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1975 DIGILAW 199 (KER)

ARVINDAKSHA PANICKER v. PERUMBALAM SERVICE CO-OPERATIVE SOCIETY

1975-08-06

K.BASKARAN

body1975
Judgment :- 1. The three petitioners and respondents 5 to 7 are the members of the Perumbalam Service Co-operative Society Ltd. No. 46, for short the Society. As per the constitution and bye-laws of the Society, the management of the Society is vested in a Managing Committee comprising nine members out of whom seven are to be elected from seven wards. The election to the Managing Committee is to be held once in two years. The petitioners as well as respondents 5 to 7 were candidates from Ward Nos. 5 to 7. Aggrieved by the decision of the second respondent the Returning Officer, accepting the nomination of respondents 5 to 7 overruling the objections of the petitioners, and rejecting the nomination of the second petitioner, this writ petition has been filed by the petitioners praying for a writ of certiorari quashing the order of the Returning Officer accepting the nomination of respondents 5 to 7, and for a writ of mandamus directing the second respondent to accept the nomination of the second petitioner and to reject the nominations of respondents 5 to 7. Some incidental reliefs also are sought in the petition. 2. It is averred in the writ petition that respondents 5 and 7 being persons in default of payment to the Society are not eligible for being elected as members of the committee of the society under S.28 of the Kerala Co-operative Societies Act, 1969, (for short the Act) by virtue of R.44 (1) (c) (i) of the Kerala Co-operative Societies Rules, 1969, and that the 6th respondent is not eligible to contest the election to the committee by virtue of clauses (1) (c) (i), (d), (j) and (m) of R.44 of the said Rules, and as such the nominations filed by them ought to have been rejected on these grounds; that the second petitioner's nomination was rejected at 12.45 p. m. on the alleged ground of disparity in the signature of the supporter or the endorser, while the time for objection and scrutiny was to expire at 1 p. m., without leaving practically any time to enable the second petitioner to bring the endorser and prove the genuineness of the signature. 3. 3. The first respondent is the Society, represented by its Secretary; the second respondent, as already stated, is the Returning Officer (appointed by the Deputy Registrar of Co-operative Societies for conducting the election to the Board of management of the Society); the 3rd respondent is the State of Kerala; and the 4th respondent is the Registrar of Co-operative Societies. 4. On behalf of the 3rd respondent the counter affidavit has been sworn to by an Under Secretary to the Government in Agriculture (Co-operation) Department contending therein, inter alia, that as per S.69 of the Act any dispute in connection with election to the Committee of a Co-operative Society is to be settled by the Registrar of Co-operative Societies if a petition to that effect is referred to him within one month from the date of election; that this Court has examined the above aspect in detail in the decision reported in Narayanan Nambiar v. The Dy. Registrar of Co-operative Societies (1973 KLT 213) and held that the dispute in connection with election can be raised only after the election; that the dispute of the petitioners is premature; and the original petition is liable to be dismissed on that ground alone. In the counter affidavit filed by the 6th respondent it is contended, inter alia, that the second petitioner's nomination was rejected and the 6th respondent's nomination was accepted by the 2nd respondent after thorough scrutiny of the records of the Society and other relevant papers, that the election was conducted on 22121974, that a dispute regarding the validity of a nomination of a candidate for election to the Managing Committee will come under S.69 of the Act, that the petitioners are not entitled to invoke the extraordinary jurisdiction of this Court under Art.226 and 227 of the Constitution when alternate remedy is available to them, all the more so when the Returning Officer has jurisdiction to decide the question involved after scrutiny of the records and other evidence; the petitioners can challenge the decision of the Returning Officer, whether it is with respect to the rejection of the nominations or rejection of the objections, before the Registrar; and different reliefs are sought by the different petitioners against different persons under one petition, and such a petition will not lie. 5. 5. We will now take up the preliminary objection regarding the maintainability of the petition, raised by the third respondent purporting to be based on the ruling of the Division Bench of this Court in Narayanan Nambiar v. The Dy. Registrar of Co-operative Societies (1973 KLT 213). After having adverted to sub-sections (1) and (2) of S.69 of the Act in Para.4 of the judgment Govindan Nair J., as he then was, who spoke for the Bench, has stated as follows in Para.5 of the decision: "Sub-s. (3) provides that the period of limitation is one month from the date of the election. It is also shown that the disputes in connection with the election can be raised only after an election. 