BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/11/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
W.P.(MD)No.9339 of 2008
A.Geetha ... Petitioner
Vs.
1.The Registrar of Co-operative Societies,
170,E.V.R.Periyar Road,
Kilpauk, Chennai-10.
2.The Joint Registrar of Co-operative Societies,
Tuticorin Region,
Tuticorin.
3.The Deputy Registrar of Co-operative Societies,
Tiruchendur Circle,
Tiruchendur Post,
Tuticorin District.
4.The Special Officer,
Thandupathu Primary Agricultural
Co-operative Bank,
Thandupathu Post,
Tiruchendur Taluk,
Tuticorin District. ... Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, to direct the respondents to repay the
Fixed Deposit maturity amount made by the petitioner's husband Late.Mr.Anburaj
with the fourth respondent Co-operative Bank in CC.No.167 with additional
interest from the date of maturity (i.e. from 03.11.2005) till the realization
of Fixed Deposit maturity amount.
!For Petitioner ...Mr.M.Saravana Kumar
^For Respondents ...Mr.K.A.Thirumalaippan
Additional Government Pleader
:ORDER
Heard the learned counsel for the petitioner and also
Mr.K.A.Thirumalaippan, learned Additional Government Pleader.
2. A re’sume’ of facts absolutely necessary and germane for the disposal
of this writ petition would run thus:
The petitioner is the widow of the deceased depositor of a sum of
Rs.3,00,000/- (Rupees three lakhs only) with the fourth respondent, viz.,
Thandupathu Primary Agricultural Co-operative Bank. The depositor died, leaving
behind his wife Geetha and two minor children. The petitioner on the strength
of the Fixed Deposit Cash Certificate in the name of the petitioner’s deceased
husband issued by the said Cooperative Bank, approached the said Cooperative
Bank for encashing it on maturity. Thereupon the officials of the Cooperative
Bank came forward with the plea as though the petitioner’s deceased husband
viz., Anburaj did not deposit a sum of Rs.3,00,000/- (Rupees three lakhs only)
at all, but in fact he deposited only a sum of Rs.3000/- (Rupees three thousand
only); however he managed to obtain such a certificate from the then erring
officials of the Cooperative Bank. Thereupon she made several representations,
which evoked no positive response. Hence, this writ petition.
3. Whereas the learned Additional Government Pleader would submit that at
a particular point of time in the said Cooperative Bank, two officials indulged
in malpractices; thereupon action has been taken and the Cooperative Bank is of
the firm view that the petitioner’s husband did not deposit a sum of
Rs.3,00,000/- (Rupees three lakhs only), but he deposited only a sum of
Rs.3,000/- (Rupees three thousand only); but in collusion with those erring
officials, the deceased managed to obtain such Fixed Deposit Cash Certificate.
4. The learned Additional Government Pleader also would develop his
arguments to the effect that no writ would lie and furthermore if at all the
dispute is between the member and the Cooperative Society, Section 90 of the
Tamil Nadu Cooperative Societies Act could be invoked, but here the petitioner’s
deceased husband is not even a member.
5. In this factual matrix, I would like to observe that there are lot of
factual controversies between the petitioner and the respondents. Whether the
petitioner’s husband deposited a sum of Rs.3,00,000/- (Rupees three lakhs only)
or Rs.3,000/- (Rupees three thousand only) is a big question based on fact;
furthermore, the respondents are not admitting that the officials received a sum
of Rs.3,00,000/- (Rupees three lakhs only), but they failed to bring it on
record and misappropriated it. It is the case of the respondents that the
petitioner’s husband did not deposit a sum of Rs.3,00,000/- (Rupees three lakhs
only) at all. As such in this factual situation, this Court has to focus its
attention as to whether a writ petition based on such contractual disputes,
would lie at all. My mind is redolent and reminiscent with the decision of this
Court in Marappan, K. v. The Deputy Registrar of Co-operative Societies,
Namakkal reported in 2006(4)CTC 689. An excerpt from it would run thus:
“21. From the above discussion, the following propositions emerge:
(i)If a particular co-operative society can be characterized 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 Hasi 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 12 of 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 case 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 herein before.
6. It is therefore clear from the above excerpt that in this factual
matrix, writ would not lie. Hence, while dismissing this writ petition, I would
observe that if at all the petitioner is having evidence that the deceased
Anburaj was a member and deposited a sum of Rs.3,00,000/- (Rupees three lakhs
only) in the Cooperative Bank, then certainly the dispute could be taken under
Section 81 of the Tamil Nadu Cooperative Societies Act and she could get
processed the dispute under the Tamil Nadu Cooperative Societies Act as
otherwise she has to process her claim in the way known to the general law of
the land.
7. The learned counsel for the petitioner made an extempore submission to
the effect that the petitioner might be given opportunity of getting a copy of
the report under Section 81 of the Tamil Nadu Cooperative Societies Act and the
surcharge proceedings, which the respondents initiated as against the erring
officials.
8. I could see considerable force in the submission made by the learned
counsel for the petitioner and accordingly within a period of ten days from the
date of receipt of a copy of this order,the fourth respondent shall issue a copy
of report under Section 81 of the Tamil Nadu Cooperative Societies Act initiated
and a copy of the surcharge proceedings and the result of it to the petitioner
on her approaching the office during office hours, so as to enable her to take
further action in this matter.
9. With the above directions and observations, this Writ Petition is
dismissed. No costs.
smn/dp
To
1.The Registrar of Co-operative Societies,
170,E.V.R.Periyar Road,
Kilpauk, Chennai-10.
2.The Joint Registrar of Co-operative Societies,
Tuticorin Region,
Tuticorin.
3.The Deputy Registrar of Co-operative Societies,
Tiruchendur Circle,
Tiruchendur Post,
Tuticorin District.
4.The Special Officer,
Thandupathu Primary Agricultural
Co-operative Bank,
Thandupathu Post,
Tiruchendur Taluk,
Tuticorin District.