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Judgment
S. Manikumar, J.—The Petitioner has sought for a writ of Certiorarified Mandamus to quash the order of the Deputy Registrar (Housing),
Virudhunagar, first Respondent, made in Arbitration Proceedings No. 210/98-99 dated 21.2.2006 and consequently direct the first Respondent to
conduct a fresh enquiry into the said matter.
The facts of the case are as follows:
The Petitioner has submitted that Soodamanipuram layout was formed by the Special Officer, A-1321, Karaikudi Co-operative House Building
Society, Karaikudi, the second Respondent herein. The third Respondent was originally a member of the said society and he was allotted Old Plot
No. 90 corresponding to New Plot No. 61. The sale price was fixed as Rs. 3,621/-. At the time, when the layout was formed, the said place was
a remote area, with no proper access and infact, the said layout itself was formed, by purchasing the property of Iluppakudi Devasthanam, at the
rate of 50 paise per sq. feet. However, the third Respondent had not paid the sale price fixed for the said plot and the same was later on allotted to
the Petitioner, who was also a member of the said society, with the consent of the third Respondent and a resolution, dated 19.4.1991 was also
passed by the second Respondent, for transfer of allotment of the plot, in favour of the Petitioner. The said allotment order was issued on
25.4.1991 and a registered sale deed came to be executed in favour of the Petitioner on 31.5.1991. The Petitioner has also constructed a
residential building and the said house has been in existence for the past 15 years and assessed to property tax by Karaikudi Municipality.
After the formation of Karaikudi bus stand, Municipal Office came to be located near the said area and thereafter, the said area gained
importance and the third Respondent filed Arbitration proceedings on the file of the Deputy Registrar (Housing), Virudhunagar in Arbitration
Petition No. 210 of 1998-1999. On receipt of the notice for appearance dated 7.6.2002, the Petitioner entered appearance through her counsel
for the hearing on 7.6.2002. The matter was adjourned for four times and thereafter, there was no further intimation regarding the case.
While that be so, the Petitioner was served with a communication from the Special Officer, A-1321, Karaikudi Cooperative House Building
Society, Karaikudi, the second Respondent, stating that the allotment in favour of the Petitioner has been cancelled by the first Respondent by
order dated 21.2.2006. On receipt of the above said communication, the Petitioner sent a letter dated 27.9.2007 by registered post stating that no
such communication dated 2.6.2007 was served. He also submitted that no enquiry was conducted before passing the order of cancellation. In
response to the above, the first Respondent sent a letter dated 31.12.2007 stating that the copy of the order dated 21.2.2006 was already sent by
certificate of posting on 15.3.2006. He has also enclosed the copy of the said order, which is impugned in this writ petition.
Assailing the correctness of the order, Mr. R. Sundar Srinivasan, learned Counsel for the Petitioner submitted that the impugned order of the
first Respondent has been passed without any enquiry and without following the procedure contemplated under the provisions, Co-operative
Societies Act. He further submitted that the impugned proceedings goes to show that as if written statement and evidence were filed on behalf of
the writ Petitioner. But as a matter of fact, no statement was recorded and no evidence was adduced on behalf of the writ Petitioner and that there
is error apparent on the face of the record.
Taking this Court through the impugned order, learned Counsel for the Petitioner further submitted that though the Petitioner has specially
alleged in her communications dated 27.9.2007 and 26.11.2007 that no intimation regarding further hearing of the arbitration proceeding was given
by the first Respondent and that no argument was advanced, nothing was adverted to by the first Respondent in his communication dated
31.12.2007. He also submitted that when the Petitioner was represented by a learned Counsel, notice of hearing and the copy of the order dated
21.2.2006, ought to have been served on him by registered post.
Learned Counsel for the Petitioner further submitted that when the allotment order was dated 25.4.1991 and pursuant to which a sale deed has
also been executed on 31.5.1991 in favour of the writ Petitioner, entertaining a dispute after six years, is time barred and for the foregoing reasons,
he submitted that the impugned order requires interference. He also submitted that when the Petitioner has constructed a residential house which is
being assessed to property tax, the first Respondent has arbitrarily recorded, as if written statement and evidence were tendered on behalf the writ
Petitioner which is erroneous.
On the basis of the counter affidavit filed by the Special Officer, Karaikudi House Building Society Limited, Karaikudi, second Respondent, Mr.
K. Balasubramanian, learned Counsel appearing for the Society submitted that the second Respondent society has purchased lands to an extent of
71 acres and 4 cents in Karaikudi Town Survey ward No. 3 in Survey No. 429 (part) vide sale deed No. 338, dated 5.3.1981 for Rs.
