In Commissioner Of Income Tax v. State Of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940 WP(C).No. 24007 of 2018 PETITIONER:------------ PAUL V.THOMAS, AGED 63 YEARS, S/O.MR.THOMAS, VETTUVAZHY PUTHENPURA, MEEMPARA P.O., PUTHENCRUZ, ERNAKULAM DISTRICT-682308. BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA RESPONDENTS:- ------------ 1. STATE OF KERALAREPRESENTED BY SPECIAL SECRETARY,CO-OPERATIVE SOCIETIES DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. JOINT REGISTRAR (GENERAL),CO-OPERATIVE SOCIETIES DEPARTMENT,KAKKANADU, ERNAKULAM-682030.3. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,KUNNATHUNADU, PERUMBAVOOR, ERNAKULAM DISTRICT-683 542.4. POOTHRIKKA SERVICE CO-OPERATIVE BANK LTD., E-344,KOLENCHERY, ERNAKULAM DISTRICT-683 572,REPRESENTED BY IT'S SECRETARY. *ADDITIONAL R5 IMPLEADED ADDL.R5P.M.VIJAYAN, S/O LATE MADHAVAN,AGED 59 YEARS, PALAKUZHI HOUSE,VADAYAMPADY.P.O. PUTHENCRUZ,ERNAKULAM. PIN - 682 308AGED 59 YEARS, PALAKUZHI HOUSE,VADAYAMPADY.P.O. PUTHENCRUZ,ERNAKULAM. PIN - 682 308 *R5 IS IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS PER ORDER DATED 20.7.2018 IN I.A.NO.15164/2018 IN W.P.(C).NO.24007/2018. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.K.P.HARISH ADDL.R5 BY ADVS.SRI.PAUL K.VARGHESEADDL.R5 BY ADVS.SRI.PAUL K.VARGHESE SMT.A.A.GEETHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS---------------------- RESPONDENTS' EXHIBITS ---------------------- //True Copy// P.A. To Judge ANIL K.NARENDRAN, J. ................................................... W.P.(C).No.24007 of 2018 ..................................................... Dated this the 20[th] day of July, 2018 J U D G M E N T The petitioner, who was an elected member in theManaging Committee of the Poothrikka Service Co-operative Bank Ltd., the 4[th] respondent herein, has filedthis writ petition under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash Ext.P4 orderdated 7.7.2018 of the second respondent Joint Registrarof Co-operative Societies and seeking a declaration thatthe disqualification ordered as per Ext.P4 order is illegaland not applicable to the petitioner, during the tenure ofthe Committee of the 4[th] respondent Co-operative Bankelected on 17.6.2018, as there is no contract or sale ofproperty pending, so as to attract Rule 44(1)(d) of theKerala Co-operative Societies Rules, 1969. 2.On 18.7.2018 when this writ petition came upfor admission, the learned Government Pleader wasdirected to get instructions. W.P.(C).No.24007 of 2018 : 2 : 3.Today, when the case is taken up for furtherconsideration, the petitioner has filed I.A.No.13162/2018,producing therewith a copy of the memorandum of appealfiled under Section 83(1)(j) of the Kerala Co-operativeSocieties Act, 1969, challenging Ext.P4 order dated7.7.2018 of the 2[nd] respondent. The said appeal isaccompanied by an application for stay of operation ofExt.P4 order dated 7.7.2018 of the 2[nd] respondent. 4.Heard the learned Senior Counsel for thepetitioner, the learned Senior Government Pleaderappearing for respondents 1 to 3 and also the learnedcounsel for the additional 5[th] respondent. Considering thenature of relief proposed to be granted, service of noticeon the 4[th] respondent Co-operative Bank is dispensedwith. 5.Section 83 of the Co-operative Societies Actdeals with appeals to other authorities. As per clause (j) ofsub-section (1) of Section 83, an appeal shall lie againstany order made by any person exercising all or any of thepowers of the Registrar. As per sub-section (2) of Section Section 83 of the Co-operative Societies Act W.P.(C).No.24007 of 2018 : 3 : 4.Heard the learned Senior Counsel for thepetitioner, the learned Senior Government Pleaderappearing for respondents 1 to 3 and also the learnedcounsel for the additional 5[th] respondent. Considering thenature of relief proposed to be granted, service of noticeon the 4[th] respondent Co-operative Bank is dispensedwith. 5.Section 83 of the Co-operative Societies Actdeals with appeals to other authorities. As per clause (j) ofsub-section (1) of Section 83, an appeal shall lie againstany order made by any person exercising all or any of thepowers of the Registrar. As per sub-section (2) of Section Section 83 of the Co-operative Societies Act W.P.(C).No.24007 of 2018 : 3 : 83, an appeal under sub-section (1) of that Section shallbe made within 60 days from the date of order or decisionto the Government, if the order or decision was made bythe Registrar; and to the Registrar, in other case. As persub-section (2), the Government or the Registrar, as thecase may be, shall pass such orders on such appeal as hemay think fit. 6.In Commissioner of Income Tax V. ChhabilDas Agarwal [(2014) 1 SCC 603] the Apex Courtreiterated that, non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious 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 Courtto grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy.However, High Court must not interfere if there is anadequate efficacious alternative remedy available to thepetitioner and he has approached the High Court without W.P.(C).No.24007 of 2018 : 4 : availing the same, unless he has made out an exceptionalcase warranting such interference or there existssufficient ground to invoke the extraordinary jurisdictionunder Article 226. 7.The learned Senior Counsel for the petitionerwould submit that since the petitioner has moved Ext.P5appeal before the 1[st] respondent under Section 83(1)(j) ofthe Act, the said respondent may be directed to considerand pass appropriate orders on the stay petition filedalong with Ext.P5 appeal expeditiously. 8.The learned Senior Government Pleader wouldsubmit that the 1[st] respondent shall consider and passappropriate orders on the stay petition filed along withExt.P5 appeal within a period of 2 weeks from the date ofreceipt of a certified copy of this judgment. 9. The learned counsel for the additional 5[th] respondent would submit that the additional 5[th]respondent shall file an application in Ext.P5 appeal nowpending before the 1[st] respondent to get himselfimpleaded as additional respondent. W.P.(C).No.24007 of 2018 : 5 : 10.Having considered the submissions made by thelearned counsel on both sides, this writ petition isdisposed of by directing the 1[st] respondent to considerand pass appropriate orders on the stay petition filed bythe petitioner in Ext.P5 memorandum of appeal filedunder Section 83(1)(j) of the Act, strictly in accordancewith law, as expeditiously as possible, at any rate within aperiod of two weeks from the date of receipt of a certifiedcopy of this judgment, with notice to the petitioner andalso to the respondents/additional respondent in thatappeal. All legal and factual contentions raised by thepetitioner and also the additional 5[th] respondent are leftopen to be raised before the 1[st] respondent at appropriatestage. ANIL K.NARENDRAN JUDGE Bb/21/7/2018