2) CTC 161 (C.M.S.Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal, through its Secretary, Sri.S.David Stephen S/o Samuel Karisal, Ambasamudram Taluk, Tirunelveli District and others vs. The District Registrar Cheranmahadevi, Tirunelveli District and others)
“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. Accordingly, the issue is answered. Post the writ appeals for disposal accordingly.”
(emphasis supplied)
28. 2009(5) SCC 290 (Fulena Singh vs. Vijay Kumar Sinha and others) This decision cited by the respondents is on the point that interlocutory application in election matters as a matter should not be ordered without assigning reasons.
29. Placing reliance on those decisions, the learned counsel for the respondents would correctly and appositely would develop his argument to the effect that inasmuch as ex facie and prima facie, the materials on record placed before this court would be against the contentions as put forth on the side of the applicants, this court could permit the respondents to proceed further with the completion of the election process of counting the votes and declaring the results and consequently assuming the respective officers by the personnel concerned.
30. In these circumstances, in view of the ratiocination adhered to by me above, I would like to dismiss all these applications with the aforesaid observations and the points are answered in favour of the respondents and as against the applicants.
31. The learned counsel for the respondents would submit that the sealed cover containing the votes may be returned to the respondents so that the votes could be counted by them as per bye-laws and the results could be declared and the persons concerned may enter upon office. I would like to observe that inasmuch as no court appointed election officer was there to conduct the election, now as prayed by the learned counsel for the respondents, the sealed cover containing the ballot papers except the C.Ds shall be returned to the respondents so as to enable them to count the votes.
32. The learned counsel for the applicants would make an extempore submission that by way of complying with Order 3 Rule 2 of the Original side Rules r/w Order 1 Rule 8 of Code of Civil Procedure, the applicants might be permitted to take out notice concerning the institution of this representative suit and the pendency of the same by way of certificate of postings to the members whose names are found in Page Nos.133 to 145 of the respondents’ typed set of papers for their appearance before this court on 29.03.2010, and accordingly, notice is permitted to be taken by the applicants.
33. The suit shall be posted before the learned Additional Master I on 29.03.2010 so as to enable such persons interested to appear before him and make representation as per law.
25.02.2010 vj2 Index : Yes Internet: Yes G.RAJASURIA,J., vj2 O.A.Nos.1340, 1341, 1342 of 2009 and Application No.6908 of 2009 in C.S.No.1157 of 2009 25.02.2010