IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.26400 of 2009, 12425 and 16061 of 2010 W.P.No.26400 of 2009 : R.Bakthavatchalu .. Petitioner Vs. 1.The Registrar of Cooperative Societies (Housing), No.22,4th Main Road, Gandhi Nagar, Adayar, Chennai-600 020. 2.The Deputy Registrar of Cooperative Societies (Housing), No.18,Ramanathan Street, T.Nagar, Chennai-600 017. 3.The Special Officer, Tamil Nadu Cooperative Housing Society, No.18, Ramanathan Street, T.Nagar, Chennai-17. (R-3 cause title amended as per order dt.3.2.2010 in M.P.No.1 of 2010) .. Respondents W.P.Nos.12425 and 16061 of 2010 : 1.K.S.Kabilan 2.E.Sheela 3.S.Bhuvana 4.C.Santhi 5.P.Vimala 6.G.Kumar Rao 7.K.Komala 8.D.Narasimman 9.A.Mallika 10.M.Saraswathi 11.M.Suriyabai .. Petitioners in W.P.No.12425 of 2010 1.S.Chelliah 2.G.Dinakaran 3.G.Madhu Sudhan 4.P.Narayanan 5.V.Muthazhagi 6.P.Mohan 7.M.Venkatesalu 8.R.S.Chandramohan 9.A.Pitchaimani 10.N.Dhilli Babu 11.C.Simson Devid 12.S.Thirumalai 13.C.Ravikumar 14.P.Thangaraj 15.V.Jayanthi 16.K.Muthamizh Selvi 17.A.Kamatchi 18.S.Venkatesan 19.K.Kannan 20.A.Sivakaminathan 21.R.Durai Babu 22.S.Sivaselvan 23.K.Chandrakantham 24.P.Navaneetha Krishnan 25.R.Shanmugam 26.N.Siva Rama Sedhu 27.Prema .. Petitioners in W.P.No.16061 of 2010 Vs. 1.The Secretary to State, Government of Tamil Nadu, Department of Housing and Urban Development, Fort St. George, Chennai-600 009. 2.The Registrar of Cooperative Societies (Housing), No.22,4th Main Road, Gandhi Nagar, Adyar, Chennai-600 020. 3.The Managing Director, Tamil Nadu State Express Transport Corporation (SETC) Express Division, Pallavan Salai, Chennai-600 002. 4.The Deputy Registrar of Co-operative Societies (Housing) No.18, Ramanathan Street, T.Nagar, Chennai-600 017. 5.The Special Officer, Thiruvalluvar Transport Corporation Employees Cooperative Housing Building Society Ltd. (MDS/HSG-139) Thiruvalluvar Illam, Chennai-600 002 and also having office at No.18,Ramanathan Street, T.Nagar, Chennai-600 017. .. Respondents in both writ petitions W.P.No.26400 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records pertaining to the proceedings in Rc.No.2458/2006/SF1, dated 30.8.2010 on the file of the first respondent and quash the same as illegal, incompetent and ultravires and consequently to direct the respondents to register the undivided share of the petitioner as expeditiously as possible. W.P.Nos.12425 and 16061 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to allot the housing plot to each of the petitioners under the Singaperumal Kovil Housing Scheme framed in between the respondents and consequently to direct the respondents to register the land to each of the petitioners to an extent of 1800 sq.ft of the land as undivided share of the land at Singaperumalkoil, Kanchipuram Taluk and District within a stipulated time. For Petitioners : .Mr.R.Yashod Vardhan, SC for Mr.Ma.P.Thangavel in all W.Ps. For Respondents : Ms.C.Devi, GA for RR1 and 2 in W.P.No.26400 of 2009 and for RR1,2 and 4 in W.P.Nos.12425 and 16061 of 2010 Mr.J.Raja Kalifula, GP for R-3 in W.P.No.26400 of 2009 and for R-5 in W.P.Nos.12425 and 16061 of 2010 Ms.Rita Chandrasekaran for R-3 in W.P.Nos.12425 and 16061 of 2010 - - - - COMMON ORDER The petitioners in these three writ petitions were either employees or ex-employees of the State Express Transport Corporation. They are the members of TTC Employees Cooperative Housing Building Society. The said society had introduced an housing scheme and promised its members that they will allot 1800 sq.ft of lands at the rate of Rs.50000/-. Therefore, advances were taken from the Employees Provident Fund accumulation of each of petitioners and retained by the society. 2.During the year 1998, the office bearers of the said society had purchased certain lands in Thirukkatchur and Vinchiambakkam villages to be developed as Singaperumalkoil Housing Scheme. Even though certain lands were purchased in those two villages under different parcels, they were not allotted to the members of the society including petitioners. Therefore, one such member by name R.Bakthavatchalu (who is also the petitioner in W.P.No.26400 of 2009) had filed a writ petition before this Court being W.P.No.5789 of 2006 seeking for a direction to the respondents to allot housing plots under the scheme framed by them or in alternative to repay the amount deducted from their employees provident fund accumulation. 