District Cricket Association v. Deputy Registrar, Cooperative Societies Cum Registrar Institution, Sawaimadhopur
2019-09-24
ASHOK KUMAR GAUR
body2019
DigiLaw.ai
ORDER : Ashok Kumar Gaur, J. 1. The petitioners have filed the present writ petition challenging the order dated 22.03.2019 passed by the respondent No. 1-Deputy Registrar, Cooperative Societies-cum-Registrar Institution, Sawai Madhopur exercising the power under Section 24 of the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 (hereinafter shall be referred to as "the Act of 2005"). 2. The allegation of the petitioners pertains to passing of order under Section 24 of the Act of 2005 in excess of jurisdiction and contrary to the scheme set out under Section 22 to 24 of the Act of 2005. The petitioners have also alleged that the order dated 22.03.2019 in fact amounts to overreaching the various judicial orders passed by the competent courts. 3. The present writ petition is a second round of litigation. The petitioners were in receipt of a notice dated 25.02.2019 issued under Section 23 of the Act of 2005. The petitioners filed S.B. Civil Writ Petition No.4858/2019 [District Cricket Association, Sawai Madhopur & Ors. Vs. Deputy Registrar, Cooperative Societies-cum-Registrar Institution, Sawai Madhopur] challenging the notice dated 25.02.2019 issued by the respondent No. 1-Deputy Registrar, Cooperative Societies-cum-Registrar Institution, Sawai Madhopur. 4. This Court on 07.03.2019, after hearing the counsel for petitioners, refused to interfere in the writ petition and dismissed the same. The operative portion of the order of this Court is quoted hereunder:- "This Court finds that if the Registrar on his own motion has sought certain information from the petitioners with respect to affiliation/constitution of the elected body and other information relating to registration of primary units as per Section of the Act of 2005 and further the information with regard to orders which have been passed by the different Courts, this Court cannot term the said notice to be wholly without jurisdiction or Registrar having no competence to issue such notice. The show cause-notice which has been given to the petitioners can always be issued for eliciting information, which has been sought, and only by issuance of notice under Section 23, it cannot be said that the Registrar or respondents are determined to disqualify the petitioners association. This Court further finds that the dispute with regard to elections which have taken place in past is not the subject matter by which the Registrar has sought information or he intends to overturn the judgment which has been passed by the competent Court.
This Court further finds that the dispute with regard to elections which have taken place in past is not the subject matter by which the Registrar has sought information or he intends to overturn the judgment which has been passed by the competent Court. The information which is sought by way of show cause-notice in no way affect rights of the petitioners at this juncture and as such the show cause-notice cannot be faulted on the ground that the Registrar has invoked power under Section 23 of the Act for conducting the inquiry. The submission of learned counsel for the petitioners that this Court has laid down the law in the case of Rajasthan Tennis Association through its President Vs. Rajasthan Cooperative Societies & Ors. (supra), that Section 23 read with Rule 8 do not contemplate a roving and fishing inquiry to be held by the Registrar or his nominee, this Court finds that in the present case by issuing show cause-notice no opinion is formed and only information has been sought from the petitioners association with regard to certain elections which are said to be complained of. The submission of learned counsel for the petitioners that the Apex Court has not approved power of the executive authorities to nullify a judicial verdict, this Court finds that by issuing the notice to the petitioners, the Registrar has not formed any opinion or he has not flouted any order passed from time to time by different Courts. It goes without saying that the petitioners if have orders in their favour, passed by the competent Courts/authorities, they can always place the same before the Registrar who has issued the show cause-notice. This Court does not find any force in the instant petition and the same is dismissed." 5. The petitioners, after dismissal of their writ petition, approached the respondents and after obtaining the copy of the order dated 07.03.2019, they supplied the same to the respondents. 6. The petitioners have pleaded that the respondent No. 1, in gross violation of principles of natural justice, has straightaway passed the impugned order of disqualification. The petitioners have alleged that copy of the complaint, filed by the respondent No. 3-Dr. Sumit Garg was neither given to them nor record was made available and straightaway impugned order of disqualification was passed. 7.
