IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2009 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.17893 of 2009 & M.P.Nos.1 and 2 of 2009 1 N.K.NATARAJAN 2 S.P. KANDASAMY 3 K.K.RAJENDRAN 4 S.PALANIAPPAN 5 P. NAVALADI 6 K.DHARMALINGAM 7 K.SUNDARAM [ PETITIONERS ] Vs 1 THE REGISTRAR OF COOPERATIVE SOCIETIES N.V. NATARAJAN MALIGAI 170 PERIYAR E.V.R. ROAD KILPAUK, CHENNAI 1O. 2 THE COMMISSIONER OF SUGAR PERIYAR MALIGAI 690 ANNA SALAI CHENNAI 35. 3 THE SPECIAL OFFICER SALEM COOPERATIVE SUGAR MILLS LTD MOHANUR NAMAKKAL DISTRICT [RESPONDENTS] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the proceeding No.Nil dated 12.8.2009 published in the daily News paper Thina Thanthi dated 14.8.2009 and quash the same and directing the respondents to consider the representation of the https://hcservices.ecourts.gov.in/hcservices/ petitioner dated 18.8.2009 and to conduct the General Meeting of the 3rd respondent Mill in accordance with provision of law. For Petitioner :: Mr.D.Krishnakumar For Respondents :: Mr.R.Neelakandan, G.A.for R1 & R2 Mrs.G.Thilagavathy for R3 O R D E R Heard both sides. 2. The seven petitioners claim to be the members and shareholders of the third respondent Salem Cooperative Sugar Mills at Mohanur in Namakkal District. It is also claimed that they have registered their names from the date of incepection of the Mill. According to the petitioners, the third respondent, which is also a Cooperative Society had not convened its Annual General Body Meeting for the last 17 years as required under the Tamil Nadu Cooperative Societies Act and the Rules. Attention is drawn to Rule 177 of the Tamil Nadu Cooperative Societies Rules, 1988. 3. However, when they came to know that an advertisement, which had appeared in the 'Daily Thanthi' Tamil newspaper on 12.8.2009 (an extract of which is found in page 7 of the typed set of papers) calling of the General Body Meeting on 5.7.2009, they have come forward to file the present Writ Petition. 4. The notice appeared for the General Body Meeting contained the Agenda, which included passing of accounts for 16 years, passing of the Audit Report for those 16 years from 1992-93 to 2007-2008, approving of the Budget for the year 2008-2009 and 2009-10, approving the amendments, considering the waiver of penalties imposed, modernising the Sugar Mills and also for setting up of an Ethnal Plant in the Mills as approved by the Central Government. 5. As soon as the paper publication was issued, the petitioners had sent representations. The 2nd petitioner, who is also the President of the Mohanur Sugar Factory Cane Growers Association, which is registered as No.1847 and the 1st petitioner, who is the General Secretary of the said Association objected to the convening of the General Body Meeting. They also made several demands on the Special Officer as well as the 2nd respondent, the Commissioner of Sugar. When their representations have failed, they have moved this Court, challenging the decision to call for the General Body and for https://hcservices.ecourts.gov.in/hcservices/ a direction to consider their representation dated 18.9.2009 and also for conducting for the General Body Meeting of the third respondent Mill in accordance with the provisions of the law. 6. The ground raised by the petitioners as found in the affidavit filed in support of the Writ Petition was that all the members of the third respondent had no access to attend the General Body Meeting and individual notices were not sent to the members. Copies of the Annual Reports were not furnished to the members and sufficient time was not given to the members to go through the accounts. 7. When the matter came up on 2.9.2009, this Court refused to grant stay of the General Body Meeting. Instead, it had allowed the General Body Meeting to pass resolutions and the petitioners were at liberty to attend the General Body Meeting. 8. On notice from this Court, the third respondent had filed a counter affidavit dated 7.10.2009. Apart from explaining the legality of the Meeting that was convened by the third respondent, it was also stated that large number of members between 6,000 to 6,500 have attended the Meeting. The Resolution passed in the General Body Meeting will have a significant impact on the Mill to grow further in future. Apart from traversing the allegations made by the petitioners, in paragraph 4, preliminary objections were raised that the Writ Petition is not maintainable. In the typed set of papers filed along with the counter affidavit, the proceedings of the General Body Meeting held on 5.9.2009 was also enclosed. 