These Civil Revision Petitions have been filed against the fair order and decreetal order dated 10.02.2017, passed in I.A.No.205 of 2011 in O.S.No.128 of 2011 by the learned Additional Subordinate Judge, Tirunelveli.
2.Since the issues involved in both the Civil Revision Petitions are one and the same, they are heard together and disposed of by this common order.
3.The petitioners in C.R.P.(MD)No.408 of 2017 are the defendants 1 to 3 in O.S.No.128 of 2011 and the respondents in I.A.No.205 of 2011 on the file of the Additional Subordinate Court, Tirunelveli. The respondents 1 to 3 herein filed the suit in O.S.No.128 of 2011 before the Subordinate Court, Tirunelveli, for declaration to declare that the election schedule declared by third respondent/third defendant, is null and void and consequential permanent injunction restraining the respondents 2 and 3/defendants 2 and 3 from conducting elections for the 1st phase to 4th phase elections, commencing from 24.07.2011 to 29.09.2011 and 30.09.2011 and also for the T.D.T.A. Committee of Management in any manner. Alternatively, the respondents 1 to 3 prayed for appointment of a Committee, consisting of minimum three members to supervise and to conduct the above elections under the supervision of the Court, according to the Constitution of Tirunelveli Diocese. The respondents 1 to 3 also filed I.A.No.205 of 2011 for appointment of Committee, consisting of minimum three members to supervise and to conduct the above elections under the supervision of the Court, according to the constitution of the Tirunelveli Diocese.
4.After contest in I.A.No.205 of 2011, by order dated 22.07.2011, the learned Additional Subordinate Judge Tirunelveli, appointed Mr.N.Robi (Retired District Judge), as Commissioner, to conduct the election. Subsequently, Mr.Soundara Pandian, Retired District Judge, was appointed as Commissioner to conduct election. The Commissioner conducted election and submitted his report. The respondents 1 to 3 filed I.A.No.292 of 2011 in I.A.No.205 of 2011, for recounting of votes for South West Church Council, North West Church Council and West Church Council. The petitioners filed I.A.No.4 of 2012 in I.A.No.205 of 2011 in O.S.No.128 of 2011 for opening the ballot boxes and count the votes in respect of South Church Council. The learned Subordinate Judge, Tirunelveli, directed to Commissioner to count the votes in respect of the Churches and file his report. The Commissioner counted the votes and filed Report No.III, for recounting South West Church Council votes, North West Church Council votes and West Church Council votes. The Commissioner also filed Report No.IV with regard to final stage of election. The respondents 1 to 3/Plaintiffs filed objection on 29.04.2013 to the Commissioner's report, dated 26.02.2013 and they have also filed objection on 17.06.2013 to the final report of the Commissioner. Meanwhile, the petitioners in C.R.P.(MD)No.479 of 2017 along with one Y.Thangadurai, filed C.R.P.(MD)No.1362 of 2013 before this Court, to set aside the report of the Commissioner, dated 26.02.2013. This Court, by order dated 03.09.2014, disposed the said Civil Revision Petition, directing the learned Additional Subordinate Judge to pass orders on the Commissioner's report, dated 26.02.2013. The parties therein were given opportunity to file their objection to the Commissioner's report, if they so desired or so advised. The learned Additional Subordinate Judge was directed to pass orders on the Commissioner's report within two months from the date of a copy of that order. The defendants 13 to 16 filed their objections to the Commissioner's report dated 26.02.2013. The learned Additional Subordinate Judge, Tirunelveli, by order dated 10.02.2017, in I.A.No.205 of 2011 in O.S.No.128 of 2011, set aside the report of the Commissioner and held that a new Commissioner has to be appointed, as both the petitioners and the respondents herein were not satisfied with the action of the Commissioner.
5.Against the said order dated 10.02.2017, the petitioners/defendants 1 to 3 have come out with C.R.P.(MD)No.408 of 2017.
6.The petitioners in C.R.P.(MD)No.479 of 2017 were not parties to the suit as well as in I.A.No.205 of 2011. They obtained leave of this Court to file the Civil Revision Petition challenging the order of the learned Additional Subordinate Judge. After leave being granted by this Court, the Civil Revision Petition is numbered as C.R.P.(MD)No.479 of 2017 and posted for admission along with C.R.P.(MD)No.408 of 2017.
7.The learned counsel for petitioners in C.R.P.(MD)No.479 of 2017 adopted the arguments of the learned Senior Counsel appearing for the petitioners in C.R.P.(MD)No.408 of 2017.
