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1997 Supreme(Cal) 465
High Court Of Calcutta
S. B. SINHA, RONOJIT KUMAR MITRA
MOUSUMI CO-OPERATIVE HOUSING SOCIETY LTD - Appellant
Versus
GAYATRI DE - Respondent
F. M. A. 285 Of 1996
Decided On : 12/15/1997
HIMANSU DUTTA, T.H.Sen Gupta
The rights and liabilities of members and heirs of a Co-operative Housing Society are governed by the provisions of the West Bengal Co-operative Societies Act and the rules framed thereunder.
Headnote:
CO-OPERATIVE HOUSING SOCIETY - NOMINATION OF HEIRS - TRANSFER OF SHARE OR INTEREST - RIGHT OF HEIRS - MAINTAINABILITY OF WRIT PETITION AGAINST CO-OPERATIVE SOCIETY - INTERPRETATION OF VARIOUS PROVISIONS OF THE WEST BENGAL CO-OPERATIVE SOCIETIES ACT AND RULES - LEGAL PRINCIPLES GOVERNING THE RIGHTS AND LIABILITIES OF MEMBERS AND HEIRS OF A CO-OPERATIVE HOUSING SOCIETY.
Fact of the Case:
The appellant society sold a major part of its residential property to the deceased, Satiprasanna Bhowmick, who surrendered two flats to the society and was allotted one flat. After his death, his heirs nominated the writ petitioner to purchase the flat, but the society reallocated it to a third party. The writ petitioner challenged the reallocation, arguing that she had a right to the flat as the nominee of the deceased.
Finding of the Court:
The court held that the writ petition was not maintainable because the appellant society is not a State within the meaning of Article 12 of the Constitution of India and a writ petition would be maintainable only if it is shown that a mandatory provision of a statute has been violated. The court also held that the heirs of the deceased did not have any right, title, or interest in the flat as the entire amount for the flat had not been paid and the deceased had not become the holder of a title in respect thereof.
Issues: 1. Whether the writ petition is maintainable against a Co-operative Society? 2. Whether the heirs of the deceased had any right, title, or interest in the flat?
Ratio Decidendi: 1. A writ petition is maintainable against a Co-operative Society only if it is shown that a mandatory provision of a statute has been violated. 2. The heirs of a deceased member of a Co-operative Housing Society do not have any right, title, or interest in the flat allotted to the deceased unless the entire amount for the flat has been paid and the deceased has become the holder of a title in respect thereof.
Final Decision: The appeal was allowed, and the writ petition was dismissed. The court directed that the amount paid by the deceased be refunded to his heirs and legal representatives with interest at the rate of 12% per annum from the date of filing of the writ application till payment.
( 1 ) INTERPRETATION of various provisions of the West bengal Co-operative Societies Act (hereinafter referred to as the Act) and the rules framed thereunder relating to the right of heirs of an allottee of a flat by a Co-operative Housing Society is the subject-matter of this appeal.
( 2 ) THE fact of the matter shortly stated as follows : one Satiprasanna Bhowmick sold major part of his residential property to the appellant society wherefor a deed of conveyance was executed on 27th october, 1989. The consideration in respect of the said transaction i. e. Rs. 1,50,000/- was adjusted as an advance in part payment Of the price of 3 flats' to be given by the said society. He retained one flat in his own name and surrendered the other two flats in June, 1983 to the appellant society which was duly accepted. He died on 18th August, 1985 leaving behind him five married daughters and one married son. Two share certificates had been issued to the said deceased on 30th October, 1980 and the flat being No. A/2 on the fifth floor of Mousumi Apartment was allotted to him by a letter dated 29th November. 1982. A sum or Rs. 1. 00,000- was paid to the said Society for the said apartment whence the original estimated price was Rs. 2. 60,000/ -.
( 3 ) ON or about 6th December, 1986 i. e. after expiry of the period of 3 months Dr. Subrata Bhowmick son of the said Satiprasanna Bhowmick intimated to the Society the factum of his father's death wherein a request was made for time to complete the legal process for transfer of his father's interest to one of the legal heirs. Allegedly no reply was given to the said letter. A reminder was sent on 6th December, 1988, in terms whereof the special officer who was appointed in the mean time was requested to let him know how much the legal heirs owe to the society for the flat. By a letter dated 6th december. 1986 the special officer replied stating that since the transfer of the said deceased's interest was not claimed within the stipulated time i. e. 90 days, the flat has already been reallotted.
( 4 ) ADMITTEDLY, the writ petitioner-first respondent was nominated as a heir to purchase the flat. It is also accepted that she has already been allotted one flat in the said building and according to the rules, a person cannot be allotted two flats in the same building.
( 5 ) MR. T. H. Sengupta, the learned Counsel appearing on behalf of the appellant raised two questions in support of this appeal. The learned Counsel submits that keeping in view the provisions of the Act and the Rules framed thereunder as the entire consideration money for said allotted flat had not been paid, no title in respect of the flat in question passed to the petitioner and in any event, an option having not been exercised within the stipulated period, question of the said flat in favour of the writ petitioner does not arise, in any event, contends the learned Counsel, as the writ petitioner has already been allotted one flat, allotment of another flat in the said building is impermissible in law.
( 6 ) MR. Himanshu Dutta the learned Counsel appearing on behalf of the respondent, on the other hand, relying on or on the basis of the decisions reported in Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharma raju, reported in AIR 1990 AP 171. Firzoali Abdulkarim Jivani and others v. The Union of India, reported in AIR 1992 Bom 179 and Arjed Ali Gazi v. State of West Bengal, reported in 94 CWN 515, submitted that the appellant society is a State within the meaning of Article 12 of the Constitution of India and, thus, a writ petition is maintainable against it. The learned Counsel contends that the contention raised before this Bench had not been raised before the learned trial Judge. The learned Counsel submits that no new point can be permitted to be urged before this Court and in support of his aforementioned reliance has been placed on a derision reported in AIR 1993 SC 1265.
( 7 ) ACCORDING to the
