Dr.P.Rajaji v. The State of Tamil Nadu

W.P.No.24424 of 2007D. Kulasekaran...PetitionerVs.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-OperativeSociety Ltd,(Canteen),rep.by its Special Officer,Madras High Court Buildings,Chennai – 600 104....RespondentsPrayer:This writ petition is filed under Article 226 ofConstitution of India, praying this Court to issue a writ ofCertiorarified mandamus calling for the records relating to theproceedings made in G.O.(2D)No.76, Co-Operation, Food & ConsumerProtection (CJ1) Department, dated 11.7.2007 issued by the firstrespondent and quash the same and consequently direct the respondents2 and 3 to constitute the Board of Directors elected in the electionheld on 11.7.2007 in the 4th respondent Society.W.P.No.24746 of 2007N. Venkatesh...PetitionerVs.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 AgriculturalCo-operative Bank Limited,rep.by its Special officer, Noganoor,Krishnagiri....RespondentsPrayer:This writ petition is filed under Article 226 ofConstitution of India, praying this Court to issue a writ ofCertiorarified Mandamus calling for the records relating to theproceedings made in G.O.(2D)No.76 Co-Operation, Food & ConsumerProtection (CJ1) Department, dated 11.7.2007 issued by the firstrespondent and the consequential order in R.C.No.4426/2006/Election,dated 11.7.2007 passed by the third respondent and quash the sameand consequently direct the respondents 2 and 3 to constitute theBoard of Directors elected in the election held on 11.7.2007 in the4th respondent Society.For Petitioner in:R.Muthukumaraswamy,W.P.No.24684/2007Senior Counselfor Mr.A.JenasenanFor Petitioners in :Mr.G.EthirajuluW.P.Nos.24424 & 24746/2007For Respondents:Mr.K.Ramaswamy,Addl.Advocate General,assisted byMr.I.Paranthaman,Addl.Govt.PleaderCOMMON ORDERBy consent of both parties, the writ petitions are taken up forfinal disposal.2.The common prayer in W.P.Nos.24424 and 24684 of 2007 is toquash the G.O(2D)No.76, Co-Operation, Food and Consumer ProtectionDepartment, 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 on11.7.2007 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, dated11.7.2007 and the consequential order dated 11.7.2007 passed by thethird respondent and direct the respondents 2 and 3 to constitute theBoard of Directors elected in the election held on 11.7.2007 for the4th Respondent Noganoor Primary Agricultural Co-operative BankLimited, Krishnagiri.4.The subject matter in W.P.Nos.24424 and 24684 of 2007 arerelating to the election held for the Madras Advocate Co-OperativeSociety Limited, High Court, Chennai - 600 104 and the subject matterin W.P.No.24746 of 2007 is with regard to the election conducted forNoganoor 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 therespective 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 writpetitions are as follows:(i)The Madras Advocates Co-Operative Society Limited andNoganoor Primary Agricultural Co-Operative Bank Limited are Co-Operative Societies registered under the Tamil Nadu Co-OperativeSocieties Act, 1983. The Madras Advocates Co-Operative Societycomprises of the advocates practising in various Courts and it isrunning a canteen for the benefit of the advocates in the High Courtcampus. The Society is governed by a set of bye-laws and the TamilNadu Co-Operative Societies Act, 1983 and the Rules, 1988. Themanagement of the Society vests with the Board of Directors,comprising of 11 members, to be elected by the General Body, once infive years. The elected Board of Directors in turn will elect theoffice bearers comprising of President, Vice-President, Secretary andTreasurer of the Society.(ii)The election to the Co-Operative Societies in the State ofTamil Nadu have not been conducted for a long period and themanagement of the Societies vested with the Special Officers,appointed under the Tamil Nadu Co-Operative Societies Act, 1983. TheSpecial Officers, appointed to manage the Societies held their officefor a limited period, extended from time to time.(iii) On 19.4.2007, the Government of Tamil Nadu issued ordersto 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 toconduct 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 membershipof which is confined only to the advocates.(iv)Nominations were called for to elect 11 persons as Board ofDirectors, for which 31 advocates filed their nominations and two ofthem withdrew their nominations and 29 advocates contested for 11Board of Directors. The election was held on 11.7.2007 and concludedat 4.00 p.m. After completion of the polling, counting of votescommenced and after completing the counting, results were announcedby the 4th respondent declaring 11 persons as duly elected Board ofDirectors, including the petitioners in W.P.No.24684 and 24424 of2007.(v)Insofar as the Noganoor Primary Agricultural Co-OperativeBank Limited, Krishnagiri, is concerned, pursuant to the directionsissued by the Government and the Registrar of Co-Operative Societies,Chennai, the third respondent issued election notification on9.6.2007 inviting nominations for election to the post of seven Boardof Directors to be held on 11.7.2007, for which 42 nominations werereceived, of which two were rejected and 16 nominations werewithdrawn. Thus, 24 candidates including the petitioner were in thefray. Election was conducted on 11.7.2007 by the Election Officerviz. the Senior Inspector of the Co-Operative Societies. Counting ofvotes commenced after completion of polling on the same date, sevenpersons were elected for the Board of Directors. Petitioner is oneamong the successful candidates. Election to the post of OfficeBearers of the Board was to he held on 27.7.2007 as per the electionprogramme.(vi)The grievance of the petitioners are that after theirrespective election to the Board of Directors of the concernedSociety/Bank, the Government ordered to cancel the entire electionconducted to various Co-Operative Societies/Bank through the impugnedGovernment Order dated 11.7.2007 and gave directions to the Registrarof Co-operative Societies to cancel all the elections whereverelections have been completed or in progress, based on which theRegistrar of Co-Operative Societies cancelled the elections held andstopped wherever the elections were in progress throughout the Stateof Tamil Nadu.