The petitioners have alleged that copy of the complaint, filed by the respondent No. 3-Dr. Sumit Garg was neither given to them nor record was made available and straightaway impugned order of disqualification was passed. 7. The petitioners have pleaded that before passing order under Section 23 of the Act of 2005, the Registrar was duty bound to supply copy of the enquiry report and also to provide opportunity of hearing to the person concerned. 8. The petitioners have further pleaded that the Registrar has no jurisdiction under the Act of 2005 to decide the dispute regarding election of rival factions and such dispute can only be decided by way of arbitration or by the Civil Court. The petitioners have pleaded that such disputes have already been decided in their favour and the Registrar could not have passed the order of election of rival factions, being invalid. 9. The petitioners have further pleaded that as per Section 24(2) of the Act of 2005, in the case of disqualification, the only option open to the Registrar is to form ad-hoc Committee and hold fresh elections. It is alleged that the respondent No. 1 could not have overruled or superseded the judicial verdicts and given validity to election of the respondent No. 3. 10. Learned Advocate General and Mr. Rajendra Prasad, Senior Counsel appearing for the respondents submitted that this Court may not entertain the present writ petition, as the order passed under Section 24 of the Act of 2005 is appealable under Section 35 of the Act of 2005. Counsel for the respondents have submitted that the Registrar, if has passed the order under the provisions of the Act of 2005, appeal lies against the said order to Secretary to the Government, Department of Youth Affairs and Sports within thirty days from the order being made. Counsel also submitted that the decision given by Secretary to the Government, Department of Youth Affairs and Sports, made in appeal, is final and a revision against the said order may be filed before the High Court, within thirty days from passing of such order. 11.
Counsel also submitted that the decision given by Secretary to the Government, Department of Youth Affairs and Sports, made in appeal, is final and a revision against the said order may be filed before the High Court, within thirty days from passing of such order. 11. Learned counsel for the respondents argued that once this Court had decided the earlier writ petition filed by the petitioners vide order dated 07.03.2019 and did not interfere in the notice dated 25.02.2019, the Registrar has rightly exercised his power under Section 24 of the Act of 2005 and the present writ petition, filed by the petitioners, is not liable to be entertained, in view of the statutory alternative remedy. 12. Learned counsel for the respondents also submitted that the respondent No. 3 had felt aggrieved against the interim order passed by this Court in the present writ petition on 05.04.2019 and D.B. Special Appeal Writ No. 1194/2019 was filed assailing the said interim order and the Division Bench on 20.08.2019, while remanding the matter to the Single Bench, had observed that if alternative efficacious remedy was available to the petitioner, the same was required to be considered by the Single Bench for considering the case of the petitioners, challenging the order issued under Section 24 of the Act of 2005. Learned counsel, on the strength of the said observation of the Division Bench, reiterated that the present writ petition is not liable to be entertained, in view of alternative, efficacious remedy available to the petitioners under the Act of 2005. 13. Learned counsel appearing for the petitioner Mr. S.S. Hora placed reliance on the judgment of the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998) 8 SCC 1 . The extract of para-15, relied upon by the learned counsel, is reproduced hereunder:- "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 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 or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but 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." 14. Learned counsel, on the strength of the said judgment, submitted that there has been a violation of principles of natural justice and further order of the Registrar, is without jurisdiction and as such alternative remedy cannot be a bar to entertain the writ petition. 15. Learned counsel also placed reliance on three orders passed by the coordinate Bench of this Court at Principal Seat at Jodhpur, viz., order dated 05.05.2010 passed in S.B. Civil Writ Petition No. 4413/2010 [Banswara District Cricket Association & Anr. Vs. Registrar, Cooperative Societies & Ors.]; order dated 15.07.2019 passed in S.B. Civil Writ Petition No. 9982/2019 [District Cricket Association, Dungarpur & Anr. Vs. Deputy Registrar, Cooperative Societies Cum Registrar Institutions, Dungarpur & Ors.]; and order dated 21.08.2019 passed in S.B. Civil Writ Petition No.12370/2019 [District Cricket Association, Jodhpur & Anr. Vs. Inquiry Officer Cum Block Co-operative Inspector, Pipad City/Bilara & Ors.]. 16. Per contra, learned Senior Counsel appearing for the respondent Mr. Rajendra Prasad, places reliance on a judgment passed by the High Court of Patna in Civil Writ Jurisdiction Case No. 14622/2017 [Md. Wasiur Rahman & Ors. Vs. The State of Bihar & Ors.] decided on 25.04.2018. Learned counsel, on the strength of the said judgment, submitted that alternative remedy of appeal is available to the petitioners and thereafter revision petition can be filed before the High Court and as such the present writ petition under Article 226/227 of the Constitution of India may not be entertained. 17.
