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2012 DIGILAW 28 (HP)

Hari Krishan Verma v. State Of H. P.

2012-01-09

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. Petitioner is member of the Bathalang Primary Cooperative Consumer Store. Respondent No. 3 society was registered in the year 1954, under the Cooperative Societies Act, as was in vogue at that point of time. The Assistant Registrar, Cooperative Societies vide office order dated 19.3.2007 was directed to send detailed comments on the compliance of the audit note of respondent No. 3-society. The Assistant Registrar vide letter dated 18.4.2007 has recommended to take action u/s 37 of the H.P. Cooperative Societies Act, 1968 (hereinafter referred to as the Act for brevity sake) against the management of respondent No. 3 in view of unsatisfactory working and non-compliance of the provisions of the Act, Rules and Bye-Laws. Thereafter, a notice was issued to respondent No.3 on 27.4.2007 with regard to irregularities and illegalities committed in performance of the duties imposed by the Act, Rules and Bye-Laws enlisting therein the following irregularities: 1. That the Board of Directs of the Union has failed to convene the Annual General House of the Union as per provisions of section 32 of the H.P. Cooperative Societies Act, 1968 during the year 2004-05 and subsequently till date. 2. That the Board of Directors of the Union has failed to submit the compliance of audit note conducted for the past years amounting to non-performance of the duties imposed on them as per Act, Rules and Bye-Laws. 3. That the management of the Union has failed to take necessary action to recover the embezzled amount of Rs. 70,786.16 and other recoverable amount from sundry debtors amounting to gross negligence in performance of their duties. 4. That the management of the Union has not redeemed Government share to the tune of Rs. 18,75,500/- and is not taking interest to increase the business activities of the Union as the accumulative losses of the Union has gone upto Rs. 13,87,063.31 as per balance sheet of the Union as on 31.3.2005 resulting in mismanagement and negligence in performance of their duties imposed on them by Act, Rules and Bye-Laws. 5. That the Board of Directors of the Union has failed to get the record completed (such as member register, file Board and other necessary record) amounting to gross-negligence and mismanagement of affairs of the Union resulting in losses. 2. 5. That the Board of Directors of the Union has failed to get the record completed (such as member register, file Board and other necessary record) amounting to gross-negligence and mismanagement of affairs of the Union resulting in losses. 2. The notice was duly served upon respondent No. 3, but no representation was made by respondent No. 3-society nor any reply was filed to show cause notice. Accordingly, the Deputy Registrar, Cooperative Societies, Eastern Division, Shimla vide office order dated 30.8.2007 superseded the management of respondent No. 3 with immediate effect in exercise of the powers vested in him u/s 37 of the Act. The Inspector, Cooperative Societies, Arki was appointed as Administrator for a period of six months to manage the affairs of the Union in accordance with the Act. The Inspector was also directed to conduct fresh elections of the Union within six months positively to restore democratically elected management in the Union for its smooth and proper functioning as per law. This period was extended by the competent authority from time to time. The competent authority has also decided to put respondent No. 3 under liquidation vide order dated 2.3.2010. This decision was assailed by Sh. Jai Dev Kaundal and Sh. Amar Chand. The matter was assigned to Joint Registrar (Credit). Thereafter, on 18.3.2011, decision was taken to revive the respondent No. 3-society by the Deputy Registrar, Cooperative Societies, (Eastern Division), Shimla vide Annexure P-2. 3. In sequel to Annexure P-2, calendar for holding the election of respondent No. 3-society was prepared. The date of election was 14.6.2011. Petitioner has also submitted his nomination from zone No. 1, being the member of the Bathalang Primary Cooperative Consumer Store. Respondents No. 8 to 10 have also filed their nominations Ward Nos. 3, 4 and 2, respectively. The nomination of respondent No. 10 has been rejected as per the averments contained in the petition. In fact, the Administrator has carved out six wards for holding the elections as per Annexure P-3 on 29.3.2011. The last date of receipt of resolution for registration of the voters as per Annexure P-4 was 18.4.2011. The date of publication of tentative voter list was 20.4.2011. The date of filing of objections against voter list in the office of Tehsil Union was 6.5.2011. Hearing of objections was from 7.5.2011 to 9.5.2011. The official publication of final list of voters was on 10.5.2011. The date of publication of tentative voter list was 20.4.2011. The date of filing of objections against voter list in the office of Tehsil Union was 6.5.2011. Hearing of objections was from 7.5.2011 to 9.5.2011. The official publication of final list of voters was on 10.5.2011. The last date of receipt of nomination papers was 18.5.2011. These nomination papers were to be scrutinized by the Returning Officer on 20.5.2011. Hearing of objection on nomination papers was on 23.5.2011. The date of publication of list of contesting candidates by the Returning Officer was 23.5.2011. The last date of withdrawal of candidature was 28.5.2011. The publication of final list of contesting candidates and allotment of symbol was 2.6.2011 and the date of election and declaration of result was 14.6.2011. This calendar was issued by the Administrator duly approved by the Deputy Registrar Cooperative Societies (Eastern Division), Shimla. 