Manpisha Co-operative Housing Society Limited v. STATE OF WEST BENGAL
2009-11-17
TAPEN SEN
body2009
DigiLaw.ai
Judgment : TAPEN SEN, J. (1.) The petitioner is a Housing Cooperative Society Ltd. which has challenged the Order dated 2.11.2007 passed by the Deputy Registrar Cooperative Society (respondent No.3) and communicated to the Petitioner and to the respondent Nos.7 and 8 by letter dated 13.11.2007 as contained in am.jxure P-18 to the writ petition. (2.) The society has also prayed for a writ of mandamus commanding upon the respondents to set aside and cancel the proceedings being appeal proceedings initiated by the said respondent No.3 vide Memo No. 1267 dated 4.10.2007 as contained in annexure P-15. (3.) The petitioner has further prayed for a writ of mandamus commanding upon the respondent authorities and specially, the respondent Nos. 5 and 6 (Commissioner of Police and Officer-in-charge, Lake Police Station) to aid and assist them in implementing the resolutions passed by the general body of the petitioner society. (4.) Finally, the petitioner has prayed for an order of injunction restraining the authorities from giving effect to the Order dated 2.11.2007 referred to above. (5.) The facts of this case, as gathered from the writ petition and the other pleadings, are that one Sri Uma Prasad Ghosh was one of the promoter members of the Society who had been allotted a Flat of an area of approximately 1400 sq.ft. on the south eastern side of the first floor of "Manjusha Bhavan" a multi-storied building consisting of 46 flats and situated on P-15,16 and 17, Gariahat Road (South), Kolkata-700068 (as stated in Paras 2 and 4 of the writ petition). (6.) The said Sri Uma Prasad Ghosh was also issued two shares of the society after his membership was approved on 25.7.1978. Subsequently on 20.3.1992, the said Sri Uma Prasad Ghosh transferred his rights, liabilities, title, interest and possession of the said flat along with his two shares to one Radha Rani Roy (who incidentally happens to be the mother of the respondent No.7). The said transfer of the flat in favour of Radha Rani Roy was approved by the Board of Directors which also approved the application of Radha Rani Roy for reallocation of the two shares in her name and her subsequent induction into the society as a member.
The said transfer of the flat in favour of Radha Rani Roy was approved by the Board of Directors which also approved the application of Radha Rani Roy for reallocation of the two shares in her name and her subsequent induction into the society as a member. The petitioner has stated in Para-5 that upon such approval, the Board then forwarded the case of Radha Rani Roy for final approval of her membership and reallocation of shares vide annexure P-3 appended to the writ petition. (7.) Thereafter, by letters dated 27.2.2003 and 4.7.2003, the respondent No.3 kept the matter pertaining to the approval of membership of Radha Rani Roy on hold, on the ground of some defects in the application, as would be evident from annexure P-4 appended to the writ petition. It is the case of the petitioners that the said Ms. Radha Rani Roy however never took steps to rectify the defects nor did she challenge the decision of the respondent No.3. (8.) In the meantime, one Ms. Anuradha Bose, sister of Radha Rani Roy, sent a legal Notice to the Society on 7.4.2003 vide annexure P-4 objecting to the approval of Radha Rani Roys name as the sole member and prayed, inter alia, that the Society should not act solely on the basis of the Application of Radha Rani Roy. (9.) During the pendency of her application for membership however, Radha Rani Roy expired on 21.1.2004 and after her death, the Society received a letter dated 23.8.2004 from Ms. Anuradha Bose informing them that Radha Rani Roy had left behind a Will. (10.) According to the Petitioner, Radha Rani Roy therefore never became an approved member during her life time and even after a death, the Society never received any application or request from her legal heirs for substitution of their names in her pending Application for membership before the respondent No.3. However, by a letter dated 29.6.2007 (annexure-P6), Ms.
(10.) According to the Petitioner, Radha Rani Roy therefore never became an approved member during her life time and even after a death, the Society never received any application or request from her legal heirs for substitution of their names in her pending Application for membership before the respondent No.3. However, by a letter dated 29.6.2007 (annexure-P6), Ms. Nayantara Roy @ Roshni Roy (respondent No.7) sent a letter to the Secretary of the petitioner society wherein, she stated that her mother had been admitted into the membership of the Society and that her mother had also paid all dues of the Society while she was in Khas possession and enjoying the flat on the first floor situated in the South-east and that her mother, late Radha Rani Roy, had left a Will making her the sale beneficiary of the flat giving only life interest to Ms. Anuradha Bose. She further stated that thereafter the executrix of the Will, namely Ms. Shibani Iyengar, had obtained a Probate from this Court vide PLA No. 186 of 2005 which was communicated to the society by the said executrix. She further stated that since she did not want settle in Kolkata, she had decided to transfer the said flat to Ms. Manpreet Kaur Rawla (respondent No.8) who had also agreed to purchase the same and to abide by the decision of the society. She also stated that Ms. Anuradha Bose had also issued a "no objection" for the transfer since she had only life interest in the flat. She also enclosed a copy of the said "no objection". The respondent No.7 recommended the name of the respondent No. 8 as her nominee as well as the nominee of Ms. Anuradha Bose for purposes of being admitted into membership of the society. (11.) It appears that thereafter the petitioner society wrote a letter to Ms. S. Iyengar, the executrix on 6.7.2007 wherein they stated that there was no objection or denial regarding the probate of the will but so far as membership was concerned, the same had not been approved by the respondent No.3 in favour of Radha Rani Roy due to technical defects and in the meantime, they came to learn from the principal beneficiary of the flat, namely the respondent No. 7, that she wanted to dispose of the flat instead of taking membership of the Society or possession of the flat.
