THE HON'BLE MR. JUSTICE D. KRISHNAKUMAR W.P.No.12915 of 2013 and MP No.1 of 2013 K.J.Cherian ..Petitioner Vs.
1. The State of Tamil Nadu, Rep.by its Secretary to the Government, Cooperation, Food Consumer Protection (CJ1) Department, Fort St.George, Chennai-600 009.
2. The Election Commission, Tamil Nadu Cooperative Societies, Fort St.George, Chennai-600 009
3. Industries Commissioner & Director of Industries & Commerce cum The Registrar of Industrial Cooperative Societies, Taico Bank complex, Mandaveli, Chennai -600 028.
4. The District Election Officer,/J.D(Tea) Industries & Commerce, Incoserve Complex, Coonoor-1, Nilgiris.
5. The Election Officer, Frontier Industrial Cooperative Tea Factory, Erumad, Konnachal P.O Nilgris, Tamil Nadu-643 239.
6. The Frontier Industrial Cooperative Tea Factory, Erumad, Konnachal P.O Nilgiris, Tamil Nadu-643 239 Rep. by its Sp.Officer ..Responden ts
PRAYER:
The Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records of the fifth respondent culminating in the rejection of the petitioner's nomination dated 15.04.2013 as a candidate for election to the Sixth Respondent's Board of Directors, and quash the same and consequently, declare all acts done subsequent thereto by the fifth respondent including declaring any person elected on 16.04.2013 or on any other date as null and void.
For Petitioner : Mr.Bijesh Thomas For Respondents : Mrs.T.Girija, Government Advocate for R1 : Mr.M.S.Palanisamy for R2 : Mr.R.Bala Ramesh for R3 to R6
ORDER:
According to the petitioner, the Frontier Industrial Cooperative Tea Factory is situated at Nilgiris and its Society is governed by the Tamil Nadu Cooperative Societies Act, 1983 and the Rules, 1988. The society is managed by a board of directors comprising of 11 members. The petitioner being a farmer and small tea grower, became the Secretary of the Farmers Welfare Organisation. As the Secretary of the said organisation, the petitioner actively took part in various protests including satyagrahas, marches, meeting, etc. According to the petitioner, malpractices are being done in the name of society. On 04.03.2013, the programme for the elections was released by the District Election Officer / JD(Tea), Nilgiris. The petitioner and some other members proposed to file their nominations for the election to the sixth respondent's board. The Farmers Welfare Organisation on 10.04.2013 made a complaint to the second respondent Election Commission at Chennai as well as the Fifth Respondent / Election Officer that the nomination forms are issued only to their favourite members. As per the election programme, the petitioner and other members of the Farmers Welfare Organisation filed their nominations. The petitioner and others are eligible as per the Rule 52 (8) (d) of the Tamil Nadu Cooperative Societies Rules, 1988. Though it was given in the programme that scrutiny of the nomination forms would be held between 04.00 p.m. and 05.30 p.m., on 15.04.2013, no such scrutiny was held on that day and no reason was offered for rejection of nomination of the petitioner and others. Thus, the electoral officer has acted against the election schedule and thereby violated Rule 52(8) (d) of the Tamil Nadu Cooperative Societies Rules, 1988 and the actions of the respondent are illegal, against the statutory rights and fundamental rights under Article Nos.14, 19 & 21 guaranteed under the Constitution. Therefore, the petitioner has filed the present writ petition before this Court. Even without approaching the Election Tribunal, the writ petition filed under Article 226 of the Constitution of India is maintainable in the aforesaid circumstances.
2. The fifth respondent/Election Officer has filed a counter affidavit stating that election notification was issued by the first respondent on 31.01.2013 to conduct election of the Members of the Board/Office bearers of the Management of the third respondent Industrial Cooperative Tea Factories and the same has been published in Tamil dailies i.e., Maalai Malar on 05.03.2013. In pursuant to the election notification, the fourth respondent had published the valid voters list in the notice board of the said Tea Factory. The election schedule is extracted as follows.
3. According to the fifth respondent, totally 54 members including the petitioner had submitted their nomination forms to the Election Officer on 15.04.2013 and he had also issued acknowledgment for the same. After scrutinising all the nomination papers, the Election Officer had rejected 38 nominations on various specific reasons. On the date of withdrawal of nomination namely 16.04.2013, seven nominations have been withdrawn by the members. Since number of candidates whose nomination found valid are less than the required number of Board Director i.e., 11, the Election Officer had published that the said 9 candidates have been duly elected as unopposed. As on date, there were two of the Director (1 General and 1 Woman) post were vacant. Hence, two members have to be elected for the Frontier Industrial Cooperative Tea Factory. Petitioner's nomination was also scrutinised and thereafter, it was rejected on the ground that the proposer Mr.C.V.Kurian's signature differ with the signature in the admission register. However, the petitioner without exhausting the alternative remedy under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983, the petitioner has filed this writ petition before this court and the same is not maintainable either by law or on facts.
