IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.04.2011 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A.Nos.88 of 2011 and M.P.Nos.1 and 2 of 2011 and O.S.A.Nos.98 of 2011 and M.P.Nos.1,2 and 3 of 2011 S.Vetrivel .. Appellant in OSA.No.88 of 2011 Gini Manuel .. Appellant in OSA.No.98 of 2011/3rd Party Vs. 1. Tamil Nadu Advocates Association rep. By its Secretary M.Baskar 196, New Additional Law Chambers, High court Buildings, Chennai – 600 104 2. The Bar Council of Tamil Nadu rep. By its Secretary, High Court Campus, Chennai – 600 014. 3. The Bar Council of India, rep. By its Secretary, No.225, Okhla Industrial Area Phase III, New Delhi – 110 020. . Respondents in both the OSAs Appeals filed under Order XXXVI Rule 1 of O.S. Rules r/w clause 15 of the Letters Patent of Madras High Court Original side Rules against the orders made in Application No.1600 of 2011 and Application No.78 of 2011 respectively in C.S.No.7 of 2011. dated 21.03.2011 and dated 08.03.2011. https://hcservices.ecourts.gov.in/hcservices/ For Appellant in OSA.88/2011: Mr.V.Selvaraj For Appellant in OSA.98/2011: Mr.S.Conscious Ilango For Respondents in both the Appeals : Mr.S.Prabhakaran for Mr.W.M.Abdul Majeed for R1 Mr.S.Y.Masood for R2 Mr.K.Venkatakrishnan for R3. COMMON JUDGMENT V.PERIYA KARUPPIAH.,J The appeal 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. The appellant 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. The learned 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Hon'ble 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 possible to pass any orders without giving opportunity to parties concerned. He would further submit that the affected persons should have been impleaded in the suit and an opportunity to file Written Statement should have been given before passing any final order against the appellant and other aggrieved persons. The reports of the Returning Officer or the videographs cannot be a ground to invalidate the entire election held in Nagercoil as well as Padmanabapuram. He would also submit in his argument that a letter/complaint of a candidate, namely, Mr.Issac Mohanlal, was relied upon by the learned single Judge and the votes polled at Nagercoil have been declared as invalid, which is not sound. He would further submit in his argument that the invalidation of votes polled at Nagercoil and Padmanabapuram under Rule 25(2) of the Bar Council of Tamil Nadu Election Rules, 1975 cannot be held sustainable because the said Rule would relate to tampering of ballot boxes only. Even otherwise the said Rule should have been utilised only at the time of counting of votes and the Court is not empowered to pass such an order invalidating the votes, https://hcservices.ecourts.gov.in/hcservices/ which is the duty of the Presiding Officer. He would also submit in his argument that even otherwise the learned single Judge is not satisfied with the election conducted at Nagercoil and Padmanabapuram, the learned single Judge should have ordered for re- polling in respect of the aforesaid two booths and thereafter only, counting should have been ordered. He would further submit in his argument that total invalidation of votes itself would go to show that the rights of the voters of the said two booths are seriously affected. 5. Learned counsel for the appellant/third party in O.S.A.No.98 of 2011 would submit in his arguments that the appellant has contested the Bar Council Election and he was one of the candidates and his serial number is 111 and the suit filed by the plaintiff before the learned single Judge is not maintainable in view of Rule 35 of the Bar Council of Tamil Nadu Election Rules and a voter alone can file a suit for the conduct of a fair election. He would further submit that the present dispute cannot be raised by the plaintiff before the election is completed and it is for the Election Tribunal to look into the matters and even if the suit is maintainable, all the contesting candidates should be impleaded and in the absence of candidates, any order passed by the Court is not maintainable. He would further submit that the order passed on 8.3.2011 by the learned single Judge is not sustainable in law. He would further submit that the election process held at Padmanabapuram Bar Association was not tainted with any illegality and therefore, the invalidation of votes polled at Padmanabapuram is absolutely not sustainable. He would further submit that the learned single Judge has no jurisdiction to assume the powers of Election Tribunal and to invalidate the votes polled at Padmanabapuram. He would submit that the alleged observers of the Poll are not the authorised persons and therefore, their report cannot be looked into. Even otherwise their report would go to show that there were no illegal activities taken place at Padmanapuram Bar Association during the process of Election of Bar Council and those reasons stated by the Observers are not sufficient to