IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-06-2010 Coram THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.A. No. 62 of 2000 and C.M.P. No. 692 of 2000 Tamil Nadu Technical Educaton Department Staff Co-operative House-Building Society rep. by its Secretary R. Jayaraman Directorate of Technical Education Guindy, Madras – 600 025 .. Appellant/Petitioner Versus 1. The Secretary to Government Housing and Urban Development Department Government of Tamil Nadu Fort St. George Chennai – 600 009 2. The Collector Chengai MGR District Kancheepuram 3. The Special Tahsildar (LA) VI Tamil Nadu Housing Board Schemes Madras – 600 101 4. The Executive Engineer & Administrative Officer Tamil Nadu Housing Board Besant Nagar Division Adyar, Chennai – 600 090 (R4 impleaded as party respondent vide Order dated 30.09.2009 made in WAMP No. 81 of 2009 in WA No. 62 of 2000) .. Respondents/Respondent Appeal filed under Clause 15 of the Letters Patent against the Order dated 05.10.1999 made in WP No. 3453 of 1992. Writ Petition praying to writ of certiorari calling for the records of the 1st Respondent in G.O.No.1007 Housing and Urban Development Department in Survey Nos.350 to 371 in (369/4A, 369/4B, 369/5, 371/1, 371/2, 362/2A, 362/2B, 363/6, 368/1, 369/1A, 369/2, 369/3, 352/7, 352/9, 352/1, 350/10A, 350, 350/9, 350/10B, 363/1A, 363/4, 363/1B, 363/2, 363/3, 350/11A, 350/11B, 352/4, 352/5, 352/6, 350/1, 365/5, 365/2A, 365/3, 365/4, 365/6A, 365/6B, 366/1A, 367/1 at No.155 Solinganallur https://hcservices.ecourts.gov.in/hcservices/ Village, Saidapet Taluk, Chengai M.G.R. District dated 21.6.1991 so far as to the lands relates to the petitioner and quash the same. For Appellant : Mr. S. Parthasarathy, Sr. Counsel for Mrs. Pushpa Sathyanarayana For Respondents : Mr. P. Wilson Additional Advocate General assisted by Mr. Dhandapani Special Government Pleader for RR1 and 2 Mr. D. Veerasekaran for RR3 and 4 JUDGMENT B. Rajendran, J The writ appeal arises out of the Order dated 05.10.1999 passed in WP No. 3453 of 1992 by a learned single Judge of this Court. The said Writ Petition was filed by the petitioner/appellant praying to issue a Writ of Certiorari to call for the records of the first respondent in G.O. Ms. No. 1007, Housing and Urban Development Department dated 21.06.1991 so far as it relates to the lands of the petitioner in Survey Nos. 350 to 371 i.e., 369/4A, 369/4B, 369/5, 371/1, 371/2, 362/2A, 362/2B, 363/6, 368/1, 369/1A, 369/2, 369/3, 352/7, 353/9, 352/1, 350/10A, 350/8, 350/9, 350/10B, 363/1A, 363/4, 363/1B, 363/2, 363/3, 350/11A, 350/11B, 352/4, 352/5, 352/6, 350/1, 365/6, 365/2A, 365/3, 365/4, 365/6A, 365/6B, 366/1A, 367/1 and quash the same. 2. The appellant, claiming to be the Secretary of the Tamil Nadu Technical Educaton Department Staff Co-operative House-Building Society, comprising of 200 members, who are Government servants, has filed the above writ petition contending interalia that the society has been formed with a view to get suitable lands for constructing houses for the members. It was also contended that the members of the appellant-society are the purchasers of the plots for valuable sale consideration in a lay out area comprised in Survey No. 350 to 371 at No.155, Sholinganallur Village, Saidapet Taluk, Chengai MGR District. The members of the appellant-society also stated to have obtained patta in their favour in respect of their respective lands. According to the appellant, the appellant purchased 14.18 acres of land in the name of the society for valueable consideration. The appellant-society also applied for layout of the house sites in various survey numbers measuring an extent of 8.865 acres with Madras Metropolitan Development Authority and the layout approval was also granted vide letter dated 30.11.1989. Pursuant to the obtaining of the approval, the appellant-society also has executed gift deeds in favour of the Sholinganallur Town Panchayat for the purpose of laying roads as per the condition of approval. Subsequently, the Sholinganallur Town Panchayat has also given its approval for the layout as per the proceedings dated 04.01.1990 after collecting the development charges. It was further contended that the society is also in possession of lands to an extent of 5.32 acres which is intended for distribution among the remaining members, who have paid the full cost. While so, the Government https://hcservices.ecourts.gov.in/hcservices/ issued notification under Section 4 (1) and 5-A of the Land Acquisition Act (hereinafter referred to as 'The Act) vide G.O. Ms. No.474, Housing and Urban Development Department dated 30.05.1990 for acquisition of 82.84.0 hectares of wet, dry and Manavari lands in Survey Nos. 350 to 371 etc., for implementation of Sholinganallur Neighbourhood Scheme Phase III, sponsored by the Tamil Nadu Housing Board. The said notification was also published in the official gazzette on 03.04.1990 and also in one issue of Tamil Daily