Madras High Court
Dr.P.Rajaji vs The State Of Tamil Nadu on 29 September, 2008
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.09.2008 CORAM HON'BLE Mr.A.K.GANGULY, CHIEF JUSTICE and HON'BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.A.Nos.932 & 827 of 2008 -------- W.A.No.932 of 2008 Dr.P.Rajaji, Advocate No.92, Soorappa Mudali Street, Triplicane, Chennai 600 005. ..Appellant. Vs. 1. The State of Tamil Nadu, rep. by its Secretary to the Govecrnment, Co-operation, Food & Consumer Protection (CJ1)Department, Fort St.George, Chennai 600 009. 2. The Registrar of Co-operative Societies, Chennai 600 010. 3. The Madras Advocates Co-operative Society Ltd., rep. by its Special Officer, High Court, Chennai 104. 4. The Election Officer, The Madras Advocates Co-operative Society Ltd., High Court, Chennai 104. ..Respondents. W.A.No.827 of 2008 D.Kulasekaran, S/o.D.Devarajulu, No.22/19, South Mada Street, Koyambedu, Chennai 600 107. ..Appellant. Vs. 1. The State of Tamil Nadu, rep. by its Secretary to the Government, Co-operation, Food & Consumer Protection (CJ1)Department, Fort St.George, Chennai 600 009. 2. The Registrar of Co-operative Societies, The Tamil Nadu Co-operative Societies, Kilpauk, Chennai 600 010. 3. The Deputy Registrar (Non-Loan), Tamil Nadu Co-operative Societies, Kuralagam, Chennai 600 108. 4. X-146, Madras Advocates Co-operative Society Ltd.(Canteen), rep. by its Special Officer, Madras High Court Buildings, Chennai 600 104. ..Respondents. PRAYER: Writ Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge dated 03.06.2008 passedin W.P.Nos.24684 of 2007 and 24424 of 2007. ---------- Mr.R.Muthukumarasamy, :: For Appellant in W.A.932/08 Senior Counsel for Mr.A.Jenasenan Mr.G.Ethirajulu :: For Appellant in W.A.827/08 Mr.P.Wilson, :: For all the respondents in both Addl. Adv.General VI the appeals. assisted by I.paranthaman Addl.Govt.Pleader ----------- J U D G M E N T
THE HON'BLE THE CHIEF JUSTICE These two appeals have been filed against the common order of the writ Court passed in W.P.Nos.24684 of 2007 and 24424 of 2007 dated 3rd June 2008.
2. Both the writ petitions have been filed challenging the Governmental Order in G.O.(2D)No.76, dated 11th July, 2007 issued by the Secretary to the Government, Department of Co-operation, Food and Consumer Protection Department, whereby all the elections held or in progress in Primary, Central and Apex Co-operative Societies in the State of Tamil Nadu commencing from 8th June, 2007 under the provisions of Tamil Nadu Co-operative Societies Act, 1983 were cancelled. The text of the order dated 11th July, 2007 issued by the Secretary to the Government is set out below:
'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 19.04.2007
2.From the Registrar of Co-operative Societies letter Rc.No.51684/2007/CE1 dated 11.07.2007
---------
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 occured 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.'
3. Challenging the above said governmental order another writ petition in W.P.No.24746 of 2007 has been filed with a similar prayer, and also praying to quash the consequential order passed by the Deputy Registrar, Tamil Nadu Co-operative Societies, Krishnagiri dated 11.07.2007.
4. All the three writ petitions were heard together, and the learned single Judge by the impugned order dismissed the writ petitions upholding the governmental order quoted herein above.
5. Against the said common order only two appeals have been filed namely., W.A.Nos.932 of 2008 and 827 of 2008 which arose from W.P.Nos.24684 of 2007 and 24424 of 2007 respectively. Therefore, this judgment is confined only to those two writ petitions.
