A.Balaraman v. The Deputy Registrar of Co-operative Societies, Cheyyar, Thiruvannamalai District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11..12..2008CORAMHON’BLE Mr.A.K.GANGULY, CHIEF JUSTICEandHON’BLE Mr.JUSTICE K.CHANDRUW.A.No.1101 of 2008andM.P.Nos.1 and 3 of 2008-----------1. A.Balaraman 2. B.Thara3. B.Manikandan4. B.Meenakshi..Appellants/Petitioners Vs. 1. The Deputy Registrar of Co-operative Societies, Cheyyar, Thiruvannamalai District. 2. B.Ramesh3. V.C.96, Cheyyar Division Revenue and Rural Development Department Employees’ Co-operative Thrift and Credit Society Ltd., Thiruvannamalai District, Rep. by its Special Officer. (R3 is impleaded as per order dated 20.11.2008 passed in M.P.No.2 of 2008)..Respondents/RespondentsPRAYER: Writ Appeal filed under Clause 15 of theLetters Patent against the order of the learned singleJudge dated 01.09.2008 passed in W.P.No.11428 of 2008 onthe file of this Court. WP No.11428/2008: Writ Petition filed under Article 226of the constitution of India for the relief of issuanceof writ of Certiorarified Mandamus to call for theentire records culminating in the issue of impugnedproceedings in CET No.1/2008-2009/SC No.1/2008-2009, dt.10.4.2008, on the file of the 1st respondent, and quashthe same as without jurisdiction, against the principlesof natural justice and tainted with malafides andconsequently forbear the 1st respondent or anyone https://hcservices.ecourts.gov.in/hcservices/ claiming for and on his behalf from in any mannerproceedings against the petitioners for the allegedmisfeasance or malfeasance as against the 2ndrespondent.------------- For Appellants :: Mr.T.S.RajamohanFor Respondent - 1 :: Mr.J.Raja Kalifulla, Govt. Pleader For Respondent – 2:: Mr.S.SubramanianFor Respondent – 3 :: Mr.M.S.Palanisamy ------------- J U D G M E N T (Judgment of the Court was delivered by The Hon’ble ChiefJustice) Heard learned counsel appearing for the writ petitioners, whoare appellants herein, and learned counsel appearing for therespondents. 2. The subject matter of challenge in this writ appeal is theorder dated 01.09.2008 passed by the learned Judge of the writCourt. Before the learned Judge of the writ Court, the proceedingsdated 10.04.2008 initiated by the first respondent was challenged.Those proceedings are passed under Section 167 of the Tamil NaduCo-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) readwith Rule 140 of the Co-operative Societies Rules, 1988. In thesaid proceedings, the first respondent passed an order prohibitingthe writ petitioners/appellants from transferring or exchangingthe properties belonging to them by way of sale, gift orotherwise. The said order has been passed against the nearrelatives of the second respondent, who is the former Secretary ofV.C.96, Cheyyar Division Revenue Department and Rural DevelopmentDepartment Employees Co-operative Thrift and Credit Society,Vandavasi, third respondent herein. It was contended that theproperties of the appellants are in no way connected with theliability invoked on the second respondent.3. The main grievance of the writ petitioners before the writCourt was that the petitioners are no way connected with thedispute in question since they are neither the present members northe past members as enumerated under Section 90 of the said Act.Since, the petitioners did not come under the category of thepeople, who are enumerated in Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as “theAct”), the petitioners cannot file an appeal under Section 152 ofthe Act. This contention was sought to be denied by the learnedcounsel for the third respondent, who submits that the proceedingswas initiated against the second respondent under Section 87 of https://hcservices.ecourts.gov.in/hcservices/ the said Act and it is surcharge proceedings and not referable toSection 90 of the said Act. 4. Learned Judge has not accepted the submissions made by thewrit petitioners, and in our view, rightly so. The appellateprovision under Section 152 of the said Act has been very widelyworded. The said right of appeal has been given from orders passedunder various provisions. The appellate provision is verycomprehensive in nature. Section 152(1) of the said Act clearlysays that any person aggrieved by any decision or award passed ororder made or proceedings taken under sub-Section (1) of Section87, sub-Section (2), sub-Section (3) or sub-Section (4) of Section90, Section 118, Section 119, Section 143, Section 144 or Section167 may appeal to the Tribunal. The meaning of the word “any”means “all”. So, any person who is aggrieved by any of theproceedings mentioned in Section 152(1)(a) of the said Act, canfile an appeal. The said appeal is to be heard and disposed of bythe Co-operative Tribunal, which consists of a senior DistrictJudge. 