Dismissed

Gaurav Thakur v. Joint Registrar (Marketing) Cooperative Societies and Others

Himachal Pradesh HC14 Jun 2024CMPMO/672/2023

Case brief

AI extract

What is this about?

Petition under Article 227 challenged a common arbitral order of the Joint Registrar under Section 73 of the HP Co-operative Societies Act. The High Court held an appeal lay under Section 93(h), refused to act as a court of appeal, and dismissed the petition with liberty to avail the statutory remedy.

What the court decided

AI extract

Gaurav Thakur Vs Joint Registrar (Marketing)… — Cooperative Societies | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:3419 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 672of 2023 Reserved on 17.5.2024. Date of decision:14.6.2024. Gaurav Thakur ...Petitioner.

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Versus

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Joint Registrar marketing Cooperative Societies & others ...Respondents

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Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge .

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Whether approved for reporting?¹ Yes. For the petitioner : Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Rajesh Kumar, Advocate.

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For the respondents : Mr. Dalip K. Sharma, Addl. A.G., for respondents No. 1 and 2.

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Mr. Rajiv Rai, Advocate, for respondents No. 3, 19 to 23. Mr. Surinder Saklani, Advocate, for respondent No.5. Mr. Tara Singh Chauhan, Advocate, for respondents No. 7 to 10. Mr. Nand Lal Chauhan, Advocate, for respondents No. 6, 11 to 17.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Satyen Vaidya, Judge:

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Petitioner has filed this petition under Article 227 of the Constitution of India for the following reliefs:-

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“i) That this Hon’ble Court may kindly be pleased to quash and set-aside the impugned common decision dated 10.11.2023 vide Annexure P/1 passed in Arbitration petition titled as Kamal Prakash versus The Mangal Land Looser, Smt. Sita Devi versus The Assistant Registrar, Shri Naresh Kumar versus The Assistant Registrar, Shri Devi Ram versus The Assistant Registrar, Shri Yogesh Kumar versus The Assistant Registrar, Shri Jai Dei versus The Assistant Registrar, Shri Rakesh Kumar versus The Mangal Land Looser, Smt. Krishna Devi versus The Mangal Land Loosers, Smt. Suman Prakash Gautam versus The Mangal Land Loosers, Shri Sanjeev Kumar versus The Mangal Land Loosers, Shri Sachin Kumar versus The Mangal Land Loosers, Shri Daulata Ram versus The Mangal Land Loosers, Shri Rajesh Kumar versus The Mangal Land Loosers and Smt. Kalpana Thakur versus The Mangal Land Loosers.

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ii)

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That the Hon’ble Court may kindly further be pleased to quash and set-aside the resolution dated 18.11.2023 vide Annexure P/5 passed by the respondents No. 19 to 23.

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iii) That the competent authority may kindly be directed to initiate proceeding against the respondents No. 19 to 23 under Section 37 of the Himachal Pradesh Co-operative Society Act, 1968.”

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The common impugned order dated 10.11.2023 (Annexure P-1) has been passed by the Joint Registrar (Marketing) Co-operative Societies, Himachal Pradesh and has thereby disposed of/decided fourteen number of Arbitration cases referred to him under Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968 (for short ‘the Act’).

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Petitioner has alleged that the impugned order has the effect of nullifying an earlier order dated 11.6.2021, passed by the Assistant Registrar Co-operative Societies, Solan, which otherwise had attained finality.

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An objection has been raised on behalf of some of the respondents as to maintainability of instant petition. It has been contended that the order dated 10.11.2023 has been passed by the authority under section 73 of the Act and such order was appealable under section 93(h) of the Act.

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Since the objection as to maintainability of petition under Article 227 of the Constitution will touch upon the root of the matter, I propose to decide the issue of maintainability in the first instance.

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Respondent No.3 is a society registered under the Act. By way of an inquiry report dated 14.10.2020 submitted by the District Inspector, Co-operative Societies, Solan, large scale illegality was said to have been discovered in the management and affairs of respondent No.3 society in so far as the induction of vehicles by ineligible persons was concerned. Assistant Registrar, Solan vide order dated 11.6.2021 confirmed the findings recorded by the District Inspector in his inquiry report. As per petitioner, in execution of the order passed by the Assistant Registrar, Cooperative Societies, Solan on 11.6.2021, the action was required to be taken against the defaulters and after great efforts, the managing committee of the society had stopped the allocation of works to the defaulters. The defaulters approached the Registrar Cooperative Societies under Section 72 of the Act for referring the matters for arbitration. Accordingly, the

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matters were referred for arbitration to the Joint Registrar (Marketing) Cooperative Societies, Himachal Pradesh, who after taking cognizance of the matters and affording opportunities of being heard to the parties passed the impugned order dated 10.11.2023.

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The order impugned herein admittedly has been passed under section 73 of the Act.

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Noticeably, an order passed under Section 73 of

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the Act is appealable under Section 93 (h) of the Act. Instead of availing the remedy of appeal, petitioner has directly approached this Court by way of the instant petition.

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While deciding CMPMO No. 409 of 2023 , vide judgment dated 13.9.2023, this court has already held as

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under:-

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“It is well settled that where an alternative efficacious remedy is available under a statute, this Court will refrain from exercising jurisdiction under Article 227 of the Constitution of India. In Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, it has been held as under:

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“49. In an analysis of the aforesaid decisions of this Court, the following principles on the exercise of

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High Court's jurisdiction under Article 227 of the Constitution may be formulated:

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(a) xxx xxx xxx

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(b) xxx xxx xxx

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(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

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(d) XXX XXX XXX

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(e) XXX XXX XXX

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(f) XXX XXX XXX

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(g) XXX XXX XXX

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(h) XXX XXX XXX

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(i) XXX XXX XXX

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(j) XXX XXX XXX

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(k) XXX XXX XXX

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(l) XXX XXX XXX

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(m) XXX XXX XXX

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(n) XXX XXX XXX (o) XXX XXX XXX”

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10. In A. Venkatasubbiah Naidu vs. S.

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Chellappan and others2000 (7) SCC 695 , similar reiteration of principle can be found as under:-

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“22. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy……….”.

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In view of availability of alternative efficacious remedy of appeal under Section 93 (h) of the Act against the impugned order, this Court finds no reason to entertain the prayers made in the petition, more particularly, when the supervisory jurisdiction of this Court cannot be extended to assess an order passed by a Court or Tribunal as court of appeal.

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As regards prayer “B” of the petition the same is clearly misconceived as the managing committee of a cooperative society cannot be said to be a tribunal over which this Court can exercise supervisory jurisdiction.

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In view of what has been held other issues raised by the parties are not required to be gone into.

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Accordingly, the petition is dismissed with liberty to the petitioner to avail appropriate remedy in accordance with law.

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Pending applications, if any, also stand disposed of.

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(Satyen Vaidya) 14^th June, 2024 Judge (kck)

Gaurav Thakur v. Joint Registrar (Marketing) Cooperative Societies and Others

Case brief

What is this about?

What the court decided

Gaurav Thakur v. Joint Registrar (Marketing) Cooperative Societies and Others

Case brief

What is this about?

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