Somashekhara J.S. and others v. Manjeswaram Primary Co-operative Agricultural Rural Development Bank Ltd. No.S-538 and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** ## **WP(C).No. 37404 of 2018** ## **PETITIONERS:** |**1**|**SOMASHEKHARA J.S.,**| |---|---| ||**AGED 39 YEARS**| ||**S/O.JANARDHANA NAYAK, SHENI (HOUSE), P.O.SHENI,**| ||**KASARAGOD DISTRICT, PIN-671552.**| |**2**|**MR. MANJUNATHA ALVA K.**| ||**AGED 66 YEARS**| ||**S/O. RAMAYYA ALVA, MADVA HOUSE, P.O. KODIYAMME,**| ||**ICHLAMPADY VILLAGE, PIN - 671 321.**| |**3**|**MR. MOHAMMED HANEEF**| ||**AGED 70 YEARS**| ||**S/O. SEKALI, SHANAD COMPOUND, CHEVAR,**| ||**KUDALAMERKALA, VIA MANGALPADY,**| ||**PIN - 671 324.**| |**4**|**MR. SADADIVA A.**| ||**AGED 30 YEARS**| ||**S/O. SUBRAYA NAYAK, ALCHAR HOUSE, SHENI P.O.,**| ||**MANJESWARAM TALUK, PIN - 671 552 .**| |**5**|**MR. PRADEEP KUMAR SHETTY**| ||**AGED 62 YEARS**| ||**S/O. BHASKARA SHETTY, VASANTHA BAGH,**| ||**RAILWAY STATION ROAD, UPPALA, UPPALA P.O.,**| ||**PIN - 671 322.**| ## **W.P.(C)No.37404 of 2018** ## **:-2-:** **6 MRS. NUSAIBA S. AGED 27 YEARS W/O. ABDULLA NASIR M., PAIVALIKE HOUSE, PAIVALIKE P.O., MANJESWARAM TALUK, PIN - 671 348. 7 MRS. KALYANI AGED 43 YEARS, W/O.LATE VIJAYA PAJANGAR HOUSE, MOODAMBALI P.O., MANJESWARAM, PIN - 671 323. 8 MR. P. SHASHIDHARA NAIK AGED 49 YEARS S/O. NARAYANA NAIK, POYYE HOUSE, VORKADY P.O., MANJESWARAM, PIN - 671 323.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.P.PRIJITH SRI.R.GITHESH SRI.SACHIN JACOB AMBAT SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS:** |**1**|**MANJESWARAM PRIMARY CO-OPERATIVE AGRICULTURAL**| |---|---| ||**RURAL DEVELOPMENT BANK LTD.NO.S-538,**| ||**UPPALA P.O, KASARAGOD DISTRICT, PIN-671322,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**MR. K. JAYACHANDRAN**| ||**ASSISTANT REGISTRAR (GENERAL), DISTRICT CO-**| ||**OPERATIVE SOCIETY, KASARAGOD,**| ||**AND ADMINISTRATOR (PART TIME),**| ||**MANJESWARAM PRIMARY CO-OPERATIVE AGRICULTURAL**| ||**RURAL DEVELOPMENT BANK LTD.NO.S-538**| ||**UPPALA P.O, KASARAGOD DISTRICT, PIN-671322,**| ## **W.P.(C)No.37404 of 2018** ## **:-3-:** - **3 THE JOINT REGISTRAR DISTRICT CO-OPERATIVE SOCIETY, KASARAGOD, PIN - 671 321.** - **4 MR. JAYARAJA A.K. S/O. AITHAPPA K., AGED ABOUT 30, CHOORITHADKA HOUSE, P.O. BAMBRANA, PIN - 671 348.** - **5 SMT. SARA C.H. AGED 35 YEARS D/O. IBRAHIM, NEAR SUB STATION, BADAJE P.O., PIN - 671 323.** - **6 MR. BALAKRISHNA RAI AGED 55 YEARS S/O. CHIKKAPPA RAI, BANOTTU HOUSE, PAIVALIKE POST, PIN - 671 348.** - **7 MR. KRISHNAN ADUKKATHOTTI S/O.KUNHIRAMAN, AGED 65 YEARS NEAR GPM COLLEGE, MANJESWARAM TALUK, PIN - 671 323.** **BY ADVS. SRI.M.SASINDRAN SMT.HEMALATHA SHRI.JAWAHAR JOSE SRI.BINU GEORGE SRI. BIMAL K.NATH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.37404 of 2018** ## **:-4-:** ## **J U D G M E N T** |The 1<br>st<br>petitioner was the President and| |---| |petitioners 2 to 8 were the members in the Managing| |Committee of the 1<br>st<br>respondent Bank, which is a| |Society registered under the Kerala Co-operative| |Societies Act, 1969 and the rules made thereunder.| |Respondents 4 to 7 were also members of the Managing| |Committee. The petitioners have filed this writ| |petition under Article 226 of the Constitution of| |India, seeking a writ of certiorari to quash Ext.P2| |order dated 9.11.2018 of the 3<br>rd<br>respondent Joint| |Registrar, whereby the 2<br>nd<br>respondent Assistant| |Registrar has been appointed as Part-time| |Administrator of the 1<br>st<br>respondent Society,| |invoking powers under Section 33 of the Kerala Co-| |operative Societies Act, on the ground that| |petitioners 7 and 8 and also respondents 4 to 7| |resigned from the Managing Committee and as such the| |Committee has lost its quorum.| |2.<br>On 16.11.2018 when this writ petition came| ## **W.P.(C)No.37404 of 2018** |**:-5-:**| |---| |up for admission, the learned Senior Government| |Pleader took notice on admission for the 3<br>rd| |respondent. Urgent notice on admission by special| |messenger was ordered to respondents 1, 2 and 4 to| |7, returnable by 23.11.2018. The learned Senior| |Government Pleader was directed to get instructions.