(vii) The said order of the Government and the consequentialcancellation are challenged in these writ petitions on the groundthat neither the first respondent Government nor the secondrespondent/Registrar of Co-Operative Societies have any jurisdictionunder the Act or Rules to cancel the elections, which have been heldand completed and therefore their actions are without jurisdiction.The reasons stated in the impugned order is that it has been broughtto the notice of the Government that certain unwarranted incidentshappened during the Poll/elections to the Co-Operative Societies andthat 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-OperativeSocieties and insofar as the petitioner Society/Bank are concerned,the elections were conducted peacefully without any complaint on11.7.2007 and therefore the reason stated in the impugned order isnot applicable to cancel the elections to the Society/Bank in whichpetitioners are elected as Board of Directors. According to thepetitioners, as there was no complaint or untoward incidents in theconduct of elections to the Board of Directors in the respectiveSociety/Bank, wherein petitioners were elected and no irregularitieshave been pointed out, cancelling the elections on the ground ofalleged irregularities in the election conducted for other Societiescannot be a ground to cancel the election of the petitioners.6.The respondents filed common counter affidavit by statingas follows:(a)In the year 2001, the Government issued G.O.Ms.No.204, Co-Operation, Food and Consumer Protection Department, dated 25.5.2001and ordered to conduct elections to the Primary Co-OperativeSocieties in September, 2001. The said order was issued undersection 33(10)(aa) of the Tamil Nadu Co-Operative Societies Act,1983, and thereby the term of the Special Officers appointed for theSocieties under the Act during the year 1996, 1997, 1998 and upto31.10.1998 came to an end. The Special Officers were appointed for aperiod of six months in June 2001 under section 89(1) of the TamilNadu Co-Operative Societies Act, 1983, for a period of six months ortill the elected Boards are constituted, whichever is earlier.(b)The Government also inserted a new section viz., Section89A of the Act empowering the Special officer/Administrator to admitnew 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 Courtallowed the writ petitions and declared the said new section viz.,Section 89A as unconstitutional. The Government filed Civil AppealNo.9507 of 2006 before the Supreme Court. During pendency of thesaid civil appeal before the Supreme Court, the Government decided tohold elections to the Co-Operative Societies and also resolved towithdraw the Civil Appeal. Hence the Civil appeal was dismissed aswithdrawn on 4.9.2006.(c)The Government thereafter decided to conduct elections toall the Primary, Central and Apex Co-Operative Societies in the Statefrom 8.6.2007 and communicated the programme of election proposed tobe held in G.O.(2D)No.36 Co-Operation, Food and Consumer ProtectionDepartment, dated 19.4.2007. The Registrar of Co-Operative Societiesand the Functional Registrars were requested to take immediate actionto complete the elections to all the Co-operative Societies in thestate as per the programme already fixed. https://hcservices.ecourts.gov.in/hcservices/ (d)Election notifications were issued by the SubordinateOfficers of the Registrar and Functional Registrars and nominationswere filed. During the election process large number of telegramsand complains were received by the Registrar and the Governmentalleging various irregularities in very many Co-OperativeSocieties/Banks. Since the respondents received innumerablecomplaints from several members of the Co-Operative Societies thatnomination papers have not been issued to them and nomination paperswere issued only to selected persons, the Government instructed theRegistrar of Co-Operative Societies to issue public notice throughthe newspaper about the complaints and directed all the officers toissue nomination papers to all eligible persons, failing which actionwill be taken against them.(e)It is further stated in the counter affidavit that afterthe election process had commenced all over the State, severalmembers of the Societies and the proposed contestants had givenvarious complaints to the Government about the irregularities and thesame were reported in the daily newspapers and in several placesviolence took place and there were every threat of free and fairelections. In view of the above reports, the Government had decidedto get a report from the Registrar of Co-Operative Societies,pursuant to which the Registrar had given a detailed report, based onwhich the impugned order cancelling the elections already conductedand to stop the elections wherever the same were not conducted wasissued.(f)It is further stated in the counter affidavit that duringthe election process, about 62 writ petitions were filed before thisCourt alleging various irregularities during the course of the Co-Operative Society Elections. (g)Insofar as the Madras Advocates Co-Operative SocietyLimited is concerned, the Deputy Registrar of Co-Operative Societies(non-credit), Chennai, issued the election programme under Rule 52 ofthe Tamil Nadu Co-Operative Societies Rules, 1988. OneP.Dharmalingam, Co-Operative Sub-Registrar was notified as ElectionOfficer. On 5.7.2007 the date of filing of nominations, 31 membershad filed nominations and on 6.7.2007 two members withdrew theirnominations and the final list of contesting candidates was publishedby the Election Officer containing 29 names.(h)Two members of the said Society viz., P.V.Elango andMuthukumar had sent telegrams on 6.7.2007 to the Registrar of Co-Operative Societies stating that there were irregularities in filingnominations on 5.7.2007 and requested to stop the elections.However, the polling took place on 11.7.2007 and the results werealso declared on 11.7.2007 by the Election Officer at 8.00 p.m. andthe names of the 11 elected members were announced. Pursuant to theimpugned Government Order, the Deputy Registrar (non credit), https://hcservices.ecourts.gov.in/hcservices/ Chennai, through his proceeding dated 11.7.2007 cancelled the saidelections also.