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Madhya Pradesh High Court · body

2010 DIGILAW 1116 (MP)

Sukhendra Singh v. Sukhendra Singh

2010-11-09

ALOK ARADHE, S.R.ALAM

body2010
ORDER Alok Ara Dhe, J. 1. Petitioner who has been elected as representative of District Central Cooperative Bank Limited, Rewa has filed the instant writ petition as public interest litigation seeking writ of quo-warranto for restraining Respondents 5 and 6 from participating in the management of District Central Cooperative Bank Limited, Rewa. 2. Facts leading to filing of the instant petition, briefly stated, are that Petitioner is a member of Sewa Sahkari Sanstha Maryadit, Banna, a primary society. Petitioner has been elected as representative of the said society in the District Central Cooperative Bank Limited, Rewa. Affairs of the aforesaid cooperative bank are governed by bye-laws. Chapter IV of the bye-laws deals with capital of the bank. Clause (a) thereof prescribes the mode of collection of share capital. Clause (b) provide that paid up capital of bank shall be Rs. 1 crore which shall be divided in five categories of shares. Shares falling in category (d) can be allotted only to members falling in categories (c), (d) and (e) of Clause 7(1) of the bye-laws. It is specifically provided that persons, holding share under category (c), (d) and (e) shall not be entitled to participate in the management of the Bank. Clause 7 of the bye-laws deals with membership of the Bank. Clause (c) provides that a public trust registered under the M.R. Public Trusts Act, 1951 can be inducted as a member of the Bank. Similarly Clauses (d) and (e) provide that a Firm, Company or other body corporate registered, established or constituted under any law for the time being or a society registered under the Societies Registration Act may be inducted as member of the Bank. It is averred in the writ petition that though power of Registrar for registration as 'cooperative' has been delegated to Joint Registrar yet Deputy Registrar, Cooperative Societies, Rewa wide orders dated 29.6.2007 and 3.7.2007 registered two cooperatives, namely, Mahima Beej Utpadak Swayatt Sakh Sahkarita Maryadit Hariharpur and Pradhan Beej Utpadak Swayatt Sakh Sahkarita Maryadit, Ajgarha. Thereafter in exercise of power under Section 53(13) of the 1960 Act, Joint Registrar constituted a committee and Respondent No. 5 was nominated as Chairman of the Bank. While acting as nominated Chairman of the Bank, Respondent No. 5 inducted three cooperatives as Member of the District Central Cooperative Bank. Thereafter in exercise of power under Section 53(13) of the 1960 Act, Joint Registrar constituted a committee and Respondent No. 5 was nominated as Chairman of the Bank. While acting as nominated Chairman of the Bank, Respondent No. 5 inducted three cooperatives as Member of the District Central Cooperative Bank. Decision of the Respondent No. 5 was ratified by the Managing Committee in its meeting held on 23.8.2007. Three cooperatives which were included as members of the Bank were included in category (b) along with marketing, processing and weavers industrial societies. It is the case of Petitioner that aforesaid three cooperatives could not have been kept in (b) category as they fall in category (d) as provided in Clause 7 (i) of the bye-laws. Since, aforesaid cooperatives fall under category (d) of Clause 7 (i) of the bye-laws, such category of members does not have any right to participate in the management of the Bank. Petitioner has alleged that three cooperatives were included in (b) category of membership in order to enable Respondents 5 and 6 to participate in the process of election. It is further alleged that Respondents 5 and 6 submitted their nominations as representatives of the two cooperatives included in membership category (b). One Rajendra Prasad Mishra submitted detailed objection (Annexure P-8) before the Returning Officer. However, the Returning Officer did not take cognizance of the aforesaid objection and accepted the nomination of Respondents 5 and 6. Ultimately Respondents 5 and 6 were declared elected as Directors from category (b). It is alleged by Petitioner that Respondents 5 and 6 are not entitled to participate in the management of the Bank and they have unlawfully usurped public offices of Member of Committee of District Central Cooperative Bank. 3. Petitioner submitted a complaint to the Returning Officer requesting him not to permit Respondents 5 and 6 to participate in the meeting of the Bank. On the basis of the complaint an enquiry was conducted by Deputy Registrar, Cooperative Societies, Rewa under the orders of Registrar. In the enquiry report it was found by enquiry officer that Respondents 5 and 6 are not entitled to participate in the management of