Dinakaran on 16.06.1990. Thereafter, the appellant-society submitted their objections on 26.06.1990. According to the appellant, the objectinos were not properly considered and they have been overruled on 01.03.1991 without any reasons. However, the notification under Section 6 (1) of the Act and it was also published in one issue of Tamil Daily 'Dinakaran'. In the meantime, the appellant society has submitted a letter dated 07.09.1990 to the first respondent praying to delete the lands belonging to the appellant-society from the purview of acquisition proceedings, but the same was rejected and intimated to the appellant on 22.02.1991 vide letter No.30255/LA dated 03.04.1990 stating that the Government has decided to proceed with the acquisition proceedings and it is not feasible to consider the request of the appellant society for deletion of the lands from the purview of acquisition proceedings. Under those circumstances, the appellant society has filed the above writ petition before this Court contending that the purpose for which the society purchased the lands and the purpose for which the said lands are sought to be acquired by the respondents are one and the same and therefore the entire acquisition proceedings are vitiated. It is also contended that since the layout plan has been approved by Madras Metropolitan Development Authority, the Government cannot thereafter acquire the said lands. 3. Before the learned single Judge, the respondents have not filed any counter affidavit, however, the learned Government Advocate contended justifying the purpose for which the lands were sought to be acquired. 4. The learned single Judge, after hearing the submission of both sides, came to the conclusion that the appellant-society has failed to make out any case in their favour and therefore, interfering with the orders impugned in the writ petition is not warranted. Accordingly, the learned single Judge dismissed the writ petition which has given rise to the filing of the present writ appeal. 5. Before us, the respondents have filed a counter affidavit contending interalia that the notification under Section 4 (1) of the Act was issued for acquisition of 82.84.0 hectares of lands comprised in Survey Nos. 235/1A, 235/1B1, 235/1B2, 235/1C1 etc., of Sholinganallur Village for formation of Sholinganallur Neighbourhood Scheme,Phase III and it was also approved in G.O. Ms. No.474, Housing and Urban Development Department dated 30.05.1990. The said notification was also published in the Government Gazzette on 13.06.1990 as well as in Tamil Dailies 'Murosoli' and 'Dinakaran' on 16.06.1990. The substance of the 4 (1) notification was also published in the Village on 02.07.1990 as required under the Act. Further, the notice in Form III seeking objections from the land https://hcservices.ecourts.gov.in/hcservices/ owners and other interested persons was published in the Village, besides, Form III (A) was also served on all the interested persons. The enquiry under Section 5 (A) of the Act was conducted on 05.09.1990 and objections of the land owners were received. On receipt of the objections, the same were tabulated and forwarded to the Chairman, Tamil Nadu Housing Board along with the objection petitions in original vide letter dated 06.11.1990 for receipt of remarks. The Chairman of the Housing Board, by letter dated 03.01.1991 stated that the objections have to be overruled and to submit the draft declaration under Section 6 of the Act. The remarks so offered by the requisition body namely Housing Board was also communicated to the objectors vide letter dated 29.01.1991. Thereafter, the enquiry under Rule 3 (b) of the Act framed under Section 55 (1) of the Act was conducted on 27.02.1991. The persons who attended the 3 (b) enquiry did not raise any new grounds than the one raised by them at the time of enquiry under Section 5-A and therefore the Land Acquisition Officer, after duly considering the objections, by proceedings dated 01.03.1991, overruled the objections and pursued further action. 6. It is also stated in the counter affidavit that the draft declaration under Section 6 of the Act was approved in G.O. Ms. No.1007, Housing and Urban Development Department dated 21.06.1991, which was published in the Government Gazzette on 25.06.1991. Thereafter, the direction under Section 7 of the Act to appoint the Special Tahsildar to perform the functions of the District Collector was approved by the Government vide Government letter dated 30.09.1991, which was also published on 16.10.1991 in the Government Gazzette. Subsequently, the notice under Section 9 (1) and 10 of the Act was published in Sholinganallur Village on 05.02.1993 as required under the Act. Further, the notice in Form 7 under Section 9 (3) and 10 of the Act were served on the land owners and interested persons. Thereafter, the enquiry under Section 16 of the Act was conducted on 24.06.1993. In the meanwhile, as the appellant