1st respondent therefore had no jurisdiction under S.69 of the Act on the eve of the election that was fixed for the 25th June to deal with an application for stay purporting to be based on certain disputes pertaining to the election and pass the order Ext. P-2 on 23 6 72 staying the election." The contention on behalf of 3rd respondent is that as this Court has ruled that an election dispute under S.69 of the Act can be raised before the Registrar only after the result of the election has been declared, that bar is equally applicable to the maintainability of writ petitions challenging anything pertaining to any election to the Board prior to the stage of declaration of the results, and as such this writ petition is to be declared to be premature, and has to be dismissed without going into the merit of the case. This contention raised by the 3rd respondent is adopted by Sri C. S. Narayanan, counsel for respondents 5 to 7 also. Sri S. Parameswaran, counsel for the petitioners, has argued that the very reason that compelled the petitioners to approach this Court was that in terms of the ruling given by this Court, they were precluded from seeking any relief, however strong their case might be, from the Registrar under the provisions of S.69 of the Act till the result of the election is declared. 6. 6. I find considerable force in the contention of the counsel for the petitioners that merely for the reason that a limitation has been imposed on the Registrar as to the point of time at which he could assume jurisdiction regarding an election dispute, such limitation should not be deemed to be applicable to this Court in regard to exercise of its jurisdiction under Art.226 and 227 of the Constitution. In my opinion the provisions contained in sub-section (3) of S.69 of the Act, as interpreted by the Division Bench of this Court, does not in any way affect the jurisdiction of this Court under Art.226 or 227 of the Constitution. It is, however, well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy, without invoking the special jurisdiction of the High Court to issue prohibitive writs. Though existence of the alternate remedy does not oust the jurisdiction of the courts to issue writs, it is a thing which should be taken into account in the matter of granting writs, and where such remedy exists, it would be a sound exercise of discretion to refuse to interfere in a petition under Art.226 of the Constitution unless there are good reasons for that course. 7. In this case, in view of the provision contained in S.69 (3) of the Act, which has been interpreted by the Division Bench of this Court to have the effect of ousting the jurisdiction of the Registrar to entertain an election dispute at any stage before the declaration of the result, the petitioner is left without an effective remedy, and as long as there is no constitutional or statutory inhibition on the High Court exercising jurisdiction, it cannot be said that the writ petition, in appropriate cases, is not maintainable, and has to be dismissed without going into the merit of the case. The question, no doubt, is one of propriety of interfering with the exercise of jurisdiction with the orders of the Returning Officer before any election is held. The exercise of jurisdiction is discretionary; it would ordinarily be exercised subject to certain self-imposed limitations. The question, no doubt, is one of propriety of interfering with the exercise of jurisdiction with the orders of the Returning Officer before any election is held. The exercise of jurisdiction is discretionary; it would ordinarily be exercised subject to certain self-imposed limitations. The well recognised principle of election is that the election should not be held up, and the person aggrieved should not be permitted to vindicate his individual interest in derogation of the general interest of the people which requires that election should b2 gone through according to the time schedule. 8. It is in the above background that we have to examine whether the petitioners have made out a case for the exercise by this Court of its extraordinary jurisdiction under Art.226 or 227 of the Constitution. The rejection of the nomination of the 2nd petitioner and the acceptance of the nomination of respondents 5 to 7 have been made by the Returning Officer after scrutiny. Whether, in doing so, he has committed any error is a matter which can be established only after a proper investigation into the facts of the case which would be beyond the scope of this writ petition. The petitioners have no case that the 2nd respondent had no jurisdiction to reject the nomination of the second petitioner or to accept the nomination of respondents 5 to 7. There is no prayer in the writ petition for setting aside the election, presumably for the reason that on 20-12 1974, when the writ petition was filed, the election was not held. The election has, however, been held subsequent to the filing of the writ petition; but the writ petition has not been amended to include the relief of setting aside the election in respect of respondents 5 to 7. The petitioners have therefore to pursue their remedy before the Registrar under S.69 of the Act. This being the position, I am satisfied there is no justification for granting the relief sought for in this writ petition. 9. The further contention, whether the there petitioners together could have filed a petition jointly to seek reliefs on different grounds, raised by respondents 5 to 7, need not be gone into in view of the conclusion I have already reached on other points, which is sufficient to dispose of the writ petition. The writ petition is, therefore, dismissed, however, without any order as to costs. Dismissed.