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CASE NO.: Appeal (civil)  4123 of 2006

PETITIONER: I. Nelson & Anr.                                                         

RESPONDENT: Kallayam Pastorate & Ors.                                        

DATE OF JUDGMENT: 14/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 26954-26969/2005)

S.B. Sinha, J.

       Leave granted.

       The Indian Evangelical Lutheran Church (’the Church’, for short) has  a large congregation consisting of several pastorates in the Church Council.   It was registered under the Societies Registration Act, 1860 (for short, ’the  1860 Act’).  It runs a large number of schools and hospitals.   

The State of Tamil Nadu enacted ’Tamil Nadu Societies Registration  Act, 1975’ (for short, ’the 1975 Act’).   Section 3 of the 1975 Act specifies  the societies which may be registered thereunder, subject to the exceptions  contained in Sub-Section (2) thereof.  Section 4 provides for compulsory  registration of such societies which are specified therein.  The Act  contemplated registration of such societies within such period as may be  prescribed.  Section 5 provides for optional registration.  Section 36 provides  for the power of Registrar to inquire into the affairs of the registered society.   Cancellation of registration is envisaged under Section 37 thereof.  Section  38 provides for cancellation of registration of society carrying on unlawful  activities.  The effect of cancellation of registration is laid down in Section  39.  Section 40 provides for winding up of registered society.  In case a  society becomes defunct, its name can be removed from the Register  maintained by the Registrar upon following the procedures laid down  therein.  Orders passed by the Registrar directing cancellation of registration  are appealable under Section 45 thereof.  Section 53 of the Act raises a legal  fiction that every society registered under the Societies Registration Act,  1860, inter alia, shall be deemed to be registered under the Act and the bye- laws of such society shall, in so far as they are not inconsistent with any  provision of the Act, continue in force until altered or rescinded.  Allegedly,  regular elections were not held. Some mis-management had also allegedly  taken place.   

A suit came to be filed by one    Rev. M.S. Poomani Raj in the High  Court of Judicature at Madras against the Church, Rev. J. Issac Moon, C.  Deniel Rajagamberam and Rev. U. Jacob praying, inter alia, for the  following reliefs :

"a)     For a declaration that the elections conducted by  the third defendant for the Circles, Synods and  IELC without the assistance and effective  participation of the Plaintiff and the fourth  Defendant is non est in law and therefore null and  void.

b)      Granting permanent injunction restraining the third

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defendant from functioning as election  commissioner of IELC including the Synod and  circles of IELC.

c)      Granting mandatory injunction directing the fourth  defendant and the plaintiff to act as election  commission of the IELC including the synods and  circles of IELC and to conduct elections for the  IELC, Synods and circles at all levels or in the  alternative appoint an Advocate Commissioner to  conduct elections for all the Circles, Synods and  IELC."

Indisputably, by an order dated 1.12.2003, an Advocate  Commissioner was appointed to hold elections.  Elections were held under  the supervision of the said Advocate Commissioner.  Whereas election in  respect of the Ambur Synod was held in December, 2003; that of  Trivandrum Synod was held in April/May, 2004.  Election of the Nagercoil  Synod was held in May, 2004.  Election held in respect of IELC was also  held on 6.6.2004.  The learned Advocate Commissioner, however, submitted  a report in which he contended that the society has become defunct.  A  Division Bench of the High Court, opined :

".....newly elected officers could not confirm  whether the registration of the Apex Body of IELC under  the provisions of the Societies Registration Act, 1860  continued 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 therefor, 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."

The elected members were directed to apply for fresh registration.   Directions were passed by the High Court from time to time.  However, by  an order dated 22.12.2004, the learned Court proceeded on the basis that all  the elected members were parties before it stating :

"A reading of the report 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 which event the very  conduct of the election as well as the result thereon  become a nullity and lack legal sanctity for want of  compliance of the registration of the constitutional bye  laws of the Societies with the Registrar of Societies."

On the aforementioned premise it was directed :

"As brought to our notice by the election officer,  all the parties, who participated in the election and  appeared before us, are equally responsible for the above  lapse.  Therefore finding it an absolute necessity to

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regulate the registration of the respective bodies in  accordance with the provisions of the Act and also the  entire affairs administration and management of the  society in question, an interim arrangement pending such  regularization strictly in accordance with the provisions  of the Act including the constitutional bye laws to the  respective IELC Apex Body and three synods with the  Registrar of Societies has become inevitable, as agreed  by the learned counsel appearing on behalf of all the  parties in the above appeals, both the elected office  bearers and the contested candidates."    The appellant herein and one T.K. Christopher Stalin filed an  application for impleading them as parties, inter alia, on the premise that  they were validly elected.  By reason of the impugned order dated 8.4.2005,  the Division Bench of the High Court dismissed the said petitions, stating :

"Therefore, even though the petitioners claim  themselves as elected members to the respective offices,  in view of the report of the learned Advocate  Commissioner dated 22.12.2004, referred to above, the  very conduct of the elections as well as the results  declared thereon shall become a nullity as the respective  societies have become defunct.

