Back
2001 Supreme(Cal) 795
HIGH COURT OF CALCUTTA
Bhaskar Bhattacharya, J.
Bibhash Chandra Ghosh
vs.
Michael Samabaya Upanibesh Samity (Sasim) & Ors.
C.O. No. 3061 of 1987
Decided On: December 24, 2001
K. D. Mukherjee, Lina Roy for the petitioner;
Anupam Chatterjee for the respondents.
Section 70(1)(c) of the West Bengal Co-operative Society Act, 1973, which provides for the transfer of the share or interest of a deceased member, applies only to cases where the nominee or legal representative of a deceased member requests the society to transfer the interest of the deceased in favor of a third person who is neither a nominee nor a legal representative.
Headnote:
CO-OPERATIVE SOCIETY - TRANSFER OF SHARE - LIMITATION - WEST BENGAL CO-OPERATIVE SOCIETY ACT, 1973 - SECTION 70(1)(C) - APPLICABILITY - INTERPRETATION.
Fact of the Case:
Petitioner, the son of a deceased member of a cooperative society, sought to transfer the share of his deceased father to his name. The society failed to respond to his request. The petitioner filed a dispute case under section 86 of the West Bengal Co-operative Society Act, 1973, which was referred to arbitration. The arbitrator ruled in favor of the petitioner, but the Tribunal set aside the award on the grounds that the reference was barred by limitation and that the petitioner's claim was also barred under section 70(1)(c) of the Act.
Finding of the Court:
The court held that the reference to the Registrar was not barred by limitation since the society had not communicated any decision to the petitioner and had not passed any order directing payment of the value of the share to the legal representatives. The court further held that the petitioner's prayer for transfer was not barred by limitation under section 70(1)(c) of the Act, as the provision applied only to cases where the nominee or legal representative of a deceased member requested the society to transfer the interest of the deceased in favor of a third person who was neither a nominee nor a legal representative.
Issues: 1. Whether the reference to the Registrar was barred by limitation? 2. Whether the petitioner's prayer for transfer was barred by limitation under section 70(1)(c) of the Act?
Ratio Decidendi: 1. The court interpreted section 86(2) of the Act, which requires disputes to be referred to the Registrar within one month from the date of the cause of action, and held that the cause of action in this case arose when the society failed to communicate its decision on the petitioner's request for transfer. Since the society had not communicated any decision, the reference was not barred by limitation. 2. The court interpreted section 70(1)(c) of the Act, which provides that the share or interest of a deceased member shall be transferred to a person specified in an application within three months of the death of the deceased member, and held that the provision applied only to cases where the nominee or legal representative of a deceased member requested the society to transfer the interest of the deceased in favor of a third person who was neither a nominee nor a legal representative. Since the petitioner, as a legal representative of the deceased member, was requesting the transfer of the share to himself, the provision did not apply.
Final Decision: The court set aside the order of the Tribunal and restored the award passed by the Arbitrator, allowing the petitioner's revisional application.
Bhaskar Bhattacharya, J.: This revisional application under Article 227 of the Constitution of India is at the instance of plaintiff and is directed against order dated November 7, 1986 passed by the West Bengal Co-operative Tribunal in Appeal No.62 of 1986 thereby setting aside award dated June 18, 1986 passed by the Arbitrator in Dispute Case No. 63/CMAH of 1981-82.
2. A dispute case under section 86 of the West Bengal Co-operative Society Act, 1973 ("Act") was filed by the present petitioner praying, inter alia, for declaration that he is the allottee of a particular plot under the defendant/Cooperative Society and for a direction upon the Co-operative Society to transfer the share of Kalipada Ghosh to him and to admit him as a member of the society and to register the deed of transfer in his favour.
3. The case made out by the petitioner was that a plot of land being No. 208A measuring about five cottahs in the housing project of the society had been allotted in favour of deceased Kalipada Ghosh, the father of the plaintiff. Kalipada was also asked by the society to take possession of the land within a particular period. Kalipada took possession but ultimately on August 4, 1973 he died leaving behind three sons and four daughters as his sole heirs and legal representatives. On the death of Kalipada the land vested in favour of all the heirs and as such all of them by a letter dated December 15, 1974 requested the society to record the plot in the name of Sub hash, one of the sons of Kalipada. Though the society received the letter on December 23, 1974, no reply was given thereto. Thereafter, on February 12, 1976 all the heirs of Kalipada requested the society to ignore their earlier letter and to record the said plot in the name of the plaintiff, another son of Kalipada. By a separate letter dated February 14, 1976, Subhash also surrendered his claim in favour of the plaintiff. Those letters were received by the society on March 20, 1976.
4. Inspite of receiving those letters, the society having failed to reply, reminders were sent on April 3, 1978 and November 28, 1979. Ultimately, by a letter dated December 3, 1979 the society asked the plaintiff to produce documentary evidence in support of his claim over the property left by Kalipada. In reply, the plaintiff sent a letter dated February 6, 1980 informing the society that all the legal heirs of Kalipada had already informed the society that they had surrendered their claim in respect of the disputed plot of land in favour of the plaintiff and that the said letter might be treated as documentary evidence in support of the plaintiffs claim. No reply was received by the plaintiff. On April 20, 1981, an advocate for the plaintiff addressed a letter to the society requesting to record the said plot of land in plaintiffs name and to grant necessary document. By another letter dated March 1, 1982, the plaintiff again requested the society to record the land in his name and to communicate the action taken within 15 days. No reply was received from the society to any of the letters and thereafter the dispute was referred to the Registrar. The Arbitrator ultimately passed the following award:-
"1. that the plaintiff is the allottee of plot of land being Plot No. 208A which was subsequently re-numbered if any, in the housing project of the defendant society at Michaelnagar in the District of 24 Parganas.
2. the defendant is directed to transfer the share which were allotted by the defendant to the father of the plaintiff Late Kalipada Ghosh to the plaintiff and to admit the plaintiff into membership of the defendant society after collecting the dues if any.
3. the defendant is directed to execute and register the deed of transfer in respect of the above mentioned being plot No. 208A in the Housing Project of the Defendant Society at Michaelnagar in the district of 24 Parganas in favour of the plaintiff as per plan of plots exhibited by the plaintiff in this case (PW-1).
4. No cos
