Ramrakh and Others vs State of Rajasthan and Others

A. K. Mathur, J.—In both these writ petitions, a common question of law was agitated as preliminary objection. Therefore, both these writ petition are taken together for disposal and they are disposed of by this common order.

The question which has been canvassed in both these writ petitions is that the petitioner has an alternative remedy Under Sections 75 and 77 of the Rajasthan Co-operative Societies Act, 1965. Therefore, these writ petitions should not be entertained.

For the convenient disposal of both these writ petitions, the facts given in the case of Ramrakh v. State of Rajasthan and Ors. (S.B.Civil Writ Petition No. 110 of 1991) are taken into consideration.

The petitioner by this writ petition has prayed that the non-petitioner No. 3 may be directed to conduct the election as per Annex. 2 and deletion of the names of 144 persons from the voters list be struck down.

The non-petitioner No. 2 is a Cooperative Society registered under the Rajasthan Cooperative Societies Act, 1965 (referred to herein after as ''the Act'') and the petitioner is its Member and his name appeared in the voters list in the category of small framers at S.No. 12 and his enrolment No. is 286. The election of the Cooperative Society was announced by the Registrar vide order dated 20.11.1990 and it was directed that the election will take place on 16.1.1991. In pursuance of the election programme, the proposed voters list was published on 21.12.1990, which has been placed on the record as Annex. 2. In Annex. 2, 144 member whose names appeared from S.No. 109-153,155-200 totalling to 91 belong to the category of ordinary members, S.No. 1-14 in the category of small farmers and S.No. 7-9, 11-16 in the category of Artisan and S.No. 39 to 63 and 67-71 totalling to 30 in the category of schedule caste and scheduled tribes, have submitted their membership forms before 3.11.1990 and the fee was also paid and they were enrolled as Members in the list of Members maintained regularly by the Society. Thus according to the petitioner, they who are in all 144 are the members of the Co-operative Society as they have and their fees paid enrolled as Members. But in the final list which was published on 28.12.1990 their names were deleted and names of 38 persons whose names do not find mention in the proposed voters list were added from S.No. 101-115 in the General category and S.No. 3 in small farmers category and 40-55 and 56-63 in the scheduled caste and scheduled tribe category, in Annex. 3 i.e. the final list. The petitioner approached the Election Officer and all concerned authorities to inquire about non inclusion of names but no reply was given to him. Aggrieved against this order the petitioner has approached this Court by filling the present writ petition challenging the exclusion of 144 members in the final voters list.

The writ petition was admitted and an interim oreder was passed on 8.1.1991 to the effect that any person who wants to file nomination then he may be allowed to do so. The another writ petition i.e. S.B. Civil Writ Petition No. 121/1991: Rana Ram and Ors. v. State of Rajasthan and ors. was also admitted and an interim order was also made to the effect that the election may proceed and the petitioners may be permitted to participate in the election provisionally but the-result will not be announced.

The respondents in pursuance of the notice appeared and raised the preliminary objection as state above.

Mr. Joshi, Mr. Sharma and Mr. Kharlia, learned counsel appearing for the respondents submit that such kind of arbitrary action can be challenged by filing the writ petition and the remedy provided Under Sections 75 and 77 of the Act cannot provide and efficacious remedy to the petitioner.

Mr. Mridul, Mr. Bhandari, Mr. Mathur and Mr. Singhvi, learned counsel submitted that Section 75 is a specific remedy provided under the Act and Under Sub-Section (3) of Section 77 even the Registrar can pass an interlocutory order. Therefore, learned counsel submitted that when there is a statutory alternative remedy available to the petitioners under the Act then there is no reason why the petitioners should not be asked to first exnaust that remedy.

In order to appreciate the controversy raised by the learned counsel for the parties, it is necessary to refer the relevant provisions of law on the subject. Section 75 of the Act reads as under:

Disputes which may be referred to arbitration, (1) Not withst anding any-thing contained in any for the time being in force, if any dispute touching the Constitution, management or the business of a co-operative society arises--

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

(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committe or any officer, agent or employee of the society, or

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

(d) between the society and any other cooperative society, or

(e) between the society and the surety of member, past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction u/s 66, whether such a surety is or is not a member of a society, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect or such dispute.

