S. Thanu vs Tamil Film Producers Council

N. Paul Vasanthakumar and P. Devadass, JJ.—This Original Side Appeal has been directed as against the Order of the learned Single Judge passed in Original Application No. 675 of 2013 in C.S. No. 606 of 2013, declining injunction to restrain Respondents 2 to 7 from taking charge of the posts of Office Bearers of the First Respondent, namely, ''Tamil Nadu Film Producers Council'' and discharge their duties. There were ranging controversy with regard to the conducting of election to the various posts in the First Respondent-Council. In C.S. No. 436 of 2013, conducting of the election for the period from 2013 to 2015 was ordered. Hon''ble Mr. Justice S. Jagadeesan and Hon''ble Mr. Justice K. Venkataraman, former Judges of this Court, were appointed as Hon''ble Judge-Commissioners, to conduct the election. With the consent of all, certain Guidelines for conducting the election was issued. The election was held on 7.9.2013. Results were declared. Respondents 2 to 7 were elected to various offices of the First Respondent-Council.

The Appellant herein filed C.S. No. 606 of 2013 for declaration that the said election is null and void and set aside the same alleging various malpractices and for consequential injunction restraining Respondents 2 to 7/Defendants 2 to 7 from taking charge of the various offices in the First Respondent/First Defendant and discharge the duties of their respective offices. Pending the Suit, the Application in O.A. No. 675 of 2013 has been filed by the Plaintiff seeking injunction.

After hearing both sides and perusing the materials produced, the learned Single Judge, concluded that this is not a fit case for grant of injunction. However, pointed out that the contentions raised by the Plaintiff necessarily has to be gone into on evidence during trial of the Suit. Thus, negatived the relief sought for. That is how the Plaintiff is before us.

The learned Senior Counsel appearing for the Appellant referred to Clause 20 of the Guidelines issued to conduct the election, as per that there shall not be any cut-outs, banners, advertisements, posters, etc. either by the candidates or by others with their consent. However, Sarathkumar and Ibrahim Rowther introduced the candidates led by Second Respondent, namely, Respondents 2 to 7, it came in a Tamil Daily. Further, Sarathkumar and Ibrahim Rowther have put up banners as though the Hon''ble Chief Minister is blessing Respondents 2 to 7. The learned Senior Counsel submitted that the learned Judge-Commissioners in their report have highlighted the said election violations. The learned Senior Counsel submitted that persons having committed such violations should not be permitted to discharge the duties of the Office Bearers of the First Respondent Council.

The learned Senior Counsel appearing for Respondents 2 & 5 would submit that Respondents 2 to 7 were validly elected to the various offices by securing votes, they have assumed their respective offices and they are discharging their duties. The learned Senior Counsel further submitted that the allegations raised in the injunction Application, are to be gone into by producing relevant materials at the time of trial.

We have anxiously considered the submissions of the learned Senior Counsels, perused the materials on record and the impugned Order of the learned Single Judge.

Election to the various offices of the First Respondent Council for 2013-2015 was held as per the orders of this Court. The election was conducted by two retired Hon''ble Judges of this Court, assisted by five Advocate-Commissioners and the results were declared. The successful candidates have assumed their respective offices also. Clause 20 of the Election Guidelines prescribes certain do''s and don''ts and that the persons aspiring to the elected posts shall do certain things and shall not do certain things. As per that there shall not be any Advertisements, banners or cut-outs in support of candidates either by the candidates or by their supporters with their consent. It is stated that these Guidelines have been violated.

Conducting of election must be free and fair. It is also on democratic principles. The basic principles governing election to certain elected bodies can be adopted. Once the election process has been completed and the elected persons have assumed their respective offices, they cannot be lightly thrown out of the Office or restrained from discharging their duties. Office of the elected body should function unless some manifest or patent irregularity or mal-practice has been proved by materials.

In the present case, some posters have been produced depicting certain high political personalities blessing the team led by the second Respondent. It is stated that it has tilted the mind of the voters and in this way, Respondents 2 to 7 have been elected.

Admittedly, as on today, there is no proof that those advertisements were issued by Respondents 2 to 7 or by anybody at their instance. The other election mal-practices pointed out by the Judge-Commissioners in their report have been brought to our notice by the learned Senior Counsel for the Appellant and are not backed by any evidence. That is why the learned Single Judge in his impugned Order pointed out that the allegations regarding violation of Clause 20 of the Election Guidelines are to be proved by producing relevant evidence during trial. In the facts and circumstances, learned Single Judge is right in declining injunction to the Appellant.

The interference by Courts in election matters should be slow. The Hon''ble Supreme Court in the decision reported in Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, , considered the issue regarding disqualification of the elected local-self Government official and in Paragraphs (34) to (36), held thus:

In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of Natural Justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.

The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu and Others Vs. Debi Ghosal and Others, ; Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, ; and Ram Beti Vs. District Panchayat Raj Adhikari and Others, ).

In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of Principles of Natural Justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office-bearer but his constituency/electoral college is also deprived of representation by the person of their choice.

Even though the said Judgment is in respect of the elected office bearers of local-self Government, the principle behind the said decision is that democratic elected office bearers shall not be prevented from discharging their functions, unless the said election dispute is determined finally.

The scope of interference by the Appellate Court against the discretionary interim Order passed by the Courts below was considered by the Hon''ble Supreme Court in the decision reported in Mohd. Mehtab Khan and Others Vs. Khushnuma Ibrahim and Others, of the said decision reads thus:

In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the Plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an Appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasised is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. and Another Vs. Antox India P. Ltd., .

Para. 14 of the aforesaid Judgment which is extracted below would amply sum up the situation:

The Appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such Appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of Interlocutory Injunctions. An Appeal against exercise of discretion is said to be an Appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under Appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court''s exercise of discretion. After referring to these principles, Gajendragadkar, J. in The Printers (Mysore) Private Ltd. Vs. Pothan Joseph, .

... These principles are well established; but, as has been observed by Viscount Simon in Osenton (Charles) & Co. v. Johnston, 1942 AC 130:

... The law as to the reversal by a Court of Appeal of an order made by [a] Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case.

The Appellate Judgment does not seem to defer to this principle.

In view of the foregoings, this Original Side Appeal fails and it is dismissed. The Order of the learned Single Judge is confirmed. No costs. Consequently, M.P. No. 1 of 2014 is also dismissed.