IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05-08-2011 Coram THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN O.S.A. Nos. 209, 210, 211, 226 and 227 of 2011 and M.P. Nos. 1, 1, 1, 1 and 2 of 2011 O.S.A. No. 209, 210 and 211 of 2011 1. Congregation of Zion Lutheran Church Pranthanery rep. By its Member P. Rajesh Alwin Pranthanery, Chunkankadai Post Kanyakumari District – 629 807 2. D. Davis Martin 3. Congregation of Lutheran Church Mylakara rep. By its Pastor Rev. R. Vijayakumar, Pastor Lutheran Church, Mylakara & Post Trivandrum, Kerala 4. T.P. Aniljose 5. A.R. Shaji 6. A. Vijayakumar .. Appellants(Plaintiffs) Versus 1. The India Evangelical Lutheran Church rep. By its General Treasurer having Registered Office at 21, Eldams Road, Teynampet Chennai – 600 018 2. The Trivandrum Synod – IELC rep. By its Secretary Office at Perukada Trivandrum, Kerala https://hcservices.ecourts.gov.in/hcservices/ 3. The Nagercoil Synod – IELC rep. By its Secretary No.321, Lutheran Mission Compound K.P. Road, Nagercoil – 639 001 Kanyakumari District 4. The Ambur Synod – IELC rep. By its Secretary Mission Compound, Ambur Vellore District 5. The Election Commissioner Indian Evangelical Lutheran Church 21, Eldams Road, Teynampet Chennai – 600 018 6. The Regional Election Officer Trivandrum Synod No.321, Lutheran Mission Compound K.P. Road, Nagercoil – 639 001 Kanyakumari District 7. The Regional Election Officer Nagercoil Synod No.321, Lutheran Mission Compound K.P. Road, Nagercoil – 639 001 Kanyakumari District .. Respondents(Defendants) O.S.A. No. 226 of 2011 & 227/2011 1. St. Peter's Lutheran Church Somalpuram (Via) Ambur – 635 802 Vellore District rep. By its President D. Vasudevan 2. J. Gideon 3. M.E. Starwin Surendranath 4. A. yesu .. Appellants/Plaintiffs 1, 3, 5 & 6 Versus 1. The India Evangelical Lutheran Church rep. By its General Treasurer having Registered Office at 21, Eldams Road, Teynampet Chennai – 600 018 2. Ambur Synod – IELC rep. By its Secretary Mission Compound, Ambur Vellore District https://hcservices.ecourts.gov.in/hcservices/ 3. The Election Commissioner The Indian Evangelical Lutheran Church 21, Eldams Road, Teynampet Chennai – 600 018 4. Rev. R. Edwin David Convenor – Credential Committee (CCC) Shalom Nagar, Bethleham Ambur – 635 802 Vellore District 5. Rev. J. Samuel 6. T. Martin 7. G. Peter @ Easwaan .. Respondents/Defendants 1-5 & Plaintiffs 2 & 4 O.S.A. Nos. 209 to 211 of 2011:- Appeal filed under Order XXXVI Rule 1 of Original Side Rules read with Clause 15 of Letters Patent against the order dated 24.06.2011 passed in Application No. 7374, 1319 and 1276 of 2010 in C.S. No. 998 of 2010 on the file of this Court. O.S.A. Nos. 226 and 227 of 2011:- Appeal filed under Order XXXVI Rule 1 of Original Side Rules read with Clause 15 of Letters Patent against the order dated 24.06.2011 passed in Application No. 1321 and 1322 of 2010 in C.S. No. 1034 of 2010 on the file of this Court. For Appellants : Mr. Yashod Vardhan, Sr. Counsel for Mr. V. Anand in OSA Nos. 209 to 211 of 2011 : Mr. Yashod Vardhan, Sr. Counsel for Mr. C. Prabhakaran in OSA Nos. 226 and 227 of 2011 For Respondents : Mr. T.V. Ramanujam, Sr. Counsel for Mr. C. Jagadish for RR1 and 5 in all the Original Side Appeals COMMON JUDGMENT B. RAJENDRAN, J These five appeals are filed by the appellants aggrieved by the order dated 24.06.2011 passed by the learned Judge in Application Nos. 7374, 1319 and 1276 of 2010 in C.S. No. 998 of 2010 and Application No. 1321 and 1322 of 2010 in C.S. No. 1034 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 2. By consent of counsel for the parties, all the appeals are taken together for final disposal and are disposed of by this common judgment. 3. The appellants in O.S.A. Nos. 209 to 211 of 2011 have filed the suit in C.S. No. 998 of 2010 before this Court praying for a declaration to (i) declare that the election conducted by the respondents 5 to 7 as null and void (ii) declare that the elections to the Nagercoil Synod of the first respondent is illegal, null and void and for grant of a consequential permanent injunction restraining the third respondent from functioning illegally (iii) declare that the elections to the Trivandrum Synod of the first respondent is null and void and for a consequential permanent injunction restraining the second respondent from functioning illegally (iv) declare that the respondents 2 and 3 are ineligible to vote for the post of the President of the first respondent and grant consequential permanent injunction restraining the respondents 2 and 3 from voting in the election for the President of the first respondent; award damages of Rs.5,00,000/- to be paid by respondents 5 to 7 to the plaintiffs. 4. Pending this suit, the appellants herein have filed Application No. 1276, 1319 and 7374 of 2010. 5. Application No. 1276 of 2010 was filed praying for an interim injunction restraining the respondents 1 to 3 from taking any policy decision and from changing the service conditions of the employees. 