Registrar of Co Operative Societies Vs. S.Ethiraj - Court Judgment

Excerpt:
in the high court of judicature at madras dated :22. 02.2013 coram the honourable mr.justice m.jaichandren and the honourable mr.justice m.m.sundresh writ appeal no.1645 of 2011 & m.p.no.1 of 2011 registrar of co-operative societies, tamil nadu housing board building, 493, anna salai, nandanam, chennai-600 035. .. appellant -vs- 1.s.ethiraj 2.the deputy registrar(housing) chennai region, 28, ramanathan street, t.nagar, chennai-600 017. 3.the special officer, vsnl employees co-operative housing society, vsb, no.4, swami sivananda salai, chennai-600 002. .. respondents writ appeal filed under clause 15 of letters patent against the common order dated 04.07.2011 made in w.p.no.25779 of 2010. for appellant : mr.p.h.aravind pandian, additional advocate general for mr.l.p.shanmugasundaram, spl. government pleader(co-op.)cases for respondents : mr.v.prakash, s.c., for mr.s.udayakumar for r1 mr.m.s.ramesh, addl. government pleader for r2 mr.p.anbarasan for r3 judgment (the judgment of the court was delivered by m.m.sundresh,j) this writ appeal has been preferred by the appellant, who is the first respondent in the writ petition in w.p.no.25779 of 2010, being aggrieved against the order of the learned single judge dated 04.07.2011 in allowing the said writ petition by setting aside the order dated 26.08.2010.2. the first respondent is the associate member of the third respondent-the special officer, vsnl employees co-operative housing society. he was originally working as an employee of videsh sanchar nigam limited (hereinafter referred to as vsnl), which was the public sector undertaking. in pursuant to the policy decision of the government of india, vsnl was disinvested and it became a part of the tata group with effect from 13.02.2002 under the name and style of tata communications limited.3. the third respondent-society was registered when vsnl was functioning as a government of india company prior to his disinvestment. the third respondent purchased a land to an extent of 32.5 acres as per the sale deed dated 22.07.2009 for the purpose of constructing houses to its members, who are the employees of the vsnl and now "tata communications limited".4. by letter dated 19.01.1995, the government of india, ministry of communications) permitted the vsnl to draw a plan for establishment of complex of staff quarters at padianallur. the said letter also states that a part of the land of the township should be allotted to vsnl employees co-operative housing society viz., the third respondent herein, at the market value. a resolution was also passed by the third respondent in this regard on 09.06.2006 and 06.07.006 respectively. a dispute has been raised before the high court of delhi by the third respondent, in which, the union of india and vsnl have been made as parties. the honourable division bench confirmed the order of the learned single judge by holding that merely because the disinvestment has taken place, the employees of the vsnl cannot be discriminated. earlier, the learned single judge allowed the application for clarification in so far as the value of the land is concerned, by fixing the rate as it stood on 29.06.1998.5. the land was converted into plots. approval was also obtained from cmda. it was unanimously resolved by the third respondent fixing the land value at rs.40/- per sq.ft. and based on the same, all the members including the associate members, deposited the total sale consideration at the rate of rs.40/- per sq.ft.6. the third respondent-society has two different categories of memberships. one is a class member and another is associate member. this court has struck down section 89 of the tamil nadu co-operative societies act, 1983 (hereinafter referred as the act). the said section empowers the special officer to admit permanent members into a co-operative society. therefore, in view of the said difficulty, the members have been admitted subsequently as associated members only.7. in pursuant to the unanimous resolution passed, by which the value has been fixed at rs.40/- per sq.ft. for the sale of the plots to all the members both permanent and associate members, permission was sought for from the appellant by the third respondent. the said permission was granted by qualifying it to the effect that the fixation of rs.40/- per sq.ft. is applicable to only a class members and in so far as the associate members are concerned, they have been differentiated and accordingly, they have been asked to pay the price at the current market rate. challenging the said order dated 26.08.2010, the first respondent being the writ petitioner, filed the writ petition.8. the learned single judge was pleased to hold that there cannot be any discrimination between a class member and the "associated member". there is no provision under the by-laws for such a classification. reliance was also made on the sale deed effected in favour of the third respondent dated 22.07.2009, which clearly specifies that the purchaser, viz.,the third respondent, to utilize the land on a non discriminatory basis for the benefit of its members. therefore, considering the said clause and after making reliance upon the judgment of the honourable full bench of this court in k.nithiyanantham v. state of tamil nadu [(2006) 1 ctc 1], wherein it has been held that the decision of the general body should have a primacy, the writ petition was allowed. challenging the same, the present writ appeal has been filed.9. the learned additional advocate