Madras High Court
The Food Corporation Of vs J.Shanmugam on 29 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 29.4.2010
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
C.R.P.(PD) No.3865 of 2009
1. The Food Corporation of
India (South Zone) Employees
Co-op. Society Ltd.,
MSCS/CR-23/96
No.114/171, Prakasam Salai
Chennai 600 108
rep. By its Secretary
2. T.Rajendran, Secretary
The Food Corporation of
India (South Zone) Employees
Co-op. Society Ltd.,
MSCS/CR-23/96
No.114/171, Prakasam Salai
Chennai 600 108 ... Petitioners
vs.
1. J.Shanmugam
Vice President
The Food Corporation of
India (South Zone) Employees
Co-op. Society Ltd.,
Residing at No.134/306, 99th Street
Muthamizh Nagar
Kodungaiyur, Chennai 600 118
2. M.Chandran Diector
The Food Corporation of
India (South Zone) Employees
Co-op. Society Ltd.,
Residing at No.97, Bharathipuram
II Street, Shenoy Nagar, Chennai 600 030
3. Central Registrar of Co-op. Societies
Krishi Bhavan
Dr.Rajendra Prasad Road
New Delhi 110 001 ... Respondents
Civil Revision Petition is filed against the order, dated 24.11.2009, made in I.A.No.22905 of 2009, in O.S.No.12081 of 2009, passed by the V Assistant City Civil Court, Chennai.
For petitioners : Mr.D.Rajagopal
Senior Advocate for
Mr.K.G.Vasudevan
For Respondents : Mr.N.Jayabalan for R1, R2
O R D E R
This Civil Revision Petition has been filed against the order, dated 24.11.2009, made in I.A.No.22905 of 2009, in O.S.No.12081 of 2009, on the file of the V Assistant City Civil Court, Chennai.
2. The petitioners in the present Civil Revision Petition are the second and the third defendants in the suit, in O.S.No.12081 of 2009, filed by the first and the second respondents herein. The suit, in O.S.No.12081 of 2009, has been filed praying for a decree to declare the election programme, dated 13.10.2009, issued by the fourth respondent returning officer is null and void and that it is not in accordance with the provisions of the Multi-State Cooperative Societies Act, 2002, and the bye-laws of the food corporation of India (south zone) employees cooperative societies limited. The plaintiffs in the suit had also prayed for a decree of permanent injunction restraining the returning officer from conducting the election for the Board of Directors of the society, based on the alleged resolution, dated 24.9.2009, and to direct the Central Registrar of Cooperative Societies, New Delhi, the first defendant in the suit, to conduct the election for the Board of Directors of the society, for the period 2010-2014, in terms of the bye-laws of the society and the provisions of the Multi-State Cooperative Societies Act, 2002. The first and the second respondents had also filed an interlocutory application, in I.A.No.22905 of 2009, in O.S.No.12081 of 2009, praying for an order of interim injunction to restrain the returning officer, the fourth respondent in the civil revision petition, from proceeding with the election programme for the second respondent society, as per the notice, dated 30.10.2009, pending disposal of the suit, in O.S.No.12081 of 2009.
3. The trial Court, by its order, 24.11.2009, had stated that, prima facie, the balance of convenience was found to be in favour of the first and the second respondents, at that stage. It had also been stated that if an order of interim injunction is not granted the resultant injury, damage or loss caused to the first and the second respondents cannot be compensated. Since, the documents filed on behalf of said respondents clearly established the unfair practice in the process of election to the food corporation of India (south zone employees cooperative limited), an order of ad interim injunction had been granted in favour of the first and second respondents.
4. The petitioners have filed the present Civil Revision Petition against the order of the V Assistant City Civil Court, Chennai, dated 24.11.2009, under Article 227 of the Constitution of India.
5. The learned counsel appearing for the petitioners had submitted that the order of the trial Court, dated 24.11.2009, made in I.A.No.22905 of 2009, is opposed to the principles of law and amounts to jurisdictional error. The learned V Assistant Judge, City Civil Court, Chennai, had failed to note that, under Section 115 of the Multi-State Cooperative Societies Act, 2002, no suit shall be instituted against a Multi-State Cooperative Society or of any officers in respect of any act touching the constitution, management or the business of the society, until the expiration of 90 days after a notice, in writing, has been delivered to the Central Registrar or left at his office stating the cause of action and the other particulars relating to the plaintiff, including the reliefs sought for.
6. The learned counsel appearing for the petitioners had submitted that the learned Judge had lost sight of mandatory provisions before granting an order of interim injunction restraining the respondents from proceeding with the election process. The learned Judge had also failed to take into consideration the established legal position that once an election process has been set in motion, the court would not intervene and pass orders thereon.
7. The learned counsel appearing for the petitioners had submitted that the trial Court had erred in ignoring the fact that only two out of the 17 directors had filed the suit complaining about the second petitioner. The trial Court ought to have realised that any order of ad interim injunction would result in the cancellation of the election.
8. The learned counsel appearing for the petitioners had also stated that the suit, in O.S.No.12081 of 2009, filed by the first and second respondents, is not maintainable, in view of Section 84 of the the Multi-State Cooperative Societies Act, 2002, as it provides for arbitration, in case of disputes arising including a dispute arising in connection with the election of any officer of a the Multi-State Cooperative Societies Act, 2002. Even if it can be held that the suit is maintainable, the provisions of Sections 115 and 117 of the Act had not been followed. No notice had been given to the Central Registrar, as provided under Section 115 of the Act. Section 117 of the Act bars the jurisdiction of the civil courts against registered societies in respect of certain matters, which are stated therein, including the conducting of elections. Therefore, the order of the trial Court, dated 24.11.2009, made in I.A.No.22905 of 2009, is liable to be set aside.
