IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.09.2008 CORAM HON'BLE Mr.A.K.GANGULY, CHIEF JUSTICE and HON'BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.A.Nos.932 & 827 of 2008 -------- W.A.No.932 of 2008 Dr.P.Rajaji, Advocate No.92, Soorappa Mudali Street, Triplicane, Chennai – 600 005. ..Appellant. Vs. 1. The State of Tamil Nadu, rep. by its Secretary to the Govecrnment, Co-operation, Food & Consumer Protection (CJ1)Department, Fort St.George, Chennai – 600 009. 2. The Registrar of Co-operative Societies, Chennai – 600 010. 3. The Madras Advocates Co-operative Society Ltd., rep. by its Special Officer, High Court, Chennai – 104. 4. The Election Officer, The Madras Advocates Co-operative Society Ltd., High Court, Chennai – 104. ..Respondents. W.A.No.827 of 2008 D.Kulasekaran, S/o.D.Devarajulu, No.22/19, South Mada Street, Koyambedu, Chennai – 600 107. ..Appellant. Vs. 1. The State of Tamil Nadu, rep. by its Secretary to the Government, Co-operation, Food & Consumer Protection (CJ1)Department, Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Registrar of Co-operative Societies, The Tamil Nadu Co-operative Societies, Kilpauk, Chennai – 600 010. 3. The Deputy Registrar (Non-Loan), Tamil Nadu Co-operative Societies, Kuralagam, Chennai – 600 108. 4. X-146, Madras Advocates Co-operative Society Ltd.(Canteen), rep. by its Special Officer, Madras High Court Buildings, Chennai – 600 104. ..Respondents. PRAYER: Writ Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge dated 03.06.2008 passedin W.P.Nos.24684 of 2007 and 24424 of 2007. WP 24684/2007: to issue a writ of Certiorarified Mandamus calling for the records of the first respondent in G.O.(2D) No.76, dated 11.7.2007 and quash the said order insofar as it relates to the third respondent society is concerned and consequently permit the petitioner and other elected members of the Board of Directors of the third respondent Society,who were declared elected on 11.7.2007 to assume office and WP No.24424/2007 to issue a writ of Certiorarified Mandamus calling for the records relating to the proceedings made in G.O.(2D) No.76, Co-operation, Food & Consumer Protection (CJ1) Department, dated 11.7.2007 issued by thefirst respondent and quash the same and consequently direct the respondents 2 and 3 to constitute the Board of Directors elected in the election held on 11.7.2007 in the 4th respondent society. ---------- Mr.R.Muthukumarasamy, :: For Appellant in W.A.932/08 Senior Counsel for Mr.A.Jenasenan Mr.G.Ethirajulu :: For Appellant in W.A.827/08 Mr.P.Wilson :: For 1st and 2nd respondent in WA.932/08 https://hcservices.ecourts.gov.in/hcservices/ and for R1 to R3 in WA.827/08 Addl. Adv.General VI the appeals. assisted by I.paranthaman Addl.Govt.Pleader ----------- J U D G M E N T THE HON'BLE THE CHIEF JUSTICE These two appeals have been filed against the common order of the writ Court passed in W.P.Nos.24684 of 2007 and 24424 of 2007 dated 3rd June 2008. 2. Both the writ petitions have been filed challenging the Governmental Order in G.O.(2D)No.76, dated 11th July, 2007 issued by the Secretary to the Government, Department of Co- operation, Food and Consumer Protection Department, whereby all the elections held or in progress in Primary, Central and Apex Co-operative Societies in the State of Tamil Nadu commencing from 8th June, 2007 under the provisions of Tamil Nadu Co- operative Societies Act, 1983 were cancelled. The text of the order dated 11th July, 2007 issued by the Secretary to the Government is set out below: 'Co-operation, Food and Consumer Protection (CJ1)Department G.O.(2D)No.76 Dated:11.07.2007 Read: 1. G.O.(2D) No.36, Co-operation, Food and Consumer Protection Department, dated 19.04.2007 2. From the Registrar of Co-operative Societies letter Rc.No.51684/2007/CE1 dated 11.07.2007 --------- ORDER: In the Government Order read above, orders have been issued for conducting elections to all the primary, central and apex co-operative societies in the State commencing from 8th June, 2007, under the provisions of the Tamil Nadu Co-operative Societies Act, 1983, and the rules made thereunder. 2. It has been brought to the notice of the Government that certain unwanted incidents have occured during these polls. The Government are of the opinion that these incidents have undermined the very purpose of conducting the elections to the co- operative societies in the State. The Government have therefore decided to cancel the elections to the co- operative societies wherever they have been conducted and to hold fresh elections to all the co-operatives https://hcservices.ecourts.gov.in/hcservices/ after consulting the leaders of all political parties in the Legislature. A new election schedule will be announced by the Government after these consultations. 3. The Registrars of Co-operative Societies are requested to cancel the elections wherever they have been completed or in progress. (By Order of the Governor) S.Machendranathan, Secretary to Government.' 