Calcutta High Court (Appellete Side)
Shubhajit Roy vs The Secretary on 29 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 3309 of 2015
Shubhajit Roy
Vs.
The Secretary, Parnasree Pally Samavaya Samity Limited & Ors.
For the petitioner : Mr. Anirban Ray
Mr. Jayanta Sengupta
Mr. V.V.V. Sastry
Judgement on : 29.03.2017
Ashis Kumar Chakraborty, J.
This revisional application is directed against the order dated May 18, 2015 passed by the West Bengal Co-operative Tribunal (hereinafter referred to as "the Tribunal") in Title Appeal No. 24 of 2012. By the impugned order, the Tribunal rejected the appeal of the revisional petitioner, against the judgment and order dated April 17, 2012 passed by the Joint Registrar Co-operative Societies, Co-operative Directorate (H.Q), West Bengal, as the arbitrator in Dispute Case No. 34/RCS of 2011 thereby, rejecting the dispute case filed by the petitioner, against the opposite party no. 1.
Briefly stated, the facts leading up to the present revisional application are that the opposite party no. 1 is a registered co-operative society, inter alia, with the object of purchasing, taking on lease or otherwise acquiring land, building and other immovable properties for settlement of its members. Having entered into an agreement with the State of West Bengal to execute and complete a development scheme in respect of certain lands situate at Behala, the opposite party no. 1 had offered to sell plots of such land to its various members at a fixed rate. One Jyotsnamoyee Roy, the grandmother of the petitioner, was a member of the opposite party no. 1. By an agreement dated May 26, 1959 between the opposite party no. 1 and Jyotsnamoyee Roy, since deceased, the latter was allotted a piece of land measuring 4.64 cottahs, being Plot No. 176 (hereinafter referred to as "the suit property") under the aforementioned scheme. Upon the death of the said Jyotshnamoyee Roy, her son Dilip Kumar Roy, the father of the petitioner was accepted as a member of the opposite party no. 1 and during his lifetime, the said father of the petitioner paid the full and the final amount of the suit property and he also paid the other necessary charges to the opposite party no. 1. However, on January 8, 1984 the said Dilip Kumar Roy passed away leaving behind the petitioner his son, the proforma opposite party no. 2 his widow and the proforma opposite party nos. 3 and 4 his two daughters. After the death of his father, the petitioner constructed the boundary wall of the suit property. By a letter dated May 18, 2010 the petitioner and his mother, the proforma opposite party no. 2 requested the opposite party no. 1 society to execute and register the deed of conveyance in respect of the suit property, in favour of the petitioner by making him the member of the society. Even the proforma opposite party nos. 2 to 4 also communicated to the opposite party no. 1, in writing that they have no objection to the petitioner being admitted as a member of the society and the suit property being allotted to him. Since, the request of the petitioner and his mother evoked no response from the opposite party no. 1, the petitioner filed the aforesaid dispute case before the learned Registrar of Co-operative Societies, under Section 103 of the West Bengal Cooperative Societies Act, 2006 (hereinafter referred to as "the Act of 2006"), read with Rule 110 of the West Bengal Co-operative Societies Rules, 2011 (hereinafter referred to as "the said Rules") praying for an order of specific performance of contract directing the opposite party no. 1 to execute and register the deed of conveyance in respect of the suit property in his favour, as per Section 103 of the Act of 2006 the said application of the petitioner was heard by the arbitrator and the opposite party no. 1 society contested the said claim case. On April 17, 2012 the arbitrator passed an award rejecting the claim of the petitioner. The arbitrator held that since the petitioner is not the member of the co-operative society, the dispute raised by him is not maintainable and the petitioner has the liberty to move the proper forum to settle the dispute. Feeling aggrieved by the said award passed by the arbitrator the petitioner challenged the same by preferring an appeal before the Tribunal. The opposite party no. 1 contested the said appeal before the Tribunal and raised a contention that the father of the petitioner Dilip Kumar Roy, since deceased was not admitted as a member of the society. After considering all the records, the Tribunal held that the father of the petitioner Dilip Kumar Roy, since deceased was admitted as a member of the opposite party no. 1. By order dated May 18, 2015 the Tribunal, however, held that the petitioner did not file any dispute for any inaction of the opposite party no. 1 to admit him as its member and he has filed the dispute case for specific performance of contract and permanent injunction, but since the petitioner has not yet been admitted as a member of the opposite party he is not entitled to claim such relief. The Tribunal held that the relief sought for by the petitioner are premature and the dispute case for such relief is not maintainable. On these grounds, by the order dated May 18, 2015 the Tribunal dismissed the appeal filed by the petitioner. As stated above, it is the said order dated May 18, 2015 passed by the Tribunal which is the subject matter of challenge in this revisional application. From the affidavits of service filed on behalf of the petitioner it appears that in terms of the order dated October 14, 2015 a copy of the revisional application was forwarded to the opposite party no. 1 by courier service and the latter received the same. Even the proforma opposite parties were served with the copies of the revisional application. However, none appeared either on behalf of the opposite party no. 1 or any of the proforma opposite parties, to oppose this application.
