S. Kamala v. Registrar of Co-operative Societies (Housing)
2015-01-30
V.M.VELUMANI
body2015
DigiLaw.ai
JUDGMENT V.M. VELUMANI, J. 1. This Writ Petition has been filed directing the respondents 1 to 4 to execute the order of the second respondent, dated 10.09.2003, passed in Arbitration Petition No. 212 of 1998-1999. 2. The petitioner is a member of the third respondent Society. On 27.07.1991, the third respondent Society allotted a Shop bearing No. S-57, measuring 4200 sq. ft., to the petitioner and the petitioner has paid the entire sale consideration. On receipt of sale consideration, the third respondent executed a sale deed on 15.07.1993 bearing Document No. 1367 of 1993 in favour of the petitioner. 3. In the year 1995, the President of the third respondent Society cancelled the allotments made to the various persons and re-allotted the same to his close relatives. Shop No. S-57 allotted to the petitioner was cancelled and re-allotted to the fifth respondent, who is a name lender of Muthudurai, Chairman of Karaikudi Municipality. The reason for cancellation of allotment of the petitioner was that, she is owning a property and suppressed the same and got the allotment. This is in violation of Rule 36(A)(1) of Bye-laws of the third respondent Society. 4. The petitioner initiated arbitration proceedings before the second respondent herein, challenging the order of cancellation. The second respondent by Award No. 212 of 1998-1999, dated 10.09.2003, set aside the order of cancellation holding that there is no such Bye-law 36(A)(1), as alleged. The fifth respondent filed O.S. No. 121 of 2003 before the District Munsif Court, Karaikudi, against the petitioner and the second respondent. The learned District Munsif, by judgment and decree, dated 01.02.2005, dismissed the suit filed by the fifth respondent. 5. After dismissal of the suit, the fifth respondent filed a Revision before the first respondent in R.C. No. 3219/07/SF1 against the Arbitration Award. According to the petitioner, the said Revision seems to have been dismissed by the first respondent, by his order, dated 22.10.2007. 6. The fifth respondent filed Review before the first respondent in R.C. No. 1133/2008/3F1. The first respondent allowed the said Review, remanding the matter back to the second respondent. Challenging the said order, the petitioner filed W.P. No. 11851 of 2008.
6. The fifth respondent filed Review before the first respondent in R.C. No. 1133/2008/3F1. The first respondent allowed the said Review, remanding the matter back to the second respondent. Challenging the said order, the petitioner filed W.P. No. 11851 of 2008. This Court, by order dated 23.04.2010, allowed the said writ petition setting aside the order of the first respondent holding that the cancellation of sale deed in favour of the petitioner was only with an intention to execute a sale deed in favour of the fifth respondent - Anbuthilagam, who is only the name lender of one Muthudurai, a Chairman of Karaikudi Municipality. 7. After the orders of the respondents 1 and 2 and the orders of this Court, the first respondent by his letters dated 15.03.2006 and 22.09.2011, directed the fourth respondent to remove the encroachment particularly, the unauthorised possession of the fifth respondent. The respondents did not take any action. Hence, the petitioner has filed the present writ petition for the relief stated supra. 8. The third respondent filed counter affidavit for himself and for the respondents 1 and 2 stating that the writ petition is not maintainable. The respondents 1 to 3 cannot remove the encroachments. They have already passed orders directing the fourth respondent to remove the encroachments. Hence, prayed for dismissal of the writ petition. 9. The learned counsel for the fifth respondent contended that the fifth respondent filed a Writ Appeal against the order passed by this Court, dated 23.04.2010, in W.P. No. 11851 of 2008 along with a petition to condone the delay and the same is pending. He also contended that the fifth respondent is not an encroacher, as the Shop had been allotted to her. The writ petition is not maintainable and the petitioner has to file Execution Petition to execute the Arbitration Award as per Section 155 of the Tamil Nadu Co-operative Societies Act and get her grievance redressed. 10. Heard the learned counsel appearing for the parties. 11. Admittedly, the Shop in question was originally allotted to the petitioner. The same was cancelled and re-allotted to the fifth respondent. According to the petitioner, the fifth respondent is only the name lender to one Muthudurai, the then Chairman of Karaikudi Municipality. In the Arbitration Award, the second respondent set aside the cancellation of allotment to the petitioner. The award has been confirmed by the first respondent.
The same was cancelled and re-allotted to the fifth respondent. According to the petitioner, the fifth respondent is only the name lender to one Muthudurai, the then Chairman of Karaikudi Municipality. In the Arbitration Award, the second respondent set aside the cancellation of allotment to the petitioner. The award has been confirmed by the first respondent. The subsequent order of the first respondent in the Review by remanding the matter to the second respondent, was set aside by this Court. Therefore, the petitioner is the owner of Shop No. S57. Even though the fifth respondent has stated that she had filed the writ appeal with a petition to condone the delay, no particulars had been furnished as to whether the delay was condoned; the writ appeal was admitted; any interim order was granted; and the writ appeal was disposed of or not? The writ petition is not against the Co-operative Society. It is filed for implementing the instructions of the first respondent - Registrar of Co-operative Societies. Therefore, the writ petition is maintainable and the petitioner is entitled to the relief sought for. 12. The first respondent by his letters, dated 15.03.2006 and 22.09.2011 addressed to the District Collector and the fourth respondent respectively requesting them to remove the encroachments. The District Collector and the fourth respondent have not taken any steps in this regard. 13. In view of the above fact, the order of cancellation of allotment of the petitioner, is set aside, the petitioner is entitled to possession of Shop No. S-57. 14. For the reasons stated above, the petitioner is entitled to the relief sought for. 15. In the result, the writ petition is allowed. The second respondent is directed to remove encroachments in Shop No. S-57 with the assistance of the fourth respondent and the District Collector, Sivagangai District, as per the order of the first respondent contained in the Letters, dated 15.03.2006 and 22.09.2011, within four weeks from the date of receipt of a copy of this order and handover possession to the petitioner. No costs. Consequently, connected miscellaneous petition is closed.