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2020 DIGILAW 439 (RAJ)

B. r. Soni v. State of Rajasthan

2020-02-28

ASHOK KUMAR GAUR

body2020
JUDGMENT Ashok Kumar Gaur, J. - The present writ petition has been filed by the petitioner challenging the order dated 30 th January, 2020, passed by the Deputy Registrar Co-operative Societies, Jaipur. 2. The petitioner has also prayed in the petition that any decision or action or meeting which may be taken by the ad-hoc Committee constituted in pursuance of order dated 30 th January, 2020 may be quashed and set aside. The further prayer in the alternative is made to issue a direction to Principal Secretary, Department of Sports and Youth Affairs, Government of Rajasthan to decide the appeal filed by the petitioner within a period of one week and till such decision of the appeal, effect and operation of the order dated 30 th January, 2020 may be stayed and the respondents be directed not to hold further election in pursuance of the order of the adhoc committee. 3. Mr. S.S. Raghav, Additional Advocate General, has put in appearance as caveator on behalf of the respondent No. 3 Registrar, Cooperative Societies, Jaipur and further also represents the respondent Nos. 1, 2 & 5. Mr. Ravi Bhojak, Advocate is also appearing as caveator on behalf of respondent No. 6 Convener, Adhoc Committee, Jaipur District Cricket Association. 4. Learned Senior Counsel appearing for the petitioner submitted that the order dated 30 th January, 2020 passed under Section 24 of the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 (for short the Act of 2005), suffers from serious illegalities and as such this Court needs to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. 5. Learned counsel further submitted that even the subsequent actions, which have been taken by the respondents of holding the election of Jaipur District Cricket Association by issuing election notice dated 8 th February, 2020 and appointment of ad-hoc committee, also need to be declared bad in the eye of law. 6. Learned Additional Advocate General Mr. SS Raghav and Mr. Ravi Bhojak, Advocate submitted that the present writ petition is not maintainable before this Court in view of the statutory appeal provided under Section 35(1) of the Act of 2005. Learned counsel further submitted that the petitioner himself has filed memo of appeal in the writ petition and since the petitioner has already availed the remedy of filing appeal, this Court need not interfere in the present matter. 7. Learned counsel further submitted that the petitioner himself has filed memo of appeal in the writ petition and since the petitioner has already availed the remedy of filing appeal, this Court need not interfere in the present matter. 7. Learned counsel further submitted that if petitioner has any grievance with respect to order issued by the Registrar exercising its power under Section 24 of the Act of 2005 and further action has been taken after appointment of ad-hod committee including the process of election, the petitioner is required to agitate his rights before the Appellate Authority. 8. Learned counsel, appearing for the respondents, submitted that this Court in SB Civil Writ Petition No. 6523/2019 ( District Cricket Association, Sawaimadhopur v. Deputy Registrar, Cooperative Societies cum Registrar Institution, Sawaimadhopur ) has decided the similar controversy vide judgment dated 24 th September, 2019 and this Court has held that if the remedy of appeal is available, the Appellate Authority is required to adjudicate upon the dispute which arises from the order passed under Section 24 of the Act of 2005. 9. Learned counsel, on the strength of said judgment, submitted that the present writ petition is not maintainable in view of the statutory alternative remedy available to the petitioner. Learned counsel also submitted that the interim order which was passed in the case of District Cricket Association, Sawaimadhopur (supra) was not continued by this court while sending the matter back to the Appellate Authority and as such, in the present case also, this Court only can direct the petitioner to approach the Appellate Authority and no interim order may be passed. 10. This Court finds that similar situation had arisen for consideration in SB Civil Writ Petition No. 24659/2018 ( Rajasthan Cricket Association v. State of Rajasthan ), whereby this Court was again required to consider the scope of interference in the order passed under Section 24 of the Act of 2005. This Court also had to consider the issue of alternative remedy available to a party if he felt aggrieved against the order passed under Section 24 of the Act of 2005. This Court was also required to consider the issue of grant of interim relief till the appeal was to be decided by the Appellate Authority, as the election process for holding the election was initiated during pendency of the writ petition in that case. 11. This Court was also required to consider the issue of grant of interim relief till the appeal was to be decided by the Appellate Authority, as the election process for holding the election was initiated during pendency of the writ petition in that case. 11. This Court while considering the scope of passing the interim order and availability of alternative remedy, has held as under : '49. This court finds that once right of appeal is provided to any Sports Association or person aggrieved by the order made by the Registrar, the normal procedure of filing the appeal is required to be availed by such Association or person, as the case may be. 50. to 52. XX XX XX 53. This court finds substance in the submission of learned counsel for the respondents that the present petition may not be entertained and the petitioners have an alternative remedy and the same should be allowed to be availed by them. 54. This court holds that in view of the alternative remedy available, the writ jurisdiction is not to be exercised in the instant case. 55. to 63. XX XX XX 64. There is no quarrel on the proposition that if election is put to challenge and if election petition is required to be filed, the remedy of election petition is the only remedy and the High Court cannot interfere in the writ jurisdiction. 