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S. Vanchiko v/s The Revenue Divisional Officer, Madurai & Others

    WP(MD) Nos. 65, 1662 & 1673 of 2019 & WMP(MD) Nos. 45 & 46, 1417 & 1418, 1432 & 1433 of 2019

    Decided On, 11 February 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE G.R. SWAMINATHAN

    For the Petitioner: K. Doraisamy, Senior Counsel, G. Prabhu Rajadurai, M/s. Muthumani Doraisami, Advocates. For the Respondents: R1, Murugan, Government Advocate, R3 & R6, Isaac Mohanlal, Senior Counsel, J. Ashok, R4 & R7, Saji Bino, R5 & R8, EVN Siva, Advocates.



Judgment Text

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records of the impugned order in Na.Ka.No.8740/2018/M dated 31.12.2018 on the file of the first respondent and quash the same.

Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records of the respondents relating to the orders of the first respondent in R.C No. 8154/E1/2018 dated 20.12.2018 and the consequential order of the second respondent in L.Dis.No.28985/G2/2017 dated 08.01.2019 and all subsequent proceedings based on the impugned orders and quash the same.

Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records of the respondents relating to the orders of the first respondent in RC No. 8740/2018/M dated 10.12.2018 and 13.12.2018 and all subsequent proceedings based on the impugned orders and quash the same.)

Common Order:

1. These writ petitions pertain to the affairs of NMSS Vellaichamy Nadar Kalloori Peravai, Nagamalai, Madurai. It is not in dispute that an election to its executive committee was held on 11.06.2017. The tenure of the elected bo

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dy is for a period of three years. Thiru.P.Mahendiravel was elected as the President and Thiru.AMSG.Ashokan as the Secretary and Thiru.A.Mariappan as the Treasurer. It appears that difference of opinion arose between the President on the one hand and the Secretary and the Treasurer on the other. The President of the said Kalloori Peravai levelled some serious allegations against the Secretary and the Treasurer which is refuted by the other two. An extraordinary General Body Meeting was claimed to have been held on 06.12.2018 and the said Ashokan and Mariappan were suspended temporarily and two other persons chosen in their place by a resolution. Thiru.Ashokan and Mariappan declined to recognise the validity of the resolution and refused to vacate their posts. That gave rise to the dispute on hand.

2. The writ petitioner herein Thiru.Vanchiko who was said to have been elected as Secretary in the place of Thiru.Ashokan submitted the Form-VII before the District Registrar, Madurai South. The District Registrar, Madurai South did not accept the same but kept it in abeyance. It is relevant to note here that Form-VII filed in respect of the election held on 11.06.2017 was also kept pending. In view of the filing of Form-VII by Thiru.S.Vanchiko, the Executive Magistrate/RDO, Madurai passed an order dated 10.12.2018 restraining both the contesting parties from entering the college campus and it is impugned in WP(MD)No.1673 of 2019. This passing of an order by the Executive Magistrate/RDO, Madurai on 10.12.2018 triggered the proceedings dated 12.12.2018 on the file of the Director of Collegiate Education, Chennai. By the said order dated 12.12.2018, the Director of Collegiate Education, Chennai gave permission to Thiru.Vanchiko to function as the Secretary of the College from 06.12.2018 upto 06.12.2019.

3. But then, this order was a conditional one. The Director of Collegiate Education directed that Thiru.Vanchiko must file the relevant Form-VII. Subject to this condition, the aforesaid order was passed. The Executive Magistrate/RDO, Madurai then convened the peace committee meeting on 13.12.2018. The meeting was adjourned without specifying any next date. The, status quo earlier granted was allowed to be continued. On 20.12.2018, the District Registrar, Madurai South passed an order returning Form-VII filed by Thiru.Vanchiko. Certain adverse findings were also set out therein. In view of the order dated 20.12.2018 passed by the District Registrar, Madurai South, the Executive Magistrate/RDO, Madurai also passed an order dated 31.12.2018 holding that the election held on 06.12.2018 in the extraordinary General Body Meeting convened on the said date was not valid and that the earlier office-bearers who were elected on 11.06.2017 will continue. In the meanwhile, the Director of Collegiate Education, Chennai also passed an order dated 08.01.2019 rescinding her earlier proceedings dated 12.12.2018. All these orders are under challenge in these writ petitions at the instance of Thiru.Vanchiko who was said to have been elected as the Secretary of NMSS Vellaichamy Nadar Kalloori Peravai in the extraordinary General Body Meeting convened on 06.12.2018.

4. Heard the learned Senior Counsel appearing on either side and the learned Government Advocate appearing for the official respondents.

