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Judgment
Sathiadev, J.—These writ petitions are filed to compel the State to hold the Election for respective Societies by issue of mandamus by this Court and in any event not beyond 13.10.1988.
After the institution of these petitions, Ordinances 3 and 4 having been passed and G.O. Ms. 102 having come into force, and they having been considered by this Court in W.P. Nos. 6189 and W.M.P. No. 12844 of 1989 etc., it is not necessary to issue any direction in the nature asked for, because, while disposing of the batch of writ petitions on 3.8.1989 the Government had placed before this Court G.O. Ms. 523, which catalogues the time schedule for holding of Elections to all the Co-operative Societies in the State. It is consequent to the action taken under the Ordinance, when the State had evolved the time-bound programme for holding of Elections, it is not necessary to order these petitions, as prayed for. Recording the contents of G.O. Ms. 523 as part of this order, these two writ petitions are dismissed. But, in the event of the State not holding Election as claimed therein, the dismissal of these writ petitions would not preclude the writ petitioners to approach this Court for the relief to which they are entitled to, for holding of Elections. Hence, these Writ petitions are dismissed. No Costs.
These Writ petitions coming on for further orders on Monday the 25th September 1989, Wednesday the 29th and Thursday the 30th day of November, 1989 in the presence of the said advocates and having stood over for consideration till this day:
Satahiadev, J.
Petitioners are members of the Kancheepuram Sri Krishna Handloom Weavers'' Co-operative Marketing Society Limited, the fourth respondent herein.
This writ petition came to be dismissed on 14.8.1989 by taking note of the promulgation of Ordinance Nos. 3 and 4 of 1989. But later on, Counsel for the petitioner sought for review of Judgment orally, and thereafter, W.M.P. No. 16926 of 1989 had been filed, and this resulted in this review order being passed. The oral contentions dealt with herein would show that on the date when the judgment was delivered, the Counsel who has represented him was not in a position to elaborate on this point to the extent as done by learned Counsel Mr. A.S. Narasimhan.
The writ petitioners claimed that though the Society was registered six years back under T.N. Act 53 of 1961, so far no election to Managing Committee had taken place, and even after ushering in T.N. Act 30 of 1983 (hereinafter referred to as the Act), no step in that direction had been hitherto taken. The last of the Committee nominated had lost its office by efflux of time, and now a Special Officer is functioning. In spite of repeated requests made by members of the Society, neither the second respondent nor the third respondent announced holding of election for the Society, and therefore, they have filed the writ petition for issue of a writ of mandamus directing respondents 2 and 3 to announce and hold elections on or before 13.10.1988, being the last date fixed by the Act. Reliance is placed on Section 33 (1) (b) (i) of the Act to claim that no longer the Special Officer could be incharge of the affairs of the Society.
On behalf of the respondents, records produced go to show that right from the inception of the Society, the Committee of Management had been nominated, and that u/s 89(1) (i) of the Act, the Director of Handlooms and Textiles by order dated 10.5.1988 had appointed a Special Officer to be in office from 1.5.1988 to 30.9.1988 or till the Board is reconstituted by election or further orders whichever is earlier. As invariably happens, no election having been held, on 5.11.1988, he invoked the same section and extended the period upto 12.4.1989 or till the Board is reconstituted by election or until further orders whichever is earlier. The writ petition came to be filed on 14.9.1988. Again for continuation of the Special Officer, reliance is placed on Ordinance No. 4 of 1989 which came into effect on 3.7.1989, and another Ordinance No. 7 of 1989 came into force on similar line.
The point taken by learned Counsel Mr. A.S. Narasimhan is that, according to the Proviso to Section 33 (1) (b), for more than six months in the case of registered Societies where the nominated Board has held office for more than 2-1/2 years or more on the date of the commencement of the Act, no nomination shall be made in respect of members of the Board. The Act came into force on 13-4-1988. Therefore, after 12.10.1988, no nominated Board could exist.
