- 1 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
TH
DATED THIS THE 30 DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT APPEAL NO.100150 OF 2024 (CS-DAS)
BETWEEN:
SHRI. UMAPATHI S/O. PANCHAKSHARAYYA SALIMATH,
AGE: 59 YEARS, OCC: AGRICULTURIST,
R/O: CHALAGERA VILLAGE,
TQ: KUSHTAGI, DIST: KOPPAL-583231.
…APPELLANT
(BY SRI.SHIVRAJ S.BALLOLI, ADVOCATE)
AND:
1. THE JOINT REGISTRAR
OF CO-OPERATIVE SOCIETIES,
(R441) THE KARNATAKA STATE
CO-OP. URBAN BANKS,
FEDERATION LIMITED REGIONAL OFFICE,
NO.I, 9/10, DOLLORS COLONY,
SHIVAKUMAR
HIREMATH
GOKUL ROAD, HUBBALLI-580030.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.04.30
2. THE ASSISTANT REGISTRAR OF
15:13:45 +0530
CO-OPERATIVE SOCIETIES AND
RECOVERY OFFICER, KOPPAL-583231.
3. CHIEF EXECUTIVE OFFICER
HANUMASAGAR URBAN CO-OPERATIVE
BANK LIMITED, HANUMASAGAR,
TQ: KUSHTAGI, DIST: KOPPAL-583231.
…RESPONDENTS
(BY SRI.MADANMOHAN M.KHANNUR,
ADDL. GOVT. ADVOCATE FOR R1 AND R2;
SRI.SHIVARAJ P.MUDHOL, ADVOCATE FOR
CAVEAT RESPONDENT NO.3)
- 2 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON’BLE COURT TO, SET
ASIDE THE IMPUGNED ORDER DATED 03/04/2024 PASSED BY
THE HON’BLE SINGLE JUDGE IN WP NO.101119/2024, AND
CONSEQUENTLY, ALLOW THE WRIT PETITION IN WP
NO.101119/2024 FILED BY THE PETITIONER.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. In this intra court appeal, the appellant/petitioner is
assailing the order dated 3.04.2024 in WP.No.101119/2024,
whereby the writ petition came to be dismissed, reserving
liberty to the petitioner to avail alternative remedy, if so
advised.
2. Heard, the learned counsel for the appellant and the
learned counsel for the respondents.
3. It is submitted by learned counsel appearing for
the appellant that the impugned order passed by learned Single
Judge is illegal as the appellant/petitioner alleging fraud against
the respondent/Bank and despite the same, the impugned
order is passed, which requires to be interfered in this appeal.
- 3 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
4. Per contra, Sri.Shivaraj P Mudhol, learned counsel
appearing for the caveator/respondent No.3 and learned AGA
Sri. Madan Mohan M Khannur appearing for the respondent
Nos. 1 and 2 submitted that the appellant/petitioner is having
an alternative remedy to approach the Competent Authority
under Section 105 (C) of the Karnataka Co-Operative Societies
Act, 1959 (for Short the ‘Act’) and accordingly, supported the
impugned order passed by the learned Single Judge.
5. Having heard the learned counsel appearing for the
parties, we have carefully examined the writ papers particularly
with reference to award dated 16.03.2013, passed in Award
No.3370/2012-2013 (Annexure-C).
6. The appellant/petitioner herein has not challenged
the award produced at Annexure-C to the writ petition before
the Competent Court and therefore, the learned Single Judge
is justified in dismissing the writ petition on the ground that the
petitioner/appellant is having an alternative remedy to
approach the Competent Authority under Section 105 (C) of the
Act. It is also to be noted that, nothing is stated in the writ
petition with regard to not challenging the award dated
16.03.2013, knowing fully well that, the appellant recourse to
- 4 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
lunching criminal proceedings against the contesting
respondent/Society.
7. In that view of the matter, taking into consideration
the law declared by the Hon’ble Supreme Court in the case of
M/s. Godrej Sara Lee Ltd. V. Excise and Taxation Officer-cum-
Assessing Authority and others, reported in AIR 2023 SC
781, at paragraph Nos. 4 and 8 it is held as follows:
“4. Before answering the questions, we feel the
urge to say a few words on the exercise of writ powers
conferred by Article 226 of the Constitution having come
across certain orders passed by the High Courts holding
writ petitions as “not maintainable” merely because the
alternative remedy provided by the relevant statutes
has not been pursued by the parties desirous of
invocation of the writ jurisdiction. The power to issue
prerogative writs under Article 226 is plenary in nature.
