1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 415 OF 2007 Shri Ravindra Navelkar & anr. .... Petitioners. V/s Union of India, through the Secretary, & 27 Ors. .... Respondents Mr. S.M. Walwaikar and Mr. R. Castro, Advocates for the Petitioners. Mr. J. Vaz, Central Govt. Standing Counsel for Respondent No.1. Mr. S.S. Kantak, Advocate General with Ms. R. Chodankar, Addl. Govt. Advocate for Respondents No. 4. Mr. S.R. Rivonkar, Advocate for Respondents No. 5 & 7. Mr. S. Malyekar, Advocate for Respondents No. 8 to 12, 19, 27, 28. Mr. A.N.S. Nadkarni and Mr. H.D. Naik, Advocates for Respondents No. 14 & 15. Mr. P. Rao, Advocate for Respondents No. 13, 20, 21, 25 & 26. CORAM : R.M.S. KHANDEPARKAR, N.A. BRITTO, JJ. DATE : 12th MARCH, 2008 ORAL ORDER :(per R.M.S. Khandeparkar, J.) Heard. By the present petition, the petitioners are seeking to quash and set aside the order dated 9/08/2007 passed by the Deputy Secretary (Corporation), whereby the dispute which is sought to be raised by the petitioners under their representation dated 31/07/2007 has been referred for arbitration, in terms of the provisions of law comprised under Section 84 of the Multi-State Co-operative Societies Act, 2002. The petitioners also seek declaration that the respondents no. 8 to 28 had failed to conduct the election 2 for the Board of Directors of respondent no. 1, before the expiry of their terms i.e. on or before 25/01/2006, and, that therefore, they have incurred disqualification under Section 45(2) of the said Act for five years. The petitioners further seek declaration that the respondent no. 3 failed to exercise the jurisdiction under Section 43(2)(a) of the said Act in respect of disqualification of the respondents no. 8 to 28 and, further, for directions to the respondent no.3 to exercise his powers under Sections 43 and 45 of the said Act, on the representations made by the petitioners and to disqualify the respondents no. 8 to 28 from becoming the members of the Board of Directors of respondent no. 5 for a period of five years and also to direct respondents no. 1, 3 and 4 to initiate and conduct inquiry against the earlier Board of Directors with regard to the decisions taken by them after the expiry of their tenure on 25/01/2006, and to take appropriate legal action against them and to quash and set aside the decisions which are prejudicial to the interest of respondent no.1 and its members. The petitioners also seek directions to the respondents no. 1, 3 and 4 to initiate and conduct inquiry with regard to the decisions taken by them after the expiry of their tenure on 25/01/2006, and to take appropriate legal action against them and to quash and set aside the decisions taken in violation of the orders of this Court dated 20/02/2006 and 22/2/2006 in Writ Petition No. 43 of 2006 and of the Apex Court dated 20/03/2006 in SLP (C) No. 4968 of 2006. 3 2. When the matter came up for hearing for admission on 4/09/2007, this Court was persuaded to pass an order in supersession of the order dated 9/08/2007 passed by the respondent no. 3, appointing Shri Elias Fernandes as an Arbitrator, in terms of the directions under order dated 30/08/2007 of the Deputy Secretary (Corporation), to appoint Dr. E. D'Silva, the retired Judge of this Court as an Arbitrator, by consent of the parties for deciding the dispute in question. Subsequently, however, the Miscellaneous Civil Applications No. 816/2007 and 818/2007 along with applications under Stamp Nos. 2828/2007 and 2826/2007 came to be filed. The Miscellaneous Civil Applications were for condonation of delay in filing the Review Applications which were bearing the said stamp numbers. The delay was condoned and Review Applications were ordered to be taken up for hearing and the same came up for hearing on 6/02/2008 as Review Applications no. 29 and 30 of 2007. 3. In the said Review Applications, it was brought to the notice of this Court that the order dated 4/09/2007 was obtained without bringing to the notice of this Court that some of the respondents were not served nor they were represented before this Court when the said order dated 4/09/2007 came to be passed. In those circumstances, the Review Applications were allowed and the order dated 4/09/2007 was recalled and the Writ Petition No. 415/2007 was restored to the Board. The matter came up for hearing on 4 27/02/2008 as well as on 10/03/2008. On both the days it was adjourned as the parties were unable to arrive at any amicable settlement or to agree for any particular person to be appointed as an Arbitrator. In those circumstances, the matter was fixed for arguments and, accordingly, the matter has been heard today. 4. When the matter came up for hearing today, the learned Advocate appearing for the petitioners moved a precipee seeking amendment to the petition, including the prayer for quashing the order dated 30/08/2007, whereby Shri Elias Fernandes was appointed as an Arbitrator and, in alternative, to appoint any retired High Court Judge as an Arbitrator to decide the dispute in terms of directions dated 30/08/2007. 