IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-6-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.24684 of 2007 and M.P.No.2 of 2007 W.P.No.24424 of 2007 and M.P.Nos.2 & 3 of 2007 W.P.No.24746 of 2007 and M.P.Nos.2 & 3 of 2007 W.P.No.24684 of 2007 Dr.P.Rajaji ... Petitioner 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. 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 – 600 104. 4. The Election Officer, The Madras Advocates Co-Operative Society Ltd., High Court, Chennai – 600 104. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court 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. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.24424 of 2007 D. Kulasekaran ... Petitioner 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. 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 – 600 018. 4. X-146 Madras Advocates Co-Operative Society Ltd,(Canteen), rep.by its Special Officer, Madras High Court Buildings, Chennai – 600 104. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court 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 the first 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. W.P.No.24746 of 2007 N. Venkatesh ... Petitioner 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, Tamil Nadu Co-Operative Societies, Krishnagiri. 4. S.7557, Noganoor Primary Agricultural Co-operative Bank Limited, rep.by its Special officer, Noganoor, Krishnagiri. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court 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 the first respondent and the consequential order in R.C.No.4426/2006/Election, dated 11.7.2007 passed by the third 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. For Petitioner in : R.Muthukumaraswamy, W.P.No.24684/2007 Senior Counsel for Mr.A.Jenasenan For Petitioners in : Mr.G.Ethirajulu W.P.Nos.24424 & 24746/2007 For Respondents : Mr.K.Ramaswamy, Addl.Advocate General, assisted by Mr.I.Paranthaman, Addl.Govt.Pleader COMMON ORDER By consent of both parties, the writ petitions are taken up for final disposal. 2. The common prayer in W.P.Nos.24424 and 24684 of 2007 is to quash the G.O(2D)No.76, Co-Operation, Food and Consumer Protection Department, dated 11.7.2007 and direct the respondents 2 and 3 to https://hcservices.ecourts.gov.in/hcservices/ constitute the Board of Directors, elected in the election held on 11.7.2007 for the 4th respondent Society. 3. In W.P.No.24746 of 2007 the prayer is to quash the G.O(2D) No.76, Co-Operation, Food and Consumer Protection Department, dated 11.7.2007 and the consequential order dated 11.7.2007 passed by the third respondent and direct the respondents 2 and 3 to constitute the Board of Directors elected in the election held on 11.7.2007 for the 4th Respondent Noganoor Primary Agricultural Co-operative Bank Limited, Krishnagiri. 4. The subject matter in W.P.Nos.24424 and 24684 of 2007 are relating to the election held for the Madras Advocate Co-Operative Society Limited, High Court, Chennai - 600 104 and the subject matter in W.P.No.24746 of 2007 is with regard to the election conducted for Noganoor Primary Agricultural Co-operative Bank Limited, Krishnagiri. Since the issue involved in all these cases are one and the same, viz., cancellation of election to the Board of Directors of the respective Co-Operative Society Limited/Co-Operative Bank Limited, all these cases are disposed of by this common order. 5. The brief facts necessary for disposal of these writ petitions are as follows: (i) The Madras Advocates Co-Operative Society Limited and Noganoor Primary Agricultural Co-Operative Bank Limited are Co- Operative Societies registered under the Tamil Nadu Co-Operative Societies Act, 1983. The Madras Advocates Co-Operative Society comprises of the advocates practising in various Courts and it is running a canteen for the benefit of the advocates in the High Court campus. The Society is governed by a set of bye-laws and the Tamil Nadu Co-Operative Societies Act, 1983 and the Rules, 1988. The management of the Society vests with the Board of Directors, comprising of 11 members, to be elected by the General Body, once in five years. The elected Board of Directors in turn will elect the office bearers comprising of President, Vice-President, Secretary and Treasurer of the Society. (ii) The election to the Co-Operative Societies in the State of Tamil Nadu have not been conducted for a long period and the management of the Societies vested with the Special Officers, appointed under the Tamil Nadu Co-Operative Societies Act, 1983. The Special Officers, appointed to manage the Societies held their office for a limited period, extended from time to time. (iii) On 19.4.2007, the Government of Tamil Nadu issued orders to conduct elections to all the Co-Operative