Madras High Court
P.Shanmugam vs The Deputy Registrar Of ... on 27 October, 2022
W.A.Nos.1867 of 2021 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2022
CORAM
THE HONOURABLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.A.Nos.1867 and 1917 of 2021
P.Shanmugam .. Appellant in W.A.No.1867/21
Tmt.K.Maheswari .. Appellant in W.A.No.1917/21
Versus
1.The Deputy Registrar of Cooperative Societies,
Omalur circle,
Omalur, Salem District.
2.The Sale Officer,
O/o. The Deputy Registrar of Cooperative societies,
Omalur circle,
Omalur, Salem District. .. Respondents 1 and 2 in both appeals
3.The President,
S.777, Nangavalli Primary Agricultural
Cooperative Credit Society Limited,
Nangavalli and Post,
Salem – 636 454. .. 3rd respondents in W.A.No.1867/21
4.The Administrator,
S.777, Nangavalli Primary Agricultural
Cooperative Credit Society Limited,
Nangavalli and Post,
Salem – 636 454. .. 3rd respondents in W.A.No.1917/21
5.The Sub-Registrar of Registration,
Jalakandapuram – 636 501.
Salem District. .. 4th respondents in both appeals
https://www.mhc.tn.gov.in/judis
W.A.Nos.1867 of 2021 etc.
Common Prayer: Writ Appeals have been filed under Clause 15 of Letters Patent against the
order passed by the learned Single Judge in W.P.Nos.12580 and 18492 of 2020, dated
01.07.2021 respectively.
For Appellants : Mr.S.Kamadevan
For R1, R2 & R4 : Mrs.R.Anitha, Spl.GP
COMMON JUDGMENT
(Judgment of the Court was delivered by The Hon'ble Acting Chief Justice)
These writ appeals are directed against the impugned orders passed by the learned
Single Judge in W.P.No.12580 of 2020, dated 01.07.2021 and W.P.No.18492 of 2020,
dated 01.07.2021.
2. Since the issues involved in both writ appeals are one and the same, they are
disposed of by this common order. For better appreciation, facts involved in W.A.No.1867 of
2021 are stated below:-
The writ petitioner was one of the elected Board of Directors of the third respondent
society and while he was functioning as President of the third respondent society, a notice
dated 13.07.2017 was issued calling for an explanation as to why surcharge proceeding
should not be initiated. Thereafter, the first respondent, without complying with the statutory
procedures as adumbrated under the Tamil Nadu Cooperative Societies Act, 1983 (in short
“the Act”), passed the surcharge award dated 09.07.2018 under Section 87 of the Act
against the writ petitioner and other employees of the society including the writ petitioner in
https://www.mhc.tn.gov.in/judis
W.A.Nos.1867 of 2021 etc.
W.A.No.1917 of 2021. Aggrieved by the same, he filed an appeal in C.M.A.No.28 of 2019
before the Principal District Judge, Salem, and the same is pending now. It is further averred
that pending the said appeal, the respondents have passed an order of attachment under
Section 167 of the Act on 07.11.2016 and subsequently, the Sale Officer, Office of the
Deputy Registrar of Cooperative Societies, Omalur, Salem/second respondent herein issued
auction notice dated 28.08.2020. Challenging the same, the writ petitioners filed
W.P.Nos.12580 and 18492 of 2020, whereby, learned Single Judge, by order dated
01.07.2021, while disposing of the said writ petitions, gave liberty to challenge the
impugned orders in the manner known to law as he has a remedy before the Sale Officer
under Section 135 of the Tamil Nadu Cooperative Societies Rules, 1988. Aggrieved by the
same, they have filed the present writ appeals.
3. Mr.S.Kamadevan, learned counsel for the appellants, submitted that after the
enquiry under Section 81 was initiated on 01.11.2016, a final report was filed on
09.05.2017 and thereafter, based on the said report, surcharge proceedings were initiated on
13.07.2017 and subsequently, award also has been passed on 09.07.2018 against the writ
petitioners. It is further contended that the first respondent passed an order of conditional
attachment dated 07.11.2016 without giving any notice or opportunity of personal hearing to
the writ petitioners, therefore, as the impugned order of attachment has been passed without
giving any notice, the same is liable to be held as violation of principles of natural justice.
Besides, mandatory procedures adumbrated under Section 167 of the Act also were given a
go-by, for, under Section 167 of the Act, on the application of a registered society, when the
https://www.mhc.tn.gov.in/judis
W.A.Nos.1867 of 2021 etc.
inquiry ordered under Section 87 is pending and if there is any apprehension that any party is
about to dispose of or remove from the local limit 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, the
Registrar by passing an order direct the party or the person to furnish security initially. In the
event of failure to furnish the surety, the order of attachment order could be passed. But, in
the present case, no notice is issued to furnish the security and no statutory procedures have
been followed as adumbrated under the Act. Thus, the impugned order passed by the learned
Single Judge directing the parties to avail the alternative remedy is liable to be interfered
with, he pleaded.
4. Mrs.R.Anitha, learned Special Government Pleader, appearing for the respondents
1, 2 and 4, fairly stated that since the mandatory conditions adumbrated under Section 167
of the Act, namely, giving notice to the appellants, have not been followed, in view the fact
that the award under Section 87 of the Act has been passed on 09.07.2018, now, the
authorities have to follow the further condition mentioned under Section 143 of the Act by
giving notice and providing an opportunity of personal hearing to the parties concerned.
5. Therefore, recording the above said submission of the learned Special Government
Pleader, the writ petitioners are directed to file an application under Section 143 of the Act
within a period of two weeks from the date of receipt of a copy of this order. On receipt of
such application, the authority concerned is directed to consider the same after affording an
https://www.mhc.tn.gov.in/judis
W.A.Nos.1867 of 2021 etc.
opportunity of personal hearing to the parties and pass orders in accordance with Section 143
of the Act, within a period of three months thereafter. It is made clear that in the
interregnum, the writ petitioners shall not alienate or encumber or create third party rights in
respect of the immovable properties. With these directions, the writ appeals are allowed and
the impugned orders passed by the learned Single Judge are set aside. No Costs.
(T.R., ACJ.) (D.K.K., J.)
27.10.2022
rkm
Index:yes/no
Speaking/non-speaking
To
1.The Deputy Registrar of Cooperative Societies,
Omalur circle,
Omalur, Salem District.
2.The Sale Officer,
O/o. The Deputy Registrar of Cooperative societies,
Omalur circle,
Omalur, Salem District.
3.The President,
S.777, Nangavalli Primary Agricultural
Cooperative Credit Society Limited,
Nangavalli and Post,
Salem – 636 454.
4.The Administrator,
S.777, Nangavalli Primary Agricultural
Cooperative Credit Society Limited,
Nangavalli and Post,
Salem – 636 454.
5.The Sub-Registrar of Registration,
Jalakandapuram – 636 501.
Salem District.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1867 of 2021 etc.
THE HON'BLE ACTING CHIEF JUSTICE
and
D.KRISHNAKUMAR, J.
rkm
W.A.Nos.1867 and 1917 of 2021
27.10.2022
https://www.mhc.tn.gov.in/judis