6. The appellant in W.A.No.932 of 2008 is an advocate and is a member of the Madras Advocates Co-operative Society Ltd.,the 3rd respondent herein, which is a registered society under the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as the 'said Act'). The said society is running a canteen within the High Court campus for the benefit of the advocates. It has been contended that the said society is goverend by the provisions of the said Act and the rules and bye laws framed under the said Act. The management of the said society vests in a Board of 11 Directors elected by the general body once in every 5 years. Thereafter, those Directors elect the relevant office bearers, such as, President, Vice President, Secretaries, Treasurer, etc., to the said society. By a notification dated 19th April, 2007 the Government of Tamil Nadu issued an order for the conduct of election to all co-operative societies in the State. Pursuant to such notification the date for the commencement of election was fixed on 8th June, 2007 under the provisions of the said Act. Initially 31 advocates filed their nominations. Subsequently, two advocates withdrew their nominations. Therefore, 29 nominations were there for election. The election was conducted on 11th June, 2007 to the said society. The counting of votes was started by the 4th respondent Election Officer, and the appellant having polled second largest number of votes was declared elected by the 4th respondent on the night of 11th June, 2007. Before the appellant and the other elected members could assume charge, they found that the government had issued the impugned order directing the Registrar of Co-operative Societies to cancel all elections and accordingly, the Registrar thereafter cancelled all elections.
7. The facts in the other case are almost the same. It appears that the advocates practising in the Madras High Court formed a society called Madras Advocates Co-operative Society Ltd. (Canteen). The said society is also registerd under the said Act, and it runs a canteen for its members on a non-profit basis. In the year 2001, the elected Board of Directors was superseded and a Special Officer was appointed. Since then, the Special Officer is running the canteen. Pursuant to the aforesaid notification, nominations are invited for the election to the Board of Directors. Pursuant to such notification, the writ petitioner filed his nomiantion. Thereafter, election programme was drawn up and election was conducted peacefully on 11.07.2007 inside the Court Campus without any complaint from any quarters. Thereafter, the counting of votes took place and the result was declared on 11.07.2007 announcing the 11 members to the Board of Directors and the writ petitioner was one of the successful member. Thereafter, came the said impugned order purporting to cancel the elections.
8. It is not in dispute that in these two writ petitions the membership of the society is confined only to the advocates. This fact has also been noted in the judgment of the learned Judge.
9. It is also not in dispute that after the aforesaid order was passed by the government, the Registrar, Co-operative Societies passed a consequential order cancelling all elections. Both the orders were challenged before the writ Court.
10. In the counter affidavit, which has been filed in those two writ petitions, it appears that insofar as the Madras Advocates Co-operative Society's election is concerned one P.Dharmalingam, Co-operative Sub Registrar was appointed the Election Officer and 31 members filed their nominations on 05.07.2007 and on 06.07.2007 two members withdrew their nominations, and the final list of contesting candidates published by the Election Officer contained about 29 names. Two members of the said society sent their telegrams on 06.07.2007 to the Registrar of Co-operative Societies stating that there were irregularities in filing nominations and requested to stop the election. It appears from the counter affidavit that election took place on 11.07.2007 and results were declared by the Election Officer by 8 pm on the same day declaring election of 11 members to the Board of Governors, and thereafter, the election was cancelled by the impugned order referred to hereinabove.
11. The learned counsel for the appellants in assailing the impugned order of the government submitted that the impugned order does not give any reason for cancelling all the elections held for the co-operative societies in the State, which have been either completed or are in progress. The learned counsel submitted that the only reason given in the impugned order is that certain 'unwanted incidents have occured during these polls' and these 'incidents have undermined the very purpose of conducting the elections to the co-operative societies'. But no details of such allegedly unwanted incidents have been stated in the impugned order. Therefore, the impugned order discloses exercise of an omnibus power by the government in seeking to cancel all elections, which have been held or are in progress.
12.The learned counsel for the appellants also submitted that there is no provision under the said Act and the Rules made thereunder, which enable the government to pass such an order cancelling elections to the co-operative societies.
13. It appears from the judgment of the writ Court that the learned counsel for the government relied on Section 182 of the said Act as conferring power on the government to pass the impugned order cancelling elections to the co-operative societies. The learned single Judge accepting the said contentions held that 'I am of the view that Section 182 gives ample power to the government to take the impugned decision and it cannot be held unauthorised, particularly, when no mala fide is alleged against the respondents 1 and 2'.
14. The Learned single Judge also held in paragraph 19 of the judgment that government is well within its powers to cancel the elections already held. The learned Judge also supported the governmental order under Article 162 of the Constitution.