Societies in the State, commencing from 8.6.2007 under the provisions of the Act and Rules. The Registrar of Co-Operative Societies, Chennai, initiated action to conduct elections in various Co-Operative Societies including the https://hcservices.ecourts.gov.in/hcservices/ respondent Society in W.P.Nos.24424 and 24648 of 2007, the membership of which is confined only to the advocates. (iv) Nominations were called for to elect 11 persons as Board of Directors, for which 31 advocates filed their nominations and two of them withdrew their nominations and 29 advocates contested for 11 Board of Directors. The election was held on 11.7.2007 and concluded at 4.00 p.m. After completion of the polling, counting of votes commenced and after completing the counting, results were announced by the 4th respondent declaring 11 persons as duly elected Board of Directors, including the petitioners in W.P.No.24684 and 24424 of 2007. (v) Insofar as the Noganoor Primary Agricultural Co-Operative Bank Limited, Krishnagiri, is concerned, pursuant to the directions issued by the Government and the Registrar of Co-Operative Societies, Chennai, the third respondent issued election notification on 9.6.2007 inviting nominations for election to the post of seven Board of Directors to be held on 11.7.2007, for which 42 nominations were received, of which two were rejected and 16 nominations were withdrawn. Thus, 24 candidates including the petitioner were in the fray. Election was conducted on 11.7.2007 by the Election Officer viz. the Senior Inspector of the Co-Operative Societies. Counting of votes commenced after completion of polling on the same date, seven persons were elected for the Board of Directors. Petitioner is one among the successful candidates. Election to the post of Office Bearers of the Board was to he held on 27.7.2007 as per the election programme. (vi) The grievance of the petitioners are that after their respective election to the Board of Directors of the concerned Society/Bank, the Government ordered to cancel the entire election conducted to various Co-Operative Societies/Bank through the impugned Government Order dated 11.7.2007 and gave directions to the Registrar of Co-operative Societies to cancel all the elections wherever elections have been completed or in progress, based on which the Registrar of Co-Operative Societies cancelled the elections held and stopped wherever the elections were in progress throughout the State of Tamil Nadu. (vii) The said order of the Government and the consequential cancellation are challenged in these writ petitions on the ground that neither the first respondent Government nor the second respondent/Registrar of Co-Operative Societies have any jurisdiction under the Act or Rules to cancel the elections, which have been held and completed and therefore their actions are without jurisdiction. The reasons stated in the impugned order is that it has been brought to the notice of the Government that certain unwarranted incidents happened during the Poll/elections to the Co-Operative Societies and that the Government is of the opinion that such incidents have https://hcservices.ecourts.gov.in/hcservices/ undermined the purpose of conducting elections to the Co-Operative Societies and insofar as the petitioner Society/Bank are concerned, the elections were conducted peacefully without any complaint on 11.7.2007 and therefore the reason stated in the impugned order is not applicable to cancel the elections to the Society/Bank in which petitioners are elected as Board of Directors. According to the petitioners, as there was no complaint or untoward incidents in the conduct of elections to the Board of Directors in the respective Society/Bank, wherein petitioners were elected and no irregularities have been pointed out, cancelling the elections on the ground of alleged irregularities in the election conducted for other Societies cannot be a ground to cancel the election of the petitioners. 6. The respondents filed common counter affidavit by stating as follows: (a) In the year 2001, the Government issued G.O.Ms.No.204, Co- Operation, Food and Consumer Protection Department, dated 25.5.2001 and ordered to conduct elections to the Primary Co-Operative Societies in September, 2001. The said order was issued under section 33(10)(aa) of the Tamil Nadu Co-Operative Societies Act, 1983, and thereby the term of the Special Officers appointed for the Societies under the Act during the year 1996, 1997, 1998 and upto 31.10.1998 came to an end. The Special Officers were appointed for a period of six months in June 2001 under section 89(1) of the Tamil Nadu Co-Operative Societies Act, 1983, for a period of six months or till the elected Boards are constituted, whichever is earlier. (b) The Government