(i)It is also stated in the counter affidavit that oneC.K.Harihararajan, Advocate had filed W.P.No.23326 of 2007 as PublicInterest Litigation before this Court and prayed for direction toprepare corrected Voters' list and to conduct election, as the Voterslist has not been properly prepared and published. The writ petitionwas admitted and after the impugned order was passed, the said writpetition was dismissed as infructuous by the Division Bench of thisCourt on 10.10.2007.(j)It is further stated in the counter affidavit that theimpugned order has been issued in the larger public interest and theBoard of Directors having not been duly constituted, petitionerscannot have any vested right to be the member of the Board. Sincethe impugned order was passed on 11.7.2007, no election took placefor other office bearers of the Board and the Government is empoweredto pass the impugned order under section 182(1) of the Tamil Nadu Co-Operative Societies Act, 1983, on public interest as well as underArticle 162 of the Constitution of India.(k)To substantiate the large scale irregularity it is statedin paragraph 17 of the Counter affidavit that there are 17,468Primary Co-Operative Societies for which nominations were filed andin 13,648 Primary Co-Operative Societies, that is in 78% of theSocieties, elections were said to have been completed without contestand as many as 1,19,091 persons were declared elected as un-opposedand in 1,279 Societies polls were conducted and after completion ofthe counting of votes polled, 10,639 persons were declared elected asmembers of the Board. The Government having not satisfied with thesaid conduct of elections and in the light of the complaints andallegations received from several members throughout the State, areport was called for and received from the Registrar, who found thatthere were several irregularities committed during elections and thefirst respondent, after satisfaction of the large scaleirregularities, issued the impugned order. 7.The learned Senior Counsel appearing for the petitioner inW.P.No.24684 of 2007 and the learned counsel appearing for thepetitioners in W.P.Nos.24424 and 24746 of 2007 submit that insofar asthe Madras Advocates Co-Operative Society Limited is concerned, thereis no irregularity and election was conducted in a proper manner andthe petitioners in these two writ petitions have been duly electedafter keen contest and cancelling their elections including theelection to other Board members pursuant to the impugned order iswithout jurisdiction, as neither the Government nor the Registrar hasany power to cancel the election already conducted and only provisionavailable under the Act is to supersede the Board under Section 88 ofthe 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-OperativeSocieties Rules, 1988. The learned Senior Counsel also submittedthat the Registrar has power to disqualify or remove the electedmember of the Board under section 36 of the Act only on account ofcorrupt practice, negligence or mismanagement and therefore therespondents 1 and 2 have no jurisdiction to order cancellation of theelections already held.8.The learned Additional Advocate General on the basis of thecounter affidavit submitted that the Board is not constituted in anyone 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 ofthe registered Society have not been elected under section 33(11)(b)of the Act and only after the constitution of the Board afterelecting the office bearers, a meeting can be convened under Rule 53(2) of the Tamil Nadu Co-Operative Societies Rules. Thus, there isno right accrued to the petitioners merely because they were electedas Board Members in the election held on 11.7.2007. The learnedAdditional Advocate General further submitted that section 182 of theTamil Nadu Co-Operative Societies Act, 1983, gives ample powers tothe Government to issue the impugned Government Order and theGovernment, in exercise of its executive power issued the Governmentorder under Article 162 of the Constitution of India and thereforethe contention of the petitioners that the Government has no power tocancel the elections is unsustainable. The learned AdditionalAdvocate General further submitted that insofar a the MadrasAdvocates Co-Operative Society Limited is concerned oneC.K.Harihararajan filed W.P.No.23396 of 2007 and the said writpetition was admitted by this Court wherein it is pointed out thatthe Voters list contain not only the names of the advocates but thenames of many of the Honourable Judges, sitting and retired judgesare also find a place and the Voters list was not prepared andpublished in the manner known to law. Time to file nominations werealso 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 factas well as the pendency of 62 writ petitions challenging the electionprocess pending on the file of this Court alleging variousirregularities were also taken note of and therefore on publicinterest as well as on the basis of the complaint received fromvarious quarters, the impugned decision was taken and ifirregularities were pointed out, the Government is bound to takeappropriate decision even in respect of election matters as held byF.M.Ibrahim Kalifulla,J., concurred by P.K.Misra,J., in the decisionreported in 2007 (1) CTC 705 (All India Anna Dravida MunnetraKazhagam v. State Election Commissioner).9.I have considered the rival submissions made by the learnedSenior Counsel and learned counsel for the respective petitioners aswell 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 andConsumer Protection Department, dated 19.4.2007, through which theRegistrar and Functional Registrars of the Co-Operative Societieswere requested to take immediate action to complete the elections toall Co-Operative Societies in the State and programmes were alsoannounced. The said Government order was issued to hold electionsunder section 33 of the Tamil Nadu Co-Operative Societies Act, 1983,which states that the management of every registered society shallvest with the Board constituted in accordance with the provisions ofthe Act, Rules and Bye-laws, which shall exercise such powers andperform 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 ofmembers. Rule 52(2) states that election of the members of the Boardof every Society shall be conducted in the manner specified in Rule52. The Registrar shall appoint as many officers of the Governmentor officers subordinate to him as election officers for conductingthe election. The Election Officer may appoint one or more person asPolling