SATYABRATA SINHA, J. ( 1 ) INTERPRETATION of various provisions of the West bengal Co-operative Societies Act (hereinafter referred to as the Act) and the rules framed thereunder relating to the right of heirs of an allottee of a flat by a Co-operative Housing Society is the subject-matter of this appeal. ( 2 ) THE fact of the matter shortly stated as follows : one Satiprasanna Bhowmick sold major part of his residential property to the appellant society wherefor a deed of conveyance was executed on 27th october, 1989. The consideration in respect of the said transaction i. e. Rs. 1,50,000/- was adjusted as an advance in part payment Of the price of 3 flats' to be given by the said society. He retained one flat in his own name and surrendered the other two flats in June, 1983 to the appellant society which was duly accepted. He died on 18th August, 1985 leaving behind him five married daughters and one married son. Two share certificates had been issued to the said deceased on 30th October, 1980 and the flat being No. A/2 on the fifth floor of Mousumi Apartment was allotted to him by a letter dated 29th November. 1982. A sum or Rs. 1. 00,000- was paid to the said Society for the said apartment whence the original estimated price was Rs. 2. 60,000/ -. ( 3 ) ON or about 6th December, 1986 i. e. after expiry of the period of 3 months Dr. Subrata Bhowmick son of the said Satiprasanna Bhowmick intimated to the Society the factum of his father's death wherein a request was made for time to complete the legal process for transfer of his father's interest to one of the legal heirs. Allegedly no reply was given to the said letter. A reminder was sent on 6th December, 1988, in terms whereof the special officer who was appointed in the mean time was requested to let him know how much the legal heirs owe to the society for the flat. By a letter dated 6th december. 1986 the special officer replied stating that since the transfer of the said deceased's interest was not claimed within the stipulated time i. e. 90 days, the flat has already been reallotted. ( 4 ) ADMITTEDLY, the writ petitioner-first respondent was nominated as a heir to purchase the flat. By a letter dated 6th december. 1986 the special officer replied stating that since the transfer of the said deceased's interest was not claimed within the stipulated time i. e. 90 days, the flat has already been reallotted. ( 4 ) ADMITTEDLY, the writ petitioner-first respondent was nominated as a heir to purchase the flat. It is also accepted that she has already been allotted one flat in the said building and according to the rules, a person cannot be allotted two flats in the same building. ( 5 ) MR. T. H. Sengupta, the learned Counsel appearing on behalf of the appellant raised two questions in support of this appeal. The learned Counsel submits that keeping in view the provisions of the Act and the Rules framed thereunder as the entire consideration money for said allotted flat had not been paid, no title in respect of the flat in question passed to the petitioner and in any event, an option having not been exercised within the stipulated period, question of the said flat in favour of the writ petitioner does not arise, in any event, contends the learned Counsel, as the writ petitioner has already been allotted one flat, allotment of another flat in the said building is impermissible in law. ( 6 ) MR. Himanshu Dutta the learned Counsel appearing on behalf of the respondent, on the other hand, relying on or on the basis of the decisions reported in Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharma raju, reported in AIR 1990 AP 171 . Firzoali Abdulkarim Jivani and others v. The Union of India, reported in AIR 1992 Bom 179 and Arjed Ali Gazi v. State of West Bengal, reported in 94 CWN 515, submitted that the appellant society is a State within the meaning of Article 12 of the Constitution of India and, thus, a writ petition is maintainable against it. The learned Counsel contends that the contention raised before this Bench had not been raised before the learned trial Judge. The learned Counsel submits that no new point can be permitted to be urged before this Court and in support of his aforementioned reliance has been placed on a derision reported in AIR 1993 SC 1265 . The learned Counsel contends that the contention raised before this Bench had not been raised before the learned trial Judge. The learned Counsel submits that no new point can be permitted to be urged before this Court and in support of his aforementioned reliance has been placed on a derision reported in AIR 1993 SC 1265 . ( 7 ) ACCORDING to the learned Counsel, when the original allottee died notice having been given, it was accepted that an order of re-allotment shall be made. The writ petitioner and / or her other sisters and brother being not aware of the legal position, might have erred in nominating the writ petitioner but the same was unintentional. It was submitted that the action on the part of the appellant is mala fide as the flat as still vacant despite alleged re-allotment thereof by the special officer. ( 8 ) THE learned trial Judge upon taking into consideration various decisions has, inter