Chapter - IV

LA W S R E L A T IN G T O G R O U P H O U S IN G IN

W E S T B E N G A L :A CASE S TU D Y

185

In W est Bengal, the Co-operative Housing Sector has been working

not only for the rich and Middle Income Groups but also for poor persons

o f the Society. Though a number o f Co-operative Housing Societies have

been floated by affluent sections o f persons, this movement has led the

Lower Income Groups to gain access to housing. Previously in this State,

no specific provisions were incorporated in the Co-operative Act and the

Rules thereunder. The past Co-operative Acts o f 1904, 1912, 1940 and

1972 had corresponding Rules and the existing Act also has its Rules

framed under it. In the existing Rules, 1987 a separate chapter has been

introduced.'

In signifies that an insertion o f a new and separate chapter was

expedient. Previously when no such specific and particular provisions were

in existent, the management and other performances like transfer,

nomination etc. in Housing Co-operatives were dealt with at par with other

categories o f Co-operative Societies.

On the other hand. Group Housing except Co-operative Housing

were being privately done by some individuals, builders and promoters.

When it was felt by the Government o f West Bengal that there should have

provisions for the ownership o f an individual apartment and making such

apartment heritable and transferable, an Act was passed by the Government

4.1 I N T R O D U C T I O N :

o f W est Bengal. The law is known as the West Bengal Apartment

Ownership A ct? This law was intended to meet a new problem o f Housing

in the State o f W est Bengal especially in Cities and Towns. Group Housing

was thus resorted to both in Private Sector and the Public Sector. But prior

to promulgamation o f this Act, there was no provisions in Group Housing

regarding succession to such Apartments and transferability.^

Therefore, there are two types o f laws concerning Group Housing.

In Co-operative Sector, the law is West Bengal Co-operative Societies Act

and its Rules and in private sector, the law is the West Bengal Apartment

Ovmership Act, its Rules, West Bengal Building (Regulation o f promotion

o f construction and transfer by promoters) Act and its Rules. In the

following paragraphs, brief examination o f the above laws separately is

appended,

4.2 Laws regarding Group Housing in the W est Bengal Co-operative

Societies Act, 1983 and the W est Bengal C o-operative Societies

R ules, 1987:

Some special provisions for Co-operative Housing Societies have

been inserted in West Bengal Co-operative Societies Act, 1983 at a

separate Chapter. In this Special Chapter, there are five sections which

have twenty-six corresponding Rules. The Sections are Section 85 to

Section 89 and the Rules are Rule 130 to Rules 156.

186

In Section 85, West Bengal Co-operative Societies Act, 1983,

eligibility o f a person to become a member o f a Co-operative Housing

Society is prescribed in its Sub-Section (1), (2) & (3). For the purpose o f

acquiring a membership in a Co-operative Housing Society which has been

akeady registered or in a proposed Co-operative Housing Society which

awaits registration, a person is to swear in an Affidavit that he is a

permanent resident o f West Bengal or he intends to reside in West Bengal

permanently. The Affidavit shall also contain that he is not a member o f

any other Co-operative Housing Society in West Bengal and that he or any

member o f his family does not own any house or apartment or plot o f land

in the City, Town or village where the Co-operative Housing Society is

located. The Co-operative Housing Society for which the membership is

sought is excluded from the purview o f the content o f the declaration. The

Affidavit is to be sworn before a Magistrate or a Notary Public.'^

Here “family” as to be specified in the Affidavit shall mean to

consist o f husband, wife, minor sons and daughters, dependant widow o f a

pre-deceased son, minor sons and daughters o f a dependant widow o f a

pre-deceased son and husband’s dependant’s parents. This definition o f

“family” has been provided in Section 13(2).

187

4.2.1 Eligibility for Membership :

W .B.C.S. Rules, 1987 further specifies how membership in a Co­

operative Housing Society may be obtained.^ Every applicant who wants

membership shall submit his application with following th in g s;

i) Two recent Pass-Port size photographs.

ii) Income-Tax Clearance Certificate or Profession Tax

Certificate (now abolished by Amendment o f this item).

iii) Salary Certificate (in case o f persons employed by others).

In the provisions o f the Rule, it is not mentioned whether at the

time o f registration or at the time o f subsequent inclusion in place o f an

existing member, these papers are required or not. As no specific assertion

is available in the Rules, it should be taken granted that in all cases when a

person wants to be a member o f a Co-operative Housing Society, he should

submit above papers.

In a Co-operative Housing Society, the number o f members shall

not exceed the total number o f plots, houses or apartments proposed by a

society to be allotted to members under any scheme or project o f such

society. A member shall be eligible for allotment o f only one plot.^

Hence, if in a Housing Society, no apartment is available, any

application subsequently submitted by a person intending to become its

member for the purpose o f getting an allotment can not be entertained. I f in

spite o f existence o f any vacant apartment, the society refuses or remains

188

silent, the applicant has a recourse o f law under Section 70 o f W.B.C.S.

Act, 1983. By that provision, when such an application is received by the

Society, it shall be hung up on the date o f its receipt on its Notice Board,

inviting written objection, if any, thereto from any member o f the society

within a period o f 7 days from that date. The application shall be granted

within a period o f 45 days from the date o f receipt thereof if no written

objection thereto is received by the society.

Any objection if received by the Society shall be disposed o f under

Rule 119 o f the W .B.C.S. Rules, 1987 by which in the next meeting o f the

Board o f Directors o f the Society, decision on the application shall be

taken. The Board shall hear the applicant before taking any decision.^

There is a provision o f appeal against refusal to admit any applicant

as member o f any Co-operative Society. This is applicable in case o f Co­

operative Housing Society also, though this Section 70 and Rule 120 are

not included in the Special Chapter. By Sub-Section (4) o f this Section 70,

the aggrieved applicant may appeal to the Registrar o f Co-operative

Societies. (This power is enjoyed by other Assistant Registrars or Deputy

Registrars as a delegated power o f the Registrar) within 60 days from the

date o f communication o f the decision or within 90 days from the date o f

application, i f there is no communication or any decision from the Co­

operative Society.

189

The Registrar upon hearing the society and the applicant shall

decide and make appropriate order.

There is no statutory provision to keep a panel o f intending

members for seeking allotment arising out o f vacancies caused by

resignation, expulsion or transfer.

4.2.2 Functions o f Prom oters :

N ow , in Sub-Section (4) and (5) o f Section 85 o f the Act and in

Rules 130, 131 and 132 functions o f the Promoters are specified. Here the

word “Promoter” is not the same as the word “Promoter” as defined in

West Bengal Apartment Ownership Act, 1972.^ Either in the West Bengal

Co-operative Societies Act, 1983 or in the Rules thereunder, no definition

is provided. O f Course, by the nature o f function o f promoters, its

definition may be drawn. Here the promoters are those persons who join

the application for registration o f a Co-operative Housing Society. In the

initial stage, the promoters are to elect four persons as their leaders such as

the Chief Promoter, Chairman, Vice-Chairman and Treasurer.

But by Section 3(K) o f the Apartment Ownership Act, 1972,

“Promoter” means a person who constructs or causes to be constructed a

building on a plot o f land for the purpose o f transfer o f such building by

sale, gift or otherwise to any person or to a Company, Co-operative Society

or Association o f persons and includes ;

190

i) his assignee, if any.

ii) The person who constructs, and the person who transfers by

sale, gift or otherwise, the building, if the two are different

persons, or

iii) Any Board, Company, Corporation, Firm or other

Association o f persons, established by or under any law for

the time being in force.

Hence in the West Bengal Apartment Ownership Act, 1972

construction o f a building on a plot only has been taken into consideration

but in case o f a Co-operative Housing Society, construction o f building on

a plot or construction o f unit houses has been considered in the West

Bengal Co-operative Societies Act, 1983. The Promoter in Apartment

Ownership Act, 1972 may or may not be a flat owner o f the building, but

in case o f a Co-operative Housing Society, a promoter after registration o f

the society becom es a member who shall be an owner o f a flat or house in

a Co-operative Housing Society.

At the begiiming, all promoters are to hold a meeting for adoption o f

name o f their proposed society and its bye-laws, election o f four leaders,

consideration and adoption o f a scheme o f housing project and agreement

to be entered with the vendor or lessor o f the land, building, tenement, as

the case may be.^° The Chief Promoter shall take all steps including

191

opening o f a Bank Account for joint operation with the Chairman or the

Vice-Chairman in absence o f the Chairman'' and negotiating with the

approval o f the Chairman to procure land, building or tenements.'^

4.2.3 Procedure o f filing application for registration o f a Co-operative

H ousing Society :

Before submitting an application for registration o f a Co-operative

Housing Society, at least 8 eligible persons are to join themselves for the

purpose o f forming a Co-operative Housing Society.'^ Then they are to

procure land either from private land owner or from the Government or

from any Statutory Body like Improvement Trust, Development Authority,

Panchayat etc. Agreement with the land owner or letter o f assurance o f

giving land from Government or other authority may serve the purpose o f

proving that land is available.

Thereafter all the eight or more persons who have joined to form a

Co-operative Housing Society for acquiring a flat or house shall submit

application to the Registrar (the Registering Officer - Assistant Registrar

or the Deputy Registrar o f the Area).''^ The application shall contain a

common declaration same o f which is to be given in the affidavit

afterwards so as to prove eligibility o f becoming a member o f a Co­

operative Housing Society.

192

The Agreement with the landowner shall be made with all promoters

but not with only the Chief Promoter or the Chairman or the Vice-

Chairman or the Treasurer. The letter o f assurance from the Government or

the authority should also contain all names o f the promoter. In case of

allottees o f flats constructed and given by any authority, all promoters

should have allotment letters upon which application for getting a name o f

a Co-operative Housing Society is to be submitted to the Registrar.

A Bank Account shall be opened by the C hief Promoter, the

Chairman or the Vice-Chairman. A ll monetary transactions are to be made

through this account by Account Payee Cheque if the amount exceeds one

hundred rupees and there shall be maintained a Cash Book and relevant

ledgers.'^

After that, the promoters shall file application for registration o f the

proposed Co-operative Housing Society. The form with model bye-laws o f

a Co-operative Housing Society is available from the District Co-operative

Union whose address is 23A, Netaji Subhas Road, (7* Floor), Kolkata -

700 001. The application for registration is to be submitted to the Assistant

Registrar o f Co-operative Societies in case o f a District or Co-operative

Range in a District. (In Burdwan and Purba Medinipore Districts there are

3 and 2 Co-operative Ranges respectively where an office o f Assistant

Registrar o f Co-operative Societies exists). The Rules provides general

guidelines how to make by-laws o f a Co-operative Society.'^

193

Applications for registration o f Co-operative Housing Societies

should be submitted to the Deputy Registrar o f Co-operative Societies,

Kolkata Metropolitan Area Housing in Kolkata when these are organised

in the area o f Kolkata Metropolitan Area. Further, such applications are to

be submitted to the Deputy Registrar o f Co-operative Societies. RTAH

(Rajarhat Tovmship Area Housing) when these are organised in Rajarhat

Action Areas adjacent to the Salt Lake City.’^

Another copy o f the application should be sent to local District Co­

operative Union for information.’*

Following documents are necessary to be submitted with the

application o f registration:

1) Three copies o f the by e-laws o f the proposed Co-operative

Housing Society, duly filled in, shall be signed by all the

intending members / promoters in the space provided for this,'^

2) A copy o f the proceedings o f the meeting o f the promoters,

attested by the Chairman o f the meeting, which should contain

the resolutions on the following items shall be adjoined with the

application for registration:

a) Election o f a “Chief Promoter” from amongst the Promoters

with his name, address, occupation and the authority vested

on him.

194

b) That the Chief Promoter so elected has not been appointed or

functioned as such in respect o f any such co-operative

Society.

c) Nam e and address o f the proposed society.

d) Adoption o f the by e-laws.

e) Election o f the 1̂ ̂ Board o f Directors including Chairman,

Vice-Chairman and a Treasurer from amongst the Promoters

and to furnish their names and addresses.

f) That this project is the sole Housing Project by the proposed

society and that it after being registered shall not sponsor any

other project.^'

g) That a Bank Account has been opened in the name o f the

proposed society in the local Bank, preferably a Co-operative

Bank to be operated jointly by the C hief Promoter with

Chairman / Vice-Chairman / Treasurer.

3) a) Affidavit o f each Promoter to be sworn before an Executive

Magistrate or a Notary Public.^^

b) Two recent Pass-port size photograph affixed on application

for membership o f each Promoter.

195

4) A copy o f Agreement, Bynanama regarding purchase o f land,

building or tenement between the proposed society and the

owner o f land conveying intention and promising to transfer

such land etc. in favour o f the Co-operative Housing Society

when registered. Assurance letter for giving land by Govt, or any

authority in case the land is not a private one.

5) Statement o f accounts (Receipts and Payment) regarding share

money, admission fee and other contribution, if collected from

the promoters, counter - foils o f receipt and payment vouchers to

be kept ready in the records o f the proposed society and arranged

serially for inspections or verification.

6) Bank Balance Certificate.

7) A copy o f the scheme o f the Housing Project undertaken or

proposed to be undertaken detailing the number o f flats, garages,

office accommodation and an estimate o f the total cost f the

project.

8 ) a) Land Ceiling Certificate from the Competent Authority, if the

land is proposed to be purchased from a private individual.

b) Record o f Revenue o f the land describing the recorded owner

o f the land.

c) Up-to-date Tax Receipt from Land & Land Revenue Office.

196

d) 12 year search report regarding marketable title to the land or

building by the owner.

e) Land Acquisition Collector’s Certificate declaring that the

land has not been acquisitioned or vested.

9) The application shall also contain a declaration by the Chief

Promoter in the following lin e s :

a) That he has not acted as Chief Promoter o f any other Co­

operative Housing Society other than this proposed one.

b) That this is the Sole Housing Project sponsored by the

proposed society.

c) That he has obtained applications for membership and

affidavits from all the intending members in the prescribed

form.

d) That he w ill furnish information as may be required by the

Registrar.

4.2.4 C ontents o f the Bye-law s •

The Bye-laws o f the Co-operative Housing Society shall primely

contain follow ing matters which shall not be inconsistent with the

provisions o f the Act and the Rules -P

a) Nam e and Registered Address o f the Society.

197

b) Objects o f the Society.

c) H ow membership is to be obtained.

d) H ow nomination is to be made by the members and manner o f

disposal o f share and flat / house in the event o f the member’s

death.

e) Cessation o f membership - grounds thereof.

f) Expulsion from Membership - grounds and procedure.

g) Extent o f liability o f a member.

h) Funds and Investment.

i) Shares and transfer o f share or interest,

j) General M eetin g;

i) Annual General Meeting.

ii) Special General Meeting.

k) Duties and Business o f Annual and Special General Meeting.

1) Chairman o f General Meeting - Minutes.

m) Election and constitution o f the Board o f Directors - Election

o f O ffice Bearers i.e. Chairman, Vice-Chairman, Secretary and

Treasurer etc.

198

n) Qualification o f Directors - removal o f a Director - Power and

duties o f Board o f Directors - meeting o f Board - Secretary

and his duties - Chairman and his powers and duties.

o) Procedure o f Amendment o f By e-laws.

p) Right o f a member.

q) Disputes in the Society - Procedure for settlement.

r) Dissolution o f the society.

4.2.5 D uties o f the First Board just after registration o f a Co­

operative H ousing Society?

After registration o f a Co-operative Housing Society, first meeting

o f the new Board shall be held within one month from the date o f the

receipt o f the certificate o f registration for the purpose o f electing an

office-bearer in place o f the Chief-Promoter. The ftinction o f the Chief

Promoter is till the society is registered. After that, his post ceases to

exist. '̂^

Within 90 days from the date o f receipt o f the certificate o f

registration, first General Meeting is to be called on P

199

i) E le c tio n o f D ire cto rs o f the B oard .

(The First Board appointed by the Registrar at the time o f

registration shall exist till election o f a new Board within 90 days is

formed).

ii) Placing a Report in the General Meeting o f all members on :

a) Progress o f the work,

b) Funds raised from members,

c) Expenses incurred under various heads prior to and after

registration,

d) H ow members resigned and how many enrolled after registration

o f Co-operative Housing Society,

e) Latest estimate o f the project cost.^^

iii) Decision whether the members shall themselves get the

construction o f building done by entrusting to the Board or to a

Sub-committee.

or

D ecision whether the work is to be executed by Architects and

Contractors.

In case the construction work is to be done by engaging an Architect

and a contractor, the Society shall publish a Notice in a Daily Newspaper

having wide circulation inviting tenders for work. The Society shall

200

prepare a panel o f Architects and Contractors exceeding three in each

27case.

O f course, engagement o f Architect and contractor is compulsory

0 Qwhen the total cost o f the project exceeds R s.l2 Lakhs.

A panel o f 5 valuers may also be prepared by way o f inviting

applications in the same manner o f publication o f Notice in one Daily

Newspaper,^^

N o person acting as an Architect shall also act as a contractor and

vice. versa.^°

After registration o f a Co-operative Housing Society, all Bank

Accounts opened before registration shall be closed and all amounts

thereof shall be credited to the account o f the Co-operative Housing

Society. A ll expenditures made by the Chief Promoter before registration

must be credited to the account o f the Co-operative Housing Society to be

opened now.^'

4.2.6 A nnual G eneral M eeting and Special G eneral M eeting :

Annual General Meeting o f the Society shall be held in terms o f

Section 25(1) WBCS Act, 1983 once within one year i.e. annually and in

terms o f Section 27, election o f Directors for reconstitution o f a Board is to

be made within 3 years i.e. a Board o f Directors shall hold office for 3

years. Agenda o f an Annual General Meeting shall be the following ;

201

i) Election, if any, o f the Directors o f the Board.

ii) Consideration and record o f the proceedings o f the last Annual

General Meeting.

iii) Approval o f the Budget.

iv) Consideration o f the Audit Report.

