Anil Kumar vs State of Haryana

Paramjit Singh Patwalia, J.—Instant writ petition has been filed under Article 226 of the Constitution of India for setting aside the action/rejection order dated 25.06.2014 (Annexure P-2 colly) passed by respondent no. 3 vide which nomination papers submitted by the petitioners for election of the Board of Directors have been rejected and for declaration of entire election process of the Board of Directors, Jhajjar Central Cooperative Bank, Jhajjar as illegal, void and without jurisdiction.

Shorn of unnecessary details, facts relevant for disposal of instant petition are to the effect that respondent no. 3-Returning Officer-cum-Deputy Registrar, Cooperative Societies, Rohtak issued an election programme and informed all the members and voters with regard to the conduct of election of Board of Directors, of the Jhajjar Central Cooperative Bank Ltd. Jhajjar on 13.07.2004 for which nominations were invited. The same were to be filed upto 24.06.2014 in the office of Deputy Registrar Cooperative Society Rohtak. In pursuance of the said programme, the petitioners submitted their nomination papers which were rejected by the Returning Officer vide order dated 25.06.2014 recorded on the nomination papers on the ground that information filed by the candidate at Serial No. 1 in all the three forms was found to be incomplete with regard to approved voter list of Jhajjar, in view of Rule 7 Appendix ''A'', the order of rejection of nomination papers is contrary to the provisions of Haryana Cooperative Societies Act and Rules framed thereunder.

In pursuance of notice of motion, respondent no. 5 filed reply and took a preliminary objection that the petitioners have concealed material facts from this Court that result of unopposed candidates has already been declared on 27.06.2014 by the Returning Officer for Zone Nos. 3, 4, 5, 6, 8, 9 and 10. It is one of the grounds that any dispute arising in connection with the election of any officer of the cooperative society is a dispute within the meaning of Section 102 of the Haryana Cooperative Societies Act, 1984 (in short ''1984 Act''). Sub- section (4) of Section 102 provides that limitation for raising the dispute is 30 days from the date of declaration of the result. Otherwise also, once the election process has started, the same cannot be challenged in view of Section 28(2) of the ''1984 Act''. It was also pleaded that elected candidates have not been impleaded as respondents, therefore, instant writ petition be dismissed.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioners vehemently contends that since nomination papers of the petitioners have been rejected in violation of the rules and bye-laws of the Haryana Cooperative Societies Rules, rejection order is not valid. There is no dispute about the facts and no evidence is to be led, the question can be decided in the light of rules and regulations of the Haryana Cooperative Societies. The writ petition is maintainable without resorting to the alternative remedy. In support of his contentions, learned counsel relies upon Kuldip Singh vs. State of Punjab 1994 PLJ 268 and Nawab Singh vs. Registrar Coop. Societies Haryana 1985 R.R.R. 536.

Per contra, learned State counsel, learned counsel for respondent no. 4 and learned counsel for respondent no. 5 jointly contended that election petition challenging rejection of nomination paper is the efficacious remedy available under the ''1984 Act'' and writ petition under Article 226 of the Constitution of India cannot be entertained. The Board of Directors have already been elected. In this regard, reliance has been placed upon Umesh Shivappa Ambi and Others Vs. Angadi Shekara Basappa and Others, and Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others,

I have considered the rival contentions of learned counsel for the parties.

Before proceeding further, it would be appropriate to reproduce Sections 28 and 102 of the ''1984 Act'':

Election and tenure of committees:- (1) The members of the committee of a co-operative society shall be elected in the manner prescribed and no person shall be so elected unless he is a member of the society.

Provided that at least one member belonging to the Scheduled Caste and two women members shall also be represented through election in every committee of a cooperative society in the manner prescribed:

Provided further that at least one member belonging to backward class shall also be represented through election in the committee, if their number is ten per centum or more of the total membership of the society, in the manner prescribed.

1.A The State Government may, by notification, constitute an election authority for the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections of a prescribed cooperative society.