4. Mr. J.L. Bhardwaj has strenuously argued that after the society was superseded vide order dated 30.8.2007, the Administrator of respondent No. 3 has enrolled primary societies, i.e. respondents No. 4 to 7, members of respondent No. 3 society, which is a secondary society. He further argued that Administrator has no authority/jurisdiction to enroll the members. According to him, the enrolment of the members can only be by the Managing Committee as per rule 49 of the Himachal Pradesh Cooperative Societies Rules, 1971 (hereinafter referred to as 'Rules' for brevity sake). According to him, this has been done by the Administrator in February, 2008 and April, 2009 in most illegal and arbitrary manner. He then argued that since respondents No. 4 to 7 could not be enrolled as Members of the respondent No. 3-society, respondents No. 8 to 10 were not eligible to contest the elections to be held on 14.6.2011. He also argued that respondent No. 3-society is a primary society for the purpose of marketing agriculture produce etc., respondents No. 4 and 5 are non-Agriculture Thrift and Credit Cooperative Societies and respondents No. 6 and 7 are the societies registered for the purpose of Labour and Construction. In other words, his submission is that respondents No. 4 to 7 could not become the members of respondent No. 3-society. 5. Mr. In other words, his submission is that respondents No. 4 to 7 could not become the members of respondent No. 3-society. 5. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the action has been taken of enrolling the members by the Administrator of respondent No. 3-society at his own level and no such direction was ever issued to him. He also argued that the petitioner has alternative remedy u/s 72 of the Act and this petition is not maintainable. 6. Mr. Surender Saklani appearing on behalf of respondent No. 3 has argued that he is new incumbent and in no manner responsible for the enrolment of new members. 7. Respondents No. 4 to 7 though served but have chosen not to file reply. Separate replies have been filed by respondents No. 8 to 10. 8. Mr. Sanjeev Bhushan has vehemently argued that the petitioner has no locus standi to file the present petition. He has also argued that the petitioner has alternative remedy u/s 72 of the Act. He has further argued that the decision to enroll new members has been taken by the General House vide Annexure R-8/1. He further contended that the enrolment of new members has been in the year 2008 and the present petition has been filed in the year 2011. In other words there is delay as far as filing of the present petition is concerned. According to him, respondents No. 8 to 10 were fully eligible to participate in the election process for the management of the respondent No. 3-society. He lastly contended that since the election process has commenced, this Court may not intervene in the matter. 9. I have heard the learned counsel for the parties and have perused the pleadings carefully. 10. What emerges from the facts enumerated hereinabove is that the petitioner is a secondary society and respondents No. 4 to 7 have been enrolled as members of the society in February, 2008 and April, 2009 as per Annexure P-5. Respondents No. 8 to 10 have submitted their nominations from ward Nos. 3, 4 and 2, respectively vide Annexures P-6 to P-8. The elections were to be held on 14.6.2011. This Court has directed by way of interim order, the elections to be held as per schedule but the result could not be declared without obtaining order from this Court. 11. Mr. 3, 4 and 2, respectively vide Annexures P-6 to P-8. The elections were to be held on 14.6.2011. This Court has directed by way of interim order, the elections to be held as per schedule but the result could not be declared without obtaining order from this Court. 11. Mr. J.L. Bhardwaj has mainly argued that the Administrator of respondent No. 3-society, who was appointed after the supersession of society vide order dated 30.8.2007 has no jurisdictional authority to enroll new members. In order to see whether the decision of the Administrator to enroll new members was within the ambit of law, it will be apt at this stage to refer to few provisions of the Act and Rules framed there-under. Section 2 explains the expression "dispute" "member" and "officer". Registration of cooperative society is provided under Chapter-II of the Act. Chapter-III deals with the members of the cooperative societies and their rights and liabilities. Chapter-IV deals with the management of the cooperative societies. Final authority in a cooperative societies vests in the general body of members in a general meeting. Section 34 provides that the management of every society shall vest in a managing committee constituted in accordance with the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively, by the Act, the rules and the bye-laws. Section 37 provides for supersession of committee and appointment of Administrator. Chapter-IX deals with the settlement of dispute, which may be referred to arbitration. 12. Now, the Court will advert to 1971 Rules. The expression secondary society and primary society has been defined under rule 2 (xx) and (xxi). Chapter III provides for members of Cooperative Societies, their rights and liabilities. The manner in which the application is to be submitted has been provided under rule 14 and its disposal under rule 15. Chapter IV of the rules provides for management of cooperative societies. The powers of the general meeting have been stipulated under rule 25. Rule 37 provides for the election of the Committee. The constitution of Managing Committee is provided under Rule 38. Rule 49 deals with the powers of Managing Committee and the duties of the Managing Committee are separately provided under rule 50. Chapter IX provides for settlement of dispute. The powers of the general meeting have been stipulated under rule 25. Rule 37 provides for the election of the Committee. The constitution of Managing Committee is provided under Rule 38. Rule 49 deals with the powers of Managing Committee and the duties of the Managing Committee are separately provided under rule 50. Chapter IX provides for settlement of dispute. Rule 88 provides that when a party to the dispute referred to in subsection (1) of section 72 desires to have