(Audit is made by the Co-operative Audit Directorate o f the

State o f W est Bengal - N o outside auditor can be entrusted to

audit the accounts o f the Society).

v) Progress in implementation o f project.

vi) Particulars o f funds received from individual members and

cases o f default, i f any.

vii) Confirmation o f land, house or apartment cost as per up-to-

date estimate or estimate o f escalation, as the case may be.

viii) Latest position as to drawal o f loans from the West Bengal

State Co-operative Housing Federation and recovery o f such

loan.

(Housing Federation is a federated Co-operative Society

whose members are Primary Co-operative Housing Societies.

For the purpose o f obtaining loan for members o f such Co­

operative Housing societies, they become members o f this

202

Federation which lends money for construction o f house / flat

or building. This is a financial Institution in the Co-operative

Housing Sector).

ix) Case o f resignation, expulsion and death, if any, o f members

and fresh enrolment in the consequential vacancies.^^

Thus, though the provisions contained in Section 25 o f the Act are

not included in the Special Chapter o f Co-operative Housing Societies,

these are equally applicable to such Societies. Items (i) to (iv) are borrowed

from Section 25 and items (v) to (ix) are specified in Rule 144 o f WBCS

Rules, 1987 in the Special Chapter.

Special General Meeting is mentioned in Section 26 o f the Act. Such

a General Meeting can be called on the following instances ;

i) At the instance o f majority o f the Directors o f the Board.

ii) On the requisition in writing o f one-third o f the Members o f the

Co-operative Society.

iii) At the direction o f the Registrar.

N otice o f Annual General Meeting and Special General Meeting

shall be sent to every Member not less than 21 days before the date o f

meeting. It shall be signed by the Secretary or any other officer authorised

by the Board in accordance with the direction o f the Board.^^

203

I f in a Co-operative Housing Society, the number o f members is

more than 1500, the Annual General Meeting shall be held with delegates,

not by all members directly as per Rule 27, WBCS Rules, 1987. In a

General Meeting, Annual or Special, every resolution shall be decided by a

majority o f votes and if the votes be equal, the matter shall be decided by

the casting vote o f the Chairman o f the meeting. The Chairman o f the

Board o f Directors or in his absence the Vice-Chairman or in absence o f

the both, one o f the Directors in the panel which is to be made beforehand

under Rule 32 shall preside over Annual or Special General Meeting. If

there is no panel, then the members present in the General Meeting shall

instantly appoint a Chairman to preside over such a general meeting either

special or annual. '̂ ̂ According to the Rule, the quorum o f an Annual or

Special General Meeting shall be 1/5* o f total members subsisting on the

date o f notice o f the meeting. O f course, the bye-laws o f a society (here

Co-operative Housing Society) may specify a larger proportion i.e. greater

than 1/5* e.g. 1/3*̂ ̂ or 1/4* etc. Quorum o f such meeting must be formed

within half-an-hour from the time appointed for the meeting. I f not, the

meeting shall be adjourned ordinarily to the same day in the next week at

the same place and time. This time, no quorum is necessary for transaction

o f business o f the meeting.^^

But in case o f a Special General Meeting which had been called on

requisition by majority o f Directors o f the Board or 1/3'"̂ o f the total

204

members or at the instance o f the Registrar, i f no quorum is formed at the

first time, the meeting shall not be adjourned but dissolved.^^

A Minute Book is to be maintained in a Co-operative Society, it

shall be drawn up and signed by the Chairman o f the meeting within 72

inhours from the time when the meeting terminates.

4.2.7 A llotm ent o f Plots or H ouses or A partm ents and cost o f

co n stru ctio n :

After registration o f a Housing Society the Office-Bearers shall

purchase the land by way o f execution o f a Purchase Deed in favour o f the

Co-operative Housing Society. This time, Stamp Duty and Registration

Fee for registration o f the purchase deed are exempted. The provision has

given power to the State Government to remit any tax, cess or fee payable

under any law for the time being in force. The State Government may in

the case o f a Co-operative Society or Class o f Co-operative Societies or a

member o f Co-operative Society remit such tax, cess or fee by general or

special order. The State government by Notification grants remission o f

Stamp Duty and Registration Fee in respect o f any instrument executed by,

or on behalf o f , or in favour of, any Co-operative Society or such class

Co-operative Societies or an Officer / Member thereof relating to business

o f such Co-operative Society(s). Under the Indian Registration Act, 1908,

for execution o f any instrument, Stamp Duty and Registration Fee are

205

charged. U n d e r th is p ro v is io n , a C o -o p e ra tiv e H o u s in g S o c ie ty w h ile

re g is te rin g an in s tru m en t in purchasing lan d on w h ic h its p ro je c t shall be

constructed sha ll g e t b e n e fit o f e x e m p tio n o f S tam p D u ty and R eg is tra tio n

“3 OF ee on th e to ta l q u an tu m o f lan d h o w e v e r b ig its area m a y be.

A f te r o b ta in in g the co m p le tio n ce rtific a te fro m the C o rp o ra tio n /

M u n ic ip a lity / P an ch ayat the C o -o p e ra tiv e H o u s in g S o c ie ty executes

co n veyan ce D e e d o f lan d o r house or ap artm en t in th e n am e o f in d iv id u a l

m em bers . T h is tim e , the R eg is te rin g O ff ic e r e x e rc is in g p o w e r under

R e g is tra tio n A c t , 1 9 0 8 , charges S tam p D u ty and re g is tra tio n fee p a rtly . In

case o f C o -o p e ra tiv e H o u s in g Societies, no S tam p D u ty and reg istra tion

fee are ch arg ed u p to R s .3 ,5 0 ,0 0 0 /- (R upees th ree lakhs f i f ty thousand) on

the v a lu e o f the lan d , house, ap artm en t as the case m a y be.^^

N o w , q u estio n arises w h e th er such rem iss io n o f S tam p d u ty and

re g is tra tio n fe e p a y a b le b y a m em b er o f a C o -o p e ra tiv e H o u s in g S oc ie ty in

w h o se fa v o u r a p lo t o f lan d o r a house o r an A p a rtm e n t in a b u ild in g has

been a llo tte d should be extended to a m e m b e r w h o is subsequently

in d u cted in th e so c ie ty b y w a y o f tran sfer fi-om an e x is tin g m em b er. In this

regard . S ec tio n 8 7 o r W .B .C .S . A c t, 1 9 8 7 states th a t any a llo tm e n t

( in c lu d in g re -a llo tm e n t) o f a p lo t o f land o r a house o r an ap artm en t in a

b u ild in g to its m e m b e r w ith tit le and in terest is g ran ted b y an in stru m en t o f

tran s fe r in accordance w ith the p rov is ions o f T ra n s fe r o f P ro p e rty A c t,

1 8 8 2 and th e R e g is tra tio n A c t, 1908 and th is in s tru m en t is the conc lus ive

206

e v id en ce o f such t it le o r in terest in fa v o u r o f such m em b er. P re v io u s ly

p r io r to D e c e m b e r, 1 9 9 5 , m ere a llo tm e n t ( in c lu d in g re -a llo tm e n t) o f a p lo t

o f la n d o r a house o r an ap artm en t in a b u ild in g to a m e m b e r w ith tit le and

in terest w as the co n c lu s ive ev idence o f h is t it le and interest

n o tw ith s ta n d in g an y p ro v is io n con ta ined in T ra n s fe r o f P ro p erty A c t, 1882

o r R e g is tra tio n A c t , 19 0 8 . A t th a t t im e , no reg is tra tio n under the

R e g is tra tio n A c t , 1 9 0 8 w as necessary fo r such a llo tm e n t o r re-allotment."^®

A c c o rd in g to W e s t B e n g a l C o -o p e ra tiv e S ocieties R u les , 1987 ,

a llo tm e n t o f p lo ts o f lan d , house o r apartm ents shall be m ad e b y the B o ard

s tric tly on th e basis o f the p rin c ip les and p o lic ies adopted in its firs t

m e e tin g and sha ll be co m m u n ica ted to each m e m b e r w ith in seven days

fro m such dec is ion . A n y person d issatis fied b y the d ec is io n o f the B o ard

m a y appea l to the g enera l b o d y o f m em bers w h o se dec is ion shall be

f m a l . ' ^ ’

A m e m b e r m a y be d issatis fied w ith the dec is io n o f the board on

a llo tm e n t o f la n d o r house o r apartm ent. So he m a y p re fe r an appeal w ith in

15 days fro m th e date o f rece ip t o f the c o m m u n ic a tio n o f th e d ec is ion o f

the B o a rd . T h e B o a rd sha ll w ith in 4 5 days o f re c e ip t o f such in tim a tio n

arrange to h o ld a m e e tin g o f the genera l body.'^^

T h e ab o ve R u le does n o t sp ec ify the m o d e o f a llo tm e n t bu t g ives

p o w e r to th e B o a rd to f ix the m ode in its firs t m e e tin g . In a B o ard , the

207

n u m b e r o f D ire c to rs is 3 to 15 as m en tio n ed in S ec tio n 2 7 o f the A c t. N o w ,

it is a m a tte r o f debate w h e th e r it is w is e to leave th is v ita l m atte r o f

a llo tm e n t to a sm a ll b o d y , w h ile n u m b e r o f m em b ers m a y be hundreds,

th o u g h the re q u ire d m in im u m n u m b er o f m em b ers in a C o -o p e ra tiv e

H o u s in g S o c ie ty is 8 (eight)."^^ S om etim es, v e ry ju d ic io u s ly , a llo tm e n t is

m ad e on th e basis o f lo tte ry b u t b y th a t sm all fra c tio n o f m em b ers w h o are

D ire c to rs in th e B o a rd . T h u s there rem ain s scope o f m a lp ra c tic e and

arb itrariness .

E a c h f la t in a b u ild in g has its advantage and d isadvantage, some

fla ts are a iry , south fa c in g o r east fa c in g and som e are not. H e n c e , a fter

a llo tm e n t, d issa tis fac tio n arises in som e m em b ers and d iffe ren ces in the

h ousing soc ie ty crop up.

T h e t it le o r in terest in any p lo t o f lan d o r house o r ap artm en t in a

b u ild in g shall pass on to a m e m b e r o n ly w h e n he has m a d e such p aym en t

as m a y be p rescrib ed tow ards the cost o f such p lo t o f lan d o r construction

o f such house o r ap artm en t o r both , as the case m a y be to the C o -o p e ra tiv e

H o u s in g Society.'^'^ E ith e r in the R u les o r m o d e l b y e -la w s o f H o u s in g

S ocie ty , the m a n n e r o f d e te rm in in g the cost o f p lo t o f lan d o r apartm ent

has n o t been in d ica ted . O f course, i t is n o t possib le to p rescrib e such cost

o f la n d and a p artm en t in gen era l term s. T h e m o st p re v a ilin g p rocedure o f

e s tim atin g such cost o f lan d and construction o f a p artm en t o r house is that

the B o a rd o f D ire c to rs fixes it on the basis o f assessm ent o f architects.

208

A c c o rd in g ly , th e B o a rd has p o w e r to issue p e rio d ic a l d em an d no tice to the

m em b ers fo r p a y in g insta lm ents to w ard s cost o f land , house or

apartment."^^ T h e cost o f lan d m a y be d e te rm in ed on the basis o f its

purchase v a lu e , expenses fo r its d eve lo p m en t to bastu le v e l and o ther p rio r

re g is tra tio n expenses. B u t cost o f co n stru ctio n va ries as values o f

m ateria ls , la b o u r charges v a ry . I n case o f u n it houses, o n ly la n d va lu e is

ap p o rtio n ed am o n g m em b ers and then each m e m b e r constructs his house

acco rd in g to h is f in a n c ia l c a p a b ility and req u ire m e n t. In the score o f

co n stru ctio n o f such u n it houses, o n ly land is a llo tte d to a m e m b e r and the

C o -o p e ra tiv e H o u s in g S o c ie ty has no ro le in it. T h e S o c ie ty shall have fu ll

co n tro l o n ly o v e r the co m m o n areas. O n the o th er hand , a C o o p era tive

H o u s in g S o c ie ty c o m p ris in g o f rea d y -m a d e fla ts has no resp o n s ib ility o f

construction b u t o n ly to m anage the services lik e w a te r , genera to r, security

etc. In th is case also, the society shall have co n tro l o v e r the co m m o n areas

and fa c ilit ie s . T h e c o m m o n areas and fa c ilitie s are n o t w e l l d e fin ed in the

W e s t B e n g a l C o -o p e ra tiv e Societies A c t, 1983 and th e W e s t B e n g a l C o ­

o p era tive S oc ie ties R u le s , 1 9 8 7 . B u t m ost C o -o p e ra tiv e H o u s in g Societies

fo llo w the d e fin it io n o f “ co m m o n areas and fa c ilit ie s ” as co n ta in ed in the

W e s t B e n g a l A p a rtm e n t O w n e rs h ip A c t, 1 9 7 2 . A c c o rd in g to this

d e fin itio n , “ c o m m o n areas and fa c ilit ie s ” in c lu d e :

1 ) T h e la n d on w h ic h the b u ild in g is located and a ll easem ents,

rig h ts and appurtenances b e lo n g in g to the lan d and the b u ild in g .

209

2 ) T h e fo u n d atio n s , co lum ns, g irders , beam s, supports, m a in w a lls ,

ro o fs , h a lls , corridors , lobb ies , stairs, s ta ir-w a y s , fire-escapes and

entrances and ex its o f the b u ild in g .

3 ) T h e basem ents, ce llars , yards, gardens, p a rk in g areas, shopping

centres, schools, garages, b u ild in g o r ap artm en t vacan t or

o ccu p ied b y a ten an t o r any o ther person n o t b e in g an o w n e r and

tra n s fe rre d or proposed to be tran sferred to the A sso c ia tio n o f

A p a rtm e n t ow ners and storage spaces.

4 ) T h e p rem ises fo r the lo d g in g o f ja n ito rs o r persons e m p lo y e d fo r

the m a n a g e m e n t o f the p roperty .

5 ) In s ta lla t io n o f co m m o n services, such as, p o w e r, lig h t, gas, hot

and c o ld w a te r, h ea tin g , re fr ig e ra tio n , a ir co n d itio n in g , sew erage

etc.

6 ) T h e e levato rs , tanks, pum ps, m otors , com pressors, p ipes and

ducts and in g enera l a ll apparatus and in s ta lla tio n ex is tin g fo r

c o m m o n use.

7 ) S uch o th e r co m m o n fa c ilitie s as m a y be s p e c ia lly p ro v id e d fo r

the d e c la ra tio n .

8 ) A l l o th e r parts o f the p ro p erty necessary o r co n ven ien t to its

ex is tence , m ain ten an ce and safety o r n o rm a lly in co m m o n use.'^^

2 1 0

A n y m e m b e r o f a C o -o p e ra tiv e housing society , w h o is an em p lo yee

o f the C e n tra l o r th e S tate G o v e rn m e n t o r an y p u b lic u n d ertak in g or

G o v e rrm ie n t Sponsored In s titu tio n has a fa c il ity to ta k e lo an fro m the C o ­

o p e ra tiv e H o u s in g F e d e ra tio n in the even t o f instan t n o n -a v a ila b ility o f

lo a n fro m the e m p lo y e r. O rd in a r ily the ra te o f in terest on lo an at the

F e d e ra tio n is h ig h e r th an th a t p re v a ilin g in the o ffic e s w h e re the m em b er is

e m p lo y e d . H e m a y ta k e lo an at firs t fro m the F e d e ra tio n and then a fte r

g e ttin g lo a n fro m his e m p lo y e r rep ay it to the F e d e ra tio n at a t im e . L e g a l

c o m p lic a tio n arises h o w a person can create a fr irth e r m o rtg ag e to his

e m p lo y e r w h e n h e has ta k e n lo an fro m H o u s in g F e d e ra tio n creating a

charge u p o n th e lan d , house o r apartm ent a llo tte d to h im .

T o execu te a S econd M o rtg a g e , R u le 150 has g iv e n a m e m b e r o f

C o -o p e ra tiv e H o u s in g S o c ie ty an advantage to create a second m ortgage .

