IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.09.2017 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.11492 of 2005 and W.P.M.P.No.12544 of 2005 V. Munirathinam ... Petitioner Vs.
1. Registrar of Co-operative Societies (Housing) Chennai 20.05.2017
2. Deputy Registrar of Co-operative Societies (Housing) Chengalpattu, Kancheepuram District.
3. Thiruvallur Taluk Co-operative Housing Society, Rep.by its Special Officer, Thiruvallur 602 001.
Thiruvallur District. ... Respondents Prayer:
Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the third respondent in his proceedings No.Nil dated 13.03.2004 and quash the same and direct the respondents to reinstate the petitioner in service and confer all the consequential benefits.
For Petitioner : Mr.C.Vediappan For Respondent Nos.1&2 : Mr.L.P.Shanmugasundaram Special Government Pleader (Co-op) For Respondent No.3 : Mr.Suresh Viswanath O R D E R The petitioner filed a writ petition challenging the order of the third respondent dated 13.03.2004 wherein the petitioner was removed from service and to direct the respondents to reinstate the petitioner in service and confer all the consequential benefits.
2. Learned counsel for the petitioner submitted that the matter is squarely covered by the decision of this court rendered in Full Bench reported in 2006 (4) CTC 689 (K.Marappan Vs. The Deputy Registrar of Co- operative Societies, Namakkal),
3. A Full Bench of this Court in its decision reported in 2006 (4) CTC 689 (K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal), has decided whether writ will lie against a Co- operative Society and has held as follows:
“21. From the above discussion, the following propositions emerge:-
(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 purpose 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 that a co- operative society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of Article 12of 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 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.
(viii) The decision in M.Thanikkachalam v. 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.”
4. In view of the above, the writ petition is dismissed with liberty granted to the petitioner to workout his remedy before the appropriate forum in the manner known to law.
The Registry is directed to return the impugned order to the learned counsel for the petitioner to enable the petitioner to file an appeal. No costs. Consequently, the connected miscellaneous petition is also closed.
19.09.2017 gv Note: The Registry is directed to return the impugned order to the learned counsel for the petitioner To
1. Registrar of Co-operative Societies (Housing) Chennai 20.05.2017
2. Deputy Registrar of Co-operative Societies (Housing) Chengalpattu, Kancheepuram District.
3. Thiruvallur Taluk Co-operative Housing Society, Rep.by its Special Officer, Thiruvallur 602 001. Thiruvallur District.
M.DHANDAPANI,J.
gv W.P.No.11492 of 2005 and W.P.M.P.No.12544 of 2005 19.09.2017