Officer to assist him in the conduct of elections. UnderRule 52(5)(a), the Registrar shall fix the date of election and drawup a programme for the conduct of the election and the same shall besend to the Society at least 21 days prior to the date of poll. Rule52 (5)(b) states that the programme shall contain the followinginformation:"52(5)(b)The programme for conduct of electionshall contain information regarding,-(i)the date on which,-(A)the society shall publish thevoters' list in the notice board at theoffice of the society;(B)the members shall make claims orraise objections to the voters list; and(C)the decision of the electionofficer on the claims made or objectionsraised to the voters' list shall bepublished;(ii)where the society fails to prepare andpublish the voters' list within the timespecified in item (i), the date on which,-(A)the election officer shall publishthe voters' list in the notice board at theoffice of the society;(B)the members shall make claims orraise objections to the voters' list; and https://hcservices.ecourts.gov.in/hcservices/ (C)the decision of the electionofficer on the claims made or objectionsraised to the voters' list shall bepublished;(iii) The date on which, the place at whichand the time during which,-(A)the nomination papers shall befiled;(B)the nomination papers shall bescrutinised and list of validnominations shall be published;(C)nominations may be withdrawn;(D)final list of contesting candidatesshall be published; and(E)polling, if required, will takeplace:Provided that there shall be an interval ofnot less than three clear days between the datefixed for filing of nomination and the date ofpoll:Provided further that different timings canbe fixed for different constituencies on thesame date and that more than one date may befixed for polling, where polling cannot be heldon the same date in the same place or differentplaces."Sub-rule 6(a) deals with issuing notice of election, which reads asfollows:"6(a) The Registrar or the Election Officershall, send notice of election to the members who, onthe date thirty days prior to the date of poll, werethe members of the society. The notice shall containinformation regarding-(i)the number of vacancies to be filled upby election:(ii)constituency, if any, from which themembers are to be elected;(iii)the date, place and time fixed forfiling, scrutiny, withdrawal andpublication of valid list ofnominations;(iv)the date, place and time specified forpolling; and(v)the time, date and place in which thecounting of votes shall take place."Sub-Rule 7(b) deals with preparation of Voters' List, which readsthus, https://hcservices.ecourts.gov.in/hcservices/ "7(b) The Voters' list shall contain-(i)in the case of an individual member, thename, the surname (if any), the admissionnumber, father's or husband's name and addressof the member as entered and available in theadmission register and the name of theconstituency, if any, to which he belongs; and(ii)in the case of an affiliated society,the name of the society, its registrationnumber, address and admission number, togetherwith the name of its delegate and the date ofexpiry of the current term of the delegate."Sub-Rule 7(d) deals with publication of Voters' list which isextracted below:"7(d) The society shall also publish a copy ofthe voters' list on the notice board at the office ofthe society not less than ten clear days prior to thedate of poll requiring the members to make theirclaims or raise their objections, if any, by apetition setting out the grounds on which the claimis based or objection is raised, as the case may be,and present it to the election officer within twodays of such publication."Sub-Rule (7)(g) deals with furnishing of copy of the voters' list.Sub-Rule (8) deals with filing of nomination, the manner in which ithas to be filed, scrutiny of nominations, preparation of thenomination list, etc. Sub-rule (14) deals with counting of votes andSub-rule (17) deals with publication of names of the electedcandidates in the notice board. As per sub-rule 17(c) of Rule 52, assoon as the election is over, the Election Officer shall intimate theresults of the election in Form No.22 to the Society, the Registrarfor conducting election of the office bearers of the Board under sub-rule (1) of Rule 53.12.The term of the office of the elected Board members is alsofixed under section 33(10)(a). Section 33(3) contemplates co-optionof Women, Scheduled Caste and Scheduled Tribe persons in the Board ofDirectors. Rule 53(2) contemplates election of office bearers of theBoard and after all these formalities viz., election of Board ofDirectors, co-option of women and Scheduled Castes and ScheduledTribes candidates and election of office bearers of the Board, theBoard of Directors in a Society will be deemed to be constituted.13.In the cases on hand, admittedly the petitioners areelected only as Board of Directors. No co-option is made from amongthe women, SC and ST candidates. No election to office bearers of https://hcservices.ecourts.gov.in/hcservices/ the Board is also conducted. Thus, admittedly, no Board of Directorsin any one of the Co-Operative Society is constituted till date. Infact the prayer in the writ petitions is to constitute the Board ofDirectors. Unless and until the Board of Directors is dulyconstituted, the petitioners cannot be treated as validly elected asmembers of the constituted Board of Directors. Admittedly there arenumber of complaints received by the Government through the telegramsnumbering 201 from all over the State with regard to the conduct ofCo-operative Societies election from the members of the Societies and62 writ petitions challenging the election process of the co-operative societies were admitted and are pending before this Court.In all the above writ petitions as well as complaints received,various allegations of either not properly preparing the voters'list, not furnishing the copies of the voters' list, not giving thenomination forms to the members to file nominations, etc., werealleged. The number of persons elected as un-opposed is also morethan 78%, that means, for the total number of Board members of1,29,730, about 1,19,091 persons were elected as un-opposed from13,646 Co-Operative Societies/Banks and elections were conducted forabout 1,279 co-operative societies out of 14,925 co-operativesocieties.14.The