Madras High Court
M.Sadhasivam vs The State Tamil Nadu Co-Operative ... on 31 August, 2018
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 31..08..2018
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
Writ Petition
Nos.11145, 15733, 22219, 22227, 22270, 22383,
22414, 22438, 21126, 21519 and 21520 of 2018
and WMPs
W.P.No.11145 of 2018:
M.Sadhasivam
... Petitioner
-Versus-
1. The State Tamil Nadu Co-operative Societies
Election Commissioner,
No.273, Kamadhenu Super Market,
Anna Salai, Chennai 600018.
2.The District Election Officer / Deputy Registrar,
Cooperative Societies,
Dharmapuri Region,
Dharmapuri.
3.The Election Officer,
K.K.278, Manjarahalli Primary Agricultural Cooperative
Credit Society, (PACCS),
Manjarahalli,
Pennagaram Taluk,
Dharmapuri District.
4.The Inspector of Police,
Eriyur Police Station,
Eriyur, Pennagaram Taluk,
Dharmapuri District.
5.C.P.Arthanari
6.S.Devarajan
7.A.Dhanasekaran
8.A.Krishnan
9.R.Natarajan
10.P.Madhappan
[Respondents 5 to 10 were impleaded as per order dated 28.04.2018 in W.M.P.No.13508 of 2018]
11.M.Arumugam
[11th Respondent was impleaded as per order dated 29.08.2018 in W.M.P.No.26040 of 2018]
... Respondents
Writ Petition No.11145 of 2018 is filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus forbearing the respondents from postponing or cancelling the cooperative society election of the 3rd respondent society and consequently direct the 3rd respondent to conduct the election with adequate police protection from the 4th respondent and also videograph the entire election process.
For Petitioner(s)
:
Mr.M.R.Jothimanian for in W.P.No.11145 of 2018
For Respondent(s)
:
Mr.M.S.Palanisamy for R1 in W.P.No.11145 of 2018
:
Mr.L.P.Shanmugasundarm for R2 to R4 in W.P.No.11145 of 2018
COMMON ORDER
The petitioners, alleging irregularities in the conduct of election to their respective cooperative societies, have come up with these writ petitions. Therefore, all these writ petitions were clubbed together, heard and are being disposed by this common order.
2.1. W.P.No.11145 of 2018 has been filed seeking a mandamus forbearing election authority from postponing or cancelling the election to the 3rd respondent society and for a consequential direction to the election authority to obtain adequate police protection and also to cover the entire election process through videography.
2.2. W.P.No.15733 of 2018 has been filed seeking a mandamus directing the respondents to include the left out members from membership No.1 to 1588 in the voters list and consequently direct the respondents to accept fresh nominations as per new voters list and conduct election in a fair and democratic manner for S-945 Hosur Cooperative House Building Society Ltd. Hosur \, Krishnagiri District.
2.3. W.P.No.22219 of 2018 has been filed seeking a mandamus directing the 1st respondent to cancel the election for the 4th respondent society to be held on 01.09.2018 and to conduct fresh election in a democratic and fair manner.
2.4. W.P.No.22227 of 2018 has been filed seeking a mandamus directing the 1st respondent to conduct the reelection for the TP.SPL.29 Sivanmalai Primary Agricultural Cooperative Credit society Sivanmalai Kangayam Taluk Tiruppur District by providing police protection by change over the 4th respondent by appointing Revenue officials for conducting the said reelection.
2.5. W.P.No.22270 of 2018 has been filed seeking a mandamus directing the 4th respondent to accept the Nomination Papers and conduct a Election in a fair and democratic manner for R1179 Namagunam Primary Agriculture Co-operative Credit Society Namagunam Ariyalur District.
2.6. W.P.No.22383 of 2018 has been filed seeking a mandamus directing the respondents to remove the name of the death person in the voters list by considering the petitioners representation dated 18.08.2018.
2.7. W.P.No.22414 of 2018 has been filed seeking a certiorari fied mandamus calling for the records of the 2nd respondent dated 27.08.2018 accepting the nomination of the respondents 4 to 14 and quash the same and consequently direct the 2nd respondent to conduct the election in a free fair and impartial manner for the Board of Directors of the 2nd respondent Society by Videographing with Police Protection based on the representation of the petitioner dated 27.08.2018.
