Rajasthan High Court - Jodhpur

Noparam vs State Of Rajasthan on 13 November, 2025

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13775/2024

Noparam S/o Shri Harji Ram, Aged About 47 Years, R/o Chak
No. - 3, Rjd, Post Sansardesar, District Bikaner, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Principal Secretary,
Cooperative Department, Government Of Rajasthan,
Secretariat, Jaipur, Rajasthan.
2. Rajasthan Cooperative Dairy Federation Limited, Through
Its Managing Director, J.l.n. Marg, Jaipur, Rajasthan
3. Registrar, Cooperative Societies, Nehru Sahakarbhawan,
Jaipur, Rajasthan
4. Managing Director, Uttari Rajasthan Sahakari dugdh
utpadaksangh Limited, Bikaner, Rajasthan
5. Secretary, Rajiv Nagar Primary
Dugdhutpadaksahkarisamiti Limited, Chhatargarh,
Bikaner, Rajasthan
6. Banshi Lal S/o Kana Ram, R/o Gram And Post Sinjguru,
Panchayat Samiti Nawa, District Bikaner, Rajasthan.
----Respondents

For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate assisted
by Mr. Manvendra Singh Rathore and
Ms. Saumya Choudhary
For Respondent(s) : Mr. Moti Singh
Mr. Manas Ranchhor Khatri
Mr. Samir Shrimali
Mr. Siddharth Mewara
Mr. Hemandra Singh
Mr. Prashant Kachhwaha

HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reportable

Reserved on : 30/10/2025
Pronounced on : 13/11/2025

1. Assailed herein is an order dated 12.08.2024 (Annex.1),

passed by the respondent No.2, by which the petitioner has been
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disqualified for the post of Chairman, Rajiv Nagar Dugdh Uptadak

Sahakari Samiti Ltd., Chhatargarh, Bikaner so also of the Uttari

Rajasthan Sahakari Dugdh Utpadak Sangh Ltd. and from being

member of the Board of Directors of the Uttari Rajasthan Sahakari

Dugdh Utpadak Sangh Ltd., Bikaner.

2. The facts, in brief, leading to the filing of the present writ

petition are that the petitioner was elected as the Chairman of

Rajiv Nagar Dugdh Utpadak Sahakari Samiti Ltd., Chhatargarh,

Bikaner, as well as the Chairman of Uttari Rajasthan Sahakari

Dugdh Utpadak Sangh Ltd., Bikaner.

2.1 A complaint was filed by respondent No.6 under Section

28(13) of the Rajasthan Cooperative Societies Act, 2001 (for

short, "the Act of 2001"), alleging, inter alia, that the petitioner

was not qualified to be elected as a member of the Samiti and,

consequently, as its Chairman, as he had more than two children

after the cut-off date prescribed under Section 28(10) of the Act

of 2001.

2.2 The aforesaid complaint was adjudicated by the

Administrator-cum-Managing Director, Rajasthan Cooperative

Dairy Federation Ltd., who, vide order dated 10.10.2022, declared

the petitioner disqualified. Aggrieved by the said order, the

petitioner preferred S.B. Civil Writ Petition No.16787/2022 before

this Court, which came to be disposed of vide order dated

08.12.2022. While disposing of the said petition, the impugned

order dated 10.10.2022 was quashed and set aside, and the

matter was remanded to respondent No.3 therein to pass a fresh

order after considering all the documentary and other evidence

adduced by the concerned parties.

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2.3 Thereafter, the matter was reconsidered by respondent No.2,

who, vide order dated 12.08.2024, allowed the complaint filed by

respondent No.6, declared the petitioner disqualified, and

consequently set aside his election. Hence, the present writ

petition.

3. Learned Senior Counsel Mr. Vikas Balia, assisted by Mr.

Manvendra Singh Rathore, while challenging the impugned order,

has made the following submissions:-

3.1 The petitioner was earlier elected as the Chairman of the

Samiti in the year 2015. After the said election, a complaint was

submitted by one Mr. Ramnarayan Bishnoi, under Section 58 of

the Act of 2001, alleging disqualification under Section 28(10) of

the Act of 2001. The complaint of disqualification as alleged by

respondent No.6 in present writ petition, were already considered

while passing the order dated 13.10.2016 (Annex.15) upon the

said former complaint. In fact, the subsequent complaint filed by

respondent No.6 is liable to be rejected, as the issue has already

been adjudicated upon, and the earlier complaint submitted by Mr.

Ramnarayan Bishnoi was dismissed. That being so, it was not

open for the authorities to entertain another complaint on the

same grounds on principle of constructive res-judicata.

3.2 If the second complaint submitted by respondent No.6 was

at all required to be considered, the appropriate remedy to

challenge the election of the petitioner lies under Section 58 of the

Act of 2001, and not under Section 28(13) thereof, as has been

done in the present case. The respondent No.2, therefore, acted

wholly without jurisdiction in entertaining the complaint under

Section 28(13) of the Act of 2001.

3.3 On the same set of allegation, an FIR also came to be

registered being FIR No.14/2022, at P.S. Bichwal, Bikaner. The

police, after thorough investigation, submitted negative Final

Report. That being so, the complaint was in fact required to be

rejected. However, the respondent No.2 has proceeded to not only

entertain the complaint but has also declared the petitioner as

disqualified.

3.4 All the findings recorded in the impugned order are based on

mere assumptions. The documents submitted by the petitioner in

rebuttal to the allegations made in the complaint were not

considered, and reliance was placed solely on the documents

produced by the respondent No.6. Elaborating on this submission,

learned Senior Counsel contended that respondent No.2 verified

all the documents submitted by respondent No.6 but did not

choose to verify those furnished by the petitioner. This clearly

demonstrates that respondent No.2, while passing the impugned

order, acted in an arbitrary and discriminatory manner.

