Ganesan R v. The Regional Deputy Registrar (Housing)
1 W.P.(MD)NO.1355 OF 2023 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.03.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P.(MD)No.1355 of 2023 AND W.M.P.(MD)No.1240 of 2023 R.Ganesan ... Petitioner Vs.
1. The Regional Deputy Registrar (Housing), Samathu Palli Street, Kajamalai Post, Trichy.
2. The Secretary, M.M.124, Karur Cooperative Housing Society, Rajiv Gandhi Nagar, Vengamedu, Karur - 639 006.
3. The Sub Registrar(Joint I), O/o.Sub Registrar, Collector Office Campus, Thanthondrimalai, Karur - 639 005.
... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the 1st respondent through proceedings in C.E.P.No. 1/2016-2017/ Na.Ka. No.532/2016/Sa.Pa dated 28.06.2016 and quash the same and consequently direct the 3rd respondent to delete the encumbrance made by the 1st respondent against the petitioner's property bearing Document No. 21/2016 on the file of the Sub Registrar (Joint I), O/o. Sub Registrar, Collector Office Campus, Thanthondrimalai, Karur 639 005. For Petitioner : Mr.M.Sricharan Rangarajan, Senior Counsel, for Mr.C.M.Mari Chelliah Prabhu.
For R-1 & R-2 : Mr.M.Senthil Ayyanar, Government Advocate.
For R-3 : Mr.C.Satheesh, Government Advocate.
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2 W.P.(MD)NO.1355 OF 2023
O R D E R
Heard the learned Senior counsel appearing for the writ petitioner and the learned Government Advocate appearing for respondents 1 and 2 and the learned Government Advocate appearing for the third respondent.
2. The petitioner challenges the impugned order of attachment passed by the first respondent under Section 167 of the Tamil Nadu Cooperative Societies Act, 1983. The basic facts are beyond dispute. The petitioner's son Prabhu functioned as President of the second respondent Society during the period 2013-2018. Allegations were made regarding the functioning of the Society during that period. An enquiry under Section 81 of the Act was ordered. The enquiry officer has since submitted his enquiry report.
3. It is beyond dispute that the petitioner was nowhere arrayed as a delinquent. He was not concerned with the affairs of the second respondent Society. Only his son was the President during the aforesaid period. As rightly pointed out by the learned Senior counsel appearing for the petitioner, even the enquiry report under Section 81 of the Act does not indict even the petitioner's son in any manner. 2/8
3 W.P.(MD)NO.1355 OF 2023
4. I fail to understand as to how the attachment order under Section 167 of the Act could have been made. Section 167(1) of the Act reads as follows:- "167. Furnishing of security and attachment of property.
4 W.P.(MD)NO.1355 OF 2023 of any decision or order aforesaid."
In this case, the surcharge proceedings have not been initiated till date. There is nothing on record to show that the petitioner's property is in any way linked to the funds siphoned of during the aforesaid period. It is pointed out by the learned Senior counsel for the petitioner that the petitioner purchased four items of property during the years 2006, 2013 and 2014.
5. My attention is drawn to the decision reported in 2009 (6) CTC 765 (R.Karuppusamy V. The Regional Manager, Tamil Nadu Cooperative Marketing Federation, Coimbatore and Others). Paragraph No.23 of the said order reads as follows: "23. Now, it is not in dispute that the lower Appellate Court came to the conclusion that Sec.90 proceedings were not properly conducted by the Deputy Registrar and the principles of natural justice were flouted. Therefore, the matter was remanded to the Deputy Registrar for fresh disposal. If that being so, I am of the considered view that by way of interim attachment, the property of the revision petitioner in C.R.P.No.721 of 2008 could not be attached and the same is to be released. Unless and until it is proved that the revision petitioner's property was acquired only by using the money siphoned of from the Federation, it is not possible to attach the property of the 4/8
5 W.P.(MD)NO.1355 OF 2023 revision petitioner in C.R.P.No.721 of 2008, the wife of the transport Contractor as the same is standing in her name and not in the name of her husband/the transport Contractor. Therefore, while upholding the attachment of the Deputy Registrar, attaching the property standing in the name of the revision petitioner in C.R.P.Nos.720 and 722 of 2008, I am setting aside the orders of the Deputy Registrar and the lower Appellate Court, in so far as the attaching the property of the wife/the revision petitioner in C.R.P.No.721 of 2008."
Yet another decision on the point is V.Sundaram V. Registrar Cooperative Societies (2009 SCC OnLine Mad 61). Paragraph No.6 of the aforesaid decision reads as follows:- " 6. A plain reading of Section 167 of the Tamil Nadu Cooperative Societies Act would make it clear that an order of attachment before judgment under Section 167(1) of the Act or conditional attachment under Section 167(2) of the Act could be made only in cases where there is already a case pending on the file of the Deputy Registrar either under Section 87 or under Section 90 or under Section 130 or under Section 139 of the Tamil nadu Cooperative Societies Act. Without satisfying the said condition precedent, it is not at all available for the Deputy Registrar to issue any order under Section 167 of the above said Act. Here, the proceeding Number itself is Cooperative Executive petition No. 1/2008. It is contended that the 5/8
6 W.P.(MD)NO.1355 OF 2023 petitioner has paid fees prescribed under the Tamil Nadu Cooperative Rules for Execution of a decree. I am at a loss to understand as to how an execution petition could be entertained by the Deputy Registrar when there is no award at all capable of being executed. In that view of the matter, I have to necessarily hold that the impugned order is without jurisdiction and therefore, the same is liable to be quashed."
6. In this case, the requirements set out in Section 167 of the Act have not at all been fulfilled. There is nothing on record to connect the money siphoned of from the Society funds with the attached property. The impugned order is patently arbitrary, illegal and without jurisdiction. The order impugned in this writ petition is set aside. This writ petition stands allowed. I make it clear that the benefit of this order will enure in favour of the petitioner's properties alone. No costs. Consequently, connected miscellaneous petition is closed.
04.03.2024 NCC : Yes / No Index : Yes / No Internet : Yes/ No PMU 6/8
7 W.P.(MD)NO.1355 OF 2023 To:
1. The Regional Deputy Registrar (Housing), Samathu Palli Street, Kajamalai Post, Trichy.
2. The Secretary, M.M.124, Karur Cooperative Housing Society, Rajiv Gandhi Nagar, Vengamedu, Karur - 639 006.
3. The Sub Registrar(Joint I), O/o.Sub Registrar, Collector Office Campus, Thanthondrimalai, Karur - 639 005.
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8 W.P.(MD)NO.1355 OF 2023 G.R.SWAMINATHAN,J.
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