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Mousumi Co-Operative Housing Society Ltd. v. Smt. Gayatri De & Ors.

Calcutta High Court

Dec 15, 1997

Judgment

Subsequent
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Structured Summary of the Opinion (Satyabrata Sinha, J. & R. K. Mitra, J.)

Factual and Procedural Background

The dispute concerns interpretation of provisions of the West Bengal Co-operative Societies Act and its Rules regarding the rights of heirs of an allottee of a flat by a Co-operative Housing Society.

Brief chronology (as contained in the opinion):

One Sati Prasanna Bhowmick (the original allottee) sold most of his residential property to the appellant-society; a conveyance deed was executed on 27 October 1989 and the sale consideration of Rs. 1,50,000/- was adjusted as an advance in part-payment for three flats. He retained one flat in his own name and surrendered two flats to the society in June 1983; two share certificates were issued on 30 October 1980.
Flat No. A/2 on the fifth floor of Mousumi Apartment was allotted to him by letter dated 29 November 1982. A sum of Rs. 1,00,000/- was paid for that apartment though the original estimated price was Rs. 2,60,000/-.
The allottee died on 18 August 1985, leaving five married daughters and one married son.
On or about 6 December 1986 his son, Dr. Subrata Bhowmick, informed the Society of the death and requested time to complete legal process for transfer; the special officer replied that because the transfer of interest was not claimed within the stipulated 90 days the flat had already been reallotted.
The writ petitioner (first respondent) had been nominated as a heir; she had already been allotted a different flat in the building and, under the rules, a person cannot be allotted two flats in the same building.
The learned trial Judge held the writ petition maintainable, quashed the special officer's re-allotment letter dated 1 November 1988, and directed transfer of the flat in favour of the writ petitioner upon payment of the balance amount (after adjusting Rs. 1,00,000/-), and handed over possession. The trial court disposed of the writ petition with no order as to costs.
The appellant society appealed against that order. This opinion is the appellate court's consideration and disposal of that appeal.

Legal Issues Presented

Whether a writ petition is maintainable against a Co-operative Society (i.e., whether a Co-operative Society is a "State" under Article 12 or, alternatively, whether a writ is maintainable when a mandatory statutory provision is violated).
Whether the deceased allottee had acquired any title, right or interest in the flat when the full price was not paid (and the consequences for his heirs).
Whether, having failed to claim transfer within the period prescribed by statute/rules (notably the three-month period in s. 80(c)), the heirs could validly claim the flat.
Whether allotment of an additional flat to the writ petitioner (who already held one flat in the building) was permissible under the Act and rules (Chapter IX provisions limiting allotment to one flat per member).

Arguments of the Parties

Appellant (Society) — Primary Arguments

Because the entire consideration for the allotted flat had not been paid, no title in respect of the flat had passed to the original allottee; therefore his heirs could not claim title through him.
An option or claim was not exercised within the stipulated statutory period (90 days); hence no entitlement to the flat could arise for the heirs.
The writ petitioner had already been allotted one flat in the building and, under the rules, a person cannot be allotted two flats in the same building, making any second allotment impermissible.