6. Application No. 1319 of 2010 was filed praying for an interim injunction to restrain the respondents 1 to 3 from functioning and acting in any capacity based on their election in 2010, pending disposal of the suit. 7. Application No. 7374 of 2010 was filed praying to appoint an Administrator to carry on the Administration of the first respondent/first respondent registered Association in Indian Evangelical Lutheran Church, pending disposal of the suit. 8. C.S. No. 1034 of 2010 was filed by the appellants in O.S.A. Nos. 226 and 227 of 2011 along with others praying for Declaration (i) to declare that the elections held for Ambur Synod of I.E.L.C. between 02.11.2010 and 04.11.2010 and publication of results made on 10.11.2010 by the second respondent herein as illegal, invalid and ultra vires the constitution of I.E.L.C. and the Constitution of Ambur Synod of I.E.L.C. (ii) for a consequential injunction restraining the respondents or their men from acting on the basis of the results of the aforesaid Election held between 02.11.2010 and 04.11.2010 for the Ambur Synod and discharging any functions, duties, powers etc., on the basis of the results of the aforesaid Elections in the management and administration of I.E.L.C. Ambur Synod of I.E.L.C. and its institutions and properties (iii) To declare that the election of https://hcservices.ecourts.gov.in/hcservices/ the fifth respondent dated 07.12.2010 as illegal, null and void and in consequence thereof grant a permanent injunction restraining the fifth respondent from functioning as the President of the first respondent namely the India Evangelical Lutheran Church (I.E.L.C.) and for costs. 9. Pending this suit in C.S. No. 1034 of 2010, Application Nos. 1321 and 1322 of 2010 were filed by the plaintiffs. Application No. 1321 of 2010 was filed praying for an interim injunction restraining the respondents/respondents and other duly elected representatives of Ambur Synod, their men, agents, or any one claiming through them or authorised by them, from in any manner acting on thebasis of the results published on 10.11.2010 by the second respondent for the Elections held for various posts in Ambur Synod during 02.11.2010 to 04.11.2010. 10. Application No. 1322 of 2010 was filed praying for interim injunction fifth respondent/fifth respondent from in any way functioning as the President of the first respondent namely Indian Evangelical Lutheran Church. 11. For the sake of convenience, the parties shall be referred to as per their litigative status in O.S.A. No. 209 to 2011 of 2011 as appellants and respondents. 12. The contention of the Appellants in O.S.A. Nos. 209 to 211 of 2011 in the Application Nos. 1319, 1276 and 7374 of 2010 in C.S. No. 998 of 2010 is as follows:- (i) The first respondent namely India Evangelical Lutheran Church is a registered religious society bearing Registration No. 11/1959 under the Tamil Nadu Societies Registration Act and it is governed by its own constitution and by-law. It has three administrative areas falling under three distinct Synods namely Nagercoil Synod, Trivandrum Synod and Ambur Synod. Even though there is a constitution and by law for the first respondent, each of the three synods have to function under their own constitution and bye laws, however, the powers of the Synods have to be in confirmity with the constitutions and bye-laws of the first respondent. The first respondent is the apex body and it has power of veto over the decisions of the Synods. According to the appellants, the election for the first respondent has to be conducted once in three years and that of the respondent 2 and 3 is two years and for the 4th respondent is 3 years. The voters are selected through a detailed process by Convention Credential Committee appointed for the respective Synods themselves and this committee is empowered to receive applications, scrutinise and decide the final list of the delegates. Under the Constitution and bye law of the first respondent, the election commission is a body to be nominated by the Church Council of the first respondent. But the respondents 5 to 7 were not appointed by the first respondent in accordance with the constitution and by-law and without even a resolution by the Church Council, the respondents 5 to 7 have been illegally appointed by the earlier President Rev. J. Samuel based on a suit filed by a member in the City Civil Court, Madras. According to the appellants, the https://hcservices.ecourts.gov.in/hcservices/ Election Commission itself has been illegally constituted and therefore all the elections conducted by the said Commission are null and void. (ii) This Court, by an order dated 28.10.2010 in O.A. Nos. 1115 and 1116 of 2010 in C.S. No. 879 of 2010, appointed Justice A.K. Rajan, a retired Judge of this Court to administrate the election, receive complaints regarding election