In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940WP(C).No. 6258 of 2019 PETITIONER: CLARAMMA SIBYAGED 44 YEARSW/O. SIBY GEORGE, OLIKKARA, PANAMPARAMBIL, KOOROPPADA, KOTTAYAM. BY ADV. SRI.A.K.HARIDAS RESPONDENTS: 3K.G. THANKAPPAN NAIR,SREENILAYAM, LAKKATTOR P.O, KOTTAYAM-686 5024KOOROPPADA GRAMA PANCHAYATKOOROPPADA P.O, KOTTAYAM-686 502, REPRESENTED BY ITS SECRETARY. SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.6258 of 2019 :-2-: J U D G M E N T The petitioner, who is the member of the 2[nd]respondent Society, which is a Society registeredunder the Kerala Co-operative Societies Act, 1969and the rules made thereunder, has filed this writpetition under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P8order dated 12.2.2019 of the 1[st] respondent wherebythe petitioner is disqualified from membershipunder Rule 44(1)(j) of the Kerala Co-operativeSocieties Act, 1969 and the rules made thereunderand she is removed from the Committee of theSociety and membership of the Society under Rule44(3) and Rule 16(4) respectively.2.Heard the learned counsel for thepetitioner and also the learned Government Pleaderappearing for the 1[st] respondent. Considering thenature of relief proposed to be granted, service of W.P.(C)No.6258 of 2019 :-3-: notice on respondents 2 to 4 is dispensed with. 3.Section 83 of the Co-operative SocietiesAct deals with appeals to other authorities. As per clause (j) of subsection (1) of Section 83, anappeal shall lie against any order made by anyperson exercising all or any of the powers of theRegistrar. As per sub-section (2) of Section 83, anappeal under sub-section (1) of that Section shallbe made within 60 days from the date of order ordecision to the Government, if the order ordecision was made by the Registrar; and to theRegistrar, in other case. As per sub-section (2),the Government or the Registrar, as the case maybe, shall pass such orders on such appeal as he maythink fit. 4.Ext.P8 order of the 1[st] respondent DeputyDirector, which is under challenge in this writpetition, is an order appealable under Section :-4-: 83(i)(j) of the Act before the Government. 5. In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603]the Apex Courtreiterated that, non-entertainment of a writpetition under Article 226 of the Constitution ofIndia when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. Itis essentially a rule of policy, convenience anddiscretion rather than a rule of law. Undoubtedly,it is within the discretion of the High Court togrant relief under Article 226 of the Constitutionof India, despite the existence of alternativeremedy. However, High Court must not interfere ifthere is an adequate efficacious alternative remedyavailable to the petitioner and he has approachedthe High Court without availing the same, unless hehas made out an exceptional case warranting suchinterference or there exists sufficient ground to W.P.(C)No.6258 of 2019 :-5-: invoke the extraordinary jurisdiction under Article226. 6. 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 theappropriate forum, within the prescribed timelimit, the said order will become final. 7.Viewed in the light of the decisions referred to supra and in view of the statutoryremedy available under Section 83(i)(j) of the Act,the petitioner cannot invoke the writ jurisdictionunder Article 226 of the Constitution of India tochallenge Ext.P8 order. W.P.(C)No.6258 of 2019 :-5-: invoke the extraordinary jurisdiction under Article226. 6. 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 theappropriate forum, within the prescribed timelimit, the said order will become final. 7.Viewed in the light of the decisions referred to supra and in view of the statutoryremedy available under Section 83(i)(j) of the Act,the petitioner cannot invoke the writ jurisdictionunder Article 226 of the Constitution of India tochallenge Ext.P8 order. In such circumstances, this writ petition filed on 28.2.2019, challenging Ext.P8 order dated12.2.2019 of 1[st] respondent, is dismissed as notmaintainable, without prejudice to the right of the :-6-: petitioner to challenge the said order before theGovernment by invoking the statutory remedyavailable under Section 83(i)(j) of the Act. All legal and factual contentions raised by thepetitioner are left open to be raised before theappellate authority at appropriate stage. Sd/- ANIL K.NARENDRAN JUDGE ami/ APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RENT AGREEMENT DATED 22/3/2014. EXHIBIT P2 TRUE COPY OF THE RENT AGREEMENT DATED 2.5.2018 EXHIBIT P3TRUE COPY OF THE RELEVANT PAGES OF THE BYELAW. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 23/7/2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 :-7-: TRUE COPY OF THE REPLY DATED 20/8/2018 SUBMITTED BY THE PETITIONER TO EXT. P4. TRUE COPY OF THE CERTIFICATE SHOWING THAT THE PETITIONER IS RESIDENT OF WARD NO. 14 DATED 18/5/2018 TRUE COPY OF THE CERTIFICATE SHOWING THAT WARD NO. 14 OF THE PANCHAYAT IS WARD NO. 5 AS PER OLD ASSESSMENT DATED 28/7/2018 TRUE COPY OF THE ORDER DATED 12/2/2019 ISSUED BY THE 1ST RESPONDENT.