9. The petitioners had filed a reply affidavit stating that the Meeting place, where the General Body Meeting was conducted, can accommodate only 600 persons and it was highly impossible to state that 6000 persons have attended the General Body Meeting. With reference to the maintainability of the Writ Petition, the reply affidavit is silent. 10. However, Mr.D.Krishnakumar, learned counsel for the petitioner, when questioned about the maintainability of the Writ Petition in view of the larger Bench judgment of this Court reported in 2006 (4) CTC 689 (K.Marappan Vs. The Deputy Registrar of Co- operative Societies Namakkal Circle, Namakkal-636 001 and another), stated that the third respondent Cooperative Sugar Mills cannot come within the purview of the larger Bench judgment. In view of the fact that the control by the State is pervasive and it is monitored by a Special Officer, the writ is maintainable. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel for the petitioner also submitted that the Supreme Court vide its Judgment in Madhya Pradesh State Cooperative Dairy Federtion Limited & another vs. Rajnesh Kumar Jaminder and others (very recently on 15.4.2009) has held that the Madhya Pradesh State Cooperative Dairy Federation Limited is a 'State' within the meaning of Article12 of the Constitution of India. 12. In that case, originally the Madhya Pradesh High Court held that the said Federation of Dairy Cooperative Societies is not amenable to writ jurisdiction. Subsequently, the issue was referred to a Special Bench. The Special Bench, having regard to the control exercised by the Madhya Pradesh State over the said Federation held that it is a 'State' within the meaning of Article 12 of the Constitution of India. Aggrieved by the judgment of the Special Bench of the Madhya Pradesh High Court, the Federation approached the Supreme Court by way of Appeal in Civil Appeal No.2442 of 2009 and batch cases. The Supreme Court after examining the judgment of the Madhya Pradesh High Court and also applying the various tests laid by the Supreme Court for deciding as to whether the particular agency is a 'State' within the meaning of Article 12 of the Constitution of India, upheld the decision of the Special Bench of the Madhya Pradesh High Court. 13. In paragraph 15, while referring to the Special Bench judgment reported in Madhya Pradesh State Cooperative Dairy Federtion Limited & others vs.Madan Lal Chourasia (2007 (2) M.P.L.J 594), the Supreme Court said that the test for holding a particular Society as a 'State' within the meaning of the Article 12 of the Constitution of India was fully satisfied. In the decision of Madhya Pradesh State Cooperative Dairy Federtion Limited, after referring to the Madhya Pradesh High Court's decision, the Supreme Court held that 91% of the shares were held by the State and Central Governments. The Board of Directors of the said Federation was constituted under Bye-law No.22 of the Society. Eight out of thirteen members were either nominees of the State or Central Government or their agencies. After referring to the other special bye-laws, the Supreme Court held that the Government had deep and pervasive control over the Society. It also approved the finding that the Board of Directors was dominated by the nominees of the Government and the General Assembly will also take decisions in its meeting in the manner as desired by the Government. Therefore, it was held that the Federation was also dominated and controlled by the Government administratively and functionally. After holding so, the matter which arose under service law was decided by the Supreme Court in favour of the employees. https://hcservices.ecourts.gov.in/hcservices/ 14. Apart from approving the decision, one of the issue that came up for consideration was also the application of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and under that Act Section 47 injuncts an employer in dispensing with the service of a disabled person only because of his acquired disability. Hence, relief was granted. It is not clear as to how the said decision will have any bearing on the present case. 15. On the contrary, the learned counsel for the petitioner was able to produce only the General Body Meeting Minutes and the Annual Reports. A perusal of the Report given by the Joint Director of Cooperative Audit dated 28.9.2009 shows that while the State Government's invested Capital was only Rs.30,31,800/-, whereas the paid up capital by other shareholders was Rs.3,94,87,500/-. There were as many as 23,727 shareholders in the society during the audit year 1995-1996 dated 20.9.2006. The fact that at the relevant point of time, the Cooperative Sugar Mill is managed by a Special Officer is not relevant in deciding the issue. This Court on more than one occasions has held that merely because the Special Officer is manning a Cooperative Society, that itself will not make the society amenable to writ jurisdiction of this Court. Therefore, duty bound as I am by the judgment of the larger Bench decision in Marappan's case (cited supra), it has to be held that the Writ Petition is not maintainable. 