disputes determined in accordance with the said section, the party shall apply to the Registrar in writing, stating the substance of the dispute and the names and addresses of the other party in such form as the Registrar may lay down from time to time. The procedure for disposal of application is provided under rule 91. The manner in which the election of the Committee has to be held is provided under Appendix A. 13. It is evident from the language of rule 49 (a) that the Managing Committee alone has the power to admit new members and to fine, suspend, remove or expel existing members on the roll of the society. The general body has no authority to enroll new members as argued by Mr. Sanjeev Bhushan in its resolution of 26.8.2008. It is clear from Annexure P-5 that respondents No. 4 to 7-societies have been enrolled in February, 2008 and April, 2009, respectively. The Administrator has no authority or jurisdiction to enroll new members as he has done in the present case by enrolling respondents No. 4 to 7 as new members of respondent No. 3-society. 14. This legal position is no more res integra in view of the judgment of their Lordships of the Hon’ble Supreme Court in K. Shantharaj and another Vs. M.L. Nagaraja and others, AIR 1997 SC 2925 . Their Lordships have held as under: 8. Shri Santosh Hegde, learned senior counsel, contends that since the Administrator has power to conduct elections, by necessary implication, he has power to update the electoral lists by either enrolling the new members or substituting the legal representatives of the members in accordance with the bye-laws; therefore, he has power to enroll the members. We find that there is no force in the contention. We find that there is no force in the contention. The power of Administrator given under the statute to conduct elections should be confined within the parameters set under the relevant provisions of the Act, Rules and Bye-laws. The Division Bench has minutely and carefully gone into all the questions and agreed with the learned single Judge that the Administrator has no power to enroll new members; but he has the power to organise election process in accordance with the provisions of the Act, the Rules and the Bye-laws of the Society. In that view of the matter, we think that the High Court has not committed any error of law warranting interference. 15. Their Lordships of the Hon’ble Supreme Court in Jt. Registrar of Co-op. Societies Vs. T.A. Kuttappan and Others, AIR 2000 SC 2378 have held that the powers of the Administrator appointed by the Registrar on supersession of Committee of Management must be ascertained bearing in mind that cooperative societies are expected to function in a democratic manner and that an administrator is entitled to act only as required in the interests of the cooperative society in respect of which he has been appointed. Their Lordships have further held that Administrator would not be entitled to enroll new members, which function only an elected Committee of Management may carry out. Their Lordships have held as under: 7. If we carefully analyse the provisions of the Act, it would be clear that the administrator or a Committee appointed while the Committee of Management of the Society is under supersession cannot have the power to enrol new members and such a question ought not to be decided merely by indulging in an exercise on semantics in ascertaining the meaning of the expression have "power to exercise all or any of the function...". Whether an authority is discharging a function or exercising a power will have to be ascertained with reference to the nature of the function or the power discharged or exercised in the background of the enactment. Often we do express that functions are discharged or powers exercised or vice versa depending upon the context of the duty or power enjoined under the law if the two expressions are inter-changeable. What is necessary to bear in mind is that nature of function or power exercised and not the manner in which it is done. Often we do express that functions are discharged or powers exercised or vice versa depending upon the context of the duty or power enjoined under the law if the two expressions are inter-changeable. What is necessary to bear in mind is that nature of function or power exercised and not the manner in which it is done. Indeed this Court, while considering the provisions of Section 30-A of the Karnataka Act, which enabled a Special Officer appointed to exercise and perform all the powers and functions of the Committee of Management or any officer of the Co-operative Society (and not merely functions), to the view that the administrator or a special officer can exercise powers and functions only as may be required to the interests of the Co-operative Society. In that context, it was stated that he should conduct elections as enjoined under law, that is, he is to conduct elections with the members as on the rolls and by necessary implication, he is not vested with power to enrol new members of the society. We may add that a Co-operative Society is expected to function in a democratic manner through an elected Committee of Management and that Committee of Management is empowered to enrol new members. Enrolment of new members would involve alteration of the composition of the society itself and such a power should be exercised by an elected Committee rather than by an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession. This Court has taken the view, it did, bearing in mind these aspects, though not spelt out in the course of the judgment. Even where the language of Section 30-A of the Karnataka Act empowered a special officer to exercise and perform all the powers and functions of Committee of Management of a Co-operative Society fell for consideration, this Court having expressed that view, we do not think, there is any need to explore the difference in the meaning of the expressions "have power to exercise all or any of the functions of the Committee" in the Act and "exercise all or any of the functions of the Committee" in the Karnataka Act as they are not different and are in substance one and the same and difference in language will assume no importance. What is of significance is that when the Committee of Management of the Cooperative Society commits any default or is negligent in the performance of the duties imposed under the Acts, rules and the bye-laws, which is prejudicial to the interest of the society, the same is superseded and an administrator or a Committee is imposed thereon. The duty of such a Committee or an administrator is to set right to default, if any, and to enable the society to carry on its functions as enjoined by law. Thus, the role of an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession, is, as pointed out by this Court, only to bring on an even keel a ship which was in doldrums. If that is the objective and is borne in mind, the interpretation of these provisions will not be difficult. 