S.N. Sapra. J.

1. In this writ petition, petitioner seeks to challenge the decision and directions of respondents 1 and 4, to cancel the lease of plot No. 7, Ishwar Nagar, Delhi.

2. The main question involved, in this writ petition, is, with regard to interpretation of Section 26 of Delhi Cooperative Societies Act, 1972, hereinafter called the Act.

3. Briefly stated, the facts of the case are, as under:

Delhi Development Authority, respondent No. 5 herein, in its discharge of statutory obligations, had agreed to transfer land, to Ishwar Nagar Co-operative House Building Society Ltd., hereinafter called the Society, for the purpose of allotment of residential plots to its members. Land measuring 50 Bighas and 9 Biswas, was conveyed to the Society, vide perpetual lease-deed dated April 6, 1978. As per its bye-laws and subject to the terms and conditions of the lease-deed, executed between the President of India and the Society, and, further subject to the Act and Delhi Cooperative Societies Rules, 1973, hereinafter called the Rules, Society allotted the plots to its members in Ishwar Nagar.

4. Shrl Rajender Nath Bhaskar, late husband of petitioner, was a founder member of the Society and, as such, in his capacity as a member, was allotted a plot, being plot No. 7, measuring about 598 sq. yds. situated in Ishwar Nagar, New Delhi. As a result of allotment, a perpetual sub-lease deed dated September 7, 1979, was executed between the President of India (the lessor), the Society, and Shri Rajinder Nath Bhaskar. The perpetual sub-lease deed was duly registered.

5. Shri Rajender Nath Bhaskar died on September 7, 1982, leaving behind the petitioner, i.e. his wife, amongst other heirs.

6. As per Rule 35 of the Rules, every member of the Society may give a nomination, in favour of a person, with regard to his shares/interest in the Society. However, petitioner was not aware, as to the name of the nominee, appointed by her late husband. But, petitioner was under a bona fide belief that she was the nominee of her husband, with regard to the aforesaid plot

7. After the death of her husband, petitioner requested the Society to show the original form, with regard to the nomination, which the Society is under an obligation to maintain, in regular course of its business. For this purpose, petitioner made several requests, verbally, as well as, in writing. When Society failed to accede to the request of petitioner, then a notice was served upon the Society through an advocate. Vide letter dated September 28, 1983, petitioner was informed by the Society that son of petitioner was the nominee, with respect to the aforesaid plot. According to petitioner, it was not correct, since the petitioner had reliably learnt that the nomination had not been made, in favour of the son of the petitioner, by her late husband.

8. Petitioner insisted upon her claim and, in fact, respondent No. 5 duly accepted her requests and vide its letter dated April 5, 1984, called upon petitioner to furnish various documents, mentioned therein. It is further alleged that respondents 2 and 3 were the persons, responsible for carrying on the business of the Society. Respondent No. 2 is related to petitioner and serious disputes and differences started between the family members of petitioner and that of the said respondent. Number of cases have been pending in this Court and before the Company Judge, with regard to the affairs of the various companies, in which petitioner and her family members have lawful interests.

9. According to petitioner, respondent No. 2, in furtherance of his mala fide motive, and with intention to cause injury to petitioner, persuaded and colluded with respondent No. 4. Petitioner believed that respondent No. 4, in collusion with other respondents, issued a letter dated April 2, 1984, to respondent No. 5. thereby, requiring them to cancel the allotment of plot No. 7, from the name of deceased husband of petitioner and revert back the plot to the society. Though according to petitioner, no final order has been passed by respondent No. 5, that at no point of time, subsequent to September 28, 1983, petitioner was ever intimated or given any notice by respondent No. 4 or other respondents that they had any reasons to pass any order or write the letter dated April 2, 1984, at the back of petitioner.

10. On June 24, 1984, respondent No. 2 along with certain other persons, came to the aforesaid plot, and threatened to take possession of the same. However, respondent No. 2 or any other persons, failed to show any order, passed by any Competent Authority, for giving the possession and/or any order, by which, the allotment of plot stood cancelled.

11. It is alleged that respondents have no right, locus standi or jurisdiction to cancel the plot, which stands in the name of Shri Rajender Nath Bhaskar.

12. In its counter affidavit, the Society has alleged that the writ petition cannot be entertained without petitioner first exhausting all other remedies. Moreover, the writ petition is liable to be rejected. No fundamental rights of petitioner, as such, are involved or breached by any action of respondents. Petition is bad for non joinder of necessary parties, because, all other legal heirs of late Shri Rajender Nath Bhaskar, have not been impleaded. On merits, the Society has stated that late Shri Rajender Nath Bhaskar had made nomination in 1955, in favour of his son, namely, Shri Rajiv/Rajbir. The Society also denied that at any point of time, petitioner, either orally or in writing requested the Society to show the records. The Society further alleged that the Managing Committee, at its emergent meeting, held on June 25, 1984, passed the following resolution:

That plot No. 7 formerly sub-leased to late Shri Rajender Nath Bhaskar be and is reverted back to the Society in view of the fact that neither the nominee nor the heirs applied to the society within prescribed limit of one month (vide Section 26(1)(ii) of the Cooperative Societies Act, 1972) from the date of the death of deceased Shri Rajender Nath Bhaskar and as required by the Registrar, Cooperative Societies under his letter No. F. 46(1307)/8/75/Coop. dated 2.4.1984. The nominees as well as the heirs thus forfeited their right in the matter. The membership of late Shri Rajender Nath Bhaskar automatically ceased on his death on 7.9.1982. His shares of Rs. 500 are transferred from share capital account to share payable account for paying to the legal claimants who are being intimated accordingly.

13. In its affidavit, respondent No. 5, the D.D.A. has alleged that the writ petition is not maintainable, as it involves disputed questions of fact.

