Madras High Court
N.Ganesan vs The Secretary To Government on 13 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/12/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.14052 of 2010
and
W.P.(MD)No.14801 of 2010
and
M.P.(MD)Nos.1,2 and 1 of 2010 and 1 of 2011
N.Ganesan .. Petitioner in
WP(MD)No.14052 of 2010
M.R.Loganathan .. Petitioner in
WP(MD)No.14801 of 2010
Vs.
1.The Secretary to Government,
Animal Husbandry Dairying and
Fisheries Department,
Chennai-9.
2.The Commissioner for Milk Production
Dairy Development,
Chennai-5.
3.The District Collector and Special Officer,
Tiruchirappalli District Cooperative
Milk Producers Union,
Trichy-23.
4.The Commissioner,
Tiruchirappalli Municipal Corporation,
Trichy. .. Respondents in
WP(MD)No.14052 of 2010
1.The Chief Secretary,
Government of Tamil Nadu,
Fort St. George,
Chennai.
2.The Principal Secretary to Government,
Municipal Administration and Water Supply
Department,
Fort St. George, Chennai.
3.The Secretary to Government,
Municipal Administration and Water Supply
Department,
Fort St. George, Chennai.
4.The Secretary to Government,
Animal Husbandry, Dairying and Fisheries
Department,
Fort St. George, Chennai.
5.The Commissioner for Milk Production and
Dairy Development,
Madhavaram Milk Colony,
Chennai-51.
6.The Joint Managing Director,
Tamil Nadu Cooperative Milk Producers' Federation,
No.29 & 30, Industrial Estate,
Ambattur, Chennai-98.
7.The Union Special Officer-cum-District Collector,
Trichy District Coop Milk Producers' Union Ltd.R 614,
Kottapattu,
Trichy-23.
8.The District Collector,
Trichy District.
9.The Commissioner,
Trichy Corporation,
Trichy.
10.The Managing Director,
Trichy District Coop Milk Producers
Union Ltd. R 614,
Kottapattu, Trichy-23.
11.The Society Special Officers,
Trichy District Coop. Milk Producers
Union Ltd. R 614,
Kottapattu, Trichy-23. .. Respondents in
WP(MD)No.14801 of 2010
W.P.(MD)No.14052 of 2010 has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to forbear the
third respondent from dealing with the immovable property to an extent of 3.39
acres n New Ward-V, Block-2, T.S.No.6, Thanjavur Road, Tiruchirappalli belongs
to the third respondent union either by selling or encumbering based on the
representation dated 19.11.2010.
W.P.(MD)No.14801 of 2010 has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of certiorarified
mandamus to call for the records pertaining to the resolution dated 01.12.2010
passed by the 21 societies special officers on behalf of the 672 Tiruchirappalli
District Cooperative Milk Producers' Union Ltd, R 614, for selling the property
situate at Old Palpannai Roundana, Trichy-Thanjavur Road, Trichy comprised in
S.Nos.135/1 & 135/2 to the extent of 3.39 acres and quash the same and to direct
the respondents not to interfere with the peaceful possession and enjoyment of
the property.
!For Petitioners ... Mr.D.Rajendiran in WP(MD).14052 of 2010
Mr.C.Muthusaravanan in WP(MD).14801 of 2010
^For Respondents ... Mr.M.Govindan, Spl.G.P. for RR1 to 3
in WP(MD)No.14052 of 2010
for RR1 to 8 in WP(MD).14801 of 2010
Mr.J.Parekhkumar
for Mr.P.Srinivas for R-4 in WP(MD).14052 /2010
for R-9 in WP(MD)No.14801 of 2010
- - - -
:COMMON ORDER
These two writ petitions though filed by two different individuals raises identical questions, i.e., whether the action of the third respondent Tiruchirappalli District Cooperative Milk Producers Union in proposing to sell the immovable properties to an extent of 3.39 acres situated in S.Nos.135/1, 135/2 (T.S.No.6, Block-2, New Ward 5) in Thanjavur Road at Tiruchirappalli was legal and valid?
