(Judgment of the Court was delivered by Mr.Justice S.MANIKUMAR) Challenge in this writ appeal, is to the order made in W.P. (MD)No.3371 of 2012, dated 30.01.2015, by which, the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, 3rd respondent herein, has been directed to remove encroachments in Shop No.S-57, with the assistance of the Superintendent of Police, Sivagangai District, Sivagangai, fifth respondent herein and the District Collector, Sivagangai District, as per the order of the Registrar of Co- operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, contained in the Letters, dated 15.03.2006 and 22.09.2011, within http://www.judis.nic.in 3 four weeks from the date of receipt of passing of the order and handover possession to the writ petitioner/1st respondent herein.
2. The 1st respondent/petitioner is a member of the fourth respondent Society. On 27.07.1991, the fourth respondent-Society allotted a Shop bearing No.S-57, measuring 4200 sq.ft., to the 1st respondent/petitioner and she has paid the entire sale consideration. On receipt of sale consideration, the fourth respondent-society executed a sale deed on 15.07.1993, bearing Document No.1367 of 1993, in favour of the writ petitioner.
3. According to the 1st respondent/writ petitioner, in the year 1995, the President of the fourth respondent-Society cancelled the allotments made to the various persons and re-allotted the same to his close relatives. Shop No.S-57 allotted to the writ petitioner was cancelled and re-allotted to the appellant herein, who is a name lender of one Muthudurai, the then Chairman of Karaikudi Municipality. Reason for cancellation of allotment was that the 1st respondent/writ petitioner owns a house property and suppressing the same, she got the allotment, which is in violation of Rule 36(A)(1) http://www.judis.nic.in 4 of Bye-laws of the fourth respondent-Society.
4. The 1st respondent/writ petitioner has initiated arbitration proceedings, before the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, 3rd respondent herein, challenging the order of cancellation. The third respondent, vide Award No. 212/1998-1999, dated 10.09.2003, set aside the order of cancellation, holding that there is no such Bye-law, as alleged. The appellant herein has filed O.S.No.121 of 2003, before the District Munsif Court, Karaikudi, against the 1st respondent/writ petitioner and the third respondent and while accepting the order passed in the arbitration, the learned District Munsif, vide judgment and decree, dated 01.02.2005, dismissed the suit filed by the appellant herein.
5. Pursuant to the dismissal of the suit, the appellant herein has filed a revision in R.C.No.3219/07/SF1, before the Registrar of Co- operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, against the Arbitral Award and the said revision came to be dismissed on 22.10.2007. Thereafter, the appellant has also filed Review in R.C.No.1133/2008/3F1, before the Registrar of Co-operative Societies http://www.judis.nic.in 5 (Housing), Adyar, Chennai, 2nd respondent herein, and after considering the facts and circumstances of the case, the 2nd respondent herein allowed the said Review on 29.10.2008, remanding the matter back to the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, 3rd respondent herein. Challenging the said order, the 1st respondent/petitioner has filed W.P.No.11851 of 2008 and this Court, by an order, dated 23.04.2010, allowed the said writ petition, setting aside the order of the second respondent herein, holding that the cancellation of sale deed, in favour of the petitioner, was only with an intention to execute a sale deed, in favour of the appellant, who is only the name lender of one Muthudurai, the then Chairman of Karaikudi Municipality.
6. Pursuant to the orders of respondents 2 and 3 herein and the orders of this Court, the Registrar of Co-operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, by his letters, dated 15.03.2006 and 22.09.2011, directed the Superintendent of Police, Sivagangai District, Sivagangai, fifth respondent herein, to remove the encroachment, particularly, the unauthorised possession of http://www.judis.nic.in 6 the appellant herein. Since there was no action, the petitioner has filed W.P.(MD)No.3371 of 2012, for a Mandamus, directing the respondents 2 to 5 herein to execute the order of the third respondent, dated 10.09.2003, passed in Arbitration Petition No. 212/1998-1999.