also inserted a new section viz., Section 89A of the Act empowering the Special officer/Administrator to admit new members. Number of writ petitions in W.P.No.13354 of 2001 etc., batch were filed challenging the validity of the said new Section, 89A before this Court. On 20.12.2005, a Full Bench of this Court allowed the writ petitions and declared the said new section viz., Section 89A as unconstitutional. The Government filed Civil Appeal No.9507 of 2006 before the Supreme Court. During pendency of the said civil appeal before the Supreme Court, the Government decided to hold elections to the Co-Operative Societies and also resolved to withdraw the Civil Appeal. Hence the Civil appeal was dismissed as withdrawn on 4.9.2006. (c) The Government thereafter decided to conduct elections to all the Primary, Central and Apex Co-Operative Societies in the State from 8.6.2007 and communicated the programme of election proposed to be held in G.O.(2D)No.36 Co-Operation, Food and Consumer Protection Department, dated 19.4.2007. The Registrar of Co-Operative Societies and the Functional Registrars were requested to take immediate action to complete the elections to all the Co-operative Societies in the state as per the programme already fixed. https://hcservices.ecourts.gov.in/hcservices/ (d) Election notifications were issued by the Subordinate Officers of the Registrar and Functional Registrars and nominations were filed. During the election process large number of telegrams and complains were received by the Registrar and the Government alleging various irregularities in very many Co-Operative Societies/Banks. Since the respondents received innumerable complaints from several members of the Co-Operative Societies that nomination papers have not been issued to them and nomination papers were issued only to selected persons, the Government instructed the Registrar of Co-Operative Societies to issue public notice through the newspaper about the complaints and directed all the officers to issue nomination papers to all eligible persons, failing which action will be taken against them. (e) It is further stated in the counter affidavit that after the election process had commenced all over the State, several members of the Societies and the proposed contestants had given various complaints to the Government about the irregularities and the same were reported in the daily newspapers and in several places violence took place and there were every threat of free and fair elections. In view of the above reports, the Government had decided to get a report from the Registrar of Co-Operative Societies, pursuant to which the Registrar had given a detailed report, based on which the impugned order cancelling the elections already conducted and to stop the elections wherever the same were not conducted was issued. (f) It is further stated in the counter affidavit that during the election process, about 62 writ petitions were filed before this Court alleging various irregularities during the course of the Co- Operative Society Elections. (g) Insofar as the Madras Advocates Co-Operative Society Limited is concerned, the Deputy Registrar of Co-Operative Societies (non-credit), Chennai, issued the election programme under Rule 52 of the Tamil Nadu Co-Operative Societies Rules, 1988. One P.Dharmalingam, Co-Operative Sub-Registrar was notified as Election Officer. On 5.7.2007 the date of filing of nominations, 31 members had filed nominations and on 6.7.2007 two members withdrew their nominations and the final list of contesting candidates was published by the Election Officer containing 29 names. (h) Two members of the said Society viz., P.V.Elango and Muthukumar had sent telegrams on 6.7.2007 to the Registrar of Co- Operative Societies stating that there were irregularities in filing nominations on 5.7.2007 and requested to stop the elections. However, the polling took place on 11.7.2007 and the results were also declared on 11.7.2007 by the Election Officer at 8.00 p.m. and the names of the 11 elected members were announced. Pursuant to the impugned Government Order, the Deputy Registrar (non credit), https://hcservices.ecourts.gov.in/hcservices/ Chennai, through his proceeding dated 11.7.2007 cancelled the said elections also. (i) It is also stated in the counter affidavit that one C.K.Harihararajan, Advocate had filed W.P.No.23326 of 2007 as Public Interest Litigation before this Court and prayed for direction to prepare corrected Voters' list and to conduct election, as the Voters list has not been properly prepared and published. The writ petition was admitted and after the impugned order was passed, the said writ petition was dismissed as infructuous by the Division Bench of this Court on 10.10.2007. (j) It is further stated in the