Special Leave Petition Seeking Stay Order From Operation Of Impounged Judgement 1371 - Legal Draft
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Special Leave Petition seeking Stay Order
from Operation of Impounged Judgement
of the Constitution of India).
Between Position of the parties
In the Calcutta In this Court
High Court
Shri son of Respondent No. I Petitioner
AND
1. Cooperative Housing Society Ltd. Appellant Respondent No. 1
of Calcutta
2 Calcutta Respondent No. 2 Respondent No. 2
State of West Bengal Service Respondent No. 3 Respondent No. 3
through
Registrar of Cooperative Societies, Respondent No. 4 Respondent No. 4
West Bengal, Calcutta
To
Most Respectfully Sheweth:
That your petitioner desires to move the instant Special Leave petition before the hostage Supreme Court of India against the judgment and order passed by the hostage Division Bench of the hostage Calcutta High Court dated in FMA No of
Questions of Law
heirs or by one of the legal heirs or by one of the legal heirs in the event other legal heirs give up their rights in favour of such single legal heir?
(d) Whether the right and interest of the legal heirs of the deceased member could be forfeited in the event of time taken in nominating particular legal heir for the same exceeded 3 months
from the date of the death of the member because of certain unavoidable circumstances as the legal heirs were not available immediately in giving their consent and giving up their rights in favour of the single legal heir in whose favour the property desired by all the legal heirs to be transferred. More so when the Co operative Society was intimated well in advance seeking extension of time in providing particular name in whose favour the property the legal heirs desired to be transferred?
or residence of the nominee cannot be ascertained by the Board or if, for any other cause, the transfer cannot be made without unreasonable delay to the person who (subject to the production
by such person of probate or letter of administration or succession certificate) appears to the Board to be entitled, in accordance with rules, possession of such shares or interest as part of the estate of
the deceased members, or sub-sec, (c) on the application of the person referred to in cl. (6) within 3 months from the date of death of member to such person as may be specified in the application,
which clearly indicate that while disposing of deceased member's share or interest the preferential claim always goes to the heirs and legal representatives of the deceased member in absence of
any nominee.
(c)For that s. 82 of the said Co-operative Societies Act is very specific that notwithstanding anything contained elsewhere in the Act or any other law for the time being in force when the membership of
a member of a Co-operative Society referred to in cl. (a) terminates by reason of death or any other cause his possession of, or interest in land held by him under Co-operative Society shall vest in his
heirs or in the person,, if any, nominated by him under s. 79, if such heir is willing to be admitted as a member of the Co-operative Society.
(d) For that on a careful reading of the said cl. (c)of s. 80 of the said Co-operative Societies Act, it is clear that on the death of the member of the Co-operative Society his share or interest in the
Co-operative Society shall be transferred on the application of the person referred to in cl. (b) within three months from the date of death of the member to such person as may be specified in the
application. Therefore transfer of share or interest can be made only by a Co-operative Society. It is an obligation of the Society to transfer the share or interest of the deceased member within the
stipulated period referred to in s. 80 of the Act.
order passed by the hostage Division Bench of Calcutta High Court in FMA No of and/or to pass such other or further orders as to this hostage Court may deem fit and proper.
8. Interim Relief
(a) Under the circumstances set forth above, it is therefore prayed that Your Lordships may graciously be pleased to pass an order staying operation of the impugned judgement and order dated in FMANo thereby restraining the Co-operative Housing Society Ltd., respondent No. 1 herein, from making allotment of the Flat No. 2 to any stranger till the disposal of the petitioner's present appeal before this hostage Court.
(b) pass such other order or orders as Your Lordships may deem fit and proper.
And for this your petitioner shall ever pray.
Drawn by Filed by
Filed on: Advocate for the Petitioner
-
Sri son of Petitioner
That I am the petitioner in the present Special Leave Petition and am fully conversant with the facts and circumstances of the present case and am fully competent to swear the present affidavit. That the facts stated in the Synopsis, List of Dates and the petition for Special Leave are all true to my knowledge and the rest are all submissions before the Hon'ble Supreme Court of India.
That the Annexures filed with the Special Leave Petition are all true copies of their Originals and the same formed part of the records in the court below.
That the contents of this affidavit are true to my knowledge.
Deponent
Verified at New Delhi, this the
day of 1999
In the Supreme Court of India
[Order XVI Rule 4(l)(a)]
Civil Appellate Jurisdiction
Petition for Special Leave to Appeal (Civil) No of 1999 (under Article 136of the Constitution of India).
