Gayatri DE Vs. Mousumi Cooperative Housing Society Ltd. & Ors  Insc 288
(16 April 2004)
Babu , Dr. Ar. Lakshmanan & G.P. Mathur. Dr. Ar. Lakshmanan, J.
appeal involves several interesting questions as will appear from the facts set
appellant herein filed a writ petition before the High Court of Calcutta
praying, inter alia, for cancellation of the letter dated 1.11.1988, issued by
the Special Officer of the Society, for declaration that the possession of the
Flat being No. A- 2 on 5th Floor should be given to the legal heirs of late
Sati Prasanna Bhowmick, the deceased member, upon receipt of all dues in
respect of the said apartment by the said Society and for an interim order of
injunction restraining the society and the Special Officer from alienating
transfer of the said apartment No.2 to anybody other than the legal heirs of
the deceased member and for other reliefs.
father of the appellant/writ petitioner Sati Prasanna Bhowmick has died
intestate in August, 1985 leaving being him the following legal heirs :
Gayatri De - Married daughter
Atri Das - -do-
Roy - -do-
Anita Sarkar - -do-
Subrata Bhowmick - son
Das - Married daughter
said legal heirs, namely, the four daughters and the son have separately, by
letters, given their consent thereby authorising the appellant to take
possession of the flat being No.A-2 from the respondent-Society. The appellant
has been authorised by all the legal heirs of late Sati Prasanna Bhowmick to
take possession of the flat stands in the name of their deceased father.
appellant's father, owner of rent free land at 15 B Ballygunge, Calcutta-700
019, entered into an agreement on 18.10.1977 for sale of the land in question
on which the said Society desired to make the apartment. On 27.10.1980, an
indenture was entered into between the father of the appellant and the Housing
Society. The total price was Rs.13,90,069.28 against which the earnest money
amounting to Rs.7,30,000/- was paid towards part payment of the price. Clauses
10 and 12 of the agreement of 1977 runs as follows:
B" It is worth mentioning, in this connection, that Priti was the name of
the pre-deceased wife of the said Sati Prasanna Bhowmick and the late mother of
the appellant herein. By letter dated 29.11.1982, the Society intimated the
father of the appellant that they had favourably considered the application and
accepted the membership under the terms and conditions contained in the said
letter. The father of the appellant had been informed by the said letter that
the Society had allotted him a three bed rooms flat on facing flat No. A-2
having covered area of 1268 sq.ft. approximately (including common area) on 5th
floor in the project of the society. The estimated cost of the flat was
mentioned at Rs.2,53,600/- @ Rs.200/- per sq.ft. inclusive of proportionate
13 of the said letter runs as follows:
D" On 13.10.1980, the Society issued two share certificates bearing Nos.
51 and 52 in favour of Sati Prasanna Bhowmick, since deceased and a flat being
No.A-2 on the 5th floor at the said multi storied building had been allotted to
him under their letter dated 29.11.1982. The Secretary of the society made
demands of payments for the flat in question and the other flats allotted to
other members. Series of correspondences went on and the father of the
appellant took time to clear all the dues. Some trouble arose which hampered
the progress of the said society and other litigations were cropped up. One Mr.Arun
Prakash Sarkar, an advocate of the High Court at Calcutta, had been appointed as a Special Officer. The Special
Officer intimated this under his signature that the High Court had authorised
him to take immediate steps to have the construction work continued and also to
give liberty to him to consider the question of allotment of applications etc,
The father of the appellant, since deceased, who was an aged ailing
octogenarian became ill and could not take any further steps regarding his own
flat namely, A-2/5 which had been allotted to him as already mentioned
hereinabove. It is worth mentioning, in this connection, that since after the
early part of 1983, there was neither any demand for money nor of any communication
regarding his liability in respect of the said flat from the end of the said
Society during the life time of Sati Prasanna Bhowmick.