3.5 The Co-ordinate Bench of this Court, while deciding the

earlier writ petition, i.e., S.B. Civil Writ Petition No.16787/2022,

had issued specific directions that all documents submitted by

both parties were required to be duly considered. However,

respondent No.2, in total disregard of the directions issued by this

Court, has placed undue reliance on the documents produced by

the complainant while completely overlooking those submitted by

the petitioner. Such an approach vitiates the impugned order.

3.6 The official communication dated 08.12.2022 (Annex.10)

sent by District Registrar (Birth and Death) has been completely

ignored. It was incumbent upon respondent No.2 to at least

consider the said document and assign reasons for either
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accepting or rejecting it. In the absence of any such finding, the

impugned order cannot be sustained.

3.7 Respondent No.2, while examining the complaint and the

supporting evidence adduced by the parties, was required to

adjudicate the matter on the touchstone of the preponderance of

probabilities. Elaborating on this submission, learned Senior

Counsel submitted that respondent No.2 was obligated to deal

with each document and piece of evidence produced by the

parties, to record independent findings on their relevance and

credibility, and to assess their comparative evidentiary value. In

the absence of such findings, the impugned order is liable to be

declared bad in the eye of law. Section 58(2)(c) of the Act of 2001

refers to election of officer of society. Section 2(q) defines word

"Officer" which includes Chairman/Vice-Chairman and Member.

That being so, election of petitioner can be questioned only under

Section 58 of the Act of 2001.

3.8 Relying upon the judgment of the Full Bench of this Hon'ble

Court in Sameera Bano v. State of Rajasthan & Ors. [RLW

2007(2) Raj. 1674], it is submitted that the eligibility

contemplated under Section 28(10) of the Act of 2001 constitutes

a pre-election disqualification. Any issue relating to such pre-

election disqualification cannot be examined by invoking the

provisions of Section 28(13) of the Act of 2001. The question of

eligibility or disqualification under Section 28(10) of the Act of

2001 can only be adjudicated by referring the dispute to an

Arbitrator, and such proceedings can be undertaken solely under

Section 58 of the Act of 2001. It is submitted that the language

used in Section 28(13) of the Act of 2001 shows that such

provision is meant to deal with disqualification incurred after
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election. That being so, dispute of disqualification under Section

28(10) of the Act of 2001 can be decided only by referring the

dispute under Section 58 of the Act of 2001 to the Arbitrator.

Based on the above submissions, it is prayed that the

present writ petition be allowed and the impugned order be

quashed and set aside.

4. Per contra, learned counsel Mr. Moti Singh, appearing on

behalf of respondent No2., made the following submissions:-

4.1 The present writ petition is not maintainable as the order

passed under Section 28(13) of the Act of 2001 is appealable

under Section 105 of the Act of 2001 and by making such

submission, reliance has been placed on the judgment of a

Coordinate Bench of this Court rendered in the case of Sunita

Sigar Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition

No.4612/2025, decided on 07.04.2025.

4.2 All the documents submitted by both the complainant and

the petitioner were duly considered. To verify the authenticity of

these documents, certified copies were obtained from the

concerned departments. After ascertaining their genuineness,

respondent No.2 proceeded to declare the petitioner disqualified

on the ground of not possessing the eligibility prescribed under

Section 28(10) of the Act of 2001.

4.3 Documents such as the LIC policy signed by the petitioner

himself, the hospital birth certificate, the school registration form,

and the certificate issued by Delhi Public School, Bikaner were

duly considered. Upon examining and verifying the authenticity of

these documents, the respondents declared the petitioner

disqualified. Thus, the directions issued by this Court in SBCWP

No.16787/2022 were duly complied with. The impugned order,
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therefore, is a well-reasoned and speaking order, having been

passed after due consideration and verification of the relevant

material, and warrants no interference.

4.4 In response to the submissions regarding pre-election

disqualification and the reliance placed on the judgment in

Sameera Bano (supra), it is submitted that the provisions

considered in the said judgment pertained to the Rajasthan

Panchayati Raj Act, 1994 (for short, "the Act of 1994"), whereas

the provisions relevant to the present writ petition fall under the

Act of 2001. Under the Act of 1994, the procedure for declaring a

person disqualified is provided in Sections 38 and 39, so also by

filing an election petition before the Election Tribunal. In the case

of Sameera Bano (supra), the Court proceeded to hold that

election petition under Section 80 of the Rajasthan Panchayati Raj

(Election) Rules, 1994 is available to question pre-election

disqualification. Whereas, the Act of 2001 contains no provision

for an Election Tribunal; hence, the said judgment has no

applicability to the present case.

4.5 With regard to the earlier complaint submitted by Mr.

Ramnarayan Bishnoi, it is submitted that the said complaint was

neither contested nor decided on merits, as the complainant failed

to pursue the matter. Consequently, the complaint was disposed of

without any contest or objection from the complainant. Therefore,

the earlier decision taken by the department cannot have any

bearing on the present complaint, which has been adjudicated on

merits after affording an opportunity of hearing to both the

complainant and the petitioner.

4.6 The earlier complaint was filed under Section 58 of the Act of

2001, whereas the present complaint has been filed under Section
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28(13) of the said Act. The nature and scope of adjudication under

these two provisions are distinct and independent. Therefore, the

rejection of the earlier complaint has no bearing whatsoever on

the adjudication of the present complaint.

5. Learned counsel Mr. Manas Ranchhor Khatri, appearing on

behalf of respondent No.6, submitted that objection with regard to

the interpretation of Sections 28(10) and Section 28(13) of the

Act of 2001 was raised by the petitioner and after considering the

same, the respondent No.2 has proceeded to adjudicate the issue.

Therefore, there is no error committed by the respondent No.2 in

deciding the complaint on merit.