16. The Division Bench of this Court in CWP No. 553/2000, titled Sh. O.P. Sharma and others versus State of Himachal Pradesh and others, has also decided the same issue on 8.8.2000 by relying upon Jt. Registrar of Co-op. Societies Vs. T.A. Kuttappan and Others, AIR 2000 SC 2378 that once the committee is superseded and the powers and functions are taken over by the Administrator, such Administrator cannot enroll new members. The Division Bench has held as under: In T.A. Kuttappan, almost a similar provision came up for consideration before the Supreme Court and it was held that when the Committee is superseded and the powers and functions are taken over by the Administrator, such Administrator cannot enroll new members. It goes without saying that when the law is declared by the Supreme Court, it is binding on all the authorities and the Administrator will have to take appropriate action in accordance with the decision of the Supreme Court. 17. Since the enrolment of respondents No. 4 to 7-societies was itself illegal, the respondents No. 8 to 10 have no legal right to participate in the election process by submitting their nomination papers vide Annexures P-6 to P-8 from Ward Nos. 3, 4 and 2 respectively. It is settled law that once the foundation falls, any super structure built on the same also falls. The Administrator is required to discharge the duties under the Act, Rules and Bye-Laws and he had no authority to enroll new members. 18. Mr. 3, 4 and 2 respectively. It is settled law that once the foundation falls, any super structure built on the same also falls. The Administrator is required to discharge the duties under the Act, Rules and Bye-Laws and he had no authority to enroll new members. 18. Mr. Sanjeev Bhushan has also argued that the present petition is barred by delay and laches. Case of the petitioner, in a nutshell, is that he came to know about the enrolment of respondents No. 4 to 7 only when he had the occasion to see the voter list in 2011. There is merit in the contention of the petitioner that he had no prior knowledge about the enrolment of new members. He has immediately filed the present petition after he came to know about the enrolment of new members and the filing of nomination papers by respondents No. 8 to 10. Thus, there is no delay and laches. 19. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Sanjeev Bhushan have also argued that the petitioner has alternative remedy u/s 72 of the Act to challenge the election. The relief sought by the petitioner in the present petition is two fold; one quashing of enrolment of respondents No. 4 to 7 of respondent No. 3-society after taking over the charge by the Administrator vide order dated 30.8.2007 and second to restrain the Administrator of respondent No. 3-society to conduct the elections of respondents No. 8 to 10, who are contesting the election. The enrolment of new members by the Administrator in the years 2008 and 2009 gives a distinct cause of action to the petitioner and the restraining of respondents No. 8 to 10 from contesting election is separate cause of action. Once it is held that the enrolment of respondents No. 4 to 7-societies as members of respondent No. 3-society is bad, the aftermath of the same is that respondents No. 8 to 10 could not contest the election. The present petition is maintainable since the enrolment of respondents No. 4 to 7 as members of respondent No. 3-society is bad in law. 20. As far as the commencing of the election process as per calendar vide Annexure P-4 is concerned, since the enrolment of respondents No. 4 to 7 was bad in law, they could not participate in the election process. 20. As far as the commencing of the election process as per calendar vide Annexure P-4 is concerned, since the enrolment of respondents No. 4 to 7 was bad in law, they could not participate in the election process. The petitioner is aggrieved only by the manner in which respondents No. 4 to 7 have been enrolled as new members by enabling respondents No. 8 to 10 to participate in the selection process. It is true that u/s 72 of the Act, the matter can be referred to the Arbitrator with regard to dispute arising in connection with the election of any officer or the society. This can only be done once the election is complete and not before the declaration of the result. In the present case, the action of Administrator of respondent No. 3-society of enrolling respondents No. 4 to 7 was wholly without jurisdiction and in these circumstances; the writ petition is maintainable in the present form before this Court. 21. The Punjab and Haryana High Court in Narinder Singh versus State, 1973 P.L.J. 720 has held that the dispute arising in connection with election must necessarily relate to a completed election and can be raised only after declaration of result of election. 22. Their Lordships of the Hon’ble Supreme Court in Bar Council of Delhi and Others Vs. Surjeet Singh and Others, AIR 1980 SC 1612 have held that when the electoral roll is prepared illegally, the entire election is invalid and in these circumstances writ under Article 226 of the Constitution of India is maintainable though alternative remedy is available to challenge the election. Their Lordships have held as under: 2. There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in R. 