Between Position of the parties
In the Calcutta In this Court
High Court
Shri son of Respondent No. I Petitioner
AND
1. Cooperative Housing Society Ltd. Appellant Respondent No. 1
of Calcutta
2 Calcutta Respondent No. 2 Respondent No. 2
State of West Bengal Service Respondent No. 3 Respondent No. 3
through
Registrar of Cooperative Societies, Respondent No. 4 Respondent No. 4
West Bengal, Calcutta
To
The hostage the Chief Justice of India
and His Companion Justices of the
hostage Supreme Court of India
The Special Leave Petition of the Peti
tioner above-namedand His Companion Justices of the
hostage Supreme Court of India
Most Respectfully Sheweth:
That your petitioner desires to move the instant Special Leave petition before the hostage Supreme Court of India against the judgment and order passed by the hostage Division Bench of the hostage Calcutta High Court dated in FMA No of
Questions of Law
(a) Whether the right of the Ownership of an apartment in the
multistoried building under the West Bengal Co-operative
Societies Act 1983 is heritable and transferable?
(b) Whether in the event of death of a member the legal heirs of
such deceased member are entitled to inherit and get allotment
of the apartment which the deceased member was entitled to?
(c)Whether in the event of the member dies without nominating
any person to inherit the apartment interest of the deceased
member for such apartment could it be inherited by all the legalheirs or by one of the legal heirs or by one of the legal heirs in the event other legal heirs give up their rights in favour of such single legal heir?
(d) Whether the right and interest of the legal heirs of the deceased member could be forfeited in the event of time taken in nominating particular legal heir for the same exceeded 3 months
from the date of the death of the member because of certain unavoidable circumstances as the legal heirs were not available immediately in giving their consent and giving up their rights in favour of the single legal heir in whose favour the property desired by all the legal heirs to be transferred. More so when the Co operative Society was intimated well in advance seeking extension of time in providing particular name in whose favour the property the legal heirs desired to be transferred?
(e) Whether on the issue of transfer of share of the deceased member
any consideration in respect of admission of a member is relevant?
(f)
Whether the valid membership in favour of the deceased member
could be cancelled only because the name of the nominee in whose
favour the property was to be transferred had taken some time
for selecting such nominee by all the legal heirs?
(g) Whether the Cooperative Society is competent to re-allot a valid
allotment in favour of the deceased member even when all
financial obligations are complied with and the allottee was not
a defaulter?
(h) Whether the Cooperative Society can re-allot the duly allotted apartment of a valid member in the event of death to a stranger ignoring the rights of the legal heirs of such deceased member?
(i) Whether the question of re-allotment on expiry of 3 months could arise when admittedly the court was moved when allotment was made and in view of specific term of the hostage High Court dated
(h) Whether the Cooperative Society can re-allot the duly allotted apartment of a valid member in the event of death to a stranger ignoring the rights of the legal heirs of such deceased member?
(i) Whether the question of re-allotment on expiry of 3 months could arise when admittedly the court was moved when allotment was made and in view of specific term of the hostage High Court dated
by which the Society was specifically directed not to allot the earmarked apartment being Flat No. 2 and could the
Society ignoring such direction reallot the flat to a stranger?
3. Declaration in terms of rule 4(2).
The Petitioner states that no other
petition seeking leave to appeal has been filed by him against the impugned
judgment and order.
4. Declaration in terms of rule 6.
The Annexures produced alongwith
the Special Leave Petition are true copies of the documents which formed part of the records of the Case in the Court below against whose order the
leave to appeal is sought for in this petition.
5. Grounds
(a)
For that s. 87 of the West Bengal Co-operative Societies Act 1983
(hereinafter referred to as the said Co-operative Societies Act) deals
in member's right of ownership and sub-sec. 3 of the said section
which makes it abundantly clear that a plot of land or a house or an apartment in a multistoried building (including the undivided
interest in the common areas and facilities) shall constitute a
heritable and transferable immovable property within the meaning
of any law for the time being in force provided that notwithstanding
anything contained in any other law for the time being in force
such heritable and transferable immovable property shall not be partitioned or sub-divided for any purpose whatsoever.
In terms of West Bengal Co-operative Societies Act and Rules
the heirs of a deceased person are, therefore, entitled to inherit
the flat allotted to the deceased, as in the instant case. Admittedly
the flat in question was allotted to the said vendor father of
petitioner who died thereafter and as a consequence thereof the
heirs of the said deceased became and would be entitled to succeed
to the estate and as a result thereof to the said flat with
proportionate interest in the land.
(b) For that s. 80 of the said Co-operative Societies Act deals with
disposal of the deceased member's share or interest and cl.
(b)
of sub-sec. (1) speaks that if there is no nominee or if the existenceor residence of the nominee cannot be ascertained by the Board or if, for any other cause, the transfer cannot be made without unreasonable delay to the person who (subject to the production
by such person of probate or letter of administration or succession certificate) appears to the Board to be entitled, in accordance with rules, possession of such shares or interest as part of the estate of
the deceased members, or sub-sec, (c) on the application of the person referred to in cl. (6) within 3 months from the date of death of member to such person as may be specified in the application,
which clearly indicate that while disposing of deceased member's share or interest the preferential claim always goes to the heirs and legal representatives of the deceased member in absence of
any nominee.
