IN THE HIGH COURT OF JUDICATURE AT MADRAS (APPELLATE JURISDICTION) WEDNESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND FIVE PRESENT THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE S.R.SINGHARAVELU O.S.A.Nos. 265 to 272 of 2003 Kallayan Pastorate rep. by its Secretary J.Yovel, Kallayam Post Trivandrum-695 043 ..Appellant in OSA.265/2003 Mannanthala Pastorate rep. by its President A.Albert, Accouthuvila Trivandrum ..Appellant in OSA.266/2003 Perumpuzhi Pastorate, rep. by its President, G.Manasai, St. Pauls Lurtheran Church, Perumpuzhi, Unnamalai Kadai Post Kanyakumari District-629 179 ..Appellant in OSA.267/2003 Kattudadai Pastorate, rep. by A.Gnanasigamani Palapallam-629 159 Kanyakumari District ..Appellant in OSA.268/2003 Melpuram Pastorate, rep. by its Secretary S.J.Rajmohan, Melpuram Pacode Post, Kanyakumari District ..Appellant in OSA.269/2003 Colachel Pastorate, rep. by its Secretary, T.M.Jayadhas, https://hcservices.ecourts.gov.in/hcservices/ Mundaikadu Post Kanyakumari District. ..Appellant in OSA.270/2003 P.James Sunderdoss, S/O Packianathan,President, Nagercoil Synod, Culvary Lurtheran Church Nagercoil, Kanyakumari District. ..Appellant in OSA.271/2003 Vazhuthalampallam Pastorate, rep. by its President, Gnanasigamani, 'Anbagam' Chemporvilai Post-629 804 Kanyakumari District. ..Appellant in OSA.272/2003 1.P.Jayasingh Peter Election Officer 56, Medavakkam Tank Road Kilpauk, Chennai-10 ..1st Respondent in all the Appeals. 2.Rev.P.Kailasam, S/O Pudugunathan 3.Mr.A.Girija Alfred 4.S.Rajagambiram 5.Rev.K.S.Davidson, Vice President, PELC, Luthern Church Main Road, Pangudi Post, Tirunelveli. 6.J.Gnanajothi General Treasurer, Luthern Mission Compound, K.P.Road, Nagercoil, K.K.District. 7.Rev. Giffon Jeshwa, Controller, Karneettathil Gandhipuram, Srikaryam Post, Trivandrum https://hcservices.ecourts.gov.in/hcservices/ Kerala 8.Rev.J.Sensai, Secretary, Luthern Church, Karivanhalla, Puthiyathirai, Trivandrum, Kerala 9.Rev.P.K.Paul Durai, Election Commissioner, Luthern Mission Compound, K.P.Road, Nagercoil-1. ..Respondents 2to4 in O.S.A. 265/03 impleaded as per order of this Court dated 7.10.2004 in C.M.P.Nos.14558 & 14559/04 Respondents 2to4 in O.S.A. 266/03 impleaded as per order of this Court dated 7.10.04 and made in C.M.P.14560 & 14561/04 2 to4 in O.S.A.267/03 impleaded as per order of this Courts dated 7.10.04 in C.M.P. Nos.14562 & 14563/03 Respondents 2 to 4 in O.S.A.268/03 impleaded as per order of this Court dated 7.10.04 and made in C.M.P.Nos.14564 and 14565/04 Respondents 2to4 in O.S.A.269/03 impleaded as per order of this Court dated 7.10.04 made in C.M.P.Nos.14566 & 14567/04 Respondents 2to4 in O.S.A.270/03 impleaded as per order of this Court dated 7.10.04 and made in C.M.P.Nos.14568 & 14569/04 Respondents 5 to9 impleaded in O.S.A.265/03 as per order of this Court dated 7.10.04 in C.M.P.15353/05 Respondents 2 to 4 impleaded as per order of this Court dated 7.10.2004 https://hcservices.ecourts.gov.in/hcservices/ made in CMP.Nos.14570 & 14571/04. Respondents 2 to 4 impleaded as per order of this Court dated 7.10.2004 and made in CMP.Nos.14572 and 14573/04. 10.Bharanidharan Election Officer, 25,Law Chamber, Chennai-600 104. 11.The Registrar, Chennai Central Nandanam, Chennai-18. 12.The Inspector General, of Registrar, Santhome, Chennai-600 028. ..Respondents 10 to 12 in O.S.A.No.265/03 impleaded as per order of this Court dated 8.11.04 in C.M.P.17564/04 13.A.Daniel ..R13 impleaded as per order of this Court dtd 8.11.04 and made in C.M.P.No.17587 of 2004 O.S Appeals under clause 15 of the Letter patent against the Order of the Honourable Mr. Justice A. Ramamurthi, dated 6.5.2003 and made in the exercise of the ordinary Original Civil Jurisdiction of the High court in Application Nos. 1312, 1316, 1311, 1313,1314,1317, 1318 and 1319 /02 respectively in C.S.No.674/97. ORDER:- The O.S. Appeals coming on for hearing on this day upon perusing the Grounds of Appeal, the order of the Honourable Mr. Justice A. Ramamurthi dated 06.05.2003 and made in the exercise of the Ordinary Original Civil Jurisdiction of the High Court in O.S Nos.1312, 1316, 1311, 1313, 1314, 1317, 1318, and 1319/02 respectively in C.S.No.674/1977 and all other papres material to this case, and the orderS of this court and upon hearing the arguments of Mr.Anand Venkatesh, Advocate for the Appellant in all the Appeals, and of Mr.Sathyanarayanan, interim Administrator, and of Mr.R.Subramanian, Advocate for the respondents and of Mr.R.Subramaniam for M/s.Hema Sampath, Advocate for Respondents and of Mr.M.S.Palanisami, Associate administrator the Court made the following Order: (ORDER of the Court was made by P.D.DINAKARAN,J.) https://hcservices.ecourts.gov.in/hcservices/ These appeals are posted today for reporting compliance of earlier directions given by this Court. 