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Judgment
K.K. Sasidharan, J.—These three Writ Petitions are at the instance of the members of Southern Railway Employees'' Co-operative Credit Society Limited, Trichy and the challenge is to the election notification issued by the Returning Officer announcing the election schedule to elect the Directors and Representative General Body of the Society without adherence to the time schedule prescribed under the Multi-State Co-operative Societies Act and the Bye-Laws of the Society.
CASE OF THE PETITIONERS:
According to the petitioners, the Southern Railway Employees'' Co-operative Credit Society Limited was registered under the provisions of the Multi-State Co-operative Societies Act, 2002. The election to the Board of Management of the Society shall be held once in five years. The last election was held in January, 2008. The Bye-Laws of the Society provides for conducting the election among the members of six regions. The Directors and the Representative General Body members shall constitute the general body. Since the Palaghat Division was divided into two, there are at present seven regions.
The Returning Officer issued a notification in New Indian Express newspaper on 23 January, 2013 calling for nominations for election as Directors and Representative General Body members of the Society, indicating that the nominations should be submitted on or before 05.00 p.m., on 29 January, 2013. As per the notification, the scrutiny of the nominations will be taken up on 30 January, 2013 and the final list of valid nominations will be published on 31 January, 2013. The voting will commence from 14 February, 2013.
According to the petitioners, while issuing the notification, the Returning Officer violated the mandatory provisions of the Multi-State Co-operative Societies Act, 2002 and the Bye-Laws of the Society. Even though Bye-Law No. 24(9) contemplates 15 days time between the date of notification and the last date of receipt of nominations, only lesser time was given. No representation was given to Salem region. The Returning Officer failed to give wide publicity. The notification was published only in English newspaper, which has no wide publication in some of the places. The election notices were not issued to all the members and in respect of the petitioners in W.P. (MD)Nos. 2343 and 2344 of 2013, notices were not issued at all. The petitioners, therefore, wanted this Court to issue a Writ in the nature of a Writ of Declaration, declaring the election notification as illegal and in violation of the provisions of the Multi-State Co-operative Societies Act, 2002.
The Managing Director, Southern Railway Employees'' Co-operative Credit Society Limited filed a detailed counter-affidavit in W.P. (MD)No. 1817 of 2013 disputing the claim made by the petitioner in the said Writ Petition. According to the third respondent, the Society appointed a Returning Officer. The Returning Officer prepared the list of eligible members and thereafter, issued the election notification. The notification was issued in accordance with the Bye-Laws and the provisions of the Multi-State Co-operative Societies Act, 2002. The Election Officer received large number of nominations and finally, after conducting scrutiny, list of valid nominations was published at 06.00 p.m., on 30 January, 2013. It was only at that point of time, the petitioner in W.P. (MD)No. 1817 of 2013 moved the Writ Petition and obtained an interim stay of further proceedings. The third respondent further contended that a similar Writ Petition was moved before the High Court of Delhi in Civil Writ Petition No. 485 of 2013, and the Division Bench was pleased to appoint Hon''ble Mr. Justice K. Govindarajan, former Judge of this Court, as an observer to ensure peaceful conduct of election. The third respondent, in his counter-affidavit, further stated that the notification was published in New Indian Express newspaper in the States of Tamil Nadu, Pondicherry, Kerala and Kamataka. The Returning Officer also issued individual notices to the members and as such, the provisions of the Bye-Laws and Act were followed scrupulously.
SUMMARY OF SUBMISSIONS:
The learned Senior Counsel for the petitioner in W.P. (MD)No. 1817 of 2013 made the following contentions:
(i) Clause 24(9) of the Bye-Laws framed by the Society mandates that election notice shall be published at least fifteen days before the prescribed date for submission of nomination. The impugned notification was published only on 23 January, 2013 fixing 29 January, 2013 as the last date of receipt of nomination. Therefore, the notification violated the mandatory provisions of the Bye-Laws.