society has filed the above Writ Petition before this Court in which interim stay was granted only to the extent from disturbing the possession of the lands, the other proceedings went on and ultimately, the award was passed on 30.06.1993 under Award No.5 of 1993. Since the writ petition was dismissed on 05.10.1999, the present appeal has been filed. Inasmuch as the Government has approved the notification under Sectin 4 (1) of the Act for acquisition of lands to an extent of 82.84.0 hectares in Sholinganallur Village, including the lands of the members of the appellant society for formation of Sholinganallur Neighbourhood Extension Scheme Phase III, the subject matter of the lands are essentially required for implementation of the scheme formulated by the Government. Apart from this, the Government has approved the notification under Section 4 (1) of the Act in G.O. Ms. No.454, Housing and Urban Development Department dated 23.05.1990 for acquisition of lands to an extent of 21.83.0 hectares for the purpose of formation of Sholinganallur Neighbourhood Scheme, Phase II for Housing Scheme of Tamil Nadu Housing Board. 7. In the counter affidavit of the respondents, apart from the above averments regarding compliance of the procedural formalities, the Government has raised a specific plea that on https://hcservices.ecourts.gov.in/hcservices/ verification whether there exists any society in the name of Tamil Nadu Technical Educaton Department Staff Co-operative House-Building Society, it was found that there was no such society in existence at all. The appellant society has not at all been registered. The person who have sworned the affidavit in support of the writ petition and claiming himself to be the Secretary is working as Superintendent in the Technical Education Department. The appellant society is not registered under the Cooperative Societies Act. The details of the members of the society, the extent of land which is sought to be released from the purview of acquisition is neither mentioned in the affidavit nor the list is produced. It was also pleaded that under Section 159 of the Tamil Nadu Cooperative Society Act, 1983 (Act 30 of 1983, only a registered society can use the word 'co-operative' or its equivalent in any regional language without the sanction of the Government. Therefore, the appellant society is not a juristic person and the writ petition filed by an unregistered society is not maintainable. Furthermore, the respondents have also taken a specific plea that the owners of the lands are the persons who are having an interest in the lands which are sought to be acquired have not challenged the acquisition proceedings. As the association has sold the property to individual members and they have not challenged the acquisition proceedings even though notice under Section 9 and 10 have been issued to them individually, the writ petition is not maintainable. When the owner of the lands have not challenged the notification issued under the Act, the appellant society has no legal right to file the writ petition at all. It was also contended that once an award is passed even the land owner or interested party can maintain an writ petition and prayed for dismissal of the writ appeal. 8. We have heard the argument of the learned senior counsel appearing for the appellant, learned Additional Advocate General appearing for the Government and the learned standing counsel for the requisitioning body. 9. The learned senior counsel for the appellant mainly argued that when once the layout approval has been granted by the competent authority namely Madras Metropolitan Development Authority in respect of certain lands, the Government is estopped from issuing the notification under Section 4 (1) of the Land Acquisition Act. It is also argued by the learned senior counsel for the appellant that the appellant society has been formulated for the purpose of allotting lands to enable their members to put up construction of house sites and for the very same purpose, the lands of the members of the appellant society is sought to be acquired by the respondents and therefore, the entire acquisition proceedings are vitiated. Lastly it was contended by the learned senior counsel that the objections submitted by the society has not been considered at all by the Land Acquisition Officer and they were simply overruled without assigning any valid reasons. In fact, the objections were overruled on the basis of the remarks offered by the requisitioning body namely Housing Board which indicates the non-application of mind on the part of the Land Acquisition Officer, therefore also, the entire acquisition proceedings are vitiated. https://hcservices.ecourts.gov.in/hcservices/ 10. Per contra, the learned Additional Advocate General appearing for the respondents argued that the writ petition itself is not maintainable as the appellant society is neither a registered society and the appellant, which