| |3.<br>The 1<br>st<br>respondent Society has filed a| |counter affidavit dated 26.11.2018. Respondents 4, 6| |and 7 have filed counter affidavit dated 24.11.2018| |followed by additional counter affidavit dated| |5.12.2018. The 5<br>th<br>respondent has filed counter| |affidavit dated 3.12.2018. Counter affidavit dated| |17.1.2019 has been filed on behalf of the 3<br>rd| |respondent Joint Registrar. The 1<br>st<br>petitioner, the| |7<br>th<br>petitioner and the 8<br>th<br>petitioner have filed| |separate reply affidavits to the counter affidavit| |filed by respondents 4, 6 and 7. Respondents 4, 6| |and 7 have filed I.A.No.2 of 2018 to direct the 7<br>th| |petitioner to be present in this Court, on a day to| ## **W.P.(C)No.37404 of 2018** **:-6-:** be fixed by this Court, and further direct the Director of the Forensic Science Lab, Thiruvananthapuram, to compare the signature of the 7th petitioner taken in open Court with that of her signatures seen in Ext.R1(a)/R4(a) resignation letters and report before this Court about the authenticity of the said signatures. 4. Heard the learned Senior Counsel for the petitioners, the learned counsel for respondents 1 and 2, the learned Senior Government Pleader for the 3rd respondent, the learned counsel for the respondents 4, 6 and 7 and also the learned counsel for the 5th respondent. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 order dated 9.11.2018 of the 3rd respondent Joint Registrar, whereby a Part-time Administrator has been appointed to manage the affairs of the 1st respondent Society, ## **W.P.(C)No.37404 of 2018** **:-7-:** invoking the powers under Section 33 of the Kerala Co-operative Societies Act, stating that on account of resignation of the members of the Managing Committee, the number of the remaining members cannot constitute the quorum for the meeting of the Committee. 6. The fact that Ext.P2 order passed by the 3rd respondent Joint Registrar is an order which is appealable under Section 83(i)(j) of the Kerala Cooperative Societies Act is not in dispute. The submission made by the learned Senior Counsel for the petitioner is that as the petitioners 7 and 8 and also respondents 4 to 7 never tendered resignation to the 1st petitioner, who was the President of the Society, the 3rd respondent Joint Registrar has invoked his powers under Section 33 of the Act, absolutely without any jurisdiction or authority and as such, the availability of the statutory remedy under Section 83(i)(j) will not bar ## **W.P.(C)No.37404 of 2018** **:-8-:** the petitioners in invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 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 of 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 ## **W.P.(C)No.37404 of 2018** **:-9-:** 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 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 **W.P.(C)No.37404 of 2018** **:-10-:** 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 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 ## **W.P.(C)No.37404 of 2018** ## **:-11-:** 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 right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the ## **W.P.(C)No.37404 of 2018** ## **:-12-:** 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 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. ## **W.P.(C)No.37404 of 2018** ## **:-13-:** 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 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 ## **W.P.(C)No.37404 of 2018** ## **:-14-:** 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. In the instant case, the power of the 3rd respondent Joint Registrar to appoint Administrator in a Co-operative Society, invoking the powers under Section 33 of the Act is not in dispute. The contention raised by the learned Senior Counsel for the petitioners is that, while issuing Ext.P2 order, the 3rd respondent has acted absolutely without any jurisdiction or authority, as petitioners 7 and 8 and also respondents 4 to 7 never resigned from the Managing Committee of the 1st respondent Society, by tendering resignation to the 1st petitioner, who was the President of that said Society. 