5.1 Part IX and IXA of the Constitution of India provide separate

provisions, such as Articles 243-O and 243-F with regard to

Panchayati Raj Institution and Articles 243-ZG and 243-V in

relation to Municipalities, which bar interference of courts in

electoral matters. While referring to these provisions, it is

submitted that the provisions of Panchayati Raj Institution and

Municipalities are by and large pari-materia, however, the

provisions provided under Part IXB of the Constitution of India in

the case of cooperative societies are different. For this reason too,

the judgment rendered in the case of Sameera Bano (supra)

cannot be applied to the present matter as the said judgment was

passed considering provisions of Part IX of the Constitution of

India and Act of 1994 whereas such provisions are not provided

for cooperative societies either under Part IX- B of the Constitution

of India or under the Act of 2001.

5.2 Further, there is no provision for Election Tribunal in the

Cooperative Societies and, therefore, the respondent No.2 has

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rightly proceeded to take action against the petitioner while

invoking the powers under Section 28(13) of the Act of 2001.

6. In rejoinder, learned Senior Counsel Mr. Vikas Balia,

appearing on behalf of the petitioner, submitted that as many as

seven documents, such as the adoption deed, mark sheet of

2018-19, school registration certificate, birth certificate, affidavit,

and certain government communications, were submitted by the

petitioner. However, none of these documents have been

considered. In the absence of such consideration, it cannot be said

that respondent No.2 has proceeded in accordance with law. Far

from doing so, respondent No.2 has even failed to ensure

compliance with the directions issued by this Court while deciding

the earlier writ petition.

7. Heard learned counsel for the parties and perused the

material available on record.

8. Before considering the submissions made by the respective

parties, it would be appropriate to reproduce Sections 28 and 58

of the Act of 2001, which read as under:-

"28. Disqualification of membership etc. of committees.-

(1) No person shall, at the same time, be a Chairperson of more
than one apex society, or more than one central society.

(2) If a person, on the date of his election as a Chairperson of
an apex or a central society as aforesaid, is already a
Chairperson of another apex or central society, his later
election shall be deemed to be void on the expiry of a period of
fourteen days from the above election, unless he resigns from
the chairpersonship of one of the above two apex or two central
societies, as the case may be, within such period.

(3) No person shall be eligible for being elected, co-opted or
nominated as a member of a committee or for continuing as
member on the committee if he is in default to the society or to
any other society, in respect of any loan or loans taken by him
for such period as is specified in the bye-laws of the society
concerned or in any case for a period exceeding three months:
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Provided that this disqualification shall not apply on a member
society.

(4) Notwithstanding anything contained in sub-section (3), no
person shall be eligible for being elected, co-opted or
nominated, or for continuing as a member of the committee of a
Central Co-operative Bank or the Apex Co-operative Bank, if he
-

(i) represents a society other than a primary agricultural credit society and such society is in default to such bank, in respect of any loan or loans taken by it for a period exceeding ninety days;

(ii) is a person who is defaulter of a primary agricultural credit society or is a representative of a defaulting primary agricultural credit society for a period exceeding one year unless the default is cleared; and

(iii) is a person, who represents a society whose committee is superseded or has ceased to be a member of the committee of his own society.

(5) No money lender as defined in the Rajasthan Money Lenders Act, 1963 (Act No. 1 of 1964) shall be eligible for being elected or co-opted as an officer of a service co-operative society, as classified under the rules, and where an officer of such society as aforesaid starts money lending business, he shall, thereupon, cease to be an officer of such society.

(6) No member of a committee, who has been removed under section 30, shall be eligible for election, co-option or nomination as a member of any committee for a period of five years from the date of such removal:

Provided that a member of the committee replaced by an Administrator under section 30-C due to expiry of the term of the committee or under clause (b) of sub-section (1) of section 30 on the ground of a stalemate in functions of the committee due to lack of quorum shall not be deemed disqualified under this sub-section.

(7) No person against whom an order under section 57 has been passed, such order not having been set aside, shall be eligible for election, co-option or nomination as a member of a committee until the expiry of a period of five years from the date he repays or restores the money or other property or part thereof with interest or pay contribution and cost or compensation in satisfaction of such order.

(7-A)No person shall be eligible for election as a member of a committee, if he has been elected or co-opted to be a member of the committee of the same society in continuation for two times, unless a period of five years from the date of expiry of his second term as the member of such committee has elapsed:

Provided that a member of a committee once elected or co- opted to the committee shall be deemed to have completed his full SAW/1058/2025 (D.B. term for thehaspurpose ofthis been filed in this sub-section, matter. even Please refer the sameiffor hefurther wasorders) not (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (11 of 31) [CW-13775/2024]

elected or co-opted for a full term of five years or has not completed his term of office for any reason whatsoever it may be.

(8) No person -

(i) against whom a competent court has taken cognizance for an offence punishable under section 120B, 405, 406, 407, 408, 409, 415, 416, 419, 420, 421, 422, 423, 424, 447, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476 or 477A of the Indian Penal Code, 1860 (Central Act No. 45 of 1860) and is under trial shall be eligible to be elected, co-opted or nominated or to continue as a member of the committee of a society; or

(ii) who has been convicted of any offence by a competent court and sentenced to imprisonment for three months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned, shall be eligible to be elected, co-opted or nominated or to continue as member of the committee of a society for a period of five years from the date of such conviction.