The petitioner Society therefore-further stated that they were restricted to transfer the shares to Ms. Nayantara Roy and therefore, they were trying to clarify the situation and only thereafter they would start the process of transferring the shares and interest of the flat to the respondent No. 7 or her assignee and therefore in that situation, it was difficult for them to hand over the keys of the flat to her (Ms. S. Iyengar). [See annexure-P7]. (12.) It appears that thereafter on 22.7.2007 the matter pertaining to the proposed transfer of the flat of deceased Radha Rani Roy and shares well as the membership issue were discussed in the 23rd Annual General Meeting of the Society and it was resolved that the matter be sent to the legal cell of the Registrar Cooperative Societies for guidance. (13.) It is the further case of the Petitioner that even while the petitioner Society was in the process of examining the legalities of the issues involved, Ms. Nayantara Roy (respondent No. 7) through her Attorney, Ms. S. Iyengar, appointed one Mr. Ajay Rawla, (Husband of the respondent No. 8) as Caretaker of the flat in question and authorised him to occupy the same. Mr. Rawla was further given the authority to depute anyone to stay in the premises for the said purpose. The letter of authority dated 6.8.2007 is annexure P-9. (14.) It is the further case of the Petitioner that it was only later on that the officials and members of the Society realised that in the name of carrying out minor repairs/maintenance, Ms. Nayantara Roy (Respondent No. 7) and her agent were carrying out massive structural alterations inside the flat and therefore the officials of the Society, including the Chairman, Secretary arid other Directors of the Board, upon inspection and upon being satisfied, immediately issued letters on 26.8.2007and 31.8.2007 addressed to the executrix, Ms. S. Iyengar directing that all alterations and modifications be immediately stopped till further discussions and directions from the Cooperative Society. She was also requested to take permission from the Society before undertaking such works of alteration/modification. (15.) Thereafter, in a sudden and curious turn of events, the Respondent No.3 by his letter No. 1002 dated 13.8.2007 (Annexure P-11) directed the Society to dispose of the prayer of Ms.
She was also requested to take permission from the Society before undertaking such works of alteration/modification. (15.) Thereafter, in a sudden and curious turn of events, the Respondent No.3 by his letter No. 1002 dated 13.8.2007 (Annexure P-11) directed the Society to dispose of the prayer of Ms. Manpreet Kaur Rawla (respondent No. 8) pertaining to transfer of shares/membership in respect of the flat in question in accordance with a Circular of the Registrar Cooperative Societies dated 10.4.2007. According to the Petitioner, the said circular dated 10.4.2007 however applies only to members and not to non-members. (16.) The petitioners further case is that such a direction upon the respondent No.3 was therefore not lawful and could not be carried out and therefore, by its letter dated 27.8.2007, the Petitioner wrote back conveying its inability to carry out the direction of the Respondent No.3 and also stated that the matter could not be processed as Radha Rani Roy was not a member and therefore, the same could not be disposed of by Rules and Regulations which were meant only for members. However, from a perusal of the letter dated 27.8.2007 (annexure-P12), it is evident that the petitioner, while referring to the letters of the respondent No.3 dated 10.8.2007 and 13.8.2007 stated that the matter pertaining to transfer of membership, in place of Ms. Nayantara Roy, on the basis of the Probate, could not be arrived at by the Board of Directors due to the following reasons: A. Late Radha Rani Roy applied for membership in our society which was approved by the society itself subject to the approval of D.R.C.S. which unfortunately was not approved during her life time. B. As per the Will of late Radha Rani Roy, Miss Nayantara Roy became the absolute beneficiary but since she was not willing to take membership in our society, requested the society to sell her flat. (17.) Consequently, the petitioner informed the respondent No.3 that his direction was required regarding the approval of the membership and corresponding entries in the Share Certificates. Accordingly, the opinion of the respondent No.3 was sought for as per the law pertaining to the West Bengal Cooperative Societies. This letter is annexure P-12.
(17.) Consequently, the petitioner informed the respondent No.3 that his direction was required regarding the approval of the membership and corresponding entries in the Share Certificates. Accordingly, the opinion of the respondent No.3 was sought for as per the law pertaining to the West Bengal Cooperative Societies. This letter is annexure P-12. (18.) It appears that thereafter, a Special General Meeting held on 23.9.2007 and the matter pertaining to the membership, possession and repair / structural work of the flat were taken up and the following resolutions were as follows: i) Membership with respect to flat SE, 1st floor "Having delibareted upon the membership in respect of the aforesaid flat and issues involved therein, it is hereby resolved that the daughter, and principal beneficiary of the Will, of Late Radha Rani Roy has obtained ownership rights and title of the said flat through inheritants, and hence she is entitled to seek and obtain membership of the society with respect to the flat, the Board shall endeavour to process her such application expediatetly and the Board shall also cross the varecity of all documents including the probate order from the Honble High Court with respect to the last Will of Radha Rani Roy, the last occupier and resident of the said flat, while processing such application. ii) Possession with respect to flat SE, 1st floor "given the peculiar circumstances of the case and the unfortunate "developments within the building of the Society, it is hereby resolved that until the principal beneficiary of the Will of Late Radharani Roy, occupy and take possession of the flat personally, the society office shall take safe custody of the flat to protect the property and structure of the building from damage, and accordingly the Board shall take steps to lock up the flat and keep the keys in the office of the society, with the flat being opened once a week for routine inspection, maintenance and cleaning up of the flat.