Respondent (Writ Petitioner) — Primary Arguments

Counsel relied on a number of authorities (including Shri Konaseema, Firzoali Abdulkarim Jivani and Arjed Ali Gazi) to submit that the appellant society is a "State" within the meaning of Article 12 and therefore a writ petition is maintainable against it.
It was argued that the contention sought to be raised on appeal by the appellant had not been raised before the learned trial Judge and that new points should not be permitted to be urged at this stage (relying on a decision reported in AIR 1993 SC 1265).
Counsel also argued that when the original allottee died, notice having been given, it was accepted that an order of re-allotment would be made; any nomination of the writ petitioner by her siblings may have been an unintentional mistake due to lack of knowledge of the legal position; the Society's action was attacked as mala fide, and the flat remained vacant despite alleged re-allotment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the opinion used/treated the authority)
Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju, AIR 1990 AP 171	Cited by respondent's counsel to support the submission that a Co-operative Society might be a "State" within Art. 12 (and thus that a writ petition would be maintainable).	The appellate court noted this decision was among those relied upon but concluded, following subsequent consideration (see Bholanath Roy and others), that a Co-operative Society is not a State within Art. 12; however, if a mandatory statutory provision is violated by a society a writ may be maintainable.
Firzoali Abdulkarim Jivani v. The Union of India, AIR 1992 Bom 179	Listed by respondent's counsel among authorities relied on to assert broader maintainability under Art. 12.	Included among cases cited by counsel; the court's analysis proceeded to the settled position (derived from later-cited authorities) that a Co-operative Society is generally not a "State" under Art.12.
Arjed Ali Gazi v. State of West Bengal, reported 94 CWN 515 (also cited as 1991 (2) CLT 211)	Relied upon by parties in relation to the question of whether a Co-operative Society is a "State" and thus whether writ jurisdiction is available.	The court treated this decision as part of the jurisprudential background considered in Bholanath Roy; ultimately the court concluded the correct position is that a Co-operative Society is not a "State" but writ relief may be available where mandatory statutory provisions have been breached.
(Unspecified case) AIR 1993 SC 1265	Invoked by respondent's counsel to contend that new points cannot be permitted to be urged before this Court on appeal.	The court rejected the contention that the appellant could not raise pure questions of law in the appeal and permitted the appellant to raise those legal points (para 11 of the opinion).
Bholanath Roy v. State of West Bengal, 1996 (1) CLJ 502	Authority relied upon by the court (and noted as a decision of one of the Bench) addressing maintainability of writs against Co-operative Societies and surveying relevant earlier decisions.	The court cited this decision to support the proposition that a Co-operative Society is not a "State" under Art.12 but that writ relief may be available if a society violates a mandatory statutory provision; the appellate court relied on this to qualify the trial court's broader view of maintainability.
Sudam Vanaji Shirsat v. Shetkari Sahakari Sangha Ltd., AIR 1992 Bom 347	Referenced (via Bholanath Roy) in the discussion of the legal position on whether a Co-operative Society falls within Art.12 and the circumstances in which writs may be maintainable.	Used as part of the body of authority examined in Bholanath Roy; the appellate court treated it as part of the jurisprudence that supports the conclusion that co-operative societies are not State actors within Art.12 but that mandatory statutory breaches can attract writ jurisdiction.

Court's Reasoning and Analysis

The court's reasoning proceeds through statutory interpretation of the West Bengal Co-operative Societies Act and its Rules, application of precedents on writ jurisdiction, and fact-based conclusions about title and statutory timelines. The analysis as recited in the opinion may be summarized in the following logical steps (stated strictly as in the opinion):

Maintainability of writ against a Co-operative Society: The court examined the state of the law (including the decision in Bholanath Roy and the cases considered therein such as Sudam Vanaji Shirsat and Arjed Ali Gazi) and concluded that a Co-operative Society is not a "State" within the meaning of Article 12 of the Constitution. However, the court clarified that where a mandatory statutory provision is violated by a society, a writ petition may be maintainable against it. Thus, writ jurisdiction is not absolute against societies but is available when mandatory statutory duties are breached.
Permissibility of raising points on appeal: The court held that the appellant could raise pure questions of law in the appeal even though certain contentions were not pressed before the trial court. The submission that new points could not be permitted (relying on AIR 1993 SC 1265) was rejected insofar as the points were pure questions of law.
Statutory scheme and relevant provisions: The court examined definitions and provisions of the Act and Rules, including:
- Definitions of a Co-operative Housing Society and of "member" (ss. 2(18), 2(28), 2(32)).
- Provisions governing nomination and transfer on death (ss. 79, 80 and 82) and Rules dealing with transfer/payment on death and valuation of shares (Rules 127/128).
- Special provisions for housing societies in Chapter IX — including sub-s. (3) of s. 85, sub-rule (2) of r. 135, Rule 153 and ss. 87(2) and 87(3) — which curtailed entitlement prior to full payment and limited allotment to one plot/house/apartment per member.
The court emphasized that properly made rules form part of the Act and must be followed.
Application to facts — title and payment requirement: The court observed that Rule 153 and s. 87(2) make clear that a member of a co-operative housing society does not obtain title or interest in a house or apartment until full payment as finally apportioned has been made. Because the deceased had not paid the entire amount for the allotted flat, no title, right or interest in the flat had passed to him during his lifetime.
Consequence for heirs: Since only such right, title or interest as the deceased actually had could devolve upon his heirs (reference to the principle in the Hindu Succession Act as to devolution of immovable property), and because the deceased had not acquired title by full payment, the heirs could not claim an automatic entitlement to the flat inconsistent with the Act and Rules. Nomination after the statutory period prescribed under the Act/Rules (the three-month window in s. 80(c)) did not revive or create a right inconsistent with the statutory scheme.
On the trial Judge's reasoning: The appellate court found that the trial Judge had placed strong reliance on ss. 79, 80 and 82 and Rules 127/128 but had failed to take into account the need for full payment as a precondition to title under the housing-specific provisions (Chapter IX). Hence the trial Judge erred in holding the writ petition maintainable in the broad terms he did and in directing transfer to the writ petitioner.
On procedural completeness and third-party rights: The court observed that the special officer had reallotted the flat (allegedly) to a third party in 1988, and that the writ petition, by allowing the petitioner to recover the flat, would affect the rights of that third party who had not been impleaded. Non-impleading of that potentially necessary party was a further reason the writ petition was not maintainable in the peculiar facts of the case.
Ignorance of law: The court rejected the argument that the heirs' ignorance of the rule justified their failure to exercise rights within the statutory time; the doctrine of "Ignorantia Juris Non Excusat" (ignorance of law excuses no one) was held applicable in the circumstances of this case.