Hence, second respondent-Director had invoked Section 89(1) (i) of the Act to appoint a Special Officer. But under the said Section, the appointment of Special Officer when warranted as provided therein, could be for a period not exceeding six months pending constitution of the new Board, and that for special reasons recorded in writing by the Registrar, it could be extended from time to time, but shall not remain in office for more than one year in the aggregate. Even though learned Counsel Mr. A.S. Narasimhan was able to impress upon this Court that the policy decision taken not to hold election would not be one of the factors which would come u/s 89(1), even assuming without conceding, he would state that the period under the Act had come to an end by 30-4-1989 and thereafter the Special Officer had no right to be in office. The order dated 5.11.1988 of the second respondent was only up to 12.4.1989. Yet, learned Special Government Pleader would rely upon Tamil Nadu Ordinance No. 4 of 1989 since repealed by Ordinance No. 11 of 1989, but the provisions of these Ordinances would apply, only if on the appointed day, in respect of a primary society, a Committee or Board which had been in office has to be displaced by a Special Officer appointed under Clause 4 of the Ordinance No. 4. Therefore, these two ordinances cannot be relied upon to claim that the Special Officer is lawfully functioning in respect of fourth respondent-Society.
Therefore, his continued functioning on and from 1.5.1989 being illegal, it necessitates mandamus being issued to respondents 1 to 3 to hold election to the Committee of Management of fourth respondent Society, on or before 10.2.1990 by which date the new Committee of Management shall enter upon office. Now that it has been held that the Special Officer is holding office illegally, for any acts done by him subsequent to 1.5.1989 he will have to face the necessary consequence.
Learned Counsel for the petitioner, would point out that, in spite of a directive given in W.A. No. 1236 of 1988 in respect of the concerned Society, no prompt step had been taken within the time fixed by Court. Therefore, a steno copy of this order is being handed over to the Special Government Pleader at the time of delivery of Judgment to avoid any delay in holding of election. Any policy decision taken not to hold election, would have no reliance when a Mandamus is issued by Court. If in spite of the time-limit fixed, if elections are not held, it is made clear that the concerned respondents will face suo motu contempt proceedings by this Court.
Hence, for the reasons above stated, the order dated 14.8.1989 is set aside by allowing the review petition. With these directions, the writ petition is allowed with costs. Counsel fee Rs. 1,000 payable by respondents 1 to 3.
W.P. No. 163 of 1989: Petitioners are members of Salem Silk Handloom Weavers'' Co-operative Production and Sales Society Limited. The writ petition is filed for issue of a writ of mandamus to direct respondents to hold election to the office of the Board of Directors of the Society within a date fixed by this Court. This writ petition came to be dismissed on 14.8.1988 by taking note of Ordinance Nos. 3 and 4 of 1989. But later on, Counsel for the petitioner sought for review of judgment orally, and thereafter W.M.P. No. 17368 of 1989 had been filed and this resulted in this review order being passed.
Third respondent-Society was registered under Madras Act 6 of 1932, and later on deemed to be registered under Tamil Nadu Act 53 of 1961 and now replaced by Tamil Nadu Act 30 of 1983, which had come into force on and from 13.4.1988. Till 1977, it functioned with elected Board of Directors, but second respondent by order dated 24.2.1977 issued a show cause notice u/s 72(1) of 1961 Act. Thereafter he appointed a Special Officer, who took charge on 3.11.1977. u/s 72(1) of 1961 Act, a Special Officer who was appointed, could function in an aggregate only for a period of four years. Hence, when he continued to function beyond the said period, W.P. No. 11545 of 1983 was filed, and by order dated 17.2.1984, this Court directed the conduct of election to be held on or before 29.2.1984. He did hot comply with said direction. When the writ petition was called on 24.4.1984 "for reporting to Court", it was represented by respondents'' Counsel that in view of the order of first respondent u/s 111(1) (A) of the said Act, the order of the Court could not be complied with. Hence, the mandamus issued was modified to become operative within six weeks from the date on which the exemption granted would expire. As against this order, W.A. No. 652 of 1984 was filed and it was dismissed. Hence W.P. No. 448 of 1987 had been filed questioning the Legislative competence to enact Section 111 to the said Act and it is pending disposal. Now that 1961 Act had been repealed and replaced by Act 30 of 1983 (hereinafter referred to as the Act) and Section 72 having been re-enacted as Section 88 of the Act, only up to 13.10.1988, the Special Officer could be in Office. Hence, it is contended that his continued functioning as Special Officer being illegal, it is but necessary to implement the provision of the Act scrupulously with regard to the Society.
