Alok Kumar Basu, J. - (1.) A very important question of law having far reaching consequences on the working of Housing Co-operatives of the State has been raised through the present appeal.
(2.) For better appreciation of the points raised in the appeal, it would be proper to give the background behind filing of the present appeal, which is as follows: One Biswa Ranjan Sengupta, who died on 22nd July, 2003, hereinafter referred to as "the said deceased" was a member of the respondent Co-operative Housing Society, hereinafter referred to as "the said Society", and was allotted a flat in the apartment constructed by the said Society. The writ petitioner is the married daughter of the said deceased. During the lifetime of the said deceased, he nominated the petitioner in respect of his share and interest in the said Society and, accordingly, such nomination was recorded in the Register maintained by the said Society for that purpose. By a letter dated 13th November, 2003 the said Society informed the petitioner that she could not be admitted as a member of the said Society because she was no longer a member of the family of the said deceased. This stand was taken by the said Society on the basis of the stand taken by the Deputy Registrar, West Bengal Co-operative Societies, as communicated by a letter dated 11th November, 2003 addressed by him to the said Society. The contents of that letter dated 11th November, 2003 is as follows: "With reference to his letter above, this is to inform him that as late Sengupta had family of his own, the nomination made by late Sengupta in favour of Smt. Wahi can't be accepted, as it was not done in terms of section 79 of W. B.C. S. Act read with Rule 127 of W. B. C. S. Rules, 1987. Hence letter of administration/succession certificate is required in favour of Smt. Wahi in terms of Rule 128 of W.B.C.S. Rules, 1987."
(3.) This stand taken by the Deputy Registrar of Co-operative Societies, which was followed by the said Society was the subject-matter of challenge in the writ petition. Section 79 of the West Bengal Co-operative Societies Act, 1983 and Rules 127 and 128 of the West Bengal Co-operative Societies Rules, 1987 are as follows: Section 79 of the West Bengal Co-operative Societies Act. "Section 79. Nomination of transferee.-Subject to the by-laws of a cooperative society, a member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share or interest of such member on his death." Rules 127 and 128 of the West Bengal Co-operative Societies Rules. "127. Nomination of transferee.-{1} A member of a co-operative society may in accordance with the provision of section 79, nominate in writing any person belonging to his family to whom the share or interest or the value of such share or interest shall, on his death, be paid or transferred under the provision of the Act: Provided that if a member has no family he may nominate any person to whom such share or interest or the value of such share or interest shall be paid or transferred. Provided further that such member may, from time to time, revoke such nomination and make a fresh nomination. (2) Every co-operative society shall keep a register of all person so nominated. (3) In case the nominee of a member dies, the member shall report the death to the society and make a fresh nomination if he so desires. Explanation.-For the purpose of this rule a family shall have the same meaning as given in the Explanation to sub-section (2) of section 13 and shall include major sons and daughters. 128. Disposal of deceased member's share or interest and procedure for calculation of value of shares.-(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 arise, and the board of such society finds that the deceased member did not make any nomination in accordance with the provisions of section 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 and 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 value 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 or interest shall be deemed to be the sum actually paid by the member for the acquisition of such share or interest.";