5. The entire challenge to the impugned order dated 9/08/2007 - Exhibit W to the petition is on the ground that the dispute which is sought to be raised relates to the disqualification of the respondents unrelated to any particular election as such, and therefore, it can be independently raised by way of writ petition and it is not necessary to pursue the matter by way of arbitration proceedings under Section 84 of the said Act. Attention was drawn in that regard to the decision of the Division Bench in Pundalik Kadhav V/s. District Deputy Registrar, Co-operative Societies, Chandrapur & Ors. (1990 Mh.L.J. 925) and of the Apex Court in the appeal arising from 5 the said decision reported in 1991 (2) SCC 423. Attention was drawn to para 15 of the decision of the Division Bench of this Court, wherein it has been held that: “The election of the petitioner to the District Central Co- operative Bank, Chandrapur cannot be challenged under section 78 of the Maharashtra Co-operative Societies Act. In fact nobody has challenged the election of the petitioner to the Directorship of that bank. What has been challenged is that he could not even contest the elections on the date the elections were held inasmuch as he was disqualified by operation of the statute. This being a bar against the eligibility, it is not necessary that it could be canvassed only by election petition. When the statute provides for the remedy, then that remedy has to be restored to. In the present case, section 78 of the Maharashtra Co-operative Societies Act empowers the Registrar to remove a member in case such a member was disqualified from contesting the election. This bar is open to challenge by election petition. Even the election petition does not abrogate or bar the powers of the Registrar under section 78 of the Maharashtra Co-operative Societies Act.” The said decision was not interfered in appeal before the Apex Court and the same is apparent from the decision of the Apex Court in the appeal arising from said decision and reported in 1991 (2) SCC 423. However, what is relevant is that as far as the multi-State co-operative Societies Act is concerned, Section 78 specifically empowers the registrar to remove the member on the grounds enumerated under the said Section. There is no such power bestowed upon any authority under the said Act and Section 47 of the said Act specifically provides the mode for removal of elected members by general body. Besides, the decision of the Division Bench nowhere states that in a case where a dispute is referable to arbitration by the authority in 6 exercise of its power bestowed upon it under the statute, this Court, ignoring such provisions of law, can invariably entertain writ petitions challenging the issue of disqualification of a member. Section 43 of the said Act deals with the subject of disqualifications for being a member of board, whereas, Section 45 deals with the subject of elections of members of board. Section 84 of the said Act deals with the subject of reference of disputes and it provides that: (1) Notwithstanding anything contained in any other law for the time being in force, if any dispute (other than a dispute regarding disciplinary action taken by a multi-State co- operative society against its paid employee or an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947) touching the constitution, management or business of a multi-State co-operative society arises between the parties enumerated under clauses (a) to (d) to the said Section, then such dispute shall be referred to arbitration. Sub-section (2) of Section 84 and clause (c) thereof provide: (2) For the purpose of sub-section 1, any dispute arising in connection with the election of any officer of a multi-State co- operative society shall be deemed to be a dispute touching the constitution, management or business of multi-State co- operative society. The expression “Officer” has been defined under Section 3(t) to mean a president, vice-president, chairperson, vice chairperson, managing director, secretary, manager, member of a board, treasurer, liquidator, an administrator appointed under section 123 and includes any other person empowered under this Act or the rules or the bye-laws to give directions in regard to the business of a multi-State co-operative society. 7 Sub-section 3 of Section 84 provides that: (3) If any question arises whether a dispute referred to arbitration under this section is or is not a dispute touching the constitution, management or business of a multi-State co- operative society, the decision thereon of the arbitrator shall be final and shall not be called in question in any court. Sub-section 4 thereof provides that; (4) Where a dispute has been referred to arbitration under sub- section (1), the same shall be settled or decided by the arbitrator to be appointed by the Central Registrar. Sub-section 5 thereof provides that; (5) Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act, 1996 shall apply to all arbitration under this Act as if the proceedings for arbitration were referred for settlement or decision under the provisions of the Arbitration and Conciliation Act, 1996. 6. The provisions of law comprised under Section 84 of the said Act, therefore, elaborately deal with the procedure to be followed for deciding the dispute, including the dispute relating to disqualification of a member in terms of Section 43, as also any issue arising in terms of Section 45 of the said Act. It also includes the power of the Arbitrator to decide its own jurisdiction as to whether the dispute falls within the parameters of law prescribed under Section 84, that is to say, whether the dispute is touching the constitution, management or business of the multi-State co-operative society. Once there is elaborate procedure prescribed under the statute under which any order is passed, the party cannot be heard to say that it has no alternative efficacious remedy available under the statute, and that the only remedy 8 available is under the writ jurisdiction. Neither the decision of the Division Bench nor that of the Apex Court in Pundalik Kadhav (supra) is of any help to the petitioners. The Division Bench in that case, in no