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1995 DIGILAW 769 (MP)

SHASHIVENDRA YADAV v. MACHHI SINGH

1995-10-05

D.P.S.CHAUHAN

body1995
D. P. S. CHAUHAN, J. ( 1 ) ).-- Heard Smt. Shobha Menon, learned counsel for the petitioner. One Shri Sardar Majhi Singh made a reference under Section 64 of the M. P. Co-operative Societies Act, 1960 (for brevity hereinafter referred to as 'the Act') to the Registrar, Co-operative Societies regarding declaration of (he agreement to sale executed between him and Gandhi smarak Grih Nirman Sahakari Sansatha Marysdit (for brevity hereinafter referred to as ('the Society') as cancelled, The Deputy Registrar acting as Administrator under Section 64 of the Act give award in the said reference numbered as E-72/94. The agreement to sale was cancelled and declared as inffective. This award was appealable under Section 77 of the act and also second appeal was also provided. ( 2 ) HOWEVER. in the case it is not the Society which has come forward but Shashivendra Yadav, Wamand Shivram Maske and Gyaneshwar have approached this Court by means of the present petition. Learned counsel for the petitioners stated that the petitioners are members of the Society arid in the capacity of members they have come forward challenging the said award. ( 3 ) THE Question for consideration is regarding locus atandi of the members to maintain the writ petition. Learned counsel did not address the court on this aspect of the matter but invited the attention of the Court to the case of Ram and Shyam Company v State of Haryana, AIR 1985 SC 1147 . Para 9. In this case the Supreme Court observed :"ordinarily it is true that the Court has impased a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where toe party invoking the jurisdiction has an effective, adequate alternative remedy More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. Act any rate it does not oust the jurisdiction of the Court. "so far as this proposition is concerned Article 226 itself makes the position clear that the power of the High Court is not a constitutionally ridered power and so far as the proposition is concerned there is no question of there being any different view. Act any rate it does not oust the jurisdiction of the Court. "so far as this proposition is concerned Article 226 itself makes the position clear that the power of the High Court is not a constitutionally ridered power and so far as the proposition is concerned there is no question of there being any different view. Learned counsel subsequenty invited the attention to the latter part of the paragraph, which is a extracted :"in fact in the very decision relied upon by the High Court in The stote of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : AIR 1958 SC 86 it is observed that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where (he order contained against is alleged to be illegal or invalid as being contrary to law, a petitioner at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Goverement. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. "the context of the case was different, In that case the situation was different and power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief minister of the State. supreme Court said. To whom do you appeal in a state administration against the decision of the Chief Minister ? The cliche of appeal from Caesar to Caesar's wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy," ( 4 ) SO far as question of locus standi is concerned, this case has no relevance apart from alternative remedy regarding which I am not expressing any opinion. The other caie relied on by the learned counsel for the petitioner was Marine Times Publications Pvt Ltd v. Shriram Transport And finance Co. The other caie relied on by the learned counsel for the petitioner was Marine Times Publications Pvt Ltd v. Shriram Transport And finance Co. Ltd. AIR 1991 SC 626 . This case relates to agreement for transfer of premises in building owned bv Co-operative society and agreement was entered into between owner, a member of society and a non-member. Learned counsel placed reliance on paragraph 12 This case has no application in the context of the controversy involved in the present petition. ( 5 ) LEARNED counsel submitted that the award is without jurisdiction as it does not cover the provisions of Section 64 of the Act. If it was so then the objection should have taken before the concerned authority by the society, which is a corporate body and if not satisfied the Society could have preferred an appeal there against before the appellante forum provided under the law and thereafter also second appeal before the appellate forum provided under the Act. The general rule is that if a Court or Authority- has no jurisdiction then the question of jurisdiction would be decided by that Court or authority and appeal would lie as if that Authority or Court had the jurisdiction. Sub-section (i) of section 64 of the Act does not oust the jurisdiction but only provides before whom the dispute can be resolved thereunder and what would be the dispute. Sub-section (3) of Section 64 of the Act only says. If any question arising whether a dispute referred to the registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any Court. ( 6 ) THE appellate authorities are not the Courts and apart from this the Registrar has not decided any question whether the dispute, referred to him under Section 64 of the Act is a dispute falling within the ambit thereof. Section 82 of the Act provides bar of jurisdiction of Courts. ( 6 ) THE appellate authorities are not the Courts and apart from this the Registrar has not decided any question whether the dispute, referred to him under Section 64 of the Act is a dispute falling within the ambit thereof. Section 82 of the Act provides bar of jurisdiction of Courts. Section 82 of the Act is extracted as below :"82, Bar of jurisdiction of Courts: (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of (a) the registration of a society or of bye-laws or of an amendment of a bye-law ; (b) the removal of a committee and the management of the society after such removal; (c) anv dispute, required to be referred to the Registrar or bis nominee or board of nominees ; (d) any matter concerning the winding up and the dissolution of a society. (2) While a society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with, or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the registrar and subject to such terms as be may impose. (3) Save as provided in this Act, no order decision of award made under this Act shall be questioned in any Court of any ground whatsoever. " ( 7 ) I am not going to deliate on this aspect of the matter as I am disposing of the petition on the ground of locus standi of the petitioners to maintain the petition. Court rely on a decision of the Supreme Court in the case of Daman Singh State of Punjab, AIR 1985 SC 973 . The Supreme Court in Paragraph 11 of th e said report observed as: once a person becomes a member of a co-operative society, he loses his individuality qua the society and he has no independent right except those given to him by the statute and the bye-law. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. " in the present case the petitioners have no right sans the society and as they are numbers of the society they lose their individuality qua the society. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. " in the present case the petitioners have no right sans the society and as they are numbers of the society they lose their individuality qua the society. It has not been poined out that the act has given any seoarate or independent right to the petitioners as a member nor even by-laws have been pointed that the petitioners have separate and independent right. In view of above, Court finds no merit in the petition. The petition is accordingly dismissed. No order as to costs. Petition dismissed. .