Rajaji V. Tamil Nadu

MADRAS HIGH COURT]

(1) Dr.P.Rajaji; (2) D. Kulasekaran; (3) N. Venkatesh
v
(1) State of Tamil Nadu, Represented By Its Secretary To The Government, Co-Operation, Food and Consumer Protection (Cji), Department, Chennai; (2) Registrar of Co-Operative Societies, Tamil Nadu Co-Operative Societies, Kilpauk, Chennai; (3) Madras Advocates Co-Operative Society Limited, Represented By Its Special Officer, High Court, Chennai; (4) Election Officer, Madras Advocates Co-Operative Society Limited, High Court, Chennai; (5) Deputy Registrar (Non-Loan), Tamil Nadu Co-Operative Societies, Kuralagam, Chennai; (6) Deputy Registrar, Tamil Nadu Co-Operative Societies, Krishnagiri; (7) Noganoor Primary Agricultural Co-Operative Bank Limited, Represented By Its Special Officer, Noganoor, Krishnagiri

N. PAUL VASANTHAKUMAR

03 Jun 2008

CASES REFERRED TO
All India Anna Dravida Munnetra Kazhagam, Represented By Its Fisheries Wing Secretary, D. Jayakumar (M.L.A), Chennai v (1) State Election Commissioner, Represented By D. Chandrasekaran, Chennai&' (2) Director General of Police, Kamarajar Salai, Chennai&' (3) Commissioner of Police, Greater Chennai&' (4) Additional Commissioner of Police, Greater Chennai&' (5) Dravida Munnetra Kazhagam, 'Anna Arivalayam' Anna Salai, Represented By Its President, M. Karunanidhi, Chennai 2007 MAD 674
Kuldip Nayar v Union of India and Others 2006 SC 432
Surinder Kaur v State of Punjab and Others 1996 SC 592
Mohinder Singh Gill and Another v Chiief Election Commissioner, New Delhi and Others 1977 SC 53
Smt. Indira Nehru Gandhi(In C. A. No. 887 of 1975) Shri Raj Narain,(In C. A. No. 909 of 1975) v Shri Raj Narain and Another(In C. A. No. 887 of 1975) Smt. Indira Nehru Gandhi(In C. A. No. 909 of 1975) 1975 SC 473
Jayarajbhai Jayantibhai Patel v. Anilbhai Jayantibhai Patel [2006 AIR(SCW) 4670]

ACTS REFERRED
Tamil Nadu Co-operative Societies Act, 1983[s. 89(1), s. 182(1), s. 33(10)(aa)]
Constitution Of India, 1950[art. 162, art. 226, art. 324, art. 324(1)]
Chennai City Municipal Corporation Act, 1919

RULES REFERRED
Tamil Nadu Co-operative Societies Rules, 1988 [r. 52, r. 61]
CASE NO
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

LAWYERS
R.Muthukumaraswamy, A.Jenasenan, G.Ethirajulu, K.Ramaswamy, I.Paranthaman

The Order of the Court was as follows :

1. 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 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 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 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.

(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), 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, 1950.

(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 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, 1950and 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 MAD 547(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.

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

(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,

"7(b) The Voters' list shall contain-

(i) in the case of an individual member, the name, the surname (if any), the admission number, father's or husband's name and address of the member as entered and available in the admission register and the name of the constituency, if any, to which he belongs; and

(ii) in the case of an affiliated society, the name of the society, its registration number, address and admission number, together with the name of its delegate and the date of expiry of the current term of the delegate." *

Sub-Rule 7(d) deals with publication of Voters' list which is extracted below:

"7(d) The society shall also publish a copy of the voters' list on the notice board at the office of the society not less than ten clear days prior to the date of poll requiring the members to make their claims or raise their objections, if any, by a petition setting out the grounds on which the claim is based or objection is raised, as the case may be, and present it to the election officer within two days 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 it has to be filed, scrutiny of nominations, preparation of the nomination list, etc. Sub-rule (14) deals with counting of votes and Sub-rule (17) deals with publication of names of the elected candidates in the notice board. As per sub-rule 17(c) of Rule 52, as soon as the election is over, the Election Officer shall intimate the results of the election in Form No.22 to the Society, the Registrar for 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 also fixed under section 33(10)(a). Section 33(3) contemplates co-option of Women, Scheduled Caste and Scheduled Tribe persons in the Board of Directors. Rule 53(2) contemplates election of office bearers of the Board and after all these formalities viz., election of Board of Directors, co-option of women and Scheduled Castes and Scheduled Tribes candidates and election of office bearers of the Board, the Board of Directors in a Society will be deemed to be constituted.

