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CASE NO.: Appeal (civil)  3523 of 1998

PETITIONER: Gayatri  De  

RESPONDENT: Mousumi Cooperative Housing Society Ltd. &  Ors.  

DATE OF JUDGMENT: 16/04/2004

BENCH: S. Rajendra Babu , Dr. AR. Lakshmanan & G.P. Mathur.                             

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

This appeal involves several interesting questions as will appear  from the facts set out hereunder: The appellant herein filed a writ petition before the High Court of  Calcutta praying, inter alia, for cancellation of the letter dated 1.11.1988,  issued by the Special  Officer of the Society, for  declaration that the  possession of the Flat being No. A- 2 on 5th Floor should be given to the  legal heirs of late Sati Prasanna Bhowmick, the deceased member,  upon receipt of all dues in respect of the said apartment by the said  Society and for an interim order of injunction restraining the society and  the Special Officer from alienating transfer of the said apartment No.2 to  anybody other than the legal heirs of the deceased member and for  other reliefs.   The father of the appellant/writ petitioner \026 Sati Prasanna  Bhowmick \026has died intestate  in August, 1985 leaving being him the  following legal heirs : a)   Smt. Gayatri De            -      Married  daughter         b)   Smt. Atri Das             -              -do- c)    Smt.Maitry Roy         -             -do- d)    Smt. Anita Sarkar     -             -do- d)   Sri Subrata Bhowmick  -         son e)    Smt.Mita Das            -      Married daughter  

The said legal heirs, namely, the four daughters and the son have   separately, by letters, given their consent  thereby authorising the  appellant to take possession of the  flat being No.A-2 from the  respondent-Society.  The appellant has been authorised by all the legal  heirs of late Sati Prasanna Bhowmick to take possession of the flat  stands in the name of their deceased father. The appellant’s father, owner of rent free land at 15 B Ballygunge,  Calcutta-700 019, entered into an agreement on 18.10.1977 for sale of  the land in question on which the said Society desired to make the  apartment.  On 27.10.1980, an indenture was entered into between the  father  of the appellant and the Housing Society.  The total price was  Rs.13,90,069.28 against which the earnest money amounting to  Rs.7,30,000/- was paid towards part payment of the price.  Clauses 10  and 12 of the agreement of 1977 runs as follows: "Page B" It is worth mentioning, in this connection, that Priti was the name of  the pre-deceased wife of the said Sati Prasanna Bhowmick and the late  mother of the appellant herein.  By letter dated 29.11.1982, the Society  intimated  the father of the appellant that they  had favourably  considered the application and accepted the membership under the  terms and conditions contained in the said letter.  The father of the  appellant had been informed by the said letter that the Society had