Considering the fact that the election conducted  has already become a nullity, the question of impleading  the petitioners, much less recalling the order dated  22.12.2004 made in O.S.A. Nos.265 to 272 of 2003 does  not arise."

 On or about 17.8.2005, the Division Bench appointed Mr. Justice J.  Kanakaraj as an Administrator with an Associate Member.          

The appellants in other appeals did not approach the High Court at all.   Learned counsel for the appellants contended -

i)      The provisions of the Tamil Nadu Act being self-contained,  inter alia, providing for cancellation of registration and passing of orders of  winding up of societies and removal of defunct societies, the High Court  misdirected itself in passing the impugned order;   

ii)     The elections held under the supervision of the learned  Advocate Commissioners having not been held to be unfair, the same could  not have been set aside, particularly, when they were not parties thereto;

iii)    The order passed by the High Court on the basis of purported  consent is a nullity; and

iv)     The appointment of Administrator was beyond the jurisdiction  of the High Court, as thereby the fundamental rights of the appellants under  Articles 25 and 26 were violated.

Mr. T.L.V. Iyer, the learned Senior counsel appearing on behalf of the  respondents, on the other hand, would submit \026

i)      As admittedly the term in respect of two Synods, namely,  Trivandrum and Nagercoil Synod has already expired and that of Ambur  Synod would expire in December, 2006 and that of the Church Council on  7.6.2007, this Court should not interfere with the impugned judgment and  may  direct holding of elections under the supervision of the Administrators; ii)     Some of the elected members of the Council having been  represented before the High Court and consented to the impugned orders, the  appellants herein should not be permitted to take a different stand.

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The constitution of the Church is not in dispute.  The Church Council  consists of President and 15 members.  It has 3 Synods.  7 members from  each Synod are represented in the Church Council.  The Church Council,  thus, consists of 36 members.  Only 17 of them were before the High Court.

We have noticed hereinbefore the reliefs sought for in the suit.   

It is true that elections were being held under the supervision of an  Advocate Commissioner for sometime past.  We will also assume that there  had been some mismanagement of the Church of the properties on the part  of the elected representatives.  We may also proceed on a further assumption  that the provisions of the 1975 Act had also not been complied with.  The  question, however, remains that as the appellants before us were not parties  in the High Court, the impugned order is whether sustainable in law.  The  High Court proceeded to set aside all the elections in their entirety on the  premise that the society has become a defunct one.   

While passing the impugned orders, the High Court did not notice the  relevant provisions of the 1975 Act.  The councilors representing the parties,  for one reason or the other, did not also bring to the notice of the High Court  the effect of the provisions of the 1975 Act, vis-‘-vis, the 1860 Act.  The  society, presumably keeping in view the nature of its activities, was required  to be compulsorily registered.  It is, however, not in dispute that it was so  registered under the Central Act of 1860.  Once it is held that the society was  registered under the 1860 Act; in terms of Section 53 of the 1975 Act it shall  be deemed to be registered thereunder.  The effect of a legal fiction is well- known.  Legal fiction created, it is trite, must be given full effect.

We have noticed hereinbefore some of the provisions of the 1975 Act.   It, undoubtedly, is a complete code.  It not only provides for the mode and  manner in which registration of a society is to be cancelled but also for  winding up of a society and removal of a defunct registered society from the  registers maintained by the Inspector General of Registration.  A society  need not necessarily be held to have become defunct only because certain  statutory provisions have not been complied with by it.   

We fail to understand as to why the Inspector General of Registration,  who was impleaded as a party in the suit, also did not bring the relevant  provisions of the Tamil Nadu Act to the notice of the High Court.  The  statutory authority, while allowing the impugned order to be passed by the  High Court, abdicated itself of its statutory functions.  The society might not  be, in fact, registered as such under the 1975 Act, but, as it was registered  under the 1860 Act, we have no other option but to hold that it was deemed  to be registered also under the 1975 Act.  Having regard to the provisions  contained in Section 53 thereof, once the society became a society registered  under the 1975 Act, all the consequences arising thereunder shall ensue.  It  was, therefore, for the statutory authorities to take recourse to such actions  as are provided for in the 1975 Act or the Rules framed thereunder.  In the  event, the society became defunct or other statutory requirements were not  complied with by the members of the society, penal measures could have  been taken but in no situation the election of the office bearers could have  been set aside.  Right to contest an election of an office-bearer of the society  is a statutory right of the member thereof.  Such a right also exists under the  bye-laws of the society.  It is not the case of the respondents that the bye- laws of the society are invalid in law.  Once a valid election was held, the  High Court, in our opinion, could not have directed setting aside of an  election only on the purported ground that it became defunct.  An almost  similar question came up before this Court in Board of Control for Cricket  in India & Anr. vs. Netaji Cricket Club & Ors. [(2005) 4 SCC 741],  wherein this Court, despite its jurisdiction under Article 142 of the  Constitution of India, did not venture to consider the validity or otherwise of  the election of the office-bearers of BCCI as they had not been impleaded as  parties therein, stating :

