Calcutta High Court
Smt. Indrani Wahi vs The Registrar, West Bengal ... on 24 March, 2004
Equivalent citations: (2004)2CALLT444(HC), 2004(3)CHN483, 2004 A I H C 2481, (2004) 2 CALLT 444, (2005) CAL WN 394, (2004) 3 CAL HN 483
Author: P.K. Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT P.K. Chattopadhyay, J.
1. The petitioner herein has filed this writ petition challenging the decisions of the respondents regarding non-approval of membership of the petitioner in the Sarobar-View Co-operative Housing Society Limited on the ground that the nomination made by the late father of the petitioner was not in terms of Section 79 of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of the West Bengal Co-operative Societies Rules, 1987.
2. The parties herein have raised an important issue before this Court relating to the definition of 'family' under the West Bengal Co-operative Societies Rules, 1987 and more precisely whether the definition of 'family' shall also include married daughters under the said West Bengal Co-operative Societies Rules, 1987.
3. The factual aspects of this matter are briefly narrated hereinafter:
4. The father of the petitioner Late B.R. Sengupta was a member of the Sarobar View Co-operative Society Ltd. (hereinafter referred to as the 'the Society') and was allotted a flat in the housing complex of the Society. The Society is registered under the West Bengal, Cooperative Societies Act, 1983 (hereinafter referred to as the 'said Act').
5. In accordance with the provisions of the said Act and the West Bengal Co-operative Societies Rules (hereinafter referred to as the 'said Rules'), the petitioner's father had nominated the petitioner as his nominee in respect of his share and interest in the Society. Consequently, the name of the petitioner was recorded in the register of members of the Society as the nominee of Late B.R. Sengupta.
6. The father of the petitioner died on 22nd July, 2003. The petitioner intimated the society about the death of her father.
7. By a letter dated 13th November, 2003 the Secretary of the Society informed the petitioner that she could not be admitted as a member of the society inspite of the nomination of her father as the said petitioner being the married daughter cannot be accepted as a member of the family of her deceased father. The Secretary of the society also forwarded a copy of the letter issued by the Deputy Registrar of Co-operative Societies (Housing) dated 11th November, 2003 in this regard wherein the said Deputy Registrar specifically held that the nomination made by the late father of the petitioner in her favour cannot be accepted on the alleged ground that the said nomination was not valid in terms of Section 79 of the West Bengal Co-operative Societies Act, 1983 read with West Bengal Co-operative Societies Rules, 1987.
8. Scrutinising the aforesaid written communication of the Deputy Registrar of the Co-operative Societies dated 11th November, 2003 and the subsequent written communication of the Secretary of the Society dated 13the November, 2003, it appears that the real issue dated 13th November, 2003, it appears that the real issue raised in this petition is whether the family of a deceased member can also include a married daughter under the provisions of West Bengal Cooperative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987. The relevant provisions of the said Co-operative Society Act, 1983 and Rules, 1987 are quoted hereinbelow:
"Section 13. Application for registration. (2) Where an application for registration of a Co-operative Society and its by-laws is made by Individuals, the number of applicants shall not be less then ten, each of whom shall belong to a different family.
Explanation.--For the purpose of this sub-section, a family shall be deemed to consist of husband, wife, minor sons and daughters, dependent widow of a predeceased son, minor sons and daughters of a dependent widow of a predeceased, son and husband's dependent parents."
"Section 79. Nomination of transferee.--Subject to the by-laws of a co-operative society, any member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share or interest of such member on his death."
Rule 127. Nomination of transferee.--(1) A member of a co-operative Society may in accordance with the provision of Section 79, nominate in writing any person belonging to his family to whom the share or interest or the value of such share or interest shall, on his death, be paid or transferred under the provision of the Act:
Provided that if a member has no family he may nominate any person to whom such share or interest or the value of such share or interest shall be paid or transferred:
Provided further that such member may, from time to time, revoke such nomination and make a fresh nomination.
(2) Every co-operative society shall keep a register of all persons so nominated.