2. Heard learned counsel appearing for all the parties. 3. Before going into the issues on hand, we feel it better to have a cursory look over the history of the case, to understand the issues in a better manner. 4. This Court, by order dated 23.11.1999 made in Application Nos.688 and 689 of 1997, appointed R.Jayasingh Peter as Election Officer to conduct the election relating to three synods, viz., Nagercoil Synod, Trivandrum Synod and Ambur Synod. The Election Officer conducted election relating to Nagercoil Synod and Trivandrum Synod and declared the results and the elected Office Bearers also assumed the office. 5. Challenging the election on the ground of irregularities committed by the Election Officer, namely, ineligible congregations had been included and eligible congregations had been omitted in the voter list on the ill-advice of the General Treasurer Thiru Lazarus Bright, some of Pastorates filed Application Nos.1311 to 1319 of 2002 to set aside the election conducted by the Election Officer and for a direction to conduct a fresh election by permitting the respective applicant-pastorates to participate in the same. 6. A learned Single Judge of this Court, by order dated 6.5.2003, dismissed the applications on the ground that the election was conducted fairly and properly and the applications to set aside the election were filed only on flimsy grounds. Aggrieved by the above order of learned Single Judge, the above O.S.As. have been filed. 7. In the above appeals, a Division Bench of this Court appointed Mr.R.Bharanidharan, Advocate as Election Commissioner by order dated 9.9.2003 who has filed reports periodically. 8. When the appeals came up for hearing on 25.6.2004 for filing the report of Election Commissioner and for confirmation of election conducted to various officers of the Indian Evangelical Lutheran Church (for short, "IELC"), the Apex Body as well as its constituent units – three Synods, viz., Ambur Synod, Nagercoil synod and Trivandrum Synod, a Division Bench of this Court passed the following order: "Final report of the Election Commissioner dated 23.6.2004 is placed before us for confirmation. The Election Commissioner also reports that the elected office bearers have already got installed to their respective office, pursuant to which, they have to fill up the other constituent posts. Therefore, before passing a final order in the subject, we are of the considered opinion that all the constituent posts are to be filled up and https://hcservices.ecourts.gov.in/hcservices/ reported to us so that there would not be any constitutional flaw in filling up the posts under the constitution of each of the synod as well as the Apex Body of the IELC and also in determining their period. The Election Commissioner is directed to give suitable direction to all the three synod units as well as the Apex Body and after filling up such constituent posts, the appellant is directed to implead all of them as party to the proceedings. The above observations/directions are without prejudice to the rights of any aggrieved parties against the elected office bearers. Post for orders after three weeks." 9. Then, when the matter was posted for further orders on 21.7.2004, a serious doubt arose as to the very existence of the registration of Synods as well as the IELC Apex Body under the provisions of the Tamil Nadu Societies Registration Act, 1975 and authenticity of voters who had participated in the elections confirming the qualifications prescribed in the Constitution and Bye-laws registered with the Registrar of Societies and this Court passed the following order: "We have perused the final report of the Election Officer dated 23.6.2004 relating to the election to the post of office bearers of Trivandrum Synod as well as Nagercoil Synod and that of the Apex Body of the Indian Evangelical Lutheran Church (hereinafter referred to as the "IELC"). 