(9) No person shall remain both a Chairperson or Vice-

Chairperson of a committee and a member of the Parliament or a member of the State Legislature or, the Pramukh or Up- Pramukh of a Zila Parishad or, the Pradhan or Up-Pradhan of a Panchayt Samiti or, Sarpanch or Up-Sarpanch of a Gram Panchayat or, a Chairperson or Vice-Chairperson of a municipal body and, if already a member of the Parliament or a member of the State Legislature or, Pramukh or Up-Pramukh of a Zila Parishad or, Pradhan or Up-Pradhan of a Panchayt Samiti or, Sarpanch or Up-Sarpanch of a Gram Panchayat or, Chairperson or Vice-Chairperson of a municipal body, he shall, at the expiration of a period of fourteen days from the date he becomes a Chairperson or Vice-Chairperson of such committee, cease to be such Chairperson or Vice-Chairperson of such committee unless, before such expiration, he resigns from his membership of the Parliament or the State Legislature or the office he holds in the Zila Parishad or the Panchayat Samiti or the Gram Panchayat or the municipal body as the case may be:

Provided that a person who is already a Chairperson or Vice- Chairperson of a committee is elected as a member of the Parliament or a member of the State Legislature or, the Pramukh or Up-Pramukh of a Zila Parishad or, the Pradhan or Up-Pradhan of a Panchayt Samiti or, Sarpanch or Up-Sarpanch of a Gram Panchayat or, a Chairperson or Vice-Chairperson of a municipal body, then at the expiration of fourteen days from the date of being elected as a member of the Parliament or the State Legislature or, the Pramukh or Up-Pramukh of a Zila Parishad or, the Pradhan or Up-Pradhan of a Panchayt Samiti or, Sarpanch or Up- Sarpanch of a Gram Panchayat or, a Chairperson or Vice-Chairperson of a municipal body, as the case may be, he shall cease to be such Chairperson or Vice- Chairperson of the committee unless he has previously resigned fromSAW/1058/2025 (D.B. his membership of the has been filed Parliament in this matter. Pleaseor the refer the State same forLegislative further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (12 of 31) [CW-13775/2024]

Assembly or the office he holds in the Zila Parishad or the Panchayat Samiti or the Gram Panchayat or the municipal body, as the case may be.

(10) No person shall be eligible for election, co-option or nomination as a member of the committee if he has more than two children:

Provided that a person having more than two children shall not be disqualified under this sub-section for so long as the number of children he had on 10-07-1995 does not increase.

Explanation - For the purpose of this sub-section, where the couple has only one child from the earlier delivery or deliveries on 10-07-1995 and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one entity.

(11) No member of a committee, which has failed to -

(i) provide the required information or assistance to the State Co-operative Election Authority under Chapter-V; or

(ii) make available or arrange to make available necessary record to the enquiry officer appointed by the Registrar under section 55 for conduct of an enquiry of the affairs of the society; or

(iii) appoint auditor(s) and get its audit conducted within the time stipulated therefor in this Act or the rules, shall be eligible for election, co-option or nomination as a member of the committee, or for continuing as such member for a period of six years from the date of such failure.

(12) No person shall be eligible for being elected as a member of the committee of a society unless he possesses such minimum educational qualification as may be prescribed in the rules, if any.

(13) Any question as to whether a member of the committee has become subject to any of the disqualifications mentioned under this section or the rules or the bye-laws registered under this Act shall be decided by the Registrar:

Provided that the question of such disqualification of a candidate contesting elections to the committee of a society shall be decided by the Election Officer during scrutiny of his nomination papers.

58. Disputes which may be referred to arbitration -

(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises -

(a) among members, past members and persons claiming through members, past members and deceased members, or (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (13 of 31) [CW-13775/2024]

(b) between a member, past member or a person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society, or

(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, or

(d) between the society and any other co-operative society, or

(e) between the society and the surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction under section 52, whether such a surety is or is not a member of a society,

such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute:

Provided that such disputes between the society and its employees, for which a remedy is available under the provisions of the service laws applicable on the employees, shall not be entertained under this section.

(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 co-operative society, namely:-

(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor, where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(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.

(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."

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9. The heading of Section 28 of the Act of 2001 pertains to

disqualifications, and its various sub-sections lay down the

eligibility criteria. In particular, Section 28(10) of the Act of 2001

deals with the number of children born after the prescribed cut-off

date. Any person having a third child after the cut-off date shall

not be treated eligible to contest the election either as a Member

or as a Chairman. Section 28(13) of the Act of 2001 provides that

any question regarding eligibility, as mentioned in the foregoing

sub-sections, shall be decided by the Election Officer at the time

of scrutiny of the nomination form. It further stipulates that if any

question as to whether the Member has become subject to

disqualification under the Act of 2001, the same shall be

considered and decided by the Registrar.

9.1 As far as Section 58 of the Act of 2001 is concerned, it deals

with the matters which may be referred to the Arbitrator. Section

58(2)(c) of the Act of 2001 provides for the adjudication of the

election dispute and the dispute raised by a Member questioning

the election of other member.

10. After taking note of the above provisions, it would be

appropriate to deal with the contentions made by the respective

parties in the preceding paras.

11. Alternative Remedy:

Learned counsel appearing for respondent no.2 raised an

objection regarding maintainability of the present writ petition on

account of availability of remedy of appeal under Section 105 of

the Act of 2001.

11.1 It is noted that amongst other grounds, the maintainability

of the complaint under Section 28 of the Act of 2001 has been

questioned by the petitioner. In other words, a challenge has been (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (15 of 31) [CW-13775/2024]

laid to the jurisdiction to entertain complaint in question under

Section 28(13) of the Act of 2001 which goes to the root of the

impugned order.

11.2 If order/action is without jurisdiction, then writ petition is

maintainable despite alternative remedy being available, as has

been held by the Hon'ble Apex Court in the case of Whirlpool

Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.

[(1998) 8 SCC 1], wherein it was observed as under:-

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction.

But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, 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.

There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmad v. Municipal Board, kairana, [1950]1SCR566 , laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner, [1954]25ITR167(SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated (D.B. that has SAW/1058/2025 alternative remedy been filed in this would matter. Please not refer operate the same as orders) for further an (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (16 of 31) [CW-13775/2024]

absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances.

XXX XXX

20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

11.3 Keeping into consideration the above observations, this Court

is of the opinion that the present writ petition is very well

maintainable before this Court as the aspect as to whether the

complaint alleging violation of Section 28(10) of the Act of 2001

could have been entertained under Section 28(13) of the said Act,

has to be examined.

