S VETRIVEL Vs. TAMIL NADU ADVOCATES ASSOCIATION

JUDGEMENT

(1.) THE appeal in O.S.A. No. 88 of 2011 is preferred by the applicant in A. No. 1600 of 2011 in C.S. No. 7 of 2011 against the order of the learned single Judge dated 21.3.2011 in negativating the claim of the petitioner to recall the Order dated 8.3.2011 invalidating all the votes polled at District Court Campus at Nagercoil and Padmanabapuram and direct the Judge-Commissioner to count the votes polled at District Court campus at Nagercoil and Padmanabapuram.

(2.) THE appellant in O.S.A. No. 98 of 2011 is the third party and a contesting candidate belonging to the said Bar who was permitted by us to prefer the Appeal against the order passed by the learned single Judge.

(3.) LEARNED counsel for the appellant/third party in O.S.A. No. 98 of 2011 would submit in his arguments that the appellant has contested the Bar Council Election and he was one of the candidates and his serial number is 111 and the suit filed by the plaintiff before the learned single Judge is not maintainable in view of Rule 35 of the Bar Council of Tamil Nadu Election Rules and a voter alone can file a suit for the conduct of a fair election. He would further submit that the present dispute cannot be raised by the plaintiff before the election is completed and it is for the Election Tribunal to look into the matters and even if the suit is maintainable, all the contesting candidates should be impleaded and in the absence of candidates, any order passed by the Court is not maintainable. He would further submit that the order passed on 8.3.2011 by the learned single Judge is not sustainable in law. He would further submit that the election process held at Padmanabapurarn Bar Association was not tainted with any illegality and therefore, the invalidation of votes polled at Padmanabapurarn is absolutely not sustainable. He would further submit that the learned single Judge has no jurisdiction to assume the powers of Election Tribunal and to invalidate the votes polled at Padmanabapurarn. He would submit that the alleged observers of the Poll are not the authorised persons and therefore, their report cannot be looked into. Even otherwise, their report would go to show that there were no illegal activities taken place at Padmanapuram Bar Association during the process of Election of Bar Council and those reasons stated by the Observers are not sufficient to invoke Rule 35(2) of the Bar Council of Tamil Nadu Election Rules. He would further submit that the denial of votes would deprive the members from electing their own members. The learned single Judge ought to have waited for recording of oral evidence for the purpose of invalidating the votes and it cannot act on the report of the alleged Observers. He would also submit that all the votes should have been counted for the purpose of finding the intention of the voters, but the votes polled at Padmanabapurarn Bar Association have been invalidated without any just cause and therefore, the prospects of the appellant being elected was also lost. He would further submit that the non-showing of identity cards to the Observers is not at all the requirement and it must be shown to the Polling Officers only and except the said lacunae, no other flaw has been mentioned in the report of the Observers. He would also bring it to the notice of this Court, the judgement of the Hon'ble Apex Court in between Daulat Ram Chauhan v. Anand Sharma AIR 1984 SC 621 : (1984) 2 SCC 64; in between Joseph M. Puthussery v. T.S. John and Others (2011) 1 SCC 503 and in between S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Others AIR 1980 SC 1362 : (1980) Supp. SCC 53 in support of his arguments. He would also submit that the appellant is seriously affected by the order passed by the learned single Judge dated 8.3.2011. He would also submit that the learned single Judge could have ordered re-polling in Padmanabapurarn Bar Association if he was actually convinced with the reasons mentioned in the reports of the Observers. Therefore, he would request the Court to set aside the order of invalidating the votes polled at Padmanabapurarn Bar Association and to order re-polling and re-counting of the Bar Council Election and thus, the appeal in O.S.A.No. 98 of 2011 may be allowed.