above details furnished by the respondents at pageNo.103 of the typed set of papers, establish the fact that theallegations made by various members of the co-operative societiesthat they were not furnished with nomination papers to contest theelection requires consideration by the respondents 1 and 2. Insofaras the Madras Advocates Co-Operative Society Limited is concerned,there are various irregularities alleged viz., in preparation ofvoters' list, not furnishing of copy of voters' list, not giving timeto file nominations and the said writ petition challenging theelections was also admitted and was pending before this Court.Further various malpractice in conducting the election to various co-operative societies were brought to the notice of the Governmentthrough the electronic media and press and some of the news items arepublished in the leading newspapers having vide circulation viz.,Dina Thanthi, Dinamalar and Dinamani are also filed in the typed setof papers.15.In the newspaper report dated 3.7.2007, published in DinaThandhi, in 'O.Soudapuram Primary Agricultural Co-Operative Society'in Rasipuram area for seven Board members, 25 persons filednominations of which 12 were allegedly rejected without any reason.Again in the very same newspaper it is reported that in KodikulamPrimary Agricultural Co-Operative Society near Usilampatti, MaduraiDistrict, 23 persons filed nominations of which, except seven, allothers were allegedly rejected without any reason. Similarirregularities in rejecting the nomination of candidates other thanthe ruling party and declaring the ruling partymen as elected un-opposed, is reported in Dinamalar dated 3.7.2007 (Madurai Edition). https://hcservices.ecourts.gov.in/hcservices/ Several such news items are reported from different parts of thestate on various dates in different newspapers. Several politicalparties conducted various agitations objecting the manner in whichthe elections were conducted at various places. In fact, the secondrespondent was forced to issue notice through press that severalcomplaints for not issuing nomination forms were received and theElections Officers were directed to furnish nomination forms to alleligible persons, who aspire to contest in the election. The noticeissued by the second respondent in The Hindu, dated 8.7.2007 isextracted hereunder,"CO-OPERATIVE ELECTIONSIMPORTANT NOTICENominations for co-operative elections arebeing received since 2nd July throughoutTamilnadu. Certain complaints have been broughtto the notice of the Hon'ble Chief Minister ofTamilnadu that nomination papers are not madeavailable to the eligible candidates at someplaces. Based on the advice of the Hon'bleChief Minister of Tamilnadu all the co-operativeofficials are instructed to issue nominationpapers to all the eligible candidatesimmediately failing which stern action will betaken against the concerned erring officials.Registrar of Co-Operative Societies"Thus, the Registrar of Co-Operative Societies was convinced about thepartial attitude adopted by various Election Officers and strictwarning was issued publicly.16.In the light of the above allegations and newspaper reportswith regard to the conduct of co-operative societies elections, theGovernment thought fit to get a report from the Registrar of Co-operative Societies, who also submitted the report recommendingcancellation of the elections already held or proposed to be heldbased, on which a decision was taken by the Government on 11.7.2007,cancelling the elections already held and not to conduct electionwherever elections are not already held with further direction tohold fresh elections for which new election schedule will beannounced by the Government after consulting with the leaders of allconcerned political parties in the legislature. The impugned orderreads as follows:"GOVERNMENT OF TAMIL NADUABSTRACT https://hcservices.ecourts.gov.in/hcservices/ Co-Operation - Conduct of elections to all the Co-operative Societies under the provisions of the TamilNadu Co-Operative Societies Act, 1983 - Cancelled -Orders - issued.---------------------------------------------Co-Operation, Food and Consumer Protection (CJ1)DepartmentG.O(2D)No.76 Dated: 11.07.2007 Read :1. G.O(2D)No.36, Co-Operation, Food and Consumer Protection Department, dated 19.4.20072. From the Registrar of Co-operative Societies letter Rc.No.51684/2007/CE1 dated 11.7.2007.ORDER:In the Government Order read above, orders havebeen issued for conducting elections to all theprimary, central and apex co-operative societies inthe State commencing from 8th June, 2007, under theprovisions of the Tamil Nadu Co-operative SocietiesAct, 1983, and the rules made thereunder.2.It has been brought to the notice of theGovernment that certain unwanted incidents haveoccurred during these polls. The Government are ofthe opinion that these incidents have undermined thevery purpose of conducting the elections to the co-operative societies in the State. The Governmenthave therefore decided to cancel the elections to theco-operative societies wherever they have beenconducted and to hold fresh elections to all the co-operatives after consulting the leaders of allpolitical parties in the Legislature. A new electionschedule will be announced by the Government afterthese consultations.3.The Registrars of Co-operative Societiesare requested to cancel the elections wherever theyhave been completed or in progress.(By Order of the Governor)S.MACHENDRANATHAN, SECRETARY TO GOVERNMENT"17.The next question to be decided is whether the Governmentis vested with the said power. According to the learned AdditionalAdvocate General, the above said power is available to the Government https://hcservices.ecourts.gov.in/hcservices/ under section 182 of the Co-Operative Societies Act, 1983, whichreads as follows:"182. Power of Government to givedirections.- (1) The Government may, i thepublic interest, by order, direct the Registrarto make an inquiry or to take appropriateproceedings under this Act, in any casespecified in the order, and the Registrar shallreport to the Government the result of theinquiry made or the proceedings taken by himwithin a period of six months from the date ofsuch order or such further period as theGovernment may permit.