14. Petitioner filed an additional affidavit, thereby incorporating events, subsequent to the filing of the writ petition. In her additional affidavit, petitioner stated that she received a notice on or about July 1, 1984, by which, she was informed that the Registrar, respondent No. 4, had passed an order dated April 2, 1984, thereby, holding that plot No. 7, which was subject matter of the present writ petition, had been reverted back to the society and that it has been so directed by the Registrar. It is further alleged that the heirs if the deceased lodged the claim within the required period and that the Society, in fact, had taken action on that. It is further alleged that action of respondent is discriminatory because, as other people, whose proposals for cancellation of plots have been made, no action whatsoever was taken by the Society against them. Copy of the letter dated June 25, 1984, whereby, petitioner was informed about the Resolution, has also been enclosed.

15. The first question, which arise for decision is, whether the writ petition is maintainable against the Society, as the Society is a private institution which has nothing to do with any constitutional right, and, as such, the Society is not amenable to the writ jurisdiction.

16. Mr. Arun Mohan, learned counsel for petitioner, has contended that there is Delhi Cooperative Societies Act, 1972, and the Rules framed thereunder. For an Inhabitant in Delhi, to get a land, he has to become a member of a cooperative society. This is more or less the only avenue left, for the public to get plots or flats. The Registrar of Cooperative, Societies, is an overall incharge of all the Cooperative Societies. The Delhi Development Authority, which has been constituted to carry out planned development of Delhi, gives land to the Societies. Under these circumstances, it is contended, that a Cooperative Society is an agent of the Delhi Development Authority and, therefore, an authority within the meaning of Article 12 of the Constitution of India. Delhi Development Authority and the Registrar of Cooperative Societies, are also parties to the writ petition. As, the perpetual sub-lease, having been executed, the matter comes directly between the domain of the D.D.A., respondent No. 5, on the one hand and, the sub-lessee or his heirs, on the other. Similarly, the Registrar exercises overall control and jurisdiction on the Society.

17. The next contention of Mr. Arun Mohan, was that, even, if the Society was not an authority, and ordinarily a writ may not lie against a cooperative society, even then, the circumstances of the case are such, where the Court should exercise its writ jurisdiction, because gross injustice patent on the face of it, has been done to petitioner. The provisions of Section 26 of the Act, which are capable of being misused, affecting lives of thousands of plot holders, required to be correctly interpreted.

18. Whether, the Society, registered under the Societies Registration Act, is amenable to the writ jurisdiction, this question has been considered and determined be various Courts, from time to time.

19. The High Court of Calcutta in Madan Mohan v. State, AIR 1966 Calcutta 23, was considering the question, whether a Cooperative Society, registered under the Bengal Cooperative Societies Act, 1940, or its Managing Committee was amenable to writ jurisdiction. Their Lordships held that the management of the affairs and activities of the Society, were inter alia, controlled by the Registrar of Cooperative Societies, who was a public authority. Such affairs could not be private affairs. It was not necessary that a body, in order to be a public body, ought to be constituted by a statute, though its powers and duties were created by an Act or the Rules. Even, where the Society was a person, there could not be any broad and general proposition, that no writ would lie against such a person. It depends on particular facts of each case.

20. In P.B.K. Rajachidambaram v. R.P. Rathana Sharma, AIR 1967 Madras 182, the Madras High Court held that the writ would be issued against a cooperative society.

21. In Praga Tools v. Imanual, AIR 1969 SC 1306 [LQ/SC/1969/81] , their Lordships of the Supreme Court were considering the question, whether a writ would lie against a Company, incorporated under the Companies Act. Though, the writ was disallowed, but it was held that the writ could be issued, only in case of legal right to performance of legal duty. It was further held that it was not necessary that the person or the Authority, in whom the statutory duty was imposed, need be a public official or an official body. However, at the same time, their Lordships observed that the Company, being a non-statutory body and, once incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it, by a statute, in respect of which, enforcement could be sought by means of a mandamus.

22. In Ramswarup v. M.P. State Coop. M. Federation, AIR 1976 Madhya Pradesh 152, following three questions came for consideration, before the Full Bench of the Madhya Pradesh High Court:

(i) Whether a cooperative society, registered under the M.P. Cooperative Societies Act, is a statutory body

(ii) Whether a writ of mandamus, direction or order can be issued under Article 226 of the Constitution by a High Court against a Cooperative Society registered under M.P. Cooperative Societies Act, 1960

(iii) Whether the High Court can issue an appropriate writ, direction or order against a cooperative society or its officers, who was in violation of the Act or Bye-laws

The Full Bench held that the Cooperative Society was not a statutory body. But, the Full Bench, relying on the judgment of the Supreme Court in Praga, Tools, held:

But if there is a statutory obligation in respect of any subject matter on the Society to carry out the same and the Society fails to do so, or acts in contravention of the same it may be a proper subject matter for issuing a writ in appropriate cases commanding compliance of the statutory requirements. In other words so long as no case is made out of any breach of any statutory provision or existence of legal right in one, who claims the writ and a legal obligation in the Society to do something, no writ can be issued against the Society. Whenever, it is pointed out that any statutory provision requiring the Society to act in a particular manner creates a right in favour of the person concerned, it will be permissible for such person to approach the High Court for seeking the writ of mandamus to direct the Society to obey the statute and not to commit breach of the same. Thus we would like to make it clear that the Cooperative Society will be amenable to writ jurisdiction only in case relating to performance of legal obligation and duties imposed by a statute creating a corresponding legal right in one.