To clear all doubts, it is specified that General body does not want any caretakers and/or servants or labourers of non-members to enter into the premises of the society, for the sake of safety and security of all the members and their families." iii) Repair/Structural work inside flat SE, 1st floor "having regard to the serious concerns raised by majority of the members, it is resolved that until the membership of the principal beneficiary of the estate of late Radha Rani Roy is duly approved and granted, no civil structural repair work of any kind shall be allowed to be carried out inside the said flat, and accordingly the Board of Directors shall not entertain any prayers for such work inside the flat and shall further, take necessary steps to maintain the position inside the flat on a "as is where is basis" till the membership with respect of the said flat is duly approved and granted as per WBCS Acts 1983 and WBCS Rules 1987." iv) In resolution Nos. 2, 3 regarding stopping of work was further resolved by the members that a notice be issued to Ms. Nayantara Roy, Mrs. Iyenger with copy of resolution No.3 giving three clear days for stopping the work otherwise general members with BOD will put up the lock in the flat for keeping the societys property in safe condition. (19.) It is evident, upon the perusal of the aforementioned resolutions that the petitioner society resolved that the respondent No.7, being the principal beneficiary of the Will, was entitled to seek and obtain membership of the Society with regard to the flat and the Board was to process such an application expeditiously, cross checking the veracity of all documents including the order passed in the Probate case in respect of the last Will of Radha Rani Roy and that, until the principal beneficiary of the Will, being the respondent No.7, took and c-GCupied possession of the flat personally, the Society would take safe custody of the flat for its protection and keep the keys in its office and the flat would be opened once a week for routine inspection, maintenance and cleaning and therefore, the General Body resolved that it did not want any Caretakers, labourers or servants of non- members to enter into the premises.
The third resolution was that the until the membership of the principal beneficiary was duly approved, no civil structural repair of any kind was to be allowed or carried out and that the Board of Directors would not entertain such prayers and that the position of the flat would be on "as is where is" basis till the membership was duly approved in terms of the West Bengal Cooperative Societies Act 1983 and the West Bengal Cooperative Societies Rules 1987. (20.) On the basis of the aforementioned resolutions and in terms of resolution No.2, it was decided that the Board of Directors would put a lock on the flat for keeping it in a safe condition. It is the further case of the petitioner that the three Resolutions referred to above were duly sent to the office of the respondent No.3 as well as to the Respondent No.7 with a note asking them to abide by the decisions taken and a copy of the said Resolution was also marked for information to the local Police Station. Thereafter, the petitioner has stated in Para-18, that in a sudden and motivated move and in an attempt to bye pass the resolution dated 23.9.2007 referred to above, the respondent No.3 issued the impugned Notice No. 1,2,6 and 7 dated 4.10.2007 vide annexure P-15 invoking powers under section 70 (4) of the West Bengal Cooperative Societies Act 1983, (hereinafter referred to for the sake of brevity as the said Act) read with Rule 120 of the West Bengal Cooperative Societies Rules 1987 (hereinafter referred to as the said Rules) along with section 185 (9) of the said Act read with Rule 135 (3) (b) of the said Rules and summoned the Secretary as well as the chairman and all the Directors of the Society on 16.10.2007 in his Chamber. (21.) In Para-20, the Petitioner has stated that the Society appeared before the respondent No. 3 and submitted its written statement against the proposed appeals and contested the same submitting, inter alia, that the proceedings were not maintainable as Ms. Nayantara Roy (respondent No.7) was neither a member of the Society nor had she applied to get herself substituted as the legal heir in the pending application of her mother, late Radha Rani Roy for membership of the society.
Nayantara Roy (respondent No.7) was neither a member of the Society nor had she applied to get herself substituted as the legal heir in the pending application of her mother, late Radha Rani Roy for membership of the society. They also submitted that the law prohibited them from entertaining two applications for membership and that their submission to the effect that the respondent No. 7 had already become a member by virtue of the Probate, was completely erroneous. They also submitted that the respondent No.7 having not taken any steps to substitute herself in the pending Application, it was impermissible in law for her to even prefer the said Appeal before the Respondent No. 3 and alienate the flat without becoming a member. (22.) The further case of the petitioner is that the respondent No.3 thereafter concluded and disposed of the Appeal by the impugned "illegal" Order dated 2.11.2007 whereby and whereunder by totally bypassing the provisions of the Act and Rules, he directed and granted member ship along with the share and interest of the flat in question on the strength of the Probate in favour of Manpreet Kaur Rawla (respondent No.8) on the condition in the entire sale proceeds be paid to the respondent No.7 by the respondent No.8 and that the outstanding liabilities be borne by the respondent No.8 and that the relevant provisions of the Transfer of Property Act, Indian Registration Act and the West Bengal Cooperative Societies Rules be strictly adhered to. (23.) According to the Petitioner, after the aforementioned Order was passed, a Special General Meeting was held on 9.12.2007 wherein a majority of the members disapproved the said Order dated 2.11.2007 and regretted to note that the Respondent No. 3 had totally overlooked the earlier Resolution adopted on 23.9.2007 vide annexure P-13 quoted above and therefore, they Resolved that legal steps be initiated and that the Resolutions already taken on 23.9.2007 be continued till such time as the conflict was not resolved and the membership issue not settled. The said resolution is marked as annexure P-20.
