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Judgment
K.P. Sivasubramaniam, J.—In WP No. 7249 of 1999, the petitioner prays for a writ of mandamus to direct the respondent to forbear from
proceeding with the surcharge proceedings initiated against him u/s 87 (1) of the Tamil Nadu Co-operative Societies Act, 1983, hereinafter
referred to as ""the Act"" without furnishing to the petitioner the documents mentioned in the letters of the petitioner dated 07-01-1999, 11-01-1999
and 30-03-1999.
In W.P. No. 35272 of 2002, the same petitioner has prayed for writ of certiorarified mandamus to call for the records of the 1st respondent,
Deputy Registrar dated 17-06-2002, quash the same and to direct the respondents to remove any display of the notice of attachment in the office
of the 3rd respondent.
The short facts which are sufficient for the disposal of the writ petitions are that the petitioner, who was a Special Officer in the Tamil Nadu Co-
operative Marketing Federation/the 2nd respondent herein, was subjected to surcharge proceedings u/s 87 of the Act. The said proceedings were
proceeded with after due enquiry u/s 81 of the Act. In the course of the surcharge proceedings, the petitioner has approached this Court by filing
the first writ petition namely W.P. No. 7249 of 1999 being allegedly aggrieved by non-furnishing of the necessary records/documents as
mentioned in the letters stated therein. In the said writ petition, notice of motion was ordered and the same is kept pending till now. The enquiry u/s
87 is also pending. In the meantime, the Deputy Registrar has passed an order attaching the properties belonging to the petitioner u/s 143 of the
Act. Aggrieved by the same, the petitioner has filed the second writ petition, viz., W.P. No. 35272 of 2002.
As far as the prayer in W.P. No. 7249 of 1999 for furnishing of records is concerned, the files produced by the learned Additional Government
Pleader shows that subsequent to the filing of the writ petition, by a communication dated 10-05-2000, the petitioner was furnished with the copy
of the proceedings, which the petitioner has also acknowledged on 25-05-2000 (page 197 of the file). It is true that even thereafter, not being
satisfied with the same, the petitioner has sought for production of certain other documents which are relied on in the show cause notice and the
learned counsel had contended that the full text of the report has not been furnished.
Considering the subsequent event that the petitioner has been furnished with the copy of the report, I do not think anything further survives in
W.P. No. 7249 of 1999. The grievance of the petitioner is that all the documents have not been furnished, which are necessary for the conduct of
the enquiry and the enquiry is now being proceeded with. On this issue, the learned Additional Government Pleader states that the respondent is
entitled to keep back certain confidential documents and documents which are not relevant for the enquiry and the respondent is not going to rely
on those documents or reports which have not been disclosed to the petitioner. The said stand of the respondent should satisfy the petitioner.
However, it is sufficient to direct the petitioner to address a letter to the respondent within a period of two weeks from the date of receipt of a
copy of this order listing out all the documents, which in his opinion are necessary. On receipt of such representation, the respondent is directed to
send a proper reply to the petitioner. If there is no objection, copies of such documents may be furnished or the petitioner may be allowed to
peruse them, if the records are voluminous. It is also made clear that in the event of the petitioner not being permitted to peruse any document, the
respondent shall not rely on the said document for arriving at any conclusion against the petitioner.
Now coming to W.P. No. 35272 of 2002, the grievance of the petitioner is that u/s 143 of the Act, the respondents are not empowered to pass
an order of interim attachment. Secondly, the impugned order has been passed by the Deputy Registrar and assuming that the order is passed u/s
167 of the Act, it is only the Registrar, who has the power to pass such an order and not the Deputy Registrar. He would also state that in terms of
proviso to Section 167 of the Act, reasons for making conditional attachment are not mentioned.
A further ground of attack against the proceeding is that the proceeding u/s 87 of the Act are time barred in terms of second proviso to Section
87 of the Act which mandates that the action initiated by the respondents shall be completed within a period of six months from the date of such
commencement or such further period or periods as the next higher authority may permit, but the extended period shall not exceed six months
aggregate. In other words, the total period cannot exceed one year. In this case, according to the petitioner, the surcharge proceedings
commenced on 18-12-1998 and the proceedings have not yet been completed. Even calculating the period from the date of explanation submitted
by the petitioner namely as from 04-09-2000, the proceedings as on date is beyond the said period of one year and therefore on the said ground
also the proceedings cannot be permitted to continue. It is further stated that part of the attached properties belongs to his wife and such properties
cannot be proceeded against.