Any limitation on the exercise of such power must be
traceable in the Constitution itself. Profitable reference
in this regard may be made to Article 329 and
ordainments of other similarly worded articles in the
Constitution. Article 226 does not, in terms, impose any
limitation or restraint on the exercise of power to issue
writs. While it is true that exercise of writ powers
despite availability of a remedy under the very statute
which has been invoked and has given rise to the action
impugned in the writ petition ought not to be made in a
routine manner, yet, the mere fact that the petitioner
- 5 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
before the High Court, in a given case, has not pursued
the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal.
It is axiomatic that the High Courts (bearing in mind the
facts of each particular case) have a discretion whether
to entertain a writ petition or not. One of the self-
imposed restrictions on the exercise of power
under Article 226 that has evolved through judicial
precedents is that the High Courts should normally not
entertain a writ petition, where an effective and
efficacious alternative remedy is available. At the same
time, it must be remembered that mere availability of
an alternative remedy of appeal or revision, which the
party invoking the jurisdiction of the high court
under Article 226 has not pursued, would not oust the
jurisdiction of the High Court and render a writ petition
“not maintainable”. In a long line of decisions, this Court
has made it clear that availability of an alternative
remedy does not operate as an absolute bar to the
“maintainability” of a writ petition and that the rule,
which requires a party to pursue the alternative remedy
provided by a statute, is a rule of policy, convenience
and discretion rather than a rule of law. Though
elementary, it needs to be restated that
“entertainability” and “maintainability” of a writ petition
are distinct concepts. The fine but real distinction
between the two ought not to be lost sight of. The
objection as to “maintainability” goes to the root of the
matter and if such objection were found to be of
substance, the courts would be rendered incapable of
even receiving the lis for adjudication. On the other
- 6 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
hand, the question of “entertainability” is entirely within
the realm of discretion of the high courts, writ remedy
being discretionary. A writ petition despite being
maintainable may not be entertained by a High Court
for very many reasons or relief could even be refused to
the petitioner, despite setting up a sound legal point, if
grant of the claimed relief would not further public
interest. Hence, dismissal of a writ petition by a high
court on the ground that the petitioner has not availed
the alternative remedy without, however, examining
whether an exceptional case has been made out for
such entertainment would not be proper.
8. That apart, we may also usefully refer to the
decisions of this Court reported in (1977) 2 SCC 724
(State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co.
Ltd.) and (2000) 10 SCC 482 : (AIROnline 1998 SC
137) (Union of India vs. State of Haryana). What appears
on a plain reading of the former decision is that whether
a certain item falls within an entry in a sales tax statute,
raises a pure question of law and if investigation into
facts is unnecessary, the High Court could entertain a
writ petition in its discretion even though the alternative
remedy was not availed of; and, unless exercise of
discretion is shown to be unreasonable or perverse, this
Court would not interfere. In the latter decision, this
Court found the issue raised by the appellant to be
pristinely legal requiring determination by the High
Court without putting the appellant through the mill of
statutory appeals in the hierarchy. What follows from
the said decisions is that where the controversy is a
- 7 -
NC: 2024:KHC-D:6933-DB
WA No. 100150 of 2024
purely legal one and it does not involve disputed
questions of fact but only questions of law, then it
should be decided by the High Court instead of
dismissing the writ petition on the ground of an
alternative remedy being available.”
8. Referring to paragraph Nos. 4 and 8 of the above
judgment rendered by the Hon’ble Supreme Court, we are of
the view that the appellant/petitioner has not made out a case
for interference in this appeal. Accordingly, the writ appeal is
dismissed.
9. Dismissal of the appeal does not preclude the
appellant/petitioner to approach the Competent Authority, if so
advised, as observed by the learned Single Judge in the
impugned order.
Sd/-
JUDGE
Sd/-
JUDGE
VB
List No.: 1 Sl No.: 2