The said resolution is marked as annexure P-20. (24.) The petitioners has further stated that even before they could take steps in accordance with law and in terms of the aforementioned Resolution dated 9.12.2007 stated above, the Respondent No. 3 and her Agent tried to forcibly enter into the flat and therefore on 13.12.2007, the Society lodged a Complaint before the Officer-in-charge, Lake Police Station vide annexure P-21 but they were surprised to note that instead, the Officer-in-charge asked the Petitioner to get an Order from the Court or to allow the Respondent No. 8 access into the flat. Thereafter at a hearing on 17.12.2007 before the local Police Station, the Officer-in-charge gave time to the Society but only after forcing it to allow the servants/agent of the respondent No.7 to enter and stay in the flat. According to the petitioner, the respondent Nos.3 and 6 are acting arbitrarily and the impugned Order has been passed illegally. (25.) A Supplementary Affidavit has been filed on behalf of the petitioner dated 31.3.2008 wherein its Secretary has stated that after filing of the Writ Petition and after receiving a copy thereof, the respondent No.3 issued a letter dated 20.2.2008 in which a copy of a letter dated 24.12.2007 was enclosed and which was a letter of the respondent No.8 addressed to the Officer-in-charge, Lake Police Station informing him that the learned Executive Magistrate, Alipore had passed an order on 19.12.2007 on an Application filed by her under section 144 (2) of the Cr PC. The Secretary has further stated that the Order dated 19.12.2007 passed by the Executive Magistrate, Alipore referred to in the letter dated 24.12.2007 was however not supplied to the Secretary. The Petitioner has further argued that the respondent No.8 being a stranger-transferee and on the basis of false, mala fide and baseless allegations, had requested the Officer-in-charge to do the needful as referred to above and on the basis of such a letter, the respondent No.8, the respondent No.3 by reason of his letter dated 20.2.2008 brought on record as annexure P-22 to the Supplementary Affidavit, asked the Petitioner to send compliance report. According to the Petitioner neither under the Act nor under the Rules, does the Officer-in-charge of a Police Station have any competence, authority or jurisdiction to act as the executing authority of an order passed by the respondent No.3.
According to the Petitioner neither under the Act nor under the Rules, does the Officer-in-charge of a Police Station have any competence, authority or jurisdiction to act as the executing authority of an order passed by the respondent No.3. (26.) According to the petitioner, the proceedings under section 144 was never brought to the notice of the petitioner or its Secretary or any other Member of the Board as no notice of the said Proceeding was ever served upon them. However a certified copy of the Order of the Executive magistrate dated 19.12.2007 was obtained by the Secretary and they noticed that the Society was not made a party and false allegations were made in the application pertaining thereto and on that basis, the respondent No.8 obtained the order dated 19.12.2007. According to the petitioner, in the said application under section X44, the stranger-transferee respondent No.8 had made a false allegation that the respondent No.7 was a Member of the society but from the order dated 2.11.2007 it was evident that it was the admitted case of the respondent No.7 that she was never a member of the society. (27.) In her Affidavit-in-Opposition, the respondent No.7, while referring to the manner of the transfer of the flat in question by Mr. Uma Prasad Ghosh, has stated that the Society, after observing all formalities accepted the transfer proposal in favour of Radha Rani Roy and the said proposal was duly accepted by the Board of Directors on 14.4.1992 whereafter the Society reallocated the flat and the shares in favour of Radha Rani Roy. Thereafter, at the time of approval of the membership, the Board of Directors in its meeting held on 18.7.2001, regularised the earlier Resolutions and after admitting Radha Rani Roy into the membership of the Society, sent the documents to the respondent No.3 for approval. Radha Rani Roy took possession of the flat on 20th March, 1992 and during her life time she paid all dues of the Society including service charges and after her death, Nayantara Roy (respondent No.7) was paying the dues to the Society from time to time.
Radha Rani Roy took possession of the flat on 20th March, 1992 and during her life time she paid all dues of the Society including service charges and after her death, Nayantara Roy (respondent No.7) was paying the dues to the Society from time to time. (28.) She has further stated that pending the process of formal approval of membership, Radha Rani Roy who was seriously ill, ultimately expired on 21st January, 2004 leaving behind her legal heirs i.e. Sri Utpal Roy, her husband and Nayantara Roy her only daughter, (i.e. the Respondent No.7 herein). She has further stated that Radha Rani Roy, during her life time, had executed her last Will and Testament by which she made her daughter, Roshni Roy alias Nayantara Roy as the sole beneficiary of the flat and as well as of the shares. She also created life interest on her mother, Protiva Bose as well as on her elder sister, Anuradha Bose in the said flat since, at the time of purchase of the said flat, Protiva and Anuradha had invested money which they had inherited from their ancestral property. She has further stated that after the death of Radha Rani Roy, Smt. Protiva Bose (her mother) who used to reside with Radharani Roy in the said flat, also expired on 29th December, 2004. (29.) It is her further case that Smt. Shivani Iyenger, was appointed as the executrix of the Will of Radharani Roy. She (Ms. Iyenger) applied for Probate before this Court vide P.L.A. No. 186 of 2005. Probate was granted on 12.04.2005 and as per the Probate as well as the Will, Roshni alias Nayantara Roy, (respondent No.7) became the absolute legatee/owner of the said flat and of the shares of the Society. Since Protiva Bose had also expired, the question of her life interest in the flat did not arise but, life interest of Anuradha Bose continued. The Respondent No.7 thereafter applied for Membership in place of her mother, Radha Rani Roy, and the Society in its Board Meeting held on 20.5.2006 could not finalize the matter regarding her membership. Thereafter, the attorney of the respondent No.7 contacted the Board of Directors and after discussions, it was decided that there were some difficulties regarding membership.