7. Before the writ Court, the Special Officer, A.1321, Karaikudi House Building Society (hereafter called "Housing Society"), 4th respondent herein, has filed a counter affidavit, contending inter alia that A.1321, Karaikudi House Building Society is registered under Tamil Nadu Co-operative Societies Act. The said housing society, in order to provide plots to its members, has purchased a land to the extent of 125 acres from the Iluppakudi Devasthanam. As per L.P.R.P.No.47/85 of Deputy Director of Town and Country Planning, Sivagangai, the Housing Society earmarked the plots for House Plots, Commercial Plots, Public Places and Heavy Industrial Plots and the same was allotted to its members for a valid consideration, in consonance with the bye-laws and rules of the Housing Society. http://www.judis.nic.in 7
8. The 4th respondent herein has further submitted that as the 1st respondent/writ petitioner was a member of House Building Society, she was allotted with shop site No.57, on payment of sale consideration. Accordingly, the housing society has executed a sale deed on 15.07.1993, vide document No.1367/1993. Later on, it was found that the 1st respondent/writ petitioner got site allotment, by suppressing that she has not owned any house site or property within the jurisdictional limit of the society. Whereas, the writ petitioner owned a house property at Mahar Nonbustreet, Karaikudi, vide assessment No.9101. As per bye law 36(A)(1) of the society, a member should not own any house property within the jurisdiction of the respondent-society for getting house site allotment. Since the 1st respondent/writ petitioner already owned a house property, shop site allotment has been cancelled, vide resolution of board meeting held on 17.12.1997. The sale price already paid by the petitioner was also sent to the petitioner by way of demand draft and the cancellation of the petitioner's site was also duly published in Dinamalar daily. http://www.judis.nic.in 8
9. Before the writ Court, it was the further case of the 4th respondent-Society that after cancellation of site, the same was re- allotted to the appellant herein, based on the seniority list, maintained in the society, for shop site allotment and sale deed was also executed in her favour, vide Document No.1646/98, on payment of entire sale consideration. Having aggrieved over the cancellation of the house site, the 1st respondent/writ petitioner raised an arbitration, before the Deputy Registrar of Co-operative Societies, Virudhunagar, 3rd respondent herein. The 3rd respondent herein, has set aside the cancellation of petitioner's allotment, vide Arbitral award No.21/1998-1999, dated 10.09.2003. In the meantime, the appellant also filed a civil suit in O.S.No.121 of 2003, before the District Munsif, Karaikudi and the said suit was dismissed. Thereafter, the appellant preferred a revision with delay, but the same was also dismissed on 22.10.2007, against which, the appellant filed a review petition, before the 2nd respondent herein. The Registrar of Co- operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, after hearing all the parties, allowed the review filed by the appellant http://www.judis.nic.in 9 and remitted back to the 3rd respondent.
10. It was submitted by the fourth respondent-Housing Society that aggrieved by the order passed by the Registrar of Co-operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, the 1st respondent/writ petitioner has filed W.P(MD)No.11851 of 2008 and this Court, by order, dated 23.04.2010, allowed the said writ petition, setting aside the order of the 2nd respondent. Pursuant to the order of this Court, the 4th respondent-Housing Society has passed a resolution on 10.10.2011, to remove the encroachments and the same was forwarded to the Superintendent of Police, Sivagangai District, Sivagangai, fifth respondent herein. Based on the said resolution, the the Deputy Registrar of Co-operative Societies, Virudhunagar, 3rd respondent herein, also sent a requisition, vide his letter dated 09.01.2012, to the Superintendent of Police, Sivagangai District, Sivagangai, fifth respondent herein, to remove all the encroachments made in the 1st respondent/writ petitioner's shop site and other sites lying within the Soodamanipuram lay out. Having received requests of the Housing Society, the 5th respondent herein has not taken any http://www.judis.nic.in 10 action and since respondents 3 and 4 are not the competent authorities, in the matter of removing encroachments, the 1st respondent/writ petitioner cannot seek for a direction against the respondents 2 to 4 and prayed for dismissal of the writ petition.
11. Before the writ Court, the appellant herein has also filed a counter, contending inter alia that she filed a Writ Appeal against the order passed by this Court in W.P.No.11851 of 2008, dated 23.04.2010, along with a petition to condone the delay and that the same was pending. According to him, he is not an encroacher, as the Shop had been allotted to her and the 1st respondent/writ petitioner has to file a Execution Petition, to execute the Arbitration Award, as per Section 155 of the Tamil Nadu Co-operative Societies Act, for redressing her grievance.
