High Court

nos. 5 and 6 in the present appeal, a prima facie case was made out and, accordingly, granted the interim order.

6. Learned counsel for the appellants made vehement submissions that the learned Single Judge was not justified in passing the interim order, inasmuch as there was no material available before the Court to come to the prima facie conclusion regarding correctness of the allegations made. Learned Single Judge was required to call for the record and only after going through the record, the nature of interim order impugned could have been passed.

7. Further submissions have been made that in view of the disputed questions of fact before the learned Single Judge, alternative remedy under Section 25 of the Act could not be bye- passed and, therefore, the order impugned deserves to be quashed and set aside.

8. Learned counsel appearing for the respondents supported the order impugned.

9. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

10. The learned Single Judge, based on the averments contained in the petition, which averments essentially have not been contradicted so far, came to a prima facie conclusion that the matter required investigation. The allegations made in the petition, are quite serious, wherein 26 petitioners, who are admittedly members of electoral college out of total 37 members approached the Court inter alia claiming that they had not voted for the purported elected office bearers of the Society as declared by the Assistant Registrar.

11. Allegations were also made against the members of the Legislative Council to have interfered with the said elections process.

12. From the order passed by the learned Single Judge, it is apparent that the plea on behalf of the appellants has been pertaining to the availability of alternative remedy only. Apparently, at the stage when the order has been passed, it cannot be said that the disputed questions of fact were before the learned Single Judge as the allegations made by 26 petitioners were specific regarding having not voted for the purported elected office bearers and interference by the respondent nos. 5 and 6 during the election process. The stage with regard to the facts being disputed would only arise once the appellants file their counter affidavit to the petition. As such, the plea raised in this regard cannot be accepted.

13. The submissions made that the learned Single Judge should not have passed the order without calling for the record, also is premature, inasmuch as the stage of calling for record also would arise once the petitioners respond to the allegations made in the petition and Court prima facie comes to the conclusion with regard to requirement to call for the record.

14. So far as the availability of alternative remedy of filing the proceedings under Section 25 of the Act is concerned, it is well settled that the availability of alternative remedy by itself does not take away the jurisdiction of the Court under Article 226 of the Constitution of India and in a given case, wherein the facts of the case require interference by the Court, the matter can be taken up, irrespective of availability of alternative remedy.

15. In that view of the matter, we do not find any reason to interfere with the order passed by the learned Single Judge dated

19.12.2024.

16. The appeal is, therefore, dismissed.

17. The appellants would be free to file their response before the learned Single Judge and it is expected of the learned Single Judge to deal with the matter with appropriate expedition.

18. We make it clear that the dismissal of this appeal and observations made herein-before by this Court, are only in the nature of prima facie observations and would not influence the outcome of the writ petition. Order Date :- 27.2.2025 AKShukla/Sandeep (Kshitij Shailendra, J) (Arun Bhansali, CJ)

nos. 5 and 6 in the present appeal, a prima facie case was made out and, accordingly, granted the interim order.

6. Learned counsel for the appellants made vehement submissions that the learned Single Judge was not justified in passing the interim order, inasmuch as there was no material available before the Court to come to the prima facie conclusion regarding correctness of the allegations made. Learned Single Judge was required to call for the record and only after going through the record, the nature of interim order impugned could have been passed.

7. Further submissions have been made that in view of the disputed questions of fact before the learned Single Judge, alternative remedy under Section 25 of the Act could not be bye- passed and, therefore, the order impugned deserves to be quashed and set aside.

8. Learned counsel appearing for the respondents supported the order impugned.

9. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

10. The learned Single Judge, based on the averments contained in the petition, which averments essentially have not been contradicted so far, came to a prima facie conclusion that the matter required investigation. The allegations made in the petition, are quite serious, wherein 26 petitioners, who are admittedly members of electoral college out of total 37 members approached the Court inter alia claiming that they had not voted for the purported elected office bearers of the Society as declared by the Assistant Registrar.

11. Allegations were also made against the members of the Legislative Council to have interfered with the said elections process.

12. From the order passed by the learned Single Judge, it is apparent that the plea on behalf of the appellants has been pertaining to the availability of alternative remedy only. Apparently, at the stage when the order has been passed, it cannot be said that the disputed questions of fact were before the learned Single Judge as the allegations made by 26 petitioners were specific regarding having not voted for the purported elected office bearers and interference by the respondent nos. 5 and 6 during the election process. The stage with regard to the facts being disputed would only arise once the appellants file their counter affidavit to the petition. As such, the plea raised in this regard cannot be accepted.

13. The submissions made that the learned Single Judge should not have passed the order without calling for the record, also is premature, inasmuch as the stage of calling for record also would arise once the petitioners respond to the allegations made in the petition and Court prima facie comes to the conclusion with regard to requirement to call for the record.

14. So far as the availability of alternative remedy of filing the proceedings under Section 25 of the Act is concerned, it is well settled that the availability of alternative remedy by itself does not take away the jurisdiction of the Court under Article 226 of the Constitution of India and in a given case, wherein the facts of the case require interference by the Court, the matter can be taken up, irrespective of availability of alternative remedy.

15. In that view of the matter, we do not find any reason to interfere with the order passed by the learned Single Judge dated

19.12.2024.

16. The appeal is, therefore, dismissed.

17. The appellants would be free to file their response before the learned Single Judge and it is expected of the learned Single Judge to deal with the matter with appropriate expedition.

18. We make it clear that the dismissal of this appeal and observations made herein-before by this Court, are only in the nature of prima facie observations and would not influence the outcome of the writ petition. Order Date :- 27.2.2025 AKShukla/Sandeep (Kshitij Shailendra, J) (Arun Bhansali, CJ)