23. In State of U.P. and Others v. Maharaja Dharmander Prasad Singh etc. and Lucknow Dev. Authority and Others v. Maharani Rajlaxmi Kumari Devi and others etc., AIR 1989 Supreme Court 997, their Lordships of the Supreme Court, where considering the question, whether the purported forfeiture and cancellation of the lease, in respect of Nazool land, by the State Government, could be allowed or not to be allowed to be agitated in the proceedings under Article 226 of the Constitution of India. It was Held:

On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of fact as well. In Express Newspapers v. Union of India, 1985 Supp. (3) SCR 382: (AIR 1986 SC 872 [LQ/SC/1985/323] at p. 953), Venkataramiah, J. in a somewhat analogous situation observed:

The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the, covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an Officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands.

Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226.

24. One of the questions for consideration, before the Supreme Court, in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayant Mahotsav Smarak Trust and others v. V.R. Rudani and others, AIR 1989 Supreme Court 1607, was, whether the management of a college, being a Trust, registered under the Public Trust Act, was or was not amenable to the writ jurisdiction of the High Court. In other words, the contention was that the Trust, was a private institution, against which, no writ of mandamus could be issued. It was held:

If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See The Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relation ship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(l)(e) of the Law Commission Act, 1965, requested the Law Commission to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective procedure. The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called judicial review. Lord Denning explains the scope of this judicial review.

At one stroke the Courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious, Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge.

The statute is phrased in flexible terms. It gives scope for development. It uses the words having regard to. Those words are very indefinite. The result is that the Courts are not bound hand and foot by the previous law. They are to have regard to it. So the previous law as to who are and who are not public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the Judges can develop the public law as they think best. That they have done and are doing. (See The Closing Chapter by Rt. Hon Lord Denning p. 122).

The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non fundamental rights. The words Any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.

Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: To be enforceable by mandamus a public body does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. (Judicial Review of Administrative Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We therefore, reject the contention urged for the appellants on the maintainability of the writ petition.

25. In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and others, AIR 1962 Supreme Court 1044, their lordships of the Supreme Court held:

The first question that falls to be considered is whether the appellant has locus standi to file the petition under Article 226 of the Constitution. The argument of learned counsel for the respondents is that the appellant was only managing the industry and it had no proprietary right therein and, therefore, it could not maintain the application. Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is Implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal, 1952 SCR 28 [LQ/SC/1951/60] : (AIR 1952 SC 12 [LQ/SC/1951/60] ) this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In Charanji Lal Chowdhury v. Union of India, 1950 SCR 869 [LQ/SC/1950/51] : (AIR 1951 SC 41 [LQ/SC/1950/51] ), it has been held by this Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complanies of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. The question, therefore, is whether in the present case the petitioner has a legal right and whether it has been infringed by the contesting respondents, the petitioner entered into an agreement dated July 24, 1948, with respondent No. 5 in regard to the management of the Oriental Gas Company. Under the agreement the appellant was appointed as Manager and the general management of the affairs of the Company was entrusted to it for a period of 20 years. The appellant would receive thereunder by way of remuneration for its services, (a) an office allowance of Rs. 3,000 per mensem, (b) a commission of 10 per cent, on the net yearly profit of the Company, subject to a minimum of Rs. 60,000 per year in the case of absence of or inadequacy of profits, and (c) a commission of Re. 1 per ton of all coal purchased and negotiated by the Manager. In its capacity as manager, the appellant Company was put in charge of the entire business and its assets in India and it was given all the incidental powers necessary for the said management. Under the agreement, therefore, the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive the aforesaid amounts towards its remuneration for its services. Section 4 of the impugned Act reads:

With effect from the appointed day and for a period of five years thereafter

a. the undertaking of the Company shall stand transferred to the State Government for the purpose of management and control;

b. the Company and its agents, Including managing agents, if any, and servants shall cease to exercise management or control in relation to the undertaking of the Company; all contracts, excluding any contract or contracts in respect of agency or managing agency, subsisting immediately before the appointed day and affecting the undertaking of the Company shall cease to have effect or to be enforceable against the Company, its agents or any person who was asurety thereto or had guaranteed the performance thereof and shall be of as full force and effect against or in favour of the State of West Bengal and shall be enforceable as fully and effectively as if instead of the Company the State of West Bengal had been named therein or had been a party thereto :"

Under the said Section, with effect from the appointed day and for a period of five years thereafter, the management of the Company shall stand transferred to the State Government, and the Company, its agents and servants shall cease to exercise management or control of the same. Under clause (c) of the Section, the contracts of agency or managing agency are not touched, but all the other contracts cease to have effect against the Company and are enforceable by or against the State. It is not necessary in this case to decide whether under the said agreement the appellant was constituted as agent or managing agent or a servant of the Oriental Gas Company. Whatever may be its character, by reason of Section 4 of the impugned Act, it was deprived of certain legal rights it possessed under the agreement. Under the agreement, the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive remuneration for the same. But under Section 4 of the impugned Act, it was deprived of that right for a period of five years. There was certainly a legal right according to the appellant under the agreement and that was abridged, if not destroyed, by the impugned Act. It is, therefore, impossible to say that the legal right of the appellant was not infringed by the provisions of the impugned Act. In the circumstances, as the appellants personal right to manage the Company and to receive remuneration therefor had been infringed by the provisions of the statute, it had locus standi to file the petition under Article 226 of the Constitution."