2.8. W.P.No.22438 of 2018 has been files seeking a certiorari fied mandamus calling for the records of the Impugned order of proceedings of the co - operative societies election notification vide Na.Ka.No.778/2018/Sapa 3 dated 10.08.2018 issued by the Deputy Registrar of the co-operative societies (Credit) / The District Election officer Chennai 600 108 the 2nd Respondent herein and quash the same and direct the 2nd Respondent herein to issue a further election notification and conduct the co-operative society election towards Triplicane co-operative (Credit)Society Ltd., G-337, situated at No.35/73 Bharathi Salai, Triplicane, Chennai 600005 on the basis of the representation dated 25.08.2018.
2.9. W.P.No.21126 of 2018 has been filed challenging the validity of the list of eligible candidates for contest in the election published on 11.08.2018 by the 3rd respondent and for a consequential direction to conduct election with the list of seven contesting candidates as published by the previous Election Officer after the final list of candidates was published on 03.05.2018.
2.10. W.P.Nos.21519 & 21520 of 2018 have been filed seeking to issue a writ of declaration declaring that the action of the 3rd respondent in not including the name of the petitioner in the list of valid nomination for election of the Board of Director of the 4th Respondent Society and the action of the 2nd Respondent in issuing the order dated 09.08.2018 in so far as directing to hold the election for the 4th Respondent from the stage for withdrawal of nomination instead of from the stage of scrutiny of nomination and the order dated 13.8.2018 of the 3rd Respondent declaring the respondents 5 to 11 as elected Directors on the basis as if their candidature is unopposed as illegal arbitrary and contrary to law and consequently direct the respondents 1 to 3.
3. The elections to the various cooperative societies in the State of Tamil Nadu were scheduled to be held in the month of March and April 2018. A Notification was also issued by the Election Commissioner for Tamil Nadu Cooperative Societies to conduct election to as many as 18465 Cooperative Societies and the elections were scheduled to be held in four stages. When the elections were conducted, number of complaints were made alleging irregularities in the conduct of election viz., wrongful entry in or omission from voters' list and nominations filed by the candidates belonging to some political parties were rejected arbitrarily without assigning any reason therefor. In the said circumstances, earlier a batch a writ petitions were filed before this court and a public interest litigation was also filed on the ground that elections were not held in a free, fair and impartial manner and the Election Officers have acted in a biased manner and rejected the nomination papers of the candidates belonging to the political parties other than the ruling party and accepted the nominations of the ruling party and declared them as elected unopposed.
4. A Division Bench of this court, by order dated 03.08.2018, disposed of the writ petition in W.P.No.7526 of 2018 etcetera batch [R.Sakkarapani, Member of Legislative Assembly, Oddanchathiram Constituency v. State of Tamil Nadu and others] wherein the Division Bench has held that election for 94% of the cooperative societies were uncontested and a large number of complaints were also filed before the Election Commission for Cooperative Societies, therefore, this court was pleased to appoint four Committees chaired by Retired Judges of this Court to decide the objections / complaints filed until the date of judgement i.e., on or prior to 03.08.2018. The Division Bench has appointed four committees for four Chaired by retired Judges of this Court for four different Zones in Tamil Nadu, namely, North Zone with its Headquarters at Chennai, comprising of Chennai, Tiruvallur, Vellore, Krishnagiri, Dharmapuri, Villupuram, Tiruvannamalai and Kanchipuram Districts; South Zone with its Headquarters at Madurai comprising of Madurai, Tirunelveli, Kanyakumari, Thoothukudi, Ramanadapuram, Virudhunagar, Sivagangai and Theni Districts; West Zone with its Headquarters at Coimbatore, comprising of Coimbatore, Nilgiris, Erode, Tiruppur, Salem, Namakkal, Karur and Dindigul Districts; and East Central Zone with its Headquarters at Tiruchirappalli, comprising of Tiruchirappalli, Cuddalore, Perambalur, Ariyalur, Tanjavore, Pudukottai, Tiruvarur and Nagapatinam Districts. The Committees Chaired by the retired Judges of this Court shall comprise two Joint Registrars of Cooperative Societies and two District Collectors of the Zone, nominated by the Chairperson. The Committee has been required to decide objections / complaints of wrongful inclusions or omissions in the voters' lists, wrongful acceptance, non-acceptance or rejection of nomination papers, wrongful acceptance or rejection of ballot papers and other disputes with regard to the elections. The Division Bench has also directed that only objections / complaints with regard to voters' lists and nominations already made by approaching this Court or alternatively by approaching the Election Commission and/or Registrar and/or any other appropriate authority shall be entertained and no new complainant/objector who never raised any objection or filed any complaint till the date of the judgment of the Division Bench shall be entertained by the Committee. The Division Bench has also issued various other directions to the Committee for considering the objections and/or complaints. In the said judgement, the Division Bench has also directed the Election Commissioner to declare the results of the Elections for those cooperative societies in respect of which there is no complaint. Thereafter, the elections for those societies in respect of which there was no complaint and for those societies in respect of which the Election Commission has ordered for fresh election or rescheduled, elections were conducted. While so, alleging irregularities these writ petitions have been filed.
