Madras High Court
K.N.Mohan Raj vs The Registrar Of Co-Operative ... on 9 April, 2011
Author: B.Rajendran
Bench: B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/04/2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.2565 of 2011 K.N.Mohan Raj ... Petitioner Vs 1. The Registrar of Co-operative Societies (Housing) Gandhi Nagar 4th Main Road Adayar Chennai 2. The Tiruchirappalli Co-operative House Construction Society Limited Represented by its Special Officer Makkal Mandram Thillai Nagar Tirchirapalli - 18 ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the first respondent to hold a full-fledged high level enquiry into the allegations made by the petitioner in respect of formation and implementation of "New Varaganeri Housing Scheme" at Tiruchirappalli by the second respondent. !For petitioner ... Mr.G.R.Swaminathan ^For Respondents... Mr.K.Balasubramanian Additional Government Pleader :ORDER
This Writ Petition has been filed by the petitioner seeking for a Writ of Mandamus directing the first respondent to hold a full-fledged high level enquiry into the allegations made by the petitioner in respect of formation and implementation of "New Varaganeri Housing Scheme" at Tiruchirappalli by the second respondent.
2. The learned counsel appearing for the petitioner would submit that petitioner is a Member of the Co-operative Society. The Society got permission to make a new layout and sell the Housing Plots. After the publication, the Plots were sold out among the members. He would further submit that the petitioner was allotted a Plot bearing No. 35 and there was an amount due, even though he was ready to pay, it was not received and ultimately, when the Plots' rate was enhanced, he did not accept the same. Therefore, the Association has filed a Writ Petition in W.P.(MD).No. 7555 of 2007 before this Court and ultimately it was dismissed by directing if at all aggrieved persons, namely the members of the association alone can take action and that too, under Section 90 of the Tamil Nadu Co-operative Societies Act.
3. The main grievance of the petitioner is that in view of the earlier involvement in the earlier Writ Petition, his Plot has been cancelled and now it transpires that the Society had acquired the land through private negotiations and there is a discrepancy in respect of amounts of payment towards the land cost. In the publication of the circular, there is a difference in the amounts towards the land cost. Therefore, he would contend that there is misappropriation and furthermore, the development could be borne by them and not by the Society or the Members. Whereas in the expenditure, it is shown that 15 Plots were given to original land owners, which are not in accordance with the bye-laws. Hence, he made a representation, on 09.03.2009, to the first respondent to hold a high level enquiry, since there was no response. Therefore, he issued a legal notice, dated 08.05.2009, even for which, there is no reply. A further communication dated 30.12.2009 was also sent, but no action has been taken so far. Hence, he has filed this Writ Petition.
3. He would only contend that as a Member of the Association, he can always question the same and he has made a representation. Unfortunately the action has not been taken by the first respondent. In this connection, he would contend that the Writ Petition is maintainable, as it is not covered under the Marappan's case reported in 2006 (4) CTC 689 and also subsequent Division Bench Judgment of this Court in T.K.Ananda Sayanam Vs. The Joint Registrar and others reported in 2007 (5) CTC 1.
4. At the time of admission, it is mainly pointed out that whether the Writ would lie as against the affairs of the Society. The learned counsel would mainly contend that in an earlier occasion, the Writ Petition in W.P.(MD).No. 7555 of 2007 was filed by the Association before this Court. By an order, dated 18.09.2007, this Court dismissed the Writ Petition by directing the petitioner and its members are permitted to seek reference of the dispute under Section 90 of the Tamil Nadu Co-operative Societies Act. In paragraph 7 of the said order held as follows:-
"In my considered view, such a question cannot be adjudicated in a Writ Petition, in view of the larger Bench Judgment of this Court in K.Marappan V. State of Tamil Nadu (2006 (4) CTC 685). The petitioners have a remedy of seeking an arbitration under Section 90 of the Tamil Nadu Co-operative Societies Act, 1988. Therefore, the members of the petitioners Association will have to raise a dispute under Section 90 of the Act before the appropriate authority, for an adjudication of the dispute, which really involves disputed questions of fact. Hence, this Writ Petition is dismissed and the petitioner and its members are permitted to seek reference of the dispute under Section 90 of the Tamil Nadu Co-operative Societies Act."