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allotted him a three bed rooms flat on facing flat No. A-2 having covered  area of 1268 sq.ft. approximately (including common area) on 5th floor in  the project of the society.  The estimated cost of the flat was mentioned  at Rs.2,53,600/- @ Rs.200/- per sq.ft. inclusive of proportionate land  value.   Clause 13 of the said letter runs as follows: "Page D" On 13.10.1980, the Society issued two share certificates bearing  Nos. 51 and 52 in favour of Sati Prasanna Bhowmick, since deceased   and a flat being No.A-2 on the 5th floor at the said multi storied building  had been allotted to him under their letter dated 29.11.1982.  The  Secretary of the  society made demands of  payments for the flat in  question and the other flats allotted to other members.  Series of  correspondences went on and the father of the appellant took time to  clear all the dues.  Some trouble arose which hampered the progress of   the  said society and other litigations were cropped up. One Mr.Arun  Prakash Sarkar, an advocate of the High Court at Calcutta, had been  appointed as a Special Officer.  The Special Officer intimated this under  his signature that the High Court had authorised him to take immediate  steps to have the construction work continued and also to give liberty to  him to consider the question of allotment of applications etc,   The father  of the appellant, since deceased, who was an aged ailing octogenarian  became ill and could not take any further steps regarding his own flat  namely, A-2/5 which had been allotted  to him as already mentioned  hereinabove.  It is worth mentioning, in this connection, that since after  the early part of 1983, there was neither any demand for money nor of  any communication regarding his liability in respect of the said flat from  the end of the said Society during the life time of Sati Prasanna  Bhowmick.   By  letter dated 6.12.1986, Dr. Subrata Bhowmick, son of Sati  Prasanna Bhowmick, since deceased, the erstwhile allotee in respect of  flat No. A-2/5 wrote a letter to the Special Officer of the Society  intimating him about the demise of his father and mentioning therein that  they had since found that their father did not leave any nominee for the  flat mentioned above.  It was also mentioned therein that they were  taking such action under the West Bengal Cooperative Societies Act,  1983 (hereinafter referred to as "the Act")  and the laws to get their  father’s interest transferred to one out of all brothers and sisters and as  some of them were outside Calcutta and even outside India and it was  likely to take time.   No reply was sent by the Society to the letter dated  18.12.1986.  The Special Officer, for the first time, on 1.11.1988 wrote a  letter to Dr. Subrata Bhowmick that in accordance with the Act, the  Rules made thereunder   and the bye-laws of the Society, a claim for  transfer of interest is required to be made within a stipulated time and as  no claim for transfer of the interest of their late father has been made in  time, the flat in question has already been re-allotted and the Society will  make payment of the amounts made after deduction in accordance with  law. The appellant filed a writ petition in the High Court of  Calcutta  for  a mandamus commanding respondents 2 and 3 to withdraw, cancel and  not to give effect to the purported letter dated 1.4.1988 issued by the  Special Officer of the Society and to forbear from acting on the basis  thereof and pursuant thereto.  Other consequential reliefs/prayers were  also made. The writ petition was resisted by the Special Officer of the Society  submitting therein that the said writ petition was not maintainable in law  and sustainable on facts and should be rejected in limine.  The appellant  filed an affidavit in reply denying and disputing the correctness of the  statements, contentions and submissions made in the affidavit-in- opposition.  It was specifically stated that the Special Officer having  been appointed by the High Court and the decision and action of the  Special Officer could not be assailed in any Court subordinate to the  High Court and as such the High Court was moved against the wrongful  and illegal action of the Special Officer.  In spite of availing the remedy  of reference of the dispute to the Registrar under the Act, which

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according to the appellant, was no bar to the maintainability of the writ  application, it was asserted that the appellant  was ready and willing to  pay the balanced amount in respect of the said flat and also prepared to  comply with all the formalities in respect of the said flat. The writ  application was heard  and disposed of on 2.7.1992 by a learned single  Judge.  The ordering portion of the said judgment is reproduced  hereinbelow: "page N & O"

Against the aforesaid judgment and order, the Society  preferred  an appeal before the Division Bench.  The Division Bench allowed the   appeal filed by the Society and dismissed the writ petition filed by the  appellant.  It reads thus: "(a) Since the entire amount has not been paid, no right, title and  interest had passed in favour of the father of the appellant \026 Sati  Prasanna Bhowmick ; (b) The provisions of the Act and the Rules made  thereunder leave no manner of doubt that the appellant does not have  any right to allotment of a flat nor the heirs of the deceased could claim  title in relation to the flat in question in violation of the provisions of   Chapter IX of the said Act ; (c) The heirs nominated after the expiry of  the stipulated period could not derive any right contrary to or  inconsistent with the provisions of the Act.  The writ petition was not  maintainable for non-impleading the necessary party and no writ will lie  against the respondent-Society.     Being aggrieved by and dissatisfied with the judgment of the  Division Bench, the appellant filed this appeal  by way of special leave  petition.    We heard Shri V.R. Reddy & Shri Tapas Ray, learned senior  counsel, appearing for the appellant and Shri S.B. Sanyal, learned  senior counsel assisted by Shri Somnath Mukherjee, learned counsel,  appearing for the respondents.      Shri V.R. Reddy took us through the pleadings, affidavits filed  before the High Court as well as before this Court and the annexures.   He made the following submissions: He submitted that in the event  of death of a member, the legal  heirs of such deceased member are entitled to inherit and give allotment  of the apartment which the deceased member was entitled to.  In the  instant case, the deceased member died leaving no more nominating  any person to inherit the apartment.  According to Shri V.R. Reddy, in  the event of the deceased member dies leaving no more nominating any  person to inherit the apartment, the interest of the deceased member  could be inherited by all the legal heirs  or by one of the legal heirs in the  event other legal heirs give their rights in favour of such single legal heir.   He submitted that the Cooperative Society is not competent to re-allot a  valid allotment in favour of the deceased member even when all  financial obligations are complied with, ignoring the rights of legal heirs  of such deceased member.  He invited our attention to Sections 79, 80,  82, 85, 87 and the corresponding Rules. Shri V.R. Reddy further submitted that the writ petition was  maintainable since the order impugned was passed by the Special  Officer, appointed under the provisions of the Act and as such he is a  statutory officer and, therefore, he should be regarded as a public  authority and, therefore, the writ petition filed by the appellant is  maintainable in law.   Shri V.R. Reddy also submitted that the right and interest of the  legal heirs of the deceased member could not be denied in the event of  time taken in nominating, particular legal heirs for the same could not be  done within three months from the date of the death of the member  because of certain unavoidable circumstances as the legal heirs were  not available immediately in giving their consent and giving up their  rights in favour of the single legal heir in whose favour the property  desired by all the legal heirs to be transferred.  More so,  when the  Cooperative Society was intimated well in advance seeking extension of  time in providing particular name in whose favour the property the legal  heirs desired to be transferred.  Shri V.R. Reddy contended that the