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of R. 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. Our attention was specially drawn to cl. Firstly, no clause of R. 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. Our attention was specially drawn to cl. (8) of R. 34 which says:- No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character. As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparations of the whole electoral roll was null and void because of the invalidity of the impugned proviso. 18. Reliance was placed for the appellants upon the decision of this Court in K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, AIR 1977 SC 1703 that because of Rule 34 (8) of the Delhi Bar Council Election Rules the writ petition ought to have been held to be not maintainable it would be noticed from the facts of that case that an election petition had already been filed. About four months later a writ petition was also filed to challenge the election. At page 1704, column 1 Krishna Iyer J., speaking for the Court said:- One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. But he added:- While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition. Finally the view expressed in K. K. Shrivastava's case is :- There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise. Finally the view expressed in K. K. Shrivastava's case is :- There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise. We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all. 23. In the case in hand also, the entire election will be vitiated since respondents No. 4 to 7 could not be made members of respondent No. 3-society and consequently, respondents No. 8 to 10 could not file their nomination papers. 24. Their Lordships of the Hon’ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 have held that the existence of statutory remedy is not a constitutional bar to High Court but is a self imposed restriction. 24. Their Lordships of the Hon’ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 have held that the existence of statutory remedy is not a constitutional bar to High Court but is a self imposed restriction. Their Lordships have further held that alternative remedy would not to operate as a bar in at least three contingencies, namely, i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; or ii) where there has been a violation of the principle of natural justice; or iii) where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. Their Lordships have held as under: 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 25. In the case in hand, the Administrator of respondent No. 3-society had no jurisdiction to enroll new members in the years 2008 and 2009. 26. 25. In the case in hand, the Administrator of respondent No. 3-society had no jurisdiction to enroll new members in the years 2008 and 2009. 26. Their Lordships of the Hon’ble Supreme Court in K. Venkatachalam Vs. A Swamickan and Another, AIR 1999 SC 1723 have held that Article 226 is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In these circumstances, their Lordships have held that the bar of Article 329(b) will not come into play and have upheld the entertaining of writ petition under Article 226 of the Constitution of India by the High Court. In this case the appellant lack basic qualification as required by Article 173(c) of the Constitution of India read section 5 of the Representation of the People Act, 1951, which has mandated for election to be elector of that constituency. Their Lordships have also taken into consideration N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, AIR 1952 SC 64 . Their Lordships have held as under: 25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector from that constituency could represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election however, was not challenged by filing an election petition u/s 81 of the Act. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law. 26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as Venkatachalam s/o Pethu, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution. 27. In view of the judgment of this Court in the case of Election Commission, India Vs. Saka Venkata Subba Rao, AIR 1953 SC 210 and, it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? 28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraitg order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent no. 2, who is Secretary to Tamil Nadu Legislative Assembly, to itimate to Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like the Election Commission should invariably be made a party. 27. Their Lordships of the Hon’ble Supreme Court in Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Another Vs. State of Maharashtra and Others, AIR 2004 SC 1329 have held that where the voter list has been prepared on the basis of non-existence of rules, the same would be illegal. 27. Their Lordships of the Hon’ble Supreme Court in Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Another Vs. State of Maharashtra and Others, AIR 2004 SC 1329 have held that where the voter list has been prepared on the basis of non-existence of rules, the same would be illegal. In this case, contention was raised that the High Court ought not to issue direction for inclusion of the names of the petitioner in the electoral roll in view of the fact that the preparation of the elector roll was in intermediary stage in the process of the election and as such the High Court committed an error of jurisdiction. The Judgment relied upon by the learned counsel Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, (2001) 8 AD 84 was distinguished. Their Lordships have held as under: 3. Learned counsel urged that the High Court ought not to have issued a direction for inclusion of the name of the respondents in electoral roll in view of the fact that the preparation of the electoral roll is an intermediary stage of the process of the election and as such the High Court committed an error of jurisdiction. Learned counsel relied upon in support of the decision of this Court in Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, (2001) 8 AD 84. In the said case it was held that the preparation of the voter list is intermediary stage in the process of election of the Managing Committee and if there was breach of the Rule in the preparation of the voter list, it can be called in question in an election petition after the election is over and the High Court is not required to interfere in the matter at this stage. 