In Commissioner Of Income Tax v. Chhabil

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.JOJOSRI.JACOB CHACKOSRI.MATHEWS JOSEPH RESPONDENTS: 1THE JOINT REGISTRAR (GENERAL) OF CO OPERATIVE SOCIETIESKASARGOD P O, KASARGOD-671121 2THE REGISTRAR OF CO-OPERATIVE SOCIETIESTHIRUVANANTHAPURAM, THYCAUD-695001THIRUVANANTHAPURAM, THYCAUD-695001 3THE SECRETARY TO GOVERNMENT OF KERALACO-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: W.P.(C)No.31916 of 2018 :-2-: J U D G M E N T The petitioner, which is a Co-operative Societyregistered under the Kerala Co-operative SocietiesAct, 1969, has filed this writ petition underArticle 226 of the Constitution of India, seeking awrit, order or direction to re-consider Ext.P1application by the 1[st] respondent Joint Registrar.The petitioner has also sought for a writ ofmandamus commanding the 1[st] respondent to approvethe amendment of the bye-laws passed by the GeneralBody of the Society, after hearing the petitioner. 2.The pleadings and materials on record wouldshow that the petitioner Society after taking adecision to amend its bye-laws, made Ext.P1application before the 1[st] respondent requesting forapproval of the amended bye-laws. The said requestnow stands rejected by Ext.P2 communication dated8.6.2018 issued by the 1[st]respondent Joint W.P.(C)No.31916 of 2018 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 ofIndia,seekingreconsiderationofExt.P1 application made before the 1[st] 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-operativeSocieties Act, 1969, before the Government sinceExt.P2 is not in the nature of an order. 4.Heard the learned counsel for the petitioner and also the learned Senior GovernmentPleader appearing for the respondents. 5.By Ext.P2, the request made by the petitioner Society in Ext.P1 application to grant :-4-: approval to the amendment made to the bye-lawsstands rejected. 6.As per clause (b) of sub-section (1) of Section 83 of the Kerala Co-operative SocietiesAct, an appeal shall lie against an order of theRegistrar made under sub-section (4) and sub- section (6) of Section 12 of the Act refusing toregister the amendment of bye-laws of a Society. Asper sub-section (2) of Section 82, the time limitfor filing the appeal is 60 days from the date oforder or decision. A plain reading of Ext.P2 wouldmake it explicitly clear that by the saidcommunication, the petitioner Society is informedthat Ext.P1 application made for approval of theamended bye-laws stands rejected. Therefore, it isfor the petitioner to challenge Ext.P2 by availingthe statutory remedy available under Section 83(1)(b) of the Act. :-5-: 7.In Commissioner of Income Tax v. Chhabil Section 83 of the Kerala Co-operative SocietiesAct, an appeal shall lie against an order of theRegistrar made under sub-section (4) and sub- section (6) of Section 12 of the Act refusing toregister the amendment of bye-laws of a Society. Asper sub-section (2) of Section 82, the time limitfor filing the appeal is 60 days from the date oforder or decision. A plain reading of Ext.P2 wouldmake it explicitly clear that by the saidcommunication, the petitioner Society is informedthat Ext.P1 application made for approval of theamended bye-laws stands rejected. Therefore, it isfor the petitioner to challenge Ext.P2 by availingthe statutory remedy available under Section 83(1)(b) of the Act. :-5-: 7.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court heldthat non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is arule and self imposed limitation. It is essentiallya rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 of the Constitution of India, despitethe existence of alternative remedy. However, HighCourt must not interfere if there is an adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has made outan exceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. :-6-: 8.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writpetition under Article 226 of the Constitution ofIndia ought not to be entertained if alternativestatutory remedies are available, except in casesfalling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not actedin accordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or has resortedto invoke the provisions which are repealed, orwhen an order has been passed in total violation of :-7-: the principles of natural justice. After referringto the law laid down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 9.In Thansingh Nathmal's case (supra) aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and the :-8-: Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 9.In Thansingh Nathmal's case (supra) aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and the :-8-: exercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily,the