12. Constructive Res-judicata

Learned Senior Counsel appearing on behalf of the petitioner

has objected to the maintainability of the second complaint on the

ground that the first complaint had already been decided. In

response, the respondents have contended that the earlier

complaint was filed under Section 58 of the Act of 2001, whereas

the present complaint has been filed under Section 28(10) of the

said Act. Moreover, it is submitted that the earlier complaint was

not decided on merits, as the complainant had chosen not to

pursue it, and consequently, the authorities proceeded ex parte.

It is to be noted that earlier the complaint was made against the

petitioner by one Mr. Ramnarayan alleging that the petitioner was

not eligible to contest election in view of the provisions of Section

28(10) of the Act of 2001.

12.1 Before examining the respective submissions, it is

appropriate to lay out the position of law regarding res-judicata so (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (17 of 31) [CW-13775/2024]

also constructive res-judicata. This principle has been incorporated

under Section 11 of the Code of Civil Procedure, 1908. That apart,

it is a common law doctrine founded upon the principles of justice,

equity, and good conscience. Therefore, the said principle has

been analysed in various decisions regarding its interpretation so

also application.

Before elucidating the application of the principle of

constructive res-judicata on present case, it would be appropriate

to refer to rendition of the Hon'ble Apex Court on the principle of

res-judicata so also constructive res-judicata. In the case of Alka

Gupta vs. Narender Kumar Gupta [(2010) 10 SCC 141] it

was observed as under:

"21. Res judicata means 'a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in Section 11, relevant portion of which is extracted below (excluding Explanations I to VIII):

11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue:

(i) The matter must be directly and substantially in issue in the former suit and in the later suit.

(ii) The prior suit should be between the same parties or persons claiming under them.

(iii) Parties should have litigated under the same title in the earlier suit.

(iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit.

(v) The court trying the former suit must have been competent to try particular issue in question.

(D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (18 of 31) [CW-13775/2024]

23. To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression 'former suit' refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. Explanation IV provides that:

"Explanation IV. - Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue".

24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2, Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed.

25. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard thus: ( 1947 (2) All ER 257)

"...it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (19 of 31) [CW-13775/2024]

(emphasis supplied)

26. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra: 1990 (2) SCC 715, a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal: 1986 (1) SCC 100) thus:

"35...an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence."

12.2 As already mentioned above, the principle of res-judicata is a

common law principle however, has been included by way of

legislation under CPC. The Hon'ble Apex Court in the above quoted

judgment has explained Section 11 of CPC so also Explanation IV

appended to it which embodies the principle of constructive res-

judicata. It would not be out of place to mention here that

although there is no explicit application of CPC on

complaint/proceedings initiated under Section 28 of the Act of

2001 however, considering that the plea has been raised by

petitioner so also that the said principle is based on equity, it

would be appropriate to analyse its application on the matter at

hand.

12.3 This Court is of the opinion that the argument as to

applicability of constructive res-judicata on the adjudication of

subsequent complaint is not tenable for following reasons:

(i) For applying res-judicata, it is one of the requisites that

the parties to the proceeding must be same and must be litigating

under the same title. However, in the present case, the former and

subsequent complainants are two different persons. Constructive

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res-judicata being a limb of res-judicata cannot stand in solitude

without fulfilling the said requirement of parties and their title.

(ii) There was no evidence led by the former complainant. It

is noted that in the earlier complainant Mr. Ramnarayan did not

choose to contest his complaint. Despite multiple opportunities

been granted, he neither appeared nor submitted evidence in

support of his complaint. In those circumstances, the Arbitrator

proceeded ex-parte. It was further observed that the complainant

did not adduce evidence on allegation of third child and, therefore,

the allegation as levelled against the petitioner could not be

proved and accordingly, the complaint was rejected.

12.4 In view of the above discussion, the decision on the earlier

complaint can, in no manner, preclude the consideration and

adjudication of the subsequent complaint on merit and therefore,

the objection of constructive res-judicata deserves to be rejected.

Precedent law on the issue

13. It would be appropriate to refer to the decision given by the

Division Bench of this Court in the case of Bhomraj Vs. State of

Rajasthan & Ors. (D.B. Civil Special Appeal No.192 of 1994),

decided on 27.05.1994. The relevant paragraphs of the judgment

aforesaid are reproduced hereinbelow for ready reference:-

"12. For raising a dispute about the election of the member of the Committee one has to be either a member of that Committee or a past member of that Committee or a person claiming through members, past members and deceased members of the Committee. In this case, the respondent No. 4 was neither a member nor a past member and was not a person claiming through members, past members and deceased members of the Barsinghsar Gram Sewa Sahakari Samiti. It was also not a dispute between Barsinghsar Gram Sewa Sahakari Samiti and its management committee. Neither it was a dispute between the society and any other co-operative society nor it was a dispute between the aforesaid society and the surety of a member, past member or a deceased member or a person other than a member who has been granted a loan by the SAW/1058/2025 (D.B. society or with whom has been thematter.

filed in this society has Please referor thehad transaction same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (21 of 31) [CW-13775/2024]

under Section 66 whether such a surety is or is not a member of a society. Thus, no dispute about the election of the petitioner as Chairman of the Barsinghsar Gram Sewa Sahakari Samiti could have been raised by respondent No. 4 under Section 75 of the Act.

14. In Sujan Singh v. Registrar, Cooperative Societies, Rajasthan, Jaipur 1989 (1) RLR 29, a Division Bench of this Court has observed that remedy available to a person under Section 75 of the Act does not exclude that person form available remedy under Section 34(8) of the Act.