4. In Sant Sadguru Janardhan Swami (supra) this Court made the aforementioned observations keeping in view the fact therein the voters' list was prepared in terms of the extent rules but certain irregularities were committed therein, but where voters list has been prepared, on the basis of non-existent rules the same would be illegal. 5. In the present case, what we find is that illegal amendment of the bye-laws was challenged on the basis of which the electoral roll prepared. 5. In the present case, what we find is that illegal amendment of the bye-laws was challenged on the basis of which the electoral roll prepared. u/s 165 of the Act, the State Government has framed Rules under the provisions of Maharashtra Cooperative Societies Act and the Maharashtra Specified Cooperative Societies Elections to Committee Rules, 1971. Rule 81 provides for ground for declaring the elections to be void. A perusal of Rule 81 shows that the validity of the bye-laws cannot be gone into by the Tribunal. In view of the fact that the respondents had no other remedy except to file an appeal before the appellate authority and once it is held that the amendment of the bye-laws are not in conformity with the law and the electoral roll prepared on the basis would fell down. 6. The question as to whether the High Court ought to have entertained the writ petition filed by the Respondent or not takes a back seat in the instant case as it was for the appellants herein to show that the amendments in the bye-laws have been carried out in accordance with the law. Both the appellate authority as also the revisional authority have pointed out that conditions precedent for amending the bye-laws were not been complied with. Such a finding on jurisdictional fact has been held by the High Court as not `per verse' warranting interference under Article 227 of the Constitution of India. Before us also the learned counsel appearing on behalf of the appellant has failed to show as to why this Court should take a different view. We, therefore, do not find any merit in these appeals. The appeals are dismissed accordingly. 28. In the instant case also, the inclusion of names of respondents No. 3 to 7-societies was illegal and without jurisdiction. Whether respondents No. 8 to 10 have been legally enrolled as members by the Administrator or not could not be gone into the election petition, as argued by Mr. Vikas Rathore, learned Deputy Advocate General. The present case has also been taken up for adjudication since the same can be decided on the basis of existing facts and no disputed question of facts are involved. 29. Their Lordships of the Hon’ble Supreme Court in Pundlik Vs. Vikas Rathore, learned Deputy Advocate General. The present case has also been taken up for adjudication since the same can be decided on the basis of existing facts and no disputed question of facts are involved. 29. Their Lordships of the Hon’ble Supreme Court in Pundlik Vs. State of Maharashtra and Others, AIR 2005 SC 3746 in the case arising out of Maharashtra Specified Cooperative Societies (Elections to Committees) Rules, 1971, have held that though normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters but such action must be in accordance with law. Their Lordships have held as under: 16. In the instant case, respondent Sangh had taken immediate action on receiving the fax message from respondent No. 2 - Collector. As per the said communication by the Collector, an action could be taken for change of representative of respondent Sangh latest by June 10, 2005. A meeting was, therefore, convened by issuing an agenda to that effect by respondent Sangh on June 2, 2005. The meeting was accordingly convened on June 9, 2005 and a resolution was passed being Resolution No. 7 wherein it was decided that instead of respondent No. 7, the appellant would represent respondent Sangh in the election of Maha Sangh. Since the action was taken strictly in conformity with the provisions of Rule 5 of the Rules as also the communication of respondent No. 2 - Collector dated May 30, 2005, respondent No. 2 ought to have effected the change. The ground put forward for rejecting the resolution was not correct inasmuch as in the agenda notice issued by respondent - Sangh dated June 2, 2005, subject No. 7 had clearly been mentioned and in pursuance of the said agenda notice, a meeting of the Managing Committee of respondent - Sangh was convened and a decision was taken. The grievance of the appellant, therefore, was justified that by not effecting the change and by ignoring the resolution passed by the Managing Committee of respondent Sangh the Collector has acted contrary to law. 17. In our opinion, the learned counsel for the appellant is also right in submitted that if the order passed by respondent No. 2 is upheld, the provisions of sub-rule (2) of Rule 5 will become nugatory and otiose. 17. In our opinion, the learned counsel for the appellant is also right in submitted that if the order passed by respondent No. 2 is upheld, the provisions of sub-rule (2) of Rule 5 will become nugatory and otiose. When the rule making authority conferred power on the Sangh to change the name of its representative/delegate by expressly permitting the change of representative/delegate and intimating the said fact to the Collector, such right cannot be taken away or interfered with. Since the last date as per the communication of the respondent No. 2 - Collector was June 10, 2005, the action of respondent - Sangh was within the four corners of Rule 5(2). The High Court was, therefore, in error in not allowing the petition and granting the relief to the appellant. 