Assailing the impugned order, Mr. Anirban Roy, learned advocate appearing for the petitioner submitted that in the instant case, the Tribunal committed an error of law in not setting aside the award dated April 17, 2012 passed by the arbitrator. The petitioner challenged both the findings of the arbitrator in the award dated April 17, 2012, as well as the impugned order passed by the Tribunal that since he is not yet a member of the opposite party no. 1, the dispute raised by him for obtaining an order of specific performance of contract directing the opposite party no. 1 to execute and register of the deed of conveyance in respect of the suit property in his favour cannot be entertained is vitiated by a patent error of law. Referring to the agreement dated May 26, 1950 entered into between the petitioner's grandmother, Jyotsnamoyee Roy and the opposite party no. 1, annexed to the present revisional application, it was submitted on behalf of the petitioner that the opposite party no. 1 was set up and registered, inter alia, with the object of purchasing, taking on lease or otherwise acquiring lands, building and other immovable properties for the settlement of its members. Therefore, it was argued that as per sub-sections (1) and (2) of Section 102 of the Act of 2006 the dispute raised by the petitioner in the present case as the heir and legal representative of his deceased father, who was a member of the opposite party no. 1 was maintainable before the learned Registrar of Co-operative Societies and the Civil Court or any Consumer Disputes Redressal Forum lacks the jurisdiction to try such dispute, but both the learned arbitrator and the Tribunal went wrong in law to reject the claim raised by the petitioner in the dispute case. In this regard, the petitioner placed reliance on the Special Bench decision of this Court in the case of Anjan Choudhury vs. Anandaneer Co-operative Registered Housing Society and Ors. reported in AIR 1990 Cal 380, the Division Bench decision of this Court in the case of Sisirkana Guha & Ors. vs. Ayakar Grihanirman Samabaya Samity Ltd. & Anr. reported in (2008) 2 CHN (Cal) 428 and the decision of the learned Single Judge of this Court in the case of Manojit Nag Chowdhury vs. Saptaparni Co-operative Housing Society and Anr. reported in AIR 2010 Cal 181.
It was further urged on behalf of the petitioner, that Section 70 of the Act of 2006 provides that it is the duty of the society to transfer and record the name of the legal representative or heir of a deceased member in place and stead of that member so that the right, title and/or interest of such member with regard to the society can vest in his heir/legal representative.
I have carefully considered the materials on record and the arguments advanced on behalf of the petitioner. From the facts of the case already discussed above, there is no dispute that the petitioner's grandmother, that is, Jyotsnamoyee Roy was already a member of the opposite party no. 1 who was allotted the suit property and after her death the father of the petitioner, Dilip Kumar Roy, since deceased was admitted as a member of the opposite party no. 1 society. A bare reading of Section 102 of the Act of 2006 goes to show that any dispute concerning the management or business or affairs of a co-operative society arising between a person claiming through a deceased member and the co-operative society shall be filed before the Registrar for settlement. In the case of Anjan Choudhury (supra) cited on behalf of the petitioner, the Special Bench of this Court, while interpreting the provisions contained in Section 95 of the West Bengal Co-operative Societies Act, 1983 which were pari materia with the provisions contained in Section 102 of the Act of 2006 held that when a dispute arises concerning the business or relating to the affairs of the co-operative society, such business or affairs which the Society is authorised to be concerned with or be involved in order to carry out its objectives under the Act and as chartered by and in its Rules and By Laws would go out of the jurisdiction of the Civil Court under Section 134 of the said Act of 1983. The Special Bench of this Court clarified that if the dispute concerns or relates to something which the society is legally authorised to and required by its Rules and By Laws to undertake, it would squarely come with the provisions of Section 95 of the Act of 1983 and cannot be entertained by the Civil Court and such dispute must be referred to the Registrar. Since, the provisions contained in Section 102 of the Act of 2006 are pari materia with the provisions contained in Section 95 of the Act of 1983, the law laid down by the Special Bench of this Court in the case of Anjan Choudhury (supra) is also applicable for deciding the dispute concerning the management or business or affairs of a co-operative society under the Act of 2006 before the Registrar of Co-operative Society. Therefore, applying the test as laid down by the Full Bench of this Court in the said case of Anjan Choudhury (supra) when the object of the opposite party no. 1 co-operative society is to purchase, take on a lease or otherwise acquire lands, building and other immovable properties for settlement of its members, I find substance in the contention raised on behalf of the petitioner that any dispute raised by an heir and legal representative of a deceased member against the opposite party no. 1 under the Act of 2006 for obtaining allotment/transfer of a plot of land can only be decided by the Registrar of Co-operative Society and not by a Civil Court. The law laid down by the Special Bench of this Court in the case of Anjan Choudhury (supra) has been followed by the Division Bench in the case of Sisirkana Guha (supra), as well as by a learned Single Judge of this Court in the case of Manojit Nag Chowdhury (supra).
