In the absence of a nomination, a legal heir of a deceased member of a co-operative housing society must comply with Section 70(1)(b) of the West Bengal Co-operative Societies Act, 2006, by producing probate, letter of administration, or succession certificate to establish their heritable right and exclude any other person's claim.

JUDGMENT :

RAI CHATTOPADHYAY, J.

1. This appeal is directed against the order of the Hon’ble Single Bench dated April 5, 2023 in WPA 6335 of 2023. The relevant portion of the said order may be extracted, as herein below:

“Considering the facts and circumstances of this case and submission of the parties this writ petition being WPA 6335 of 2023 is disposed of by directing the respondent co-operative society to allot membership to the petitioner if he makes application in proper form and complies the formalities under Section 70 (1) (b) of the aforesaid Act. If the petitioner does not make any application within a month from date, in that event the respondent society will not be bound to allot membership to the petitioner and if petitioner complies the formalities under the aforesaid Section the respondent society shall issue membership certificate to the petitioner.

In the meantime there will be an order of status quo with regard to the plot of land in question.”

2. Appellant/writ petitioner’s challenge as to the said impugned order dated April 5, 2023 would be on the premises inter-alia, that, the appellant being the only legal heir and successor of the erstwhile member of the respondent/Co-operative Society (respondent no. 5), shall be entitled to own and possess the land allocated by the Society to his deceased father, as the member and share holder of the Society. His further grievance is that by not considering the statutory provision as to the right of the appellant in the property of the Society, which was earlier held by his deceased father on lease, the respondent no. 5 has acted in defiance of the statutory provision and illegally, by relegating him for compliance of provisions under Section 70 (1) (b) of The West Bengal Co-operative Societies Act, 2006, (in short “the said Act”) in order to be the owner of the share of the Society as well as the leasehold property. The appellant has alleged gross arbitrariness in the said act of the Society directing him to comply with the afore stated statutory provisions, in as much as, according to the appellant the statute itself has bestowed right upon him being the legal heir of the deceased member of the said Co-operative Society, to be the owner of the property earlier held by his father, now deceased. His specific case is that the statutory right vested in him has thus been grossly violated.

3. Mr. Basu, Ld. Senior Advocate while arguing on behalf of the appellant has drawn this Court’s attention to the relevant statutory provision under Section 64 of the said Act. He points out that certain ‘eligibility criterion’ has been stipulated in the statute itself for membership of a cooperative society. His client/writ petitioner having fulfilled all those and being interested for admission as a member thereof, could not have been called upon, to comply with any other provision of the statute, excepting that under section 64 of the Act. Otherwise, as has been done in case of his client, the said action of the respondent Society would be illegal as well as detrimental to the valuable statutory rights of his client.

4. By referring to various other provisions, Mr. Basu has tried to impress upon the Court that the right of the present appellant is imbibed in the statutes itself, to inherit and be transferred with the immovable property held by his deceased father in the said Co-operative Housing Society. He says that the provision of law having been clearly and unambiguously laid down as above, any action on the part of the respondent/Co-operative Society to call for due compliance by the present appellant of the provision under Section 70 (1) (b) of the said Act, is only an exaggerated and unauthorised exercise of the statutory power vested in the same. Mr. Basu has referred to the letter of the Additional Registrar of Co-operative Societies (Housing Cell), West Bengal dated September 20, 2022 and informs that the said letter was impugned in the writ petition, that is, WPA 6335 of 2023. By