Madras High Court
Vadasery Pothujana Kaitharer ... vs The Deputy Inspector General Of ... on 28 June, 2021
W.P.(MD).No.1303 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.1303 of 2021
Vadasery Pothujana Kaitharer Nesavalar
Kotturavu Sangam Ltd., rep. by its President,
M.Murugan,
No.3439, Vadaseri, Vadaseri Village,
Agasteeswaram Taluk,
Kanniyakumari District. ... Petitioner
Vs.
1.The Deputy Inspector General of Registration,
O/o.The Deputy Inspector General of Registration,
Holy Markis Street,
Holy Jones Hr. Sec. School Downwards,
Sankar Colony, Palayamkottai,
Tirunelveli District.
2.The District Registrar of Societies,
District Registrar Office,
Kanniyakumari District.
3.The Sub Registrar,
Sub Registrar Office,
Vadasery,
Kanniyakumari District. ... Respondents
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, directing the respondent No.1 to dispose the appeal
preferred by the petitioner's Sangam, dated 21.12.2020, in the light of Section 90
and 156 of the Tamilnadu Co-operative Societies Act, 1983 and consequently a
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W.P.(MD).No.1303 of 2021
direction directing the respondents to remove the illegal entries made in the
Encumbrance Certificate of the society properties situated in D.No.128/70 in
T.S.No.A-2-4-9/10B, A2/4-1, measuring 101.3 sq. ft. at Podhujana Nesavalar
Kotturavu Sangam, Paramathinlinagapuram, Vettoornimadam, Nagerkovil,
Kanniyakumari District, within the time limit fixed by this Court.
For Petitioner : Mr.I.Pinaygash
For Respondents : Mr.M.Lingadurai
Government Advocate
ORDER
This writ petition has been filed for the issue of writ of Mandamus
directing the first respondent to dispose of the appeal filed by the petitioner on
21.12.2020, within the time frame fixed by this Court.
2.The petitioner society claimed rights over certain properties. A suit
was filed without impleading the society as a party and ultimately, the case came
up before this Court in S.A.(MD).No.1079 of 2011. This Court disposed of the
second appeal by judgment, dated 08.11.2011. The relevant portions in the
judgment are extracted hereunder.
“14. I would like to point out that a mere
pouring over and perusal of the said Sections and the
precedents cited supra would display and demonstrate
that the appellant has chosen the wrong forum. The
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W.P.(MD).No.1303 of 2021
appellant being the society, as per the contract itself,
as contended by the learned counsel for the appellant,
could have very well invoked the provisions of the
Tamil Nadu Co-operative Societies Act, 1983 and
proceeded to recover the property, in view of the
alleged default committed by the second respondent. It
is also worthwhile to remind that judgments/orders in
most of the civil cases are only in personam and they
do not bound third parties. Here also the appellant is
not a party to the suit. In such a case, because the first
respondent obtained a sale deed by proceeding as
against the second respondent, that will not bind the
Co-operative Society.
15. Section 90 of the Tamil Nadu Co-
operative Societies Act would unambiguously and
unequivocally highlight and spotlight that the co-
operative Society, which allotted the land or house or
immovable property to its Member can recover it from
the allottee in case of default of the later, if the allottee
is having any grievance, it is for him to raise the same
as a dispute under Section 90 of the Tamil Nadu Co-
operative Societies Act and no Civil Court can
interfere in view of Section 156 of the Tamil Nadu Co-
operative Societies Act.
16. I recollect and call up the adage "why
buy a cow, when you could get milk for free".
17. Once the Society itself is vested with
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rights to proceed as against the allottee, who defaulted
W.P.(MD).No.1303 of 2021
to pay the instalments, I am at a loss to understand as
to why the Society should figure as a third party in the
Execution Petition filed by the first defendant. Both the
Courts below without adverting to the aforesaid legal
position, went tangent. Still I am of the view that the
Second Appeal could not be entertained.
18. In view of the aforesaid legal position, I
hereby recognise the statutory rights of the appellant
to proceed under the Tamil Nadu Co-operative
Societies Act, 1983, to recover the property concerned
if at all the facts as stated by the appellant is true.”
3.Pursuant to the above judgment passed by this Court, a
representation was made before the second respondent and the second
respondent by order, dated 22.09.2020, rejected the claim made by the petitioner
seeking for the cancellation of the documents. Aggrieved by the same, an appeal
was filed before the first respondent, on 21.12.2020. Since the same was not
considered, the present writ petition has been filed before this Court, seeking for
appropriate directions.
4.Heard Mr.I.Pinaygash, learned counsel appearing for the petitioner
and Mr.M.Lingadurai, learned Government Advocate, appearing for the
respondents.
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W.P.(MD).No.1303 of 2021
5.Taking into consideration the facts and circumstances of this case
and the limited relief sought for in this writ petition, there shall be a direction to
the first respondent to deal with the appeal filed by the petitioner, on 21.12.2020
by affording opportunity to the petitioner and other interested parties and pass
orders on its own merits and in accordance with law, within a period of eight
weeks from the date of receipt of a copy of this order.
6.The petitioner is directed to make a fresh representation to the first
respondent along with all relevant documents and also a copy of this order.
7.This writ petition is disposed of with the above directions. No costs.
28.06.2021
Internet : Yes/No
Index : Yes/No
TM
NOTE:
In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate/litigant concerned.
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W.P.(MD).No.1303 of 2021
To
1.The Deputy Inspector General of Registration,
O/o.The Deputy Inspector General of Registration,
Holy Markis Street,
Holy Jones Hr. Sec. School Downwards,
Sankar Colony, Palayamkottai,
Tirunelveli District.
2.The District Registrar of Societies,
District Registrar Office,
Kanniyakumari District.
3.The Sub Registrar,
Sub Registrar Office,
Vadasery,
Kanniyakumari District.
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W.P.(MD).No.1303 of 2021
N.ANAND VENKATESH, J.
TM
Order made in
W.P.(MD).No.1303 of 2021
28.06.2021
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