Gujarat High Court
Daksha D/O Arvindbhai Nanavati @ Daksha ... vs District Registrar Co Operative ... on 13 October, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/21099/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21099 of 2016
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DAKSHA D/O ARVINDBHAI NANAVATI @ DAKSHA PATEL....Petitioner(s)
Versus
DISTRICT REGISTRAR CO OPERATIVE SOCIETIES (HOUSING) &
1....Respondent(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Petitioner(s) No. 1
MR.ROHAN YAGNIK, AGP for the Respondent(s) No. 2
MR. JAIMIN R DAVE, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 13/10/2017
CAV ORDER
1. The petitioner has prayed to amend the petition
whereby, relevant documents regarding their application
to the society for transferring share with declaration of
her brothers is now placed on record which is dated
30.05.2015 and 29.05.2015 respectively, with addition of
para 10.1 to disclose facts of such documents.
Amendment is allowed as prayed for.
2. Heard learned Senior Counsel Mr.Sudhir I. Nanavati
with Mr.Vibhuti Nanavati for the petitioner, learned
advocate Mr.Jaimin R. Dave for the respondent no.2 and
learned AGP Mr.Rohan Yagnik for the respondent no.1.
Perused the record.
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3. Petitioner herein has prayed for appropriate writ and
order in the form of declaration that Registrar of
Cooperative Society being respondent no.1 herein has
failed to discharge his duties and therefore, to quash and
set aside his letter dated 10.11.2016 with further
directions to the respondent no.1 that he should direct
the Respondent no.2 - Society to enter the name of the
petitioner and her two brothers in the Share certificates
of the society for their plot and thereby, to enter their
names in record of rights and in share certificates. It is
further requested to hold and declare that respondent
no.1 has failed to perform his duties in accordance with
law by not quashing the resolution of the respondent
no.2 regarding payment of penalty from its members,
copy of which are produced at Annexures C and D. It is
further prayed that respondent no.1 should direct the
respondent no.2 and call upon them and to accept the
cheque for an amount of unpaid maintenance from the
petitioner without penalty and interest and clear the
accounts forthwith, because petitioner is legal heir of
member of the society and is not aware about the
transaction between her predecessor and respondent no.
2 -Society. It is further prayed to issue writ, order or
direction to the respondent no.1 that respondent no.1
should hold the Chairman and Secretary of respondent
no.2 responsible for non-realization of amount of cheque
by the petitioner. Some sort of interim relief was also
prayed for.
4. So far as factual details are concerned, it is the case of
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the petitioner that mother of the petitioner had expired
leaving behind three heirs amongst which petitioner is
one of the legal heir, as daughter; whereas other two
legal heirs being brothers of the petitioner who are
residing abroad and therefore, after death of the father
of the petitioner, who was member of the respondent
no.2 - Society, names of the petitioner and his brother
are required to be mutated/entered in the Society
record/Share certificate. It is submitted that
unfortunately, respondent no.2 raised baseless disputes
and right of inheritance is denied, which is in violation of
fundamental rights guaranteed under the Constitution of
India. It is further contended that though he so
requested, respondent no.1 has, instead of impressing
upon respondent no.2 to transfer Share certificate in the
name of the petitioner, conveyed the petitioner that it
can be done only after succession certificate is
produced and also it is a dispute between the member
and Society and therefore, he may not be concerned
with such dispute.
5. It is undisputed that Plot no.12 of the Girikunj
Cooperative Housing Society Ltd. situated at New
Sharda Mandir Road, Paldi, Ahmedabad City, was alloted
to its founder member Arvindbhai C. Nanavati and that
he was residing there-in with his family consisiting of his
wife, present petitioner, being daughter and two sons
namely Dr. Nayan Nanavati and Bhadresh Nanavati.
