Dismissed

B. Nanjundan @ Babu v. The Deputy Registrar of co-operative

Madras HC12 Dec 2023WP/4177/2023

Case brief

AI extract

What is this about?

The single-judge High Court dismissed two writ petitions filed to quash a surcharge order and lift conditional attachments against cooperative society directors. The Court held that since an effective alternative remedy existed under the Tamil Nadu Co-operative Societies Act, the writ petition could not be entertained to adjudicate disputed questions of fact.

What did the court decide?

The W.P. Nos. 4177 and 4182 of 2023 were dismissed; connected M.P.s were closed. No costs.

B. Nanjundan @ Babu Vs The Deputy Registrar… — Pension and Retirement Benefits | Madras HC (2023)

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W.P. Nos. 4177 and 4182 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 12.12.2023

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CORAM

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THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU

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W.P. Nos. 4177 and 4182 of 2023 and W.M.P. Nos. 4214 and 4218 of 2023

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B.Nanjundan @ Babu … Petitioner in W.P. No. 4177 of 2023 K.Anbazhagan … Petitioner in W.P. No. 4182 of 2023

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-vs-

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The Deputy Registrar of Co-operative Societies, Krishnagiri Circle, Krishnagiri.

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K.K.45, Chapparthi Primary Agricultural Co-operative Credit Society, Rep. by its Administrator, Banagamutlu Post, Krishnagiri Taluk and District.

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The Sub-Registrar, Kaveripattinam, Krishnagiri District. ... Respondents

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Prayer in W.P. No. 4177 of 2023:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorarified Mandamus, calling for the records of the surcharge order passed by the First Respondent in S.C. No. 03 of 2020 sa.pa dated 23.08.2021 quash the same so as the Petitioner is concerned and consequently direct the First Respondent to raise the order of conditional attachment passed in S. Nos. 564/2B, 798/1B,

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https://www.mhc.tn.gov.in/judis

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W.P. Nos. 4177 and 4182 of 2023

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799/1, 801/3, 802/4, 802/6, 803/7, 904/12, 804/9, 803/4 and 804/4 at Chapparti Village, Krishnagiri Taluk & District.

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Prayer in W.P. No. 4182 of 2023:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorarified Mandamus, calling for the records of the surcharge order passed by the First Respondent in S.C. No. 03 of 2020 sa.pa dated 23.08.2021 quash the same so as the Petitioner is concerned and consequently direct the First Respondent to raise the order of conditional attachment passed in S. Nos. 154/2, 21/2A2, 84/1A and 869/1B at Chapparti Village, Krishnagiri Taluk & District.

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For Petitioner : Mr. M.S.Palaniswamy (in both W.P.s) For Respondents : Mr. U.Baranidharan, (in both W.P.s) Additional Government Pleader (for R1 & R3) Mr. C.Harsha Raj (for R2)

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C O M M O N O R D E R

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Heard Mr. M.S.Palaniswamy, Learned Counsel for the Petitioners, Mr. U.Baranidharan, Learned Additional Government Pleader appearing for the First and Third Respondents and Mr. C.Harsha Raj, Learned Counsel for the Second Respondent and perused the materials placed on record, apart from the pleadings of the parties.

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W.P. Nos. 4177 and 4182 of 2023

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The Petitioners have filed these Writ Petitions challenging the Order in S.C. No. 3 of 2020 Sapa dated 23.08.2021 passed by the First Respondent in surcharge proceedings fastening liability on them and certain persons, who are the Board of Directors of the Co-operative Society of the Second Respondent in the exercise of powers under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as 'the TNCS Act' for short), against which the Petitioners are entitled to prefer appeal under Section 152 of the TNCS Act before the Special Tribunal for Co-operative Cases, which has also been empowered to condone delay in filing the same after the prescribed period of limitation has expired, if sufficient cause is made out.

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It must, at once, be emphasized that the Hon'ble Supreme Court of India in Assistant Collector of Central Excise -vs- Dunlop India Limited [(1985) 1 SCC 260] has precisely explained the legal position relating to the exercise of discretionary powers under writ jurisdiction when an alternative remedy exists, in the following words:-

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"3. Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations

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W.P. Nos. 4177 and 4182 of 2023

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as for instance where the very vires of the statute is in question or

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where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.”

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In Nivedita Sharma -vs- Cellular Operators Association of India [(2011) 14 SCC 337], adverting to the the previous decisions with regard to the rule of self-restraint when an alternative remedy is available to the aggrieved person, the Hon'ble Supreme Court of India has emphasized that when a statutory forum is created by law for redressal of grievance, a Writ Petition should not be ordinarily entertained ignoring that statutory dispensation. Further, the law has been restated by the Hon'ble Supreme Court of India in Radha Krishan

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W.P. Nos. 4177 and 4182 of 2023

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Industries -vs- State of Himachal Pradesh [(2021) 6 SCC 771] as extracted

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below:-

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“27.1. The power under Article 226 of the Constitution to

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issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

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27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

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27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

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27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by

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law.

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W.P. Nos. 4177 and 4182 of 2023

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27.5.

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27.5. When a right is created by a statute, which itself

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prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

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27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

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In such circumstances, the Petitioners have not been impeded from canvassing what is sought to be agitated in these Writ Petitions in the aforesaid statutory remedy and there is no acceptable explanation from the Petitioners for not having availed it.

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In the light of the said legal position, this Court is not inclined to delve into the merits of the controversy involved touching upon disputed questions of fact for effectual and complete adjudication of the matter by entertaining these

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W.P. Nos. 4177 and 4182 of 2023

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Writ Petitions in the exercise of its discretionary powers following summary

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procedure under Article 226 of the Constitution.

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In the result, these Writ Petitions are dismissed. Consequently, the