(c)For that s. 82 of the said Co-operative Societies Act is very specific that notwithstanding anything contained elsewhere in the Act or any other law for the time being in force when the membership of
a member of a Co-operative Society referred to in cl. (a) terminates by reason of death or any other cause his possession of, or interest in land held by him under Co-operative Society shall vest in his
heirs or in the person,, if any, nominated by him under s. 79, if such heir is willing to be admitted as a member of the Co-operative Society.
(d) For that on a careful reading of the said cl. (c)of s. 80 of the said Co-operative Societies Act, it is clear that on the death of the member of the Co-operative Society his share or interest in the
Co-operative Society shall be transferred on the application of the person referred to in cl. (b) within three months from the date of death of the member to such person as may be specified in the
application. Therefore transfer of share or interest can be made only by a Co-operative Society. It is an obligation of the Society to transfer the share or interest of the deceased member within the
stipulated period referred to in s. 80 of the Act.
(e) For that while disposing of the appeal the hostage Court of Appeal
below gave much stress on sub-sec. (3) of s. 85 of the said Act as
also sub-rule (5) of rule 135 taking the present case to be a case
for admission of membership which is not in the present case. In
the instant case the question of admission of membership becomes
absolutely immaterial, the real question is of transfer or
devolution of interest of a deceased member. The applicant/
petitioner herein being one of the heirs of a deceased member was and still is entitled to succeed to the estate of the deceased member as per the mandatory provision of the statutes and that being so the right, title and interest of the deceased member in
the apartment of the Co-operative Society devolves upon the heirs
and in that background the aforesaid s. 85(3) and rules 135(5) neither have nor can have any application in the instant case because there cannot be any manner of doubt that on the death
of a member of a Co-operative Society his share of interest in the
Co-operative Society shall in the absence of a nominee be
transferred to a person who appears to the Board to be entitled
to in accordance with rules, possession of such interest as part of the estate of the deceased member and herein in the instant case
the son who himself is admittedly not a member of the society in
question or any other housing society became entitled to be
considered for such allotment immediately he gave notice to the
appropriate authority which too long before the alleged re-
allotment was said to have been made.
(f) For that it was not only improper but also highly illegal, arbitrary,
motivated and unconstitutional for the Special Officer to re-allot
the flat to a stranger even after he had received letter regarding
transfer of ownership in favour of legal heirs in long before such alleged re-allotment, claimed to have been made in
i.e.
more than 16 months from receipt
thereof, without giving any opportunity of being heard and without
deciding the question as to who was entitled to the said flat in
accordance with law.
(g)
For that on proper construction of the statute that a member of a
Co-operative Society shall cease to be such member if he dies and
upon his death his share or interest, in absence of any nomination
to that effect, may be transferred by the Board of the Society in
favour of any person who presents in writing his or her claim for
the said share or interest and in this background the alleged re-
allotment of the apartment of the deceased member to a stranger
not being the legal heirs of the deceased member is without jurisdiction, unconstitutional, and not maintainable in law and
as such is liable to be set aside due to the reason that the Special
Officer in the instant case had taken the decision to re-allot the
said apartment without considering the case of the legal heirs of
the deceased member and without giving them any opportunity of
hearing which decision manifestly appears to be contrary to the principle of natural justice.
(f) For that the hostage Division Bench was wrong in dismissing the
writ application holding infer
alia
that the petitioner thus having
failed to show that any of the mandatory provisions of statute has
been violated by the appellant society, the writ petition was not
maintainable because the ground taken hereinabove show that
most of the mandatory provisions of the statute had been violated
by the said society and as such in that view of the matter the
impugned judgement deserved to be set aside.
(g)For that the learned court below erred in law in dismissing the writ petition holding
inter alia.
In fact, the writ petition ought to have been dismissed also on the ground that the special officer
rightly or wrongly had re-allotted the flat as far back as in the
year
in favour of a 3rd party. By reason of allowing
the writ petition the right of the 3rd party would be affected but
despite the same he had not been impleaded as a party therein.