26. In S.K. Ghambhir v. Union of India and Others, Civil Writ Petition No. 1116 of 1984, decided on 11.8.1986, there was a dispute, with regard to the waiting list of members in New Rajdhani Cooperative House Building Society, and with regard to the allotment of plots, to certain members. One of the questions, whether these disputes could be decided by a writ petition, was before the Division Bench of this Court. One of the contentions, on behalf of the Society, was that the matter could not be dealt with in a writ petition, for the simple reason, that the Cooperative Society was like a private Institution, which had nothing to do with any constitutional right, and, therefore, the Society was not amenable to the writ jurisdiction. The Division Bench held:

"The Cooperative Society, respondent No. 4, is therefore, not acting as a private individual intermediary between the public and the State. It has become a part of the machinery for the planned development of Delhi. It is, therefore, for the purpose an authority. Its actions in denying plots to any one are in substance a denial by the State, because the land belongs to the Government. It is placed at the disposal of the Co-operative Society for giving it to its members. The three parties are the State, the Co-operative Society and the member. The member pays the annual rent to the State. The plot obtained through the Co-operative Society is allotted as a plot belonging to the Union of India and not as a plot belonging to the Co-operative Society. The Co-operative Society is only a mechanism, a cog in the wheel for making the allotment. The method is evolved by the Government, because in its wisdom the State has found this method for allotting plots to the public. It is not the only method, but one of the recognised methods. How can we say in such circumstances that a writ will not lie If the petitioners have been denied their legitimate grievance, it is a denial by the State through the agency of the Cooperative Society. Once we recognise the Cooperative Society as an agent for the planned development scheme, we can immediately pinpoint the Cooperative Society as an authority within the meaning of law. The petitioners cannot be denied relief in these proceedings on this ground. So, we hold the writ petition is maintainable in the present set of circumstances."

27. Reference can also be made to the judgment in Master Vibhu Kapoor v. Council of Indian School Certificate Examination and Another, 27 (1985) DLT (SN) 14 (FB), where, the writ petition, under Article 226 of the Constitution of India, was filed against withholding of the result of petitioner, a minor, on the allegation of use of unfair means, in the examination of class X conducted by the Council of Indian School Certificate Examination, a private body, registered under the Societies Regulation Act of 1860. The Division Bench held that the functions, being performed by the Society, were conducting public examination and awarding certificates. It was thus held that the writ petition was maintainable against the Society.

28. In Sri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju AIR 1990 Andhra Pradesh 171, the High Court directed itself to the same question. After considering the number of judgments, the Full Bench took the view that a writ would not lie against a cooperative society.

29. The facts and the reliefs in State of U.P. and Others (supra) were altogether different, from the facts and reliefs of the present case. As such the same is not applicable to the present case.

30. Before the Full Bench in Sri Konaseema Co-operative Central Bank Ltd., (supra), no such contention was urged that the Society in respect of theland, was an against of the Government. Secondly, the Full Bench found that the functions of the Society before the Court, were not of public importance or closely related to the Governmental function. The judgment of the Division Bench of this Court in S.K. Gambhir, was not cited before the Full Bench. Under these circumstances, the case is distinguishable from the present one.

31. There is no doubt that the Society is not a statutory body and generally, the dispute between the Society and a member cannot be determined in a writ petition. But, this is subject to certain exceptions. One has to see the nature of reliefs, being sought in the writ petition and the points involved. In this petition, Delhi Development Authority and the Registrar of Cooperative Societies, are the parties. In Delhi, a scheme for planned development is in operation. Large areas of land were acquired by the Central Government, for the avowed purpose of planned development of Delhi in future. Private development of land, by private colonisers, and by means of private colonies, became almost impossible. In order to carry out the scheme of planned development, two ways were visualised by the Government. Firstly, there was a public auction of the plots by DDA, to the public on leasehold basis. Secondly, there was allotment of lands to Cooperative Societies. The lands were being allotted to Group Housing Cooperative Societies, who, in turn, allot the same to their members. One of the essential terms, for applying for a membership of a House Building Cooperative Society, is that the applicant is not a member of another house building society and, also that he does not own residential building or a plot in his name or in the name of his wife or dependent child in Delhi. In other words, the right to own a house or plot or a flat is restricted by them. The Cooperative Society, is not acting as a private individual or a private party, but it is acting, as a medium for Governmental action and it is acting as an intermediary, between the public and the State. As held by the Division Bench in S.K. Gambhir (supra), it has become a part of the machinery for the planned development of Delhi. It is, therefore, for this purpose, an authority. Its actions, in denying the plots to any one, are in substance, denial by the State, because the land belongs to the Government. The land is placed at the disposal of the Society, for giving it to its members. Once it is given, there is a tripartite lease. Then there are three parties, the State, the Cooperative Society and the member.

32. In my view the present case is fully covered by the judgment of the Division Bench of this Court in S.K. Gambhir (supra). Further, the ratio of the judgment in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others (supra), is also applicable to the present case. Thus, I hold that the Society, in the present facts and circumstances of the case, is amenable to the writ jurisdiction of this Court,

33. The other contention of respondents, was that the writ petition was also not maintainable, on the ground that, at alternate remedy is available to petitioner, because, the dispute is between an individual and the Society. Even otherwise, the petition is pre-mature. The attention of this Court was invited to Rule 35 (7) of the Rules, which provides that if the Committee refuses to transfer the share or interest of the deceased member, to his nominee or his successor-in-interest, or fails to take decision on the application of such nominee or successor-in-interest, as the case may be, within 30 days, of the date of such refusal or the date of such application, a nominee or any other person, claiming to the successor-in-interest of the deceased member, can file an appeal to the Registrar, after bearing the Society and the applicant, or any other person interested therein, the Registrar can pass such order, as deemed fit. Reliance was placed upon the judgment of this Court in Pawan Rumar Tandon v. N.D.M.C., AIR 1986 Delhi 454 and Gujarat University v. NU Rajguru, 1986 SCC (Suppl.) 512.

34. The rival contention of Mr. Arun Mohan, was that the Society, both by its Resoultion and the letter dated June 25, 1984, had closed the doors for an alternate remedy. If, the Society had merely refused to register the name, something could be said. But, in the present case, the Resolution did not bother to consider, as to who the heir was, but has simply proceeded on the basis that with the expiry of 30 days, from the date of the death, the interest in the plot of the deceased, stood extinguished and conferred upon the Society. In the second place, Mr. Arun Mohan argued that all the provisions, as contained in Section 26 and Rule 35, if at all, could apply in a case, where the Membership has not been resulted into title. After the allotment, the deceased had become the proprietor, by virtue of sub-lease dated September 7, 1979.