before and after his appointment and to file his report. According to the appellants, at the time of filing this suit, all the elections are over, except the election of the President of the first respondent. At every level, the synods committee and sub- committee, the elected persons have taken charge. The President is also elected only by representatives and it is not a direct election by the communicant members. (iii) According to the appellants, the elections conducted for the Trivandrum and Ambur Synods are in violation of Section 1A (1) and Section VII (B) (22) of their respective bye laws. Therefore, the elections conducted for the three Synods suffer from the following defects namely (a) The Election Commission has not been appointed by the Church Council of the first respondent in accordance with the constitution and in accordance with law (b) The Regional Election Officers originally appointed by the Church Council has been illegally changed and the minutes of the meeting of the Church Council has been tampered with and the Regional Officers have been illegally removed and altered (c) The Credential Committee which scrutinise the eligible delegates/ voters did not furnish the list of delegates/voters to the Election Commission and without obtaining the list of delegates, the Election Commission has published the list of delegates directly and conducted the election illegally (d) The election commission ought to have followed the procedure of Secret ballot as is usual in all elections of the first respondent during earlier elections. Further, the ballot papers were issued without obtaining the signatures of the delegates and the ballot papers were not counted in the presence of candidates for the various elections including the Trivandrum and Nagercoil Synods election even after written request made to the Election commission (e) The selected candidates were announced by the Election commission without counting the votes at all (f) The total number of ballot papers, number of ballot papers distributed for voting and the reminder are not tallied and therefore it can be construed that the votes have been illegally polled (f) The election commission failed to issue notice of election and voters and pastorates have been illegally included (g) As per the constitution of the Trivandrum and Nagercoil Synods, only eligible congregations are entitled to participate in the election, so it is always necessary to publish the list of eligible congregations and then the election to the circles to be held, which was not done in this case. https://hcservices.ecourts.gov.in/hcservices/ (iv) According to the appellants, as per the constitution and bye law of the first respondent in Chapter X of the General clause 4 (b), no person in default of repayment of loan received through Indian Evangelical Lutheran Church or in settlement of Indian Evangelical Luthern Church accounts shall not be eligible to be elected to any office nor will be given the voting rights. The persons like Rev.Y.Sukumaran, against whom action for misappropriation of funds was initiated, is not eligible to participate in the election or vote in the election. The above said irregularities clearly prove the manner in which elections were conducted for the Trivandrum Synod of the first respondent Therefore, the said election is illegal. The conduct of the election for Nagercoil Synod and its circles also suffers from total illegality. The election commission was also given a detailed objection dated 17.03.2010 but the same was not considered. It is the custom of IELC and the Synods to conduct elections in the respective Circles only, but the 2010 elections have been conducted in one consolidate place to facilitate vested interest to mobilise the delegates. Moreover, the appellants were not even intimated about the synod elections even though they voted for the circles. 13. A counter was filed by the respondents denying each and every one of the allegations contained in the applications filed by the appellants by contending as follows:- (i) The elections were conducted as per the old bye laws of the first respondent and voting rights were given to all those who have paid assessment. According to the respondents, the previous election was conducted in the year 2007 by Justice A.K. Rajan, former Judge of this Court, who was apppointed as an Administrator to conduct the election. The voters list were furjnished by the eligible congregations directly to the Election Commissioner or to the administrator appointed by this Honourable Court, who is empowered to conduct the election. Thus from 2002, the system of convention credential committee forwarding the list of eligible delegates has been give a go-by since the elections were conducted under the supervision of this Court. By relying on the report of the administrator of the previous election, it was pointed out that the Church Council appoints the Election Commissioner