letter dated 6.12.1986, Dr. Subrata Bhowmick, son of Sati Prasanna Bhowmick,
since deceased, the erstwhile allotee in respect of flat No. A-2/5 wrote a
letter to the Special Officer of the Society intimating him about the demise of
his father and mentioning therein that they had since found that their father
did not leave any nominee for the flat mentioned above. It was also mentioned
therein that they were taking such action under the West Bengal Cooperative
Societies Act, 1983 (hereinafter referred to as "the Act") and the
laws to get their father's interest transferred to one out of all brothers and
sisters and as some of them were outside Calcutta and even outside India and it
was likely to take time. No reply was sent by the Society to the letter dated
18.12.1986. The Special Officer, for the first time, on 1.11.1988 wrote a
letter to Dr. Subrata Bhowmick that in accordance with the Act, the Rules made thereunder
and the bye-laws of the Society, a claim for transfer of interest is required
to be made within a stipulated time and as no claim for transfer of the
interest of their late father has been made in time, the flat in question has
already been re-allotted and the Society will make payment of the amounts made
after deduction in accordance with law.
appellant filed a writ petition in the High Court of Calcutta for a mandamus
commanding respondents 2 and 3 to withdraw, cancel and not to give effect to
the purported letter dated 1.4.1988 issued by the Special Officer of the
Society and to forbear from acting on the basis thereof and pursuant thereto.
Other consequential reliefs/prayers were also made.
writ petition was resisted by the Special Officer of the Society submitting
therein that the said writ petition was not maintainable in law and sustainable
on facts and should be rejected in limine. The appellant filed an affidavit in
reply denying and disputing the correctness of the statements, contentions and
submissions made in the affidavit-in- opposition. It was specifically stated
that the Special Officer having been appointed by the High Court and the
decision and action of the Special Officer could not be assailed in any Court
subordinate to the High Court and as such the High Court was moved against the
wrongful and illegal action of the Special Officer. In spite of availing the
remedy of reference of the dispute to the Registrar under the Act, which according
to the appellant, was no bar to the maintainability of the writ application, it
was asserted that the appellant was ready and willing to pay the balanced
amount in respect of the said flat and also prepared to comply with all the
formalities in respect of the said flat. The writ application was heard and
disposed of on 2.7.1992 by a learned single Judge. The ordering portion of the
said judgment is reproduced hereinbelow:
N & O" Against the aforesaid judgment and order, the Society preferred
an appeal before the Division Bench. The Division Bench allowed the appeal
filed by the Society and dismissed the writ petition filed by the appellant. It
Since the entire amount has not been paid, no right, title and interest had
passed in favour of the father of the appellant Sati Prasanna Bhowmick ;
The provisions of the Act and the Rules made thereunder leave no manner of
doubt that the appellant does not have any right to allotment of a flat nor the
heirs of the deceased could claim title in relation to the flat in question in
violation of the provisions of Chapter IX of the said Act ;
The heirs nominated after the expiry of the stipulated period could not derive
any right contrary to or inconsistent with the provisions of the Act. The writ
petition was not maintainable for non-impleading the necessary party and no
writ will lie against the respondent-Society.
aggrieved by and dissatisfied with the judgment of the Division Bench, the
appellant filed this appeal by way of special leave petition.
heard Shri V.R. Reddy & Shri Tapas Ray, learned senior counsel, appearing
for the appellant and Shri S.B. Sanyal, learned senior counsel assisted by Shri
Somnath Mukherjee, learned counsel, appearing for the respondents.
V.R. Reddy took us through the pleadings, affidavits filed before the High
Court as well as before this Court and the annexures.
made the following submissions:
submitted that in the event of death of a member, the legal heirs of such
deceased member are entitled to inherit and give allotment of the apartment
which the deceased member was entitled to. In the instant case, the deceased
member died leaving no more nominating any person to inherit the apartment.
According to Shri V.R. Reddy, in the event of the deceased member dies leaving
no more nominating any person to inherit the apartment, the interest of the
deceased member could be inherited by all the legal heirs or by one of the
legal heirs in the event other legal heirs give their rights in favour of such
single legal heir.
submitted that the Cooperative Society is not competent to re-allot a valid
allotment in favour of the deceased member even when all financial obligations
are complied with, ignoring the rights of legal heirs of such deceased member.