the Bank. In the aforesaid factual scenario, Petitioner has approached this Court seeking a writ of quo-warranto restraining Respondents 5 and 6 from participating in the management of the District Central Cooperative Bank Rewa. In the enquiry report it was found by enquiry officer that Respondents 5 and 6 are not entitled to participate in the management of the Bank. In the aforesaid factual scenario, Petitioner has approached this Court seeking a writ of quo-warranto restraining Respondents 5 and 6 from participating in the management of the District Central Cooperative Bank Rewa. Petitioner has also sought a direction to Respondent No. 3 to forthwith convene a meeting of duly elected members for election of the Chairman, Vice-Chairman and representative. Petitioner has further sought a direction to initiate appropriate disciplinary and criminal action against the authorities of the Cooperative Department who have unlawfully and deliberately permitted usurpation of public office by Respondents 5 and 6. 4. Respondents 1 to 4 have filed the return inter alia, stating that Petitioner has approached this Court without availing alternative and efficacious remedy by raising an election dispute under the provision of Section 64(2)(v) of the Madhya Pradesh Cooperative Societies Act, 1960. It has further been averred that Petitioner in fact is challenging the nomination of Respondents 5 and 6 for the post of Director of Bank. It is averred that grievance with regard to illegal acceptance of nomination paper can be raised in an election dispute. 5. Respondent No. 5 has filed return in which it has been pointed out that Petitioner is guilty of mis-representation of fact. Respondent No. 5 was nominated as Chairman of Bank in continuation of the order passed under Section 53(13) of the 1960 Act. Name of Respondent No. 5 was recommended on 8.12.2006 by Registrar, Cooperative Societies vide Annexure R-5/1. Petitioner has deliberately not filed the copy of the order by which Respondent No. 5 was nominated as Chairman of the Bank. It has further been submitted that Respondent No. 5 has been nominated as he was already the representative of Prathamik Upbhokta Sahakari Bhandar Ward No. 1 which is a society belonging to (a) category. A copy of the certificate has been annexed as Annexure R-5/3. Respondent No. 5 has also annexed certificate issued by Assistant Registrar, Cooperative Societies, Rewa to the effect that Petitioner is Member of Prathamik Upbhokta Sahakari Bhandar Ward No. 1. It has further been averred in the return that on 6.10.2006 Respondent No. 5 was elected as a representative from the said society. Copy of the proceedings has been annexed as Annexure R-5/5. It has further been averred in the return that on 6.10.2006 Respondent No. 5 was elected as a representative from the said society. Copy of the proceedings has been annexed as Annexure R-5/5. It has further been submitted that nomination of Respondent No. 5 has been done in the capacity of representative of Prathamik Upbhokta Sahakari Bhandar Ward No. 1 and not in the capacity of representative from Pradhan Beej Uptadak Swayatt Shakh Sahakarita Maryadit, Ajgarha. The object of aforesaid society is to produce and market the seeds taken from the members of the society and in view of Section 10 of the 1960 Act, the marketing society is entitled to be categorised as (b) category society and therefore, the society has rightly been placed in 'b' category in which Respondent No. 5 has been elected as representative. It has also been pleaded that on earlier occasion vide Annexure R-5/8 similar direction was issued in respect of society of which Respondent No. 5 is the representative, be placed in the category of marketing society. 6. This Court vide order dated 15.2.2008 directed that notices be issued for convening the meeting so that election of Chairman and other office-bearers could take place. Pursuant to the order of this Court meeting was convened on 22.2.2008. Against the order dated 15.2.2008 Respondent No. 5 had filed S.L.P. before the Supreme Court which has been dismissed by order dated 7.3.2008. After the order was passed by the Supreme Court, elections were held for the post of Chairman, Vice-Chairman and representatives and results have duly been notified on 20.3.2008. Thus, relief contained in para 7(ii) of the writ petition has been rendered infructuous. 7. We have heard the Learned Counsel for the parties. 