The Respondent No.7 thereafter applied for Membership in place of her mother, Radha Rani Roy, and the Society in its Board Meeting held on 20.5.2006 could not finalize the matter regarding her membership. Thereafter, the attorney of the respondent No.7 contacted the Board of Directors and after discussions, it was decided that there were some difficulties regarding membership. It was therefore decided that the respondent No.7 would apply for transfer of the said flat by way of relinquishment of her right, title and interest and upon obtaining a "no objection" from Smt. Anuradha Bose who had life interest in the flat. It is the further case of the respondent No.7 that according to a mutual agreement between herself and Anuradha Bose, it was agreed that the flat in question may be sold because neither the Respondent No.7 nor Anuradha Bose would settle in Kolkata or India respectively, because Smt. Anuradha Bose had already settled in Ottawa, Canada. Both of them therefore decided to transfer the flat and the shares to a suitable person and for that purpose, obtained necessary permission from the Society. The society granted permission for transfer of the flat vide their letter No. MCH/048/06-07 dated 16.12.2006 and also granted permission for selecting proposed buyers through paper publication as per statutory provisions. The respondent No.7 had relied upon annexure-R-2 marked collectively in support of her contentions. (30.) She has further averred that on the basis of the said permission, Smt. Sibani Iyenger (who was executrix in respect of Will of late Radha Rani Roy), published an advertisement in "Bartaman Patrika" on 12.4.2007, inviting, intending buyers in respect of the flat and of the shares. Upon receiving quotations, it was found that the highest price offered was Rs. 21,00,000/- by Mrs. Manpreet Kaur Rawla (the respondent No.8). (31.) The respondent No.7 thereafter entered into an Agreement with the said Manpreet Kaur Rawla for transfer of the flat and of the shares. She (respondent No.7) deposited all documents for approval of the transfer as well as the requisites required to be deposited under Rule 135 of the WBCS Rules including the consent letter of Anuradha Bose who had life interest in the flat and shares. The said documents were deposited before the Society on 7.7.2007. The respondent No.7 has relied upon annexure-R3 in support of her contentions.
The said documents were deposited before the Society on 7.7.2007. The respondent No.7 has relied upon annexure-R3 in support of her contentions. It has been further stated by the respondent No.7 that she came to know subsequently that the society was dilly-dallying over the mater and had not accepted the transfer proposal and had also neither accepted the membership of the transferee nor had rejected the same as per provisions of the Statute. She came to learn that the Society was intentionally withholding the matters to the prejudice of the respondent No.7 who had proposed to transfer the said flat and two shares of the society after obtaining permission from them. She submits that according to the provisions of Rule 142 of the WBCS Rules, 1987, the Society cannot with-hold proposals for transfer without proper grounds. (32.) The respondent No.7 has further submitted that she waited for a long time without being told about the fate of the application for membership of the transferee. She also learnt that the Secretary of the Society was intentionally harassing her without valid reasons and in violation of the statutory provisions of Rule 142 of the Rules of 1987. According to her, the Rules categorically provide that the Society cannot withhold a proposal for transfer unless prevented by sufficient reasons and if there be such a reason, the same be communicated to the Transferor as well as to the transferee within a certain period of time as per the statute. The Society however sat tight over the matter causing harassment to the respondent No.7 taking advantage of her innocence and the fact that she is residing outside West Bengal. (33.) The respondent No.7 has further stated that she thereafter requested the respondent No.3 to look into the matter since, according to her, the Secretary of the Society, namely one Samaresh Ganguly, had vested interest and he was personally interested in the flat since his nephew wanted to purchase the same at a "throw-away" price. She has further alleged when the evil design of the Secretary did not mature, then he tried to create a condition so that she would be forced to sell the flat to his nephew. According to her, this was the reason why the Secretary tried to create indirect pressure upon her by not granting permission.
She has further alleged when the evil design of the Secretary did not mature, then he tried to create a condition so that she would be forced to sell the flat to his nephew. According to her, this was the reason why the Secretary tried to create indirect pressure upon her by not granting permission. She has further submitted that out of the six Directors, four are in her favour and all of them had categorically given their consent but the Secretary did not implement the same and sat tight over the issue. She has stated that she is suffering and if it is allowed to continue, then she would suffer irreparable loss and injury which can not be compensated by any other means. (34.) Other similar statements have been made and ultimately, she has stated that when she became almost certain that the secretary will not act in her favour, she therefore had no other alternative but to prefer an appeal under section 85(9) read with section 70(4) of the said Act and Rule 120 of the said Rules before the respondent No. 3 against the society for their inaction and prayed for approval of the proposal for transfer as well as membership of the transferee. (35.) The respondent No.7 has further submitted that the secretary of the society has raised frivolous points in the writ petition to the effect that Anuradha Bose, beneficiary of life interest in respect of the said flat, had issued an objection to the membership without explaining that the said Anuradha Bose had ultimately, withdrawn her objections. Therefore, the entire action of the Secretary is not only mala fide but also reflects his vested interest. The respondent No. 7 has relied upon annexure-R6 in support of her contentions. She has further stated that when Anuradha Bose had given her consent for the sale of the flat and made so many correspondence with the Society with a request that if there was any objection raised by her, the same should be ignored, the Secretary, even after receipt of such letters, did not give any cognizance to the same. (36.) The learned counsel for the respondent No.7 has submitted that the entire action of the Petitioner Society is arbitrary and their action is far from being fair. (37.) Let it be recorded that on 6.8.2009, this Court, after having heard Mr.
