- (1.) CHALLENGING the judgment and order dated 24th September, 2004 passed in W. P. No. 6354 (W) of 2004 those two appeals have been preferred by the writ petitioner and the Co-operative Housing Society respectively. The writ petitioner-appellant breathed last and a substitution application was filed seeking substitution of the legal heirs, namely, the wife, Smt. Tara Chowdhrury and two daughters, namely, Rupa Chowdhury and Soma Chowdhury. By the order dated 4th January, 2007, Division Bench (Coram: Ashim Kumar Banerjee and Sankar prasad Mitra,jj.) allowed the substitution application, which read such: "the original writ petitioner approached the writ court ventilating his grievance as according to him, his fundamental right had been infringed. The learned single Judge dismissed the writ petition. Being aggrieved by and dissatisfied with the judgment and order of the learned single Judge, the appellant filed the present appeal. During the pendency of the appeal the appellant died leaving him surviving his widow and two unmarried daughters. The widow has now come up for substitution. The unmarried daughters have authorized their mother, the applicant to make the application on their behalf as would appeal from page 15 of the application. The substitution application is now being opposed by Mr. Ganguly, learned Counsel appearing for the private respondent. Mr. Ganguly submits that the application should have been made by all the heirs of the appellant. In absence of the daughters this application is not maintainable. Moreover, ninety days have passed from the date of filing of the appeal. Hence, even the prayer for substitution of the daughters as well made today, would be barred by laws of limitation. The appeal is continuation of the writ proceeding. The appellant approached this court ventilating his grievance on the ground that his fundamental right had been infringed. He was unsuccessful before the learned single Judge. He preferred the appeal. During the pendency of the appeal, he died. In this backdrop, it would not be proper for us to dismiss the application for substitution on the ground as canvassed by Mr. Ganguly. The applicant Smt. Tara Chowdhury and her two daughters namely, Rupa Chowdhury and Soma Chowdhury, all residing at no. 71, Raha Raj Ballav Street, Kolkata be substituted as appellants in place and stead of the deceased appellant. CAN 2883 of 2006 is disposed of accordingly without any order as to costs. "
(2.) THESE appeals have checkered history. The factual matrix has been detailed in short by the learned trial Judge by rejecting the writ application. Both appeals have been opposed by the respondent no. 5, Smt. Krishna Mukherjee, wife of late Dr. Arup Mukherjee. Dr. Arup Mukherjee was the promoter-member of the Housing Society and was allotted with the plot no. C-1 i. e. the ground floor flat of the concerned Housing Society. On death though Smt. Krishna Mukherjee got a right to be the member of the Housing Society, same was not implemented by the Housing Society following their bye-laws and the West Bengal Co-operative Societies Act, 1983 and Rules, 1987. Learned trial Judge discussed that even the valuation of the flat was not done before canceling the claim of heritable right of Smt. Krishna Mukherjee under Section 85 of the West Bengal Co-operative Societies Act. Initially, Smt. Krishna Mukherjee raised a dispute case but failed to get any order on the main reasoning that she did not agree to be the member despite repeated letters send by the Co-operative Housing Society and on the other reasoning that one Sri Plaban Basu already got allotment of the flat by approval of Deputy Registrar, Co-operative Societies, West Bengal on the basis of the requisition send by the Housing Society. Learned trial Judge discussed that issue of allotment of flat to Sri Plaban Basu as an exercise of fraud by a positive finding that the Society misrepresented the fact by sending the papers contending, inter alia, that Dr. Mukherjee resigned from the membership and on that score, the permission was accorded by the Deputy Registrar, Co-operative Society. Learned trial Judge held the said action as nullity in the eye of law and entry of Sri Plaban Basu into the flat in question was vitiated due to the fraud exercised by the Society. The relevant portion whereby Deputy Registrar, Co-operative Society approved the application for membership of Sri Plaban Basu supports the misrepresentation issue as it is held therein that the vacancy was caused due to resignation of Dr. Mukherjee. The relevant portion of said approval decision as quoted by learned trial Judge reads such: "permission is hereby accorded to admit the following persons as a member of the Space Co-operative Housing Society Ltd. in the vacancy caused by resignation whose name is noted against: 1. Sri Plaban Basu S/o. Sri S. Basu in place of late Arup Mukherjee under the following conditions: Provision of the WBCS Act, 1972 and rules thereunder are to be observed before giving effect of new membership. "
(3.) THEREAFTER, said Sri Plaban Basu desired a change of allotment of flat from ground floor to top floor of the said Housing Society and it was allowed by exchange with Sri M. P. Pal, another member of the Society. Sri M. P. Pal thereafter intended to sale the flat no. C-1 to one Sri Benoy Krishna Chowdhury since deceased and applied for necessary permission of Co-operative Society and the Registrar, Co-operative Society. The Co-operative Society referred the papers to Deputy Registrar, Co-operative Society. As there was delay to dispose it, said Sri Benoy Krishna Chowdhury moved a writ application registered as W. P. No. 111 (W) of 2004 seeking a direction to Deputy Registrar, Co-operative Housing Societies, Calcutta Metropolitan Area Housing to dispose of his application seeking permission of sale of the flat in question. In this writ application Smt. Krishna Mukherjee was not made as a party. Pranab Kr. Chattopadhyay,j. dispose of the writ application by the order dated 28th January, 2004 directing to dispose of the representation being annexure "p-11" by the said Officer, which was a lawyers letter filed before the said Deputy Registrar on behalf of the writ petitioner, Sri Benoy Krishna Chowdhury. The order dated 28th January, 2004 passed in W. P. No. 111 (W) of 2004 reads such: "having heard the learned counsel appearing for the parties and considering the facts and circumstances of this case, I dispose of this petition by directing the Deputy Registrar of Co-operative Housing Societies, Calcutta Metropolitan Housing to decide the claim of the petitioner for approval of his membership in the Space Co-operative Housing Society Limited after considering the written representation made on behalf of the said petitioner being Annexure P-11 to the writ petition without any further delay but positively within a period of four weeks from the date of communication of this order and after granting an opportunity of hearing to the petitioner and other necessary parties. Needless to mention that said Deputy Registrar will pass a reasoned order in the matter and will communicate a copy of the same to the petitioner within a week from the date of such order. Learned advocate of the petitioner is directed to communicate the gist of this order together with a copy of the written representation dated 15th July, 2001 being Annexure P-1 to the writ petition to the said Deputy Registrar, Co-operative Housing Society immediately. There will, however, be no order as to costs. Urgent xerox certified copy, if applied for, be handed over to the parties on usual undertaking. ";