(2) In any case, in which a direction hasbeen given under sub-section (1), the Governmentmay, notwithstanding anything contained in thisAct, call for and examine the record of theproceedings of the Registrar and pass suchorders in the case as they may think fit:Provided that before passing any orderunder this sub-section the person likely to beaffected by such order shall be given anopportunity of making his representation."From the bare perusal of the above said section it is evident thatthe Government may in public interest, direct the Registrar to makean enquiry or to take appropriate proceeding under the Act and theGovernment is empowered to pass such orders notwithstanding anythingcontained in this Act.18.The power conferred on the Government under the aboveprovision is a plenary power. The Government is entitled to conductenquiry in any matter under the above provision and after enquiry ifthe Government finds that any decision is to be taken on publicinterest, the Government can take such a decision notwithstandinganything contained in the Act. Thus, even in election matters theGovernment is empowered to take a decision though elections wereordered to be conducted under section 33(10)(aa) of the Tamil NaduCo-Operative Societies Act, 1983. As stated in previous paragraphs,the Registrar as well as the Government received various complaintswith regard to the conduct of elections. The second respondent wasforced to issue warning to the Election Officers for not properlyconducting the elections. Lots of malpractices committed duringelections in various Societies were widely reported in leadingnewspapers. Political parties conducted various agitationsprotesting the illegal manner in which elections were conducted.More than 78% vacancies were filled up without any contest. Hence anabnormal situation has arisen to interfere in the elections by theGovernment under section 182 on public interest and to uphold the https://hcservices.ecourts.gov.in/hcservices/ democratic traditions and values. If the Government is not vestedwith the above planery power, no decision could be taken even inextraordinary situations. Hence I am of the view that section 182gives ample power to the Government to take the impugned decision,which cannot be held as unauthorised, particularly when no mala fideis alleged against the respondents 1 and 2.19.The petitioners, even though were elected as Board ofDirectors on the very same day when the impugned order was passed,admittedly no Board was constituted. Unless the Board of a Co-Operative Society is duly constituted the elected members will notget any status. The term of office is also fixed for a member, whois elected to any board duly constituted. Unless and until the Boardis duly constituted, no statutory right is created to the electedmembers to function for a fixed term. Therefore, the Government iswell within its rights to cancel the election already held andordering not to proceed with the election. Further, an assurance isgiven in the impugned Government Order that new dates of electionswill be announced, after consulting with the political parties, inthe Assembly. The Government came to the conclusion that free andfair elections were not conducted in most of the Co-operativeSocieties, where elections were conducted. The said conclusion isarrived at from various sources. When illegalities are pointed outto the Government and the Government having taken a consciousdecision to cancel the elections, this Court under Article 226 of theConstitution of India, cannot go into the wisdom of the Government inarriving at the above conclusion, particularly when the order isissued by the Government by its executive power under Article 162 ofthe Constitution of India.20.It is well settled proposition of law that if the mischiefplayed is so widespread and all pervasive steps affecting the resultso as to make it difficult to pick out the persons, who have beenunlawfully benefitted or wrongfully deprived of their selection insuch cases, it will neither be possible nor necessary to issueindividual notices. The only way out would be to cancel the wholeselection. The said proposition will apply with equal force toelections also. It is an admitted position that co-operative societyis formed with laudable object to inculcate the spirit to work in agroup freely for rendering benefit to its members through the co-operative contributions. For achieving the said objects free andfair election to the co-operative Societies are bound to beconducted. If the elections conducted are vitiated due to variousreasons there may not be full co-operation among the members therebythe whole object of creating Co-operative Societies will be defeated.Keeping all the facts in mind, the first respondent is justified intaking a decision to annul the elections already conducted with apromise to announce new dates. https://hcservices.ecourts.gov.in/hcservices/

21.(a) The meaning of 'free and fair election' was consideredby the Supreme Court in the decision reported in (2006) 7 SCC 1(Kuldip Nayar v. Union of India) in paragraph 448, which reads thus,"448. It shows that the right to vote in"free and fair elections" is always in terms ofan electoral system prescribed by nationallegislation. The right to vote derives itscolour from the right to "free and fairelections"; that the right to vote is emptywithout the right to "free and fair elections".It is the concept of "free and fair elections"in terms of an electoral system which providescontent and meaning to the "right to vote". Inother words, "right to vote" is not (sic) aningredient of the free and fair elections. Itis essential but not the necessary ingredient."(b)In the decision reported in AIR 1978 SC 851 (Mohinder Singhv. Chief Election Commissioner) in paragraph 91(2)(a) and (b),V.R.Krishna Iyer, J. held as under,"91.