Calcutta High Court
Bibhuti Bhusan Chakraborty And Another vs Deputy Registrar Of Co-Operative ... on 17 April, 1997
Equivalent citations: AIR1997CAL374, AIR 1997 CALCUTTA 374, (1998) 1 ICC 482
ORDER Bhagbati Prosad Banerjee, J.
1. This is an appeal against the judgment and order dated 21st November, 1994, passed by learned Trial Judge in Matter No. 3059 of 1993, filed by the writ petitioner/appellant. Bibhuti Bhusan Chakraborty and others, and the respondent Nos. 5 and 6, to the writ application, namely Suresh Lal Santuka and Smt. Chand Devi santuka.
2. The writ application was filed by the writ petitioner/appellant. Bibhuti Bhushan Chakraborty, Deputy Registrar of Co-operative Societies (Housing), in Appeal Case No. 1/CMAM of 1991-92, which was filed under sub-sec. (9) of S. 85 of the West Bengal Co-operative Societies Act, 1983. read with sub-rule 3(b) of R. 135 of the West Bengal Co-operative Societies Rules, 1987. The Appellate Authority, by the said order dated 10-5-1993, passed the following order:
"(1) The Managing Committee of the society shall call a Special General Meeting as per S 26(1) of the W.B.C.S. Act, 1983, with specific agenda on the proposed transfer of the flat No. 53 from Mr. B.B. Chakraborty and others, the existing members, in favour of Sri and Smt. Shantuka, the intending trnasferees, within eight weeks from the date of communication of this order:
(2) That the said Special General Meeting shall discuss and consider the proposed admission of Sri and Smt. Shantuka into the membership of the society according to law giving the proposed tranfrees an opportunity to represent their case in such meeting through a written notice served on them:
(3) That the Special General Meeting shall pass through vote a clear resolution in the matter of acceptance of Sri and Smt. Shantuka as members of the society in place of Mr. B. B. Chakraborty and others and communicate the said resolution to the Appellants and Respondents Nos. 2 and 3 within ten days form the date of such meeting; and (4) That any such resolution, if passed through vote by less than 2/3rds majority of the total number of members of the society for disallowing the membership to Respondents Nos. 2 and 3 shall be ineffective, and in that case, Respondents Nos. 2 and 3 shall be admitted into the membership of the society in place of the Appellants in terms of S. 70(4) of the W.B.C.S.Act, 1983, read with R. 120(1) of the W.B.C.S. Rules 1987, on completion of all legal formalities by the proposed transferees and the proposed transferees in this respect."
3. The learned trial Judge, in the judgment and order dated November 21, 1994, had recorded that "both the counsel for the writ petitioners as well as the respondents Nos. 5 and 6 submitted that they would not press for the giving of consent by this court and asked for the remanding of the matter to the Appellate Authority for the purpose of redeciding the issues raised. It is urged that this court should not go into the question of the competence of the appeal but leave the matter to be resolved by the Appellate Authority."
4. So, it is clear that the appellant Mr. Chakraborty and the respondents Nos. 5 and 6, Santukas, have agreed that the learned trial Judge had not to decide the matter on its merits, but to remand the matter to the Appellate Authority for the purpose of redeciding the issues raised and that the appellant and the said respondents Nos. 5 and 6, the Santukas, have abandoned the point of maintainability of the appeal and left the matter to be resolved by the Appellate Authority.
5. It appears that contrary to the submissions and representations made before the learned trial Judge, on the basis of which the learned trial Judge had, accordingly, delivered a judgment, this appeal has been preferred on points which have been abandoned; it is a clear case that a particular stand which was taken by definitely choosing one course in preference to the other, and in this appeal, the appellants have tried to approbate what they have reprobated.
6. We have to proceed with this appeal keeping in view the observations made by the Supreme Court of India in N.Jayaram Reddy v. R.D.O., , wherein the Supreme Court had held that "point of defence which was wilfully and deliberately abandoned by the party in a civil case at a crucial stage when it was more relative and material, cannot be allowed to be taken up later at the sweet will of the party who had abandoned on the point and as the last resort and an afterthought. In fact, in a case where the point has been wilfully abandoned by a party even if in a given case such conclusion is arrived on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that would be disadvantageous to the other party."
7. In this appeal, Mr. Arun Prakash Chatterjee, learned counsel appearing on behalf of the appellant/Bibhuti Bhusan Chakraborty, has submitted that the respondent No. 4/Urbashi Cooperative Housing Society Limited, was wrong and acted without jurisdiction in refusing to transfer the flat held by the appellant, being flat No. 58, of the premises No. 12C. Camac Street, Calcutta, in favour of the respondents Nos. 5 and 6. Mr. and Mrs. Santuka. It was submitted that the appellant/petitioner being a member of the said co-operative society, has a right to transfer his flat with written consent of the said society, which should be, as a matter of course, in case the statutory conditions and restrictions are fulfilled, and that it is submitted that in the instant case the appellant/petitioner has fulfilled the conditions and restrictions laid down in the Act and/or rules framed thereunder, and accordingly, the co-operative society should be directed to give consent for transfer of the said flat in favour of the respondents Nos. 5 and 6. Mr. and Mrs. Santuka.
