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Judgment
V. Kanagaraj, J.—The Petitioner has filed this writ petition praying to issue a writ of declaration, declaring the sale of the Petitioner''s
property bearing door No. 20-F3, K.R.N. Koil Street, Anupparpalayam Pudur, Tirupur-3 dated 30.6.1992 by the first Respondent as null and
void ab initio.
Heard, the learned Counsel appearing for the Petitioner and the Respondents as well.
In the affidavit filed in support of the writ petition, the Petitioner would contend that he was working as the Manager in the second respondeat
Co-operative Society since 1968; that he got suspended from service in the year 1986 on charge of misappropriation of funds and subsequently,
he was dismissed from service in the year 1988; that for the same offence of misappropriation of funds of the second Respondent Society, the
Petitioner would submit, that a criminal charge of misappropriation is under investigation and a case filed by him against termination of service is
also pending before the Labour Court.
The further case of the Petitioner is that the first Respondent suo motu assuming the powers of an arbitrator, passed an ex parte award directing
the Petitioner to make good the alleged loss of a sum of Rs. 6,73,196.87 with interest thereon at 18 per cent per annum from 18.5.1990 in A.R.C.
No. 88/90-1991 dated 18.6.1990 u/s 90 of the Tamil Nadu Cooperative Societies Act, 1983 (hereinafter referred to as the ''Act'') based on the
claim petition filed by the second Respondent; that pursuant to the said award, the Petitioner''s property bearing door No. 20-F3, K.R.N.K01I
Street, Anuparpalayam Pudur, Tiruppur, has been attached; that aggrieved, he filed an appeal u/s 152(l)(a) of the Act before the Special Tribunal
for Co-operative Cases, Madras, along with the said application and the Tribunal was pleased to grant conditional stay directing him to pay a sum
of Rs. 25,000/- on or before 30.6.1992 and a like sum on or before 22.7.1992 failing compliance of which, the stay granted will stand
automatically vacated.
The further case of the Petitioner is that he was not in a position to comply with the conditions as per the orders of the Tribunal dated
23.6.1992; that an application filed for modification of the condition also having come to be dismissed by the Tribunal on 23.7.1992, he filed
W.P.10650 of 1992 and this Court was pleased to dispose of the very writ petition with the following order:
Having regard to the aforesaid representation made by the Petitioner, it is just arid proper that there shall be a stay of the further proceedings of the
Original Authority pending disposal of the appeal before the Special Tribunal and the Special Tribunal for Cooperative Cases is directed to
dispose of the appeal in a period of three months from the date of receipt of a copy of this order. Pending disposal of the appeal, it is reiterated
that there shall be a stay of the order of the Original Authority. Accordingly, the writ petition is ordered, However, there shall be no order as to
costs.
that the Respondent had conducted the auction of his attached property on 30.6.1992 itself and had chosen to confirm the same by his proceeding
in E.P. No. 2/87-88 dated 31.7.1992 and its subsequent confirmation on 31.7.1992 itself; that as per the conditional order made in I.A. No. 255
of 1992 in the unnumbered STCA dated 23.6.1992, the sale of the attached property ought to have been kept in abeyance atleast till 22.7.1992
the second date, the second amount was directed to be paid; that in the circumstances, the Petitioner would conclude that he is constrained to file
this writ petition with the prayer as sought for in the writ petition.
In the counter filed on behalf of the first Respondent, it would be contended that the Petitioner joined the services of the second Respondent in
the year 1956 and got suspended in 1987 on the charge of misappropriation of funds to the tune of Rs. 13.00 lakhs; that after due enquiry, he was
dismissed from service in 1988; that the Petitioner having raised the Industrial Dispute to set aside the dismissal order in I.D. No. 50/90, the
Labour Court by its judgment dated 27.10.1993, dismissed his petition; that on a complaint by the first Respondent, the CCIW CID Police,
Coimbatore, registered a criminal case against him and others for offences punishable under Sections 409 and 477 IPC and on completion of the
investigation, the CCIW Police charge-sheeted the Petitioner and others and the said case having been taken on file by the JM IV, Coimbatore, in
CC. No. 31/90, the same is pending trial.-
Besides the above the counter affidavit would also denounce the other allegations of the writ petition regarding the arbitration proceeding; that
since the Petitioner did not appear before the CSR/Arbitrator, an ex parte award was passed for an amount of Rs. 7,82,467.72 dated 18.6.1990;
that the appellate authority remanded the case back to the first Respondent herein for fresh disposal; that consequent to that, the case was
reopened in ARC No. 88/90-9l and after due opportunity for both parties to be heard, the same is pending; that the second Respondent filed a
claim petition before the Petitioner for the recovery of an amount of Rs. 5,74,280.83 before the first Respondent and the case having been
transferred for arbitration at Tirupur in ARC No. 1/87-88 an award had been passed on 29.3.1989 directing the Petitioner to pay an amount of
Rs. 5,74,280.23 with subsequent interest at 18 per cent per annum.
