P SOUNDARAJAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) All these writ petitions are on the same facts, i.e., they want to declare that P.K. Kanagarajan, is disqualified to stand for election for the reasons stated in the various writ petitions and consequently they want to hold fresh election to the Board of Directors under Section 44, Panamarathupatti Primary Agricultural Co-operative Bank Limited, Panamarathupatti, Salem. I need only extract the averments in W.P. No. 7195 of 1997, wherein the relief sought for is to issue a writ of certiorarified mandamus, calling for the records of the 1st respondent in G.O. (ID) No. 78, dated 6.2.1997, and quash the same and direct the respondents to hold fresh election to Board of Directors in the 5th respondent society.

(2.) In the affidavit filed in support of that writ petition, it is stated that the petitioner is a member of Panamarathupatti Primary Agricultural Co-operative Bank Ltd. It is his case that under Section 34 of the Tamil Nadu Co-operative Societies Act, 1983 (in short 'Act'), the person who have been disqualified are not eligible to contest the election and sub-section (ii) of Section 34 of the Act deals with the disqualification of the member of the Board. It is further stated that as against the 6th respondent who was formerly the President of the 5th respondent/Bank, proceedings have been initiated and he was found guilty of misappropriation, resulting in loss to the society, and the Deputy Registrar of Co-operative Societies, by his proceedings dated 30.5.1986 issued orders of surcharge, directing the 6th respondent and others to make good the loss. The appeal filed against the surcharge was also dismissed and the orders against the 6th respondent and others was confirmed, even by the Special Tribunal for Co-operative Societies. It is therefore, contended that the 6th respondent is a disqualified person and that he has discharged the debt only recently i.e., on 20.3.1997, and as such his disqualification continues. It is said that the 6th respondent has been elected to the Board of Directors and is about to contest for the Presidentship. In view of the disqualification referred to above, the election of the 6th respondent itself is non est and therefore, they wanted a fresh election to be held to the Board of Directors.

(3.) For all these writ petitions, on behalf of the State Government as well as the Registrar of Co-operative Societies, a separate counter-affidavit has been filed. The 6th Respondent P.K. Kanagarajan also filed a separate counter-affidavit. In the counter-affidavit filed by the Government, it is stated that Panamarathupatti Primary Agricultural Co-operative Bank is a Co-operative Society, and as per the bye-laws of the Bank its management shall vest with a Board consisting of seven members elected in accordance with the Rules. Elections were held to the various Boards pursuant to the direction of this Court. Originally the election was to be held in April 1997, but there was some disturbance by riot and violence and thereby the election could not be held. Subsequently, the election was conducted on 10,5.1997, and seven person who have obtained maximum number of votes were declared as Members of the Board of the said Bank. The first named person is P.K. Kanagarajan, the 6th respondent herein. On 17.5.1997, election to the President and Vice-president of the Board was held and in that election P.K. Kanagarajan, was elected as President and one M. Raja was elected as Vice-President. It is further stated that instead of coming to this Court by filing the writ petition, the petitioner has an effective alternative remedy under Section 90 of the Act, by raising an election dispute, and the writ petitions filed without availing the alternative remedy are liable to be dismissed. It is also said that G.O. (ID) No. 78, Co-operation, Food and Consumer Protection Department, dated 6.2.1997 is not arbitrary and illegal. It is contended by the State, that the writ petitions are based on a wrong assumption, and they misunderstood the exemption given in the said G.O. Election to Primary Co-operative Societies were ordered to be held in 1996, and the 2nd respondent had sent a proposal to the Government to give exemption to all Primary Co-operative Societies from the provisions of Rule 38 of the Rules, and Section 34 (1) (b) (ii) and (iii) of the Act, so as to enable the defaulting members to participate and vote at the election, in view of the fact that majority members were overdue members, and that it would not be conducive if they were deprived of their participation in the election because of overdues. Similar exemption was granted in the year 1990. when election to Primary Co-operative Societies was held. It is said that Kanagarajan was not disqualified from standing for election, since on the date of filing the nomination the surcharge order was not subsisting and he has discharged the entire debt long before he filed his nomination.