Holding

The writ petition is not maintainable as the cooperative society is a private body with no public duty, and the dispute involves a private title issue that must be resolved before invoking fundamental rights.

Summary

The dispute concerned the allocation of 156 car parking spaces in Samdrita Co-operative Housing Society Ltd, where owners of Type B flats claimed exclusive entitlement while owners of Type A flats relied on a Housing Commissioner’s letter asserting their rights. The petitioners filed a writ petition challenging the society’s authority to sell the spaces and the convening of an Annual General Body Meeting to discuss the matter. The Calcutta High Court held the writ non‑maintainable, reasoning that the society is a private body with no public duty and that the issue was a private title dispute. On appeal, the Supreme Court affirmed this view, stating that a cooperative society is not a state department nor a creature of a statute, and a writ of mandamus can only be issued where a mandatory statutory duty is violated. The Court further held that a party must first establish a clear title before invoking the fundamental right to hold property, and that the society is free to discuss entitlement issues in its AGM. Consequently, the appeal was dismissed without costs.

Issues considered

Whether a writ petition is maintainable against a cooperative housing society concerning the allocation of parking spaces.
Whether the society, as a private body, is subject to a public duty enforceable by mandamus.
Whether petitioners can claim infringement of the fundamental right to hold property without having established title.
Whether the society can discuss entitlement of members in its Annual General Body Meeting.

Legislation cited

West Bengal Co-operative Societies Act, 1983

Subjects

cooperative societywrit petitionmandamuspublic dutyfundamental right to propertyparking space allocationannual general meetingprivate body

Judgment

SUPRIY A BASU AND ORS A
v.
WEST BENGAL HOUSING BOARD AND ORS.

AUGUST 5, 2005

[ARJJIT PASAYAT AND H.K. SEMA, JJ.]
B

West Bengal Co-operative Societies Act, 1983; Rules/Bye-laws framed
thereunder :

Co-operative Housing Society-Parking spaces-Allotment to Type A C
or Type B Unit-holders-Challenge to-Held: The Society is neither a State
department nor a creature of a Statute-Writ petition not maintainable
: against it-Since title itself is in dispute, a party cannot complain of
infringement of violation of its fundamental. rights based on the title-It is
not open to deal with such issues in a writ petition.
D
The questions which arose for consideration in this Appeal were as
to whether the covered car parking spaces could be sold by a Co-operative
Housing Society to allottees of A and B Type Units or to B Type Units
only and as to whether the Society could discuss the questions as to
entitlement of its members in the Annual General Body Meeting of the E
Society.

Dismissing the appeal, the Court

HELD : 1.1. The Society is undisputedly not a department of the
State and is also not. a creature of a Statute but merely governed by a F
Statute. Only if-it is established that the mandatory provision of a Statute
has been violated, a writ petition could be maintainable. [354-B-C)

1.2. Before a party can complain of an infringement of his
fundamental right to hold pr~perty, he must establish that he has title to
that property and if his title itself is in dispute and is the subject matter G
of adjudication in proceedings legally constituted, he cannot put forward
any claim based on the title until as a result of that enquiry he is able to
establish his title. It is only thereafter that the question whether the rights
in or to that property have been improperly or illegally infringed could
arise. The dispute, as noted by the High Court, essentially related tq the H
351
352 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A claims of two rival groups of private individuals in relation to common
car parkin& spaces. Single Judge of the Hi&h Court gave certain directions,
which even touched upon the leaality of the sale de4'Cls. It was not open
to be dealt with in a writ petition. [354-C-E)

UP. State Co-operative Land Development Bank Ltd v. Chandra Bhan
B
Dubey & Ors., AIR (1999) SC 753, relied on.

1.3. The writ petitioners could not have questioned the decision of
the Society to discuss the matter in the Annual General Body Meeting.
The Society is free to convene a General Body Meeting and to discuss the
c rival claims regarding entitlement. It is clarified that no opinion is expressed
on that aspect of the matter. [354-F-G)

CIVIL.APPELLATE JURISDICTION : Civil Appeal No. 1766 of2002.

From the Judgment and Order dated 24.4.2000 of the Calcutta High
D Court in M.A.T. No. 1488 of 1999 with C.O.T. No. 3005 of 1999.

S.B. Sanyal, Dhruv Agarwal and Praveen Kumar for the Appellants.

Raju Ramachandran, Parthapratim Chaudhary, Saurabh Suman Sinha,
E Aditya Shanna and K.S. Rana and Avijit Bhattacharjee for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J; : Appellants call in question correctness of the
judgment rendered by a Division Bench of the Calcutta High Court holding
F that the writ petition filed by them is not maintainable. Accordingly, it set
aside judgment of learned Single Judge who had entertained the writ petition
and given some directions.

