Karnataka High Court
Yallappa S/O Channapap Jamgouda vs State Of Karnataka on 29 May, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:7097
WP No. 104080 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.104080 OF 2023 (CS-RES)
BETWEEN:
1. YALLAPPA S/O. CHANNAPPA JAMAGOUDA,
CHIEF EXECUTIVE OFFICER,
PRATHAMIKA KRISHI PATTINA SAHAKARA SANGHA
NIYAMIT, HARUGERI, TAL: RAIBAG, DIST: BELAGAVI,
AGE: 58 YEARS, OCC:
R/O: AT POST HARUGERI,
TAL: RAIBAG, DIST: BELAGAVI-591220.
2. SHRIDHAR S/O. DHAREPPA SADALAGI,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
3. SHANTINATH S/O. PARIS ASKI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
BHARATHI
HM
4. SANGAPPA S/O. MALLAPPA SADALAGI (GHALI),
Digitally signed by
BHARATHI H M
Location: HIGH COURT
OF KARNATAKA
AGE: 72 YEARS, OCC: AGRICULTURE,
DHARWAD BENCH
Date: 2024.06.05
15:32:40 +0530 R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
5. RAMU S/O. MARUTI SHINGADI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
6. PADMAVATI W/O. ANNAPPA SHIRAHATTI,
AGE: 72 YEARS, OCC: HOUSEWIFE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
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WP No. 104080 of 2023
7. SHRIDEVI W/O. PARIS NAGANUR,
AGE: 68 YEARS, OCC: HOUSEWIFE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
8. VITTHAL S/O. SIDDAPPA SARIKAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: YABARATTI, TAL: RAIBAG,
DIST: BELAGAVI- 591220.
9. NINGAPPA S/O. SATYAPPA JALIHAL,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: AT BADA BYAKUD,
POST: AANKHANOOR, TAL: RAIBAG,
DIST: BELAGAVI-591220.
... PETITIONERS
(BY SRI PRASAD J. JOSHI AND
SRI RAVIRAJ C. PATIL, ADVOCATES)
AND:
1. STATE OF KARNATAKA,
BY PRINCIPAL SECRETARY,
DEPARTMENT OF COOPERATION,
ROOM NO.610, 6TH FLOOR,
3RD GATE, MS BUILDING,
BANGALORE-1.
2. THE DEPUTY REGISTRAR OF COOPERATIVE SOCIETIES,
SAHAKARA BHAVAN, JAKKERI HONDA,
BELAGAVI-590006.
3. THE ASSISTANT REGISTRAR OF COOPERATIVE
SOCIETIES,
CHIKODI SUB-DIVISION,
NEAR BUS STAND, CHIKODI,
TAL: CHIKODI, DIST: BELAGAVI-591201.
4. COOPERATIVE DEVELOPMENT OFFICER,
TAL: ATHANI, DIST: BELAGAVI.
5. SATISH V. MUSANDI,
ENQUIRY OFFICER,
PRATHAMIKA KRISHI PATTINA SAHAKARA SANGHA
NIYAMIT, HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
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WP No. 104080 of 2023
6. VISHWANATH S/O. BASAGOUDA PATIL,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: C/O BASAVARAJ S. MATTI,
NO.30, MALLIKARJUN NILAYA, PATIL LAYOUT,
LINGARAJ NAGAR, NORTH UNKAL,
HUBLI- 580031.
