Madras High Court
S.R. Vetrivel vs The Election Officer, O/O. The ... on 3 September, 1998
Equivalent citations: 1998(3)CTC225, 1999 A I H C 1742, (1999) WRITLR 301
ORDER
1. In W.P. No.10054 of 1998, petitioner seeks issuance of writ of certiorarified mandamus to call for the records on the file of 1st respondent in his proceedings No.Nil and dated 11.7.1998 and quash the same as illegal, incompetent and without jurisdiction, and to further direct respondents 1 to 3 to conduct the election to the 4th respondent-Society in accordance with law.
2. By the impugned Order, respondents 1 to 3 approved the voters list of the 4th respondent Co-operative Wholesale Stores. Petitioner, who is one of the Members of the 4th respondent- Society has come to this Court with a grievance that the voters list prepared is illegal and against the provisions of law. According to him, the Society consists of 1211 members. It was decided to hold the elections for the Society on 19.7.1998 at the premises of the Society. Notification of election was published in 'Daily Thanthi' on 3.7.1998. Anticipating the election, petitioner asked for Voters list by a request made on 19.6.1998. When such a request was made, third respondent informed the petitioner in writing that there are about 1216 members which include time members having become members on 19.6.1998. According to the petitioner, the voters as on that date alone are eligible to cast their vote since polling was to take place on 19.7.1998 i.e., 30 days before the date of polling. It is further grievance that at the instance of a Minister of the State Government, respondents have admitted more than one-third of voters whose names are also included, and they were also declared as eligible voters. Even though the petitioner filed detailed objections to the enrolment of new members, the same was rejected by the impugned Order. though, it was declared that all voters enrolled till 19.6.1998 are eligible to vote and their enrolment has been ratified by the Registrar. It is also found that the new enrolled members have also paid their subscription and necessary amount for getting themselves enrolled along with the application. It is order of enrolment that is challenged in this Writ Petition.
3. An additional affidavit was also filed wherein petitioner alleges that the procedure adopted by the Joint Registrar who notified the change of venue of election is invalid and without jurisdiction, and it is contended that the same was initiated at the instance of a Minister. It is his case that the Joint Registrar by himself has not applied his mind and he was only a tool in the hands of the Minister. The voters did not know about the change of venue which was 40 or 50 kms. away from the earlier venue and by the time they came to know about the change of venue and went to the polling station, it was found that most of the votes had been polled by impersonation. It is said that the procedure adopted by the Joint Registrar was one without jurisdiction and against law. Hence the entire election is sought to be declared as invalid.
4. In W.P. 11030 of 1998, the prayer is for a writ of declaration that the election of members to the Board of Dharmapuri District Consumer Co-operative Wholesale Stores Limited held on 19.7.1998 pursuant to the Notification published in Tamil Daily 'Dinakaran' dated 18.7.1998 in Ref.No. Dharmapuri/Co-op./108/98-99 dated 17.7.1998 by 1st respondent as illegal and invalid insofar as the petitioner is concerned.
5. In the affidavit filed in support of W.P.11030 of 1998, it is said that pursuant to Election Notification on 3.7.1998, places of voting were declared, namely, Vanniyakula Kshatriya Marriage Hall and Krubanandha Variyar Aided High School, Kumarasamypettai, Dharmapuri-3. But, 24 hours before the voting, the venue was changed, through a notification issued in 'Dhinakaran' which is a Daily organ of the D.M.K. Even though the same was published in the daily of 18.7.1998, the page in which the notification appeared was dated as 17.7.1998, so as to mislead the public. Even the details of the notification were incorrect and, therefore, invalid. It is contended that once a venue for election voting was provided, it shall not be changed thereafter. The second notification issued 24 hours before the polling is, therefore, invalid and without jurisdiction. She wants the polling held on 19.7.1998 held at a place other than the place mentioned in the earlier notification to be declared as invalid.
6. A counter affidavit has been filed by the respondents wherein they admit that members were enrolled on 17.6.1998, 18.6.1998 and 19.6.1998. According to them, the enrolment is valid since the polling was only on 19.7.1998. The Enrolment upto 19.6.1998 is valid and the Notification by the Registrar was also proper. It is further said that even though resolution was passed on 20.7.1998 admitting them as members, the resolution takes effect from the date of application, according to Section 21(2) of the Tamil Nadu Co-operative Societies Act, 1983. The allegation against the Honourable Minister is denied. Respondents prayed for dismissal of the writ petitions.