2.While the first writ petition seeks for a direction to the third respondent Cooperative Society to forbear from selling the said properties and to pass orders on the representation sent by the petitioner, dated 19.11.2010, the second writ petition questions the resolution dated 1.12.2010 adopted by the Special Officer of the 21 societies in proposing to sell the property.
3.In the first writ petition, notice was ordered on 30.11.2010. It was stated that any decision taken in the general body meeting to be held on 01.12.2010 shall be subject to final order passed in the writ petition. In the second writ petition, notice of motion was ordered on 20.12.2010 and an interim stay was granted. Subsequently, the writ petition was admitted on 21.1.2011. Pending the writ petition, this court had extended the interim stay and directed the respondents to file a counter affidavit. Aggrieved by the interim order, a petition to vacate the interim order was filed by the Commissioner, Tiruchirappalli Municipal Corporation in M.P.(MD)No.2 of 2010 in W.P.(MD)No.14052 of 2010 and in M.P.(MD)No.1 of 2011 in WP(MD)No.14801 of 2010 together with supporting counter affidavits, dated 15.12.2010 and 05.01.2011 respectively. These two applications are yet to be taken up for hearing. On behalf of the Commissioner for Milk Production and Dairy Development,a detailed counter affidavit, dated 25.3.2011 was also filed.
4.The case of the first writ petitioner was that he was a member of the Tamil Nadu Milk Producers Welfare Association, Jadamangalam, Musiri Taluk. The said society is a member of the third respondent District Cooperative Milk Producers Union. The District union has its area of operation consists of revenue districts of Trichy, Karur, Perambalur and Ariyalur. It has got 700 affiliated Milk Producers Cooperative Societies as its members, which in turn has the following of 3 lakhs milk producers who are members of various primary village milk producers cooperative societies. The third respondent has a paid up share capital of Rs.147 lakhs from the members and Rs.4 lakhs as the Government's share. The then Trichy Srirangam District Milk Suppliers Union had purchased the property to an extent of 3.30 acres from one Paramasivampillai in the year 1961. Later it was handed over to the third respondent union in the year 1984. They have exclusive possession over the property. Out of 3.39 acres, 2.545 acres are under the control of Mineral and Mixer Plant erected under the Government of India Industrial Agriculture Development Programme Scheme (IADP) with 100% grant. After excluding the areas occupied by the zonal marketing office with approach roads, only 0.85 acres alone is not in actual use. The third respondent is effectively using all 3.39 acres purchased in the year 1961.
5.The said union was managed by an elected Board of Directors upto the year 2001. Thereafter, no elections were held. It is manned by Special Officers nominated by the Registrar of Cooperative Societies. The District Collector, Tiruchirappalli was appointed as the Special Officer by the second respondent by virtue of his power exercised under Section 89 of the Tamil Nadu cooperative Societies Act. The Special Officer appointed has no power to deal with the immovable properties either by selling or by giving it on lease. The Mineral mixer plant with 100% assistance from the Government of India was erected at the old dairy complex to cater to the requirement of several lakhs milk producers. The remaining unused 0.85 acres are also required for construction of godown for mineral mixer plant and for the construction of a Ice cream plant and for future expansion. It is stated that the third respondent has sent a proposal for selling of 3.39 acres to the fourth respondent. The second respondent had objected to the same. The Special Officer and District Collector, Tiruchirappalli has no power to deal with the immovable properties belonged to the third respondent. Hence the petitioner has filed the present writ petition.
