Bombay High Court
Khwaja Garib Nawaz Co Op Hsg Soc Ltd vs Divisional Joint Registrar Co Op Soc ... on 4 March, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:10297
34-rpw-14-2024.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.14 OF 2024
Khwaja Garib Nawaz Co-operative
Housing Society Ltd. ... Petitioner
V/s.
Divisional Joint Registrar Co-operative
Society Mumbai Division and Ors. ... Respondents
WITH
INTERIM APPLICATION NO.2211 OF 2024
IN
REVIEW PETITION NO.14 OF 2024
Budhpur Buildcon Pvt. Ltd. ... Applicant
V/s.
Khwaja Garib Nawaj Co-operative
Housing Society Ltd. and Ors. ... Respondents
Mr. Vijay Kurle a/w Mr. Chandrashekhar Acharya i/b
Mr. Manohar V. Shetty for the Petitioner in RPW.
Mr. Jagdish G. Aradwad ( Reddy) for Respondent Nos.
2 and 3 (Mhada).
Ms. Neha Nagotanekar, for Respondent No.4.
Mr. Mayur Khandeparkar a/w Mr. Bhushan Deshmukh
a/w Mr. Aditya Miskita and Ms. Aayushi Gohil a/w Mr.
Umair Merchant i/b M.T. Miskita and Company; for
Applicant in IA.
Mrs. V. S. Nimbalkar, AGP for the State-Respondent
No.1.
1
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34-rpw-14-2024.doc
CORAM : AMIT BORKAR, J.
DATED : MARCH 4, 2024
P.C.:
1. The petitioner has filed present review petition based on
judgment of Apex Court in the case of Shalini Shyam Shetty &
Anr. Vs. Rajendra Shankar Patil 2010 8 SCC 329.
2. According to the petitioner the change record, in the order
dated 16th October 2023 arises out of petition under Article 226 of
the Constitution of India. There is considerable difference in the
power of this Court under Article 226 and 227 of the Constitution
of India.
3. According to him, parameters laid down by Apex Court in
the case of Shalini (supra) applied in the facts of the case, and
therefore, this Court need to allow the Review Application and
entertain the writ petition on merits.
4. The parameters for exercise of power of this Court under
which jurisdiction have been laid down by the judgment of Apex
Court in the case of Commissioner of Income Tax & Ors Vs.
Chhabil Das Agrawal, reported in (2014) 1 SCC 603. The Apex
Court relied upon two constitutional Bench's decisions on the point
of exercise of power of High Court and existence of statutory
remedy in paragraph No.15 as held as under:
"15. Thus, while it can be said that this Court has recognised
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
34-rpw-14-2024.doc
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 [AIR 1964 SC 1419] , Titaghur Paper Mills
case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983)
2 SCC 433 : 1983 SCC (Tax) 131] 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."
5. The Apex Court held that if the rights are created under a
statute and it provides remedy and such remedy must be ipso facto
executed by the petitioner.
6. In the case of Punjab National Bank vs O.C. Krishnan
And Ors, reported in 2001 (6) SCC 569, in the context of
statutory remedy provided under statute in the context of Article
227, it is held in para 6 as under:
"6. The Act has been enacted with a view to provide a
special procedure for recovery of debts due to the banks and
the financial institutions. There is a hierarchy of appeal
provided in the Act, namely, filing of an appeal under Section
20 and this fast-track procedure cannot be allowed to be
derailed either by taking recourse to proceedings under
Articles 226 and 227 of the Constitution or by filing a civil
suit, which is expressly barred. Even though a provision
under an Act cannot expressly oust the jurisdiction of the
court under Articles 226 and 227 of the Constitution,
nevertheless, when there is an alternative remedy available,
34-rpw-14-2024.doc
judicial prudence demands that the Court refrains from
exercising its jurisdiction under the said constitutional
provisions. This was a case where the High Court should not
have entertained the petition under Article 227 of the
Constitution and should have directed the respondent to take
recourse to the appeal mechanism provided by the Act."
7. Therefore, in view of the observations made by the Apex
Court in both the Judgments above, the review petition cannot be
entertain.
8. The review petition is dismissed. No costs.
9. In view of disposal of review petition, the interim application
stands disposed of as infructuous.
(AMIT BORKAR, J.)