35. Mr. Arun Mohan further contended that in S. Rajdev Singh v. Union of India, AIR 1989 Delhi 238, the objection, to the maintainability of the writ petition, on the ground of alternate remedy, was answered by counsel for petitioner, by submitting that relief under Article 226, being a discretionary, the Rule, which required exhaustion of alternate remedy, was only a rule of convenience or discretion, rather than a rule of law, and at any rate, did not cuts the jurisdiction of the Court to grant relief in appropriate cases, was accepted as correct, by the Division Bench.

36. In Pawan Kumar Tandon (supra), the Division Bench held:

At the outset we may refer to one aspect which will perhaps justify the dismissal of the petitions straightaway. We have mentioned that against the Estate Officers order evicting the persons in occupation of the premises under the Public Premises Act, the petitioners have preferred an appeal which is pending before the Additional District Judge. The supply of electricity to the premises is also an amenity available to the lawful occupant of the premises. If it is the grievance of the petitioners that the NDMC which is the landlord has wrongfully terminated the supply of electricity it is open to them to raise the issue before the learned Additional District Judge in the process of the appeal as a matter incidental to the subject matter of the appeal. Since the Additional District Judge is seized with the question whether the dispossession of the occupants of the property under the Public Premises Act is lawful or not, he can also decide whether, pending final decision in the matter, the supply of electricity as an amenity should be continued or not. Since the justification or otherwise of discontinuance of electricity would depend upon the correctness or otherwise of the finding that the original licensee has ceased to be the lawful occupant of the property, this will involve investigations on questions of fact which a writ Court would not like to undertake. We, therefore, think that the petitioners having an alternative remedy for the determination of the, question, relief should not be granted to the petitioners in a writ petition. However, in view of the fact that the matter has been fully argued before us, we proceed to consider the issues involved and decide the writ petition."

36A. In the present case, the writ petition was filed in June, 1984 and on June 26, 1984, only show cause notice was issued. The Rule was issued only on October 12, 1984 after hearing the parties. Seven years later now to hold that the writ petition is not maintainable, on the ground, that alternate remedy is available, would be very unjust to petitioner. Moreover, the plot in question, has been reverted back to the Society, by a Resolution, passed by the Managing Committee, on the basis of a meaning, given to Section 26 of the Act. For these reasons, and also for the reasons, which I will state, while dealing with the Resolution of the Society, I am of the view that the writ petition is maintainable, even if it is held that alternate remedy is available.

37. The third objection of respondents is, that petitioner has no locus standi to file the present petition, in view of the provisions of the Act, as amended, read with the relevant Rules. In this regard, learned Counsel for Society, urged that in the register of members of the Society, Shri Rajbir Bhaskar son of late Shri Rajender Nath Bhaskar (deceased member), was the nominee, in respect of the plot. Under provision (ii) to Section 26(1) of the Act, the Society can transfer the share or interest of the deceased member to a nominee, heir or legal representative, as the case may be, subject to his being qualified, in accordance with the Rules and bye-laws for membership of the society. If, the nomination is valid, then, no further enquiry is required or necessary. In the exercise of jurisdiction under Article 226 of the Constitution of India, petitioner could not be allowed to get determined her right of succession, to the estate of the decided. Reliance was placed upon the judgments in Calcutta Gas Company Limited v. State of West Bengal and Others, AIR 1962 SC 1044 [LQ/SC/1962/53] and State of Orissa v. Ram Chander Dev AIR 1964 SC 685 [LQ/SC/1963/266] .

38. On behalf of petitioner, Mr. Arun Mohan argued that a mere nomination, made by the deceased, under Rule 35 of the Rules, has no effect of conferring on the nominee, any beneficial interest, in the plot in question. Reliance was placed upon the judgment of the Supreme Court in Smt. Shanti Devi and Another v. Smt. Usha Devi AIR 1984 Supreme Court 346.

39. In Smt. Shanti Devi and Another (supra), it was held:

"Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauja Singhs case (AIR 1978 Delhi 276) (supra) and in Mrs. Uma Sehgals case (AIR 1982 Delhi 36) (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."

40. Thus, it is now well settled that a mere nomination, made in favour of a particular person, does not have the effect of conferring on the nominee any beneficial interest in the property, after the death of the person concerned. The nomination only indicates the hand, which is authorised to receive the amount or manage the property. The property or the amount, as the case may be, can be claimed by the heirs of the deceased, in accordance with law of succession, governing them.

41. In view of the established position of law, the contention of learned Counsel for Society, is to be rejected. I hold that the petitioner has locus standi to file the present petition.

42. Even otherwise, the question is merely an academic one. Not only the alleged nominee, but all the other heirs have filed their affidavits in this Court, thereby, deposing that the entire plot, after the death of Shri Rajender Nath Bhaskar, has come to the share of petitioner.

43. In the writ petition, the main grievance of petitioner is against the letter dated April 2, 1984, written by respondent No. 4 to the DDA, respondent No. 5 herein, thereby, requiring the DDA to cancel the allotment of plot No. 7, from the name of the deceased husband of petitioner, and to revert back the plot to the Society. Respondent No. 5 has not passed any final order, with regard to the cancellation of the plot. The immediate cause for filing the writ petition was, when on June 24, 1984, respondent No. 2 alone with certain persons, came to the plot in question, and threatened to take possession of the same. Naturally, there was no mention in the writ petition, of the Resolution dated June 25, 1984, passed by the Managing Committee of the Society whereby, acting under Section 26(1)(ii) of the Act, the decision was taken to revert back the plot to the Society. It was followed by the letter dated June 25 1984, addressed to all the legal heirs of the deceased.