2. According to the Election Officer, immediately after the conduct of election of three synods viz. Ambur Synod from 1.12.2003 to 4.12.2003, Nagercoil Synod from 3.5.2004 to 5.5.2004 and Trivandrum Synod from 29.4.2004 to 1.5.2004, as well as the Apex Body of the IELC on 7.6.2004, the results were declared and the respective office bearers got installed and started functioning for the respective term, viz. three years for Ambur Synod and the Apex Body of IELC and two years for Trivandrum and Nagercoil Synod, from the date of their election. 3.1. When the matter came up before us on 25.6.2004, after hearing the Election Officer as well as the learned counsel for the appellants, we passed the following order: '... Final report of the Election Commissioner dated 23.6.2004 is placed before us for confirmation. The Election Commissioner also reports that the elected office bearers have already got installed to their respective office, pursuant to which they have to fill up the other constituent posts. Therefore, before passing a final order in the subject, we are of the considered opinion that all the constituent posts are to be filled up and reported to us so that there would not be any constitutional flaw in filling up the posts under the constitution of each of the synod as well as the Apex Body of the IELC and also in determining their period. The Election Commissioner is directed to give suitable direction to all the https://hcservices.ecourts.gov.in/hcservices/ three synod units as well as the Apex Body and after filling up such constituent posts, the appellant is directed to implead all of them as party to the proceedings. The above observations/directions are without prejudice to the rights of any aggrieved parties against the elected office bearers. Post for orders after three weeks.' 3.2. In compliance with our directions dated 25.6.2004, it is reported by the Election Officer that all the constituent posts were duly filled up and the new incumbents have also taken charge of the respective post. 3.3. Rev.S.Rajagambeeram, Rev.K.S.Davidson, Rev.J.Sensar, Rev.Giften E.Joshua, J.Gnanajothy, and Rev.P.K. Pauldurai, representing the office of the Apex Body of IELC as President, Vice President, Secretary, Comptroller, Treasurer and Election Officer respectively have appeared before us today. 3.4. However, newly elected officers could not confirm whether the registration of the Apex Body of IELC under the provisions of the Societies Registration Act, 1860, continues to be in force under the provisions of the new Act, viz. Societies Registration Act, 1975, by periodical renewal, as contemplated under law, as in the absence of any such renewal, the Apex Body of IELC would itself become defunct. Consequently, the election conducted to the post of office bearers of IELC would become futile exercise and therefore, it may not be proper for this Court to approve the election of a defunct society, without regulating the registration, inasmuch as the office bearers of the Society also representing the IELC Trust Association, which is said to have been incorporated under the provisions of the Companies Act, as the Trust Association is managing vast properties both movable and immovable, apart from having established and administering several schools (elementary, middle, secondary and higher secondary) and also hospitals. 3.5. In that view of the matter, the elected members are directed to regulate the registration of the Synods as well as the Apex Body in the manner known to law and report the matter to this Court within eight weeks, to enable this Court to approve their election. 4. In the meanwhile, taking into consideration the work rendered by the Election Officer Mr.R. Baranidharan, in conducting the election to the post of Office bearers of Trivandrum and Nagercoil Synod, we direct the Central Business Office of the Apex Body to pay the following remuneration within a period of two weeks from today, (a) a sum of Rs.65,000/- payable to the Election Officer and Rs.15,000/- payable to the Assisting Officers, viz. Mr.G.Rm.Palaniappan and Mr.K. Magesh, at the rate of Rs.7,500/- each, for conducting election to the post of office bearers of Trivandrum Synod; and https://hcservices.ecourts.gov.in/hcservices/ (b) a sum of Rs.65,000/- payable to the Election Officer and Rs.15,000/- payable to the Assisting Officers, viz. Mr.G.Rm.Palaniappan and Mr.K. Magesh, at the rate of Rs.7,500/- each for conducting election to the post of office bearers of Nagercoil Synod. Post the appeals after eight weeks along with C.S.No.674 of 1997." 