6.In the second writ petition, the petitioner challenged the resolution passed by the Special Officer purporting to be the minutes of the General Body meeting held on 1.12.2010. The minutes of the General Body meeting held on 11.11.2010 had referred to the fact that the then Deputy Chief Minister and some Ministers have held a meeting along with other officials and some decisions were taken. The same was placed before the General body. It had agreed to hand over 3.39 acres of society's land in which old building was also there, for the purpose of relocating the Gandhi market and for giving prior permission for the entry into the land by the Corporation. The market value for the land was fixed at Rs.530/- per sq.ft. The total extent of area was identified as 1,47,668.4 sq.ft. The amount of compensation to be received was worked out to Rs.7,82,64,252/-. The District Collector, Trichy had forwarded the guideline value for the property which only showed Rs.416/- per sq.ft. On the basis of the market value fixed by the District Revenue Officer and the guidelines value, proper price must be fixed. It was further decided to get approval from the State Government through the office of the Registrar-cum-Commissioner for Dairy Development. The minutes was signed only by 19 persons/Special Officers.
7.The stand of the petitioner was that the society comprised of 672 societies. The Special Officer cannot place the subject before a General body meeting and get its clearance. Under Rule 78 of the Tamil Nadu Cooperative Societies Rules, 1988, no cooperative society shall dispose of the immovable property without prior permission of the General Body of the union and the Registrar of Dairying Cooperative Societies. Even primary societies are run by the Special Officers appointed by the Commissioner for Milk Production and Dairy Development being the Registrar. They cannot decide the alienation of the properties of the society without any warrant for the same. Even persons who had signed the minutes on 01.12.2010 have sent written representation stating that they have acted without jurisdiction. The guideline value for the property worked out to Rs.1818/- per sq.ft. Whereas it has been grossly under valued and fixed at Rs.530/- per sq. ft. The land in question is required for future expansion. Under Section 71 of the Tamil Nadu Cooperative Societies Act, no property of a registered society, whether movable or immovable shall be used or allow to be used except in accordance with the provisions of the Act, Rules and bylaws. The bylaws of the society, i.e., bylaw No.34(xi)(c) authorises the society to sell the lands belonging to the union when not required subject to prior approval by the Registrar. Therefore, he prayed for setting aside the resolution of the society.
8.In the counter affidavit filed by the Commissioner, Tiruchirappalli Corporation, the fact of their request for the property for relocating the wholesale Gandhi market was conceded. It was also claimed that the land was not required for the society. The market value was inflated by the petitioners. The old building in the land was in a dilapidated condition. It was stated that in the meeting held before the Deputy Chief Minister of Tamil Nadu in which the Ministers for Transport and Dairy Development and other officials have participated, a decision was taken in this regard. In paragraph 10 of the counter by the Corporation, it was averred as follows:
"10....In the above meeting detailed discussion was held and the following decisions were arrived at among other things. The land located in new ward V, Block-2, T.S.No.6 measuring 3.249 acres as per present survey register (as per old 'A' Register the exact area is 3.39 acres) including old structures for handing over to the 9th respondent for shifting anticipating remittance of the land cost and to permit the 9th respondent to enter upon the premises and to request the Srirangam Milk supply Union and special officer / District Collector for passing suitable resolution mentioning the market and guidelines value."
9.On the allegation of lack of democratic process, the Corporation Commissioner averred as follows:
"17....It is submitted that the requirement of Rule 78 is that the decision of the General Body of the Society concerned has to decide. In the present case, it is the said General body of the District Union that has arrived at the decision to sell the lands. The petitioner cannot be heard to say that each of the Special Officers has to get the decision of the General Body of the concerned society for their decision. It is nothing but an exercise in futility suggested by the petitioner. As the majority of the societies have been represented by the Special Officers numbering 21 out of 25 have passed the resolution, the said resolution is perfectly valid and the petitioner cannot insist that the resolution has to be passed unanimously. Such an unanimous decision is not required as per the Rules in force and it is only the decision of the majority that counts."
10.On the question of divesting the society from the property possessed by it, in paragraph 18, it was averred as follows:
"18.....In view of the same the lands are lying unused. Now by the selling of the lands, the Society will be benefited by the funds obtained by such sale. It is further submitted that movement of the heavy vehicles such as Milk Tankers will be restricted and the entry of the said vehicles into the city can be avoided and it is only because of the impossibility of the movement of Milk Tankers into and out of the said premises, the operations have been shifted to Pudukkottai Road."