(ii) Clause 24(11) provides that the election of Directors and Representatives will be held simultaneously one region after another. However, the notification issued by the Election Officer shows that election would be held simultaneously in all the regions. This would violate Clause 24(11) of the Bye-Laws of the Society.
(iii) There were only six regions earlier. Subsequently, Palaghat Division was bifurcated and a new Division by name Salem Division was created. However, while issuing the election notification, the Election Officer has confined the election to six regions only and thereby, the members of Salem Division were denied of an opportunity to take part in the election process.
(iv) The ballot paper would contain the serial number and the same would be incorporated in the counterfoil also. This would affect the sanctity of the election process, as the Election Officer and others associated with the election would be in a position to identify the voters.
(v) There is no requirement in the notification that the elector must possess an identity card with photo. What is required is only a Share Certificate attested by the Railway Official. This would lead to impersonation and bogus voting.
(vi) The notification issued by the Election Officer does not contain any indication that seats are reserved for Scheduled Castes and Scheduled Tribes and as such, it would be in violation of the provisions of the Constitution.
The learned Senior Counsel for the third respondent would contend,
(i) Section 45 of the Multi-State Co-operative Societies Act, 2002 mandates that the conduct of elections to the Board of a Multi State Co-operative Society shall be the responsibility of the existing board. It was only on account of the said responsibility, the third respondent took a decision sufficiently in advance to conduct election to the Society.
(ii) The Returning Officer was required to send intimation to the members either by local delivery or under postal certificate or by publication. The Returning Officer appointed by the Society forwarded the election notification to the members by post besides publication in newspaper.
(iii) Rule 2(c) of the Schedule appended to the Multi-State Co-operative Societies Rules, 2002 provides that the election programme shall be published in the local newspaper at least fifteen days prior to the date of election. The notification in question was issued sufficiently earlier and as such, it was in strict compliance of the statutory provisions.
(iv) There was no decision taken by the Returning Officer to print the serial number in the nomination form and in the counterfoil to identify the voter and as such, the grievance regarding the sanctity of election process has no merit.
(v) Even though the Constitutional amendment was made on 12 January, 2012, it came into force only on 15 February, 2012 giving the Central and State Governments one year time to make necessary amendments. The election process in the subject case commenced even before the expiry of the stipulated period. Therefore, the Returning Officer has not violated the constitutional provisions.
(vi) The Delhi High Court has already passed an order appointing a former Judge of this Court as Election Observer. Therefore, it cannot be said that the members of the existing Managing Committee and their men would interfere in the election process.
(vii) The petitioner in W.P. (MD)No. 1817 of 2013 submitted his nomination, pursuant to the election notification. However, he has not disclosed the said fact in the affidavit filed in support of the Writ Petition. Therefore, the Writ Petition filed by him is liable to be dismissed on the sole ground of suppression of material particulars.
The learned counsels appearing for the petitioners in W.P. (MD)Nos. 2343 and 2344 of 2013 reiterated the submissions made by the learned Senior Counsel for the petitioner in W.P. (MD)No. 1817 of 2013.
STATUTORY FRAMEWORK:
The third respondent is a Society governed by the provisions of the Multi-State Co-operative Societies Act, 2002. The term of the present Board of Management would expire by 26 February, 2013.
Section 45 of the Multi-State Co-operative Societies Act, 2002 provides for election to the Board of a Multi State Co-operative Society. The responsibility is given to the existing Board to conduct the election. Sub-Section (3) of Section 45 provides that the election of the members shall be held in the general body meeting of the members of the Multi-State Co-operative Society. The Schedule appended to the Multi-State Co-operative Societies Rules, 2002 contains detailed provisions with regard to the conduct of election to the Board of Multi State Co-operative Societies. Sub-Clause (e) of Clause 1 of the Schedule provides that the election shall be held at a general meeting of the Society of which not less than fourteen days notice shall be given to the members. The proviso to the said provision indicates that in case the membership of a Multi-State Co-operative Society exceeds one thousand, it is open to the Returning Officer to arrange for polling booths in the area of operation of such a Multi-State Co-operative Society, as deemed appropriate. Sub-Clause (c) of Clause 2 of the Schedule mandates that the Returning Officer shall prepare an election programme specifying the date and time of receipt of nominations, scrutiny of nominations, withdrawal of nominations, the poll, if required and declaration of results. As per the said proviso, election programme shall be displayed on the notice board of the Society and published in the local newspaper at least fifteen days prior to the date of election.
