Madras High Court: In a review application filed to review the order passed by this Court, the division bench of R. Mahadevan and Mohammed Shaffiq while dismissing the review application, has observed that the conduct of the election with the existing byelaws in a transparent and fair manner is the need of the hour, which has been delayed unnecessarily for nearly four years, thus, the election shall be completed within a period of 90 days. Further, it was observed that the Bar is undoubtedly the backbone of the judicial system and the supporting pillar of the Bench without which the delivery of justice is a chimerical theory that cannot translate into fruition.
The applicant preferred the writ petition seeking direction to the respondent to take necessary steps for free and fair election in the Madras High Court Advocates Association (‘MHAA’) by considering his representation. It was stated by the petitioner that, according to the byelaws, the election to elect new office bearers for the MHAA was scheduled to be conducted on 26.11.2016, thus, the petitioner raised objection that those, who did not pay the membership fee continuously for two years, are deemed to have been disqualified as members of the MHAA and they should not be permitted to contest the election. Despite the said objection, an election was conducted, and new office bearers were declared as elected by the Election Committee. Further, the applicant submitted that there are errors apparent on the face of the order and hence, the same warrants a review, and the said order was taking away the prerogative right of the members of the association, as the observations made by the division bench would affect the credibility and sanctity of the MHAA. Further, it was submitted that the office bearers were misappropriating the MHAA funds.
The question in this case was whether a review is warranted or necessary in the facts and circumstances of the case.
The Court referred to the decision in S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 SCC OnLine SC 1034, wherein it was held that “the power to review cannot be exercised as an inherent power and nor can appellate power be exercised in the guise of exercising the power of review. Further an erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction”, and held that there is an error apparent on the face of the impugned order under review, as the bye-laws of the MHAA clearly prescribe the qualifications required for contesting for the various positions of the governing body of the MHAA ,as well as those who are eligible to vote at the elections, and without an amendment to the byelaws of an association, any major change affecting the rights of the members would be unknown to the law.
It was further observed that the order under review proceeds on the basis that the qualifications of those entitled to contest the elections of the MHAA have not been mentioned in the byelaws, however, since the byelaws have clearly spelt out the qualifications of the members of the MHAA entitled to contest in the elections, such findings that no qualifications are fixed for contesting the election in the order will have to be necessarily reviewed. Similarly, when the byelaws of the MHAA are very clear on the aspect that only resident members are entitled to vote in the elections, while also defining the term ‘resident members’ and ‘non-resident members’ and their respective rights and privileges, there is no need to pass further direction. Thus, the qualifications fixed by the division bench in order are to be treated as suggestions and not directions, and the same will have no force until the same is incorporated into the byelaws of the MHAA.
The Court referred to the decision in Supreme Court Bar Assn. v. B.D. Kaushik, (2011) 13 SCC 774, wherein it was held that “in any Body governed by democratic principles, no member has a right to claim an injunction to stall the formation of the governing body of the association” and viewed that the petitioner should not have rushed this Court in the first place and sought for an emergent disposal of his representation as a condition precedent to proceed with the election to the MHAA, which again has stalled the election.
Placing reliance on the decision in Sudha v. Chennai Advocates Assn., (2010) 14 SCC 114, wherein it was held that “the amendment prescribing that a member of the association having practice of less than two years would not be entitled to vote or that a member of the association who has not put in three years of practice would not be entitled to contest the election are reasonable and are meant for enhancing status and image of members of the Bar”.
It was also observed that the association with all its members from the legal fraternity, is expected to be much more responsible in its conduct and should endeavor to shape the young advocates towards the path of service and instil confidence in the minds public on the judiciary. Further, the object of becoming an office bearer is to serve the fraternity and not to utilize it for personal benefit and upliftment, and though there is a moral obligation on the part of every member to set right the anomalies in the byelaws which makes way for the posts to operate as power centres, creating power syndrome, rather than to create a process for affirmative change in the functioning of the association.
The Court viewed that the conduct of the election with the existing byelaws in a transparent and fair manner is the need of the hour, which has been delayed unnecessarily for nearly four years. Thus, the Court dismissed the review application and approved the suggestions given by the respondent, for constitution of the Teller committee, which shall conduct election at the earliest by following the existing byelaws. Further, the committee shall ensure the conduct of free and fair election to the MHAA, and the principle of ‘one Bar one vote’ is to be followed strictly. Moreover, it directed the verification of the electoral role, payment of subscription and eligibility of the list of members to vote, be made within a period of four weeks from the date of this order, and the publication of the list of eligible members shall be completed within four weeks, and the election shall be completed within a period of 90 days.
[K. Sathyabal v. The Chairman & Members, Election Committee, 2022 SCC OnLine Mad 4861, decided on 14.10.2022]
Advocates who appeared in this case :
For Review applicant: Advocate K. Sathyabal;
Advocate N. Jyothi;
Advocate G. Mohanakrishnan;
Advocate G. Murugendran;
Advocate P.V.S. Giridhar;
Advocate V. Jai Bharath;
Advocate R. Dinesh Kumar;
Advocate R. Krishna Kumar;
For Respondents: Advocate A.E. Chelliah;
Advocate C.K. Chendrasekkar.
