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Judgment
S.S. Subramani, J.—In the Second Appeal, plaintiffs in OS.330 of 1991, on the file of Sub Court, Trichy, are the appellants. Suit filed by them was to declare that the election conducted on 11.11.1990 for the election of Executive Committee Members of ninth defendant-Society, is illegal unconstitutional and ultra vires and for consequential permanent injunction restraining defendants 1 to 8 from functioning as Executive Committee and also as ordinary members of ninth defendant-Society, (ii) for declaring that the amended bye-laws dated 25.9.1989 of 9th defendant-Society as unconstitutional and ultra vires and are against the provisions of the Tamil Nadu Societies Registration Act, 1975 and the Rules and Regulations framed thereunder, and consequently for a permanent injunction restraining the defendants from giving effect to the amended bye-laws of the 9th defendant-Society, dated 25.9.1989; (iii) for declaring that all the resolutions passed by the Executive Committee and the General Body of the 9th defendant-Society which run repugnant to the resolution dated 29.7.1990 passed in the General Body meeting as unconstitutional and ultra vires as they were passed against various provisions of the Tamil Nadu Societies Registration Act, 1975 and the Rules and Regulations framed thereunder and the bye-laws of the 9th defendant-Society, (iv) for a mandatory injunction directing 9th defendant-Society to admit all the eligible candidates as Members of 9th defendant-Society on payment of prescribed fees and as per the original bye-laws of the Society, conduct fresh election for electing the Executive Members of 9th defendant-Society, (v) order appointing an impartial and eligible candidate as Receiver or Special Officer to take charge of the 9th defendant-Society for the purpose of admitting the eligible candidates as members of 9th defendant-Society and conduct an Election for the Executive Committee Membership; (vi) for directing the defendants to pay plaintiffs the cost of suit; and (vii) also for passing other reliefs that are necessary.
Material averments may be summarised thus:- 9th defendant is a Society registered under the Societies Registration Act. Plaintiffs 6 to 8 are members of the Society, and plaintiffs 1 to 5 applied for membership of the Society as per Resolution passed by the Society in its General Body Meeting held on 29.7.1990. Reason for filing the suit was that a news item was published in a Tamil Daily dated 23.8.1990 that admission of new members had been kept in abeyance. It is stated in the plaint that as per Bye-laws of the Society, new members have been admitted and fresh election was conducted, and taking into consideration the said provision, in the general body meeting held on 29.7.1990, a resolution was passed inviting applications who intended to become members of the Society and to submit their application in the prescribed form to the President. It is also provided therein that the selected candidate will have to pay an admission fee of Rs. 250/- and get receipt for the amount. Selected members were to pay the said amount in person. It is also said that after admitting new members, a general body meeting will be constituted on 23.9.1990 adding the newly selected members of the Society to take a decision on the election of the Executive Committee members of the Society. It is said that a copy of the Resolution was communicated to the District Registrar. It is further said that the Executive Committee cannot thereafter take a decision contrary to the decision taken by the general body. One Natarasan submitted a petition on 22.8.1990, on the file of District Registrar, Ariyalur, apprehending that defendants 1 to 8, who are the Executive Committee Members of the Society would deviate from the resolution passed in the General Body Meeting on 29.7.1990, and he wanted the District Registrar to take appropriate action against the Members of the Executive Committee. His apprehension became true and on 23.8.1990, a notice was also published in a Tamil daily that the process of admission of new members to the 9th defendant-Society is kept in abeyance as more than half of the members of 9th defendant-Society had requested the Executive Committee of the Society to stop the admission of new members as the same has to be discussed and decided in the Special General Body Meeting on 23.9.1990. It was thereafter various persons filed applications to become members. The same Natarasan filed another application on 3.9.1990, on the file of District Registrar, Ariyalur, requesting him to do the needful in the matter. The District Registrar, Ariyalur, directed the Executive Committee Members of the 9th defendant-Society to act according to the Resolution dated 29.7.1990 and send a copy of the action taken by them to" him. The Executive Committee members instead of obeying the Order, passed another resolution dated 23.9.1990, resolving that the existing 144 members alone are the members of the Society and any vacancy that arose due to the death, removal or resignation of a member would be filled by way of appointment. According to plaintiffs, the said resolution is bad and goes against the bylaws of the Society. From paragraph 12 onwards, the plaint alleges various acts by the Executive Members which are against the bye-laws and the election held on the basis of amended bye-laws is sought to be declared as invalid.
