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Thirumathi P.G. Lalitha Bai Vs. the Spl. Tribunal for Co-operative Cases and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1986)1MLJ243
AppellantThirumathi P.G. Lalitha Bai
RespondentThe Spl. Tribunal for Co-operative Cases and ors.
Cases ReferredP. Joseph Swaminathan v. The Secretary
Excerpt:
.....1979 even without awaiting the reply of the petitioner, the paper publication about the proposed resumption was made and therefore the resumption is bad. 5. the very bye-law 37(b) has come to be followed by this court in the ruling relied on by the tribunal as well as the decision of this court in c. the secretary, the cuddalore co-operative house building society, cuddalore which has chosen to rely on the decision in (1968)1mlj300 .the length of time does not matter at all because the petitioner failed to comply with the basic condition on which the allotment was made irrespective of the reply to the show cause notice dated 19th november, 1979. if the petitioner had not put up construction, the resumption is perfectly valid......with the society undertaking to abide by these conditions. so long as the petitioner is a member of the society, this bye-law, which is a binding agreement between the parties, can be enforced. it should be noted in this case that the very allotment was subject to this condition. therefore it did not matter whether the deed of conveyance by itself contained this clause of stipulation as to the putting up of the construction. if the matter is approached that way, the question of applicability of section 11 of the transfer of property act restraint on enjoyment of the property, cannot arise at all. in other words, the very allotment in favour of the petitioner is because she is a member of the society. in salem fairlands co-operative house building society limited v. r......
Judgment:
ORDER

S. Mohan, J.

1. The writ petition is to quash the orders of the first respondent made in C.M.A.No. 1 of 1983 dated 31st August, 1983.

2. The facts leading to the writ petition are as under. The petitioner is a Member of the third respondent Society (the Cuddalore Co-operative House Building Society Ltd.,) Cuddalore. She was allotted No. 42 in Maraisusai Nagar on 12th October, 1966 pursuant to a decision taken by the committee of the Society as is seen from the orders of the Society dated 22nd January, 1966. The allotment was for a sum of Rs. 1,784. The petitioner was intimated of that allotment and thereafter on 21st December, 1966, the sale deed was executed in favour of the petitioner by the Society. That deed was registered on 22nd December, 1966. One of the conditions of the allotment was that the petitioner should put up a house because under bye-law 37(b) of the Society the petitioner should have applied for the Government loan through the Society within a period of 8 months from the date of the allotment or should have commenced construction of the house, if no such application for loan is made according to the design approved by the Board of Directors within 8 months from the date of the allotment. But the petitioner did neither. Therefore on 19th November, 1979, the Society issued a show cause notice giving 7 days time calling upon the petitioner to state why the plot should not be resumed. There was also a publication in the newspaper 'Daily Thanthi' on 22nd November, 1979 about the proposal to resume. This notice was received on 23rd November, 1979 by the petitioner. On 30th November, 1979, the actual order of resumption was passed. On 13th December, 1979, the reply of the petitioner was furnished. She submitted a further reply on 22nd December, 1979. On 24th January, 1980, the order of resumption was communicated to the petitioner. Aggrieved by that order, she filed an application under Section 73(2) of the Tamil Nadu Co-operative Soceities Act, 1961 before the Deputy Registrar, Housing, Cuddalore. He passed the order, dated 15th March, 1982 in A.R.C.No. 82 of 1979-80 upholding the contention, of the petitioner, but held that the resolution of the Board, dated 30th November, 1970 was liable to be set aside. Aggrieved by the same, the Soceity took up the matter in appeal to the Special Tribunal for Co-operative Cases in C.M.A.No. 1 of 1983. By its order dated 31st August, 1983, the Tribunal allowed the appeal of the Society and held that the order of resumption was right as per by-law 37(b). Thus, the writ petition.