8. Mr. Chatterjee further submitted that the learned trial Judge was wrong in remanding the case back to the Appellate Authority for deciding the said issue. According to Mr. Chatterjee, the respondent/co-operative society have no right to arbitrarily and unreasonably withhold such permission to transfer the said flat when it is evident that the appellant/petitioner was of advance age and he had a severe heart attack which required him to under go prolonged and expensive treatment and to meet with the medical expenses and to liquidate the debts incurred in connection with the treatment, the appellant/petitioner decided to transfer the said flat in favour of respondents Nos. 5 and 6. Mr. and Mrs. Santuka, who had agreed to help the petitioner by advancing full consideration money pending completion of transfer in compliance with all the formalities.
9. It was further submitted by Mr. Chatterjee that the appellant/petitioner had a heritable and a transferable right in the said flat, and accordingly is lawfully entitled to transfer the same, which could not be resisted by co-operative society and that the reasons and/or the grounds for withholding a consent for such transfer was unlawful and mala fide.
10. It is not necessary to go into the facts of this case in detail within the scope of the appeal, but, the following facts may be stated which are relevant for deciding the issue pending in this appeal.
11. The respondent/co-operative society admitted that the appellant was entitled to transfer the said flat subject to consent of the co-operative society. What the co-operative society have decided not to reject the application for transfer made by the appellant/Bibhuti Bhusan Chakraborty and others, but they have only objection against the transfer being made in favour of the Santukas, in view of the fact the appellant had already entered into an agreement with the Santukas to transfer and assign the said flat in Chakraborty had taken the full consideration money in respect of the said flat under the said agreement, and this fact is evident from the letter dated 8-4-1991, written by the appellant/Mr. Chakraborty to the Secretary of the respondent/co-operative society, wherein he had stated that as he was in financial difficulties due to his heart surgery, he had entered into an agreement with Mr. and Mrs. Santuka of Cuttack to transfer and assign the said flat in their favour and that he had received the consideration in respect of the said agreement and/or transaction and also handed over possession to Santukas and accordingly he sought for permission to transfers his flat. The society objected the said transfer in favour of the Santukas in view of the fact the the members of the said society observed that some persons particularly some women who appeared apparently of questionable repute, were living in the same flat late in night. Some members who claimed themselves to be the friends, were seen frequently visiting the said flat and using it in such a way as to carve out an apprehension in the minds of the occupants of the said society that the flat in question was being used for a purpose other than the residential purpose and that they had learnt that the santukas were permanent residents of Cuttack in the State of Orissa and were influential businessmen of that State and the flat in question was to be purchased by the Santukas for the purpose of using it as the guest house for the Santukas and the family members of the Santukas and/or to oblige senior officials of the public sector undertaking visiting Calcutta and/or the residents of Calcutta.
12. It was further alleged that the complaints were also received particularly from the other flat owners of the said co-operative housing building in this connection, and it found that before the application for transfer was made, the Santukas were remodelling the said flat and in that process the Santukas removed the floor and the outwalls thereby endangering the structural stability of the entire building. In that background, it is stated that the Secretary of the said co-operative society wrote the letter to the appellant/Mr. Chakraborty on 27-4-1991, requiring him to show cause why he should not be expelled from the membership of the society since he was seeking to transfer and part with the possession of the said flat to a third party without the previous consent of the party without the previous consent of the party in writing, and ultimately the application for transfer was considered by the said co-operative society and ultimately the managing committee of the said co-operative society, in its meeting held on 25-10-1991, passed the following resolution:
"In the light of the discussions held with Shri B. B. Chakraborty and his daughter on 20-9-91 and in particular the background and antecedents of Shri and Smt. Santuka being different from that of existing members, the committee decided not to allow this particular transfer, Mr. B. B. Chakraborty and his family members may inform the society the amount they are receiving by way of consideration for the transfer of the flat so as to enable the society of permit a new member or the society's choice to pay the said consideration (if otherwise approved) and to held him in his pursuit."
13. Mr. Mukul Prakash Banerjee, learned counsel appearing on behalf of the Santukas, submitted that the said flat was required for their residence at Calcutta as already stated in the application for membership, but the same was rejected. It was further submitted that the provisions of Chapter IX of the said Act (Sections 85 to 89) provided that membership has to be granted as a matter of course in case flats are available. It was further submitted that Ss. 85(1) and (2) of the said Act provide that the membership shall not be denied if plots or flats are available. The allegations made against the Santukas were denied and it was stated that the Santukas, on affidavit, had stated before the society the purpose for which the flats was sought to be taken, that the said flat was required as the Santukas wanted to open an establishment at Calcutta in addition to existing business at Cuttack and accordingly a residential accommodation was essential at Calcutta. Further, the said flat will be required for their children who have to be admitted in Calcutta for better education and that the wife of Mr. Santuka wants to stay Calcutta for looking after her children for personal reasons.