5. I have heard the learned counsel for the respective petitioner and the learned standing counsel for the Election Commissioner and the learned Special Government Pleader for the Election Officers of the various Cooperative Societies and also perused the records carefully.
6. The learned counsel for the petitioners would submit that after the elections to various cooperative societies have been rescheduled, in some cases, the members of the societies were not permitted to file their nominations and in some of the cases, after having received the nominations papers, the Election Officers rejected the nomination papers en masse without assigning any reason whatsoever to favour the members of the societies who belong to the ruling party. According to the learned counsel, in some cases, the petitioners apprehend law and order problem during election and they sought for police protection and they also want to videograph the entire election process. Since, the Division Bench of this Court has fixed the cut of date for filing of objections and/or complaint as 03.08.3018, the petitioner are left with no other remedy except to approach this court.
7. Per contra, the learned standing counsel appearing for the Election Commission would contend that already the Election Commission has issued various directions to the Election Officers to conduct the election in a free fair manner and the Election Commissioner has also advised the Election Officers to obtain adequate police protection wherever there is likelihood of law and order situation. He would further contend that so far no complaint is received from any of Election Officers and if any such complaint is received, the same will be considered and appropriate action will be taken.
8. The learned Special Government Pleader appearing for the respective Election Officer would contend that the elections are held in a free and fair manner following the procedures contemplated in the Act and Rules. He would further contend that if at all any dispute regarding election, the only remedy available to the aggrieved person is to file a petition under Section 90 of The Tamil Nadu Cooperative Societies Act and when there is an alternative remedy available without recourse to the same, the petitioners cannot invoke the writ jurisdiction of this court.
9. I have considered the rival submissions.
10. The main grievance of the petitioners in these writ petitions is that the Election Officers who are bound to act impartially and conduct the election in a free are manner did not do so. During earlier elections, several complaints were filed alleging the very same allegations and this court while disposing of the batch of writ petitions has held that there is no alternative forum available under the Tamil Nadu Cooperative Societies Act for adjudication of disputes in respect of wrongful entry in or omission from voters' lists or disputes with regard to acceptance of invalid nomination papers of candidates for elections or rejection of valid nomination papers or any other violations under Rule 52 before the declaration of the result of the election and the only remedy is to approach this court. The relevant portions of the judgement of the Division Bench of this court read as follows:-
"89. There is no alternative forum under the 1983 Act or any other statute for adjudication of disputes in respect of wrongful entry in or omission from voters' lists or disputes in respect of nomination of candidates for election or rejection of such nominations or any other requisites under Rule 52 of the Rules before the declaration of the result of the election.
90. Under Rule 52(5) of the Rules, the Electoral Officer is to prepare and publish the voters' list and also decide claims or objections to the voters' list. There is no remedy of appeal against the decision of the Electoral Officer with regard to the voters' list.
91. Under Rule 52(8)(d), the Electoral Officer decides objections to any nomination. There is no provision for appeal from an order of the Electoral Officer rejecting an objection to a nomination.
92. In any case, there is no provision in the Rules for adjudication of a dispute raised by a candidate against the rejection of his own nomination. "
Therefore, the only remedy available to the petitioners herein is to invoke the writ jurisdiction of this court. As already stated above, the Division Bench of this Court in its judgement, cited supra, appointed Committees and the Committees are empowered to consider the objections which were filed on or prior to 03.08.2018 and the Committee has no power to deal with complaints which have been received subsequent to the judgement of the Division Bench of this court. In the above circumstances, the complaints of the writ petitions cannot be referred to the Committees. At this stage, this court also cannot go into the veracity of the allegations made in the writ petitions. However, there is a mechanism provided in the Tamil Nadu Cooperative Societies Act to redress the grievance of the aggrieved person.
