1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2011 CORAM THE HONOURBLE MR.JUSTICE B.RAJENDRAN W.P(MD).No.4680 of 2011 and M.P.(MD).No.1 of 2011 C.Chandra Sheela Rani ... Petitioner Vs 1.The Deputy Registrar of Co-operative Societies, Tirunelveli. 2.The Sale Officer, Public Servants Co-operative Thrift and Credit Society, Kokirakulam. 3.The Special Officer, A237, Public Servants Co-operative Thrift and Credit Society, Tirunelveli,Tirunelveli District. 4.A.Kartheesan ... Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records pertaining to the sale notice dated 17.03.2011 issued by the first respondent and quash the same. For petitioner : Mr.J.Nisha Banu For R.1 & 2 : Mr.M.Govindan Spl.Govt.Pleader For R.3 : Mr.K.Balasubramanian For R.4 : No appearance ORDER This Writ Petition has been filed praying for the issuance of a Writ of Certiorari to call for the records pertaining to the sale notice dated 17.03.2011 issued by the first respondent and quash the same. 2. The petitioner would contend that her sister purchased a house property at Plot No.39, Survey No.152/3, Thanchanallur in the year 2001 vide document No.3215. Later on, the said property was purchased by the petitioner. Admittedly, the brother-in-law of the petitioner, namely, one Kartheesan, (the fourth respondent herein) who was the then Secretary of the third respondent Society, Tirunelveli District, along with the Board of Directors of the said Society is alleged to have misappropriated funds of the Society to the tune of Rs.1,00,47,600/- and surcharge proceedings were initiated against the fourth respondent and others and found that they were liable for the https://hcservices.ecourts.gov.in/hcservices/ 2 loss incurred by the third respondent Society. Against which, the said Kartheesan has preferred an appeal before the Co-operative Tribunal in CMA A No.16 of 2009. The grievance of the petitioner is that the above-said property was brought for auction and sale notice was issued in respect of the property on 17.03.2011. Challenging the same, the petitioner has filed the present Writ Petition. 3. The first respondent has filed a detailed counter affidavit. The third respondent has also filed a counter affidavit which is in line with the first respondent. 4. The first respondent in his counter affidavit has stated that the fourth respondent in this Writ Petition has misappropriated the funds of the Society during the period from 1997 to 2002 to the tune of Rs.1,00,47,600/-. An enquiry was ordered under Section 81 of the Tamil Nadu Co-operative Societies Act,1983 and the enquiry officer has submitted his report on 22.01.2003. That apart, the Deputy Registrar has filed a criminal complaint against the fourth respondent and others, besides the first respondent suo motu initiated action against the fourth respondent and others. As per the report of the Special Officer dated 26.05.2002, conditional attachment was ordered under Section 167 of the Act. It is the case of the respondents that the said property was purchased out of misappropriated funds and subsequently, it was transferred to the petitioner. 5. After due formalities, a sale notice was issued on 17.03.2011, which was challenged by the petitioner by way of a Writ Petition and this Court directed that the auction may go on and only the confirmation alone was stayed. In order to escape from the clutches of law, the sale deed was made in favour of the petitioner, but admittedly the property is enjoyed by the fourth respondent. Though the petitioner is aware of the facts, still he went ahead to purchase the property in question, needless to say, just to safe guard the interests of the fourth respondent. The respondents have specifically averred that on the date of purchase of the said property in question, the petitioner was unemployed and she was employed only on 02.04.2008. At the time of enquiry, admittedly, the property stood in the name of the fourth respondent and his wife and cunningly, the property was transferred to the petitioner. After making due publication, the property was brought for auction and because of the interim order granted in respect of confirmation alone, they could not proceed further. With the above backgrounds, they pray for the dismissal of the Writ Petition. Heard all parties. By consent, the Writ Petition itself is taken up for final disposal. 