4. The learned counsel for the petitioner has relied upon the decision for the maintainability of the writ petition, in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SCC 851, wherein in para 34, the Hon'ble Supreme Court has held as follows:
"This dilemma does not arise in the wider view we take of S.100 (1) (d) (iv) of the Act. Sri Rao's attack on the order impugned is in substance based on alleged non-compliance with a provision of the Constitution viz., Art.324 but is neatly covered by the widely worked, residual catch-all clause of S.100. Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme S.100 of the Act has been designedly dragted to embrace all conceivable infirmities which may be urged. To make the project fool-proof S.100(1) (d) (iv) has been added to absolve everything left over. The court has in earlier rulings pointed out that S.100 is exhaustive of all grievances regarding an election. But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrariwise. For example, after the President notifies the nation on the holding of elections under S.15 and the Commissioner published the calender for the poll under S.30, if the latter orders returning officers to accept only one nomination or any those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the court's review of that order will facilitate the flow, not stop the stream. Election, wise or narrow be its connotation, means choice from a possible plurality, monolithis politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all."
5. In the light of the aforesaid Judgment, according to the learned counsel for the petitioner, the fifth respondent being a quasi judicial authority, was duty bound to act in fair and reasonable manner in accordance with law. In support of his contention, the petitioner relied upon the decision of the Hon'ble Supreme Court in the case of Uttamrao Shivdas Jankar Vs. Ranjitsingh Vijaysinh Mohite Patil (2009) 13 SCC 131) wherein the Hon'ble Supreme Court has held that there is no bar to invoke the writ jurisdiction. Hence, the writ petition is maintainable before this Court. In the case of Rampakavi Rayappa Belagali Vs. B.D.Jatti (1970 (3) SCC 147) in para 21, the Hon'ble Supreme Court has held as as follows:
"Free and fair elections are the very foundation of the democratic institutions and just as it is said that justice must not only be done but must also seem to be done; similarly, the elections should not only be fairly and property held, but should also seem to be so conducted as to inspire confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our country when the police and the Government officers create even an impression that they are interfering for the benefit of one or the other candidate."
6 The petitioner made representation on 10.04.2013 to the second respondent and copy of the said representation was forwarded to the fifth respondent apprehending the nomination forms of the petitioner will be rejected. Further, it is contended by the learned counsel for the petitioner that fifth respondent rejected the petitioner's nomination, without providing any opportunity at the time of scrutiny and thereby violated Rules 52(8)(C), 52(8)(d), 52(8)(f) and 52(8)(g) of the Tamil Nadu Cooperative Societies Rules, 1988.
7. According to the learned counsel for the petitioner, when there is a breach of statutory rules, even there is an alternative remedy, it is not absolute as decided by the Hon'ble Supreme Court in the case of Baburam Prakash Chandra Maheshwari Vs.Antarim Zila Parishad reported in AIR 1969 SC 556.
8. According to the learned counsel for the petitioner, in the light of the Judgement in Uttamrao Shivdas Jankar Vs. Ranjithsinh Vijaysinh (supra) case, under Article 226 of the Constitution of India, the writ petition is maintainable before this Court and there is no bar to entertain the writ petition as decided by the Hon'ble Supreme Court in Mohinder Singh Gill's case, the fifth respondent has arbitrarily rejected the petitioner's nomination form.
9. The learned counsel for the petitioner would further submit that it is a clear violation of principles of natural justice by the second respondent. Thus, there is no bar to invoke writ jurisdiction and to set aside the order of the fifth respondent rejecting the petitioner's nomination. Therefore, the writ petition is maintainable under Article 226 of the Constitution of India.
10. The learned counsel for the petitioner has relied upon the letter dated 10.04.2013 addressed to the second respondent with a copy marked to the fifth respondent shows a bias on the part of the fifth respondent. The learned counsel appearing for the second respondent stated that, if the said representation 10.04.2013 is relied upon, it should have been filed in the typed set of papers. The petitioner has not filed any acknowledgment receipt for the same. But the documents referred to would show that the said representation was only forwarded to the Election officer / J.D(Tea), Industries & Commerce, Incoserve Complex, Coonoor, Nilgiris. Therefore, the contentions of the petitioner are not correct. Hence, the illegality in conducting the election was brought to the notice of the second respondent before 10.04.2013 is denied. The petitioner has not also filed any acknowledgment to that effect. There is no record to show that the petitioner has sent representation to the second respondent.