44. In the petition, petitioner has sought the issue of appropriate writ or direction, thereby, holding that the letter dated April 2, 1984, written by respondent No. 4 to respondent No. 5, copy of which was given to petitioner, is illegal and without jurisdiction. Further, petitioner has sought the writ of mandamus to restrain respondent No. 5, from acting upon the aforesaid letter and not to cancel the lease-deed dated September 7, 1979, with the direction to respondents, to carry out necessary alterations, in the records, by incorporating the name of petitioner, in place of her husband.

45. It was only in the counter affidavit, respondents 1 and 2 have taken the stand that in view of the provisions, as contained in proviso (ii) to sub-Section (1) of Section 26 of the Act, the Managing Committee, at its emergent meeting, held on June 25, 1984, passed a resolution, thereby, reverting back the aforesaid plot to the Society. In the rejoinder, and the additional affidavit, petitioner has challenged the Resolution, as well as, the letter, issued by the Society. As, these are the subsequent events, therefore, I am taking into consideration the same and will decide the validity of the Resolution, because the arguments, at length were addressed before me, on this point.

46. On behalf of petitioner, it was argued that the membership of deceased Shri Rajender Nath Bhaskar, was merged into ownership of title, which stood conveyed, not by the membership or allotment, but by perpetual lease deed dated September 7, 1979, executed and registered in his favour, by the President of India. Thus, a distinction should be drawn between a case, when the person is a mere member and, is still to be given a plot on one side and, a situation, where the question of divesting the title of the plot or house on the other hand. Reliance was placed upon the judgment of the Full Bench of this Court in Daulat Ram Mehnidratta v. Lt. Governor Delhi and Others, AIR 1982 Delhi page 470.

47. In the next place, the contention of Mr. Arun Mohan was that the Resolution dated June 25, 1984, does not complain of any breach of the term of the lease. The solitary ground, on which the plot has been reverted back to the Society, is failure to apply within a period of thirty days. If, such an interpretation, as given by the Society, is accepted by the Court, then, it will mean overriding the provisions of Hindu Succession Act. The Act does not give sovereign powers to the Society, in dealing with its members and the attempt to do so, by a resolution. Moreover, there is no dispute on facts at all. Nor, there is a dispute interse between the heirs of the deceased. The Act or Rules do not give any authority to the Society to cancel the perpetual lease-deed and pass a resolution of reverting back the plot or house to it. By assuming this power, on the basis of the interpretation, which is sought to be given by the Society, it will mean overriding, even, the principles of escheat, as provided in Section 29 of the Hindu Succession Act. The forfeiture of the lease, has to be in terms of the sub lease-deed.

48. The rival contention of Mr. B. Mohan, was that petitioner made no written application, for transfer of the share or interest of the deceased member, as mentioned under Section 26 (1) Proviso (ii) of the Act, or otherwise, as provided under Clause 10 of the Perpetual Lease-deed dated September 7, 1979. Petitioner made an application, thereby, trying for mutation of the plot in her name, directly to respondent No. 5, without becoming a member of the Society. It was thus argued that under the Proviso (ii) of Section 26(1), as no application was filed by the nominee, or the other heirs, within 30 days, from the date of the death of Shri Rajender Nath Bhaskar, so, the Managing Committee has the jurisdiction to pass the Resolution.

49. The Resolution of the Society dated June 25, 1984, is reproduced as under:

"That plot No. 7 formerly sub-leased to late Shri Rajinder Nath Bhaskar be and is reverted back to the society in view of the fact that neither the nominee nor the heirs applied to the society within prescribed limit of one month (vide Section 26 (l)(ii) of the Cooperative Societies Act, 1972) from the date of the death of deceased Shri Rajinder Nath Bhaskar and as required by the Registrar, Cooperative Societies under his letter No. F. 46 (1307)/ 8/75 Coop dated 2-4-1984. The nominees as well as the heirs thus forfeited their right in the matter. The membership of late Shri Rajinder Nath Bhaskar automatically ceased on his death of 7-9-1982. His shares of Rs. 500 are transferred from share capital account to share payable account for paying to the legal claimants who are being intimated accordingly."

50. Similarly, the letter dated June 25, 1984, issued by the Society, to the heirs of deceased, in pursuance of the Resolution, reads as under:

"No. INCHBSL/607/84 Regd. A.D. Dated 25, June 1984

1. Shri Rajiv BhaskarNominee/heir

2. Smt. Sushila Devi BhaskarHeir

3. Sanjeev BhaskarHeir

4. Ms. Smriti BhaskarHeir

5. Ms. Smita VashishtHeir





Sub: Interest and rights of late Shri Rajinder Nath Bhaskar

Under the provisions of Section 26 of the Delhi Cooperative Societies Act 1972, the nominee or the legal heirs of late Shri Rajinder Nath Bhaskar who died on 7-9-1982, could have applied to the society for transfer of interest and right of the deceased in their favour within one month of the death of Shri Rajinder Nath Bhaskar. As no request for such transfer has been made within the legal limit by the nominee or the heirs of the deceased, the Society cannot transfer the share, interest and rights of the deceased to them.

As such and as also directed by the Registrar of the Cooperative Societies Delhi, vide his letter addressed to DDA and copy endorsed to us bearing No. F. 46 (1307)/H/75/Coop./293 dated 2-4-1984, the said plot has reverted back to the Society for allotment to the next eligible member, which please note.

Thanking you, we are

Yours faithfully,

For the Ishwar Nagar Coop. House Building Society Ltd.

CC :

1. To Registrar of Coop. Societies Delhi Administration, Court Building, Parliament Street, New Delhi, for information.

2. To Director (CS) DDA, Vikas Minar, 9th floor I.P. Estate, New Delhi..with the request to send cancellation orders at the earliest."

51. At this stage, it will be appropriate to reproduce the provisions, as contained in Section 26 of the Act, which are as under:

"26. Transfer of interest on death of members.