3. Challenging the above said governmental order another writ petition in W.P.No.24746 of 2007 has been filed with a similar prayer, and also praying to quash the consequential order passed by the Deputy Registrar, Tamil Nadu Co-operative Societies, Krishnagiri dated 11.07.2007. 4. All the three writ petitions were heard together, and the learned single Judge by the impugned order dismissed the writ petitions upholding the governmental order quoted herein above. 5. Against the said common order only two appeals have been filed namely., W.A.Nos.932 of 2008 and 827 of 2008 which arose from W.P.Nos.24684 of 2007 and 24424 of 2007 respectively. Therefore, this judgment is confined only to those two writ petitions. 6. The appellant in W.A.No.932 of 2008 is an advocate and is a member of the Madras Advocates Co-operative Society Ltd.,the 3rd respondent herein, which is a registered society under the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as the 'said Act'). The said society is running a canteen within the High Court campus for the benefit of the advocates. It has been contended that the said society is goverend by the provisions of the said Act and the rules and bye laws framed under the said Act. The management of the said society vests in a Board of 11 Directors elected by the general body once in every 5 years. Thereafter, those Directors elect the relevant office bearers, such as, President, Vice President, Secretaries, Treasurer, etc., to the said society. By a notification dated 19th April, 2007 the Government of Tamil Nadu issued an order for the conduct of election to all co-operative societies in the State. Pursuant to such notification the date for the commencement of election was fixed on 8th June, 2007 under the provisions of the said Act. Initially 31 advocates https://hcservices.ecourts.gov.in/hcservices/ filed their nominations. Subsequently, two advocates withdrew their nominations. Therefore, 29 nominations were there for election. The election was conducted on 11th June, 2007 to the said society. The counting of votes was started by the 4th respondent – Election Officer, and the appellant having polled second largest number of votes was declared elected by the 4th respondent on the night of 11th June, 2007. Before the appellant and the other elected members could assume charge, they found that the government had issued the impugned order directing the Registrar of Co-operative Societies to cancel all elections and accordingly, the Registrar thereafter cancelled all elections. 7. The facts in the other case are almost the same. It appears that the advocates practising in the Madras High Court formed a society called Madras Advocates Co-operative Society Ltd. (Canteen). The said society is also registerd under the said Act, and it runs a canteen for its members on a non-profit basis. In the year 2001, the elected Board of Directors was superseded and a Special Officer was appointed. Since then, the Special Officer is running the canteen. Pursuant to the aforesaid notification, nominations are invited for the election to the Board of Directors. Pursuant to such notification, the writ petitioner filed his nomiantion. Thereafter, election programme was drawn up and election was conducted peacefully on 11.07.2007 inside the Court Campus without any complaint from any quarters. Thereafter, the counting of votes took place and the result was declared on 11.07.2007 announcing the 11 members to the Board of Directors and the writ petitioner was one of the successful member. Thereafter, came the said impugned order purporting to cancel the elections. 8. It is not in dispute that in these two writ petitions the membership of the society is confined only to the advocates. This fact has also been noted in the judgment of the learned Judge. 9. It is also not in dispute that after the aforesaid order was passed by the government, the Registrar, Co-operative Societies passed a consequential order cancelling all elections. Both the orders were challenged before the writ Court. 10. In the counter affidavit, which has been filed in those two writ petitions, it appears that insofar as the Madras Advocates Co-operative Society's election is concerned one P.Dharmalingam, Co-operative Sub Registrar was appointed the Election Officer and 31 members filed their nominations on 05.07.2007 and on 06.07.2007 two members withdrew their nominations, and the final list of contesting candidates published by the Election Officer contained about 29 names. Two members of the said society sent their telegrams on 06.07.2007 to the Registrar of Co-operative Societies stating that there were irregularities in filing nominations and requested to stop the election. It appears from the counter affidavit that https://hcservices.ecourts.gov.in/hcservices/ election took place on 11.07.2007 and results were declared by the Election Officer by 8 pm on the same day declaring election of 11 members to the Board of Governors, and thereafter, the election was cancelled by the impugned order referred to hereinabove. 