Chinna Thevar vs The Deputy Registrar of Co-operative Societies

S. Nagamuthu, J.—The petitioner''s son Mr. A. C. Murugan was working as Secretary of MD Special 109, Valanthur Primary Agricultural Co-operative Credit Society Limited in Madurai District. In an enquiry held under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983, in respect of the affairs of the said Society, it was found that Mr. A. C. Murugan had caused loss to the tune of Rs. 157 lakhs to the Society. Based on the said report under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983, a surcharge proceeding under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 was initiated against Mr. A. C. Murugan , in which, an application was made for attachment before Judgment. Based on the said request, in CAEP No. 29 of 2010-11, dated 08.06.2010, attachment of certain immovable properties was made by the order, dated 08.06.2010 under Section 167 of the Tamil Nadu Co-operative Societies Act, 1983.

According to the petitioner, his son had nothing to do with the said attached properties. He further claimed that these properties are the self- acquired properties of the petitioner and therefore, they were not liable for attachment. With this claim, the petitioner made a claim petition before the sale officer under Rules 135 of the Tamil Nadu Co-operative Societies Rules, 1988 seeking to release the property from attachment. The 1st respondent by his proceedings in CA(EP). No. 29/2010-11, dated 06.06.2011 dismissed the said claim application holding that the petitioner''s son has got right over the attached properties and therefore, the said properties were liable for attachment. Challenging the said order of the first respondent, dated 06.06.2011, the petitioner is before this Court with this Writ Petition.

I have heard the learned Counsel appearing for the petitioner, the learned Government Advocate appearing for the respondents 1 and 2 and the learned counsel appearing for the third respondent and I have also perused the records, carefully.

At the outset, the learned counsel appearing for the respondents submitted that this Writ Petition is not maintainable in view of the fact that the petitioner has got alternative remedy to work out under the provisions of the Tamil Nadu Co-operative Societies Act, 1983 itself. The learned counsel further submitted that as against the attachment order, if it is the case of the petitioner that it was wrongfully done, the petitioner should have filed an appeal under Section 152 of the Tamil Nadu Co-operative Societies Act, 1983. He would further submit that if the petitioner is aggrieved by the rejection of the claim application, the remedy for him is to file a civil suit, as provided in Rule 135(3) of the Tamil Nadu c-operative Societies Rules. When such alternative remedies are available, according to the learned counsel for the respondents, this Writ Petition is not at all maintainable.

But the learned counsel for the petitioner would stoutly refute the above submission. According to him, as provided under Rule 126 of the Tamil Nadu Co-operative Societies Rules, 1988, no notice whatsoever was given to the petitioner though he is the absolute owner of the property and no opportunity was afforded to him at all before the attachment order was made. Thus, the attachment order had been made in gross violation of principles of natural Justice and therefore, this Writ Petition is maintainable. The learned counsel would further submit that in the impugned order, there is no finding that Mr. A. C. Murugan , has got any right over the property. In view of these two factual positions, according to the learned counsel for the petitioner, though there is an alternative remedy available, still the Writ Petition is maintainable.

I have considered the above submissions.

It is one thing to say that the petitioner could challenge the attachment order, as provided in Section 152 of the Tamil Nadu Co-operative Societies Act, 1983. In the alternative, it is also available for the petitioner to file a claim application seeking to release the property from attachment. Here, in this case, the petitioner had chosen to take the later course to file a claim application under Rule 135 of the Tamil Nadu Co- operative Societies Rules, 1988 rightly. But the said claim application was dismissed by means of the impugned order. If once it is so dismissed on merits, the remedy for the petitioner is only to approach the civil Court as provided in Rule 135(3) of the Tamil Nadu Co-operative Societies Rules, 1988.

In this Writ Petition, it cannot be adjudicated upon as to whether the property in question is the self-acquired property of the father or his son has got any undivided share in the said property. These disputed questions are to be resolved only by the competent civil Court. That is the reason why the law makers have provided a remedy to file a civil suit under Rule 135(3) of the Tamil Nadu Co-operative Societies Rules. When that be so, in my considered opinion, this Writ Petition cannot be entertained, in view of the said enabling provisions, which provide efficacious remedy. As a matter of fact, I am constrained to state that the valuable time of this Court has been wasted for 3 years on this Writ Petition. By this time the petitioner would have got appropriate relief, had he gone to the civil Court within a period of six months as provided under Rule 135(3) of the Tamil Nadu Co-operative Societies Rules, 1988.

I am conscious of the legal position that the power of this Court under Article 226 of the Constitution of India is not limited or circumscribed, by any of the provisions of any law. No statutory provision can limit the power of this Court under Article 226 of the Constitution of India. But, in due course of time, during the working of the Constitution, the higher judiciary has evolved its own self-imposed restrictions and the Courts have been uniformly following the same. As per the self imposed restriction, when there is an alternative remedy, which is more efficacious, then the Writ Jurisdiction cannot be invoked. But, at the same time, in appropriate cases, where there is violation of principles of natural Justice or where there are best reasons, this Court can entertain Writ Petitions coming out of the self imposed restriction. But in this case, I am not inclined to come out of self imposed restriction for the simple reason that this Court cannot resolve the dispute as to whether the property in question is the self acquired property of the petitioner or his son/the Judgment Debtor has title over the same. That is the reason why, I hold that the remedy for the petitioner lies before the civil Court.

While doing so, it is absolutely necessary for me to issue a direction that the time spent in this Writ Petition should be excluded while computing the period of limitation. The writ petition was filed on 26.07.2011. This Court admitted the Writ Petition on 02.08.2011, kept it pending and disposed of the same only today. Therefore, the period between 26.07.2011, the date of filing of this Writ Petition, till today shall be excluded while computing the period of limitation for the purpose of filing a suit under Rule 135(3) of the Tamil Nadu Co-operative Societies Rules, 1988.

In the result, the Writ Petition fails and the same is dismissed, however, with liberty to the petitioner to work out his remedy before the competent civil Court under Rule 135(3) of the Tamil Nadu Co-operative Societies Rules, 1988 and if such a suit is filed, the period spent between 26.07.2011 and 17.07.2014 shall be excluded by the civil Court while computing the period of limitation. No costs. Consequently, connected Miscellaneous Petition is closed.