Holding and Implications

Holding:

APPEAL ALLOWED; WRIT PETITION NOT MAINTAINABLE

Explanation of the holding (direct effects and legal implications, as stated in the opinion):

The appellate court concluded that the writ petition should not have been allowed by the trial court because: (a) the deceased had not acquired any title to the flat as full payment was not made, (b) the heirs could not derive rights beyond those actually possessed by the deceased, (c) the nomination and/or claimed transfer after the statutory period did not create a right contrary to the Act and Rules, and (d) a necessary third party (alleged re-allottee of 1988) was not impleaded.
The trial court's order quashing the special officer's letter of re-allotment and directing transfer to the writ petitioner was set aside by implication, and the appeal was disposed of in favour of the appellant society.
Remedial direction: Although the writ petition failed on maintainability and substantive legal grounds, the appellant (through its counsel) stated the society did not intend to deprive the heirs of the amount paid by Sati Prasanna Bhowmick. The court therefore directed that the amount paid by Sri Bhowmick (Rs. 1,00,000/-, as recorded) be refunded to his heirs and legal representatives with interest at the rate of 12% per annum from the date of filing of the writ application until payment.
Costs: In the facts and circumstances the court directed that there shall be no order as to costs.
Broader legal implication reiterated by the court: A Co-operative Society is not, generally, a "State" under Article 12; however, where a mandatory statutory provision is violated by a society, writ jurisdiction may be available. The opinion thus clarifies and limits the circumstances in which writ relief lies against such societies.

Note: This summary is strictly confined to the materials, statements and holdings contained in the provided opinion. No extraneous facts, case-law details or inferences beyond the opinion have been added.

Show all summary ...

Satyabrata Sinha, J.:—Interpretation of various provisions of the West Bengal Co-operative Societies Act (hereinafter referred to as the Act) and the Rules framed thereunder relating to the right of heirs of an allottee of a flat by a Co-operative Housing Society is the subject matter of this appeal.

2. The fact of the matter shortly stated as follows:—

One Satiprasanna Bhowmick sold major part of his residential property to the appellant-society wherefor a deed of conveyance was executed on 27th October, 1989. The consideration in respect of the said transaction i.e Rs. 1,50,000/- was adjusted as an advance in part payment of the price of 3 flats to be given by the said society. He retained one flat in his own name and surrendered the other two flats in June, 1983 to the appellant society which was duly accepted. He died on 18th August, 1985 leaving behind him five married daughters and one married son. Two share certificates had been issued to the said deceased on 30th October, 1980 and the flat being No. A/2 on the fifth floor of Mousumi Apartment was allotted to him by a letter dated 29th November, 1982. A sum of Rs. 1,00,000/- was paid to the said Society for the said apartment whence the original estimated price was Rs. 2,60,000/-.

3. On or about 6th December, 1986 i.e after expiry of the period of 3 months Dr. Subrata Bhowmick son of the said Satiprasanna Bhowmick intimated to the Society the factum of his father's death wherein a request was made for time to complete the legal process for transfer of his father's interest to one of the legal heirs. Allegedly no reply was given to the said letter. A reminder was sent on 6th December, 1988, in terms whereof the special officer who was appointed in the mean time was requested to let him know how much the legal heirs owe to the society for the flat. By a letter dated 6th December, 1986 the special officer replied stating that since the transfer of the said deceased's interest was not claimed within the stipulated time i.e 90 days, the flat has already been reallotted.

