IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.9848 of 2008 and M.P.NO.1 of 2008 Church of South India Trust Association rep. By its Secretary, Rev.A.Rajavelu Church of South India, Diocese of Vellore, No.1, Officers Line, Vellore-632 001. .. Petitioner Vs. 1.Registrar (Housing), Cooperative Housing Society, Chennai-600 020. 2.Deputy Registrar (Housing), Vellore 632 006. 3.The Special Officer, CMCH Employees' Coop. Housing Society, C/o Deputy Registrar (Housing), No.15, West Main Road, Gandhi Nagar, Vellore-632 006. 4.A.R.Rajasekaran .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent connected with Na.Ka.No.9672/2006/SF1 dated 10.10.2007 and to quash the same. For Petitioner : Mr.John for M/s.T.S.Gopalan & Co. For Respondents : Mr.P.Subramanian, AGP for RR1 and 2 Ms.C.K.Vishnupriya for R3 Mr.P.Anbarasan for R4 - - - - ORDER
The petitioner is the Church of South India Trust Association, represented by its Secretary. The petitioner has come forward to challenge the order of the first respondent, dated 10.10.2007 and seeks to set aside the same. By the impugned order, the first respondent informed the petitioner that the order passed by the Deputy Registrar (Housing) in arbitration dispute No.1 of 2005-2006, dated 18.08.2006 was declared as illegal and the petitioner Society was directed to return the land to the extent of 13080 sq.feet, which they had obtained as a gift from the third respondent Cooperative housing society and that the second respondent was directed to take steps to recover those properties.
2.The writ petition was admitted on 22.4.2008. Pending the writ petition, this court granted an interim stay. After notice to the respondents, on behalf of first and second respondents, a counter affidavit dated 10.6.2008 was filed. On behalf of the third respondent society, a counter affidavit, dated 10.6.2008 was also filed. On behalf of the fourth respondent, a detailed counter affidavit, dated 29.12.2009 was also filed.
3.The facts leading to the case are as follows:
The third respondent cooperative society was formed with a view to help the housing needs of employees engaged by the Christian Medical College Hospital. The fourth respondent is the member of the said society. The third respondent cooperative society made an outright purchase of certain lands from the Christian Medical College, Vellore through registered sale deed Nos.951/71 and 3/1974. These lands which are to be distributed to the members of the society were situated at various survey numbers including S.Nos.434, 435, 436/1, 436/2, 437/1, 437/2, 459/1 and 459/2. The members of the cooperative society belonged to various religions and communities. The layout was prepared and approved by the Planning authorities and common area was to be set up for the purpose of school and park. From out of the common area, an extent of 62175 sq.ft. was sold by the third respondent society to the petitioner on 23.7.1981. This was with a view to run a school for the benefit of the children of the residents. A deed was executed by the then President and Vice President of the society on 19.11.1989 and registration was done during the year 2003. It was done by the deed of settlement and registered with the Registrar office to an extent of 13080 sq.ft. in Sathuvachari village, Vellore Taluk. Neither approval of the general body nor permission from the Registrar of Cooperative society was obtained for such transfer.
4.It was claimed that the property was more than Rs.50 lakhs worth at that time and such settlement in favour of the petitioner association was illegal. One K.A.Sampathrajan, who was the signatory to the settlement, retired from the service of the Medical College Hospital on 7.6.1999. By virtue of Section 23(2)(g) of the Tamil Nadu Cooperative Societies Act, he cannot be the member of the society with effect from 7.6.1999. But he had executed the sale deed on 19.11.1999. As per the bylaw No.21 of the society, it is only the Treasurer of the society in whose custody the property vest and that the then Treasurer of the society was also not the signatory to the settlement deed. Though the deed was signed by the two signatories as early as 19.11.1999, it was released only in the year 2003 that too after suspension of the Board during May, 2001. The Special Officer of the Board was also not informed of the transaction. Therefore, a petition was filed before the second respondent invoking the arbitration under Section 90 of the Tamil Nadu Cooperative Societies Act. The Arbitrator before whom the petition was filed on 16.6.2005, has ample power to deal with the property of the society. Though it was claimed by the petitioner association that the members of the society in their meeting held on 5.11.2005 ratified the execution of deed of settlement, such a plea cannot be believed as there cannot be any ratification after the property was transferred and that too after six years after the said transfer. The second respondent Deputy Registrar erroneously dismissed the arbitration proceedings by directing the fourth respondent to avail remedy before the civil court.