12. After hearing the parties and considering the facts and circumstances of the case, Writ Court, by order, dated 30.01.2015, has passed the following orders, "11. Admittedly, the Shop in question was originally allotted to the petitioner. The same was cancelled and re-allotted to the fifth respondent. According to the http://www.judis.nic.in 11 petitioner, the fifth respondent is only the name lender to one Muthudurai, the then Chairman of Karaikudi Municipality. In the Arbitration Award, the second respondent set aside the cancellation of allotment to the petitioner. The award has been confirmed by the first respondent. The subsequent order of the first respondent in the Review by remanding the matter to the second respondent, was set aside by this Court. Therefore, the petitioner is the owner of Shop No.S57. Even though the fifth respondent has stated that she had filed the writ appeal with a petition to condone the delay, no particulars had been furnished as to whether the delay was condoned; the writ appeal was admitted; any interim order was granted; and the writ appeal was disposed of or not? The writ petition is not against the Co-operative Society. It is filed for implementing the instructions of the first respondent - Registrar of Co-operative Societies. Therefore, the writ petition is maintainable and the petitioner is entitled to the relief sought for.
12. The first respondent by his letters, dated 15.03.2006 and 22.09.2011 addressed to the District Collector and the fourth respondent respectively requesting them to remove the encroachments. The District Collector and the fourth respondent have not http://www.judis.nic.in 12 taken any steps in this regard.
13. In view of the above fact, the order of cancellation of allotment of the petitioner, is set aside, the petitioner is entitled to possession of Shop No.S-57.
14. For the reasons stated above, the petitioner is entitled to the relief sought for.
15. In the result, the writ petition is allowed. The second respondent is directed to remove encroachments in Shop No.S-57 with the assistance of the fourth respondent and the District Collector, Sivagangai District, as per the order of the first respondent contained in the Letters, dated 15.03.2006 and 22.09.2011, within four weeks from the date of receipt of a copy of this order and handover possession to the petitioner. No costs. Consequently, connected miscellaneous petition is closed."
13. Assailing the order made in W.P.(MD)No.3371 of 2012, dated 30.01.2015, Mr.G.R.Swaminathan, learned counsel for the appellant made a preliminary contention that the writ petition, against the co-operative society, is not maintainable in law. He further submitted that the direction sought for against the Deputy Registrar of http://www.judis.nic.in 13 Co-operative Society, Virudhunagar, to execute a sale deed, in favour of the 1st respondent/writ petitioner, is without jurisdiction. He also submitted that the public law remedy available under
Article 226 of the Constitution of India, cannot be invoked for execution and that there is a specific procedure in the Tamil Nadu Co-operative Society Act, for executing the award and without exhausting the said remedy, writ is not maintainable in law.
Heard Mr.G.Prabu Rajadurai, learned counsel appearing for the 1st respondent and Mr.M.Alagadevan, learned Special Government Pleader appearing for respondents 2 to 5 and perused the materials available on record.
14. As per the judgment of a Larger Bench of Five Judges of this Court in Marappan v. The Deputy Registrar of Co-operative Societies reported in 2006 (4) CTC 869, has held that no writ will lie against a Co-operative Institution as it is neither a State nor instrumentality of State Government nor discharging a public duty. The Hon'ble Full Bench of this Court, at paragraph 21, held as follows:
"21. From the above discussion, the following propositions emerge:
http://www.judis.nic.in 14
(i) If a particular co-operative society can be characterised as a 'State' within the meaning of
Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be 'an authority' within the meaning and for the purposes of
Article 226 of the Constitution. In such a situation, an order passed by a society in violation of the bye-laws can be corrected by way of Writ Petition.
(ii) Applying the tests in Ajay Hasia, it is held a co-operative society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of
Article 12 of the Constitution;
(iii) Even if a society cannot be characterised as a 'State' within the meaning of
Article 12 of the Constitution, a Writ would lie against it to enforce a statutory public duty cast upon the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a 'person' or 'an authority' within the meaning of
Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably said that such functions are similar to or closely related to http://www.judis.nic.in 15 those performable by the State in its sovereign capacity.
