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2023 DIGILAW 1191 (RAJ)

Jeetmal Jat v. State of Rajasthan

2023-05-26

NUPUR BHATI

body2023
ORDER 1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India with the following prayers:- "(a) Be pleased to issue writ of quo warranto and declare the private respondent Shri Badri Lal disqualified to be President of Women Village Development/Milk Production Cooperative Society Ltd., Jagpura; (b) Be pleased to order the respondent Shri Badri Lal to vacate the office of President of Women Village Development/Milk Production Cooperative Society Ltd., Jagpura; (c) Be pleased to restrict the private respondent Shri Badri Lal from contesting any further election in the concerned co-operative society; (d) The writ petition may be allowed with cost; (e) Any other appropriate writ or order or direction which is favorable to the petitioner in the facts and circumstances of the case may kindly be granted to the appeal." 2. The facts in brief, giving rise to the present controversy, are that the petitioner is the elected President of the Executive Committee of Women Development/Milk Production Co-operative Socoeites Ltd., Kharkhanda, Tehsil Raashmi, District Chittorgarh. The respondent No.4 contested election for the post of President of the Executive Committee of Women Village Development/Milk Production Co-operative Societies Ltd., Jagpura, Tehsil Rood, District Chittorgarh. The above referred two societies fall under the same ward, i.e. Ward No.1 of the Panchayat Samiti, Gangrar and Rashmi, District Chittorgarh, therefore, both petitioner and respondent No.4 are eligible to contest the election for the post of Member of Ward No.1. It is stated that the respondent No.4 concealed the fact that he is having three children (2 sons and 1 daughter) and thus, he is not entitled to contest election and even to hold the post of President, Women Village Development/Milk Production Co-operative Society, Jagpura. The fact regarding the respondent No.4 having three children was established by a communication dated 31.03.2021 (Annex.and 4) under Right to Information Act. The respondent No.4 is, thus, not entitled to contest the election as per the provisions of Section 28(10) of the Rajasthan Co-operative Societies Act, 2001 (for short, 'the Act of 2001'), which provides that a person, having more than two children, is not eligible to contest the election and he/she shall be disqualified under this provision. 3. The respondent No.4 is, thus, not entitled to contest the election as per the provisions of Section 28(10) of the Rajasthan Co-operative Societies Act, 2001 (for short, 'the Act of 2001'), which provides that a person, having more than two children, is not eligible to contest the election and he/she shall be disqualified under this provision. 3. The respondent-Society thereafter declared the election schedule for the Governing Board as well as for the post of President of the District Milk Production Co-operative Organization and the petitioner and respondent No.4 also filed their nomination forms. The petitioner, on coming to know about the fact regarding the respondent No.4 having more than two children, filed a complaint/objection before the respondent-authorities but no action was taken against the respondent No.4 and was not disqualified. Hence, this petition. 4. Shri M.R. Khatri, learned counsel for the petitioner submits that the respondent No.4 has concealed material fact of having three children while submitting his nomination form and, thus, as per the provisions of Section 28(10) of the Act of 2001, he is entitled to be declared as disqualified to contest the election and cannot be permitted to hold the post of public representative. 5. Shri Sunil Beniwal, learned AAG, appearing for the respondent Nos.1 to 3 submits that the petitioner is seeking relief that the respondent No.4 is not entitled to hold the post of President of the society as he is having more than two children and has also disputed validity of nomination, wrong acceptance of nomination, etc. to contest election and the same being purely an election dispute, can only be challenged before the Registrar, Cooperative Societies as per the provisions of Section 58(2) of the Act of 2001 and thus, the writ petition is liable to be dismissed on account of having alternative statutory remedy available to the petitioner. 6. Learned AAG also submits that right to elect, to be elected, to dispute an election etc. are neither fundamental rights nor common law rights but are simply statutory rights and are, therefore, subject to statutory limitations. In the present case, neither the fundamental right of the petitioner has been violated or infringed nor has he suffered any personal injury. Hence, the petitioner cannot seek writ of quo-warranto. 7. are neither fundamental rights nor common law rights but are simply statutory rights and are, therefore, subject to statutory limitations. In the present case, neither the fundamental right of the petitioner has been violated or infringed nor has he suffered any personal injury. Hence, the petitioner cannot seek writ of quo-warranto. 7. Learned AAG further submits that the petitioner has raised disputed questions of fact and this Court, while exercising its extraordinary writ jurisdiction, cannot decide the same. 8. Ms. Pratishtha Dave, learned counsel appearing for the respondent No.4, also raised a preliminary objection that the writ petition is not maintainable in view of the fact that a statutory alternative remedy is available to the petitioner under Section 58(2)(c) of the Act of 2001 and hence, the writ petition is liable to be dismissed. 