court will not entertain a petition for a writunder Article 226, where the petitioner has analternative remedy, which without being undulyonerous, provides an equally efficacious remedy.Again the High Court does not generally enter upona determination of questions which demand anelaborate examination of evidence to establish the :-9-: right to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal,to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon analternative remedy provided by statute forobtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and willleave the party applying to it to seek resort tothe machinery so set up. 10. In Titaghur Paper Mills' case (supra) aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea right or liability is created by a statute whichgives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of.This rule was stated with great clarity by Willes,J. inWolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class,viz., where a liability not existing at commonlaw is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the course W.P.(C)No.31916 of 2018 applicable to cases of the second class. Theform given by the statute must be adopted andadhered to."The rule laid down in that passage was approved by the House of Lords in Neville v. London ExpressNewspaper 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 "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class,viz., where a liability not existing at commonlaw is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the course W.P.(C)No.31916 of 2018 applicable to cases of the second class. Theform given by the statute must be adopted andadhered to."The rule laid down in that passage was approved by the House of Lords in Neville v. London ExpressNewspaper 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. . It has also been held to be equallyapplicable to enforcement of rights and has beenfollowed by the Apex Court throughout. In PavithranV. State of Kerala (2009 (4) KHC 4), a Full Benchof this Court held that, whenever an adverse orderis passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will becomefinal. 11. In view of the law laid down in the W.P.(C)No.31916 of 2018 :-12-: decisions referred to supra, when a statutoryremedy of appeal is availableunder Section 83(1) (b) of the Act, the petitioner cannot invoke thewrit jurisdiction of this Court under Article 226of the Constitution of India. Moreover in this writpetition, no relief has been sought for againstExt.P2, whereby Ext.P1 application made by thepetitioner Society for grant of approval to theamendment made to its bye-laws stands rejected.Reconsideration of Ext.P1 application is legallyimpermissible without setting aside Ext.P2. In such circumstances, this writ petition filedon 28.9.2018 is dismissed, without prejudice to the right, if any, of the petitioner to challengeExt.P2 under Section 83(1)(b) of the Act beforeappropriate forum. ami/5.10.18 Sd/- ANIL K.NARENDRAN JUDGE W.P.(C)No.31916 of 2018 :-13-: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE APPLICATION SUBMITTEDTO THE 1ST RESPONDENT DATED 25.10.2017.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 DATED25.10.2017.GENERAL BODY FOR BYE-LAW AMENDMENT DATED25.10.2017. EXHIBIT P1(b)A TRUE COPY OF THE DECISION OF THE DIRECTOR BOARD AUTHORIZING THE PRESIDENTAND 2 DIRECTORS TO SIGN THE APPLICATIONSFOR BYE-LAW AMENDMENT DATED 25.10.2017.DIRECTOR BOARD AUTHORIZING THE PRESIDENTAND 2 DIRECTORS TO SIGN THE APPLICATIONSFOR BYE-LAW AMENDMENT DATED 25.10.2017. EXHIBIT P1(c)A TRUE COPY OF THE PRESENT BYE-LAW TO BEAMENDMENT APPROVED BY THE BOARD ON 06.01.2014.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 24.10.2017.00712/894/2017/8M 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 THEGENERAL BODY FOR BYE-LAW AMENDMENT DISTRIBUTED ON 15.09.2017.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.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 25.10.2017.9(iii) OF THE KCS ACT DESCRIBING THE GENERAL BODY MEETING PROCEDURES SIGNED BY THE DIRECTORS DATED 25.10.2017. EXHIBIT P1(e)A TRUE COPY OF THE NOTICE ANNOUNCING THEGENERAL BODY FOR BYE-LAW AMENDMENT DISTRIBUTED ON 15.09.2017.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.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 25.10.2017.9(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.BY THE SECRETARY STATING THE NEWS PAPER ADVERTISEMENT FOR THE GENERAL BODY MEETING DATED 25.10.2017. EXHIBIT P1(i) EXHIBIT P1(j) EXHIBIT P2 ami/ :-14-: A TRUE COPY OF THE ADVERTISEMENT IN KERALA KAUMUDHI NEWS PAPER DATED 14.09.2017. A TRUE COPY OF THE AMENDED BYE-LAW A TRUE COPY OF THE REPLY DATED 08.06.2018 FROM THE 1ST RESPONDENT. //TRUE COPY// P.A.TO JUDGE