15. It was contended by Mr. M. S. Singhvi, the learned counsel appearing for respondent No. 4 that earlier the petitioner has claimed the remedy under Section 75 of the Act when he challenged the election of the petitioner was Chairman of the Central Government Bank, Bikaner and, therefore, he could not avail the remedy available to him under Section 34(8) of the Act. We have already observed above that if the remedy available to a person under Section 75 of the Act is exhausted, that will not exclude the remedy available to him under Section 34(8) of the Act. Their Lordships of the Supreme Court in A.P. State Financial Corporation v. M/s. Gar Re- Rolling Mills MANU/SC/0454/1994 have observed that the doctrine of election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different.

23. Even this is also a disputed question of law whether a person who has served the Management Committee of the same society for two terms and has been again elected as a member of the Management Committee or as its Chairman or any other office bearer, will give a cause of action for raising a dispute about his ineligibility under Section 75 read with Section 34(7) of the Act or it can be agitated only by raising such a dispute under Section 34(8) of the Act? This is a debatable question and on this aspect of the matter, there is no agreement between the parties and, therefore, it cannot be treated to be an undisputed question of law and when that be so, the principles of natural justice must be followed. This is what has been held by Their Lordships of the Supreme Court in Shrawan Kumar Jha v. State of Bihar (AIR 1991 SC 309).

29. It was next contended by Mr. Choudhary that respondent No. 4 is not an aggrieved party so far as the election of the petitioner as Chairman of Barsinghsar Gram Sewa Sahakari Samiti is concerned. That argument cannot be sustained because the petitioner having been elected as Chairman of the Barsinghsar Gram Sewa Sahakari Samiti has represented it in the Central Co-operative Bank, Bikaner and there he fought the elections of Chairmanship and his candidature was challenged by respondent No. 4 and, therefore, respondent No. 4 isSAW/1058/2025 (D.B. an aggrieved hasparty and been filed he matter.

                                      in this can challenge        hissame
                                                     Please refer the   election   under
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Section 34(8) of the Act because that affects his rights adversely so far as the election to the Central Co-operative Bank are concerned. In this respect, we may rely on a decision of their Lordships of the Supreme Court in Lakhiram v. State of Haryana (AIR 1981 SC 1655) as also another decision of the Supreme Court in Managing Director, ECIL Hyderabad v. B. Karunakar (AIR 1994 SC 1074)."

14. Before considering the submissions, as recorded above, so

also the observations made by the Division Bench in the case of

Bhomraj (supra), it would be appropriate to reproduce Sections 34

and 75 of the Rajasthan Cooperative Societies Act, 1965

(hereinafter referred to as "Act of 1965"), which are as under:-

"34. Disqualification of membership etc. of committees.

(1) No person shall, at the same time, be a chairman of more than one apex or central society, as classified under the rules.

(2) If any person is, on the date of his election or appointment as a chairman of such apex or central society as aforesaid already a chairman of any such apex or central society then his election or appointment as the case may be, on the date aforesaid shall be void.

(3) If any person is, at the commencement of this Act, a chairman of more than one of such apex or central society then at the expiration of a period of ninety days from such commencement, he shall cease to be a chairman of such societies unless he has previously resigned his chairmanship of more than one of such societies.

(4) No person shall be eligible for being elected or appointed as a member of a committee if he is in default to the society or to any other society, in respect of any loan or loans taken by him for such period as is specified in the bye-laws of the society concerned or in any case for a period exceeding three months and such a member as aforesaid shall cease to hold office as soon as he has incurred the disqualification mentioned in this sub-section.

(5) (a) No money-lender as defined in the Rajasthan Money-Lenders Act, 1964, shall be eligible for being elected or appointed as an officer of a service co-operative society, as classified under the rules, nor shall be continue as an officer thereof upon the commencement of this Act;

(b) Where an officer of such society as aforesaid, at any time after the commencement of. this Act, starts money lending business, he shall, thereupon, cease to be an official of such society.

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(6) No person against whom an order under section 74 has been passed, such order not having been set aside, shall be eligible for election or appointment as a member of a committee until the expiry of a period of three years from the date he repays or restores the money or other property or part thereof with interest or pays contribution and costs or compensation in satisfaction of such order; and] [Substituted by Rajasthan Act No. 2 of 1992 [25-10-1991.]]

(7) No member of a committee, who has been removed under section 36, shall be eligible for election or appointment to the committee for a period of three years from the date of expiry of the period of removal.

(7-A) No person shall be eligible for election as a member of a committee if he has continuously remained a member of the committee of the same society for a period of six years or for two terms, whichever is less, unless a period of three years from the date of expiry of the said period or the said terms, as the case may be, has elapsed. [Inserted by Rajasthan Act 1 of 1982. [3-12-1981.]

(7-B) No person shall remain both a member of a committee and a Member of Parliament or a State Legislature or the Pramukh of a Zila Parishad or the Pradhan of a Panchayat Samiti and, if already a member of Parliament or a State Legislature or the Pramukh of a Zila Parishad or the Pradhan of a Panchayat Samiti, he shall, at the expiration of a period of fourteen days from the date he becomes a member of such committee, cease to be such member of such committee unless, before such expiration, he resigns his seat in the Parliament or the State Legislature or the office he holds in the Zila Parishad or the Panchayat Samiti, as the case may he. [Inserted Rajasthan Act No. 2 of 1992 [25.10.1991.]]

(8) Any question as to whether a member of the committee shall or has become subject to any of the disqualifications mentioned under this section or the rules shall be decided by the Registrar.

(9) Nothing in this section shall apply to a person nominated as chairman of any society by the Government or the Registrar.

75. Disputes which may be referred to arbitration. (1) Notwithstanding anything contained in any law for the time being In force, if any dispute touching the constitution, management, or the business of a co-operative society arises-

(a) among members, past members and persons claiming through members, past members and deceased members, or

(b) between a member, past member or person claiming through a member, past member or deceased (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (24 of 31) [CW-13775/2024]

member and the society, its committee or any officer, agent or employee of the society, or

(d) between the society and any other co-operative society.

