IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-2-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN O.S.A.No.5 of 2010 and M.P.No.1 of 2010 H.E.Wilkins .. Appellant vs 1.The Home Missionary Society of India Rep. By its Secretary No.15, Swamiar Garden Ponniamman Medu Chennai 600 110. 2.Richard H.Thomas 3.Melford I. Terry .. Respondents Original side appeal preferred under Order XXXVI Rule 9 of the O.S. Rules read with Clause 15 of Letters Patent against the order of this Court made in A.No.3036/2009 in C.S.No.584 of 2009 dated 10.11.2009. For Appellant : Mr.N.D.Bahety For Respondents : Mr.Adrian D.Rozario for R3 No appearance for RR1 & 2 JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This intracourt appeal challenges an interim order made by the learned Single Judge of this Court in A.No.3036 of 2009.
2.This Court heard the learned Counsel for the appellant and also for the third respondent and looked into all the materials.
3.The appellant who filed C.S.No.584 of 2009, has filed this appeal aggrieved over the said interim order made by the learned Single Judge under the following facts and circumstances:
(a) The appellant as plaintiff filed the suit seeking the following reliefs:
(i) A declaration that the non-implementation by the defendants of the mandate of the General Body in the Extraordinary General Body Meeting held on 19.01.2009, of setting aside Minutes No.13/2008-2009 dt.14.11.2008 passed by the Executive Committee, of expelling the plaintiff from the membership of the Society, and further restoring the plaintiff to his status of Vice-President (Chennai), is illegal, invalid, void and vindictive;
(ii) A permanent injunction restraining the defendants, and especially the 3rd defendant from in any way and manner holding out, representing, functioning and discharging the duties of the Vice-President (Chennai) of the 1st Defendant Society;
(iii) A declaration that the 2nd defendant is misusing and abusing his position and authority as the President of the 1st Defendant-Society; and
(iv) A permanent injunction restraining the 2nd defendant from functioning and discharging the duties of the President of the 1st Defendant-Society, pending the next elections of the office bearers of the 1st Defendant-Society.”
(b) Pending the suit, the plaintiff filed the said application for appointment of an Advocate Commissioner to conduct the election of the new office-bearers and after issuing nomination forms and finalising the list of candidates, to finally hold and conduct the said election of the Annual General Meeting of the first defendant Society for the year ending with 31.3.2009.
(c) After hearing both sides, an interim order came to be passed that the meeting scheduled should take place on 26.9.2009, under the observation of the Registrar of the Tamil Nadu Societies Registration or his deputies, not less than the rank of Deputy Registrar and to file a report. Accordingly, the Registrar of Societies, Chennai, attended the General Body Meeting while the elections were conducted and submitted a report. He pointed out in his report that as the Chairman of the meeting had announced the election to the office bearers of the society, a section of members from Vepery auxiliary objected to the announcement contending that the general body should elect the President, Vice-President, Secretary, Treasurer and twelve Committee members without provision for auxiliary wise representation since the agenda item No.13 had specifically mentioned about the election of office bearers and committee in accordance with Rule 12 of the bye-law; that contrarily, the other sections of the members had objected that the election to the committee should be held as per procedure following Rule 15 wherein there is a provision for auxiliary wise representation; that after the polling was commenced, one member brought five ballot papers and put all the votes in the ballot box; that the same was objected to by most of the members; that the election was stopped at that juncture and votes were discarded; that new ballot papers were prepared and issued to the voters; that the members who were present at the time of the meeting exercised their votes; that after counting the votes, the result of the office bearers was announced; but, the result of the committee was not declared due to the objections raised by both factions; that the factions desired that the declaration of result be placed before and decided by the Court. Under such circumstances, expatiating all the instances and happenings, a report was placed before the Court.
(d) After hearing the contentions raised on both sides and looking into the materials, the learned Single Judge has made the following order:
“Virtually if there is no consensus among Vepery members in suggesting two members on their side so as to represent in the Executive Committee, naturally fresh election should be conducted. However, voting should be only by the members of the Vepery auxiliary for electing their two members for the Executive Committee. Such election be conducted in Bangalore. I make it clear that this is only an incidental finding for the purpose of resolving the impasse which has been brought to the knowledge of this Court in the process of conducting the election. In fact, the applicant himself voluntarily refrained from participating in the election and based on that alone, the earlier order was passed.”
(e) Aggrieved over the above order, the plaintiff has brought forth this appeal.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that it is pertinent to note that Rule 12 and Rule 15 of the bye-laws of the society were totally distinct and different and were not at all inter-dependent or controlling each other; that Rule 15 relating to auxiliaries, existed right from the inception of the Society in the year 1910 when no auxiliary existed or when at least the alleged six auxiliaries required for forming 12 members of the Executive Committee under Rule 12 did not exist; that it would be indicative of the fact that Rule 15 had nothing to do with Rule 12; that as per Rule 66, auxiliaries could only elect up to five delegates to attend the annual general body meeting of the society; that it is to be noted that at the 99th Annual General Body Meeting held on 26.9.2009, in Bangalore, the old procedure of calling for two representatives from the auxiliaries was given a go-bye, and a full-fledged election of the 12 members of the Executive Committee was conducted; that the above aspects were not considered by the learned Single Judge and under the circumstances, the order of the learned Single Judge has got to be set aside.