alia, held that the writ petition was maintainable and it was impermissible for the special officer to allot the flat in question in favour of a third party who was not an heir of the original allottee as the same was contrary to the principles of natural justice. The writ petition was disposed of with the following direction :"considering the facts and circumstances of the case, in my view the petitioner should succeed in this writ application. There will be an order quashing and cancelling the said letter dated 1st November, 1988, issued by the Special Officer Mousumi Co-operative Housing Society limited, the respondent No. 3. There will be a further direction to take appropriate steps in accordance with law for transfer of the flat in question in favour of writ petitioner and also to hand-over possession of the same to her upon payment of the balance amount due and payable after adjusting the said sum of Rs. 1. 00. 000/- paid by her father Sati Prasanna bhowmick. The application is accordingly disposed of. There will be no order as to costs. " ( 9 ) THE question as to whether the writ petition is maintainable or not against a Co-operative Society is no longer res Integra in view of a decision of one of us (S. B. Sinha, J.) in Bholanath Roy v. State of West Bengal reported in 1996 (1) CLJ 502 . " ( 9 ) THE question as to whether the writ petition is maintainable or not against a Co-operative Society is no longer res Integra in view of a decision of one of us (S. B. Sinha, J.) in Bholanath Roy v. State of West Bengal reported in 1996 (1) CLJ 502 . In that case upon taking into consideration the decision of Sudani Vanaji Shirsat v. Shetkari Sahakari Sangha Ltd. and others, reported in AIR 1992 Bom 347 and a Division Bench of this Court in Arjed Ali Gazi v. State of West Bengal, 1991 (2) CLT 211 : 94 CWN 515 and various other decisions of the Supreme Court of India and other High Courts as also the decision relied upon by the learned Counsel appearing on behalf of the writ petitioner, viz. Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama raju, reported in AIR 1990 AP 171 , it has been held that a Co-operative Society is not a State within the meaning of Article 12 of the Constitution of India but if a mandatory statutory provision is violated by a society a writ may be maintainable against it. ( 10 ) A Co-operative Society is constituted on agreement between members thereof who agree to abide by the provision of the West Bengal co-operative Societies Act. rules framed thereunder or the bye-laws framed by the society. A Co-operative Society is not a department of the State. It is also nut a creature of a statute but merely governed by a statute like companies Act. In that view of the matter a writ petition would be maintainable only if it is shown that a mandatory provision of a statute has been violated. The learned trial Judge, therefore, was not correct in holding that the writ petition against a Co-operative Society would maintainable on all situations. ( 11 ) THE contention raised by Mr. Sengupta being pure questions of law, we are of the opinion that the same can be permitted to be raised in this appeal and in that view of the matter the submissions of Mr. Dutta that they cannot be permitted to raise in this appeal must be rejected. ( 12 ) LET us now consider the relevant provision of the Act. Dutta that they cannot be permitted to raise in this appeal must be rejected. ( 12 ) LET us now consider the relevant provision of the Act. Section 2 (18)of, the West Bengal Societies Act defines a Co-operative Housing Society to mean a Co-operative Society, the object of which is to provide its members with dwelling house, apartment or lands for construction of dwelling houses or apartments, and maintenance of common services on connection therewith and includes a federation of such societies. Section 2 (28) defines a member in the following terms :"member means a person joining in an application for registration of a co-operative society which is subsequently registered or a person admitted to the membership of a co-operative society after its registration under this Art, and includes a joint member. Explanation. For the purpose of this clause joint member shall mean any one of the persons (including husband and wife and father and son or unmarried daughter) jointly admitted to the membership of a co-operative society. "section 2 (32) of the Act reads thus : "prescribed means prescribed by rules made under this Act. " the word "relative" has not been defined but in terms of Section 2 (38) of the Act but it has the same meaning as in the Companies Act. ( 13 ) SECTION 79 provides for a nomination of transferee which is in the following terms :"subject to the bye-laws of a co-operative society, any member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share of interest of such member on his death. ( 13 ) SECTION 79 provides for a nomination of transferee which is in the following terms :"subject to the bye-laws of a co-operative society, any member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share of interest of such member on his death. " section 80 (b) and (c) read thus : " (b) 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 (subject to the production by such person of probate, letter of administration or succession certificate) appears to the board to be entitled in accordance with the rules to the possession of such share or interest as part of the estate of the deceased member; or (c) On the application of the person referred to in clause (b) within three months from the date of death of the member, to such person as may be specified in the application. " section 82 (b) provides : "when the membership of a member of a co-operative society referred to in clause (a) terminated by reason of death, expulsion, resignation or insanity or any other cause, his possession of. or interest in, any land held by him under the co-operative society shall vest in his heir, executor or administrator or in the person, if any. nominated by him under Section 79, if such heir, executor, administrator or person is willing to be admitted as a member of the co-operative society and is eligible for membership under Section 69. " ( 14 ) RULE 128 deals with the disposal of the members' share or interest and procedure for calculation of value of shares which read thus :" (1) When upon the death of a member of a Co-operative society, the question of transferring the share, or paying interest of such deceased member arises, and the board of such society finds that the deceased member did not make any nomination in accordance with the provisions of Section 79. or that the existence or residential address of the person nominated cannot be ascertained, or that for any other sufficient cause such transfer or payment cannot be made without unreasonable delay, the board may transfer the share or pay interest of such deceased member in favour of or to any person who presents in writing his or her claim for the said share or interest and produces, in support of such claims, probate, letter of administration nr succession certificate issued by a competent court having jurisdiction, and makes a written declaration in an affidavit before a Magistrate that he or she is the rightful claimant, being the legal heir or representative of the deceased. (2) (a) Where a co-operative society has to make a refund of the value of a share, the value of the share shall be deemed to be equal to the amount paid upon the share : provided that where- a portion of the assets is estimated to be bad or doubtful in the latest audited 'belance sheet, and is not covered by funds created out of profits, the board may, for the purpose of such payment, reduce the value of the share, in the same proportions as the aggregate amount of assets which are not bad or doubtful, less the amount of outside liabilities, bears to the paid-up share capital. (b) Where a transfer of share or interest is made, the value of the share of interest shall be deemed to be the sum actually paid by the member for the acquisition of such share or interest. " ( 15 ) RULE 153 provides that a member of a co-operative housing society shall not be entitled to any title or interest in any land, house or apartment unless he has made full payment towards the costs of such land, house or apartment as may be finally apportioned by the society. ( 16 ) CHAPTER - IX provides for special provision for co-operative housing society. ( 16 ) CHAPTER - IX provides for special provision for co-operative housing society. Sub-section (3) of Section 85 reads thus :"a person shall not be a promoter or admitted as a member of a co-operative housing society until he has made a declaration and sworn before an Executive Magistrate to the effect that he is not a member of any other co-operative housing society in West Bengal and that he or any member of his family does not own any house or apartment or plot of land in the city, town or village where the co-operative housing society is located. "sub-rule (2) of Rule 135 reads thus :"in a co-operative housing society the member of members shall not exceed the total number of plots, houses or apartments proposed by a society to be allotted to members under any scheme or project of such society : provided that a member shall be eligible for allotment of only one plot, house or apartment in a housing co-operative society. " sub-section (2) of Section 87 provides that a member of a co-operative housing society shall not be entitled to any title or interest in any plot of land or house or apartment in a multi-storied building until he has made such payment as may be prescribed towards the cost of such plot of land or construction of such house or apartment or both, as the case may be, to the co-operative housing society. Sub-section (3) of Section 87 reads thus : "a plot of land or a house or an apartment in a multi-storied building (including the undivided interest in the common areas and facilities) 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. " ( 17 ) IT is now well settled that if rules have been properly made, the same becomes part of the Act. ( 18 ) A bare perusal of the aforementioned provisions leave no manner of doubt that the appellant does nut 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 provision of the statute. ( 18 ) A bare perusal of the