I have heard the learned Additional Government Pleader representing the respondents. The learned Additional Government Pleader would
contend that the period mentioned u/s 87 of the Act cannot be made applicable to the case of the petitioner society considering the fact that a
special order has been passed by the Government in G.O. Ms. No. 566, Co-operation Department dated 18-09-2002 exempting the provisions
u/s 87 of the Act and therefore, the limitation prescribed under the second proviso to Section 87 of the Act will not apply to the case of the
petitioner.
In the context of the impugned order in W.P. No. 35272 of 2002, the learned Special Government Pleader contends that the Section 143 has
been wrongly quoted in the order. He also contends that the power of interim attachment is available u/s 167 of the Act and therefore the mistake
in wrongly mentioning the provision will not vitiate the order.
As regards the power of the Deputy Registrar, reference is made to G.O. Ms. No. 269, Co-operation Department dated 18-06-1998 where
under the Deputy Registrar of Co-operative Societies has been vested with the powers of Registrar of a Co-operative Society to exercise the
powers under the Act.
Mr. Subramaniam, learned counsel appearing for the Society also endorses the submissions made by the learned Government Pleader. He
would also contend that the issue of attachment made with respect to the properties allegedly belonging to the wife of the petitioner, can be raised
by the petitioner only by filing a claim petition before the appropriate authority under Rule 135 or by filing an appeal u/s 152 of the Act and the
issue cannot be raised under Article 226 of the Constitution of India.
I have considered the submissions of both sides in the context of the validity of the impugned order in W.P. No. 35272 of 2002 and the
limitation prescribed u/s 87 of the Act.
In the context of the limitation prescribed under the second proviso to Section 87 of the Act, it is no doubt true that the proceedings are
mandated to be completed within a period of six months or a further extended period of six months in the aggregate. In the present case, it is true
that the proceedings were initiated on 18-12-1998. At least for two reasons, I am inclined to hold that there is no bar of limitation. Firstly,
immediately after the commencement of the proceedings, the petitioner has approached this Court by filing W.P. No. 7249 of 1999. Though no
interim order has been passed, yet the writ petition is pending till now, leaving no other alternative for the respondents, except to wait for the
decision of this Court in W.P. No. 7249 of 1999. Secondly, it is, in those circumstance, the Government finding that it will not be possible to
comply with period of limitation, has passed the order in G.O. Ms. No. 566, Co-operation Department dated 18-09-2002 exempting Section 87
from the applicability of the provisions to the present case as empowered u/s 170 of the Act. The contention of the learned counsel for the
petitioner is that the power of exemption u/s 170 of the Act would apply only to the registered Societies which in the opinion of the Government
may be excluded from the applicability of the Act. It is not referable to the mandatory powers to be exercised and duties to be discharged by the
various officers as enlisted under the Act. Section 170 of the Act reads as follows:
Power to exempt registered societies.- Without prejudice to the power conferred by Section 169, the Government may, in the public interest,
by general or special order whether prospectively or retrospectively-
(a) exempt any registered society, from any of the provisions other than clause (b) of sub-section (1) of Section 88 and sub-section (1) of Section
89 of this Act, or the rules, subject to such conditions as may be specified; or
(b) direct that such provisions of the rules shall apply to such society with such modifications as may be specified in the order.
Sub-section (a) of Section 170 entitles the Government to exempt any registered society from any of the provisions other than clause (b) of
sub-section (1) of Section 88. According to the learned counsel for the petitioner, this exemption could be granted only to the benefit of the
registered societies and by invoking the exemption clause and the statutory limitation or the mandatory duties of the various authorities prescribed
under the Act cannot be affected. I am unable to accept the contention of the learned counsel for the petitioner. When once the operation of
Section 87 of the Act is excluded to the extent of the limitation prescribed therein, then the bar of limitation is removed. This has been done only in
public interest considering the magnitude of the loss incurred and the time which bound to be consumed for completing the proceedings.
