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2018 Supreme(Cal) 906
IN THE HIGH COURT OF CALCUTTA
I.P. Mukerji, Amrita Sinha, JJ.
Kamlesh Phumbra And Others - Appellant
Vs.
Woodburn Park Co-Operative Housing Society Ltd. And Others - Respondent
Appeal From Order No. 331 of 2011, 333 of 2011, 394 of 2011; Writ Petition No. 395 of 2009, 395 of 2009, 395 of 2009
Decided On : 25-09-2018
Siddhartha Mira, Adv., Swaraj Shaw, Adv., Subhrata Kr Basu, Adv., Sunil Singhania, Adv., Nilanjana Adhya, Adv., Ahin Chowdhury, Adv., Joydeep Kar, Adv., Suman Kr Dutt, Adv., A. Ghosh, Adv., D. Mukherjee, Adv., Paritosh Sinha, Adv., Chama Mukherjee, Adv., Manika Pandit, Adv.
The main legal point established in the judgment is the duty of the Registrar to carefully determine the rights and interests of the parties and the limitations of his powers in conducting an enquiry under the West Bengal Co-operative Societies Act 1973.
Headnote:
West Bengal Co-operative Societies Act 1973 - Division of assets and liabilities - Sections 77, 86, 106, 132, 134 - The court discussed the division of assets and liabilities of a cooperative society under the West Bengal Co-operative Societies Act 1973, the jurisdiction of the Registrar, and the enforceability of the orders passed by him. The court emphasized the duty of the Registrar to carefully determine the rights and interests of the parties and the limitations of his powers in conducting an enquiry.
Fact of the Case:
The case involved a dispute over the division of assets and liabilities of a cooperative housing society under the West Bengal Co-operative Societies Act 1973. The society had constructed multi-storied residential buildings and faced objections regarding the division of properties and appointment of the Managing Committee.
Finding of the Court:
The court found that the Registrar had failed to consider material evidence and had not conducted a thorough enquiry as directed by the Supreme Court. The court held that the Registrar's decision was vitiated due to the failure to consider relevant documents and evidence.
Issues: The issues included the validity of the division of assets and liabilities, the jurisdiction and powers of the Registrar under the West Bengal Co-operative Societies Act 1973, and the duty of the Registrar to conduct a careful enquiry as directed by the Supreme Court.
Ratio Decidendi: The court held that the Registrar's duty was to carefully determine the rights and interests of the parties and that he was not obligated to conduct a full-scale enquiry or investigation on his own. The court emphasized the limitations of the Registrar's powers and the need for a thorough consideration of relevant evidence.
Final Decision: The court set aside the Registrar's decision and allowed the appeal to the extent that the impugned judgment and order were set aside.
JUDGMENT :
I.P. Mukerji, J.
This case has a long history. East End Apartments Co-operative Housing Society Ltd. founded under the West Bengal Co-operative Societies Act 1973 owned two plots of land, one premises No. 5 B Woodburn Park Road, Kolkata - 700020 and the other premises no. 11/1B Ekdalia place, Kolkata - 700019. The society at first constructed a multi-storied residential building at 11/1B, Ekdalia Place, Kolkata 700019. This building had 21 flats. It wanted to construct another multi-storied building at Woodburn Park Road.
2. A Division Bench of this Court on 15th December, 1978 directed the Registrar of Co-operative Societies Government of West Bengal (Registrar) to take steps for division of the assets and liabilities of this co-operative society, according to the said Act. In compliance with this order, the Registrar made a preliminary order for division of the properties on 5th September, 1979 under Section 77(1) of the said Act. Some members of Woodburn Park Cooperative Society objected to the preliminary order. On 23rd June, 1980, the Deputy Registrar passed the final order of division under Section 77 of the said Act and registered two new societies Woodburn Park Co-operative Societies (Woodburn) and Ekdalia Housing Co-operative Ltd. (Ekdalia). On 8th August, 1988 the Deputy Registrar constituted directors of the Woodburn Park Co-operative Housing Society Ltd. as the Managing Committee.
3. Smt. Chanda Devi Tantia and 12 others moved a writ application in this Court CR No. 3922 (w) of 1981 challenging this final division and also the appointment of the first Managing Committee. They said that without giving any hearing to them the final order of division was made listing them as nonmembers of Woodburn. On 20th June, 1984 the writ application was allowed in part by setting aside the order dated 23rd June, 1980 and directing the Registrar to appoint an administrator in Woodburn. This society filed an appeal against this order before a division bench of this Court (FMAT No. 1971 of 1984). Initially the judgement and order dated 20th June, 1984 was stayed by the Division Bench but ultimately by a judgement and order made on 1st August 2002 it dismissed this appeal. Woodburn preferred a special leave petition before the Supreme Court of India (SLP(C) No.18801 of 2002. The special leave petition was admitted by the highest Court, heard out as an appeal and finally disposed of on 2nd April, 2008 as follows.
"In the background of factual position it would be appropriate to set aside the High Court's orders. Let the matter be considered by the Registrar afresh within a period of 6 months. The enquiry will be restricted to decide the question whether there was any resignation and whether letter of resignation was signed by the objectors and whether the resignation was approved by any resolution and on the question of refund of share money and the effect of refund and acceptance. The Registrar shall also consider the other materials which have relevance so far as resignation in consideration. It would be open to the Registrar to call for the records and the documents from the parties within a period of 6 months. There would be no allotment to 13 persons who raised objections until decision is taken by the Registrar.
The appeal is disposed of accordingly. No costs."
4. Woodburn said in an affidavit that all the above persons had resigned by submitting letters of resignation to the erstwhile East End Apartment Cooperative Housing Society Ltd (East End). Each of these persons had filed an affidavit to state that they had not resigned.
5. It appears from the records of the proceedings before the Registrar that Woodburn could not get the books and records from East End because of a problem arising out of non-payment of the latter's dues. Learned Counsel for Woodburn could place certified copies of three letters certified by a M. Chatterjee, the Chairman of East End. The Registrar expressed the view that Woodburn Park Co-operative Hous