uncertain terms, has held that the issue regarding the eligibility need not be necessarily canvassed only by way of election petition. The decision cannot be construed to mean to lay down the law that the issue regarding the disqualification needs necessarily to be entertained in a writ petition. When the statute specifically provides alternate efficacious remedy for the necessary redressal about the issue of disqualification, the question of entertaining writ petition in relation thereto does not arise. No satisfactory reason has been disclosed which could convince us to exercise our writ jurisdiction inspite of the fact that alternative efficacious remedy is available under Section 84 of the said Act. 7. It was sought to be contended on behalf of the petitioners that the issue which is sought to be raised cannot be said to be in connection with the disqualification of a member relating to any particular election as such, and rather it relates to the pre-election situation and, therefore, it would not be covered by the provisions of law comprised under Section 84 of the said Act. The contention is devoid of substance. Section 84 refers to any dispute touching the constitution, management or business of the multi-State co- operative society. It has been clarified in Sub-section 2 that any dispute arising in connection with the election of any officer of a multi-State co- 9 operative society, the same shall be deemed to be a dispute touching the constitution, management or business of the said multi-State co-operative society. The expression “officer” includes member of a board. Being so, any dispute relating to the disqualification of a member of the society to be elected as the member of the board, will be a dispute touching the constitution, management or business of the multi-State co-operative society in terms of Section 84(2) read with Section 84(1) of the said Act. If so, the petitioner cannot be said to be without alternative efficacious remedy under the said Act. 8. The precipee seeking to amend the petition, essentially relates to order dated 30/08/2007. It is nowhere the case of the petitioners that the petitioners were unaware of the said order till this date. There is no explanation in the precipee nor across the bar, as to what prevented the petitioners from seeking to amend the petition, immediately after issuance of the said order. Undisputedly, the petitioners were certainly aware of the said order prior to 4/09/2007. It could be argued, though not argued in the matter that since by order dated 4/09/2007, by consent of the parties, another Arbitrator was appointed, there was no need for the petitioners to seek amendment of the petition. However, it was also to the knowledge of the petitioners that when the order dated 4/09/2007 was passed, many of the respondents were not served and therefore the petitioners knew that the said order of 4/09/2007 10 would not be a good order and would not be a enforceable order. In this circumstances, there is absolutely no explanation from the petitioners for delay in approaching this Court with the said precipee seeking to amend the petition, and to challenge order of 30/08/2007 in the month of March, 2008. 9. That apart, as already observed, the Arbitrator is even entitled to decide about his own jurisdiction to deal with a matter. Besides, there is no allegation of any malafide or of any such nature against Mr. Elias Fernandes to be an Arbitrator in the matter. It is true that orally it was sought to be contended on behalf of the petitioners that Shri Elias Fernandes was the Director of the society for sometime and there is also a ground to that effect proposed to be introduced, by way of amendment. Merely because Mr. Elias Fernandes happened to be the Director of the Society, that cannot be a disqualification for being an Arbitrator in the matter. 10. In our considered opinion, in the facts and circumstances revealed from the record, the petitioners merely seem to be interested in delaying the proceedings on one count or the other, without any justification. When the order dated 4/09/2007 was passed, it was the duty of the petitioners to bring to the notice of the Court that some of the respondents were not represented before the Court. Conveniently, it was not brought to the notice of the Court. It was left to those respondents to approach to the Court and bring the said 11 fact to the Court's notice and only thereafter, the petitioners have now thought of challenging the order dated 30/08/2007. All this time, the matter is pursued in this petition inspite of the fact that alternative efficacious remedy is available under the provisions of the said Act. Even in the grounds which are sought to be introduced challenging the appointment of Mr. Elias Fernandes, the disqualification is claimed solely on account of the fact that he was the Director of the Society for sometime and there is a wild allegation of collusion between himself and some of the respondents, without disclosing any factual matrix, which could justify any such inference. It is also pertinent to note that on the last date of hearing, the Court had expressed absence of any substance in the petition and it is only thereafter, the present precipee seeking amendment to the petition has been sought to be moved. In the circumstances, the petition deserves to be dismissed with exemplary costs. 11. The petition, therefore, is dismissed with costs of Rs. 25,000/-. The costs to be paid within four weeks. On payment of the costs, the same shall be credited to the account of the Goa State Legal Services Authority. R.M.S. KHANDEPARKAR, J. N.A. BRITTO, J. NH/-