IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..4..2007 Coram The Hon'ble Mr. Justice K.CHANDRU W.P. Nos.19992 of 1998, 703 and 704 of 1999, 820, 1798 and 6326 of 2007 and M.P.Nos.1 and 2 of 2007 in W.P.No.820 of 2007, M.P.No.1 of 2007 in W.P.No.1798 of 2007 and M.P.No.1 of 2007 in W.P.No.6326 of 2007 W.P.No.19992 of 1998: Dr.M.Vinobaji ... Petitioner vs. 1. Central Registrar of Co-op. Societies Krishi Bhavan Dr.Rajendra Prasad Road New Delhi - 110 001 2. The Joint Registrar of Co-op. Societies Chennai Region Saidapet Chennai – 15 3. The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. Rep. by its Secretary 34-37 Dr.Muthulakshmi Road Thiruvanmiyur Chennai – 41 4. Dr.S.Sivanandam 5. K.M.Shanmugam 6. Dr.Gills Leonard ... Respondents R.4 impleaded as per order dated 27.1.99 in WMP.31138/98 R.5 impleaded as per order dated 2.7.2001 in WMP.12152/01 R.6 impleaded as per order dated 2.7.2001 in WMP.12153/01 https://hcservices.ecourts.gov.in/hcservices/ Prayer: Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of certiorari calling for the records pertaining to the proceedings of the first respondent bearing No.L- 11016/23/87-L & M dated 18.01.1993 and quash the same. For Petitioner : Mr.Nagasayanam For Respondents 1&2 : Mr.P.Wilson, Asst. Solicitor General of India For Respondent 3 : Mr.F.B.Benjamin George For Respondent 4 : Ms.M.Sakkira Banu For Respondent 5 : Mr.L.Rober Kennedy Ramesh For Respondent 6 : Mr.S.Velayutham W.P.Nos.703 and 704 of 1999: Dr.V.Thamilalagan... Petitioner in W.P.No.703 of 1999 Dr.P.M.Rajagopalan... Petitioner in W.P.No.704 of 1999 vs. 1. Central Registrar of Co-op. Societies Krishi Bhavan Dr.Rajendra Prasad Road New Delhi - 110 001 2. The Joint Registrar of Co-op. Societies Chennai Region Saidapet Chennai – 15 3. The Board of Directors by its President Dr.Kumaradas 4. The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. Rep. by its Secretary 34-37 Dr.Muthulakshmi Road Thiruvanmiyur Chennai – 41 https://hcservices.ecourts.gov.in/hcservices/ 5. Dr.Kumaradas 6. Dr.A.Anandakumar 7. Dr.S.K.Khadri 8. Dr.M.Abdul Hussain 9. Dr.N.Asai Thambi 10. Dr.P.Tamilmani 11. Dr.G.Jayakumar 12. Dr.(Mrs) K.Velumani 13. Dr.Gills Leonard 14. Dr.D.Radhakrishnamurthy 15. Dr.S.Venkata Raju 16. Dr.P.Pandarinath 17. Dr.G.P.Venmathian 18. Dr.V.Stanley Jones 19. Dr.S.Sivanandam.. Respondents in both W.P. Prayer: Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of certiorari calling for the records pertaining to the certificate of registration of amendment accorded by the first respondent in proceeding No.L.-11016/23/87 – L & M dated 14.01.1993 and the consequential election notification all connected proceedings of the fourth respondent bearing No.GBM No.2/98-99 dated 16.11.1998 pursuant to such amendment and quash the same. For Petitioner : Mr.A.L.Somayaji, SC for Mrs.Narmada Sampath For Respondents 1 : Mr.P.Wilson, Asst. Solicitor General of India W.P.No.820 of 2007: Dr.M.Muthukrishnan ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. Central Registrar of Co-op. Societies Krishi Bhavan Dr.Rajendra Prasad Road New Delhi - 110 001 2. The Board of Directors The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. by its President Dr.Kumaradas Thiruvanmiyur Chennai 3. The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. Rep. by its Secretary 34-37 Dr.Muthulakshmi Road Thiruvanmiyur Chennai – 41 4. Dr.Kumaradas 5. Dr.S.K.Khadri 6. Dr.M.Abdul Hussain 7. Dr.P.Tamilmani 8. Dr.G.Jayakumar 9. Dr.(Mrs) K.Velumani 10. Dr.Gills Leonard 11. Dr.D.Radhakrishnamurthy 12. Dr.S.Venkata Raju 13. Dr.P.Pandarinath 14. Dr.G.P.Venmathian 15. Dr.V.Stanley Jones 16. Dr.S.Sivanandam .. Respondents in both W.Ps. https://hcservices.ecourts.gov.in/hcservices/ Prayer: Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of certiorarified mandamus calling for the records pertaining to the impugned certificate of registration of amendment accorded by the first respondent in proceeding No.L.