A detailed written statement was filed by defendants 1, 3, 4, 9 and 10 disputing the right of plaintiff and also contesting the locus standi of plaintiffs 1 to 5. It is contended that plaintiffs 1 to 5 are not members of the Society and, therefore, they cannot challenge the proceedings of the Society, nor can any election be declared invalid at their instance. In the written statement, it is admitted that there was a general body meeting on 29.7.1990 in which a decision was taken, inviting applications to admit members. It is said that thereafter more than 75 members moved a representation before the Executive Committee that the same will have to be reconsidered, and it was for that reason, it was decided to stay further proceedings regarding admission of new members. Thereafter it was decided to hold a general body meeting, in which it was decided not to admit new members as decided in the earlier general body meeting But it was decided that no new members need be admitted, and the only 145 members will continue as members of the general body. It was further decided that in case any vacancy arises due to death or resignation, persons will be nominated or appointed in their place. On the basis of the subsequent resolution, election was declared and election was also held. There is no cause for the plaintiffs to be aggrieved since everything was done in accordance with law.
On the basis of the above pleadings, the trial Court took oral and documentary evidence and came to the conclusion that the general body meeting held on 29.7.1990 is valid and without admitting new members, no fresh election can be had. It is also found that proceedings initiated by the Executive Committee members, i.e., defendants 1 to 8 staying enrolment of membership is invalid. It was also found that the requisition given by 75 members is not valid and the same was created. It was also found that the subsequent general body meeting alleged to have been held on 23.9.1990 is also invalid since no notification was given to any person and the amendment to the bye-laws was also not a subject matter in the Agenda. It, therefore, declared that all proceedings taken by defendants 1 to 8 to invalidate the general body meeting held on 29.7.1990 is without authority and invalid. A declaration was granted that the second election held on 11.11.1990 is also invalid, since the same was conducted without admitting new members or without following the procedure. A declaration was granted by the trial Court as prayed for.
So far as the mandatory relief sought for in the plaint is concerned, i.e., admitting new members, the trial Court did not grant any relief since it held that it is for the general body to decide whether a person is to be admitted as a member, depending upon his qualifications. So, that relief was refused. With this modification, the suit was decreed by the trial Court.
The matter was taken on appeal by defendants 1 to 10 as A.S. No. 139 of 1993, on the file of District Judge, Tiruchirappalli. Plaintiffs also filed a cross-appeal against that portion of the decree which refused the relief of mandatory injunction. The lower Appellate Court also confirmed the finding of the trial Court that the Executive Committee cannot go beyond the decision of the general body meeting dated 29.7.1990 and without admitting new members, election cannot be had. It also came to the conclusion that the alleged request of 75 members evidenced by Ex.B-1 is not valid. It held that there is an interpolation in Ex.B-1 and the contention of defendants that the admission of new members is suspended on the basis of their requisition, cannot be accepted. It was further found that the general body meeting alleged to have been held on 23.9.1990 is invalid, since no notice was given to the members, and the amendment of bye-laws was not a matter in the agenda for being discussed, and that is also invalid. After holding so, the lower Appellate Court came to the conclusion that since the Executive Committee cannot function beyond three years, the election must be held to be valid, and, therefore, the declaration granted by the trial Court was set aside. The appeal was allowed with the modification. It is the said decision of the lower Appellate Court that is challenged-in this Second Appeal by plaintiffs, on the following substantial questions of laws:-
"1) Can the learned Principal Judge hold that the election was properly conducted after 29.7.90 which goes against the resolutions passed by the General Body Meeting are illegal
2) Can the learned Principal District Judge hold that the election was properly conducted after finding that the reason for not admitting the new members, i.e., Ex.B-2 is proved to be bogus?