14. But, in connection with the allegation made by co-operative society, the said flat was required by the Santukas not for residential purpose, but for guest house purpose. Before the learned trial Judge, an affidavit, it was stated by the appellant/Mr. B.B. Chakraborty that:
"I, of course, state there is nothing wrong in using the flat as a guest house in view of the precedent set by Avik Sarkar, another owner of flat No. 1A in premises who has converted the flat purchased by him in to a guest house."
15. Mr. Shaktinath Mukherjee, learned counsel appearing on behalf of the co-operative society, submitted at the very outset that the co-operative society, submitted at very outset that the co-operative society had no rejected the application for transfer nor the co-operative society is standing in the way of transfer of the flat of Mr. Chakraborty, but the members of the co-operative society had serious objection about the persons in whose favour the flat would be transferred. But according to Mr. Mukherjee the issue pending before the court is divided into three parts: the part is Mr. Chakraborty's right to transfer the lat which is not denied and disputed by the co-operative society. The second one is the right of the transferee to get the flat transferred in favour of the transferee to become a member of the said co-operative society.
16. According to Mr. Mukherjee, it is not a case of simply granting a permission to transfer, Mr. Mukherjee submitted that that is the case of the co-operative society that the co-operative society is ready and willing to accord approval to the transferee and the right of Mr. Chakraborty to transfer has not been questioned. But regarding the choice of the personnel in whose favour the transfer has to be effected, they have objection, and accordingly they had not accorded approval of transfer in favour of the Santukas and Mr. Mukherjee has also submitted in the court that when Mr. Chakraborty finds out any other purchaser in whose favour the consent would be given, or the co-operative society may also help him in finding out a suitable transferee at a sum not less than the sum already offered or paid by the Santukas.
17. In this connection, Mr. Mukherjee submitted that the allottees and the occupants of the flats of the said co-operative housing complex comprise mainly of journalists, lawyers, business executives and socially prominent people, and that the co-operative society cannot permit transfer to be made in favour of persons that according to the society (sic), the requirement of consent is peculiar to housing society which is treated on a special footing and differently from other co-operatives. These special considerations arose because of the nature of the rights involved, namely rights pertaining to residents of the individuals. It was pointed out that the need to preserve privacy and peace in residence of persons has all along been recognised under the law and by the courts, and in this connection, Mr. Mukherjee drew our attention to the provisions of section 4 of the Partition Act and section 44 of the Transfer of Property Act, when the common norm was residence of the joint family. With the breakdown of the joint family, the respondents/society submit that the emphasis has shifted from the interest of a family to the need to preserve socially homogeneous group in a residential apartment house. This according to the society, is protected by the requirement of consent by the Board of the Society, otherwise the legislature should not have preserved such a valuable right of consent in the co-operative society. In that event, the legislature would not lay down certain terms and conditions and make it imperative that if these terms and conditions are fulfilled, in that event the consent should be given as a matter of course and/or making the same as a mere idle formality. In this case, on behalf of the society, Mr. Mukherjee submitted that the society has refused to give consent because the transferee has behaved in a manner which was unacceptable and disruptive to the peace and environment of the said multi-storeyed residential building. It was further submitted that before any application for transfer was made, an agreement was entered into the entire consideration money was paid and the flats were transferred and the Santukas had remodelled the flat without sanction and also were creating some sort of nuisance. Under these circumstances, it was submitted by Mr. Mukherjee that the right to privacy is recognised as an enforceable right under the law and/or the Constitution.
18. Section 85(1) of the Act provides that notwithstanding anything contained elsewhere in the Act, but subject to such conditions as may be prescribed, any individual who is permanent resident of West Bengal or who intends to reside in West Bengal permanently, shall be eligible for membership of the co-operative housing society. This provision is meant for initial membership of a co-operative society in view of the fact that section 85(9) of the said Act provides that a member of a co-operative housing society in whose favour a plot of land or a hose or an apartment in a multi-storied building has been allotted, may transfer such plot or house or apartment, as the case may be, with the written consent of the co-operative housing society, under such terms and conditions and in such manner as may be prescribed, to any other person eligible to be a member of the co-operative housing society under sub-section (1). It is also provided that if the co-operative housing society refuses to given its consent to such transfer, it shall record the reasons for such refusal in writing and communicate the same to the member within one month from the date of receipt of his application in this regard, and the member shall have a right of appeal to the Registrar within such period as may be prescribed.
19. Further, sub-section (2) of section 85 provides that any person eligible for membership of a co-operative housing society under sub-section (1) may apply to such society for being admitted as a member thereof, and membership shall not be denied to him if plots of land, houses or apartments in multi-storied buildings constructed or under construction by it are available for allotment to such person on the date of application, and plot of land or house or apartment as applied for shall be allotted to him.
20. The combined effect of sub-sections (1) and (2) of section 85 is that if plots are available, in that event any individual may apply for membership and membership could only be granted in case flats are available and on condition that such a person must be a resident of West Bengal or who intends to reside in West Bengal permanently or who is the permanent resident of West Bengal shall be eligible for membership and that membership shall not be denied to him if plots of land or apartments in multi-storied building are available for allotment.