Now, the question that falls for consideration is whether the petitioners claim in the present case for an order directing the opposite party no. 1 to execute and register, the deed of conveyance in respect of the suit property was maintainable without claiming any relief for being admitted as a member of the opposite party no. 1.
Undisputedly, at the time of the death of the father of the petitioner the Act of 2003 was in force and with the Act of 2006 coming into force, the said Act of 1983 stood repealed. However, Section 6(2) of the Act of 2006 expressly provides that in spite of repealing of the said Act of 1983, any right or title accrued under the said Act of 1983 shall be deemed to have been accrued under the present Act. Now, Section 76 of the Act of 2006 provides that subject to the by-laws of a co- operative society, any member of such co-operative society may nominate a person in whose favour the co-operative society shall dispose of the share or interest of such member on his death. Further, clauses (b) and (c) of Section 70 of the Act of 2006 provides as follows:
"70(b). if there is no nominee or if the existence or residence of the nominee cannot be ascertained by the board or if the nominee does not claim possession of such share or interest or if for any other reason, the transfer cannot be made within one year from the date of death, to the person who (subject to the production by such person of probate, letter of administration or succession certificate issued by a competent court having jurisdiction) appears to the board to be entitled to the possession of such share and interest as per of the estate of the deceased member, or
(c) on the application of the person referred to in clause (b), within one year from the date of death of the member to such person as may be specified in the application."
In this connection, the provision contained in clause (b) of Section 72 should also be noted which is extracted below:
"72(b). when the membership of a member of a Co-operative society referred to in clause (a) terminates by reason of death, expulsion, resignation, insanity or any other cause, his possession of or interest in, and 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 76, 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 64."
Sub-section (3) of Section 92 of the Act of 2006 also provides as follows:
"92(3). A plot of land or a house or an apartment in a 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 time being in force, such heritable and transferable immovable property shall not be partitioned or sub-divided for the purpose whatsoever."
A reading of the above provisions of the Act of 2006 makes it abundantly clear that a plot of land or a flat in a building of a member of a co-operative society constitutes a heritable and transferable immovable property within the meaning of any law for the time being inforce provided that such heritable and transferable immovable property cannot be partitioned or subdivided for any purpose whatsoever.
In the present case, the decision of the Tribunal that Dilip Kumar Roy, since deceased was already admitted as a member of the opposite party no. 1 society has not been challenged and the same has attained finality. Further, as per the above quoted provisions contained in the Act of 2006, all the heirs of the deceased member, Dilip Kumar Roy were entitled to succeed to his estate comprising the suit property. In the present case, the proforma opposite party nos. 1 to 3, the remaining heirs of the said Dilip Kumar Roy since deceased, communicated their written consent to the opposite party no. 1 for the suit property being transferred in favour of the petitioner. Therefore, when the petitioner is entitled to obtain the transfer of the suit property in his favour, the question of his admission as a member of the opposite party no. 1 was immaterial and both the arbitrator and the Tribunal fell into an error of law in rejecting the claim case filed by the petitioner, on the ground that he is not yet admitted as a member of the opposite party no. 1.
My above view finds support from the decision of the Supreme Court in the case of Gayatri De vs. Mousumi Co-operative Housing Society and Ors. reported in (2004) 5 SCC 90 where the Supreme Court, while dealing with a similar case under the provisions of the Act of 1983, considering the provisions contained in Sections 79, 80, 87(3) of the said Act which were pari materia with the provisions contained in Sections 70, 72(b) and 92(5), respectively of the Act of 2006, held that with the death of a member of the co-operative society, his share or interest in the society shall, in the absence of nominee, be transferred/devolved upon his heirs and legal representatives.
For all the foregoing reasons, this revisional application succeeds and both the impugned order dated May 18, 2015 passed by the learned trial Judge, in Appeal No. 24 of 2012 and as well as the award passed by the arbitrator and the judgment and order dated April 17, 2012 passed by the arbitrator in the Dispute Case No. 34/RCS of 2011 stand set aside. The matter is sent back to the arbitrator to decide the claim of the petitioner in Dispute Case No. 34/RCS of 2011 afresh on merit, in the light of the above findings of this Court and the decision of the Supreme Court in the case of Gayatri De (supra).
Since the above dispute case was filed by the petitioner, in the year 2011, the learned arbitrator is directed to dispose of the said dispute case within a period of three months from the date of the communication of this order.
With the above directions, the revisional application, C.O. 3309 of 2015 stands allowed. However, there shall be no order as to costs.
Let, urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
[Ashis Kumar Chakraborty, J.]