5. The learned Senior Counsel appearing for the writ petitioner pointed out that the District Registrar, Madurai South ought not to have rendered findings on the merits of the matter and that it runs counter to the Hon'ble Full Bench decision reported in 2005 (2) CTC 161 (C.M.S.Evangellical Suvi David Memorial High Secondary School vs. The District Registrar, Cheranmahadevi) (FB). He placed reliance on the para 20 of the said decision. It reads as under :

“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.”

6. I am in full agreement with the aforesaid submission of the learned Senior Counsel appearing for the writ petitioner. But then as District Registrar, Madurai South has declined to accept Form VII filed by the petitioner, the only remedy open to him is to move the Civil Court. This Court cannot issue a mandamus directing the District Registrar, Madurai South to accept the Form VII filed by the petitioner. In any event, the writ proceedings have become infructuous in view of the proceedings dated 08.01.2019 accepting the original Form VII filed on 16.06.2017.

7. The order passed by the Director of Collegiate Education, Chennai cannot also be questioned. This is for the simple reason that the proceedings originally issued in favour of Thiru.Vanchiko was a conditional one. Thiru.Vanchiko was mandated to file Form VII. Admittedly, the Form VII submitted by him was not taken on file or accepted by the District Regisrar, Madurai South. Therefore, the earlier proceeding issued by the Director of Collegiate Education automatically goes. Of course, the learned Senior Counsel appearing for the writ petitioner is right in submitting that the said order was passed without notice. But then, in this case, the principle of useless formality theory can very well be applied. Thiru.Vanchiko admittedly, accepted the proceedings dated 12.12.2018 in which a condition was incorporated. He could not fulfil the said condition. Hence, he cannot have any legal grievance now.

8. The issue regarding the validity of the order passed by the RDO/Executive Magistrate, Madurai dated 13.12.2018 does not pose much diificulty. The said proceedings dated 13.12.2018 does not refer to any statutory provision. In response to a specific question to the learned Government Advocate, it was submitted that that the said order was passed under Section 147 of Cr.Pc. But then, Section 147 of Cr.pC sets out a certain procedure. The authority must pass a speaking order. He must conduct an enquiry. Since the order dated 13.12.2018 is not in conformity with the procedure set out in Section 147 of Cr.PC, it has to be necessarily set aside. It is accordingly set aside.

9. Now, the question arises as to whether the matter should be remitted to the file of the Revenue Divisional Officer, Madurai for passing fresh orders. At this stage, the learned Senior Counsel appearing for the writ petitioner stated that they would rather go for a fresh election by convening an extraordinary general body meeting and that this Court can lay down a time line.

10. The NMSS Vellaichamy Nadar Kalloori Peravai is a society registered under the provisions of the Tamil Nadu Societies Registration Act. It is covered by the provisions of the statute as well as bye-laws. It appears that there are a number of general body members. But then, to convene an extraordinary general body meeting, 500 members will have to give their requisition. The learned Senior Counsel appearing for the writ petitioner stated that the petitioner Thiru.Vanchiko will collect 500 signatures of requisitionists calling for the convening of the extraordinary general body meeting. Such a letter will be submitted on 22.02.2019. Every signature in the letter will be duly notarized. Thiru.Mahendiravel will submit the letter of requisition to the Secretary Thiru.Ashokan in his office in the college itself on 22.02.2019 at 10.30. A.M. The extraordinary general body meeting will be convened on 24.03.2019 in the college campus. The learned Senior Counsel for the contesting parties states that the Secretary will issue a notification/paper publication and also through the college website on 01.03.2019. The paper publication shall be effected in the news daily “Dinathathi”. Thiru.N.Balakrishnan, Advocate, Lawyers Chamber No.4, Enrollment No.413/1968, Mobile No.94426 37355 who is practicing before this Court is appointed as the Observer and Advocate Commissioner. The extraordinary general body meeting will be conducted in his presence. The Advocate Commissioner appointed by this Court will oversee the counting process. The members whose names appear in the members list maintained by the District Registrar of Societies, Madurai in Form VI as on date alone will be eligible to take part in the Extraordinary General Body Meeting. The members will have to carry I.D cards. The public notification will specifically indicate the agenda for meeting. The agenda for the meeting will be the removal of Thiru.Ashokan and Thiru.Mariappan from the post of Secretary and Treasurer and their substitution by persons whose names shall be given by the requisitionists. The petitioners shall pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as initial remuneration to the learned Advocate Commissioner Mr.N.Balakrishnan. Registry is directed to issue warrant to the learned Advocate Commissioner.

11. In the result, WP(MD)No.65 of 2019 is allowed and WP(MD)Nos.1662 & 1673 of 2019 stand dismissed with the above directions. No costs. Consequently, connected miscellaneous petitions are closed
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