Judgment 1. Petitioner seeks issuance of writ of certiorari or any other writ direction or order calling for records of first respondent in his proceedings in Na Ka 4081/97/D4, dated 30.6.1997 and quash the same and pass such further orders. 2. Election to the Board of Directors of T.P.Spl.56, V.Nachipalayam Primary Agricultural Cooperative Bank, Vellakoil, Village,Kangeyam was conducted on 11.9.1996. Out of 20 eligible candidates 7 were to be elected. Petitioner and second respondent secured equal number of votes, i.e., 411 votes at 7th place. Since both of them secured equal number of votes, election officer had to draw a lot under Sub-Rule (16) to Rule 52 of Tamil Nadu Co-operative Societies Rules, 1988. Petitioner succeeded in drawing of lot and was declared as successful candidate. 3. Second respondent challenged the election under Sec.90 of Tamil Nadu Co-operative Societies Act before Deputy Registrar of Co-operative Societies. Deputy Registrar entertained the said petition and in the presence of petitioner, second respondent and other elected officers further recounting was done. Even at that time it was found that both petitioner as well as second respondent had obtained equal number of votes i.e., 411 votes. In view of the same, election petition was dismissed. An award was passed by Deputy Registrar on 29.10.1996. 4. Reason for filing this writ petition is that petitioner received an order dated 30.6.1997 whereby first respondent has ordered for second recounting of votes in an appeal alleged to have been filed by 2nd respondent under Sec.152 of Tamil Nadu Co-operative Societies Act. From the order it could be seen that appeal was filed before first respondent after a delay of 144 days and first respondent had condoned the delay even without notice to petitioner. First respondent has further said that second recounting was ordered taking into consideration interest of justice. Above proceedings of first respondent is challenged in this proceedings, as one without jurisdiction. 5. In the various grounds it is said that second appeal before first respondent itself is not maintainable and he cannot be an appellate authority under Sec.152 of the Act. If at all appeal lies, it lies only before Tribunal. Above proceedings of first respondent is challenged in this proceedings, as one without jurisdiction. 5. In the various grounds it is said that second appeal before first respondent itself is not maintainable and he cannot be an appellate authority under Sec.152 of the Act. If at all appeal lies, it lies only before Tribunal. It is further said that when there is delay in preferring appeal, even if appeal is maintainable, petitioner is entitled to contest that the delay is not liable to be condoned and even without notice, to petitioner, delay has been excused by first respondent, which is an act without jurisdiction. Apart from the same, it is further said that first respondent exceeded in his jurisdiction in ordering second recounting. It prayed for quashing all the proceedings of first respondent. 6. Learned Government Pleader took notice. All further proceedings pursuant to the order of first respondent were stayed for a period. 7. I heard learned Government Pleader who argued the matter on written instructions. Though second respondent has been served. He has not filed any counter affidavit and the learned counsel for second respondent adopted the arguments of learned Government Pleader. 8. On the basis of written instructions, learned Government Pleader submitted that a dispute was raised by second respondent under Sec.90 of Tamil Nadu Co-operative Societies Act, before Deputy Registrar of Co-operative Societies, who ordered recounting. On 29.10.1996, recounting was conducted and it is found that there is no change in the number of votes secured by second respondent and petitioner. Against the order passed by Deputy Registrar, second respondent again approached first respondent under Sec.152 of Co-operative Societies Act demanding another recounting, Appeal was received on 23.6.1997. After careful consideration, first respondent came to the conclusion of giving one more chance to prove the case and therefore ordered recounting. Recounting was only in regard to votes secured by second respondent and he has not set aside the election of writ petitioner. Order has not been implemented in view of stay order of this court. It is further said that under Sec.152 of Co-operative Societies Act, an appeal is maintainable and first respondent is competent to issue necessary directions for recounting. It is said that even though he was not party to the proceedings before him, he was put on notice in writing and evidence was also taken relating to appeal. It is further said that under Sec.152 of Co-operative Societies Act, an appeal is maintainable and first respondent is competent to issue necessary directions for recounting. It is said that even though he was not party to the proceedings before him, he was put on notice in writing and evidence was also taken relating to appeal. According to him, procedure adopted by him is legal and the same is not liable to be interfered with under Art.226 of the Constitution of India. 