(1) On the death of a member a cooperative society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member, or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such members share or interest as ascertained in accordance with the rules or bye-laws:

Provided that

(i) in the case of a cooperative society with unlimited liability, such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid;

(ii) in the case of a cooperative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and bye-laws for membership of the society or on his application within one month of the death of the deceased member to any person specified in the application who is so qualified;

(iii) no such transfer or payment shall be made except with the consent of the nominee, heir or legal representative, as the case may be.

(2) A Cooperative society shall, subject to the provisions of Section 36 and unless within six months of the death of member prevented by an order of a competent Court, pay to such nominee, heir or legal representative, as the case may be, all other moneys due to the deceased member from the society.

(3) All transfers and payments made by the cooperative society in accordance with the provisions of this Section shall be valid and effectual against any demand made upon the society by any other person."

52. Clause 11 (10) of the sub-lease, reads as under:

"In the event of the death of the sub-lessee, the person on whom the title of the deed shall devolve shall within 3 months of the devolution give notice of such devolution to the lessor and the lessee. The transferee of the person on whom the title devolves, as the case may be shall supply the lessor and lessee certified copies of the document(s) evidencing the transfer and devolution."

53. It is not disputed that there was a long drawn litigation, between two groups of the Bhaskar family, ever since, the life time of Shri Rajinder Nath Bhaskar. Bhaskar families were having various businesses and even the petition, under the Companies Act, was filed. In this background, the action of the Society, is to be considered, because there was no love lost, between the heirs of Shri Rajinder Nath Bhaskar and other Bhaskars, who were in control of the management of the Society, at the relevant time.

54. It is an admitted fact that after the allotment of plot No. 7, by the Society, to late Shri Rajinder Nath Bhaskar, a regular perpetual sub-lease deed was executed, between the President of India, as the lessor, the Society as the lessee, and late Shri Rajinder Nath, as the sub-lessee. Under law, there can be forfeiture of the plot, and the determination of the lease, only under the terms of the lease. In the present case, the Society has no power or jurisdiction to determine the lease and this power or jurisdiction only vests in the lessor, subject to the terms and conditions, as contained in the sub-lease deed.

55. The resolution of the Managing Committee, thereby, reverting back the plot to the Society, for allotment to the other eligible member, under Section 26 of the Act, amounts to the cancellation of the lease-deed and forfeiture. This, in my view, can not be done by the Society. This is only for the lessor, to take decision In this regard, whether to determine the lease or not and whether to forfeit the plot or not.

56. The other aspect of the case is that the Bhaskars, who controlled the management of the Society, were closely related to the deceased-and his heirs. The fact of the death was known to them. From the letter dated 25, 1984, it is clear that all the names of the heirs were available to the Society, because all these names have been mentioned in the letter and the copies of the letters were addressed to each one of them. Even, according to the Society Shri Rajbir was the nominee of the deceased. The Society has failed to1place on record any material to show that before passing the resolution, any opportunity was given to the heirs or even to the nominee, of being heard. In fact, the principles of natural justice were not followed and, no person can be deprived of his right, to a property, except in accordance with the established procedure of law. For this reason alone, the Resolution dated June 25, 1984, passed by the Society, cannot be sustained.

57. Mainly, relying upon the provisions, as contained in proviso (ii) of Section 26 (I) of the Act, the Society passed the Resolution dated June 25, 1984, thereby, reverting back the plot in question, to the Society. The Society, while passing the Resolution, also relied upon the letter dated April 2, 1984, written by the Registrar of Cooperative Societies, to the Delhi Development Authority, with a copy to the Society. The interpretation, given by the society, is, that under proviso (ii) to sub-Section (1) of Section 26 of the Act, if, no application, is filed by a nominee or the other heirs of the deceased member, within a period of 30 days, from the date of the death, then, in that event, the plot or any building constructed thereon, irrespective of the perpetual sub-lease, reverts back to the Society.

58. Now, I will proceed to find out, as to what is the true meaning, object and scope of the provisions, under Section 26 of the Act. Before going into this question, I want to observe that in Union Territory of Delhi, hundreds of house building or Group Housing Cooperative Societies are in existence. These Societies, after getting the lands, from the President of India/DDA, on perpetual lease, have developed colonies or group housing complexes, for allotment of the plots or the flats, as the case may be, to their members. Very large number of colonies have already been developed and the members have built residential houses or flats. If, the interpretation, as is being given by the Society, to Section 26 of the Act, is accepted, it will mean if, no application in writing is made to the Society, within a period of 30 days, from the death of the member, the result will be that the plots or the houses, built thereon, will revert back to the Society and the nominees or the heirs or the legal representatives of the deceased member, will forfeit all their rights, interests and title, in the plots or the residential houses. This will be irrespective of the sub-lease deeds, executed between the President of India, the respective societies and the sub-lessees/members. The question is, what was the intention of the Legislature, in enacting this provisions Certainly, the Legislature was enacting these provisions, for the benefit and in the interest of the nominees and other heirs of the deceased members of the various Societies, so that, there will be no difficulty in their way, to succeed to the share and interest of such deceased member in the Society. If, I accept the interpretation, as given by the Society, then, I will have no hesitation in holding that the provision is not only arbitrary, but most unjust and without any guidelines. But, I am not accepting the interpretation, so given by the Society.

59. The contention of Mr. Arun Mohan was that under the statute, it is imperative on the part of the Society, to transfer share or interest of the deceased, and there was no need for any application. He invited my attention to the provisions of Bombay Cooperative Societies Act, which was applicable to the Union Territory of Delhi, before coming into force of the Act. In the Bombay Cooperative Societies Act, originally, the word "may" was there. But, in the Delhi Cooperative Societies Act, Legislature, in its wisdom, has consciously changed the word "may", into the word "shall", making it imperative and obligatory on the part of the Society to transfer the share or interest. I accept this contention of Mr. Arun Mohan.