(3) In case the nominee of a member dies, the member shall report the death to the society/and make a fresh nomination if he so desires.
Explanation.--For the purpose of this rule a family shall have the same meaning as given in the Explanation to Sub-section (2) of Section 13 and shall include major sons and daughters."
9. The learned counsel of the petitioner submits that the major sons and daughters mentioned in Rule 127 of the West Bengal Cooperative Societies Rules, 1987 cannot exclude the married daughters. Mr. Kapur submits that the respondents herein have wrongly interpreted the provisions of the West Bengal Co-operative Societies Act and Rules framed thereunder and illegally refused to accept the nomination made by the late father of the petitioner in her favour.
10. Mr. Bhattacharyya, learned counsel of the respondents, however, submits that the legislature by including dependent widow of predeceased son, minor sons and daughter of dependent widow in the explanation to Section 13(2) made its intention clear to the effect that the married daughter cannot be member of her father's family otherwise dependent widow, being the member of a different other family before the marriage, would not have been included as a member of the family of her father-in-law or husband. Moreover, a lady cannot be regarded as member of two families at a time. Writ petitioner, as such, being the member of the family of her husband cannot by any stretch of imagination be a member of her father's family.
11. Mr. Bhattacharyya further submits that in case of any conflict between the Act and the Rule, the provisions of Act will prevail over the Rules. In the instant case, if there is any confusion with regard to the explanation made in Rule 127 with the explanation in Section 13(2) of the Act, it goes without saying that provision of Section 13(2). explanation will prevail and as such married daughter cannot be termed to be the member of her father's family.
12. Mr. Bhattacharyya also referred to Section 23 of the Hindu Succession Act and submits that married daughter would not be entitled to right of residence in the family dwelling house. The provision of Section 23 of the Hindu Succession Act is quoted hereunder:
"Section 23. Special Provisions respecting dwelling houses.--Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."
13. Mr. Bhattacharyya referred to and relied upon the following decisions in support of his aforesaid contention:
1. (DB) (M.C. Thimmaraju v. Smt. Pattakenchamma and Ors.)
2. (Sripatinath Neogi and Anr. v. Smt. Ira Rant Sur)
3. (DB) (Srimathi Kalamma v. Srimathi Veeramma and Ors.)
14. Mr. Bhattacharyya therefore, submits that in view of the aforesaid provision of the Hindu Succession Act, 1956, the petitioner herein being a married daughter is also not entitled to claim even he right of residence' in the dwelling house of her late father. Mr. Bhattacharyya further submits that the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987 do not provide for nomination in favour of married daughter and the Court cannot rewrite, recast or reframe legislation, as it has no power to "legislate. Mr. Bhattacharyya referred to and relied upon a decision of the Supreme Court reported in AIR 1992 SC 96 [Union of India and Anr. v. Deoki Nandan Aggarwal].
15. The learned counsel of the respondents therefore, specifically urged before this Court that the petitioner herein being the married daughter cannot be a legal nominee of her deceased father under the West Bengal Co-operative Societies Act and Rules framed thereunder.
16. The meaning of a family has been specifically mentioned in the explanation to Rule 127 wherein an exhaustive meaning to the said definition of family has been given. It has been mentioned in the explanation to Rule 127 that the family shall have the same meaning as given in the Explanation (2) to Sub-section (2) of Section 13 and shall also include major sons and daughters.
17. The explanation to Rule 127 specifically includes major sons and daughters as the members of the family. The framers of the rule while including the major sons and daughters within the definition of the family did not put any bar or restriction on the married daughters. The matrimonial status of the major sons and daughters have not been specifically mentioned in the rule.
18. The matrimonial status of the major sons and daughters has been deliberately ignored by the framers of the rules. The respondent authorities herein are, seeking to give a narrow meaning to the definition of 'family' under the West Bengal Co-operative Societies Act and Rules by putting a restriction on the married daughters and refusing to include the married daughter within the definition of the family although the provisions of the Co-operative Societies Act and Rules never excluded the married daughters from the definition of the family.
