C. Anantharaman v. Registrar of Cooperative Societies (Housing)
2012-06-05
K.CHANDRU
body2012
DigiLaw.ai
Judgment :- 1. This writ petition was filed by the petitioner challenging an order of the second respondent, i.e., Regional Deputy Registrar (Housing), dated 18.10.2007 and confirmed by the order of the first respondent, dated 31.1.2008. 2. The writ petition was admitted on 28.2.2008. Pending the writ petition, an interim stay was granted after observing that the petitioner was in possession and though the sale certificate was issued as early as 1993, it was sought to be cancelled only in the year 2007. Further, it was recorded that the petitioner will not part with his title and interest in the property pending disposal of the writ petition. The interim stay granted for four weeks was extended until further orders by a further order dated 19.12.2008. 3. On notice from this court, the second respondent has filed a counter affidavit, dated Nil (April, 2008). The fifth respondent has also filed a counter affidavit, dated Nil (April, 2008). 4. It was the stand of the fifth respondent that the landed properties originally belonged to one Muthusamy. The fifth respondent had purchased the same for a valuable consideration. He had obtained housing loan from the third and fourth respondents in Loan No.19/84. The loan was sanctioned in the year 1980. A sum of Rs.3877/- was paid upto 1984. But due to unavoidable circumstances, further amounts could not be paid. Because of the non payment, the third and fourth respondents had brought the house for sale in an auction on 23.05.1985. The writ petitioner became the successful bidder in the auction. He had purchased the property for the value of Rs.36,025/- and paid Rs.5000/- immediately after auction towards the sale consideration. The balance amount was paid in 11 installments. The last installment was paid on 17.11.1990. It was only after the issuance of no objection certificate on 26.11.1991, the fifth respondent came to know that auction rules and procedures were not followed. Under Rule 67(iii) of the Tamil Nadu Cooperative Societies Rules, 15% of the amount should have been paid at the time of auction and the balance amount should be paid within 15 days from the date of the auction. Whereas the petitioner was given time upto 5 years to pay the amount in installments contrary to rules.
Under Rule 67(iii) of the Tamil Nadu Cooperative Societies Rules, 15% of the amount should have been paid at the time of auction and the balance amount should be paid within 15 days from the date of the auction. Whereas the petitioner was given time upto 5 years to pay the amount in installments contrary to rules. Therefore, the fifth respondent had issued a legal notice on 10.11.1990 and had raised an objection regarding the sale made in favour of the petitioner and asked for re-auction. It was only after the legal notice was issued, the last installment was paid by the writ petitioner. He has got no right to claim the sale certificate. 5. It was stated that initially, the house was occupied by the writ petitioner as a tenant. Taking advantage of the occupation, the petitioner had attempted to get the confirmation certificate by way of filing O.P.No.4/1992 before the District Consumer Redressal Forum without making the fifth respondent as a party. The District Forum had issued a direction to the society to grant the sale certificate in favour of the writ petitioner. The fifth respondent had preferred an appeal before the State Commission being A.P.No.97 of 1993. It was held that the auction was not held in terms of the provisions of the Cooperative Societies Act. It had directed the respondents to re-pay the installments with interest and that the initial amount of Rs.5000/- was to be forfeited to the Government. The writ petitioner had preferred a revision before the National Commission being Revision Petition No.459 of 1993. The National Commission also confirmed the order of the State Commission. The petitioner being in possession of the property as a tenant, filed a civil suit in O.S.No.749 of 1993 and O.S.No.1441 of 1996 on the file of the Principal District Munsif, Tiruchirappalli. Both suits were dismissed for default. It is under these circumstances after sending legal notice dated 9.3.2007 for recovery of possession, he had made a complaint to the Deputy Registrar on 18.10.2007. The Deputy Registrar by the impugned proceedings had rejected the request of the writ petitioner and ordered for re-sale of the property. The petitioner had preferred a revision before the first respondent. The first respondent also dismissed the revision and confirmed the order of the Deputy Registrar. 6.