11. The learned counsel for the second respondent would relied upon the following Judgments:
(i) K.Anandaraj Vs. The State of Tamil Nadu and others ( W.A.No.902 of 2013 dated 30.4.2013)
(ii) R.Murali Mohan vs. The Cooperative Election Commissioner, Chennai 18 and 5 others (W.A.No.1282 of 2013 dated 17.6.2013)
(iii) C.Govindasamy and 10 others vs. The Election Commissioner, Chennai (W.A.No.1506 of 2010 Batch case, dated 16.6.2017).
12. The learned Government Advocate would submit that pursuant to the nominations, the petitioner's nomination was rejected on the ground that at the time of scrutiny the proposer's signature differ with the signature in the admission register.
13. According to the learned Government Advocate, at the time of admission, no interim order was granted by this Court. In the writ appeal in WA.No.551 of 2014, the Division Bench has granted liberty to approach this Court for disposal of the writ petition. Hence, no interim order was granted by this Court. Subsequently, the election was conducted for the Frontier Industrial Cooperative Tea Factory and the Office bearers and President of the board of the society and the Directors of the board of the society have been elected. The President has assumed office and continued as President of the Board. In spite of that, the petitioner neither impleaded the President or other office bearers as parties in the writ petition nor challenged the election notification. Further, as stated in the counter affidavit filed by the fifth respondent, the petitioner who is aggrieved on the rejection of nomination, without exhausting alternative remedy under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983, has approached this Court under Article 226 of the Constitution of India.
14. According to the learned counsel for the 5th respondent, the fifth respondent has rejected the nomination of the petitioner by stating that the signature of the proposer and the nominee is different from the admission register. According to the learned counsel for the respondent, the rejection of the said fact has been recorded in their records. It is only during extraordinary circumstances, Article 226 of the Constitution of India can be invoked. The petitioner if aggrieved, has to approach before the concerned authority to file election petition. Further, election has been conducted and the office bearers have assumed office of the said society and the office bearers have not been impleaded in the present writ petition. Further the writ petition is not maintainable in view of the legal proposition settled by the Hon'ble Supreme Court and this Court.
15 In the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SCC 851, wherein the Hon'ble Supreme Court has held as under:
“As already pointed out, it is well-settled that election covers the entire process from the issue of the notification under Section 14, to the declaration of the result under Sec.66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order therefore, with the amended date, is passed as an integral part of the electoral process. We are not concerned with the question whether the impugned order is right or wrong or invalid on any account. Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections. Although that is not always decisive, the impugned order itself shows that if has been passed in the exercise of power under Art.324(1) and Section 153 of the Act. That is also the correct position. Such an order, relating as it does to election within the width of the expression as interpreted by this Court, cannot be questioned except by an election petition under the Act.”
16. The petitioner's nomination was rejected by the fifth respondent on the ground that the signature of the proposer and nominee are different, when compared with the admission register. The petitioner has filed this writ petition to quash the order of the fifth respondent rejecting the petitioner's nomination dated 15.04.2013 as a candidate for election to the Sixth Respondent's Board of Directors, declare the subsequent acts of the fifth respondent, including declaring any person elected on 16.04.2013 as null and void. The present elected members of the board of directors have not been impleaded as parties. In the counter affidavit filed by the fifth respondent, it has been stated that the issue involved in the present case is a disputed fact. Therefore, the said factual dispute can be decided by the authority concerned by filing an election petition, which is the efficacious alternative remedy available under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983.
17. It is an admitted fact that there is no interim order has been granted in the above writ petition. Challenging the refusal of the interim order, the petitioner has filed a writ appeal in WA.No.551 of 2014 and the Division Bench of this Court refused to entertain the writ appeal and disposed of the writ appeal with observations. Pending the aforesaid writ petition, the President of the Board of the Society and the Directors of the Board have been elected and they were assumed office. Without impleading necessary parties, namely President of the Society or the Office bearers of the Society, the present writ petition has been filed. Therefore, the present writ petition is not maintainable also on the ground of non joinder of necessary parties.
18. The respondent has relied on the decision of this Court in the case of K.Anandaraj Vs. The State of Tamil Nadu and others (supra), wherein this court has held as follows:
"9. In the decision reported in (2004) 7 SCC 492 (Manda Jaganath Vs.K.S.Rathnam) rejection of nomination to contest as an official candidate of a political party was challenged in the writ petition before the Andhra Pradesh High Court and the High Court entertained the writ petition and passed an interim order. The said order was challenged before the Hon'ble Supreme Court and in paragraph 12 the Supreme Court held thus:
"12. In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.
