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High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE, VIDYA NAND
BIBHUTI BHUSAN CHAKRABORTY - Appellant
Versus
DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES - Respondent
Appeal 11 Of 1995
Decided On : 04/17/1997
CO-OPERATIVE SOCIETIES ACT - TRANSFER OF FLAT - WRITTEN CONSENT OF SOCIETY - CONDITIONS PRECEDENT - GENUINE NEED FOR RESIDENTIAL ACCOMMODATION - RIGHT TO PRIVACY OF OTHER MEMBERS - RIGHT TO SHELTER - RIGHT TO LIFE AND LIBERTY - INTERPRETATION OF STATUTORY PROVISIONS - DISCRETION OF CO-OPERATIVE SOCIETY - TRANSFEROR'S RIGHT TO TRANSFER AND TRANSFEREE'S RIGHT TO BECOME MEMBER - DISTINCTION - APPEAL AGAINST REFUSAL OF MEMBERSHIP - SECTION 70(4) OF THE ACT - APPLICABILITY.
Fact of the Case:
The appellant, Mr. Chakraborty, sought to transfer his flat in a co-operative housing society to the Santukas. The society refused to give its consent to the transfer on the ground that the Santukas were not eligible for membership in the society as they did not have a genuine need for residential accommodation and that their admission would violate the right to privacy of the other members. The appellant filed a writ petition challenging the society's decision. The learned trial Judge remanded the matter to the Appellate Authority for reconsideration.
Finding of the Court:
The court held that the co-operative society had not acted arbitrarily or illegally in refusing to admit the Santukas as members. The court found that the Santukas did not have a genuine need for residential accommodation in the society and that their admission would violate the right to privacy of the other members. The court also held that the transferor's right to transfer and the transferee's right to become a member are two distinct rights and that the society has the discretion to refuse to admit a member even if the transferor has fulfilled the conditions for transfer.
Issues: 1. Whether the co-operative society acted arbitrarily or illegally in refusing to admit the Santukas as members? 2. Whether the Santukas had a genuine need for residential accommodation in the society? 3. Whether the admission of the Santukas would violate the right to privacy of the other members? 4. Whether the transferor's right to transfer and the transferee's right to become a member are two distinct rights? 5. Whether the society has the discretion to refuse to admit a member even if the transferor has fulfilled the conditions for transfer?
Ratio Decidendi: 1. The co-operative society did not act arbitrarily or illegally in refusing to admit the Santukas as members. 2. The Santukas did not have a genuine need for residential accommodation in the society. 3. The admission of the Santukas would violate the right to privacy of the other members. 4. The transferor's right to transfer and the transferee's right to become a member are two distinct rights. 5. The society has the discretion to refuse to admit a member even if the transferor has fulfilled the conditions for transfer.
Final Decision: The appeal was dismissed.
( 1 ) THIS is an appeal against the judgment and order dated 21st November, 1994, passed by the learned Trial Judge in Matter No. 3059 of 1993, filed by the writ petitioner/appellant, Bibhuti Bhusan Chakraborty and others, and the respondent Nos. 5 and 6, to the writ application, namely Suresh Lal Santuka and Smt. Chand Devi Santuka.
( 2 ) THE writ application was filed by the writ petitioner/appellant, Bibhuti Bhusan Chakraborty, against the order dated 19-5-1993, passed by the Deputy Registrar of Co-operative Societies (Housing), in Appeal Case No. 1/cmah of 199192, which was filed under sub-sec. (9) of S. 85 of the West Bengal Co-operative Societies Act, 1983, read with sub-rule 3 (b) of R. 135 of the West Bengal Co-operative Societies Rules, 1987. The Appellate Authority, by the said order dated 105-1993, passed the following order :" (L) The Managing Committee of the society shall call a Special General Meeting as per S. 26 (1) of the W. B. C. S. Act, 1983, with specific agenda on the proposed transfer of the flat No. 53 from Mr. B. B. Chakraborty and others, the existing members, in favour of Sri and Smt. Shantuka, the intending transferees, within eight weeks from the date of communication of this order; (2) That the said Special General Meeting shall discuss and consider the proposed admission of Sri and Smt. Shantuka into the membership of the society according to law giving the proposed transferees an opportunity to represent their case in such meeting through a written notice served on them; (3) That the Special General Meeting shall pass through vote a clear resolution in the matter of acceptance of Sri and Smt. Shantuka as members of the society in place of Mr. B. B. Chakraborty and others and communicate the said resolution to the Appellants and Respondents Nos. 2 and 3 within ten days from the date of such meeting; and (4) That any such resolution, if passed through vote by less than 2/3rds majority of the total number of members of the society for disallowing the membership to Respondents Nos. 2 and 3 shall be ineffective, and in that case, Respondents No. 2 and 3 shall be admitted into the membership of the society in place of the Appellants in terms of S. 70 (4) of the W. B. C. S. Act, 1983, read with R. 120 (1) of the W. B. C. S. Rules 1987, on completion of all legal formalities by the proposed transferors and the proposed transferees in this respect. "
( 3 ) THE learned trial Judge, in the judgment and order dated November 21, 1994; had recorded that"both the counsel for the writ petitioners as well as the respondents Nos. 5 and 6 submitted that they would not press for the giving of consent by this court and asked for the remanding of the matter to the Appellate Authority for the purpose of redeciding the issues raised. It is urged that this court should not go into the question of the competence of the appeal but leave the matter to be resolved by the Appellate Authority. "
( 4 ) SO, it is clear that the appellant Mr. Chakraborty and the respondents Nos. 5 and 6, Santukas, have agreed that the learned trial Judge had not to decide the matter on its merits, but to remand the matter to the Appellate Authority for the purpose of redeciding the issues raised and that the appellant and the said respondents Nos. 5 and 6, the Santukas, have abandoned the point of maintainability of the appeal and left the matter to be resolved by the Appellate Authority.
( 5 ) IT appears that contrary to the submissions and representations made before the learned trial Judge, on the basis of which the learned trial Judge had, accordingly, delivered a judgment, this appeal has been preferred on points which have been abandoned; it is a clear case that a particular stand which was taken by definitely choosing one course in preference to the other, and in this appeal, the appellants have tried to approbate what they have reprobated
( 6 ) WE have to proceed with this appeal keeping in view the observ
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