IMPORTANT POINTS
1. A society need not necessarily be held to have become defunct only because certain statutory provisions have not been complied with by it. 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.
2. There is no reason as to why in a case of mismanagement of charitable organizations, although run by minorities, the Court cannot oversee its functions. Rights under Articles 25 and 26 of the Constitution are not absolute and unfettered. The right to manage does not carry it a right to mismanage.

Headnote:Tamil Nadu Societies Registration Act, 1975 - Sections 3, 4, 5, 36, 37, 38 - Societies Registration Act, 1860 - Elections of Church - Validity challenged - Church having a large congregation consisting of several pastorates in the Church Council was registered under the Societies Registration Act, 1860 - It runs a large number of schools and hospitals - A suit was filed for a declaration that elections conducted by the Church for the Circles, Synods and IELC without participation of plaintiff was null and void - By an order, an Advocate Commissioner was appointed to hold elections - Elections were held - However, Advocate Commissioner submitted a report stating that the society has become defunct - High Court directed the elected members to apply for fresh registration - Whether High Court was justified in setting aside the elections held - (No).
       Held : The constitution of the Church is not in dispute. The Church Council consists of President and 15 members. It has 3 Synods. 7 members from each Synod are represented in the Church Council. The Church Council, thus, consists of 36 members. Only 17 of them were before the High Court.(Para 11)
       It is true that elections were being held under the supervision of an Advocate Commissioner for sometime past. We will also assume that there had been some mismanagement of the Church of the properties on the part of the elected representatives. We may also proceed on a further assumption that the provisions of the 1975 Act had also not been complied with. The question, however, remains that as the appellants before us were not parties in the High Court, the impugned order is whether sustainable in law. The High Court proceeded to set aside all the elections in their entirety on the premise that the society has become a defunct one. (Para 13)
       While passing the impugned orders, the High Court did not notice the relevant provisions of the 1975 Act. The councilors representing the parties, for one reason or the other, did not also bring to the notice of the High Court the effect of the provisions of the 1975 Act, vis-a-vis, the 1860 Act. The society, presumably keeping in view the nature of its activities, was required to be compulsorily registered. It is, however, not in dispute that it was so registered under the Central Act of 1860. Once it is held that the society was registered under the 1860 Act; in terms of Section 53 of the 1975 Act it shall be deemed to be registered thereunder. The effect of a legal fiction is well-known. Legal fiction created, it is trite, must be given full effect.(Para 14)
       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 thereunder 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.(Para 16)
       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).(Para 18)
       (ii) Constitution of India - Articles 25 and 26 - Mismanagement of charitable organizations run by minorities - Court can oversee its functions.
       Held : The specific activities of the Church which will allegedly attract provisions of Articles 25 and 26 of the Constitution have not been specified. How the purported fundamental rights of the members of the society would be infringed, have not been clearly stated. Such a question cannot be permitted to be raised for the first time before this Court in absence of foundational facts. The Church, indisputably, carries on secular activities also. (Para 19)
       Keeping in view the interest of the general public, we see no reason as to why in a case of mismanagement of such charitable organizations, although run by minorities, the Court cannot oversee its functions. The Courts, indisputably, act as guardian of such societies. Even otherwise, rights under Articles 25 and 26 of the Constitution are not absolute and unfettered. The right to manage, it goes without saying, does not carry with it a right to mismanage. (Para 20)

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. The Indian Evangelical Lutheran Church (the Church, for short) has a large congregation consisting of several pastorates in the Church Council. It was registered under the Societies Registration Act, 1860 (for short, the 1860 Act). It runs a large number of schools and hospitals.

3. The State of Tamil Nadu enacted Tamil Nadu Societies Registration Act, 1975 (for short, the 1975 Act). Section 3 of the 1975 Act specifies the societies which may be registered thereunder, subject to the exceptions contained in Sub-Section (2) thereof. Section 4 provides for compulsory registration of such societies which are specified therein. The Act contemplated registration of such societies within such period as may be prescribed. Section 5 provides for optional registration. Section 36 provides for the power of Registrar to inquire into the affairs of the registered society. Cancellation of registration is envisaged under Section 37 thereof. Section 38 provides for cancellation of registration of society carrying on unlawful activities. The effect of cancellation of registration is laid down in Section 39. Section 40 provides for winding up of registered society. In case a society becomes defunct, its name can be removed from the Register maintained by the Registrar upon following the procedures laid down therein. Orders passed by the Registrar directing cancellation of registration are appealable under Section 45 thereof. Section 53 of the Act raises a legal fiction that every society registered under the Societies Registration Act, 1860, inter alia, shall be deemed to be registered under the Act and the bye-laws of such society shall, in so far as they are not inconsistent with any provision of the Act, continue in force until altered or rescinded. Allegedly, regular elections were not held. Some mis-management had also allegedly taken place.

4. A suit came to be filed by one Rev. M.S. Poomani Raj in the High Court of Judicature at Madras against the Church, Rev. J. Issac Moon, C. Deniel Rajagamberam and Rev. U. Jacob praying, inter alia, for the following reliefs :

"a)For a declaration that the elections conducted by the third defendant for the Circles, Synods and IELC without the assistance and effective participation of the Plaintiff and the fourth Defendant is non est in law and therefore null and void.

b)Granting permanent injunction restraining the third defendant from functioning as election commissioner of IELC including the Synod and circles of IELC.

c)Granting mandatory injunction directing the fourth defendant and the plaintiff to act as election commission of the IELC including the synods and circles of IELC and to conduct elections for the IELC, Synods and circles at all levels or in the alternative appoint an Advocate Commissioner to conduct elections for all the Circles, Synods and IELC."

5. Indisputably, by an order dated 1.12.2003, an Advocate Commissioner was appointed to hold elections. Elections were held under the supervision of the said Advocate Commissioner. Whereas election in respect of the Ambur Synod was held in December, 2003; that of Trivandrum Synod was held in April/May, 2004. Election of the Nagercoil Synod was held in May, 2004. Election held in respect of IELC was also held on 6.6.2004. The learned Advocate Commissioner, however, submitted a report in which he contended that the society has become defunct. A Division Bench of the High Court, opined :

".....newly elected officers could not confirm whether the registration of the Apex Body of IELC under the provisions of the Societies Registration Act, 1860 continued to be in force under the provisions of the new Act, viz., Societies Registration Act, 1975, by periodical renewal, as contemplated under law, as in the absence of any such renewal, the apex body of IELC would itself become defunct. Consequently, the election conducted to the post of office bearers of IELC would become futile exercise and therefor, it may n

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