Madras High Court
D. Ponnusamy vs The Deputy Registrar Of Co-Operative ... on 13 November, 1990
Equivalent citations: (1991)366MLJ1
ORDER Bakthavatsalam, J.
1. The petitioner is a member of the Mangalur Primary Co-operative Bank and one of the candidates for the election to the posts of President and Vice-President, which was due to be held on 24.10.1990. There are 11 directors in the Board, of which three have been nominated. The 3rd respondent, it alleged who has been elected to the Board of Directors, is an illiterate person, not knowing Tamil or English to write or to read. She is a housewife and cannot read or write either Tamil or English and therefore she is not eligible to hold the post of a Director in the Bank. Inspite of this, the 3rd respondent being a Director has been permitted to vote in the election for the posts of President and Vice-President. The society would be put to great hardship and loss, if the 3rd respondent is allowed to vote as a Director, in the election to be held for electing President and Vice-President, when the 3rd respondent is disqualified to hold the post of a Director by virtue of the provisions of the Act. Hence the present writ petition has been filed for the issue of a writ of mandamus directing the respondents to forbear from holding the elections for the posts of President and Vice-President to the Mangalur Primary Co-operative Bank pursuant to the notification issued on 16.10.1990.
2. The 3rd respondent has filed a counter stating that she has been validly elected as a Director in the election and the same has not been challenged by raising a dispute under Section 90 of the Co-operative Societies Act and so long her election has not been challenged, no one can prevent her from exercising her lawful obligation. The petitioner is aggrieved against the election of the 3rd respondent, the only remedy open to him is to file a petition under Section 90 of the Act by raising a dispute. The 3rd respondent could read and understand Tamil and could also sign though not fluent in Tamil. The writ petition is not maintainable and the same is liable to be dismissed.
3. Mr. R.S. Venkatachari, learned Counsel for the petitioner, relying on Section 34(1) of the Tamil Nadu Co-operative Societies Act, 1983, which reads as follows:
34(1) No person shall be eligible for being elected or nominated as a member of a board of any registered society if he:
(a) is such near relation, as may be prescribed of a paid employee of such registered society; or (b)(i) is in default to such registered society or any other registered society in respect of any loan or advance taken by him or dues under credit purchases made by him for a period exceeding three months, or (ii) is a representative of a registered society which is in default to the financing bank or to any other registered Society in respect of any sum due by the registered society for a continuous period of one year:
Provided that the disqualification in Sub-clause (ii) shall operate only when the default of the registered society exceeds thirty per cent of the sum due by that registered society; or.
(iii) is a person against whom any decree decision, award, order of certificate referred to in Section 143 has been obtained: or a representative of the registered society against which such decree, decision, award, order or certificate has been obtained: or
(iv) is a person against whom proceeding have been initiated under Sections 118, 119, 120 or 144 for the recovery of any debt: or
(c) .. .. ..
(d) .. .. .. (e) .. .. .. (f) .. .. .. (g) .. .. .. (h) .. .. ..
(i) does not know to read and write Tamil or English or such other language as the Government may notify in this behalf in relation to any particular area.
submits that when the 3rd respondent is not able to read or write Tamil or English, she is disqualified to be a member of the Board, she should not take part in the election proceedings to the posts of President and Vice-President. It is further submitted by the learned Counsel for the petitioner that when facts are admitted it is not necessary to resort to Section 90 of the Co-operative Societies Act, 1983. In support of his submissions, the learned Counsel for the petitioner relies upon : O.M. Noomdeen v. District Collector, Anna District 1986 Writ L.R. 139,Jesudasan v. Selvaraj (1989) 2 M.L.J. 22 and Nagalingam v. Sivagnanam (1969) 2 M.L.J. 246 and contends that an alternative remedy is not a bar to invoke the jurisdiction under Article 226 of the Constitution, who facts are admitted. It is further contended by the learned Counsel for the petitioner that he is not trying to stop the election process as alleged and he is interested only is preventing the 3rd respondent from taking part in the election to the posts of President and Vice-President. It is also further contended that when facts are admitted this Court can declare the election of the 3rd respondent as void.
4. Mr. C. Selvaraj, learned Counsel for the 3rd respondent relying on S.T. Muthuswami v. K. Natarajan A.I.R 1988 S.C. 616, contends that it is not open to the petitioner to challenge the election of the 3rd respondent by way of this writ petition and he can very well challenge the same under Section 90 of the Co-operative Societies Act. Further it is contended on behalf of the 3rd respondent that the question whether the 3rd respondent could read and writ Tamil or English is a matter which could be decided only on evidence and the same cannot be decided in writ jurisdiction.
5. After considering the arguments of the respective counsel, I am of the view that the writ of mandamus cannot be issued as asked for because as rightly contended by the learned Counsel for the 3rd respondent that so long as the 3rd respondent continues to be a member of the Board, this Court cannot issue a writ of mandamus preventing the 3rd respondent from taking part in the election to the office of the President and Vice-President. If at all the petitioner is interested in setting aside the election of the 3rd respondent, it is open to him to take appropriate remedy under Section 90 of the Co-operative Societies Act. This is what has been laid down by the Supreme Court in S.T. Muthuswami v. K. Natarajan . Further Secton 34(3) of the Tamil Nadu Co-operative Societies Act, 1983 provides a remedy wherein the Registrar of the Co-operative Societies has been given power to decide the question of disqualification of a member of the society. The Board of the Society has got power to decide about the disqualification of a member on an application made by any member. As such it is open to the petitioner to apply to the Board to decide about the disqualification of the 3rd respondent. This is another way of obtaining the relief to set aside the election of the 3rd respondent on the ground of illegality alleged by the petitioner. It is true that the existence of alternative remedy is not a bar, but I am of the view that in such matters, I do not think that this Court can enquire the same under Article 226 of the Constitution. In similar situation the Supreme Court in Nanhoo Mal v. Hira Mal , has held that:
The election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. The election itself can be questioned only on one or more of the three grounds mentioned in Sub-section (2) of Section 43-B. The only ground in the present case on the basis of which the election of the President was questioned in writ jurisdiction of High Court was that there was a non-compliance with the provisions of Rule 6 made under the Act. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge." In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.
The above ratio has also been followed in S.T. Muthuswami v. K. Natarajan . Though it was a case where an election to the office of the President of a Municipal Board was challenged, in that case, the Supreme Court has clearly held that the election to the office of the President could be challenged only by way of an election petition. Here the question raised by the learned Counsel for the petitioner is a much narrower one. The ultimate prayer of the petitioner is to prevent the 3rd respondent from taking further part in the election to the office of the President and Vice-President. In my considered view, it cannot be done. The 3rd respondent may or may not take part in the election and she may or may not vote in the election to be held to the office of the President and Vice-President. Therefore, this court, on the basis of mere assumption, cannot issue a writ of mandamus as asked for by the petitioner.
6. In view of the above reasons, I am unable to accede the request of the petitioner. Consequently the writ petition fails and is dismissed. No costs.
7. Mr. R.S. Venkatachari, learned Counsel for the petitioner further submits that in view of the pendency of the writ petition, the delay if any in resorting to the remedy available under the Act, may be condoned. If there is any delay in view of the pendency of the writ petition, in presenting the election petition, the same may condoned; if asked for.