V.K. Kumaresan vs Joint Registrar of Co-operative Societies and others

The petitioner challenge the order of the first respondent passed in proceedings IA/2/90-91 in ARC 1173/90 dated 27-9-1990.

It is alleged in the affidavit of the petitioner that a notification was issued for the election to the Board of the Thudiyaloor Co-op. Agricultural

Service Society Ltd., and the election was held on 27-8-1990 to elect 12 Directors It is alleged that the petitioner and other 10 persons belonging

to their group were declared elected and only one, who was declared as Director of the said society, belongs to rival group. It is stated in the

affidavit that third and fourth respondents who were not successful in the election filed an Election Petition before the second respondent

challenging the election held on 27-8-1990 on various grounds. It seems the second respondent issued a notice to the petitioner as well as

respondents (in the election petition) for an enquiry. When the Election Officer notified by his proceedings dated 25-9-1990 that the election to the

office bearers of the society will take place in the premises of the society on 30-9-1990, it is alleged that the election did not take place. When the

petitioner enquired, he was informed that the election has been stayed and therefore the election did not take place on that date. It is alleged that

no notice was issued to the petitioner intimating about the election petition being filed by the election petitioners for a stay of the office bearers''

election and he came to know about the order of stay on 27-9-1990 when he received a communication from the counsel for the election

petitioners enclosing the xerox copy of the said order passed by the first respondent on 4-10-1990. It is alleged that the first respondent is not the

Election Court for the purpose of Sec. 90 of the Tamil Nadu Co-operative Societies Act, hereinafter referred to as the Act, and he has no

jurisdiction to pass orders in Election Petition filed u/s 90 of the Act. It is further alleged that it is one of the instances where the Statutory Authority

exceeds its power when the election petition u/s 90 of the Act is pending before the second respondent, and the first respondent has passed an

order staying the election of the office bearers. It is alleged that the first respondent ought not to have entertained the petition at all, when the

election petition is pending before the second respondent, and the decision could be taken by the authority before whom the Election Petition is

pending, and the first respondent cannot usher up the power and pass interlocutory orders pending disposal of the election petition. It is also stated

that once election process is started, the election cannot be stopped, especially when the election officer has notified by his proceedings dated 25-

9-1990 informing the petitioner and others that the election to the Office bearers will be held on 30-9-1990. As such it is alleged that the first

respondent cannot interfere with the process of election. On this ground also, the order passed by the first respondent is bad in law. It is further

alleged that no notice was given to the petitioner, and the first respondent has no power to pass an order of ex parte injunction under sub-section 6

of the Section 90 of the Act.

When the writ petition came up for admission, after notice to the Government Advocate, this Court allowed the writ petition and directed the

Deputy Registrar to dispose of the stay petition before whom a Election petition is pending by order dated 12-12-1990. A writ appeal was filed

against that order in W. A. No. 35 of 1991 and the Division Bench of this Court set aside the order on the ground that the writ petition was

allowed without issuing notice to the appellant (4th respondent herein) and remitted back the matter to be decided afresh in accordance with law.

Therefore the writ petition is posted before me.

A counter affidavit has been filed on behalf of the 4th respondent. It has been stated in the counter affidavit that it is not correct to state that the

first respondent has no jurisdiction to entertain the stay petition. It is alleged that the Registrar has passed an order dated 6-9-1990 in which he

allocates the powers to the Deputy Registrar and Joint Registrar. While the power to decide any election dispute is granted to the Deputy

Registrar, the specific powers of passing interlocutory orders under sub-clause 6 of section 90 of the Act is delegated to the Joint Registrar. As

such it is contended that such delegation of powers is well within the scope and jurisdiction granted to the Joint Registrar under the Co-operative

Societies Act. When the petitioner has not challenged the order dated 6-9-1990 of the Registrar by which the Joint Registrar gets the power to

pass interlocutory orders, the writ petition is not maintainable. In other words, in so far as the order of the Registrar is concerned, the delegation of

power stands and the petitioner cannot question the Interlocutory order. Even otherwise it is stated that if the petitioner is aggrieved by the order of

the first respondent, it is open to him to move the same Authority for vacating the same.