7. DHANAPAL S/O. ANNAPPA SHIRAHATTI,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
8. PRAKASH S/O. SIDDAPPA BADNIKAYI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
9. SHRISHAIL S/O. BHIMAPPA PADEDAR,
AGE: 52 YEARS, OCC: DOCTOR,
R/O: AT POST HARUGERI, TAL: RAIBAG,
DIST: BELAGAVI-591220.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1 TO R4;
R5 AND R6-NOTICE SERVED)
(BY SRI SHIVARAJ P. MUDHOL, ADVOCATE FOR R7-R9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI MAY KINDLY BE ISSUED AND THE IMPUGNED ORDER
AT ANNEXURE-A DATED 30/05/2023 IN AR-11/ABN/SUR/01-2021-22
PASSED BY THE RESPONDENT NO.03 MAY KINDLY BE QUASHED, SO
FAR AS THE PETITIONERS ARE CONCERNED AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 104080 of 2023
ORDER
Heard learned counsel for the petitioners and learned HCGP appearing for the respondents No.1 to 4-State as well as learned counsel Sri Shivaraj P.Mudhol, appearing for respondents No.7 to 9.
2. This writ petition is filed by the petitioners seeking to quash Annexure-A dated 30.05.2023 passed by the 3rd respondent insofar as petitioners are concerned.
3. It is the case of petitioners that petitioners No.1 is the Chief Executive Officer of Prathamika Krishi Pattina Sahakara Sangh Niyamit, Harugeri (for short, 'the Society') which was established in the year 1949 and other petitioners are Directors and Members of the said Society. An Audit was conducted during every financial year by a Chartered Accountant and the same was approved by the General Body Meeting and accordingly, no objections were raised neither negative remarks with regard to said audit report at any point of time. One of the members of the Society namely Sri Hanamant Siddappa Thakkannavar filed a complaint before the Deputy Commissioner on 23.10.2019 alleging that -5- NC: 2024:KHC-D:7097 WP No. 104080 of 2023 petitioners did not assist them to claim the then in force "Bele Sala Manna" scheme and got the amount deposited to the 'Gobbara Sala' instead of 'Bele Sala' and hence he and his family members could not have availed the benefit of the said scheme.
4. On the basis of complaint so made, respondent No.3 initiated enquiry proceedings against the petitioners and appointed the 5th respondent as Enquiry Officer to conduct the enquiry, who upon proper investigation and conducted enquiry under Section 64 of the Karnataka Co-operative Societies Act, 1959 (for short, 'the Act, 1959'), completing the enquiry filed his report at Annexure-C. On the basis of said enquiry under Section 64 of the Act, 1959, the 4th respondent initiated proceedings against the petitioners for recovery of amount reported to be misappropriated under Section 69 of the Act, 1959. On such initiation of enquiry proceedings, statement of objections were filed by the petitioners denying the allegations made against them and produced relevant documents, which according to the petitioners were not considered and taken note of by the 4th -6- NC: 2024:KHC-D:7097 WP No. 104080 of 2023 respondent, without taking into consideration the said relevant materials placed by the petitioners, respondent No.3 has passed the impugned order holding the petitioners to be liable to pay the amount of misappropriation vide order dated 30.05.2023. Aggrieved by which, the petitioners are before this Court seeking to quash the said impugned order.
5. Learned counsel for the petitioners contends that there is an error apparent committed by the 3rd respondent in not taking into consideration the materials placed on record and blatantly ignored the relevant material facts and documents placed before coming to conclusion that there is an alleged misappropriation on the basis of enquiry report submitted by the 5th respondent. Therefore, he contends that petitioners' statement of objection and the materials placed on record are not considered and taken note of while passing the impugned order, there is a totally non application of mind; hence it calls for interference at the hands of this Court.
6. It is also further contended by learned counsel for the petitioners that no notices were issued to the farmers -7- NC: 2024:KHC-D:7097 WP No. 104080 of 2023 with regard to allegations made and nothing material is forthcoming with regard to misappropriation alleged against the petitioners. Therefore, they are before this Court seeking to quash the impugned order passed by the 3rd respondent.
7. Per contra, the learned HCGP appearing for the State contends that writ petition itself is not maintainable in view of there being an alternative efficacious remedy being available under the Act, 1959. So also the learned counsel representing respondents No.7 to 9 who are the Directors of the Society vehemently contends that the petition is not maintainable due to want of maintainability as there is an alternative efficacious remedy available within the Act, 1959 for the petitioners to take appropriate remedy by filing an appeal as contemplated under the Act, 1959 by invoking the appeal provisions.