3) Can the learned Principal District Judge hold that the election was rightly conducted after holding that the resolutions passed on 23.9.90 restricting the number of members to a fixed number called 144 is erroneous or illegal?
4) Whether the learned Principal District Judge, Trichy has considered Rule 6 of the Tamil Nadu Societies Registration Rules, 1978 and Bye-law No. 10 of the 9th respondent - Society marked as Ex.A-2 before holding that the appellants 1 to 5 herein have got no locus standi to file suit?
5) Whether the learned Principal District Judge is correct in holding that the Civil Court has no jurisdiction to go into the question of validity of the election and other aspects of the Society contrary to the decisions cited in the appeal memorandum?"
According to me, all these questions can be decided together. Both the Courts below have concurrently found that there was a decision taken in the general body meeting held on 29.7.1990 to hold the election after new members are admitted. The validity of that meeting and the decision taken therein, are not challenged by either side. In fact, as per the bye-laws of the Society, admission of new members is necessary before any election is conducted.
There are 144 members in the general body. It is the case of the respondents that as per Ex.B-1, a request was made by 75 members to suspend the enrolment of new members due to some misunderstanding. A requisition was made to the Executive Committee represented by defendants 1 to 8, and on that basis, enrolment of new members was suspended even though by that time more than 160 applications had already been filed for the said purpose, and plaintiffs 1 to 5 are some of the applicants.
It is the case of the respondents that thereafter another general body meeting was held on 23.9.1990 whereby an amendment of the bye-laws was brought forward and passed. By virtue of the said amendment, a general body was confined only to the original 144 members, and it was further decided that no new members need be included and in case any vacancy arises on account of death or resignation, that vacancy will be filled'' by nomination or appointment. Both the Courts below have held that this decision to amend the bye-laws pursuant to ExB-1 is also invalid, since the same cannot go against the original bye-laws. It is also found by the Courts below that for taking such a decision on 23.9.1990, no notice was given to the members, and it was also not part of the agenda for discussion. Once it has been found that the decision dated 23.9.1990 regarding the amendment of the bye-laws is invalid and the requisition Ex.B-1 is also fraudulent, naturally, the only surviving resolution that was passed is dated 29.7.1990. The genuineness of that resolution is not disputed by anyone. That is also in accordance with the bye-laws of the Society. It, therefore, follows that the decision of the lower Appellate Court that the election subsequently held on 11.11.1990 on the basis of the amended bye-laws is only to be declared as invalid. The reasoning of the lower Appellate Court that election had to be held on the expiry of the period and, therefore, it has been validly held, cannot be accepted. Election must be in accordance with procedure and according to bye-laws. The general body meeting held on 29.7.1990 had declared that after the new enrolment of members, a further general body meeting will be held to decide the case regarding election to the Executive Committee. So long as that resolution stands and when it is found that the subsequent acts of defendants 1 to 9 are invalid, it goes without saying that the finding of the lower Appellate Court regarding election is only to be set aside, and I hold so. The decision of the trial Court in that regard has to be restored.
Regarding substantial question of law No. 4, I do not think that it has got any relevance as on date when it is found that all decisions taken contrary to the resolution passed in the general body meeting held on 29.7.1990 are invalid. Naturally, it follows that the applications of plaintiffs 1 to 5 to become members of the society, are pending consideration by the Society. The question of their locus standi to file the suit also cannot be doubted. According to bye-laws, residents of the locality are entitled to become members of the Society It is that right that has been negatived by virtue of the Amendment to the bylaws dated 23.9.1990. That apart, plaintiffs 6 to 8 have also joined together to take up their cause, to get a declaration that new members are entitled to be admitted to the Society. According to me, the question No. 4 also will have to be decided in favour of the appellants.
According to me, question No. 5 also will have to be decided only in favour of the plaintiffs. It is only the question of the validity of the election that is decided, since the election is consequent to certain meetings of the Society. The validity of the meeting dated 23.9.1990 and the fraudulent nature of Ex.B-1 and B-2 are the main issues to be decided, and the election which is consequent to the invalid act is not at all material to be considered, once it is found that the resolution dated 29.7.1990 stands, and the same has not been modified and the bye-laws are also not amended, naturally even without deciding the validity of the election, the same result follows. Therefore, I hold that question of law No. 5 also will have to be decided in favour of the appellants.