Provided that till the time such authority is constituted, the election of such society shall be got conducted by the Registrar or the existing committee of such society, as the case may be.

(2) The election process once started shall not be postponed and disputes, if any, pertaining to the election, shall be entertained after the completion of the election process, in accordance with the provisions of this Act.

Explanation:- The election process shall be deemed to have started from the date of the order of the election authority fixing the date of election.

(3) The committee of each society shall, before the expiry of the term of its committee arrange for the election of a committee in accordance with its bye-laws failing which the Registrar shall arrange to hold such elections within a period of ninety days after the expiry of the term of the committee at the cost of the society and the elected members of the outgoing committee shall be debarred from contesting the elections of the committee of any cooperative society for a period of five years from the date of the expiry of the term of the outgoing committee:

Provided that no such order shall be passed by the Registrar unless an opportunity of being heard has been given.

(4) The committee shall, unless superseded earlier by the Registrar, hold office for a period of five years from the date of election and the term of office bearers shall be coterminous with the term of the Committee:

Provided that irrespective of anything contained in the bye-laws, the committee may fill a casual vacancy in the committee by election, if the term of office of the committee is more than half of its original term, or by co-option, if the term of office of the committee is less than half of its original term, as the case may be, out of the same class of members in respect of which the casual vacancy has arisen.

(5) Notwithstanding anything contained in the bye-laws of a co-operative sugar mills, the members who are employees in the mills, shall constitute one separate zone for the purpose of election to the members of the committee thereof. In case no such member has been elected, the members of the committee shall co-opt one such member. If no such member is elected or co-opted as a member of the committee, the Registrar may nominate one such member as a member of the committee.

(6) No individual shall, at any time, be a member of a committee of more than two primary societies, one central society and one apex society:

Provided that nothing in this sub-section shall apply to a member nominated under sub-section (1) of section 29 or to a member of the committee of an apex or central society nominated to serve on the committee of another apex or central society, as the case may be, in accordance with the provisions of their bye-laws.

Disputes for arbitration:- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society other than a dispute of disciplinary action or dispute relating to service matters in respect of a paid servant of a society arises-

(a) among members, past members and persons claiming through a member, past member or deceased member; or

(b) between a member, past member or persons claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present; or

(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, agent or employee or the nominee, heirs or legal representatives of any deceased officer, agent or employee of the society; or

(d) between the society and any other society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society;

such disputes shall be referred to the arbitration of the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.

Provided that any proceedings pending or concluded u/s 101 shall not constitute a dispute touching the constitution, management or the business of the society.

(2) For the purpose of sub-section (1) the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely:-

(a) a claim by the society for any debt or demand due to it from a member, or nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principle debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principle debtor as a result of the default of the principle debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of any officer of the society.

(3) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.

(4) No dispute arising in connection with the election of committee member or officer of the society shall be entertained by the Registrar unless it is referred to him within thirty days from the date of the declaration of the result of election.

There is no dispute with regard to the proposition of law laid down in the judgments cited by learned counsel for the petitioners, however, in Umesh Shivappa Ambi and others (supra), the Hon''ble Supreme Court has held as under:

It is now well settled that once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and this Court will not ordinarily interfere with the elections under Article 226 of the Constitution. (See in this connection K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, Para 4, K.K. Shrivastava v. B.K. Jain). The Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes. In the present case, u/s 70(2)(C) of the Karnataka Cooperative Societies Act, 1959 any dispute arising in connection with the election of a President, Vice-President, Chairman, Vice-Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the Registrar by raising a dispute before him. The Registrar is required to decide this in accordance with law.

In view of Section 102 of ''1984 Act'' and the settled proposition of law, it is not a case for interference under Article 226 of the Constitution of India.

Hence, the instant writ petition is dismissed.

However, the petitioners are relegated to the alternative remedy available to them in accordance with law. If the petitioners file election petition within 15 days on receipt of certified copy of this order, the same shall be decided within two months after effecting service upon the opposite party.