11. As per Section 33-A of the Tamil Nadu Cooperative Societies Act, Tamil Nadu State Cooperative Societies Election Commission is conferred with the power of superintendence, directions and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society. Rule 51 of the Tamil Nadu Cooperative Societies Rule deal with the election of the Members of the Board of a Primary Society other than a scheduled Co-operative Soceity. Rule 52 deals with the election of Members of the Board and this rule prescribes the procedures for conducting election to the Board of Directors. Rule 52(18) deals with the power of the Election Commission to consider the complaints regarding interruption or obstruction to the election process which reads as follows:-
"52 (1). Election of Members of the Board.-
... ... ... ... ... ... ... ... ... ... (18) (a) If at any stage of election, the proceedings are interrupted or obstructed by any riot or open violence or if it is not possible to proceed with the election on account of any natural calamity, the Election Officer shall have power to stop the election, recording his reasons for such action.
(b) The fact that election has been so stopped shall be immediately announced and reported to the District Election Officer, the State Election Officer and the Election Commission forthwith by the Election Officer.
(c) Proceedings with reference to the election so stopped shall be resumed from the stage it was stopped resumed at an earlier stage as may be decided by the Election Commission.
(d) Notwithstanding anything contained in sub-rules (a) to (c), the Election Commission may, for special reasons, empower the District Election Officer to fix dates and periods, other than those notified earlier under the Rules, for all or any of the stages of any election under the Rules."
12. No doubt, the allegations in these election petitions relate to conduct of elections. The petitioners allege that the elections are/were not conducted in a free, fair and impartial manner. Even though the Election Commission is not conferred with the power to adjudicate a dispute which falls under Section 90 of the Act, since the Election Commission has power of superintendence over the conduct of elections, this court is of the view that it can very well look into the complaints regarding conduct of election and decide as to whether the elections are/were conducted in a free and fair manner and pass suitable orders after a detailed enquiry.
13. Indisputably, the Election Commissioner, taking into consideration several such complaints, has already issued various directions to all the Election Officers to obtain adequate police protection wherever there is any likelihood of law and order situation. That apart, in order to conduct the poling in a peaceful manner and also to monitor as whether the elections are conducted properly, it is necessary that the entire election process should be video graphed by the authorities.
14. In the facts and circumstances of the case, this court issues the following directions:
(i) The Election Officers are directed to cover the entire process of election through videography right from the filing of nominations or from the stage where the election process resumed, as the case may be, till the process of declaration of results is over at the cost of the the respective petitioner.
(ii) Soon after the completion of each and every stage of election process, the concerned Election Officer shall keep the CD/VCD/DVD/Memory Card/Cassette containing the recordings of the election process in a sealed cover and forward the same to the Election Commission forthwith.
(iii) The concerned Election Officer shall make a request in writing to the concerned police station for adequate police protection, as already directed by the Election Commission, during the entire process of election including filing of nominations till the process of declaration of results of the election, as the case may be. On receipt of such request, the concerned police is directed to provide adequate police protection so as to ensure that the election is conducted in a free and fair manner. The concerned District Superintendent of Police is directed to ensure that adequate police protection is provided during elections.
(iv) If there is any irregularity or violation of any procedures during the course of election, it is open to the aggrieved to make an objection/ complaint to the State Election Commission for Cooperative Societies. On receipt of such objection/complaint, the State Election Commissioner is directed to conduct enquiry on the same and pass suitable orders after giving sufficient opportunity to the complainant/objector as well as to the interested persons.
(v) In the enquiry, if the Election Commission found that any of the Election Officers or any other Officials committed any irregularities or misconducts, the Election Commissioner shall report the same to the concerned authorities for taking suitable action against the erring officers.
(vi) However, in cases where the elections were already over and the results were declared before filing of objection / complaint by the petitioners, the only remedy available to the person affected is to file a petition under Section 90 of the Tamil Nadu Cooperative Societies Act, as directed by the Division Bench of this court.
15. In the result, the writ petitions are disposed of with the above directions. No costs. Consequently, connected WMPs are closed.
31..08..2018 kmk Note: Issue order copy on 31.08.2018.
To
1.The State Tamil Nadu Co-operative Societies Election Commissioner, No.273, Kamadhenu Super Market, Anna Salai, Chennai 600018.
2.The District Election Officer / Deputy Registrar, Cooperative Societies, Dharmapuri Region, Dharmapuri.
3.The Election Officer, K.K.278, Manjarahalli Primary Agricultural Cooperative Credit Society, (PACCS), Manjarahalli, Pennagaram Taluk, Dharmapuri District.
4.The Inspector of Police, Eriyur Police Station, Eriyur, Pennagaram Taluk, Dharmapuri District.
V.BHARATHIDASAN.J., kmk Writ Petition Nos.11145, 15733, 22219, 22227, 22270, 22383, 22414, 22438, 21126, 21519 and 21520 of 2018
31..08..2018