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valid membership in favour of deceased member could not be cancelled  only because the  name of the nominee in whose favour of the property  was to be transferred had taken some time for selecting such nominee  by all the legal heirs. Countering the arguments, Shri S.B. Sanyal, learned senior  counsel appearing for the respondents, submitted as under: (a)     the judgment and order impugned in this appeal is  unexceptionable; (b)      the father of the appellant paid only Rs.one lakh against  the title cost of the flat of Rs.2.60 lakhs despite several  reminders during his life time and as such, acquired no  right, title or interest in his allotted flat No. A-2/5 under  Section 87 of the Act and under Rule 153 of the Rules  framed thereunder; (c)     The present appellant cannot claim any such title or  interest over the same by way of inheritance.  The  modality for such devolution by inheritances are  stipulated under Section 80(1)(a),(b) & (c) of the Act.   The appellant having failed to comply with such  formalities of the claim, automatic entitlement to the  right, title and interest in the flat was no longer available  to the appellant.                           As per the directions of this Court dated 13.4.1998, the  nomination register along with the zerox copy thereof  was  submitted.  The said register is a statutory register under Section  79 of the Act and Rule 127 of the Rules and is conclusive  evidence that late Sati Prasanna Bhowmick did not appoint any  nominee in respect of his flat.   The writ petition filed by the appellant is not maintainable as  the respondent-Society is not a State  or even the instrumentality  of the State within the meaning of Article 12 of the Constitution of  India.  According to Shri S.B. Sanyal, the Society is an  autonomous body, duly governed by an elected Board under the  provisions of the Act and the bye-laws of the Society and the  Society is not recipient of any State assistance in the form of  shares, subsidy loans, working capital etc. and there there is no  State control or State nominee or Government Officers on  deputation to the service of the Society.  Therefore, he would  submit that since the Society is governed by the Act, Rules and  bye-laws devoid of any elements of public law warranting remedy  in the form of mandamus, the writ petition is not maintainable. The appellant forfeited her right to the shares and interest of  late Sati Prasanna Bhowmick because of her negligence to prefer  the claim with probate, letter of administration or succession  certificate before the Board within the period of 90 days as  stipulated in Section 90(1)(b) and (c) of the Act.  The appellant has  also discharged her onus for preferring he claim within the  stipulated period.  It was submitted that sub-Section (3) of Section  85 of the Act being a special statute would govern the relationship  of the parties and thus the question of his heirs and successors  being automatically entitled thereto does not arise and the  membership which was heritable could be claimed in the manner  laid down under the Act and Rules framed thereunder. The appellant being allottee of Flat No.4-A/2 in the same  building is not entitled to a second flat being No.5-A/2 under  Section 85(3) of the Act and Rule 135 (2) of the Rules. The third party allottee was not made a party to the writ  petition.                 Concluding his arguments, Shri S.B. Sanyal submitted that  the appellant is a stranger so far as Flat No.5-A/2 is concerned.   She is neither the nominee of late Sati Prasanna Bhowmick nor  the one claiming right, title and interest of late Sati Prasanna  Bhowmick under Section 80 (1)(b) and (c) of the Act within 90  days of his demise to the satisfaction  of the Board and thus

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forfeited her right to succession to the subject flat under Section  72 and Section 87(2) of the Act and Rule 153 of the Rules.            Shri S.B. Sanyal further submitted that even though the  appellant is not entitled to any right, shares and interest of late Sati  Prasanna Bhowmick, the respondent-Society is ready and willing  to refund the amount to the appellant.   

