M. Asokan vs The District Registrar (Societies) and Others

T.S. Sivagnanam, J.—Heard Mr. D. Parisuthanathan, learned counsel for the petitioner, Mr. Rajarajan, learned Government Advocate appearing for the first respondent, Mr. Subash Babu, learned counsel appearing for the second respondent and Mr. M. Vallinayagam, learned senior counsel, assisted by Mr. J. Anandkumar, learned counsel appearing for the respondents 3 & 4 and with the consent of the learned counsels, the writ petition itself is taken up for disposal.

The writ petition has been filed by the petitioner to direct the respondents 1 & 2 to consider his representation, dated 18.04.2015 and to take appropriate action against the respondents 3 & 4. The petitioner alleged that the respondents 3 & 4 while functioning as the President and Secretary of the Pudukkottai Bar Association respectively have committed certain malpractices. The sum and substance of the allegations in the writ petition is that the respondents 3 & 4 convened General Body meeting on 01.04.2015 and unilaterally recorded seven resolutions including the resolutions pertaining to the conduct of election for the Office bearers of the Bar Association for the year 2015-2016. Further the petitioner alleged that there is gross violation of the byelaws, more particularly byelaw Nos. 2(i) and 2(ii). It is further stated that the 3rd and 4th respondents convened General Body meeting on 18.04.2015 and cancelled the 5th, 6th and 7th resolutions which were adopted in the earlier meeting dated 01.04.2015 and it is stated that this is against the resolution No. 423 of 2014 of the Tamil Nadu Bar Council. Apart from these averments, the learned counsel for the petitioner submits that there are several grounds on which the petitioner would be able to establish that the entire election process is vitiated.

At the time when the writ petition was entertained, this Court, by order dated 24.04.2015, permitted the election to go on as scheduled and the publication of the results alone was directed to be kept in abeyance till 11.06.2015. The respondents 3 & 4 had entered appearance and filed their counter affidavit and prayed for vacating the interim order. Earlier, the respondents 3 & 4 filed an appeal before the Hon''ble Division Bench of this Court in W.A. (MD). No. 458 of 2015 as against the interim order granted on 24.04.2015. The Hon''ble Division Bench, by order dated 30.04.2015, disposed of the writ appeal observing that the respondents 3 & 4/appellants could seek for modification or for any suitable direction from the learned Single Judge during vacation and held that the writ appeal is not maintainable and left it open to the respondents 3 & 4 to move vacation Court. Accordingly, the respondents 3 & 4 have moved the vacation Court and filed their vacate stay petition. This is how the matter is listed today before this Court.

The learned counsel appearing for the respondents 3 & 4 submitted that the writ petition itself is not maintainable as the election process has begun much prior to the filing of the writ petition and if at all the petitioner is aggrieved by the results of the election, his remedy lies only before the Civil Court. Apart from that, the counter affidavit filed by the respondents 3 & 4 denies all the allegations made by the petitioner in the affidavit filed in support of the writ petition. As per the counter affidavit filed by the respondents 3 & 4, the election process was commenced on 02.04.2015 and the election was over on 26.04.2015 and the ballot boxes are being maintained by the association.

After hearing the learned counsel for the parties, it was pointed out to the learned counsel for the petitioner that the petitioner is before a wrong forum. This Court expressed its view that if the petitioner is aggrieved by the election process, such as inclusion or exclusion of the electoral roll, filing of nominations etc., all of would fall within the ambit of an election dispute and the same could be raised at the conclusion of the election before the appropriate forum. The Pudukkottai Bar Association is stated to be a society registered under the provisions of the Tamil Nadu Societies Registration Act. In view of the settled legal position, if the petitioner has got any grievance, he has to approach the Civil Court for necessary relief and the writ petition is not the proper remedy. In fact, the counter affidavit filed by the 3rd and 4th respondents also raises such objection stating that for settling aside the election, the remedy available to the writ petitioner is to file a civil suit and not a writ petition.

At this stage, it would be beneficial to take note of the decision of the Hon''ble Supreme Court, the earliest of which being in the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, . The Hon''ble Supreme Court, pointed out that the law of elections in India does not contemplate that there should be two attacks on matters connected with the election petitions, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution and another after they have been completed by means of an election petition. It was further pointed out that any matter, which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any Court.

In Boddula Krishnaiah and another Vs. State Election Commissioner, A.P. and others, , the Hon''ble Supreme Court, while examining a controversy relating to the election to Grama Panchayat, held that once an election process has been set in motion, though the High Court may entertain or may have entertained a writ petition, it would not be justified in interfering with the election process giving direction to the Election Officer to stall the proceedings or to conduct the election process afresh, in particular when elections has already been held in which the voters were allegedly prevented from exercising their franchise. While observing that the High Court was not correct in law in giving direction not to declare the result of the election, the Supreme Court observed that the aggrieved party is free to seek remedy by way of an election petition as provided under the relevant statute.

The above legal principle would apply to all election matters, including the election which is called in question in this writ petition. Therefore, the writ petition has to be necessarily held to be not maintainable.

After knowing the views of this Court, the learned counsel for the petitioner fairly stated that the petitioner would be willing to approach the civil Court, but his only apprehension is that the suit may be indefinitely prolonged and if it is prolonged, then the purpose of the litigation itself would be lost. The apprehension of the learned counsel for the petitioner cannot be brushed aside as unreasonable. However, considering the fact that the election is to the Bar Association, this Court has no doubt in its mind that in the event a suit being filed challenging the election, the Court concerned will definitely give priority to the matter and it is not necessary for the petitioner have any apprehension that the matter will be indefinitely prolonged.

In the light of the above, the writ petition is rejected as not maintainable, leaving it open to the petitioner to approach the civil Court, if he is so advised. In the event of challenge, it is needless to state that the Court concerned should give priority for the disposal of the suit and all the parties to the litigation should extend their fullest cooperation for an early disposal.

Before parting, this Court is constrained to observe that the petitioner also belongs to the same Bar and practises in the Courts in Pudukkottai District. The respondents 3 & 4, though impleaded in their official capacities, are also practising Advocates in Pudukkotai District and members of Pudukkottai Bar Association. Therefore, the petitioner may give a serious thought to the issue as to whether the issue requires to be brought to challenge before a civil Court. Of-course, this is only an observation and not a binding direction on the petitioner. This Court has taken liberty to say so in the light of the fact that the petitioner and the respondents 3 & 4 belong to the legal fraternity. Consequently, the interim order already granted is vacated and the connected miscellaneous petitions are closed. No costs.