65. to 68. XX XX XX 69. Counsel on the strength of the law laid down by the Apex Court has submitted that in a given case if the High Court finds that even if the election process is set in motion and there are serious questions about legality of the decision of the competent authority which can ultimately also result in third party rights being created, the High Court is not precluded from passing the interim order. 70. Learned senior counsel for the petitioner Mr. R.P. Singh has further placed reliance on the judgment of the Apex Court in the case of Star Paper Mills Ltd. v. State of UP reported in (2006) 10 SCC 201 . Learned counsel submitted that the Apex Court has laid down the principle that if the writ petition is not found to be maintainable on account of availability of alternative remedy, the court is not precluded from passing appropriate interim orders till final adjudication from the authority concerned. 71. Learned counsel submitted that the Apex Court has laid down the principle that if the writ petition is not found to be maintainable on account of availability of alternative remedy, the court is not precluded from passing appropriate interim orders till final adjudication from the authority concerned. 71. XX XX XX 72. This court upholds the objection of the respondents of writ petition being not maintainable and as such the petitioners are required to raise the grievance before the appellate authority. The only issue before this court is whether interim protection is required in the instant case till the appeal is decided by the appellate authority. 73. to 74. XX XX XX 75. The submission of the learned counsel for the respondents that this court should not pass any interim order as the election process has already started, this court finds that the writ petition was filed before this court on 30.10.2018 and at that point of time, neither the notice for election was issued nor the appellate authority was available to take up the appeal filed by the petitioners. There is no quarrel on the proposition that this court should not interfere when the election process starts, however, if a person has approached this court before the election process is set in motion, this court taking into consideration the entire facts of the case, may not be denuded from its power to pass appropriate order to protect rights of all the parties. 76. Learned counsel for the respondents submit that there was no interim order passed by any authority or this court and the adhoc Committee was within its domain to conduct elections, this court finds that notice for election has been issued as the Registrar has directed to conduct the election within three months, as per the requirement of the Act, however, nobody/no authority had prevented the Convenor of the adhoc Committee to take into account the various orders which have been passed from time to time and further matter was subjudice before this court. 77. 77. The submission of learned counsel that if at all the petitioners are entitled for any interim relief, they are free to move application before the competent authority, this court finds that in the normal course when the appellate authority is conferred with the power of passing interim order, as has also been admitted by all the counsel for the respondents, it may take up the issue of deciding the application itself for interim order. This court finds that there is an urgency in the matter as the election notice has already been issued, however, the rights of the petitioners cannot be jeopardized on account of sending back to get the appeal decided and no interim order be passed for the interregnum period. 78. This court accordingly decides the present writ petition by holding that the present writ petition is not maintainable on account of alternative statutory remedy being available to the petitioners, however, the petitioners are granted liberty to file any additional application or document which they intend to file before the appellate authority. The appellate authority is directed to call all the parties and decide the appeal itself on 13.12.2018. It is made clear that no further steps will be taken in pursuance of the election notice dated 25.11.2018 till the appeal is decided on 13.12.2018. It is further made clear that parties to the petition and those who have been allowed to intervene in the matter, are free to appear before the appellate authority and no unnecessary adjournments will be sought and granted. 79. Consequently, the present writ petition stands disposed of in terms of above directions.' 12. Mr. Kamlakar Sharma, Senior Advocate, when confronted with the said situation, submitted that if this Court is not inclined to interfere in this matter due to availability of alternative remedy, at least some protection may be granted by passing interim order restraining the respondents not to proceed with the election process, which they have started by issuing election notice dated 8 th February, 2020. 13. Mr. Kamlakar Sharma, Senior Advocate also submitted that the petitioner has approached this Court under extra ordinary circumstances, as appeal by the petitioner was filed before the Appellate Authority on 7 th February, 2020 and since appeal was not taken up for hearing and even the stay application was not taken up, the petitioner in such circumstances, has been forced to approach this Court. 14. Mr. Kamlakar Sharma, Senior Advocate further submitted that as far as the judgment of this Court in District Cricket Association, Sawaimadhopur (supra) is concerned, the said order was challenged before the Division Bench and the Division Bench vide order dated 1 st October, 2019 without interfering with the order passed by this Court, directed that till the appeal was to be disposed of by the Appellate Authority, the respondent-State was restrained from constituting the ad-hod committee with regard to the District Cricket Association, Sawaimadhopur. 