He invited our attention to Sections 79, 80, 82, 85, 87 and the corresponding
V.R. Reddy further submitted that the writ petition was maintainable since the
order impugned was passed by the Special Officer, appointed under the
provisions of the Act and as such he is a statutory officer and, therefore, he
should be regarded as a public authority and, therefore, the writ petition
filed by the appellant is maintainable in law.
V.R. Reddy also submitted that the right and interest of the legal heirs of the
deceased member could not be denied in the event of time taken in nominating,
particular legal heirs for the same could not be done within three months from
the date of the death of the member because of certain unavoidable
circumstances as the legal heirs were not available immediately in giving their
consent and giving up their rights in favour of the single legal heir in whose favour
the property desired by all the legal heirs to be transferred. More so, when
the Cooperative Society was intimated well in advance seeking extension of time
in providing particular name in whose favour the property the legal heirs
desired to be transferred. Shri V.R. Reddy contended that the valid membership
in favour of deceased member could not be cancelled only because the name of
the nominee in whose favour of the property was to be transferred had taken
some time for selecting such nominee by all the legal heirs.
the arguments, Shri S.B. Sanyal, learned senior counsel appearing for the
respondents, submitted as under:
judgment and order impugned in this appeal is unexceptionable;
father of the appellant paid only Rs.one lakh against the title cost of the
flat of Rs.2.60 lakhs despite several reminders during his life time and as
such, acquired no right, title or interest in his allotted flat No. A-2/5 under
Section 87 of the Act and under Rule 153 of the Rules framed thereunder;
The present appellant cannot claim any such title or interest over the same by
way of inheritance. The modality for such devolution by inheritances are
stipulated under Section 80(1)(a),(b) & (c) of the Act.
appellant having failed to comply with such formalities of the claim, automatic
entitlement to the right, title and interest in the flat was no longer
available to the appellant.
the directions of this Court dated 13.4.1998, the nomination register along
with the zerox copy thereof was submitted. The said register is a statutory
register under Section 79 of the Act and Rule 127 of the Rules and is
conclusive evidence that late Sati Prasanna Bhowmick did not appoint any
nominee in respect of his flat.
writ petition filed by the appellant is not maintainable as the
respondent-Society is not a State or even the instrumentality of the State
within the meaning of Article 12 of the Constitution of India. According to Shri
S.B. Sanyal, the Society is an autonomous body, duly governed by an elected
Board under the provisions of the Act and the bye-laws of the Society and the
Society is not recipient of any State assistance in the form of shares, subsidy
loans, working capital etc. and there there is no State control or State
nominee or Government Officers on deputation to the service of the Society.
Therefore, he would submit that since the Society is governed by the Act, Rules
and bye-laws devoid of any elements of public law warranting remedy in the form
of mandamus, the writ petition is not maintainable.
appellant forfeited her right to the shares and interest of late Sati Prasanna Bhowmick
because of her negligence to prefer the claim with probate, letter of
administration or succession certificate before the Board within the period of
90 days as stipulated in Section 90(1)(b) and (c) of the Act. The appellant has
also discharged her onus for preferring he claim within the stipulated period.
It was submitted that sub-Section (3) of Section 85 of the Act being a special
statute would govern the relationship of the parties and thus the question of
his heirs and successors being automatically entitled thereto does not arise
and the membership which was heritable could be claimed in the manner laid down
under the Act and Rules framed thereunder.
appellant being allottee of Flat No.4-A/2 in the same building is not entitled
to a second flat being No.5-A/2 under Section 85(3) of the Act and Rule 135 (2)
of the Rules.
third party allottee was not made a party to the writ petition.
his arguments, Shri S.B. Sanyal submitted that the appellant is a stranger so
far as Flat No.5-A/2 is concerned.
neither the nominee of late Sati Prasanna Bhowmick nor the one claiming right,
title and interest of late Sati Prasanna Bhowmick under Section 80 (1)(b) and
(c) of the Act within 90 days of his demise to the satisfaction of the Board
and thus forfeited her right to succession to the subject flat under Section 72
and Section 87(2) of the Act and Rule 153 of the Rules.