7. It may be stated that in regard to the additional affidavit filed by petitioner in W.P.10054 of 1998, no counter was filed, and in the other writ petition also, there is no counter affidavit. But the learned Additional Government Pleader justified the action of the Joint Registrar in changing the venue, and he argued the matter on instructions.
8. I will first consider W.P.No.11030 of 1998 wherein the only allegation is regarding the change of venue on the previous day of the polling.
9. Election procedure in respect of a co-operative society is provided under the Tamil Nadu Co-operative Societies Rules. Chapter V of the Rules provides for the same. Rule 52 provides for election of members to the Board. Sub-rule (5) of Rule 52 empowers the Registrar to fix the date of election and draw up a programme for the conduct of election to the society and send a copy of the programme so drawn to the society and the election officer concerned atleast 21 days prior to the date of poll. The Programme shall contain various matters provided in clause (b) of sub-rule (5). Sub-rule (6) of Rule 52 empowers the registrar or the Election Officer to send a copy of the election notice to the members who on the date thirty days prior to the date of poll, were the members of the society, and such notice shall contain (i) the number of vacancies to be filled up by election; (ii) constituency, if any, from which the members are to be elected; (iii) the date place and time fixed for filing, scrutiny, withdrawal and publication of valid list of nominations; (iv) the date, place and time specified for polling; and (v) the time, date and place in which the counting of votes shall take place. (emphasis.) Clause (c) of sub-rule (6) of Rule 52 further provides that election notice shall also be published (i) in the notice board at the office of the society; and (ii) in cases where the elections are held in a place outside the headquarters of the society (A) in the notice board of the branch of the society in that place; or (B) in such other place as the election, officer may specify in this behalf. Sub-rule (7)(a) of Rule 52 provides that the Society shall, upon receipt of the communication of the notice of election under sub-rule (5) prepare a list of members who on the date thirty days prior to the date of poll, were qualified in accordance with the provisions of the Act and, these rules to vote at the election (hereinafter called voters' list.) If different constituencies are provided in theses rules or by-- laws, such voters' list shall be prepared constituency wise. The other relevant portion of Rule 52 is sub rule (21), which reads thus:-
"Every election under this rule shall be held at the premises where the office of the society is located or in any other public place at the head quarters of the society, to which all the voters shall have access:
Provided that where a member of the board is to be elected by the members of the society within a specified constituency outside the headquarters of the society, the election may be held at any public place in such constituency to which all the voters shall have access;
Provided further that where the Registrar or the Election Officer considers necessary, polling may be held in different public places within the area of operation of the society to which all the voters have access;
Provided also that where polling held in different public places, the members allotted to each place of polling shall be specified in the notice of the election and the members so allotted shall case their votes only at the respective place of polling so specified." (Itlaics supplied)
10. I have already extracted the relevant provision of the Rule which deals with the election notification. From the various Rules which I have extracted herein above, it is clear that the place of voting is one of the most important matters which has to be notified in the notice of election. It is part of the Election Notification. The Rule as such does not provide for shifting of place once it has been notified. Under normal circumstances, the election has to be held at the premises where the office of the Society is located. But the Registrar or the Election Officer is entitled to hold the election, i.e., polling in a different place from the headquarters of the Society, but within the area of operation of the Society and to which all the Voters have access. But the change of place other than the headquarters or other than the public office at the headquarters of the society must also be specified in the notice of election. The Registrar is empowered to hold the election at a different place but within the operation of the Society. But once notified that polling will take place in a particular place, thereafter it cannot be changed. Sub-rule (18) of Rule 52 enables the election officer to stop the election whenever 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. Once the election is stopped, the same shall be immediately announced and reported to the Registrar by the Election Officer. The Registrar may thereafter proceed with the election either at the stage from which it was stopped or it may be resumed at an earlier stage, which has to be decided by the Registrar himself.
Learned counsel for petitioner submitted that if this was the reason, sufficient notice ought to have been given to the members. Moreover, whether there was such a request, and what is the public interest by shifting the venue, are also not satisfied. Learned counsel further submitted that the voting place was shifted to such a place which was 40 to 50 kms. away from the original place, to which the public had no access, and that was a place where there was concentration of ruling party votes.
