Gujarat High Court
Daksha D/O Arvindbhai Nanavati @ Daksha ... vs District Registrar Co Operative ... on 27 November, 2017
Author: S.G. Shah
Bench: S.G. Shah
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 ]
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DAKSHA D/O ARVINDBHAI NANAVATI @ DAKSHA PATEL....Petitioner(s)
Versus
DISTRICT REGISTRAR CO OPERATIVE SOCIETIES (HOUSING) &
1....Respondent(s)
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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.
(S.G. SHAH, J.)
drashti
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 21099 of 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 MR.ROHAN YAGNIK, AGP for the Respondent(s) No. 2 MR. JAIMIN R DAVE, ADVOCATE for the Respondent(s) No. 1 ========================================================== 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 Page 2 of 9 HC-NIC Page 3 of 10 Created On Tue Nov 28 03:04:40 IST 2017 3 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 3 of 9 HC-NIC Page 4 of 10 Created On Tue Nov 28 03:04:40 IST 2017 4 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 4 of 9 HC-NIC Page 5 of 10 Created On Tue Nov 28 03:04:40 IST 2017 5 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 5 of 9 HC-NIC Page 6 of 10 Created On Tue Nov 28 03:04:40 IST 2017 6 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 6 of 9 HC-NIC Page 7 of 10 Created On Tue Nov 28 03:04:40 IST 2017 7 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 7 of 9 HC-NIC Page 8 of 10 Created On Tue Nov 28 03:04:40 IST 2017 8 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 8 of 9 HC-NIC Page 9 of 10 Created On Tue Nov 28 03:04:40 IST 2017 9 of 10 C/SCA/21099/2016 CAV ORDER 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 Page 9 of 9 HC-NIC Page 10 of 10 Created On Tue Nov 28 03:04:40 IST 2017 10 of 10