9. Learned counsel for the respondent No.4 also submits that the petitioner, in the present writ petition, has alleged that the respondent No.4 is having more than two children on the basis of information received under the Right to Information Act. In this regard, the respondent No.4 moved an application before the District Chittorgarh for conducting an enquiry and the District Collector, directed the Tehsildar, Rashmi to make enquiry in the matter. The Tehsildar, after detailed enquiry, submitted his report. It is mentioned that the information supplied to the petitioner under the RTI Act was based upon the survey register, which were made by one Smt. Sumati CK ANM, who admitted that by mistake, entry of three children were made in the survey register. The Tehsildar, after due inquiry, gave a report dated 21.10.2022 holding that the respondent No.4 was having two children and not three. 10. Learned counsel for the respondent No.4 also submits that the District Collector also directed the Panchayat Samiti, Rashmi to conduct enquiry in the matter, pursuant to which Vikas Adhikari, Panchayati Samiti conducted an enquiry and submitted his enquiry report dated 01.11.2022, who also found that there was an error regarding the entry of three children of respondent No.4 and also did not find the respondent No.4 having three children. She submits that a three members committee consisting of three Assistant Vikas Adhikari of Panchayat Samiti, Rashmi, submitted the enquiry report dated 19.10.2022 while holding that the answering respondent No.4 had two children. 11. She submits that a three members committee consisting of three Assistant Vikas Adhikari of Panchayat Samiti, Rashmi, submitted the enquiry report dated 19.10.2022 while holding that the answering respondent No.4 had two children. 11. In addition to the above, enquiry was also conducted by Anganwadi Karyakarta Geeta Devi, who also submitted that there is no entry of third child in the record. 12. Learned counsel for the respondent No.4 further submits that at the time of election, the petitioner raised similar objection, which were rejected, which has not been challenged by the petitioner before the competent forum. Thus, now, the petitioner is not entitled to maintain this writ petition. 13. Heard learned counsel for the parties and perused the material available on record. 14. From a bare perusal of the record available and pleadings of the parties, it reveals that the petitioner has raised an objection against the election of the respondent No.4 on the basis of having three children. In this regard, detailed enquiries have been made by the competent authorities, which unanimously did not found it true that the respondent No.4 was having three children at the time of election. Moreso, the question/objection raised by the petitioner is a disputed question of fact, which cannot be entertained by this Court while exercising its writ jurisdiction under Article 226 of the Constitution of India. 15. Further, the petitioner raised the same objection at the time of filing of nomination form but the same has been rejected by the competent authority and the petitioner has not challenged the said finding before the competent forum and thus, the same has attained finality and now, the petitioner cannot raise this issue directly before this Court invoking its writ jurisdiction under Article 226 of the Constitution of India. 16. Moreover, Section 58(2)(c) of the Act of 2001, provides statutory alternative remedy to the petitioner, which reads as under:- "58. 16. Moreover, Section 58(2)(c) of the Act of 2001, provides statutory alternative remedy to the petitioner, which reads as under:- "58. Disputes which may be referred to arbitration - (1) XXX XXX (2) For the purpose of sub-section (1), the following disputes shall also be deemed to be the disputes touching the constitution, management or the business of a cooperative society, namely: (a) XXX XXX (b) XXX XXX (c) any dispute arising in connection with the election of any officer of the society: Provided that no dispute under this clause shall be entertained during the period commencing from the announcement of election programme and ending on the declaration of the results." From a bare reading of the provision aforesaid, it is clear that the petitioner has an alternative remedy available to raise his grievance before the Registrar, Cooperative Societies. Hon'ble Supreme Court and this Court, in catena of judgments, held that this Court should not interfere in the matter where there is availability of statutory alternative remedy. Not only the petitioner did not avail the alternative statutory remedy available to him under Section 58(2)(c) of the Act of 2001 but also chose not to file objection when public notice dated 14.10.2022 was issued inviting objections from anyone who had the knowledge about the number of children the petitioner had. The Coordinate Bench of this Court, in the case of Santosh & Ors. Vs. State of Rajasthan & Ors. [SBCWP No.13977/2022, decided on 21.09.2022], has observed as under:- "Having heard learned counsel for the petitioners and after going through the material available on record, this Court is of the opinion that the petitioners are having alternative remedy to initiate proceedings under Section 58(2)(c) of the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as 'the Act of 2001') which clearly provides that any dispute arising in connection with election of any officer of the society is to be adjudicated by the competent authority as defined in Section 58 of the Act of 2001." 17. In view of availability of alternative remedy to the petitioner, I am not inclined to interfere in this writ petition. The writ petition is, therefore, dismissed. 18. The stay application and all other pending applications, if any, also stand dismissed.