invoke Rule 35(2) of the Bar Council of Tamil Nadu Election Rules. He would further submit that the denial of votes would deprive the members from electing their own members. The learned single Judge ought to have waited for recording of oral evidence for the purpose of invalidating the votes and it cannot act on the report of the alleged Observers. He would also submit that all the votes should have been counted for the purpose of finding the intention of the voters, but the votes polled at Padmanabapuram Bar Association have been invalidated without any just cause and therefore, the prospects of the appellant being elected was also lost. He would further submit that the non-showing of identity cards to the Observers is not at all the requirement and it must be shown to the Polling Officers only and except the said lacunae, no other flaw has been mentioned in the report of the Observers. He would https://hcservices.ecourts.gov.in/hcservices/ also bring it to the notice of this Court, the judgement of the Hon'ble Apex Court reported in (1984) 2 SCC 64 in between "Daulat Ram Chauhan ..vs.. Anand Sharma"; (2011) 1 SCC 503 in between "Joseph M.Puthussery ..vs.. T.S.John and others" and 1980 Supplementary SCC 53 in between "S.Raghbir Singh Gill ..vs.. S.Gurcharan Singh Tohra and others" in support of his arguments. He would also submit that the appellant is seriously affected by the order passed by the learned single Judge dated 8.3.2011. He would also submit that the learned single Judge could have ordered re-polling in Padmanabapuram Bar Association if he was actually convinced with the reasons mentioned in the reports of the Observers. Therefore, he would request the Court to set aside the order of invalidating the votes polled at Padmanabapuram Bar Association and to order re-polling and re-counting of the Bar Council Election and thus, the appeal in O.S.A.No.98 of 2011 may be allowed. 6. Mr.S.Prabhakaran learned counsel for the first respondent would submit in his arguments that the suit has been laid validly and it has been sustainable in law. He would further submit in his argument that the court has validly appointed the Commissioner to conduct the election of the Bar Council from 172 booths containing 63,000 lawyers and an order has been passed by the learned single Judge in accordance with the Bar Council Rules and all the proceedings are being circulated to the Presidents of the Bar Association, Advocate Associations of every District of the State as well as the Union Territory of Pondicherry and the President of Nagercoil as well as the President of Padmanabapuram have also been intimated about the order passed by the learned Single Judge dated 12.1.2011 and they did not file any appeal against the said order. He would further submit that the said order passed by the learned Single Judge has also been circulated to the members of every Bar Association and it cannot be said that the members of the Bar have been affected by the order of the learned Single Judge. He would also submit that the learned Single Judge has got every power under Section 151 C.P.C. to assume jurisdiction. The provisions of Section 94(e) of supplementary proceedings would empower the learned single Judge to pass interlocutory order in order to render justice. He would further submit in his arguments that the order passed by the learned Single Judge on 12.1.2011 was circulated to every member of the Bar and therefore, there is no necessity for seeking permission to file a suit under Order 1 Rule 8 C.P.C. If any person aggrieved can very well approach the Court for suitable orders. Accordingly, the appellants have approached the court for recalling the order and therefore, it cannot be contended that the suit itself is not maintainable. He would submit in his arguments that the invalidation of votes by the learned single Judge was promptly done, after seeing the illegalities in polling the votes at the booths in Nagercoil and Padmanabapuram. The illegality in polling the votes would be sufficient to invalidate the votes under Rule 25(2) of the Bar https://hcservices.ecourts.gov.in/hcservices/ Council of Tamil Nadu Election Rules. He would also submit in his argument that when an order has been passed by the learned single Judge on 12.1.2011 and in accordance with the said order, the appellant and others have complied with the conduct of elections, where the Court is monitoring the election and having participated in the election by the appellants and its members, they come forward with a plea that the suit is not maintainable and the order passed on 12.1.2011 is not sustainable, under the guise of the plea to set aside the order dated 8.3.2011. He would further submit in his argument that the entire election is being monitored by the court and the appellant even if aggrieved could have approached the learned single Judge for getting orders and the third party who is said to have been affected by the order passed by the learned single Judge can not approach the Appellate Court directly and they could have approached the learned single Judge for suitable orders. He would further submit in his arguments that the election process is almost over and at this stage, the request of the appellants cannot be acceded to. He would further submit that the order passed by the learned single Judge in invalidating the votes polled in Nagercoil as well as Padmanabapuram are promptly done in order to avoid furtherance of illegality and therefore, there is no reason to interfere with the order passed by the learned single Judge and he requests for the dismissal of the appeals. 