11. The learned counsel for the appellants in assailing the impugned order of the government submitted that the impugned order does not give any reason for cancelling all the elections held for the co-operative societies in the State, which have been either completed or are in progress. The learned counsel submitted that the only reason given in the impugned order is that certain 'unwanted incidents have occured during these polls' and these 'incidents have undermined the very purpose of conducting the elections to the co-operative societies'. But no details of such allegedly unwanted incidents have been stated in the impugned order. Therefore, the impugned order discloses exercise of an omnibus power by the government in seeking to cancel all elections, which have been held or are in progress. 12.The learned counsel for the appellants also submitted that there is no provision under the said Act and the Rules made thereunder, which enable the government to pass such an order cancelling elections to the co-operative societies. 13. It appears from the judgment of the writ Court that the learned counsel for the government relied on Section 182 of the said Act as conferring power on the government to pass the impugned order cancelling elections to the co-operative societies. The learned single Judge accepting the said contentions held that 'I am of the view that Section 182 gives ample power to the government to take the impugned decision and it cannot be held unauthorised, particularly, when no mala fide is alleged against the respondents 1 and 2'. 14. The Learned single Judge also held in paragraph 19 of the judgment that government is well within its powers to cancel the elections already held. The learned Judge also supported the governmental order under Article 162 of the Constitution. 15. The learned Judge also relied on certain judgments on the concept of 'free and fair election' and the learned Judge referred to the judgment of the Supreme Court reported in (2006)7 SCC 1 (Kuldip Nayar Vs. Union of India)paragraph – 448. Reliance was placed also on the judgment of the Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner (AIR 1978 SC 851) paragraphs 91(2)(a) and (b) and 113. The learned Judge also referred to the decisions of the Supreme Court in the case of Smt.Indira Nehru Gandhi Vs. Shri.Raj Narain (1975 (Supp.1) SCC 1), Surinder Kaur Vs. State of Punjab (AIR 1996 SC 1507) and on the judgment in Jayarajbhai Jayantibhai Patel Vs. Anilbhai Jayantibhai Patel(2006 AIR SCW 4670). The learned Judge also https://hcservices.ecourts.gov.in/hcservices/ relied on the decision of a Division Bench of this Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. State Election Commissioner (2007 (1) CTC 705). Relying on the aforesaid judgments, the learned Judge held that the findings in those judgments can be applied to the facts of the present case, and has held that the decision taken by the government is legal and valid. 16. This Court is of the opinion that the election to a co-operative society stands on a completely different footing from the General Election. General Election is held on the basis of adult franchise, whereby any Indian citizen above the age of 18 is eligible to cast his/her vote provided his/her name is registered in the electoral roll. So far as a co-operative society is concerned it is entirely different. Registration of a co-operative society renders it under Section 39 of the said Act a body corporate with a perpetual succession and a common seal. Section 33 of the said Act mandates that the management of every registered co-operative society vests in a Board constituted in accordance with the provisions of the said Act and the Rules made thereunder. Sections 33 and 34 of the said Act read with Rules 46 and 52 of the Tamil Nadu Co-operative Societies Rules, 1988 (hereinafter referred to as the 'said Rules')provide for election of members of the Board. A perusal of those provisions will make it clear that in order to be a voter in an election of co-operative society one has to be a member of the soceity or a representative or delegate of some society. General members of public cannot be a voter nor can they participate in such election. Therefore, the election of such a body corporate is completely controlled under the statute which creates such a body. The writ Court however relied, in support of its finding, on the decision in Kuldip Nayar Vs. Union of India (supra).In that case the issues before the Supreme Court were the validity of amendments made in the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (Act 40 of 2003). In the context of considering those issues, the observations which have been made in paragraph 448, have been relied upon by the learned Judge of the writ Court. With great respect those observations cannot be relied upon bereft of its context. 