4. Admittedly, the writ petitioner-first respondent was nominated as a heir to purchase the flat. It is also accepted that she has already been allotted one flat in the said building and according to the rules, a person cannot be allotted two flats in the same building.

5. Mr. T.H Sengupta, the learned Counsel appearing on behalf of the appellant raised two questions in support of this appeal. The learned Counsel submits that keeping in view the provisions of the Act and the Rules framed thereunder as the entire consideration money for said allotted flat had not been paid, no title in respect of the flat in question passed to the petitioner and in any event, an option having not been exercised within the stipulated period, question of the said flat in favour of the writ petitioner does not arise. In any event, contends the learned Counsel, as the writ petitioner has already been allotted one flat, allotment of another flat in the said building is impermissible in law.

6. Mr. Himanshu Dutta the learned Counsel appearing on behalf of the respondent, on the other hand, relying on or on the basis of the decisions reported in Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju, reported in AIR 1990 AP 171. Firzoali Abdulkarim Jivani v. The Union of India, reported in AIR 1992 Bom 179 and Arjed Ali Gazi v. State Of West Bengal, reported in 94 CWN 515, submitted that the appellant society is a State within the meaning of Art. 12 of the Constitution of India and, thus, a writ petition is maintainable against it. The learned Counsel contends that the contention raised before this Bench had not been raised before the learned trial Judge. The learned Counsel submits that no new point can be permitted to be urged before this court and in support of his aforementioned reliance has been placed on a decision reported in AIR 1993 SC 1265.

7. According to the learned Counsel, when the original allottee died notice having been given, it was accepted that an order of re-allotment shall be made. The writ petitioner and/or her other sisters and brother being not aware of the legal position, might have erred in nominating the writ petitioner but the same was unintentional. It was submitted that the action on the part of the appellant is mala fide as the flat as still vacant despite alleged re-allotment thereof by the special officer.

8. The learned trial Judge upon taking into consideration various decisions has, inter alia, held that the writ petition was maintainable and it was impermissible for the special officer to allot the flat in question in favour of a third party who was not an heir of the original allottee as the same was contrary to the principles of natural justice. The writ petition was disposed of with the following direction:—

“Considering the facts and circumstances of the case, in my view the petitioner should succeed in this writ application. There will be an order quashing and cancelling the said letter dated 1st November, 1988, issued by the Special Officer Mousumi Co-operative Housing Society Limited, the respondent No. 3. There will be a further direction to take appropriate steps in accordance with law for transfer of the flat in question in favour of writ petitioner and also to hand over possession of the same to her upon payment of the balance amount due and payable after adjusting the said sum of Rs. 1,00,000/- paid by her father Sati Prasanna Bhowmick.

The application is accordingly disposed of. There will be no order as to costs.”

9. The question as to whether the writ petition is maintainable or not against a Co-operative Society is no longer res integra in view of a decision of one of us (S.B Sinha, J.) in Bholanath Roy v. State of West Bengal, reported in 1996 (1) CLJ 502. In that case upon taking into consideration the decision of Sudam Vanaji Shirsat v. Shetkari Sahakari Sangha Ltd., reported in AIR 1992 Bom 347 and a Division Bench of this court in Arjed Ali Gazi v. State Of West Bengal 1991 (2) CLT 211 : 94 CWN 515 and various other decisions of the Supreme Court of India and other High Courts as also the decision relied upon by the learned Counsel appearing on behalf of the writ petitioner, viz. Shri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju, reported in AIR 1990 AP 171 it has been held that a Co-operative Society is not a State within the meaning of Art. 12 of the Constitution of India but if a mandatory statutory provision is violated by a society a writ may be maintainable against it.

10. A Co-operative Society is constituted on agreement between members thereof who agree to abide by the provision of the West Bengal Co-operative Societies Act, rules framed thereunder or the bye-laws framed by the society. A Co-operative Society is not a department of the State. It is also not a creature of a statute but merely governed by a statute like Companies Act. In that view of the matter a writ petition would be maintainable only if it is shown that a mandatory provision of a statute has been violated. The learned trial Judge, therefore, was not correct in holding that the writ petition against a Co-operative Society would maintainable on all situations.

