C.W.P. No.15476 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15476 of 2008 DATE OF DECISION: NOVEMBER 21, 2008 Ram Kumar .....PETITIONER Versus The Registrar, Cooperative Societies, Haryana,Panchkula and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr.R.S. Tacoria, Advocate, for the petitioner. Mr.Sudhir Makkar, Sr.DAG, Haryana, for respondents No.1 and 2. Mr.S.S. Dalal, Advocate, and Mr.Devender Punia, Advocate, for respondent No.3 to 5. .. SATISH KUMAR MITTAL, J. The petitioner, who is one of the Directors of the Kaithal District Primary Co-operative Agricultural and Rural Development Bank Limited (hereinafter referred to as `the Primary Cooperative Society'), has filed this petition under Article 226 of the Constitution of India for quashing the resolution dated 5.8.2008 passed by the Board of Directors of the Primary Cooperative Society nominating respondent No.5 as a representative of the said Society to participate in the election of the Haryana State Cooperative Agriculture and Rural Development Bank Limited (respondent No.3 herein) (hereinafter referred to as `the Apex Society'). It is the case of the petitioner that the Board of Directors of the Primary Cooperative Society consists of ten members, out of which, seven C.W.P. No.15476 of 2008 -2- are elected members and three are nominated members. Since the Primary Cooperative Society is the member of the Apex Society, therefore, the Primary Society can send one representative for participating in the election of the Board of Directors of the Apex Society. Consequently, the Apex Society vide letter dated 11.7.2008 (Annexure P1) asked all the members Primary Cooperative Society to appoint their representative for the election of Board of Directors of the Apex Society. In pursuance of that, the respondent-Primary Cooperative Society passed the resolution 5.8.2008 authorising respondent No.5 as its representative for participation in the election of the Board of Directors of the Apex Society. It is the case of the petitioner that the said representation was not passed in accordance with the requirement of the provisions of Rule 20 of the Haryana Co-operative Societies Rules, 1989 (hereinafter referred to as `the Rules'). According to the said rule, no member of the Committee of a Co-operative Society shall be appointed to vote or participate in the affairs of the Apex Society unless the resolution is passed by two-third members of the Committee of a Primary Cooperative Society. It is contended that in the instant case the said resolution was passed appointing respondent No.5 as a representative only by five persons out of nine present in the meeting. Therefore, the passing of the said resolution was contrary to the aforesaid Rules as it was not passed by 2/3rd majority. It has also been contended that even otherwise the nominated members, who were three in numbers and participated in the said meeting, were not having a right to vote at the time of passing of the said resolution. Therefore, the said resolution was not even passed by a simple majority. It has been further alleged that the said C.W.P. No.15476 of 2008 -3- resolution was passed under the political pressure of Shri Dilu Ram, MLA, Guhla (respondent No.6 herein) as respondent No.5 is his son. On September 02, 2008, notice of motion was issued and separate written statements have been filed on behalf of respondents No.4 and 5. In the written statement filed by respondent No.4, some preliminary objections have been raised about the maintainability of the petition. It has been alleged that the petitioner has an alternative remedy available under the Haryana Co-operative Societies Act, 1984 (hereinafter referred to as `the Act'), as he has a right to challenge the impugned resolution by filing a petition under Section 27 of the Act which empowers the Registrar to rescind any resolution of a Managing Committee of Co-operative Society, if the same is in excess of the powers conferred by the Act, rules or bye-laws or the execution of the resolution will be contrary to the interest of the society or the interest of the members thereof or is likely to cause waste or damage of the funds of the society. Against the order of the Registrar, the petitioner has further the remedy of appeal under Section 114 and revision under Section 115 of the Act. It is further submitted that after passing of the said resolution, the name of respondent No.5 was included in the tentative voter list for the election of Board of Directors of the Apex Society and vide notice dated 20.8.2008 objections were invited with effect from 22.8.2008 to 17.9.2008, but the petitioner did not file any objection and ultimately the electoral roll was finalized and published, and thereafter, the election programme for the election of Board of Directors of the Apex Society was issued. Nomination papers have been filed. The symbols have been allotted and the election is C.W.P. No.15476 of 2008 -4- to be held on 29.11.2008. Therefore, it is submitted that at this stage when the election process has already started and the election is at the fag end, this petition should not be entertained. It is further submitted that after the election, the petitioner has the remedy to challenge the election of Board of Directors of the Apex Society under the provisions of the Act by filing an election petition. We have heard the counsel for the parties. Counsel for the petitioner while referring to the decision of the Supreme Court in Harbanslal Sahnia v. Indian Oil Corpn.Ltd., JT 2002(10) SC 561 and a Division Bench decision of this Court in Balraj Singh and others v. State of Haryana 2004(3) RCR (Civil) 743, submitted that the impugned resolution passed by the Board of Directors of the respondent- Primary Cooperative Society is