and reginal election officers for a period of 4 years. The Election Commissioner calls for nominations for election 60 days prior to election. After receiving the list of bonafide voting delegates from the credential committee, the Election Commission shall scrutinise the nominations and publish the list of voting delegates 15 days prior to election. Therefore, according to the respondents, even in the previous elections also, there was no convention credential committee and the functions of the convention credential committee was also done by the election Commissioner. Further, the previous election in the year 2007 was conducted under the Administratorship of Justice A.K. Rajan, therefore it is not open to the appellants to contend that the list of eligible congregations were not finalised by the credential committee inasmuch as the credential committee is no https://hcservices.ecourts.gov.in/hcservices/ longer in existence. When the period of the credential committee has come to an end, the Election commissioner has rightly received the list of eligible congregations from the first respondent, who alone is competent to identify the eligible congregations. Further, there is no such provision for appointment of convention credential committee under the IELC bylaws. (ii) According to the respondents, even prior to the election, O.S. No. 4911 of 2008 was filed by the appellants herein and the Civil Court has refused to grant injunction. Further, one C.G. Dickson filed a suit in O.S. No. 31 of 2010 on the file of II additional District Munsif Court, Thiruvanandapuram and obtained an interim order of injunction in I.A.No. 1485 of 2010, which was subsequently vacated on 25.03.2010. Thus, according to the respondents, the appellants disrupted the process of election at every stage to ensure that the election is not conducted. (iii) As far as the elections conducted for Nagercoil and Trivandrum Synods are concerned, the election commissioner and other election officers were appointed by the Church council in the Church Council Meeting dated 30.09.2008 and 01.10.2008. In Ambur Synod, the list of eligible voters were furnished by the adhoc committee to the election commition. As far as Regional Election Officers appointed by the Church Council for Ambur, he withdrew himself from the office as Regional Election Officer and therefore, it has become necessary for the church council to appoint another Regional Election Officer in his place. Therefore, according to the respondents, when the conduct and affairs of the India Evangelical Lutheran Church is under the direct supervision of this Honourable Court and the elections were conducted by the former Judge of this Honourable Court, the relief prayed for by the appellants need not be granted. 14. The learned Judge, after hearing both sides, dismissed all the applications filed by the appellants for injunction to restrain the elected office bearers from functioning and also from taking any policy decision. But in so far as the application to restrain the elected office bearers from alienating the property, which is the subject matter of the suit, the learned Judge granted an order stating that the properties should not be sold without the permission of this Court. Aggrieved by the order of the learned Judge, the present appeals have been filed. 15. We have heard the learned Senior counsel appearing for the appellants as well as the learned Senior counsel appearing the respondents 1 to 5. The appellants have filed the suits challenging the election conducted to the first respondent India Evangelical Lutheran Church mainly on the ground that though the election was conducted under the supervision of an Overseer appointed by this Court, he has not followed the bye laws and the convention credential committee was completely ignored in the process of election as contemplated under the bye laws. Further, https://hcservices.ecourts.gov.in/hcservices/ voting rights have been given to ineligible voters and eligible voters were prevented from casting their votes and therefore the election as well as the outcome of the election are per se invalid. The appellants also relied on the report of Justice A.K. Rajan, who was appointed as Administrator by this Court to conduct the election to the three Synods. According to the appellants, the report indicates that the election was conducted without the conventional credential committee in place and the learned Administrator, who was appointed to over see the election just a few days before the election could do anything to set things right and therefore, it is clear that the election was not conducted in accordance with law. The said submission of the appellants cannot be accepted. Merely because there is no convention credential committee, it cannot be stated that the election conducted is illegal and invalid. Admittedly, there was no protest at the time of election. The main complaint of the appellant was that the persons who were allowed to exercise their voting right have not paid the assessment. In fact, even in the bylaw, what was contemplated was the congregation should not be in default. It was further contemplated that the congregation, which did not contribute to the financial needs of the IELC, shall not be eligible to make nominations. In any event, merely because the convention credential committee was not constituted, it cannot be said that the election conducted was illegal. In any view of the matter, these averments have to be tested only at the time of trial and not while deciding the interim applications. 