The further averments of the counter is that an execution petition filed by the second Respondent was taken on file in E.P. No. 56/89-90 on
21.12.1989 to execute the decree dated 29.3.1989 to bring the immovable properties of the Petitioner for sale in accordance with law and the
said properties had already been attached by the Respondent by an order dated 17.7.1987; that the sale was held on 30.6.1992; that the third
Respondent was the auction purchaser of the property and after 30 days of the same, the first Respondent also confirmed the sale by an order
dated 31,7.1992 and not only the sale certificate was issued in favour of the third Respondent, but also possession had been handed over and
now, it is the third Respondent who is in absolute possession and enjoyment of the property.
The further averments of the counter are that the Petitioner failed to observe the conditional order passed in I.A. No. 255 of 1992 on or before
30.6.1992 and the legal effect is that it is as good as no stay order was passed and hence, no question of stay order would arise at all; that the sale
of the Petitioner''s'' property was conducted on 30.6.1992 and the same was confirmed on 31.7.1992 and possession was also delivered to the
court auction purchaser on 12.8.1992 and hence either for the conduct of the sale or for this confirmation, there is absolutely no legal impediment
since the High Court order came to be passed only on 4.8.1992 and, therefore, the allegations of the Petitioner are baseless; that all the
transactions concerned with the sale of the property are genuine, valid and legal; that no notice in I.A.255 of 1995 or 381/1992 of STCA was
served on the first or the second Respondents; that no deposit of Rs. 25,000/- was made on or before 30.6.1992 with the second Respondent in
compliance of the conditions attached to the said order; that in these circumstances, the first Respondent further contending that the allegations are
malafide, motivated, intentional and the averments are baseless, would ultimately pray to dismiss the writ petition with costs.
During arguments, the learned Counsel appearing for the Petitioner would almost confirm the averments of the writ petition and would state
that the order passed by this Court in W.P. 10650 of 1992 dated 4.8.1992 had not been complied with and in violation of the same, the auction
sale had been conducted and the property had been entrusted with the third Respondent, the auction purchaser. But, on the contrary, the learned
Government Advocate (on the writ side) would contend that on enquiry, the Petitioner was found guilty and got dismissed from service in 1988;
that against the dismissal order, he raised an Industrial Dispute in I.D. No. 50 of 1990 and the same got dismissed on 27.10.1993 thereby
confirming the dismissal order of the disciplinary authority; that even prior to the order passed in the I.D. enquiry, this writ petition had been filed
testifying the sale of the property and it is against the sale of the property alone, the Petitioner has come forward to file this writ petition.
The learned Government Advocate would further contend that u/s 90 of the Act, the first Respondent himself had taken a suo motu arbitration
proceeding and an ex parte award was passed on 18.6.1990 arriving at the figures of Rs. 6,73,196.87 with interest at 18 per cent per annum
towards the misappropriated amount. The learned Counsel would conclude his argument that everything regarding the sale of the property had
taken place in accordance with law and neither the order passed by the High Court dated 4.8.1992, nor any other provision of law is against such
sale and hence there is no case for the Petitioner at all.
Learned Counsel appearing for the third Respondent would contend that by an order dated 23.6.1992, SPCA granted conditional stay of
further proceedings that the Petitioner has to deposit R.s.25,000/- with the second Respondent on or before 30.6.1992 being the date of sale and
the other condition that he should deposit a like sum with the second Respondent on or before 21.7.1992; that the Petitioner had not complied
with the said conditions, and only subject to these conditions, the appellate Tribunal granted conditional stay on 30.6.1992; that the third
Respondent is the purchaser in the auction sale and the sale came to be confirmed on 31.7.1992.
