Basu & Ors Vs. West
Bengal Housing Board
& Ors  Insc 391 (5 August 2005)
Pasayat & H.K. Sema Arijit Pasayat, J.
call in question correctness of the judgment rendered by a Division Bench of
the Calcutta High Court holding that the writ petition filed by them is not
maintainable. Accordingly, it set aside judgment of learned Single Judge who
had entertained the writ petition and given some directions.
dispute related to the allotment of 156 car parking spaces. The appellants who
are occupying B Type flats took the stand that the car parking spaces were to
be allotted only to them and not to A type flat owners. Questioning the
legality of a letter purportedly issued by the Housing Commissioner dated 6th
June, 1995 giving certain clarifications about entitlement of A type flat
owners a writ petition was filed with a prayer that the letter was without any
authority and even if any action has been taken by the respondents-West Bengal
Housing Board (hereinafter referred to as the 'Board') and/or Samdrita
Co-operative Housing Society Ltd (in short the 'Society') in selling the
parking spaces or any issue connected thereto, it was inoperative and invalid.
Learned Single Judge accepted the plea overruling the contention raised by the
Board/Society and A type flat owners who were parties in the proceedings about
maintainability of the writ petition and gave certain directions.
order of the learned Single Judge was questioned in Letters Patent Appeal
before the Division Bench which by the impugned order held that writ petition
would not lie against a society and the writ petition was therefore clearly not
maintainable as no statutory action has been assailed.
only question which arose for consideration was whether the covered car parking
spaces could be sold to both allottees of A and B type units or to B type unit
only. A notice dated 21.5.1995 was issued by the Society proposing to consider
and discuss the matter at its Annual General Body Meeting. Members of the
Society in question comprised of both type of allottees i.e. A and B type
units. The prayer in the writ petition was to declare that the proposed meeting
was convened without any authority.
High Court by the impugned judgment held that a mandamus would lie only if the
duty imposed on the respondent-Society is of public nature and the writ of
mandamus could be issued for enforcing compliance with such public duty. Two
exceptions as noted by the High Court were:
the rights are purely of a private character and
the body against which a mandamus is to be issued is purely a private body with
no public duty.
noted by the High Court that the rights claimed by the writ petitioners are
purely of private character and the Society is a private body with no public
duty, and a writ Court would not embark upon enquiry into disputed questions of
title. Accordingly, the writ petition was held to be not maintainable. It was
noted that the question whether the letter of the Housing Commissioner was an
administrative decision or not was not required to be adjudicated as the writ
petition was not maintainable and since he had not adjudicated any dispute
support of the appeal, learned counsel for the appellants submitted that the
High Court has taken a very technical view without realizing that the rights
which the writ petitioners wanted to enforce are relatable to a scheme framed
by the Board and, therefore, non- observance of the provisions of the scheme
amounted to breach of public duty.
to learned counsel for the respondents the High Court has rightly held that the
writ petition was not maintainable and that there was not even semblance of
rival stands need consideration on the core issue of maintainability of the writ
petition, though several other issues were raised by learned counsel for the
appellants. It is undisputed that the respondent-Society is a co-operative
society constituted on agreement between members thereof who had agreed to
abide by the provisions of the West Bengal Co-operative Societies Act, 1983,
the Rules framed thereunder or the bye-laws framed by the Society. The Society
is undisputedly not a department of the State and is also not a creature of a
statute but merely governed by a statute. Only if it is established that the
mandatory provision of a Statute has been violated, a writ petition could be
maintainable. Before a party can complain of an infringement of his fundamental
right to hold property, he must establish that he has title to that property
and if his title itself is in dispute and is the subject matter of adjudication
in proceedings legally constituted, he cannot put forward any claim based on
the title until as a result of that enquiry he is able to establish his title.
It is only thereafter that the question whether the rights in or to that
property have been improperly or illegally infringed could arise. The dispute
as noted by the High Court essentially related to the claims of two rival
groups of private individuals in relation to common car parking spaces. Learned
Single Judge gave certain directions, which even touched upon the legality of
the sale deeds. It was not open to be dealt with in a writ petition. As
observed by this Court in U.P. State Co-operative Land Development Bank Ltd. v.
Chandra Bhan Dubey and Ors. (AIR 1999 SC 753) in relation to the question
whether a writ petition would lie against a Cooperative Society the question to
be considered is what is the nature of the statutory duty placed on it and the
Court is to enforce such statutory public duty. The question as to entitlement
of the members was to be discussed in the Annual General Body Meeting. The writ
petitioners could not have questioned the decision of the Society to discuss
the matter in the Annual General Body Meeting. We, therefore, find no merit in
this appeal. The Society is free to convene a General Body Meeting and to
discuss the rival claims regarding entitlement. We make it clear that we have
not expressed any opinion on that aspect of the matter. The appeal fails, but
without any order as to costs.