general appearing for the appellant would submit that the associate members ought not to have been admitted as the admissions made would violate section 22 of the act read with rule 32 of the tamil nadu co-operative societies rules, 1988. the dispute ought to have been raised under section 90 of the act. yet another submission has been made to the effect that the writ petition as filed is not maintainable in view of the decision of the larger bench of this court in k.marappan v. the deputy registrar of co-operative societies, namakkal circle (2006(4) ctc 689). reliance was also made on the unreported judgment of the learned single judge rendered in r.bakthavatchalu v. the registrar, deputy registrar and the special officer, tamil nadu co-operative housing society in w.p.nos.26400 of 2009 and 12425 of 2010 dated 26.04.2011.10. per contra, mr.v.prakash, learned senior counsel appearing for the first respondent, would submit that the letter of the government of india dated 19.01.1995, the orders passed by the high court of delhi, and the sale deed effected in favour of the third respondent would leave no room except come to the conclusion that the rate fixed at rs.40/- per sq.ft. would apply to all the members irrespective of their status. the learned senior counsel also made reliance on the resolution passed by the society. he further submitted that the issues, which were not raised in the writ petition, cannot be permitted to be agitated in this appeal and in any case, in view of the subsequent developments, by way of amended by-laws also, the writ appeal is liable to be rejected.11. the first contention of the learned additional advocate general making reliance to the section 22 of the act and rule 32 (2) of the tamil nadu co-operative societies rules, 1988, cannot be countenanced, as the said contentions have never been raised before the learned single judge. further more, the issue in the writ petition is as to whether the order impugned passed by the appellant can be sustained in so far as the differential fixation of price for the sale of the plots between the two groups of members. now what is sought to be contended by the learned additional advocate general is that section 22 of the act prohibits the associate member from claiming any share in the assets of the society. this submission is contrary to the order passed by the appellant, which is sought to be sustained. the appellant, in the order impugned, has specifically stated that while an associate member is entitled for allotment, a different rate has to be fixed as against the permanent member. therefore, the contention of the learned additional advocate general on the question of applicability of the section 22 of the act is hereby rejected.12. in this connection, it is to be seen that even the appellant has not treated the lands allotted as the assets of the society perhaps, for the reason that the property has been purchased for the sole purpose, to the benefit of the members. rule 32 of the tamil nadu co-operative societies rules also does not have any application as it specifically deals with specific clause of members. further more, none of the associate members have been removed so far, thereby they have inducted in accordance with law. the said issue is also not the subject matter of the writ petition as well as the present writ appeal. more over, it is not in dispute that the associate members and the permanent members are the employees of the same management. this fact is not in dispute at all. the further fact that the associate members could not be made permanent in view of the contingency created by striking down of section 89-a of the act is also not in dispute. therefore, we are not in a position to countenance the arguments made by the learned additional advocate general.13. the contentions made on the question of maintainability and the alternative remedy are also liable to be rejected. no serious objection has been made before the learned single judge in this regard. further more, the dispute is not between the third respondent and its members. the general body has passed a resolution unanimously giving the benefit to all the members. it is the appellant, who refused permission. therefore, the dispute cannot be made applicable to be brought under section 90 of the act. further more, the appellant has passed the order impugned without taking into consideration the facts of the case on hand. as discussed above, there is no difference between the "permanent member" and "associate member". both the employees are the same concern. the difference in status has been created in view of the legal lacuna and not otherwise.14. it is further to be noted in this case, the writ petitioner/first respondent did not seek any relief against the third respondent. on the contrary, the relief is sought only against the appellant. when once, the order impugned passed by the appellant is set aside, then the consequences would follow. in other words, when it is found that the basis upon which, the order impugned was passed, cannot be sustained and the classification made between a class member and the associate member cannot be sustained for the purpose of fixing price of the land for sale. then the question of maintainability would not arise for consideration. hence, the said submission made by the learned additional advocate general on the said issue is also rejected.15. in fine, this writ appeal is dismissed as devoid of merits. no order as to costs. consequently, connected miscellaneous petition is also dismissed. raa

Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :

22. 02.2013 Coram The Honourable Mr.Justice M.JAICHANDREN and The Honourable Mr.Justice M.M.SUNDRESH Writ Appeal No.1645 of 2011 & M.P.No.1 of 2011 Registrar of Co-operative Societies, Tamil Nadu Housing Board Building, 493, Anna Salai, Nandanam, Chennai-600 035. .. Appellant -Vs- 1.S.Ethiraj 2.The Deputy Registrar(Housing) Chennai Region, 28, Ramanathan Street, T.Nagar, Chennai-600 017. 3.The Special Officer, VSNL Employees Co-operative Housing Society, VSB, No.4, Swami Sivananda Salai, Chennai-600 002. .. Respondents Writ Appeal filed under Clause 15 of Letters Patent against the common order dated 04.07.2011 made in W.P.No.25779 of 2010. For appellant : Mr.P.H.Aravind Pandian, Additional Advocate General for Mr.L.P.Shanmugasundaram, Spl. Government Pleader(Co-Op.)cases For respondents : Mr.V.Prakash, S.C., for Mr.S.Udayakumar for R1 Mr.M.S.Ramesh, Addl. Government Pleader for R2 Mr.P.Anbarasan for R3 JUDGMENT (The Judgment of the Court was delivered by M.M.SUNDRESH,J) This writ appeal has been preferred by the appellant, who is the first respondent in the writ petition in W.P.No.25779 of 2010, being aggrieved against the order of the learned single Judge dated 04.07.2011 in allowing the said writ petition by setting aside the order dated 26.08.2010.

2. The first respondent is the associate member of the third respondent-The Special Officer, VSNL Employees Co-operative Housing Society. He was originally working as an employee of Videsh Sanchar Nigam Limited (hereinafter referred to as VSNL), which was the public sector undertaking. In pursuant to the policy decision of the Government of India, VSNL was disinvested and it became a part of the Tata Group with effect from 13.02.2002 under the name and style of Tata Communications Limited.

3. The third respondent-Society was registered when VSNL was functioning as a Government of India company prior to his disinvestment. The third respondent purchased a land to an extent of 32.5 acres as per the sale deed dated 22.07.2009 for the purpose of constructing houses to its members, who are the employees of the VSNL and now "Tata Communications Limited".

4. By letter dated 19.01.1995, the Government of India, Ministry of Communications) permitted the VSNL to draw a plan for establishment of complex of staff quarters at Padianallur. The said letter also states that a part of the land of the township should be allotted to VSNL Employees Co-operative Housing Society viz., the third respondent herein, at the market value. A resolution was also passed by the third respondent in this regard on 09.06.2006 and 06.07.006 respectively. A dispute has been raised before the High Court of Delhi by the third respondent, in which, the Union of India and VSNL have been made as parties. The Honourable Division Bench confirmed the order of the learned single Judge by holding that merely because the disinvestment has taken place, the employees of the VSNL cannot be discriminated. Earlier, the learned single Judge allowed the application for clarification in so far as the value of the land is concerned, by fixing the rate as it stood on 29.06.1998.

5. The land was converted into plots. Approval was also obtained from CMDA. It was unanimously resolved by the third respondent fixing the land value at Rs.40/- per sq.ft. and based on the same, all the members including the associate members, deposited the total sale consideration at the rate of Rs.40/- per sq.ft.

6. The third respondent-society has two different categories of memberships. One is A class member and another is associate member. This Court has struck down Section 89 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred as the Act). The said Section empowers the Special Officer to admit permanent members into a Co-operative Society. Therefore, in view of the said difficulty, the members have been admitted subsequently as associated members only.

7. In pursuant to the unanimous resolution passed, by which the value has been fixed at Rs.40/- per sq.ft. for the sale of the plots to all the members both permanent and associate members, permission was sought for from the appellant by the third respondent. The said permission was granted by qualifying it to the effect that the fixation of Rs.40/- per sq.ft. is applicable to only A class members and in so far as the associate members are concerned, they have been differentiated and accordingly, they have been asked to pay the price at the current market rate. Challenging the said order dated 26.08.2010, the first respondent being the writ petitioner, filed the writ petition.

8. The learned single Judge was pleased to hold that there cannot be any discrimination between A class member and the "associated member". There is no provision under the by-laws for such a classification. Reliance was also made on the sale deed effected in favour of the third respondent dated 22.07.2009, which clearly specifies that the purchaser, viz.,the third respondent, to utilize the land on a non discriminatory basis for the benefit of its members. Therefore, considering the said clause and after making reliance upon the judgment of the Honourable Full Bench of this Court in K.NITHIYANANTHAM V. STATE OF TAMIL NADU [(2006) 1 CTC 1], wherein it has been held that the decision of the General Body should have a primacy, the writ petition was allowed. Challenging the same, the present writ appeal has been filed.