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"On 11-10-2004, we had, after hearing the counsel  for the parties, observed that if a situation arises this  Court would go into the validity of the election of the  office-bearers of the Board held in the meeting dated 29- 9-2004, but, as indicated hereinbefore, we did so under a  mistaken belief that the Board would be represented by  the new office-bearers and, thus, all parties would be  before us.  However, it now stands admitted that the  office-bearers either in their personal capacity or official  capacity are not before us.  They may have notice of the  pendency of this proceeding.  They may be sitting on the  fence and watching the proceedings of this Court.  But,  unless they are made parties in these proceedings, we  would not be in a position to entertain the dispute as  regards validity of the meeting of 29-9-2004 resulting in  the election of the office-bearers.  Giving an opportunity  of hearing to the elected members in a dispute of this  nature is imperative and not a matter of mere procedure,  formality or technicality.  The election dispute, therefore,  must be adjudicated upon by a proper forum."

There is, therefore, no reason as to why the elected members should  not be allowed to carry on the activities of the society wherefor they were  duly elected.  We may, however, hasten to add that when we say so, we do  not intend to pronounce on the validity or otherwise of the elections held.  If  any application has been filed by a person aggrieved for setting aside an  election, the same undoubtedly will have to be disposed of in accordance  with law.   

But, for the reasons stated hereinbefore, in our opinion, the High  Court in the pending suit could not have done so.  It should have relegated  the parties to take recourse to such remedies as are available in law for  questioning the validity of the election before the appropriate forum(s).   

We are also not impressed by the submissions made by the learned  counsel appearing on behalf of the appellants, in particular by Dr. A. Francis  Julian and Mr. A. Mariarputham, that the rights of the appellants under  Articles 25 and 26 of the Constitution have been infringed by reason of the  impugned judgment.  The said appellants had not got themselves impleaded  as parties in the suit.  The specific activities of the Church which will  allegedly attract provisions of Articles 25 and 26 of the Constitution have  not been specified.  How the purported fundamental rights of the members  of the society would be infringed, have not been clearly stated.  Such a  question cannot be permitted to be raised for the first time before this Court  in absence of foundational facts.  The Church, indisputably, carries on  secular activities also.   

Keeping in view the interest of the general public, we see no reason as  to why in a case of mismanagement of such charitable organizations,  although run by minorities, the Court cannot oversee its functions.  The  Courts, indisputably, act as guardian of such societies.  [See Guruvayoor  Devaswom Managing Committee & Anr. vs. C.K. Rajan & Ors. (2003) 7  SCC 546.]  Even otherwise, rights under Articles 25 and 26 of the  Constitution are not absolute and unfettered.  The right to manage, it goes  without saying, does not carry with it a right to mismanage.   

Before us, a report of the learned Administrator had been placed.  It  now appears that the learned Administrators had succeeded in obtaining  exemption from the operation of the 1975 Act, subject to certain conditions.   The effect of an order passed by a statutory authority under the 1975 Act,  therefore, in our opinion, unless any other order or orders are passed in  future by a competent court of law should be given effect to.  It stands  admitted that the tenure of the elected members in respect of Trivandrum

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and Nagercoil Synods being two years is over.  However, the said tenure is  yet to expire in respect of Ambur Synod; the tenure whereof is three years.   The tenure of the Church Council again is of three years.  It expires on  6.6.2007.  We, therefore, are of the opinion that subject to any other or  further order that may be passed by any forum having appropriate  jurisdiction in regard thereto, the elected members in respect of Ambur  Synod and Church Council may take over their respective activities from the  Administrators.  The Administrators shall, however, continue to oversee the  functions of the Church Council and Ambur Synod.  The elections in respect  of the Nagercoil Synod would furthermore be conducted under the  supervision of the learned Administrators.  We could request the learned  Administrators to see that the elections of the two Synods are held as  expeditiously as possible.  The Chartered Accountant appointed by the  learned Administrators shall continue to function and shall submit a report  before the Church Council with a copy to the learned Administrators.  The  proceeding, if any, initiated for setting aside election of any of the office- bearers of the Council of Ambur Synod, shall, however, continue and may  be disposed of expeditiously.   

The Inspector General of Registration would be at liberty to carry on  its statutory function(s) and in the event, the office-bearers of the Council  have failed to comply with the statutory requirements, an appropriate action  in regard thereto may be taken, as is permissible in law.   

It would be open to the plaintiffs, if they so desire, to file an  appropriate application for amendment of the plaint, having regard to the  subsequent events.  If such an application for amendment of plaint is filed  and allowed, the appellants before us would be impleaded as parties.  The  parties are given liberty to approach the High Court for any other or further  order(s) or direction(s).   

This appeal is allowed with the aforementioned observations and  directions.  In the facts and circumstances of this case, however, the parties  are directed to bear their own costs.