19. Explanation to Section 13(2) of the West Bengal Co-operative Societies Act categorically includes minor sons arid daughters within the definition of the family and Rule 127 extended the said definition by specifically providing that the family shall have the same meaning as given in the explanation to Section 13(2) of the West Bengal Cooperative Societies Act and shall also include major sons and daughters. Accordingly, in view of Section 13(2) of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of West Bengal Cooperative Societies Rules, 1987 both minor and major daughters are included in the definition of the family.
20. The framers of the rules consciously did not put any restriction on the major daughters while defining family by recognising and/or referring to their marital status. It is well-settled that the Court cannot add or read words in a statute when the meaning of the statute is clear and unambiguous.
21. The respondents herein are seeking to put an embargo and/ or restriction on the married daughters and are refusing to include them in the family of a member even though no such restriction and/or embargo has been clearly spelt out in the West Bengal Cooperative Societies Act and Rules framed thereunder.
22. The learned counsel of the respondents wants to read Rule 127 of the West Bengal Co-operative Societies Rules by incorporating the word 'unmarried' before the word 'daughter' which cannot be permitted.
23. In my view, the word 'include' has been mentioned in the explanation to Rule 127 for the purpose of enlarging the scope and meaning of the word 'family' and not for the purpose of putting any restriction. The decision of the Supreme Court in the case of the Regional Director, Employees' State Insurance Corporation v. High Land Coffee Works of P.F.X. Saldanha & Sons and Anr. is very much relevant in this regard. The relevant portion from the said judgment is quoted hereunder:
"7. .............The word 'include' in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words and phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include.........."
24. Relying upon the decision of the Supreme Court reported in AIR 1992 SC 96 (Union of India and Anr. v. Deoki Nandan Aggarwal), Mr. Bhattacharyya, learned counsel of the respondents has rightly submitted before this Court that the Court cannot add words to a statute and read words into it. But unfortunately, the respondents herein have refused to include the petitioner in the family of her deceased father on the ground that the said petitioner is the married daughter although the provisions of the West Bengal Co-operative Societies Act and Rules framed thereunder do not put such embargo and/or restriction specifically on a married daughter and thus, the respondents herein are seeking to add words to a statute by treating major daughters as only major unmarried daughters and not the married daughters which, in my opinion, cannot be permitted. The relevant portion from the aforesaid decision of the Supreme Court is quoted hereunder:
"14. .............The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be........."
25. Mr. Bhattacharyy, learned counsel of the State respondents referred to Section 23 of the Hindu Succession Act, 1956 in order to narrate the rights of the married daughter in the dwelling house but I do not find how the provision of the Hindu Succession Act is applicable in the facts of the present case particularly when the provisions of the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987 specifically include major daughters in the family of a member without putting any embargo the right of nomination in favour of such member/members.
26. For the aforementioned reasons, I am of the opinion that the respondents herein have misconstrued the provisions of the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987 while refusing to accept the nomination made by the late father of the petitioner, a member of the society, in favour of the petitioner herein,
27. Accordingly, the decision of the society as communicated to the petitioner by the written communication dated 13the November, 2003 being annexure 'P-4' to the writ petition pursuant to the decision of the Deputy Registrar of the Co-operative Societies mentioned in the Memo No. 2957/33/85/KMAH dated 11th November, 2003 being annexure 'P-5' to the writ petition cannot be sustained in law and both of them are therefore, quashed,
28. The respondent Deputy Registrar of Co-operative Societies is directed to grant necessary approval of the membership of the petitioner without any further delay but positively within a period of two weeks from the date of communication of this order and the competent authority of the Sarobar View Co-operative Housing Society Limited is also directed to regularise the membership of the petitioner in the society pursuant to the nomination made by the late father of the petitioner in every respect within a period of two weeks from the date of receipt of formal approval of membership from the Deputy Registrar of Co-operative Societies in terms of this order.
This writ petition is thus allowed.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment be make available to the learned advocates of the respective parties, if applied for, on completion of usual undertaking in this regard.