13. In the cases on hand, admittedly the petitioners are elected only as Board of Directors. No co-option is made from among the women, SC and ST candidates. No election to office bearers of the Board is also conducted. Thus, admittedly, no Board of Directors in any one of the Co-Operative Society is constituted till date. In fact the prayer in the writ petitions is to constitute the Board of Directors. Unless and until the Board of Directors is duly constituted, the petitioners cannot be treated as validly elected as members of the constituted Board of Directors. Admittedly there are number of complaints received by the Government through the telegrams numbering 201 from all over the State with regard to the conduct of Co-operative Societies election from the members of the Societies and 62 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 the nomination forms to the members to file nominations, etc., were alleged. The number of persons elected as un-opposed is also more than 78%, that means, for the total number of Board members of 1, 29, 730, about 1, 19, 091 persons were elected as un-opposed from 13, 646 Co-Operative Societies/Banks and elections were conducted for about 1, 279 co-operative societies out of 14, 925 co-operative societies.

14. The above details furnished by the respondents at page No.103 of the typed set of papers, establish the fact that the allegations made by various members of the co-operative societies that they were not furnished with nomination papers to contest the election requires consideration by the respondents 1 and 2. Insofar as the Madras Advocates Co-Operative Society Limited is concerned, there are various irregularities alleged viz., in preparation of voters' list, not furnishing of copy of voters' list, not giving time to file nominations and the said writ petition challenging the elections 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 Government through the electronic media and press and some of the news items are published in the leading newspapers having vide circulation viz., Dina Thanthi, Dinamalar and Dinamani are also filed in the typed set of papers.

15. In the newspaper report dated 3.7.2007, published in Dina Thandhi, in 'O.Soudapuram Primary Agricultural Co-Operative Society' in Rasipuram area for seven Board members, 25 persons filed nominations of which 12 were allegedly rejected without any reason. Again in the very same newspaper it is reported that in Kodikulam Primary Agricultural Co-Operative Society near Usilampatti, Madurai District, 23 persons filed nominations of which, except seven, all others were allegedly rejected without any reason. Similar irregularities in rejecting the nomination of candidates other than the ruling party and declaring the ruling partymen as elected un-opposed, is reported in Dinamalar dated 3.7.2007 (Madurai Edition). Several such news items are reported from different parts of the state on various dates in different newspapers. Several political parties conducted various agitations objecting the manner in which the elections were conducted at various places. In fact, the second respondent was forced to issue notice through press that several complaints for not issuing nomination forms were received and the Elections Officers were directed to furnish nomination forms to all eligible persons, who aspire to contest in the election. The notice issued by the second respondent in The Hindu, dated 8.7.2007 is extracted hereunder,

"CO-OPERATIVE ELECTIONS IMPORTANT NOTICE

Nominations for co-operative elections are being received since 2nd July throughout Tamilnadu. Certain complaints have been brought to the notice of the Hon'ble Chief Minister of Tamilnadu that nomination papers are not made available to the eligible candidates at some places. Based on the advice of the Hon'ble Chief Minister of Tamilnadu all the co-operative officials are instructed to issue nomination papers to all the eligible candidates immediately failing which stern action will be taken against the concerned erring officials.

Registrar of Co-Operative Societies" *

Thus, the Registrar of Co-Operative Societies was convinced about the partial attitude adopted by various Election Officers and strict warning was issued publicly.

16. In the light of the above allegations and newspaper reports with regard to the conduct of co-operative societies elections, the Government thought fit to get a report from the Registrar of Co-operative Societies, who also submitted the report recommending cancellation of the elections already held or proposed to be held based, on which a decision was taken by the Government on 11.7.2007, cancelling the elections already held and not to conduct election wherever elections are not already held with further direction to hold fresh elections for which new election schedule will be announced by the Government after consulting with the leaders of all concerned political parties in the legislature. The impugned order reads as follows:

"GOVERNMENT OF TAMIL NADU ABSTRACT

Co-Operation - Conduct of elections to all the Co-operative Societies under the provisions of the Tamil Nadu Co-Operative Societies Act, 1983 - Cancelled - Orders - issued.