15. The learned Judge also relied on certain judgments on the concept of 'free and fair election' and the learned Judge referred to the judgment of the Supreme Court reported in (2006)7 SCC 1 (Kuldip Nayar Vs. Union of India)paragraph 448. Reliance was placed also on the judgment of the Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner (AIR 1978 SC 851) paragraphs 91(2)(a) and (b) and 113. The learned Judge also referred to the decisions of the Supreme Court in the case of Smt.Indira Nehru Gandhi Vs. Shri.Raj Narain (1975 (Supp.1) SCC 1), Surinder Kaur Vs. State of Punjab (AIR 1996 SC 1507) and on the judgment in Jayarajbhai Jayantibhai Patel Vs. Anilbhai Jayantibhai Patel(2006 AIR SCW 4670). The learned Judge also relied on the decision of a Division Bench of this Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. State Election Commissioner (2007 (1) CTC 705). Relying on the aforesaid judgments, the learned Judge held that the findings in those judgments can be applied to the facts of the present case, and has held that the decision taken by the government is legal and valid.
16. This Court is of the opinion that the election to a co-operative society stands on a completely different footing from the General Election. General Election is held on the basis of adult franchise, whereby any Indian citizen above the age of 18 is eligible to cast his/her vote provided his/her name is registered in the electoral roll. So far as a co-operative society is concerned it is entirely different. Registration of a co-operative society renders it under Section 39 of the said Act a body corporate with a perpetual succession and a common seal. Section 33 of the said Act mandates that the management of every registered co-operative society vests in a Board constituted in accordance with the provisions of the said Act and the Rules made thereunder. Sections 33 and 34 of the said Act read with Rules 46 and 52 of the Tamil Nadu Co-operative Societies Rules, 1988 (hereinafter referred to as the 'said Rules')provide for election of members of the Board. A perusal of those provisions will make it clear that in order to be a voter in an election of co-operative society one has to be a member of the soceity or a representative or delegate of some society. General members of public cannot be a voter nor can they participate in such election. Therefore, the election of such a body corporate is completely controlled under the statute which creates such a body. The writ Court however relied, in support of its finding, on the decision in Kuldip Nayar Vs. Union of India (supra).In that case the issues before the Supreme Court were the validity of amendments made in the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (Act 40 of 2003). In the context of considering those issues, the observations which have been made in paragraph 448, have been relied upon by the learned Judge of the writ Court. With great respect those observations cannot be relied upon bereft of its context.
17. Similarly, the decision in the case of Mohinder Singh Gill Vs. Chief Election Commissioner (supra) arose out of an order passed by the Chief Election Commission cancelling an election to a Parliamentary Constituency.
18. The decision in the case of Smt.Indira Nehru Gandhi Vs. Shri.Raj Narain, (supra) also dealt with the issues arising out of 39th Constitutional Amendment and issues which arose out of the decision of the Allahabad High Court in an election petition to a parliamentay constituency.
19. The judgment in the case of Surinder Kaur Vs. State of Punjab, (supra) dealt with the question of panchayat election and the facts of that case show that a candidate made a complaint before the authority that she was prevented from filing her nomination papers and the candidate, so prevented, came before the High Court and obtained a stay of the election. Defying the stay, election was concluded. In that case, no governmental order, which is in issue in the present case, was ever passed. Therefore, in the said case the Court dealt with an individual grievance in relation to a panchayat election.
20. The other judgment in Jayarajbhai Jayanthibhai Patel Vs. Anilbhai Jayanthibhai Patel, (supra)was in respect of general election to municipalities and the fact situation there is not comparable with the present case.
21. The Division Bench judgment of this Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. State Election Commissioner, (supra)was also in respect of general municipal election, and the Court's interference in such election in the context of the provisions contained in Article 243-ZA and the bar created under Article 243-ZC of the Constitution.
22. Therefore, the decisions upon which reliance was placed by the learned single Judge do not throw much light on the points at issue in this case. The basic question here is whether the State Government has power under Section 182 of the said Act to pass the impugned order of cancellation of all election to co-operative societies which have been held or are in progress.
23. On examination of the provisions of Section 182 of the said Act, it will appear that the said section has various components. The said Section enables the State Government to pass an order in public interest directing the Registrar to make an inquiry and to take appropriate proceedings under the Act in any case specified in the said order. This is the first limb of the section. The second limb is that the Registrar shall, on the basis of such order, report to the government the result of the inquiry made and the proceedings taken by him within a period of six months from the date of such order or within such further time as the government may permit. Then comes the third limb of the section by way of sub Section (2), which provides that if a direction is given under the sub Sectin (1) the government may, notwithstanding anything contained in the 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. But, there is a proviso which is the fourth limb and which enjoins that before passing any order under sub Section (2) the person likely to be affected by such order shall be given an opportunity of making his representation.