Learned Special Government Pleader, would submit that the bye-laws of the Society had been amended, and the General Body had authorised appointment of an Administrator, and therefore, as the bye-laws had been certified on 19.1.1989, the resolution of the General Body dated 28.10.1989, authorises the Administrator to continue to be in office of the affairs of the Society, and hence, there is no warrant for holding of election.
Regarding the manner in which bye-laws had been amended, learned Counsel for the petitioner had claimed that there had been manipulations; but without going into that aspect, in the light of the decision rendered by this Court in W.A. No. 1236 of 1988 (Judgment dated 8-3-1989), it will have to be seen whether the Special Officer could have continued to be in office beyond 13.10.1988. Under 1961 Act, he was appointed on 3-11-1977 u/s 72(1). Even under that Act, he could have lawfully functioned as Special Officer only for a period of four years. Yet, by resort to Section 111 (1) (a), he was allowed to continue to be in office. But after the ushering in of Tamil Nadu Act 30 of 1983 which came into force from 13.1.1988, under the Proviso to Section 88(1) (b) on the date of commencement of the Act, if a society had been already superseded for more than 11/2 years, the Registrar could extend it for a further period of only six months after the coming into force of 1983 Act. Hence, in respect of a Society where the Committee of Management had been superseded under the Act, after this period, a Special Officer cannot to be in office.
What is now contended by respondents 1 and 2 is that, the bye-laws of the Society came to be amended by General Body by resolution dated 28.10.1988 to appoint an Administrator u/s 33 (12) of the Act; and therefore, on it being certified by the Registrar on 19.1.1989, presently the affairs of the Society are in the hands of an Administrator. It is not claimed that the Society has been exempted u/s 170 of the Act. Between 13.10.1988 and 28.10.1988, even on the showing of these respondents, the Special Officer has acted illegally.
Could administrator appointed by virtue of the resolution dated 28.10.1988, continue in office on and from 14.10.1988 or at least from 28.10.1988 has to be considered. Here again, as held in para 12 of the judgment in W.A. No. 1236 of 1988, unless the General Body after the certification of the bye-laws approaches the Director for appointment of an Administrator, any earlier appointment made otherwise is contrary to Section 33(12) of the Act. No General Body Meeting had been convened after the certification of bye-laws on 19.1.1989. Therefore, his continued existence as Administrator is illegal.
Further, it must be emphasized that when the intendment of the Act is positively clear that in respect of superseded Societies, a firm outer time limit is required for entrusting their affairs to an elected Committee of Management; if the non-obstante provision in Section 33 (12) is to be applied to such instances, it would only result in the time-limit fixed as purposeless.
Therefore, the earlier order dated 14.8.1989 is set aside and the writ petition is allowed with costs and with a direction to respondents 1 and 2 to conduct election in respect of third respondent Society on or before 10-2-1990 and hand over the affairs of the Society to an elected body by that date. In W.P. No. 10819 of 1988, a direction is issued as to what consequences would follow by non-adherence to the time-limit fixed and as indicated therein, they would equally apply to the respondents in this writ petition, and as against concerned persons, it would result in initiation of contempt proceedings and stern punishment being imposed.