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High Court of Judicature at Madras
R. BANUMATHI & V. PERIYA KARUPPIAH
S. Vetrivel
Versus
Tamil Nadu Advocates Association rep. By its Secretary M. Baskar & Others
O.S.A. Nos. 88 of 2011 & M.P. Nos.1 & 2 of 2011 & O.S.A. Nos. 98 of 2011 & M.P. Nos. 1, 2 & 3 of 2011
Decided On :Decided on: 09-04-2011
ELECTION - BAR COUNCIL - CONDUCT OF ELECTION - INVALIDATION OF VOTES - JURISDICTION OF COURT - MAINTAINABILITY OF SUIT - REPRESENTATIVE SUIT - ORDER 1 RULE 8 CPC - WAIVER - BAR COUNCIL OF TAMIL NADU ELECTION RULES, 1975 - RULE 25(2) - INTERPRETATION - CIRCUMSTANCES WARRANTING INVALIDATION OF VOTES - REPORT OF SPECIAL POLL OBSERVERS - RELIABILITY - OPPORTUNITY OF HEARING - NECESSITY - NATURAL JUSTICE - PRINCIPLES - APPLICABILITY - ELECTION PROCESS - MONITORING BY COURT - POWERS OF COURT - SECTION 151 CPC - SCOPE - INTERLOCUTORY ORDERS - PASSING OF - SECTION 94(e) CPC - APPLICABILITY - ELECTION RULES - VIOLATION - INSTRUCTIONS OF JUDGE COMMISSIONER - DISREGARD - CIRCUMSTANCES - EXTREME STEP OF INVALIDATING VOTES - JUSTIFICATION - RE-POLLING - FEASIBILITY - PREJUDICE TO ELECTED CANDIDATES AND BAR COUNCIL - BALANCE OF CONVENIENCE - DOCTRINE OF LACHES - APPLICABILITY.
Fact of the Case:
Suit filed by Tamil Nadu Advocates Association for declaration that Press Release announcing election to Bar Council of Tamil Nadu is null and void, declaration that electoral rolls published by State Bar Council is null and void, appointment of retired Judge to conduct election, and permanent injunction restraining State Bar Council from proceeding with electoral process. Order passed by single Judge appointing Justice K.P. Sivasubramaniam (Retd.) as Commissioner to oversee and monitor election process. Directions issued by Commissioner regarding printing of ballot papers, transportation of ballot papers, conduct of elections, involvement of judicial officers, transportation of polled boxes, etc. Reports of Special Poll Observers appointed for Nagercoil and Padmanabapuram polling stations submitted, indicating irregularities and violations of election rules. Single Judge invalidated votes polled at Nagercoil and Padmanabapuram under Rule 25(2) of Bar Council of Tamil Nadu Election Rules.
Finding of the Court:
1. Suit maintainable despite non-compliance with Order 1 Rule 8 CPC due to waiver by advocates who participated in election in pursuance of Court order dated 12.01.2011. 2. Impleadment of all candidates not necessary in view of waiver of all parties who participated in election. 3. Invalidation of votes at Nagercoil and Padmanabapuram justified due to violation of Bar Council of Tamil Nadu Election Rules and instructions of Judge Commissioner. 4. Reports of Special Poll Observers reliable and sufficient to establish irregularities and violations. 5. Opportunity of hearing not necessary in extreme circumstances where election process was vitiated by rampant violations. 6. Court has jurisdiction to monitor election process and pass interlocutory orders under Section 151 CPC and Section 94(e) CPC. 7. Re-polling not feasible due to prejudice to elected candidates and Bar Council, and balance of convenience.
Issues: 1. Maintainability of suit filed by Association under Order 1 Rule 8 CPC without obtaining prior permission of Court. 2. Necessity of impleading all candidates in suit. 3. Validity of order invalidating votes polled at Nagercoil and Padmanabapuram under Rule 25(2) of Bar Council of Tamil Nadu Election Rules. 4. Reliability of reports of Special Poll Observers. 5. Applicability of principles of natural justice and necessity of providing opportunity of hearing before invalidating votes. 6. Jurisdiction of Court to monitor election process and pass interlocutory orders. 7. Feasibility of re-polling in light of irregularities and violations.