9. One of the main argument urged by learned counsel for petitioner was that no appeal lies against the award of Deputy Registrar dated 29.10.1996 before first respondent and entertaining appeal by him was one without jurisdiction. Therefore, the question to be considered is whether first respondent is entitled to entertain appeal preferred by second respondent. 10. A right of appeal is not common law right and the same will have to be conferred only under statute. If the statute does not provide for entertaining an appeal first respondent, first respondent will have no jurisdiction to entertain the same and also to pass orders, Further question arises for consideration is, even if appeal is maintainable, whether the procedure adopted by first respondent is correct. 11. I first consider whether the appeal before first respondent is maintainable. it is said that appeal has been preferred under Sec.152(3) of Tamil Nadu Co-operative Societies Act, on going by the section I find that only provides limitation for preferring an appeal. 12. 11. I first consider whether the appeal before first respondent is maintainable. it is said that appeal has been preferred under Sec.152(3) of Tamil Nadu Co-operative Societies Act, on going by the section I find that only provides limitation for preferring an appeal. 12. Regarding right of appeal, Sec.152(1) and (2) along are relevant, which read thus, “Sec152(1): Any person aggrieved by- (a) any decision or award passed or order made or proceedings taken under Sub-sec.(1) of Sec.87, Sub-sec.(2), Sub-sec.(3) or Sub-sec.(4) of Sec.90, Sec.118, Sec.119, Sec.143, Sec.144 or Sec.167, or (b) any award of an arbitrator or arbitrators under Sub-sec.(2) or Sub-sec.(3) of Sec.90;(c) any award of an arbitrator under Sec.100, may appeal to the tribunal: Provided that nothing contained in clause (a) or clause (b) of this sub-section shall apply to- (i) any decision, order or award under Sub-sec.(2), Sub-sec.(3) or Sub-sec.(4) of Sec.90 in respect of any matter relating to or in connection with, the constitution of a board including any election thereto; or (ii) any decision, order or award under Sub-sec.(2), Sub-sec.(3) or Sub-sec.(4) of Sec.90 in respect of any matter relating to, or in connection, with, any matter not being a money claim; (iii) any order of transfer, reference, withdrawal or re- transfer of a dispute under Sub-sec.(2) or Sub-sec.(3) of Sec.90. (2) (a) Any person aggrieved by any (i) decision under Sec.7, Sub-sec.(4) of Sec.23, Sub-sec.(6) of Sec.34; or (ii) refusal to register the society under Sec.9 of the amendment of the by-laws under Sec.11; or (iii) registration of amendment of the by-laws under Sub-sec.(2) of Sec.12; or (iv) approval of or refusal to approve the expulsion of a member under Sub-sec.(2) of Sec.25, the proposal to take loan under clause (c) of Sub-sec.(1) of Sec.105, the decision of the board under clause (ii) of Sub-sec.(i) of Sec.106, the regulations under Sec.108 or the removal of a member under the proviso to Sec.109; or (v) order under Sec.14, Clause (ii) of Sub-sec.(2) of Sec.21, Sec.36, Sub-sec.(1) of Sec.88, Sub-sec.(1) of Sec.89, Sec.137 or Sec.181, may appeal if such decision, refusal, registration, approval or refusal to approve or order is that of- (A) the Registrar for the State, to the government; or (B) any other person, to the Registrar, Explanation: For the purposes of this clause, “person aggrieved” means in relation to Sec.11 or Sec.12, the registered society. (b) Any person, who is refused admission to a registered society under Sub-sec.(2) of Sec.21 or who is aggrieved by any order of the liquidator under Sec.139, may aappeal to the Registrar.” 13. Under Sub-sec.(1) to Sec.152, an appeal is maintainable, before tribunal, against the order passed under Sub-secs.(2), (3), (4) of Sec.90. But there is proviso which says that nothing contained in clause (a) or (b) will apply to any decision, order or award under Sub-secs.(2), (3), (4) of Sec.90 in respect of any matter relation to, or in connection with, the constitution of a board including any election thereto, or appeal lies to tribunal against any decision, order or award under Sub-secs.(2), (3), (4) of Sec.90 in respect of any matter relating to or in connection, with any matter not being a money claim. It is clear therefrom that an appeal lies before tribunal only in regard to money claim. 