counter affidavit that the impugned order has been issued in the larger public interest and the Board of Directors having not been duly constituted, petitioners cannot have any vested right to be the member of the Board. Since the impugned order was passed on 11.7.2007, no election took place for other office bearers of the Board and the Government is empowered to pass the impugned order under section 182(1) of the Tamil Nadu Co- Operative Societies Act, 1983, on public interest as well as under Article 162 of the Constitution of India. (k) To substantiate the large scale irregularity it is stated in paragraph 17 of the Counter affidavit that there are 17,468 Primary Co-Operative Societies for which nominations were filed and in 13,648 Primary Co-Operative Societies, that is in 78% of the Societies, elections were said to have been completed without contest and as many as 1,19,091 persons were declared elected as un-opposed and in 1,279 Societies polls were conducted and after completion of the counting of votes polled, 10,639 persons were declared elected as members of the Board. The Government having not satisfied with the said conduct of elections and in the light of the complaints and allegations received from several members throughout the State, a report was called for and received from the Registrar, who found that there were several irregularities committed during elections and the first respondent, after satisfaction of the large scale irregularities, issued the impugned order. 7. The learned Senior Counsel appearing for the petitioner in W.P.No.24684 of 2007 and the learned counsel appearing for the petitioners in W.P.Nos.24424 and 24746 of 2007 submit that insofar as the Madras Advocates Co-Operative Society Limited is concerned, there is no irregularity and election was conducted in a proper manner and the petitioners in these two writ petitions have been duly elected after keen contest and cancelling their elections including the election to other Board members pursuant to the impugned order is without jurisdiction, as neither the Government nor the Registrar has any power to cancel the election already conducted and only provision available under the Act is to supersede the Board under Section 88 of the Act, 1983, or to remove the elected member of the Board by https://hcservices.ecourts.gov.in/hcservices/ resolution to be passed under Rule 61 of the Tamil Nadu Co-Operative Societies Rules, 1988. The learned Senior Counsel also submitted that the Registrar has power to disqualify or remove the elected member of the Board under section 36 of the Act only on account of corrupt practice, negligence or mismanagement and therefore the respondents 1 and 2 have no jurisdiction to order cancellation of the elections already held. 8. The learned Additional Advocate General on the basis of the counter affidavit submitted that the Board is not constituted in any one of the societies under section 33(1)(a) of the Tamil Nadu Co- Operative Societies Act, 1983, as there was no co-option of women, scheduled caste and scheduled tribe members and the office bearers of the registered Society have not been elected under section 33(11)(b) of the Act and only after the constitution of the Board after electing the office bearers, a meeting can be convened under Rule 53 (2) of the Tamil Nadu Co-Operative Societies Rules. Thus, there is no right accrued to the petitioners merely because they were elected as Board Members in the election held on 11.7.2007. The learned Additional Advocate General further submitted that section 182 of the Tamil Nadu Co-Operative Societies Act, 1983, gives ample powers to the Government to issue the impugned Government Order and the Government, in exercise of its executive power issued the Government order under Article 162 of the Constitution of India and therefore the contention of the petitioners that the Government has no power to cancel the elections is unsustainable. The learned Additional Advocate General further submitted that insofar a the Madras Advocates Co-Operative Society Limited is concerned one C.K.Harihararajan filed W.P.No.23396 of 2007 and the said writ petition was admitted by this Court wherein it is pointed out that the Voters list contain not only the names of the advocates but the names of many of the Honourable Judges, sitting and retired judges are also find a place and the Voters list was not prepared and published in the manner known to law. Time to file nominations were also restricted upto 1.00 p.m. and various violations of rules 52 (5a), 52(5b), 52(6a) & 52(6b), etc., were alleged and the said fact as well as the pendency of 62 writ petitions challenging the election process pending on the file of this Court alleging various irregularities were also taken note of and therefore on public interest as well as on the basis of the complaint received from various quarters, the impugned decision was taken and if irregularities were pointed out, the Government is bound to take appropriate decision even in respect of election matters as held by F.M.Ibrahim Kalifulla,J., concurred by P.K.Misra,J., in the decision reported in 2007 (1) CTC 705 (All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner). 