(36.) The learned counsel for the respondent No.7 has submitted that the entire action of the Petitioner Society is arbitrary and their action is far from being fair. (37.) Let it be recorded that on 6.8.2009, this Court, after having heard Mr. Avani Pal Singh, and after having considered his submissions, had passed the following Order: * 6.8.2009 W.P. 2726 (w) of 2008 Mr. Avani Pal Singh...........for the Petitioner Mr. Partha Sarathi Deb Barman, Mr. Kamalesh Jha, Mr. Amitava Mitra..........for the Respondent No. 7 Mr. Arunava Ghosh, Mr. Paritosh Sinha, Mr. Soumya Majunder........for the Respondent No. 8 Mr. Pratik Dhar, Miss. Jayeeta Chakraborti, Mr. Ritwik Pattanayak........ for the State-Respondents. After having heard Mr. Avani Pal Singh, learned counsel for the petitioner at length, it appears that one of the principal limbs of his submissions is that Nayantara, who is the successor-in-interest of the flat in question through a probate, had expressed her desire not to become a member and therefore under the Provisions of section 85(9), she has no right to-transfer the apartment as she is still a non-member. It is the further submission of Mr. Singh that any transfer that may be effected can be within the parameters of the West Bengal Co-Operative Societies Act, 1983 only and no deviation of law can be in respect of any person and that too, at the instance of a statutory authority such as the Deputy Registrar, Cooperative Societies who proceeds to apply the Provisions of the said Act as if Nayantara has already been inducted as a member. He therefore, submits that such a concept of the Deputy Registrar of Co-operative Societies was clearly erroneous and liable to be set aside. Having considered the aforementioned submissions, this Court is of the view, taking into consideration the fact that the apartment in question devolved upon Nayantara on the basis of a probate granted by this Court, it would be in the fitness of things and in the interests of justice, keeping the submissions of Mr. Avani Pal Singh in the background, to allow Nayantara, even at this stage, to apply for membership. If such application is made, the concerned authorities shall process it in accordance with law and pass a final order within seven days from the date of receipt of such application.
Avani Pal Singh in the background, to allow Nayantara, even at this stage, to apply for membership. If such application is made, the concerned authorities shall process it in accordance with law and pass a final order within seven days from the date of receipt of such application. The matter shall come up in the list after ten days on which day the parties shall inform this Court further developments that took place or have taken place pursuant to such application being filed by her. For a limited period till 27th August, 2009 therefore, the operation of the impugned order dated 2nd November, 2007 as contained in annexure P-18 shall remain stayed. Put up this matter on the 20th August, 2009 at the top of the list. Let a plain photocopy of this order, duly countersigned by the assistant Registrar (Court), be given to the learned Advocate for the parties, on usual undertakings. (Tapen Sen, J.) (38.) On 20.8.2009, this Court, taking into consideration the submissions of the respondent No. 7 and also taking into consideration the submissions of Mr. Subhajit Basu who appeared for the petitioner and also taking into consideration that notwithstanding the Order dated 6.8.2009, quoted above, the petitioner had merely fixed the matter for 31.8.2009, was of the opinion that this was a violation of the order passed by this Court on 6.8.2009 and therefore, this Court restrained the petitioners from proceeding with the application filed by the respondent No.7 awaiting final Orders of this Court. The order dated 20.8.2009 reads as follows:-"20.8.2009 W.P. 2726 (W) of 2008 Manjusha Co-operative Housing Society Ltd.....Petitioner v. State of West Bengal and Ors.....Respondents For the Petitioner : Mr. Subhrajit Basu For the Respondent No.7 : Mr. P.S. Deb Barman Mr. Kamlesh Jha Mr. Amitava Mitra For the Respondent No. 8 : Mr. Arunava Ghosh Mr. Soumya Majumder Mr. Paritosh Sinha For the State : Mr. Pratik Dhar Ms. Jayeeta Chakraborti Mr. Sujoy Roy. On 6.8.2009 Mr. A.P. Singh, who was appearing for the petitioner, was heard at length and he had submitted that since the respondent No.7 was not a member, therefore under the provisions of section 85(9), she had no right to transfer the apartment.
Paritosh Sinha For the State : Mr. Pratik Dhar Ms. Jayeeta Chakraborti Mr. Sujoy Roy. On 6.8.2009 Mr. A.P. Singh, who was appearing for the petitioner, was heard at length and he had submitted that since the respondent No.7 was not a member, therefore under the provisions of section 85(9), she had no right to transfer the apartment. This Court considering the aforementioned submissions and also considering the fact that the flat/apartment had devolved upon Nayantara on the basis of a probate granted by this Court, directed the Authorities to process the application for membership which was allowed to be filed even at this stage and pass a final order thereon within seven days from the date of receipt of such application. Today when the matter has been called out, Mr. Subhrajit Basu, learned counsel appearing for the Petitioner, states that the Application was received on 8.8.2009 and the Board of Directors fixed the matter at a Special General Meeting on 31.8.2009, he produced the photocopy of the Minute Book for the perusal of this Court which is taken on record. Since the Board of Directors have now fixed the matter on 31.8.2009, it is clearly therefore in violation of the Order passed by this Court on 6.8.2009 which ought to have been followed and final orders taken within seven days from the date of receipt of the Application. Since the Application is said to have been received on 8.8.2009, seven days lapsed on the 15th August, 2009. It is thus evident that the Petitioner is not even inclined to follow the orders of this Court. Under such circumstances, this Court now restrains the respondents from proceeding with the application that was filed by the private respondent No.7 and which is supposed to be taken up for consideration on 31.8.2009 awaiting final orders of this Court and directs that the matter be taken up for final disposal tomorrow at the top of the list. Supplementary Affidavit filed by the Private Respondent No. 7 is taken on record. (Tapen Sen, J.)" (39.) Mr. Abani Pal Singh, learned counsel appearing for the petitioner has submitted that the impugned order dated 2.11.2007 is absolutely illegal and de hors the provisions of the Act and the Rules. He submits that it is only a member who can transfer a property.