In this view of the matter also the writ petition was not maintainable for non-impleading a necessary party. It is not a case where the question of ownership was required to be considered vis-a-vis the right of a 3rd party without considering that on the date of filing of the said writ petition i.e the writ petitioner was not aware of allotment of the flat in question to any 3rd party not a heir of the deceased member. The society revealed for the first time in their letter dated that they would submit to the Division Bench of their Lordships the hostage Mr. Justice and the hostage Mr. Justice (as their Lordships then were), a proposal for allotment of flat No. 2 that is the flat already allotted to late vendor on to Mr. Z. This letter was written to on
In this view of the matter also the writ petition was not maintainable for non-impleading a necessary party. It is not a case where the question of ownership was required to be considered vis-a-vis the right of a 3rd party without considering that on the date of filing of the said writ petition i.e the writ petitioner was not aware of allotment of the flat in question to any 3rd party not a heir of the deceased member. The society revealed for the first time in their letter dated that they would submit to the Division Bench of their Lordships the hostage Mr. Justice and the hostage Mr. Justice (as their Lordships then were), a proposal for allotment of flat No. 2 that is the flat already allotted to late vendor on to Mr. Z. This letter was written to on
a respondent in FMA No
Moreover by their
order dated
Their Lordships gave the Special Officer of the
Society liberty to deliver all other flats on the terms and conditions except
the said flat No. 2. Therefore, the dismissal of the writ petition by the Division
Bench on the ground of non-impleading the said allotee in the writ petition
could not be held to be justified or made in accordance with law.
6.
Ground for interim relief
(i)
That the respondent No. 1 Society has informed that the
allotment in favour of the deceased allottee stood cancelled
because no appropriate person could be named as the legal heir
of the deceased allottee in whose favour the respondent No. 1
Society was to make the allotment and as such the Society has
been threatening of re-allotting flat No. 2 of the deceased allottee
to a stranger ignoring the rights of the legal heirs. The petitioner
understands till date no such allotment has been made and even
if the some steps have been taken by the Society it will be wholly
against the direction given by the Calcutta High Court as early
as on
by which the society was specifically directed not to allot the earmarked apartment No. 2 to any
stranger and in such a position it is extremely essential for your
petitioner to obtain appropriate order from this hostage Court
restraining the respondent No. 1 to make such irregular and
illegal allotment.
(ii)
Your petitioner submits that not only by the impugned judgement and order dated____passed in FMA No_____the fundamental right of the heirs and legal representatives of the vendor since deceased, the erstwhile owner in respect of the flat No. 2 in the 5
th
floor of premises No has been seriously prejudiced but also there has been grave miscarriage of justice because of the
fact that the said right to property is right
in rem
as guaranteed
under the Constitution of India and the said right to property has been denied by the impugned judgement for which the petitioner
has been constrained to prefer the instant Special Leave Petition and petitioner prays that the Society respondent No. 1 should be
restrained from taking any steps to reallot the earmarked
apartment till the disposal of the petitioner's present appeal
otherwise the petitioner will suffer irreparable loss and injury.
7.
Main Prayers.
Under the circumstances stated hereinabove your
petitioner most humbly and respectfully prays that Your Lordships would graciously be pleased to grant Special Leave to your petitioner to Appeal
under Art. 136 of the Constitution of India against the judgement andorder passed by the hostage Division Bench of Calcutta High Court in FMA No of and/or to pass such other or further orders as to this hostage Court may deem fit and proper.
8. Interim Relief
(a) Under the circumstances set forth above, it is therefore prayed that Your Lordships may graciously be pleased to pass an order staying operation of the impugned judgement and order dated in FMANo thereby restraining the Co-operative Housing Society Ltd., respondent No. 1 herein, from making allotment of the Flat No. 2 to any stranger till the disposal of the petitioner's present appeal before this hostage Court.
(b) pass such other order or orders as Your Lordships may deem fit and proper.
And for this your petitioner shall ever pray.
Drawn by Filed by
Advocate for the Petitioner
Requisite Certificate
Certified that the Special Leave Petition is confined only to the pleadings
before the court whose order is challenged and the other documents relied
upon in those proceedings. No additional facts, documents, or grounds have
been taken therein or relied upon in the Special Leave Petition. It is further certified that the true copies of the documents have been annexured and/or
attached to the Special Leave Petition for consideration of this Hon'ble Court.
This certificate is given on the basis of the instructions given by the petitioner
whose affidavit is filed in support of the Special Leave Petition.
Filed byFiled on: Advocate for the Petitioner
In the Supreme Court of India Civil Appellate Jurisdiction
Special Leave Petition (Civil) No of 1999-
Sri son of Petitioner
Co-operative Housing Society Ltd
Respondents
& Ors.
AFFIDAVIT
I, Sri son of aged about_____
years residing at
presently in New Delhi do hereby solemnly affirm and say as follows:That I am the petitioner in the present Special Leave Petition and am fully conversant with the facts and circumstances of the present case and am fully competent to swear the present affidavit. That the facts stated in the Synopsis, List of Dates and the petition for Special Leave are all true to my knowledge and the rest are all submissions before the Hon'ble Supreme Court of India.
That the Annexures filed with the Special Leave Petition are all true copies of their Originals and the same formed part of the records in the court below.
That the contents of this affidavit are true to my knowledge.
Deponent
Verified at New Delhi, this the
day of 1999