5.It was claimed that it was only the civil court can nullify the said settlement and the Deputy Registrar in his arbitral power cannot go into the same. Though the third respondent filed an appeal before the cooperative tribunal, since there was a delay of 43 days in filing an appeal, an application in IA No.13 of 2006 was filed. But unfortunately the Tribunal dismissed the said application without condoning the delay. Though steps were taken for moving this court against the said order, the same could not be materialised. In the meanwhile, a revision petition was filed before the first respondent. In the revision, notice was issued to the petitioner association to file a counter affidavit. It was contended that the petitioner is the registered body and the deed of settlement, dated 19.11.1999 was a valid one. After the settlement, the petitioner association has constructed a toilet room and a generator room and also a shop for selling stationeries and a compound wall was also constructed. It was also claimed that the members of the society had ratified the settlement. However, the first respondent after entertaining the revision under Section 153 and after hearing the parties by an order dated 10.10.2007 held that the transfer of property belonging to the society was illegal the the order of second respondent in delegating the party to the civil court was not proper. It is this order which is under challenge for the same reasons set out earlier.
6.It was claimed by the third respondent society that the transfer of the property was done illegally and contrary to the provisions of the Tamil Nadu Cooperative Societies Act. The settlement deed executed by the two signatories were not valid and there can never be ratification for an illegal act. It was contended by the official respondents that it was unnecessary for the fourth respondent to move the second respondent for an order since the petitioner association has no role to defend their transfer of property. For entertaining the application, the first respondent has ample power under Section 153 and any action by the third respondent cooperative society, he can review and can issue an appropriate order since the transaction made by certain members of the third respondent society was totally illegal and repugnant to the provisions of the Cooperative Societies Act. It is well open to the Registrar to issue an appropriate direction to recover the property belonging to the society. Any attempt to transfer the property de hors the provisions of the act is void ab initio and not binding on the society.
7.In this context, it is necessary to refer to Section 71 of the Tamil Nadu Cooperative Societies Act, which reads as follows:
“71.Properties not to be misused: No property of a registered society, whether movable or immovable, shall be used or allowed to be used except in accordance with the provisions of this Act, the rules and the by-laws.”
8.It is also necessary to refer to Rule 87 of the Tamil Nadu Cooperative Societies Rules, which reads as follows:
“87.Use of premises and immovable properties.-(1)No society shall, except with the previous sanction of the Registrar use or allow to be used any of its movable properties or premises wholly or partly, for any purpose other than its business or other co-operative activities:
Provided that no such sanction shall be granted to any society for using or allowing to be used any such immovable properties or premises or portion thereof for any political purposes.
(2)In respect of guest houses or other places intended for the use of others also, regulations for the use and the collection of charges shall be framed by the society with the approval of the Registrar.”
9.In the light of the above, there is no illegality or infirmity in the direction issued by the first respondent to the second and third respondents to recover the property from the petitioner association. The petitioner association cannot challenge the impugned communication issued by the first respondent in a writ petition under Article 226 of the Constitution of India. If at all there is any threat by the impugned communication, it is for them to move an appropriate civil court to establish their title over the property and not to come to this court to justify their iniquitous and illegal possession of the property from the third respondent Cooperative society.
10.Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
Cooperative Housing Society,
2.Deputy Registrar (Housing),
Vellore 632 006.
3.The Special Officer,
CMCH Employees’ Coop. Housing Society,
C/o Deputy Registrar (Housing),
No.15, West Main Road,
Vellore 632 006