Complaints regarding pre-election disqualification must be reviewed under Section 58 of the Act, not Section 28(13).

Order :

SUNIL BENIWAL, J.

1. Assailed herein is an order dated 12.08.2024 (Annex.1), passed by the respondent No.2, by which the petitioner has been 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.

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 com