The Society has framed Bye-Laws in accordance with the Multi-State Co-operative Societies Act, 2002.
Bye-Law No. 24 deals with constitution of Board of Directors/Management. There are altogether six regions covering the States of Tamil Nadu and Kerala. Bye-Law No. 24 (8) provides for appointment of Returning Officer by the Central Registrar in accordance with the proviso to Rule 19 of the Multi-State Co-operative Societies Rules, 2002. The said proviso is no more in the Statute book. Therefore, there is no requirement, as on today, to appoint a Returning Officer by the Central Registrar. It is now the responsibility of the existing Board to conduct the election by appointing Returning Officer.
Bye-Law No. 24(9) provides that nominations for election as Directors shall be received by the Returning Officer at least not less than fifteen days from the date of notice calling for nominations. Similarly, Bye-Law No. 24(11) provides the method of conducting election. As per this provision, election of Directors and Representatives will be held simultaneously one region after another.
DISCUSSION:
There is no dispute that in accordance with the provisions of the Multi-State Co-operative Societies Act, 2002 and the Bye-Laws of the Society, the existing Board appointed the fourth respondent in W.P. (MD)Nos. 2343 and 2344 of 2013, as the Returning Officer. The Returning Officer issued a notification on 18 January, 2013. It is the admitted case of the parties that it was only on 23 January, 2013 the notification was published in the New Indian Express newspaper. The third respondent has produced documents to show that the Returning Officer has sent the election notification to the individual members by postal certificates on 19 January, 2013.
The election notification contains the following material information:
(i) Date of notification-18 January, 2013
(ii) Date of publication- 23 January, 2013
(iii) Time prescribed for receipt of completed nomination- 29 January, 2013 (upto 05.00 p.m.)
(iv) Scrutiny of nominations - 30 January, 2013 (between 10.00 a.m. and 05.00 p.m.)
(v) Publication of valid list of nominations- 30 January, 2013 (06.00 p.m.)
(vi) Withdrawal of nominations - 31 January, 2013 (upto 01.00 p.m.)
(vii) Publication of final list of candidates - 31 January, 2013 (05.00 p.m.)
The moot question is as to whether the election notification issued by the Returning Officer would satisfy the mandatory requirements of the Multi-State Co-operative Societies Act, 2002 and the Bye-Laws of the Society.
THE PRINCIPAL VIOLATION:
Sub-Clause (e) of Clause 1 of the Schedule appended to the Multi-State Co-operative Societies Rules, 2002, Bye-Law No. 24(9) (with regard to the election of Directors) and Bye-law No. 43 (with regard to Representative General Body) clearly provides that not less than fifteen days notice shall be given for election to the post of Directors and Representative General Body members. Since the provisions of the Multi-State Co-operative Societies Act, 2002 very clearly provided that there should be a time gap of at least fifteen days between the date of notification and the last date prescribed for receipt of nominations and more particularly, on account of the usage of the expression "not less than fifteen days" necessarily, the said requirement has to be treated as a mandatory one. The Bye-Law also contains a related provision requiring that at least not less than fifteen days notice shall be given for the nomination. In view of the nature of expression used, it cannot be said that the time prescribed under the provisions of the Act and the Bye-Laws were not mandatory in nature and it was only directory. The scheme of the Act and the Bye-laws gives a clear indication that fifteen days notice is a mandatory requirement.