totally contrary to the provisions of Rule 20 of the Rules and the same has been passed under the political pressure of respondent No.6. Therefore, it is a fit case where this Court while exercising discretionary powers under Article 226 of the Constitution of India should quash such an illegal and arbitrary order. Learned counsel submitted that in Balraj Singh's case (supra), this court in exercise of the writ jurisdiction has set aside a resolution passed by the Managing Committee of the Society, whereby one person was co-opted as a member of the Managing Committee in an illegal and arbitrary manner contrary to the provisions of the Act. On the other hand, learned counsel for the respondents submitted that the Supreme Court judgment in Harbanslal Sahnia's case (supra), which has been relied upon by the counsel for the petitioner and has been referred in the aforesaid judgment of the Division Bench of C.W.P. No.15476 of 2008 -5- this Court in Balraj Singh's case (supra), does not support the contention of the counsel for the petitioner, rather it goes against him. He submits that in the facts and circumstances of this case, the present writ petition is not maintainable and the same is liable to be dismissed. After hearing the counsel for the parties and without going into the merits of the case, in the facts and circumstances of the case, we are not inclined to entertain this petition, in view of the alternative remedy available to the petitioner and in view of the fact that the election process has already started and the election is going to be held on 29.11.2008. It is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, the writ jurisdiction can be exercised in spite of availability of the alternative remedy. In Harbanslal Sahnia's case (supra), it has been held that in spite of the availability of an alternative remedy, the High Court can exercise its jurisdiction in three contingencies: (a) where the writ petition seeks enforcement of any of the fundamental rights; (b) where there is failure of principles of natural justice; and (c) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged. These three factors do not exist in the present case. There is no violation of any fundamental right of the petitioner. The impugned resolution passed by the Board of Directors of Primary Cooperative Society cannot be said to be without jurisdiction. Since the resolution was passed in the meeting of the Primary Cooperative Society in which the petitioner was also present, therefore, this is no violation of principles of natural justice. The Board of Directors of the Primary Cooperative Society was fully C.W.P. No.15476 of 2008 -6- competent to pass a resolution for sending a representative to participate in the election of the Managing Committee of the Apex Society. Whether the said resolution has been passed in violation of the requirement of bye-laws of the Society, the Rules or not, may render such resolution illegal, but not without jurisdiction. If the said Managing Committee of the Primary Cooperative Society has passed a resolution contrary to the bye-laws of the Society or the provisions of the Rules or against the interest of the Cooperative Society, the effective alternative remedy has been provided under Section 27 of the Act. Under this provision, the Registrar can rescind any resolution of a Managing Committee of Co-operative Society, if the same is in excess of the powers conferred by the Act, rules or bye-laws or the execution of the resolution will be contrary to the interest of the society or the interest of the members thereof or is likely to cause waste or damage of the funds of the society. Further, an order passed by the Registrar under Section 27 of the Act is an appealable order under Section 114(1)(c) of the Act. Even against the order passed by the Appellate Authority, an aggrieved person has a remedy of revision under Section 115 of the Act. Therefore, in our opinion, the complete machinery has been provided under the Act for setting aside an illegal resolution. The Registrar under Section 27 of the Act or the Appellate or Revisional Authority under Sections 114 and 115, respectively, have also powers to pass an interim order. Therefore, it cannot be said that the the petitioner has no remedy against passing of impugned resolution or the remedy provided under the Act is not efficacious. The second reason for not entertaining this writ petition at this stage is that the voter list for the election of the Board of Directors of the C.W.P. No.15476 of 2008 -7- Apex Society was prepared in the month of August, 2008, and thereafter, the objections were invited, but the petitioner did not raise any objection. Even the election programme has been issued. Nomination Papers have been filed and symbols have been allotted and the election is going to be held on 29.11.2008. At this stage, in our opinion, entertaining this petition and quashing the impugned resolution will be an interference in the election process. If the resolution is set aside, then at this stage the respondent- Primary Cooperative Society will not be able to send its fresh representative for the election which is going to be held on 29.11.2008. The Division Bench judgment cited by the counsel for the petitioner, in our opinion, does not help him because in that case it was held that there was no jurisdiction with the State Government to nominate any of its representative to the Managing Committee of the Society and the said action was not supported by any provisions of law. Under these circumstances, the writ petition was entertained by this court. In view of the above, we are not inclined to entertain this petition and the same is hereby dismissed. (SATISH KUMAR MITTAL) JUDGE November 21, 2008 ( JASWANT SINGH ) vkg JUDGE