11. The contention raised by Mr. Sengupta being pure questions of law, we are of the opinion that the same can be permitted to be raised in this appeal and in that view of the matter the submissions of Mr. Dutta that they cannot be permitted to raise in this appeal must be rejected.

12. Let us now consider the relevant provision of the Act. Section 2(18) of the West Bengal Societies Act defines a Co-operative Housing Society to mean a Co-operative Society, the object of which is to provide its members with dwelling house, apartment or lands for construction of dwelling houses or apartments, and maintenance of common services on connection therewith and includes a federation of such societies.

Section 2(28) defines a member in the following terms:

“Member means a person joining in an application for registration of a co-operative society which is subsequently registered or a person admitted to the membership of a co-operative society after its registration under this Act, and includes a joint member.

Explanation.— For the purpose of this clause joint member shall mean any one of the persons (including husband and wife and father and son or unmarried daughter) jointly admitted to the membership of a co-operative society.”

Section 2(32) of the Act reads thus:—

“Prescribed means prescribed by rules made under this Act.”

The word “relative” has not been defined but in terms of s. 2(38) of the Act but it has the same meaning as in the Companies Act.

13. Section 79 provides for a nomination of transferee which is in the following terms:—

“Subject to the by-laws of a co-operative society, any member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share of interest of such member on his death.”

Section 80(b) and (c) read thus:—

“(b) If there is no nominee or if the existence 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, letter of administration or succession certificate) appears to the board to be entitled in accordance with the rules to the possession of such share or interest as part of the estate of the deceased member; or

(c) On the application of the person referred to in clause (b) within three months from the date of death of the member, to such person as may be specified in the application.”

Section 82(b) provides:—

“When the membership of a member of a co-operative society referred to in clause (a) terminated by reason of death, expulsion, resignation or insanity or any other cause, his possession of, or interest in, any land held by him under the co-operative society shall vest in his heir, executor or administrator or in the person, if any, nominated by him under s. 79, if such heir, executor, administrator or person is willing to be admitted as a member of the co-operative society and is eligible for membership under s. 69.”

14. Rule 128 deals with the disposal of the member's share or interest and procedure for calculation of value of shares which read thus:—

“(1) When upon the death of a member of a Co-operative society, the question of transferring the share, or paying interest of such deceased member arises, and the board of such society finds that the deceased member did not make any nomination in accordance with the provisions of s. 79, or that the existence or residential address of the person nominated cannot be ascertained, or that for any other sufficient cause such transfer or payment cannot be made without unreasonable delay, the board may transfer the share or pay interest of such deceased member in favour of or to any person who presents in writing his or her claim for the said share or interest and produces, in support of such claims, probate, letter of administration or succession certificate issued by a competent court having jurisdiction, and makes a written declaration in an affidavit before a Magistrate that he or she is the rightful claimant, being the legal heir or representative of the deceased.

(2)(a) Where a co-operative society has to make a refund of the value of a share, the value of the share shall be deemed to be equal to the amount paid upon the share:

Provided that where a portion of the assets is estimated to be bad or doubtful in the latest audited balance sheet, and is not covered by funds created out of profits, the board may, for the purpose of such payment, reduce the valre of the share, in the same proportions as the aggregate amount of assets which are not bad or doubtful, less the amount of outside liabilities, bears to the paid-up share capital.

(b) Where a transfer of share or interest is made, the value of the share of interest shall be deemed to be the sum actually paid by the member for the acquisition of such share or interest.”

15. Rule 153 provides that a member of a co-operative housing society shall not be entitled to any title or interest in any land, house or apartment unless he has made full payment towards the cost of such land, house or apartment as may be finally apportioned by the society.

16. Chapter-IX provides for special provision for co-operative housing society. Sub-section (3) of s. 85 reads thus:—

“A person shall not be a promoter or admitted as a member of a co-operative housing society until he has made a declaration and sworn before an Executive Magistrate to the effect that he is not a member of any other co-operative housing society in West Bengal and that he or any member of his family does not own any house or apartment or plot of land in the city, town or village where the co-operative housing society is located.