Even though I have decided all these questions in favour of the appellants, it must be mentioned that certain developments have taken place pending suit and they should also be taken into consideration. After the suit was decreed in part, a Temporary Committee was appointed, and it is in management. Before the lower Appellate Court, defendants 1 to 9 wanted stay of implementation of the decree. That was granted for a stipulated period. Against that Order, appellants themselves preferred a Civil Revision Petition before this Court and got the Order stayed. In the meanwhile, defendants 1 to 9 filed an appeal before the lower Appellate Court and moved for an interim order. The same was not granted. Temporary Committee which assumed management, continued till the disposal of the first appeal. After the decision of the lower Appellate Court, along with the filing of the Second Appeal, a C.M.P. was filed to stay the implementation of the decree passed by the lower Appellate Court, and it was further prayed that the right of the Executive Members should not be interfered with by defendants 1 to 9 during the pendency of the Second Appeal. A learned Judge of this Court passed an interim Order. Thereafter, the respondents-defendants 1 to 9 filed an application to vacate the interim order. At that time, a detailed Order was passed by Swamidurai, J. on 7.12.1993, granting injunction restraining respondents 1 to 8 from disturbing the peaceful management of the 9th respondent-Society as Executive Committee and the Executive Members of the 9th respondent-Society, pending disposal of the Appeal. Learned Judge also directed for the appointment of a Receiver to consider the question of admitting new members and thereafter to hold an election. After the Order was passed, a Review Application was filed as Review Application No. 10 of 1994 and an application for stay was also moved. Receiver was not appointed, and the Executive Committee temporarily selected, continues in office. In view of my above findings, and also in view of the fact that after 1993 there is no elected body to manage the Society, it is only proper that a fresh election is conducted. As held by the trial Court, admission of new members is necessary, and accordingly, after admitting the eligible members, a fresh election will be conducted. For the limited purpose of holding an election according to bye-laws after admitting eligible new members, I remit the matter to the trial Court. The trial Court will appoint an Advocate Commissioner to hold the election to the 9th respondent-Society. The Advocate-Commissioner will enrol new members to the Society in accordance with the Constitution of the Society and thereafter prepare the voters'' list, and election will be conducted thereafter in accordance with the fresh list of members. After the election is held, the matter will be reported to the trial Court, which shall declare the duly elected office-bearers thereafter.
In the result, the Second Appeal is allowed, as indicated above, and the matter is remitted to the trial Court. Parties are directed to appear before the trial Court on 26.10.1998. After the election is conducted by the Advocate-Commissioner as directed above, and after the trial Court declares the duly elected Office-bearers, the newly elected office-bearers shall assume charge. The present Committee will continue in office till the new Committee assumes charge, and the Committee shall have all the powers of an Executive Committee. I direct the trial Court to complete the election process within a period of one month from the date of receipt of a copy of this Judgment and also the records from this Court, and report compliance of the above direction to this Court. No costs. Connected C.M.Ps, are closed.
W.P. No. 17855 of 1997: The 9th defendant-Society is running a Higher Secondary School, and Writ Petitioner herein is the Headmaster of the School. After the suit was partially decreed, and when the Management was taken over by the Committee, it found various acts and omissions by the Headmaster, which resulted in issuance of show-cause notice and also in passing an order of suspension, dated 28.05.1994, and after giving a reasonable opportunity, petitioner herein was dismissed from service on 29.07.1994. The same is challenged in this Writ Petition.