17. Similarly, the decision in the case of Mohinder Singh Gill Vs. Chief Election Commissioner (supra) arose out of an order passed by the Chief Election Commission cancelling an election to a Parliamentary Constituency. 18. The decision in the case of Smt.Indira Nehru Gandhi Vs. Shri.Raj Narain, (supra) also dealt with the issues arising out of 39th Constitutional Amendment and issues which arose out of the decision of the Allahabad High Court in an election petition to a parliamentay constituency. 19. The judgment in the case of Surinder Kaur Vs. State https://hcservices.ecourts.gov.in/hcservices/ of Punjab, (supra) dealt with the question of panchayat election and the facts of that case show that a candidate made a complaint before the authority that she was prevented from filing her nomination papers and the candidate, so prevented, came before the High Court and obtained a stay of the election. Defying the stay, election was concluded. In that case, no governmental order, which is in issue in the present case, was ever passed. Therefore, in the said case the Court dealt with an individual grievance in relation to a panchayat election. 20. The other judgment in Jayarajbhai Jayanthibhai Patel Vs. Anilbhai Jayanthibhai Patel, (supra)was in respect of general election to municipalities and the fact situation there is not comparable with the present case. 21. The Division Bench judgment of this Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. State Election Commissioner, (supra)was also in respect of general municipal election, and the Court's interference in such election in the context of the provisions contained in Article 243-ZA and the bar created under Article 243-ZC of the Constitution. 22. Therefore, the decisions upon which reliance was placed by the learned single Judge do not throw much light on the points at issue in this case. The basic question here is whether the State Government has power under Section 182 of the said Act to pass the impugned order of cancellation of all election to co-operative societies which have been held or are in progress. 23. On examination of the provisions of Section 182 of the said Act, it will appear that the said section has various components. The said Section enables the State Government to pass an order in public interest directing the Registrar to make an inquiry and to take appropriate proceedings under the Act in any case specified in the said order. This is the first limb of the section. The second limb is that the Registrar shall, on the basis of such order, report to the government the result of the inquiry made and the proceedings taken by him within a period of six months from the date of such order or within such further time as the government may permit. Then comes the third limb of the section by way of sub Section (2), which provides that if a direction is given under the sub Sectin (1) the government may, notwithstanding anything contained in the Act, call for and examine the record of the proceedings of the Registrar and pass such orders in the case as they may think fit. But, there is a proviso which is the fourth limb and which enjoins that before passing any order under sub Section (2) the person likely to be affected by such order shall be given an opportunity of making his representation. 24. If we examine the impugned order, in the light of https://hcservices.ecourts.gov.in/hcservices/ the aforesaid discussion, it will be clear that none of the above components of Section 182 has been followed in the impugned order. The order does not show that any direction was given upon the Registrar to make an inquiry. In the absence of any such direction no report could obviously be given by the Registrar to the Government. The action of the government in the impugned order, appears to have emanated on the basis of some 'unwanted incidents which occured during the course of election', and which are brought to the notice of the government. It is nowhere stated that it has been brought to the notice of the government by the Registrar on an inquiry which was directed to be made by the government. Though the impugned order refers to a letter of the Registrar dated 11.07.2007, the contents of the said letter was not disclosed at any stage either before the learned Judge or before us. So it cannot be urged, and it has not been urged, that the so called letter of the Registrar is an inquiry report on the basis of any governmental order. Therefore, the said letter cannot be treated to be a report of an inquiry by the Registrar under Section 182 of the said Act. Even if we assume that letter to be a report of the Registrar within the meaning of Section 182, before any action is taken the persons affected must be given an opportunity to make their