Case: Gayatri De Vs. Mousumi Coop Housing Society Ltd

The 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 flat by the said Society and for an interim order of injunction restraining the Society and the Special Officer from alienating/transferring of the said apartment No.2 to anybody other than the legal heirs of the deceased member and for other reliefs.3. The father of the appellant/writ petitioner - Sati Prasanna Bhowmick has died intestate in August, 1985 leaving behind him the following legalSmt. Gayatri De - Married daughter (Appellant)b) Smt. Atri Das - do-c) Smt. Maitry Roy - do-d) Smt. Anita Sarkar - do-e) Sri Subrata Bhowmick - sonf) Smt. Mita Das - MarriedThe 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-2/5 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.5. The appellants 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 run asThe purchaser shall construct a multi-storied building on the plot of land to be purchased by them as aforesaid. The vendors shall have the right to purchase at least 8 flats in the said building either in the name of themselves or in the name of their nominee or nominees each flat to contain a floor area of about 1268 sq.ft. The purchase price to be paid by the vendors in respect of the said flats be at the same rate as those payable by other purchasers of similar flats in the same building occupying the same position. The purchaser shall not sell any of the said 8 flats unless the same are first offered to the vendors by 60 days previous notice in writing by registered post. In case the vendors do not signify their willingness to purchase within the said period of 60 days the purchaser will be entitled to dispose of the flats to any other person or persons.""12. Subject to the approval of the general meeting of the purchaser the name of the building to be constructed by the purchaser shall be Priti Court and the said name shall not be changed by the purchaser without the previous written consent of the vendors.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 land value.7. Clause 13 of the said letter runs asYour right and interest in the society will be governed by the provisions of the West Bengal Co-operative Societies Act, West Bengal Co-operative Societies Rules and the bye-laws of the Society. You will also be liable to discharge your obligation as a member of the Society in accordance with the above mentioned Act, Rules and bye-laws. You are at liberty to inspect the bye-laws of the society".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 of 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. 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 a 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 or 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.9. By letter dated 6.12.1986, Dr. Subrata Bhowmick, son of Sati Prasanna Bhowmick, since deceased, the erstwhile allottee 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 Co-operative Societies Act, 1983 (hereinafter referred to as the Act) and the laws to get their fathers 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.10. The 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.11. The 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 balance 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.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.

Reasoning:
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.