10. Accordingly, all the elected members were impleaded by order dated 7.10.2004 in C.M.P.No.1538 of 2004. The Inspector General of Registration was also impleaded as a party by order dated 8.11.2004 in C.M.P.No.17564 of 2004 in order to verify whether the IELC apex Body and the Synods exist on the roll of Registrar of Societies under the provisions of Tamil Nadu Societies Registration Act. 11. It was brought to the notice of the Court that IELC Apex Body as well as Synods, which were registered under the Societies Registration Act (Central Act XXI of 1860) with registration No.11 of 1959, became defunct and the same are not found on the roll of Registrar of Societies under the provisions of Tamil Nadu Societies Registration Act. Even though an impression was given to this Court as well as State and Central Governments and other Foreign donors that the IELC Apex Body as well as the synods are functioning as a society registered under the relevant Statute continuously and the Constitution and the By-laws of the Society are also duly registered with the Registrar of Societies, the same is admittedly not correct. 12. In the meantime, the candidates, who are unsuccessful in the election filed C.M.P.Nos.17565 to 17572 of 2004 to set aside the election on the ground that since the list of voters, who were permitted to vote in the election conducted by the Advocate Commissioner was not prepared in accordance with the provisions of the Constitution and the By-laws of the Society, for want of registration of the same with the Registrar of Societies as on date, and also on several grounds such as, the period of office of some of them continues and therefore, the election should not have been conducted. 13. This Court, in its order dated 22.12.2004, was of the opinion that there is no need to go into the above contentions of the petitioners in C.M.Ps. for the present, because all the parties, who appeared before this Court including the elected office bearers as well as the unsuccessful candidates, fairly conceded that the IELC Apex Body and three synods, which were registered as Societies bearing Registration No.11 of 1959 under the provisions of Societies Act (Central Act XXI of 1860) became defunct long ago and the provisions of the Constitution and the By-laws are not registered with the Registrar of Societies in accordance with the provisions of the Tamil Nadu Societies Registration Act 1975, as on the date. https://hcservices.ecourts.gov.in/hcservices/ `14. Moreover, taking the above facts into consideration, the Election Officer filed a report before this Court dated 22.12.2004, which reads as follows: IN THE HIGH COURT OF JUDICATURE AT MADRAS O.S.A.Nos.265 TO 272 OF 2003 Kullayam Pastorate rep.by its Secretary J. Yovel, Kallyam Post, Trivandrum & others ... Appellants -Vs- R.Bharanidharan, Advocate Election Officer, 25 Law Chanbers, High Court Buldings, Chennai – 600 104. ... Respondents REPORT FILED BY THE ADVOCATE-COMMISSIONER DATED 22/12/2004 - - - - '(1) This Hon'ble Court was pleased to appoint me as the election officer to conduct the elections to the Nagercoil and Trivandrum Synods, India Evangelical Lutheran Church by order dated 9.9.2003. This Hon'ble Court by further orders dated 31.3.2004, issued directions for conduct of the circle and synod elections to both the Nagercoil and Trivandrum Synods, approving the dates and the venue for conduct of the elections. (2) It is stated that the Elections to Ambur Synod was conducted from 1.12.2003 to 4.12.2003, the elections to Trivandrum Synod were conducted from 29.4.2004 to 1.5.2004 and the elections for Nagercoil Synod was conducted from 3.5.2004 to 5.5.2004. The Elections to the post of IELC, President was held on 6.6.2004. (3) It is stated that pursuant to directions of this Hon'ble Court, it was verified whether, the present List of Voters to all the three Synod Elections were duly registered with the Registrar of Societies. It is further stated that on verification, it was found that the IELC, which was claimed to be a registered society was not duly continued as