12. Section 33 of the Kerala Co-operative ## **W.P.(C)No.37404 of 2018** **:-15-:** Societies Act deals with appointment of new committee or Administrator on failure to constitute committees, etc. As per sub-section (1) of Section 33, where the term of office of a committee has expired and a new committee has not been constituted, or where a no-confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the Registrar is satisfied, that a new committee cannot be constituted before the expiry of the term of office of the existing committee; or, there is stalemate in the constitution or functions of the committee; or that a new committee is prevented from entering upon ## **W.P.(C)No.37404 of 2018** **:-16-:** office or a new committee falls to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on application of any member of the society, after intimating the Circle Cooperative Union, appoint one Administrator or an Administrative Committee consisting of not more than three individuals, who need not be member of the society, one among them as convener to manage the affairs of the society, for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, whichever is earlier. As per Explanation to sub-section (1) of Section 33 of the Act, for the purpose of subsection (1), a tender of resignation by a member of ## **W.P.(C)No.37404 of 2018** **:-17-:** the Committee shall have the effect of terminating his membership from the Society. 13. Rule 38 of the Kerala Co-operative Societies Rules deals with constitution of committee, resignation and removal from membership. As per sub-rule (1) when a committee is constituted under Section 28, the Returning Officer shall inform the details of elections to the State Co-operative Election Commission, forthwith. As per sub-rule (3) of Rule 38, any member of a Committee, whether elected or nominated may tender his resignation to the President of the Committee. As per sub-rule (4) the President, on receipt of resignation, shall within seven days from the date of receipt thereof place it before the committee of the Society for consideration if the member is an elected person or send it to the authority who nominated the member, if he is a nominee. The resignation shall have effect only from the date of its acceptance by the ## **W.P.(C)No.37404 of 2018** ## **:-18-:** committee or the authority who nominated the member concerned as the case may be. The fact of its acceptance or otherwise shall also be communicated to the member concerned. In the case of nominees the fact of acceptance or otherwise shall be communicated to the Society also. 14. In **S.Nataraj Gownder and another v.** **Registrar & Deputy Director of Dairy Development and** **others [2008 (2) KLT 335]** this Court held that an elected member of a Co-operative Society ceases to be in office when he tenders his resignation to the President of the Society and it does not depend upon acceptance by the Committee or even the President. Therefore, sub-rule (4) of Rule 38 of the Kerala Cooperative Societies Rules to the extent it provides that the resignation shall have effect only from the date of its acceptance by the committee is ultravires sub-section (1) of Section 33 of the Kerala Co-operative Societies Act read with ## **W.P.