5. Therefore, the remedy of the writ petitioners/appellantswas to file an appeal before the said high powered Tribunal, whichhas the trappings of a civil Court. Bypassing the said Tribunal,this writ petition has been filed, which, in our view is totallymis-conceived. It is not only the question of availing thestatutory remedy. Here, what is in issue is where the statute isspecific and creates a special right which creates a remedywhether for enforcing the said rights, such remedy has to beinvoked. Here, the rights and remedies have been granted untoflato. 6. Such principles have been explained by the Hon’ble SupremeCourt in the case of Titaghur Paper Mills Co. Ltd. Vs. State ofOrissa (AIR 1983 SC 603) and it is held as follows:- “It is now well recognized that where a right orliability is created by a statute which gives a specialremedy for enforcing it, the remedy provided by thatstatute only must be availed of. This rule was statedwith great clarity by Willes, J. in Wolverhampton NewWaterworks Co. V. Hawkesford (1859) 6 CBNS 336 at p.356in the following passage:‘ There are three classes of cases in which aliability may be established founded upon statute…….. But there is a third class, viz. where aliability not existing at common law is created bya statute which at the same time gives a specialand particular remedy for enforcing it…… the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The form https://hcservices.ecourts.gov.in/hcservices/ given by the statute must be adopted and adheredto.’ The rule laid down in this passage was approved by theHouse of Lords in Neville V. London Express NewspapersLtd., 1919 AC 368 and has been reaffirmed by the PrivyCouncil in Attorney-General of Trinidad and Tobago V.Gordon Grant & Co., 1935 AC 532 and Secretary of StateV.Mask & Co., AIR 1940 PC 105. It has also been held tobe equally applicable to enforcement of rights, and hasbeen followed by this Court throughout. The High Courtwas therefore justified in dismissing the writ petitionsin limine.”7. In view of the well-settled legal principle, it is notpossible for this Court to take a different view and go againstthe order passed by the learned Judge of the writ Court. We do notfind any error in the judgment of the learned Judge of the writCourt. We make it clear that it is open to the petitioners to filean appeal before the Appellate Tribunal. Since, the Tribunal alsohas power to consider the prayer for interim protection; it isopen to the petitioners to ask for such protection. However, we donot say anything on the merits of the case of the petitioners. Wealso make it clear that if the Appellate Authority is approachedwithin ten days from the receipt of a copy of this order, theAppellate Authority shall entertain the appeal on file withoutinsisting on the question of limitation since the matter was keptpending in this Court. With these observations, the writ appeal isdisposed of. We have not decided anything on merit. All questionsare kept open. Consequently, connected miscellaneous petitions areclosed. However, there shall be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa/smCopy to:-1. The Deputy Registrar of Co-operative Societies, Cheyyar, Thiruvannamalai District. https://hcservices.ecourts.gov.in/hcservices/

2. The Special Officer, V.C.96, Cheyyar Division Revenue and Rural Development Department Employees’ Co-operative Thrift and Credit Society Ltd.,Vandavasi, Thiruvannamalai District.+1cc to Mr.T.S.Rajamohan, Advocate Sr 69725+1cc to Mr.M.S.Palani Swamy, Advocate Sr 69648+1cc to Govt. Pleader Sr 69505SR (CO)km/6.1.2009 W.A.No.1101 of 2008