registered society with the Registrar of Societies for the past 35 years and the members list was also not duly registered with the Registrar of Societies. (4) The above fact was not being brought to the notice of the Advocate-Commissioner/Election Officer, during the conduct of election, by either parties or the persons who were acting as Office bearers. In the abovesaid circumstances, it is humbly prayed that this Hon'ble Court may be pleased to record the above fact and pass such further or other orders as this Hon'ble Court deem fit and proper. https://hcservices.ecourts.gov.in/hcservices/ Dated at Chennai, on this 22nd day of December, 2004. sd/- ADVOCATE-COMMISSIONER 15. In the order dated 22.12.2004, this Court also found that a reading of the report of the Advocate/Commissioner dated 22.12.2004 clearly shows that the list of voters, members of the IELC Apex Body and the synods were not duly registered with the Registrar of Societies and in that event, the very conduct of the election as well as the result thereon became a nullity and lacked legal sanctity for want of compliance of the registration of the Constitution and the By-laws of the Societies with the Registrar of Societies. 16. Taking into consideration the report filed by the IELC stating that there are about 101 educational institutions, such as primary schools, elementary schools, middle schools, high schools and higher secondary schools, three hospitals with two nursing institutions and vast landed properties of an extent of 440 acres carrying on many social, religious and charitable activities having transactions with the aid of State and Central Government funds and foreign donations, this Court was of the considered opinion that since the IELC Apex Body as well as Synods became defunct for want of registration under the provisions of the Tamil Nadu Societies Registration Act, the above social, religious and charitable activities should not suffer, as it would otherwise affect the needy and innocent public. 17. This Court, finding it an absolute necessity to regulate the registration of the Apex Body as well as Synods in accordance with the provisions of the Tamil Nadu Societies Registration Act 1975 and also to regulate the entire affairs, administration and management of the Society in question, came to the conclusion that an interim arrangement is inevitable, as agreed by the learned counsel appearing on behalf of all the parties in the above appeals, namely, both the elected office bearers and the contested candidates. 18. Accordingly, a joint memo dated 22.12.2004 was filed by both elected Office bearers and contested candidates which reads as under:- "1) The operation of all accounts in Central Business Office, Nagercoil pertaining to IELC Apex Body and IELC Trust Association shall be operated by Rev.S.Rajagambeeram and Rev.C.Thankappan jointly who shall function as Interim Administrators, who alone shall represent the IELC Trust Association for any financial transactions. 2) All the legal matters touching upon the Churches and various institutions belonging to the Church shall be represented jointly by Rev.S.Rajagambeeram and Rev.C.Thankappan 3) The entire administration management and financial https://hcservices.ecourts.gov.in/hcservices/ affairs for Ambur Synod shall be controlled by Rev.Fredirick Prasad and Rev.A.Thangaraj as interim administrators, who shall exercise their control over the institutions within the jurisdiction jointly. 4) The administration management and financial affairs for Nagercoil Synod shall be controlled by Rev.Muthuraj and Rev.M.Wilson as interim administrators who shall exercise their control over the institutions within the jurisdiction jointly. 5) The administration, management and financial affairs of the Trivandrum Synod shall be controlled by Rev.Stephanose and Rev.Jeevaraj as interim administrators who shall exercise their control over the institutions within the jurisdiction jointly. 6) In so far as the appointment of correspondents to various Special Schools belonging to IELC (Deaf Schools and Blind School, etc.) which is a honorary post and which remains vacant, the appointment shall be made jointly by Rev.S.Rajakambeeram and Rev.C.Thangappan to avoid any dislocation in the management and administration of schools. 