BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 8/4/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
W.P.(MD)No.10259 of 2009
and
M.P.(MD)No.3 of 2008
1. Andalammal
2. Ramakrishnammal
3. S.K.Ramasamy
4. Seethalakshmi
5. Jayalakshmi
6. Jayabharathi
7. S.K.Kannan
8. Geetha ... Petitioners
Vs.
1. The Principal Secretary to Government,
Home (Police-XIX) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai- 600 009.
2. Competent Authority and
District Revenue Officer,
Theni District,
Theni- 625 531.
3. The Superintendent of Police,
Theni- 625 531.
4. K.Srinivasan
... Respondents
Writ Petition has been filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari or any other appropriate Writ or Order or
Direction in the nature of the Writ calling for the records relating to the
proceedings in G.O.Ms.No.1612 Home (Police-XIX) Department, dated 4.12.2008 on
the file of the first respondent herein and to quash the same in so far as the
land bearing Survey No.2592/20 to an extent of 6422 Sq.ft., situated at
Thamaraikulam, Lakshmipuram in Theni District, described as item 3 in the
schedule attached to the impugned order is concerned.
!For Petitioners ... Mr. S.Subbiah
^For Respondents ... Mr.K.A.Thirumalayappan
Addl.Govt.Pleader.
ORDER
With the consent of both parties, this writ petition is taken up for
finaly hearing.
2. The 4th respondent is a partner in the business and the Partnership
Firm received deposits from public and failed to return the deposits.
Therefore, a case was registered by the 3rd respondent against the said
Partnership Firm and its partners as per the provisions of Tamil Nadu Act 44 of
1997 and in pursuance of the power under Section 3 of the said Act, the 1st
respondent passed an interim order of attachment of the immoveable properties
described in the schedule thereto which according to the 1st respondent are the
properties belonging to the partners of the said Firm. The 1st respondent by
order dated 4.12.2008 appointed the 2nd respondent as the Competent Authority
and transferred to him all the assets of the Partnership Firm and its partners
to take further action as per Section 4 of the said Act. The petitioners
challenged the order of ad-interim attachment passed by the 1st respondent made
in G.O.Ms.No.1612 Home (Police-XIX) Department, dated 4.12.2008 in so far as the
land bearing Survey No.2592/20 to an extent of 6422 Sq.ft., described as Item 3
to the schedule attached to the impugned order, in this Writ Petition.
3. Mr.S.Subbiah, the learned counsel for the petitioners submitted that
Item 3 of the property mentioned in the impugned attachment order originally
belonged to S.Krishnaswamy Naicker and he purchased the same under registered
sale deed dated 30.5.1990. He died leaving behind the petitioners and the 4th
respondent as his heirs and the 4th respondent is entitled to 1/9th share in the
property. Therefore, even assuming that the attachment order can be made
against that property that can be confined only to 1/9th share of the 4th
respondent and the entire property cannot be attached. He further submitted that
as per Section 4(3) of the said Act, on receipt of the Government order passed
under Section 3 of the Act, the 2nd respondent who is the Competent Authority
shall apply within 30 days to the Special Court constituted under the Act for
making the ad-interim order of attachment absolute. He therefore, submitted
that no application was made within 30 days from the date of impugned order
before the Special Court by the 2nd respondent and therefore, the attachment
cannot have any legal effect.
4. On the other hand, Mr.K.A.Thiurmalayappan, the learned Additional
Government Pleader reiterated the allegations made in the counter affidavit and
submitted that the 4th respondent and his partners have cheated the public and
misappropriated the deposits made by the public and as per the provisions of the
said Act action was taken and ad-interim order of attachment was passed
attaching the properties belonging to the partners and Item 3 of the schedule of
property belongs to the 4th respondent and therefore the property was also
included the order of attachment and the petitioners who claimed to have any
share in the property can apply to the Special Court as per the provisions of
Section 7 by raising any objections and the Special Court will pass an order on
the basis of objections raised by the petitioners and therefore the petitioners
are having effective alternative remedy and hence the writ petitiion is not
maintainable. He further contended that the property of the 4th respondent and
the petitioners have not been divided by metes and bounds and hence the 4th
respondent is one of the co-owners of the property and therefore the entire
properties are liable to be attached and the proceedings are pending before the
Special Court for making the interim order of attachment absolute. He,
therefore, submitted that the remedy that is available to the petitioners is to
approach the Special Court and the writ petition is not maintainable.
