O.A.No.776 of 2016 in C.S.No.641 of 2016
1. V.S. Muthupandian
2. S. Balakrishnan
3. P. Ganesan
4. L. Arumuga Pandian Nadar
5. V. Anandaselvan ... Applicants/Plaintiffs versus
1. Nellai Thoothukudi Nadar Mahamai Paripalana Sangam Rep.by its Secretary
2. Nellai Thoothukudi Nadar Mahamai Paripalana Sangam Educational Trust, rep by its General Secretary
3. V.T. Pathmanaban
4. R. Chandran Jayapal
5. M.Marithangam
6. Nellai Nadar Matriculation Higher Secondary School Rep.by its Correspondent
7. A.M. Vikrama Raja ... Respondents/Defendants A.Nos.4040,4041 and 4042 of 2018 in C.S.No.641 of 2016
1. Nellai Thoothukudi Nadar Mahamai Paripalana Sangam Rep.by its Secretary
2. V.T. Pathmanaban ... Applicants/Defendants 1 & 3 versus
1. V.S. Muthupandian
2. S. Balakrishnan
3. P. Ganesan
4. L. Arumuga Pandian Nadar
5. V. Anandaselvan ... Respondents 1 to 5/Plaintiffs
6. Chandran Jeyapal
7. M.Marithangam
8. Nellai Nadar Matriculation Higher Secondary School Rep.by its Correspondent
9. A.M. Vikrama Raja ... Respondents 6 to 9/ Defendants 4 to 7
10.Nellai Thoothukudi Nadar Mahamai Paripalana Sangam Educational Trust, Rep by its General Secretary ... Respondent 10/Defendant 2 Prayers:
O.A.No.1030 of 2017 in C.S.No.793 of 2017 filed to pass an order of Interim Injunction restraining the 1st Respondent from enforcing the interim suspension of the Applicant/plaintiff from the basic member of the 1st Defendant Sangam as communicated by the 1st Defendant in its letter dated 02.10.2017, pending disposal of the suit.
O.A.No.1031 of 2017 in C.S.No.793 of 2017 filed to pass on an order of interim injunction restraining the Defendants, their agents, servants, men, or anyone claiming through them from terminating the membership of the plaintiff in the 1st Defendant Sangam and/or interfering with the Applicant/Plaintiff's functioning as Member of the 1st Respondent/1st Defendant Sangam, pending disposal of the suit.
O.A.No.1032 of 2017 in C.S.No.793 of 2017 filed to pass an interim injunction restraining the Respondents/2 to 4/Defendants 2 to 4 from functioning as Secretary, President and Treasurer respectively of the 1st Defendant Sangam as well as office bearers of Nellai Nadar Matriculation Higher Secondary School and Ramachandra Public School (CBSE), pending disposal of the suit.
O.A.No.1035 of 2017 in C.S.No.793 of 2017 filed to appoint a Chartered Accountant firm to look into the accounts of the 1st Defendant Sangam including Nellai Nadar Matriculation Higher Secondary School and Ramachandra Public School (CBSE), Kottivakkam, Chennai, pending disposal of the suit.
O.A.No.776 of 2016 in C.S.No.641 of 2016 filed to grant Interim Injunction restraining the respondents 3 to 5 and 7 from acting as President, General Secretary and Treasurer of 1st respondent society and the office bearer of the 2nd respondent trust and that 7th respondent acting as correspondent of the 6th respondent school pending disposal of this application.
A.Nos.4040 in C.S.No.641 of 2016 filed to grant stay of the order dated 06.11.2017 made in O.A.Nos.775 and 776 of 2016 and A.No.4521 of 2016 and dismiss the same.
A.Nos.4041 in C.S.No.641 of 2016 filed to vacate the order dated 06.11.2017 made in O.A.Nos.775 and 776 of 2016 and A.No.4521 of 2016 and dismiss the same.
A.Nos.4042 in C.S.No.641 of 2016 filed to reject the plaint under Order VII Rule 11 of C.P.C.