21. Accordingly, under the combined effect of several sub-sections of section 85, the existing member in whose favour an apartment in a multi-storied building has been allotted, may transfer subject to such terms and conditions and the procedure that may be prescribed as provided in sub-section (9) of section 85 and if the society refuses to given its consent to such transfer, it shall record reasons for such refusal in writing and communicate the same to the members within one month from the date of the receipt.
22. Admittedly, in the instant case, the Cooperative Society had not refused to give consent to transfer, but co-operative society refused to accept the Santukas as members as the other members of the co-operative society had strongly objected against transfer being made in favour of the Santukas. It further being made in favour of the Santukas. It further appears that section 70 of the Act provides for provision for admission as member and the procedures for such membership and that sub-section (4) of section 70 of the said Act provides that any person whose application for admission as member has been refused or deemed to have been refused by the co-operative society he may appeal to the Registrar within such period as may be prescribed and the Registrar shall pass such order thereon as he thinks fit and such order should be treated as final.
23. The West Bengal Co-operative Societies act, 1983, and Rules of 1987 framed under the Act, lay down the terms and conditions of eligibility and granting of membership and the terms and conditions under which the transfer could be allowed. In this connection, the relevant rule 142 of the Rules provides that in all cases of the transfer and letting of land, house or apartment prior permission of the Registrar shall be obtained in addition to written consent of the society and that in no case permission of the Registrar or the written consent of the society shall be withheld arbitrarily where the ground or grounds enumerated in sub-rule (3) of this rule have been satisfactorily made out and the conditions set forth in rule 135(2)(a) have been fulfilled.
24. Sub-rule (3) of rule 142 provides that a member of a co-operative housing in whose favour a plot of land or a house or an apartment in a multistoreyed building has been allotted may transfer by way of sale or usufractuary mortgage as defined in the Transfer of Property Act, 1882 (4 of 1882), such plot or house or apartment, as the case may be on one or more of the following grounds-
(i) that the member has been involved in debts and the transfer by way of sale of usufractuary mortgage is necessary to pay off his creditors:
(ii) that the member is compelled to shift from the locality due to unavoidable circumstances beyond the control of the member;
(iii) that the member is in urgent need of money to meet the expenses of marriage or of education of his son or daughter or that the member is in urgent need of money to meet urgent medical expenses of any of the members of his family or any person fully dependent on him:
(iv) such other grounds analogous to those mentioned above as the Registrar might consider reasonable and justifiable.
25. Rule 135(3)(a) of the said rules provides that for the transfer of land or house or apartment a member shall obtain a written consent of the society and before giving such consent the society shall satisfy itself that-
(i) the transferee is eligible for being a member of the society:
(ii) the transferee has genuine need for residential accommodation:
(iii) the transferor has paid of his outstanding liabilities to the society or, the transferee has undertaken to take over such liabilities of the transfer:
(iv) the transferee formally applies for membership of the society.
26. Rule 135(3) provides the conditions for giving consent of the society in favour of the transferee and rule 142(3) provides the conditions to be fulfilled for granting permission to transfer in favour of the transferor. In other words, the transferor means the member in whose favour flats have been allotted and who intends to transfer. So, it is clear that written consent of the society is a mandatory provision for transfer of land or apartment and the society is required to satisfy itself that the transferee has genuine need for residential accommodations and the transferee is eligible for being member and the transferee formally applied for membership of the society. In this case the transferee, namely the Santukas, applied for membership, but the membership application was rejected by the society and admittedly the Santukas did not challenge the said decision of the co-operative society refusing to admit the Santukas as member and formal application was rejected. Mr. Mukherjee's contention that when the Santukas application for membership has been rejected by the society and when the Santukas had not challenged the same, and as such it must be taken that the Santukas had accepted the same and/or voluntarily waived their right, if any against the decision of the society.
27. The next thing is that it is the mandatory requirement that the co-operative society has to satisfy itself that the transferee has genuine need for residential accommodation, and that the affidavit of Sri Suresh Lal Santuka in support of the application for membership, which is annexed to the writ petition, does not appear to contain any statement that they are permanent residents of West Bengal or that they intend to reside in West Bengal permanently. It is only stated that they want to open an establishment in Calcutta in addition to the existing business at Cuttack and so residential accommodation is essential at Calcutta and further stated that the wife of the deponent wants to shift and stay Calcutta for looking after her children.
28. According to Black's Law Dictionary, the expression need' has been stated to be "a relative term, the conception of which must, within reasonable limits, vary with personal situation of the individual employing it. The terms means to have an urgent or essential use for (something lacking): to want, require."
29. Accordingly, the expression 'genuine', according to Black's Law Dictionary, means that the same are not false, forced fictitious, simulated, spurious, or counterfeit.
Accordingly, the expression 'genuine needs' means a person urgently and essential requires something which is true and is not false.
30. For opening an establishment at Calcutta for a business magnet may or may not require essentially residential accommodation. In our view, keeping in mind the object and purpose of the West Bengal Co-operative Societies Act and having regard to the special provision for co-operative housing societies, as laid down in Chapter IX of the said Act, the expression 'genuine need' for residential accommodation means that permanently staying in West Bengal. The intention to establish business at Calcutta does not carry with it the intention to reside in West Bengal permanently as for the purpose of business, it is mere choice to stay or not to stay.