Sub-rule (2) of r. 135 reads thus:—

“In a co-operative housing society the member or members shall not exceed the total number of plots, houses or apartments proposed by a society to be allotted to members under any scheme or project of such society:

Provided that a member shall be eligible for allotment of only one plot, house or apartment in a housing co-operative society.”

Sub-section (2) of s. 87 provides that a member of a co-operative housing society shall not be entitled to any title or interest in any plot of land or house or apartment in a multi-storied building until he has made such payment as may be prescribed towards the cost of such plot of land or construction of such house or apartment or both, as the case may be, to the co-operative housing society.

Sub-section (3) of s. 87 reads thus:—

“A plot of land or a house or an apartment in a multi-storied 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.”

17. It is now well settled that if rules have been properly made, the same becomes part of the Act.

18. A bare perusal of the aforementioned provisions leave no manner of doubt that the appellant does not have any right to allotment of a flat nor the heirs of the deceased could claim title in relation to the flat in question in violation of the provision of the statute. The allotment is the business of the society. The writ petitioner-respondent is bound by the provisions of Chapter-IX of the said Act.

19. The learned trial Judge appears to have placed strong reliance upon the provision of Ss. 79, 80 and 82 as also Rr. 127 and 128 of the rules but evidently he has failed to take into consideration that keeping in view the fact the entire amount has not been paid, no right, title and interest had passed in favour of the aforementioned Sati Prasanna Bhowmick.

20. The deceased Sati Prasanna Bhowmick, thus, despite being a member of the society and despite having been allotted a flat did not become holder of a title in respect thereof. In terms of the provision of Hindu Succession Act, only a right, title or interest in immovable property devolve upon his successors in interest. Sub-section (3) of s. 85 of the Act being a special statute would govern the relationship of the parties and in terms thereof the said Late Sati Prasanna Bhowmick did not derive any right, title and interest in the flat in question, and, thus, the question of his heirs and successors being automatically entitled thereto does not arise. Sri Sati Prasanna Bhowmick thus, during his life time merely remained a member and in terms of the provisions of the said Act, the membership which was inheritable could be claimed in the manner laid down under the Act or the rules framed thereunder. It stands admitted that the heirs nominated the writ petitioner after expiry of the stipulated period, who, therefore, could not derive any right contrary to or inconsistent with the provision of the Act.

21. Their right, title and interest, if any, on the death of Late Sati Prasanna Bhowmick was only to the extent he had acquired a right. If the rule of the devolution of membership was not adhered to and was not put forward within the time stipulated under the statute, such right stands extinguished. The learned trial Judge was, therefore, not correct in coming to the findings noted hereinbefore.

22. The contention of Mr. Dutta that the heirs of Late Sri Bhowmick did not know the rule, and as such might have committed a mistake in nominating the writ petitioner is misplaced as in a case of this nature the doctrine of ‘Ignorantia Juris Non Excusat’ shall be attracted. Although the said doctrine does not have any universal application and has many exceptions, in the instant case the writ petitioner alone having been nominated by her brother and other sisters, the consequences emanating from the law would automatically come into force and, thus, she being owner of a flat under the law cannot be allotted another flat; logical corrollary of which is that she cannot claim existence of any legal right so as to enable this court to issue a writ of or in the nature of Mandamus as has been prayed for.

23. The petitioners thus, having failed to show that any mandatory provision of statute has been violated by the appellant society, the writ petition was not maintainable. In fact, the writ petition ought to have been dismissed also on the ground that the special officer rightly or wrongly had reallotted the flat as far back as in the year 1988 in favour of a third party. By reason of allowing the writ application the right of the said third 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 also not maintainable for non-impleading a necessary party.

It is a case where the question of ownership was required to be considered vis-a-vis the right of third party.

There cannot, therefore, be any doubt that the writ petition was not maintainable in the peculiar facts and circumstances of this case.

24. Before parting with this case, however, we may record that Mr. Sengupta in his usual fairness has stated that the society does not intend to deprive the heirs of Late Sati Prasanna Bhowmick of the amount paid in favour of the society and such amount shall be refunded with interest. We, therefore direct that the amount paid by Sri Bhowmick be refunded to his heirs and legal representatives with interest at the rate of 12% per annum from the date of filing of the writ application till payment. This appeal is, thus, disposed of. In the facts and circumstances of this case we direct that there shall be no order as to costs.

Ronojit Kumar Mitra, J.:—I agree.

Appeal allowed with direction.

J.N.H