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2017 DIGILAW 191 (JK)

Durga Singh v. Registrar Cooperative Societies

2017-04-11

TASHI RABSTAN

body2017
JUDGMENT : 1. To conduct election of the Management Committee of Ex-Servicemen Co-operative Consumer Society, Udhampur, Notification No. ENT/U/16/1755-60 dated 26.08.2016, was issued by Assistant Commissioner (Revenue), Udhampur -- Respondent No. 2, in exercise of powers vested under Section 29 of J&K Co-operative Society Act, 1989, read with Rule 16 of J&K Co-operative Societies Rules of 2001, appointing Dr. Pardeep Singh, Block Development Officer, Udhampur -- Respondent No. 3. The date fixed for election was 30th September 2016. This was followed by Notification dated 30th August 2016 issued by respondent No. 3, notifying Election Schedule and examination of Electoral Rolls from 1st September 2016 to 3rd September 2016 as also scrutiny of nomination paper was to be taken up by Returning Officer on 14.09.2016 at 11.00 AM. 2. Returning Officer-Respondent No. 3, vide No. BDOU/Co-Opr-Elect./2016/5151-56 dated 16.09.2016 addressed to Respondent No. 2 mentioning 16 nomination forms for the election of Management Committee received upto 13.09.2016, 11 nomination forms of candidates were accepted and 5 nomination forms were rejected. Petitioner's name has been shown as rejected amongst the five nominations forms of the candidates. 3. Feeling aggrieved of rejection order dated 16.09.2016, petitioner filed revision petition (File No. STJ/200/2016) before J&K Special Tribunal. Jammu. The revision vide judgment/order dated 20.03.2017 was disposed of with observation that the dispute relating to election, can be resolved by Registrar under Section 70 of J&K Cooperative Societies Act. Dissatisfied therewith, petitioner filed the instant petition. 4. Heard learned counsel for the parties and considered the matter. 5. Learned counsel, while dilating his arguments in the context of case set up in writ petition, states that election petition can only be filed after the result of the election is declared in terms of Rule 16(6) The reference of the dispute under sub-rule (5) may be made by any aggrieved party by submitting an election petition to the Registrar, within 30 days from the date of declaration of the result of the election. of the J&K Cooperative Societies Rules of 2001. Therefore, Returning Officer is competent to declare the result of election under Rule 18 Sub Rule (m) As soon as all the members present have recorded their votes, the Returning Officer shall count the votes and announces the results of election with the number of votes secured by each. of the J&K Cooperative Societies Rules of 2001. Therefore, Returning Officer is competent to declare the result of election under Rule 18 Sub Rule (m) As soon as all the members present have recorded their votes, the Returning Officer shall count the votes and announces the results of election with the number of votes secured by each. She further contends that Returning Officer, being competent authority, has postponed election vide his No. ENT/U/16/2066-69 dated 29.09.2016, thus no question arises for filing Election Petition under Section 70 of J&K Co-operative Societies Act. She further states that the order passed by learned Tribunal is against the facts and law and learned Tribunal had not applied its judicial mind while passing order impugned. 6. It is also contended by learned counsel that learned Tribunal has erred in not considering the judgment dated 29.08.2014 passed by this Court in OWP No. 947/2013 titled " 2015 (1) JKJ 508 [HC] Kirpal Singh and Ors. v. State and Ors.", reported as 2014 Legal Eagle (J&K) 367. The judgment, relied by Tribunal, rendered in case T.S Patel v. Joint Registrar, Cooperative Societies reported as 2008 ILR Ker 497, has no relevance to have application to the facts of the case. 7. Per contra, Mr. R.S. Jamwal, learned Dy. AG appearing for respondents No. 1 to 4, vehemently argues that learned Tribunal has rightly disposed of revision, by observing that remedy is available under Section 70 of J&K Co-operative Societies Act, as the dispute is with respect to rejection of nomination form of the election of the Management Committee of Society. 8. Section 70, 70. R.S. Jamwal, learned Dy. AG appearing for respondents No. 1 to 4, vehemently argues that learned Tribunal has rightly disposed of revision, by observing that remedy is available under Section 70 of J&K Co-operative Societies Act, as the dispute is with respect to rejection of nomination form of the election of the Management Committee of Society. 8. Section 70, 70. Dispute which may be referred to arbitration (1) Notwithstanding anything contained in any law for the Stime Obeing 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 a member, past member or deceased member, and sureties of members, past members or deceased whether such sureties are members or non-members; or (b) between any member, past members or persons claiming through a member, past members or deceased member, or sureties of members, past members or deceased members and the society, its committee or any officer, agent or employee of this 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 representative of any deceased officer, deceased agent or deceased employee of the society; or (d) between the society and any other co-operative society, such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such disputes. (2) For the purposes of sub-section (1) the following shall be deemed to be dispute touching the constitution, management or 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 office of the society; (d) the question whether a person is or was member of co-operative