Co-Operation, Food and Consumer Protection (CJ1) Department

G.O(2D)No.76

Dated: 11.07.2007

Read :

1. G.O(2D)No.36, Co-Operation, Food and Consumer Protection Department, dated 19.4.2007

2. 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 have been issued for conducting elections to all the primary, central and apex co-operative societies in the State commencing from 8th June, 2007, under the provisions of the Tamil Nadu Co-operative Societies Act, 1983, and the rules made thereunder.

2. It has been brought to the notice of the Government that certain unwanted incidents have occurred during these polls. The Government are of the opinion that these incidents have undermined the very purpose of conducting the elections to the co-operative societies in the State. The Government have therefore decided to cancel the elections to the co-operative societies wherever they have been conducted and to hold fresh elections to all the co-operatives after consulting the leaders of all political parties in the Legislature. A new election schedule will be announced by the Government after these consultations.

3. The Registrars of Co-operative Societies are requested to cancel the elections wherever they have been completed or in progress.

(By Order of the Governor)

S.MACHENDRANATHAN, SECRETARY TO GOVERNMENT" *

17. The next question to be decided is whether the Government is vested with the said power. According to the learned Additional Advocate General, the above said power is available to the Government under section 182 of the Co-Operative Societies Act, 1983, which reads as follows:

"182. Power of Government to give directions.- (1) The Government may, i the public interest, by order, direct the Registrar to make an inquiry or to take appropriate proceedings under this Act, in any case specified in the order, and the Registrar shall report to the Government the result of the inquiry made or the proceedings taken by him within a period of six months from the date of such order or such further period as the Government may permit.

(2) In any case, in which a direction has been given under sub-section (1), the Government may, notwithstanding anything contained in this Act, call for and examine the record of the proceedings of the Registrar and pass such orders in the case as they may think fit:

Provided that before passing any order under this sub-section the person likely to be affected by such order shall be given an opportunity of making his representation." *

From the bare perusal of the above said section it is evident that the Government may in public interest, direct the Registrar to make an enquiry or to take appropriate proceeding under the Act and the Government is empowered to pass such orders notwithstanding anything contained in this Act # .

18. The power conferred on the Government under the above provision is a plenary power # . The Government is entitled to conduct enquiry in any matter under the above provision and after enquiry if the Government finds that any decision is to be taken on public interest, the Government can take such a decision notwithstanding anything contained in the Act. Thus, even in election matters the Government is empowered to take a decision though elections were ordered to be conducted under section 33(10)(aa) of the Tamil Nadu Co-Operative Societies Act, 1983. As stated in previous paragraphs, the Registrar as well as the Government received various complaints with regard to the conduct of elections. The second respondent was forced to issue warning to the Election Officers for not properly conducting the elections. Lots of malpractices committed during elections in various Societies were widely reported in leading newspapers. Political parties conducted various agitations protesting the illegal manner in which elections were conducted. More than 78% vacancies were filled up without any contest. Hence an abnormal situation has arisen to interfere in the elections by the Government under section 182 on public interest and to uphold the democratic traditions and values. If the Government is not vested with the above planery power, no decision could be taken even in extraordinary situations. Hence I am of the view that section 182 gives ample power to the Government to take the impugned decision, which cannot be held as unauthorised, particularly when no mala fide is alleged against the respondents 1 and 2.

19. The petitioners, even though were elected as Board of Directors 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 not get any status. The term of office is also fixed for a member, who is elected to any board duly constituted. Unless and until the Board is duly constituted, no statutory right is created to the elected members to function for a fixed term. Therefore, the Government is well within its rights to cancel the election already held and ordering not to proceed with the election. Further, an assurance is given in the impugned Government Order that new dates of elections will be announced, after consulting with the political parties, in the Assembly. The Government came to the conclusion that free and fair elections were not conducted in most of the Co-operative Societies, where elections were conducted. The said conclusion is arrived at from various sources. When illegalities are pointed out to the Government and the Government having taken a conscious decision to cancel the elections, this Court under Article 226 of the Constitution Of India, 1950, cannot go into the wisdom of the Government in arriving at the above conclusion, particularly when the order is issued by the Government by its executive power under Article 162 of the Constitution Of India, 1950 # .

20. It is well settled proposition of law that if the mischief played is so widespread and all pervasive steps affecting the result so as to make it difficult to pick out the persons, who have been unlawfully benefitted or wrongfully deprived of their selection in such cases, it will neither be possible nor necessary to issue individual notices. The only way out would be to cancel the whole selection # . The said proposition will apply with equal force to elections also. It is an admitted position that co-operative society is formed with laudable object to inculcate the spirit to work in a group freely for rendering benefit to its members through the co-operative contributions. For achieving the said objects free and fair election to the co-operative Societies are bound to be conducted. If the elections conducted are vitiated due to various reasons there may not be full co-operation among the members thereby the whole object of creating Co-operative Societies will be defeated. Keeping all the facts in mind, the first respondent is justified in taking a decision to annul the elections already conducted with a promise to announce new dates.

