IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2452 of 2010 and M.P.No.1 of 2010 RAJESWARI PETITIONER Vs 1 THE TINDIVANAM CO-OPERATVE URBAN BANK LTD. REP.BY DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES SPECIAL OFFICER NO.46, TINDIVANAM VILLUPURAM DIST.-604 001 2 K.RADHIKA 3 V.ALAMELU RESPONDENTS Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling the records of the sale certificate issued to the 2nd respondent in A.R.C. No.264 of 1995-96 and in pursuance of the order of sale registered as document No.237 of 2005 besides the document No.235 of 2005 by quashing the sale certificate L.No.4 of 2008 dated 8.5.2008 after receipt deficit stamp duty and consequently issue a writ of Mandamus by canceling the sale deed issued in favour of the 2nd respondent in respect of the schedule property situated within the registration District of Tindivanam, Registration Sub-District Tindivanam Joint Sub District-I, Tindivanam Taluk, Roshanai Village, Bounded on the East of Perumal site, West of Munusamy land, South of Duraisamy Mudaliar site and North of Mannankatti site, East West X South North 37 X 82 dry survey No.111/10 (0.12) ward No.3, name assessment No. estimated extent acres – cents 0.06, 3034 sq.ft. For petitioner : Mr.M.Kumaraswami For respondents : Mr.R.Murali Government Advocate for R1 O R D E R This writ petition has been filed praying for a writ of Certiorarified Mandamus to call for and quash the sale certificate issued to the second respondent, in A.R.C.No.264 of 1995-96 and to direct the cancellation of the sale deed issued in favour of the second respondent, in respect of the property, in survey No.111/10, in Roshanai Village, Tindivanam Taluk, Villupuram District. 2. The petitioner has stated that the mother of the petitioner, https://hcservices.ecourts.gov.in/hcservices/ namely, E.Kuppammal, was the owner of the property in question, measuring an extent of 6 cents, in Survey No.111/10, Tindivanam Taluk, Villupuram District. The said land had been used as a house site and it had been hypothecated in favour of the first respondent, by the petitioner’s mother, during her life time. For the non payment of the amount borrowed from the first respondent Bank, by way of a mortgage, the property had been brought to public auction, as per the orders passed, in A.R.C.No.264 of 1995-96. By virtue of an award passed, the first respondent had transmitted the decree to the District Munsif Court, Tindivanam. The Civil Court could execute the award, as per Order 21 Rule 54 of the Civil Procedure Code, 1908. A corresponding power is found in the Tamil Nadu Co-operative societies Rules 116 and 119, read with Rule 121. 3. It has been further stated that the petitioner’s mother had died, on 22.8.2001, at Chennai. Thereafter, the petitioner is the absolute owner of the property in question. While so, in the month of March, 2009, some persons had attempted to put up unauthorised construction in the property belonging to the petitioner. On enquiry, the petitioner had found that the property had been sold in a public auction due to the non payment of the loan amount borrowed by the petitioner’s mother, E.Kuppammal, from the first respondent Bank. In such circumstances, the petitioner had preferred the present writ petition, under Article 226 of the Constitution of India. 4. The learned counsel appearing for the petitioner had submitted that the first respondent Bank had no authority or jurisdiction to bring the property in question to public auction and to register the sale deed in favour of the second respondent. As the said property belonged to the petitioner, the petitioner had not been put on notice before the property in question had been sold, by way of a public auction. Since, the borrower of the loan, E.Kuppammal, the mother of the petitioner had died in the year, 2001, the proceedings relating to the attachment and the sale of the property in question could not have been carried on, validly. Therefore, the auction of sale and the registration of the sale deed, thereafter, are illegal and invalid in the eye of law. 5. When the question of maintainability of the writ petition had been raised by this Court, the learned counsel appearing on behalf of the petitioner had relied on the decision of the Supreme Court, in GAYATRI DE Vs. MOUSUMI COOP.HOUSING SOCIETY LTD., (2004) 5 SCC 90) wherein it has been held that when a cooperative societies under the control of a Special Officer, a writ petition, under article 226 of the constitution of India, would be maintainable. 