S.B. Sanyal further submitted that even though the appellant is not entitled to
any right, shares and interest of late Sati Prasanna Bhowmick, the
respondent-Society is ready and willing to refund the amount to the appellant.
have given our thoughtful consideration to the arguments advanced by the
learned senior counsel appearing on either side with reference to the
pleadings, records, annexures and the case laws.
we proceed to deal with the issues in question, it is beneficial to consider
the relevant provisions of the Act and the Rules made thereunder.
2(28), 2(32), 79, ..(pages 6-11) We shall now deal with the question whether
the right of ownership of a flat in multi-storied building under the Act is ineritable
and transferable. The other question as to whether in the event of the deceased
member dies leaving no more nominee any person to inherit the apartment
interest of the deceased member for such apartment should be inherited by all
the legal heirs or by one of the legal heirs in the event other legal heirs
give their rights in favour of such single legal heir may also arise.
87 of the Act deals member's right of ownership and sub- Section(3) of the said
Section makes it abundantly clear that a plot of land or a house or an
apartment in a multi-storied building shall constitute a heritable and
transferable immovable property within the meaning of any law for the time
being in force provided that notwithstanding anything contained in any other
law for the time being in force such heritable and transferable immovable
property shall not be partitioned or sub-divided for any purpose whatsoever.
terms of the Act and the Rules, the heirs of a deceased person are, therefore,
entitled to inherit the flat allotted to the deceased as in the instant case.
Admittedly, the flat in question was allotted to the father of the appellant
who died thereafter and as a consequence thereof, the heirs of the said
deceased became and would be entitled to the estate and as a result thereof to
the said flat with proportionate interest in the land.
80 of the Act deals with disposal of the deceased member's share or interest
and clause (b) of sub-Section(1) speaks that if there is no nominee or if the
existence or residence of the nominee cannot be ascertained by the Board or if,
for any other cause the transfer cannot be made without unreasonable delay to
the person who appears to the Board to be entitled in accordance with the
Rules, possession of such shares or interest as part of the estate of the
deceased members; or sub-Section (c) on the application of the person referred
to in clause (b) within three months from the date of death of member to such
person as may be specified in the application which clearly indicates that
while disposing of deceased member's share or interest the preferential claim
always goes to the heirs and legal representatives of the deceased member in
absence of any nominee.
82(b) of the Act is very specific that notwithstanding anything contained
elsewhere in this Act or any other law for the time being in force when the
membership of a member by a cooperative society referred to in clause (a)
terminates by reason of death or any other cause his possession of, or interest
in, in land held by him under Cooperative Society shall vest in his heirs or in
the person, if any, nominated by him under Section 79, if such heir is willing
to be admitted as a member of the Society.
80(c) of the Act makes it clear that on the death of the member of the Society,
his share or interest in the Society shall be transferred on the application of
the person referred to in clause (b) within three months from the date of the
death of the member of such person as may be specified in the application.
Therefore, transfer of shares or interest can be made only by a Society and not
by the legal heirs because if it is read by a Cooperative Society after the
word "transfer" then the meaning and application becomes clear which
means it is an obligation of the Society to transfer the share or interest of
the deceased member within the stipulated period referred to in Section 80 of
disposing of the appeal, the learned Judges of the Division Bench of the High
Court gave much stress on sub-Section (3) if Section 85 of the Act as also Rule
135 of the Rules taking the present case to be a case for admission of
membership which is not in the instant case. In the present case, the question
of admission of membership becomes absolutely immaterial, the real question,
however, is of transfer of devolution of interest of a deceased member. The
appellant being one of the heirs of the deceased member was and still is
entitled to succeed to the estate of the deceased member as per the mandatory
provisions of the statutes and that being so the right, title and interest of
the deceased member in the apartment of the Society devolves upon his heirs and
in that background , Section 85(3) and Rule 135(5) neither have nor can have
any application in the instant case because there cannot be any manner of doubt
that on the death of a member of a Society his share or interest in the Society
shall, in the absence of a nominee, be transferred to a person who appear to
the Board to be entitled to in accordance with Rules, possession of such
interest as part of the estate of the deceased member and herein in the instant
case the son who himself is admittedly not a member of the Society in question
or any other Housing Society became entitled to be considered for such
allotment immediately he gave notice to the appropriate authority which too
long before the alleged re-allotment was said to have been made, In our
opinion, the order passed by the Special Officer re-allot the flat to a
stranger even after he had received letter regarding transfer of ownership in favour
of legal heirs in December, 1986, long before such alleged re-allotment,
claimed to have been made in April, 1988, that is, more than 16 months from the
receipt thereof when giving any opportunity of being heard and without deciding
the question as to who was entitled to the said flat in accordance with law.