is an unregistered society, cannot use the word 'co-operative' as it has been prohibited under Section 159 of the Tamil Nadu Cooperative Societies Act. Since the appellant is not a juristic person, the writ petition is not at all maintainable. The order passed by the Land acquisition Officer, overruling the objections raised by the appellant is not an order simplicitor following the recommendations or remarks offered by the Housing Board and therefore it is valid. Further, merely because layout plan sought for by the appellant in favour of their members has been granted, it is not a bar for the respondents to proceed with the acquisition proceedings. The learned Additional Advocate General would lastly contend that no writ petition would lie after an award has been passed. In this case, an award was passed as early as in the year 1993. Moreover, the original owners namely the alleged members of the appellant society, who have been issued with individual notices in respect of the enquiry under Section 9 and 10 of the Act have not chosen to challenge the acquisition proceedings and therefore, on their behalf, the appellant society cannot maintain the writ petition as it is not an aggrieved person. 11. We have given our anxious consideration to the rival submissions made by the respective counsel for the parties. At the outset, we are inclined to deal with the question as to the maintainability of the writ petition. 12. The appellant society is styled as Tamil Nadu Technical Educaton Department Staff Co-operative House-Building Society, which would indicate that it is a co-operative society formed for the purpose of accommodating its members, who are government servants. As seen from the affidavit filed in support of the writ petition, more than 200 government servants joined together and formed the society. The society had purchased more than 14 acres of lands and registered the property in the name of the society. It is very clearly admitted that the scoiety is not a registered society. The society is not registered under the Co-operative Societies Act. When the society is an unregistered society and it is only an association of persons, then it is not a juristic person. In fact, even if a society is registered, the society, by itself, cannot file a writ petition and it has to be represented by an elected body like Secretary, President or any one authorised by the bye-law of such society. In this case, the appellant society, having admitted that it is not a registered society, it is not known under what authority the person claiming to be the Secretary of the Society has filed the writ petition. From the records, we are unable to see the names of members of the society and their address furnished along with the writ petition. It is well known that there exist certain salient differences between a society registered under the Societies Registration Act, on the one hand, and a company corporate, on the other, principle amongst which is that a company is a juristic person by virtue of being a body corporate, whereas, the society, even when it is registered, is not possessed of these characteristics. Moreover, a society, whether registered or https://hcservices.ecourts.gov.in/hcservices/ unregistered, may not be prosecuted in a criminal court nor is it capable of ownership of any property or of suing or being sued in its own name, as has been held by the Honourable Supreme Court in the decision reported in (Illachi Devi (dead) by LRs and others vs. Jain Society, Protection of Orphans India and others) (2003) 8 SCC 413 Therefore, the society cannot sue or be sued in its name only. It must sue or be sued through a person nominated in that behalf, which is like a corporation, which cannot be sued by itself. In this case, there is no whisper in the affidavit filed in support of the writ petition to sustain the maintainability of the writ petition or how and when the Secretary was authorised to file the writ petition. It is not known how the appellant society, which is a mere association of persons, could file the writ petition under the name and style of society, particularly without disclosing the names of the members of the society. Therefore, the writ petition cannot be entertained. Even otherwise, the words used in the name of the society is 'Housing Building Society'. Under Section 159 of the Tamil Nadu Co-operative Societies Act (Act 30 of 1983), there is a specific bar for the use of the word 'cooperative' or any equivalent. It will be useful to extract the provisions of Section 159 of the Act, which is as follows:- "159. Prohibition of the use of the word 'co-operative' or its equivalent:-- (1) No person other than a registered society shall trade or carry on business under any name or title of which the word 'co-operative' or its equivalent in any regional language is part without the sanction of the Government; Provided that nothing in this sub-section shall apply to the use by any person or his successor in interest of any name or title under which he traded or carried on business at the date on which the cooperative societies Act, 1912 (Central Act II of 1912) came into operation. (2) Whoever contravenes the provisions of sub-section (1) shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing offence with further fine of fifty rupees for each day on which the offence is continued after conviction thereof. 