31. In this connection, the concept of domicil of choice under the private International Law, may be looked into and the observation of Lord Westbury in Udny v. Udny. reported in (1839) Lr 1 SC & Div 441 at p. 458, in which the position has been stated, can be described as follows:
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for a unlimited time..... It must be a residence not for a limited period of particular purpose, but general and indefinite in its future contemplation."
32. This concept of domicil of choice is opposite to the concept of domicile of origin. Domicile of choice means every person of full age is free to acquire in substitution for that which he at present possesses. 'Domicile' means home, the permanent home. These two concepts are there domicile of origin and domicile of choice. A person having domicil of choice, may intend to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g. the end of his job, the intention required by law is lacking: but, if he has in mind only a vague possibility, such as making a fortune. In matter of domicil of choice, the intention of the person concerned is very relevant, inasmuch as domicil of choice cannot be said to be permanent or perpetual.
33. Accordingly, the expression that the person who intends to reside in West Bengal permanently, who has a genuine need for residential accommodation, does not and cannot mean that simply because a person wants to set up a business in West Bengal and for that purpose he wants and accommodation. This accommodation cannot be said to be intended to reside permanently and in case he intends to reside permanently, in that even the next important factor is that he has genuine need for residential accommodation. Keeping the object and the purpose of the Act and the special provision for co-operative housing, we are of the view that the genuine need for residential accommodation to a person who intends to reside in West Bengal permanently, needs something more than expressing an intention to open business establishment at Calcutta. It is true that if a businessman from outside State intends to set up business in West Bengal, he may require some accommodation off and on for stay at a particular place and that place may be a hotel or a residential flat. But is it very difficult and it appears to be impossible to hold that with intention to set up a business in Calcutta, one genuinely needs a residential accommodation and that such setting up of business does not automatically lead to the conclusion that he intends to reside in West Bengal.
34. In these hard days of residential accommodation in a metropolis and when the legislature has made special provision for co-operative housing societies with the sole intention to provide home to homeless people and to provide accommodation to persons who intend to reside in West Bengal permanently or who are permanent residents of West Bengal and who genuinely need residential accommodation, in our view, this means that genuine need for residential accommodation, in our view, this means that genuine need for residential accommodation is the paramount object and that could not be made dependent upon a person's desire to set up additional business to the existing business at Cuttack. It is not a dispute that the Santukas are the residents of the State of Orissa and in the facts and circumstances of the case keeping in view the object and the purpose of this Act and/or the rules framed thereunder and the conditions and/or restrictions made thereunder, it cannot be said conclusively that merely because one intends to open an establishment in addition to the existing business in other States, suggests that such a person intends to reside in West Bengal permanently and he had genuine need for residential accommodation means that such residential accommodation is essentially necessary.
35. Accordingly, we are unable to accept the contentions of Mr. Arun Prakash Chatterjee and Mr. Mukul Prakash Banerjee that the Santukas have been able to fulfil the conditions for being eligible of membership of the co-operative society for the purpose of obtaining a flat of transfer, as in our view this is the essential requirement that has to be fulfilled and that the co-operative society, under rule 135(3)(a) of the said rules shall have to satisfy itself regarding the genuine need for residential accommodation. But, unfortunately, in this case, the same is wanting.
36. Right to shelter has been considered by the Supreme Court as a right within the meaning of Article 21 of the Constitution. In Santistar Builders v. N.K. Totame, , it was held that the basic needs of man have traditionally been accepted to be three food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its seep, inter alia, the right to reasonable accommodation to live in and the difference between the need of an animal and a human being for shelter has to be kept in view. For the animal, it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect -- physical, mental and intellectual.
37. In the facts and circumstances of the case, and the principal laid down by the Supreme Court in this case, it is clear that a citizen requires a suitable accommodation which is a must to him and which is required for allowing him to grow in physical, mental and intellectual aspect of the matter.
38. In this connection, the submission of Mr. Mukherjee that in the changed socio-economic condition, the different flat owners in a multi-storeyed building can possibly claim to constitute a kind of community, if not a family, in the wider sense and extended use. Such residential building with different rights and obligations and with common areas and facilities, cannot be an abode of peace since they are private with protection to the extent possible against intrusion by unacceptable strangers.
39. Right to privacy has also been considered in R. Rajagopal v. State of Tamil Nadu, , wherein it was held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.
40. Accordingly, in our view, keeping the object and purpose of the Act, the right to privacy of the other members of the co-operative society should not be lightly interfered with. Right to shelter, read with the right of privacy, includes a right of every citizen of safeguard the privacy of his own and a shelter which is necessary for allowing him to grow in every aspect -- physical, mental and intellectual. The right, guaranteed under Article 21 of the Constitution, is an inbuilt right under the provisions of the Co-operative Societies Act, particularly the co-operative housing societies.