(C)No.37404 of 2018** ## **:-19-:** Explanation thereto, and hence void. Paragraphs 6 to 9 of the said decision read thus; “6.Section 33(1) of the Act provides, among other things, that where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, the Registrar may, either suo motu or on the application of any member of the society, appoint administrator or administrators. The terms “resigns” and “resignation” in Section 33(1) have an explanation at the foot of Section 33(1) which provides that for the purpose of that subsection, a tender of resignation by a member of the committee shall have the effect of terminating his membership from the committee. Rule 38 of the Rules deals with, among other things, resignation from membership in the committee. Sub-rule 3 thereof enjoins that any member of a committee may tender his resignation to the President of the committee. Sub-rule 4 of Rule 38 reads as follows: “(4) The President, on receipt of a resignation, shall within seven days from the date of receipt thereof ## **W.P.(C)No.37404 of 2018** ## **:-20-:** place it before the committee of the society for consideration if the member is an elected person or send it to the authority who nominated the member, if he is a nominee. The resignation shall have effect only from the date of its acceptance by the committee or the authority who nominated the member concerned as the case may be. The fact of its acceptance or otherwise shall also be communicated to the member concerned. In the case of nominees the fact of acceptance or otherwise shall be communicated to the society also.” 7.It appears that the aforesaid provision was among the rules even before the introduction of the Explanation to Section 33(1) referred to above. Even otherwise, a provision among the rules, being a piece of subordinate legislation, cannot contradict a specific provision in the parent statute. Therefore, sub-rule 4 of Rule 38 to the extent it provides that the resignation shall have the effect only from the date of its acceptance by the committee is ultra vires Section 33(1) read with Explanation t hereto and is hence void. I ## **W.P.(C)No.37404 of 2018** ## **:-21-:** |may hasten to add that this conclusion is| |---| |arrived at only as regards elected members and| |not regarding nominated members. [See also| |Deputy Registrar of Co-operarive Society &| |another v. P.K.Goerge<br> (1974 KLT 189)] holding| |that in the case of nominated members, the| |President is a mere conduit pipe for| |transmitting the resignation to the nominating| |authority. Formidable support to this, can be| |found in the unreported judgment of this Court| |in O.P.No.13060/1998 and connected cases| |delivered taking note of the decisions inVarma| |v. Joint Registrar<br> [1987 (2) KLT 420] and| |Sadasivan v. Joint Registrar<br> [1994 (2) KLT| |238]. The requirement that the President shall| |place the resignation before the committee for| |consideration does not clothe the committee| |with any role in the matter of acceptance or| |nonacceptance of the resignation, in as much| |as, the resignation takes effect on it being| |tendered to the President and does not depend| |upon acceptance by the committee or even the| |President. In support, is Thomas v. Jaihind| |Powerloom Industry<br> [2001 (1) KLT SN Case No.12| |at Page 10].| 8.Profitable reference has been made by the learned senior counsel for the petitioners to ## **W.P.(C)No.37404 of 2018** ## **:-22-:** the decision of the Apex Court in Union of India v. Gopal Chandra (AIR 1978 SC 694), to state that the general principle that in the absence of a legal or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, is applicable in all cases where the office is one from which one can demit by his unilateral act of tendering resignation. 9.It has, therefore, to be held that an elected member of a co-operative society ceases to be in office by tendering his resignation to the President of the Society.” 15. In **N.Divakaran and another v. Joint** ## **Registrar of Co-operative Societies and others [2014** **(4) KLT 297]** this Court held that a resignation tendered by a member of the Managing Committee to the President is valid under sub-section (1) of Section 33 of the Kerala Co-operative Societies Act with immediate effect and that, non-compliance of sub-rule (4) of Rule 38 of the Kerala Co-operative Societies Rules does not invalidate the resignation tendered to the President of the Committee. ## **W.P.