3.The said writ petition came to be disposed of by a final order dated 17.7.2008 wherein this Court had held that the petitioner should make a comprehensive representation which should be considered by the respondents within a time frame and in accordance with law. It was also observed that any decision taken should be a positive decision. Since the amounts were deducted from the provident fund towards housing scheme, the failure to allot housing plots amount to breach of trust and cheating, thus warranting an action against all concerned. At the time of hearing of the writ petition, the Transport Corporation of which the petitioners were its employees informed that certain amounts of lands were purchased by the real estate Company at Chennai without obtaining permission from the Registrar of Cooperative Societies (Housing) and the society did not submit any layout. There were also procedural irregularities in the transaction. A criminal complaint was also lodged against the President and other Directors of the Society which culminated in registered of cases by the CCIW of CID, Chennai Police on 8.5.2003. 4.Subsequent to the disposal of the writ petition, the petitioner in that writ petition had sent a representation. The then Registrar of Cooperative Societies (Housing) [by name K.P.P.Panneerchelvan], by an order dated 6.8.2009 had passed an order directing the Special Officer to register the lands in favour of the member since the High Court had given a direction in this regard and that they have no other option. The said officer without due regard to law and fair play had passed the said order and made it appear as if there was a direction from this court to allot the plots whether or not there were encumbrances and irregularities in the property transaction. In that order, it was recorded as follows: "Though Mr.R.Bakthavatsalu, the petitioner who is a Senior citizen who has invested his provident fund amount for the purpose of acquiring of land the said society, has not verified whether the site is suitable for construction of house, since there is no approach road for the said land. It is the fault of both the then elected board of directors and also the members of the society including the petitioner. No case has been taken, while purchasing the land. In this circumstances, the following are the real facts. 1)Purchased scattered lands (Pieces of land) 2)There is no approach road 3)There is no connection between one piece of land to another piece of land 4)There is no approval obtained from the Director of Town and Country Planning. 5)It is very difficult to obtain approval from the authorities concern, in view of no approach road for the said pieces of land. ORDER
In spite of all the above difficulties and problems, in view of the High Court direction in W.P.No.5789/2006, there is no other option except to comply with the instructions of the High Court and directing the Special Officer to register the land. Accordingly, I direct the Special Officer of the said society to register the land to the Petitioner namely Mr.R.Bakthavatsalu to the extent of his eligibility of the land as undivided share of land on or before 31.08.2009 and report." (Emphasis added)
5.The order passed by the said officer is contemptuous and that he had no right to draw any inspiration or get source of power from the order passed by this Court. On the other hand, this court had only directed the petitioner to make a detailed representation which was directed to be considered in accordance with law. As could be seen from the prayer made by the said Bakthavatchalu, he wanted either plots to be registered in his name or refund of the amount paid by him drawn from the PF accumulation. If for some reasons the lands purchased by the then Board of Directors, who were subsequently facing criminal action for their commissions and omissions and the land is not conducive for any housing development, the Registrar of Cooperative Societies (Housing) had an option to return the amounts with appropriate compensation. Thereafter getting inspiration from the said order, the petitioner R.Bakthavatchalu filed W.P.No.26400 of 2009 after sending a legal notice.