11.It is surprising as to how the Corporation can speak about the property of some other legal entity and contend as if their requirement of the land was inconsequent. It was only the corporation's commercial motive is the sole factor which led to the decision.
12.On the other hand, in the counter affidavit in W.P.(MD)No.14052 of 2010 filed by the second respondent Commissioner for Milk Production and Dairy Development, who is also the functional Registrar of the Dairy Cooperative societies under Section 3 of the Tamil Nadu Cooperative Societies Act speaks with a different tone. He had stated that the General Manager of the Tiruchirappalli District Milk Producers Union sent a proposal for giving on lease its complex to the Corporation of the Tiruchirappalli for shifting the wholesale market known as Gandhi Market. The matter was examined by the second respondent. It was found that since the reason was only commercial reason and the cooperative society requires the land for its own business interest, the proposal was not correct. The society was also asked to give its explanation as to how such proposal can be considered. The response of the society was awaited.
13.In the meanwhile, on 20.5.2010, a meeting under the Chairmanship of the then Deputy Chief Minister was held along with certain other ministers and officials. During the meeting, the proposal for selling the land to the corporation came up. But the second respondent has sent his written remarks dated 19.8.2010 for consideration by the Government. The remarks reads as follows:
"(i)It was pointed out that the valuation of Rs.530/- per sq ft arrived by the District Revenue Officer, Tiruchirappalli does not in any way commensurate with the guideline value or market value prevailing in that area. The guideline value as ascertained by the General Manager of Aavin Tirichirappalli from Sub Registrar is Rs.1818/- per sq.ft. Based on this, the value of land roughly comes to Rs.25.71 crores, whereas as per the District Revenue Officer's value it comes to only to Rs.7.49 crores. The market value as ascertained by the General Manager of Aavin Tiruchirappalli is around Rs.2200/- sq.ft. to Rs.2500/- sq.ft.
(ii)It was indicated that the land required by the Tiruchirappalli Corporation is only to shift the Whole sale market which is only a commercial interest where as the Tiruchirappalli Milk Union is a Cooperative with a social objective of improving the socio-economic condition of the milk producers by providing employment and pave way for regular income through dairying.
(iii)During the meeting held on 20.05.2010, before the Hon'ble Deputy Chief Minister it was submitted by the 2nd respondent that Tiruchirappalli milk union cannot spare entire land and discussion revolved only on 0.85 acres. The requirement of land for the use of milk union was explained. It was also informed in the meeting that Tiruchirappalli Collector/Special Officer of Tiruchirappalli milk union's proposal was heavily loaded in favour of Tiruchirappalli Corporation and he has not taken the interest of milk union wherein he is functioning as the Board (Special Officer) and supposed to statutorily safeguard the interest of the Milk Union as per sec. 88(3) of the TN Cooperative Societies Act 1983.
(iv)The proposal of Tiruchirappalli Corporation, District Collector Tiruchirappalli and Commissioner Municipal Administration is unilateral and not in the interest of Milk union in particular and milk producers of four districts for whose benefit, this milk producers' union was organized. The interest of the milk Union will be safeguarded if the Tiruchirappalli Corporation shifts the wholesale market to some other vacant government land available around Tiruchirappalli instead of requesting Tiruchirappalli milk union land.
