M. NAGARAJAN AND ANR. Vs. THE TIRUCHIRAPPALLI CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LIMITED BY ITS SECRETARY AND ANR.

JUDGEMENT

(1.) In each of these petitions a common question arises. It is agreed that the facts in Writ Petition No. 2999 of 1972, may be perused for an appreciation of the facts in the other petition. The petitioner is one of the Board of Directors as well as a member of the Tiruchirappalli Cooperative House Construction Society, Tiruchy. It is not in dispute that the writ petitioner, in both the writ petitions, was a Director of the Society and, but for the challenged order, would continue in such capacity till September, 1973. The petitioner in Writ Petition No. 2999 of 1972 borrowed a sum of Rs. 5,835 -06 p. and the petitioner in W.P. No. 3002 of 1972 borrowed Rs. 8,000 for constructing a house in the Colony of the Society and, under the terms and by -laws governing the Society as also under the conditions under which the loans were secured, the petitioners were expected to pay the debts in instalments. He paid such instalments ever since the date of the borrowing and the last of such payments made by the writ petitioner in W.P. No. 2999 of 1972 was on 6th April, 1972 and by the other writ petitioner, on 26th May, 1972. When these amounts were received, it was recorded in what is known as the passbook that there was no amount due by way of principal and in one case (in the records concerning W.P. No. 2999 of 1972) it was also endorsed that the hire -purchase dues have been cleared. Fortified with such a remark in the pass -book that there were no arrears, the petitioners were under the impression that nothing more was due and payable towards the debts borrowed by them. It appears that on 29th September, 1972 the Secretary of the Society is said to have demanded from the first writ petitioner a sum of Re. 0.39 p. and from the other Rs. 7.77 p., and stated therein that if the amount is not paid within seven days from the receipt of that notice, appropriate action would be taken against them in accordance with law. The case of the petitioners is that they did not receive this notice, dated 29th September, 1972 said to have been sent by the Secretary under Certificate of Posting. The petitioners, therefore, claimed ignorance of any such paltry amount payable by them to the Society towards their debts which, in the circumstances already stated, prompted them to believe that there were no more arrears payable by them to the Society. As a matter of fact, in W.P. No. 2999 of 1972, the further fact appears that the Board of Directors met on 15th June, 1972 and resolved to release the hypotheca from the burdens of the mortgage, as apparently, the Board was satisfied that the mortgage was cleared by payment of the mortgage debt. This is only incidental, but an important additional factor which appears from the record. After all this, on 19th October, 1972 the Secretary of the Society passed the challenged order removing the petitioner from the office of the member of the Committee of the Society under Sec. 28(1)(b)(i) of the Tamil Nadu Co -operative Societies Act, read with by -law 21 (2) (F) of the By -laws of the Society. It is as against this order, the present writ petitions have been filed.

(2.) The Society, in its counter, states that as the petitioner in each of these petitions has availed himself of the alternative remedy of an appeal to the second respondent which is available under the provisions of the Act, no Rule under Article 226 of the Constitution of India should issue. It is also stated that as the petitioner in each case was notified of the default and he did not remedy the same within the time granted, he should be deemed to be a defaulter and the action, taken by the Secretary is therefore sought to be sustained.

(3.) The first question that arises is whether the Secretary of this Co -operative Society can at all remove a member of the Board of Directors. Prima facie it appears that the order of removal passed by the Secretary of the Society is unsustainable as, under By -law 29 of the Society, removal of the Members of the Board of Directors other than nominated Directors is a subject which has to be dealt with by the general body of the Society as the ultimate authority in all matters relating to the administration of the Society. That has not been done in this case. Therefore, the order resulting in the removal of the petitioner from the board of management of the committee as it is now called, is one which is repugnant and runs contrary to the express provisions in the by -laws, viz., By -law. 29.