(2) For the purposes of Sub-section (1), the following shall be deemed to be disputes touching the constitution, management of 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 the 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 principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal 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 a dispute touching the constitution, management or the business of a cooperative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court." Secition 77 reads as under:

Reference of disputes to arbitration--

(1) The Registrar may, on receipt of the reference of a dispute u/s 75--

(a) decide the dispute himself, or

(b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf, or

(c) refer it for disposal to one arbitrator.

(2) The Registrar may with draw any reference transferred or referred for disposal Under Sub-section (1) and either decide it himself or transfer or refer it again for disposal to another person or arbitrator mentioned in clauses (b) or (c) of that Sub-section if the person or arbitrator to whom the dispute was first transferred or referred--

(i) dies, resigns or is transferred, or

(ii) has become incapable of acting or against: whom a complaint has been received regarding his misconduct or corruption; or

(iii) neglects or refuses to act.

(3) The Registrar or any other person to whom a dispute is referred for decision under this section may, pending the decision of the dispute, make such interlocutory orders as he may deem necessary in the interest of justice.

Section 75(2)(c) specifically provides that any dispute arising in connection with the election of any officer of the society can be resolved by arbitration u/s 75. Sub-section (3) of Section 77 further provides that the Registrar or any other person to whom a dispute is referred for decision pending decision of the dispute can make such interlocutory orders as he may deem necessary in the interest of justice. Both these provisions apparently make it clear that even an election dispute can be resolved by arbitration u/s 75 and u/s 77 (3)of the Act by the Registrar or any person authorised in this behalf and has also power to pass such interlocutory orders as he may deem necessary in the interest of justice.

Mr. Joshi and others strenuously urged before me that u/s 75(2)(C)a dispute can only be referred after the election has taken place. But this interpretation raised by the learned counsel is not sustainable for the simple reason that a bare perusal of the provision would show that this interpretation raised by the learned counsel is not borne out from the plain language of the section. The expression ''any dispute'' is of very wide import and any matter be it the preparation of voters list or any matter connected with the eleciton can be made subject matter of dispute. Therefore, to say that this provision can only be invoked after the election is held is not correct reading of the provision.

Before I refer to the decisions referred to by the learned counsel for the petitioner, I would like to first refer to the cases of this Court which have been referred by the learned counsel for the respondents on this issue.

In Bharat Lal Dugal v. The Registrar, Sahakari Samities Raj. Jaipur and Ors. 1987 (I) R.L.R. 730 a Division Bench at Jaipur in the matter of legality of voters'' list has taken the view that this dispute can be resolved Under Seciton 75 of the Act. It was observed as under:

The preparation of the voters list is a part of the eleetion process and a dispute relating to the legality of the voters'' List is, therefore, a dispute arizing in connceting with the election of the members of the managing committee. More over, there is a rerious dispute on question of fact which can only be determined on the basis of evidence and said dispute can be properly adjudicated in proceeding Under Scetion 75 "of the Act. In our opinion the remedy u/s 75 of the Act is an efficacious remedy for decision of the dispute raised by the petitioner in this writ petition and in the circumstances we are of the opinion that this writ petition cannot be entertained.

Similarly, in Kanwar Pal v. State of Raj. and Ors. 1987 (II) R.L.R. 128 a Division Bench at Jaipur has also taken the same view. It was observed as under:

Alternative remedy--Dispute raised by petitioner is regarding non-inclusion of his name in final voter''s list--Held, preparation of voters list is a part of election process and, therefore it is a dispute arising in connection with election and efficacious remedy lies u/s 75 of Act.

Similarly a Division Bench at Jodhpur also in the case of Raju Ram v. Gram Sewa Sehkari Samiti Momasar and Ors. D.B. Civil Writ Petition No. 2412/86 decided on 15.10.1987 has taken the same view and it has been held as under:

By virtue of Sub-section 2 (c) of Section 75 of the Act, any dispute arising in conneciton with the election of any officer of the society falls within the ambit of dispute touching the constitution, management or the business of a cooperative society and as such falls within the ambit of Section 75 of the Act.

My attention was also invited to another Division Bench decision of Jodhpur delivered in the case of Ram Niwas v. State and Ors. D.B. Civil Writ Petition No. 2903/88, decided on 5.9.1988, wherein the court observed that since the election process has already started therefore, the court declined to interfere. It was further observed that it will be open to the petitioner to raise an objection u/s 75 of the Co-operative Societies Act.