The applicant/plaintiff in A.Nos.1030 to 1032 and 1035 of 2017 in C.S.No.793 of 2017 is seeking Interim Injunctions restraining the 1st Respondent from enforcing the interim suspension of the Applicant/plaintiff from the basis member of the 1st Defendant Sangam, terminating the membership of the plaintiff, restraining the respondents 2to4/Defendants 2to4 from functioning as Secretary, President and Treasurer of the 1st Defendant Sangam and to appoint a chartered accountant firm to look into the accounts of the 1st Defendant Sangam including Educational Institutions run by the Defendants' Sangam.
2. A common counter affidavit filed by the Secretary of the 1st respondent/1st Defendant Sangam shows that in an Annual General Meeting, it was resolved to conduct enquiries against the applicant for certain serious irregularities and constituted a committee for investigation. On the basis of the report from the committee, a show cause notice was issued to the applicant and he was placed under suspension and suspension order was passed on the basis of the detailed report of the Enquiry Committee, after providing sufficient opportunities to the applicant. In nutshell, it is the contention of the 3rd respondent/3rd defendant that a sum of more than Rs.13 Crores has been misappropriated by the applicant. The matter has been now placed before the Disciplinary committee for enquiry and action. Hence, prays for dismissal of the above applications.
3. Two suits have been filed to formulate a scheme of the 1st respondent/1st Defendant Sangam and various other reliefs. Several applications have been filed in these two suits. One such application filed in O.A.No.1192 of 2017 in C.S.No.793 of 2017 for interim injunction restraining the respondents/defendants from conducting and/or convening the election on 17.12.2017. The above application was closed by this Court on 04.04.2018. Similarly, O.A.No.1033 of 2107 in C.S.No.793 of 2017 was filed seeking interim injunction restraining the Defendants, their agents, servants, men, or anyone claiming under or through them from indulging in malicious propaganda as against the plaintiff or the persons connected with him through medias, such as Television, Whatsapp, Face Book or by pasting posters etc., This application was also closed by this Court on 04.04.2018. Similarly, O.A.No.1034 of 2017 in C.S.No.793 of 2017 is filed to direct the 1st respondent to appoint a retired High Court Judge to conduct election of the 1st defendant sangam. Since the retired Judge of this Court The Hon'ble Mr.Justice J.A.K. Sampath Kumar was appointed as Election Officer/Observer to conduct the election, the above application also closed on 04.04.2018. However, A.Nos.1030 to 1032, 1035 of 2017 and 1094 of 2018 in C.S.No.793 of 2017, O.A.Nos.775 and 776 of 2016, A.No.s.4521 of 2016 and A.No.3255 of 2017 in C.S.No.641 of 2016 were ordered to be posted for arguments. Out of which separate orders are passed in A.No.1094 of 2018 in C.S.No.793 of 2017, O.A.No.775 of 2016, A.Nos.4521 of 2016 and 3255 of 2017 in the respective applications.
4. Learned Senior Counsel Mr.Wilson would submit that the suit itself is not maintainable in prima facie and liable to be dismissed, since the 1st Defendant Sangam is registered and governed by the bye-laws so that no scheme can be framed. It is the further contention of the learned Senior Counsel that the Election Officer has been appointed by this Court. The finalisation of the voters list, constituencies and the conduct of elections, only as per the bye-law of the Sangam. Whereas, the Election Officer redistributed the voters on mathematical basis instead of geographical basis shall be revised. Revised voters list prepared as per the resolution of the delimitation committee and adopted by the executive committee without any deviation and voters list be finalised and the election should be conducted only as per the bye-law.
5. Learned counsel Mr.K. Thiagarajan has submitted that the exercise made by the Judge Commissioner in distribution of votes is not according to the bye-law. It is the main contention of the learned counsel that the Judge Commissioner removed voters from the bottom of the list and distributed to other constituencies. By doing such exercise, voters who were residing in a particular constituency cannot be allowed to elect their representative. Such exercise would lead to the voter who is residing in a particular constituency to elect a member for another constituency. Therefore, it is the main contention of the learned counsel that such re-distribution of voters from one constituency to another constituency would take away the valuable right of the voter and he has no objection to conduct the election by the Election Commissioner as per the existing voters list as followed in the last election as per the existing constituencies.