representations. That provision has, obviously, not been followed. Therefore, by no stretch of argument the impugned order can be said to have been passed under Section 182 of the said Act. 25. The provisions of Section 182 vests the government with extraordinary powers. Therefore, when such provision comes up for interpretation, the Court must not give an unnecessarily wide interpretation to validate an order which the government had passed without any legal justification for the same and without any show of legal authority under the said Act. If the Court does that, the same would undermine the Rule of Law which the court is duty bound to uphold. Therefore, this Court is unable to accept the interpretation given by the learned Judge on Section 182 of the said Act to sustain the impugned order. 26. Even if it is assumed for arguments sake that in a given case where a large scale illegalities have taken place in the matter of holding election in co-operative societies, government can interfere in exercise of its power under Section 182 of the said Act, the government can do so only by following the mode and manner of exercise of said power under Section 182 of the said Act. 27. Admittedly, in the instant case, the impugned order passed by the government does not show that the mode and manner of exercise of power under Section 182 has been followed. 28. Apart from that from the impugned order it appears that the government wants to finalise the date of next election of the co-operative societies after consultation with the https://hcservices.ecourts.gov.in/hcservices/ various political parties. It betrays an intention on the part of the government to politicise the entire co-operative movement in the State. This is wholly opposed to the concept of forming a co-operative society which is supposed to be an apolitical organisation. In fact, the premable to the said Act highlights the concept of co-operative movement as follows: "Whereas it is expedient further to provide for an orderly development of the co-operative movement in accordance with co-operative principles such as open membership, democratic management, limited interest on capital, distribution of surplus based on patronage, provision for co- operative education and co-operation among co- operatives, for the promotion of thrift, self-help and mutual aid among persons with common socio- economic needs so as to bring about improvement in agriculture and industry, better methods of production, better business and better living and for that purpose to amend and consolidate the law relating to co-operative societies in the State of Tamil Nadu." 29. In view of these avowed objects of co-operative movements, the impugned order of cancellation of all election of co-operative societies held or in process and the decision to hold the next fresh election after consulting the leaders of all the political parties in the legislature is erroneous – both legally and conceptually. 30. Under Section 90 of the said Act, there are provisions for raising election disputes. There are provisions for appeal under Section 152 and revision under Section 153 of the said Act, in respect of the decision which is given by the original forum dealing with such disputes. 31. In a matter relating to elections to a co-operative society, the Supreme Court has always insisted on following the mandate of the statute. In case relating to co-option in connection with such election, the Supreme Court held that where a statute requires to do certain things in a certain manner, it can be done in that manner alone unless a contrary indication is found in the statute (See Babaji Kondaji Garad Vs. Nasik Merchants Co-op. Bank Ltd., (1984) 2 SCC 50 at page 60 of the report). 32. A Constitution Bench of the Supreme Court in Daman Singh Vs. State of Punjab [(1985) 2 SCC 670] also held that co- operative societies are corporations as commonly understood. This Court has already noted that under Section 39 of the said Act all registered co-operative societies in the State are Corporations. In that context, it was observed by the Constitution Bench in Daman Singh (supra) that once a person https://hcservices.ecourts.gov.in/hcservices/ becoms a member of a co-operative society his rights are to be governed by the statutory provisions (See paragraph 11 at page 681 of the report). Therefore, the election also should be fully governed by statutory provisions. 33. This principle in Daman Singh (supra) has been subsequently relied upon by the Supreme Court in the case of State of U.P. Vs. C.O.D. Chheoki Employees' Co-operative Society Ltd., (1997) 3 SCC 681. 34. The learned counsel for the respondents tried to support the order of the learned Judge of the writ Court by referring to Article 162 of the Constitution of India and urged that under Article 162, the State in exercise of its executive power has an independent authority to pass an order. It