3. Mr. Sampath, learned Counsel for the petitioner urges the following contentions. (1) Whatever might be said at the stage of allotment, after the conveyance has been executed in favour of the petitioner on 21st December, 1976 by means of a registered sale deed, no restraint can be put on the absolute power of enjoyment as a full owner thereof. The Tribunal relied on the ruling of this Court in Salem Fair-lands Co-operative House Building Society Limited v. R. Sugunaleelavathiammal : (1968)1MLJ300 . But that decision has no application to the facts of this case. In that case, there was no conveyance in favour of the allottee. This vital distinction has not been borne in mind by the Tribunal. (2) In the actual conveyance executed in favour of the petitioner, no condition was put that it was subject to the construction to be put up. Nor again the resolution of the Board refers to by-law 37(b), (3) After thirteen long years have passed, the Board is incompetent to resume. Lastly it is urged that the show cause notice having been given on 19th November, 1979 even without awaiting the reply of the petitioner, the paper publication about the proposed resumption was made and therefore the resumption is bad.

4. In opposition to these contentions, the learned Counsel appearing for the Society would urge that the question of restraint on alienation or enjoyment does not arise in this case at all because the bye-laws are contractual in nature. It is by enforcement of bye-law No. 37 (b) that the power of resumption has come to be exercised. There is absolutely nothing wrong in the same, notwithstanding the fact that the conveyance did not stipulate a specific condition as to the putting up of the house.

5. The very bye-law 37(b) has come to be followed by this Court in the ruling relied on by the Tribunal as well as the decision of this Court in C.R.P.No. 1952 of 1974 P.Joseph Swaminathan v. The Secretary, the Cuddalore Co-operative House Building Society, Cuddalore which has chosen to rely on the decision in : (1968)1MLJ300 . The length of time does not matter at all because the petitioner failed to comply with the basic condition on which the allotment was made irrespective of the reply to the show cause notice dated 19th November, 1979. If the petitioner had not put up construction, the resumption is perfectly valid.

6. On a consideration of the above, 1 am of the view that the petitioner has no case at all. Bye-law 37(b) reads as follows:

Of the members who have under bye-law No. 37(A) exercised the option of constructing the houses themselves, those who have been already allotted sites shall apply for a Government Loan through the Society within a period of six months from 31st July, 1966 and those who will be allotted sites shall apply for a loan through the Society within a period of 8 months from the date of allotment. However, if the member does not choose to apply for a Government loan he shall commence the construction of the house according to the designs approved by the Board of Directors within six months from 31st July, 5986 in the case wherein he has been allotted a site already, and 8 months from the date of allotment in the case of future allottees. If the member applies for a loan for commencing construction of houses within six months from 31st July, 1956 in the case of old allottees or within 8 months from the date of allotment in the case of future allottees, it shall be competent to the Board of the Directors to cancel the allotment and to resume the site without any compensation for any improvement made by the member and reallot the plot to another member. The conveyance deed for the plot shall be executed by the Society only after the Government loan on behalf of the member has been sanctioned or the house has been completed with the resources of the member to the satisfaction of the Board and after he has paid the proportionate cost of amenities as decided by the Board of Directors and as the case may be. The members shall enter into an agreement with the society undertaking to abide by these conditions.

So long as the petitioner is a member of the Society, this bye-law, which is a binding agreement between the parties, can be enforced. It should be noted in this case that the very allotment was subject to this condition. Therefore it did not matter whether the deed of conveyance by itself contained this clause of stipulation as to the putting up of the construction. If the matter is approached that way, the question of applicability of Section 11 of the Transfer of Property Act restraint on enjoyment of the property, cannot arise at all. In other words, the very allotment in favour of the petitioner is because she is a member of the Society. In Salem Fairlands Co-operative House Building Society Limited v. R. Sugunaleelavathiammal : (1968)1MLJ300 the validity of this bye-law has come to be upheld as valid. The same view was taken by my learned brother Ramanujam, J. in P. Joseph Swaminathan v. The Secretary, Cuddalore Co-operative House Building Society Cuddalore and Anr. C.R.P. No. 1952 of 1974. Even as on today, no construction has been put up by the petitioner. Therefore the passage of time would not matter at all. Irrespective of the conveyance having been executed if the very allotment was made subject to this bye-law 37(b), the petitioner has no other option but to abide.

7. Lastly it may be stated that no doubt the show cause notice was issued on 19th November, 1979 and the Society could have awaited the reply of the petitioner before causing the publication. But that matters very little in this case because as I observed even as on today, the petitioner has not commenced the construction of the house. So looked at from any point of view, I am unable to see how the impugned order can be interfered with. The writ petition fails and is hereby dismissed. No costs.


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