TMI Blog2004 (4) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... wmick has died intestate in August, 1985 leaving being him the following legal heirs : a)Smt. Gayatri De - Married daughter b)Smt. Atri Das - -do- c)Smt.Maitry Roy - -do- d)Smt. Anita Sarkar - -do- d)Sri Subrata Bhowmick - son e) Smt.Mita Das - Married daughter The 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 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. The appellant's 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 ₹ 13,90,069.28 against which the earnest money amounting to ₹ 7,30,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the life time of Sati Prasanna Bhowmick. By letter dated 6.12.1986, Dr. Subrata Bhowmick, son of Sati Prasanna Bhowmick, since deceased, the erstwhile allotee 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 Cooperative Societies Act, 1983 (hereinafter referred to as the Act ) and the laws to get their father's 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 fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r IX of the said Act ; (c) The heirs nominated after the expiry of the stipulated period could not derive any right contrary to or inconsistent with the provisions of the Act. The writ petition was not maintainable for non-impleading the necessary party and no writ will lie against the respondent-Society. Being aggrieved by and dissatisfied with the judgment of the Division Bench, the appellant filed this appeal by way of special leave petition. We heard Shri V.R. Reddy Shri Tapas Ray, learned senior counsel, appearing for the appellant and Shri S.B. Sanyal, learned senior counsel assisted by Shri Somnath Mukherjee, learned counsel, appearing for the respondents. Shri V.R. Reddy took us through the pleadings, affidavits filed before the High Court as well as before this Court and the annexures. He made the following submissions: He submitted that in the event of death of a member, the legal heirs of such deceased member are entitled to inherit and give allotment of the apartment which the deceased member was entitled to. In the instant case, the deceased member died leaving no more nominating any person to inherit the apartment. According to Shri V.R. Reddy, in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A-2/5 under Section 87 of the Act and under Rule 153 of the Rules framed thereunder; (c) The present appellant cannot claim any such title or interest over the same by way of inheritance. The modality for such devolution by inheritances are stipulated under Section 80(1)(a),(b) (c) of the Act. The appellant having failed to comply with such formalities of the claim, automatic entitlement to the right, title and interest in the flat was no longer available to the appellant. As per the directions of this Court dated 13.4.1998, the nomination register along with the zerox copy thereof was submitted. The said register is a statutory register under Section 79 of the Act and Rule 127 of the Rules and is conclusive evidence that late Sati Prasanna Bhowmick did not appoint any nominee in respect of his flat. The writ petition filed by the appellant is not maintainable as the respondent-Society is not a State or even the instrumentality of the State within the meaning of Article 12 of the Constitution of India. According to Shri S.B. Sanyal, the Society is an autonomous body, duly governed by an elected Board under the provisions of the Act and the bye-laws of the Society and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to deal with the issues in question, it is beneficial to consider the relevant provisions of the Act and the Rules made thereunder. Sections 2(28), 2(32), 79, ..(pages 6-11) We shall now deal with the question whether the right of ownership of a flat in multi-storied building under the Act is ineritable and transferable. The other question as to whether in the event of the deceased member dies leaving no more nominee any person to inherit the apartment interest of the deceased member for such apartment should be inherited by all the legal heirs or by one of the legal heirs in the event other legal heirs give their rights in favour of such single legal heir may also arise. Section 87 of the Act deals member's right of ownership and sub- Section(3) of the said Section makes it abundantly clear that a plot of land or a house or an apartment in a multi-storied building 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion becomes clear which means it is an obligation of the Society to transfer the share or interest of the deceased member within the stipulated period referred to in Section 80 of the Act. While disposing of the appeal, the learned Judges of the Division Bench of the High Court gave much stress on sub-Section (3) if 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 So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the letter dated 6.12.1986, the letter written by Dr. Subrata Bhowmick to the Special Officer of the Society. The said letter reads thus: Page 57 The letter is self explanatory. Dr. Subrata Bhowmick, son of late Sati Prasanna Bhowmick brought to the notice of the Society about the death of his father in August, 1985 and also by intimating the Society that since their did not leave any nominee, they are taking such action under the Act and laws to get their father's interest transferred to one of us-brothers or sisters. This letter has not been noticed by the Division Division Bench. Therefore, the argument of Shri S.B. Sanyal has no force at all. Now, we come to the maintainability of the writ petition. We have already elaborately extracted the arguments advanced by both the senior counsel on the question of maintainability of the writ petition and hence, we are not repeating the same again. In the instant case, the Division Bench authorised Mr. Arun P. Sircase, an advocate, to act as Special Officer and to take immediate steps to have the construction work continued and while taking steps to try and negotiate with M/s Mukhje and Associates to have the work done ..... X X X X Extracts X X X X X X X X Extracts X X X X
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