2,39,575.30, lands measuring 36 acres and 55-1/2 cents in the above said Town survey ward in Survey No. 1339 (Part) vide another sale deed
No. 346 dated 9.3.81 for Rs. 1,23,278.08 and the lands measuring 17 ares and 42 cents, for the scheme Road, belonging to Karaikudi
Municipality by paying a sum of Rs. 11,13,550/-. Totally an area of 125 acres and 01-1/2 cents of land were purchased for Rs. 14,76,403.38,
from Illuppakudi Sri Suyam prakashwarar Devasthanam, Karaidudi for the purpose of making a layout called Soodaminpuram layout.
Learned Counsel for the second Respondent further submitted that in the above said Soodamanipuram layout, 771 house sites,89 shop sites, 8
1/2 Acres for heavy industries, 7.789 acres of open space 7 and 5.410 acres of public place such as park sites were allotted and an agreement
dated 15.5.1981, agreement No. 747/81 was also executed between the then president of the second Respondent society Thiru. P. Subbiah
Ambalam and the first Respondent. He further submitted that the layout of the second Respondent society was duly approved by the Deputy
Director, Town Planning Department, Sivaganga in No. LPRP 47/1985, with a condition to fulfill the terms and conditions laid down in the above
said agreement deed. He also submitted that the third Respondent was a member of the second Respondent society and his membership number
was 791. Based on his requisition, housing Plot No. 61 was allotted on 27.9.84 and that on 3.9.90, the third Respondent addressed to the then
President of the second Respondent stating that due to his business commitment, he wanted to shift his residence to some other place and he
therefore requested the second Respondent to transfer his allotment in favour of the Petitioner. As per the request made by the third Respondent, a
resolution was passed by the executive committee of the second Respondent society in favour of the writ Petitioner on 19.4.2001 and re-allotment
order was issued on 25.4.1991 in favour of the writ Petitioner. Subsequently, the second Respondent also executed a sale deed in favour of the
writ Petitioner by document No. 1634 of 1991 dated 4.8.1991 in the office of the Sub Registrar, Karaikudi. Lateran the writ Petitioner has
constructed a house and is living there.
According to the learned Counsel for the second Respondent society, the third Respondent has preferred a dispute before the first Respondent
challenging the allotment order and that the same was allowed by order dated 21.2.1006 and a direction has been issued to the second
Respondent, to cancel the sale deed executed in favour of the writ Petitioner and re-allot the plot in favour of the third Respondent and execute an
agreement to the third Respondent. Learned Counsel for the second Respondent society, further submitted that the impugned order passed by the
first Respondent dated 21.2.2006 has to be acated upon. He further submitted that the Petitioner has filed a revision petition on 22.1.2008 u/s 153
of the Tamilnadu Co-operative Societies Act and therefore, the writ petition is not maintainable in law.
The third Respondent in his counter affidavit has denied the contention that he was not in a position to pay the sale consideration and that he
had consented for allotment of the plot in favour of the writ Petitioner. According to him, when the writ Petitioner started constructing a building on
the said plot, the third Respondent preferred a Consumer Complaint dated 21.9.1993 and after realising that Consumer forum is not the
appropriate authority, he withdrew the complaint on 16.12.1998 and thereafter initiated Arbitration proceedings. According to the third
Respondent, the delay if any is deemed to have been condoned in view of Section 14 of the Limitation Act and as per Sub-Section 9(a) and 9(b)
of Section 90 of the Cooperative Societies Act, the Registrar may admit a dispute, even after the expiry of the period of limitation, if the applicant
satisfies the Registrar that he had sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute
which shall not be barred on the ground that the period of limitation has expired. He therefore submitted that the objection raised by the writ
Petitioner cannot be countenanced. Further the writ Petitioner has not raised any objection, regarding the period of limitation, before the first
Respondent.
Learned Counsel for the third Respondent further submitted that principles of natural justice have been duly followed before cancelling the
allotment made in favour of the writ Petitioner and therefore, there is procedural violation. It is also his contention that an appeal remedy is
provided under the statutory rule u/s 157 of the Co-operative Societies Act against the award passed u/s 90 of the Act and therefore, the writ
petition is not maintainable.
Heard the learned Counsel appearing for the parties and perused the materials available on record.
Pleadings and materials on record disclose that by order dated 25.4.1991, the Petitioner has been allotted Old Plot No. 90 corresponding to
New Plot No. 61 and that the sale price was fixed as Rs. 3,600/- for an extent of 3000 sq.feet and that a sale deed dated 31.5.1991 has also
been executed by the President on behalf of Karaikudi Co-operative House Building Society, the second Respondent. Third Respondent has
preferred a petition u/s 90(2) of the Co-operative Societies Act, 1983 in the year 1999, i.e., after nearly eight years from the date of execution of
the sale deed.