24. If we examine the impugned order, in the light of the aforesaid discussion, it will be clear that none of the above components of Section 182 has been followed in the impugned order. The order does not show that any direction was given upon the Registrar to make an inquiry. In the absence of any such direction no report could obviously be given by the Registrar to the Government. The action of the government in the impugned order, appears to have emanated on the basis of some 'unwanted incidents which occured during the course of election', and which are brought to the notice of the government. It is nowhere stated that it has been brought to the notice of the government by the Registrar on an inquiry which was directed to be made by the government. Though the impugned order refers to a letter of the Registrar dated 11.07.2007, the contents of the said letter was not disclosed at any stage either before the learned Judge or before us. So it cannot be urged, and it has not been urged, that the so called letter of the Registrar is an inquiry report on the basis of any governmental order. Therefore, the said letter cannot be treated to be a report of an inquiry by the Registrar under Section 182 of the said Act. Even if we assume that letter to be a report of the Registrar within the meaning of Section 182, before any action is taken the persons affected must be given an opportunity to make their representations. That provision has, obviously, not been followed. Therefore, by no stretch of argument the impugned order can be said to have been passed under Section 182 of the said Act.
25. The provisions of Section 182 vests the government with extraordinary powers. Therefore, when such provision comes up for interpretation, the Court must not give an unnecessarily wide interpretation to validate an order which the government had passed without any legal justification for the same and without any show of legal authority under the said Act. If the Court does that, the same would undermine the Rule of Law which the court is duty bound to uphold. Therefore, this Court is unable to accept the interpretation given by the learned Judge on Section 182 of the said Act to sustain the impugned order.
26. Even if it is assumed for arguments sake that in a given case where a large scale illegalities have taken place in the matter of holding election in co-operative societies, government can interfere in exercise of its power under Section 182 of the said Act, the government can do so only by following the mode and manner of exercise of said power under Section 182 of the said Act.
27. Admittedly, in the instant case, the impugned order passed by the government does not show that the mode and manner of exercise of power under Section 182 has been followed.
28. Apart from that from the impugned order it appears that the government wants to finalise the date of next election of the co-operative societies after consultation with the various political parties. It betrays an intention on the part of the government to politicise the entire co-operative movement in the State. This is wholly opposed to the concept of forming a co-operative society which is supposed to be an apolitical organisation. In fact, the premable to the said Act highlights the concept of co-operative movement as follows:
"Whereas it is expedient further to provide for an orderly development of the co-operative movement in accordance with co-operative principles such as open membership, democratic management, limited interest on capital, distribution of surplus based on patronage, provision for co-operative education and co-operation among co-operatives, for the promotion of thrift, self-help and mutual aid among persons with common socio-economic needs so as to bring about improvement in agriculture and industry, better methods of production, better business and better living and for that purpose to amend and consolidate the law relating to co-operative societies in the State of Tamil Nadu."
29. In view of these avowed objects of co-operative movements, the impugned order of cancellation of all election of co-operative societies held or in process and the decision to hold the next fresh election after consulting the leaders of all the political parties in the legislature is erroneous both legally and conceptually.
30. Under Section 90 of the said Act, there are provisions for raising election disputes. There are provisions for appeal under Section 152 and revision under Section 153 of the said Act, in respect of the decision which is given by the original forum dealing with such disputes.
31. In a matter relating to elections to a co-operative society, the Supreme Court has always insisted on following the mandate of the statute. In case relating to co-option in connection with such election, the Supreme Court held that where a statute requires to do certain things in a certain manner, it can be done in that manner alone unless a contrary indication is found in the statute (See Babaji Kondaji Garad Vs. Nasik Merchants Co-op. Bank Ltd., (1984) 2 SCC 50 at page 60 of the report).
32. A Constitution Bench of the Supreme Court in Daman Singh Vs. State of Punjab [(1985) 2 SCC 670] also held that co-operative societies are corporations as commonly understood. This Court has already noted that under Section 39 of the said Act all registered co-operative societies in the State are Corporations. In that context, it was observed by the Constitution Bench in Daman Singh (supra) that once a person becoms a member of a co-operative society his rights are to be governed by the statutory provisions (See paragraph 11 at page 681 of the report). Therefore, the election also should be fully governed by statutory provisions.
33. This principle in Daman Singh (supra) has been subsequently relied upon by the Supreme Court in the case of State of U.P. Vs. C.O.D. Chheoki Employees' Co-operative Society Ltd., (1997) 3 SCC 681.