21. (a) The meaning of 'free and fair election' was considered by the Supreme Court in the decision reported in 2006 SC 432(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 of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to "free and fair elections"; that the right to vote is empty without the right to "free and fair elections". It is the concept of "free and fair elections" in terms of an electoral system which provides content and meaning to the "right to vote". In other words, "right to vote" is not (sic) an ingredient of the free and fair elections. It is essential but not the necessary ingredient." *

(b) In the decision reported in 1977 SC 53(Mohinder Singh v. Chief Election Commissioner) in paragraph 91(2)(a) and (b), V.R.Krishna Iyer, J. held as under,

"91.(2)(a): The Constitution contemplates a free and fair election and vests comprehensive responsibility of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection, with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Art.324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition." Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of the natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. .. " (emphasis added) *

Again in the concurring judgment in the above said decision reported in 1977 SC 53, Goswami, J, with regard to Article 324 of the Constitution, observed in paragraph 113 as under:

"113. ... Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging under Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules." (emphasis added) *

(c) In Indira Nehru Gandhi v. Raj Narain, 1975 SC 473the necessity of free and fair election has been emphasised in the following words,

" ... Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass nation. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections." (emphasis added) *

(d) In the decision reported in 1996 SC 592(Surinder Kaur v. State of Punjab) the Supreme Court, taking notice of the stand of the appellant in that case that 7th respondent forcefully took the nomination papers from the appellant and torn them off, held that the unlawful prevention of the appellant from contesting election as a Sarpanch was in violation and set aside the election of 7th respondent and directed the authorities to conduct election according to rules within four weeks.

(e) In Jayarajbhai Jayantibhai Patel v. Anilbhai Jayantibhai Patel, reported in 2006 AIR(SCW) 4670, the Supreme Court upheld the judgment of the Gujarat High Court, setting aside the election of a person to the post of President of the Municipality, who was elected by draw of lots due to securing equal votes to that of his rival candidate on the ground that two councilors, who were potential voters were prevented from participating in the election.

22. The decision taken by the Government is found just and reasonable in the light of the decision rendered by F.M.Imbrahim Kalifulla, J., concurred by P.K.Misra, J., in the decision reported in 2007 MAD 547(All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner). In paragraph 156, F.M.Ibrahim Kalifulla, J., summed up the legal position as follows:

"(i) Democracy contemplates that Elections should be free and fair, so that voters may be in a position to vote for the candidate of their choice. Free and fair Elections are the very foundation of democratic institutions. The Elections should not only be fairly and properly held, but should also seem to be so held to inspire confidence in the minds of the Electors that everything was above board. To ensure free and fair Elections, the Constitution vests comprehensive responsibility in the Election Commission. The Election Commission, as part of fairness in Elections, has an obligation to see that no wrong doer candidate benefits by his own wrong.

(ii) The Election Commission as a creature of the Constitution, has been invested with residuary power to be exercised in the infinite variety of situations that may emerge from time to time in the large Democracy of ours, as every contingency cannot be foreseen or anticipated with precision.

(iii) To meet such contingencies, the Election Commission has been invested with plenary powers. During the process of Elections, in order to maintain purity in the process, the Election Commission should ensure and see that the Returned Candidate is deprived of the success secured by him, which success he secured by resorting to means and methods falling foul of the law of Elections. Each case has to be considered on its own facts, depending upon the authority that exercises the power and the indelible effects which generate in the operation of law or affects the individual or society. An administrative action can be struck down, if the Court is satisfied that there is abuse or misuse of power or that such action of the authority was so absurd that no reasonable person could have arrived at on the given material." *

In paragraph 203, P.K.Misra, J., held as follows:

"203. The expression 'election' must obviously mean a free and fair election. If the Election Commission on the basis of relevant materials comes to a conclusion that a fair election has not been held either in respect of one ward or even all the wards, it has the jurisdiction to direct re-polling in all the wards. As a matter of fact, Mukhopadhaya, J has also recognised such jurisdiction of the Election Commission." *

Further in paragraphs 225 and 226 it is held as follows:

