Existence of alternative remedy if a bar for issuance of writ.

Bakthavatsalam, J.

1. The petitioner is a member of the Mangalur Primary Co-operative Bank and one of the candidates for the election to the posts of President and Vice-President, which was due to be held on 24.10.1990. There are 11 directors in the Board, of which three have been nominated. The 3rd respondent, it alleged who has been elected to the Board of Directors, is an illiterate person, not knowing Tamil or English to write or to read. She is a housewife and cannot read or write either Tamil or English and therefore she is not eligible to hold the post of a Director in the Bank. Inspite of this, the 3rd respondent being a Director has been permitted to vote in the election for the posts of President and Vice-President. The society would be put to great hardship and loss, if the 3rd respondent is allowed to vote as a Director, in the election to be held for electing President and Vice-President, when the 3rd respondent is disqualified to hold the post of a Director by virtue of the provisions of the Act. Hence the present writ petition has been filed for the issue of a writ of mandamus directing the respondents to forbear from holding the elections for the posts of President and Vice-President to the Mangalur Primary Co-operative Bank pursuant to the notification issued on 16.10.1990.

2. The 3rd respondent has filed a counter stating that she has been validly elected as a Director in the election and the same has not been challenged by raising a dispute under Section 90 of the Co-operative Societies Act and so long her election has not been challenged, no one can prevent her from exercising her lawful obligation. The petitioner is aggrieved against the election of the 3rd respondent, the only remedy open to him is to file a petition under Section 90 of the Act by raising a dispute. The 3rd respondent could read and understand Tamil and could also sign though not fluent in Tamil. The writ petition is not maintainable and the same is liable to be dismissed.

3. Mr. R.S. Venkatachari, learned Counsel for the petitioner, relying on Section 34(1) of the Tamil Nadu Co-operative Societies Act, 1983, which reads as follows:

34(1) No person shall be eligible for being elected or nominated as a member of a board of any registered society if he:

(a) is such near relation, as may be prescribed of a paid employee of such registered society; or (b)(i) is in default to such registered society or any other registered society in respect of any loan or advance taken by him or dues under credit purchases made by him for a period exceeding three months, or (ii) is a representative of a registered society which is in default to the financing bank or to any other registered Society in respect of any sum due by the registered society for a continuous period of one year:

Provided that the disqualification in Sub-clause (ii) shall operate only when the default of the registered society exceeds thirty per cent of the sum due by that registered society; or.

(iii) is a person against whom any decree decision, award, order of certificate referred to in Section 143 has been obtained: or a representative of the registered society against which such decree, decision, award, order or certificate has been obtained: or

(iv) is a person against whom proceeding have been initiated under Sections 118, 119, 120 or 144 for the recovery of any debt: or

(c) .. .. ..

(d) .. .. ..

(e) .. .. ..

(f) .. .. ..

(g) .. .. ..

(h) .. .. ..

(i) does not know to read and write Tamil or English or such other language as the Government may notify in this behalf in relation to any particular area submits that when the 3rd respondent is not able to read or write Tamil or English, she is disqualified to be a member of the Board, she should not take part in the election proceedings to the posts of President and Vice-President. It is further submitted by the learned Counsel for the petitioner that when facts are admitted it is not necessary to resort to Section 90 of the Co-operative Societ