Between 1994 and 1997, certain events happened which require narration in this case. After final order of dismissal was passed, it had to be ratified by the Authorities under the Education Act. The matter was placed before the District Educational Officer. He refused permission. The Executive Committee preferred an appeal before the 2nd respondent. Second respondent also dismissed the appeal. Main reason for dismissing the Appeal was that there is an interse dispute between the members of the Management and so long as there is no validly constituted Executive Committee, disciplinary proceedings initiated against the petitioner cannot be validated. Against the dismissal of the appeal, the Committee filed an Appeal, viz., C.M.A. No. 1 of 1995, before the Education Tribunal, i.e., Principal Subordinate Court, Tiruchirappalli. When that Appeal was entertained by the Subordinate Judge, petitioner challenged the same in Writ Petition No. 13404 of 1995 on the ground that an appeal before the Tribunal is not maintainable, and it has no jurisdiction to decide the same. A learned Judge of this Court dismissed the Writ Petition. The matter was taken in Writ Appeal No. 1141 of 1995. A Division Bench of this Court set aside the Order of the learned single Judge and held that appeal before the Tribunal can only be by a teacher or staff, and the Management is not entitled to file an appeal. It was further held by the Division Bench that the Management is entitled to file only a Revision before the Government. With liberty to move a Revision, C.M.A. No. 1 of 1995 filed before Tribunal was held to be incompetent. The Writ Appeal was allowed.
Thereafter, the Management filed a Revision before the 1st respondent. The petitioner herein also filed his objections regarding maintainability of the Revision and he also placed written argument before the Authority. By the impugned Order, the revisional authority held that the entire matter requires re-consideration and refusal to ratify the action of the Executive Committee on a technical ground is not proper. The entire matter was left open to be decided afresh by the third respondent herein, i.e., the District Educational Officer. It is that Order of remand that is challenged in this Writ Petition.
A detailed counter affidavit has been filed by 4th respondent, justifying the action of the Government in remanding the matter. The main contention that is taken is that the Committee which has been formed immediately after the trial Court judgment is competent to take disciplinary action, especially in view of the interim Order passed in the Second Appeal. Contention had been taken on merits in that case.
After having learned counsel for all the parties, I feel that the direction given by the Government for a reconsideration of the entire matter, is proper. When serious allegations have been made against the petitioner, like mismanagement, misappropriation, etc., the same require proper consideration. There is no elected Executive Committee may not be a reason for not ratifying the action by the Committee, if the allegations made against the Headmaster are found to be true. The School Committee having been allowed to function by the interim orders of this Court, naturally, it must be vested with all powers. I do not think that the action taken against the Headmaster was improper. How far on evidence the dismissal is valid, is a matter which the third respondent herein will have to consider. Taking into consideration the above facts, I do not think that any relief could be granted to the petitioner herein. I further direct the third respondent to take up the case after two months. I am giving the above direction only because I have directed the trial Court to complete the election process within a short time, so that the elected body also can take part in the proceedings, or if the newly elected body feels that action need not be taken against the Headmaster, or that they want to proceed with the action taken by the present School Committee, the D.E.O. may proceed to have hearing of their views also. As on date, the reasoning given by the first respondent does not require interference. W.P. No. 17855 of 1997 is, therefore, dismissed, with the above observation. No costs. Connected W.MPs. are closed.
W.P. No. 9355 of 1998: This Writ Petition is by a Member of the Society, challenging the action of the second respondent, who is the Joint Director of School Education. When this Writ Petition came up for admission, I directed the Second Appeal as well as the other Writ Petition (W.P. 17855 of 1997) to be posted along with this Writ Petition. After hearing the petitioner in this Writ Petition, I feel that decision in this Writ Petition will have to wait till election to the Society is held. Once the election is held and new office-bearers assume office, the very purpose of filing this Writ Petition may not be there, and the Writ Petition itself may become infructuous. Why I am taking that view is, that the Joint Director of School Education is said to have taken a view that a Special Officer will have'' to be appointed u/s 53-A of the Tamil Nadu Private Schools (Regulation) Act. But, instead of a Special Officer, he has appointed the Chief Educational Officer, who in turn has recognised a Committee presided over by one Gandhi Mudaliar. According to me, the appointment of a Special Officer or the C.E.O. or a Committee, may not arise, once the election is properly held as directed by me in the above Second Appeal. Therefore, I am adjourning this Writ Petition by three months. Post this Writ Petition viz. W.P. No. 9355 of 1998 after three months.