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2019 Supreme(Mad) 2571
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
T.A.S. Kaleelul Rahman & Others – Petitioners
Versus
The Registrar of Co-operative Societies (Housing), Chennai & Others – Respondents
Writ Petition Nos. 3715 & 23953 of 2019 & W.M.P. Nos. 4104 & 10068, 23810 & 23812 of 2019
Decided On : 06-09-2019
For the Petitioner:Isaac Mohanlal, Senior Counsel, D. Sadiq Raja, Advocate.
For the Respondent: Arvind Pandian, AAG-II, Asst. by L.P. Shanmugasundaram, Special Government Pleader, Kanmani Annamalai, Additional Government Pleader.
The main legal point established in the judgment is the application of Section 88(1) of the Tamil Nadu Co-operative Societies Act, 1983, and the clarification that there is no requirement for a statutory enquiry under Section 81 of the Act as a pre-requisite for taking action for supersession under Section 88(1).
Headnote:
Registrar of Co-operative Societies - Supersession of Board - Tamil Nadu Co-operative Societies Act, 1983, Section 88(1), G.O.Ms.No.224, W.P.(MD) No.21159 of 2017, W.P.No.33911 of 2018 - The court discussed the application of Section 88(1) of the Tamil Nadu Co-operative Societies Act, 1983, and the relevant government orders and directions, and upheld the validity of the order of supersession dated 08.01.2019.
Fact of the Case:
The petitioner challenged the order of supersession passed by the first respondent under section 88(1) of the Tamil Nadu Co-operative Societies Act, 1983, and the subsequent memorandum and public notice issued during the pendency of the writ petition.
Finding of the Court:
The court upheld the validity of the order of supersession dated 08.01.2019, and dismissed the writ petition challenging the same. The court also quashed the memorandum and public notice issued on 12.07.2019, as it was based on an erroneous impression that the stay order was vacated by the court.
Issues: The issues involved the application of Section 88(1) of the Tamil Nadu Co-operative Societies Act, 1983, and the validity of the government orders and directions, as well as the actions taken during the pendency of the writ petition.
Ratio Decidendi: The court held that the power of superseding a duly elected Board under Section 88(1) of the Act is an extraordinary power that must be exercised with caution. The court also clarified that there is no requirement for a statutory enquiry under Section 81 of the Act as a pre-requisite for taking action for supersession under Section 88(1).
Final Decision: The court upheld the validity of the order of supersession dated 08.01.2019, dismissed the writ petition challenging the same, and quashed the memorandum and public notice issued on 12.07.2019. No costs were awarded.
ORDER :
(Prayer in W.P.No.3715 of 2019: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue Writ of Certiorari, to call for the records pertaining to the impugned order issued by the 1st respondent made in Na.Ka.4814/2017/Sa.Pa.2 dated 08.01.2019 and quash the same.
Prayer in W.P.No.23953 of 2019: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue Writ of Certiorari, to call for the records pertaining to the impugned express memorandum made in Na.Ka.No.1 of 2018/Thu.Pa. Dated 12.07.2019 issued by the 2nd respondent as well as the consequential notice dated 12.07.2019 issued by the 3rd respondent published in 'DINAMALAR' news paper dated 13.07.2019 and quash the same.)
1. Heard the Learned Counsel for the Petitioner and the Learned Counsel for the Respondents.
2. The Writ Petition is filed challenging the order of supersession passed by the first respondent vide order dated 08.01.2019 in exercise of his power under section 88(1) of the Tamil Nadu Co-operative Societies Act, 1983.
3. The petitioner was elected and assumed Office as President for the Tiruchirapalli Co-operative House Construction Society Ltd, on 11.08.2018. The said society is a self reliant Society functioning without any Government share holding or financial assistance from the Government. In the year 1974, the Society promoted a lay-out at Tiruchirapalli in the name of “Anna Nagar lay-out.” Out of 27 shop sites 17 sites sold till 2001. Out of the 17 sites for 15 sites sale deeds were executed. In respect of shop Numbers 7 and 11 though the allottees (T.S.M. Boopathy and S.Muthunagarathinam respectively) paid the entire sale price in the year 2001 itself, sale deed was not executed. In the year 2013, when the elected body took charge of the Board, the allottees made request for execution of sale deed, accordingly the Board passed a resolution unanimously to execute the sale deed in their favour and on 08.08.2016, executed sale deed for the shop sites Nos. 7 and 11.
4. In respect of these transactions, enquiry under section 81 of the Tamil Nadu Co-operative Societies Act, 1983, was initiated by the 3rd respondent/Regional Deputy Registrar (Housing), vide proceedings dated 27.01.2017 to enquire into whether the Society has sold any house sites and shop sites on or after 01.01.2016 in contravention to G.O.Ms No.224 of Housing and Urban Development Department dated 27.11.2009. The said enquiry proceedings was stayed by the High Court in W.P (MD) No. 8524 of 2017 filed by one M.Sait. The said writ petition is still pending.
5. With respect to allottee’s those who failed to remit the entire cost were communicated on 05.06.2017 intimating about cancellation of the allotment and return of part sale consideration paid by them. Out of eight notice, intimating intention of cancellation of allotment, 3 appeared and produced document that they have paid the sale price in full prior to 27/11/2009. (The date of G.O.Ms.No.224). Then Board on 10.05.2017 resolved to execute the sale deed to these three persons who have paid the full sale price prior to 27.11.2009. Further, the Board resolved to authorise the Secretary to the Society to execute the sale deed on behalf of the society. By virtue of the said resolution, the Secretary to the Society executed sale deed in favour of these three persons in the month of May 2017. This also became the subject matter of Section 81 enquiry, alleging that it was in violation of G.O.Ms.No.224. Then, after filing of Writ Petition in W.P.(MD).No.16719 of 2017 challenging the enquiry notice, the notice was withdrawn on administrative ground.
6. The G.O.Ms.No.224 Housing and Urban Development Department, dated 27.11.2009 and the consequential direction issued by the Registrar of Co-operatives (Housing) vide proceedings dated 21.12.2012 challenged by the society in W.P.(MD) No.14
