Registrar cannot issue NOC for Society Redevelopment

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By Legal Cell

Bombay High Court

Vina Arvindlal Siswawala And 2 Ors vs The State Of Maharashtra And 2 Ors on 24 November, 2018

In this Petition, the petitioners seek a writ of certiorari or any other writ, order or direction for quashing the ‘direction’ dated 05 th December 2014 issued by the Deputy Registrar, Co-operative Societies, respondent No.1 (appointing observers for Special General Body Meeting of the respondent No.2 Society) and the ‘no objection letter’ dated 23rd December 2014, issued by respondent No.1 whereby respondent No.2 Society was permitted to go for redevelopment of the society premises, and for a direction to the respondent No.1 to ensure that respondent No.2 society follows the Government Resolution dated 03rd January 2009, in the matter of redevelopment of society premises.

Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority   has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

Undoubtedly, in the aforesaid case, the question arose in the backdrop of availability of an equally efficacious alternate statutory remedy i.e. under Income TaxAct, 1961. In the case at hand, the petitioners have resorted to common law remedy by approaching the competent civil court with a comprehensive suit. The principle expounded

in the aforesaid case, in our view, would equally govern the situation at hand, especially when the common law remedy is fully exhausted. We are not simply relegating petitioners to approach the Civil Court by merely pointing out the existence of the remedy. On the contrary, the petitioners have been pursuing both the remedies with equal intensity.

The upshot of aforesaid discussion and reasons is that we are unable to persuade ourselves to entertain the instant Writ Petition. Resultantly, the Petition deserves to be dismissed.

Before parting, we make it clear that we have not adjudicated upon any of the disputed questions of fact and law. The City Civil Court, Bombay, before which Civil Suit No. 175 of 2016 is pending, shall decide the same in accordance with law without being influenced by any of the observations made

Hence, the following

The Writ Petition stands dismissed. In the facts and circumstances, there shall be no order as to cost. 

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