E.K.Sasi Aged 60 Years vs Thalayazham Service Co-Operative Bank ... on 3 January, 2013

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Kerala High Court

E.K.Sasi Aged 60 Years vs Thalayazham Service Co-Operative Bank ... on 3 January, 2013

1.Ext.P9 order passed by the second respondent, removing 695 persons from the membership of the first respondent, a Co-operative Bank, was challenged by the three appellants and the writ petition was dismissed by the learned single Judge having regard to the statutory remedies that are available. It is aggrieved by this judgment, the appeal is filed.

2.We heard the learned senior counsel for the appellants, the Special Government Pleader and the counsel appearing for the respective party respondents.

3.The only contention raised by the counsel for the appellants was that since the second respondent passed Ext.P9, the impugned order, without jurisdiction, the learned Judge erred in dismissing the case on the ground that statutory remedies are available. On the other hand, according to the WA.34/13 2 respondents, the second respondent exercised his powers under section 66 of the Kerala Co-operative Societies Act and therefore, there is no substance in the plea of absence of jurisdiction.

4.As far this appeal is concerned, we are called upon only to consider whether the learned Judge was justified in dismissing the case filed by the three appellants, who alone challenged the order passed by the second respondent. To answer this question, it is necessary to have a cursory look at the facts as disclosed from the impugned order itself.

5.As per the bye-laws of the first respondent, the area of operation of the bank is within ward Nos.1 and 2 of Thalayazham Village. Second respondent received a complaint alleging that 1627 members of the first respondent bank were ineligible for membership in the bank and that they should be removed from the rolls and on that basis, fresh electoral roll should be prepared and finalised. This was forwarded to the third respondent, who, after issuing notices to all the 1627 persons requiring them to appear and prove WA.34/13 3 their eligibility for membership, submitted his report dated 18.9.2012 recommending that steps should be initiated for removal of 689 members.

6.The second respondent thereupon issued notices to all the 689 members calling upon them to produce proof of their eligibility to maintain their membership in the bank. However, 277 notices were returned with the endorsement, "Expired, Addressee Left, Not Known, Absent, Unclaimed, Undelivered, and Out of Area". For the hearing held on four days, only 90 persons appeared and that among them, 19 did not produce anything to prove their eligibility and the remaining pesons did not even respond to the notices received by them.

7. It is also stated in Ext.P9 order that based on further complaints received against 26 persons, who were held to be eligible by the first respondent, notices were issued to them and that only 4 among them appeared for hearing and that they also could not produce anything substantiating their eligibility for membership. Ext.P9 concludes by finding that out WA.34/13 4 of 732 members, only 90 members appeared for enquiry and that among them, only 37 produced documents to sustain their membership and that the remaining 695 members were admitted to the membership of the bank from outside its area of operation and in violation of clause 4 of the bye-laws. Thereafter, in exercise of his powers under section 66 of the Act, the second respondent ordered removal of 695 persons from the membership of the society. It was challenging Ext.P9 order that three among the affected parties filed the writ petition.

8.As already stated, the question to be considered is whether the judgement dismissing the writ petition in view of the statutory remedies warrants interference. The above findings of the second respondent, at least prima facie, show that those who are ordered to be removed from the rolls of the society are from outside the area of operation of the society. It was not even contended that any violation of the principles of natural justice has been committed by either the first respondent or the second respondent. The contention that the above finding is incorrect WA.34/13 5 can be accepted only after a detailed factual adjudication which cannot be undertaken in a proceedings under Article 226 of the Constitution of India. Therefore, if we are to accept the case of the appellants that the order is bad for technical reasons, the result would be the resurrection of memberships in the society, which, on an enquiry held with opportunity to the appellants, has been found to be illegal.