(e) between the society and the surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction under section 66, whether such a surety is or is not a member of a society,

such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.

(2)For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely:-

(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of any officer of the society.

(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."

15. A perusal of Sections 34 and 75 of the Act of 1965 reveals

that Section 34 is pari materia with Section 28 of the Act of 2001,

and Section 75 is pari materia with Section 58 of the Act of 2001.

In the case of Bhomraj (supra), the Division Bench, while dealing

with an almost identical issue concerning disqualification at the

time of submission of the nomination form, examined whether the (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (25 of 31) [CW-13775/2024]

proceedings would be maintainable under Section 34 or Section 75

of the Act of 1965. The Division Bench held that a complaint could

be entertained under both Sections 34 and 75 of the Act of 1965.

It further observed that even if a complaint had earlier been filed

under Section 75 of the Act of 1965 that would not preclude the

complainant from initiating proceedings under Section 34 of the

same Act as the ambit and scope of two remedies are essentially

different.

16. In the case of Bhomraj (supra), the complainant therein

challenged election under Section 75 of the Act of 1965 (akin to

Section 58 of the Act of 2001) on the ground of disqualification

under Section 34(7A) of the Act of 1965 [akin to Section 28(7A) of

the Act of 2001). The proceedings initiated under Section 75 of

the Act of 1965 was decided against the complainant. Later,

another complaint was filed under Section 34(8) of the Act of

1965 [akin to Section 28(13) of the Act of 2001] on same

allegation of disqualfiication. The Division Bench held as under:-

(i) Objection of alternative remedy was rejected.

(ii) Availing of remedy under Section 75 of the Act of 1965

would not bar the complainant to raise dispute under

Section 34(8) of the Act of 1965 as ambit and scope of

two remedies are substantially different.

(iii) Proceeding under Section 34(8) of the Act of 1965 was

maintainable.

Applying the law laid down by the Division Bench of this

Court in the case of Bhomraj (supra) on the present facts, this

Court deems it appropriate to observe as under:-

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(i) The objection of respondents with regard to

maintainability of the writ petition on the ground of

alternative remedy deserves to be rejected.

(ii) A bare perusal of the FIR lodged by the complainant

reveals that he is the President of Sinjguru Prathmik

Dugdh Utpadan Sahakari Sangh Ltd. In the FIR, it is

further stated that the President of the Central

Cooperative Society is elected by the voters of the

Primary Societies. Respondent No.6, being one of such

voters, is directly concerned with the affairs of the

Central Cooperative Society. Since the dispute is raised

by a Member against another Member, who is office of

society, therefore, such dispute can be referred to be

decided in proceedings under Section 58 of the Act of

2001. Considering the status and position of the

complainant and the petitioner, as well as the

observations made by the Division Bench in Bhomraj

(supra), this Court is of the opinion that the complaint

filed in the present case was maintainable under

Section 58 of the Act of 2001.

(iii) For the purpose of entertaining a dispute under Section

58 of the Act of 2001, a complainant who is both a

member and a voter in the election of the petitioner is

entitled to file a complaint under the said provision,

and such a complaint is maintainable at the instance of

respondent No.6.

This Court, however, refrains from commenting on the earlier

complaint, as it is unclear whether the same was filed by a

member or by an individual in his personal capacity.

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Accordingly, if any objection is raised in the proceedings

initiated under Section 58 of the Act of 2001, it shall be for the

Registrar/competent authority to consider and decide the same in

accordance with law.

17. Pre-election disqualification:

Learned Senior Counsel appearing on behalf of the petitioner,

while questioning the maintainability of the complaint filed under

Section 28(13) of the Act of 2001, submitted that the

disqualification in question pertains to a pre-election

disqualification and, therefore, the complaint was not maintainable

in light of the judgment passed in the case of Sameera Bano

(supra). It was further submitted that, if at all the complaint was

to be entertained, the only appropriate remedy was to file it under

Section 58 of the Act of 2001. Accordingly, it was contended that

the Managing Director, respondent No.2, acted wholly without

jurisdiction in entertaining the complaint under Section 28(13) of

the Act of 2001.

The relevant portion of the judgment rendered in Sameera

Bano (supra) reads as under:--

"23. On behalf of the respondents reliance was placed on Clause (a) - in particular, the words "is or becomes" - therein and it was submitted that clause "is or becomes subject to any of the disqualifications specified in Section 19" refers to pre- election disqualifications. According to the counsel for the respondents, where the member "is" subject to disqualifications specified in Section 19, he is not eligible to continue to be member and the membership can be terminated after enquiry in the manner provided in rule 23 of the Panchayati Raj Rules.

24. Clause (a) in terms no doubt refers to disqualifications specified in Section 19. However, in order to appreciate its true import, the clause may be dissected into two parts - "is subject to" and "becomes subject to any of the disqualification" So far as "becomes subject to..." is concerned, the word 'become' as an intransitive verb means "start to be". In the New Shorter Oxford Dictionary, it is defined to mean "come to be" or "begin to be". The word "becomes" therefore visualizes a subsequent (D.B. event SAW/1058/2025 which has been filed renders thePlease in this matter. person disqualified refer the if orders) same for further he (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (28 of 31) [CW-13775/2024]

has incurred any of the disqualifications specified in Section

19.

25. The question is whether "is subject to" refers to and includes past disqualifications as on the date of election. We may straightaway observe that if the legislature intended to include past or pre-election disqualification as ineligibility "to continue to be such member" for the purpose of cessation of membership under Section 39, it would have used the word "was" in place of "is". However, we do not wish to take that short route. It is well settled rule of interpretation that the words in a statute are not to be treated as surplusage and the Court normally would not substitute the word by another word. The duty of the Court is to give effect to the law assuming that the word was deliberately and knowingly used by the framers of the statute.

