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1991 Supreme(Cal) 428
High Court Of Calcutta
Nirendra Krishna Mitra
ABINASH CHANDRA CHAKRABORTY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 766 Of 1987
Decided On : 09/13/1991
ANUPAM CHATTERJEE, B.R.NEOGI, H.CHOUDHARY, KESHAB BHATTACHARJI, P.K.GHOSH
A nominee appointed under section 69 of the West Bengal Cooperative Societies Act, 1973, is entitled to receive the share and interest of the deceased member in the society, including any flat held by the member during his lifetime.
Headnote:
WEST BENGAL CO-OPERATIVE SOCIETIES ACT, 1973 - NOMINATION - TRANSFER OF SHARE AND INTEREST - RIGHT OF NOMINEE - VALIDITY OF NOMINATION - DISPOSAL OF DECEASED MEMBER'S SHARE OR INTEREST - SCOPE OF SECTIONS 69, 70(1) AND 141 OF THE ACT - DISTINCTION BETWEEN NOMINEE UNDER INSURANCE ACT AND NOMINEE UNDER CO-OPERATIVE SOCIETIES ACT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
Member of a co-operative housing society nominated the writ petitioner as his nominee for his share and interest in the society, including a flat. After the member's death, the society admitted the writ petitioner as a member and transferred the flat to him. However, the heirs of the deceased member challenged the nomination and the transfer of the flat. The dispute was referred to arbitration, and the arbitrator held that the nomination was valid but that the flat should go to the heirs.
Finding of the Court:
The West Bengal Cooperative Tribunal, on appeal, held that the nomination was valid and that the membership transfer was legal, but it kept the question of the right to the flat open for decision in a proper proceeding before a proper forum.
Issues: 1. Whether the nomination of the writ petitioner as the nominee of the deceased member was valid and legal. 2. Whether the writ petitioner was entitled to the flat held by the deceased member during his lifetime. 3. Whether the Tribunal erred in not making a consequential order directing the society to transfer the shares and interest of the deceased member to the writ petitioner, including the flat.
Ratio Decidendi: 1. The provisions of sections 69 and 70(1) of the West Bengal Cooperative Societies Act, 1973, clearly provide that a nominee appointed by a member of a cooperative society is entitled to receive the share and interest of the deceased member in the society, including any flat held by the member during his lifetime. 2. The nomination made in favor of the writ petitioner by the deceased member was held to be valid and legal by both the arbitrator and the Tribunal. 3. The Tribunal erred in not making a consequential order directing the society to transfer the shares and interest of the deceased member to the writ petitioner, including the flat, as the relief was consequential to the Tribunal's upholding of the nomination.
Final Decision: The part of the Tribunal's order keeping the question of the right to the flat open for decision in a proper proceeding before a proper forum was quashed, and the writ petitioner was held to be entitled to the flat to the exclusion of all others, including the heirs of the deceased member.
( 1 ) IN short, the facts of the case inter alia, are, that one Sri Ranendra Kr, Acharya, was a member, of the Manicktola Co-operative Housing Society, and he was allowed Flat No. K-82 in the housing complex of the said Society, upon full 'payment of hi contribution towards the cost of construction ,of the said flat, and get possession of the same. At first, Sri Acharya had made his mother Smt. Sushila Devi as his nominee in respect of his share and interest in the said Co-operative Soandty, but subsequently in 1974, he changed his nominee, and the writ petitioner was made his new nominee, which was approved by the Co-operative Society at its meeting dated 21st September, 1974, and the writ petitioner's name was recorded as the nominee of the said Sri Acharya in place of his mother. The said Sri Acharya died on September 14, 1975, and the writ petitioner made an application to the said Co-operative Society for admitting him as a member of the said Society, in place of the said deceased member, as his nominee, and the Society by its resolution dated January 10, 1976, admitted the writ petitioner as a member of the said Society. Subsequently, on or about January 24, 1976, when the writ petitioner went to take possession of the flat of the deceased member, in respect of which, he was made a nominee, as on the death of the said member, the said flat stood transferred in his favour as per the Co-operative Societies Act, 1973, he found one Smt. Suruchi Bala Bhattacharya, since deceased, and her family were in occupation of the said flat on the alleged claim that they were the heirs of the said Sri Ranendra Kumar Acharya. The writ petitioner then tied a dispute case before the Assistant 'registrar of Co-operative Societies, Calcutta being case No. 39/ca1/1975 - 76 claiming inter alia, that the Society must make over vacant possession of the disputed flat to the. writ petitioner being the nominee of the deceased member of the Society. As a counter-blast, Smt. Suruchi Bala Bhattacharya also filed another dispute case being No. 40/cal/1975 - 76 before the same authority alleging inter alia, that the resolution of the Society dated 10th January, 1976 as referred to above, was illegal and void and further alleged that the nomination in favour of the writ petitioner was subsequently changed by the deceased member himself before his death. Prior to the aforesaid two disputed cases, the said Smt. Suruchi Bala Bhattacharya also filed another dispute case being No. 34/cal/1975-76 before the Assistant Registrar of Cooperative Societies, Calcutta challenging inter alia the transfer of the disputed flat in favour of the writ petitioner by the Society. The dispute case No. 39/cal/1975 - 76 as filed by the writ petitioner, however, was ultimately dismissed, against which an appeal, being Appeal No. 76 of 1982 was preferred by the writ petitioner before the West Bengal Cooperative Tribunal, and the Tribunal by its judgment and order dated 26th April, 1983, allowed the said appeal in part and remanded the matter for re-hearing by the Assistant Registrar, holding inter alia, that the arbitrator was wrong in holding the preliminary point against the writ petitioner that he was not entitled to get possession of the disputed flat.
( 2 ) AGAINST the said judgment and order passed by the Appellate Tribunal, the heirs of the said Smt. Suruchi Bala Bhattacharya, who had died in the meantime, namely, the respondent Nos. 4 to 11 in the present Civil Order, moved a writ application in the Hon'ble Court and obtained a Rule, being C. R. No. 9412 (W) of 1983, in which an interim order was passed by The Hon'ble Mr. Justice G. N. Ray (as His Lordship then was), on 23rd September, 1983, while dealing with the application for extension of the interim order directed the respondent No. 3 herein to dispose of the aforesaid two other pending dispute case being Case Nos. 34/cal and 40/cal preferably within December, 1983 as, according to His Lordship, it