12. I find force in the contention of learned counsel for petitioner. In this connection, it may also be noted that under the presentation of People Act, and also under the various provisions of the election procedure for the Local Authorities, election can be set aside only if it has materially affected the result of the election, and if the election has been conducted against any provision of law. But there is no corresponding provision under the Co-operative Societies Act. So, naturally a shifting of place by itself is a cause of action for the petitioner to have the election declared as invalid. Under the Co-operative Societies Act, Election Notification is a compact one and no provision is made for issuing of another notification changing the venue of polling and subsequent notification is against the provisions of law, and the same will be one without jurisdiction. If the polling station is proved to have been shifted after publication of the list of polling centers from one place to another, that amounts to non-compliance of the provisions of the Co-operative Societies Act, and Rule 52 stands violated. Statutory violation alone will be sufficient in so far as election to co-operative Societies are concerned. Unlike the Representation of People Act and election to local authorities, there is no corresponding provision in the Co-operative Societies Act that even if statutory provision is violated, the defeated candidate should prove that it has materially affected the results of the election. Notifying another polling booth which was not included in the earlier notification itself will be sufficient to declare the election void. Rule 52 of the Co-operative Societies Rules governs the case. I do not find that there is any power on the part of the Returning Officer or the Registrar for shifting the venue of polling. He is the Statutory Authority and he notified the election on the basis of Rules. One of the most essential ingredients in the Election Notification is the place or places where the voting shall take place. The time, date and place of polling shall be notified in the notice of election. It should also be understood from a reading of the Rules that under normal circumstances, polling shall take place only at the headquarters of the Society or in a public place where the headquarters of the Society is situate. Choosing a different place other than the headquarters of the Society is an exception. Even in such cases, the Registrar on the Election Officer is bound to specify the place in the notice of election.
13. If that is the statutory provision, after having notified that the polling shall take place in a particular public place, I do not think that the Registrar or the Election Officer was justified in notifying a different place for polling. The same is one without jurisdiction.
14. As rightly contended by learned counsel for petitioners, the Notification is also intended to mislead the voters. As per election procedure, the Notification must state correct and true statement, and when it is said that the election is to be held for K.K 340, Dharmapuri District Consumer Wholesale Co-operative Society, it shows that the action of the Registrar was not above board. The way in which the notification has been given in the daily also creates an impression in the mind of everyone that the same was also not bona fide. Even though the Notification is dated 17.7.1998, that was only in one paper, i.e., Dhinakaran even though the original notification was in some other daily. The Joint Registrar has signed the Notification on 17.7.1998 and two election notifications for co- operative societies are notified on that date. On that side of the paper where the notification appears, the Daily is also dated 17.7.1998 whereas the other side of the paper, the daily is dated 18.7.1998. Along with this, there is an allegation by petitioner in W.P.No.10054 of 1998 that even the voters list was changed at the instance of a sitting Minister. The very same Election Officer-Joint Registrar of Co-operative Societies, by name, Rathinam seems to have identified the voters on the basis of party affiliations. Petitioner therein has produced before me a photo copy of the voters list signed by the very same Officer. He has distributed the total number of voters taking into consideration party affiliations. Learned counsel for petitioner submitted that it was thereafter additional voters have been enrolled on 17.6.98, 18.6.98 and 19.6.98, and from these materials, it is clear that the Officer has also played his part whether at his own instance or at the instance of somebody else, in seeing that the election to the co-operative society is not conducted in accordance with law. A Statutory Authority with whom a responsibility is entrusted, has identified himself with some other person and for some other purpose and he has achieved the object by taking proceedings which is not in accordance with law.
15. Learned Additional Government Pleader submitted that the Registrar or the Election Officer is entitled to change the venue taking into consideration the request of the voters and public interest. But the learned Additional Government Pleader was at pains to substantiate the powers of the Election Officer to alter the Notification already issued. He was also not in a position to satisfy the conscience of the Court why the Notification was issued only in a particular Daily. He was also not in a position to explain why the very same Notification was not published in the other paper in which the original Notification was made. He was also not in a position to explain why there is a change in the number of the Society. Even now the Registrar owns the Notification as one given by him. If that be so, it is clear that he himself wanted to mislead the voters by giving a different number. In what way the voters were informed, and what is the nature of the request made by the members of the public are also not explained by the learned Additional Government Pleader.
16. Under the above circumstances, I feel that the procedure adopted by the Registrar in shifting the place of polling is against law. Since he is not authorised to shift polling, and since the same was also not done with notice to the members and the publication was also made in such a way that it misled the voters, the election held for K.K. 348, Dharmapuri District Consumer Co-operative Wholesale Stores Limited has to be declared void, and I do so.