I have heard Mr. B. S. Gnanadesigan, learned counsel for the petitioner, and Mr. C. R. Sathindran, learned counsel for the 4th respondent, and

the learned Government Advocate appearing for respondents 1 and 2. Mr. Gnanadesikan, rightly raised a contention that it is not open to the Joint

Registrar of Co-op. Societies, first respondent, to pass an order of stay especially when the main election petition is pending before the second

respondent. According to the learned counsel, the first respondent has no jurisdiction to pass an order of stay. Apart from that, the learned counsel

further contends that even assuming that the first respondent has got jurisdiction to pass such an order, the petitioner ought to have been given

notice before passing the order. The further contention raised by the learned counsel for the petitioner is that once the election process is started,

no Court can stop the election and in this case the Election Officer has notified the date for the election of Office bearers of the society and as

such, the first respondent, even assuming that he has got power, ought not to have exercised the power.

Per contra, learned counsel for the respondents contends that the whole matter revolves round the power of delegation and once it is admitted

that the Registrar has got power of delegation, the Registrar has delegated the power to the Joint Registrar to pass Interlocutory orders in

deserving cases on merits. He also placed reliance on the copy of the Express Memorandum of the Co-op. Societies, Madras R. C. No.

117412/90 CEL, dated 6-9-1990.

No counter has been filed by respondents 1 and 2.

Considering the arguments of the learned counsel for the petitioner and the 4th respondent and the learned Government Advocate, 1 am of the

view that the impugned order has got to be set aside, It seems that Election petition is preferred only to the Deputy Registrar, who has been

designated as. Election Authority u/s 90 of the Act. It is true that under sub-clause 6 of Section 99 of the Act the Joint Registrar has vested with

powers to pass interlocutory orders. It is not in dispute that in this case the 4th respondent has preferred an Election Petition before the 2nd

Respondent. It is not his case that he has preferred the election petition before the first respondent. When the Election Petition is pending before

the second respondent, I wonder how the first respondent can pass interlocutory order, Normally it is against all fundamental canons of justice.

When the main matter is pending before one Authority, another authority cannot pass interlocutory orders in the same matter. The learned counsel

for the respondents contends that there is a power of delegation to pass interlocutory orders as per Memorandum dated 6-9-1990. He placed

reliance in Clause V of the Memorandum which runs as follows :--

Normally there should not be any interlocutory orders pending decision of the disputes. However, in deserving cases such interlocuroty order may

be given on merits of the case by the Joint Registrar.

There is no mention in the Memorandum in what cases Interlocutory orders can be passed by the joint Registrar. In earlier paragraph it is stated

that the memorandum is only in the nature of executive instructions given to the Circle Deputy Registrar concerned by the Registrar. A reading of

clause 5 of the Memorandum does not show that the Authority who is different from the authority and who is not hearing the main election petition,

can pass interlocutory orders. As such this is a case where the first respondent exercised jurisdiction which has not vested within him. Assuming for

a moment that there is delegation of power, I do not think it is valid in law. It is not necessary for the petitioner to challenge the order dated 6-9-

1990. When executive instructions are produced before this Court which are contrary to the statutory provisions, it is open to take note of the fact

that it is contrary to the statute and ignore the same as they are invalid. That apart, as rightly contended by the learned counsel for the petitioner,

when election process is started, it is not open to the first respondent to stay the dection assuming that he has got power to interdict the election. It

has been held so in the decision reported in S.T. Muthusami Vs. K. Natarajan and Others, :--

It is not appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election

process and before the declaration of the result of the election held for the purpose of filling a vacancy in the office of the Chairman of a Panchayat

Union under the provisions of the Tamil Nadu Panchayats Act, 1958 on the ground that there was an error in the matter of allotment of symbols to

the candidates contesting at such election. The parties who are aggrieved by the result of the election can question the validity of election by an

election petition which is an effective alternative remedy.

In that case after referring to the earlier decision reported in Nanhoo Mal and Others Vs. Hira Mal and Others, the Suprme Court observed thus

at page 2143.

This Court held that the right to vote or stand for election to the office of the President of a Municipal Board is a creature of the statute, that is the

U.P. Municipalities Act and must be subject to the limitations imposed by it. Accordingly, this Court held that the election to the office of the

President of the Municipal Board could be challenged only according to the procedure prescribed by that Act and that is by means of an election

petition presented in accordance with the provisions of that Act and in no other way. The Court further held that the said Act provided only for one

remedy, that remedy being an election petition to be presented after the election was over and there was no remedy provided at any intermediate

stage.

In view of the decision of the Supreme Court and the view I have taken with regard to executive instructions issued by the Registrar, the

impugned order is set aside and the writ petition will stand allowed. If the election petition is still pending before the Deputy Registrar, it is open to

the 4th respondent to move him for an interim order, if so advised. No costs.

Petition allowed.