In Commissioner Of Income Tax v. Joint Registrar (General), Co-Operative Societies

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940 WP(C).No. 23600 of 2018 PETITIONERS 1 P.MOHAMMED, NIHAL MANZHIL, KATTAYAD P.O., VELLAMUNDA, WAYANAD DISTRICT.670 731.2 SHAHEENA V.K, THOLAN HOUSE, NIHAL MANZHIL, KATTAYAD P.O., VELLAMUNDA, WAYANAD DISTRICT.670 731. BY ADV.SRI.P.M.UNNI NAMBOODIRI RESPONDENTS 1. JOINT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, WAYANAD DISTRICT. 670 645. 2. ASSISTANT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, MANANTHAVADY, WAYANAD DISTRICT.670 731. 3. THE SECRETARY, VELLAMUNDA SERVICE CO-OPERATIVE BANK, VELLAMUNDA, WAYANAD DISTRICT.670 731. R1&R2 BY SENIOR GOVERNMENT PLEADER : SMT.C.S.SHEEJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 17/10/2016EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED THE PETITIONER BEFORE 2ND RESPONDENT.EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENTS TO THE PETITIONERS DATED 8/11/2017.EXHIBIT P4 TRUE COPY OF THE RECEIPT OF PAYMENT ISSUED BY THE 3RD RESPONDENT IN OTP SETTLEMENT IN THE NAME 1ST PETITIONER DATED 24/02/2018EXHIBIT P5 TRUE COPY OF THE RECEIPT OF PAYMENT ISSUED BY THE 3RD RESPONDENT IN OTP SETTLEMENT IN THE NAME 2ND PETITIONER DATED 02.03.2018EXHIBIT P6 TRUE COPY OF THE ORDER NOTICE ISSUED BY THE RESPONDENTS TO THE PETITIONERS DATED 06.04.2018. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ANIL K. NARENDRAN, J. ------------------------------------------ W.P.(C) No.23600 of 2018 ------------------------------------------ Dated this the 25[th] day of July, 2018 JUDGMENT The petitioners are father and daughter. The 1[st]petitioner was the President of Vellamunda Service Co-operative Bank. The 1[st] petitioner, his brother and hisdaughter, who is the 2[nd] petitioner, had availed certain loansfrom the said Bank. According to the petitioners, the liabilityoutstanding in respect of those loan transactions were settledafter availing the One Time Settlement (OTS) Scheme. Thepetitioners have filed this writ petition under Article 226 ofthe Constitution of India seeking a writ of certiorari to quashExt.P6 order of surcharge dated 06.04.2018 issued by the 1[st]respondent Joint Registrar, in exercise of his powers undersub-section (2) of Section 68 of the Kerala Co-operativeSocieties Act. 2.Heard the learned counsel for the petitioners andalso the learned Senior Government Pleader appearing forrespondents 1 and 2. W.P.(C) No.23600 of 2018 :-2-: 3. The only ground raised in this writ petition is that, since the petitioners have settled the loan liability under theOTS Scheme, recovery proceedings pursuant to Ext.P6order of surcharge is only to harass them. Ext.P6 order is one issued by the 1[[st]] respondent 2.Heard the learned counsel for the petitioners andalso the learned Senior Government Pleader appearing forrespondents 1 and 2. W.P.(C) No.23600 of 2018 :-2-: 3. The only ground raised in this writ petition is that, since the petitioners have settled the loan liability under theOTS Scheme, recovery proceedings pursuant to Ext.P6order of surcharge is only to harass them. Ext.P6 order is one issued by the 1[[st]] respondent 4.Ext.P6 order is one issued by the 1[[st]] respondentJoint Registrar, in exercise of his powers under sub-section(2) of Section 68 of the Kerala Co-operative Societies Act.Surcharge proceedings initiated against the petitionerscommenced by the issuance of Ext.P1 notice dated17.10.2016, enclosing therewith a copy of the reportsubmitted by the enquiry officer under Section 66 of theAct. On receipt of Ext.P1 notice, the 1[st] petitioner submittedExt.P2 reply. Subsequent to Ext.P2 reply, the 1[st] respondentJoint Registrar issued Ext.P3 notice regarding the personalhearing scheduled on 22.11.2017. Ext.P3 notice was issuedto the petitioners and also to one Moly Joseph, who is theSecretary of the Bank. Thereafter, the 1[st] respondent issuedExt.P6 order of surcharge. 5.Section 83 of the Co-operative Societies Act deals W.P.(C) No.23600 of 2018 :-3-: with appeals to other authorities. As per clause (j) of subsection (1) of Section 83, an appeal shall lie against anyorder made by any person exercising all or any of thepowers of the Registrar. As per sub-section (2) of Section83, an appeal under sub-section (1) of that Section shall bemade within 60 days from the date of order or decision tothe Government, if the order or decision was made by theRegistrar; and to the Registrar, in other case. As per sub-section (2), the Government or the Registrar, as the casemay be, shall pass such orders on such appeal as he maythink fit. 6.In Commissioner of Income Tax V. Chhabil DasAgarwal [(2014) 1 SCC 603] the Apex Court reiterated that,non-entertainment of a writ petition under Article 226 of theConstitution of India when an efficacious alternative remedyis available is a rule of self-imposed limitation. It isessentially a rule of policy, convenience and discretionrather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article 226 W.P.(C) No.23600 of 2018 :-4-: of the Constitution of India, despite the existence ofalternative remedy. However, High Court must not interfereif there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the HighCourt without availing the same, unless he has made out anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinaryjurisdiction under Article 226. 7.In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverseorder is passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. 8.If the petitioners are feeling aggrieved by Ext.P6order of surcharge, their remedy is to challenge the sameby invoking the statutory remedy provided under Section83(1)(j) of the Kerala Co-operative Societies Act. In view of the law laid down in the decisions referredto supra and also considering the fact that a statutory W.P.(C) No.23600 of 2018 :-5-: remedy is provided under Section 83(1)(j) of the Kerala Co-operative Societies Act against Ext.P6 order of surcharge,this writ petition filed on 12.07.2018 is dismissed as notmaintainable. bpr Sd/- ANIL K. NARENDRAN JUDGE //TRUE COPY//P.A. TO JUDGE