34. The learned counsel for the respondents tried to support the order of the learned Judge of the writ Court by referring to Article 162 of the Constitution of India and urged that under Article 162, the State in exercise of its executive power has an independent authority to pass an order. It was urged that the executive power of the State shall extend to the matters with respect to which the legislature of the State has power to make laws. In support of the said contention, the learned counsel relied on a number of decisions, which I will presently consider.
35. Reliance was first placed on the judgment of the Constitution Bench of the Supreme Court in the case of Sant Ram Sharma Vs. State of Rajasthan (AIR 1967 SC 1910). In paragraph 7 at page 1914 of the report Justice V.Ramaswami, speaking for the Bench,laid down that even without framing statutory rules, the government can issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. The learned Judges held that administrative instructions cannot amend or supersede statutory rules, but if the rules are silent on any particular point government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
36. With respect those principles are not applicable in this case. Here in relation to election of co-operative society the said Act and the Rules constitute a complete code, and under the statutory provisions, remedy has been provided to a person who feels aggrieved by the holding of election to raise an election dispute.
37. In view of such express provision, the impugned order cannot be sustained on the principles of Article 162 of the Constitution.
38. The rationale behind Article 162 of the Constitution has been explained very succinctly by the another Constitution Bench of the Supreme Court in the case of Rai Sahib Ram Jawaya Kapur Vs. The State of Punjab (AIR 1955 SC 549). In paragraph 7 at page 554 of the report, Chief Justice B.K.Mukherjea pointd out that Article 73 of the Constitution which relates to the executive powers of the Union and Article 162 which relates to the executive powers of the State Government are analogous to Sections 8 and 49(2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States. The learned Chief Justice also held that under the Article 162 the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule and its powers also extend to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. The learned Chief Justice then pointed out that neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. The learned Chief Justice also pointed out that the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. This being the authoritative pronouncement of the Hon'ble Supreme Court, which is still hodling the field, it is difficult for this Court to accept the contention of the learned counsel for the respondents that Article 162 of the Constitution enables the State Government to pass executive orders which are contrary to the law which has already been made on the subject by the State. Such a construction would amount to rewriting Article 162 of the Constitution.
39. The scope of Article 162 of the Constitution again came up for consideration in the judgment of the Supreme Court in the case of Bishambhar Dayal Chandra Mohan and Others Vs. State of Uttar Pradesh and Others [(1982) 1 SCC 39] wherein the learned Judges following the ratio in Ram Jawaya Kapur (supra), held in paragraph 20 at page 56 of the report that "....if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf". In the instant case, as pointed out hereinabove, there is a valid law relating to election in a co-operative society and the right of an aggrieved person to challenge such election by raising election disputes. In view of such clear statutory provision, the Court cannot uphold the impuged order as having been made under Article 162 of the Constitution. It is clear that acting under Article 162 of the Constitution the government cannot exercise its executive power contrary to law. This has been very clearly pointed out in Bishambhar Dayal (supra) and which I quote -
"The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In State of M.P. Vs. Thakur Bharat Singh (AIR 1967 SC 1170), the Court repelled the contention that by virtue of Article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed:
Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by sme legislative authority.
The same principle was reiterated by the Court in Satwant Singh Sawhney Vs. Dr.Ramarathnam, Assistant Passport Officer, Government of India, New Delhi (AIR 1967 SC 1836) and Smt.Indira Nehru Gandhi Vs. Raj Narain (1975 Supp. SCC 1). (Para - 27 at Page - 59)
40. The learned counsel for the respondent relied on another decision in the case of State of Uttar Pradesh Vs. Dr.Anupam Gupta and Others (1993 Supp (1) SCC 594) in order to submit that by issuing administrative instructions the government can fill up the yawning gaps in the statutory rules. In support of such submission, the learned counsel relied on the observation made in paragraph 10 at page 602 of the report, wherein it was stated (paragraph 10 at page 603) that the executive instructions dated 20th February, 1990 are legal and valid and they would supplement the statutory rules. But, in the instant case, it cannot be said that the impugned order in any way supplements the rules made under the said Act. On the other hand, the impugned order, has been passed contrary to the statutory scheme under the said Act and the Rules, and is totally opposed to the same. Administrative instructions which are contrary to the rules cannot be passed. This is opposed to the ratio of the Constitution Bench judgment in Sant Ram Sharma Vs. State of Rajasthan (supra)which held that administrative instructions can fill up the gaps and supplement the rules, but it cannot be inconsistent with the rules.