13. It is evident from Section 159 of the Tamil Nadu Co- operative Societies Act that no person other than a registered society can use the word co-operative or its equivalent without the sanction of the Government. In this case, the appellant is neither a registered society nor it has got any approval or sanction from the government for using the word 'co-operative' in their name. In fact, in the counter filed in this writ appeal, the respondents have categorically stated that no such co-operative society appears to be in existence. Under those circumstances, the writ petition filed in the name of Tamil Nadu Technical Educaton Department Staff Co- operative House-Building Society, by using the word 'co-operative' without any sanction from the government is not maintainable as it is barred by Section 159 of the Tamil Nadu Cooperative Societies Act. https://hcservices.ecourts.gov.in/hcservices/ 14. Furthermore, it is also brought to our notice that the society itself, though claims to have purchased the property in the name of the society, had subsequently sold the property to its members and registered the property in the name of the individual members after getting the land approval. The fact that the property has been registered in the names of the members would clearly indicate that the society was not concerned with the housing building or future holding of the land. The moment the land is registered in the name of an individual member, such member became the absolute owner of the property. Thereafter, the society cannot be construed as an owner of the property. In this case, at the time of enquiry under Section 5-A of the Act, notices have been issued and objections have been called for and accordingly objections have been made by the society and also participated in the enquiry. The objections submitted by the society have been duly considered by the Land Acquisition Officer and forwarded the same to the requisitioning body namely the Housing Board. The Housing Board, after going through the objections, rejected the objections made by the appellant society. Such report of the requisitioning body was also communicated to the appellant society. Only thereafter, the land acquisition proceedings were proceeded further. Thereafter, as per Section 9 and 10 of the Act, notices have been sent to the individual members of the society, as, by then, the lands have been registered in the name of the individual members and they became owners of the lands. Thereafter, when the enquiry under Rule 3B of the Act was conducted, the individual members have participated but not raised any new objections. Therefore, on a cumulative reading of all the above said facts, we are unable to see as to how the society can thereafter represent their members and file the writ petition challenging the acquisition proceedings, inasmuch as the society is an unregistered society. The individual members have not filed any separate writ petition challenging the acquisition proceedings. Therefore, it is not open to the society, a conglomerate or association of person to challenge the notification issued under Section 4 (1) of the Act. The writ petition is not maintainable as it has been filed by a non-juristic person. Furthermore, as stated supra, the writ petition is also not maintainable in view of the fact that the individuals namely actual owners/ alleged members of the society have not challenged the acquisition proceedings inspite of the fact that separate notices have been issued to them under Sections 9 and 10 on finding that the lands have been registered in their name. Earlier notices have been issued to the society because by then, the lands were registered only in the name of the society. In any event, the writ petition is not maintainable and it is liable to be dismissed on that ground. 15. The next question arises for our consideration is whether the objections submitted by the society has been duly considered by the Land Acquisition Officer or not. The learned senior counsel for the appellant submitted that after the notification under Secition 4 (1) of the Act was issued, enquiry under Section 5A of the Act was conducted in which the appellant society participated and raised objections. Such objections were not considerd by the Land Acquisition Officer and the objections were overruled on the basis of the instructions given by the requisitioning body namely Housing https://hcservices.ecourts.gov.in/hcservices/ Board. 16. We are unable to agree with