5. Heard both sides.
6. It is admitted that the ad-interim attachment was passed on 4.12.2008.
It is further admitted that the property namely Item 3 in Survey No.2592/20 to
an extent of 6422 Sq.ft., belongs to S.Krishnaswamy Naicker, the father of the
petitioners 2 to 8, husband of the 1st petitioner and father of the 4th
respondent. He purchased the same under a registered sale deed dated 30.5.1990.
The said Krishnaswamy Naicker died intestate and therefore after him, the
petitioners and the 4th respondent are entitled to 1/9th share in the said
property and hence the 4th respondent can not be construed as full owner of the
said property and he is only entitled to 1/9th share in the said property.
Therefore, the order of attachment in respect of whole of the property mentioned
in Item 3 in respect of Survey No.2592/20 to an extent of 6422 Sq.ft., is not
proper.
7. Further, as per Section 4(3) of the said Act, after the order was made
by the 1st respondent attaching the properties, the Competent Authority namely
the 2nd respondent should approach the Court constituted for that purpose within
a period of 30 days for making the ad-interim order of attachment absolute. It
is admitted by the learned Additional Government Pleader that the application
under Section 4(3) of the Act was not filed within 30 days and it was filed
belatedly and the application to condone the delay was also filed and it is
pending before the Special Court. Therefore, it is admitted that within 30 days
the application was not filed before the Special Court for making the ad-interim
order of attachment absolute. Under Section 7 of the Act, when an application
is pending before the Special Court filed by the Competent Authority to make the
ad-interim order of attachment absolute, the affected party can file objections
about the order of attachment and if such objection is made, the Special Court
shall decide the objection and pass final orders within a period of six months.
Therefore, the question of filing an objection before the Special Court arises
only when an application is pending before the Special Court filed by the
Competent Authority under Section 4(3) of the said Act. In this case admittedly
that application is not taken up on file as there was a delay and the
application for condoning the delay is pending, hence it cannot be contended by
the respondents that the petitioners have to approach the Special Court for
raising the attachment and they cannot file the writ petition. As no application
is pending before the Special Court for making the ad-interim order of
attachment absolute, the petitioners cannot file any objection before the
Special Court.
8. Mr.S.Subbiah, the learned counsel for the petitioners also relied upon
the Judgement reported in 2008 (4) MLJ, 211 (P.Venkatesan v. State of Tamil Nadu
and others) and submitted that even in a case where application was filed in
time and final order was not passed within a period of six months from the date
of objections raised by the parties, then final order has no legal sanctity.
9. As stated supra, in this case no application is pending before the
Special Court for making ad-interim order of attachment absolute and hence the
question of filing the application before the Special Court by the petitioners
does not arise. However, having regard to the fact that the petitioners are
entitled to 8/9th share together in the said property and the 4th respondent is
entitled to 1/9th share in the said property, the ad-interim order of attachment
is having effect only in respect of 1/9th share of the 4th respondent and it
cannot have any effect on the 8/9th share of the petitioners. Hence, by the ad-
interim order of attachment, the petitioners 8/9th share cannot be attached and
it is free from attachment and the attachment order is effective only in respect
of undivided 1/9th share of the 4th respondent.
With the above observations, this writ petition is disposed of. No costs.
Consequently, the connected M.P.No.3 of 2009 is also closed.
kr.
To
1. The Principal Secretary to Government,
Home (Police-XIX) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai- 600 009.
2. Competent Authority and
District Revenue Officer,
Theni District,
Theni- 625 531.
3. The Superintendent of Police,
Theni- 625 531.