6. Mr.T.V. Ramanujam, learned Senior Counsel appearing for the 1st respondent Sangam would vehemently oppose the applications filed in A.Nos.1031 and 1032 of 2017. He would further submit that the suspension of the applicant cannot be interfered as the suspension order has been passed after thorough enquiry and only after going through the committee report it was found that more than Rs.13 Crores has been misappropriated by the applicant and show cause notice was issued thereafter he was suspended. Now the matter has been placed before the Disciplinary Committee as per bye-law. In view of the same, the suspension order cannot be interfered.
7. Heard both sides. These two suits were filed in the year 2016 and 2017 in respect of the affairs of the Nellai Thoothukudi Nadar Mahamai Paripalan Sangam, for various reliefs including framing of scheme and also restraining them to conduct elections. This Court on various stages passed several orders. One such order passed on 06.07.2017 in O.A.No.775,776 of 2016 and A.No.4521 of 2016 in C.S.No.641 of 2016 is extracted below:
"All these applications have been filed by the Plaintiffs in CS.No.641 of 2016. The Plaintiffs have instituted the said suit, with respect to the 1st Respondent Sangam, namely, Nellai Thoothukudi Nadar Mahamai Paripalana Sangam, which is functioning at Pantheon Road, Egmore, Chennai.
2. The reliefs sought in the said suit are to formulate a scheme with respect to the 1st Defendant Sangam for election of office bearers, board members, for nominating committees and administering the day today activities of the Sangam and also for declaration that the trust deed dated 30.6.2014, executed by the 3rd to 5th Defendants, registered as Document No.191 of 2014, on the file of the Sub Registrar, Periamet, is null and void and also for permanent injunction, restraining the 3rd, 4th and 5th Defendants, from acting as office bearers of the 1st Defendant Sangam and for permanent injunction restraining the 7th Defendant from acting as Correspondent of the 6th Defendant School and for costs of the suit.
3. In the said suit, these three applications have been filed and they have been under consideration for the past nearly one year before this court.
4. OA.No.775 of 2016 has been filed, seeking an order of interim injunction, restraining the 3rd, 4th and 5th Respondents/ Defendants from conducting Annual General Body Meeting, either on 11.9.2016 or on any other date. In the said application, when it was moved, this court, by order dated 8.9.2016, had permitted proceeding of the Annual General Body Meeting, but subject to a caveat that any decision taken thereon shall be subject to further orders passed in the present suit.
5. Similarly, OA.No.776 of 2016 has been filed by the Applicants/ Plaintiffs, seeking interim injunction restraining the 3rd, 4th and 5th and 7th Respondents/ Defendants from acting as President, General Secretary and Treasurer of the 1st Respondent Sangam and as office bearers of the 2nd Respondent trust and against the 7th Respondent from acting as Correspondent in the 6th Respondent School.
6. In these applications, this court had directed notice to be issued returnable by two weeks, by order dated 8.9.2016. Common counters have been filed and rejoinders have also been filed in the said applications. In the mean while, the Plaintiffs have also filed A.No.4521 of 2016, which had been filed, seeking appointment of an interim administrator with powers, primarily to manage, protect, preserve and improve the properties of the Sangam in accordance with the bye laws of the 1st Respondent Sangam and also to oversee the day today affairs of the 1st Respondent Sangam.
7. It has been stated that the elections to the 1st Respondent Sangam were last held in the year 2008. Subsequently, in the year 2011, by common arrangement among the office bearers of the Sangam, a set of office bearers took upon the management by themselves. This was also followed in the year 2014. The suit was instituted in the year 2016, seeking framing of a scheme to administer the Sangam. These applications have also been pending from the year 2016.
8. When the applications came up for consideration, this court was shocked to find that the elections were not held for the period from 2011 to 2014. Since in any Association, holding of elections and right to contest the elections by each member are the primary rights of each member vested by bye laws and right to administer the Sangam by elected member is also a duty and obligation, this court had impressed upon the learned counsel for the 1st Respondent that it would be in the interest of the 1st Respondent Sangam that steps are taken for conduct of elections.