"225. A detailed analysis of the statutory provisions contained in the Chennai City Municipal Corporation Act, 1919 relating to election of Councillors is available in the pronouncement of Mukhopadhaya, J. Similarly an in-depth analysis of relevant provisions connected with polling arrangement is also available and it is not necessary to recount all those aspects. However, it can be only stated that those statutory provisions relate to various circumstances under which re-polling can be ordered either by the State Election Commission or the State Election Officer. However, with utmost respect, I am unable to accept the conclusion that apart from the contemplated provisions, the Election Commission has no power to direct re-polling for a particular polling booth or even in respect of entire wards. In the words of the Supreme Court in Mohinder Singh Gill's case, there may be circumstances which are not covered under the statute which require the interference of the Election Commission to ensure a free and fair poll. It is no doubt true that the Election Commission is not expected to act arbitrarily. However, it would not be correct to state that unless a report is made by a Polling Officer, a Presiding Officer, a Returning Officer or a District Election Officer, the State Election Commissioner is powerless to direct re-polling even if he is satisfied that free and fair election has not taken place. The Election Commission is empowered to act upon such reports, but it does not mean that it is powerless bereft of such reports. The onerous duty is cast on the Election Commission to hold a free and fair election. If the Commission receives any information about the impurity of the election - such information can be the report of the officials, complaints by candidates, agents or voters and even newspaper reports - it can and should act. It of course depends upon the satisfaction of the Election Commission on the basis of materials to come to any particular decision as to whether polling process should be interfered with. Since it is the duty of the Election Commission to ensure a free and fair election, it is within its power to direct re-polling or fresh polling in any of the booths or any of the wards, if in its opinion, of course on the basis of materials on record and not arbitrarily, it is necessary to hold such fresh election. As observed in Mohinder Singh Gill's case, the Commission cannot act in an arbitrary fashion. Similarly, in view of the constitutional and statutory obligation to ensure a free and fair election, the Election Commission cannot be an 'embodiment of inaction' merely because formal reports are not forthcoming from the election officials when complaints are made either by the candidates or the agents or even members of general public on the date of election or even newspaper published soon thereafter. It is the duty of the Election Commission to look into such matters in a dispassionate manner. There may be cross-checking of any aspect, if necessary, to come to any conclusion as to whether there is any necessity of fresh polling in any of the ward or most of the wards or even in none of the wards. Once he comes to such a conclusion, even though such a decision may be open to judicial scrutiny either during the election or even thereafter, it is obvious that the Court is required to give due credence to the decision and not to interfere on the slightest pretext. The High Court, at that stage, is not expected to act as an appellate authority. Obviously the court is bound to decide such matters within the limited, but, well known parameters. If the Court comes to a conclusion that the decision of the Election Commission cannot be sustained, the Court has power to remedy the mistake. Similarly if the court comes to a justifiable conclusion that the Election Commission has failed to discharge its constitutional duty and obligation, the court has jurisdiction to issue necessary directions by way of mandamus to the Election Commission or even issue positive direction in the matter, if the materials before the Court so justify.

226. If what happened was a negation of the lofty democratic values held so dear as apparent from the observations made by the Supreme Court on numerous occasions and was a mockery of democracy, certainly it was the constitutional obligation of the Election Commission to draw from the "reservoir" and to take prompt remedial measures. He was not expected to "fold his hands and pray to God for divine inspiration"." (Emphasis Supplied) *

In the above referred decision it is further held that mere pendency of writ petitions will not prevent the Election Commissioner from trying to ascertain the truth. He cannot claim that because the issue was pending, he was precluded to consider the issue.

23. Here in this case admittedly 62 writ petitions were pending and 201 complaints were received apart from newspaper reports alleging irregularities in filing nominations /preventing from filing nominations. Hence the Government thought fit to cancel the elections as large scale irregularities were pointed out and found them true. In fact, by taking such a decision, the Government also put on notice that it has got power to cancel elections to maintain the purity of election process and it can administratively interfere for upholding the conduct of free and fair elections. It will be a deterrent to the unscrupulous candidates and the biased election officials in indulging in such malpractices affecting the purity of election process.

24. In the light of the decision referred above, the findings of which can be applied to the facts of these cases, I am of the view that the decision taken by the Government is legal and valid. Since the Co-Operative Societies are administered by the Special Officers all these years, as promised in the impugned order, the first respondent shall take effective steps to notify new dates for holding fresh elections.

25. In view of the above findings, I hold that there are no merits in the writ petitions and the writ petitions are dismissed with the above observation. No costs. Connected miscellaneous petitions are also dismissed.