S. Saritha vs Deputy Registrar Of Co-operative Societies & Others

Dr. G.Jayachandran, J

Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents 1 and 2.

The short point involved in this case is that the surcharge proceedings initiated against the husband of the petitioner, who is also arrayed as one of the respondent in this writ petition. The second respondent Co-operative Thrift and Credit Society has attached the property of the petitioner.

The contention of the petitioner is that her property is noway concerned with the affairs of the third respondent and her property cannot be attached and proceeded.

The learned Special Government Pleader for the respondents 1 and 2 would submit that as per the dictum of the Division Bench of this Court an identical situations in Balaraman and others Vs. Deputy Registrar, Co-operative Societies, the remedy available to the petitioner is to file an appeal before high powered Tribunal, which has the trappings of a civil Court. Bypassing the said Tribunal, writ petition cannot be filed. The relevant portion of the order passed by the Division Bench of this Court is extracted below:-

"5.Therefore, the remedy of the writ petitioners/appellants was to file an appeal before the said high powered Tribunal, which has the trappings of a civil Court. Bypassing the said Tribunal, this writ petition has been filed, which, in our view is totally mis-conceived. It is not only the question of availing the statutory remedy. Here, what is in issue is where the statute is specific and creates a special right which creates a remedy whether for enforcing the said rights, such remedy has to be invoked. Here, the rights and remedies have been granted unto flato."

In this case, the remedy is available to the petitioner herein under Section 152(1) of the Tamil Nadu Co-operative Societies Act and not under Article 226 of the Constitution of India.

The petitioner herein is give liberty to approach the appellate authority under Section 152(1) of the said Act within 30 days from today. Till such time, the petitioner shall not create any encumbrance over the property. Similarly the respondent shall not take any coercive steps.

Accordingly, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.