- 11016/23/87 – L & M dated 14.01.1993 and the consequential election notification all connected proceedings of the fourth respondent bearing No.GBM No.2/98-99 dated 16.11.1998 pursuant to such amendment and quash the same and direct the fourth respondent to conduct fresh election. For Petitioner : Mr.M.Muthappan For Respondents 1 : Mr.P.Wilson, Asst. Solicitor General of India For Respondent 16 : Mr.T.Mohan for Mr.M.Ravi W.P.No.1798 of 2007: Dr.A.Balasubramaniam ... Petitioner vs. 1. Central Registrar of Co-op. Societies Krishi Bhavan Dr.Rajendra Prasad Road New Delhi - 110 001 2. The Board of Directors The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. by its President Dr.Kumaradas Thiruvanmiyur Chennai 3. The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. Rep. by its Secretary 34-37 Dr.Muthulakshmi Road Thiruvanmiyur Chennai – 41 4. Dr.Kumaradas 5. Dr.P.Pandarinath https://hcservices.ecourts.gov.in/hcservices/ 6. Dr.G.P.Venmathian 7. Dr.V.Stanley Jones 8. Dr.M.Abdul Hussain 9. Dr.P.Tamilmani 10. Dr.G.Jayakumar 11. Dr.(Mrs) K.Velumani 12. Dr.Gills Leonard 13. Dr.D.Radhakrishnamurthy 14. Dr.S.Venkata Raju 15. Dr.S.K.Khadri 16. Dr.S.Sivanandam ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of mandamus directing the second respondent to conduct the election to the third respondent society following the rules laid down for election in the Multi State Co-operative Society under the Multi State Co-operative Societies Act 2002 and the Rules framed thereunder within the time. For Petitioner : Mr.Prabhakar For Mr.T.Palanivel For Respondents 1 : Mr.P.Wilson, Asst. Solicitor General of India For Respondent 16 : Mr.T.Mohan for Mr.M.Ravi W.P.No.6326 of 2007: The Indian Medical Practitioners' Co-op. Pharmacy and Stores Ltd. Rep. by its Secretary 34-37 Dr.Muthulakshmi Road Thiruvanmiyur Chennai – 41 ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ vs. 1. The Commissioner of Police Greater Chennai Egmore Chennai - 8 2. The Deputy Commissioner of Police Adayar Range Adayar Chennai - 20 3. The Assistant Commissioner of Police Adayar Range Adayar Chennai - 20 4. The Inspector of Police J-6 Thiruvanmiyur Police Station Chennai - 41 5. Labour Progressive Front IMPCOPS Thiruvanmiyur Chennai - 41 6. Dr.V.R.Seshadri ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of mandamus directing the respondents 1 to 3to provide sufficient police protection to the President, the Vice- President and other Board of Directors at the premises of Indian Medical Practitioners' CO-operative Pharmacy and Stores Ltd, 34-37 Kalki Krishnamurthy Salai, Thiruvanmiyur, Chennai – 41, or at any other place to attend and preside over the executive committee meeting and Board of Directors meetings dated 21.02.2007 and 22.02.2007 and all other meetings to be held on subsequent dates. For Petitioner : Mr.Krishnappan, SC for Ms.Swarnalatha For Respondents 6 : Mrs.A.V.Bharathi For Respondents 1 to 3 : Mrs.C.K.Vishnu Priya, Govt. Advocate. https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R By the orders of the Honourable Chief Justice, these matters were grouped and posted before this Court. 2. I have heard the learned counsels appearing for the respective parties and have perused the records. 3. All these writ petitions are in a way inter-connected and, therefore, they were heard together. They relate to conduct of elections to the third respondent Society, ie., Indian Medical Practitioners Co-operative Pharmacy and Stores Limited [for short, 'IMPCOPS'] and also the validity of the amendment made to bye-law No.7 regarding the membership. 4. IMPCOPS, the third respondent in the first writ petition, viz., W.P.No.19992 of 1998, was registered under the Madras Act VI of 1932. As its area of operation was extended throughout the country, it came to be registered under the Multi State Co-operative Societies Act 1984 [for short, '1984 Act']. As per the bye-laws of the Society registered with the Central Registrar of Co-operative Societies, the main objects of the Society are to manufacture Indian medicines of high quality under expert supervision and direction and to supply to the needs of the members in respect of prepared medicines, raw materials and appliances required by them as well as to open branches and depots for the sale of medicines, raw materials to its members. As per the original bye-laws, bye-law No.7 provided for the qualification of membership and it was made that each member should have minimum five shares for being a member of the Society. 