Madras High Court
The National Engineering Multi ... vs The Government Of Tamil Nadu ... on 29 October, 2021
WP No.6618 of 2014 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29-10-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP Nos.6618, 2169, 923 to 925, 1297, 1908, 25723, 25724, 28271, 28581,
29022 of 2014 and 30009 to 30011 of 2013
And
MP Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, and 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2 of 2014
And
MP No.1 of 2015
WP No.6618 of 2019:
The National Engineering Multi Purpose
Cooperative Housing Society Ltd.,
Represented by its Chairman Mr.Vignesh,
No.4/163, Sivagami Amman Street,
M.A.Nagar, Redhills,
Chennai. .. Petitioner
vs.
1.The Government of Tamil Nadu represented
by Secretary to Government,
Commercial Taxes and Registration Department,
Fort St. George,
Chennai – 600 009.
2.The Inspector General of Registration,
Chepauk,
Chennai – 600 005. .. Respondents
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Writ Petition is filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus,
calling for the records of the first respondent in Letter No.16495/J1/2012-5,
Commercial Taxes and Registration Department, dated 21.10.2013 and the
consequential order of second respondent in O.Mu.3667/C2/2012 dated
28.10.2013 and quash the same orders and direct the respondents to
continue the remission of stamp duty in respect of Multi-State Cooperative
Societies registered in Tamil Nadu including the petitioner-Cooperative
Society.
For Petitioner in WPs 6618,
923 to 925, 1297, 1908,
25723, 25724, 28271,
28581 and 29022/14 : Mr.S.Arivazhagan
For Petitioner in WPs 2169/14,
and 30009 to 30011/13 : Mr.V.Raghavachari
For Respondents in all WPs : Mr.K.M.D.Muhilan,
Government Advocate.
COMMON ORDER
The writ petitions are filed for the purpose of seeking exemption
of payment of stamp duty on registration of documents under the provisions
of the Tamil Nadu Registration Act. Stamp duty exemption for registering
the documents before the Sub Registrars in the State of Tamil Nadu.
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2. The facts regarding registration of the petitioners' Society
under the provisions of the Multi State Cooperative Societies Act, 2002, is
not in dispute. All the petitioners Societies have produced Certificate of
Registration, which would reveal that the registration of Societies are done
under the Multi State Cooperative Societies Act, 2002, which is the Central
Act 39 of 2002.
3. The question arises whether exemption from payment of stamp
duty on registration of documents in Sub Registrars Office in the State of
Tamil Nadu can be granted to the Multi State Cooperative Societies
registered under the Multi State Cooperative Societies Act, which is a
Central Act.
4. Let us examine the provisions of the Multi-State Cooperative
Societies Act. Chapter II of the Act, enumerates 'Central Registrar and
Registration of Multi-State Cooperative Societies'. Under Section 7 of the
Act, registrations are to be done and the Registration Certificate is to be
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issued under Section 8 of the Act. Multi-State Cooperative Society to be
body corporate under Section 9 of the Act. The bye-laws are to be approved
by the Central Registrars. The registration and functions of Federal
Cooperatives are also enumerated, direction and management of Multi-State
Cooperative Societies, privileges of Multi-State Cooperative Societies,
properties and funds of Multi-State Cooperative Societies, audit, inquiry,
inspection and surcharge and settlement of disputes, winding up of Multi-
Sate Cooperative Society, execution of decrees, orders and decisions,
appeals and review are provided under the provisions of the Multi-State
Cooperative Societies Act, which is a comprehensive Act. Thus, any Society
registered under the Multi-State Cooperative Societies Act [hereinafter
referred to as the 'Central Act', in short], functioning under the control of the
Central Act. The Central Registrar under the Central Act is competent to
conduct inspection, enquiry, audit etc. The Central Registrar is empowered
to initiate all actions in respect of the affairs of the Multi-State Cooperative
Societies Act under the Central Act. Thus, the Registration of Cooperative
Societies under the Central Act, cannot be compared with the Registration
of Cooperative Societies under the Tamil Nadu Registration of Cooperative
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Societies Act, 1983.
5. The Tamil Nadu Cooperative Societies Act, which is a State
Legislation provides powers and functions of the Registrar of Cooperative
Societies in the State. The State Authorities are empowered to exercise
control over the affairs of the Cooperative Societies. The Constitution of
Cooperative Societies, its registration exercising control over the affairs of
the Cooperative Societies are well enumerated under the Tamil Nadu
Cooperative Societies Act [hereinafter referred to as the 'State Act', in
short]. The State Act provides provisions for the purpose of exercise of
control over the affairs of the Cooperative Societies. However, every
registered Society has got a right to administer its own affairs and only in
certain circumstances, under the provisions of the Act, the State Authority,
Registrar of Cooperative Societies is empowered to interfere with the
administration of registered Societies.
6. More clearly a Cooperative Society registered under the
State Act or the Central Act is an independent entity. Every Cooperative
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Society has got its own bye-laws. It is not necessary that the bye-laws must
be on the same line. Each Cooperative Society has got different purposes
and objects. The Cooperative Society may be registered for the purpose of
grant of jewel loan, banking transactions, agriculture loan, agriculture
activities and each Cooperative Society has got its own object and registered
and functioning for the welfare and upliftment of the members of the
Society. For example, Milk Cooperative Societies are available.