Ratio Decidendi: 1. Non-compliance with Order 1 Rule 8 CPC can be waived by acquiescence and participation of parties in election process. 2. Impleadment of all candidates not necessary where all parties have waived their right to object and participated in election. 3. Invalidation of votes under Rule 25(2) of Bar Council of Tamil Nadu Election Rules justified where there is clear evidence of tampering and violation of election rules. 4. Reports of Special Poll Observers appointed by Court are reliable and sufficient to establish irregularities and violations. 5. Principles of natural justice and opportunity of hearing may not be strictly applicable in extreme circumstances where election process is vitiated by rampant violations. 6. Court has jurisdiction to monitor election process and pass interlocutory orders under Section 151 CPC and Section 94(e) CPC to ensure free and fair elections. 7. Re-polling not feasible where irregularities and violations have already occurred and would cause prejudice to elected candidates and Bar Council.
Final Decision: Appeal dismissed. Order of single Judge invalidating votes polled at Nagercoil and Padmanabapuram upheld.
V. PERIYA KARUPPIAH.,J
1. Theappeal in O.S.A.No.88 of 2011 is preferred by the applicant in A.No.1600 of 2011 in C.S.No.7 of 2011 against the order of the learned single Judge dated 21.03.2011 in negativating the claim of the petitioner to recall the Order dated 8.3.2011 invalidating all the votes polled at District Court Campus at Nagercoil and Padmanabapuram and direct the Judge-Commissioner to count the votes polled at District Court campus at Nagercoil and Padmanabapuram.
2. Theappellant in O.S.A.No.98 of 2011 is the third party and a contesting candidate belonging to the said Bar who was permitted by us to prefer the Appeal against the order passed by the learned single Judge.
3. The appeal in O.S.A.No.98 of 2011 is directed against the order passed by the learned single Judge in A.No.78 of 2011 in C.S.No.7 of 2011 dated 8.3.2011 in invalidating the entire votes polled in the ballet box of Padmanabapuram Bar Election invoking Rule 25(2) of Bar Council of Tamil Nadu Rules.
4. Thelearned counsel for the appellant in O.S.A.No.88 of 2011 would submit in his argument that the first respondent/plaintiff has filed the suit with four prayers, but they have been granted by virtue of an order passed by the learned single Judge on 08.03.2011 itself and if it is permitted it will bring chaos and therefore, the appellant has filed an application before the learned single Judge for recalling the orders passed on 08.03.2011, but the same was dismissed by the learned single Judge without any reasons. He would further submit in his argument that the suit has been filed for declaration, permanent injunction and for other reliefs and when all the reliefs enumerated from 1 to 3 have become infructuous, how the suit is proceeded further by appointing a Commissioner to conduct the election of the Bar Council which is ought to have been granted only after recording evidence and the learned single Judge who is to follow Civil Procedure Code has assumed jurisdiction and had appointed the Commissioner. He would further submit in his argument that disputes could be raised only by the voters and they can only file a suit for conducting any election and the suit filed by the Association will not sustain and the suit itself would go. He would also draw our attention to Rule 8 of Bar Council of India. He would further submit in his argument that Section 20 of the Societies Registration Act is a bar for filing a suit by the Society. The plaintiff cannot claim as a juristic person and Sections 20 to 22 of Tamil Nadu Societies Registration Act will prohibit the plaintiff from filing any suit. He would also draw the attention of the Court to a judgment of the Honble Apex Court reported in (2003) 8 SCC 413 in between "Illachi Devi (dead) by Lrs., and others ..vs.. Jain Society, Protection of Orphans India and Others" for the said principle. He would further submit in his argument that the order passed by the learned single Judge on 08.03.2011 was in a wrong suit and such an order is not sustainable when the suit itself is not maintainable. He would further submit in his argument that the suit is of representative character and therefore a permission should have been sought for by the plaintiff under Order 1 Rule 8 CPC so as to maintain the suit, but such a permission was not obtained by the plaintiff and on that aspect also the suit is not maintainable. He would further submit in his argument that order of the learned single Judge dated 08.03.2011, in passing directions to Commissioner to conduct the elections and based upon the said elections, passing order without giving notice to the persons concerned in invalidating the votes more than 1000 at Nagercoil and 200 at Padmanabapuram, is in total violation of the principles of natural justice. He would further submit that the learned single Judge cannot pass such an order in an interlocutory stage when it is especially a Civil Suit. The assumption of the jurisdiction in a Civil Suit cannot be po
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