(Tapen Sen, J.)" (39.) Mr. Abani Pal Singh, learned counsel appearing for the petitioner has submitted that the impugned order dated 2.11.2007 is absolutely illegal and de hors the provisions of the Act and the Rules. He submits that it is only a member who can transfer a property. He submits that in the instant case, the respondent No.7 had herself admitted in her letter dated 29.6.2007 (annexure P-6) that she did not want to take membership of the cooperative society although she had acquired right, title and interest over the flat in question by virtue of the Probate granted in her favour by this Court. He submits that in the face of such a statement of the respondent No.7 who had stated that she was not interested in becoming a member and in view of her not having taken any steps for substitution of her name in the pending application of her mother for membership of the society, she did not acquire any right whatsoever under the West Bengal Cooperative Societies Act 1983 to pray for transfer of the property in question in favour of a third person. He submits that under the provisions of section 85 (9) of the said Act, it is only a member of the cooperative society who has been conferred with the right to transfer and no such right has been conferred upon a non-member. He further submits that under the provisions of section 70(4) of the Act, if a person whose application for membership has been refused, such a person has been conferred with the right to Appeal but the Respondent No. 7, who has not even applied for membership, could not have filed an Appeal and therefore, the impugned order, arising out of such an appeal filed by the respondent No. 7, was not at all maintainable and consequently the impugned order is fit to be set aside. He further submitted that in the instant case, the mother of the Respondent No. 7, (namely Radha Rani Roy) had applied for membership on 2.3.1992 vide annexure P-3 but before any order could be passed thereon, she died.
He further submitted that in the instant case, the mother of the Respondent No. 7, (namely Radha Rani Roy) had applied for membership on 2.3.1992 vide annexure P-3 but before any order could be passed thereon, she died. Consequently her application stood pending and in the meantime on 27.2.2003 it came to be noticed from the communication of the Deputy Registrar, Cooperative Societies that the matter pertaining to the approval of membership of Radha Rani Roy suffered from some technical defects inasmuch as a fresh agreement was required and that the Resolution of the Board of Directors regarding change of membership was not in order and that a "No-objection Certificate" from the Bengal Housing Federation was required along with a resignation letter under Rule 142(3) of the said Rules. (40.) He further submits that the action of the Society was all along fair and reasonable and that the only reason why the Society was objecting was because of the fact that the respondent No. 7 had not even obtained membership of the society. He referred to the resolution No. 1 taken in the meeting of the 23rd September, 2007 which has already been quoted above and in which the society had resolved that the daughter, being the principal beneficiary of the Will, was entitled to obtain membership and the Board would endeavour of process such an application expeditiously cross checking the veracity of the documents including the Order of Probate of the High Court. He further submitted that instead of accepting such a reasonable resolution, the Executrix suddenly authorized a complete stranger on 6.8.2007 to occupy and repair the flat, thereby disregarding the resolution of the society. He further submitted that the society had repeatedly asked the executrix to stop work but in spite of so many facts and circumstances, all of a sudden the respondent No.3 issued a letter dated 13.8.2007 vide annexure P-11 wherein, while referring to the correspondence in connection with membership to a new transferee in place of Nayantara Roy, the Secretary of the Society was requested to dispose of the prayer of the respondent No.8 in terms of the Memo including memo dated 10.4.2007 which, according to Mr. Abani Pal Singh, is a Circular that pertains only to members and therefore, not at all applicable either in the case of the respondent No.7 or in the case of respondent No.8. Mr.
Abani Pal Singh, is a Circular that pertains only to members and therefore, not at all applicable either in the case of the respondent No.7 or in the case of respondent No.8. Mr. Singh then laid much emphasis on the provisions of section 143 of the Act read with the provisions of section 85 (1) (3) and submitted that the provisions of the West Bengal Cooperative Societies Act 1983 shall have overriding effect and therefore the impugned order dated 2.11.2007 which has the effect of making directions in contravention of the said Act, is totally illegal and deserves to be set aside. Learned counsel then drew the attention of this Court to the observations of the respondent No.3 himself in which he has stated that the respondent No.7 (Nayantara Roy) was not interested in taking up the membership of the Society. He submitted that when the Respondent No.3 was himself aware that the respondent No. 7 was a not a member, then he ought not to have proceeded to consider the Appeal filed by her under section 70(4) which clearly lays down that an appeal shall lie at the instance of a person whose application for membership has been refused or deemed to have been refused. In the instant case, since tine did not even apply for membership, the question of attracting the provisions of section 70(4) did not arise at all and therefore, the Appeal itself should have been thrown out at the very threshold. Learned counsel then submitted that none of the ordering portions of the impugned order dated 2.11.2007 can be said to be worthy of being complied with because each those portions deal with only members and not to non-members. (41.) Thus, upon a perusal of the submissions as well as pleadings, what appears is that the Society insists that the Co-operative Societies Act 1983 and the Rules framed thereunder must be strictly complied with. The Society also insists that the permission to transfer having been conferred only upon a member by reason of section 85(9), such an intention cannot be initiated at the instance of a non-member.
The Society also insists that the permission to transfer having been conferred only upon a member by reason of section 85(9), such an intention cannot be initiated at the instance of a non-member. (42.) Such a stand of the society is also clearly indicated in its own resolution dated 23.9.2007 which clearly resolves that the daughter, being the principal beneficiary of the Will, has obtained ownership rights and title of the flat therefore, she is entitled to seek and obtain membership of the society. Upon the perusal of the facts and circumstances of the case it is further evident that the respondent No.7 is the daughter of Radha Rani Roy who had purchased the flat in question and had also filed an application for membership on 2.3.1992 i.e. in the same year when she had purchased flat in question. She died on 21.1.2004 (as has been stated in para 7 of the writ petition). In other words, between the period when she filed her application on 2.3.1992 and the date on which she expired on 21.1.2004, 14 years had gone by and yet, no one bothered to deal with her application and it was only on 27.2.2003 and 4.7.2003 (after almost 13 years from the date of her application) that the Deputy Registrar, Cooperative Societies informed the secretary of some technical defects in the matter pertaining to approval of her membership. (43.) Why should then the respondent No.7 be defeated with a right that she inherited right only by reason of inheritance but also by reason of a Will and consequential Probate granted by this Court ? Once the property vested in her mother and once the property devolved, upon the respondent No.7 by reason of the Probate, the Society was absolutely right on 23.9.2007 when they said that she was entitled to obtain and seek membership and that she had obtained ownership rights and title of the flat in question through inheritance.