9. The learned counsel for the Plaintiffs pointed out the report of the Registrar of Societies in the year 2011, wherein the Registrar of Societies had found prima facie that accounts were not properly maintained and there were instances of mal-administration in the Sangam. In view of the back ground of these aspects, it was suggested that it would be in the interest of all the members that an Election Officer/Observer can be appointed by the Court to conduct the elections.
10. At this juncture, the 1st Respondent Sangam appears to have acted in a fast track manner and it decided that election shall be called for and held for all the posts, which are electable posts and had also fixed the date of election on 17.12.2017. The learned counsel for the Applicants/ Plaintiffs pointed out the resolutions, which were passed and which is always subject to further orders of this court, as directed in OA.No.775 of 2016. Among other resolutions passed, one of the resolutions, which was passed in the Annual General Body Meeting on 11.9.2016, is that the elections shall be held, but prior to that, there should be appropriate readjustment or verification of the constituencies, and bjhFjp rPuikg;g[f;FG must be appointed.
11. According to the learned counsel for the 1st Respondent, such a committee was formed in January 2017. In this context, the learned counsel for the Applicant also raised further apprehension that there had been en masse enrolment of members and consequently, also raised further apprehension that the existing office bearers, who have called for the elections, would facilitate and conduct the elections in such a manner that they are benefited from the outcome of the elections. In view of all these, this court passes the following orders:-
a)J.A.K.Sampath Kumar, J. (Retired Judge of the High Court of Madras) is appointed as the Election Officer/Observer to conduct the elections for the 1st Respondent Sangam, namely, Nellai Thoothukudi Nadar Mahamai Paripalana Sangam, for the posts of 32 Executive Committee Members and from among them the post of President, four Vice Presidents, three Secretaries, one Treasurer.
b)The Election Officer/Observer has to be paid an initial remuneration of Rs.1,00,000/- (Rupees one lakh only) by the 1st Respondent Sangam.
c)The Election Officer/Observer is requested to ensure that the list of voters is properly and correctly prepared and to obtain the number of voters enrolled in each calendar year from 2011 onwards till the year 2017.
d)The Election Officer/Observer is also requested to ensure that there is equal distribution of voters in each constituency and if required, readjust the constituencies so that voting will not be clogged in any one particular constituency.
e)The Election Officer/Observer is also requested to enquire into any complaint with respect to enrolment of voters, leaving out of voters, inclusion of voters and also bona fide nature of voters, if any allegations are made out.
f)After going through all these exercises, the Election Officer/Observer has to prepare the entire list of voters and then hold the elections in accordance with the rules and bye laws of the Sangam.
g)Since it has been represented that a Committee had already been formed with respect to re-organisation of the constituencies, they are requested to actively interact with the Election Officer/Observer. It is also informed that two election officers have also been nominated by the present working body. They are also requested to interact with the Election Officer/Observer.
h)The Election Officer/Observer will have the entire discretion to either form a new committee for re-organisation of the voters constituencies and will also have the discretion to choose election officers by using his own discretion and judgement and will also decide whether the elections has to be actually held on 17.12.2017 or on any other date and thereafter, hold the elections.
i)The 1st Respondent Sangam is requested to give at most cooperation to the nominated Election Officer/Observer keeping in mind the dignity of post which he had held as the Judge of High Court.
j)The Plaintiffs are also requested to extend their assistance to the Election Officer/Observer in the conduct of his duties to assist this court.
k)Call on 24.11.2017 for filing of interim report of the Election Officer/Observer."