26. The intention of the legislature appears to be to oust the person from the office if he is presently suffers from any disqualification. We should not be understood as suggesting that notwithstanding some pre-election disqualification the person can continue to be member or panch. As seen above, a pre-election disqualification is a ground specified in Clause (a) of rule 80 of the Election Rules on which the election of the returned candidate can be set aside in an election petition under Section 43 of the Act. In these cases, we are concerned with the question whether any order having the same effect and consequence can be passed on account of pre-election disqualification under rule 23.

29. In these premises, we do not find any conflict between "is subject to" and "becomes subject to" in Section 39(1) (a) of the Act.

33.... In both Articles 103(1) and 192(1) the words are "has become" subject to any disqualification. We have explained the import of the words "has become" and held that the expression contemplates disqualification incurred subsequently and not past or pre-election disqualifications. We have also held that there is no apparent conflict between "is subject to" and "becomes subject to" in Clause (a) of Section 39(1). We therefore hold that rule 23 to the extent it seeks to extend the enquiry thereunder to preelection disqualification is beyond the scope and mandate of Section 39(2) of the Act read with Article 243F(2) of the Constitution of India and therefore ultra vires the Act and the Constitution."

17.1 It is to be noted that Section 28(13) of the Act of 2013 deals

with two contingencies, namely, (i) an objection with regard to

disqualification is raised at the time of scrutiny of nomination form

before the Election Officer and in that event, the Election Officer (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (29 of 31) [CW-13775/2024]

would decide the objection with regard to disqualification and (ii) a

member "has become subject to disqualification", the issue of

disqualification would be required to be decided by the Registrar.

17.2 In the present case, as per the allegations made in the

complaint, the petitioner was allegedly disqualified at the time of

submitting his nomination form. In the absence of any objection at

that stage, the Election Officer treated the petitioner as eligible to

contest the election. Consequently, the Election Officer had no

occasion to examine the disqualification of the petitioner as

contemplated under the proviso to Section 28(13) of the Act of

2001. That being so, the question which requires deliberation is

with regard to scope of adjudication on question of disqualification

under Section 28(13) of the Act of 2001 by the Registrar.

17.3 In the case of Sameera Bano (supra), the Full Bench of this

Court considered the provisions of Sections 19(g) and 39 of the

Act of 1994, which read as under:-

"19. Qualification for election as a Panch or a member- Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person-

xxx xxx xxx

(g) has been convicted of any offence by competent Court and sentenced to imprisonment for six months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned;

39. Cessation of membership.- (1) member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he-

(a) is or becomes subject to any of the disqualification specified is Sec. 19; or"

In the present case, the petitioner is contending that the

dispute under Section 28(10) of the Act of 2001 is also a pre-

election dispute, therefore, the remedy lies under Section 58 of

(D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (30 of 31) [CW-13775/2024]

the Act of 2001. For ready reference, Section 28(13) of the Act of

2001 is again reproduced as under:-

"Any question as to whether a member of the committee has become subject to any of the disqualifications mentioned under this section or the rules or the bye-laws registered under this Act shall be decided by the Registrar."

The wording of both provisions is nearly identical. In the

1994 Act, the expression "is or becomes subject to any of the

disqualification," and in the 2001 Act, the phrase "has become

subject to any of the disqualifications," convey the same legislative

intent and purpose. The inclusion of the word "has" before

"become" clearly reflects the Legislature's intention to address

disqualifications that arise after the election.

The counsel for respondent may be right in contending that

the provisions of the Act of 1994, which were under consideration

in the case of Sameera Bano (supra), but, language of Section

39(1)(a) of the Act of 1994 and Section 28(13) of the Act of 2001

gives similar intent and purpose.

As a result of discussion aforesaid, the remedy of Section

28(13) of the Act of 2001 would be available when elected person

had suffered disqualification after he/she got elected.

17.4 Moreso, as per the provisions of Section 58(2)(c) of the Act

of 2001, any dispute arising in connection with the election of any

officer of the society can be referred to Arbitrator. Section 59(1) of

the Act of 2001, provides for limitation to be one month from the

date of election for raising any dispute in respect of election of any

office bearer of a society. Meaning thereby, any dispute relating to

election can be raised within one month of election. The period of

limitation commences from the date of declaration of result of

election, which means the intention of the Legislature was to (D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM) [2025:RJ-JD:47317] (31 of 31) [CW-13775/2024]

provide a remedy under Section 58 of the Act of 2001 in relation

of disqualification on the date of election. Such being the language

used, the question of eligibility at the time of election, if raised

after election, it has to be decided under Section 58 of the Act of

2001.

17.5 Considering the law laid down in Sameera Bano (supra) and

upon a conjoint reading of the relevant provisions of the Act of

2001, this Court is of the firm opinion that in cases involving a

pre-election disqualification, the appropriate remedy is to

adjudicate the dispute under Section 58 of the Act of 2001 or by

challenging the same by way of writ of quo-warranto.

18. In view of the discussion made above, the present writ

petition is allowed. The impugned order dated 12.08.2024

(Annex.1) is quashed and set aside.

19. Needless to observe that the complainant would be at liberty

to file complaint under Section 58 of the Act of 2001 and the

concerned authority shall decide the same strictly in accordance

with law.

20. So far as limitation to initiate proceedings under Section 58

of the Act of 2001 is concerned, the respondent No.6 may move

appropriate application seeking condonation of delay under

Section 59(1) of the Act of 2001 while mentioning the fact of

pendency of the proceedings under Section 28(13) of the Act of

2001 and pendency of this writ petition. The competent authority

may consider the same and decide in accordance with law.

21. All pending application (s), if any, shall also stand disposed

of.

(SUNIL BENIWAL),J skm/-

(D.B. SAW/1058/2025 has been filed in this matter. Please refer the same for further orders) (Uploaded onon14/11/2025 (Downloaded 14/11/2025atat05:48:29 09:42:14PM) PM)