8. Shri Sanjay Kumar Agrawal, Learned Counsel for the Petitioner while referring to Chapter IV of the bye-laws and Clause 7(1) of bye-laws contended that society of which Respondents 5 and 6 were elected as representative fall in category 'D' and, therefore, Respondents 5 and 6 were not entitled to participate in the management of the Bank. He has also drawn our attention to the findings contained in enquiry report (Annexure P-12) in support of his contention that Respondents 5 and 6 are not entitled to participate in the management of the Bank. He has also drawn our attention to the findings contained in enquiry report (Annexure P-12) in support of his contention that Respondents 5 and 6 are not entitled to participate in the management of the Bank. Learned Counsel has relied on the decision of the Supreme Court in K. Veakatachalam v. A. Swamickan and Another AIR 1999 SC 1723 to contend that this Court in exercise of power under Article 226 of the Constitution of India can declare that election of Respondents 5 and 6 is illegal inasmuch as they were not qualified to contest the election. It is further submitted by him that continuance of Respondents 5 and 6 amounts to illegal usurpation of public office and they are not entitled in law to hold the office. 9. On the other hand, Shri Kumaresh Pathak, learned Deputy Advocate General contended that instant writ petition should not be entertained in view of the alternative efficacious remedy available to the Petitioner under Section 64(2)(v) of the 1960 Act. It has further been contended that there is no element of public interest involved in the instant writ petition. 10. Learned Counsel for Respondent No. 5 while supporting the submission made by learned Deputy Advocate General, contended that Respondent No. 5 was nominated as he was representative of Prathamik Upbhokta Sahakari Bhandar Ward No. 1 which is a society falling under the category 'a'. Respondent No. 5 has not been nominated in the capacity of representative from Pradhan Beej Uptadak Swayatt Shakh Sahakarita Maryadit, Ajgarha. Therefore, the grievance raised by Petitioner is misconceived. It has also been contended that the instant writ petition is not genuine public interest litigation and the Petitioner has vested interest inasmuch as he is also representative of the District Central Cooperative Bank Limited, Rewa. 11. We have considered the submissions made by Learned Counsel for the parties. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and Ors. AIR 2006 SC 3106 , the Supreme Court has held that a petition praying for a Writ of Quo Warranto being in the nature of public interest litigation, is not maintainable at the instance of a person who is not unbiased. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and Ors. AIR 2006 SC 3106 , the Supreme Court has held that a petition praying for a Writ of Quo Warranto being in the nature of public interest litigation, is not maintainable at the instance of a person who is not unbiased. From the averments made in the petition we find that Petitioner is a member of Sewa Sahkari Sanstha Maryadit, Banna, and has been elected as representative of the said society in the District Central Cooperative Bank Limited, Rewa. Therefore, the Petitioner cannot be said to be a person who is unbiased as he has been elected as representative of the District Central Cooperative Bank Limited, Rewa in the same election in which Respondents 5 and 6 have been elected. Therefore, at the instance of Petitioner, the present writ petition is not maintainable as public interest litigation. Apart from this Respondent No. 5 has taken a categorical stand that he has been nominated as chairman of the Bank in the capacity of representative of Prathamik Upbhokta Sahakari Bhandar Ward No. 1 and not in the capacity of representative from Pradhan Beej Uptadak Swayatt Shakh Sahakarita Maryadit, Ajgarha. Aforesaid stand has not been controverted by Petitioner by filing rejoinder. In view of the interim order passed by this Court on 15.2.2008 elections have already been held on 20.3.2007. 12. It is well settled in law that it is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. In this connection, reference may be made to me decisions of the Supreme Court in Gujarat University v. N, U. Rajguru AIR 1988 SC 66 and United Bank of India v. Satyawati, Tandon (2010) 8 SCC 110 . Now, the Petitioner has the efficacious alternative remedy under Section 64(2)(v) of the 1960 Act as elections have already been held Besides that Supreme Court in Guruvayoor Devaswom Managing Committee v. C.K. Rajan (2003) 7 SCC 546 held that principle of exhaustion of alternative remedy applies to public interest litigation as well. The forum created under the Act for ventilation of grievance of the affected persons should be moved at the first instance. Therefore, no interference in the matter is called for. 13. The forum created under the Act for ventilation of grievance of the affected persons should be moved at the first instance. Therefore, no interference in the matter is called for. 13. Accordingly, the writ petition, being bereft of any substance, deserves to and is hereby dismissed.