          We have given our thoughtful consideration to the  arguments advanced by the learned senior counsel appearing on  either side with reference to the pleadings, records, annexures  and the case laws.      

         Before we proceed to deal with the issues in question, it is  beneficial to consider the relevant provisions of the Act and the Rules  made thereunder. Sections 2(28), 2(32), 79, \005..(pages 6-11) We shall now deal with the question whether the right of  ownership of a flat in multi-storied building under the Act is ineritable and  transferable.  The other  question as to whether in the event of the  deceased member dies leaving no more nominee any person to inherit  the apartment interest of the deceased member for such apartment  should be inherited by all the legal heirs or by one of the legal heirs in  the event other legal heirs give their rights in favour of  such single legal  heir may also arise. Section 87 of the Act deals  member’s right of ownership and sub- Section(3) of the said Section makes it abundantly clear that a plot of  land or a house or an apartment in a multi-storied building shall  constitute a heritable and transferable immovable property within the  meaning of any law for the time being in force provided that  notwithstanding anything contained in any other law for the time being in  force such heritable and transferable immovable property shall not be  partitioned or sub-divided for any purpose whatsoever.   In terms of the Act and the Rules, the heirs of a deceased person  are, therefore, entitled to inherit  the  flat allotted to the deceased as in  the instant case.  Admittedly, the flat in question was allotted to the  father of the appellant who died thereafter and  as a consequence  thereof, the heirs of the said deceased became and would be entitled to  the estate and as a result thereof to the said flat with proportionate  interest in the land.   Section 80 of the Act deals with disposal of the deceased  member’s share or interest and clause (b) of  sub-Section(1) speaks that  if there is no nominee or if the existence or residence of the nominee  cannot be ascertained by the Board or if, for any other cause the  transfer cannot be made without unreasonable delay to the person who  appears to the Board to be entitled in accordance with the Rules,  possession of such shares or interest as part of the estate of the  deceased members; or sub-Section (c) on the application of the person  referred to in clause (b) within three months from the date of death of  member to such person as may be specified in the application which  clearly indicates that while disposing of deceased member’s share or  interest the preferential claim always goes to the heirs and legal  representatives of the deceased member in absence of  any nominee.   Section 82(b) of the Act is very specific that notwithstanding  anything contained elsewhere in this Act or any other law for the time  being in force when the membership of a member by a cooperative  society referred to in clause (a) terminates by reason of death or any  other cause his possession of, or interest in, in land held by him under  Cooperative Society shall vest in his heirs or in the person, if any,  nominated by him under Section 79, if such heir is willing to be admitted  as a member of the Society. Section 80(c) of the Act makes it clear that on the death of the  member of the Society, his share or interest in the Society shall be  transferred on the application of the person referred to in clause (b)  within three months from the date of the death of the member of such  person as may be specified in the application.  Therefore, transfer of

