1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6128 OF 2009 WITH CIVIL APPLICATION NO.9462 OF 2009 Bharatkumar Uttamlal Shah, R/o-Shah Compound, Taloda Road, Nandurbar. ...PETITIONER. VERSUS 1) The Assistant Registrar, Co-operative Societies, Nandurbar. 2) Shri D.F. Kasar, Assistant Co-operative Officer, R/o-Office of Assistant Registrar, Co-operative Societies, Nandurbar. ...RESPONDENTS. ... Mr.P.M. Shah, Senior Counsel i/b. S.P. Shah Advocate for Petitioner. Mr.N.H. Borade A.G.P. for Respondent Nos. 1 & 2. Mr.V.D. Hon Advocate Intervener Mr. Mahendra s/o Narottam Deliwala ... CORAM: K.K. TATED, J. DATE : 9TH OCTOBER, 2009. 2 PER COURT : 1. Leave to amend. Amendment to be carried out forthwith. 2. Heard learned counsel for the Petitioner and learned counsel for intervenor and learned A.G.P. for Respondent Nos. 1 and 2. 3. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 4. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioner challenges the order dated 20th August, 2009 passed by the Assistant Registrar, Co-operative Societies, Nandurbar pursuant to the show cause notice dated 25th September, 2008. A few facts of the present case are as under: . In the present case the Assistant Registrar by his letter dated 6th September, 2007 directed the Chairman/ Secretary of Girivihar Co-operative Housing Society Ltd. Nanurbar, Tq. & Dist-Nandurbar to follow Rule 60 (5) of 3 the Maharashtra Co-operative Societies Rules, 1961 i.e. voting to be done by secret ballot papers because the capital of the society is more than Rs.10,000/-. Thereafter the authority issued show cause notice dated 25th September, 2008 to the society for violating the Rule 60 (5) of the Maharashtra Co-operative Societies Rules, 1961 at the time of passing Resolution No.6 in general body meeting dated 7th September, 2008. By this show cause notice the authority called upon the society why action should not be taken as per Section 73 H of the Maharashtra Co-operative Societies Act, 1960. 5. Learned senior counsel for the Petitioner submits that as per general body meeting dated 7th September 2007, nine members were declared as elected because the society received nomination forms from 9 persons only and therefore there was no question for any voting. He submitted that the Assistant Registrar issued notice for violation of Rule 60(5) of the said Rules on the ground that the society has not elected those nine persons by secret voting. Learned senior counsel for the Petitioner submitted that only nine persons submitted their nomination forms and hence there was no question of 4 holding any voting by secret ballot papers. He further submitted that the authority failed to consider the provisions of Section 73 H of the said Act at the time of passing the impugned order. Learned senior counsel for the Petitioner submitted that Section 73 H of the said Act is applicable if the committee of the society failed to hold elections before expiry of term. In the present case only nine persons have submitted their nomination forms and those were accepted in general body meeting dated 7th September, 2007, therefore, there was no question of invoking Section 73 H of the said Act. On the basis of these submissions, learned counsel for the Petitioner submitted that the impugned order dated 20th August, 2009 passed by the Assistant Registrar, Co- operative Societies, Nandurbar is liable to be set aside. 6. Learned counsel for the intervenor submitted that the Petitioner filed the present Petition in his individual capacity, whereas other eight persons were also elected as per Resolution dated 7th September, 2007 and those eight persons were not joined as parties in the present Petition either as Petitioners and/or 5 Respondents and therefore the present Writ Petition is not maintainable. He further submitted that the alternate remedy under Section 154 of the Maharashtra Co-operative Societies Act, 1960 is available to the Petitioner and therefore the Petition is liable to be dismissed on the ground that the alternate remedy is available. Learned counsel for intervenor further submitted that the Petitioner who has filed the present Writ Petition, is not residing in the Housing Society. 