Both sons of deceased are residing abroad since 1971-
72; whereas petitioner is eldest sibling amongst the
heirs of the deceased and she is residing in the same
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premises with her family. On death of Arvindbhai, share
certificate of Society should have been transferred in the
name of Kalavati Arvindbhai Nanavati, widow, with
petitioner and other brothers and after death of mother
of the petitioner on 16.11.2012, share certificate needs
to be transferred in the name of the petitioner with her
brothers. It is further submitted that respondent no.2
Society had issued one circular so as to charge
Rs.1500/- for monthly maintenance as administrative
charges with a rider that if advance payment for an year
is made, then, one would get the benefit of one month's
installment. Therefore, the petitioner has forwarded a
cheque of Rs.16,500/- to the Secretary in advance for the
year 2014-15 on 09.05.2015 with a letter to the
Chairman. Unfortunately, respondent no.2 had neither
issued acknowledgment receipt nor replied to the
petitioner and therefore, ultimately on 06.02.2014,
petitioner has addressed a detailed letter to the
Chairman pointing out the fact that there is no
resolution or bye-law whereby any amount can be
charged beyond amount of maintenance. It was also
pointed out that petitioner and their family were residing
outside Ahmedabad since 2008 and because of the
indifferent health of the mother of the petitioner, who
died at Delhi, probably, amount of maintenance could
not be paid by her. It is further contended that at no
point of time, the notice was issued by the Society for
making the payment within stipulated period from the
receipt of the notice and claiming any interest.
6. However, when knowing about the fact that probably
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maintenance of couple of years had remained unpaid,
petitioner has forwarded another cheque of Rs.54,000/-
towards yearly contribution of maintenance for the years
2011-12, 2012-13 and 2013-14 to the Society. However,
there was no response or reply from the Society even
after letters by the petitioner, and cheques were not
forwarded to the Bank for clearance by the respondent
no.2- Society. On inquiry, Secretary of the respondent
Society has conveyed that reply will be given through
the lawyer. However, even thereafter, there was no
response by the Society. Therefore, petitioner has
addressed one another letter on 31.10.2014, conveying
that, amount, if any, was not paid in time, it was only
because of the reason that petitioner was residing
outside Ahmedabad and there was no intimation to her
because previously, when her mother was alive, she was
taking care of everything.
7. Ultimately, it was conveyed to the petitioner that unless
amount demanded by the Society is paid, the cheques
submitted by the petitioner cannot be accepted and
thereby, Society has failed to accept the amount which is
already paid by the petitioner. Ultimately, Society has
returned cheque of Rs.92,340/- without showing any
calculation or reasons thereof. Such dispute continued
for long and ultimately, Society demanded Rs.1,29,210/-;
whereas fact remains that property was initially held by
Arvindbhai, who expired on 11.05.1984 and after his
death all the properties, were bequethed in the name of
his wife, namely, Kalavatiben and when she died
intestate on 16.11.2011, at New Delhi, property is now
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to be transferred in the names of her sons and daughter
being present petitioner and her two brothers viz.Nayan
A. Nanavati and Bhadresh A. Nanavati. Unfortunately,
though both the brothers have forwarded their
declaration and affidavits that they have no objection if
their names may be added into the record of the Society
with the name of their sister being present petitioner,
Society has come forward with a stand that they will
transfer the property only if succession certificate or
letter of administration is produced with full amount of
maintenance along with 12% interest and 50 % penalty
of such amount. Therefore, petitioner has no option but
to file present petition. Petitioner has thereafter,
pleaded all other reasons in support of such petition and
details of documents annexed with the petition,
resolution of the Society and their communications by
the respondent no.1 which is impugned in this order.
8. The respondent no.2 has filed affidavit-in-sur-rejoinder
contending that unless petitioner is member of the
Society, The District Registrar has no power to deal with
such dispute and thereby,it is dispute between the
petitioner and the society and therefore, no writ can be
issued to respondent no.2 and that Society is not State
and therefore, no writ can be issued against the Society.
In the alternative, it is submitted that if at all, petitioner
is considered as concerned with the Society, then also,
alternative remedy under section 96 of the Gujarat
Cooperative Societies Act is available and therefore,
petitioner may approach the Board of Nominees Court
under such Act and so far as succession certificate is
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concerned, petitioner has to approach the Civil Court,
since, it is only competent to issue succession certificate
under Indian Succession Act, and that Society cannot act
without succession certificate issued in favour of the
petitioner. Thereby, respondents have nothing to say so
far as factual details of the petition are concerned, which
are discussed hereinabove.