Cooperative Urban Banks, Cooperative House Building Society,
Cooperative Credit Society, House Building Society, Industrial Cooperative
Society, Cooperative Land Development Bank and there are many such
Cooperative Societies which are registered for different purposes by the
members and they are having bye-laws, which all are approved by the
Competent Authorities of the Cooperative Department of the State
Government. Thus, the functioning of the Cooperative Society under the
State Act and Central Act at no circumstances be comparable. Each Society,
being an entity, has got right to administer their Society as per the bye-laws.
The controlling mechanism is provided under the Act only to ensure that the
public money is not misused or misappropriated and dealt with in the
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manner in accordance with law.
7. With reference to the issues raised in this writ petition, the
learned counsel for the petitioner reiterated that the State Government
issued G.O.Ms.No.2179, Cooperation, dated 29.06.1966, granting
exemption from payment of stamp duty under Section 9 of the Indian Stamp
Act, which is the Central Act. The corresponding provisions are also
identifiable under Section 51 of the revised Tamil Nadu Cooperative
Societies Act, 1983. Under Section 51 of the Act, the Government is
empowered to grant exemption from stamp duty and registration fee. Sub-
clauses (a) and (b) specifically enumerate that “the stamp duty not being the
stamp duty referred to in clause (a) of sub-section (2) of section 9 of the
Indian Stamp Act. 1899 (Central Act II of 1899), with which, under any law
for the time being in force, instruments executed by or on behalf of or in
favour of a registered society or by an officer or member and relating to the
business of such society or any class of such instruments or decisions,
awards or orders of the Registrar or arbitrators under this Act are
respectively chargeable and (b) any fee payable under the law of registration
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for the time being in force”.
8. Invoking the power to exempt from stamp duty, the State
Government issued G.O.Ms.No.2179, dated 29.06.1966. Based on the above
Government Order, stamp duty exemptions are granted in respect of the
Cooperative Societies registered under the Tamil Nadu Cooperative
Societies Act, 1983.
9. The petitioners, who all are admittedly the registered
Cooperative Societies under the Multi-State Cooperative Societies Act,
2002, the Central Act is claiming such stamp duty exemptions granted by
the State Authorities by invoking the provisions of the Tamil Nadu
Cooperative Societies Act, 1983.
10. This Court is of the considered opinion that exemption
cannot be granted in violation of the provisions of the Act. Exemptions are
exceptions and can never be applied as a Rule. Thus, strict interpretation of
exemptions and the provisions relating to exemptions are of paramount
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importance.
11. When the power of exemption is exercised by the State
under the provisions of the Tamil Nadu Cooperative Societies Act and such
exemptions are granted to the Cooperative Societies registered under the
provisions of the Tamil Nadu Cooperative Societies Act, there cannot be
any automatic extension of such exemption to the Multi-State Cooperative
Societies, which all are controlled under the Central Act. Such automatic
application of exemption can never be granted even by the Courts.
Exemption clauses required strict interpretation with reference to the
provisions of the Act.
12. The exemption is granted by invoking the powers conferred
under a particular Act and such exemptions are intended for the purpose of
granting benefit to the Societies registered under the Tamil Nadu
Cooperative Societies Act. Thus, benefit of exemptions cannot be granted to
any other Society or Cooperative Societies registered under any other Acts.
For the purpose of getting any such exemption, such Multi-State
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Cooperative Societies have to approach the Central Registrar of the
Government of India under the provisions of the Multi-State Cooperative
Societies Act.
13. It is needless to state that these Multi-State Cooperative
Societies are not functioning under the control of the Registrar of
Cooperative Societies of Tamil Nadu or under the provisions of the Tamil
Nadu Cooperative Societies Act are applicable to the Multi-State
Cooperative Societies. It is pertinent to note that when the provisions of the
Tamil Nadu Cooperative Societies Act, are not applicable to the Multi-State
Cooperative Societies, then the exemption granted under Section 51 of the
Tamil Nadu Cooperative Societies Act, cannot be extended to the Multi-
State Cooperative Societies. When the Multi-State Cooperative Societies,
cannot be subjected to any action under the provisions of the Tamil Nadu
Cooperative Societies Act, then the beneficial provisions also cannot be
extended to such Multi-State Cooperative Societies Act.
14. The learned counsel for the petitioners relied on the
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judgment of the Hon'ble Division Bench of this Court in the case of
Hindustan Multi State Cooperative Housing Society Ltd vs.
Government of Tamil Nadu [2019 SCC OnLine Mad 18682]. The
learned counsel for the petitioners relied on paragraph-8 of the issues.