Learned counsel appearing for the petitioner relies on a judgment of Mohan, J (as he then was) reported in 1988 Writ Law Reporter 33
(Muthusamy Pillai Vs. Income Tax Appellate Tribunal, Madras and others) in support of his contention that the period of limitation fixed under the
statute has to be applied strictly and the law of limitation is not one of substance but one of procedure. Therefore, according to the learned counsel
for the petitioner, when the second proviso to Section 87 prescribes a certain procedure of limitation, such a requirement cannot be ignored and it
is not open to the Government to exempt the procedural requirements. The said Judgment of Mohan , J as mentioned above deals with Section
266 (1) of Income Tax Act. On the facts of that case there was no exemption of provision relating to the period of limitation. Furthermore, in this
case, as already stated above, the petitioner has approached this Court in the year 1999 itself by filing W.P. No. 7249 of 1999 thus disabling the
respondent to proceed further. Therefore, I do not find any ground to interfere in so far as the question of bar of limitation u/s 87 of the Act is
concerned.
With reference to the impugned order in W.P. No. 35272 of 2002 is concerned, it is seen that power is available u/s 167 of the Act whereby,
if the Registrar is satisfied on an application by the registered society to make an interim/conditional attachment of the property, the Registrar may,
pass such an order. Section 167 of the Act is extracted hereunder.
Furnishing of Security and attachment of property. - (1) Where the Registrar is satisfied on the application of a registered society in respect
of a reference made to him under Sub-section (1) of Section 90 or on the application of a liquidator appointed u/s 138 in respect of the
proceedings of such liquidator for determining the contribution to be made by a person to the assets of the society under clause (b) of sub-section
(2) of Section 139 or on the application of the board or liquidator or any creditor to the society or otherwise in respect of any inquiry ordered into
the conduct of any person u/s 87 that any party to the reference or the person, as the case may be, is about to dispose of or remove from the local
limits of the jurisdiction of the Registrar, the whole or any part of his property with intent to defeat or delay the execution of any decision that may
be passed on the reference or of any order that may be passed against him by the liquidator or the Registrar, as the case may be, the Registrar
may, by order, direct the party or the person, to furnish security in such sum and within such time as may be specified in such order and to produce
and place at the disposal of the Registrar when required, the said property or such part thereof as may be sufficient for the execution of any
decision or order aforesaid.
(2) The Registrar may also in the order made under sub-section (1) or by a separate order, direct the conditional attachment of the said property,
or such part thereof and such attachment shall have the same effect as if it had been made by a competent civil court.
Provided that no order for conditional attachment shall be made under this sub-section unless the Registrar, for the reasons to be recorded in
writing, is satisfied that the whole or any part of the property will be disposed of or removed with intent to defeat or delay the execution of any
decision or order of the liquidator or the Registrar, as the case may be.
Though the provision has been wrongly quoted in the impugned order as Section 143, it is settled proposition of law that mere omission to
mention or reference to a wrong provision of law alone will not vitiate the order, if the power of the authority is traceable to any another provision.
With reference to the contention that it is only the Registrar who has the power to pass order u/s 167 of the Act, it is sufficient to refer to G.O.
Ms. No. 269, Co-operation Department dated 22-06-1988. By virtue of the said G.O., the powers have been delegated namely in respect of any
registered society, all the powers of a Registrar under the said Act, except the provisions mentioned therein shall stand delegated to the Deputy
Registrar of the Society. Specific provisions have been enlisted in Column (i) (ii) and (iii) of the said G.O., which are exempted from the delegation
of powers. Section 167 of the Act does not find a place in the said G.O. Therefore, with reference to Section 167 of the Act, the Deputy Registrar
has ample powers to issue the order.
The further grievance that the impugned order does not disclose any reason cannot be upheld. A perusal of the files produced by the learned
Additional Government Pleader shows that there was an apprehension that the petitioner may alienate the properties. The enquiry relates to a large
scale defalcation amounting to Rs.12 crores and therefore in public interest, the said order has been passed. I do not find any infirmity or
irregularity in the said order for the only reason that no reason has been communicated to the petitioner in the impugned order.
The further contention that some of the properties belonged to the wife of the petitioner have been attached is concerned, it is needless to point
out that under Rule 135 of the Act, it is open to the interested parties to move the appropriate authority by filing a claim petition which shall be
considered by the appropriate authority. The mere fact that some of the properties were alleged to stand in the name of the petitioner''s wife by
itself would not invalidate the impugned order.
In the result, I do not find any ground to interfere with the order impugned in these writ petitions. Therefore, the writ petitions are dismissed. No
costs. Connected WMP and WPMP are also closed.