B y th is R u le , such a m e m b e r m a y o b ta in lo an fro m his e m p lo y e r on such

term s and co n d itio n s as m a y be im posed b y the e m p lo y e r and such loan,

e ith e r in lu m p o r in a su itab le insta lm ents, as th e case m a y be, shall be p a id

to h im o r o n h is a u th o rity to the C o -o p e ra tiv e H o u s in g F e d e ra tio n L td . as

m a y be d ec id ed b y the e m p lo y e r. F o r th is purpose the loanee m e m b e r upon

an ag reem en t is to assign the r ig h t w ith th e society upo n a fu rth er

ag reem en t to p led g e h is g ra tu ity o r deposits o r in terest. H e shall also be

re q u ire d to execu te a second m o rtg ag e in fa v o u r o f h is e m p lo y e r a fter

c o m p le tio n o f th e house o r apartment.'*^

2 1 1

H o w e v e r acco rd in g to W .B .C .S . R u les , 1 9 8 7 the cost o f any land

( in c lu d in g d e v e lo p m e n t cost) o r the cost o f an y house or ap artm en t on such

lan d b u ilt b y a C o -o p e ra tiv e H o u s in g S o c ie ty shall be ap p o rtio n ed in such

m a n n e r as m a y b e dec id ed b y th e B o a rd , so, th e B o a rd is e m p o w e re d to f ix

the cost acco rd in g to the p ro jec t cost. I t o fte n happens th a t the in it ia lly

f ix e d p ro je c t cost changes and the B o a rd is c o m p e lle d to change the

d em an d n o tic e fo r o b ta in in g c o n trib u tio n fro m m em bers .

T h e B o a rd sha ll en d eavo u r to a v o id an y esca la tion cost o f the

p ro jec t. In case o f a n y escala tion , the B o a rd shall b r in g th e fac t to the

n o tice o f th e g en era l b o d y in an A n n u a l G e n e ra l M e e t in g o r a S pecia l

G e n e ra l M e e t in g forthwith."^^ So, w h e n any ad d itio n in th e dem an d no tice

fo r ra is in g cost o f construction o f f la t arises, the B o a rd is no t co m p eten t to

increase it. I t shall o b ta in ap p ro va l o f the gen era l b o d y o f m em bers . T h a t

m eans, a ll m em b ers are to be appraised o f the esca la tio n o f the cost and

proposed a d d itio n a l co n trib u tio n tow ards th is escalated cost.

B u t, w h e n c o n trib u tio n to w ard s cost o f the p ro je c t is no t deposited

b y a ll m em b ers t im e ly acco rd in g to dem and o f the B o a rd , the construction

w o rk is cho cked and it becom es im possib le to co m p le te the p ro jec t in tim e .

A s d u ra tio n o f c o m p le tio n o f construction becom es longer, cost o f

m ateria ls increases and th e reb y fla t cost increases also. In a G ro u p H o u s in g

fo r 100 o r m o re m em b ers , i f one or tw o m em bers d e fa u lt in p a y in g the

c o n trib u tio n , th ere is a lit t le e ffe c t o f d e la y o f c o m p le tio n o f the p ro ject.

2 1 2

B u t in a s m a ll G ro u p H o u s in g o f 8 m em bers , i f one fa ils to deposit reg u la r

c o n trib u tio n , th e speed o f construction is re tard ed and escala tion o f p ro ject

cost becom es u n a v o id a b le . T h e ad d itio n a l b u rd en o f p ro v id in g ad d itio n a l

cost is shou ldered b y o ther m em bers w h o h ave been p a y in g it re g u la rly .

O n the ab o ve s ituation , w h e n a m e m b e r continues to d e fau lt in

p a y m e n t o f h is dues to w ard s cost o f land o r house o r ap artm en t a llo tted to

h im b y the C o -o p e ra tiv e H o u s in g S o c ie ty fo r m o re th an s ix m onths

w ith o u t a b re a k , th e society m a y take recourse o f the p ro v is io n s specified

in W e s t B e n g a l C o -o p e ra tiv e Societies R u les , 1 9 8 7 . A c c o rd in g to this

R u le , th e B o a rd o f the S o c ie ty shall have to reso lve in a m e e tin g ca lled fo r

the purpose o f e x p u ls io n o f the m e m b e r o f the soc ie ty . B u t th is reso lu tion

is to b e supported b y tw o -th ird s o f the to ta l m em b ers o f th e B o a rd present

and v o tin g . B e fo re ta k in g the said reso lu tio n fo r h is exp u ls io n fo r the

m em b ersh ip o f th e S o c ie ty , the B o a rd shall g iv e an o p p o rtu n ity to h im fo r

b e in g h eard in th is respect w h y he shall n o t be so ex p e lle d . T h is is an

e x trem e ac tio n against a m e m b e r fo r such d e fa u lt o f h is dues tow ards cost

o f lan d o r house o r ap artm en t a llo tted to h im . B u t the dec is io n o f the B o ard

to exp e l a m e m b e r is n o t f in a l. T h is m ust h ave ap p ro v a l o f the R e g is tra r o f

C o -o p e ra tiv e S ocieties .

T h e A ss is tan t R e g is tra r o f the concerned a rea o r the D e p u ty

R e g is tra r in K o lk a ta M e tro p o lita n A re a o r the D e p u ty R e g is tra r in R a ja rh a t

T o w n s h ip A r e a P ro je c t are no t com peten t to ap p ro ve it. So, the B o a rd is to

213

subm it the p ro p o sa l o r decis ion o f exp u ls io n to the R eg is tra r. T h e re is also

a fu rth e r p ro v is io n in the R u le th a t the a p p ro va l o r d isap p ro va l o f the

R e g is tra r sha ll be co m m u n ica ted to the C o -o p e ra tiv e H o u s in g Societ>'

w ith in a p e rio d o f s ix w eeks and in absence o f such co m m u n ica tio n , the

re s o lu tio n o f th e B o a rd shall be e ffec tive .^ ° T h e p o w e r o f the R eg is tra r is

e xc lu s iv e as th is can n o t be de legated to an y o th er o ff ic e r . T h e exp lan a tio n

to th e R u le 137 p ro v id es th is exc lu s iv e p o w e r o f the R e g is tra r o f C o ­

o p era tive S oc ie ties , W e s t B e n g a l stationed at K o lk a ta . T h e re fo re , such an

e x p u ls io n m a tte r a ris in g in a D is tr ic t o f M a ld a o r C o o c h B e h a r or

D a r je e lin g o r P u ru lia sha ll be subm itted b y th e C o -o p e ra tiv e H o u s in g

S o c ie ty to th e R e g is tra r at K o lk a ta . T h e R e g is tra r u p o n h earin g the S ociety

and the m e m b e r against w h o m exp u ls io n p roposa l has been subm itted to

h im , sha ll d ispose it. In p rev io u s such cases, th e R e g is tra r, d isposed b y

e ith e r a p p ro v in g th e dec is io n o f the B o a rd o r d is a p p ro v in g the decis ion .

O th e rw is e , f in d in g n o n -c o m p lia n c e o f som e p ro ced u ra l fo rm a lit ie s b y the

S o c ie ty h e o rd ered fo r p a y m e n t o f d e fau lted dues b y the m e m b e r w ith in a

certa in p e r io d and n o n -c o m p lia n c e o f the o rd er w o u ld c o n firm the approva l

o f the exp u ls io n . In m a n y cases, the m e m b e r c o m p lie d w ith the o rder o f

the R e g is tra r and the process o f exp u ls io n d ropped . In som e cases, the

m e m b e r d id n o t c o m p ly w ith the term s o f the o rd er passed b y the R eg is tra r

o f C o -o p e ra tiv e S ocieties and the decis ion o f the B o a rd fo r exp u ls io n o f

the m e m b e r w as c o n firm e d and approved b y h im f in a lly .

214

A m e m b e r m a y also be e xp e lled in the sam e m a m ie r as discussed

above w h ic h is em b o d ied in S u b -R u le ( l) o f the R u le 137 on another

ground . T h e g ro u n d is an y act o f a m e m b e r w h ic h is p re -ju d ic ia l to the

in terest o f the C o -o p e ra tiv e H o u s in g S o c ie ty o r he has v io la te d a la w fu l

d ec is io n o f th e B o a rd despite w arn in g .^ ' B u t th is p ro v is io n does not defin e

the act w h ic h m a y be considered as p re ju d ic ia l to the in terest o f the

S o c ie ty . F u rth e r v io la t io n o f a la w fu l dec is ion o f th e B o a rd is a ground fo r

exp u ls io n .

W h e n th e R e g is tra r has ap p ro ved e x p u ls io n o f a m em b er, the

m e m b e r m a y b e a g g rieved and shall h ave r ig h t to appeal to the

G o v e rn m e n t b y subm ission o f a w r itte n rep resen ta tio n to the State

G o v e rn m e n t w ith in a fo rtn ig h t fro m the date o f c o m m u n ic a tio n o f the

order o f exp u ls io n . So, the agg rieved m e m b e r w h o se exp u ls io n has been

a p p ro ved b y the R e g is tra r shall subm it ap p ea l to the S ecretary , C o ­

o p era tive D e p a rtm e n t, G o v e rn m e n t o f W e s t B e n g a l. In th is m atter, the

State G o v e rn m e n t i.e . th ro u g h the S ecretary o f th a t D e p a rtm e n t is the

ap p e lla te a u th o rity o f the R eg is tra r. T h e re is a lim ita t io n o f p e rio d in

p re fe rr in g th e ap p ea l b y the m e m b e r so exp e lled . T h e p e rio d is a fo rtn ig h t.

I t is n o t p ro v id e d in th is S u b -R u le that the ap p e lla te a u th o rity has p o w e r to

condone th e d e la y , i f m a d e in p re fe rr in g the appeal.^^

F ro m som e p rev io u s records o f d isposal o f appea l in the C o ­

o p e ra tio n D e p a rtm e n t, G o v e rn m e n t o f W e s t B e n g a l, it is fo u n d th a t the

2 1 5

S ecretary calls th e ap p e llan t m e m b e r and the B o a rd o f the C o -o p e ra tiv e

H o u s in g S o c ie ty fo r h earin g th em in the m atte r. H e also calls fo r record in

the m a tte r fro m the R e g is tra r and a responsib le o ff ic e r o f the R eg is trar

appears also w ith th e records d u rin g h earin g b y the S ecretary . T h e

S ecretary passes reasonab le o rd er e ith er c o n firm in g the approva l o f

e x p u ls io n o r re je c tin g the sam e. So, the ex trem e a c tio n against a m e m b e r is

exp u ls io n . In th e e v e n t o f exp u ls io n , the S o c ie ty is to re tu rn the m o n ey

w h ic h h a d a lre a d y b een deposited b y the e x p e lle d m e m b e r. T h e exp e lled

m e m b e r o fte n c la im s the re tu rn o f the deposited m o n e y a lo n g w ith som e

in terest at p re v a ilin g rates o f the B a n k . In th e m a tte r, d isputes arise and it

goes fo r a rb itra tio n in the o ff ic e o f the R e g is tra r (h e re A ss is tan t R eg is tra r

o r D e p u ty R e g is tra r o f M e tro p o lita n A re a ). T h e endless d isputes lead to an

erosion o f h u g e m o n e y fro m the fu n d o f soc ie ty , w h ic h is m ean t o n ly fo r

cost o f lan d and cost o f construction o f house o r ap artm en t. H o w e v e r , re ­

ad m iss io n o f an e x p e lle d m e m b e r in that v e ry soc ie ty is p ro v id e d n e ith e r in

th e C o -o p e ra tiv e A c t n o r in the C o -o p e ra tiv e R u les . B u t in the registered

b y e -la w s o f a C o -o p e ra tiv e H o u s in g S o c ie ty , th ere is a p ro v is io n fo r such

re -ad m iss io n . In clause 15 o f its m o d e l b y e -la w s , i t is stated th a t no

e x p e lle d m e m b e r shall be re -a d m itte d excep t b y a vo te o f tw o -th ird s o f the

m em bers present and v o tin g at any G en era l M e e t in g on a m o tio n o f w h ic h ,

n o tice has b een g iv e n , p ro v id e d that an e x p e lle d m e m b e r shall be re ­

ad m itte d a fte r one y e a r fro m the date o f his exp u ls io n .

216

H e re , it is to be n o ted th a t w h ile a process fo r exp u ls io n is taken b y

a B o a rd o f D ire c to rs , the m e m b e r against w h o m such exp u ls io n is

proposed m a y o n ly h ave an o p p o rtu n ity o f p u ttin g fo rw a rd his arg u m en t o r

g rievan ce at the tim e o f h ea rin g the m atte r b y the R eg is tra r. B e fo re that he

is e n title d to get a n o tice re q u ir in g h im to show cause w h y he should not be

exp e lled . A t the sam e tim e , the m e m b e r can ra ise th is m a tte r in fo rm o f

dispute b e tw e e n th e B o a rd o f the S o c ie ty and h im s e lf to the R eg is tra r. T h e

m an n er o f f i l in g d ispute and its d isposal are set ou t in the C h a p te r -X I o f

the C o -o p e ra tiv e A c t s ty led as “ S e ttlem en t o f D is p u te s ” .̂ ̂ T h e

co rresp o n d in g R u les in the W e s t B e n g a l C o -o p e ra tiv e Societies R u les ,

1 9 8 7 are 171 to 1 8 2 . T h e m e m b e r desirous to f i le a d ispu te shall subm it to

the R e g is tra r, a re fe ren ce in w r it in g in tr ip lic a te to be ca lled p la in t

c o n ta in in g m a in ly fo llo w in g p a rtic u la r :

a ) N a m e s and address o f the parties (h is o w n and the

S o c ie ty , its D ire c to rs e tc .)

b ) A s tatem ent o f the subject o f th e d ispute , and

c ) T h e c la im o f the r e l ie f p rayed for.^"^

T h e a m o u n t o f fee in a m o n e ta ry d ispute is R s .5 /- fo r a c la im upto

R s .2 0 0 /- and R s .lO /- fo r a c la im above R s .2 0 0 /- . In a n o n -m o n e ta ry d ispute

the fee is R s .50 /-.^^ T h e d ispute is heard and disposed b y w a y o f g iv in g an

a w a rd b y th e R e g is tra r o r any o f h is sub -o rd inate o ffic e rs ( in som e cases,

2 1 7

re tire d G o v e rn m e n t O ff ic e r , C h arte red A c c o u n ta n t e tc .) T h e disposal o f a

dispute is speedy and cheaper th an th a t in o ther C iv i l C o u rts . T h e aw ard is

b in d in g u p o n the C o -o p e ra tiv e S o c ie ty and the m em b er. In any dispute,

a w a rd o f th e A rb itra to r or o f the R e g is tra r shall, upo n ap p lica tio n , be

e n fo rceab le b y an y C o u rt h a v in g lo ca l ju r is d ic tio n in the sam e m an n er as a

decree o f such C o u rt as i f it w e re a decree o f a Court.^^ T h u s , the aw ard

has le g a l fo rc e and b in d in g up o n the parties to th e d ispute. T h e aw ard is

also a p p e lab le to th e W e s t B e n g a l C o -o p e ra tiv e T r ib u n a l w ith in one m onth

fro m th e date on w h ic h the order, dec is ion o r a w a rd is com m unicated.^^

T h e d isposal o f a d ispute in the C o u rt o f A rb itra to r o r th e R eg is tra r is

o rd in a r ily to b e done b y s ix m onths. T h is p e rio d o f s ix m onths is extended

fu rth e r u p to s ix m onths to ta lin g 12 m o n t h s .H e n c e , once a m atte r o f

exp u ls io n com es out, the C o -o p e ra tiv e H o u s in g S o c ie ty fa lls in to trap o f

lit ig a tio n fo r w h ic h a huge m o n e y is expended . B u t in it ia lly the

c o n tr ib u tio n has been ra ised fro m a ll m em bers on th e basis o f ca lcu la tio n

o f the C o s t o f la n d and th e cost o f construction o f house o r apartm ent or

b u ild in g and o th er in c id e n ta l expenses. T h e lit ig a tio n cost is m e t out o f the

fu n d o f the soc ie ty . T h e fu n d fa lls short o f b y the am o u n t equal to the

lit ig a tio n cost. T h is d e fic it is f i l le d up b y d em an d in g ad d itio n a l

c o n trib u tio n in th e fo rm o f service charge. T h e serv ice charge is o rd in a rily

m e a n t fo r m a n a g e m e n t cost o f the society.

218

I t has e a r lie r been discussed that G ro u p H o u s in g m a y be undertaken

b y w a y o f :

i ) P u rch as in g lan d and construction o f hous ing p ro jec t on the

la n d fo r a llo tm e n t o f such flats / apartm ents to the m em ber.

i i ) P u rch as in g fla ts fro m som e a u th o rity b y in d iv id u a l persons

w h o b y tu rn fo rm a C o -o p e ra tiv e H o u s in g S o c ie ty fo r

m ain ten an ce .

i i i ) P u rch as in g lan d fro m w h ic h p lo ts are a llo tte d o r d istributed

to m em b ers o f a C o -o p e ra tiv e H o u s in g S o c ie ty and the

in d iv id u a l m e m b e r constructs h is house acco rd in g to his

necessity and a b ility .

H e n c e , in th e firs t case, w h e n construction o f G ro u p H o u s in g is

co m p le te , the w h o le p ro je c t is n o w in the n am e o f the C o -o p e ra tiv e

H o u s in g S o c ie ty . A t th is a stage, the S o c ie ty sha ll execu te a deed o f

co n veyan ce to e v e ry m em ber.^^ In execu tin g such a deed, e x e m p tio n o f

S tam p D u ty and R e g is tra tio n F ee are exem p ted on the v a lu e o f the fla t o r

ap artm en t u p to R s .3 .5 L a k h . T h is e x e m p tio n is p ro v id e d in S ectio n 6 0 (2 )

o f W e s t B e n g a l C o -o p e ra tiv e Societies A c t , 1 9 8 3 . B u t b e fo re execu tin g

such a D e e d in fa v o u r o f a m em b er, the so ciety is to c o n firm that the

m e m b e r has m a d e p aym en ts as m a y be p rescribed to w ard s cost o f such

219

4 . 2 . 8 C o n v e y a n c e o f d e e d o f t i t l e i n f a v o u r o f e v e r y m e m b e r :

p lo t o f la n d o r construction o f such house o r ap artm en t o r bo th , as the case

m a y be.^° T h e reg is te rin g au th o rity assesses a v a lu e o f a f la t o r house on

the basis o f p re v a ilin g p e r square fee t / m etres ra te in the concerned area.

