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2011 (4) MLJ 226
High Court of Judicature at Madras
V. RAMASUBRAMANIAN
S. Vetrivel, President, Bar Association & Another
Versus
Tamil Nadu Advocates Association Represented by its Secretary & Others
A.No.1600 and 1628 of 2011 in C.S.No.7 of 2011
Decided on : 21-03-2011
The Court invalidated the votes polled in two booths due to tampering and violation of rules and regulations during the Bar Council of Tamil Nadu elections. The Court found that the voters in these booths did not produce photo identity cards, indelible ink was not put on their fingers, and there was dual voting. The Court also found that the independent Poll Observer nominated by the District Judge was a party to the unlawful episode and was guilty of contempt of court. The Court rejected the contention that a re-poll should have been ordered instead of invalidating the votes, as the Bar Council of Tamil Nadu Election Rules did not provide for re-polling.
Fact of the Case:
The Tamil Nadu Advocates Association filed a suit challenging the Bar Council of Tamil Nadu's decision to extend its term and the election process initiated for the same. The Court appointed a retired Judge as a Commissioner to oversee and monitor the elections. The Commissioner issued various directions to ensure a free and fair election, including the production of photo identity cards, marking of indelible ink on the right hand index finger, and the nomination of independent Poll Observers by the Judicial Officers. However, reports from Special Observers sent to two polling booths, Nagercoil and Padmanabhapuram, revealed that the voters in these booths violated the rules and regulations, including not producing photo identity cards, not getting indelible ink marked on their fingers, and engaging in dual voting. The independent Poll Observer nominated by the District Judge at Nagercoil was also found to be a party to these unlawful activities.
Finding of the Court:
The Court found that the voters in the Nagercoil and Padmanabhapuram booths violated Rule 20 of the Bar Council of Tamil Nadu Election Rules, which required voters to retire to a place screened from outside view and mark their preference in the manner prescribed, and Rule 25(2), which empowered the Returning Officer to invalidate all the ballot papers in the ballot box or boxes if he was satisfied that there was tampering of the ballot box or boxes. The Court also found that the independent Poll Observer nominated by the District Judge at Nagercoil was guilty of contempt of court for his active participation, connivance, and collusion in the whole process.
Issues: 1. Whether the Court could invalidate the votes polled in two booths due to tampering and violation of rules and regulations during the Bar Council of Tamil Nadu elections. 2. Whether the Court could reject the contention that a re-poll should have been ordered instead of invalidating the votes.
Ratio Decidendi: 1. The Court held that it had the power to invalidate the votes polled in the two booths under Rule 25(2) of the Bar Council of Tamil Nadu Election Rules, which empowered the Returning Officer to invalidate all the ballot papers in the ballot box or boxes if he was satisfied that there was tampering of the ballot box or boxes. The Court found that the voters in these booths violated Rule 20 of the Rules, which required voters to retire to a place screened from outside view and mark their preference in the manner prescribed, and that the independent Poll Observer nominated by the District Judge at Nagercoil was guilty of contempt of court for his active participation, connivance, and collusion in the whole process. The Court also noted that the Bar Council of Tamil Nadu Election Rules did not provide for re-polling, and therefore, it could not order a re-poll. 2. The Court rejected the contention that a re-poll should have been ordered instead of invalidating the votes, as the Bar Council of Tamil Nadu Election Rules did not provide for re-polling.
Final Decision: The Court dismissed the applications filed by the Presidents of the Nagercoil and Padmanabhapuram Bar Associations seeking to recall the order invalidating the votes polled in the two booths.
1. On a memo filed by the learned Judge-Commissioner, after the conclusion of the elections to the State Bar council on 4-3 2011, I passed an order on 8-3-2011, invalidating all the votes polled in the District Court campus at Nagercoil and at Padmanabhapuram. Aggrieved by the said order, the Presidents of the Nagercoil and Padmanabhapuram Bar Associations have come up with the above applications seeking to recall the said order.
2. I have heard Mr.V.Selvaraj, learned Counsel appearing for the applicant in A.No.1600 of 2011, Mr.S.Muthuraman, learned Counsel appearing for the applicant in A.No.1628 of 2011, Mr.S.Prabhakaran, learned counsel for the first respondent-plaintiff, Mr.S.Y.Masood, learned counsel for the Bar Council of Tamilnadu, Mr.K.Venkatakrishnan, learned counsel for the Bar Council of India and Mr.Elephant G.Rajendran, the fourth defendant appearing in person.
3. To recapitulate, the last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010, in terms of the provisions of Section 8 of the Advocates Act, 1961. By virtue of a resolution bearing Resolution No. 77/2010, passed by the Bar Council of India, in its meetings held on 22nd and 23rd August 2010, the term of office of the Bar Council of Tamil Nadu was extended for a period of 6 months with effect from 12.10.2010, in terms of the Proviso to Section 8.
4. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed 4 resolutions, bearing Resolution Nos.373, 374, 375 and 376. By the first resolution, an election schedule was finalised and the Secretary of the State Bar Council was appointed as the Returning Officer.
5. By the second resolution, a Special Committee comprising of 5 Senior Advocates of this Court were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions to the Returning Officer for the conduct of a free and fair election and the power to nominate any number of Advocates to assist them in the conduct of the election.
6. By the third resolution, 3 Advocates of this Court were appointed as the Election Tribunal, as contemplated by the rules.
7. By the fourth resolution, the Bar Council of Tamil Nadu resolved to hand over the administration of the Bar Council to the Advocate General with power to sign the cheques and operate the bank accounts, jointly with the Secretary.
8. In pursuance of the above resolutions, an Election Notification was issued by the Secretary to the Bar Council of Tamil Nadu on 27.12.2010 and the same was published in the Tamil Nadu Government Gazette Part VI-Section 1, No.51-A. The Notification was also published in the newspapers on the following day and a Press Release was issued by the Advocate General on 30.12.2010, confirming the election schedule and the appointment of the Secretary to the Bar Council of Tamil Nadu as the Returning Officer.
9. Challenging the Press Release issued by the Advocate General on 30.12.2010 and the election process so initiated, the Tamil Nadu Advocates Association, registered as a Society under the Tamilnadu Societies Registration Act, filed the above suit against the Bar Council of Tamil Nadu and the Bar Council of India, praying for the following reliefs:-
"(i) Declaring that the press release dated 30.12.2010 (R.O.C.No. 1733 of 2010) issued by the first defendant, announcing election to the Bar Council of Tamil Nadu on 4.3.2011, is null and void;
(ii) Declaring that the electoral rolls, published by the first defendant, in preparation for the election of members to the Bar Council of Tamil Nadu, to be held on 4.3.2011, are null and void;
(iii) For appointment of a retired Hon'ble Judge of this Hon'ble Court to conduct the election of members to the Bar Council of Tamil Nadu, right from the preparation of the electoral rolls upto the announcement of the successf
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