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CASE NO.: Appeal (civil)  1766 of 2002

PETITIONER: Supriyo Basu and Ors.                                    

RESPONDENT: West Bengal Housing Board and Ors.                       

DATE OF JUDGMENT: 05/08/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Appellants call in question correctness of the judgment  rendered by a Division Bench of the Calcutta High Court  holding that the writ petition filed by them is not  maintainable. Accordingly, it set aside judgment of learned  Single Judge who had entertained the writ petition and given  some directions.

       The dispute related to the allotment of 156 car parking  spaces. The appellants who are occupying B Type flats took  the stand that the car parking spaces were to be allotted  only to them and not to A type flat owners. Questioning the  legality of a letter purportedly issued by the Housing  Commissioner dated 6th June, 1995 giving certain  clarifications about entitlement of A type flat owners a  writ petition was filed with a prayer that the letter was  without any authority and even if any action has been taken  by the respondents-West Bengal Housing Board (hereinafter  referred to as the ’Board’) and/or Samdrita Co-operative  Housing Society Ltd (in short the ’Society’) in selling the  parking spaces or any issue connected thereto, it was  inoperative and invalid. Learned Single Judge accepted the  plea overruling the contention raised by the Board/Society  and A type flat owners who were parties in the proceedings  about maintainability of the writ petition and gave certain  directions.

       The order of the learned Single Judge was questioned in  Letters Patent Appeal before the Division Bench which by the  impugned order held that writ petition would not lie against  a society and the writ petition was therefore clearly not  maintainable as no statutory action has been assailed.  

       The only question which arose for consideration was  whether the covered car parking spaces could be sold to both  allottees of A and B type units or to B type unit only. A  notice dated 21.5.1995 was issued by the Society proposing  to consider and discuss the matter at its Annual General  Body Meeting. Members of the Society in question comprised  of both type of allottees i.e.  A and B type units. The  prayer in the writ petition was to declare that the proposed  meeting was convened without any authority.  

       The High Court by the impugned judgment held that a  mandamus would lie only if the duty imposed on the  respondent-Society is of public nature and the writ of

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mandamus could be issued for enforcing compliance with such  public duty. Two exceptions as noted by the High Court were:  (i) if the rights are purely of a private character and (ii)  if the body against which a mandamus is to be issued is  purely a private body with no public duty. It was noted by  the High Court that the rights claimed by the writ  petitioners are purely of private character and the Society  is a private body with no public duty, and a writ Court  would not embark upon enquiry into disputed questions of  title.  Accordingly, the writ petition was held to be not  maintainable. It was noted that the question whether the  letter of the Housing Commissioner was an administrative  decision or not was not required to be adjudicated as the  writ petition was not maintainable and since he had not  adjudicated any dispute before him.   

       In support of the appeal, learned counsel for the  appellants submitted that the High Court has taken a very  technical view without realizing that the rights which the  writ petitioners wanted to enforce are relatable to a scheme  framed by the Board and, therefore, non- observance of the  provisions of the scheme amounted to breach of public duty.

       According to learned counsel for the respondents the  High Court has rightly held that the writ petition was not  maintainable and that there was not even semblance of   public duty.   

       The rival stands need consideration on the core issue  of maintainability of the writ petition, though several  other issues were raised by learned counsel for the  appellants. It is undisputed that the respondent-Society is  a co-operative society constituted on agreement between  members thereof who had agreed to abide by the provisions of  the West Bengal Co-operative Societies Act, 1983, the Rules  framed thereunder or the bye-laws framed by the Society. The  Society is undisputedly not a department of the State and is  also not a creature of a statute but merely governed by a  statute. Only if it is established that the mandatory  provision of a Statute has been violated, a writ petition  could be maintainable.  Before a party can complain of an  infringement of his fundamental right to hold property, he  must establish that he has title to that property and if his  title itself is in dispute and is the subject matter of  adjudication in proceedings legally constituted, he cannot  put forward any claim based on the title until as a result  of that enquiry he is able to establish his title.  It is  only thereafter that the question whether the rights in or  to that property have been improperly or illegally infringed  could arise. The dispute as noted by the High Court  essentially related to the claims of two rival groups of  private individuals in relation to common car parking  spaces. Learned Single Judge gave certain directions, which  even touched upon the legality of the sale deeds. It was not  open to be dealt with in a writ petition.  As observed by  this Court in U.P. State Co-operative Land Development Bank  Ltd. v. Chandra Bhan Dubey and Ors. (AIR 1999 SC 753) in  relation to the question whether a writ petition would lie  against a Cooperative Society the question to be considered  is what is the nature of the statutory duty placed on it and  the Court is to enforce such statutory public duty.  The  question as to entitlement of the members was to be  discussed in the Annual General Body Meeting. The writ  petitioners could not have questioned the decision of the  Society to discuss the matter in the Annual General Body

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Meeting. We, therefore, find no merit in this appeal. The  Society is free to convene a General Body Meeting and to  discuss the rival claims regarding entitlement. We make it  clear that we have not expressed any opinion on that aspect  of the matter. The appeal fails, but without any order as to  costs.