T h e au d it re p o rt c o n ta in in g cost o f construction o f each f la t is o rd in a rily

ta k e n in to c o n s id e ra tio n w h ile assessing the v a lu e o f a fla t. I f the va lu e o f a

f la t o r house is m o re th an R s .3 .5 lakh , the S tam p D u ty and R eg is tra tio n

F ee are c a lcu la ted o n the a d d itio n a l am o u n t in excess o f R s .3 .5 lakh .^ ’

F u rth e r, in th e second case w h e re a co -o p e ra tiv e h ousing society is

fo rm e d o f a ll purchasers o f fla ts fro m an a u th o rity lik e W e s t B en g a l

H o u s in g B o a rd , B e n g a l A m b u ja H o u s in g C o rp o ra tio n , B e n g a l Peerless

H o u s in g C o rp o ra tio n etc ., the au th o rity executes a deed o f conveyance o f

the w h o le p ro je c t in fa v o u r o f the society. A t the tim e o f reg is tra tio n o f

such deed o f co n veyan ce in respect o f b u ild in g c o m p ris in g o f m a n y flats,

fees fo r re g is tra tio n and req u is ite S tam p D u ty are e x e m p te d u n d er Section

6 0 , W .B .C .S . A c t , 1 9 8 3 . T h u s the C o -o p e ra tiv e H o u s in g S o c ie ty becom es

the sole o w n e r o f th e G ro u p H o u s in g P ro jec t. T h e S o c ie ty is n o w

co m p eten t to re c o n v e y to an in d iv id u a l m e m b e r the f la t in respect o f w h ic h

he has a lre a d y p a id to the A u th o r ity w h ic h constructed the p ro jec t. T h e

reco n veye d deed is fo r the f la t a lo n g w ith the in terest in co m m o n areas and

fa c ilit ie s . T h is tim e . S tam p D u ty and R e g is tra tio n F e e are exem p ted under

the p ro v is io n s o f S ec tio n 6 0 (2 ) supra up to R s .3 .5 la k h o f the v a lu e o f the

in d iv id u a l f la t. T h e v a lu e o f the fla t is ca lcu la ted on the basis o f the va lu e

2 2 0

a lre a d y p a id to the A u th o r ity fo r h a v in g its o w n ersh ip . T h u s the m em bers

o f a C o -o p e ra tiv e H o u s in g S o c ie ty fo rm e d o f a llo ttees o r ovm ers o f flats

constructed b y an A u th o r ity , can get the fla ts reg is te red in th e ir o w n nam es

th ro u g h th e C o -o p e ra tiv e H o u s in g S o c ie ty and can get e x e m p tio n o f a

considerab le a m o u n t o f m o n e y in the fo rm o f e x e m p tio n o f S tam p D u ty

and R e g is tra tio n fee . B u t there is a c lear d iffe re n c e b e tw e e n the m em bers

w h o construct th e ir o w n acco m m o d atio n in a C o -o p e ra tiv e H o u s in g

P ro je c t and subsequently fo rm a C o -o p e ra tiv e H o u s in g S o c ie ty . I t seems

th a t these persons d e riv e b e n e fit co vertly . B u t ap p aren tly it seems th a t the

constructing A u th o r ity u lt im a te ly derives such b en e fit. M a n y persons th in k

th a t fo r e x e m p tio n o f such S tam p D u ty and R e g is tra tio n F ee , the va lu e o f

fla ts constructed b y a u th o rity is cheaper than w h e n these are sold to p riva te

ow ners w h o do n o t fo rm a C o -o p e ra tiv e H o u s in g S o c ie ty .

In the th ird case, w h e re m em bers o f a C o -o p e ra tiv e H o u s in g S ociety

purchase lan d and p lo ts are a llo tted , the C o -o p e ra tiv e S o c ie ty purchases a

b ig area o f la n d b y w a y o f reg is te rin g a sale deed. D u r in g reg is tra tio n o f

such a deed no S tam p D u ty and R e g is tra tio n fee are re q u ire d u nder the

sam e S ectio n 6 0 o f the C o -o p e ra tiv e A c t. T h e C o -o p e ra tiv e H o u s in g

S o c ie ty a llo ts p lo ts o f lan d to its m em bers fo r construction o f th e ir houses.

T h e C o -o p e ra tiv e S o c ie ty u lt im a te ly conveys th e la n d w ith b u ild in g

th ereo n to th e m e m b e r b y w a y o f execu tin g a deed fo r w h ic h the

e x e m p tio n o f S tam p D u ty and fee is a llo w e d upto R s .3 .5 lakhs. Thus in

2 2 1

th ree k in d s o f C o -o p e ra tiv e H o u s in g Societies , the m em b ers get th e ir title

on the f la t o r house o r lan d in c lu d in g the u n d iv id e d in terest in the com m on

areas and fa c ilit ie s . In the ex is tin g W e s t B e n g a l C o -o p e ra tiv e Societies

A c t, 1 9 8 3 , th e u n d iv id e d in terest shall constitu te a h e ritab le and

tran s fe rab le im m o v a b le p ro p erty w ith in the m e a n in g o f an y la w fo r the

tim e b e in g in fo rce . S uch h eritab le and tran s ferab le im m o v a b le property

shall n o t b e p a rtit io n e d o r s u b -d iv id ed fo r an y purpose whatsoever.^^

E v e ry m e m b e r o f a C o -o p e ra tiv e H o u s in g S o c ie ty shall have the

r ig h t to use th e c o m m o n areas and fa c ilitie s fo r the purpose fo r w h ic h they

are in ten d ed . B u t a m e m b e r shall n o t in te rfe re w ith o r encroach upon the

la w fu l r ig h t o f o th e r m em b ers in w hose fa v o u r s im ila r a llo tm e n t has been

m a d e .^ ^

4 .2 .9 Cessation of Membership :

B y th e p ro v is io n s o f W e s t B e n g a l C o -o p e ra tiv e Societies R u les ,

1 9 8 7 , a person shall cease to be m e m b e r on th ree con d itio n s . These are the

instances w h e n :

i) H e incurs an y o f the d is q u a lific a tio n to be a m e m b e r o f a

C o -o p e ra tiv e society.

i i ) H e fa ils to accept any a llo tm e n t o f lan d o r house o r

a p artm en t w ith in a p e rio d o f 9 0 days fi*om the date o f

a llo tm e n t.

2 2 2

i i i ) H e o r an y m e m b e r o f his fa m ily establishes any business

re la tio n s h ip w ith the society o r acts as an advocate or

s o lic ito r against the society unless o th e rw ise d irected b y the

R eg is tra r.

E l ig ib i l i ty o f m em b ersh ip in any ty p e o f C o -o p e ra tiv e S ociety is

a p p licab le in case o f a C o -o p e ra tiv e H o u s in g S o c ie ty also. A c c o rd in g to

the g u id in g section fo llo w in g persons are e lig ib le fo r m em b ersh ip o f a C o ­

o p e ra tiv e Society.^"^

a ) A n in d iv id u a l co m p eten t to con tract u n d er Section

11 o f the In d ia n C o n tra c t A c t , 18 7 2 .

A person w h o is u s u a lly o f sound m in d , b u t o ccas io n a lly o f unsound

m in d , m a y n o t m a k e a contract w h e n he is o f unsound m in d .

T h u s a p a tie n t in a lu n a tic asy lu m , w h o is at in te rva ls o f sound

m in d , m a y co n trac t d u rin g those in terva ls ( lu c id in te rv a ls ). S im ila r ly a sane

m an , w h o is d e lir io u s fro m fe v e r o r w h o is so d ru n k th a t he cannot

understand the term s o f a contract, o r fo rm a ra tio n a l ju d g m e n t as to its

e ffe c t o n h is in terests, cannot contract w h ils t such d e lir in o r drunkenness

l a s t s .^ ^

H o w e v e r , som e persons p re tend to be m in o r, o r unsound o r d runken

fo r firaundently h a v in g som e b e n e fit on u lte r io r m o tiv e . T h e y m a y som e

tim es be m a k in g som e bargains, ta k in g som e loans or be supp lied w ith

223

som e goods b y th ird parties , o r be co n ferred w ith som e benefits etc. T h e

question w h ic h has arisen in In d ia is, h o w fa r a m in o r can be asked to

restore b a c k the b e n e fit w ro n g ly o b ta ined b y h im u n d er a v o id agreem ent.

T h e re is a qu estio n w h e th e r a m in o r can be asked to p a y com pensation to

the o th er p a rty . T h e p a rty to a contract w h o has re c e iv e d an y b e n e fit fro m

another p a rty and i f the con tract is its e lf a v o id a b le con tract shall restore

such b e n e fit to the person fro m w h o m it w as received.^^

B u t it is a p p lic a b le to a m in o r also acco rd in g to the in te rp re ta tio n o f

the P r iv y C o u n c il b u t the L a w C o m m iss io n d isagreed . F o r, S ectio n 68 o f

the In d ia n C o n tra c t A c t , 1 8 7 2 is fo r the c la im fo r necessaries supplied to

person in c a p a b le o f co n trac tin g o r on his account. So, S ec tio n 6 8 , In d ia n

C o n tra c t A c t , 1 8 7 2 can be in v o k e d against a m in o r.

O n th ere o th er hand , a m in o r m a y be a d m itted as a p a rtn e r in a f irm

w ith the consent o f a ll partners to the b enefits o f partn ersh ip . H e has a r ig h t

to such share o f th e p ro p e rty and o f the p ro fits o f th e f irm as m a y be agreed

upon. H e has r ig h t to access to and inspection o f an y o f the accounts o f the

f irm and h ave c o p y o f those.^^

T h u s , th o u g h th ere are so m a n y d e v ia tio n and excep tio n to the

n o rm a l ru le th a t a m in o r cannot m a k e o rd in a r ily a contract, in the case o f

in d u c tio n o f a person as a m e m b e r in a C o -o p e ra tiv e S o c ie ty in c lu d in g a

224

C o -o p e ra tiv e H o u s in g S o c ie ty , there is no chance o f a m in o r to becom e a

m e m b e r, even th ro u g h h is natu ra l o r appo in ted guard ian .

b ) an y o th er C o -o p e ra tiv e S o c ie ty .

In case o f a hous ing society , this clause is no t ap p lic a b le . Because, a

C o -o p e ra tiv e S o c ie ty cannot be a m e m b e r o f a C o -o p e ra tiv e H o u s in g

S o c ie ty in w h ic h o n ly an in d iv id u a l o rd in a r ily becom es its m em b er. A C o ­

o p era tive H o u s in g S o c ie ty is a p r im a ry society and in the d e fin it io n a “ C o ­

o p era tive H o u s in g S o c ie ty ” m eans a C o -o p e ra tiv e S o c ie ty , the ob ject o f

w h ic h is to p ro v id e its m em bers w ith d w e llin g house, apartm ents o r lands

fo r co n stru ctio n o f d w e llin g houses o r ap artm en t and m a in ten an ce o f

c o m m o n services in connection th e re w ith , and inc ludes a F ed era tio n o f

such Societies .

F u rth e r “ C e n tra l S o c ie ty ” m eans a C o -o p e ra tiv e S o c ie ty , the

p r im a ry o b jec t o f w h ic h is to fa c ilita te the w o rk in g o f o th er C o -o p e ra tiv e

S ocieties w h ic h are its m em bers , and inc ludes a C e n tra l C o -o p e ra tiv e

Bank.^^ O n th e o th er hand an “A p e x S o c ie ty ” m eans a C o -o p e ra tiv e

S o c ie ty w h o se a rea o f m em b ersh ip extends to the w h o le o f W e s t B engal

and the P r im a ry o b je c t o f w h ic h is to p ro m o te th e ob jects , and to p ro v id e

fa c ilit ie s fo r th e o p era tio n o f o ther co -o p e ra tiv e societies w h ic h are its

m em bers and inc ludes a S tate C o -o p e ra tiv e B ank.^°

225

c ) T h e S tate G o vern m en t.

In case o f a C o -o p e ra tiv e H o u s in g S o c ie ty , the S tate o f W e s t B en g a l

has n o t so fa r b eco m e a m em b er. In o ther categories o f C o -o p e ra tiv e

S ocie ties , the S tate G o v e rn m e n t has becom e m e m b e r. T h e purpose o f the

in d u c tio n o f th e S tate G o v e rn m e n t as a m e m b e r in such societies is to

strengthen th e fin a n c ia l base o f the society b y co n trib u tin g share o r soft

lo a n o r g ran t fo r f ru it fu l and v ia b le fu n c tio n in g . A n o th e r purpose o f the

State p a rtic ip a tio n is to m o n ito r the fu n c tio n in g o f the B o a rd o f D irec to rs

o f a C o -o p e ra tiv e S ociety .^ '

d ) A n y association o r b o d y o f persons (w h e th e r incorporated

o r n o t) o r an y fin a n c ia l bank , sub ject to a p p ro va l o f the

S tate G o v e rn m e n t b y genera l o r specia l order.

In the case o f a C o -o p e ra tiv e H o u s in g S o c ie ty , none o ther than an

in d iv id u a l can o rd in a r ily becom e its m em b er. In W e s t B e n g a l, som e

A ssocia tions o r b o d y o f persons have been a llo w e d to beco m e m em bers o f

C o -o p e ra tiv e H o u s in g S oc ie ty . A s fo r an e x a m p le , the R a m K ris h n a

M is s io n , B e lu r M a th has been approved b y the S tate G o v t, to becom e a

m e m b e r o f som e fo u r such housing societies. O f course, the typ e o f such

society is in respect o f the housing p ro je c t constructed and sold b y the

226

H e n c e , t h i s c l a u s e is n o t a p p l i c a b l e t o a P r i m a r y C o - o p e r a t i v e

H o u s i n g S o c i e t y .

W .B .H o u s in g B o a rd . T h e m o tto o f purchasing fla ts b y the M is s io n fro m

the H o u s in g B o a rd w as to reh ab ih ta te the occup iers in the prem ises o f the

house-stead o f th e ancestors o f S w a m i V iv e k a n a n d a . T h e M is s io n w anted

th e house-stead ren o va ted and to be u t il iz e d as a cen tre o f functions and

p erfo rm an ces o f the M is s io n . In fo u r C o -o p e ra tiv e H o u s in g Societies in

and around th e c ity o f K o lk a ta , the M is s io n purchased tw e n ty fla ts fo r

d e liv e r in g possession to the id e n tif ie d occup iers . B e fo re d ec id in g the

nam es o f b e n e fic ia rie s , th e M is s io n w as to b eco m e m em b ers o f such

housing societies and the State G o v e rn m e n t on ap p lica tio n s b y the R a m

K ris h n a M is s io n ap p ro ved the m em b ersh ip o f the M is s io n b y a special

o rd er in a ll th e societies w h e re fla ts w e re purchased b y th em . T h e M is s io n

afte rw ard s tran s fe rred the m em b ersh ip v is -a -v is f la t to the id e n tifie d

b en e fic ia ries . T h e re are o th er instances w h e re b y th is clause (d ) o f Sub­

section (1 ) o f S ec tio n 6 9 , W e s t B e n g a l C o -o p e ra tiv e S ocieties A c t , 1983 ,

the S tate G o v e rn m e n t b y special orders ap p ro ved m em b ersh ip o f body

corporates lik e In d ia n O i l C o rp o ra tio n , Peerless L td . etc. in som e housing

societies.

I t has b een discussed p re v io u s ly that a llo tm e n t o f lan d o r house or

ap artm en t is m a d e b y the B o a rd o f D ire c to rs o f the S o c ie ty and i f a

m e m b e r is d issa tis fied w ith th is a llo tm e n t, h e m a y p re fe r an appeal to the

gen era l b o d y w ith in 15 days fro m the date o f rece ip t o f the co m m u n ica tio n

o f a llo tm e n t and the B o a rd shall take 45 days th e re a fte r fo r h o ld in g a

211

m e e tin g o f th e gen era l b o d y . H e n c e , cessation o f m em b ersh ip fo r non-

acceptance o f a llo tm e n t is subject to the dec is ion o f the appea l, i f p re ferred

b y an a g g rie v e d m em b er. B esides, a llo tm e n t o f lan d o r house or f la t is

subject to p a y m e n t o f the a llo tm e n t m o n ey . H e n c e , i f req u is ite am ount o f

m o n e y is n o t p a id w ith in the s tipu lated t im e ( i,e . 9 0 days ), a llo tm e n t shall

b e can ce lle d and co nsequently , h is m em b ersh ip shall cease.