The said action of the Special Officer who is a statutory functionary was not
only improper but also illegal, arbitrary and motivated.
fact, the respondent-Society has informed that the allotment in favour of the
deceased allottee stood cancelled because of no appropriate person could be
named as legal heir of the allottee in whose in whose favour respondent-Society
was to make the allotment and as such the Society has been threatening of re-alloting
the earmarked flat for the deceased allottee to a stranger ignoring the rights
of the legal heirs.
now brought to our notice that the flat has not been allotted to a third party
and remains vacant. The allotment letter of membership of the flat to the
father of the appellant (Annexure P-4) dated 29.11.1982 clearly stipulates that
the right and the interest in the Society of the member will be governed by the
provisions of the Act, the Rules made thereunder and the bye-laws of the
Society and that the members will also be liable to be discharged his
obligations as the member of the Society in accordance with the abovementioned
Act, Rules and the bye- laws.
then argued by Shri S.B. Sanyal that the appellant being allottee of Flat No.
4-A/2 in the same building is not entitled to a second flat being No. 5-A/2 under
Section 85(3) of the Act and Rule 135 of the Rules. This argument cannot be
countered with reference to the letter dated 6.12.1986, the letter written by
Dr. Subrata Bhowmick to the Special Officer of the Society. The said letter
57 The letter is self explanatory.
Bhowmick, son of late Sati Prasanna Bhowmick brought to the notice of the
Society about the death of his father in August, 1985 and also by intimating
the Society that since their did not leave any nominee, they are taking such
action under the Act and laws to get their father's interest transferred to one
of us-brothers or sisters.
letter has not been noticed by the Division Division Bench.
the argument of Shri S.B. Sanyal has no force at all.
we come to the maintainability of the writ petition. We have already
elaborately extracted the arguments advanced by both the senior counsel on the
question of maintainability of the writ petition and hence, we are not
repeating the same again.
instant case, the Division Bench authorised Mr. Arun P. Sircase, an advocate,
to act as Special Officer and to take immediate steps to have the construction
work continued and while taking steps to try and negotiate with M/s Mukhje and
Associates to have the work done through them. In discharge of his statutory
function, the Special Officer of the Society issued letter dated 6.4.1985
(annexure P-7) to all the members to clear their dues in respect of the flat
allotted to them as soon as possible. The very same Special Officer, exercising
his statutory function, issued a letter dated 1.11.1988 (Annexure P-10_ to the
father of the appellant herein that since no claim for transfer of the interest
of late Sati Prasanna Bhowmick has been made in time by the legal heirs, the
flat in question has already been re-allotted and since no claim for payment of
the value of the share or interest has been made by any person entitled in law
to receive the payment lying in the deceased member's account after deduction
of the amount, if any, payable to the Society. The Society will make payment in
accordance with law.
appellant herein filed a writ petition in question in the nature of mandamus
commanding the respondent therein not to give effect to the letter dated 1.11.1988
issued by the Special Officer of the Society and to forbear from acting on the
basis thereof and pursuant thereto. Thus it is seen that the subject matter of
the writ petition is the order passed by the Special Officer in discharging of
his statutory functions, the writ petition is maintainable in law. The Special
Officer is appointed under the provisions of the Act and as such he is a
statutory Officer and, therefore, he should be regarded as a public authority. Apart
from that Art. 226 of the Constitution is not confined to issue of writ only to
a public authority, the bar extends also to issue directions to any person.
opinion, in a case where the Cooperative Society is under the control of a
Special Officer, a writ would lie.