5. According to the averments made in W.P.No.19992 of 1998, there were over 12,000 members in the IMPCOPS and for the purpose of electing members to the Board of Directors, each constituency will have to elect two directors and as per the procedure followed, each member will have to cast 14 votes to elect 14 Board of Directors from the various constituencies. However, on 19.7.1992, a resolution was passed in the general body and bye-law No.7 was amended, which reads as follows:- “Every member shall take at least fifty shares; but no member shall take more than 1,000 shares. Every member shall pay an entrance fee of twenty five paise for each share taken by him / her at the time of taking the share provided that the total payment of entrance fees by any one member for all the shares held by him / her shall not exceed Rs.5." 6. This amendment was sent to the Central Registrar of the Co- operative Societies at New Delhi and was also registered with effect from 14.01.1993. The majority of the members did not acquire the minimum shares prescribed and, therefore, the IMPCOPS, by a resolution https://hcservices.ecourts.gov.in/hcservices/ dated 16.11.1994, permitted all the members to vote in the election irrespective of the number of shares held by them and further resolved to remove those members, who did not acquire minimum of 50 shares on or 31.12.1995. Therefore, when the election was held on 23.9.1995 for the Board of Directors to the IMPCOPS, all the members were allowed to vote irrespective of the shares held by them. But, however, due to the advise of the Joint Registrar, the resolution was not given effect as many of the members did not acquire the higher shares. As on 08.8.1998, only 4012 members acquired 50 shares. This is roughly less than 1/3rd of the total membership of the IMPCOPS. In that election, one Dr.Kumaradas was elected as the President of the IMPCOPS. Thereafter, certain disputes took place among the Directors and certain Directors passed a resolution removing Dr.Kumaradas from the post of President and elected Dr.Pandarinath as President. 7. It was during the year 1998, the Board of Directors sought the advise of the Joint Registrar as to whether all the members must be allowed to participate in the election or only persons, who acquired more than 50 shares, should be allowed to vote. It is stated that after getting the opinion of the Joint Registrar, an election notification dated 16.11.1998 was issued permitting only those who were holding 50 shares and above, to vote. The then President Dr.Kumaradas for inexplicable reasons did not contest in the election but got himself nominated as a Returning Officer for the said election held during 12/98. 8. Protesting against this exclusion of more than 2/3rd of the membership, one Dr.M.Vinobaji filed W.P.No.19992 of 1998 and challenged the proceedings of the Central Registrar dated 18.01.1993 in registering the amendment to bye-law No.7. Pending the challenge, he also sought for interim stay of all further proceedings pursuant to the election notification dated 16.11.1998, which was conducted as per the amended bye-laws. 9. This Court, while admitting the writ petition, granted an interim order on 17.12.1998 staying the further proceedings. Thereafter, after hearing the parties, by a reasoned order dated 27.01.1999, certain orders were passed by this Court and the following directions are relevant for this case:- Para 11: “After having heard Learned Counsel on both sides, I feel that the interim order passed by me on 17.12.1998 in W.P.No.19992 of 1998 will have to continue until further orders. Para 12: Regarding the arguments that petitioners have got alternative remedy by way of appeal, prima facie I feel, taking into consideration the facts of this case, that the alternative remedy is not effective. On going by the provisions of the Bylaws, I feel that the petitioners have got a prima facie to urge before this Court. https://hcservices.ecourts.gov.in/hcservices/ Para 13: The submission of the learned Additional Government Pleader that the