Case: Gayatri De Vs. Mousumi Coop Housing Society Ltd

public or statutory duty or a public function. This Court, therefore, held that a writ petition filed against the Society by its employee was not maintainable. 50. In the case of General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U.P. vs. Satrughan Nishad and others (2003) 8 SCC 639 , this Court dealt with a case of a Co-operative Sugar Mill. The Bench held that the form in which body is constituted, namely, whether as a Society or Co-operative Society or Company is not decisive and the real status of the body with respect to the control of the Government to be looked into. Applying the principles laid down in the case of Ajay Hasia vs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 , to the facts of the present case, the Bench held that the appellant-Mill was neither an instrumentality nor an agency of the Government and hence was not an other authority under Article 12 of the Constitution. However, the Bench also held that in different facts/situations factors could be found to be overwhelming and indicative of whether the body is an other authority. 51. In the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 , this Court, by majority, was of the opinion that the Council of Scientific and Industrial Research is an authority within Article 12 of the Constitution. On facts and on the material available, this Court recorded a positive finding that CSIR is a Society owned and controlled by the Government. 52. The decision in the case of Ram Sahan Ral vs. Sachiv Samanaya Prabandhak & Anr. (2001) 3 SCC 323 , can also be usefully followed and applied to the case on hand. In this case, the appellant, who was a Clerk in the Co-operative Bank was removed from services for a certain act of misconduct without affording any opportunity to defend himself. His suit challenging the order of removal was decreed by the lower appellate Court. However, the High Court while agreeing with the findings of the lower appellate Court that the impugned order was without jurisdiction and contrary to Regulation 85, set aside the decree on the ground that the suit was essentially one for enforcement of a contract of personal service and was, therefore, not maintainable. Allowing the appeal, this Court held that the status of the District Co-operative Bank is of a co-operative Society registered under the U.P. Co-operative Societies Act, 1965 and constituted under the U.P. Co-operative Land Development Bank Act, 1964. The Bench held that on an examination of different provisions of the rules, bye-laws and regulations unequivocally indicates that the State Government exercises all-pervasive control over the Bank and its employees are governed by the statutory rules prescribing the entire gamut of procedure of initiation of disciplinary proceedings etc. Therefore, the Bench held that the respondent-Bank is undoubtedly an instrumentality of the State and hence amenable to jurisdiction under Article 226 of the Constitution. 53. In the case of U.P. State Co-operative Law Development Bank Ltd. vs. Chandra Bhan Dubey and others (1999) 1 SCC 741 , the maintainability of the writ petition against U.P. State Co-operative Land Development Bank Ltd. was in question. This Court on consideration of the provisions of the Act and the Rules, held that the Bank is an instrumentality of the State or an authority as mentioned under Article 12 of the Constitution and that the service conditions of its employees, particularly in regard to disciplinary proceedings are statutory in nature and hence writ petition filed by its dismissed employees to challenge the order of their dismissal was maintainable. 54. In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of a servant. 55. We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick. 58.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In 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 a consequence thereof, the heirs of the said deceased became and would be entitled to the estate and as a result thereof the said flat with proportionate interest in the land.While disposing of the appeal, the learned Judges of the Division Bench of the High Court gave much stress on sub-Section (3) of the 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 appears 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.40. In our opinion, the order passed by the Special Officer re-allotting 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 without 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.In fact, the respondent-Society has informed that the allotment in favour of the deceased allottee stood cancelled because no appropriate person could be named as legal heir of the allottee in whose favour respondent-Society was to make the allotment and as such the Society has been threatening of re-allotting the earmarked flat for the deceased allottee to a stranger ignoring the rights of the legal heirs.42. It is 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 member will also be liable to discharge his obligations as the member of the Society in accordance with the abovementioned Act, Rules and the bye-laws.In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of ahave, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick.