1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5934 OF 2009 Shri Abhijit Ashok Deshmukh, Through Attorney, Shri Ashok Ramchandra Deshmukh, R/off: Near Punjab National Bank, Savda, Tq- Raver, Dist-Jalgaon. ...PETITIONER. VERSUS 1) Deputy Registrar (Co-operative Societies), Jalgaon, 2) Bamnod Sahakari Patsanstha Ltd., Bamnod, Tq-Yawal, Dist-Jalgaon, Through Manager. ...RESPONDENTS. ... Mr.J.R. Shaikh Advocate for Petitioner. Mr.V.G. Shelke, A.G.P. for Respondent No.1. Mr.S.C. Bhosale Advocate h/f. Mr. H.S. Bedi Advocate for Respondent No.2. ... WITH 2 WRIT PETITION NO.5931 OF 2009 Shri Ashok Ramchandra Deshmukh, R/off: Near Punjab National Bank, Savda, Tq- Raver, Dist-Jalgaon. ...PETITIONER. VERSUS 1) Deputy Registrar (Co-operative Societies), Jalgaon, 2) Bamnod Sahakari Patsanstha Ltd., Bamnod, Tq-Yawal, Dist-Jalgaon, Through Manager. ...RESPONDENTS. ... Mr.J.R. Shaikh Advocate for Petitioner. Mr.N.B. Patil, A.G.P. for Respondent No.1. Mr.S.C. Bhosale Advocate h/f. Mr. H.S. Bedi Advocate for Respondent No.2. ... CORAM: K.K. TATED, J. DATE : 9TH SEPTEMBER, 2009. PER COURT : 1. With the consent of the learned counsel for the parties, matter is taken up for final hearing. Rule. 3 Rule made returnable forthwith and the matters are heard finally at the stage of admission. 2. Both these Petitions can be disposed of by common order as the issue involved is one and the same i.e. challenge to the recovery certificate issued by the Deputy Registrar (Co-operative Societies) Jalgaon under Section 101 of the Maharashtra Co-operative Societies Act, 1960. 3. By these Petitions under Articles 226 and 227 of the Constitution of India the Petitioners - original borrowers challenge the recovery certificate issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 dated 22nd June, 2009. It is the case of the Petitioners that without complying with the provisions of Chapter 8A of the Maharashtra Co- operative Societies Act, 1960 and the Rules thereunder, the competent authority issued recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act, 1960. Learned counsel for the Petitioners further submitted that 4 Respondent society failed to provide them certified copies of the account extracts and therefore the certificates under Section 101 of the Maharashtra Co-operative Societies Act, 1960 are liable to set aside. He further submitted that Respondent No.1 without hearing them, passed an order issuing recovery certificates dated 22nd June, 2009. Learned counsel for the Petitioners further submitted that while passing the impugned order, the Respondent No. 1 had not followed the provisions of the Maharashtra Co-operative Societies Act, 1960 and hence same is liable to be quashed and set aside. He further submitted that Respondent No.1 has not considered the fact that the proceeding does not satisfy the mandate of Rules 86 A 4(ii) of the said Rules. He further submitted that though the alternate remedy was provided under Section 154 of the said Act, Writ Petition under Articles 226 and 227 of the Constitution of India was maintainable if the impugned order violated the principles of natural justice. In support of his contention, learned counsel for the Petitioners relied on the 5 Judgment in the matter of Rajasthan State Electricity Board vs. Union of India and others, (2008) 5 Supreme Court Cases, Page 632. Head Note B of the said Judgment reads as under: "B. Constitution of India - Art.226 - Maintainability - Exhaustion of remedies - Reiterated, availability of alternative remedy is not an absolute bar for granting relief." 4. Learned counsel for the Petitioners also relied on the Judgment in the matter of Committee of Management and another vs. Vice-Chancellor and others, reported in (2009) 2 Supreme Court Cases, Page 630. He particularly relied on Para 23 and 25 of the Judgment, which reads as under: "23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the 6 superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : "15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...." [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546] "25. Dr. Padia relied upon a Division Bench decision of the 7 Allahabad High Court in the case of Manvendra Misra (Dr.) v. Gorakhpur University, Gorakhpur & Ors. (2000) 1 UPLBEC 702 wherein Hon'ble Katju, J. (as His Lordship then was), speaking for a Division Bench of the said Court, opined that refusal to entertain a writ application on the ground of existence of an alternative remedy is entirely a matter of discretion though, of course, the discretion should not be exercised arbitrarily. It was held : ".... Since writ jurisdiction is discretionary jurisdiction hence if there is an alternative remedy the petitioner should ordinarily be relegated to his alternative remedy. This is specially necessary now because of the heavy arrears in the High Court and this Court can no longer afford the luxury of entertaining writ petitions even when there is an alternative remedy in existence. No doubt alternative remedy is not an absolute bar, but ordinarily a writ petition should not be entertained if there is an 8 alternative remedy." [Emphasis supplied]" Thus, even therein no legal principle has been laid down that in all situations, the High Court would refuse to exercise its discretionary jurisdiction only on the ground that an alternative remedy is available. " 5. In both these cases, the Apex Court held that the Court can invoke its power under ArticleS 226 and 227 of the Constitution of India even though alternative/ efficacious remedy was available to the parties if the order passed by the authority was without jurisdiction or in violation of principles of natural justice. 