The petitioner is working as Senior Grade Factor Assistant in the second respondent, Cooperative Society. In respect of loss sustained by the Society, already an enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act has been ordered and the same is pending. While so, the second respondent has made an application on 28.03.2008 before the first respondent requesting the first respondent to issue an order of interim attachment of the immovable properties belonging to the petitioner under Section 167 of the Tamil Nadu Cooperative Societies Act. Based on the same, the first respondent by his proceedings in CEP.No.1 of 2008, has passed a conditional attachment order under Section 167(2) of the Act on 22.04.2008. Challenging the said order, the petitioner has come forward with this writ petition.
2. The contention of the learned counsel for the petitioner is that Section 167 can be invoked only in cases where there is a main case pending either under Section 90 or under Section 138 or under Section 139 or under Section 87 of the Tamil Nadu Cooperative Society Act. In the absence of any such main case, according to the petitioner, the question of passing any order of attachment before judgment does not arise at all. Therefore, according to the learned counsel for the petitioner, the impugned order is without jurisdiction and therefore, it is liable to be quashed.
3. The learned Additional Government Pleader has produced the file relating to the case from the office of the first respondent, which indicates that there is no case pending on the file of the first respondent under any of the provisions like Section 90, 138, 139 or 87 of the Act at the instance of the second respondent. He would further submit that it is the practice in the office of the first respondent to issue such kind of interim orders even in the absence of any main case.
4. The learned counsel for the second respondent would submit that the petitioner has got an alternative remedy of preferring an appeal against the impugned order and therefore, the writ petition is liable to be dismissed. He would further submit that the impugned order cannot be stated to be without jurisdiction as a huge amount of Rs.33,48,255.60/- is due from the petitioner. According to him, for any reason,if the impugned order is set aside, the petitioner may dispose of the property thereby defeating the claim of the second respondent to recover the said amount from the petitioner. Therefore, he would pray for the dismissal of the writ petition.
5. I have considered the rival submissions.
6. A plain reading of Section 167 of the Tamil Nadu Cooperative Societies Act would make it clear that an order of attachment before judgment under Section 167(1) of the Act or conditional attachment under Section 167(2) of the Act could be made only in cases where there is already a case pending on the file of the Deputy Registrar either under Section 87 or under Section 90 or under Section 130 or under Section 139 of the Tamil nadu Cooperative Societies Act. Without satisfying the said condition precedent, it is not at all available for the Deputy Registrar to issue any order under Section 167 of the above said Act. Here, the proceeding Number itself is Cooperative Executive petition No.1/2008. It is contended that the petitioner has paid fees prescribed under the Tamil Nadu Cooperative Rules for Execution of a decree. I am at a loss to understand as to how an execution petition could be entertained by the Deputy Registrar when there is no award at all capable of being executed. In that view of the matter, I have to necessarily hold that the impugned order is without jurisdiction and therefore, the same is liable to be quashed.
7. Coming back to the contention of the learned counsel for the second respondent that the petitioner has got an alternative remedy of preferring an appeal against the impugned order, I find it very difficult to countenance the said argument. It is the well settled law that if an order is wholly without jurisdiction, then, instead of driving the aggrieved party to go for the alternative remedy, it is absolutely necessary for this Court to exercise its power of judicial review under
Article 226 of the Constitution of India to interfere with the said order and to quash the same.
8. In the result, the writ petition is allowed; the impugned order dated 27.06.2008 made in Na.Ka.No.13459/Ka.pi.2-4/07 by the second respondent is quashed, however, with liberty to the second respondent to initiate appropriate proceeding under Section 87 of the Act before the first respondent and also to make an application for attachment before judgment or a conditional attachment, if so advised.
PAL To
1. The Deputy Registrar Cooperative Societies(Milk) Vellore Circle, Vellore District.
2. The Gneral Manager, C.1325 The Vellore-Tiruvannamalai District Milk Producers Cooperative Union Ltd., No.142, Arcot Road, Sathuvachari, Vellore 632 009