7. Learned counsel appearing for the second respondent / Bar Council of Tamil Nadu, Mr.S.Y.Masood would submit in his arguments that the election process has been started in accordance with the directions issued by the learned single Judge and it was communicated to every Bar Associations and Advocate Associations having the list of candidates who are numbering 172 all over the State of TamilNadu and Pondicherry. He would further submit in his arguments that according to the direction of the learned single Judge dated 12.1.2011, the Commissioner has been appointed and according to the instructions given by the Commissioner who is a retired Judge of this Court, the nominations were received and they were perused and finalised and thereafter, the ballot papers were printed and since there was similarly named persons, for conducting the election, the photographs were ordered to be printed against the name of each candidate and therefore, the printing of ballot papers would cost more than Rs.15 lakhs. He would further submit in his arguments that the Special Observers were appointed by the Bar Council of Tamil Nadu for each and every booth to get the reports of prompt and perfect polling in each and every polling booths and accordingly, the Polling Officers from the local Bars were also appointed for the purpose of conducting elections and all these were done in accordance with the circulars along with the orders of the learned single Judge communicated to every Bar Associations and therefore, every members are deemed to have known about the orders of the learned single Judge and also election procedure as ordered by the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/ He would further submit in his argument that the local Special Observers appointed by the Bar Council of Tamil Nadu have been sent to every booth in advance and they have done their duty promptly and apart from that, videographs have been taken in every booth and the said system has been followed in every booth except the booths at Nagercoil and Pondicherry. He would further submit that expenditure was incurred for the special observers sent by the Bar council of Tamil Nadu during the conduct of election. He would further submit that the expenditure for Bar Council Election would be approximately Rs.50 lakhs which has to be ascertained to a correct figure. He would further submit in his argument that as per the directions of the learned single Judge, after invalidating the votes polled at Nagercoil and Pondicherry the counting has been completed and out of 172 candidates who have contested, 135 were eliminated and the candidates who have obtained the first votes have been declared elected and the remaining candidates totalling 25 persons have also been ascertained and therefore, the claim for re-polling or for passing status quo ante to the said order may not be possible and it would cause much inconvenience not only to the second respondent / Bar Council of Tamil Nadu, but also to every persons who have been elected. Moreover, he would submit in his arguments that the expenditure caused would be repeated once again and it would be impossible to conduct such election at the huge cost of Rs.15 lakhs once again. He would also submit in his arguments that the learned single Judge is empowered to pass interlocutory orders since the said orders passed by the learned single Judge dated 12.1.2011 streamlining the conduct of Bar Council Elections have been communicated to every Bar Association by the second respondent and they have kept quiet and now they have come to question the said order. He would also submit that the orders dated 12.1.2011 have not been questioned and it is not feasible for the appellants to come forward to question the basis of the order passed on 8.3.2011. The orders passed by the learned single Judge on 8.3.2011 invalidating the votes polled at Nagercoil and Padmanabapuram are perfectly in order since the large scale violation of Election Rules were inferred by the report submitted by the Poll Observers. He would further submit that the Special Poll Observers appointed for the Nagercoil namely Mr.L.Chandrakumar and Mr.V.Parthiban have submitted the report and on seeing the report it could be easily understood that the voters were not permitted to vote