The notification though issued on 18 January, 2013, was published only on 23 January, 2013. The last date prescribed for receipt of nomination was indicated as 29 January, 2013. Even if the date of notification viz., 18 January, 2013, is taken as the relevant date, fifteen days would expire only on 01 February, 2013. In case the date of publication viz., 23 January, 2013 is taken as the cut-off date, fifteen days time for submission of nomination would expire only on 06 February, 2013. Since fifteen days time was not given between the date of publication and the last date of receipt of nomination, the impugned notification would violate the mandatory provisions as contained under Clause 1 Sub-clause (e) of the Schedule appended to the Multi-State Co-operative Societies Rules, 2002 and Clause Nos. 24(9) and 43 of the Bye-Laws of the Multi-State Co-operative Societies Act, 2002.
SECOND VIOLATION:
Bye-Law No. 24(11) provides that election of Directors and Representatives will be held simultaneously one region after another. The Returning Officer has issued the notification proposing to conduct the election of Directors and Representatives simultaneously. The election is scheduled to be held on 14 February, 2013, 17 February, 2013 and 20 February, 2013. The election schedule gives a clear indication that the requirement regarding election of Directors and Representatives one region after another was not followed. The requirement regarding simultaneous election of Directors and Representatives one region after another is not an empty formality. There is only one Returning Officer appointed by the beard. He should be in a position to oversee the entire election process. In case the elections are conducted in all these six regions simultaneously, it would not be possible for the Returning Officer to supervise the election in an effective manner. The memo submitted before the Registrar (General), Delhi High Court by the Hon''ble Thiru Justice K. Govindarajan, Former Judge of this Court, also indicates that the election is proposed to be conducted at 37 places on 14 February, 2013, 60 places in various districts on 17 February, 2013 and 50 places on 20 February, 2013 in the State of Tamil Nadu. The memo also indicates that the election on 14 February, 2013 is in Trichy and on 17 February, 2013 election is proposed to be conducted in Coimbatore and Palaghat and on 20 February, 2013, in Villupuram, Chengalpet, Tambaram and Chennai. The observer appointed by the Hon''ble High Court of Delhi in his memo demonstrated that there would be considerable difficulties in overseeing the election process on account of the simultaneous conduct of elections in all the regions. It was only by foreseeing this practical difficulty, provisions were made in the Bye-laws that the election will be held one region after another. When there are six regions, the Returning Officer was not correct in taking a decision for simultaneous election virtually violating the provisions of the Bye-laws. The stipulation regarding conduct of simultaneous election without adherence to the relevant Bye-Law with regard to the conduct of election one region after another would, therefore, clearly violate Clause 24(11) of the Bye-laws.
THIRD VIOLATION: (VIOLATION OF CONSTITUTIONS'' PROVOIONS)
The Constitution (Ninety Seventh Amendment) Act, 2011 was enacted by Parliament to amend the Constitution of India. The Ninety Seventh Amendment Act, 2011 received the assent of the President on 12 January, 2012. The amendment was published in the Gazette of India on Friday, 13 January, 2012. Sub-Clause (2) of Clause 1 of the Ninety Seventh Amendment Act, 2011 provides that the amendment shall come into force on such date as the Central may, by notification in the official Gazette, appoint. The Act came into force on 15 February, 2012.
The Constitution (Ninety Seventh Amendment) Act, 2011 introduced string of provisions in the Constitution to make similar provisions by the concerned Legislature with respect to incorporation, regulation and winding up of Co-operative Societies, basing upon the principles of voluntary formation, democratic member-control, member-economic participation and autonomous functioning. The second proviso to Article 243ZJ(1) provides that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.
Article 243ZK(2) provides that the conduct of elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law.
Article 243ZT contains a legislative mandate that any provision of law relating to co-operative societies in force in a state immediately before the commencement of the Constitution (Ninety-Seventh Amendment) Act, 2011, which is inconsistent with the provisions of Part IXB, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.