In a C o -o p e ra tiv e H o u s in g S o c ie ty , there are severa l w o rks lik e

construction o f th e H o u s in g P ro jec t, re p a irin g , c o lo u rin g , fen ch in g o f the

b o u n d ary etc. In respect o f construction , in it ia lly u n d ertaken b y a C o ­

o p e ra tiv e H o u s in g S o c ie ty , there is need o f a p p o in tin g o r engag ing an

A rc h ite c t and a C o n trac to r. I f a m e m b e r is engaged as an y o f those tw o

tech n ica l m e n , h is m em b ersh ip shall cease. F u rth e r, th ere ex is t several

lit ig a tio n s and i f a m e m b e r functions as an A d v o c a te o r S o lic ito r in fa v o u r

o f a p a rty to a S u it in w h ic h the S o c ie ty is the o th e r p a rty , the m em b er

shall cease to co n tin u e as such.^^

In the m o d e l b y e -la w s o f a C o -o p e ra tiv e H o u s in g S o c ie ty , there is

an a d d itio n a l c lause fo r cessation o f m em b ersh ip in the C lau se N o . l l ( i i i )

th a t a person sha ll cease to be a m e m b e r “ i f he lets ou t the house or

ap artm en t o r ten em en t a llo tte d to h im w ith o u t the p erm iss io n o f the B o ard

o f D ire c to rs and ap p ro ved b y the R e g is tra r.”

2 2 8

N o w , in a ll p ra c tic a l purposes, execu tio n o f cessation o f

m em b ersh ip is v e ry m u c h co m p lica ted . F irs tly , it is to be d e te rm in ed w h en

cessation occurs. T h e dec is ion o f th e B o a rd o f D ire c to rs fo r cessation on

ab o ve stated grounds, m a y resu lt to in s titu tio n o f a d ispute b y the m em b er

w h o se m e m b e rs h ip is p roposed to be ceased. I t is n o t m en tio n e d in the C o ­

o p era tive L a w th a t i f m em b ersh ip o f a m e m b e r ceases, w h a t w i l l be the

consequences. W i l l the m e m b e r leave the C o -o p e ra tiv e H o u s in g S oc ie ty

and surrender the f la t to the society o r transfer the f la t to a n e w person w h o

m a y be in d u c ted as a m e m b e r in h is p lace ? I f he does n o t do an y o f such

th ings , w h a t th e so ciety w i l l do n ex t ? A f te r d ec la ra tio n o f cessation, there

is also a q u estio n w h e th e r the society can take serv ice charges o r o ther

expenses fro m h im . I t is also a m a tte r o f co n tro versy w h e th e r the society

can fo r th w ith stop service to the m e m b e r in c lu d in g stoppage o f w ater,

e le c tr ic ity etc. T h e re fo re , it is v e ry m u ch d if f ic u lt to execu te the cessation

o f m e m b e rs h ip o f a person in a C o -o p e ra tiv e H o u s in g S o c ie ty and fo r its

execu tio n th e re is no p ro v is io n h o w the society sha ll p roceed to g iv e e ffec t

o f R u le 1 3 6 , W .B .C .S . R u les , 1987 . B esides, i f at a ll, e x e c u tio n is e ffec ted

d u rin g co n stru ctio n p e rio d , in d u ctio n o f a n e w m e m b e r in his p lace w il l

take t im e and n o rm a l w o rk rem ains suspended.

229

4 .2 .1 0 Powers and Duties of the Board of Directors of a Co-operative

Housing Society:

W e s t B e n g a l C o -o p e ra tiv e Societies R u le s , 1 9 8 7 specifies som e

p o w ers and duties o f the B o a rd o f D ire c to rs o f a C o -o p e ra tiv e H o u s in g

S o c ie ty . T h e s e are :

a ) to ap p o in t, suspend, re m o v e o r d ischarge a ll persons

engaged on p aym en t o f fees o r on the basis o f contract,

such as C ontracto rs , S o lic ito rs , S uperv isors , E ng ineers ,

V a lu e rs , A rc h ite c ts and S u rveyo r;

b ) to in v ite tenders and to en ter in to contracts fo r and on

b e h a lf o f the society and to settle the term s thereo f.

A lte ra t io n o f term s o f con tract sha ll be m ad e b y a

reso lu tio n o f the B o a rd b y the 2 /3 rd s o f the m em bers

present and v o tin g at its m ee tin g .

c ) T o a u th o rize b y n am e one o f the m em b ers o f the B o ard

o th e r th an the person in charge o f cash o r account to v e r ify

th e cash b a lance as show n in the books o f the society at

least once a m o n th and o ther assets once in a quarter and

to re p o rt to the B o a rd the resu lt o f such v e r if ic a tio n in the

n e x t fo llo w in g m eetin g . I f an y shortage o f cash balance o f

an y o th er asset is reported , the B o a rd shall ta k e p ro m p t

230

steps fo r the re co very o f the shortage fa ih n g w h ic h the

m em b ers o f the B o ard shall be jo in t ly and severa lly

responsib le fo r m a k in g good the shortage;

d ) to issue p e rio d ic a l dem an d n o tice to the m em bers fo r

p a y in g insta lm ents tow ards cost o f land , house or

ap artm en t. N u m b e r o f such in sta lm ents shall be fix e d in

con s id era tio n o f the actual progress o f the w o rk o f the

p ro jec t;

e ) to ensure th a t nam e o f a n o m in ee o f a m e m b e r is entered

in the ap propria te R eg is te r and also to in fo rm the m em b er

o f th e sam e in an ap propria te m an n er;

f ) to arrange t im e ly re p aym en t o f loans g iv e n b y the W e s t

B e n g a l S tate C o -o p e ra tiv e H o u s in g F e d e ra tio n L td . and to

take steps fo r g ran t o f lo an fro m th a t F e d e ra tio n and to

assist m em bers in ta k in g such loans;

g ) to p lace reports fo r con s id era tio n o f m em bers in the

an n u a l gen era l meeting.^'*

P re v io u s ly , a m e m b e r o f a C o -o p e ra tiv e H o u s in g S o c ie ty cou ld take

lo an fro m the H o u s in g F ed era tio n th ro u g h the concerned society. T h e

socie ty re m a in e d responsib le fo r sanction o f loans to m e m b e r and fo r

re p a y m e n t th e re o f. T h e accounts o f loans w e re in the n a m e o f concerned

231

C o -o p e ra tiv e H o u s in g S o c ie ty bu t n o t to nam es o f resp ective loanee

m em b ers . H e n c e , n o n -lo a n e e m em bers w e re also c o v e rtly responsib le fo r

re p a y m e n t o f lo an . F o r d e fa u lt o f rep aym en t o f lo an b y som e m em bers,

in sp ite o f t im e ly re p a y m e n t o f lo an to the H o u s in g F e d e ra tio n b y other

m em b ers , the soc ie ty rem ain s s till indeb ted to the fe d e ra tio n w hereas a ll

m em b ers re p a id the lo an in fu ll w ith in terest. T h is is caused due to

acco u n tin g p ro ced u re o f the F ed era tio n . N o w , the F e d e ra tio n has since

in tro d u ced sanction o f lo an to in d iv id u a l m em b ers o f a C o -o p e ra tiv e

H o u s in g S o c ie ty d ire c tly . N o t o n ly the m em bers o f a hous ing society can

get lo a n fro m th e F e d e ra tio n bu t also o ther persons w h o are n o t associated

in a n y C o -o p e ra tiv e H o u s in g S o c ie ty can get lo an as n o m in a l m em bers.

In the b y e -la w s o f a C o -o p e ra tiv e H o u s in g S o c ie ty , there are also

severa l p o w ers and duties o f the B o a rd .’ ^

4 .2 .1 1 Maintenance, repair and service charge :

A fte r c o m p le tio n o f the H o u s in g P ro je c t and possession b y the

m em bers o f a C o -o p e ra tiv e H o u s in g S o c ie ty , severa l necessaries are

req u ired and those are the fo llo w in g :

i ) S u p p ly o f w a te r.

i i ) L ig h ts on passages, co m m o n areas, s ta ir cases.

i i i ) S ecu rity , lig h t and f ire fig h tin g arrangem ents .

iv ) L if t .

232

v ) C le a ra n c e o f garbage.

v i ) A n y o th er co m m o n services.

T h e ab o ve necessaries are p e ren n ia l in n atu re and so lo n g the C o ­

o p e ra tiv e H o u s in g S o c ie ty w i l l ex is t, w ith o u t these item s it is im poss ib le to

reside there .

T h e re are som e o th er item s w h ic h requ ires to be u n d ertaken a fter a

p e rio d o f fe w years . Th ese item s are m a in ten an ce , re p a ir o r rep lacem en t o f

co m m o n areas, ex te rn a l sides, r o o f o f the b u ild in g , sta ir cases, o ffic e and

o th er c o m m o n fa c ilit ie s o f the G ro u p H o u s in g .

T h e re fo re , th e necessary item s can be d iv id e d in to tw o separate

classes, v iz . the class co m p ris in g above s ix item s w ith o th e r lik e item s, and

the class c o m p ris in g item s u n d er m ain ten an ce , re p a ir , rep lacem e n t etc. as

described supra. H e n c e , the firs t ca teg o ry o r class m a y be d e fin ed as

“ serv ice” and th e o th er as “ m ain ten an ce” . B u t in the e x is tin g C o -o p e ra tiv e

la w in w e s t B e n g a l, no such c lass ifica tio n has been p ro v id e d except the

p ro v is io n as u n d e r - “T h e cost o f m ain ten an ce , re p a ir o r rep lacem e n t o f

co m m o n areas and fa c ilit ie s shall be app o rtio n ed acco rd in g to carpet areas:

P ro v id e d th a t w h e re ap p o in tm en t o f cost acco rd in g to carpet area is

n o t cons idered eq u itab le , th e society m a y w ith th e ap p ro va l o f the

R eg is tra r, re a liz e the cost in such m an n er as it m a y consider f i t ” .^ ̂ So, it is

fo u n d th a t the la w does no t p ro v id e any c la ss ific a tio n and can n o t g iv e rise

233

to a n y concrete p ro ced u re in f ix a tio n o f charges. B es ides , the society has

been g iv e n p o w e r to f ix the rate. B u t i f the m a jo r ity n u m b e r o f m em bers

are in fa v o u r o f an un ju s t and in eq u itab le f ix a t io n o f cost and charges, the

m in o r ity n u m b e r o f m em b ers shall h ave to s u ffe r b u t to bear it unless the

laters f i le d ispu te case and succeed.

In a C o -o p e ra tiv e H o u s in g S o c ie ty in the S a lt L a k e C ity area, a

m e m b e r w as e m p lo y e d e lsew here out o f the S tate o f W e s t B e n g a l and his

fa m ily m em b ers w e re res id in g in the society . O n ce , the B o a rd o f that

soc ie ty d ec id ed th a t a ll m em bers m ust get co n n ectio n o f cab le T .V . B u t

th a t p a rticu la rs m e m b e r d id no t agree to get the con n ectio n on the m ain

cause th a t h is c h ild re n w e re s tudy ing in lo w e r classes. B u t the society

co n tin u ed pressing u p o n h im and m em bers o f h is fa m ily . F in a lly , the

p o s itio n b ecam e so b itte r that the society d irec ted its em p lo yees not to

d e liv e r le tters , m ilk and essential services to the fa m ily . T h e m e m b e r sent

fro m h is p lace o f w o rk an a p p lica tio n to the R e g is tra r o f the p roper

ju r is d ic tio n i.e . D e p u ty R eg is tra r o f C o -o p e ra tiv e S ocieties (H o u s in g ),

C a lc u tta M e tro p o lita n A re a fo r saving his fa m ily fro m such oppression.

T h e D e p u ty R e g is tra r to o k up the m atte r and heard both the S o c ie ty ’ s

B o a rd and the m e m b e r and d irected no t to in f lic t the d ec is io n o f the B o ard

fo r C a b le T .V . con n ectio n upo n the u n w illin g m em b ers in c lu d in g this

a p p lic a n t m e m b e r. T h e B o a rd o f the S o c ie ty b e in g ag g rieved w ith the

d ire c tio n o f the D e p u ty R eg is tra r w e n t to the H ig h C o u rt, K o lk a ta bu t the

234

H o n ’b le H ig h C o u rt u p h e ld the decis ion o f the D e p u ty R eg is tra r. T hus , it is

fe lt th a t th e re shou ld be spec ific p ro v is io n in the la w in respect o f item s o f

services and its charges.

T h e p ro v is io n con ta ined in R u le 1 5 2 (2 ) is inadequate fo r the

purpose o f d e te rm in in g service charges and o ther re p a ir in g , m ain tenance or

rep lacem en t. T h ese tw o heads have been m in g le d and it is v e ry d if f ic u lt to

iso late one fro m th e o ther. A u th o ritie s lik e W e s t B e n g a l H o u s in g B o ard

constructs b u ild in g c o n ta in in g fla ts o f heterogeneous areas. T h ese flats are

c a lled fla ts fo r L o w In c o m e G ro u p ( L IG ) , M e d iu m In c o m e G ro u p ( M IG )

and H ig h e r In c o m e G ro u p ( H IG ) . B u t in a H o u s in g P ro je c t un d ertaken by

the H o u s in g B o a rd , severa l types o f fla ts are b u ilt and fo r the w h o le p ro ject

co m p ris in g o f such heterogeneous types o f fla ts , o n ly one C o -o p e ra tiv e

S o c ie ty is fo rm e d . T h is is done fo r the cause th a t fo r a ll the b u ild in g s , a

s ing le in fras tru c tu re o f co m m o n fa c ilitie s is a v a ila b le acco rd in g to the p lan

o f the p ro je c t. S e rv ice charge and m ain ten an ce , re p a ir in g , rep lacem en t and

o th er charges are in m ost o f the societies ap p o rtio n ed acco rd in g to carpet

area. A s a resu lt, the m em b ers w h o fo rm m a jo r ity in n u m b er, o f a sm aller

size o f fla ts b eco m e m o re b en e fited w h en others w ith fla ts o f b ig g er size

fee l looser and th e y ag ita te against ap p o rtio n m en t o f serv ice charges

acco rd in g to carp e t area. A s a resu lt, th e m em b ers w h o fo rm m a jo r ity in

n u m b e r o f a s m a lle r s ize o f fla ts becom e m o re b e n e fite d w h e n others w ith

fla ts o f b ig g e r fe e l looser and th e y ag ita te against ap p o rtio n m en t o f service

235

charges acco rd in g to carpet area. Such a m a tte r cam e to the D e p u ty

R e g is tra r o f C o -o p e ra tiv e societies (H o u s in g ), K o lk a ta M e tro p o H ta n A re a

F ro m som e m em b ers possessing fla ts o f b ig g e r s ize b u t constitu ting

m in o r ity in the society . T h e B o a rd o f D ire c to rs in A G e n e ra l M e e tin g

passed th e d e c is io n f ix in g service charges on the basis o f carpet area. A s a

m a jo r ity o f to ta l m em b ers w e re the ow ners o f fla ts o f s m a lle r size, the

a rg u m en t o f th e rest m em bers o w n in g flats o f b ig g e r size d id not stand.

T h e ir a rg u m en t w as th a t serv ice charge and the re p a ir , rep lacem e n t o f

m ain ten an ce o f b u ild in g s charges should n o t be m in g le d . T h ese tw o item s

are to be c la s s ifie d and the service charge should be e q u a lly d iv id e d am ong

a ll m em b ers irresp ec tiv e o f the area o f fla ts th e y h o ld . O n the o ther hand,

charges on re p a ir , rep lacem e n t o r p a in tin g etc. m a y be ap p o rtio n ed on the

basis o f carpet area. D e c is io n though m ad e b y m a jo r ity m em bers is not

supported b y cogen t reasons. T h e m a tte r w as taken up b y the D e p u ty

R e g is tra r w h o g ave h is decis ion . H e observed th a t in a f la t o f b ig g er size,

co n su m p tio n o f w a te r, le a v in g w astes etc. m a y n o t be h ig h e r in a ll cases

th an those in a f la t o f sm a lle r size. I t m a y h appen th a t m o re persons liv e in

a s m a lle r f la t th a n in a b ig g e r fla t. I t m a y also s im ila r ly p resum ed that

co n su m p tio n o f w a te r is h ig h e r in a s m a lle r f la t th an in a b ig g e r fla t in

som e cases. C o n s u m p tio n o f w a te r does no t depend u p o n the n u m b er o f

ou t-le ts a f f ix e d in a fla t. B esides, the security arrangem ents , lig h tin g in

c o m m o n passage, e le c tr ic ity expenses fo r l i f t etc. are in the sam e m an n er

236

no t depended u p o n the area o f the fla t. B u t, on the o th er hand , the D e p u ty

R e g is tra r o bserved , re p a ir in g w o rks , rep lacem e n t, p a in tin g w h ic h are

class ified as m a in ten an ce charge req u ire expenses on the basis o f area o f

the fla ts . I t shou ld n o t be equal. H e n c e , the dec id ed to separate it in to tw o

categories. H e o rd ered fo r c lass ific a tio n o f these tw o th ings in to “ service

charge” and “ m a in ten an ce charge” re sp ec tive ly . H e o rdered the service

charge to be d iv id e d e q u a lly am ong a ll m em b ers irresp ec tiv e o f the area o f

fla ts th e y o ccu p y and the m ain ten an ce charge to be ap p o rtio n ed accord ing

to carpet area o f each fla t. In h is o rder dated 2 3 .7 .9 8 since rev ised on

1 0 .9 .9 8 , th e D e p u ty R e g is tra r le ft the m a tte r o f f ix in g serv ice charge and

o th er cost in te rm s o f R u le 1 5 2 (2 ) read w ith its p ro v iso .

