1. This appeal is by the Trivandrurn Co-operative District Wholesale Society Ltd. registered under the Kerala Co-operative Societies Act, 1969, for short the Act. The appellant sought setting aside the two awards Exts. P-1 and P-2 passed by the first respondent purporting to act under Section 69 of the Act as well as the appellate decision by the Kerala Co-operative Tribunal, Trivandrum the second respondent (Ext. P-3). The award Ext. P-1 was passed on the complaint of respondents 3, 4, 5, 6 and 7 that their service had been wrongly terminated by the appellant. The award Ext. P-2 related to the same matter. The appellant had claimed certain amounts from each of the respondents 3, 4, 5, 6 and 7 on the ground that they had falsified accounts and had committed misappropriation and criminal breach of trust. This claim of the appellant had been rejected. The appeal taken by the appellant before the second respondent the Co-operative Tribunal was dismissed by Ext. P-3.
2. The learned Judge who heard the original petition dismissed it by a short judgment reading as follows:--
'No grounds are made out warranting any interference by this Court under Article 226 or 227 of the Constitution with the concurrent findings of fact entered by the Arbitrator who decided the reference under Sec. 69 of the Kerala Co-operative Societies Act and by the Kerala Co-operative Tribunal that thepetitioner Society had failed to prove by any acceptable evidence that respondents No. 3 to 7 were responsible for the theft of some terylene cloth which took place from the Society's shop on 27-9-1969, Dismissed.'
3. The appellant had taken the contention in the original petition that the first respondent had no jurisdiction to decide the question that arose before the first respondent on the 'plaints' that were filed before the first respondent. The contention was that the disputes that could be settled under Section 69 of the Act must relate to a matter touching the business, constitution, establishment or management of a society capable of being the subject of litigation. This contention was elaborated by saying that the matter in dispute between the appellant and the respondents 3 onwards was not one which could be the subject of litigation in ordinary civil courts, that the disputes in essence and in substance were industrial disputes. Such a contention had not been taken before the first respondent. In fact the appellant also had invited the decision of the first respondent by the plaint that it filed. It is averred in the original petition that such a contention was raised before the Tribunal, the second respondent; but this also does not appear from the records and the point was not elaborated at the time of arguments. The Tribunal did not consider the question. In the original petition the point has been taken; but the learned Judge has not dealt with it. The only point urged before us was the lack of jurisdiction of the first respondent to deal with the disputes that arose.
4. We shall read Section 69 as well as the definition of the term 'dispute' in Section 2 (i) of the Act
'69. Disputes to be referred to Registrar:-- (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises:
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) Between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or
(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceasedagent, or deceased employee of the society; or
(d) between the society and anyother society; or .
(e) Between a society and the members of a society affiliated to it; or
(f) between the society and a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or
(g) between the society and a surety of a member, past member, deceased member or employee or a person other than a member who has been granted a loan by the society whether such a surety is or is not a member of the society; or
(h) between the society and a creditor of the society,such dispute shall be referred to the Registrar for decision; and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
(2) For the purposes of Sub-section (1), the following shall also be deemed to be disputes, namely:--
(a) a claim by the society for any debt or demand due to it from a member or the nominees heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of the Board of Mana gement or any officer of the Society.
Explanation:-- A dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election.
(3) No dispute arising in connection with the election of the Board of Management or an officer of the Society shall be entertained by the Registrar unless it is referred to him within one month from the date of the election.
(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute as defined in Clause (i) of Section 2 the decision thereon of the Registrar shall be final,'
'Section 2 (i) 'dispute' means any matter touching the business, constitution, establishment or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not.'
5. Counsel for the appellant relied on the decisions of this court in Malabar Co-operative Central Bank Limited, Kozhikode v. State of Kerala, 1963 Ker LT 705, Kerala State Handloom Weavers' Co-operative Society Ltd v. State of Kerala, 1964 Ker LJ 175 and Kaloor Vadakkummury Service Co-operative Society Ltd. v. Assistant Registrar, Mukundapuram, 1973 Ker LT 523 in support of his submission that the first respondent had no jurisdiction to determine the questions that were dealt with by him in Exts. P-1 and P-2. Counsel for the appellant seems to us to be well-founded in this submission. But on behalf of the respondents it has been urged that having invited the decision from the first respondent and having taken the chance of the decision being in its favour and not having raised such a point before the first respondent or even the second respondent the appellant should not be permitted to raise this point in proceedings under article 226 of the Constitution for the first time and request this court in the exercise of a special jurisdiction to set aside the awards on the ground of want of jurisdiction.