16. At this juncture, it has to be pointed out that the election was conducted as per the directions of this Court and the overseer appointed with the consent of the parties to the litigation. The overseer so appointed was none less than the former Judge of this Court who was also earlier appointed during 2007 to conduct the election and now, in his presence, the election was conducted. The election process was duly monitored by this Court and the election was conducted by the learned Administrator under his direct supervision. 17. With this background, when we analyse the whole scenario, as rightly pointed out by the learned Judge, the appellants have come forward with the suit only on the ground that the election was conducted without the convention credential committee. A perusal of the bye laws of first respondent, India Evangical Lutheran Church, would make it clear that IECL has got separate bylaws which governs the working of other three synods. For more clarity, the functions of India Evangelical Lutheran Church (IELC) can briefly be set out through the below mentioned chart:- https://hcservices.ecourts.gov.in/hcservices/ India Evangelical Lutheran Church Called as I.E.L.C. I.E.L.C. has an Apex Body called as CHURCH COUNCIL IELC has 4 Boards called as | --------------------------------------------------------------- | | | | Board of Mission Board of Healing Ministry Board for Pastoral Board for & Lay Training Education Under IELC there are 3 SYNODS namely | | ---------------------------------------------------------------------------- | | | Ambur Synod Nagercoil Synod Trivandrum Synod | | | Executive Committee Executive Committee Executive Committee | | | | | | Ambur Synod Nagercoil Synod Trivandrum Synod Circles namely Circles namely Circles namely (There is 5 Circles in Each Synod) | | | | | | Ambur Circle Colachel Circle Balaramapuram Circle Karnataka Circle Madurai Circle Luthergiri Circle Madras Circle Nagercoil Circle Nilamel Circle Mailpatty Thovalai Circle Ponvila Circle Vaniyambadi Circle Tirunelveli Circle Trivandrum Circle | | | | | | | | | Each Circle has Each Circle has Each Circle has Pastorates Pastorates Pastorates | | | | | | Pastorates Consists Pastorates Consists Pastorates Consists | | | | | | Congregation (Churches) Congregation (Churches) Congregation (Churches) 18. It is evident from the above Chart that the Apex Body of I.E.L.C. is the Church Council. The I.E.L.C. has got four boards namely Board for Mission, Board for Healing Ministry, Board for Pasteoral & Lay Training and Board for Education. These are all executed by three Synods namely Ambur, Nagercoil and Trivandrum. It is to be pointed out here that Nagercoil and Trivandrum Synods are not registered. Each Synod has got Executive Committee. Each synod has got 5 circles in each Synod. Each Synod has got Circle Pastorates These pastorates consists of congregation of churches. https://hcservices.ecourts.gov.in/hcservices/ 19. According to the appellants, the 5 members from among them are voting delegates. Therefore, the synod will have 25 members and the three synods put together will have 75 members, who are delegates and who are representing the concerned Synod for I.E.L.C. election. Among the 25 members from each Synod, one Layman and one Pastor will be elected. Even there, they have got restriction as to whether if it is more than 100 members of congregation or not. Therefore, the entire set up was made in such a way that the members at different levels have to be elected, participate in the election to elect the IELC Church Council who are the ultimate authority for all the Synods. 20. When we consider the objections made by the appellants to the report of the administrator, it is clear that the period of the Convention Credential committee was already over. In so far as Ambur Synod is concerned, there is a difference in number of years in respect of each of the Synod. Therefore, when the two year period was over, as per the Central Bye laws, the Adhoc committee took over and they have appointed their delegates. The appellants who have now come to the Court have not made any objections at the time of election. Now, they have come forward with this suit on the ground that the members could not be properly represented. As rightly pointed out by the