The Hon'ble Supreme Court not only set aside the interim order passed by the Andhra Pradesh High Court, but also dismissed the writ petition holding that the issue raised can be decided only in an election petition.
10. The other decision relied on by the learned counsel for the appellant reported in (2012) 1 SCC 762 (Ramesh Rout V.Rabindra Nath Rout) arose out of an election case and the Supreme Court upheld the order of the High Court, declaring the election of the candidate as null and void. Thus, the said decision has no application to the facts of this case.
11. The Supreme Court in the decision reported in (2009) 1 SCC 168 (City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala) held that if adjudication of the writ petition involves any complex and disputed questions of fact, and if there is any alternate remedy available, writ is not maintainable. The said decision is followed in the subsequent decision reported in (2011) 2 SCC 782 (Kanaiyalal Lalchand Sachdev. State of Maharashtra).
12. Moreover, in this case, the election date was on 12.04.2013, which was already over and the further election to the post of President was held on 16.04.2013 and a President was also elected. Thus, the prayer sought for in the writ petition to hold election on 12.04.2013 as per the election schedule, cannot be ordered at this juncture."
19. In R.Murali Mohan vs. The Cooperative Election Commissioner, Chennai 18 and 5 others (supra), the First Bench of this Court has held as follows.
“7. The Honourable Supreme Court of India in a catena of decisions reported in (2004) 7 SCC 492 (MANDA JAGANATH V. K.S.RATHNAM); (2011) 2 SCC 782 (KANNAIYALAL LALCHAND SACHDEV. STATE OF MAHARASHTRA) AND (2012) 1 SCC 762 (RAMESH ROUT V. RABINDRA NATH ROUT), had laid down the dictum that once election process had commenced, the remedy open to the aggrieved person, is to invoke the jurisdiction of the concerned electoral tribunal.
8. A perusal of the affidavit filed, as well as the documents available in the typed-set of papers, would disclose the factual disputes, namely whether issuance of nomination forms was denied to the appellant / writ petitioner and whether any irregularities took place on the eve of election. In the considered opinion of the Court, the said factual disputes can be adjudicated only in the form of election petition and the appellant / writ petitioner is also having an effective alternative remedy under Section 90 of the Tamil Nadu Cooperative Societies Act.
9. Learned Single Judge after taking into consideration the said position of law, has rightly dismissed the writ petition and we find no error apparent or infirmity in the impugned order.
10. Therefore, this writ appeal is dismissed. However, the appellant / writ petitioner is at liberty to invoke Section 90 of the Tamil Nadu Cooperative Societies Act and file an election petition challenging the election of the Directors of Maduranthagam Cooperative Sugar Mills. There shall be no order as to costs. Consequently, connected MP is also dismissed.”
20. In C.Govindasamy and 10 others vs. The Election Commissioner, Chennai (supra), the Division Bench of this Court has held as follows:
“4. The learned single Judge found that the Elected Board took charge on 9 May 2013 and as such, nothing survives for adjudication in the writ petitions. The learned Judge opined that remedy available to the appellants herein is only to approach the appropriate forum challenging the election to the society in accordance with law.
5. We do not find any error or illegality in the order passed by the learned Single Judge. There is a forum Constituted under the Act for challenging the election. There is no question of adjudicating the dispute regarding election in a writ petition filed under Article 226 of the Constitution of India. We are therefore of the view that there is absolutely no merits in the intra court appeals.”
