Lakshmanan and Others vs Roy Alexander and Others

K.S. Paripoornan, J.—The Petitioners (five in number) in O.P. No. 9510 of 1992 are the Appellants in this writ appeal. They assail the judgment of the learned Single Judge dated 11th August 1992 declining to exercise the jurisdiction under Article 226 of the Constitution of Indian relegating them to the pursuit of the statutory remedy provided by Section 69 of the Co-operative Societies Act.

We heard, counsel for the Appellants, Mr. C.S. Ananthakrishna Iyer.

The Appellants are members of the third Respondent society. Election to the managing committee of the society was held on 27th June 1992. The list of eligible voters was published and objections were invited. Nomination papers were also called for and polling was conducted as scheduled. It is stated that the nomination papers of Respondents 4, 5 and 7 should not have been accepted, since they were disqualified having been indebted to other co-operative societies. The objections were overruled and the nomination papers were accepted. It is also stated that two voters voted twice. Their votes, polled on the second occasion, were treated as ''challenged votes''. Two candidates secured equal number of votes. The returning officer decided the winner by tossing the coin and not by drawing lots. In the meeting of the managing committee held on 1st July 1992, the first Petitioner was elected as the President. Another meeting was convened on 15th July 1992, wherein the fourth Respondent was elected as the President. This is illegal. The entire process of election was challenged. The Appellants prayed for the issue of a writ of certiorari to quash the election results and to declare that Respondents 4, 5 and 7 are disqualified to contest the election. The election of the fourth Respondent as the President on 15th July 1992 was also sought to be quashed. A declaration that the first Petitioner is the duly elected President was also claimed.

The learned Single Judge noticed that the various objections raised by the Appellants in the original petition were to invalidate the election to the managing committee of the third Respondent society. He further held that the remedy of the Appellants is to approach the Registrar of Co-operative Societies u/s 69 of the Act and seek remedies thereunder. The learned Single Judge concluded that the grounds alleged in the petition are not sufficient to warrant interference by this Court in the exercise of the extraordinary jurisdiction vested in it under Article 226 of the Constitution of India. The learned Single Judge also noticed the fact that a suit was filed by the fourth Respondent and Ors. for an injunction against the newly elected managing committee members. Holding that at least a few of the Appellants have availed of the alternate remedy by filing a suit and that the statute (Co-operative Societies Act) has provided an adequate forum to ventilate the grievance of the Petitioners by taking proceedings u/s 69 of the Act, the learned Single Judge denied jurisdiction. We are of the view that the exercise of the discretionary jurisdiction by the learned Single Judge relegating the Appellants to the pursuit of the alternate remedy provided by the statute is not shown to be in any way perverse or arbitrary or illegal.

Counsel for the Appellants, Mr. C.S. Ananthakrishna Iyer, very vehemently contended that the illegality or infirmity of the election is so patent, that this Court could have exercised the discretion under Article 226 of the Constitution of India. The argument was that in cases where the illegality is writ large on the face of the proceedings, this Court should have interfered under-Article 226 of the Constitution of India without driving the Appellants to the pursuit of the statutory remedy. Counsel placed heavy reliance on the decisions of this Court reported in Govindan v. Deputy Registrar of Co-operative Societies 1983 KLT 1038 and Gopalan v. Joint Registrar of Co-operative Societies 1985 KLT 446 to contend that this Court has exercised the discretionary jurisdiction under Article 226 of the Constitution of India in cases where grave illegality or fundamental error was evident in the proceedings regarding the election to the managing committee of the Co-operative society. There is no reason why the ratio laid down in the said decisions should not have been applied by the learned Single Judge herein also. In this perspective, the order passed by the learned Single Judge was attacked as illegal and unjustified an law.

We are unable to accept the above plea. It is undoubted law that the availability of an alternate remedy is no bar for the exercise of the discretionary jurisdiction vested in this Court under Article 226 of the Constitution of India. It cannot be denied that the availability of an equally efficacious alternate remedy provided by the statute is a strong circumstance which will dissuade this Court to exercise the discretionary jurisdiction under Article 226 of the Constitution of India. If in a particular case, even if it is shown that there is patent illegality or irregularity in the proceedings or a fundamental error has taken place, the Single Judge exercising the jurisdiction under Article 226 of the Constitution of India, in his discretion, relegates the party to the alternate remedy provided by the statute, it cannot be stated that the Single Judge was wrong in doing so. It may be that in such a case, the discretionary jurisdiction under Article 226 of the Constitution could have been exercised. But the failure to so exercise the said jurisdiction cannot be said to be wrong, to merit interference by the appellate Court. It is settled law that on the hearing of the appeal it is for the Appellant to show that the decision appealed against is wrong. It will not be sufficient for the Appellant to urge or plead that a contrary conclusion is possible on the basis of the materials disclosed in the case. The burden is on the Appellant to prove that the decision appealed against is manifestly wrong. This position in law is well settled by the decisions of the Supreme Court of India, the Judicial Committee of the Privy Council and the decisions of this Court. A few of such decisions, to substantiate the above proposition of law, have been referred to or discussed in a Bench decision of this Court in Commissioner of Income Tax Vs. Nirmal Liquors, at p. 641-1991.