Article 243ZR provides that the provisions regarding incorporation of Co-operative Societies and related provisions would apply to Multi-State Co-operative Societies, subject to the modification that any reference to "Legislature of a State", "State Act" or "State Government" shall be construed as a reference to "Parliament", "Central Act" or "the Central Government" respectively.
The provisions regarding reservation of seat for Scheduled Castes, Scheduled Tribes and women on Board of every co-operative society was introduced with a laudable object. The provisions of either the Multi-State Co-operative Societies Act or the State Co-operative Societies Act or Rules made thereunder, does not contain any specific provision regarding reservation of seats for Scheduled Castes, Scheduled Tribes and women. The Parliament wanted due representations to be given to the members of the Scheduled Castes or Scheduled Tribes besides women on the board of every co-operative society and it was only for this purpose, Article 243ZJ(1) was introduced in our constitution. The Central and the State Governments were directed to amend the relevant provisions of the Act to give due representations to the Scheduled Castes, Scheduled Tribes and women on the board of co-operative societies, within a period of one year. The amendment came into force on 15 February, 2012. The period of one year would expire. The constitution is a living document to meet the changing needs, conditions and aspirations of the people. The constitution was enacted long ago and several amendments were made thereafter to make provisions for the welfare and betterment of the people of India. The Parliament found that in spite of promoting co-operative movement by adherence to the principle "each for all" and "all for each", sufficient representation was not given to the members of Scheduled Castes, Scheduled Tribes and women. It was only on account of the need felt by the Legislature to give adequate representation to the weaker sections and women, amendment was made to the constitution by incorporating specific provisions providing for such reservations. The constitutional Court, while considering a matter of this nature, must respect the wisdom of the legislature in introducing such a benevolent provision in the interest of the downtrodden and the women. The technicalities should not come in the way of the Court while deciding larger questions involving the interpretation of the provisions of the Constitution of India.
The election process would complete only by 22 February, 2013. By that time, Article 243ZT would operate with its full vigour and as such, in the event of challenging the election process, on the ground of failure to provide representation to Scheduled Castes/Scheduled Tribes and women, it would be declared unconstitutional. The election notification as issued only after the amendment made to the Constitution by Ninety Seventh Amendment Act, 2011 and, therefore, it cannot be said that it would not be hit by Article 243ZT of the Constitution.
THE ORDER PASSED BY THE DELHI HIGH COURT:
The learned Senior Counsel for the third respondent contended that identical Writ Petition was filed before the High Court of Delhi and the High Court refused to interfere with the election process. According to the learned Senior Counsel, the Delhi High Court appointed a Former Judge of this Court to oversee the election process.
The learned Senior Counsel for the third respondent produced a copy of the order passed by the Delhi High Court in W.P. (C) No. 485 of 2013. However, the affidavit filed by the petitioner in the said Writ Petition was not produced before me. I am informed that the questions raised by the petitioners in these Writ Petitions including the issue regarding violation of the provisions of Constitution were not raised before the Division Bench of Delhi High Court. The order passed by the Delhi High Court dated 05 February, 2013 indicates that the parties have agreed to appoint Hon''ble Mr. Justice K. Govindarajan, as an observer, in order to facilitate a smooth election process. It is a matter of record that the Election Observer himself, by way of communication dated 09 February, 2013, expressed his difficulty to oversee the election process by visiting different places on 14 February, 2013, 17 February, 2013 and 20 February, 2013. The letter sent by the former Judge of this Court gives a clear indication that the observer was of the clear view that it is net possible for a single observer to visit all the places and in view of the short duration, it is also not possible to select assistants for deputing them to visit other places. Such being the case, I am of the view that, the order appointing a Former Judge, as election observer, would not prevent this Court from considering the larger issues raised by the petitioners in these Writ Petitions.
Therefore, on a careful consideration of the election notification, in the light of the provisions of the Multi-State Co-operative Societies Act, 2002 and the Bye-laws of the Southern Railway Employees'' Co-operative Credit Society Limited, I am of the view that the impugned election notification was in clear violation of the mandatory requirements of the Act, Rules and Bye-Laws.