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shares or interest can be made only by a Society and not by the legal  heirs because if it is read by a Cooperative Society after the word  "transfer"  then the meaning and application becomes clear which  means it is an obligation of the Society to transfer the share or interest of  the deceased member within the stipulated period referred to in  Section  80 of the Act.   While disposing of the appeal, the learned Judges of the Division  Bench of the High Court gave much stress on sub-Section (3) if Section  85 of the Act as also Rule 135 of the Rules taking the present case to be  a case for admission of membership which is not in the instant case.  In  the present case, the question of admission of membership becomes  absolutely  immaterial, the real question, however, is of transfer of  devolution of interest of a deceased member.  The appellant being one  of the heirs of the deceased member was and still is entitled to succeed  to the estate of the deceased member as per the mandatory provisions  of the statutes and that being so the right, title and interest of the  deceased member in the apartment of the Society devolves upon his  heirs and in that background , Section 85(3) and Rule 135(5) neither  have nor can have any application in the instant case because there  cannot be any manner of doubt that on the death of a member of a  Society his share or interest in the Society shall, in the absence of a  nominee, be transferred to a person who appear to the Board to be  entitled to in accordance with Rules, possession of such interest as part  of the estate of the deceased  member and herein in the instant case the  son who himself is admittedly not a member of the Society in question or  any other Housing Society became entitled to be considered for such  allotment immediately he gave notice to the appropriate authority which  too long before the alleged re-allotment was said to have been made, In our opinion, the order passed by the Special Officer re-allot the  flat to a stranger even after he had received letter regarding transfer of  ownership in favour of legal heirs in December, 1986, long before such  alleged re-allotment, claimed to have been made in April, 1988, that is,  more than 16 months from the receipt thereof when giving any  opportunity of being heard and without deciding the question as to who  was entitled to the said flat in accordance with law.  The said action of  the Special Officer who is a statutory functionary  was not only  improper  but also illegal, arbitrary and motivated. In fact, the respondent-Society has informed that the allotment in  favour of the deceased allottee stood cancelled because of no  appropriate person could be named as legal heir of the allottee in whose    in whose favour respondent-Society was to make the allotment and as  such the Society has been threatening of re-alloting the earmarked flat  for the deceased allottee to a stranger ignoring the rights of the legal  heirs.   It is now brought to our notice that the flat has not  been  allotted  to a third party and remains vacant.  The allotment letter of membership  of the flat to the father of the appellant (Annexure P-4) dated 29.11.1982  clearly stipulates  that the right and the interest in the Society of the  member will be governed by the provisions of the Act,  the Rules made  thereunder and the bye-laws of the Society and that the members will  also be liable to be discharged  his obligations as the member of the  Society in accordance with the abovementioned Act, Rules and the bye- laws.   It was then argued by Shri S.B. Sanyal that the appellant being  allottee of Flat No. 4-A/2 in the same building is not entitled to a second  flat being No. 5-A/2 under Section 85(3) of the Act and Rule 135 of the  Rules.  This argument cannot be countered with reference to the letter  dated 6.12.1986, the letter written by Dr. Subrata Bhowmick to the  Special Officer of the Society.  The said letter reads thus: Page 57

The letter is self explanatory. Dr. Subrata Bhowmick, son of late Sati Prasanna Bhowmick  brought to the notice of the Society about the death of his father in  August, 1985 and also by intimating the Society that since their did not

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leave any nominee, they are taking such action under the Act and laws  to get  their father’s interest transferred to one of us-brothers or sisters.   This letter has not been noticed by the Division Division Bench.         Therefore, the argument of  Shri S.B. Sanyal has no force at all. Now, we come to the maintainability of the writ petition.  We have  already elaborately extracted the arguments advanced by both the  senior counsel on the question of maintainability of the writ petition and  hence, we are not repeating the same again.            In the instant case, the Division Bench authorised Mr. Arun P.  Sircase, an advocate,  to act as Special  Officer and to take immediate  steps to have the construction work continued and while taking steps to  try and negotiate with M/s Mukhje and Associates to have the work done  through them.  In discharge of his statutory function, the Special Officer  of the Society issued letter dated 6.4.1985 (annexure P-7) to all the  members to clear their dues in respect of the flat allotted to them as  soon as possible.  The very same Special Officer, exercising his  statutory function, issued a letter dated 1.11.1988 (Annexure P-10_ to  the father of the appellant herein that since no  claim for transfer of the  interest of late Sati Prasanna Bhowmick has been made in time by the  legal heirs, the flat in question has  already been re-allotted and since no  claim for payment of the value of the share or interest has been made by  any person entitled in law to receive the payment lying in the deceased  member’s account after deduction of the amount, if any, payable to the  Society.  The Society will make payment in accordance with law.         The appellant herein filed a writ petition in question in the nature of  mandamus commanding the respondent therein not to give effect to the  letter dated 1.11.1988 issued by the Special Officer of the Society and to  forbear from acting on the basis thereof and pursuant thereto.  Thus it is  seen that the subject matter of the writ petition is the order passed by  the Special Officer in discharging of his statutory functions, the writ  petition is maintainable in law.  The Special Officer is appointed under  the provisions of the Act and as such he is a statutory Officer and,  therefore, he should be regarded as a public authority.  Apart from that  Art. 226 of the Constitution is not confined to issue of writ only to a  public authority, the bar extends also to issue directions to any person.   In our opinion, in a case where the Cooperative Society is under the  control of a Special Officer, a writ would lie.