As per Sub-Section 9(a) of Section 90 of the Tamilnadu Cooperative Societies Act,1983, the period of limitation for referring a dispute is as
if, the dispute was a suit. As per Sub-Section 9(b) of the above said section, notwithstanding anything contained in Clause (a), the Registrar may
admit a dispute even after the expiry of the period of limitation if the applicant satisfies the Registrar that he had sufficient cause for not referring the
dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation has
expired. The writ Petitioner has produced property tax receipts to show that she is in possession of the property.
The third Respondent in his application made u/s 90(2) of the Tamilnadu Co-operative Societies Act, 1983 has stated that after getting the
allotment order, he had paid the sale price of Rs. 3,621/- in four installments and approached the second Respondent for execution of the sale
deed. It was not done. Only when he came to know about the execution of the sale deed in favour of the writ Petitioner and when she started
construction, in the year 1993, he preferred a petition in C.P. No. 143 of 1993 before the Consumer Disputes Redressal Forum at Sivagangai.
The petition was dismissed on 16.12.1998 on the ground that the Consumer Court has no jurisdiction. Thereafter he preferred a dispute under the
Co-operative Societies Act to cancel the sale deed executed by the second Respondent society on 31.5.1991, in favour of the writ Petitioner and
for a further direction to the Respondent to execute the sale deed in favour of the third Respondent, as per the allotment letter dated 27.9.1984 in
respect of Plot No. 61 (Old Plot No. 90) in T.S. No. 429/P, Ward 3, Illupakkudi Village, Karaikudi Municipal Town, Karaikudi.
Perusal of the files pertaining to the impugned award dated 21.2.2006 shows that a notice dated 31.1.2001 has been issued to the writ
Petitioner and the Respondents 2 and 3, fixing the enquiry on the petition on 20.2.2001 at 3.00 p.m, in the office of the Deputy Registrar
(Housing), Vridhunagar and that, all the parties have been directed to produce oral and documentary evidence. Subsequently, on 20.2.2001 the
third Respondent has informed that due to unavoidable circumstances, he could not attend the hearing and prayed for adjournments. Files further
disclose that on 30.4.2002, the Deputy Registrar of Co-operative Societies (Housing), Virudhunagar, the first Respondent herein, has issued
another notice to the parties, fixing the enquiry on 21.5.2002 at 11.00 a.m, in his office. In response to the above said notice, the Special Officer,
second Respondent society has submitted a letter dated 21.5.2002 seeking permission to authorise Mr. Muthuramalingam, an Assistant , to
appear and defend on behalf of the Society in the Arbitration proceedings. Subsequently, no enquiry has been conducted.
Files further disclose that another notice dated 28.5.2002 has been sent to all the parties fixing the enquiry on 7.6.2002. Mr.R. Sundar
Srinivasan and Mr. V.S. Krishnan have filed a vakalat on behalf of the writ Petitioner and on 7.6.2002, along with the general power of attorney,
the writ Petitioner has filed an affidavit to recognise her husband, Thiru S.P. Muthu to appear and defend on her behalf. Perusal of the files further
disclose that objections of the second Respondent were also filed on 7.5.2002. Thereafter, the first Respondent has issued a notice dated
15.7.2003, calling upon the parties to appear on 27.7.2005. For nearly 3 years, no proceeding or notice has been sent by the first Respondent
calling upon the parties to appear for any enquiry. Only two acknowledgements are available in the files, fixing the date of enquiry on 7.12.2005.
But a memo dated 12.12.2005 has been filed by the third Respondent, which reads as follows:
Memo
It is humbly submitted that for my detailed argument of this petition, I necessary the copy of the counter filed by the Respondent and the copy of
the documents No. 1 to 4 filed by the Respondent. If the copy is not furnished, I will be put to irreparable loss.
The last notice available in the file is dated 13.1.2006 and it is said to have been issued by the Deputy Registrar of Co-operative Societies
(Housing), Virudhunagar, fixing the date of enquiry on 8.2.2006. There is nothing on record to prove that the writ Petitioner has produced any
evidence or filed his statement before the first Respondent. As rightly contended by the learned Counsel for the writ Petitioner that though the
impugned order reads as if the matter was taken up for hearing on 21.2.2006 and on perusal of the affidavits, documents, statements and written
arguments, orders were passed on merits, files do not disclose that any statement made by the writ Petitioner or by the third Respondent and
though, the first Respondent in the impugned order has stated that certain documents were considered for adjudicating the dispute between the
Petitioner and the third Respondent, the details of which are not mentioned, at the end of the order. The impugned order does not disclose what
are the documents filed. There are no details as to when the statements of the contesting parties, were made before the first Respondent.