9. The learned counsel for the petitioners had submitted that item 3 of the agenda of the board meeting notice, dated 11.9.2009, includes the process of election. Thereafter, a meeting had taken place, on 24.9.2009, and the election programme had been published, on 30.10.2009, as per the provisions of the the Multi-State Cooperative Societies Act, 2002, and the bye-laws of the society.
10. The learned counsel for the petitioners had relied on the decision in MOHINDER SINGH Vs. CHIEF ELECTION COMMR. (AIR 1978 SC 851), wherein, it has been held that election covers the entire process from the issue of the notification under Section 14 of the Representation of the People Act to the declaration of the result under Section 66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order therefor, with the amended date, is passed as an integral part of the electoral process.
11. The learned counsel for the petitioners had also relied on the decision, in N.P.PONNUSWAMI Vs. RETURNING OFFICER, NAMAKKAL (A.I.R.(39) 1952 SC 64, wherein, the word election, in Article 329 (b) of the Constitution of India, is used to embrace the whole procedure of election and it is not confined to the final result thereof.
12. Per contra, the learned counsel for the respondents had submitted that Sections 84 and 115 of the the Multi-State Cooperative Societies Act, 2002, do not constitute a bar for filing a civil suit. Therefore the contention of the petitioner that the suit, in O.S.No.12081 of 2009, cannot be maintained by the first and the second respondents, is not acceptable.
13. It has also been contended that the civil revision petition filed against an order of ad interim injunction is not maintainable, as the said order had not been extended. Since, the trial Court had passed a speaking order, on 24.11.2009, the only remedy open to the petitioners is to file an appeal against said order, as per law. It has also been stated that it would not be appropriate for the petitioners to compare the elections contemplated under the Representation of the People Act, 1951, with the election held in accordance with the Multi-State Cooperative Societies Act, 2002. It has also been stated that there was no meeting held on 24.9.2009, as per the board meeting notice, dated 11.9.2009. Assuming that there was a meeting, held, on 24.9.2009, it would not be valid as a valid notice should have been issued, with regard to the date, time and the venue for the holding of the meeting. Section 115 of the Act cannot be said to include the process of election in its scope, as it has only stated that no suit shall be instituted against a Multi-State Cooperative Society or any of its officers, in respect of any act touching the constitution, management or the business of the society, until the expiration of 90 days next after notice in writing have been delivered to the central registrar.
14. According to the learned counsel for the respondents, Section 84 (2)(c) would only contemplate a situation arising after the completion of the election. Therefore, the contention of the learned counsel for the petitioners that the suit, in O.S.No.12081 of 2009, is not maintainable, as it is a matter, which is to be referred to arbitration.
15. It had also been stated that the order passed by the trial Court is a well reasoned order and therefore, it may be open to the petitioners to go before the trial Court to vacate the order of ad interim injunction granted by it or to file an appeal, under Order XLIII Rule 1 of the Civil Procedure Code, 1908. In fact, the notice was meant for the board meet, to fix the date for the election.
16. The learned counsel for the respondents had relied on the following decisions in support of his contentions:
16.1. In VENKATASUBBIAH NAIDU Vs. CHELLAPPA (2001) 1 M.L.J.75(SC.), the Supreme Court had held that any order passed in exercise of the powers under Order 39, Rule 1, of the Civil Procedure Code, would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same court which passed the ex parte order for any relief.
16.2. In R.KARUPPAN, ADVOCATE Vs. P.K.RAJAGOPAL, SECRETARY 2001 (3) CTC 486, this Court had held that "Point No.3: The second defendant argued that once election has started, it cannot be stalled by the Courts. This argument is based upon the procedures and practices as well as the rules of the Representation of the Peoples Act which govern the general elections. He argued that just like the process of general elections of Parliament or the State Legislative Assembly cannot be stalled or stopped by any proceedings before the Court, the election to the association also cannot be stalled. This argument of the second defendant is not acceptable. The General Election for Parliament and the State Legislative Assemblies are governed by the Representation of the Peoples Act and Rules. It cannot be extended to the Association registered under the Societies Registration Act. These associations are undoubtedly governed only by the Societies Registration Act and rules and nothing else. Therefore, in the absence of any provision excluding the jurisdiction of Courts, this argument is not acceptable and hence, rejected."
17. In view of the submissions made by the learned counsels for the petitioners, as well as the respondents and on a perusal of the records available and in view of the decisions cited above, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to interfere with the order passed by the trial Court, on in I.A.No.22905 of 2009, in O.S.No.12081 of 2009, at this stage.
18. The petitioners have not been in a position to show that the order passed by the learned Judge is erroneous or illegal. The order of the trial Court, dated 24.11.2009, made in I.A.No.22905 of 2009, in O.S.No.12081 of 2009, is only an ad interim order and it would be open to the petitioners to approach the trial Court to vacate the same. Even otherwise, the petitioners could avail the appellate remedy provided under Order XLIII Rule 1 of the Civil Procedure Code, 1908. Even though Section 84 of the Multi-State Cooperative Societies Act, 2002, talks about referring of certain matters to arbitration, the said aspect could be brought to the notice of the trial Court, by the petitioner, if they deem it fit to do so, to get appropriate reliefs. It is for the trial Court to decide as to the applicability of Section 84 of the Act to the present case.
19. The other grounds raised by the petitioners, including the ground relating to the maintainability of the suit, could be raised before the trial Court and it is for the trial Court to decide the said issue, on merits and in accordance with law. However, it is made clear that a civil revision petition, under Article 227 of the Constitution of India, would not be the appropriate remedy available to the petitioners, at this stage. As such, the Civil Revision Petition is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs.
lan To V Assistant City Civil Court, Chennai