The State of Bihar & Ors.] decided on 25.04.2018. Learned counsel, on the strength of the said judgment, submitted that alternative remedy of appeal is available to the petitioners and thereafter revision petition can be filed before the High Court and as such the present writ petition under Article 226/227 of the Constitution of India may not be entertained. 17. I have heard counsel for the parties and with their assistance perused the material available on record. 18. It would be relevant to quote Sections 21, 22, 23, 24 and 35 of the Act of 2005, relevant for the present purpose, which read as under:- "21. Disaffiliation:- (1) A State Level Sports Association may after giving due hearing, disaffiliate any District Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of this Act for two years in succession and inform the Registrar, who may take appropriate action under Section 24. (2) The Rajasthan State Sports Council may after giving due hearing, disaffiliate any State Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of this Act for two years in succession and inform the Registrar, who may take appropriate action under Section 24. 22. Grounds for Disqualification:- (1) A Sports Association shall be liable to action on any of the following grounds:- (a) if the Sports Association fails to maintain accounts and submit the same under section 19 or fails to produce the same when called for inspection; (b) if the Sports Association fails to hold elections in accordance with its bye-laws, or, as the case may be, when enjoined by the provisions of Chapter VII; (c) if the Sports Association fails to carry out its obligations under Chapter VIII; (d) if the Sports Association or any of its Office Bearers or any other member of the Executive Body misappropriates the funds for his personal gains or mismanages the affairs of the Sports Association to give undue benefit to any other person; (e) if the Sports Association is disaffiliated under Section 21.
(2) A State Level Sports Association may after giving opportunity of being heard, recommend the Registrar that a District Level Sports Association affiliated to it may be disqualified if it- (a) does not follow the State Level Sports Association in the matter of conducting tournaments and flouts its Regulations; (b) does not pay the affiliation fee; (c) otherwise violates the provisions of its own registered bye-laws. 23. Inquiry:- (1) The Registrar may:- (a) on the request of the State Level Association, or (b) on the request of not less than one tenth of the total members of a Sports Association, or (c) on his own motion, hold an enquiry, either himself or by a person duly authorised by him. (2) The Registrar or the person authorised by him shall for the purpose of any inquiry, have all the powers to inspect records, direct production and take copy of any document of the concerned Sports Association for the purpose of the enquiry. 24. Disqualification:- (1) After holding an inquiry the Registrar, after giving an opportunity of being heard to the affected Sports Association, may:- (a) appoint an Ad-hoc Executive Committee and cause to hold fresh elections of the Executive Body within three months. (b) in the case of misappropriation of funds, take action in accordance with law. (2) No existing Office Bearer of a Sports Association which is disqualified under sub-section (1) shall be permitted to contest elections of any Sports Association for a period of six years from the date of such disqualification. 35. Appeal:- (1) Any Sports Association or person aggrieved by an order made by the Registrar under the provisions of this Act may appeal against the order to the Secretary to the Government, Department of Youth Affairs and Sports within thirty days of such an order being made. (2) The decision of the Secretary to the Government, Department of Youth Affairs and Sports made in such an appeal shall be final and a revision against his order may lie with the High Court within thirty days of such an order." 19. This Court finds that the petitioners had filed S.B. Civil Writ Petition No. 4858/2019 [District Cricket Association, Sawai Madhopur & Ors. Vs.
This Court finds that the petitioners had filed S.B. Civil Writ Petition No. 4858/2019 [District Cricket Association, Sawai Madhopur & Ors. Vs. Deputy Registrar, Cooperative Societies-cum-Registrar Institution, Sawai Madhopur] challenging the notice dated 25.02.2019 issued by the respondent No. 1 to the petitioners, which came to be dismissed by this Court holding that power invoked by the Registrar, could not be faulted for conducting enquiry. 20. This Court is of the opinion that the respondent No. 1, if has passed the order exercising his power under Section 24 of the Act of 2005, the proper course open to the petitioners is to file appeal under Section 35 of the Act of 2005. The remedy provided to any aggrieved person against the order passed by the Registrar, is a statutory remedy and writ jurisdiction in such cases straightaway cannot be exercised. 21. The grievance with regard to not following principles of natural justice or such order suffering from any illegality, including violation of provisions of the Act of 2005, can always be agitated before the appellate authority. This Court finds that if statutory and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. There is no dispute on the proposition of law that alternative remedy does not operate as a bar but the High Court has to impose upon itself certain restrictions. This Court finds that violation of principles of natural justice or even action/order being without jurisdiction, the jurisdiction of High Court is altogether not excluded. 22. The Apex Court in the case of Agarwal Tracom Pvt. Ltd. Vs. PNB & Ors. reported in (2018) 1 SCC 626 considered the availability of alternative statutory remedy of filing an application under Section 17(1) of the SARFAESI Act before the Tribunal concerned. The Apex Court relying on the judgment passed in the case of United Bank of India Vs. Satyawati Tondon reported in (2010) 8 SCC 110 held as follows:- "33. In United Bank of India vs. Satyawati Tondon & Ors., (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act.
