Heard both sides.
2.The petitioner is the member of the second respondent Society. The 2nd respondent Society is managed by the Board of Directors, consisting of 14 Board of Directors and among them, 11 shall be elected by the General Body and two shall be co-opted by the Board from among other members and one shall be the Chief Executive as the ex-officio member of the Board. The term of the Board of Directors is 5 years and the members of the Board shall elect the President and the Vice-President. The term of the present Board expired on 02.10.2008 and therefore, the Board met on 27.07.2008 and resolved to hold election for the members of the Board on 14.09.2008 and appointed the 3rd respondent as Returning Officer and after complying with the various provisions of the Rules, Act and Schedule to the election, election was held on 14.09.2009, and in the Annual General Meeting, 208 members attended the meeting and 22 persons contested in the election for electing 11 members and after election was over and after completion of counting of votes, two of the contestants filed petition for recounting of votes and with the consent of all the parties, recounting was fixed on 21.09.2008 and ballot papers were handed over to the Secretary of the Society for safe custody. Thereafter, two persons have given objection to the 3rd respondent stating that the election was not conducted as per the provision of the Multi State Cooperative Societies Act and the Rule framed thereunder, pointing out certain irregularities in the conduct of the election and the 2nd respondent, Returning Officer, after getting legal opinion, cancelled the entire election process, by his proceedings, dated 30.09.2008 stating that the election held on 14.08.2008 is cancelled and consequently recounting of votes is also cancelled and this order is challenged in the writ petition by the petitioner, who is one among the contestant.
3.The writ petitioner has stated in his affidavit that there is no irregularities as stated by the Returning Officer or by the other members, who raised objections and till the election was held, no objection was raised by anybody and the announcement of result was postponed due to recounting of votes ordered by the Returning Officer and at that stage, the Returning Officer should not have cancelled the entire election process on flimsy grounds.
4.The respondents 2 and 5 filed a counter and the respondents 3 and 4 filed separate counter. In the counter filed by the respondents 2 and 5, it has been stated that though the 3rd respondent has been appointed as Returning Officer, the Secretary of the Society viz., the 2nd respondent was in charge of the formalities preceding the election and the Returning Officer was only finalising the proceedings in the election premises, dated 04.01.2008, and the election schedule, finalising all the list of eligible members, publication of all the list of members in the election schedule were all done by the 2nd respondent and the 2nd respondent alone received the nomination forms and scrutinised them and finalised the list of contestants.
5.In the counter, the 2nd respondent also admitted that one contestant, by name Palanisamy and one member S.Ramanathan filed separate petitions, dated 26.07.2008 highlighting the irregularities in the manner of conducting the election and requested the Returning Officer to cancel the election and the Returning Officer after getting legal opinion found that there are irregularities in the manner of conduct of the election and hence, cancelled the election.
6.It is admitted in para 10-[i] that the Returning Officer did not discharge any function, except made himself available in the polling booth at the time of polling and then counting.
7.It is further stated in para 10-[ii] that one T.Perichiappan, who also contested in the election was not an eligible member, as per the voters list prepared on 13.08.2008, as he defaulted in repaying of loan instalment for more than 6 months and on 05.09.2008, he repaid the same and he is not qualified to contest the election as per the bye-law No.29(1)(g)(ii). Similarly, various other members were absented for three consecutive General Body Meetings and they were also disqualified from contesting election, but their nominations were accepted.
8.It is further stated that as on 13.08.2008, the date on which the election was announced the list of voters was only 328 and thereafter, voters were included in the list of voters and on 13.09.2008, a number of eligible voters were 353 and this is also in violation of 29(1)(g(ii). In short, irregularities were committed by the respondents 2 and 5 and they also justified the cancelling of the election as ordered by the 3rd respondent. They also contended that as per the Larger Bench Judgment of this Honourable court, no writ lies against the Cooperative Societies and the writ is not maintainable.
9.The Returning Officer/3rd respondent has also admitted that the 2nd respondent is the Secretary of the Society and was doing all the works in his place as per Board and he did not participate or interfere in any of the election process and he took-charge of the election process on 04.09.2008, the date of the election and on that date, there were 22 contestants for filing up 11 members and the election was conducted in a peaceful manner and two contestants asked for recounting of votes and he accepted the demand and only recounting has to be done on 05.10.2008 and thereafter, he received petitions from one of the contestants M.Peirichappan and another member S.Ramanathan, who bring to his notice various irregularities committed in the conduct of the election and therefore, he sought for legal opinion and found that the election was not conducted as per the provision of the Act and Rules and Schedule to the Rules and hence, he decided to cancel the election and there is no mala-fide on his part and his order is in accordance with the provisions of the Act. The 4th respondent also reiterated the same allegation made by the other respondents.
10.Mr.VR.Shanmuganathan, the learned counsel appearing for the petitioner, submitted that having allowed the election to be conducted on a particular date without raising any objection about the manner of conducting election or acceptance of nomination by the 2nd respondent and when admittedly, the election was conducted peacefully and even during or after counting was over, no objection was raised against the election and in such circumstance, the Returning Officer/ 3rd respondent, should not have acted on the basis of the complaint made by two persons, alleging certain irregularities and on that ground should not have cancelled the election on the basis of the legal opinion.
11.Mr.VR.Shanmuganathan, the learned counsel appearing for the petitioner submitted that once election is over, parties are entitled to raise only election dispute in an appropriate forum and the Returning Officer, having announced recounting of votes on 05.10.2008, should have recounted the vote and announced the election and if any person is aggrieved by the election they can only raise election dispute in appropriate forum and the Returning Officer has no power to cancel the election.