9. The learned Additional Advocate General appearing for the appellant would submit that the associate members ought not to have been admitted as the admissions made would violate Section 22 of the Act read with Rule 32 of the Tamil Nadu Co-operative Societies Rules, 1988. The dispute ought to have been raised under Section 90 of the Act. Yet another submission has been made to the effect that the writ petition as filed is not maintainable in view of the decision of the Larger Bench of this Court in K.MARAPPAN V. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, NAMAKKAL CIRCLE (2006(4) CTC 689). Reliance was also made on the unreported judgment of the learned single Judge rendered in R.BAKTHAVATCHALU V. THE REGISTRAR, DEPUTY REGISTRAR AND THE SPECIAL OFFICER, TAMIL NADU CO-OPERATIVE HOUSING SOCIETY in W.P.Nos.26400 of 2009 and 12425 of 2010 dated 26.04.2011.

10. Per contra, Mr.V.Prakash, learned Senior Counsel appearing for the first respondent, would submit that the letter of the Government of India dated 19.01.1995, the orders passed by the High Court of Delhi, and the sale deed effected in favour of the third respondent would leave no room except come to the conclusion that the rate fixed at Rs.40/- per sq.ft. would apply to all the members irrespective of their status. The learned Senior Counsel also made reliance on the Resolution passed by the Society. He further submitted that the issues, which were not raised in the writ petition, cannot be permitted to be agitated in this appeal and in any case, in view of the subsequent developments, by way of amended by-laws also, the writ appeal is liable to be rejected.

11. The first contention of the learned Additional Advocate General making reliance to the Section 22 of the Act and Rule 32 (2) of the Tamil Nadu Co-operative Societies Rules, 1988, cannot be countenanced, as the said contentions have never been raised before the learned single Judge. Further more, the issue in the writ petition is as to whether the order impugned passed by the appellant can be sustained in so far as the differential fixation of price for the sale of the plots between the two groups of members. Now what is sought to be contended by the learned Additional Advocate General is that Section 22 of the Act prohibits the associate member from claiming any share in the assets of the society. This submission is contrary to the order passed by the appellant, which is sought to be sustained. The appellant, in the order impugned, has specifically stated that while an associate member is entitled for allotment, a different rate has to be fixed as against the permanent member. Therefore, the contention of the learned Additional Advocate General on the question of applicability of the Section 22 of the Act is hereby rejected.

12. In this connection, it is to be seen that even the appellant has not treated the lands allotted as the assets of the society perhaps, for the reason that the property has been purchased for the sole purpose, to the benefit of the members. Rule 32 of the Tamil Nadu Co-operative Societies Rules also does not have any application as it specifically deals with specific clause of members. Further more, none of the associate members have been removed so far, thereby they have inducted in accordance with law. The said issue is also not the subject matter of the writ petition as well as the present writ appeal. More over, it is not in dispute that the associate members and the permanent members are the employees of the same management. This fact is not in dispute at all. The further fact that the associate members could not be made permanent in view of the contingency created by striking down of Section 89-A of the Act is also not in dispute. Therefore, we are not in a position to countenance the arguments made by the learned Additional Advocate General.

13. The contentions made on the question of maintainability and the alternative remedy are also liable to be rejected. No serious objection has been made before the learned single Judge in this regard. Further more, the dispute is not between the third respondent and its members. The General Body has passed a Resolution unanimously giving the benefit to all the members. It is the appellant, who refused permission. Therefore, the dispute cannot be made applicable to be brought under Section 90 of the Act. Further more, the appellant has passed the order impugned without taking into consideration the facts of the case on hand. As discussed above, there is no difference between the "permanent member" and "associate member". Both the employees are the same concern. The difference in status has been created in view of the legal lacuna and not otherwise.

14. It is further to be noted in this case, the writ petitioner/first respondent did not seek any relief against the third respondent. On the contrary, the relief is sought only against the appellant. When once, the order impugned passed by the appellant is set aside, then the consequences would follow. In other words, when it is found that the basis upon which, the order impugned was passed, cannot be sustained and the classification made between A class member and the associate member cannot be sustained for the purpose of fixing price of the land for sale. Then the question of maintainability would not arise for consideration. Hence, the said submission made by the learned Additional Advocate General on the said issue is also rejected.

15. In fine, this writ appeal is dismissed as devoid of merits. No order as to costs. Consequently, connected miscellaneous petition is also dismissed. raa