60. The Society in question, is a Co-operative Society, with limited liability, as such, proviso (ii) to Section 26(1) of the Act, is applicable in the present case. Proviso (ii), in my view, is in two parts. The first part reads as under:

"in the case of a co-operative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and bye-laws for membership of the society."

The other part, is distinct and separate from the first part. The second part reads as under:

"or on his application within one month of the death of the deceased member to any person specified in the application who is so qualified."

61. A bare reading of the first part, will show the clear intention of the Legislature that in case, of a cooperative society, with limited liability, the Society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the Rules and bye-laws for membership of the Society. In other words, the first part, even remotely, does not lay down that for getting the transfer of the share or interest of the deceased member, the nominee or heir or legal representative of such deceased, should file an application, within 30 days. It is only in respect of the second part, a written application is necessary. The second part comes into place only when, the transfer of the share or interest of the deceased member is sought, to any parson, specified in the application, who is qualified. Any person means, the person, other than the nominee, heir or legal representative of the deceased member.

62. In this regard, I find support from proviso (iii) to sub-Section 1 of Section 26 of the Act, which reads as under:

"(iii) no such transfer or payment shall be made except with the consent of the nominee, heir or legal representative, as the case may be."

A bare reading of the aforesaid proviso, will show that no such transfer or payment shall be made, except with the consent of the nominee, heir or legal representative, as the case may be. In other words, the transfer means the transfer of the share or interest of the deceased member, in favour of any person, other than the nominee, heir or legal representative.

63. Thus, I hold that it is not necessary to file an application, within one month from the death of the deceased member, in case, the transfer of share and interest is being sought, in favour of the nominee, heir or legal representative of the deceased member.

64. There is another aspect of the matter. Under what provision of law, the Society has passed the Resolution, thereby, reverting back the plot to the Society, when there is a perpetual lease-deed, duly registered, in favour of the deceased member. There is no such provision in the Act, which gives such power to the Society, in the face of the perpetual lease-deed. Similarly, there may be houses, built on the plots and, no such power vests in the Society to get back the plot or the house to itself, if no such application is made within 30 days, from the death of the deceased member. Even, in case of any other person, no such resolution could be passed, because there may be circumstances, which may justify the non-filing of the application, within the period of 30 days.

65. Where, there is a perpetual sub-lease deed, executed between the President of India, lessee and the sub-lessee, then, in my view, after the death of the member, what the Society is to transfer is, the share and interest of the deceased member and not the plot or the house built thereon. The scope of the words "share or interest", cannot be extended to include, even the plots and the residential buildings or the flats, after the execution of the perpetual sub lease-deed. What the Legislature intended was, the share or interest. That means the membership and the share of the deceased member in the society.

66. There is no force in the stand of the Society that, only the nominee of the deceased member was entitled. Reference may be made to the judgment of the Supreme Court in Smt. Sarbati Devi and Another (supra).

67. It is also not disputed that there was a long drawn litigation, between late Shri Rajinder Nath Bhaskar and respondents 2 and 3. After the death of Shri Rajinder Nath Bhaskar, the litigation continued between the heirs of late Shri Rajinder Nath Bhaskar and others. This litigation pertains, not only to the present Society, but to the other business of the family. This is also on record that petitioner has been writing to the Society, after the death of her husband. By passing the aforesaid resolution, in my view, the Society has acted mala fide.

68. The letter, written by the Registrar, on April 2, 1984, to the DDA, thereby, requiring it to cancel the plot, is also without any jurisdiction and, as such, the directions, contained in the letter, cannot be sustained in law.

69. It is an admitted fact that petitioner has been writing to both respondents 4 and 5. In fact, respondent No. 5, the DDA, has asked petitioner to submit various documents and some of the documents were submitted, for the purposes of effecting mutation in her name. It means that petitioner has been pursuing the matter, immediately after the death of her husband, not only with DDA, but with the Society.

70. At this stage, it may again be pointed out that before the Society, there was no interse dispute amongst the heirs of late Shri Rajinder Nath Bhaskar. It is also not the case of the Society that the present petitioner was not qualified to be the member of the Society, in accordance with the Act or the bye-laws of the Society. This matter also has been set at rest, after the filing of the affidavits, of all the other heirs of late Shri Rajinder Nath Bhaskar, thereby, stating that petitioner, their mother, is the only person, who has succeeded to the plot in question. Thus, I hold that there is no controversy amongst the heirs and that petitioner is entitled to the plot in question, and the Society is under a statutory duty to transfer the share and interest of the deceased member, in the Society to petitioner. Similarly, the DDA, after complying with the legal formalities, is to effect the mutation, in respect of the plot, in favour of petitioner.

71. For the reasons stated above, the writ petition is allowed and Rule is made absolute.

72. The Resolution dated June 25, 1984, passed by the Society, the letter dated June 25, 1984, written by the Society and letter dated April 2, 1984, written by respondent No. 4, are hereby quashed and set aside. The plot, thus continues in the name of the deceased. I further issue a writ of mandamus to the Society, to transfer the share and interest of the deceased member, namely, Shri Rajinder Nalh Bhaskar, in favour of petitioner, within 2 weeks, after her filing an affidavit with the Society, that she is qualified for this, and without any further enquiry.

73. I also issue a writ of mandamus to respondent No. 5, DDA to decide the case of mutation, in respect of the plot No. 7, within 2 months from today. If, any further document is required, by the Delhi Development

Authority in this regard, respondent No. 5 shall intimate to petitioner, within 2 weeks from today in this regard. Respondents are also restrained from cancelling the lease of the said plot and from disturbing the petitioners possession in the plot.

74. Petitioner shall also be entitled to costs. Counsel fee at Rs. 2,000, to be paid by respondent No. 1.