(iv) A society, which is not a 'State' would not normally be amenable to the writ jurisdiction under
Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions.
(v) Where a Special Officer is appointed in respect of a co-operative society which cannot be characterised as a 'State' a writ would lie when the case falls under Clauses (iii) and (iv) above.
(vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition.
(vii) In the absence of special circumstances, the Court will not ordinarily exercise power under
Article 226 of the Constitution of India when the Act provides for an alternative remedy.
Madhuranthagam Agricultural Co-operative Society, 2000 (4) CTC 556, is no longer good law, in view of the decision of the Seven-Judge Bench of the Supreme Court in Pradeep Kumar Biswas Case and the other decisions referred to here before."
15. According to the 4th respondent-Society, 1st respondent/writ petitioner was allotted with shop site No.57, as she was a member of House Building Society. However, knowing the fact that the petitioner owns a house property, her allotment has been cancelled, as per bye law 36(A)(1) of the society. The 1st respondent/writ petitioner has initiated arbitration proceedings, before the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, 3rd respondent herein, challenging the order of cancellation. The third respondent, vide Award No.212/1998-1999, dated 10.09.2003, set aside the order of cancellation, holding that there is no such Bye-law, as alleged. The appellant herein has filed O.S.No.121 of 2003, before the District Munsif Court, Karaikudi, against the 1st respondent/writ petitioner and the third respondent and while accepting the order passed in the arbitration, the learned http://www.judis.nic.in 17 District Munsif, vide judgment and decree, dated 01.02.2005, dismissed the suit filed by the appellant herein. Pursuant to the dismissal of the suit, the appellant herein has filed a revision in R.C.No.3219/07/SF1, before the Registrar of Co-operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, against the Arbitral Award and the said revision came to be dismissed on 22.10.2007. Thereafter, the appellant has also filed Review in R.C.No. 1133/2008/3F1, before the Registrar of Co-operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, and after considering the facts and circumstances of the case, the 2nd respondent herein allowed the said Review on 29.10.2008, remanding the matter back to the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, 3rd respondent herein. Challenging the said order, the 1st respondent/petitioner has filed W.P.No.11851 of 2008 and this Court, by an order, dated 23.04.2010, allowed the said writ petition, setting aside the order of the second respondent herein, holding that the cancellation of sale deed, in favour of the petitioner, was only with an intention to execute a sale deed, in favour of the http://www.judis.nic.in 18 appellant, who is only the name lender of one Muthudurai, the then Chairman of Karaikudi Municipality. Pursuant to the orders of respondents 2 and 3 herein and the orders of this Court, the Registrar of Co-operative Societies (Housing), Adyar, Chennai, 2nd respondent herein, by letter, dated 22.09.2011, directed the Superintendent of Police, Sivagangai District, Sivagangai, fifth respondent herein, to remove the encroachment, particularly, the unauthorised possession of the appellant herein. In the absence of any action, the 1st respondent/writ petitioner has filed the present writ petition, for a Mandamus, directing the respondents 2 to 5 herein to execute the order of the third respondent, dated 10.09.2003, passed in Arbitration Petition No.212/1998-1999.
16. Proceedings before the Arbitrator are governed by the provisions of Tamil Nadu Co-operative Societies Act. Thus, the award cannot be enforced in a Writ Petition, filed under
Article 226 of the Constitution of India. In view of the statutory remedy provided for execution of award, writ petition under
Article 226 of the Constitution would not lie.
http://www.judis.nic.in 19 In the result, the Writ Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.
(S.M.K., J.) (G.C., J.) 22.03.2017 Index: Yes/No Internet: Yes/No skm To
1.The Registrar of Co-operative Societies (Housing), Adyar, Chennai.
2.The Deputy Registrar of Co-operative Societies (Housing), Virudhunagar.
3.The Superintendent of Police, Sivagangai District, Sivagangai.
http://www.judis.nic.in 20 S. MANIKUMAR, J.
AND G.CHOCKALINGAM, J.
skm W.A.(MD)No.238 of 2015 22.03.2017 http://www.judis.nic.in