(v)The resolution of Tiruchirappalli Corporation dated 31.5.2010 and proposal of the Commissioner, Tiruchirappalli Corporation dated 02.08.2010 clearly states that they had requested to fix lesser sale price for the land after taking into consideration of their financial position totally unmindful of the interest of the Milk union. They have also requested Government order to pay the sale proceeds in instalments depending upon the financial condition of the Tiruchirappalli Corporation and enter upon permission given as was done in the case of Vellore bus stand model as ordered in GO Ms. No.141 Municipal Administration and Water Supply Department dt.31.7.08. In this regard it is to be stated tht Government vide GO Ms No.141 Municipal Administration and Water Supply department dt.31.7.2008 have appointed a committee to value the land measuring 8.70 acres belonging to Vellore District Coop. wholesale stores. The Vellore District wholesale store was paid only Rs.50 lakhs as initial lease amount. It is reliably learnt that rate offered by the committee was not acceptable to the Cooperative department and the valuation has not yet been finalized. If the Vellore Bus stand model is taken as precedent for Tiruchirappalli milk union, it will cause irreparable loss to the Tiruchirappalli milk union and interest of the milk producers will suffer. The cooperative society is a body corporate where individual members have a stake in the affairs of the society including its assets
(vi)As per rule 78 of the Tamil Nadu Cooperative Societies Rules 1988, "no cooperative society shall dispose of the immovable property without the prior permission of General Body of the union and the Commissioner for Milk Production and Dairy Development who is the Registrar of Milk Cooperatives". In the instant case, since no elected Board is constituted, the District Collector, Tiruchirappalli is the Special Officer of the Tiruchirappalli milk union and the affiliated 662 societies are managed by the Special Officers appointed by Commissioner. Thus 25 (now 32) Special Officers will be representing the 662 societies in the General Body. As ether is no elected board either at Union or at primary level (General body of the Union) more responsibility is cast on the Special Officer / District Collector under Rule 78 and sec. 88(3) to safeguard the interest of the milk union and on Commisisoner as Registrar of the Milk Cooperatives as well as on Govt. towards safeguarding the interest of the milk producers of the Tiruchirappalli milk union.
(vii)Tiruchirappalli milk union procures around 3.02 LLPD (year average) from the producers and sells around 1.13 LLPD (year average) to the local consumers and balance is supplied to Chennai metro for meeting the demands of Chennai consumers. This Union is one of the main Dairies which contribute to the Chennai Metro Dairies and future needs of the Chennai will also be shared by the Tiruchirappalli milk Union. As such the expansion of Tiruchirappalli Dairy is indispensable and the entire land at old Dairy complex will be essential.
(viii)The area of operation of Tirichirappalli milk Union is vast comprising of four districts. Apart from this there is no dairy or chilling centre available in Pudukkottai district. The milk of that district is also handled at Tiruchirappalli dairy only. Further the nearby Thanjavur milk union is also financially weak and dairy is old. Tiruchirappalli milk union often has to support the processing / packing needs of that union also at Tiruchirappalli.
Further National Dairy Development Board (NDDB) which has formulated the National Dairy Plan have projected that the procurement of Tiruchirappalli milk Union will be around 6.06 LLPD in the year 2021-22 and to that extent handling capacity of the dairy has to be expanded year after year. For these expansions the Tiruchirappalli milk union has to retain this land."
14.Even while the remarks were under examination by the State Government, another meeting was convened on 11.11.2010 under the chairmanship of the then Deputy Chief Minister. Significantly the second respondent who is the Registrar of the Dairy society, was not invited to that meeting. The decision of the meeting alone was conveyed by the Principal Secretary, Municipal Administration and Water Supply Department, dated 12.11.2010. It was directed by the Government as follows:
"(i)the land to an extent of 3.249 acres which includes old buildings belonging to Tiruchirappalli district Cooperative Milk Producers Union which is lying unused shall be handed over and enter upon permission given to the Tiruchirappalli Municipal Corporation in anticipation of fixation of value by the government and payment of sale consideration.
(ii)the Tiruchirappalli milk Union has to pass resolution so as to issue enter upon permission in anticipation of the payment of land cost by Tiruchirappalli Corporation. In the minutes the guideline value and market value have to be noted for determining the suitable price by the Government.
(iii)The above resolution has to be resolved by the General body and necessary proposal should be sent to the functional Registrar of milk cooperatives.
(iv)The Registrar of Milk cooperatives has to give concurrence on the proposal within 3 days and to send report to the Principal Secretary, Municipal Administration and Water Supply Department under copy to Secretary to Government, Animal Husbandry, Dairying and Fisheries Department.