8.The learned Senior Counsel appearing for the petitioners in C.R.P.(MD)No.408 of 2017 contended that the learned Additional Subordinate Judge without applying the mind independently and without arriving at any subjective satisfaction, ordered appointment of fresh Commissioner to conduct 3rd and 4th phases of election. The term of office bearers is 4 years. The election notification was issued for election of the office bearers for the period from 2011 to 2015. The election was concluded only on 16.03.2013 and the results were announced on 17.03.2013 in view of the various litigations. Immediately, after such conclusion, the office bearers assumed office and their tenure of office is coming to an end during the last week of March 2017. The learned Additional Subordinate Judge failed to see that in the election cases the defeated and unsuccessful candidates are always making allegations against the election officer regarding conducting of the election and such objection cannot be sole basis for setting aside the election result. It is not correct to state that all the contesting parties including the petitioners were not satisfied with the action of the Commissioner in conducting the election. On the other hand, after the 4th phase of election, elected persons assumed Office and the petitioners did not file any objection to the Commissioner's report, with regard to 3rd and 4th phase elections. The learned Additional Subordinate Judge is not correct in setting aside the entire result of 4th phase election, when there is no dispute with regard to election of South North Church Council and Central Church Council.
9.The learned Senior Counsel appearing for the petitioner submitted that alternative prayer of the respondents 1 to 3 sought for in the suit, namely, appointment of three Member Committee to conduct election for Tirunelveli Diocese, was granted by the Trial Court, by appointment of Commissioner to conduct the election. The learned Senior Counsel appearing for the petitioners submitted that the petitioners have filed I.A.No.408 of 2014 on 24.01.2014 for rejection of plaint on the ground that entire cause of action had become infructuous. Without passing order in the said I.A., the learned Additional Subordinate Judge has erroneously set aside the report of the Commissioner in respect of 3rd and 4th phase of elections.
10.Per contra, the learned Senior Counsel appearing for the respondents 1 to 3 submitted that the election to Tirunelveli Diocese, consist of 4th phase and only on completion of election starting from 1st phase election can be considered for next phase. In the present case, there is no dispute with regard to election in 1st and 2nd phase elections. The dispute is with regard to election of 3rd phase only. The respondents 1 to 3 disputed that the election to the South West Church Council, West Church Council and North West Church Council, alleging irregularities in counting of votes. The election for North Church Council was not conducted. The votes were not counted for South Church Council. By order dated 12.04.2012 made in I.A.No.4 of 2012, the votes in respect of South Church Council was counted by the Commissioner Mr.Ratnaraj, retired District Judge. He filed his Report No.I, dated 11.05.2012. By order dated 16.04.2012, recounting of votes in South West Church Council, West Church Council and North West Church Council was ordered. Two persons filed C.R.P.(MD)Nos.1030 and 1081 of 2012 challenging the said order. This Court, by order dated 06.12.2012, confirmed the order, directing recounting of votes.
11.The election to the North Church Council was held on 12.05.2012 and the Commissioner filed Report No.II. There is no dispute with regard to the said election. The votes in respect of South West Church Council, North West Church Council and West Church Council were counted on 09.02.2013, 12.02.2013 and 16.02.2013 respectively. The Commissioner filed his report dated 20.02.2013 stating that there was tampering of Ballots and Ballot Boxes. In spite of such report, without seeking further direction from the Court, the Commissioner conducted the election to 4th phase on 16.03.2013. The result of the 3rd phase election has a bearing on the election of 4th phase. Once it was found tampering of Ballots and Ballot Boxes in 3rd phase election in respect of three Church Council, the election to the 4th phase is not valid, as the members were illegally elected to the three Church Councils viz., South West Church Council, North West Church Council and West Church Council.
12.The petitioners in C.R.P.(MD)No.1362 of 2013 and the petitioners in C.R.P.(MD)No.479 of 2017 are one and the same and they filed C.R.P.(MD)No.1362 of 2013 along with one Y.Thangadurai, challenging the Commissioner's report. This Court taking note of the fact that the Trial Court has not either accepted or rejected the Commissioner's report, disposed the Civil Revision Petition, directing the Trial Court to pass orders on the Commissioner's report within two months from the date of receipt of a copy of that order. The parties were given opportunity to file their objections. After the parties filed their objections, the learned Additional Subordinate Judge did not accept the report of the Commissioner and held that proper course is to appoint fresh Advocate Commissioner. The said order is valid order. It is not correct to state that the term of the Office bearers will expire by the end of March 2017. On the other hand, the term of the Office bearers will commence only from the date on which they assume charge after they were properly elected and the term will be four years from the date they assumed charge. In the present case, as election of 3rd phase in respect of three Church Councils is invalid, the entire election of 4th phase is also invalid.