8. This court while passing the above order considered the serious irregularities noted by the Registrar of Societies that the accounts were not properly maintained and there were instances of mal-administration in the Sangam and also found that elections were not conducted for the period from 2011 to 2014. This Court appointed Honourable Mr.Justice J.A.K. Sampath Kumar (Retired Judge of Madras High Court) as Election Officer/Observer and issued directions to conduct the election of the 1st Respondent Sangam as extracted above. The Judge Commissioner has filed an interim report. When the election process are on, the main objection of the defendants is that the Judge Commissioner has distributed the voters to other constituencies which will create serious consequences in fact it will lead to depriving the right of the person residing in a particular constituency. To demonstrate the difficulties which may arise, the respondents have pleaded in paras 6 to 8 of affidavit, which is as follows:
"6. Large number of voters objected to the distribution and appeared before the Judge Commissioner. Hon'ble Judge Commissioner directed the members to submit the same to the First respondent Sngam as per that objections were handed over to Sangam. When the same was handed over to Judge Commissioner, he asked the Sangam to submit before this Honourable Court. First respondent Sangam also submitted its objections on 28.06.2018 before this Hon'ble Court. Honourable Judge Commissioner removed voters from bottom of the list and distributed to other constituencies. For example he removed 495 voters from constituency No.1 (Enjambakkam - Vettuvankani, Kanathoor, Kovalam, Uthandi, Sollinganallur, Tiruporur, Mamallapuram) and distributed
1. 10 voters to Constituency No.5 (Adyar)
2. 51 voters to Constituency No.11 (Mylapore-5)
3. 52 voters to Constituency No.12(Mylapore-6)
4. 68 Voters to constituency No.13(Triplicant)
5. 64 Voters to constituency No.14 (Royapetta)
6. 62 Voters to constituency No.17 (Perambur)
7. 41 Voters to constituency No.19 (Erukencherri)
8. 41 Voters to constituency No.20 (Vyasarpadi)
9. 39 Voters to constituency No.21(Ooteri)
10. 67 Voters to constituency No.38 (Chrompet) But this voters in constituency No.1, compelled to vote for the candidate contesting in other consituency.
By this voters who are residing in particular constituency objecting to the distribution, on the ground that the voters who are not residing in their constituency can not be allowed to elect their representative.
7. Due to the distribution of Voters, a voter who is residing in a particular constituency asked to elect Executive member for another constituency. By this valuable right of the voter is taken away. A voter cannot be asked to elect Member for another constituency and his right to elect member for his own constituency is taken away.
8. By this voters who are residing in twelve constituencies asked to vote for candidate contesting in other constituencies. Similarly for 10 constituencies, voters who are not residing there will vote for the Executive Committee member to be elected from that constituency."
9. The counter affidavit, in fact clearly indicates that such distribution of constituency will have an impact on the persons who were residing in a particular constituency, to elect the executive members of another constituency. This aspect in fact will lead to deprive the right of the person to elect their own executive committee member in the same constituency. Therefore, having regard to the fact that the elections were not conducted for many years, I am of the view that the Election Commissioner shall conduct the election as per the existing constituencies instead of distribution of constituencies, so that the new office bearer can be elected. This court is of the view that earlier order passed by this Court dated 06.11.2017, directing the Election Commissioner in Clause 'd' of para 11 to be modified to the effect that, Election Officer/Observer shall conduct election as per the existing constituencies and the voters list. Similarly, in view of the modification of the above part of the order, this Court is inclined to remove the direction containing Clause 'h' of para 11 of the order dated 6.11.2017 viz.
h) The election officer/Observer will have the entire discretion to either form a new committee for re-organisation of the voters constituencies. with regard to the other direction the order dated 06.11.2017 shall continue.
10. Though much emphasis was made by the learned Senior Counsel to the bye-law of the Sangam and strict adherence of the bye-law while conducting the election, I am of the view that since the members elected have not conducted elections for all these years strictly following the bye-law, now they cannot insist upon the bye-law alone. It is for the Election Officer to take decision following the existing constituencies and voters list. The earlier direction in the Order dated 6.11.2017 that the plaintiffs are also requested to extend their assistance to the Election Officer/Observer in his conduct of his duties to assist this Court. is removed. The Election Officer is at liberty to appoint any committee out of the existing members for his assistance in conducting elections. This court is of the view that the object of the Sangam would be fulfilled only when there is proper election conducted. For every objection and grievance of the members, there cannot be any mini trial. Any person has any objection with regard to the election such objection can be made before the Election Officer. The decision of the Election Officer in that regard is final and the same is binding all the parties, as the Election Officer is Officer of the Court to discharge his duties.