6. The learned counsel had further submitted that even though a Larger Bench of this Court had held, in K.MARAPPAN Vs. DY. REGISTRAR OF CO-OPERATIVE SOCIETIES (2006) 4 M.L.J. 641) that a writ petition, under Article 226 of the Constitution of India, cannot be maintained against a cooperative society, certain exceptions had been recognised therein. Paragraph 21 of the said decision reads as follows: "21. From the above discussion, the following propositions emerge: https://hcservices.ecourts.gov.in/hcservices/ (i) If a particular Co-operative Society can be characterised as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be 'an Authority' within the meaning and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a Society in violation of the bye-laws can be corrected by way of writ petition. (ii) Applying the tests in Ajay Hasia V. Khalid Mujib Sehrewardi (supra) it is held that a Co-operative Society carrying on Banking business cannot be termed as 'an instrumentality of the State' within the meaning of Article 12 of the Constitution. (iii) Even if a Society cannot be characterised as a 'State' within the meaning of Article 12 of the Constitution, a writ would lie against it to enforce a statutory public duty cast upon the Society. In such a case, it is unnecessary to go into the question whether the Society is being treated as a 'person' or 'an Authority' within the meaning of Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. (iv) A Society, which is not a 'State' would not normally be amenable to the writ jurisdiction under Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including Societies. If they violate such statutory provisions, a writ would be issued for compliance of those provisions. (v) Where a Special Officer is appointed in respect of a Co-operative Society which cannot be characterised as a 'State' a writ would lie when the case falls under Clauses (iii) and (iv) above. (vi) The bye-laws made by a Co-operative Society registered under the Tamil Nadu Cooperative Societies Act, 1983 do not have the force of law. Hence, where a Society cannot be characterised as a 'State, the service conditions of its employees governed by its bye-laws cannot be enforced through a writ petition. (vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternate remedy. (viii) The decision in M.Thanikkachalam https://hcservices.ecourts.gov.in/hcservices/ V.Madhuranthagam Agricultural Co-operative Society (supra), is no longer good law, in view of the decision of the seven- Judge Bench of the Supreme Court in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Technology (supra) and the other decisions referred to here before. The reference is answered accordingly. Registry is direted to place the paper before the appropriate Bench for its disposal." 7. Mr.R.Murali, the learned Government Advocate, appearing on behalf of the first respondent, had submitted that the writ petition filed by the petitioner, challenging the auction sale of the property in question and the subsequent registration of the sale deed in favour of the second respondent, cannot be maintained. He had pointed out that the writ petition had been filed against the first respondent Bank, which is a society, registered under the Societies Registration Act and the second and the third respondents, who are private persons. As such, the writ petition, filed by the petitioner, under Article 226 of the Constitution of India, is not maintainable, as per the decision of a larger bench of this Court, in K.MARAPPAN Vs. DY. REGISTRAR OF CO-OPERATIVE SOCIETIES (2006) 4 M.L.J. 641). 8. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, and in view of the decision cited supra, there is no doubt that the present writ petition is not maintainable. The petitioner has not been in a position to show that it is falling within the exceptions pointed out in the said decision. Even otherwise, it is seen that the petitioner has challenged the auction sale conducted in respect of the property, said to be belonging to the petitioner, after a considerable length of time. In such circumstances, the writ petition is liable to be dismissed. Hence, it is dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar lan To: 1 THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES THE TINDIVANAM CO-OPERATVE URBAN BANK LTD. SPECIAL OFFICER NO.46, TINDIVANAM VILLUPURAM DIST.-604 001 1 cc to Mr.M.Kumaraswami, Advocate, Sr.No.18089 Writ Petition No.2452 of 2010 JSV {CO} TP/26.3.2010. https://hcservices.ecourts.gov.in/hcservices/