6. There is a catena of decisions of this court in which the view has been taken that if the question of jurisdiction had not been taken before the authority or the tribunal, the contention should not be allowed to be raised, for the first time in proceedings under Article 226 of the Constitution. The earliest decision on the subject brought to our notice is in P. M. John v. State, 1955 Ker LT 568. The court declined jurisdiction on the following grounds:--
'The High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the court. Besides, the tribunal which is brought before the court should itself be given an opportunity to decide that it has no jurisdiction before the High Court is called upon to give its decision.' Justice P. T. Raman Nayar as he then was in Madhava Iyer VenkitasubramoniaIyer v. Catholic Bank of India Ltd. 1957 Ker LT 411 = (AIR 1967 Ker 109) refused to exercise the special powers under Article 226 of the Constitution on the ground that 'the petitioner submitted to their jurisdiction and took the chance of obtaining an order in his favour. Therefore he cannot be heard to raise the objection before the High Court.' In Gopalan v. Central Road Traffic Board, Trivandrum, 1958 Ker LT 410 = (AIR 1958 Ker 341) the same view has been taken by Vaidialhigam J. in S. M. Rawther v. Agricultural I. T. & S. T. Officer 1953 Ker LT 958. M. S. Menon J. as he then was relied on the observations of Coutts-Trotter, C. J. in AIR 1927 Mad 130 (FB) which was cited with approval before the Supreme Court in AIR 1957 SC 397 (412). The passage from the Chief Justice's judgment runs thus:-- 'the test that they lay down is whether the applicant armed with a point either of law or fact, which would oust the jurisdiction of the lower court has elected to argue a case on its merits before that court. If so he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. We are of opinion that the applicant has so conducted himself as to preclude this Court from exercising a discretionary jurisdiction in his favour. The petition will, therefore, be dismissed with taxed costs.'
Varadaraja Iyengar J. in Ponkunnam Erattupetta Motor Service v. Regional Transport Authority, Kottayam, 1958 Ker LT 1034 has also referred to the decision in AIR 1957 SC 397. A Division Bench of this Court in S. Kumaraswamy Reddiar v. S. Noordeen, 1960 Ker LT 778 = (AIR 1961 Ker 117) expressed the view:
'Ordinarily such a conduct would preclude the petitioner from claiming the writ unless a cogent explanation is furnished by stating the necessary facts upon affidavit which should satisfy the court that the failure to raise the objection relating to jurisdiction was not deliberate or that the petitioner had no knowledge of facts on which the objection could be based.' Another Division Bench of this Court consisting of Chief Justice Ansari and Justice Madhavan Nair in Kumaran v. Ist Addl. Income-Tax Officer, Kozhikode, 1960 Ker LT 1340 = (AIR 1961 Ker 182) was more categorical.
'It is well-established that a petition cannot succeed on the ground against thejurisdiction of the authority, whose order he is challenging unless he has taken the ground before the authority making the order. Such failure amounts to absence of diligence on the part of the petitioner.' One of us in Mariyan v. State of Kerala 1965 Ker LT 1 reiterated the view as follows:--
'The principle is that the High Court refuses to exercise its jurisdiction in favour of a writ applicant who sat on the fence, took the chance of the decision before that authority and then turned round and challenged the jurisdiction of the authority.'