elected office bearers may be permitted to assume charge, and they will surrender the post if the Court allows the writ petitions, cannot be accepted. Under the Multi-purpose Co-operative Societies Act, there is a provision that the office bearers already elected and who are in office can continue to hold the same till the new office-bearers assume charge. So, there is no hardship to the Society. Para 14: If it is ultimately found that the petitioners were not properly elected, the Management by them, at least for certain period, will be illegal. On a reading of the By laws and also the Amendment, I prima facie feel that the Amendment is only prospective, and the same cannot affect the existing members. I find that petitioners who are entitled to vote, have been denied their right. I also prima facie find that there are inconsistencies with the existing Bylaws and the Amendment. Para 15: Since I hold that the petitioners have got a prima facie case and grounds have been made out by them for getting an interim order, I confirm my Order dated 17.12.1998 in W.P.No.19992 of 1998. The elected Office-bearers will not assume charge till the disposal of the writ petition.” By virtue of the interim order, passed by this Court, the said Dr.Kumaradas, who acted as a Returning Officer in the election impugned, continued to act as the President of the Society as he was the outgoing President before the new elections were held. 10. Thereafter, three writ petitions being W.P. Nos. 703 of 1999, 704 of 1999 and 820 of 2007, were filed by three different petitioners seeking to quash the Certificate of Registration of the amendment to the bye-laws dated 14.01.1993 as well as to set aside the election notification dated 16.11.1998. In these three writ petitions, the said Dr.Kumaradas was shown as the fourth respondent. Thereafter, it seems as if everyone has forgotton about the successive elections as the erstwhile Board of Directors continued in view of the pendency of the writ petition and the interim order. No steps were taken to get the writ petition disposed of and the directors, who were elected in the election held on 19.12.1998 [hereinafter referred to as '12/98 election'] were not allowed to resume office as were elected under the amended bye-laws. In the meantime, it appears, there was a strike by the workers engaged by IMPCOPS, who demanded the removal of the President Dr.Kumaradas and the then Board of Directors apparently passed a resolution of no-confidence against the President, which was communicated to him by a letter dated 13.11.2006. 11. The said Dr.Kumaradas filed a writ petition being W.P.No.43810 of 2006 challenging the resolution passed in that meeting. However, the said writ petition was dismissed directing him to avail alternative https://hcservices.ecourts.gov.in/hcservices/ remedy provided under the 1984 Act. Apparently, the said Dr.Kumaradas raised an arbitration dispute before the Central Registrar by invoking Section 9 of the Arbitration and Conciliation Act. He filed an application surprisingly before the Delhi High Court and his petition was numbered as O.M.P. No.554 of 2006. The Delhi High Court, vide order dated 27.11.2006 granted status quo ante as on 11.11.2006. The Delhi High Court passed a final order on 23.01.2007 allowing the application filed by Dr.Kumaradas and held as follows: “ The respondents are consequently restrained from giving effect to the removal of the petitioner as communicated to the petitioner in the letter dated 13th November 2006 issued by the respondent No.4. The parties shall maintain status quo as existing on the 11th of November 2006. The petitioner has claimed a right to continue in office by virtue of order dated 27 th January, 1999. It is made clear that the present order shall continue to operate till such time the order dated 27 th January 1999 is varied, modified or set aside by any court.” [Emphasis added[ 12. The challenge to the said order by certain persons by taking the matter before the Division Bench of the Delhi High Court had failed. While their appeal was admitted, interim stay application was dismissed by an order dated 02.3.2007 by the Delhi High Court. Therefore, the continuance of the said Kumaradas has now been made subject to the finality of the order to be passed in W.P No.19992 of 1998. 