The dispute related to the allotment of 1. 56 car parking spaces. The
appellants who are occupying B Type flats took the stand that the car parking
G spaces were to be allotted only to them and not to A type flat owners.
Questioning the legality of a letter purportedly issued by the Housing
Commissioner dated 6th June, 1995 giving certain clarifications about
entitlement of A type flat owners a writ petition was filed with a prayer that
the letter was without any authority and even if any action has been taken
H by the respondents-West Bengal Housing Board (hereinafter referred to as
SUPRIYA BASU v. WEST BENGAL HOUSING BOARD [PASA YAT, J. ]353

the 'Board') and/or Samdrita Co-operative Housing Society Ltd (in short the A
':Society') in selling the parking spaces or any issue connected thereto, it was
inoperative and invalid. Learned Single Judge accepted the plea overruling
the contention raised by the Board/Society and A type flat owners who were
parties in the proceedings about maintainability of the writ petition and gave
c'ertain directions. B
The order of the learned Single Judge was questioned in Letters Patent
Appeal before the Division Bench which by the impugned order held that
writ petition would not lie against a society and the writ petition was therefore
clearly not maintainable as no statutory action has been assailed.
c
The only question which arose for consideration was whether the
covered car parking spaces could be sold to both allottees of A and B type
, units or to B type unit only. A notice dated 21.5.1995 was issued by the
Society proposing to consider and discuss the matter at its Annual General
Body Meeting. Members of the Society in question comprised of both type
of allottees i.e. A and B type units. The prayer in the writ petition was to D
declare that the proposed meeting was convened without any authority.

The High Court by the impugned judgment held that a mandamus would
lie only if the duty imposed on the respondent-Society is of public nature and
the writ of mandamus could be issued for enforcing compliance with such E
public duty. Two exceptions as noted by the High Court were:.(i)jfthe rights
are purely of a private character and (ii) if the body against which a
mandamus is to be issued is purely a private body with no public duty. It
was noted by the High Court that the rights claimed by the writ petitioners
are purely of private character and the Society is a private body with no public
duty, and a writ Court would not embark upon enquiry into disputed F
questions of title. Accordingly, the writ petition was held to be not maintainable.
It was noted that the question whether the letter of the Housing Commissioner
was an administrative decision or not was not required to be adjudicated as.
the writ petition was not maintainable and since he had not adjudicated any
dispute before him. G
In support of the appeal, learned counsel for the appellants submitted
that the High Court has taken a very technical view without realizing that
the rights which the writ petitioners wanted to enforce are relatable to a
scheme framed by the Board and, therefore, non- observance of the provisions
of the scheme amounted to breach of public duty. H
354 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A According to learned counsel for the respondents the High Court has
rightly held tha.t the writ petition was not maintainable and that there was not
even semblance of public duty.

The rival stands need consideration on the core issue of maintainability
B of the writ petition, though several other issues were raised by learned counsel
for the appellants. It is undisputed that the respondent-Society is a co-
operative society constituted on agreement between members thereof who
had· agreed to abide by the provisions of the West Bengal Co-operative
Societies Act, 1983, the Rules framed thereunder or the bye-laws framed by
the Society. The Society is undisputedly not a department of the State and
c is also not a creature of a statute but merely governed by a statute. Only if
it is established that the mandatory provision of a Statute has been violated,
a writ petition could be maintainable. Before a party can complain of an
infringement of his fundamental right to hold property, he must establish that
he has title to that property and if his title itself is in dispute and is the subject
D matter of adjudication in proceedings legally constituted, he cannot put
forward any claim based on the title until as a result of that enquiry he is
able to establish his title. It is only thereafter that the question whether the
rights in or to that property have been improperly or illegally infringed could
arise. The dispute as noted by the High Court essentially related to the claims
of two rival groups of private individuals in relation to common car parking
E spaces. Learned Single Judge gave certain directions, which even touched
upon the legality of the sale deeds. It was not open to be dealt with in a writ
.\-
I

petition. As observed by this Court in U.P. State Co-operative Land
Development Bank Ltd. v. Chandra Bhan Dubey and Ors., AIR (1999) SC
753 in relation to the question whether a writ petition would lie against a
F Cooperative Society the question to be considered is what is the nature of
the statutory duty placed on it and the Cou..rt is to enforce such statutory public
duty. The question as to entitlement of the members was to be discussed in
the Annual General Body Meeting. The writ petitioners could not have
questioned the decision of the Society to discuss the matter in the Annual
General Body Meeting. We, therefore, find no merit in this appeal. The
G Society is free to convene a General Body Meeting and to discuss the rival
claims regarding entitlement. We make it clear that we have not expressed
any opinion on that aspect of the matter. The appeal fails, but without any
order as to costs.

H S.K.S . Appeal dismissed.

.