Once the property vested in her mother and once the property devolved, upon the respondent No.7 by reason of the Probate, the Society was absolutely right on 23.9.2007 when they said that she was entitled to obtain and seek membership and that she had obtained ownership rights and title of the flat in question through inheritance. It is strange that if such a fair stand had been taken by the Society on 23.9.2007 then why did it choose not to comply with the Order of this Court which was passed on 6.8.2007 in which, this Court, even at that stage, had thought it fit to allow the respondent No.7 to apply for membership observing that after such an application was made, the petitioner society / concerned authorities shall process it and pass final orders within 7 days from the date of receipt of such application? From the supplementary affidavit filed by the respondent No.7, it is evident that she filed such an application on 8.8.2009 but the petitioners and/or their concerned officers were not at all interested in complying with the order and instead, they merely procrastinated and delayed the same in the teeth of a specific direction of this Court passed on 6.8.2009. They thought it fit to merely fix the matter on 31.8.2009. Let it be recorded that Mr. Subhajit Basu, who had appeared before this Court on 28.9.2009, had stated that the application of the respondent No. 7 had been received on 8.8.2009 and therefore 7 (Seven) days after 8.8.2009, lapsed on 15th August, 2009. Instead of giving any reasons, the Board of Directors straight way fixed the matter on 31.8.2009 in clear violation of this Courts Order passed of 6.8.2009 without even bothering to pray for modification on he said Order dated 6.8.2009 or for extension of the period of 7 days. Under these circumstances, this Court passed another Order on 20.8.2009 quoted above restraining the society/petitioners from proceeding with the application awaiting final Orders of this Court. (44.) It is thus apparent that the conduct of the petitioner cannot be said to be fair at all.
Under these circumstances, this Court passed another Order on 20.8.2009 quoted above restraining the society/petitioners from proceeding with the application awaiting final Orders of this Court. (44.) It is thus apparent that the conduct of the petitioner cannot be said to be fair at all. They appear to have denied benefits of succession of the respondent No.7 on one pretext or the other and have harassed her only on the ground that her mother did not become a member of the Society and that she herself chose not to become a member and therefore, she had no right to sell her mothers property. (45.) Such a submission is totally misconceived and is not only vexatious but is also full of malicious intentions. Once the flat became the property of the mother of the respondent No.7, the said flat for all practical purposes, became a "property" within the meaning of Article 300-A of the Constitution of India. Such a constitutional right cannot be allowed to be defeated by a State Legislation like the West Bengal Cooperative Societies Act on such a technical ground that even if a person is constitutionally the rightful owner of a property in question, she cannot part with it only because she has not yet been inducted as a member of the society. More than 13/14 years passed and nothing was done on the application of the mother of the respondent No.7. She (respondent No.7), being the heir of the deceased owner, in the opinion of this Court, is entitled to succeed to her estate and that title and interest of her mother in the apartment devolves upon the respondent No.7. Consequently the bar of eligibility of membership constructed only to permanent residents in West Bengal or who intend to reside in West Bengal permanently, cannot create an embargo upon the constitutional right of a person who succeeds to the estate of a deceased owner by inheritance and by reason of the constitutional right to property under Article 300-A. Once such an eventuality takes place, membership to the society becomes mere clerical. It should have been done immediately and the right of ownership should have been conferred upon her without subjecting such owners of property to such unnecessary harassment.
It should have been done immediately and the right of ownership should have been conferred upon her without subjecting such owners of property to such unnecessary harassment. Under such circumstances, where property devolves by inheritance as well as by Probate, the petitioner society should have acted and taken benefit of the Order of this Court passed on 6.8.2009, but they chose not to do so. (46.) Another essential fact which cannot be missed out is that on 2.4.1992 (just after one month from the date when Radha Rani Roy filed her application), the then secretary of the petitioner Society wrote a letter to her informing that the Board of Directors, in a Meeting held on 8.3.1992, had approved her membership subject to the provisions of the Act and the Rules. (47.) Yet another aspect which cannot also be lost of is that by letter dated 27.8.2007 as contained in annexure P-12 the society had accepted the fact that membership of Late Radha Rani Roy had been approved by the society subject to the approval of the Respondent No.3. If such an approval had been given during her life time, the matter would have been different but for such inaction, the respondent No.7 cannot be blamed if the respondent No.3 did not approve and chose to communicate defects after 13 long years saying that due to some technical reasons, the matter was still pending. The aforementioned fact that the membership was approved by the Society will be apparent from a portion of the said letter dated 27.8.2007 quoted above at para 16 supra. (48.) Under such circumstances this Court is of the view that the action of the petitioner society has not at all been fair and on the contrary, it has been extremely harassing in nature. They have even gone to the extent of ignoring this Courts Order without giving any reasons. (49.) For the foregoing reasons, the writ petition is dismissed. The petitioner society is directed to immediately and forthwith confer the status of membership upon the respondent No.7 after making her a member and then comply with the directions of the Deputy Registrar Cooperative Societies passed on 2.11.2007. The entire exercise must be concluded within 4 (four) weeks from today. Ordered accordingly. Upon appropriate application(s) being made, it xeroxed certified copy of this judgment, may be given/issued expeditiously subject to usual terms and conditions. Writ petition dismissed D.S.