IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.1.2009 CORAM THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.No.24841 of 2008 K.V.Chakravarthy .. Petitioner vs. 1. The State of Tamil Nadu rep. by its Secretary Co-operation Food & Consumer Protection Department Fort St. George Chennai-600 009 2. The Registrar (Housing)/Additional Registrar, Registrar of the Co-operative Societies (Housing) Adyar, Chennai-600 020 3. Joint Registrar of Co-operative Societies (Inspection Cell) Office of the Registrar of Co-operatives (Housing) Adyar, Chennai-600 020 4. Deputy Registrar of Co-operative Societies (Housing) Coimbatore Region Coimbatore-641 018 5. The Secretary (Incharge) Coimbatore Co-operatives Housing Society Gopalapuram Coimbatore-641 015 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the first respondent in his proceedings dated 10.9.2008 bearing D.O. Letter No.7544/CE2/2008-11 and quash the same. For petitioner: M/s.P.T.Asha for M/s.Sarvabhauman Associates For Respondents: Mr.P.Muthukumar for R1 to R3 M/s.C.K.Vishnupriya Mr.P.Vasughi for R4 O R D E R The petitioner has challenged the interdepartmental correspondence between the Secretary to Government, Cooperation, Food and Consumer Protection Department, Secretariat, Chennai, addressed to the Additional Registrar of Cooperative Societies/Registrar of Cooperative Societies (Housing), Chennai. 2. A perusal of the impugned letter reveals that a detailed inquiry into the allegations of malpractice and misappropriation of funds of the Coimbatore Cooperative Housing Society Limited, Gopalapuram, Coimbatore, in the purchase of lands at Perur Chettiyapalayam was inquired into by the Directorate of Vigilance and Anti Corruption and that the inquiry revealed criminal misconduct committed by A.O-2, Thiru R.Sukumar, formerly Deputy Registrar (Housing), Salem, Additional charge of Coimbatore, (now under suspension) A.O.-3 Thiru S.Nachimuthu, formerly Deputy Registrar (Housing), Coimbatore, A.O-4 Thiru K.V.Chakravarthi, formerly Special Officer, Coimbatore Cooperative Housing Society Ltd Coimbatore, A.O-6, Thiru R.Venkatesan, formerly Secretary, Coimbatore Cooperative Housing Society Ltd. Coimbatore, A.O.-7, Thiru B.Ravindran, formerly Cooperative Sub Registrar/Special Officer, C.C.H.S.Ltd. Coimbatore along with A.O.9, Thiru S.K.Senthil Kumar, Gee Yess Iswarya Real Estates Pvt. Ltd. and A.O.10 Thiru P.R.Subbaiyan, formerly B.D.O.(Panchayats), Thondamuthur, Coimbatore District and that they are alleged to have caused loss to the society. The petitioner is arrayed as A-4 in the enquiry conducted by the Vigilance and Anti Corruption Department. As the offences committed by the accused do not come under the purview of Directorate of Vigilance and Anti Corruption and the involved misappropriation, breach of trust, corrupt practice and mismanagement in relation to the said society, the Directorate of Vigilance and Anti Corruption has recommended to entrust this case to a specialized agency i.e. CCIW Police for registration of a criminal case against the above mentioned officers. 3. Accepting the recommendations of the Vigilance and Anti Corruption Department, the first respondent has instructed the Deputy Registrar (Housing), Coimbatore, to entrust the subject matter to the Specialised agency viz., C.C.I.W. Police for registration of a criminal case against the above accused officers and send the action taken report to the Government. 4. Besides making submissions on the merits of the case, learned counsel appearing for the petitioner, placing reliance on Section 81 of the Tamil Nadu Cooperative Societies Act, 1983, submitted that unless an inquiry is conducted in accordance with the provisions of the above said Act and the Rules framed thereunder, the respondents have no jurisdiction to refer the matter to C.C.I.W. Police for registration of a criminal case. 5. Learned counsel appearing for the petitioner further submitted that there are no materials to refer the matter to the said specialised agency and that the petitioner was not given opportunity to put forth his case before the Vigilance and Anti Corruption Department, and therefore the impugned letter is violative of the principles of natural justice. 6. Heard the learned counsel appearing for the parties and perused the materials available on record. 7. Section 81 of the Tamil Nadu Cooperative Societies Act, 1983, reads as follows: 81. Inquiry:- (1) The Registrar may, of his own motion and shall, on the application of a majority of the board or of not less than one-third of the members or on the request of the financing bank or of the District Collector, hold an inquiry, or direct some person authorised by him by order in writing in this behalf to hold an inquiry into the construction, working and financial condition of a registered society or any alleged misappropriation, fraudulent retention of any money or property, breach of trust, corrupt practice, or mismanagement in relation to that society or into any particular aspect of the working of that society. (2) The Registrar or the person authorised by him under sub-section (i) shall have the following powers, namely:- (a) He shall at all reasonable times have free access to the books, accounts, documents, securities, cash and other properties belonging to, or in the custody of, the society and may summon any person in possession of, or responsible for the custody of, any such books, accounts, documents, securities, cash or other properties to produce the same at any place at the headquarters of the society or any brach thereof. (b) Where any person summoned under clause (a) fails or refuses to produce any record or property of the registered society as specified in the summons, any Metropolitan Magistrate or any Judicial Magistrate of the First Class in whose jurisdiction the office of such society or the records and properties of such society is or are situated, shall on application by the Registrar, or the person authorised by him under sub-section (i), direct the delivery to the Registrar or such person of the possession of the records and properties of such society: Provided that no such application shall be made by the person authorised under sub-section (1) without the previous sanction of the Registrar. (c) He may seize the books, accounts or documents of the society, if he considers that such seizure is