41. Incidentally, Mr. B.B. Chakraborty, in his affidavit-in-reply, has no ruled out that the purpose of such accommodation was for setting up of a guest house as it has been stated on affidavit, and that "there is nothing wrong in using the flat as a guest house view of the precedent set up by Mr. Avik Sarkar, another owner of the flat no. 1A in premises, who has converted and flat purchased by him into a guest house". Incidentally, the court can taken judicial notice of the fact that Mr. Avik Sarkar is one of the editors of the Anandabazar Group of Publications and that this allegation has not been made earlier against Mr. avik Sarkar and the court cannot verify the correctness or otherwise of such statement which has been made for the first time in the affidavit-in-reply. But from this statement, it throws a positive light that both Mr. Chakraborty and the Santukas had view to use the said flat as a guest house. If it was required for a guest house, in that event it does not fulfil the statutory requirement that the transferee has genuine need of the flat for residential accommodation when he intends to live in West Bengal permanently. Such a stand taken by he parties on affidavit make their cause weaker as essential requirement of genuine need for residential accommodation becomes remote, uncertain a vague. Under the provisions of section 85, there is no scope for converting a co-operative flat for a guest house. An allottee has to use the flat for the residence of himself and his family and for no other purpose. All these conditions and restrictions have been laid down by the legislature only for the purpose of seeing that these co-operative multistoreyed flats are used wholly for the purpose of residence and for no other purpose and if it appears that because the legislature was aware that using these flats and the right of privacy would not be there if it is used for a commercial purpose. It is needless to point out that section 85(1) of the said Act, read with rule 135(5) of the said rules, requires the genuine need of a permanent resident which excludes temporary residence or accommodation.
42. The submissions of Mr. Chatterjee and Mr. Banerjee that there is no provisions for appeal against rejection of members of a transferee under the Act, cannot be accepted in view of the fact that section 70(4) of the Act provides the right to prefer an appeal against the refusal to admit a member. Right of appeal has been conferred under section 85(9) of the said Act to the transferor in case written consent of the co-operative society for transfer is rejected or withheld. Right to transfer is one thing and right to become a member of a co-operative society for obtaining a flat on transfer are two different and distinct rights. Section 85(1) has been given an overriding effect, but there is no such overriding effect in respect of the provisions of section 85(2) of the said Act. Section 85(1) lays down the eligibility and sub-section (2) of section 85 provides the right of any person eligible for membership for being admitted as member and that in the absence of any overriding effect to the provisions of section 85(2) of the said Act, the provisions of section 70(4) of the Act are automatically attracted for providing a right of appeal to persons whose membership is denied under sub-section (2) of section 85. But, in the instant case, as hereinbefore, stated, the Santukas did not prefer any appeal under section 70(4) of the said Act and the said refusal to admit them of membership has not been under challenge and is not the subject matter of the writ application and the appeal.
43. Mr. Chatterjee and Mr. Banerjee both argue that the provisions of section 70 of the Act for admission of members, in Chapter VIII of the Act, stand overriden by virtue of the provisions of sections 85, in Chapter IX of the said Act, and as such the procedure laid down in section 70 of the said Act is not applicable to a member who is eligible to be a member of a multi-storeyed co-operative building, which is specifically governed by section 85(2) of the said Act. Mr. Mukherjee contended that the provisions of section 70 and section 85 has to be given a harmonious construction and that the procedure for admission of a member has to read in the provisions of section 85 of the said Act as it could not be the intention of the legislature that while admitting members in a multi-storeyed co-operative building, such membership has to be granted as a matter of course and in a summary manner, and on the contrary, for member in all other co-operative societies, the individual members have a right of objection and in that case the society has been given a wider power to stop admitting a particular member. Whether the provisions of section 70 have to be read with a part of section 85, or that the principle of harmonious construction is not necessary, to be decided in view of the fact that if a flat is available for allotment, in that event a person eligible for membership of a co-operative housing society, may apply to such society for being admitted as a member thereof, and membership should not be denied to him.
44. In the instant case, admittedly, on the date on the application, filed by the Santukas, no flat was available for allotment. Because of the use of present tense by the legislature and because of the provisions of section 85(9) of the said Act, it is made abundantly clear the right of the transferor to transfer and the right of a person to be a member and to get the flat transferred in his name by becoming a member, are two different rights.
45. In the facts and circumstances, of the case, on the date of the application filed by the Santukas, even though the Santukas are eligible for membership as provided under sections 85(1) & (2) of the said Act, they could not get the membership as on that date, the flats were not available. Flat could only be made available in case Mr. Chakraborty's right to transfer is established. Accordingly, in the peculiar facts and circumstances of the case, because of non-availability of flat for allotment on the date of the application filed by the Santukas, the provisions of section 85(2) could not be made applicable and if the provisions of section 85(2) of the said Act is not applicable, in that event the membership of the co-operative society has to be dealt with and disposed of the manner laid down in section 70 of the said Act, wherein the other members have a right of objection and on the basis of the objection filed by any of the members of the co-operative society, the membership could be refused, and in this case the admission of the Santukas as member has been refused by the co-operative society and that against the refusal to admit the Santukas as member, no appeal was preferred, as provided under section 70(4) of the said Act, nor any writ application was filed by the Santukas challenging the action taken by the co-operative society in refusing to admit the Santukas as member of the said co-operative society. The right of Mr. Chakraborty to transfer is dependent upon fulfilment of certain terms and conditions as laid down in rule 142(3) of the rules, and admittedly those conditions have been fulfilled by Mr. Chakraborty, and accordingly Mr. Chakraborty's right to transferred and the Santukas application for admitting the Santukas as member of the said co-operative society has been rejected. For that rejection, the Santukas should naturally be deemed to be aggrieved. But the Santukas did not move this court nor preferred any appeal before any authority. If Mr. chakraborty's right to transfer was rejected, in that event Mr. Chakraborty could have been lawfully aggrieved. But this applications for transfer was accepted. After the application for transfer was accepted, in that event the transfer made to Santukas is not a matter course as right of Santukas to become eligible for membership of the co-operative society is also dependent upon the existence of certain conditions precedent as laid down in section 85(1) of the said Act. Accordingly, the contentions of Mr. Chatterjee and Mr. Benerjee that the admission of member in respect of a housing co-operative society is a matter of course and the society had no discretion to withhold the consent, cannot be accepted in the peculiar facts and circumstances of this case.
