High Court · 2024

W.P. No. 6663 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2024CORAMTHE HON'BLE MR. JUSTICE P.D. AUDIKESAVALUW.P. No. 6663 of 2021P.Palanivel … Petitioner -vs-1. The Deputy Registrar (Housing), Chennai Region, Chennai Office of the Registrar of Co-operative Societies (Housing), No.18, Ramanathan Street, T.Nagar, Chennai 600 017. 2. The Registrar of Co-operative Societies (Housing), Tamil Nadu Housing Board, Nandanam, Chennai 600 035. 3. Food Corporation of India, Employees Co-operative House Building Society Ltd., Rep. By its President, FCI Zonal Office, No.3, Haddows Road, Chennai 600 006. ... RespondentsPrayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Mandamus direct the Respondents to consider the representation of Petitioner dated 20.12.2019 within stipulated time. 1/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021For Petitioner: Mr. B.Gopalakrishnanfor Mr. B.KumarasamyFor Respondents: Ms. Geetha Tamaraiselvan, Special Government Pleader (for R1 and R2)Mrs. T.Girija (for R3)O R D E RHeard Mr. B.Gopalakrishnan, Learned Counsel for the Petitioner, Ms. Geetha Tamaraiselvan, Learned Special Government Pleader for the First and Second Respondents, and Mrs. T.Girija, Learned Counsel for the Third Respondent, and perused the materials placed on record, apart from the pleadings of the parties.2.It is the case of the Petitioner that he is a member of the co-operative society of the Third Respondent, and had sought for an allotment of a house site in the lay-out formed in various extents of land in S. Nos. New 346/1A Old 346/1, New 346/1B Old 346/2, New 346/1C Old 346/3, New 346/1D Old 346/4, New 346/1E Old 346/5A, 346/1F, 347/2A1 (Old) 347/2A, 348/2, 349/1A, 350/2B, New 352/2A1 Old 352/2B, New 352/1B2A Old 352/1B2 353/1, 354/1, 354/2B, 356/2, 357/2, 358/2A, 358/1B, 359/4A2, 373/1, 373/2, 2/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021373/3, 373/4, 373/5, 377/3A, 378/2, 379/1B, 380/1B, 385/1A, 385/1B, 385/1C, 386/1B, 386/2B in Perungulathur Village, Tambaram Taluk, Kancheepuram District for which he had made a representation dated 20.12.2019 to the Respondents in that regard, but as it did not evoke any response, it has necessitated the filing of this Writ Petition. 3.The Petitioner is entitled to seek a reference under Section 90(1)(b) of the Tamil Nadu Co-operative Societies Act, 1983, to determine any dispute touching the business of a co-operative society arising between it and its member, as in this case, before the jurisdictional Registrar of Co-operative Societies, who has also been empowered to condone delay in filing the same after the prescribed period of limitation has expired, if sufficient cause is made out. 4.It must, at once, be emphasized that the Hon'ble Supreme Court of India in Assistant Collector of Central Excise -vs- Dunlop India Limited [(1985) 1 SCC 260] has precisely explained the legal position relating to the exercise of discretionary powers under writ jurisdiction when an alternative remedy exists, in the following words:-3/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021"3.Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.” In Nivedita Sharma -vs- Cellular Operators Association of India [(2011) 14 SCC 337], adverting to the the previous decisions with regard to the rule of self-restraint when an alternative remedy is available to the aggrieved person, the 4/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021Hon'ble Supreme Court of India has emphasized that when a statutory forum is created by law for redressal of grievance, a Writ Petition should not be ordinarily entertained ignoring that statutory dispensation. Further, the law has been restated by the Hon'ble Supreme Court of India in Radha Krishan Industries -vs- State of Himachal Pradesh [(2021) 6 SCC 771] as extracted below:-“27.1.The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2.The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3.Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 5/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 202127.4.An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5.When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6.In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”In such circumstances, the Petitioner has not been impeded from canvassing what is sought to be agitated in this Writ Petition in the aforesaid statutory remedy and there is no acceptable explanation from the Petitioner for not having 6/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021availed it.5.When the said legal position was pointed out to Learned Counsel for the Petitioner, he seeks permission of the Court to withdraw the Writ Petition with liberty to resort to the aforesaid procedure. He has also made an endorsement to that effect in the court record. In the result, the Writ Petition is dismissed as withdrawn granting such liberty. It is made that clear for the purpose of reckoning limitation for availing the aforesaid remedy, the period from the date of filing of the Writ Petitions, viz., 18.01.2021, till the date on which the certified copy of this order is made ready by the Registry, shall be excluded. No costs. 12.02.2024Index: Yes/NoNCC: Yes/NoNote: Issue order copy by 25.03.2024.gsaTo 1. The Deputy Registrar (Housing),7/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021 Chennai Region, Chennai Office of the Registrar of Co-operative Societies (Housing), No.18, Ramanathan Street, T.Nagar, Chennai 600 017. 8/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021P.D. AUDIKESAVALU, J.gsa2. The Registrar of Co-operative Societies (Housing), Tamil Nadu Housing Board, Nandanam, Chennai 600 035.3. Food Corporation of India, Employees Co-operative House Building Society Ltd., Rep. By its President, FCI Zonal Office, No.3, Haddows Road, Chennai 600 006. W.P. No. 6663 of 202112.02.20249/9