17. In W.P.No.10054 of 1998, in the additional affidavit, petitioner has taken the very same contentions, and he challenges the election and seeks a declaration that it is invalid and without jurisdiction. The contentions in the additional affidavit are only to be upheld. In the main affidavit, petitioner challenges the legality of the Order of the joint registrar in approving the voters list. Election was notified on 3.7.1998 in Daily Thanthi. The main reason for filing the writ petition is that on 17.6.1998, 18.6.1998 and 19.6.1998, large number of new voters were enrolled, and the same is one without jurisdiction.
18. Learned counsel for petitioner submitted that even though certain applications were filed, in fact, in the Cashier Chitta maintained by the Stores, the amounts alleged to have been remitted alongwith the application are not credited in the account on the respective dated of the applications. If in fact amounts had been paid for Enrolment of new members, on 17.6.1998, 18.6.1998, and 19.6.1998, in the ledger account these amounts also must find a place. Learned counsel for petitioner submitted that not even one rupees has been given credited to for these enrolments, and even on these dates, only the names of 60 persons are seen. As to how more than 500 voters were enrolled absolutely no evidence is forthcoming, is the allegation of the petitioner. Learned counsel for petitioner also brought to my notice the Cashier Chitta from which it could be seen that about 60 persons' names are seen in the Register. Materials are not placed before Court to show how they were enrolled. No material is forthcoming to show that cash was in fact paid on the date of enrolement. Taken along with this, the statement made in paragraph 7 of the counter also creates a suspicion. Relevant portion of paragraph 7 reads thus:-
"2..... The amounts which were received upto 19.6.98, we remitted into the Bank on 19.6.98 itself. Those amounts which were received upto 5.30 P.M. on 19.6.98 within the office working hours of the society were remitted in the Bank on the next day on 20.6.98 since Banking hours was over on 19.6.98 by 2-00 P.M."
To support the contention in paragraph 7, respondent is bound to produce the document before Court. We must understand that the deponent is none other than the person against whom allegations have been made in both the writ petitions. He personally knows as to the number of members enrolled on each date and the amount paid by each one of them. Except for averments in paragraph 7, proof is wanting to substantiate the same. I do not want to give much credence to the statement made in paragraph 7 of the counter especially taking into consideration the conduct of the deponent for the reasons which I have already stated in the other writ petition. Resolution has been passed on 20.6.1998, admitting the members. Learned Additional Government Pleader is justified in saying that the Resolution was passed admitting members in accordance with the date of application. But the question is whether the application was made in accordance with law and followed by prescribed fees, and whether the voters newly enrolled are eligible to become members, is to be considered. I am well aware that in election cases, the burden is on the petitioner to prove that a particular voter is not entitled to have his name entered in the voters list. But when documents which could have been produced by respondents are not produced before Court, an adverse inference has to be drawn against him. The materials produced by petitioner show that no amount was paid alongwith the applications on those dates.
19. From the list produced by petitioner, it could be further seen that in the headquarters, more than 60 admissions have been made. But in paragraph 6 of the counter, it is stated that on 17.6.1998, there was no admission of new members in the headquarters. On 18.6.1998, one member was admitted in the headquarters and on 19.6.1998 only five members were admitted. The cashier chitta produced by the petitioner shows that more than 60 members have been admitted in the headquarters. All these taken together, show that the case put forward by the petitioner is probable. In election cases, unless it is a case of corrupt practice, decision has to be rendered on the proponderance of probabilities. I find that the petitioner has succeeded in substantiating the same.
20. A final argument was put forward by learned Additional Government Pleader that once election machinery has already been set in motion, the remedy of the petitioner is only to file an Election Dispute under Section 90 of the Act. It is true that it is the normal Rule. But in a case where there is no election at all, I do not think such an argument could be accepted. When the very venue has been changed without any notice to any one, nobody can say that there was an election in law. I also find that this is a case where the Authorities under the Co-operative Societies Act has also played an active role in seeing that the election is not conducted in accordance with law.
21. In the result, both the writ petition are allowed. The election held on 19.7.1998 for the society is declared as null and void. I direct respondents 1 to 3 to conduct election to 4th respondent-Society in accordance with law. No order as to costs in both the writ petitions; Connected W.M.Ps. are closed.