7. It is thus clear that this court has been for nearly two decades declining jurisdiction when the lack of jurisdiction of a Tribunal or authority was not taken before that Tribunal or authority but was urged for the first tune in proceedings under Article 226 of the Constitution, The exercise of a writ jurisdiction being discretionary in nature this court ordinarily must exercise its discretion against those who take the chance of a decision and were not diligent enough to urge the lack of jurisdiction of a Tribunal or authority before the Tribunal or authority itself. But it has been contended by counsel on behalf of the appellant that there is a clear distinction between a latent lack of jurisdiction and a patent lack of jurisdiction. Based on this distinction the argument ran as follows. A latent lack of jurisdiction can itself arise when the lack of jurisdiction has to be spelt out on the basis of certain facts which may or may not be known to the writ applicant. If he knew the facts at the time he took the chance of the decision before the Tribunal and did not disclose those facts and did not raise the point of jurisdiction before the Tribunal but took it for the first time in proceedings under Article 226 of the Constitution this court should certainly decline jurisdiction. But if on the other hand, the lack of jurisdiction was not latent in that manner but was a patent one the fact that he knew about the lack of jurisdiction when he took the chance of the decision before the Tribunal did not matter and this court would be entitled to and even might find it necessary to exercise its jurisdiction under Article 226 and declining jurisdiction would help the creation of a precedent that a certain Tribunal has jurisdiction to deal with matters which it dealt with, when in reality it had none. In cases where therewas really no jurisdiction and the lack of it was patent this court ought to interfere.
8. The decision of Chief Justice Chagla in Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202 was referred to with approval in most of the decisions of this court. But in a later decision in S. C. Prashar v. Vasantsen Dwarkadas AIR 1956 Bom 530 the learned Chief Justice drew the distinction between a case of patent lack of jurisdiction and latent lack of jurisdiction and interfered in a case arising under the Indian Income-tax Act, 1922 on the ground that the Income-tax Officer who issued notice under Section 34 of that Act had patently no jurisdiction to do so and that such lack of jurisdiction was apparent on the face of the records and on a reading of the section Counsel for the appellant has pressed the acceptance of the principle of the decision in S. C. Prashar v. Vasantsen Dwarkadas, AIR 1966 Bom 530.
9. And Lord Denman in 'Bodenham v. Ricketts', (1836) 6 N & M 170 rested the reasoning in support of interference where there was patent lack of jurisdiction thus:
'to be for the sake of the public 'lest the case might become a precedent if allowed to stand without impeachment'.' The leading English Case that has decided that interference can be had in the case of patent lack of jurisdiction is that in Farquharson v. Morgan (1894) 1 QB 552. Lord Halsbury stated:
'It is a want of jurisdiction of which the court is informed by the proceedings before it and which the Judge should have observed, and of which he himself should have taken notice.'
10. The decisions of this courtalready referred to have not, as we understand the decisions, laid down as a rule of law that this court cannot interfere when there is lack of jurisdiction. All that has been laid down is that the discretion will not be exercised in favour of an applicant who did not raise it before the Tribunal or authority and had taken the chances of a decision. We may add that in a given case a petitioner may be able to explain why he was not able to raise the want of jurisdiction before the Tribunal or authority and if this court is satisfied that the explanation is valid andacceptable this court will interfere. Excepting raising the contention that the lack of jurisdiction is a patent one no explanation has been offered by the appellant. If he was vigilant he could have raised the objection before the Deputy Registrar. He has, we think, precluded himself from raising it now by his conduct. This view is in accordance with the consistent view that this court has taken for two decades. We may add that it is difficult to say in all cases whether lack of jurisdiction is latent or patent. By reading Section 69 of the Act alone it is not at all clear that matters relating to disputes which can be tried by an industrial tribunal cannot be dealt with by the Registrar. The words used in the section are 'touching the business of the society' or relating to the business of the society. It is difficult to say that the matters in these disputes with which we are concerned did not touch the business of the society. In that sense the lack of jurisdiction of the first respondent was not patent. But there were two decisions of this court in Malabar Co-operative Central Bank Limited, Kozhikode v. State of Kerala, 1963 Ker LT 705 and Kerala State Handloom Weavers' Co-operative Society Ltd. v. State of Kerala, 1964 Ker LJ 175 which could have been relied on by the appellant, if he had been diligent. If he was aware of these decisions and still had not taken the point his position is worse. The decision in Kaloor Vadak-kummury Service Co-operative Society Ltd. v. Assistant Registrar, Mukundapuram, 1973 Ker LT 523 was no doubt rendered only a few days before Exts. P-1 and P-2 awards were passed. But we are not satisfied that considering all aspects this is a case in which we should interfere.
11. We dismiss this appeal and direct the parties to bear their respective costs.