necessary to ensure the safety of such books, accounts or documents or to facilitate his inquiry, and shall give the person from whose custody the books, accounts or documents have been seized a receipt for the same: Provided that the books, accounts or documents seized shall be retained by him only for so long as may be necessary for their examination and for the purpose of inquiry: Provided further that the books, accounts or documents shall not be retained for more than three months at a time except with the permission of the next higher authority. (d) He may summon any person who, he has reason to believe, has knowledge of any of the affairs of the society and may examine such person on oath and may summon any person to produce any books, accounts or documents belonging to him or in his custody if the Registrar, or the person authorised as aforesaid has reason to believe that such books, accounts or documents contain any entry relating to transactions of the society. (e)(i) He may, notwithstanding any rule or by- law specifying the period of notice for a general meeting of the society or for a meeting of the board, require any officer or officers of the society to call a general meeting or a meeting of the board at such time and place at the headquarters of the society or any branch thereof to consider such matters as may be specified by him and the provisions of sub-clauses (i) and (ii) of clause (b) of sub- section (4) of section 32 shall apply to any meeting called under this sub-clause as if it were a meeting called in pursuance of a requisition under clause (a) of sub-section (3) of that section. (ii) If the officer or officers of the society refuses or refuse or fails or fail to call such meeting or if in the opinion of the Registrar there is no board or officer or officers competent under this Act, the rules or the by-laws to call such meeting, or if there be an order of the Registrar or of the Civil Court restraining the board to function, the Registrar or the person authorised by him under sub-section (1) shall have power to call the meeting himself and the provisions of clause (b) of sub- section (4) of section 32 and sub-section (5) of that section shall apply to such meeting as if it were a meeting called under clause (a) of the said sub- section (4). (3) When an inquiry is held under this section, the Registrar shall within such time as may be prescribed communicate the result of the inquiry- (1) in case the Government have subscribed directly to the share capital of the registered society or in case any moneys are due from the registered society either to the Principal State Partnership Fund or to the Subsidiary State Partnership Fund referred to in Chapter VI, to the Government or to any officer appointed by the Government in this behalf; (ii) to the financing bank, if any, to which the society is affiliated; and (iii) to the society concerned. (4) The inquiry shall be completed within a period of three months from the date of ordering the inquiry or such further period or periods not exceeding three months a a time as the next higher authority may permit provided that such extended periods shall not exceed six months in the aggregate. (5) It shall be competent for the Registrar to withdraw any inquiry from the person authorised by him under sub-section (1) and to hold the inquiry himself or entrust it to any other person as he deems fit. (6) The Registrar may, by order in writing, direct the registered society or any officer of the society or its financing bank to take such action as may be specified in the order to remedy, within such time as may be specified therein, the defects, if any disclosed as a result of the inquiry." 8. Scrutiny of the above said does not indicate that an inquiry has to be conducted by the Registrar of Co-operative Societies, Chennai any other competent authority, before referring the matter to the any Specialised agency or Police for registration of a criminal case against the officers for their acts of criminal misconduct. Therefore, the submission of the learned counsel appearing for the petitioner cannot be countenanced. 9. Insofar as the contentions that the petitioner was not provided with sufficient opportunity and that he had not committed any offence, it is open to the petitioner to refute all the allegations before the Specialised agency, or the competent court, if appropriate action is taken pursuant to the directions of the first respondent. Prima facie, the department of Vigilance and Anti Corruption has found that the petitioner and others have committed certain offences including misappropriation, breach of trust, corrupt practice and mismanagement, in relation to the said society, and this Court would not delve into the merits of the case, as it amount to conducting a pre-trial. Proceedings under Article 226 of the Constitution of India cannot be converted into examination of factual details, when investigation is yet to be taken up by the specialised agency. Therefore, the writ petition filed to scuttle the prosecution to be initiated against the petitioner and others is liable to be dismissed and accordingly dismissed. The interim order granted earlier stands vacated. As regards the request of the petitioner for a direction to furnish a copy of the report of the Vigilance and Anti Corruption Department, dated 20.8.2007, it is open to the petitioner to make a representation to the Directorate of Vigilance and Anti Corruption, and if any representation is made, the said authority shall consider the same and pass appropriate orders. Consequently, connected M.P.No.2 of 2008 is also dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Secretary Co-operation Food & Consumer Protection Department The State of Tamil Nadu Fort St. George Chennai-600 009 2. The Registrar (Housing)/Additional Registrar, Registrar of the Co-operative Societies (Housing) Adyar, Chennai-600 020 3. Joint Registrar of Co-operative Societies (Inspection Cell) Office of the Registrar of Co-operatives (Housing) Adyar, Chennai-600 020 4. Deputy Registrar of Co-operative Societies (Housing) Coimbatore Region Coimbatore-641 018 5. The Secretary (Incharge) Coimbatore Co-operatives Housing Society Gopalapuram Coimbatore-641 015 6.the Directorate of Vigilance and Anti Corruption, Chennai. +1cc to Govt. Pleader Sr 1269 MDR (CO) km/6.2. W.P.No.24841 of 2008