46. The learned counsel appearing on behalf of the appellant/transferor and respondent/transferor, had submitted the the written consent of the cooperative society for transfer is a matter of course. Section 85(9) of the said Act provides for a written consent under such terms and conditions and in such manner as may be prescribed. The manner has been prescribed in Rule 142(3) and it is not in dispute that the transferor has fulfilled the clause (iii) of sub-rule (3) of Rule 142. These are the grounds for transfer, by sale or otherwise, of the flat in question. But the Act or the rules nowhere provide that the written consent has to be given on fulfilment or on the existence of any of the grounds mentioned in Rule 152(3) of the said rules. Before a consent should be given, two independent factors have to be considered, namely the provisions of Rule 135(3) and 142(3) of the said rules. Rule 135(3) provides that for transfer of an apartment, a member shall obtain written consent of the society and before giving such consent, the society shall satisfy itself that because of the use of the expression 'and' in sub-rule (3)(a) of Rule 135, makes it imperative that the conditions laid down that before such consent in given, the society has to satisfy on the existence of those grounds. But it has nowhere been laid down that on fulfilment of these conditions, written consent is a matter of course, written consent as contemplated in Rule 135(3) cannot be given as a matter of course or the consent is a mere idle formality.
47. In the instant case, admittedly, the transferor, Mr. Chakraborty, has fulfilled the conditions of Rule 142(3) of the Rules, but it does not appear that the other conditions laid down in Rule 135(3)(a) of said rules have been fulfilled.
48. According to Black's Law Dictionary, the expression 'consent' is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and existence of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers.
49. Accordingly, it cannot be said that the legislature has conferred a valuable right upon the co-operative society that no transfer should be made unless such co-operative society gives consent in wruiting before any transfer is made. It is not in dispute that the legislature has taken away the right of the transferor to transfer. But before a transfer, the legislature provides a power upon the co-operative society to give consent or not to give consent in respect of any transfer. The expression 'written consent' of the co-operative housing society in such terms, and conditions and in such a manner as may be prescribed, to any other person eligible to be a member of the co-operative society dies not and cannot mean that the co-operative society has to ace mechanically and/or it is a mere idle formality. As consent is an act of reason accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. So, this consent implies a right of the co-operative society to wright to consider the good and the evil sides of each and every case.
50. In our view, the provisions of S. 85 read with Rules 135(3)(a) and 142(3) of the said rules do not confer a right upon the transferor and the transferee to get consent as a matter of course. In the instant case, the co-operative society has withheld the consent as contemplated in Rule 135(3)(a) of the said rules and has not withheld the consent as provided in Rule 142(3) of the said rules.
51. Accordingly, we do not find any force in the arguments made by Mr. Chatterjee and Mr. Banerjee.
52. While interpreting the provisions of the Co-operative Societies Act and rules framed thereunder, the provisions have to be given a purposive meaning keeping in view the legislative intent. The Court in concerned with motive only to the extent that it may throw light on the intention in such matters and while interpreting the provisions of this Act. The purpose of enacting the Co-operative Societies Act has to be borne in mind.
53. According to Black's Law Dictionary, the expression 'co-operative apartment' means dwelling units in a multi dwelling complex in which each and every flat owner not only owns the flats but they have equal right, title and interest in the common areas, including the open space and the land on which the building stands proportionately. The co-operative is organised for the purpose of rendering economic services without gain to itself or the members who own and control it.
54. Co-operative means to act jointly and concurrently towards a common end and unless there are mutual co-operations among the members, the purpose of the enactment will be completely frustrated.
55. Accordingly, we are of the view that the expression 'consent' in writing before transfer is made by the transferor and inducting a new member in that place, has a very significant role to play. Such a restriction has been conferred, so that in the co-operative housing complex, people residing there can live in a manner which may not be equal to the position of members of a joint family, but in a manner which is a akin to that. After all, the peace and discipline in required to be maintained in any co-operative housing society complex.