6.The prayer in that writ petition was for a direction to the third respondent to register the undivided shares of the petitioner pursuant to the direction issued by the Registrar of Cooperative Societies (Housing), dated 15.09.2009. In that writ petition, notice was directed to be issued to the third respondent. The learned Government Pleader was directed to take notice for official respondents. Even while the said writ petition was pending, the subsequent incumbent to the office of the Registrar of Cooperative Societies (Housing), had passed an order, dated 30.8.2010. For the sake of convenience, the said order may be reproduced in its entirety. It reads as follows:
"In the order second read above, the then Registrar (Housing) had issued order directing the Special Officer, Tiruvalluvar Transport Corporation Employees Cooperative Housing Society to register the land to the petitioner namely Thiru R.Bakthavatchalu to the extent of his eligibility of land as undivided share of land.
2.The Deputy Registrar (Housing), Chennai Region in his letter third read above has stated that the land purchased by the Society is scattered land in 14 pieces and there is no approach road, and there is no possibility of obtaining approval from CMDA. Further, criminal complaint has been launched against the erstwhile Board of Directors of the Society who are responsible for purchase of this scattered land and all the land documents are with the CCIW in connection with the criminal case No.3/2003 and hence land could not be registered in favour of Thiru R.Bakthavatchalu.
3.In view of the above said reasons, as there is no approach road and as there is no possibility of obtaining CMDA approval for this scattered land and as there is criminal case pending against the persons responsible for purchase of this scattered land, the order dated 06.08.2009 issued by the then Registrar (Housing) is hereby cancelled."
7.Even before that order could be received, 11 persons led by one K.S.Kabilan filed W.P.No.12425 of 2010 seeking for a direction to allot housing plots to an extent of 1800 sq.ft as was prayed in W.P.No.26400 of 2009. In that writ petition, notice was directed to be taken for the official respondents by the learned Government Advocate. For the Special Officer, private notice was ordered. During the pendency of the writ petition, since the order dated 30.8.2010 was passed by the Registrar of Cooperative Societies (Housing) negativing the claim of R.Bakthavatchalu, the petitioner in W.P.No.26400 of 2009, an amendment application was filed in M.P.No.1 of 2011 amending the prayer challenging the order dated 30.08.2010.
8.The contention was the Registrar of Cooperative Societies (Housing) cannot review the previous order passed by the previous incumbent to the office of the Registrar of Cooperative Societies vide order, dated 15.9.2009. Even otherwise, the said order was done without notice to the petitioners who have indefeasible right for getting the housing plots allotted to them. In the meanwhile, on notice from this Court, the Special Officer of TTC Employees Cooperative Housing Society had filed a counter affidavit, dated 10.5.2010 in W.P.No.12425 of 2010. When these two writ petitions were pending, a third writ petition, i.e., W.P.No.16061 of 2010 came to be filed by one S.Chelliah and 26 others seeking for allotment of housing plots in their favour which is similar to the prayer made in the other two writ petitions. In view of the interconnectivity among the three writ petitions, they were grouped together and a common order is passed.
9.Heard the arguments of Mr.R.YAshod Vardhan, learned Senior Counsel leading Mr.Ma.P.Thangavel appearing for the petitioners in all writ petitions, Ms.C.Devi, learned Government Advocate taking notice for the Registrar of Cooperative Societies (Housing) and Deputy Registrar of Cooperative Societies (Housing), Mr.Raja Kalifulla, learned Government Pleader appearing for the Special Officer TTC Employees Cooperative Housing Society and Ms.Rita Chandrasekar for M/s.Aiyar and Dolia appearing for the Tamil Nadu State Express Transport Corporation Limited.