The Deputy Registrar by the impugned proceedings had rejected the request of the writ petitioner and ordered for re-sale of the property. The petitioner had preferred a revision before the first respondent. The first respondent also dismissed the revision and confirmed the order of the Deputy Registrar. 6. It is an admitted case of the parties that the State Consumer Disputes Redressal Commission had allowed the appeal filed by the fifth respondent. In paragraph 6, the State forum had ordered as follows: “6......Evidently, the complainant has failed to pay the balance within 15 days and the result is that the sale has become void and the complainant, auction purchaser has forfeited all right to the property. The contention of the complainant is that he was paying in installments during the period of 5 years on the oral instructions of the 3rd opposite party is unacceptable. The Statutory Rules do not provide for such an extension of time. What is surprising is that the authorities of the Cooperative Department and Housing Society have failed to take immediate action to bring the property again to sale. But their default cannot confer any right on the auction-purchaser to claim the sale certificate when he has defaulted to pay the sale amount in accordance with the Statutory Rules. The 4th opposite party who is the owner is entitled to claim that the property must be resold because of the default committed by the Auction Purchaser. The District Forum has not considered this legal aspects of the matter and has erred in directing the opposite party No.3 to issue a sale certificate on the complainant paying the balance of the amount due from the 4th opposite party. No such order can be passed under the provisions of the Consumer Protection Act.” 7. As rightly contended by the fifth respondent, the revision to the National Commission was also rejected allowing the petitioner to prefer any other remedies that are open to him under law. However, the findings of the State Forum that it was an illegal transaction was not set aside by any court. The sale certificate in favour of the petitioner was cancelled. 8. The Supreme Court vide its judgment in Secretary, Thirumurugan Coop.
However, the findings of the State Forum that it was an illegal transaction was not set aside by any court. The sale certificate in favour of the petitioner was cancelled. 8. The Supreme Court vide its judgment in Secretary, Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha reported in (2004) 1 SCC 305 had held that Section 90 of the Tamil Nadu Cooperative Societies Act does not oust the jurisdiction of the Consumer Forum to adjudicate the disputes between the members and the cooperative societies. In paragraphs 12,18 and 19, the Supreme Court had observed as follows : “12.As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. 18. The decision in Dhulabhai case1 also does not help the appellant. The present case is not one where the question to be considered is as to the exclusion of jurisdiction of the civil court in view of the provisions of Section 90 read with Section 156 of the Act. Provisions of the 1986 Act, as already made clear above, apply in addition to the other provisions available under other enactments. It follows that the remedies available under the 1986 Act for redressal of disputes are in addition to the available remedies under the Act. Under the 1986 Act we have to consider as regards the additional jurisdiction conferred on the forums and not their exclusion. In Dhulabhai case1 consideration was whether the jurisdiction of the civil court was excluded. Propositions (1) and (2) indicate that where the statute gives a finality to the orders of the Special Tribunals, the jurisdiction of civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit.
Propositions (1) and (2) indicate that where the statute gives a finality to the orders of the Special Tribunals, the jurisdiction of civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Further, where there is an express bar on the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance, in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering etc. which possibly could not be given under the Act in relation to dispute under Section 90 of the Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above. When the decision of Dhulabhai case1 was rendered, the provisions similar to the 1986 Act providing additional remedies to parties were neither available nor considered. If the argument of the learned counsel for the appellant is accepted, it leads to taking away the additional remedies and forums expressly provided under the 1986 Act, which is not acceptable. 19. The question of conflict of decisions may not arise. If the parties approach both the forums created under the Act and the 1986 Act, as indicated in the case of Fair Air Engineers (P) Ltd.3 it is for the forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other forums, depending on the facts and circumstances of the case.” 9. Therefore, in the present case, the petitioner had not only lost before the State Consumer Forum which order was confirmed by the National Commission, but also availed the remedy under the provisions of the Cooperative Societies Act. The findings of both forums stare at the face of the petitioner.
Therefore, in the present case, the petitioner had not only lost before the State Consumer Forum which order was confirmed by the National Commission, but also availed the remedy under the provisions of the Cooperative Societies Act. The findings of both forums stare at the face of the petitioner. This court do not find any case is made out to interfere with the impugned orders. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petition stands closed.