(v)The Principal Secretary, Municipal Administration and Water Supply Department has to issue Government orders by sending the report for circulation to Secretary to Government, Animal Husbandry, Dairying and Fisheries Department and Chief Secretary to Government."
15.The premises that the land was not used was stoutly denied by the second respondent. It was stated that mineral mixture plant was erected and functioning in the site with the Government of India's 100% assistance under NADP Scheme. It caters to the mineral mixture requirement of milch animals of several lakh milk producers of five neighbouring District milk unions. The building in the land is used for storage of raw materials of mineral mixture and finished goods. There is also marketing office and that daily collection of sale proceeds from various units and agents and distribution of milk cards to consumers have been done. The marketing office handles around Rs.9.50 lakhs cash daily and marketing related activities are undertaken. The building is also maintained in a good manner.
16.But, in view of the directions given by the State Government, in paragraphs 8, he had averred as follows:
"8....However, based on the decision taken in the meeting held on 11.11.2010 regarding handing over of land to Tiruchirappalli Corporation, the District Collector / Special Officer of Tiruchirappalli Milk Union on 13.11.2010 has resolved to handover the land to Tiruchirappalli Corporation, pending fixation of value by the Government. The general body of the union supposed to be represented by the presidents of 660 affiliated primary societies but now represented by 32 special officers was convened on 01.12.2010 wherein 21 special officers alone were present and resolution was passed on line with the above direction of the Government. Accordingly, the General Manager, Tiruchirappalli Milk Union has submitted proposal along with the resolutions of the Board and General Body on the above issue to 2nd respondent / Registrar of Milk Cooperative Societies for his approval as per Rule 78 of the Tamil Nadu Cooperative Societies Rules 1988."
17.With reference to the power of the Special Officer, i.e. the District Collector, Tiruchirappalli to deal with the property, the second respondent Commissioner had averred in paragraph 12 as follows:
"12....It is true that the Special Officer has got no power under Rule 87 of Tamil Nadu Cooperative Societies Rule 1988 to lease out the land without prior permission Commissioner for Milk Production and Dairy Development. When the proposal came up for leasing out of the land of Trichy Union, the proposal was not agreed and the Tiruchirappalli milk union was asked vide letter Rc.No.11004/N2/09, dt: 03.10.2009 of the 2nd respondent herein to explain under which provision of Act / Rules the proposal of the union could be entertained. For the sale of land also, the Special Officer has got no power to sell land but as per Section 78 of Tamil Nadu Cooperative Societies Act 1983, the subject has to be placed before the General Body for its approval and prior permission of the Commissioner for milk Production and Dairy Development is essential."
18.With reference to under valuation of the property, he had averred in paragraph 13 of the counter affidavit as follows:
"13.....The guideline value as ascertained by the General Manager of Aavin Tiruchirappalli from Sub registrar is Rs.1818/- per sq.ft. Based on this, the value of land roughly comes to Rs.25.71 crores, whereas as per the District Revenue Officer's value it comes to only to Rs.7.49 crores. The market value as ascertained by the General manager of Aavin Tiruchirappalli is around Rs.2200/- sq.ft. to Rs.2500/- sq.ft. The 2nd respondent has no knowledge how guideline value was taken as Rs.416/- by the District Collector / Special Officer, Tiruchirappalli milk Union in the board resolution dated 13.11.2010 when his own Union has obtained guideline value from the Joint Registrar I as Rs.1818/- per sq.ft. Joint Sub Registrar letter No.1063301/Sub/2010 dated 12.08.2010. This itself shows that 3rd respondent has not taken interest of the Tiruchirappalli milk Union of which he is the Special Officer."