On this basis, we hold that the learned Single Judge cannot be said to have acted wrongly by relegating the Appellants to the pursuit of the alternate remedy provided by the statute. The existence of an alternate remedy has been considered as a relevant factor to be taken into consideration in the exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. The learned Single Judge did take that aspect into consideration. Of the two methods, available in disposing of the matter, if any one is adopted to the exclusion of the other, it cannot be said that the exercise of discretion is wrong or otherwise infirm or perverse.

In this connection, we should remember that the exercise of the discretionary jurisdiction, one way or the other, under Article 226 of the Constitution of India, has many facets and may require, consideration from different angles. If, in a particular case, a Single Judge has exercised the discretion by adopting any one of the alternatives open to him in disposing of the original petition, it is not sufficient if the Appellant urges before the appellate Court that the Court below or the learned Single Judge Could have exercised the discretion in some other way. The Appellant should be able to convince the appellate Court, that the Single Judge exercised the discretion arbitrarily or perversely to warrant interference in writ appeal. More than three decades ago, delivering the judgment of the Division Bench, in Rajalekshmi Motor Service, Kozhikode Vs. Govt. of Kerala and Others, , that great Judge, M.S. Menon, J., in his illimitable and majestic style, laid down the law thus:

Iyengar, J. did not consider these factors as sufficient to decline interference, and in such a case, whatever may have been our own reactions in similar circumstances, we should not interfere unless we are satisfied that the decision is perverse. It is not contended that such is the case.

In Neelakanta Kartha v. Registrar, Kerala Agricultural University 1978 KLT 408, delivering the judgment of the Bench, Gopalan Nambiar, C.J. candidly stated the law thus:

We cannot certainly rule out what the learned Judge has stated as an unreasonable, much the less an impossible, view. The view appears to us to be certainly a plausible one, and is supported by the dictionary meaning of the term ''pursuance'', which the learned Judge has extracted. In cases and situations where the learned Judge has thumbed in favour of one of two plausible interpretations, it is a golden rule not to interfere in proceedings under Article 226. The learned Judge having dealt with the matter under Article 226 and taken a view which is certainly plausible, we do not think we would be justified in interfering.

One of us (Paripooman, J.), delivering the judgment of the Bench in Mayadevi v. Rajan 1985 KLT 376, reiterated the above position in law and observed thus:

The view taken by the learned Single Judge is certainly a plausible one. We may also state that even if two views are possible in the matter, it cannot be said that view adopted by the learned Single Judge is ''perverse''. On this reasoning also, no interference is called for in the writ appeal. See Neelakanta Kartha v. Registrar (1978 KLT 408) and Rajalakshmi Motor Service v. Government of Kerla (1959 KLT 1425 at p. 1430 para 14).

More recently, in State of Kerala v. Balakrishnan 1992 (1) KLT 420 Anr. Bench of this Court, cited with approval the earlier three decisions and followed the ratio laid down in the said cases.

In the light of the above four Bench decisions of this Court, it is for the Appellants to establish that the decision of the learned Single Judge is arbitrary or perverse. The Appellants have failed to allege or prove that the decision of the learned Single Judge is arbitrary or perverse, to merit interference in writ appeal.

As stated earlier, it is one thing to say that the availability of an alternate remedy is not an absolute bar for the exercise of the discretionary jurisdiction under Article 226 Of the Constitution of India and yet a different thing to say, that the jurisdiction should have been exercised in a particular way. But, when once the learned Single Judge has exercised the said jurisdiction by adopting any one of the alternatives open to turn, the perspective, with which the appellate Court will look into the matter, is not whether the learned Single Judge could have exercised the discretionary jurisdiction in a different way and as urged by the, Appellant. The angle from which the matter will have to be tackled is whether it is shown that the exercise of the discretionary jurisdiction by the learned Single Judge is arbitrary or perverse to merit interference, as laid down in the four Bench decisions of this Court stated above. We are aware of the fact that a recent Bench decision of this Court in Anthrayose v. Senior Inspector of Co-operative Societies 1992 (2) KLT 489 interfered with the exercise of the discretion by a learned Single Judge, wherein it was found that the rejection of the nomination paper was arbitrary and illegal and held that the party need not be driven to proceedings u/s 69 of the Act. It was held by this Court that this Court ''could'', in such patent cases, interfere under Article 226 of the Constitution of India. It does not appear that in the said case, the plea that if the discretion is exercised in one way permissible or sanctioned by lay, it is not open to the appellate Court to interfere with the exercise of discretion, unless it is shown to be arbitrary or perverse, was ever taken up; nor was the attention of the Division Bench invited to the four Bench decisions, which we have stated above. The practice of the Court, followed for a long period without demur, is the law of that Court. The practice followed by this Court insisting or requiring the Appellant to show that the discretion exercised by the learned Single Judge is arbitrary or perverse has become a rule of law, followed for more than three decades. We were not invited to any decision of this Court or elsewhere taking a different view on that aspect. Anthrayose''s case, 1992 (2) KLT 489 is distinguishable on facts.

For the above reasons, we hold that the decision appealed against does not merit interference in writ appeal. The writ appeal is without merit. It is dismissed in limine.