by the Polling Officer, but he simply obtained the signatures from the respective voters in the Ballot papers and the volunteers immediately took custody of the ballot papers from the Polling Officer and shoved the same into the ballot box. He would also submit in his argument that the voters were not given any chance even to look at the ballot papers and the same exercise continued and therefore, the marking of votes in the ballot papers were not freely exercised by the voters of Nagercoil Bar. He would also draw the attention of the court that the videographs were not done at the voting place, but it was turned outside and no video cassette has been submitted by the Polling Officer to the Bar Council https://hcservices.ecourts.gov.in/hcservices/ of Tamil Nadu. He would further submit that the report of the Special Observer at Nagercoil stating that the Advocates who are supposed to uphold the values of democratic exercise have reduced the same into a sad and sordid state travesty would go to show that the polling was not done properly at Nagercoil and even if re-polling is ordered, it would be so. Therefore, the learned single Judge has come to a correct conclusion that the Poll of voting at Nagercoil is not valid and the invocation of Rule 25(2) of the Bar Council of Tamil Nadu Election Rules is appropriate. He would also submit in his argument that the situation at Padmanabapuram is not less than the Nagercoil and it could be seen from the report of the Special Polling Observer sent for the Polling at Padmanabpuram booth namely Mr.K.Krishnamurthy and Mr.R.Gokulraj. He would also submit that the report of the Special Observer would go to show that the voters at Padmanabapuram Bar did not show the identity cards to them and the objection raised to the Polling Officer was not at all heeded. It is also mentioned in the report that the indelible ink has not been put to 30% of the voters who voted there. Such voters have turned again and have exercised the franchise for the second time also and double voting was also done in the said booth and therefore it cannot be considered that the voters who are to vote have voted in the said booths and it could not be ascertained the number of dual voting. He would further submit in his arguments that such a voting of dual vote voted by the members for the second time as well as the non-use of indelible ink would cause the entire poll at Padmanabapuram Bar a futile one. He would further submit that the learned single Judge has considered all these circumstances and had exercised Rules 20 and 25 (2) of the Bar Council of Tamil Nadu Election Rules and has come to the decision of invalidating the votes which was very much correct and therefore, there cannot be any prejudice caused to the appellants in both the appeals. He would further submit in his arguments that the election results have almost been reached to a final stage and 25 members have been elected and their names have been listed. In the mean time if any status quo ante is ordered or re-polling is ordered, it will certainly affect the entire other voters as well as the elected persons from out of the said Bar Council Election. Moreover, he would also draw the attention of the court that the huge expenditure incurred will have to be once again incurred by the Bar Counsel of Tamil Nadu. Therefore, the balance of convenience is also in favour of the second respondent and not in favour of the appellants. He would once again submit in his arguments that the appellants have kept quiet for a long period without questioning the order passed by the learned single Judge on 12.01.2011 and had obeyed the orders by receiving the circulars and participating in the election and this is not a Forum to agitate or to set aside the order passed by the learned single Judge in the present circumstances. Therefore, he would request the Court that both the appeals are to be dismissed and there may not be any interference of the order passed by the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/ 8. Heard, Mr.V.Selvaraj, learned counsel appearing for the appellant in O.S.A.No.88 of 2011, Mr.S.Conscious Ilango, learned counsel appearing for the appellant in O.S.A.No.98 of 2011, Mr.S.Prabhakaran, learned counsel appearing for the first respondent - Tamil Nadu Advocates Association, Mr.S.Y.Masood, learned counsel appearing for the second respondent - Bar Council of Tamil Nadu and Mr.K.Venkatakrishnan, learned counsel appearing for the third respondent - Bar Council of India. 9. 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 and by virtue of resolution No.77 of 2010 passed by the Bar Council of India, the term of office of the Bar Council of Tamil Nadu was extended for a period of six months with effect from 12.10.2010. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed resolutions fixing the date of election for the Bar Council of Tamil Nadu and Puducherry on 4.3.2011. By another resolution, special