19.The future requirement of land for the society is set out by the Commissioner in the following words in the same paragraph, and it reads as follows:
".....the interest of the milk Union will be safeguarded if the Tiruchirappalli Corporation shifts the wholesale market to some other vacant government land available around Tiruchirappalli instead of requesting Tiruchirappalli milk union land. Further it is reiterated that to meet the increased projected procurement of 6.06 Lakhs litres of milk per day during 2021-22, the expansion of Tiruchirappalli Dairy is indispensable and the entire land at old Dairy Complex will be essential."
20.The counter affidavit filed by the second respondent is more revealing. It shows the shocking state of affairs in the cooperative movement. Time and again the courts have emphasized the need to lead the cooperative movement in a democratic manner. The power of the State Government and the Registrars to give direction to the cooperative societies are very limited. In a case where there was no elected board of directors and if it is run by nominated Special officers, they also have very limited power in terms of Section 89 of the Tamil Nadu Cooperative Societies Act. When the State Government introduced Section 89- A permitting the Special Officers enabling them to enroll members to the societies, the said provision was challenged before this Court. It was posted before a Full Bench. The Full Bench held that Section 89-A of the Cooperative Societies Act is ultravires and violative of Article 14 of the Constitution vide its judgment in K.Nithiyanantham Vs. State of Tamil Nadu and others reported in 2006 (1) CTC 1.
21.Even otherwise, the Supreme Court had an occasion to consider a similar question on the power of nominated special officers vis-a-vis Board of Directors / Committee of Management of the society in respect of Karnataka and Kerala Cooperative Societies Act, wherein similar provisions were also found. The first decision was in K. Shantharaj v. M.L. Nagaraj reported in (1997) 6 SCC 37, wherein the Supreme Court in paragraphs 4,5 and 8 had held as follows:
"4...........
(3) The Special Officer shall, subject to the control of the State Government and the Registrar, exercise and perform all the powers and functions of the committee of the cooperative society or any officer of the cooperative society and take all such actions as may be required in the interest of the cooperative society."
5.It would be clear from the language of these provisions that the Administrator or special officer, subject to control of any of the functions of the society, and in the interest of the society can take such action as is necessary for proper functioning of the society as per law. He should conduct elections as is enjoined thereunder. In other words, he is to conduct election with the members as on the rolls and by necessary implication, he is not vested with power to enrol new members of the society.
8.Shri Santosh Hegde, learned Senior Counsel, contends that since the Administrator has power to conduct elections, by necessary implication, he has power to update the electoral lists by either enrolling the new members or substituting the legal representatives of the members in accordance with the bye-laws; therefore, he has power to enrol the members. We find that there is no force in the contention. The power of Administrator given under the statute to conduct elections should be confined within the parameters set under the relevant provisions of the Act, rules and bye-laws. The Division Bench has minutely and carefully gone into all the questions and agreed with the learned Single Judge that the Administrator has no power to enrol new members; but he has the power to organise election process in accordance with the provisions of the Act, the rules and the bye-laws of the Society. In that view of the matter, we think that the High Court has not committed any error of law warranting interference."
22.The Supreme Court in an another decision in Jt. Registrar of Co. Societies v. T.A. Kuttappan reported in (2000) 6 SCC 127 in paragraph 7 had observed as follows:
"7...... We may add that a cooperative society is expected to function in a democratic manner through an elected Committee of Management and that Committee of Management is empowered to enrol new members. Enrolment of new members would involve alteration of the composition of the society itself and such a power should be exercised by an elected committee rather than by an administrator or a committee appointed by the Registrar while the Committee of Management is under supersession. This Court has taken the view, it did, bearing in mind these aspects, though not spelt out in the course of the judgment. Even where the language of Section 30-A of the Karnataka Act empowering a Special Officer to exercise and perform all the powers and functions of the Committee of Management of a cooperative society fell for consideration, this Court having expressed that view, we do not think, there is any need to explore the difference in the meaning of the expressions "have power to exercise all or any of the functions of the committee" in the Act and "exercise all or any of the functions of the committee" in the Karnataka Act as they are not different and are in substance one and the same and difference in language will assume no importance. What is of significance is that when the Committee of Management of the cooperative society commits any default or is negligent in the performance of the duties imposed under the Acts, rules and the bye-laws, which is prejudicial to the interest of the society, the same is superseded and an administrator or a committee is imposed thereon. The duty of such a committee or an administrator is to set right the default, if any, and to enable the society to carry on its functions as enjoined by law. Thus, the role of an administrator or a committee appointed by the Registrar while the Committee of Management is under supersession, is, as pointed out by this Court, only to bring on an even keel a ship which was in doldrums. If that is the objective and is borne in mind, the interpretation of these provisions will not be difficult."