15. Mr. SS Ragahv, AAG submitted that in the case of DB Civil Special Appeal No. 1474/2019 ( District Cricket Association, Sawaimadhopur v. Deputy Registrar, Cooperative Societies ), the situation which was obtaining was different and statement was made by the Advocate General that till decision by the Division Bench on 1 st October, 2019, no ad-hoc committee was constituted in the District Cricket Association, Sawaimadhopur and apprehension of the appellants in that case was unfounded. 16. Mr. SS Raghav, AAG further submitted that in the aforesaid case there was no challenge to the notice, which was issued for the election process and as such, the Division Bench's order will not govern the present case. 17. He further submitted that the petitioner after filing the appeal has not pursued the matter and finally the Appellate Authority is taking up the matter as notice has been issued on 24 th February, 2020 and next date has been fixed on 13 th March, 2020 and as such, if the petitioner pursues his remedy before the Appellate Authority, the Appellate Authority will accordingly decide the appeal after service of notice on all the parties concerned. 18. Mr. Ravi Bhojak, learned counsel appearing on behalf of the respondent No. 6, submitted that this Court need not interfere in the present matter and he raised following objections : (i) The petitioner has approached this Court seeking a writ of mandamus without giving a notice or calling upon the respondents to perform their part and without waiting for any response, he has approached this Court. (ii) The petitioner has filed appeal before the Appellate Authority, however, he has not pursued before the Appellate Authority and the petitioner himself did not want hearing of the appeal to take place. (ii) The petitioner has filed appeal before the Appellate Authority, however, he has not pursued before the Appellate Authority and the petitioner himself did not want hearing of the appeal to take place. (iii) The election process has already been set in motion, as election notice has been issued and this court is not required to interfere in the matter at this stage. 19. I have considered the submissions made by learned counsel for the parties and perused the record of the case. 20. This Court finds that as far as maintainability of the writ petition under Article 226 of the Constitution of India is concerned, this Court in the cases of District Cricket Association, Sawaimadhopur (supra) and Rajasthan Cricket Association (supra) has taken a view that if any party feels aggrieved against the order passed under Section 24 of the Act of 2005, the proper remedy is to pursue the appeal, which is provided under Section 35 of the Act of 2005. 21. This Court accordingly finds that since the petitioner has already availed the remedy of filing appeal before the Appellate Authority and as such, this Court would not consider the validity of the order dated 30 th January, 2020, passed by the Registrar, exercising its power under Section 24 of the Act of 2005. 22. The learned counsel for the petitioner submitted that if this Court is not entertaining the appeal, the Appellate Authority is required to be directed to decide the appeal in expeditious manner. Learned counsel submitted that there is no time limit prescribed under the Act of 2005 and as such, the Appellate Authority is taking full benefit of such situation and accordingly, the appeal of the petitioner has not been taken up for hearing. 23. Learned counsel further submitted that if this Court is relegating the petitioner back to the Appellate Authority, at least direction may be given to dispose of the appeal in a time bound manner. 24. Learned counsel bmitted that facts of the present case depict that after passing of the order by the Registrar, Cooperative Societies under Section 24 of the Act of 2005 on 30 th January, 2020, the respondents immediately swung into the action and they appointed the Election Officer and even the Election Officer, has issued election notice dated 8 th February, 2020. 25. Mr. 25. Mr. Kamlakar Sharma, Senior Advocate submitted that this Court has considered the scope of passing interim order in the case of Rajasthan Cricket Association (supra) and accordingly, prayer is made that the Appellate Authority may be directed to decide the appeal in a time bound manner and further election process, which has been initiated by publication of voter list, may be stayed till the appeal is decided. 26. Mr. SS Raghav, AAG and Mr. Ravi Bhojak opposed the said prayer and submitted that since election notice has already been issued and this Court is giving direction to decide the appeal itself, the entire election schedule will be disturbed and this Court may not pass any order restraining the Election Officer to proceed further in the matter. 27. This Court finds that the Appellate Authority, in the present case has already fixed the next date on 13 th March, 2020 but it needs to prepone the date and accordingly, notice will be issued to the parties, who are arrayed in the appeal informing them about preponement of the date. 28. This Court finds that the Appellate Authority should decide the main appeal itself by fixing the date of 5 th March, 2020 and all endeavour should be made to conclude the hearing of appeal on the same day and if, it is not possible to conclude the hearing on the same day, the appeal should be taken up for hearing on the next day i.e. 6 th March, 2020. 29. This Court considering the peculiar facts of this case, as the election notice has been issued on 8 th February, 2020 and further, considering the outer limit of conducting election in 90 days, as per the requirement of Section 24(1) of the Act of 2005, deems it proper to restrain the respondent - Election Officer to proceed further in the matter till the appeal is decided by the Appellate Authority on 5 th /6 th March, 2020. It is made clear that no parties would be granted adjournment before the Appellate Authority for any reason whatsoever. 30. Accordingly, the present writ petition stands disposed of.