41. The learned counsel for the respondents also relied on the decision of the Supreme Court in the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others (2008) 4 SCC 171. But, in that judgment the learned Judges in paragraph 14 reiterated the ratio in Sant Ram Sharma Vs. State of Rajasthan (supra). We have already discussed the ratio in Sant Ram's case (supra) and held that it does not at all help the case of the government in the instant case.
42. Reliance was also placed on the judgment of the Supreme Court in the case of State of Sikkim Vs. Dorjee Tshering Bhutia and Others [(1991) 4 SCC 243], wherein the Supreme Court made it clear that the executive power of the State cannot be exercised contrary to the operative statutory provisions. Statutory provisions will always have the effect of ousting excecutive power of the State from the same field. In that case, the Public Service Commission, which was the authority to implement the rules was not in existence. Since it was not in existence, there was no bar on the part of the State Government to act in exercise of its executive power. But, here the facts are not comparable to the facts in the above case. Here there are specific statutory provisions which are governing the field and which can be implemented and enforced. Therefore, the provision of Section 162 of the Constitution cannot be pressed into service.
43. The contents of power under Article 162 has been very precisely explained by the Supreme Court in the case of The State of Andhra Pradesh and another Vs. Lavu Narendra Nath (AIR 1971 SC 2560). At page 2566 of the report the learned Judges have said ...the Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the government order in this case in no way affected the rights of candidates with regard to eligibility for admission... (Para.15).
44. The aforesaid formulation has also been followed by the Supreme Court subsequently in a three Judge Bench decision in the case of State of M.P. Vs. Kumari Nivedita Jain (AIR 1981 SC 2045) in paragraph 23 at page 2057 by holding that under Article 162 of the Constitution the executive power of a State extends to the mattter with regard to which the legislature of a State has power to make laws. In that case, it was found that there was no law covering the field of selection of candidates for admission to medical colleges, and in such a situation it was held that the State Government would, undoubtedly, be competent to pass executive orders in that regard. But, in the instant case the elections of co-operative societies is covered by valid law and there is no gap as has been contended by the learned counsel for the respondents, and the Supreme Court has always held, in the cases discussed above, that matters relating to elections to co-operative societies should follow the statutory prescriptions. Therefore, the impugned order cannot be upheld by taking shelter behind Article 162 of the Constitution.
45. In A.Umarani v. Registrar, Co-operative Societies and others reported in 2004 (7) SCC 112, a three-Judge Bench of the Supreme Court examined the scope of Section 182 of the said Act along with the provisions of Article 162 of the Constitution. In that case, the issue was whether the Government can regularize the irregular appointment made otherwise than through employment exchange in exercise of power under Section 182 of the Said Act read with Article 162 of the Constitution. The learned Judges set out Section 182 of the said Act in paragraph-22 and in the following paragraph i.e., paragraph-23 at page 123 of the report, while dealing with the scope of Section 182 of the said Act read with Article 162 of the Constitution, opined as under: -
A bare perusal of the aforementioned provision would clearly go to show that the impugned government order could not have been issued by the State in terms thereof as the same can be taken recourse to only for the purposes mentioned therein and not for any other. It is not a case where the Government directed the Registrar to make an enquiry against a person in the public interest. Article 162 of the Constitution of India provides for extension of executive power to the matters with respect of which the legislature of the State has power to make laws. Article 162 of the Constitution by no stretch of imagination is attracted as the source of the power of the State to pass an appropriate order must be traced to the provisions of the Act itself. If the State had no power to issue the said G.O.Ms.No.86 dated 12.3.2001, the same must be held to be a nullity. In paragraph-45 also (at page 126 of the report), the learned Judges observed as follows: -
No regularization is, thus, permissible in exercise of the statutory powers conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.
46. For the reasons discussed above, this Court cannot uphold the judgment of the writ Court and the same is set aside. The impugned order passed by the State Government dated 11.07.2007 and the consequential order of the Registrar, Co-operative Societies, pertaining to these appeals, if any, are also set aside. The respondents are to take steps on the election results on 11.7.2007 in respect of these two societies and proceed in accordance with law and complete the process within two months from date. Both the appeals are allowed.
47.We make it clear that this judgment would only cover the elections in respect of these two writ appeals and will not affect any other elections. The appeals are allowed to the extent indicated above. No order as to costs.
(A.K.G., C.J.)(F.M.I.K., J.)
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Index: yes / No Internet: Yes / No sm THE HON'BLE THE CHIEF JUSTICE and F.M.IBRAHIM KALIFULLA, J.
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