LEGAL POSITION:
In case the statute says that a particular thing shall be done in a particular manner, it shall be done only in the said specified manner. The time prescribed by the statute is only for its adherence. The authorities or functionaries entrusted with the task of performing specified functions under a particular statute must strictly adhere to the period prescribed under the statute. The question of extending the time or to reduce the period would arise only in case the statute gives a discretion to the authorities.
The society is a creature of the Multi-State Co-operative Societies Act. The Bye-Laws were made only in accordance with the provisions of the Act. Neither the Act nor the Bye-Laws, give power to the Registrar, Board or Returning Officer to reduce the prescribed period between the date of issuance of election notification and the last date prescribed for submission of nominations. The action taken by the Returning Officer to prescribe a lesser period to submit the nomination was in clear violation of the statute.
THE PRECEDENT:
In Babu Verghese and Others Vs. Bar Council of Kerala and Others, , the principal issue before the Supreme Court was as to whether the election conducted by the Bar Council of Kerala after the expiry of the term of State Bar Council was valid. The High Court of Kerala dismissed the Writ Petition holding that the subsequent extension of term of the Bar Council by the Bar Council of India will be treated to have been extended before the expiry of its original term. While setting aside the decision of Kerala High Court, the Supreme Court held that it is the cardinal principle of law that the Act must be done in the specified manner. The Supreme Court observed:
It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a statutory principle of administrative law.
W.P. (MD)No. 1817 of 2013:
The petitioner in this Writ Petition submitted a nomination, pursuant to the election notification dated 18 January, 2013 and published on 23 January, 2013. The third respondent has produced a copy of the said nomination paper in the typed-set of papers. The petitioner suppressed the material fact regarding the submission of nomination in the affidavit filed in support of the Writ Petition. The affidavit proceeds as if the notification violated the mandatory provisions and as such, it would not be possible for the members of the society to take part in the election.
The question, therefore, is whether the Court should extend its helping hand to a person who has suppressed material information and submitted himself to the jurisdiction of Returning Officer.
The jurisdiction under Article 226 of the Constitution of India is nothing but equity jurisdiction. Even if the writ petitioner has made out a good case on law, still the Court is not bound to give relief, in case it is made out that he has not approached the Court with clean hands. Misrepresentation and failure to disclose the actual state of affairs are valid grounds to deny the relief under Article 226 of the Constitution.
The Supreme Court in Kishore Samrite Vs. State of U.P. and Others, , observed that while approaching the Court, litigant must state the correct facts and come with clean hands and in case there is suppression of facts, the same would result in dismissal of the Writ Petition. The Supreme Court said:
32.... The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs. 33....
The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation...
No litigant can play ''hide and seek'' with the courts or adopt ''pick and choose''. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court.
Since the petitioner in W.P. (MD)No. 1817 of 2013 has suppressed the material information and made the Court to pass an interim order in his favour on the basis of such misrepresentation, he is not entitled to an equitable relief. Therefore, I am of the view that the Writ Petition filed by the petitioner in W.P. (MD)No. 1817 of 2013 is liable to be rejected.
OVERALL CONCLUSION:
The petitioners in W.P. (MD)Nos. 2343 and 2344 of 2013 have clearly demonstrated that the notification was issued in violation of the mandatory provisions of the Multi-State Co-operative Societies Act, 2002, the Rules made thereunder and the Bye-laws of the Society. Under such circumstances, I am of the considered view that the impugned notification is liable to be quashed.
DISPOSITION:
In the result, the election notification issued by the Returning Officer dated 18 January, 2013 is quashed. In the upshot, I dismiss the Writ Petition in W.P. (MD)No. 1817 of 2013 and allow the Writ Petitions in W.P. (MD)Nos. 2343 and 2344 of 2013. Consequently, the connected miscellaneous petitions are closed. No costs.