W.P. No. 6663 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2024CORAMTHE HON'BLE MR. JUSTICE P.D. AUDIKESAVALUW.P. No. 6663 of 2021P.Palanivel … Petitioner -vs-1. The Deputy Registrar (Housing), Chennai Region, Chennai Office of the Registrar of Co-operative Societies (Housing), No.18, Ramanathan Street, T.Nagar, Chennai 600 017. 2. The Registrar of Co-operative Societies (Housing), Tamil Nadu Housing Board, Nandanam, Chennai 600 035. 3. Food Corporation of India, Employees Co-operative House Building Society Ltd., Rep. By its President, FCI Zonal Office, No.3, Haddows Road, Chennai 600 006. ... RespondentsPrayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Mandamus direct the Respondents to consider the representation of Petitioner dated 20.12.2019 within stipulated time. 1/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021For Petitioner: Mr. B.Gopalakrishnanfor Mr. B.KumarasamyFor Respondents: Ms. Geetha Tamaraiselvan, Special Government Pleader (for R1 and R2)Mrs. T.Girija (for R3)O R D E RHeard Mr. B.Gopalakrishnan, Learned Counsel for the Petitioner, Ms. Geetha Tamaraiselvan, Learned Special Government Pleader for the First and Second Respondents, and Mrs. T.Girija, Learned Counsel for the Third Respondent, and perused the materials placed on record, apart from the pleadings of the parties.2.It is the case of the Petitioner that he is a member of the co-operative society of the Third Respondent, and had sought for an allotment of a house site in the lay-out formed in various extents of land in S. Nos. New 346/1A Old 346/1, New 346/1B Old 346/2, New 346/1C Old 346/3, New 346/1D Old 346/4, New 346/1E Old 346/5A, 346/1F, 347/2A1 (Old) 347/2A, 348/2, 349/1A, 350/2B, New 352/2A1 Old 352/2B, New 352/1B2A Old 352/1B2 353/1, 354/1, 354/2B, 356/2, 357/2, 358/2A, 358/1B, 359/4A2, 373/1, 373/2, 2/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021373/3, 373/4, 373/5, 377/3A, 378/2, 379/1B, 380/1B, 385/1A, 385/1B, 385/1C, 386/1B, 386/2B in Perungulathur Village, Tambaram Taluk, Kancheepuram District for which he had made a representation dated 20.12.2019 to the Respondents in that regard, but as it did not evoke any response, it has necessitated the filing of this Writ Petition. 3.The Petitioner is entitled to seek a reference under Section 90(1)(b) of the Tamil Nadu Co-operative Societies Act, 1983, to determine any dispute touching the business of a co-operative society arising between it and its member, as in this case, before the jurisdictional Registrar of Co-operative Societies, who has also been empowered to condone delay in filing the same after the prescribed period of limitation has expired, if sufficient cause is made out. 4.It must, at once, be emphasized that the Hon'ble Supreme Court of India in Assistant Collector of Central Excise -vs- Dunlop India Limited [(1985) 1 SCC 260] has precisely explained the legal position relating to the exercise of discretionary powers under writ jurisdiction when an alternative remedy exists, in the following words:-3/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021"3.Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.” In Nivedita Sharma -vs- Cellular Operators Association of India [(2011) 14 SCC 337], adverting to the the previous decisions with regard to the rule of self-restraint when an alternative remedy is available to the aggrieved person, the 4/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021Hon'ble Supreme Court of India has emphasized that when a statutory forum is created by law for redressal of grievance, a Writ Petition should not be ordinarily entertained ignoring that statutory dispensation. Further, the law has been restated by the Hon'ble Supreme Court of India in Radha Krishan Industries -vs- State of Himachal Pradesh [(2021) 6 SCC 771] as extracted below:-“27.1.The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2.The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3.Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 5/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 202127.4.An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5.When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6.In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”In such circumstances, the Petitioner has not been impeded from canvassing what is sought to be agitated in this Writ Petition in the aforesaid statutory remedy and there is no acceptable explanation from the Petitioner for not having 6/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021availed it.5.When the said legal position was pointed out to Learned Counsel for the Petitioner, he seeks permission of the Court to withdraw the Writ Petition with liberty to resort to the aforesaid procedure. He has also made an endorsement to that effect in the court record. In the result, the Writ Petition is dismissed as withdrawn granting such liberty. It is made that clear for the purpose of reckoning limitation for availing the aforesaid remedy, the period from the date of filing of the Writ Petitions, viz., 18.01.2021, till the date on which the certified copy of this order is made ready by the Registry, shall be excluded. No costs. 12.02.2024Index: Yes/NoNCC: Yes/NoNote: Issue order copy by 25.03.2024.gsaTo 1. The Deputy Registrar (Housing),7/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021 Chennai Region, Chennai Office of the Registrar of Co-operative Societies (Housing), No.18, Ramanathan Street, T.Nagar, Chennai 600 017. 8/9 https://www.mhc.tn.gov.in/judis W.P. No. 6663 of 2021P.D. AUDIKESAVALU, J.gsa2. The Registrar of Co-operative Societies (Housing), Tamil Nadu Housing Board, Nandanam, Chennai 600 035.3. Food Corporation of India, Employees Co-operative House Building Society Ltd., Rep. By its President, FCI Zonal Office, No.3, Haddows Road, Chennai 600 006. W.P. No. 6663 of 202112.02.20249/9