18. We are also supported in taking this view by a recent three-Judge Bench decision in Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Another Vs. State of Maharashtra and Others, . In that case, election roll was prepared on the basis of bye laws which were held to be illegal. When the action was challenged it was contended that the court could not interfere with the list of voters prepared in accordance with the provisions of the Rules and the only remedy available to the aggrieved party was to file election petition after the election was over. Reliance was placed on Sant Sadguru Janardan Swami. The Court, however, distinguished Sant Sadguru Janardan Swami and held that where the voters' list had been prepared on the basis of nonexistent Rules, it would be illegal and the court could interfere under Article 226 of the Constitution. 19. In the case on hand, the respondent - Sangh was within its authority conferred under the Rules to take an appropriate decision for change of its representative/delegate within the stipulated period and such action had been taken by respondent _ Sangh. The action of respondent No. 2 - Collector in not effecting change was clearly in violation of Rule 5(2) and could be challenged by filing a petition under Article 226 of the Constitution. In our opinion, the respondent No. 2 - Collector was duty bound to effect change of representative/delegate of respondent - Sangh. 30. The action of respondent No. 2 - Collector in not effecting change was clearly in violation of Rule 5(2) and could be challenged by filing a petition under Article 226 of the Constitution. In our opinion, the respondent No. 2 - Collector was duty bound to effect change of representative/delegate of respondent - Sangh. 30. Their Lordships of the Hon’ble Supreme Court in Vadodara District Cooperative Sugarcane Producers Union Limited versus Chandrakantbhai Thakorebhai Patel and others, (2005) 11 SCC 523 have held that the High Court should have heard the writ petition on merits but without staying the process of election. The judgment of the High Court was set aside and the matter was remitted for decision on merits with directions that the elections were to be held as notified and the same were made subject to final decision by the High Court. In this case, challenge had been laid to legality of certain steps taken to hold election. The High Court allowed the writ petition on 7.4.2005 and set aside the programme and all steps taken. Their Lordships have held as under: 6. The elections of the Managing Committee required to be held as per Chapter XI-A of the Gujarat Cooperative Societies Act, 1961 were in progress. In a writ petition laying challenge to the legality of certain steps taken by Respondents 2 and 3 for the purpose of holding the elections, the High Court interfered with the election process midway, allowed the writ petition and set aside the election programme and all steps taken in accordance therewith. The order of the High Court was passed on 7-4-2005, while the elections were scheduled to be held on 17-4-2005. The aggrieved Respondent 3 in the High Court has filed this appeal by special leave. 8. The appeal is allowed. The impugned judgment of the High Court is set aside. The elections will be held as notified. If the authorities feel that a fresh date for polling is to be appointed, then they may do so. The elections so held shall be subject to the final decision by the High Court in the writ petition. The writ petition in the High Court shall stand restored on the file of the High Court for being heard and decided on its own merits uninfluenced by any observation made in the impugned judgment. 31. The elections so held shall be subject to the final decision by the High Court in the writ petition. The writ petition in the High Court shall stand restored on the file of the High Court for being heard and decided on its own merits uninfluenced by any observation made in the impugned judgment. 31. In the case in hand, this Court has not stayed the election process and has passed the interim order on 13.6.2011 to the effect that the election, as scheduled, may go on, but the votes of those members enrolled by the Administrator, shall be kept in separate ballot box and the result shall not be declared without obtaining order from this Court. Thereafter, the petition was admitted on 13.10.2011. 32. Their Lordships of the Hon’ble Supreme Court in Committee of Management and another versus Vice-Chancellor and others, (2009) 2 SCC 630 have held that availability of alternative remedy itself may not be ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice. Their Lordships have held as under: 22. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 . 15. .... In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 . 15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged..... [See also Guruvayur Devaswom Managing Commit. and Another Vs. C.K. Rajan and Others, (2003) 7 JT 312 . 33. Their Lordships of the Hon’ble Supreme in a recent judgment in Godrej Sara Lee Ltd. Vs. Asst. Commissioner (AA) and Another, (2009) 236 ELT 425 , have held that alternative remedy is not a bar if order of statutory authority is questioned on the ground of lack of jurisdiction. 34. However, in the instant case, this legal issue will not arise since the very enrolment of respondents No. 4 to 7 was bad in law and they could not sponsor the candidate for election from their respective wards No. 3, 4 and 2. In section 72 of the Act, the word used is election. 