11. However, it is made clear that any such decision of the Election Officer has impact on very election itself, such decision can be subject matter of dispute in the proceedings, challenging the very election after declaration of results itself and not before that. This court hopes that all the members would respect the object of the very Sangam itself and allow smooth function of the same and allow the Election Officer to conduct election smoothly. Despite the fact that elections were not conducted form the year 2011, there are also some irregularities found out by the Registrar of Societies and also certain allegations levelled against the existing office bearers of the Sangam. All the facts shall be kept in mind by the members who are honestly believing the object of the Sangam. Even though the elections have not been conducted for several years, this Court is pained to note that the parties are agitating as if their personal rights are involved before this Court and further delaying the proceedings all these days. The manner in which the applications have been filed one by one for even trivial issues to stall the conduct of elections all these years is a clear indicator, gives inference that only the vested interests have concern by their rights rather than the interest of the Sangam. This Court hopes that the members either elected office bearers or ordinary members would mend their ways and give up their personal fight as against other and see that the election is conducted smoothly.
12. In view of the above and also the further fact that serious allegations of misappropriation is already raised and Original Application Nos.1030 and 1031 of 2017 in C.S.No.793 of 2017 were resisted and after the due enquiry and after perusing the committee report the matter also placed before the Disciplinary Committee, at this stage, this Court is of the view that suspension order of the applicant cannot be revoked without any trial. All these facts are matter of evidence, all the allegations with regard to the misappropriation are also matter of evidence. Those things can be looked into only at trial. Therefore, at this stage merely because some of the members are suspended that itself cannot be a reason to stall the election, till their personal rights are agitated and come to an end. If such grievances are entertained at this level and the personal rights to be agitated first, there cannot be any election at all in the near future in the registered Sangam. Therefore, this Court is not willing to entertain these applications for restraining the defendants from enforcing the interim suspension of the Applicant/plaintiff from the basic member. Accordingly, these applications are liable to be rejected.
13. The contention of the learned Senior Counsel Mr.Wilson that the suit itself should be rejected at this stage cannot be entertained. Whether the suit is for Public Charities, whether the scheme is absolutely necessary or the suit would fall under the Tamil Nadu Societies Registration Act can be gone into only at the stage of trial and not at this stage. Having considered the irregularities in the functioning of the sangam, this Court has already passed an order appointing the Election Officer/Observer vide its order dated 6.11.2017. Therefore, this Court is of the view that the same Election Officer/Observer can conduct the election with the modified order of this Court and every endeavour shall be made to conclude the election within three months from the date of this Order and the additional remuneration of Rs.1,00,000/- (Rupees one lakh only) also payable to the Election Officer/Observer. The Election Officer/Observer is at liberty to appoint any committee from and among the members of the Sangam on his own discretion. As already stated, Election Officer shall fix the election date after following the bye-laws particularly with regard to the period of notice for such elections and conduct elections as per the existing constituencies and voters list and conclude the election within three months. It is made clear that any objection made to the Election Officer/Observer in respect of conduct of elections, his decision is final and binding on the parties. The same shall not be subject to any challenge before this Court by way of Original Applications. It is also made clear that in the event of his decision has severe impact on the very election itself, the same can be challenged in the proceedings, challenging very election after the results are declared, and not in any other ways.
14. With the above observation, all the above applications are disposed of. The Election Officer/Observer is directed to conduct the elections of the Sangam as per the modified directions of this Court and conclude the same within three three months from today.
15. In the Result, Original Application Nos.1030,1031,1032 and 1035 of 2017 in C.S.No.793 of 2017 and Original Application No.776 of 2016, Application Nos.4040,4041 and 4042 of 2018 in C.S.No.641 of 2016 are dismissed. No costs.
28-06-2018 Index:Yes/No Internet:Yes/No ggs.
N. SATHISH KUMAR,J.
ggs Pre-delivery Common Order in:
O.A.Nos.1030,1031,1032 and 1035 of 2017 in C.S.No.793 of 2017 and O.A.No.776 of 2016, A.Nos.4040,4041 and 4042 of 2018 in C.S.No.641 of 2016 28-06-2018