13. In the meanwhile, the said Dr.Kumaradas filed W.P.No.6326 of 2007 in the name of IMPCOPS represented by him, seeking for permission to give Police protection for himself and the other Board of Directors to attend the meeting fixed on 21.02.2007 and other subsequent dates. When that writ petition came up for admission on 22.02.2007, notice was taken by all the respondents and the learned Judge passed the order directing the writ petition to be posted along with the above batch of cases. That is how, all these writ petitions are grouped together and posted before this Court. 14. These matters were heard 28.3.2007 and 29.3.2007. When the matter was taken up, Mr.M.Krishnappan representing Ms.Swarnalatha, learned counsel appearing for the petitioner in W.P.No.6326 of 2007, stated that since the main writ petition has been taken up for final hearing, he is not pressing the writ petition and he wants the Court to dismiss the writ petition. However, Mr.F.B.Benjamin George, learned counsel, who is not appearing for any other party in the said writ petition stated that he is opposing the dismissal of the W.P.No.6326 of 2007. When a learned counsel (Mr.M.Krishnappan), who is fairly senior in the bar, makes a statement, it must be presumed that he makes the statement with full responsibility. The said statement will have to be accepted. Further, it is open to any party which filed a https://hcservices.ecourts.gov.in/hcservices/ petition to withdraw the same at any time unless the affected party makes a complaint that certain orders were obtained against them and they are prejudiced by the withdrawal of the petition. 15. In this context, it is relevant to quote the decision reported in AIR 1981 SC 1725 [Shaik Hussain and sons vs. M.G.Kannaiah] wherein the Supreme Court has observed that when the writ petitioner himself wanted to withdraw the petition and had even given good reasons, the High Court is not justified in considering that application and passing orders thereon. Hence, notwithstanding the objection raised by the counsel, who is not appearing for any party in W.P.No.6326 of 2007, the said writ petition shall stand dismissed. Consequently, connected Miscellaneous Petition will stand closed. 16. However, when the matter was taken up for hearing, Mr.Nagasagayam, learned counsel appearing for the petitioner in W.P.No.19992 of 1998 stated that he also wants to withdraw his petition. This was objected to by certain other counsels because it was stated that if the writ petition is dismissed, then naturally, the Board of Directors who were elected in the 12/1998 election, will have to assume charge. That will defeat the very purpose of the interim order dated 27.01.1999 passed by this Court. The said Dr.Kumaradas, who also acted as a Returning Officer, also protested against the dismissal of the writ petition because his removal from office by other Board of Directors and his continuance or otherwise, which was restrained by the orders of the Delhi High Court, was made conditional to the final outcome of the said writ petition. Therefore, the dismissal of the writ petition means his automatically losing his so-called right to continue to act as the President of the IMPCOPS as under proviso to Section 35(3) of the 1984 Act, his continuance is guaranteed. However, as there are other writ petitions, which also raised same issues, i.e., about the validity of the amendment made to the bye-laws and also the right of the Board members elected at the 12/1998 election, to take charge has to be determined so that a compendious order can be passed by this Court. 17. Though the matters were extensively argued by all the learned counsels, it was suggested to all the counsels appearing for various parties as to the imperative need for conducting a fresh election especially, for two reasons. One is that the last election was held in December 1998 and subsequently, even if certain persons were elected as office bearers, their terms would have been over since the term of office contemplated is only a period of three years as per bye-law No.26 of IMPCOPS and by now, at least two elections should have been conducted after the 12/98 election and the third election will be due in December 2007. 