35. The Punjab and Haryana High Court in Ajaib Singh versus Mahinder Singh and another, PLR 1976 (78) 618 has held that where there is no dispute about the facts and no evidence is to be led, a writ petition under Articles 226 and 227 of the Constitution may be an appropriate and speedy remedy in the circumstances. In this case, the Division Bench of the Punjab and Haryana High Court was dealing with the Punjab Panchayat Samitis (Co-option of Members) Rules, 1961. The Division Bench has held as under: 3. The learned counsel for the appellant has raised the following contentions: 1. That the election, including the co-option, under Act and the rules framed thereunder can only be challenged through an election petition. The respondent not having availed of that remedy, the writ petition under Articles 226 and 227 of the Constitution of India was not maintainable. 2. The learned counsel for the appellant has raised the following contentions: 1. That the election, including the co-option, under Act and the rules framed thereunder can only be challenged through an election petition. The respondent not having availed of that remedy, the writ petition under Articles 226 and 227 of the Constitution of India was not maintainable. 2. That the ballot paper was rightly rejected by the Presiding Officer as there was no cross mark (X) affixed by the voter against the name of the respondent; and 3. That the ballot paper was invalid under sub rule (4) of rule 7 of the Punjab Panchayat Samitis (Co-option of members) Rules, 1961 (hereinafter to be called the Rules). The ballot paper was invalid because instead of cross mark as provided in the rules, only a straight line had been put by the voter against the name of the respondent which could be identified and, therefore, as envisaged under rule 5 of the Rules, the same was an invalid ballot paper and was rightly rejected by the Presiding Officer. In support of his first contention that the writ petition was not maintainable in election matters were a remedy of an election petition has been provided under the law, the learned counsel for the appellant has relied upon Nanhoo Mal and Others Vs. Hira Mal and Others, AIR 1975 SC 2140 wherein to fill up a casual vacancy in the office of the President of the Municipal Board, the District Magistrate issued notices to the members of the Board, the District Magistrate issued notices to the members of the Board calling for filing the nomination papers by September 26, 1974, with the direction that if necessary, the election will take place on October 1, 1974. The validity of the procedure adopted by the District Magistrate was challenged through a writ petition under Article 226 of the Constitution of India. The objection taken was that the procedure for holding election adopted by the District Magistrate did not conform to the provisions of rule 6 of the U.P. Municipal Committee (Conduct of Election of Presidents and Election Petitions) Order 1964. Relying on N.P. Ponnuswami Vs. The objection taken was that the procedure for holding election adopted by the District Magistrate did not conform to the provisions of rule 6 of the U.P. Municipal Committee (Conduct of Election of Presidents and Election Petitions) Order 1964. Relying on N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, AIR 1952 SC 64 their Lordships of the Supreme Court came to the following conclusion: The election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. In N.P. Ponnuswamis case (supra) on which the aforesaid decision is based, one nomination paper for election to the Madras Legislative Assembly had been rejected. This was challenged through a writ petition. It was in these circumstances that their Lordships of the Supreme Court held- Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. In Nanhoo Mals case (supra), it was specifically held that- .. an election petition has to be presented after the election is over and there is no remedy provided at any intermediate stage. Thus, the ratio of the decision of their Lordships in the said case cannot be construed as laying down and invariable rule that in election matters no writ petition under Articles 226 and 227 of the Constitution of India is maintainable challenging a particular election. There can be no dispute with the proposition that normally, an election could be challenged through an election petition because generally there are a number of disputed matters of fact in which evidence is called for. There can be no dispute with the proposition that normally, an election could be challenged through an election petition because generally there are a number of disputed matters of fact in which evidence is called for. However, the law is well established that where there is no dispute about facts and no evidence is to be led, a writ petition under Articles 226 and 227 of the Constitution of India may be an appropriate and speedy remedy in the circumstances of a particular case in the present case all the facts are admitted and the only question to be determined is whether the ballot paper on which the cross mark (x) was not affixed, but a straight line was drawn against the name of the respondent was rightly rejected or not, by the Presiding Officer, under the Act and Rules. If it is held to be rightly rejected, the writ petition is to be dismissed, if it was wrongly rejected, as held, by the learned Single Judge, the writ petition will be held to be validly accepted and the order with regard to the drawing of the lots will be perfectly within the ambit of the Act and the Rules. Therefore, in our considered opinion, the preliminary objection of the learned counsel for the appellant has no substance and the same was rightly repelled by the learned Single Judge. 36. In the present case, there is no dispute with regard to disputed questions of facts, as noticed above and no evidence was required to be led by the parties. 37. The enrolment of respondents No. 4 to 7 as members of respondent No. 3-society is bad in law and accordingly the election process initiated after the enrolment of these members is vitiated and, thus, declared illegal. 38. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The enrolment of respondents No. 4 to 7-societies is quashed. Respondent-State is directed to hold fresh elections on the basis of electoral list prepared before the supersession of the society, i.e. 30.8.2007 within a period of three months from today. Pending application(s), if any, also stands disposed of. No costs.