T h e soc ie ty in a S p ec ia l G e n e ra l M e e t in g h e ld on 1 5 .3 .9 8 reso lved

to f ix a d d itio n a l serv ice charge o f R s .4 5 /- at f la t ra te b u t d id n o t sp ec ify the

s p littin g the a m o u n t in to service charge and m a in ten an ce charge.

U lt im a te ly the m a tte r w e n t fo r a rb itra tio n in the fo rm o f d ispute case at the

o ffic e o f th e R e g is tra r. T h e A rb itra to r a w ard ed in the lin e o f the o rd er o f

the D e p u ty R e g is tra r and th e rea fte r the m a tte r w e n t to the W e s t B e n g a l C o ­

o p era tive T ribunal.^^

T h e W e s t B e n g a l C o -o p e ra tiv e T r ib u n a l in th is case ordered the

f o l lo w in g :

237

1) M a in te n a n c e charge can be le v ie d in the m ode as

suggested b y the D e p u ty R e g is tra r o f C o -o p e ra tiv e

S ocieties in term s o f his c o m m u n ica tio n s / orders dated

2 3 .7 .9 8 and 1 0 .9 .1 9 9 8 .

2 ) M a in te n a n c e charges and serv ice charge shall no t be

c lu b b ed together.

3 ) Im p o s it io n o f serv ice charge shall n o t be in re la tio n to the

item s o r m atters fo r w h ic h m a in ten an ce charge has been

le v ie d as p e r the o rd er o f th e D e p u ty R e g is tra r o f C o ­

o p e ra tiv e Societies.

4 ) S e rv ic e charge is d is tin c t fro m th e charges o f m ain tenance

o f c o m m o n areas and fa c ilit ie s .

5 ) T h e R espondent S o c ie ty shall c le a r ly sp ec ify as to in

respect o f w h a t item s o r m atters serv ice charge is so

le v ie d .

6 ) W h ile assessing service charge the society shall c le a rly

ta k e a decis ion as to on w h a t basis, w h e th e r u n ifo rm or

a cco rd in g to carpet area such serv ice charge is lev ied .

7 ) T h e respondent society shall issue a fresh c irc u la r in term s

o f the reso lu tio n to be adopted , c le a r ly sp ec ify in g in

d eta ils the item s o r m atters and the m a n n e r and the rate o f

238

im p o s itio n o f m ain tenance charge and service charge

separate ly .

F ro m th e above ju d g e m e n t o f the W e s t B e n g a l C o -o p e ra tiv e

T r ib u n a l co m p rised o f tw o ju d g es , R u le 1 5 2 (2 ) m a y be in terpreted as

m ain ten an ce charge o f the co m m o n areas and fa c ilit ie s b u t no t the service

charge. T h e serv ice charge shall be le v ie d as p e r clause 8 (c ) o f the B y e -

law s. T h ese tw o th in g s are to be segregated. T h o u g h th ere is a clause in the

b y e -la w s o f a C o -o p e ra tiv e H o u s in g S o c ie ty fo r serv ice charge, the A c t

and th e R u les are s ilen t in th is respect. C o m p re h e n s iv e p ro v is io n should be

e m b o d ie d in the la w . In the clause o f the b y e -la w s , the item s o f service

charge are n o t also m en tio n ed .

4 .2 .1 2 Transfer of ownership of house or flat by a member :

A fte r g e ttin g a llo tm e n t in a C o -o p e ra tiv e S o c ie ty o f a p lo t o f land or

a f la t o r an ap artm en t, a m e m b e r m a y have necessity to tran s fe r it on som e

contingencies . H e m a y face d if f ic u lty in re s id in g in h is house o r fla t o r

ap artm en t o r on th e p lo t o f lan d a llo tted to h im . H e m a y f in d a fte rw ard s the

lan d n o t su itab le fo r construction o f b u ild in g th ereo n o r face fin a n c ia l

d iffic u ltie s . H e m a y also f in d necessity to d ispose th is p ro p e rty fo r

m a rria g e o f h is daughter, h ig h education o f h is w ard s o r p ro lo n g ed

trea tm en t o f a m e m b e r o f his fa m ily . Such tran s fe r can be done w ith p roper

consent o f the concerned C o -o p e ra tiv e H o u s in g S o c ie ty and in the even t o f

239

fa ilu re o f th e soc ie ty to g iv e consent an appeal shall lie to th e R eg is tra r o f

the p ro p e r ju r is d ic tio n . T h e re are sp ecific p ro v is io n s in the ex is tin g co­

o p era tive la w o f th e S tate o f W e s t B e n g a l. A m e m b e r o f a C o -o p e ra tiv e

H o u s in g S o c ie ty in w h o se fa v o u r a p lo t o f lan d o r a house o r an apartm ent

in a b u ild in g has been a llo tte d m a y tran sfer such p lo t o r house or

apartm en t, as the case m a y be, w ith the w r itte n consent o f the C o -o p e ra tiv e

H o u s in g S o c ie ty , u n d e r such term s and co nd itions and in such m an n er as

m a y be p rescrib ed to a n y o th er person e lig ib le to be a m e m b e r o f a C o ­

o p era tive H o u s in g S o c i e t y I f the C o -o p e ra tiv e H o u s in g S o c ie ty refuses

to g iv e its consent to such transfer, it shall reco rd the reasons fo r such

re fu sa l in v ^ it in g and co m m u n ica te the sam e to the m e m b e r w ith in one

m o n th fro m th e date o f rece ip t o f h is a p p lic a tio n in th is reg ard and the

m e m b e r sha ll h ave a r ig h t o f appeal to the R e g is tra r w ith in such p erio d as

m a y be p rescrib ed . T o co m p le te th is p ro v is io n , the W e s t B e n g a l C o ­

o p e ra tiv e S o c ie ty R u les , 1 9 8 7 has p ro v id e d R u le 142 in th is respect.

So, tra n s fe r o f the p ro p erty o w n ed b y a m e m b e r in a C o -o p e ra tiv e

H o u s in g S o c ie ty is to som e exten t restric ted th an th a t in respect o f o ther

p ro p erty w h ic h can be tran sferred w ith o u t an y in te rfe ren ce b y any

au th o rity . In a g ro u p housing , severa l cond itions are im p o sed such as in

a c q u irin g m e m b e rs h ip th ere is a ro le o f the au th o rity o f the group housing

in cases o f tran s fer. M o re o v e r , the proposed tran s fe r should be q u a lifie d

u n d er R u le 135 o f th e W e s t B e n g a l C o -o p e ra tiv e S ocieties R u les , 1987 . In

240

the R u le , 135 , q u a lif ic a tio n o f b e in g a m e m b e r o f a C o -o p e ra tiv e H o u s in g

S o c ie ty is p rescrib ed apart fro m the re le v a n t s tip u la tio n as sp ecified in

S ectio n 6 9 . A c c o rd in g to S ectio n 6 9 , e lig ib il ity o f an in d iv id u a l fo r b e ing a

m e m b e r is to be co m p eten t to contract u n d er S ectio n 11 o f the In d ia n

C o n tra c t A c t , 1 8 7 2 (9 o f 1 8 7 2 ).

A c c o rd in g to R u le 1 3 5 (3 ) it is stated th a t fo r the tran s fer o f lan d or

house o r a p artm en t a m e m b e r shall o b ta in a w r it te n consent o f the society

and b e fo re g iv in g such consent the society shall satis fy its e lf that the

tran s fe r is gen u in e .

F ro m th e p ro v is io n o f R u le 1 3 5 (3 ) it is fo u n d th a t th e society shall

satis fy its e lf fo u r co nd itions . I t is n o t c lear w h e th e r the B o a rd o f D irec to rs

o f the soc ie ty o r th e gen era l b o d y o f the so ciety sha ll sa tis fy its e lf o f those

item s. O th e r item s in clauses ( i ) , ( i i i ) and ( iv ) are v e ry sp ec ific bu t the

clauses ( i i ) is v e ry m u c h elastic . I t opens arb itrariness , caprices on the part

o f the soc ie ty . T h e re is no in d ex h o w the so c ie ty shall decide the

genuineness o f th e proposed tran s fe ree ’ s need fo r res iden tia l

acco m m o d atio n .

R u le 1 4 2 (2 ) W .B .C .S . R u les , 1 9 8 7 em p o w ers a C o -o p e ra tiv e

H o u s in g S o c ie ty , th o u g h n o t in d ica ted in the A c t , to ra ise such fee o r

d o n atio n as m a y be spec ified b y the State G o v e rn m e n t fro m tim e to tim e

b y N o t if ic a t io n fo r accord ing consent fo r transfer b y a m e m b e r o f h is land,

241

house o r a p artm en t to another person h a v in g e lig ib il ity to becom e a

m e m b e r o f the society .

F ro m th is s u b -R u le (2 ) , it is obvious th a t the society m a y raise

d o n atio n o r fee w h ile acco rd in g consent fo r an y tran s fe r o f lan d o r house or

ap artm en t. B u t it w as stayed u n til and unless the S tate G o v e rn m e n t issued

N o t if ic a t io n s p e c ify in g q u an tu m o f such fee o r d o n atio n . O n 23*^̂ June

2 0 0 3 th e S tate G o v e rn m e n t in exercise o f the p o w ers co n ferred u n d er Sub-

R u le (2 ) o f R u le 142 o f the W e s t B e n g a l C o -o p e ra tiv e Societies R u les ,

1 9 8 7 , a llo w e d the C o -o p e ra tiv e H o u s in g Societies to ra ise fee o r donation

fo r acco rd in g consent fo r tran sfer b y a m e m b e r o f h is land , house or

ap artm en t to an o th er person h a v in g e lig ib il ity to b eco m e a m e m b e r o f the

society @ 0 .5 % o f the sale v a lu e o f the concerned f la t / ap a rtm en t / house /

p lo t o f la n d etc. in the said H o u s in g Society.^®

D u r in g the p e rio d u p to p u b lic a tio n o f th is N o t if ic a t io n on 23'̂ '̂ June

2 0 0 3 , C o -o p e ra tiv e H o u s in g Societies w e re ra is in g such fee o r d o nation at

the tim e o f tra n s fe r u n o ff ic ia lly . Societies w e re ra is in g am o u n t as donation

acco rd in g to th e clause no . 18 o f th e ir b y e -la w s . In the B y e -la w s , the

clauses 2 9 -3 2 p ro v id e the m a tte r o f tran sfer o f share o r in terest.

P rev io u s sanction o f the R e g is tra r is necessary u n d e r R u le 1 4 2 (1 ) o f

W e s t B e n g a l C o -o p e ra tiv e Societies R u les , 1 9 8 7 . T h is has been discussed

supra. T h e W e s t B e n g a l C o -o p e ra tiv e Societies A c t , 1983 n o w h ere

242

necessitates a p p ro v a l o f the R e g is tra r save and excep t the p ro v is io n

co nta ined in S ectio n 8 5 (9 ) o f the A c t. B y th is S u b -S ec tio n , i f the C o ­

o p e ra tiv e ho u sin g soc ie ty refuses to g iv e its consent to such transfer, it

shall reco rd th e reasons fo r such re fu sa l in w r it in g and co m m u n ica te the

sam e to the m e m b e r w ith in one m o n th fro m the date o f rece ip t o f the

a p p lic a tio n in th is reg ard and the m e m b e r shall h ave a r ig h t to appeal to the

R e g is tra r w ith in such p e rio d as m a y be p rescribed . T h e re fo re , i t is seen that

the R e g is tra r is th e A p p e lla te A u th o r ity . B u t R u le 1 4 2 (2 ) o f the R ules

em p o w ers R e g is tra r to approve in it ia l p roposa l o f tran s fe r w h e n the C o ­

o p e ra tiv e H o u s in g S o c ie ty g ives consent and sends it to th e R eg is tra r fo r

a p p ro va l. B u t w h e n the society refuses o r there is in a c tio n on its part, the

ag g rieved m e m b e r has r ig h t to appeal b e fo re the R e g is tra r. T h is du a l ro le

o f th e R e g is tra r in such tran sfer cases causes a n o m a ly in the legal

p ro v is io n . So, S ec tio n 8 5 (9 ) o f the en ab lin g A c t and the R u le s there under

in R u le 142 shou ld be in h arm o n y w ith each p ro v is io n to the other. T h e

A c t does n o t spe ll o u t the o rig in a l p o w e r o f the R e g is tra r to approve the

proposal consented b y the co -o p e ra tiv e housing soc ie ty . E ith e r this should

be inserted in the A c t o r the p ro v is io n o f the R u le 142 shou ld be w ip e d out.

R e c e n tly , th ere w as a m o v e to w ith d ra w the p ro v is io n in the R u le 1 4 2 (1 ),

so th a t th ere rem ain s no necessity o f o b ta in in g a p p ro v a l o f the R eg is trar,

b u t the S tate G o v e n im e n t v e ry k e e n ly observed th a t i f the con tro l and

p o w e r o f R e g is tra r is abo lished, a C o -o p e ra tiv e H o u s in g S ociety 's B o a rd o f

243

D ire c to rs shall get h an d le to e x p lo it bo th the tran s fe ro r and the transferee.

In c ity o r to w n area o r in the area o f S a lt L a k e C ity , around such transfer in

the fo rm o f sale o f fla ts , lan d etc. u n h o ly a llian ces o f som e persons have

been exp erien ced . T o arrest such ille g a l ac tiv itie s , som e co n tro l o f the

R e g is tra r should ex ist. H o w e v e r , the present system o f d isposal o f appeal

o f an ag g rie v e d proposed tran s fero r should also be strengthened.

F o r instance, w h e n on an appeal, th o u g h the R e g is tra r has approved

th e tran s fe r o f such p ro p erty , the C o -o p e ra tiv e H o u s in g does not

im p le m e n t, th e re is no strict p ro v is io n fo r ta k in g steps against the B o ard o f

the so c ie ty n o t o b e y in g the decis ion o f the R eg is tra r. T h e re is o n ly a

p ro v is io n fo r d isso lu tio n o f the B o ard .** T h e process o f d isso lv in g a B oard

to be ta k e n b y the R e g is tra r is tim e co nsum ing . B esides, actions o f the

R e g is tra r is ap p ea lab le to the W e s t B e n g a l C o -o p e ra tiv e T rib u n a l

estab ilished u n d er S ec tio n 135 read w ith R u le 2 2 7 o f the R u les . O rd in a r ily

in the T r ib u n a l, t im e o f d isposal o f appea l m ad e b y the B o a rd o f the

society o r m a d e b y a n y m e m b e r o f a society is re q u ire d cons iderab ly . F ro m

disposal o f such appea l cases, it is observed th a t a lm o s t tw o years tim e is

req u ired . E v e n , th e m a tte r can go to the H ig h C o u rt also. T h u s , the

necessity o f a tran s fe r becom es frustrated . T h e re fo re , th e re should be a

sp ec ific p ro v is io n o f a p en a l m easure fo r co n traven tio n o f the ap p ro va l o f

the R e g is tra r fo r tran s fe r o f the fla t, land , b u ild in g etc. O n the o ther hand

w h e n the R e g is tra r re jects the appeal o f the a g g rieved m e m b e r, he m a y

244

p re fe r an ap p ea l to the W e s t B e n g a l G o -o p e ra tiv e T r ib u n a l. T h e app lican t

w h o se ap p ea l has been re jec ted b y the R e g is tra r in respect o f tran s fer o f his

p ro p e rty in the soc ie ty m a y appeal to the T r ib u n a l tw o m onths fro m the

date o f o rd er o r fro m the date on w h ic h the a p p lic a n t gets k n o w le d g e o f the

order. H e re , the a p p lic a n t can o n ly p re fe r an appeal to th e T r ib u n a l against

the o rd er o f the R e g is tra r. In som e cases w h e n the C o -o p e ra tiv e H o u s in g

S o c ie ty re fu sed to g iv e consent to the tran s fer p roposa l and an appeal is

p re fe rre d to the R e g is tra r w h o up o n d isposal o f the appea l approves the

proposed tran s fe r, the so ciety m a y be ag g rieved . B u t the appeal to the

T r ib u n a l can o n ly be p re fe rred b y the proposed tran s fero r. H e n c e , there

should re m a in a p ro v is io n fo r an appeal to be m ad e b y th e C o -o p e ra tiv e

H o u s in g S o c ie ty w h ic h is a g g rieved b y the o rd er o f th e R eg is tra r.

H o w e v e r , i f th ere exists any c o n flic t b e tw e e n the proposed

tran s fe ro r and the co -o p e ra tiv e society , the m a tte r rem ain s unso lved fo r

years to g e th er. I t m a y go upto the h ighest ju d ic ia l a u th o rity o f the country

i.e . the S u p rem e C o u rt. T o av o id such s itu a tio n the proposed transfero r and

the transferee o rd in a r ily surrender them selves to the C o -o p e ra tiv e H o u s in g

S o c ie ty ’ s o ffic e -b e a re rs th ro u g h an underhand dea l o f m o n e y w ith the

o ffice -b eare rs . O n th e o ther hand, i f the society has no ro le to say, any

m e m b e r can tran s fe r h is p ro p e rty to anyone w h o m a y h ave no q u a lific a tio n

o f b e in g a m e m b e r o f the society and the o u tg o in g m e m b e r can go out

w ith o u t p a y in g a n y service charge and m a in ten an ce charge p ayab le to the

245

society . So, th ere should be a ro le o f the society in the process o f an y k in d

o f tran sfer. In v ie w o f such a co m p lica ted s ituation , su itab le p ro v is io n is to

be em b o d ie d in th e A c t o r in the R u les so th a t irre g u la ritie s , undue earn ing

o f m o n e y b y som e persons and frau d u len t p rac tice o f a fe w persons m a y be

arrested to a g reat ex ten t.