9.Law is settled that certiorari would be denied by a writ court, in cases where consequence of its issue would be the revival of an illegality or an illegal order. In this context, it is apposite to refer to Rameshan v. Jayavally [2007 (2) KLT 325], where in paragraph 12, a Division Bench of this Court held thus;

"12. However, our conclusion on the above issue does not conclude the dispute, if we accept the contention of the appellant on point No. 2. As we have already noted, according to the quashing of Ext.P5 and Ext.P7 would result in restoration of the orders of the Educational Authorities declining approval to his appointment which is per se illegal for other reasons WA.34/13 6 and therefore we should restrain ourselves from exercising power under Art.226 of the Constitution of India. Counsel made reference to various authorities in support of the above proposition canvassed by him. He has referred to the judgment of the Supreme Court reported in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828), wherein it has been observed as follows:

"If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances", This was followed by the Andhra Pradesh High Court in the case reported in M.Padmanabha Iyyengar v. Government of A.P. (AIR1990 A.P.357) and held as follows:

" It must also be remembered that the remedy under Art. 226 is a discretionary one. The court is not bound to interfere merely on the establishment of an irregularity or illegality. The court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm: (See Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) and Venkateseara Rao v. Government of Andhra Pradesh ( AIR 1966 SC 828). Having regard to the totality of the circumstances, we do not think that this court should interfere and quash the WA.34/13 7 Inquiry under S.5A."

Still later in the case of Jagan Singh v. State Transport Appellate Tribunal (AlR 1980 Raj. 1, it has been held as follows:

"As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G.Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828)."

Making reference to R. v. Garland ((1970) 5 QB 269), it was contended that even in issuing writs of mandamus, the same principle is followed and that if the effect of issuing mandamus is going to be highly prejudicial, as where it would enable trustees to evade the discharge of their duties, a court of equity will not issue the writ. These judgments were followed by a Division Bench of this Court in the case reported in Koya v. State of Kerala (1992 (2) KLT 194), where it has been held as follows:

"It is now well settled that if an order of an authority is illegal or without jurisdiction, it need not be quashed by the High Court under Art. 226 of the Constitution of India if such action would result in restoration or revival of another order, which is also bad."

On this reasoning, this Court concluded in the following terms:

WA.34/13 8

"Following the principles laid down by the Supreme Court in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828) for exercise of discretion, we hold that this is not a fit case for quashing Ext.P5 order of the Government even if it was without jurisdiction for, such quashing would restore Ext.P4 order of the Wakf Board which is bad for other reasons. This is therefore, not a fit case for exercising discretion to quash Ext.P5."

Counsel also made reference to the judgment in Mohammad Swallieh and Ors. v. Third Addl. District Judge, Meerut & Anr. ((1988)1 SCC 40). Paragraph 7 thereof is extracted below for reference:

"It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned DistrictJudge. in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a WA.34/13 9 point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken."

We were also referred to the Supreme Court judgment in the case reported in Roshan Deen v. Preeti Lal (2002 (1) KLT (SC) (SN) 43 = AIR 2002 SC

33), where it has been held as follows:

"Time and again this Court has reminded that the power conferred on the High Court under Arts.226 and 227 of the Constitution is to advance justice and not to thwart it, (vide State of Uttar Pradesh v. District Judge, Unnao & Ors., (AIR 1984 SC 1401). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law."

We were also referred to a Division Bench of this Court in W.A.No.2430 of 2002 in which the aforesaid judgment of the Supreme Court has been followed and WA.34/13 10 it was held that the court cannot erase justice done in the name of correcting error of law."

10.It is also well settled that even in cases where a tribunal has acted beyond its powers, if justice has been done by it, the writ court will decline to interfere with the order. This view that we have taken is supported by the judgment of this Court in Madhavikutty v. State of Kerala [2008(1) KLT 692], where, following the Apex Court judgment in Mohammed Swalleh v. IIIrd Additional District Judge [1988(1) SCC 40], it was held thus;

"5. Even assuming an order is passed by an authority having no jurisdiction, still, this Court need not interfere with the same if justice has been done."

11.The contention raised by the appellants is that the second respondent did not have jurisdiction to pass Ext.P9 order and according to him, the power of removal is vested in the committee only. Counsel also placed reliance on the judgment of this court in WA.34/13 11 Porinchu v. Joint Registrar of Co-operative Societies [2009 (4) KLT 105].