6. On the other hand learned counsel for Respondent No.2, in support of the recovery certificate issued by the authority, mainly objected to the maintainability of the present Writ Petition under Article 226 and 227 of the Constitution of India on the ground that in view of Section 154 of the 9 Maharashtra Co-operative Societies Act, 1960, Revision is maintainable before the Registrar. In support of his submission, learned counsel for Respondent No.2 relied on the Authority in the matter of Uttaranchal Forest Development Corpn. and another vs. Jabar Singh and others, reported in (2007) 2 Supreme Court Cases, Page 112. Head Note (E) of this Authority reads as under: "(E) Constitution of India - Art.226 - Alternative remedy - Available under statute - High Court should not ordinarily entertain the writ petition except where a very strong case is made out for departure from the general rule - Dispute relating to enforcement of workmen's right and employer's obligation under Industrial Disputes Act, 1947 - Even specific remedy provided under the Act, workmen instead of availing the same, directly approached High Court under Art. 226 - No exceptional circumstances shown for taking such a course - Held, High Court not justified in entertaining the writ 10 petition - Writ petitioners, who have not invoked jurisdiction of Labour Court/ Industrial Tribunal under the Act, not entitled to any relief in the writ petition." 7. In that case, the Apex Court held that High Court should not entertain Writ Petitions under Article 226 of the Constitution of India, if alternative remedy was available unless and until exceptional case was made out. 8. Learned counsel for Respondent no.2 across the Bar tendered xerox copy of the letter dated 20th August, 2009 written by Ashok Ramchandra Deshmukh, one of the Petitioner, to the recovery officer. The said letter is taken on record and marked "X" for identification. It is specifically stated in this letter by the Petitioner that he is ready to pay the entire amount but he requires 15 days time for the same because of financial difficulties. Learned counsel for the Petitioners admits the execution of this letter. He stated that the said letter was 11 written by one of the Petitioner under coercion because the recovery officer threatened the Petitioner that either he has to execute the letter or he has to make the payment of the dues under recovery certificate. 9. Learned counsel for Respondent No.2 stated that they complied with the provisions of Chapter 8-A of the Maharashtra Co-operative Societies Act, 1960 and the Rules thereunder at the time of filing application for recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act, 1960. 10. It is admitted position that it is specifically stated in the recovery certificate that Respondent No.2 annexed relevant documents along with their application including upto date extract of accounts of the Petitioners. Not only that the Respondent No. 1 has given reasons in Para 10 for issuing said recovery certificate. Therefore, the submission made by the learned counsel for the Petitioners that 12 Respondent No.1 failed to give cogent reasons for issuing recovery certificate is not acceptable. In any case the alternative remedy is available to the Petitioners under Section 154 of the Maharashtra Co- operative Societies Act, 1960. Recently, the Apex Court in the matter of Arun B. Khanjire vs. The Ichalkaranji Urban Co-op. Bank Ltd. and others, reported in JT 2009 (1) S.C. Page 41 in Para 16, held as under: "16. Having carefully considered the submissions made on behalf of the respective parties and having carefully considered the provisions of Section 154 of the Maharashtra Co-operative Societies Act, 1960, and in particular sub-section 2(A) of section 154, we are convinced that no interference is called for with the order of the High Court impugned in these proceedings. Admittedly, Section 154 (1) of the above Act confers revisionary powers on the State Government and also the Registrar of Co-operative Societies 13 under the Act. It also empowers the State Government or the Registrar to satisfy themselves as to the legality or the proprietary of any such decision or order and to modify, annul or reverse the same after giving the person affected thereby an opportunity of being heard either suo motu or on an application. " 11. In view of the above mentioned facts and circumstances, I do not find any substance in the present Writ Petitions and the same are dismissed. Rule stands discharged. [K.K. TATED, J.] asb/SEPT09/wp5934.09