7. With the assistance of both the parties, I have gone through the impugned order passed by the authority as well as the reply filed by the intervenor. Learned senior counsel for the Petitioner submitted that there is no question of invoking Rule 60(5) of the said Rules because only nine persons have filed their nomination forms for nine posts. Therefore, the society in the general body meeting dated 7th September, 2007, accepted those nomination forms and declared them as elected. He further pointed out that action under Section 73 H of the said Act can be taken only if the elections are not held before the due date. From the record it is clear that only nine persons have filed their nomination forms 6 for nine posts and therefore there is no question of any secret voting as per letter dated 6th September, 2009. In any case Section 73 H of the said Act is not applicable in the present case because the elections were held by the society on 7th September, 2007, i.e. well within time as per law. 8. Learned counsel for intervenor relied on the Judgment in the matter of Dilip s/o Devaji Yenorkar vs. Divisional Joint Registrar, Co-operative Societies, Nagpur, reported in 2009 (5) Mh. L.J. Page 165 in support of his contention that when a particular forum is provided for remedy, then that remedy has to be availed first. Head Note (c) of the Judgment reads as under: " (c) Constitution of India, Art. 226 and Maharashtra Co-operative Societies Act (24 of 1961), S. 154 - Availing of available remedy - When a particular forum is provided that remedy must be availed - The restraint has to be observed or else the High Court would be flooded with litigation and the very purpose of creating alternate forum would be defeated - That has to be 7 avoided and the forum created under the Act must be left to deal with the disputes." 9. It is settled principle of law that if alternate remedy is available, then the litigant must avail the same first. But if the order passed by the authority itself is without any jurisdiction, then the Court can entertain the Petition under Articles 226 and 227 of the Constitution of India. The High Court should not ordinarily entertain the Writ Petition when alternative remedy is available except where a very strong case is made out for departure from the general rule. Availability of an alternative remedy by itself may not be a ground for the Court to refuse to exercise jurisdiction under Articles 226 and 227 of the Constitution of India. This principle is laid down by the Apex Court in the matter of Committee of Management and another vs. Vice-Chancellor and others, reported in (2009) 2 Supreme Court Cases, Page 630. Para 23 and 25 of this Authority reads as under: "22.Apart from the fact that a 8 statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation Whirlpool Corporation v. Registrar of Trade Marks (SCC p.10, para 15) “15. …. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, 9 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. ….” [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors." 10. In the present case the authority issued show cause notice to the society for violation of Rule 60(5) of the Maharashtra Co-operative Societies Rules, 1961. When only nine persons have filed their nomination forms for nine posts, there is no question of voting by secret ballot papers. All those nine persons were declared as elected without any opposition. Therefore, the objection raised by the learned counsel for intervenor in that respect is not sustainable in the present case. 11. The next objection of the learned counsel for the intervenor is that the present Petition is filed by only one person whereas nine persons were elected. In any case every elected person has right to challenge the impugned order. Therefore, the objection raised by the 10 learned counsel for the intervenor is not sustainable in law. The intervenor in his affidavit in reply dated 18th September, 2009 raised several other objections such as non issuance of any notice for the election, signature of the proposer on nomination forms etc. These objections cannot be considered in the present Petition because petition is preferred against the impugned order dated 20th August, 2009 which is passed pursuant to the show cause notice dated 25th September, 2008. The said show cause notice is in respect of non compliance of Rule 60 (5) of the said Rules. Considering these facts, impugned order dated 20th August, 2009 passed by the Assistant Registrar, Co-operative Societies, Nandurbar pursuant to the show cause notice dated 25th September, 2008 is set aside. Writ Petition is allowed in terms of prayer clause (A) which reads as under: "(A) The Hon'ble High Court may be pleased to issue writ of certiorari or any other appropriate writ, order or direction in the nature of writ and thereby quash and set aside impugned order dated 20.08.2009." 11 12. Rule is made absolute accordingly. 13. In view of the disposal of Writ Petition itself, nothing survives for consideration in the Civil Application and the same is also disposed of. [K.K. TATED, J.] asb/OCT09/wp6128.09