12.However, in so far as this case is concerned, the order was passed by the second respondent in compliance with the directions of this court in W.P

(c)No.16532/2012 and R.P.No.756/12 filed by the first appellant seeking review of the judgment was dismissed by order dated 21.8.2012. Further, it is also to be remembered that in the enquiry conducted by second and third respondents, the appellants did not raise any dispute on the issue of jurisdiction. In such a factual scenario, the question is whether a contention of absence of jurisdiction can be taken at all by the appellants.

13.In our view, the answer has to be in the negative and we are fully supported by the judgment in Madhavikutty's case (supra), where, referring to binding precedents, it has been held thus;

"3. The petitioner has chosen, not to point out the lack of jurisdiction of the Registrar or the Government WA.34/13 12 before those authorities, when the matter was heard. The petitioner who took the chance before both the forums, cannot be permitted to turn round and cry about the lack of jurisdiction when the decision goes against her. This is a well settled principle in writ jurisdiction. See the decision of the Division Bench in Trivandrum Co-operative District Wholesale Society v. Deputy Registrar of Co-operative Societies, Trivandrum (1975 KLT 589).

4. Further, the Registrar considered the matter pursuant to the direction of the Division Bench of this Court, which is a superior court of unlimited jurisdiction. Its order cannot be treated as a void order and it cannot be ignored. If it is irregular, it has to be corrected by filing a review. Otherwise, the order can be corrected only in appeal. As long as the Division Bench Judgment remains in force, no one can ignore that. In Sooryanathan v. State of Kerala (2004 (1) KLT 383), this Court considered the contention regarding the maintainability of an appeal filed after the period of limitation was over, based on the directions of this Court. In the said decision, it was held as follows :

"Further, Ext.P3 cannot be attacked for the delay in filing appeal as the same was filed as per the directions of this Court in O.P. No.29809/01. The High Court is a superior Court of unlimited jurisdiction. The concept of 'court of unlimited jurisdiction' is discussed in para.713 in Halsbury's Laws of England, Fourth Edition, Vol.10. It is stated therein as follows :

WA.34/13 13

"713. Limits of Jurisdiction - The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary."

This statement of law has been quoted with approval by our Apex Court in more than one decision. The latest of them is M.M.Thomas v. State of Kerala (2000 (1) KLT 799 (SC) = ((2000) 1 SCC 666). Therein, it was held, "15. In Halsbury's Laws of England (4th Edn. Vol. 10, para

713), it is stated thus :

'The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general WA.34/13 14 jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action.' (Though the above reference is to English Courts, the principle would squarely apply to the superior courts in India also.).

16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar (AIR 1967 SC 1), a two Judge Bench of this Court in M.V. Elisabeth v. Harwan Investment & Trading (P) Ltd. (AIR 1993 SC 1914) has observed thus:

'The High Courts in India are superior courts of record. They have inherent and plenary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.................'.

In view of the above legal position, there is nothing wrong with the disposal of the appeal by the Government on merits, ignoring the delay. Apart from that, an order of this Court unless it is modified in appropriate proceedings like appeal or review, is binding on all parties. The concept of 'voidness' is not at all applicable to the orders of superior courts of unlimited jurisdiction as held in Issac v. Robertson (1985 AC 9). Whatever be the legal defect contained in the order of this Court, the same will have to be obeyed. Prof. H.W.R. Wade in Administrative Law, 8th Edition, quoting the words of Lord Diplock in Issac v. Robertson stated as follows:

WA.34/13 15

'The order of a superior court, such as the High Court, must also always be obeyed, no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time limit.

As Lord Diplock explained:

'The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular, it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an Appellate Court upon appeal if there is one to which an appeal lies.' Therefore, I find nothing wrong in the action of the 1st respondent in entertaining the appeal and granting relief to the 4th respondent based on the direction of this Court in O.P. No.29809/01."

In view of the above principles, I find nothing wrong with the Registrar, hearing and deciding the petition under R.176 filed by the writ petitioner as per the direction of this Court."

14.Having appreciated the case of the appellants in the light of the aforesaid principles, we are satisfied WA.34/13 16 that the learned single Judge was perfectly justified in declining jurisdiction.

For these reasons, the appeal is dismissed, without any order as to costs.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

ANIL K.NARENDRAN, Judge.

kkb.

/True copy/ PS to Judge

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