10.In the counter affidavit filed by the Special Officer of the Housing Society in which the petitioners are members had stated that the erstwhile Board of Directors had clandestinely purchased agricultural lands with oblique motive and never took any steps to change its character and land classification to get approval for layout. When this Special Officer took in-charge of the society, he had taken steps to set right the damage and attempted to exchange the agricultural lands for an urban land for allotting house sites to all its members. The earlier Board of Directors had purchased 20.580 acres of lands under different parcels of lands which were situated in 14 different pieces in Thirukatchur of Singaperumal Kovil. The lands were purchased in different periods starting from 15.02.1998 to 27.04.2000. The cost of the purchase were met from the amount paid by the members of the society. At that time, there were as many as 369 members. The lands thus situated is not only coming under different parcels, but also they did not have any proper road and no approval from the Director of Town Planning was obtained. An enquiry under Section 81 of the Tamil Nadu Cooperative Societies Act was conducted. Based on the report, a criminal complaint was given to the CCIW. The land was continued to be classified as an agricultural land. It was impossible for the Special Officer to allot and register the housing plots without layout approval. In paragraph 10 of the counter, it was averred as follows:
"10.It is submitted that this respondents is taking effective steps to allot the housing sites to its members, by forming a lay out after changing the character of the land. For that purpose this respondent has passed a resolution on 14.8.2010 to enter into agreement with STN properties for allotting house sites of 1200 sq.ft of DTCP approved layout for 370 members instead of 1800 sq.ft land in Singaperumal Kovil Housing Scheme for this purpose. The society has resolved to exchange 20.68 extent of land which the society has purchased as unapproved layout at Singaperumal Kovil Housing Scheme to 18.07 acres of land of DTCP approved land from STN properties. Thus this respondent is taking effective steps to allot housing sites to its members in a lawful and proper manner. Hence the allegations of the petitioner is not true and the writ petition is filed by misconceiving the facts stated above."
11.Mr.R.Yashod Vardhan, learned Senior Counsel submitted that pursuant to the direction issued by this Court, the Registrar of Cooperative Societies (Housing) had passed an order dated 15.09.2009 in the case of R.Bakthavatchalu. Subsequently, the Registrar had no right to resile from the said order. Hence the order passed by the Registrar of Cooperative Societies (Housing), dated 30.8.2010 must be set aside and the prayer of the petitioner should be granted. He also submitted that it is for the members of the society to decide the issue and that the Special Officer cannot decide on his own. The attempt by the Special Officer to exchange 20 plus acres to 18 acres is bristled with corrupt motives and it was based upon extraneous consideration. Therefore, the Court must allow the writ petitions and direct the registration of lands which were purchased with the PF advance of each of its members.
12.Per contra, the learned Government Advocate appearing for the Registrar of Cooperative Societies (Housing) and Mr.Raja Kalifulla, learned Government Pleader appearing for the Special Officer contended that the writ petitions were misconceived and are not maintainable as it is directed against a cooperative society. It is also stated that the order passed by the previous Registrar of Cooperative Societies (Housing) was illegal. The illegal acts done was set right by the present incumbent of the office of the Registrar of Cooperative Societies (Housing).
13.In the light of the rival submissions, the following issues arise for consideration:
a)Whether the writ petitions are maintainable?
b)Whether the Registrar of Cooperative Societies (Housing) was correct in passing the impugned order dated 30.8.2010 superseding the earlier order dated 15.09.2009?
c)Whether the petitioners are entitled for any relief in these writ petitions?
14.With reference to the first issue, i.e., the maintainability of the writ petitions, it must be noted that the petitioners' prayer in effect is for a direction to the cooperative society to allot housing plots by the present Special Officer. Such a relief as against the cooperative society is not available in a writ petition filed under Article 226 of the Constitution, especially in the light of the larger bench judgment of this Court in in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689.
15.Since it is essentially a dispute between the members and the Special Officer who represents the society, such dispute can only be settled in terms of Section 90 of the Tamil Nadu Cooperative Societies Act, failing which a further appeal lies to a Cooperative Tribunal constituted under Section 152 of the Act. The learned Senior Counsel for the petitioners contended that because of the illegal order passed by the Registrar of Cooperative Societies (Housing), they were forced to come to this court and the prayer was to set aside that order. In the present case, such a prayer is available only in W.P.No.26400 of 2009 and not in the other two writ petitions. In any event, without going into the technicalities of the issue, this court is inclined to consider the validity of the impugned order, dated 30.08.2010. Therefore, the second issue assumes importance.
16.It must be noted that in the order dated 15.09.2009, the then Registrar of Cooperative Societies (Housing) without any justification in the name of the order of this Court, dated 17.7.2008 made in W.P.No.5789 of 2006 as his source of power passed the order. The conduct of the said officer is highly reprehensible and contemptuous. All that this court directed was that the representation of the members should be considered on merits and as per law within a time frame. The other observations made has to be understood only in the light of a legal order being passed. Therefore, when the Registrar of Cooperative Societies (Housing) had passed an order dated 6.8.2009 purported to be under a direction from this court (the extracted portion is set out above), he had clearly stated the correct reasons by stating that the lands were not suitable for a housing society as they were scattered in different places. That there was no approach road and that there was no interconnection between one land and the other land. No approval from the DTP was obtained. Having said so, he had simply ignored the relevant criteria and after referring to the order passed by this court and said that they had no other option except to comply with the order. It really throws suspicion on the conduct of the then Registrar of Cooperative Societies (Housing), who had no qualms in passing such an illegal order. As a supervising authority over an housing society, he should have kept in mind the interest of the society and the welfare of its members. If he had kept those parameters, then certainly he would not have passed such an order which is now being sought to be enforced by getting orders from this court.