(2)(a): The Constitution contemplates afree and fair election and vests comprehensiveresponsibility of superintendence, direction andcontrol of the conduct of elections in theElection Commission. This responsibility may coverpowers, duties and functions of many sorts,administrative or other, depending on thecircumstances. (b) Two limitations at least are laid on itsplenary character in the exercise thereof.Firstly, when Parliament or any State Legislaturehas made valid law relating to or in connection,with elections, the Commission, shall act inconformity with, not in violation of, suchprovisions but where such law is silent Art.324 isa reservoir of power to act for the avowed purposeof, not divorced from, pushing forward a free andfair election with expedition." Secondly, theCommission shall be responsible to the rule oflaw, act bona fide and be amenable to the norms ofthe natural justice in so far as conformance tosuch canons can reasonably and realistically berequired of it as fairplay-in-action in a mostimportant area of the constitutional order, viz.,elections. Fairness does import an obligation tosee that no wrong-doer candidate benefits by hisown wrong. .. " (emphasis added) https://hcservices.ecourts.gov.in/hcservices/ Again in the concurring judgment in the above said decision reportedin AIR 1978 SC 851, Goswami,J, with regard to Article 324 of theConstitution, observed in paragraph 113 as under: "113. ... Since the conduct of allelections to the various legislative bodies and tothe offices of the President and the Vice-President is vested under Article 324(1) in theElection Commission, the framers of theConstitution took care to leaving scope forexercise of residuary power by the Commission, inits own right, as a creature of the Constitution,in the infinite variety of situations that mayemerge from time to time in such a large democracyas ours. Every contingency could not be foreseenor anticipated with precision. That is why thereis no hedging under Article 324. The Commissionmay be required to cope with some situation whichmay not be provided for in the enacted laws andthe rules." (emphasisadded)(c)In Indira Nehru Gandhi v. Raj Narain, 1975 (Suppl) SCC 1the necessity of free and fair election has been emphasised in thefollowing words," ... Democracy further contemplates that theelections should be free and fair, so that thevoters may be in a position to vote for candidatesof their choice. Democracy can indeed functiononly upon the faith that elections are free andfair and not rigged and manipulated, that they areeffective instruments of ascertaining popular willboth in reality and form and are not mere ritualscalculated to generate illusion of defence to massnation. Free and fair elections require that thecandidates and their agents should not resort tounfair means or malpractices as may impinge uponthe process of free and fair elections." (emphasis added)(d)In the decision reported in AIR 1996 SC 1507 (Surinder Kaurv. State of Punjab) the Supreme Court, taking notice of the stand ofthe appellant in that case that 7th respondent forcefully took thenomination papers from the appellant and torn them off, held that theunlawful prevention of the appellant from contesting election as aSarpanch was in violation and set aside the election of 7threspondent and directed the authorities to conduct election accordingto rules within four weeks. https://hcservices.ecourts.gov.in/hcservices/ (e)In Jayarajbhai Jayantibhai Patel v. Anilbhai JayantibhaiPatel, reported in 2006 AIR SCW 4670, the Supreme Court upheld thejudgment of the Gujarat High Court, setting aside the election of aperson to the post of President of the Municipality, who was electedby draw of lots due to securing equal votes to that of his rivalcandidate on the ground that two councilors, who were potentialvoters were prevented from participating in the election.22.The decision taken by the Government is found just andreasonable in the light of the decision rendered by F.M.ImbrahimKalifulla,J., concurred by P.K.Misra,J., in the decision reported in2007 (1) CTC 705 (All India Anna Dravida Munnetra Kazhagam v. StateElection Commissioner). In paragraph 156, F.M.Ibrahim Kalifulla, J.,summed up the legal position as follows:"(i) Democracy contemplates that Electionsshould be free and fair, so that voters may bein a position to vote for the candidate of theirchoice. Free and fair Elections are the veryfoundation of democratic institutions. TheElections should not only be fairly and properlyheld, but should also seem to be so held toinspire confidence in the minds of the Electorsthat everything was above board. To ensure freeand fair Elections, the Constitution vestscomprehensive responsibility in the ElectionCommission. The Election Commission, as part offairness in Elections, has an obligation to seethat no wrong doer candidate benefits by his ownwrong.(ii) The Election Commission as a creatureof the Constitution, has been invested withresiduary power to be exercised in the infinitevariety of situations that may emerge from timeto time in the large Democracy of ours, as everycontingency cannot be foreseen or anticipatedwith precision.(iii) To meet such contingencies, theElection Commission has been invested withplenary powers. During the process of Elections,in order to maintain purity in the process, theElection Commission should ensure and see thatthe Returned Candidate is deprived of thesuccess secured by him, which success he securedby resorting to means and methods falling foulof the law of Elections. Each case has to beconsidered on its own facts, depending upon theauthority that exercises the power and theindelible effects which generate in the https://hcservices.ecourts.gov.in/hcservices/ operation of law or affects the individual orsociety. An administrative action can be struckdown, if the Court is satisfied that there isabuse or misuse of power or that such action ofthe authority was so absurd that no reasonableperson could have arrived at on the givenmaterial."In paragraph 203, P.K.Misra, J., held as follows:"203. The expression “election” mustobviously mean a free and fair election. If theElection Commission on the basis of relevantmaterials comes to a conclusion that a fairelection has not been held either in respect ofone ward or even all the wards, it has thejurisdiction to direct re-polling in all thewards. As a matter of fact, Mukhopadhaya, J hasalso recognised such jurisdiction of theElection Commission."Further in paragraphs 225 and 226 it is held as follows:"225. A detailed analysis of the statutoryprovisions contained in the Chennai CityMunicipal Corporation Act, 1919 relating toelection of Councillors is available in thepronouncement of Mukhopadhaya, J. Similarly anin-depth analysis of relevant provisionsconnected with polling arrangement is alsoavailable and it is not necessary to recount allthose aspects. However, it can be only statedthat those statutory