7) No other appointment shall be made during the period when the interim management is in control of the IELC Apex Body and the three synods, Ambur, Trivandrum and Nagercoil pending further orders of this Hon'ble Court. 8) The payment of salary, pension, P.F. Contribution and other retirement benefits to the Pastors and IELC workers and maintenance of Boarding schools shall be made by Rev.S.Rajakambeeram and Rev.C.Thangappan jointly. 9) The administration and management of all the hospitals functioning under IELC Apex Body shall be administered, managed and controlled by Rev.S.Rajakambeeram and Rev.C.Thangappan jointly. 10) The interim management made to the Apex Body and the three synods namely, Ambur, Trivandrum and Nagercoil is for a period of 3 months subject to further extension, modification, variation as deemed fit by this Hon'ble Court suo motu or on an application if it is so advised within which period the registration of the Society shall be regulated under the Societies Regn. Act. 11) Notwithstanding any order obtained or to be obtained from any subordinate Courts within the jurisdiction of India with reference to the matters touching administration, management and affairs of IELC Apex Body and three Synods, this interim arrangement prevail. 12) Any policy decision or financial transactions by the interim administrators for the Apex Body and three Synods shall be duly counter-signed by the Inspector General of Registration or the officer authorised by him among Additional I.G./Asst. I.G., Vigilance as the case may be pending regularisation of Registration of the IELC Apex Body and three Synods and not under https://hcservices.ecourts.gov.in/hcservices/ the provisions of the Act. 13) The above interim administrators for IELC Apex Body and three Synods shall file monthly reports in the above appeal on or before 7th of every succeeding month. 14) In case of difference of opinion between the administrators in matters relating to administration the same shall be referred to the Inspector General of Registration or any officer authorised by him, as stated above in Clause 12 for proper guidance." 19. In view of the above memo of interim arrangement dated 22.12.2004, this Court set aside all the elections to various offices in three Synods as well as IELC Apex Body and directed the respective interim Administrators to take charge of the IELC Apex Body as well as Synods. 20. This Court by order dated 22.12.2004 also directed the interim Administrators to regulate the continuity of registration of the IELC Apex Body and three Synods, namely, Ambur, Trivandrum and Nagercoil Synods by registering the Constitution and the By-laws with the Registrar of Societies in consonance with the provisions of the Tamil Nadu Societies Registration Act 1975 on or before 31.01.2005 and also to finalise the qualified members of the IELC Apex Body and the three Synods as well as the voters list as per the provisions of the Constitution and the By-laws of the IELC Apex Body and the respective three Synods registered with the Registrar of Societies as on 31.01.2005 and submit a final report to this Court duly countersigned by the Registrar of Societies or the authorities authorised by him among Additional I.G./Asst. I.G., Vigilance, as the case may be, on or before 28.02.2005. This Court accordingly directed the matter to be posted for further orders during second week of March, 2005. 21. The Special Leave Petition filed against the above-said order of this Court dated 22.12.2004 has also been dismissed by the Supreme Court by order dated 11.2.2005 in SLP(C) No.2197 of 2005. 22. In the meantime, one of the Administrators filed C.M.P.No.7894 of 2005 to permit interim Administrators to function as Correspondents/Managers of the educational institutions within the jurisdiction of the respective Synods. This Court, by order dated 27.4.2005, clarified that the Correspondents/Managers of the educational institutions within the jurisdiction of the respective Synods shall discharge their duties and functions as prescribed in Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, except making fresh appointments in the existing or future vacancies until further orders of this Court. This Court also directed the District Educational Officers concerned to monitor the management and administration of the educational institutions within the jurisdiction of the respective