In United Bank of India vs. Satyawati Tondon & Ors., (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand: "42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person.
the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance." 33. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellant's writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellant's deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court." 23. The Apex Court in the case of Bharati Reddy Vs. State of Karnataka & Ors.
We find no ground to interfere with the impugned judgment of the High Court." 23. The Apex Court in the case of Bharati Reddy Vs. State of Karnataka & Ors. reported in (2018) 12 SCC 61 while considering the availability of alternative forum, not ousting jurisdiction of writ courts, held that it is the discretion of writ courts to entertain the writ petition where alternative remedy is available. The relevant para 13 of the judgment is quoted hereunder:- "13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition." 24. This Court considering the facts of the present case, finds that if the Registrar has issued the order, exercising his power under Section 24 of the Act of 2005, the petitioners can raise all the grievances by filing appeal before the appellate authority and they are not rendered remediless or in a way the forum of filing appeal, is made available to them. 25. As regards reliance placed by learned counsel for the petitioners on the order dated 05.05.2010 passed in S.B. Civil Writ Petition No.4413/2010 [Banswara District Cricket Association & Anr. Vs. Registrar, Cooperative Societies & Ors.], this Court finds that the coordinate Bench at Principal Seat at Jodhpur has only issued notices for final disposal and passed interim order as well, however, the question of alternative remedy available, had been left to be decided at the time of final hearing. Further reliance placed on the order dated 21.08.2019 passed in S.B. Civil Writ Petition No.12370/2019 [District Cricket Association, Jodhpur & Anr. Vs. Inquiry Officer Cum Block Co-operative Inspector, Pipad City/Bilara & Ors.] also pertains to issuance of notice and passing of interim order and so far as the reliance placed on the order dated 15.07.2019 passed in S.B. Civil Writ Petition No. 9982/2019 [District Cricket Association, Dungarpur & Anr. Vs.
Vs. Inquiry Officer Cum Block Co-operative Inspector, Pipad City/Bilara & Ors.] also pertains to issuance of notice and passing of interim order and so far as the reliance placed on the order dated 15.07.2019 passed in S.B. Civil Writ Petition No. 9982/2019 [District Cricket Association, Dungarpur & Anr. Vs. Deputy Registrar, Cooperative Societies Cum Registrar Institutions, Dungarpur & Ors.] the coordinate Bench at Principal Seat at Jodhpur again admitted the writ petition and passed interim order. 26. In the facts & circumstances of the case, this Court, keeping in view the provision of appeal, available to the petitioners under Section 35 of the Act of 2005, is not inclined to entertain the present writ petition. 27. Counsel for the petitioners Mr. S.S. Hora submitted that if this Court is not inclined to entertain the writ petition on account of alternative remedy, this Court may continue the interim order passed in the present writ petition till the disposal of the appeal by the Appellate Authority. Counsel places reliance on the order dated 10.12.2018 passed by this Court in S.B. Civil Writ Petition No. 24659/2018 (Rajasthan Cricket Association & Anr. Vs. State of Rajasthan & Ors.). Counsel on the strength of the said order submitted that this Court while directing the parties to approach the Appellate Authority, passed restraint order of not passing any order till the appeal was decided. 28. This Court finds that in the case of Rajasthan Cricket Association (supra), this Court has only considered the scope of the Appellate Authority with regard to granting interim order in appropriate case. The petitioners are always free to file appropriate application for seeking interim relief before the Appellate Authority, however, no such direction is required to be given to continue the ex-parte interim order passed in the present writ petition. 29. Consequently, the present writ petition is dismissed, as statutory alternative remedy is available to the petitioners.