Mulavoor Urban Co-operative Society Ltd. No.E 1068 represented by the President, Mulavoor P.O., Muvattupuzha, Ernakulam District v. Joint Registrar of Co-operative Societies; Assistant Registrar of Co-operative Societies (General), Muvattupuzha; Unit Inspector, Office of the Assistant Registrar of Co-operative Societies (General), Muvattupuzha; State of Kerala represented by the Secretary to Government, Co-operative Department, Government Secretariat, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** ## **WP(C).No. 27198 of 2018** ## **PETITIONER:** **MULAVOOR URBAN CO-OPERATIVE SOCIETY LTD.NO.E 1068 REPRESENTED BY THE PRESIDENT, MULAVOOR.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, 5TH FLOOR, B2 BLOCK, KAKKANAD CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** - **2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA, ERNAKULAM-686661.** - **3 THE UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA, ERNAKULAM-686661.** - **ADDL.4 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.2.2019 IN WPC.** ## **SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.27198 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, which is an Urban Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 2.8.2018 of 1st respondent Joint Registrar. The petitioner has also sought for a writ of mandamus directing an inquiry in relation to the inaccurate statement in Ext.P5, which were made deliberately for the closure of the evening branch with a further view to de-stabilise the functioning of the Society. The further relief sought for is a writ of mandamus declaring that the petitioner Society is entitled to continue the evening branch sanctioned as per Ext.P3, as it has achieved the desired result by opening the said branch, and also a declaration ## **W.P.(C)No.27198 of 2018** **:-3-:** that there is no authority enjoyed by the authorities to direct the closure of a branch after sanctioning and commenced functioning. 2. On 10.8.2018 when this writ petition came up for admission, the learned Senior Government Pleader was directed to get instructions as to whether Ext.P5 order passed by the 1st respondent Joint Registrar is one issued with notice to the petitioner. Thereafter, by order dated 10.8.2018, this Court appointed an Advocate Commissioner to conduct local inspection and submit a report before this Court as to the distance between the Head Office of the petitioner Society and its two branches at Nellikkuzhy, including the Evening Branch covered by Ext.P5 order. 3. The report of the Advocate Commissioner is placed on record. The 1st respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. ## **W.P.(C)No.27198 of 2018** **:-4-:** 4. Heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for the respondents. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P5 order dated 2.8.2018 of the 1st respondent Joint Registrar, whereby permission for continuance of the evening branch of the petitioner Society at Nellikuzhi stands declined and the Society is asked to close down the branch forthwith and report the said fact. In the writ petition, one of the main contentions raised by the petitioner is that Ext.P5 order is one issued based on incorrect and misleading facts. According to the petitioner, the statement in Ext.P5 that the distance between the evening branch and main branch at Canal Palam junction is 800 meters, is factually incorrect. The Advocate Commissioner has filed a report after conducting ## **W.P.(C)No.27198 of 2018** ## **:-5-:** inspection. 6. During the course of arguments, on a specific query made by this Court, the learned counsel for the petitioner would submit that Ext.P5 order of the 1st respondent Joint Registrar is appealable before the Government under Section 83(i)(j) of the Act. Such an appeal has to be filed within a period of 60 days from the date of receipt of that order. 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 ## **W.P.(C)No.27198 of 2018** ## **:-6-:** 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. 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 ## **W.P.(C)No.27198 of 2018** ## **:-7-:** 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 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 ## **W.P.(C)No.27198 of 2018** ## **:-8-:** 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 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 ## **W.P.(C)No.27198 of 2018** ## **:-9-:** 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 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 ## **W.P.(C)No.27198 of 2018** ## **:-10-:** 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 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 ## **W.P.(C)No.27198 of 2018** **==> picture [41 x 8] intentionally omitted <==** 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 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. 11. The learned counsel for the petitioner would submit that the petitioner shall file an appeal before the State, challenging Ext.P5 order dated 2.8.2018 of the 1st respondent Joint ## **W.P.(C)No.27198 of 2018** ## **:-12-:** Registrar, invoking the provisions under Section 83(i)(j) of the Act. Learned counsel would also submit that along with the said appeal, the petitioner shall also move an application for interim relief and that the interim order granted by this Court may be continued till an order is passed by the Government in that interlocutory application. 12. Learned Senior Government Pleader would submit that if any such appeal is received within the time limit to be specified by this Court, it shall be considered by the appropriate authority with notice to the petitioner and after affording the petitioner an opportunity of being heard. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) Within two weeks from the date of receipt of a certified copy of this judgment, the ## **W.P.(C)No.27198 of 2018** ## **:-13-:** petitioner shall file an appeal against Ext.P5 order before the Government, invoking Section 83(i)(j) of the Kerala Co-operative Societies Act. Along with the said appeal, the petitioner shall also move an application for the interim relief. (ii) If such an appeal, along with application for interim relief is received by the additional 4th respondent State, the said respondent shall consider the interlocutory application filed by the petitioner and pass appropriate orders thereon within a period of two weeks. Till such orders are passed, the interim order granted by this Court on 10.8.2018 shall continue to be in force. It is made clear that the observations, if any, contained in this judgment touching the merits of the claim made by the petitioner, are made for the limited purpose of disposal of this writ petition and the additional 4th respondent State shall consider the appeal and also the interlocutory application for the interim relief, untrammelled by **W.P.(C)No.27198 of 2018** **:-14-:** any of such observations. All legal and factual contentions raised by the petitioner are left open to be raised before the 1st respondent at appropriate stage. All pending interlocutory applications are closed. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/ ## **W.P.(C)No.27198 of 2018** ## **:-15-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER NO.HM 8508/12 KDIS. DATED 30.11.2012 PASSED BY THE JOINT REGISTRAR.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER SOCIETY WITH ALL THE DOCUMENTS ATTACHED THEREWITH.** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.HM 9466/14/K.DIS. DATED 12.5.2015 PASSED BY THE JOINT REGISTRAR.** **EXHIBIT P4 TRUE COPY OF THE RESOLUTION DATED 10.11.2016 WITH ENCLOSURES.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.HM/8074/16/K.DIS. DATED 2.8.2018 ISSUED BY THE JOINT REGISTRAR.** **EXHIBIT P6 TRUE COPY OF THE CHALAN EVIDENCING THE REMITTANCE OF THE AMOUNT.** - **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a) A TRUE COPY OF THE CIRCULAR NO.30/2014 DATED 21.6.2014.** **EXHIBIT R1(b) A TRUE COPY OF THE REPORT NO.1502/16 DATED 19.12.2016.**