However, the legal issues raised are not decided by the Hon'ble Division
Bench of this Court. In paragraph-9 of the judgment, the said position is
clarified, which reads as under:-
“9. In our considered view, the writ petition
should be heard on the merits since an important
legal issue has been raised by the appellant in the
writ petition. It is not clearly known as to why the
respondent department has not filled counter
affidavit though the writ petition was pending for
over five years. Hence, we are of the considered
view that the writ petition should be restored to the
file of the learned Single Bench to be heard and
disposed on merits, after the respondents file
counter affidavit. We make it clear that the above
mentioned observations made by us is to
demonstrate that the appellant has made out the
prima facie case to enable them to argue the writ
petition on merits and moreover, when the
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appellant had no opportunity to advance their
submissions since the name of the counsel was not
printed in the cause list. “
Therefore, the said judgment of the Division Bench, cited supra, is of no
avail to the petitioners for the purpose of claiming the benefit of stamp duty
exemption based on the State Government Order passed by invoking the
provisions of the Tamil Nadu Cooperative Societies Act.
15. The learned Government Advocate, appearing on behalf of
the respondents, made a submission that the State has already clarified that
the Multi-State Cooperative Societies registered under the Central Act, are
not falling under the control of the State Authorities under the Tamil Nadu
Cooperative Societies Act and therefore, the benefits conferred under the
Tamil Nadu Cooperative Societies Act, cannot be extended to the Multi
Cooperative Societies.
16. This Court is of the considered opinion that as far as the
Cooperative Societies registered under the Tamil Nadu Cooperative
Societies are concerned, the State Government is implementing various
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Schemes through such Societies registered under the State Act. For
instance, Public Distribution System itself has been implemented through
Cooperative Societies under the Tamil Nadu Cooperative Societies Act.
17. The State Government is granting waiver of loans on
various occasions. The benefits of jewel loan waiver is also granted.
Question would arise whether all such benefits can be extended to the
Multi-State Cooperative Societies also. Therefore, the very proposition
submitted in this regard by the petitioner deserves no merit consideration.
The Multi-State Cooperative Societies registered under the Central Act will
fall under the administrative control of the Central Registrar and there is no
application of State Act in respect of such Cooperative Societies.
18. This being the factum, this Court is of an opinion that the
petitioners are at liberty to approach the Competent Authorities under the
Central Act for the purpose of seeking any such exemptions. As far as the
State Societies are concerned, the State Government invoked the provisions
of the Tamil Nadu Cooperative Societies Act and granted such exemption
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and such an exemption cannot be extended to the Multi-State Cooperative
Societies registered under the Central Act.
19. Exemptions from payment of stamp duty can never be
claimed as a matter of right. Such exemptions are granted as a concession
by the State Government as far as the Societies registered under the Tamil
Nadu Cooperative Societies are concerned. Thus, concession can never be a
right and it is to be granted by passing an order, then alone the same can be
claimed and not otherwise.
20. Even the power to grant exemption under Section 51 of the
Tamil Nadu Cooperative Societies Act, unambiguously states that the
Government may grant exemption. Thus, it is the discretion of the
Government to grant exemption from payment of stamp duty and such
discretion is exercised by the State Government in the present case only in
respect of Cooperative Societies registered under the Tamil Nadu
Cooperative Societies Act. The State Government further clarified that it is
not intended for the Cooperative Societies registered under the Multi-State
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Cooperative Societies Act.
21. This being the factum and the stand of the State
Government, the Central Cooperative Societies registered under the Central
Act, cannot seek such a concession of exemption from payment of stamp
duty based on the State Government Order passed under the provisions of
the Tamil Nadu Cooperative Societies Act.
22. In view of the fact that the provisions of the Tamil Nadu
Cooperative Societies Act, 1983 is not applicable to the Multi State
Cooperative Societies registered under the Central Act, the petitioners are
not entitled to seek exemption from payment of stamp duty under the Indian
Stamp Acts. As far as the Government of Tamil Nadu is concerned, various
schemes are implemented through the Cooperative Societies registered
under the Tamil Nadu Cooperative Societies Act and the Multi State
Cooperative Societies cannot implement all such schemes. Further, every
Cooperative Society is an independent entity registered under the State Act
or Central Act. Thus, the powers for grant of exemption invoked by the
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State of Tamil Nadu under the Tamil Nadu Cooperative Societies Act for
granting exemption to the Cooperative Societies registered under the Tamil
Nadu Cooperative Societies Act. The said benefit cannot be extended at any
circumstances in favour of the Multi State Cooperative Societies registered
under the Central Act.
23. In view of the discussions made in the aforementioned
paragraphs, the petitioner has not established even a semblance of legal
right for the purpose of considering the relief as such sought for in all these
writ petitions. Accordingly, all the writ petitions are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
29-10-2021
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
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WP No.6618 of 2014 etc. batch
To
1.The Secretary to Government,
Government of Tamil Nadu,
Commercial Taxes and Registration Department,
Fort St. George,
Chennai – 600 009.
2.The Inspector General of Registration,
Chepauk,
Chennai – 600 005.
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WP No.6618 of 2014 etc. batch
S.M.SUBRAMANIAM, J.
Svn
WPs 6618, 2169, 923 to 925,
1297, 1908, 25723, 25724,
28271, 28581, 29022 of 2014
and 30009 to 30011 of 2013
29-10-2021
https://www.mhc.tn.gov.in/judis/