aforementioned provisions leave no manner of doubt that the appellant does nut 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 provision of the statute. The allotment is the business of the society. The writ petitioner-respondent is bound by the provisions of chapter-IX of the said Act. ( 19 ) THE learned trial Judge appears to have placed strong reliance upon the provision of Sections 79, 80 and 82 as also Rules 127 and 128 of the rules but evidently he has failed to take into consideration that keeping in view the fact the entire amount has not been paid, no right, title and interest had passed in favour of the aforementioned Sati Prasanna Bhowmick. ( 20 ) THE deceased Sati Prasanna Bhowmick, thus, despite being a member of the society and despite having been allotted a flat did not become holder of a title in respect thereof. In terms of the provision of Hindu succession Act, only a right, title or interest in immovable property devolve upon his successors in interest. Sub-section (3) of Section 85 of the Act being a special statute would govern the relationship of the parties and in terms thereof the said Late Sati Prasanna Bhowmick did not derive any right, title and interest in the flat in question, and, thus, the question of his heirs and successors being automatically entitled thereto does not arise. Sri Sati prasanna Bhowmick thus, during his life-time merely remained a member and in interims of the provisions of the said Act, the membership which was inheritable could be claimed in the manner laid down under the Act or the rules framed thereunder. It stands admitted that the heirs nominated the writ petitioner after expiry of the stipulated period, who, therefore, could not derive any right contrary to or inconsistent with the provision of the Act. ( 21 ) THEIR right, title and interest, if any, on the death of Late Sati prasanna Bhowmick was only to the extent he had acquired a right. If the rule of the revolution of membership was not adhered to and was not put forward within the time stipulated under the statute, such right stands extinguished. ( 21 ) THEIR right, title and interest, if any, on the death of Late Sati prasanna Bhowmick was only to the extent he had acquired a right. If the rule of the revolution of membership was not adhered to and was not put forward within the time stipulated under the statute, such right stands extinguished. The learned trial Judge was, therefore, not correct in coming to the findings noted hereinbefore. ( 22 ) THE contention of Mr. Dutta that the heirs of Late Sri Bhowmick did not know the rule, and as such might have committed a mistake in nominating the writ petitioner is misplaced as in a case of this nature the doctrine of 'ignorantia Juris Non Excasat shall be attracted. Although the said doctrine does not have any universal application and had many exceptions, in the instant case the writ petitioner alone having been nominated by her brother and other sisters, the consequences emanating from the law would automatically come into force and, thus, she being owner of a flat under the law cannot be allotted another flat; logical corollary of which is that she cannot claim existence of any legal right so as to enable this Court to issue a writ of or in the nature of Mandamus as has been prayed tor. ( 23 ) THE petitioners thus, having failed to show that any mandatory provision of statute has been violated by the appellant society, the writ petition was not maintainable. In fact, the writ petition ought to have been dismissed also on the ground that the special officer rightly or wrongly had reallotted the flat as far back as in the year 1988 in favour of a third party. By reason of allowing the writ application the right of the said third party would be affected but despite the same he had not been impleaded as a party therein in this view of the matter also the writ petition was also not maintainable for non-impleading a necessary party. It is a case where the question of ownership was required to be considered vis-a-vis the right of third party. There cannot, therefore, be any doubt that the writ petition was not maintainable in the peculiar facts and circumstances of this case. ( 24 ) BEFORE parting with this case, however, we may record that Mr. It is a case where the question of ownership was required to be considered vis-a-vis the right of third party. There cannot, therefore, be any doubt that the writ petition was not maintainable in the peculiar facts and circumstances of this case. ( 24 ) BEFORE parting with this case, however, we may record that Mr. Sengupta in his usual fairness has stated that the society does not intend to deprive the heirs of late Sati Prasanna Bhowmick of the amount paid in favour of the society and such amount shall be refunded with interest. We, therefore direct that the amount paid by Sri Bhowmick be refunded to his heirs and legal representatives with interest at the rate of 12% per annum from the date of filing of the writ application till payment. This appeal is, thus, disposed of. In the facts and circumstances of this case we direct that there shall be no order as to costs. Ronojit Kumar Mitra, J. I agree. Appeal allowed.