In which, it is more categorically held that the petitioners have a remedy of seeking an arbitration under Section 90 of the Tamil Nadu Co-operative Societies Act, 1988. In fact it is also very clearly pointed out that it involves a question of dispute, question of fact and further, the members were permitted to refer the dispute under Section 90 of the Tamil Nadu Co-operative Societies Act. Unfortunately, the petitioner would contend that he was also a party in that earlier Writ Petition and he did not take any re-course under the Act. When we see Section 90, all the provisions for settlement of dispute in between the parities are given. The Section 90 of the Tamil Nadu Co-operative Societies Act is extracted hereunder:-
"(1) If any dispute touching the constitution of the board or the management or the business of a registered society (other than a dispute regarding disciplinary action taken by the competent authority constituted under sub-section (3) of Section 75 or the Registrar or the society or its board against a paid servant of the society) arises-
(a) among members, past members and persons claiming through members, past members and deceased members, or
(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its board or any officer, agent or servant of the society, or
(c) between the society or its board and any past board, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased servant of the society, or
(d) between the society and any other registered society, such dispute shall be referred to the Registrar for decision.
(2) The Registrar may, on receipt of such reference,-
(a) decide the dispute himself or transfer it for disposal to any person subordinate to and empowered by him; or
(b) subject to such Rules as may be prescribed, refer it for disposal to an Arbitrator or Arbitrators.
(9) (a) The period of limitation for referring a dispute under this section shall be regulated by the provisions of the Limitation Act, 1963 (Central Act 36 of 1963) as if the disputes were a suit and the Registrar, a civil Court, subject to the following modifications, namely:-
(i) when the dispute relates to a Society in respect of which a special officer has been appointed under Section 88 or to a Society which has been ordered to be wound up under Section 137, the period of limitation shall be six years from the date of the order issued under Section 88 or Section137, as the case may be;
(ii) save as otherwise provided in clause (i), when the dispute relates to any act or omission on the part of any of the parties referred to in clause
(b) or clause (c) of sub-section (1), the period of limitation shall be six years from the date on which the act or omission with reference to which the dispute arose, took place;
(iii) when the dispute is in respect of, or in connection with, any election, the period of limitation shall be two months from the date of declaration of the result of the election."
5. It is clear that the dispute which is now raised by the petitioner as a member of the Society, the amounts pertaining to the land acquired cost way back in the year 1998, is disputed in the present Writ Petition. The learned counsel appearing for the petitioner would contend that the discrepancy as between the claim as made in the original declaration and the subsequent modification for enhancement is drastic. It is pertinent to point out here that the dispute which has been raised by the petitioner is nothing but a pure dispute for failure to bring the amount of the Society or failure to account for the amount of the Society.
6. The claim of the Society against the member for failure to bring the amount of the Society was considered to be a dispute under Rule 73 and under Section 70 of the Act. As stated supra, in this connection, the petitioner has also approached this Court through the association and the petitioner having lost his battle especially he is an aggrieved person, as his personal allotment has been canceled. Therefore, he has now chosen to bring this Writ Petition in the form of a Mandamus. Even though this Court has originally directed him to invoke Section 90 of the Tamil Nadu Co-operative Societies Act, that has not been done because there is an another Clause under Section 90 i.e., Section 90(A), the period of limitation is six years. So it is for the Registrar to decide to take any matter under Section 90, if invoked or approached by the petitioner. In this connection the representations were only to the effect that they have to take action.
7. In any view of the matter, this Writ Petition as such will not maintainable as the Larger Bench of this Court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies reported in 2006 (4) CTC 689 and also subsequent Division Bench Judgment of this Court in T.K.Ananda Sayanam Vs. The Joint Registrar and others reported in 2007 (5) CTC 1. It has been categorically held that the Government or Society cannot be permitted as a instrumental state within the meaning and the bye-laws made by the Co-operative Society registered under the Tamil Nadu Co-operative Societies Act, 1983, do not have the force of law. Hence, the Society and the service conditions of the employee covered by this bye-laws, cannot be interference through the Writ Petition. Above all this, it is very clearly held that in the absence of such circumstances, this Court will not exercise its power under Article 226 of the Constitution of India, when the Act provides for alternative remedy.
8. Similarly in the Judgment in T.K.Ananda Sayanam Vs. The Joint Registrar and others reported in 2007 (5) CTC 1, this Hon'ble Court has categorically held that Article 226 of the Constitution of India cannot be invoked and the Writ Petition is not maintainable. Hence, the Writ is not maintainable as per the decision of this Hon'ble Court. But as per the earlier direction of this Court, it is always open to the petitioner to seek his remedy by filing application before the Registrar invoking under Section 90 of the Tamil Nadu Co-operative Societies Act.
9. With the above said observation and direction, this Writ Petition is disposed of. No costs.
vsg To
1. The Registrar of Co-operative Societies (Housing) Gandhi Nagar 4th Main Road Adayar Chennai
2. The Special Officer The Tiruchirappalli Co-operative House Construction Society Limited Makkal Mandram Thillai Nagar Tirchirapalli - 18