56. In view of the statutory requirement before obtaining permission for transfer, the santukas had to establish that they genuinely required the said premises for their residential purpose and that they intended to reside permanently and in the instant case, in the absence of these facts, were are unable to uphold the contentions of Mr. Chatterjee and Mr. Banerjee that the co-operative society has acted arbitrarily and illegally and without jurisdiction in refusing to admit the Santukas as members and/or they have no jurisdiction to stand in the way of transferring the same in favour of the Santukas by Mr. Chakraborty. Keeping in view the object and purpose of the Act as hereinbefore stated, the provisions of S. 85 and other provisions of the said Act have to be construed and in our view some amount of discretion is left with the co-operative society to grant approval as a matter of course as it is not a ministerial function, but some amount of judgment and discretion is left to the co-operative societies before granting or refusing to give consent to such transfer.
57. Section 85(2) of the Act provides that membership to any person who is a eligible for membership should not be denied to him if flats are available for allotment to such person on the date of application. Admittedly, on the date of making application by the Santukas, i.e. on 9th September 1991, no flat was vacant and/or are available for allotment. The use of the present tense is very much significant. The expression 'are' could not be treated as "will be available in future" if the application for transfer or Mr. Chakraborty is allowed at a later date. The use of the present tense was considered by the Privy Council in the case of Maradana Mosque v. Badi-ud-din Mahmud.. (1966) 1 All ER, 545. So it is clear from the language used in S. 85(2) read with S. 85(9) and the provisions of Rules 135(3)(a) and 142(3) that the application of the transferor. i.e. Mr. Chakraborty has to be made first and it is allowed in that event a flat is available and then the transferee can only apply for transfer of the said flat and he can get consent and before giving such consent the society shall have to satisfy itself the conditions laid down in S. 85(1) read with Rule 135(3)(a) of the rules.
58. So it is clear that these two are separate and independent steps in such case of transfer. But in the instant case, the society have agreed to give consent for transfer but did not agree to give consent for transfer in favour of the Santukas on the grounds stated. Admittedly in this case the application for transfer of the flat in question made by Mr. Chakraborty was no rejected and Mr. Mukherjee, learned counsel appearing for the society, stated that the society had accepted the position that the transferor had fulfilled the conditions laid down in Rule 143(3) of the rules and as such the society was ready and willing to give consent for transfer but the society could not accept the Santukas as the transferee in whose favour such a transfer was decided to be made by Mr. Chakraborty. The society was only against inducting Santukas a member of the society and the reason for such a stand was that the Santukas did not or could not fulfill the statutory condition laid down in S. 85(1) of the Act read with the provision of Rules 135(3)(a) and 135(5) of the rule. Inter alia on these grounds the transfer in favour of Santukas has been rejected by them. When it is evident that the co-operative society was not against granting consent in favour of the transferee, in that event the transferor, Mr. Chakraborty cannot have any grievance. Secondly, the right of the transferor and the right of the transferee are two different rights and the transferor's right to transfer is governed under the Act and the Act and the rule particularly Rule 142(3) whereas the right of transferee is governed by the provisions of Rule 145(3)(a) read with 135(5) of the said rules. In these circumstances, there is no dispute that the transferor's right to transfer has been accepted and recognised by the co-operative society inasmuch as the transferor has fulfilled the conditions for becoming eligible to transfer. But the question is whether the transfer could be made in favour of the Santukas, that is a thing which is different from the right of Mr. Chakraborty, and when it is found by the Court on the materials on record that the society had not arbitrarily, malifidely and capriciously and wilfully wihheld the consent for transfer in favour of the transferee, in the facts and circumstances of the case we are of the view that no useful purpose would be served in keeping the issue alive for making any further determination by the authorities concerned. We are further of the view that the submission of Mr. Chatterjee and Banerjee that the authorities concerned could not pass the order that has been passed on May 10, 1993, as it is contrary to law that such a thing should be decided in a manner indicated by in the order dated May 10, 1993. After all, these are statutory rights and obligations and no authority can lay down a procedure which is contrary and inconsistent with the statute. Statutory authorities cannot be directed to exercise any power which is not expressly conferred by the statue and accordingly we agree with the view. Under such circumstances, it will be futile to remand the case back to the tribunal for reconsideration of the appeal when the appellants have preferred the appeal against the order of the Ld. Trial Judge and taken a contrary stand before us, we have considered the matter in details after hearing the Ld. Counsel of the parties and we are of the view that because of the clarification made by the Ld. Trial Judge on the question of laws with which we fully agree and because of the laws with which we fully agree and because of the determination made by us the Appellate Tribunal had nothing to do and the Ld. Trial Judge was not correct in remitting the matter back to the appellate tribunal in as much as in the facts and circumstances of the case it would be wholly unnecessary and would be futile even if opportunity of hearing is given to the parties.
59. In view of the above, we set aside the order dated May 10, 1993, passed by the Dy. Registrar, Co-operative Society and other orders and set aside the order of the learned trial Judge insofar as remanding the case back to the authority concerned. Accordingly, the order passed by the Appellate Authority, dt. 10-5-93, is set aside.
60. Appeal is accordingly disposed of without any order as to costs.
61. All parties concerned are to act on a signed copy of the minutes of the operative portion of this judgment and order on the usual undertaking.
Vidya Nand, J.
62. I agree.
63. Order accordingly.