As rightly contended by the learned Counsel for the writ Petitioner, the Deputy Registrar of Co-operative Societies(Housing), Karaikudi, has
passed orders without conducting a proper enquiry and that there is a failure on his part in following the procedure. Even the memo dated
12.12.2005 of the third Respondent would show that he had only sought for time to submit documents on his side and there are no proceedings in
the files to prove that an enquiry was conducted on 21.2.2006, before passing the impugned order. Though the Deputy Registrar (Housing),
Virudhunagar in his proceedings R.C. No. 615/2007/sapa, dated 31.12.2007 has sent a reply to the writ Petitioner stating that a copy of the order
dated 21.2.2006 has also already been sent on 15.3.2006, by certificate of posting, the files do not support the same.
Chapter 10 deals with settlement of disputes and reference is made u/s 90 of the Co-operative Societies Act to the Registrar of the society. As
per Rule 107 of the Tamilnadu Cooperative Societies Rules, 1988, reference to the Registrar, or any dispute under Sub-section (1) of Section 90
shall be in writing which shall be accompanied by,
16 (a) a statement of the subject matter of the dispute referred to;
(b) a certified copy of the relevant records on which the dispute is based;
(c) a receipted chalan or record to evidence payment of the fees fixed in accordance with Sub-rule (11);
(d) sufficient number of copies of the application with all the enclosures for service on the Defendant; and (e) such other statement or records as
may be required by the Registrar:
As per sub rule (5) of Rule 107 of the Tamilnadu Cooperative Societies Rules, 1988, the Registrar, Arbitrator or Arbitrators or other person,
deciding the dispute, shall have power to administer oath to require the attendance of all parties concerned and witnesses and to require the
production of all books and documents relating to the matter of the dispute.
As per sub rule (6) (a) of the above said Rules, the Registrar, the Arbitrator or the Chairman, where several Arbitrators are nominated or other
person deciding the dispute shall record a brief note in English or in Tamil of the evidence of the parties and witnesses who attend, and after
consideration of the evidence so recorded, and of any documentary or oral evidence produced by the parties shall give a decision, award or order
in accordance with justice, equity and good conscience.
The files do not disclose that the evidence of the parties and witnesses who attended an enquiry on 21.2.2006 has been recorded. Going
through the files in entirety, this Court is of the considered view that the procedure stated supra has not been followed.
Rules 112 of the Tamilnadu Co-operative Societies Rules,1988 contemplates the procedure for service of notice, etc. As per the rules, every
notice, summons or other communication under the Act or these rules for which no special mode of service has been specified, shall be served,--
(a) by giving or tendering it to such person under his acknowledgement; or
(b) by sending it to him by post; or
c ) if such person is not found, by giving or tendering it to some adult member of his family under his acknowledgements; or
(d) if none of the above modes is available, by affixing it on some conspicuous part of his last known place of residence or business:
Thus it is evident that in the case of summons or notice other than a meeting, notice if any sent by post shall be by registered post with
acknowledgement due, the communication should be by giving or tendering it to such person under his acknowledgement. In the case on hand,
when notice fixing the date of enquiry is stated to have been sent, the second Respondent ought to have sent the impugned order by registered post
so as to enable the Petitioner to challenge the order in the manner known to law. Though the second Respondent has contended that revision
petition has been filed, files do not support the same. Principles of natural justice has been violated and there is also procedural violation. In such a
view of the matter, this Court is of the considered view that the writ petition cannot be dismissed on the sole ground of availability of an alternative
remedy. Useful reference can be made to the following decisions:
In Ram and Shyam Company Vs. State of Haryana and Others, , the Supreme Court held that, ""Ordinarily, it is true that the Court has
imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226, where the party invoking the jurisdiction had an effective,
adequate, alternative remedy. More often, it is has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule
of convenience and discretion rather than rule of law. At any rate, it does not oust the jurisdiction of the Court.
In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , the Supreme Court at Paragraphs , held as follows:
Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold
the field with the result that law as to be jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution. Inspite of
the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no
jurisdiction or had purported to usurp 20 jurisdiction without any legal foundation
In view of the above, the impugned order is set aside, the matter is remitted back to the first Respondent, who shall issue a fresh notice fixing a
specific date for the enquiry with regard to the dispute, raised by the third Respondent and that after giving sufficient opportunity to the parties, he
shall pass a speaking order, in accordance with law, within a period of six weeks from the date of receipt of a copy of this order.
In the result, the writ petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.