8. It is also contended that it is not a case of petitioners that there is lack of jurisdiction of the respondent authorities in passing the impugned order or conducting the enquiry, which would call for interference at the hands of this Court. So also I do not find anything material placed on -8- NC: 2024:KHC-D:7097 WP No. 104080 of 2023 record or before this Court to show that there is a lack of jurisdiction of the authorities to invoke the writ jurisdiction under Article 226 of the Constitution of India.
9. Learned counsel for the petitioners relies on the Judgment of the Hon'ble Apex Court in the case of M/s. Godrej Sara Lee Ltd., vs. The Excise and Taxation Officer- cum-Assessing Authority and Others, reported in 2023 AIR (Supreme Court) 781 and in the case of PHR Invent Educational Society vs. UCO Bank and Others, Civil Appeal (Arising Out of SLP(C) No.8867/2022) dated 10.04.2024. Learned counsel for petitioners relies on these two Judgments to canvass his arguments that the principles of natural justice has not been followed and blatantly ignored by the authority, whereas the learned counsel for respondents No.7 to 9 relies on the Judgment of the Division Bench of this Court in the case of Shri Umapathi S/o.Panchaksharayya Salimath vs. The Joint Registrar of Co-operative Societies and others, Writ Petition No.100150/2024 (CS-DAS), dated 30.04.2024, wherein a similar situation arose, but the order was passed under Section 70, which was appreciated by the learned Single -9- NC: 2024:KHC-D:7097 WP No. 104080 of 2023 Judge thereafter set aside by the Division Bench and the said writ petition came to be dismissed and then the same is challenged before the Division bench of this Court and Division bench dismissed the appeal affirming the right of remedy available to the petitioners therein to approach the appellate authority to redress their grievances, while doing so the Judgment of the Hon'ble Apex Court in the case of M/s. Godrej Sara Lee Ltd. (supra). It is this case which is relied by both parties, it is relevant to extract paragraph Nos.4 and 8 of the said Judgment.
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly
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NC: 2024:KHC-D:7097 WP No. 104080 of 2023 worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not
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NC: 2024:KHC-D:7097 WP No. 104080 of 2023 operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
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8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available."
10. Having heard the learned counsel for both parties, it is a fundamental rule of law that the High Court in its writ jurisdiction under Article 226 of the Constitution of India
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NC: 2024:KHC-D:7097 WP No. 104080 of 2023 evolved with the judicial precedents should not normally entertain a writ petition, where there is an alternative and efficacious remedy available under the Act, 1959 unless it is shown that per say and prima facie error committed by the authority of jurisdiction and there is lack of jurisdiction while dealing with such orders passed by the authority. In the present case on hand, nothing is shown before this Court that there is lack of jurisdiction of the authorities while passing the impugned order or that there is any violation of fundamental principles or deviation of judicial procedure and no opportunity having been given to the petitioners to have their say. On the contrary, petitioners participated in the proceedings and in the enquiry and the authorities have passed the impugned order. Under such circumstances, this is not a fit case to be entertained giving leave to the petitioners to exercise their option under Article 226 of the Constitution of India when there is specific alternative efficacious remedy is available under Section 105(f), which provides for appeal, revisions and review on the orders passed under Section 69 of the Act, 1959. Therefore, I am
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NC: 2024:KHC-D:7097 WP No. 104080 of 2023 not too convinced with the arguments put forth by the learned counsel for the petitioners. The Judgments of the Hon'ble Apex Court relied on by the learned counsel for the petitioners do not come in aid to him. Accordingly, this petition is dismissed.
11. However, liberty is provided to the petitioners to prefer an appeal, if the same is filed within two weeks from the date of receipt of copy of this order, till then no precipitative action shall be taken, failing which, respondent authorities shall proceed further in the matter.
Sd/-
JUDGE CKK CT:BCK LIST NO.: 1 SL NO.: 4