(C)No.37404 of 2018** ## **:-23-:** 16. In the case on hand, the contention of the petitioners is that petitioners 7 and 8 and also respondents 4 to 7 have not tendered any resignation to the 1st petitioner, who was the President of the 1st respondent Society. Per contra, respondents 4, 6 and 7 would contend that they along with petitioners 7 and 8 and also the 5th respondent tendered resignation to the 1st petitioner on 9.11.2018 and thereafter, all of them tendered copy of the resignation letters to the 3rd respondent Joint Registrar, on 9.11.2018 itself. In the counter affidavit, the 5th respondent would contend that the signed blank paper obtained from her on 8.11.2018 has been misused for creating a bogus resignation letter. 17. The factual dispute as to whether petitioners 7 and 8 and respondents 4 to 7 have tendered resignation to the 1st petitioner on 9.11.2018 cannot be adjudicated in a writ petition ## **W.P.(C)No.37404 of 2018** **:-24-:** filed under Article 226 of the Constitution of India. Without adjudicating the said factual dispute, it cannot be concluded that Ext.P2 order is one issued by the 3rd respondent Joint Registrar absolutely without any authority of law. 18. In **Nedumon Service Co-operative Bank Ltd.No.2720 v. Joint Registrar of Co-operative Societies (G) and others [2018 (3) KHC 861]** , this Court in the context of the challenge made against an order passed by the Joint Registrar under Rule 176 of the Kerala Co-operative Societies Rules held that the order passed by the Joint Registrar rescinding resolution is rested on a report gathered after an inquiry conducted under Section 65 of the Kerala Co-operative Societies Act, followed by an inspection under Section 66 of the Act. There arise many factual disputes on the report, which can be gone into only in an appeal filed to the Government under Section 83(i)(j) of the Act, assailing Ext.P3 ## **W.P.(C)No.37404 of 2018** ## **:-25-:** order of the Joint Registrar. The jurisdiction under Article 226 cannot be invoked challenging the findings of fact rendered by the Joint Registrar, in exercise of the powers under Rule 176 of the Rules. Paragraph 3 of the said decision reads thus; “3. Ext.P3 order rescinding the resolution has evidently been passed under Rule 176 of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short) by the Joint Registrar exercising the powers of the Registrar. The Joint Registrar has found that the resolution dated 17.04.2014 is ultra vires of the object of the bank and is against the provisions of the Act, Rules and bye-laws. The same was preceded by a show cause notice and an opportunity of personal hearing to the bank who cannot therefore complain of violation of the principles of natural justice. We find that Ext.P3 order is rested on a report gathered after an enquiry conducted under Section 65 of the Act followed by an inspection under Section 66 of the Act. There arise many factual disputes on the report which can be gone into only in an appeal filed to the government under Section 83(1)(j) of the Act assailing Ext.P3 order of ## **W.P.(C)No.37404 of 2018** ## **:-26-:** the Joint Registrar. The jurisdiction under Article 226 cannot be invoked by the bank challenging the findings of fact rendered by the Joint Registrar in exercise of the powers under Rule 176 of the Rules.” 19. In **Theyyoottuchira Nishath v. The Returning Officer and others [LAWS (KER) 2010 (10) 600]** a Division Bench of this Court, in the context of the provisions under the Kerala Panchayat Raj Act, 1994, held that the adjudication of the dispute as to whether the appellant/petitioner has in fact resigned on a particular date before commencement of the election process or whether he had received any honorarium is an exercise not normally undertaken by this Court under Article 226 of the Constitution of India. For adjudication of such issues, he has to avail the alternative remedy provided under the Statute. Paragraph 6 of the said judgment reads thus; “......It can be seen from Section 102(1)(c) that the improper rejection of a nomination ## **W.P.