provisions relate tovarious circumstances under which re-polling canbe ordered either by the State ElectionCommission or the State Election Officer.However, with utmost respect, I am unable toaccept the conclusion that apart from thecontemplated provisions, the Election Commissionhas no power to direct re-polling for aparticular polling booth or even in respect ofentire wards. In the words of the Supreme Courtin Mohinder Singh Gill's case, there may becircumstances which are not covered under thestatute which require the interference of theElection Commission to ensure a free and fairpoll. It is no doubt true that the ElectionCommission is not expected to act arbitrarily.However, it would not be correct to state thatunless a report is made by a Polling Officer, a https://hcservices.ecourts.gov.in/hcservices/ Presiding Officer, a Returning Officer or aDistrict Election Officer, the State ElectionCommissioner is powerless to direct re-pollingeven if he is satisfied that free and fairelection has not taken place. The ElectionCommission is empowered to act upon suchreports, but it does not mean that it ispowerless bereft of such reports. The onerousduty is cast on the Election Commission to holda free and fair election. If the Commissionreceives any information about the impurity ofthe election - such information can be thereport of the officials, complaints bycandidates, agents or voters and even newspaperreports - it can and should act. It of coursedepends upon the satisfaction of the ElectionCommission on the basis of materials to come toany particular decision as to whether pollingprocess should be interfered with. Since it isthe duty of the Election Commission to ensure afree and fair election, it is within its powerto direct re-polling or fresh polling in any ofthe booths or any of the wards, if in itsopinion, of course on the basis of materials onrecord and not arbitrarily, it is necessary tohold such fresh election. As observed inMohinder Singh Gill's case, the Commissioncannot act in an arbitrary fashion. Similarly,in view of the constitutional and statutoryobligation to ensure a free and fair election,the Election Commission cannot be an “embodimentof inaction” merely because formal reports arenot forthcoming from the election officials whencomplaints are made either by the candidates orthe agents or even members of general public onthe date of election or even newspaper publishedsoon thereafter. It is the duty of the ElectionCommission to look into such matters in adispassionate manner. There may be cross-checking of any aspect, if necessary, to come toany conclusion as to whether there is anynecessity of fresh polling in any of the ward ormost of the wards or even in none of the wards.Once he comes to such a conclusion, even thoughsuch a decision may be open to judicial scrutinyeither during the election or even thereafter,it is obvious that the Court is required to givedue credence to the decision and not tointerfere on the slightest pretext. The HighCourt, at that stage, is not expected to act as https://hcservices.ecourts.gov.in/hcservices/ an appellate authority. Obviously the court isbound to decide such matters within the limited,but, well known parameters. If the Court comesto a conclusion that the decision of theElection Commission cannot be sustained, theCourt has power to remedy the mistake.Similarly if the court comes to a justifiableconclusion that the Election Commission hasfailed to discharge its constitutional duty andobligation, the court has jurisdiction to issuenecessary directions by way of mandamus to theElection Commission or even issue positivedirection in the matter, if the materials beforethe Court so justify.226. If what happened was a negation of thelofty democratic values held so dear as apparentfrom the observations made by the Supreme Courton numerous occasions and was a mockery ofdemocracy, certainly it was the constitutionalobligation of the Election Commission to drawfrom the "reservoir" and to take prompt remedialmeasures. He was not expected to "fold hishands and pray to God for divine inspiration"."(Emphasis Supplied)In the above referred decision it is further held that mere pendencyof writ petitions will not prevent the Election Commissioner fromtrying to ascertain the truth. He cannot claim that because theissue was pending, he was precluded to consider the issue.23.Here in this case admittedly 62 writ petitions were pendingand 201 complaints were received apart from newspaper reportsalleging irregularities in filing nominations /preventing from filingnominations. Hence the Government thought fit to cancel theelections as large scale irregularities were pointed out and foundthem true. In fact, by taking such a decision, the Government alsoput on notice that it has got power to cancel elections to maintainthe purity of election process and it can administratively interferefor upholding the conduct of free and fair elections. It will be adeterrent to the unscrupulous candidates and the biased electionofficials in indulging in such malpractices affecting the purity ofelection process.24.In the light of the decision referred above, the findingsof which can be applied to the facts of these cases, I am of the viewthat the decision taken by the Government is legal and valid. Sincethe Co-Operative Societies are administered by the Special Officersall these years, as promised in the impugned order, the firstrespondent shall take effective steps to notify new dates for holdingfresh elections. https://hcservices.ecourts.gov.in/hcservices/

25.In view of the above findings, I hold that there are nomerits in the writ petitions and the writ petitions are dismissedwith the above observation. No costs. Connected miscellaneouspetitions are also dismissed.Sd/-Assistant Registrar/true copy/Sub Assistant RegistrarvrTo1.The 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.The Special Officer,Madras Advocates Co-Operative Society Ltd,High Court, Chennai – 600 104.5.The Election Officer,The Madras Advocates Co-Operative Society Ltd.,High Court, Chennai – 600 104.6.The Deputy Registrar,Tamil Nadu Co-Operative Societies,Krishnagiri.7.The Special OfficerS.7557, Noganoor Primary AgriculturalCo-operative Bank Limited,rep.by its Special officer, Noganoor,Krishnagiri. Common Order in W.P.Nos.24684, 24424 & 24746/2007ASM(CO)JJM(06.06.08)