9. I have considered the rival submissions made by the learned Senior Counsel and learned counsel for the respective petitioners as well as the learned Additional Advocate General for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 10. The Government ordered to hold elections to various Co- Operative Societies through G.O.(2D)No.36, Co-Operation, Food and Consumer Protection Department, dated 19.4.2007, through which the Registrar and Functional Registrars of the Co-Operative Societies were requested to take immediate action to complete the elections to all Co-Operative Societies in the State and programmes were also announced. The said Government order was issued to hold elections under section 33 of the Tamil Nadu Co-Operative Societies Act, 1983, which states that the management of every registered society shall vest with the Board constituted in accordance with the provisions of the Act, Rules and Bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it by this Act, Rules and bye-laws. 11. Rule 52 of the Tamil Nadu Co-Operative Societies Rules, 1988, deals with election of members of the Board. Under Rule 52(b) the Registrar may at any time arrange for the conduct of election of members. Rule 52(2) states that election of the members of the Board of every Society shall be conducted in the manner specified in Rule 52. The Registrar shall appoint as many officers of the Government or officers subordinate to him as election officers for conducting the election. The Election Officer may appoint one or more person as Polling Officer to assist him in the conduct of elections. Under Rule 52(5)(a), the Registrar shall fix the date of election and draw up a programme for the conduct of the election and the same shall be send to the Society at least 21 days prior to the date of poll. Rule 52 (5)(b) states that the programme shall contain the following information: "52(5)(b) The programme for conduct of election shall contain information regarding,- (i) the date on which,- (A) the society shall publish the voters' list in the notice board at the office of the society; (B) the members shall make claims or raise objections to the voters list; and (C) the decision of the election officer on the claims made or objections raised to the voters' list shall be published; (ii) where the society fails to prepare and publish the voters' list within the time specified in item (i), the date on which,- (A) the election officer shall publish the voters' list in the notice board at the office of the society; (B) the members shall make claims or raise objections to the voters' list; and https://hcservices.ecourts.gov.in/hcservices/ (C) the decision of the election officer on the claims made or objections raised to the voters' list shall be published; (iii) The date on which, the place at which and the time during which,- (A) the nomination papers shall be filed; (B) the nomination papers shall be scrutinised and list of valid nominations shall be published; (C) nominations may be withdrawn; (D) final list of contesting candidates shall be published; and (E) polling, if required, will take place: Provided that there shall be an interval of not less than three clear days between the date fixed for filing of nomination and the date of poll: Provided further that different timings can be fixed for different constituencies on the same date and that more than one date may be fixed for polling, where polling cannot be held on the same date in the same place or different places." Sub-rule 6(a) deals with issuing notice of election, which reads as follows: "6(a) The Registrar or the Election Officer shall, send notice of election to the members who, on the date thirty days prior to the date of poll, were the members of the society. The notice shall contain information regarding- (i) the number of vacancies to be filled up by election: (ii) constituency, if any, from which the members are to be elected; (iii)the date, place and time fixed for filing, scrutiny, withdrawal and publication of valid list of nominations; (iv) the date, place and time specified for polling; and (v) the time, date and place in which the counting of votes shall take place." Sub-Rule 7(b) deals with preparation of Voters' List, which reads thus, https://hcservices.ecourts.gov.in/hcservices/ "7(b) The Voters' list shall contain- (i)