21. The salutary principle is that, when remedies in the nature of statutory remedies are available to an aggrieved party, cannot invoke Article 226 of the Constitution, as a remedy by way of a writ petition. Under Article 226 of the constitution, five types of writs issued which are also essentially intended to apply in exceptional cases, in which ordinary legal remedies are not adequate, although the language of Article 226 expressly does not say so. However, the powers under Article 226 of the Constitution confers extensive discretion to the High Court and when discretion is exercised on well established principles such as delay, suppression of facts, disputed question of fact, futile writs etc. The ground of availability of an alternative remedy is also one such reason not to exercise discretion under Article 226 of the Constitution and refusal to grant any relief, if the aggrieved party can have recourse to an alternative or adequate remedy elsewhere. The High Court can always entertain Article 226 of the constitution of India when there is a patent error or, when there is violation of principles of natural justice or when the order impugned is ultra vires of the Act or prima facie fundamental right has been infringed. Further, if the alternative remedy is not adequate, then the High Court can entertain a writ petition. In the aforesaid contingencies, even if the alternative remedy is available, a writ petition can be entertained. Now, considering the Article 329 (b) of the Constitution of India, there is a bar to interference of a court in matters pertaining to an election. In the case of NP Ponnusamy Vs.Returning Officer, Namakkal reported in AIR 1952 SC 64, the Hon'ble Supreme court has held that the term 'election' has been interpreted and held that rejection or acceptance of nomination is included in the term 'election'. The aforesaid Judgment has been followed by the Hon'ble Supreme Court in Nanhoo Mal Vs.Hira Mal reported in AIR 1976 SC 2140 which was a case of election to a Municipal Board, wherein it has been held that the election to the office of the President could be challenged only according to the procedure prescribed by the Municipalities Act i.e. by means of an election petition presented in accordance with the provisions of that Act and in no other way. Thus, in our view, a post-election remedy by way of an election petition is the ultimate remedy available to an aggrieved party to challenge the rejection or acceptance of the nomination of a candidate. In the case of S.T.Muthusamy Vs. Natarajan [(1988)1 SCC 572] the Hon'ble Supreme Court has held that the Court in exercise of its discretion should always be declined to invoke writ jurisdiction in an election dispute, if an alternative remedy of an election petition is available. In the matter of election dispute all the power under Article 329 of the Constitution of India conferred to the Parliament and State legislature. The principle emanating from that Article is applicable to all the elections including that of local bodies or authorities constituted by a statute or to the bodies formed under a statute. Therefore, we find that the aforesaid decisions would clearly imply that even in the case of improper rejection of a nomination of a candidate, the aggrieved party has to avail of the remedy by way of election petition which is a statutory remedy. Even, in the case of State of Uttar Pradesh Vs. Uttar Pradesh Rajya Khanija Vikas Nigamaa reported in (2008) 2 SCC 675 and in the case of Nanjundaswamy Vs. Assistant Registrar of Cooperative Societies reported in ILR 1992 KAR 972 categorically held that the remedy by way of an election petition is the remedy that is normally available in election disputes. The principles of law is that, once the election process has begun it should not be interfered with. Yet another Full bench of the High Court of Karnataka in the case of Maruthi Vs. State of Karnataka reported in ILR 1990 KAR 1378 and in the case of B.Gurumallappa Vs. State of Karnataka reported in ILR 1991 KAR 577, the Karnataka High Court has held that High Court can exercise power in election disputes only in the most extraordinary circumstances. Therefore, in the light of the aforesaid Judgments of the Hon'ble Supreme Court as well as the High Court decision cited supra, the writ petition is not maintainable. There is an efficacious alternative remedy is available to the petitioner to file an election petition before the appropriate authority under the act.
22. Further in view of the principles of law settled by the Hon'ble Supreme Court and the decisions of this Court, once election is commenced, the writ petition cannot be entertained under Article 226 of the Constitution of India, the writ petition is not maintainable.
23 The writ petition is dismissed as not maintainable.
However, liberty is granted to the petitioner to file an election petition, if so advised, within a period of four weeks from the date of receipt of a copy of this Order. In case of filing election petition, the authority concerned has to consider, without being influenced by the observations made in this writ petition and pass orders on merits and in accordance with law. Consequently, connected miscellaneous petition is closed. No costs.
12.09.2017 Speaking/Non-speaking order Index : Yes/No Internet : Yes/No lok/vaan To
1. The Secretary to the Government The State of Tamil Nadu, Cooperation, Food Consumer Protection (CJ1) Department, Fort St.George, Chennai-600 009.
2. The Election Commission, Tamil Nadu Cooperative Societies, Fort St.George, Chennai-600 009.
3. Industries Commissioner & Director of Industries & Commerce cum The Registrar of Industrial Cooperative Societies, Taico Bank complex, Mandaveli, Chennai -600 028.
4. The District Election Officer,/J.D(Tea) Industries & Commerce, Incoserve Complex, Coonoor-1, Nilgiris.
5. The Election Officer, Frontier Industrial Cooperative Tea Factory, Erumad, Konnachal P.O., Nilgris, Tamil Nadu-643 239.
6. The Special Officer, The Frontier Industrial Cooperative Tea Factory, Erumad, Konnachal P.O., Nilgiris, Tamil Nadu-643 239
D.KRISHNAKUMAR. J,
vaan/lok Pre-delivery Order in WP.No.12915 of 2013 and MP No.1 of 2013 12.09.2017