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2013 DIGILAW 22 (ALL)

Akshaiwar Pandey v. State of U. P. and Others

2013-01-03

SATYA POOT MEHROTRA, ZAKI ULLAH KHAN

body2013
Zaki Ullah Khan, J.— The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, inter-alia, praying for direction to the respondent no.3 for deciding the Representations of the petitioner filed on 25.10.2012 and 31.10.2012. It appears that the petitioner is a member of the Cooperative Society in question. The elections for the Committee of Management and the post of President in respect of the Cooperative Society in question were held on 29.10.2012 and 30.10.2012. In the aforesaid Representation dated 31.10.2012, the petitioner has prayed that the said elections be set aside and fresh elections be held. We have heard Shri Pushkar Srivastava, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent nos. 1 to 4. The learned Standing Counsel appearing for the respondent nos. 1 to 4 has raised preliminary objection that as the petitioner is questioning the validity of the elections held on 29.10.2012 and 30.10.2012 in respect of the Cooperative Society in question, the appropriate remedy for the petitioner is to take proceedings under Rule 444 C of the U.P. Cooperative Societies Rule, 1968 framed under the U.P. Cooperative Societies Act, 1965, and in the circumstances, no interference is called for in the present Writ Petition. In reply, Shri Pushkar Srivastava, learned counsel for the petitioner submits that the existence of alternative remedy is not an absolute bar to entertainment of the Writ Petition under Article 226 of the Constitution of India, and the Writ Petition may be entertained despite the existence of such alternative remedy. Having considered the submissions made by the learned counsel for the parties and keeping in view the nature of controversy involved in the present Writ Petition, we are inclined to accept the preliminary objection raised by the learned Standing Counsel appearing for the respondent nos. 1 to 4. Having considered the submissions made by the learned counsel for the parties and keeping in view the nature of controversy involved in the present Writ Petition, we are inclined to accept the preliminary objection raised by the learned Standing Counsel appearing for the respondent nos. 1 to 4. Rule 444 C of the U.P. Cooperative Societies Rules, 1968 framed under the U.P. Cooperative Societies Act, 1965 lays down as under: "444-C. (1) The election in a co-operative society shall not be called in question either by arbitration or otherwise except on the ground that - (a) the election has not been a fair election by reasons that corrupt practice, bribery or undue influence has extensively prevailed at the election, or (b) the result of the election has been materially affected - (i) by improper acceptance or rejection of any nomination, or (ii) by improper reception, refusal or rejection of voters, or (iii) by gross failure to comply with the provisions of the Act, the rules or the bye-laws of the society. Explanation.- For the purpose of this rule corruption, bribery or undue influence shall have the meaning assigned to each under Section 123 of the Representation of People Act, 1951. (2) A dispute relating to election shall be preferred by the aggrieved party within forty-five days of the declaration of the result." From a perusal of the above-quoted Rule, it is evident that the election in a cooperative society may be questioned on various grounds mentioned in the said Rule. One of the grounds mentioned in the sub-clause (ii) of Clause (b) of sub-rule (1) of the said Rule provides that the election in a cooperative society may be questioned on the ground that the result of the election has been materially affected by improper reception, refusal or rejection of voters. Another ground mentioned in sub-clause (iii) of Clause (b) of sub-rule (1) of the said Rule provides that the election in a cooperative society may be questioned on the ground that the result of the election has been materially affected by gross failure to comply with the provisions of the U.P. Cooperative Societies Act, 1965, the Rules framed under the said Act or the Bye-Laws of the society. Proviso to sub-section (1) of Section 70 of the U.P. Cooperative Societies Act, 1965 shows that the dispute relating to an election may be referred to the Registrar after the declaration of the result of such election. It is, thus, evident that the petitioner has got an alternative remedy under the aforesaid provisions. In view of the availability of alternative remedy to the petitioner, we are not inclined to exercise our Writ Jurisdiction under Article 226 of the Constitution of India in the present case. The Writ Petition filed by the petitioner is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is accordingly dismissed on the said ground. _____________