society or not. (3) If any question whether a dispute referred to the Registrar under this section is or not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. of the Act says about referring of disputes to arbitration. It envisages that notwithstanding anything contained in any law for the time being in force, if any dispute touching constitution, management or the business of a co-operative society arises among members, past members and persons claiming through a member, past member or deceased member, and sureties or members, past members or deceased whether such sureties are members; or between any member, past member or persons claiming through a member, past members or deceased member, or between the society or its committee and any past committee, or between the society and any other cooperative society, such disputes shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such disputes. Sub section (2) of Section 70 of the Act envisages that for the purposes of sub-section (1) a claim by the society for any debt or demand due to it from a member or the nominee; or 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, or any dispute arising in connection with the election of any office of the society or the question whether a person is or was member of cooperative society or not shall be deemed to be dispute touching the constituent, management or the business of the cooperative society. For proper adjudication of the issue, it is apt to reproduce Section 70(2)(c) of the J&K Co-operative Societies Act, 1989 hereunder:- - "70. (2)(c) any dispute arising in connection with the election of any office of the Society" 9. Thus from the above Section 70(2)(c) of the Act clearly stipulates that any dispute arising in connection with the election of any office of the Society shall be referred to the Registrar for decision. 10. In addition to above, Rule 16 furnishes norms for election of the members of the Committee/Board. Thus from the above Section 70(2)(c) of the Act clearly stipulates that any dispute arising in connection with the election of any office of the Society shall be referred to the Registrar for decision. 10. In addition to above, Rule 16 furnishes norms for election of the members of the Committee/Board. It would be profitable to reproduce Rules 16(1) and (4) and 21(q), Chapter IV of J&K Cooperative Societies Rules, 2001: "16. Election of the members of Committee/Board. 16(1) The election of the members of the Committee/Board of any Society having jurisdiction within a District, other than an agricultural credit society, shall be held on such date as may be specified by the Registrar and shall be conducted under the control of Assistant Commissioner (Revenue) within whose jurisdiction registered office of the Society is situated, by such Returning Officer and other officers as may be appointed by him in this behalf. 16(4) No elections shall be called in question except by an election petition presented in accordance with the provisions of Act. 21(a) Notwithstanding anything contained in the bye-laws of any Society (q) Any dispute arising out or in connection with the elections held under this rule shall be disposed of in the manner laid down for determination of the disputes arising out of or pertaining to elections under Rule 16 of the Cooperative Societies Rules of 2001. 11. The judgment passed in OWP No. 947/2013 titled "Kirpal Singh & Ors. v. State & Ors.", relied upon by counsel for petitioner, is not applicable to the case in hand because in that case petitioner has challenged the amendment of Clause 5 (a) (i) of the Bye-Laws of the J&K Cooperative Societies Act, 1989, with respect to the members of the Society whereas in the instant case, the petitioner is aggrieved of verification of nomination form for the election of Management Committee. 12. It is pertinent to mention here that if a person has a efficacious remedy available, writ petition under Article 226/227 of the Constitution of India is not maintainable. Reference in this regard is made to Kanaiyalal Lalchand Sachdev & Ors v. State of Maharashtra & Ors. (2011) 2 SCC 782 . Paragraph 23 is apropos to reproduce hereunder:- "23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. Reference in this regard is made to Kanaiyalal Lalchand Sachdev & Ors v. State of Maharashtra & Ors. (2011) 2 SCC 782 . Paragraph 23 is apropos to reproduce hereunder:- "23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd., Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories)." 13. The Supreme Court in Gail (India) Ltd. v. Gujarat State Petroleum Corporation Ltd. 2014 (2) SCC 329, held that in presence of remedy of arbitration available to parties, the High Court should not have entertained writ petition under Article 226 of the Constitution of India and should have relegated the respondent in the said case to avail the remedy of arbitration and Arbitral Tribunal could have decided the complicated dispute between the parties by availing the services of the experts. 14. In the present case, the petitioner questions rejection of Nomination Form for election of Management Committee of the Society. Remedy is available to petitioner under J&K Cooperative Societies Act. Better it would have been for petitioner to avail the remedy available under the law instead of mooting writ petition on hand. In that view of matter entertainment of writ petition does not arise at all. 15. In the light of the above settled proposition of law, the order of learned Tribunal disposing of the revision petition, granting liberty to the petitioner to avail remedy, is just and proper, does not require any interference, as such. As a corollary, writ petition is, dismissed along with connected MPs.