23.In the present case, as noted above, the bylaws of the society provides for prior approval of Registrar before the society divesting itself of its own property. That has not been done in this case. In the present case, it looks like a command performance done by the then Deputy Chief Minister, ministers in- charge of local bodies, cooperative societies and Transport to take away the society's property to be handed over to the Corporation of Tiruchirappalli arbitrarily and contrary to the provisions of the Tamil Nadu Cooperative societies Act and Rules made thereunder. No norms were followed in ordering such command performance. On the other hand, an attempt was made to ride roughshod over the bylaws of the society by using the District Collector who was a nominated Special Officer of the District Milk Producers Union to part with the valuable property to the Corporation without any justification. Not only the resolution passed in the General Body meeting comprised of 21 special officers is per se illegal, but also no prior approval was obtained from the Registrar. Even in the second meeting held in the chambers of the then Deputy Chief Minister, for reasons best known, the Commissioner for Milk Production cum Registrar of Dairy societies was not even invited. He had also registered his objection which was also not considered. But nevertheless a direction was given to the Registrar of Milk Cooperatives. In the absence of any prior approval by the Registrar of Dairy Societies, the Special Officer, who had only a limited role, cannot sell the property of the society. The other allegation that the properties have been grossly under valued is made clear from the valuation report submitted by the second respondent Commissioner for Milk Production.
24.Under these circumstances, this court has no other alternative, except to set aside the resolution passed by the Tiruchirappalli District Cooperative Milk Producers Union in selling the property situated at Old Dairy Farm Roundana, Tiruchirappalli-Thanjavur Road, comprised in S.Nos.135/1 and 135/2 to an extent of 3.39 acres to the Tiruchirappalli Municipal Corporation. The action initiated by them in this regard is completely unconstitutional and ultravires of the provisions of the Tamil Nadu Cooperative Societies Act and the rules framed thereunder. Accordingly, both writ petitions will stand allowed as prayed for. No costs. Consequently connected miscellaneous petitions will stand closed.
25.Before parting with this case, this court also records its appreciation for the efforts taken by the second respondent Commissioner for Milk Production and Dairy Development in safeguarding the interest of the societies property by filing proper objections and a truthful counter affidavit before this court. It is a rare posture in the modern times when bureaucracy is prone to succumb to the pressure of the power that be and give a go-by to administrative norms and fair play.
vvk To
1.The Secretary to Government, Animal Husbandry Dairying and Fisheries Department, Chennai-9.
2.The District Collector and Special Officer, Tiruchirappalli District Cooperative Milk Producers Union, Trichy-23.
3.The Commissioner, Tiruchirappalli Municipal Corporation,
4.The Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai.
5.The Principal Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai.
6.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai.
7.The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Chennai-51.
8.The Joint Managing Director, Tamil Nadu Cooperative Milk Producers' Federation, No.29 & 30, Industrial Estate, Ambattur, Chennai-98.
9.The Union Special Officer-cum-District Collector, Trichy District Coop Milk Producers' Union Ltd.R 614, Kottapattu, Trichy-23.
10.The District Collector, Trichy District.
11.The Commissioner, Trichy Corporation, Trichy.
12.The Managing Director, Trichy District Coop Milk Producers Union Ltd. R 614, Kottapattu, Trichy-23.
13.The Society Special Officers, Trichy District Coop. Milk Producers Union Ltd. R 614, Kottapattu, Trichy-23.