A n y tran s fe r o f f la t, ap artm en t o r lan d o r b u ild in g is n o w

c o m p u ls o rily re q u ire d to be reg istered u n d er R e g is tra tio n A c t, 1908 .

A c c o rd in g to the p ro v is io n “A n y a llo tm e n t ( in c lu d in g re -a llo tm e n t) o f a

p lo t o f la n d o r a house o r an apartm ent in a b u ild in g m ad e b y a C o ­

o p era tive H o u s in g S o c ie ty to its m e m b e r in accordance w ith its b y -la w s

shall e n tit le such m e m b e r to h o ld such p lo t o f lan d , house o r apartm ent, as

the case m a y be, w ith such t it le o r in terest as m a y be g ran ted under the

p rescribed co n d itio n s , and , subject to the p ro v is io n o f S u b -S ec tio n (2 ) o f

S ectio n 6 0 an in s tru m en t o f transfer in accordance w ith the p ro v is io n o f the

T ra n s fe r o f P ro p e rty A c t , 1882 (4 o f 1 8 8 2 ) and th e R e g is tra tio n A c t, 1908

(1 6 o f 1 9 0 8 ) sha ll be co n c lu s ive ev idence o f such t it le o r in terest in favo u r

o f such m e m b e r” .̂ ^

F ro m th e ab o ve p ro v is io n o f S ectio n 8 7 (1 ) it is obvious that a

tran s fe r o f p lo t o f lan d , ap artm en t o r b u ild in g is a re -a llo tm e n t to another

person w h o m a y b e te rm ed as a transferee in such tran s fe r case. H e n c e fo r

re -a llo tm e n t, re g is tra tio n o f an ins trum ent o f tran s fe r in accordance w ith

the R e g is tra tio n A c t , 1908 is co m p u lso ry and the reg is tered instrum ent

246

shall b e th e c o n c lu s ive ev id en ce o f the t it le o r in terest in fa v o u r o f the

transferee . P re v io u s ly upto D e c e m b e r, 19 9 5 , such reg is tra tio n o f transfer

in s tru m en t w as n o t co m p u lso ry b e fo re its amendment.^'^

So, it is fo u n d th a t b e fo re the above stated am en d m en t o f the

p ro v is io n o f S ec tio n 8 7 (1 ) o f the W e s t B e n g a l A c t , 1 9 8 3 , reg is tra tio n o f an

in s tru m en t o f th e tran s fer w as n o t co m p u lso ry . T h e p ro v is io n o f the

R e g is tra tio n A c t , 1 9 0 8 w as re la x e d b y the specia l p ro v is io n em b o d ied in

the S ectio n its e lf. A s a resu lt, the W e s t B e n g a l S tate G o v e rn m e n t was

lo o s in g re g is tra tio n fee and stam p d u ty ou t o f the huge tran s fe r o f p lo ts o f

lan d , apartm ents and houses in C o -o p e ra tiv e H o u s in g Societies . B esides,

the docum ents w h ic h w e re in the hands o f m em b ers b e fo re D ecem b er,

1995 w e re in s u ffic ie n t fo r the p ro p erty i.e . f la t o r a p artm en t o r p lo t o f land

o r the house to m a k e th e m m arke tab le .

F u rth e r, a m e m b e r o f the co -o p e ra tiv e ho u sin g so ciety m a y not

tran s fe r h is p ro p e rty o r in terest to a n e w person b u t m a y surrender his

p ro p e rty to the C o -o p e ra tiv e H o u s in g S o c ie ty . T h e housing society m ay

rece ive th e p ro p e rty and dispose it b y re -a llo tm e n t to a n e w person la te r on.

In th is case, th e soc ie ty w h ile ta k in g the p ro p e rty sha ll h ave to p ay b ack to

the o u tg o in g m e m b e r, the m o n e y w h ic h he h ad a lre a d y deposited to the

society . B u t question arises h o w a society can p ay b ack the m o n ey w h en

m ost o f such societies do n o t possess any cons iderab le fu n d . In th is respect

247

there is a p ro v is io n fo r d isposal o f sliare o r in terest o f m e m b e r on

e x p u ls io n o r res ig n a tio n o r on b eco m in g insane.

W h e n a m e m b e r o f a co -o p era tive so ciety is e x p e lle d o r resigns

acco rd in g to the ru les o r the b y e -la w s o f the co -o p e ra tiv e society o r

becom es insane, h is share o r in terest, in the c ap ita l o f the co -o p erative

society sha ll b e tran s ferred to a person q u a lif ie d to be a transferee o f such

share o r in terest u n d er S ection 78 and the v a lu e th e re o f shall be pa id to the

m e m b e r or, in th e case o f b eco m in g insane, to such person as m a y be

a p p o in ted to m an ag e h is p roperties under the M e n ta l H e a lth A c t , 1 9 8 7 (3 5

o f 1 9 8 7 ), w ith in tw o years fro m the date on w h ic h the m e m b e r is exp e lled

acor resigns o r the p erson as a fo resa id is appo in ted , as th e case m a y be.

T h e re fo re , th e ab o ve p ro v is io n is the p ro ced u re as to h o w share or

in terest o f a m e m b e r in th ree contingencies (e x p e lle d , res igned and insane)

shall be d isposed. In the present con text w h e n a m e m b e r resigns, he is to

surrender h is lan d o r f la t o r house to the society w h ic h a fterw ard s can

dispose it to a n e w person. T h e v a lu e b y w h ic h the n e w person shall

acqu ire the p ro p e rty shall be p a id to the o u tg o in g m e m b e r. B y above

process, th e res igned m em b ers share m a y be transferred . A lte rn a tiv e ly , the

res ig n in g m e m b e r m a y com e to a contract w ith a n e w person w h o is

e lig ib le to b eco m e a m e m b e r o f a co -o p e ra tiv e so ciety fo r tran sfer o f his

share o r in terest to the la ter. B u t in the firs t process w h e n the res ign ing

m e m b e r surrenders h is p ro p e rty to the society , u n til and unless the society

248

is in a p o s itio n to re -a llo t the share or in terest to a n e w person, the va lu e o f

the share o r in terest can no t be p a id to h im .

4 .2 .1 3 Letting out of House or Apartment:

A s has b een discussed in th is chapter u n d er the h ead in g transfer o f

o w n ersh ip o f house o r f la t o f a m em b er, the m a tte r o f le ttin g ou t o f a p lo t

o f lan d o r a house o r an apartm ent has also been discussed in R u le 142,

W e s t B e n g a l C o -o p e ra tiv e Societies R u les 19 8 7 . In its S u b -R u le (1 ) it is

stated th a t in a ll cases o f tran sfer and le ttin g o u t o f lan d , house o r

ap artm en t p r io r p e rm is s io n o f the R e g is tra r shall be o b ta in ed in a d d itio n to

w ritte n consent o f the society.

In th e A c t , it is p ro v id e d that no m e m b e r o f a co -o p e ra tiv e housing

society , w h o has been a llo tte d a p lo t o f lan d o r a house o r an ap artm en t in a

b u ild in g , shall le t o u t such p lo t o f land o r house o r ap artm en t, as the case

m a y be, and re c e iv e an y com pensation or in c o m e in respect to the p lo t o f

lan d o r house o r ap artm en t w ith o u t the w r itte n consent o f the C o -o p e ra tiv e

H o u s in g S o c ie ty o n an ap p lica tio n m ade in th is b e h a lf. T h e C o -o p e ra tiv e

H o u s in g S o c ie ty m a y g iv e its consent o r re fuse such consent fo r reason to

be reco rd ed in w r it in g and co m m u n ica te its dec is io n to the m e m b e r w ith in

one m o n th fro m th e date o f rece ip t o f th is ap p lica tio n .

249

I f the C o -o p e ra tiv e H o u s in g S o c ie ty fa ils to take dec is ion on the

a p p lic a tio n w ith in one m o n th o f the date o f its re c e ip t o r refuses such

consent, th e m em b ers shall have a r ig h t o f appeal to the R e g is tra r” .̂ ^

In th e ab o ve p ro v is io n , le ttin g ou t o f a p lo t o f lan d has been

in c lu d ed w ith house o r apartm ent, b u t a p lo t o f lan d can no t be le t out. I t

can be tra n s fe rre d in the fo rm o f sale, m o rtg ag e , lease, exchange, or g ift.

F ro m th e p ro v is io n o f a te n a n t’ s d e f i n i t i o n , i t is fo u n d that, any

p rem ises m a y be le t o u t fo r tw o purposes i.e . fo r res id en tia l purposes and

fo r n o n -re s id e n tia l purpose. B esides, the d e fin it io n o f “ p rem ises” has also

been p ro v id e d in th e W e s t B e n g a l Prem ises T e n a n c y A c t , 1997 . “Prem ises

m eans a n y b u ild in g o r an y hu t o r p art o f a hu t le t separate ly , and includes

( i ) T h e gardens, grounds and out-houses, i f an y a p p erta in in g thereto ; and

( i i ) an y fu rn itu re sup p lied b y the lan d lo rd , o r an y f it t in g o r fix e rs a ffix e d ,

fo r the use o f the ten an t in such b u ild in g o r part o f a b u ild in g or hu t o r part

o f a h u t b u t d o esn ’t in c lu d e a ro o m in a hostel o r a lo d g in g house .” ^̂

T h e re fo re le ttin g out m a y be e ith er fo r re s id e n tia l purpose o r fo r

n o n -re s id e n tia l purpose. B u t, in the co -o p e ra tiv e la w , th o u g h in specific

term s n o n -re s id e n tia l purpose is no t p ro h ib ited , an in d iv id u a l w h o is also a

p erm an en t res id en t o f W e s t B e n g a l o r w h o in tends to reside in W e s t

B e n g a l p e rm a n e n tly is e lig ib le to be a m e m b e r o f a C o -o p e ra tiv e H o u s in g

S o c i e t y . B y R u le 1 3 5 (a ) fo r the transfer o f lan d o r house o r apartm ent a

250

m e m b e r sha ll o b ta in a w r itte n consent o f the so ciety and b e fo re g iv in g

such consent th e so ciety shall satisfy its e lf th a t the transferee has genuine

need fo r re s id e n tia l acco m m o d atio n . H e n c e those p rov is ions o f co ­

o p era tive la w em p h as ize m a in ly on the res id en tia l purpose fo r acqu iring

p lo t o f la n d o r ap artm en t o r house in a C o -o p e ra tiv e H o u s in g Society . T h e

la w p ro v id es som e sp ec ific grounds fo r tran s fer b u t does no t g ive rise to

an y c o n d itio n o r p ro ced u re o f le ttin g ou t o f such ap artm en t o r house to a

n o n -m e m b e r. T h e R e g is te rin g O ffic e s o f the C o -o p e ra tio n D ire c to ra te o f

the G o v e rn m e n t o f W e s t B e n g a l o rd in a r ily w an ts fo llo w in g p a r t ic u la rs :

i ) P ro o f o f m em b ersh ip o f the person d es irin g to le t out his

a p artm en t o r house.

i i ) R easons fo r w h ic h the m e m b e r is c o m p e lle d to leave the

prem ises w ith req u is ite docum ents.

i i i ) A g re e m e n t b e tw een the m e m b e r and the in ten d in g person

w h o w i l l be tenant.

iv ) C re d e n tia l o f the proposed tenant.

2 5 1

v ) C o n sen t o f the C o -o p e ra tiv e H o u s in g S o c ie ty

In m a n y cases, the proposed tenant is chosen fro m a reputed

C o m p a n y o r B a n k o r G o v e rn m e n t u n d ertak in g o r s ta tu tory C o m p a n y . T h e

cause is th a t the p re m iu m o f ren t o r com pensation is m u c h h ig h e r than that

w h ic h can b e re c e iv e d fro m an in d iv id u a l person. In such cases, the

m e m b e r enters in to an agreem ent w ith the o ffic e o f such co m p an y o r B a n k

o r u n d e rta k in g and the o ff ic e reserves its r ig h t to a llo w one o f its

em p lo yees to res id e in the f la t and w h e n the firs t e m p lo y e e goes aw ay

e ith e r o n tran s fe r o r on superannuation , the o ff ic e ag a in sends another

e m p lo y e e in th a t fla t. S om etim es, the C o m p a n y o r the B a n k or the

u n d e rta k in g runs a w in g o f th e ir estab lishm ent instead o f sending an

e m p lo y e e to res id e thereat. S om etim es, c o m m e rc ia l ac tiv ities are

p e rfo rm e d fro m th a t ap artm en t o r house. S uch p erfo rm a n c e and presence

o f outsiders create a p ro b le m in the society . I t causes annoyance to o ther

residents in the society and ham pers peace and tra n q u ility . I t causes fear o f

in secu rity also. I f the society g iv in g consent fo r le ttin g out, finds later on

an u n b earab le s itu a tio n out o f the tenancy , the so ciety tries to w ith d ra w its

consent b u t the ten an t does n o t obey. T h e society th en pressurize on the

m e m b e r ( la n d lo rd ) to e v ic t the tenant. T h u s , in m ost o f the cases litig a tio n

starts and continues fo r years. S o c ie ty is m ad e a p a rty to the suit and it has

to in c u r ex p e n d itu re fo r such litig a tio n .

In som e o f le ttin g out cases, the C o -o p e ra tiv e H o u s in g S oc ie ty

charges d o u b le the a m o u n t o f serv ice charge w h ic h a m e m b e r is to pay . N o

reasonab le g ro u n d fo r le v y in g such increased am o u n t o f serv ice charge has

b een fo u n d . A s discussed supra, ap p ro va l o f the R e g is tra r o f C o -o p e ra tiv e

S ocieties is co m p u lso ry in case o f le ttin g out u nder R u le 142 , W e s t B en g a l

C o -o p e ra tiv e S ocieties R u les , 1987 also. B u t in m a n y cases, a m em b er

2 5 2

does n o t ta k e consent o f the H o u s in g S o c ie ty and a p p ro v a l o f the R eg istrar.

T h e m e m b e r describes the o ccu p ier in h is f la t as h is re la tiv e . B u t in course

o f tim e w h e n the o ccu p y in g person does n o t vaca te the fla t, the m em b er

confesses h is irre g u la r acts. A c tu a lly to a v o id observance o f legal

fo rm a lit ie s , these m em b ers in d u ct persons in th e ir fla ts o r houses.

S ubsequently w h e n it is fo u n d that the ten an t is n o t vac a tin g , the m em b er

cannot b u t d isclose it to the C o -o p e ra tiv e H o u s in g S o c ie ty and the

R eg is tra r. A s a resu lt v io la tio n o f leg a l p ro v is io n on le ttin g ou t under

S ectio n 8 9 and R u le 142 o f C o -o p e ra tiv e L a w does n o t get support fro m

th e so c ie ty and th e R e g is tra r in an y e v ic tio n suit.

H e n c e th ere should be a concrete and con so lid ated p ro v is io n o f la w

on le ttin g o u t o f c o -o p e ra tiv e fla t o r house. O th e rw is e , co m p lica tio n s and

litig a tio n s w i l l increase d ay b y day , as n o w .

4 .2 .1 4 Disposal of land or apartment or house of a member in the

event of his death :

A m e m b e r o f a C o -o p e ra tiv e S o c ie ty w h e th e r it is a housing society

o r an a g ric u ltu ra l soc ie ty o r c red it society o r an y o th er ty p e o f society m ay

m a k e a n o m in a tio n to be ke p t in the reco rd o f the co -o p e ra tiv e society in

fa v o u r o f a person. In the even t o f the m e m b e r’ s death the society shall

dispose o f the share o r in terest o f the m e m b e r acco rd in g to the fo llo w in g

p r o v is io n :

253

“ S u b jec t to the b y e -Ia w s o f a C o -o p e ra tiv e S o c ie ty , any m em b er o f

such C o -o p e ra tiv e S o c ie ty m a y in accordance w ith the ru les n o m in ate a

person in w h o se fa v o u r the co -o p era tive society shall d ispose o f the share

o r in terest o f such m e m b e r on h is death .” ^’

H e n c e a m e m b e r has no co m p u ls io n to n o m in a te a person. T h e

p ro v is io n is n o t m an d a to ry . T h e re fo re , a m e m b e r m a y o r m a y no t no m in ate

a person in w h o se fa v o u r the deceased m e m b e r’ s share m a y be transferred

b y the so ciety . In the co -o p e ra tiv e societies o th e r than C o -o p e ra tiv e

H o u s in g S oc ie ties , share o r in terest is o rd in a r ily in the fo rm o f m o n ey. B u t

in a C o -o p e ra tiv e H o u s in g S o c ie ty , the share o r in terest is in the fo rm o f a

sm all a m o u n t o f m o n e y deposited in the housing society . T h is share

attaches the lan d o r ap artm en t o r the house o f the m e m b e r. So, the share or

in terest in a C o -o p e ra tiv e H o u s in g S o c ie ty is to ta lly d iffe re n t to those in a ll

o th er types o f C o -o p e ra tiv e Societies. In the A c t o r R u les , there is no

sp ec ific p re s c rip tio n h o w shares a long w ith the lan d o r ap artm en t o r house

shall be d isposed o f in th e even t o f the m e m b e r’ s death . T h e g u id in g la w is

S ectio n 7 9 , 80 o f th e A c t and R u les 127 and 128 o f th e R u les .