16. It will not be out of place to refer to the latest decision of the Supreme Court in M.Mahendravarman and others vs. the Government of Tamil Nadu and others reported in 2009 (5) CTC 237, where this Court, even after the Marappan's case (cited supra), applied the tests laid down in Ajay Hasia's case reported in 1981 (1) SCC 722 and held that if there was a deep and pervasive control by the State, then a Cooperative Society is amenable to the writ jurisdiction. In that case, the question arose whether the Salem District Central Cooperative Bank manned by a Special Officer was amenable to writ jurisdiction. The Court extracted the various tests laid down in Ajay Hasia's case and applied the same to the Salem District Central Cooperative Bank manned by a Special Officer and came to the conclusion that none of the test were available in respect of the said Bank. Therefore the Writ Petition was held as not maintainable. 17. It must be noted that the Supreme Court vide its judgment in Madhaya Pradesh Rajya Sahakari Bank Maryadit vs. State of Madhya https://hcservices.ecourts.gov.in/hcservices/ Pradesh and others reported in (2007) 12 SCC 529 in paragraph 13 observed as follows: "13. Learned counsel for the respondents has also submitted that the Cooperative Society is not a State within the meaning of Article1 2 of the Constitution, therefore, the Writ Petition is not maintainable. We need not go into this aspect as in view of the recent decision of this Act (sic Court) in Supriya Basu v. W.B.Housing Board. Their Lordships have laid down what are the parameters for challenging the orders passed by the Cooperative Societies. It has been held that the writ would be maintainable against a Cooperative Society if it is established that a mandatory statutory provision of a statute has been violated. Therefore, nothing turns on this aspect of the matter." (Emphasis added) 18. Very recently, the Supreme Court in State of Assam vs. Barak Upatyaka D.U.Karmachri Sanstha reported in (2009) 5 SCC 694 held that even if an employee has certain Fundamental Right and employed in a Cooperative Society, his rights cannot be enforced against the State Government and that the relief can be claimed only against the Cooperative Society in which he is working. In paragraph Nos.13 and 14, it was observed as follows: "13. If the salaries are not paid, the remedy of the employees of CAMUL is to proceed against CAMUL, in accordance with law, by approaching the forum under th appropriate labour legislation of the Cooperative Societies Act. But a trade union representing the employees of a Cooperative Society cannot, by filing a Writ Petition, require the Government to bear and pay the salaries of the employees of the Cooperative Society, however pervasive, the control of the State Government, over such society. Nor is any right created to demand the continuance of financial assistance to a Cooperative Society, on the ground that such assistance has been extended by the Government, for several years. 14. The respondent has not been able to show any right in the employees of CAMUL against the State Government, or any obligation on the part of the State Government with reference to the salaries/emoluments of employees of CAMUL either under any statute or contract or otherwise." 19. In the present case, the petitioners are only members and shareholders of the third respondent Cooperative Society. If the https://hcservices.ecourts.gov.in/hcservices/ petitioners are aggrieved by the conduct of the Society or the manner in which the General Body Meeting was convened, the only remedy available to the petitioner is to file a revision under section 153 of the Tamil Nadu Cooperative Societies Act. They cannot resort to a Writ Petition in the teeth of the larger Bench judgment in Marappan's case (cited supra). 20. In the light of the above, the Writ Petition stands dismissed. However, there will be no order as to costs. The connected Miscellaneous Petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 THE REGISTRAR OF COOPERATIVE SOCIETIES N.V. NATARAJAN MALIGAI 170 PERIYAR E.V.R. ROAD KILPAUK, CHENNAI 1O. 2 THE COMMISSIONER OF SUGAR PERIYAR MALIGAI 690 ANNA SALAI CHENNAI 35. 3 THE SPECIAL OFFICER SALEM COOPERATIVE SUGAR MILLS LTD MOHANUR NAMAKKAL DISTRICT + 1 cc to M/s.G.Thilakavathi, Advocate, SR 62537 + 1 cc to the Govt., Pleader, High court, Madras SR 62522 + 1 cc to Mr.D.Krishnakumar, Advocate SR 62686 W.P.No.17893 of 2009 LA (CO) RH (26.11.09) https://hcservices.ecourts.gov.in/hcservices/