IMPORTANT POINT
The right, title and interest of the deceased member in the apartment of a cooperative society developers upon his heirs and in a case where the Co-operative Society is under the control of a Special Officer, a writ would lie.

Headnote:West Bengal Co-operative Societies Act, 1983-Sections 2(18), (28), (32), (38), 79, 80(b) and (c), 82, 85 and 87-Rules 128, 153 and 185-Constitution of India-Article 226-Death of member of the society-Transfer of devolution of interest of a deceased member-Appellant filed a writ petition for declaration that possession of the flat should be given to legal heirs of deceased member upon receipt of all dues-Appellant s father, owner of land, entered into an agreement for sale of the land on which the respondent Society desired to make the apartment-Society allotted a three bed room flat in favour of appellant s father-Death of appellant s father in 1985-Claim made for transfer of interest of deceased member to one out of all sons and daughters left behind by the deceased-Father of appellant had died intestate leaving behind him five daughters and one son-Four daughters and the son have given their consent thereby authorising appellant to take possession of the flat from respondent Society-Whether appellant is entitled to succeed to estate of deceased-(Yes)-Mandamus issued directing respondents to transfer the flat in favour of appellant.
       Held : The order passed by the Special Officer re-allotting 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 without 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 no appropriate person could be named as legal heir of the allottee in whose favour respondent-Society was to make the allotment and as such the Society has been threatening of re-allotting 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 member will also be liable to discharge his obligations as the member of the Society in accordance with the abovementioned Act, Rules and the bye-laws. (Paras 31 to 33)
       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 Co-operative Society is under the control of a Special Officer, a writ would lie. (Para 38)
       It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellant s father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottee s own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the respondents and, in particular, the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick. (Para 48)

JUDGMENT

Dr. AR. Lakshmanan, J.-This appeal involves several interesting questions as will appear from the facts set out hereunder:

2. 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 flat by the said Society and for an interim order of injunction restraining the Society and the Special Officer from alienating/transferring of the said apartment No. 2 to anybody other than the legal heirs of the deceased member and for other reliefs.

3. The father of the appellant/writ petitioner - Sati Prasanna Bhowmick - has died intestate in August, 1985 leaving behind him the following legal heirs:

(a) Smt. Gayatri De -Married daughter (Appellant)

(b) Smt. Atri Das - -do-

(d) Smt. Anita Sarkar- -do-

(d) Sri Subrata Bhowmick - son

(e) Smt. Mita Das - Married daughter

4. 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-2/5 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.

5. 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 run as follows:

"10. The purchaser shall construct a multi-storied building on the plot of land to be purchased by them as aforesaid. The vendors shall have the right to purchase at least 8 flats in the said building either in the name of themselves or in the name of their nominee or nominees each flat to contain a floor area of about 1268 sq. ft. The purchase price to be paid by the vendors in respect of the said flats be at the same rate as those payable by other purchasers of similar flats in the same building occupying the same position. The purchaser shall not sell any of the said 8 flats unless the same are first offered to the vendors by 60 days previous notice in writing by registered post. In case the vendors do not signify their willingness to purchase within the said period of 60 days the purchaser will be entitled to dispose of the flats to any other person or persons."

"12. Subject to the approval of the general meeting of the purchaser the name of the building to be constructed by the purchaser shall be "Priti Court" and the said name shall not be changed by the purchaser without the previous written consent of the vendors."

6. 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 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 projec

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2004 Supreme(SC) 496

IMPORTANT POINTThe right, title and interest of the deceased member in the apartment of a cooperative society developers upon his heirs and in a case where the Co-operative Society is under the control of a Special Officer, a writ would lie.

Cases Referred (7)

IMPORTANT POINT
The right, title and interest of the deceased member in the apartment of a cooperative society developers upon his heirs and in a case where the Co-operative Society is under the control of a Special Officer, a writ would lie.