5.The learned Counsel appearing for the third respondent put forth his submissions in his sincere attempt of sustaining the order of the learned Single Judge.
6.As could be seen above, the case of the appellant in short, is that Rules 12 and 15 of the bye-laws are independent; that one would not control the other; and that irrespective of the number of auxiliaries, there should be only 12 Executive Members who would be responsible for assisting the management along with office bearers like President, Vice President, etc. Pointing to Rule 15, he would submit that each auxiliary must be represented by two members elected in the General Body Meeting; that the said Rule envisages that those two members should be elected only by the respective auxiliaries; that when it is indicated that they should be elected in the General Body Meeting, it would clearly mean that all the members of the auxiliary should vote for electing the two members for each auxiliary, and hence it is not correct to state that the concerned auxiliary members should vote and elect their two members for the purpose of Rule 15 of the bye-law. The learned Counsel would further add that if for each auxiliary election was to be conducted separately, then it would amount to fragmenting the General Body into several pieces. Making emphasis on the meeting of the General Body as found in Rule 15, the learned Counsel would submit that the entire General Body would select two members for each and every auxiliary.
7.The plea of the first respondent before the learned Single Judge and here also is that the bye-laws were framed as well as 1910; that at that time, there was no six auxiliaries; but, still there were only 12 Executive Members; that the total number of representations from the auxiliaries as per Rule 15 would be more than 12, if there are 10 auxiliaries and if so, it would be inconsistent with the 12 members as contemplated under Rule 12. In short, the case of the first respondent was that Rule 12 would control Rule 15 of the bye-law; that both the Rules should be read harmoniously; that the practice all along followed was to the effect that for each auxiliary, two members were elected by the members of the auxiliary concerned, but that process of election should be done at the General Body, and hence it cannot be said to be fragmentation of the General Body.
8.After careful consideration of the contentions put forth on either side, this Court is of the considered opinion that the learned Single Judge has correctly accepted the defence plea. The respondents/defendants have produced a typed set of papers comprising the minutes covering the period 2001, 2003, 2005 and 2007 in respect of the elections conducted. In all those elections, for each auxiliary, two members were elected by the members of the auxiliary concerned, and that process of election was undertaken at the General Body meeting. In this regard, the appellant has no answer. Hence the practice that has been followed in the past would clearly indicate that for each auxiliary, two members were elected by the members of the auxiliary concerned. In respect of the elections so conducted and the pursuant declaration of results, they were never questioned. When the bye-laws are looked into, it is quite clear that Rule 11 is in respect of the election of the Executive Committee office bearers like President, Vice President, Treasurer, etc. Rule 12 is to the effect that the said functionaries should be elected at the Annual General Meeting, and it also speaks of the term of office. Rules 14 and 15 speak of the management. A reading of Rule 14 will make it clear that the three Vice Presidents who were to be elected in accordance with Rules 11 and 12, will be representing each of the three main areas namely Bangalore, Chennai and Nilgiris respectively. This cannot but be with a view to give proper representation to each one of the main areas. According to Rule 15, each auxiliary will be represented by two members i.e., from each auxiliary there should be two members who are to be elected by the respective auxiliaries. There are no other Vice Presidents other than contemplated in Rules 11 and 12. Hence it would be clear that the Vice President referred to in Rule 14 would refer only to those Vice President referred to under Rules 11 and 12. If that logic is applied, the same logic is also applicable to Rule 15 i.e., two members indicated in Rule 15 to be elected by each of the six auxiliaries i.e., those 12 executive oridinary members who are referred to in Rules 11 and 12. Hence, it would be quite clear that those two members were to be elected only by the members of the particular auxiliary.
9.The learned Single Judge after looking into all the materials available, has given an elaborate and a well reasoned order. The appellant who has sought the relief as stated above, has questioned the election process. It is pertinent to point out that the scope of the entire suit is thoroughly different. However, the plaintiff has made an application wherein a necessity arose for the interpretation of the above bye-laws. This Court is unable to notice any merit in the appeal.
10.In the result, this original side appeal fails, and the same is dismissed confirming the order of the learned Single Judge. The parties are directed to bear their costs. Consequently, connected MP is also dismissed.
(M.C.,J.) (T.M.,J.)
19-2-2010
Index: yes
Internet: yes
nsv
M.CHOCKALINGAM, J.
AND
T.MATHIVANAN, J.
nsv
OSA No.5 of 2010
Dt: 19-2-2010