The Petitioner''s contention is that he filed as earlier writ petition in W.P. 10650 of 1992 in which, at the admission stage, an order was passed
on 4.8.1992 directing the appellate Tribunal to dispose of the appeal within three months and granting stay of execution till such time. But, before
this order could be made since the appellate Tribunal had completed the process of sale, it had become final and that the entire sale proceedings
were over on 30.6.1992 itself further confirming the sale emd that the sale certificate itself had been issued in favour of the third Respondent on
31.7.1992; that the writ petition had been disposed of with the above directions only on 4.8.1992 to which nothing had been done.
At this juncture, the learned Counsel would cite a judgment delivered in Narinder Chand Hem Raj and Others Vs. Lt. Governor,
Administrator, Union Territory, Himachal Pradesh and Others, wherein it is held as follows:
No court can give a direction to the Government to refrain from enforcing a provision of law. The levy of a tax can only be done by the authority of
law and not by any executive order. Unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not
enforce the law as against a particular person.
The learned Counsel would end up his argument stating that no blanket order not to enforce by a writ of mandamus could be granted.
A clear assessment of the pleadings of parties and having regard to the materials placed on record and upon hearing the learned Counsel for
both parties, what comes to be known is that the Petitioner was working as the manager in the second Respondent Co-operative Society since
1968 and got suspended pending enquiry in the year 1986 on charges of misappropriation of funds and on a thorough enquiry held against him, the
offence having come to be proved, he got dismissed from service in the year 1988. It is the contention of the Petitioner that a criminal case
registered against him on a charge of misappropriation is under investigation and a case filed by him before the appellate authority against his
dismissal from service is also pending. Hence, the Petitioner would contend that Respondents 1 and 2 should not have gone up to the extent of
attaching his property and bringing it for auction sale. It is the further contention of the Petitioner that in spite of a stay order having been granted,
the Respondents had conducted the auction sale and hence, he has come forward to pray to the effect of declaring the sale of the Petitioner''s
property dated 30.6.1992 as null and void.
From the various orders passed by various authorities in this case as on a perusal of the records it comes to be known, that immovable
property of the Petitioner had already been attached on 17.7.1987 itself; that the sale was held on 30.6.1992 and the same got confirmed besides
being the third Respondent who is the auction sale purchaser granted with the sale certificate on 31.7.1992 and against these proceedings, the
Petitioner would come to this Court and get an order of stay on 4.8.1992 within which time, much water had flown and it should be pointed out
that the Petitioner had miserably missed the bus in so far enforcing the order of stay of this Court as against the sale proceedings; that the third
Respondent had already become the owner of the property through the auction sale purchase and later, he had also been formally delivered with
the possession of the property.
Excepting for the sale of the property of the Petitioner bearing door No;20-F3, K.R.N. Koil Street, Anupparpalayam Pudur, Tiruppur, so far
as the service of the Petitioner with the second Respondent or his delinquencies committed therein or the enquiry proceedings taken against him or
his very dismissal from service and such other aspects mentioned in the writ petition are concerned, they are absolutely irrelevant to the context of
the case projected and the prayer embodied in the writ petition.
Therefore, I am able to see no infirmity or inconsistency or illegality in the whole of the proceeding taken on the part of Respondents 1 and 2
either towards attaching the properties of the Petitioner or bringing the same for sale in the public auction or in confirming the sale in favour of the
third Respondent being the successful bidder in the auction held or even delivering possession of the said property. Since I am not able to see any
patent error of law or perversity in approach so far as the sale of the Petitioner''s property in the public auction consequent to its attachment, the
interference sought for by this Court of judicial review by the Petitioner is neither justifiable nor could the same be made in the circumstances of the
case. No other valid or tangible reason also exists in favour of the Petitioner for any relief to be granted and hence it has to be decided that there is
no case for the Petitioner, nor anything substantiated before this Court much less in a valid and convincing manner thus warranting interference of
this Court into the sale of the property of the Petitioner by Respondents 1 and 2.
In result, the writ petition fails and the same is dismissed.
Consequently, connected WMP is dismissed. No costs. VCS.