17.When the second writ petition came to be filed, the present Registrar of Cooperative Societies (Housing) had passed a correct order, dated 30.08.2010, by which he had negatived the claim of the petitioner. In fact, the original claim of the petitioner in W.P.No.26400 of 2009 in the earlier writ petition was for either getting the allotment of a plot or for refunding of the amount. When certain irregularities were brought to the notice of the authority, there is nothing illegal about the authority passing a revised order and rescinding the earlier order passed. Ultimately, the members of the Cooperative Housing Society should have clear allotment of lands with proper title so as to be used as housing plots. Therefore, the circumstances under which the impugned order dated 30.08.2010 came to be passed cannot be found fault with. This is especially when the then Board of Directors are facing criminal action for making such illegal purchases.
18.The petitioners have no vested right over particular piece of land. Ultimately, it is for the society to decide on the basis of pragmatic consideration as to what should be done with the lands already purchased and whether the Special Officer's proposal to exchange the lands for another piece of lands will be conducive for building houses. At the same time, the Special Officer cannot thrust any decision taken by him without taking into account the wishes of the general body of the members of the society. He has to either convince the members about the fairness of the proposals made by him in paragraph 10 of the counter affidavit or to go by the wishes of members. Though he had referred to a resolution, dated 14.08.2010, that is only a resolution made by the Special Officer himself. Ultimately, the general body of the members of the society will have to decide what is the best interest for them. They need not go by the decision by the Special Officer nominated by the Government and thrust on the society in the absence of elected Board of Directors.
19.On the last issue relating to the question of relief, it must be noted that the writ petitions seeking for a direction to the Special Officer, i.e., W.P.Nos.12425 and 16061 of 2010 are clearly not maintainable. But, W.P.No.26400 of 2009 challenging the order of the Registrar of Cooperative Societies (Housing) is maintainable. In any event, all the three writ petitions can be granted with similar reliefs without driving the parties for any further litigation. The order of the Registrar of Cooperative Societies (Housing), dated 30.8.2010 is held valid. It did not amount to superseding the earlier order of the Registrar of Cooperative Societies (Housing), dated 15.09.2009 which was made on a perverted interpretation of the order passed by this Court and also did not take into account the relevant factors in accordance with law.
20.Hence all the three writ petitions are disposed of with a direction to the Special Officer of the TTC Employees Cooperative House Building Society Chennai to convene a meeting of the general body of the members, who have paid part payments from their provident fund accumulations and were waiting for allotment of houses. He must place an agenda on this issue and after ascertaining the wishes of majority of the members to pass an appropriate resolution and thereafter, to proceed in accordance with law. Till such time, he shall not give effect to his resolution, dated 14.08.2010 allegedly passed by him as a Special Officer. However, there will be no order as to costs.
1.The Registrar of Cooperative Societies (Housing), No.22,4th Main Road, Gandhi Nagar, Adayar, Chennai-600 020.
2.The Deputy Registrar of Cooperative Societies (Housing), No.18,Ramanathan Street, T.Nagar, Chennai-600 017.
3.The Special Officer, Tamil Nadu Cooperative Housing Society, No.18, Ramanathan Street, T.Nagar, Chennai-17.
4.The Secretary to State, Government of Tamil Nadu, Department of Housing and Urban Development, Fort St. George, Chennai-600 009.
5.The Managing Director, Tamil Nadu State Express Transport Corporation (SETC) Express Division, Pallavan Salai, Chennai-600 002.
6.The Special Officer, Thiruvalluvar Transport Corporation Employees Cooperative Housing Building Society Ltd. (MDS/HSG-139) Thiruvalluvar Illam, Chennai 600 002