Madras High Court
A.Balaraman vs The Deputy Registrar Of Co-Operative ... on 11 December, 2008
Equivalent citations: AIR 2009 (NOC) 1228 (MAD.)
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11..12..2008
CORAM
HONBLE Mr.A.K.GANGULY, CHIEF JUSTICE
and
HONBLE Mr.JUSTICE K.CHANDRU
W.A.No.1101 of 2008
and
M.P.Nos.1 and 3 of 2008
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1. A.Balaraman
2. B.Thara
3. B.Manikandan
4. B.Meenakshi ..Appellants.
Vs.
1. The Deputy Registrar of Co-operative Societies,
Cheyyar, Thiruvannamalai District.
2. B.Ramesh
3. 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.
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 01.09.2008 passed in W.P.No.11428 of 2008 on the file of this Court.
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For Appellants :: Mr.T.S.Rajamohan
For Respondent - 1 :: Mr.J.Raja Kalifulla, Govt. Pleader
For Respondent 2 :: Mr.S.Subramanian
For Respondent 3 :: Mr.M.S.Palanisamy
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J U D G M E N T
(Judgment of the Court was delivered by The Honble Chief Justice) Heard learned counsel appearing for the writ petitioners, who are appellants herein, and learned counsel appearing for the respondents.
2. The subject matter of challenge in this writ appeal is the order dated 01.09.2008 passed by the learned Judge of the writ Court. Before the learned Judge of the writ Court, the proceedings dated 10.04.2008 initiated by the first respondent was challenged. Those proceedings are passed under Section 167 of the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) read with Rule 140 of the Co-operative Societies Rules, 1988. In the said proceedings, the first respondent passed an order prohibiting the writ petitioners/appellants from transferring or exchanging the properties belonging to them by way of sale, gift or otherwise. The said order has been passed against the near relatives of the second respondent, who is the former Secretary of V.C.96, Cheyyar Division Revenue Department and Rural Development Department Employees Co-operative Thrift and Credit Society, Vandavasi, third respondent herein. It was contended that the properties of the appellants are in no way connected with the liability invoked on the second respondent.
3. The main grievance of the writ petitioners before the writ Court was that the petitioners are no way connected with the dispute in question since they are neither the present members nor the past members as enumerated under Section 90 of the said Act. Since, the petitioners did not come under the category of the people, who are enumerated in Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as the Act), the petitioners cannot file an appeal under Section 152 of the Act. This contention was sought to be denied by the learned counsel for the third respondent, who submits that the proceedings was initiated against the second respondent under Section 87 of the said Act and it is surcharge proceedings and not referable to Section 90 of the said Act.
4. Learned Judge has not accepted the submissions made by the writ petitioners, and in our view, rightly so. The appellate provision under Section 152 of the said Act has been very widely worded. The said right of appeal has been given from orders passed under various provisions. The appellate provision is very comprehensive in nature. Section 152(1) of the said Act clearly says that any person aggrieved by any decision or award passed or order made or proceedings taken under sub-Section (1) of Section 87, sub-Section (2), sub-Section (3) or sub-Section (4) of Section 90, Section 118, Section 119, Section 143, Section 144 or Section 167 may appeal to the Tribunal. The meaning of the word any means all. So, any person who is aggrieved by any of the proceedings mentioned in Section 152(1)(a) of the said Act, can file an appeal. The said appeal is to be heard and disposed of by the Co-operative Tribunal, which consists of a senior District Judge.
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.
6. Such principles have been explained by the Honble Supreme Court in the case of Titaghur Paper Mills Co. Ltd. Vs. State of Orissa (AIR 1983 SC 603) and it is held as follows:-
It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. V. Hawkesford (1859) 6 CBNS 336 at p.356 in the following passage:
There are three classes of cases in which a liability may be established founded upon statute.. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville V. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago V. Gordon Grant & Co., 1935 AC 532 and Secretary of State V.Mask & Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.
7. In view of the well-settled legal principle, it is not possible for this Court to take a different view and go against the order passed by the learned Judge of the writ Court. We do not find any error in the judgment of the learned Judge of the writ Court. We make it clear that it is open to the petitioners to file an appeal before the Appellate Tribunal. Since, the Tribunal also has power to consider the prayer for interim protection; it is open to the petitioners to ask for such protection. However, we do not say anything on the merits of the case of the petitioners. We also make it clear that if the Appellate Authority is approached within ten days from the receipt of a copy of this order, the Appellate Authority shall entertain the appeal on file without insisting on the question of limitation since the matter was kept pending in this Court. With these observations, the writ appeal is disposed of. We have not decided anything on merit. All questions are kept open. Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs.
ssa/sm To
1. The Deputy Registrar of Co-operative Societies, Cheyyar, Thiruvannamalai District.
2. 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