6. The main ground on which the Writ Petition is filed that she is only a purchaser of the property in question from her sister and the property cannot be either attached or brought for auction merely because it was purchased from the fourth respondent's wife. Admittedly, the fourth respondent has been charge sheeted for https://hcservices.ecourts.gov.in/hcservices/ 3 misappropriation of funds and ultimately, as per Section 81 proceedings were over, the amount was liable to be confiscated from him. In fact, the attachment of the property was made as early as on 06.06.2002 and 81 enquiry was commenced on 15.04.2002. Thereafter, the enquiry officer submitted the inquiry report on 22.01.2003. But, in this case, what happened is the sale of the property which was originally purchased in the name of the fourth respondent's wife and later, it was transferred to her sister on 24.04.2002, that is to say, after 81 proceedings, which commenced on 15.04.2002. Knowing full well that once 81 proceedings is initiated, if he is held responsible or liable, all his properties will be attached or confiscated, surreptitiously, he transferred the property to his sister-in-law. 7. It is pertinent to point out that the properties which is now sought to be attached, is on the ground that the property was purchased by the fourth respondent in the name of his wife initially and later, it was transferred to his sister-in-law utilising the funds of the Society. Therefore, the very genuineness of the transaction of sale on 24.04.2002 is put at stake. With this background, when we analyse, the petitioner was informed by a letter dated 09.04.2009 regarding the attachment of the property and also further details were given in that letter. In fact, the petitioner himself has issued the lawyer's notice. But even at that point of time even though the petitioner was aware of the attachment of the property and steps were being taken for bringing the property for auction, no steps have been taken by the petitioner to vacate the attachment. Rule 135 of the Tamil Nadu Co-operative Societies Rules,1988 which provides for any objector to approach the authority concerned to seek remedy in respect of property which is not concerned with under Sections 81 or 87. Therefore, right from 2002, they were aware of the entire proceedings and even the attachment is made as early as 06.06.2002. No doubt, the petitioner's theory is that the attachment is not directly intimated to her, but it has been duly intimated her by the notice dated 09.04.2009. Even thereafter she has not chosen to take any action or challenge the attachment as provided under the Act. Now, when the property was brought for auction after the auction notification, the present Writ Petition has been filed just to thwart the department from proceeding further in this regard. Therefore, this Court at the time of admission only stayed the confirmation alone and now auction has taken place and the highest bidder has also quoted the amount to the tune of Rs.35,00,000/-. If we take into consideration Rule 140 coupled with Rules 128 and 132, there also, if any person is aggrieved, he can take the matter by way of an appeal as per provision under Rule 140. But, they have not challenged the same. 8. Right from 2002, the petitioner has neither chosen to take recourse under any provisions of law or come before this Court and at this length of time, she has approached this Court, which is not open to the petitioner. In fact, the sale has been completed and the highest bidder has also given his bid, it is not now open to challenge the sale notice. Apart from that, though the petitioner has stated she is a government servant and the property was purchased https://hcservices.ecourts.gov.in/hcservices/ 4 through her salary, it was not substantiated before this Court either by way of oral or documentary evidence as to how and under what source she was able to acquire the property, before joining the Government service. The respondents have dealt with at para No:5 of their counter affidavit as to the manner in which the property was purchased by the petitioner. In any view of the matter, the petitioner has not made out a case and this Writ Petition is liable to be dismissed. Therefore, I find that there is no merits at all in this case and the Writ Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(AE) /TRUE COPY/ Sub Assistant Registrar To 1.The Deputy Registrar of Co-operative Societies, Tirunelveli. 2.The Sale Officer, Public Servants Co-operative Thrift and Credit Society, Kokirakulam. 3.The Special Officer, A237, Public Servants Co-operative Thrift and Credit Society, Tirunelveli,Tirunelveli District. +1cc to Mr.K.Bala Subramanian, Advocate SR.No.20328 +1cc to The Special Govt.Pleader SR.No.20779 W.P(MD).No.4680 of 2011 28.06.2011 ssm PA/26.07.2011/4P/6C https://hcservices.ecourts.gov.in/hcservices/