(C)No.37404 of 2018** ## **:-27-:** paper, if established in an election dispute before the appropriate court, is a sure ground for declaring the election void without any further burden on the part of the candidates whose nominations were improperly rejected. Therefore there is a clear, efficacious alternative remedy available to the petitioner. Apart from the above, the adjudication of the dispute such as the one raised in the present writ petition requires an adjudication into the correctness of the facts stated by the petitioner, such as whether the petitioner has in fact resigned on a particular date before commencement of the election process and whether in fact the petitioner had received any honorarium as per Ext.P2 an exercise not normally undertaken by this Court under Article 226 of the Constitution of India. For the abovementioned reasons we do not see any reason to entertain this Writ Appeal and the same is dismissed at the admission stage.” 20. Having considered the submissions made by the learned counsel on both sides, this Court finds that the petitioners have not made out a case warranting interference on Ext.P2 order of the 3rd ## **W.P.(C)No.37404 of 2018** ## **:-28-:** respondent Joint Registrar, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, and it is for the petitioners to avail the statutory remedy of appeal under Section 83(i)(j) of the Act. 21. In the result, the challenge made in this writ petition against Ext.P3 order is rejected for the aforesaid reason and the writ petition is accordingly dismissed; however without prejudice to the right of the petitioners to move an appeal before the State against the said order, by invoking the provisions under Section 83(i)(j) of the Act. 22. Since the petitioners have challenged Ext.P2 order dated 9.11.2018 of the 3rd respondent Joint Registrar, by filing this writ petition before this Court on 15.11.2018, the Appellate Authority shall entertain the appeal filed by the petitioners, challenging the said order, if filed within a period of two weeks from the date of receipt of a certified copy of this judgment. ## **W.P.(C)No.37404 of 2018** ## **:-29-:** It is made clear that the observations, if any, made in this judgment, touching the merits of the factual contentions, are made for the limited purpose of disposal of this writ petition and the Appellate Authority shall dispose of the appeal filed by the petitioners, untrammelled by any such observations. All pending interlocutory applications are closed. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/ ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF BYE-LAW OF THE 1ST RESPONDENT SOCIETY. EXHIBIT P2 TRUE COPY OF ORDER NO. O/4405/2018 DATED 09.11.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF REPRESENTATION SUBMITTED BY THE 7TH PETITIONER BEFORE THE 3RD RESPONDENT IN KANNADA.** ## **W.P.(C)No.37404 of 2018** ## **:-30-:** **EXHIBIT P3(a) TRUE COPY OF MALAYALAM TRANSLATION OF EXHIBIT P3.** **EXHIBIT P4 TRUE COPY OF LETTER DATED 23.11.2018 ISSUED BY THE HEAD MISTRESS, G.H.S.BANGRA, MANJESHWARA** **EXHIBIT P5 TRUE COPY OF REPRESENTATION DATED 31.10.2018 SUBMITTED BY MOHAMMED SHAFI K.P.** **EXHIBIT P6 TRUE COPY OF PRINT OUT OF THE PHOTO TAKEN ON 9.11.2018** - **RESPONDENTS' EXTS.:** - **EXHIBIT R(1)(a) TRUE COPY OF THE RESIGNATION LETTER OF THE 7TH PETITIONER, WHICH WAS HANDED OVER BY THE PRESIDENT TO THIS DEPONENT.** **EXHIBIT R(1)(b) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.R1(a).** - **EXHIBIT R(1)(c) TRUE COPY OF THE RESIGNATION LETTER OF THE 8TH PETITIONER DATED 9.11.2018, HANDED OVER BY THE PRESIDENT TO THIS DEPONENT.** **EXHIBIT R(1)(d) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.R1(c).** **EXHIBIT R(1)(e) TRUE COPY OF THE COVERING LETTER DATED 9.11.2018 SUBMITTED BY THIS DEPONENT BEFORE THE JOINT REGISTRAR OF COOPERATIVES (GENERAL), KASARGOD.** **EXHIBIT R(4)(a) TRUE COPY OF THE RESIGNATION LETTERS FILED BY PETITIONERS 7 AND 8, RESPONDENTS 4 TO 7.**