13.The petitioners themselves admit that the election notification alleged to have been issued for election of Office bearers for the period from 2017 to 2021 is stayed by the Trial Court in I.A.No.497 of 2016 in O.S.No.168 of 2016 and in I.A.Nos.511 and 512 of 2016 in O.S.No.172 of 2016, dated 05.10.2016. Therefore, the present Civil Revision Petitions are not maintainable, as the petitioners are challenging only consequential order passed I.A.No.205 of 2011. They have not challenged the order, dated 16.04.2012, passed in I.A.No.292 of 2011 in I.A.No.205 of 2011 in O.S.No.128 of 2011, for recounting of votes and therefore, prayed for dismissal of the Civil Revision Petitions.
14.I have considered the submissions of the learned counsel appearing for all the parties and perused the materials available on record.
15.The main contention of the learned Senior Counsel appearing for the petitioners in C.R.P.(MD)No.408 of 2017 is that the learned Additional Subordinate Judge has not applied her mind and without subjective satisfaction, has passed the impugned order. This contention of the learned Senior Counsel is untenable. On the other hand, the learned Senior Counsel appearing for the respondents 1 and 3 submitted that the impugned order is only a consequential order to the order, dated 16.04.2012, passed in I.A.No.292 of 2011 in I.A.No.205 of 2011 in O.S.No.128 of 2011.
16.A reading of the Commissioner's report with regard to recounting of votes show that some of the Ballot Boxes did not have the locks and paper cover containing Ballots were not properly pasted and the white wrapper on the covers were torn and in some places, above the white wrapper, another brown wrapper was affixed and the brown wrapper was also not properly affixed and there was opening in the cover at some places. In some covers, there were changes in the pasting of cover and visible to the naked eyes. There were some invalid votes in the recounting while there were no invalid votes in the original counting. The Commissioner pointed out these defects and also stated so in his report. In spite of the same, the Commissioner had proceeded with conducting of 4th phase of election and declared the result. In view of invalid election to 3rd phase as irregularities found during recounting of the votes in the 3rd phase of election, the election conducted to 4th phase, without any direction from the Court, is invalid. In the circumstances, it cannot be said that the office bearers assumed charge in March 2013 and their term will end by the end of March 2017. On the other hand, the contention of the learned Senior Counsel appearing for the respondents 1 to 3 that only when the office bearers are elected validly, their term will commence from the date of first meeting, has considerable force.
17.The contention of the learned Senior Counsel appearing for the petitioners that the election process for the period from 2017 to 2021 has already been started and that the order of the learned Additional Subordinate Judge is invalid, has no force. The petitioners themselves, in Ground No.13 in C.R.P.(MD)No.408 of 2017, had admitted that by order of injunction, dated 05.10.2016, granted by the Trial Court in I.A.No.497 of 2016 in O.S.No.168 of 2016 and I.A.Nos.511 and 512 of 2016 in O.S.No.172 of 2016, the election for the period from 2017 to 2021 could not be proceeded with, in respect of contested pastorate level election. The pastorate level is the 1st phase. Once the election to 1st phase itself is injuncted from proceeding with, the election to other phases also cannot be proceeded with. From the materials available on record, it is seen that the injunction was granted on 05.10.2016, the learned Senior Counsel appearing for the petitioners in C.R.P.(MD)No.408 of 2017 has not stated that whether they have taken steps to get the injunction vacated to proceed with election from 1st phase for the period from 2017 to 2021. In the circumstances, in the interest of justice, the election may be restricted from third phase only for three Church Councils, i.e., South West Church Council, North West Church Council and West Church Council. After conclusion of 3rd phase election for the above three Church Councils, the Commissioner shall proceed to conduct the election for the 4th phase and file his report into Court. After completion of 4th phase election as per Bye-Law, the term of elected office bearers shall commence from the date of first meeting for four years.
18.In view of the above facts, the Civil Revision Petitions are dismissed as devoid of merits. The learned Additional Subordinate Judge, has not appointed any Commissioner. The learned Additional Subordinate Judge, Tirunelveli, is directed to appoint a Commissioner forthwith with a direction to the Commissioner to proceed with the election for 3rd phase in respect of South West Church Council, North West Church Council and West Church Council and after completion of election to the 3rd phase, conduct election to the 4th phase within three months from the date of appointment and file a report into the court on completion of 3rd and 4th phase elections.
19.In the result, both the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
To The Additional Subordinate Judge, Tirunelveli..