Power filed today by Sri Bagesh Shukla on behalf of respondents no.2 to 7 is taken on record.
Heard learned counsel for petitioners and Sri Bagesh Shukla for respondent nos.2 to 7.
This petition has been filed challenging the order dated 26.11.2020 passed by the Deputy Registrar, Firms, Societies and Chits Lucknow Division, Lucknow in exercise of power under Section 12D(1)(c) of the Societies Registration Act.
Sri Bagesh Shukla has has pointed out that against the order impugned, the petitioners have a statutory remedy of filing an appeal under Section 12D(2) of the Act before the Commissioner of the Division.
Learned counsel for the petitioners has stated that Rule of not entertaining petition where statutory or alternative remedy is available is a self imposed Rule and he has relied upon the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 and also a Division Bench of this Court reported in 2020(38)LCD 1008: Dr. Smt. Abha Sharma, Associate Professor, Department of English, Agra College, Agra vs. State of U.P. and others.
It has been submitted that the Division Bench has considered several judgments of the Supreme Court to come to the conclusion that writ remedy being an absolutely discretionary remedy should not ordinarily be availed of where alternative remedy which is equally efficacious is available. However, the Division Bench has also considered the latest decision of the Supreme Court in Maharashtra Chess Association vs. Union of India and others 2019 SCC Online SC 932, to come to the conclusion that mere existence of alternative forum where the aggrieved party may secure relief does not create a legal bar on the High Court to exercise is writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. On of the factors that can be taken into account is where the party has not acted in accordance with the provisions of relevant statutory Rules and in such matters, writ petition can be entertained.
This Court has has carefully perused the order passed by the Supreme Court in Whirlpool Corporation (supra) and also the order passed by the Division Bench. No doubt where alternative remedy is available, the Courts usually have entertained petitions where the order passed is without jurisdiction or is in violation of principles of natural justice. However, in so far as statutory remedy is concerned, the observations of the Constitution Bench in the case of N.P. Ponnuswami vs. Returning Officer, AIR 1952 SC 64, have still not been overruled or distinguished by any Bench of coordinate strength. Where rights and liabilities are created under the statute and remedy is also provided under the statute, writ jurisdiction being extraordinary and discretionary, should not be exercised.
In this case, the Division Bench judgment cited by the counsel for the petitioners has not considered the observations made by the Supreme Court in the case of N.P. Ponnuswami (supra) or the observations made by the Supreme Court in the case of Union Bank of India vs. Satyawati Tandon therefore, this Court being bound by the ratio of judgment of N.P. Ponnuswami (supra) does not feel it appropriate to interfere in this case where statutory remedy of filing an appeal before the Commissioner is available and all pleas that are being raised by the counsel for the petitioners with regard to inadequate service of notice and adequate opportunity of hearing can also be raised before Commissioner, the Appellate Authority and can be thrashed out, being disputed question of fact.
The writ petition is dismissed only on grounds of maintainability.
If the appeal is filed by the petitioners within a week from today, the Commissioner of the Division shall consider the same in accordance with law on merits and it be not dismissed on the ground of delay.
Order Date :- 7.1.2021 Sachin