14. Naturally, we have to go to Sub-sec.(2) to Sec.152, relevant portion of which I have already extracted. Sub-sec.(2) does not provide for right of appeal against the order passed by Deputy Registrar under Sec.90 of the Act either before first respondent or Registrar or before Government. On a reading of relevant portion of Act, I do not find any provision for appeal against the award passed by Deputy Registrar under Sec.90 of the Act. Remedy is only to file revision under Sec.153 of the Act. Since I do not find any right of appeal to second respondent, entertaining the same by first respondent was illegal and one without jurisdiction. 15. For the sake of finality, I will also consider whether the order passed by first respondent is legal. Order of recounting cannot be made as a matter of course. In this case, first respondent himself had admitted that the order of recounting was made only to give second respondent one more chance and therefore ordered recounting. To be a candidate for election, to have declared elected are all statutory rights under Tamil Nadu Co-operative Societies Act. Procedure for settlement of disputes is provided in Chapter VIII Rules 107 and 109 of Tamil Nadu Co-operative Societies Rules. Authorities under the act are also bound by the provisions or rules and they cannot act de hors, provisions of Act or Rules, on going by relevant provisions of Rules, I do not find provision for recounting. Procedure for settlement of disputes is provided in Chapter VIII Rules 107 and 109 of Tamil Nadu Co-operative Societies Rules. Authorities under the act are also bound by the provisions or rules and they cannot act de hors, provisions of Act or Rules, on going by relevant provisions of Rules, I do not find provision for recounting. Apart from the same, election petitioner will have to satisfy the conscience of authority and proof why he seeks recounting and how far authorities have violated provisions of Act by declaring the result of election. Election petitioner also cannot seek or recounting on the basis of certain assumption or for the purpose of fishing out evidence. Election petitioner will have to plead and prove that the election so far as the affected candidate is concerned, materially affected. 16. First respondent seems to have thought that election petitioner will have to be given an opportunity of making his representation under Rule 109 of Tamil Nadu Co-operative Societies Rules. I do not think that Rule 109 will have any application in this case. Dispute will have to be decided as per the procedure under Rule 107 and all affected persons must be made party to the election proceedings, If he is exercising power of appeal, naturally petitioner also must have been made party to appeal. In this case, petitioner is not made party but when he received appeal, he followed procedure under Rule 109. So long as petitioner is not made party to appeal. Petitioner can simply says that as against him, second respondent has not preferred any appeal. That defect cannot be cured by giving notice to make his representation. In that case, first respondent also will have no jurisdiction to condone delay. In all such cases, authorities assumed that the dispute is only between election petitioner and election officer. Election Officer is not an agent of any person, nor he can represent writ petitioner in such cases. 17. At the time when election results were declared second respondent did not have a case that counting was done improperly. Thereafter, before Deputy Registrar also recounting was done, where also it was found that there is no change in the result. First respondent cannot sit as if he is deciding dispute and pass order of recounting once again. Procedure adopted by him is per se illegal. 18. Thereafter, before Deputy Registrar also recounting was done, where also it was found that there is no change in the result. First respondent cannot sit as if he is deciding dispute and pass order of recounting once again. Procedure adopted by him is per se illegal. 18. I have already extracted the reason as to why first respondent passed order of recounting. An election dispute should not be decided on sympathy or for the reason that no prejudice would be caused to opposite party. Being statutory right, person complaining about election result will have to plead and prove statutory requirements and cannot get relief only on the basis of sympathy. 19. In the result, impugned proceedings of first respondent is quashed. First respondent is prohibited from proceeding with the appeal filed by the second respondent, which he had illegally entertained. 20. The writ petition is therefore allowed, however without any order as to cost. Consequently, W.M.P.No.20104 of 1997 is closed.