18. It was also pointed out by this Court that during the pendency of the writ proceedings, the Parliament has enacted Central Act 39 of 2002 [for short, '2002 Act'] and the same has come into force and the 1984 Act has also been repealed. The purpose and object of the 2002 Act have been mentioned in the preamble portion of the said Act, which https://hcservices.ecourts.gov.in/hcservices/ reads as follows: “An Act to consolidate and amend the law relating to co- operative societies, with objects not confined to one State and serving the interests of members in more than one State, to facilitate the voluntary formation and democratic functioning of co-operatives as people's institutions based on self-help and mutual aid and to enable them to promote their economic and social betterment and to provide functional autonomy and for matters connected therewith or incidental thereto.” [Emphasis added] 19. Further, the first schedule to the said Act prescribed under Section 3(g) sets out the co-operative principles that are expected under the new enactment and paragraph 2 of the First Schedule reads as follows: “2. Democratic Member Control.-- Co-operatives are democratic organisations controlled by their members, who actively participate in setting their policies and decision making. Elected representatives of these co- operatives are responsible and accountable to their members.” 20. In the light of the above, this Court suggested that fresh elections should be held at all costs and it should be conducted by a person, who is not a member of the Society. Further, taking note of the fact that there has been a litigation for over ten years by different groups on the said issue and in order to give quietus to the same, this Court may request a retired High Court Judge to conduct the elections and after the said election, entrust the affairs to the newly elected Board of Directors. The 2002 Act under Rule 19(2) appends a Schedule by which procedure for conduct of elections to the Board of Multi State Co-operative Society has been prescribed. In that, Rule No.1(a) contemplates appointment of a Returning Officer by the Board of Directors. Further, Section 45(6) of the 2002 Act clearly states that if the Board fails to conduct election of the members of the Board, the Central Registrar shall hold the election within a period of 90 days from the date when such election became due. This suggestion was accepted by all the counsels appearing for the parties and it was also stated that this Court can nominate a retired Judge to conduct and supervise the election. However, the learned counsels appearing for both the old set of Directors and the directors, who were elected at the 12/98 election, pleaded that they should be associated with the conduct of election as it is the prerogative of the Board of the Directors to conduct elections and nominate the Returning Officer. If this Court nominates a retired Judge, then the Board alone should be involved in the process of conducting the election and they should be completely taken into confidence by the Court appointed Commissioner. 21. The Supreme Court in a more or less similar stand off between two sets of members in a Multi-State Co-operative Society ordered for an https://hcservices.ecourts.gov.in/hcservices/ election to be conducted by the Central Registrar. The said decision is reported in AIR 1997 SC 1801 [Goa State Co-operative Bank Ltd. vs. Pedne Taluka Prathamik Shikshak Pat Saunstha Ltd. and others]. In paragraphs 6 and 7, it was stated as follows: Para 6: “Shri Anil B.Divan, the learned senior counsel appearing for the appellant, has brought to our notice the procedure applicable to the conduct of elections to the Societies as envisaged in Rule 104 and Schedule II of the Multi-State Co-operative Societies (Registration, Membership, Direction and Amendment, Settlement of Disputes, Appeal and Revision) Rules 1985 (for short, “the Rules”). He contended that election to