Therefore, the unanimous view of the successive Division Benches is that the election matters and even preparation of voters list can be resolved by arbitration u/s 75 of the Act. Therefore, this Court has time and again held that such disputes can be resolved u/s 75 of the Act and it provides a statutory alternative remedy. Therefore, the Court refrained from interferring in the matter.

Mr. Joshi, learned counsel has invited my attention to Bar Council of Delhi and Others Vs. Surjeet Singh and Others, , Siddappa Yellappa Kundargi Vs. The Election Officer and Another, , K.M. Bhaskaran and Ors. v. The Returning officer and Ors. 1983 Cri L J 209 ; Akal Raj Mehta v. State of Rajasthan and Ors. 1982 Cooperative Law 55; Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, and K. Govindan v. Dy. Registrar of Co-op. Societies, K. Govindan Vs. Dy. Registrar of Co-op. Societies, Cannanore and Others, Except two cases rest of the cases are of the High Court may be of Karnataka, Kerala etc. But since the Division Bench of this Court have consistently taken the view that Section 75 provides an effective remedy, therefore, the reterence to the decision of the other High Courts cannot be of any avail to Mr. Joshi.

So far as the Bar Council of Delhi''s case (supra) is concerned, that has also been considered by the Division Bench and in this case the question was not of challenging the voters list alone but the question of validity of Rule 3 (j) ''s proviso of the Bar Council of Delhi Election Rules, 1968 was also challenged and the same was declared invalid. Therefore, this case is wholly distinguishable.

Similarly in the case of Calcutta Discount Co. ''s case (supra) it was observed that the Income Tax Officer was acting without jurisdiction and in that context it was held that the remedy u/s 66(2) of the Income-tex Act though available but still there is no sufficient reason for refusing the party quick relief by a writ or order prohibiting the authority acting without jurisdiction from continuing such action.

It is true that there is no prohibition if the court is satisfied that the action of the respondent is without jurisdiction, the court can interfere in the matter. The existence of alternative remedy is no bar for the court to interfere in the matter but ordinarily this court will not interfere if the remedy provided under the Act can grant an effective relief. In the present case, as mentioned above an effective remedy has been provided under the Act and so much so Under Sub-section (3) of Section 77 a power has been conlerred on the Registrar or any person asuthorised in this behalf under the Act to pass an interlocutory order also. Therefore, when the effective/efficacious alternative remedy is available then this Court should not exercise remedy is available then this Court should not exercise its extraordinary jurisdiction.

Learned counsel has also submitted that in Ajit Kumar and Ors. v. State of Rajasthan and Ors. 1989 (2) R.L.R. 616 this Court has interferred the matter under the Rajasthan Cooperative Societies Act, 1965, In this case the question was of interpretation of provisions of the Act and the Rules and from what stage the election should start once the stay order was granted by the High Court is vacated or modifieod. Since the questions of interpretation of various provisions of the Act and the Rules was involved, therefore, the enforcement of the remedy u/s 75 of the Rajasthan Cooperative Societies Act was by-passed.

Similarly my attention was also invited to Chaina Ram v. State of Raj. and Ors. 1988 (1) R.L.R. 363, an another division bench judgment where the question was whether the Registrar has power and authority to postpone the election of the Society when process tor election has already started by publishing the election programme and nomination papers have been invited and filed. In that context it was observed that the Registrar has no power u/s 75 or 128 to stay the election process when the proceedings have commenced. But in this case the attention of the division bench was not invited to Sub-section (3) of Section 77 of the Act wherein it has been clearly laid down that the Registrar or any person so authorised in this behelf may dispose of dispute and he can also pass an interlocutory order as he may deem necessary in the. interest of justice. Thus, this judgment is also of no assistance to the petitioner.

In the result, it is held that the petitioner has a statutory alternative remedy Under Sections 75 and 77 of the Rajasthan Co-operative Socieities Act, 1965 and, therefore, they should first avail that remedy before approaching this Court. The petitioners have also raised other questions like inclusion or exclusion of names from the voters list by the election officer etc. since I have taken the view thet the petitioners have, alternative remedy, therefore, I need not dwell on this question. The preliminary question raised by the respondents is upheld and the writ petitions are dismissed. As the petitioners have statutory alternative remedy. Therefore, they should first exhaust that remedy before approaching this court