1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JEGADEESAN WA(MD)No.847 of 2011 and M.P(MD)No.2 of 2011 S.Ravichandran :Appellant/Petitioner -Vs- 1.The Deputy Registrar of Co-operative Societies, Srivilliputtur. 2.The District Registrar of Co-operative Societies, Srivilliputtur. 3.The Special Officer, O-508, Mamsapuram Primary Agricultural Co-operative Bank Ltd., Srivilliputtur Circle, Virudhunagar District. :Respondents/Respondents Prayer: Appeal filed under Clause 15 of Letters Patent, against the order dated 28.09.2010 passed by MR.JUSTICE P.JYOTHIMANI, in W.P.(MD)No.5416 of 2008 on the file of this Court. WP.No.5416/2008:Petition presented to this court under article 226 of the constitutionof India praying this court to issue a writ of certiorarified mandamus calling for the records relating to the impugned auction notice of the 2nd respondent in Ref.Ni.Ma.No.6/08-09 dated 26.5.2008 and quash the same and consequently forbearing the respondents 1 and 2 from interfering with peaceful possession and enjoyment of the property of the petitioner measuring 2.670.5 sq.ft in S.No.411/32 situate in Mamsapuram Village, Srivilliputhur. For Appellant : Mr.Veera Kathiravan For Respondents 1 & 2 : No Appearance For 3rd Respondent : Mr.J.Parekhkumar JUDGMENT (Judgment of the Court was delivered by P.P.S.JANARTHANA RAJA, J.) The Writ Appeal is filed against the order of the learned Single Judge, dismissing the Writ Petition of the appellant as not maintainable. 2.The appellant/petitioner purchased 2.670.50 Square feet in S.No.411/32 situated in Mamsapuram within the Registration District of the second respondent from Smt. Seetha for a sale consideration of Rs.2,00,000/-. The said sale deed was registered on 12.08.2005 as Document No.4362 of 2005 and the appellant is in possession and enjoyment of the property. Before purchase, the appellant verified the Encumbrance Certificate furnished by the Registration Department and on a perusal of the same the appellant found that there is no encumbrance. To the great shock https://hcservices.ecourts.gov.in/hcservices/ 2 and surprise to the appellant, the second respondent herein sent a communication to the appellant stating that the said property has been brought for sale at the instance of the first respondent on the ground that the appellant's vendor has not paid the claim made by her employer for a sum of Rs.3,92,639/- and the said property was earlier attached by the authorities. Aggrieved by that, the appellant filed the Writ Petition. When the matter came up before the Writ Court, the Writ Court by order dated 28.09.2010, dismissed the Writ Petition on the ground that the Writ Petition is not maintainable by following the decision of a Full Bench of this Court in K.Marappan vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, reported in 2006(4) CTC 689. Aggrieved by that, the appellant has filed the present Writ Appeal. 3.Learned counsel for the appellant vehemently contended that the learned Single Judge is wrong in dismissing the Writ Petition on the ground that the same is not maintainable and further he contended that when the appellant purchased the property, he did not know about the fact that the property was attached by the authorities and only when the attachment was intimated to the Registration Authorities, the appellant could know about the attachment while purchasing the property. He further fairly stated that the appellant has to file an appeal under Section 152 of the Tamil Nadu Co- operative Societies Act. ("Act" in short). Section 152 of the Act enables any aggrieved person to file an appeal before the Appellate Forum. The counsel also relied on the decision of a Division Bench of this Court reported in A.Balaraman v. Deputy Registrar of Co.op. Societies, (2009) 3 MLJ 1032 and therefore, requested the Court to give permission to file an Appeal as per the provisions of the Act. 4.learned counsel appearing for the third respondent would submit that the appellant purchased the property only after attachment. Therefore, the authorities correctly initiated the proceedings and the Writ Petition filed by the appellant is not maintainable and therefore, the order of the Writ Court has to be confirmed. 5.We have perused the materials available on record. It is not in dispute that the appellant has remedy under the provisions of the Tamil Nadu Co-operative Societies Act. Section 152 of the Act enables any aggrieved person to file an appeal and this Court considered the scope of the provisions of Section 152 of the Act and also Article 226 of the Constitution of India, in A.Balaraman v. Deputy Registrar of Co-op. Societies, cited supra and held that the aggrieved person should avail the statutory remedy and he should not avail the Extraordinary Jurisdiction under Article 226 of the Constitution of India. It has been held in paragraph 7 of the said judgment as under: "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 https://hcservices.ecourts.gov.in/hcservices/ 3 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." From a reading of the above judgment of this Court, the appellant ought to have filed an appeal to the Appellate Authority under Section 152 of the Act. He should have exhausted the remedy under the provisions of the Act and he should not have filed the Writ Petition when the effective remedy is available under the Act. Therefore, we direct the appellant to prefer an appeal to the Appellate Tribunal within two weeks from the date of receipt of a copy of this order and the Appellate Authority shall entertain the appeal without insisting on the question of limitation, since the matter was also kept pending before this Court. 9.With the above observation, the order of the learned Single Judge is set aside and the Writ Appeal is disposed of accordingly. No costs Consequently, the connected M.P. (MD) No.2 of 2011 is closed. Sd/- Assistant Registrar (CO) / TRUE COPY / Sub Assistant Registrar To: 1.The Deputy Registrar of Co-operative Societies, Srivilliputtur. 2.The District Registrar of Co-operative Societies, Srivilliputtur. 3.The Special Officer, O-508, Mamsapuram Primary Agricultural Co-operative Bank Ltd., Srivilliputtur Circle, Virudhu Nagar District. +1CC to Mr.Veera Kathiravan, Advocate. SR.No.31340. +1CC to Mr.J.Parekh Kumar, Advocate. SR.No.31349. Sj RP/15.09.2011/3P/6C. W.A(MD)No.847 of 2011 and M.P(MD)No.2 of 2011 14.09.2011 https://hcservices.ecourts.gov.in/hcservices/