12.On the other hand, Mr.S.Seenivasagam, the learned counsel appearing for the respondents 2 to 5 submitted that once it is proved that the election was not conducted in accordance with the provisions of the Act, Rules and Schedule to the rules, the Returning Officer is justified in cancelling the election and no purpose will be achieved by announcing the result of an invalid election, driving the parties to raise the dispute in the appropriate forum. According to the learned counsel appearing for the respondents 2 to 5, the very conduct of election is illegal and therefore, nobody will get any right in the election and the Returning Officer is right in cancelling the election.
13.To appreciate the contention of both parties, we will have to see the provision of the Act, Rules and Schedule to the rules. The bye-laws of the Society should also be taken into consideration for the same. As per
section 45 of the Multi-State Co-operative Societies Act, 2002, the conduct of the election to the Board of a Multi-State Co-operative Society shall be the responsibility of the existing Board and the election shall be held by secret ballot.
14.As per section 43 of the Act, disqualification is prescribed and as per the section 43 (g)(i) a member is disqualified, if he committed default in the repayment of the loan to a society, after the receipt of a notice of default and as per bye-law 29(g) of the 2nd respondent, a provision similar to
section 43(g)(i) is incorporated for disqualifying a member from contesting for the post of member to the Board.
15.As per Rule 19 of the Act, the procedure for conduct of election has been prescribed and as per Rule 20, election to the office bearers of the board shall be conducted as per the programme given in the election schedule. As per the election schedule, the Board of members shall appoint the Returning Officer and the Returning Officer shall do various activities as provided under Rule 1(1) of the schedule to the election.
16.As per the Clause 8(v), the Returning Officer should prepare a list of members eligible to vote, as it stood on the date of 30 days prior to the date fixed for the poll and publish copies of the list by affixing them on the notice Board of the society, at least 15 days prior to the date of polling and as per Schedule 3(a), nomination if, shall be supplied by the Returning Officer or any other officer authorised by him in this behalf.
17.As per Schedule 3(d), no person shall be nominated as a candidate for election to fill a seat on the board if he is ineligible to vote or disqualified under the provisions of the Act and Rules or does not possess the necessary qualifications.
18.As per Schedule 4, nomination should be scrutinised by the Returning Officer and the Returning Officer shall endorse on nomination paper his decision accepting or rejecting the same as the case may be and also shall publish the list of valid nomination on the notice Board.
Therefore, it is seen from the bye-laws, Act, Rules and the election schedule, the Returning Officer has to act accordingly to rule in the conduct of election.
19.In this case, as admitted by the Returning Officer as well as by the other respondents, the Returning Officer came to the office only on the election date viz., 14.09.2008. It is admitted by the respondent 2 and 5 that nomination papers were scrutinised only by the Secretary and no order has been passed by the Returning Officer as contemplated under the election schedule, rules, either accepting or rejecting the nomination. Though, these are serious irregularities, as no objection was raised by any of the members for the role played by the Secretary, in scrutinising the nomination and the election was also allowed to be conducted peacefully, these irregularities, in my opinion, cannot vitiate the election and the election cannot be cancelled on these grounds. But, apart from these irregularities, there are two irregularities, which are serious in nature and go into the root of the matter.
20.It is admitted by all the parties that election was notified on 13.08.2008 and on the date of notification, the list of members eligible to vote was only 328 and after the election was announced, members were included, who are otherwise disqualified to exercise their franchisees and on the date of polling, 353 members were allowed to vote. It is a settled law that the list of members, who are entitled to vote cannot be increased or decreased after the election was notified. In this case, admittedly, on 13.08.2008, a number of eligible voters were only 328 and thereafter, the number of voters were increased to 353 and admittedly, that was not done by the Returning Officer and it was done by the Secretary, the 2nd respondent, even without the knowledge of the Returning Officer. Therefore, this serious irregularity, by allowing ineligible members to vote vitiated the entire election process. Further, the persons, who incurred disqualification as per clause 29 of the bye-law and also as per the
section 43(g)(i), were permitted to file nomination after the announcement of election date and they were also included in the list of members eligible to vote. As stated supra, as per election law, the list of members eligible to vote on the date of announcement of election shall not be increased or decreased after the announcement. In this case, number of voters were increased after the notification of the election date, but ineligible voters, whose names did not find place in the list of members as on 13.08.2008 were made members, thereafter, without the knowledge of the Returning Officer, they were also permitted to contest the election. Therefore, these two irregularities go to the root of the matter and vitiate the entire election process. Therefore, the Returning Officer is justified in cancelling election. Nevertheless, in this case, the Returning Officer has failed in his duty to perform the duty of the Returning Officer and the 2nd respondent was also permitted or allowed by the Returning Officer to neglect his duties as per the Act, Rule and the deletion of the duty of the respondents 2 and 3 has resulted the cancellation of the election.
21.Though, the 3rd respondent, viz., the Returning Officer, having failed in his duty to conduct the election, as per the provisions of the Act, Rules, is justified in cancelling the election, having regard to the fact that there are two violations, which are serious in nature and go into the root of the matter, which also vitiate the entire election process and hence, the cancellation of election ordered by the Returning Officer is upheld.
22.In the result, the writ petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
er To, The Central Registrar of Cooperative Societies, Government of India, Ministry of Agriculture, Department of Agriculture and Cooperation, New Delhi.