9. In sur-rejoinder affidavit, petitioner has relied upon
provision of Section 212 (1) of the Indian Succession Act,
1925 and Section 31 of the Gujarat Cooperative
Societies Act, submitting that succession certificate is
not required and that Society is duty bound to transfer
the property upon death of its member to his/her legal
heirs.
10. Thereby, facts and circumstances are very much
clear on record which confirms that Society is by all
means bound to transfer the Share certificate in the
name of legal heirs and there is no need to ask for
succession certificate for the purpose because of
provisions of Section 31 of the Act. Moreover, pursuant
to provisions of Section 24 (2) of the Act, if Society does
not communicate any decision within a period of three
months from the date of receipt of the application by the
Society for admission of any person, then, such person/s
shall be deemed to have been become member of the
Society. It is admitted position that Society has remained
silent for long time. It is also admitted position that even
after intimation to respondent no.1, who has to supervise
the activities of such society, he has also failed to see
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that Society acts in accordance with provisions of law
and therefore, there is need to direct the respondent
no.1 to see that Society takes care of application in time,
and in the present case, if Society has not responded
within three months from the date of application i.e.
30.05.2015 then property would be deemed to have been
transferred in favour of petitioner.
11. Even though, it is settled legal position, the
respondent is relying upon the decision in the case of
S.S.Rana V/s. Registrar, Cooperative Societies reported
in 2006 (11) SCC 634 submitting that Cooperative
Society is not a State within the meaning of Article 12 of
the Constitution of India and therefore, High Court has
no jurisdiction to issue writ against it. However, the fact
remains that though direct writ cannot be issued against
the Cooperative Society, if District Registrar,
Cooperative Society does not act in accordance with law,
then, direction can certainly be issued against him and
in the present case, if such directions are touching upon
the Act of the Cooperative Society and, if petitioner has
joined Cooperative Society as one of the party, on the
contrary, an opportunity is extended to the Cooperative
Society to represent its case that why writ should not be
issued against District Registrar so as to direct the
District Registrar to see that Cooperative Society
confirms the Act in accordance with law. Therefore, this
judgment would not help the respondent Society.
12. Whereas the petitioner is relying upon the decision
in the case of Indrani Wahi V/s. Registrar of Cooperative
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Society and Ors. reported in 2016 6 SCC 440; wherein
Hon'ble Supreme Court of India has, even in those cases
where there is dispute amongst legal heirs, held that
Society has no option but to transfer the property in
favour of the nominees and legal heirs. This judgment
categorically confirms the rights of legal heirs over the
property in cooperative Society. In view of such
judgment, petitioner is certainly entitled to relief as
claimed for. In view of above facts and circumstances,
the petition needs to be allowed as prayed for.
13. Thereby, the petition is allowed. Thus, the
respondent no.1 is directed to call upon the respondent
no.2 to accept the cheque of outstanding amount without
penalty and interest and to clear accounts forthwith. It is
further held and declared that letter at Annexure-H of
District Registrar is quashed with a direction to the
District Registrar to see that the name of the petitioner
and her brothers are entitled in the share certificate of
the Society for the plot and bungalow under reference.
14. The present petition is allowed in aforesaid terms.
Direct service is permitted.
(S.G. SHAH, J.)
VARSHA
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C/SCA/21099/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21099 of 2016
[On note for speaking to minutes of order dated 13/10/2017 in
C/SCA/21099/2016 ]
==========================================================
DAKSHA D/O ARVINDBHAI NANAVATI @ DAKSHA PATEL....Petitioner(s)
Versus
DISTRICT REGISTRAR CO OPERATIVE SOCIETIES (HOUSING) &
1....Respondent(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2
MR. JAIMIN R DAVE, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 27/11/2017
ORAL ORDER
Heard learned advocate for both the parties. Considering the fact that there is typographical error in order dated 13.10.2017, it is to be corrected as disclosed in note for speaking to minutes dated 16.11.2017. Thereby, the word "entitled" in para 13 is to be replaced with the word "entered". Note for speaking to minutes is disposed of.
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