Kerala High Court
Pullur Periya Panchayat Vanitha ... vs The Joint Registrar (General) Of Co ... on 1 October, 2018
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940
WP(C).No. 31916 of 2018
PETITIONER:
PULLUR PERIYA PANCHAYAT VANITHA SERVICE CO OPERATIVE
SOCIETY LTD.
NO. S 301, PERIYA P O, KASARGOD REPRESENTED BY ITS
SECRETARY, BIJU C MATHEW.
BY ADVS.
SRI.C.A.JOJO
SRI.JACOB CHACKO
SRI.MATHEWS JOSEPH
RESPONDENTS:
1 THE JOINT REGISTRAR (GENERAL) OF CO OPERATIVE
SOCIETIES
KASARGOD P O, KASARGOD-671121
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
THIRUVANANTHAPURAM, THYCAUD-695001
3 THE SECRETARY TO GOVERNMENT OF KERALA
CO-OPERATIVE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001
OTHER PRESENT:
SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
The petitioner, which is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ, order or direction to re-consider Ext.P1 application by the 1st respondent Joint Registrar. The petitioner has also sought for a writ of mandamus commanding the 1st respondent to approve the amendment of the bye-laws passed by the General Body of the Society, after hearing the petitioner.
2. The pleadings and materials on record would show that the petitioner Society after taking a decision to amend its bye-laws, made Ext.P1 application before the 1st respondent requesting for approval of the amended bye-laws. The said request now stands rejected by Ext.P2 communication dated 8.6.2018 issued by the 1st respondent Joint W.P.(C)No.31916 of 2018 :-3-:
Registrar, wherein it has been stated that the amended provisions in the bye-laws cannot be approved as it completely changes the objects for which the Society is established. Now the petitioner is before this Court in this writ petition under Article 226 of the Constitution of India, seeking reconsideration of Ext.P1 application made before the 1st respondent.
3. In ground (H) of the writ petition, it is contended that the petitioner cannot file an appeal under Section 83 of the Kerala Co-operative Societies Act, 1969, before the Government since Ext.P2 is not in the nature of an order.
4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents.
5. By Ext.P2, the request made by the petitioner Society in Ext.P1 application to grant W.P.(C)No.31916 of 2018 :-4-:
approval to the amendment made to the bye-laws stands rejected.
6. As per clause (b) of sub-section (1) of Section 83 of the Kerala Co-operative Societies Act, an appeal shall lie against an order of the Registrar made under sub-section (4) and sub-
section (6) of Section 12 of the Act refusing to register the amendment of bye-laws of a Society. As per sub-section (2) of Section 82, the time limit for filing the appeal is 60 days from the date of order or decision. A plain reading of Ext.P2 would make it explicitly clear that by the said communication, the petitioner Society is informed that Ext.P1 application made for approval of the amended bye-laws stands rejected. Therefore, it is for the petitioner to challenge Ext.P2 by availing the statutory remedy available under Section 83(1)
(b) of the Act.
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7. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. W.P.(C)No.31916 of 2018
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8. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in Chaabil Das Agarwal's case (supra), i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of W.P.(C)No.31916 of 2018 :-7-:
the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
9. In Thansingh Nathmal's case (supra) a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the W.P.(C)No.31916 of 2018 :-8-:
exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the W.P.(C)No.31916 of 2018 :-9-:
right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
10. In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete W.P.(C)No.31916 of 2018 :-10-:
machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage:
"There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course W.P.(C)No.31916 of 2018 :-11-:
applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final.
11. In view of the law laid down in the W.P.(C)No.31916 of 2018 :-12-:
decisions referred to supra, when a statutory remedy of appeal is available under Section 83(1)
(b) of the Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. Moreover in this writ petition, no relief has been sought for against Ext.P2, whereby Ext.P1 application made by the petitioner Society for grant of approval to the amendment made to its bye-laws stands rejected.
Reconsideration of Ext.P1 application is legally impermissible without setting aside Ext.P2.
In such circumstances, this writ petition filed on 28.9.2018 is dismissed, without prejudice to the right, if any, of the petitioner to challenge Ext.P2 under Section 83(1)(b) of the Act before appropriate forum.
Sd/-
ANIL K.NARENDRAN JUDGE ami/5.10.18 W.P.(C)No.31916 of 2018 :-13-:
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE APPLICATION SUBMITTED TO THE 1ST RESPONDENT DATED 25.10.2017. EXHIBIT P1(a) A TRUE COPY OF THE DECISION OF THE GENERAL BODY FOR BYE-LAW AMENDMENT DATED 25.10.2017.
EXHIBIT P1(b) A TRUE COPY OF THE DECISION OF THE DIRECTOR BOARD AUTHORIZING THE PRESIDENT AND 2 DIRECTORS TO SIGN THE APPLICATIONS FOR BYE-LAW AMENDMENT DATED 25.10.2017. EXHIBIT P1(c) A TRUE COPY OF THE PRESENT BYE-LAW TO BE AMENDMENT APPROVED BY THE BOARD ON 06.01.2014.
EXHIBIT P1(d) A TRUE COPY OF THE CHALAN NO. KL 00712/894/2017/8M FOR AN AMOUNT OF RS. 50/-AS PRESCRIBED FEES FOR BYE-LAW AMENDMENT DATED 24.10.2017.
EXHIBIT P1(e) A TRUE COPY OF THE NOTICE ANNOUNCING THE GENERAL BODY FOR BYE-LAW AMENDMENT DISTRIBUTED ON 15.09.2017.
EXHIBIT P1(f) A TRUE COPY OF THE PROPOSED BYE-LAW AMENDMENT DISTRIBUTED AMONG THE MEMBERS SIGNED BY THE DIRECTORS.
EXHIBIT P1(g) A TRUE COPY OF THE DETAILS AS PER RULE 9(iii) OF THE KCS ACT DESCRIBING THE GENERAL BODY MEETING PROCEDURES SIGNED BY THE DIRECTORS DATED 25.10.2017. EXHIBIT P1(h) A TRUE COPY OF THE CERTIFICATION SIGNED BY THE SECRETARY STATING THE NEWS PAPER ADVERTISEMENT FOR THE GENERAL BODY MEETING DATED 25.10.2017.
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EXHIBIT P1(i) A TRUE COPY OF THE ADVERTISEMENT IN KERALA KAUMUDHI NEWS PAPER DATED 14.09.2017.
EXHIBIT P1(j) A TRUE COPY OF THE AMENDED BYE-LAW EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 08.06.2018 FROM THE 1ST RESPONDENT. //TRUE COPY// P.A.TO JUDGE ami/