T h e W e s t B e n g a l C o -o p e ra tiv e Societies R u les , 1987 p rov ides the

m an n er h o w n o m in a tio n is to be m ad e and in w h a t m an n er the sam e m a y

be k e p t in reco rd o f the C o -o p e ra tiv e S o c ie ty . T h e p ro v is io n is as under :

254

1) A m e m b e r o f a C o -o p e ra tiv e S o c ie ty m a y in accordance w ith

p ro v is io n o f S ec tio n 7 9 , n o m in a te in w r it in g any person b e lo n g in g to his

fa m ily to w h o m the share o r in terest o r the v a lu e o f such share or interest

shall, on h is death , b e p a id o r transferred u n d er the p ro v is io n o f the A c t;

P ro v id e d th a t i f a m e m b e r has no fa m ily he m a y no m in ate any

person to w h o m such share o r in terest o r the v a lu e o f such share o r interest

shall be p a id o r tran s fe rred :

P ro v id e d fu rth e r th a t such m e m b e r m a y , fro m tim e to tim e , revo ke

n o m in a tio n and m a k e a fe w n o m in a tio n .

2 ) E v e ry C o -o p e ra tiv e S oc ie ty shall keep a re g is tra r o f a ll persons so

n o m in ated .

3 ) In case the n o m in e e o f a m e m b e r dies, th e m e m b e r shall report

the death to the so c ie ty and m a k e a fresh n o m in a tio n i f he so desires.^^

So b y th e ab o ve ru le , a m e m b e r m a y n o m in a te a person o r m a y not.

I f th e m e m b e r has fa m ily and i f he w ishes to n o m in a te , he shall have to

n o m in a te a person o f h is fa m ily o n ly , bu t n o t an yo n e else outside o f his

fa m ily . O n th e o th er hand, i f he has no fa m ily , he m a y n o m in ate any

person w h o m a y o r m a y n o t be his re la tiv e . D e f in it io n o f fa m ily is

im p o rta n t in th is p lace .

2 5 5

T h e d e f i n i t i o n o f f a m i l y is g i v e n i n t h e f o l l o w i n g w a y :

A fa m ily shall be deem ed to consist o f husband and w ife , m in o r

sons and daughters , dependent w id o w o f a p redeceased son, m in o r sons

and daughters o f a dependent w id o w o f predeceased son and husband ’ s

d ependent parents.^^

T h e re fo re , fro m am ongst those persons o n ly , a m em b er m ay

n o m in a te one person. E v e ry co -o p era tive society m a in ta in s a reg ister o f

m em b ers in a p rescrib ed form.^'^

H e re a q uestion o ften arises w h e th e r a m e m b e r can n o m in a te tw o

persons jo in t ly o r not. B y S ectio n 7 9 and R u le 127 supra, n o m in a tio n m ay

be m ad e to a person. In the A c t there is a p ro v is io n fo r adm iss ion o f jo in t

m em bers . T h e p ro v is io n is the fo llo w in g :

A C o -o p e ra tiv e society m a y ad m it p a ir w is e an y tw o person as jo in t

m em bers and m a y issue a s ing le share in th e ir jo in t nam es. S uch m em bers

shall, o rd in a r ily e n jo y the righ ts and p riv ile g e s o f a m e m b e r jo in t ly

So, b y the above p ro v is io n tw o persons m a y be jo in t m em bers.

H e n c e , i f a m e m b e r has tw o sons and daughters and w ishes to n o m in ate

b oth o f th e m as to be jo in t m em bers in the even t o f h is death , p ro v is io n o f

S ectio n 7 9 and R u le 127 res tric t h im to do so. O n th e o ther hand,

e x p la n a tio n o f jo in t m em b ers is g iv e n in the fo llo w in g m arm er ;

i ) H u s b a n d and w ife .

i i ) F a th e r and son o r u n m arried daughter.

256

257

96

T h e re fo re , a m e m b e r is fo u n d to n o m in a te tw o persons o f his choice

i f he so desires. B u t m a n y m em bers do n o t n o m in a te in his U fetim e,

causing u n c e rta in ty at the t im e o f tran s fe rrin g share c e rtifica te and

m em b ersh ip a fte r h is death .

O n e im p o rta n t th in g is to be observed th a t R u le 127 o f the W es t

B e n g a l C o -o p e ra tiv e Societies R u les , 1987 p ro h ib its a m e m b e r to nom inate

a n y person outs ide o f h is fa m ily in the case he has a fa m ily . B u t, i f the

m e m b e r has o n ly a dau g h ter w h o has been m a rrie d , he can no t no m in ate

his o n ly d au g h ter on the ground th a t she is no t in c lu d e d in his fa m ily as

d e fin e d in the A c t . T h e re are m a n y instances w h e n m a n y m em bers suffer

fro m such p a ra d o x ic a l nature o f the p ro v is io n . H e n c e , the scope and

p e rip h e ry o f n o m in a tio n to be m ade b y a m e m b e r shou ld be w id en ed .

M o re o v e r , in the S ec tio n 79 and R u le 128, the n o m in a tio n has been so

p ro v id e d th a t it m a y seem to be equal to g ift . B u t, a c tu a lly n o m in a tio n is

n o t g ift . T h e re are m a n y instances o f d ispute b e tw e e n the n o m in ee and the

successors o f the deceased m em b er. W h e n the n o m in e e a fte r b eco m in g a

m e m b e r o f th e C o -o p e ra tiv e H o u s in g S o c ie ty and o c c u p y in g fla t o r house

o r lan d en joys it, he doesn ’ t d is tribu te the asset w ith in leg a l heirs. D isp u te

arises and it goes upto courts o f la w .

i i i ) M o t h e r a n d s o n o r u n m a r r i e d d a u g h t e r .

H o w e v e r , i f a m e m b e r does not n o m in a te a person o r i f the existence

o f the n o m in e e cannot be ascerta ined b y the B o a rd o f the C o -o p e ra tiv e

S o c ie ty , th en the m a n n e r h o w the share can be tran s ferred is em bod ied in

the A c t. In such a case, the share or in terest o f a deceased m e m b e r shall be

tran s fe rred to the person w h o (sub ject to the p ro d u c tio n b y such person o f

probate , le tte r o f a d m in is tra tio n o r succession c e rtif ic a te ) appears to the

B o a rd to be estab lished in accordance w ith the ru les to the possession o f

such share o r in terest as p a rt o f the estate o f the deceased m em ber.^^

I f th e n o m in e e does no t w a n t to be a m e m b e r o f the society o r he

has no e lig ib il i ty to becom e its m em b er, th en a n y o th e r person m a y be

in d u cted as a m e m b e r in p lace o f the deceased m e m b e r and the va lu e o f

share and th e v a lu e o f the land , apartm ent o r house shall be p a id to the

n o m in ee . I f th ere is no n o m in ee , in such case the v a lu e shall be p a id to the

person w h o shall h o ld le tte r o f a d m in is tra tio n o r probate.^^

B u t, the la w is s ilen t i f the n o m in ee is a m in o r at the tim e o f death o f

the m e m b e r and h o w the deceased m e m b e r’ s share o r in terest v is -a -v is the

f la t ( in case o f c o -o p e ra tiv e housing so c ie ty ) can be tran s ferred to h im .

Such a case cam e to the D e p u ty R eg is tra r o f C o -o p e ra tiv e Societies

(H o u s in g ), C a lc u tta M e tro p o lita n A re a .

T h e fac t w as th is , ‘A ’ w as a w o m a n serv in g in C M D A (C a lc u tta

n o w K o lk a ta M e tro p o lita n D e v e lo p m e n t A u th o r ity ) and h er husband ‘B ’

258

w as also an e m p lo y e e in the sam e organ isation . C M D A d is trib u ted plots o f

lan d to groups o f its em p lo y e e w ith v ie w to fo rm in g co -o p e ra tiv e housing

societies fo r re s id e n tia l purpose. In such a c o -o p e ra tiv e hous ing society ‘ A ’

w as a m e m b e r and construction o f the b u ild in g o f a ll its m e m b e r w as go ing

on. ‘A ’ co n trib u ted to w ard s cost o f construction o f her f la t and com m on

area. B e fo re c o m p le tio n o f construction and b e fo re p a y m e n t o f a ll

in s ta llm en ts ‘A ’ d ied . She had n o m in a ted h er o n ly son ‘ C ’ w h o se age was

about 15 years at the tim e o f h e r death and w as s tu d y in g in a school. T h e

husband ' ‘ ’ ’ lo d g ed an a p p lic a tio n to the C o -o p e ra tiv e H o u s in g S o c ie ty (S )

fo r the purpose o f b ec o m in g a m e m b e r in p lace o f h is deceased w ife ’A ’ on

the g round th a t h is son ‘ C ’ w as not e lig ib le to be a m e m b e r because o f his

m in o r age. O n the o therhand , re la tives o f ‘ C ’ w e re requesting the housing

society S n o t to p e rm it ‘B ’ to be considered as a m e m b e r in p lace o f ‘A ’ . In

such d ile m m a S d id n o t sanction m em b ersh ip to ‘B ’ . H e appealed to the

D e p u ty R e g is tra r o f the C o -o p e ra tiv e Societies (H o u s in g ) fo r h a v in g his

m em b ersh ip in p la c e o f his w ife ‘A ’ . T h e m a tte r cam e as an appeal under

S ection 7 0 o f W e s t B e n g a l C o -o p e ra tiv e Societies A c t , 1983 . A s discussed

earlie r, S ec tio n 7 0 en titles a person e lig ib le fo r m em b ersh ip m ay , in the

even t o f re fu sa l b y the C o -o p e ra tiv e S o c ie ty o f h is a p p lic a tio n fo r

adm iss ion , ap p ea l to the R e g is tra r (h ere D e p u ty R e g is tra r) lies.

O n e o f th e conten tions o f ‘B ’ w as th a t he w as to co n trib u te the

re m a in in g p o rtio n o f the construction cost as the construction is in the

259

m id d le w a y ; fo r th a t i f he is n o t a llo w e d to be a m e m b e r o f S, it was not

possib le fo r h im to co n trib u te tow ards the cost o f construction . A n d

another co n ten tio n w as th a t fo r continuous d e fa u lt in p a y m e n t o f the dues

to w ard s cost o f lan d o r house o r apartm ent fo r m o re than s ix m onths

w ith o u t a b re a k , exp u ls io n o f the m em b ersh ip m a y be proceeded.^^ T h e

D e p u ty R e g is tra r o f C o -o p e ra tiv e Societies (H o u s in g ) heard the

representatives o f S also. T h e v ie w o f S also w as n o t to take an y actio n fo r

exp u ls io n in th e stated c ircum stances. T h e y w e re ra th er sym p ath etic to the

m in o r ‘ C ’ . A f te r h e a rin g ‘B ’ , ‘ C ’ and ‘ S ’ , the D e p u ty R e g is tra r passed a

reasoned d ec is io n th a t ‘ B ’ s m em b ersh ip cou ld n o t be ap p ro ved as ‘A ’ had

p u t h e r w is h b y n o m in a tin g her o n ly son fo r share and in terest o f S. the

D e p u ty R e g is tra r o rd ered S no t to take an y step u n d er R u le 137 and t i l l

atta in m en t o f m a jo r ity o f ‘ C ’ , S shall no t take an y dec is io n on th is m atter.

A fte r a tta in in g m a jo r ity ‘ C ’ shall be in c lu d ed as a m e m b e r in p lace o f her

m o th e r ‘A ’ o n p ro d u c tio n o f requ is ite docum ents and ‘B ’ m ig h t con tribu te

re m a in in g p o rtio n o f cost o f construction in fa v o u r o f h is son ‘ C ’ as C ’ s

n atu ra l g u ard ian .

‘B ’ b ecam e a g g rieved w ith the above d ec is io n o f the D e p u ty

R eg is tra r and f i le d a re v ie w p e titio n b e fo re the C o -o p e ra tio n D e p a rtm e n t,

G o v e rn m e n t o f W e s t B e n g a l. In this p ro v is io n - T h e S tate G o v e rn m e n t

m a y , o f its o w n m o tio n o r on an a p p lica tio n m ad e in th e prescribed m an n er

b y an y person a g g rieved , c a ll fo r and e x a m in e the records o f any in q u iry

260

h e ld o r in sp ectio n m ad e u n d er th is A c t o r the p roceed ings o f the R eg is trar

and m a k e th e reo n such orders as it th in ks f i t a fte r se rv in g notices to

persons l ik e ly to be a ffec ted b y such orders.

T h e m a n n e r o f m a k in g such a p p lic a tio n u n d er S u b -S ec tio n (1 ) o f

S ectio n 137 has b een prescribed in R u le 2 2 8 o f the R u les . B y this ru le ,

such an a p p lic a tio n sha ll be m ad e w ith in tw o m o n th s fro m the date o f the

o rd er acco m p an ied b y an attested o r c e rtif ie d c o p y o f the o rd er co m p la in ed

of.

T h e a p p lic a tio n o f ‘B ’ w as heard b y the S ecre tary o f the C o ­

o p era tio n D e p a rtm e n t, G o v e rn m e n t o f W e s t B e n g a l b u t the proceed ing

to o k m u c h t im e to conclude. In the m e a n tim e , ‘ C ’ b ecam e m a jo r. T h e

D e p a rtm e n t o rd ered S, the housing society fo r g iv in g m em b ersh ip in

fa v o u r o f ‘ C ’ .

B u t th e m a in p o in t is th a t th ere is no sp ec ific p ro v is io n in the C o ­

o p era tive L a w and even in any o ther la w in vo g u e to so lve th is typ e o f

p ro b le m . H e n c e , a sp ec ific insertion in the present la w is req u ired .

In ano ther case o f a co -o p era tive h ousing soc ie ty , a m e m b e r d ied

n o m in a tin g a person. T h e m e m b e r had no fa m ily and he had n o m in ated

one descendant in h is agnet lin e b u t the n o m in a te d person had no

k n o w le d g e o f such n o m in a tio n n o r the m e m b e r in fo rm e d h im o f such

n o m in a tio n in h is life -t im e . T h e society w as g e ttin g serv ice charge fro m

261

the m e m b e r re g u la r ly t i l l h is death. B u t none appeared to possess the fla t

and to ta k e steps u n d e r S ectio n 80 o f the A c t, w h ic h has been discussed

Supra. M o n th s passed b y , none appeared w ith a c la im to get m em bersh ip

and the f la t o r h is sale proceeds. T h e society also w as loosing service

charge against th e f la t and o ther m em bers w e re c o m p e lle d to contribute

e x tra serv ice charge to m a k e good the d e fic it. T h e B o a rd o f that society

co m m u n ic a te d th e fa c t and th is d ead lo ck c o n d itio n in respect o f transfer o f

the deceased m e m b e r ’ s share o r in terest to the D e p u ty R eg is tra r. H e could

n o t f in d a n y w a y to so lve th is instant p ro b lem . B ecause the en ab lin g R u le

is th is w h e n upo n the death o f a m e m b e r o f a c o -o p e ra tiv e society, the

question o f tra n s fe rr in g the share, o r p a y in g in terest o f such deceased

m e m b e r arises, and the B o a rd o f such society fin d s th a t the deceased

m e m b e r d id n o t m a k e a n y n o m in a tio n in accordance w ith the provis ions o f

the S ectio n 7 9 , o r th a t the existence o r res id en tia l address o f the person

n o m in a te d can n o t be ascerta ined, o r th a t fo r an y s u ffic ie n t cause such

tran s fe r o r p a y m e n t can n o t be m ade w ith o u t unreasonab le d e lay , the

B o a rd m a y tran s fe r the share o r p ay in terest o f such deceased m e m b e r in

fa v o u r o f o r to a n y person w h o presents in w r it in g h is o r h e r c la im fo r the

said share o r in terest and produces, in support o f such c la im s , probate,

le tte r o f a d m in is tra tio n o r succession c e rtifica te issued b y a C o m p eten t

C o u rt h a v in g ju r is d ic tio n and m ake a w r itte n d ec la ra tio n in an a ff id a v it

262

b e fo re a M a g is tra te th a t he o r she is the r ig h tfu l c la im a n t, b e in g the legal

h e ir o r rep resen ta tiv e o f the deceased.

T h e soc ie ty insp ite o f its best e ffo rts co u ld n o t trace o u t the no m in ee

o r an y person b e in g the deceased m e m b e r’ s le g a l h e ir e ith e r agnate or

cogent. T h e deceased w as a H in d u m ale .

T h e D e p u ty R e g is tra r fin d in g no p ro v is io n in such p e c u lia r case

d irected the C o -o p e ra tiv e H o u s in g S o c ie ty to advertise in d a ily new spaper

fo r o b ta in in g c la im fro m the deceased’ s re la tives . T h e cost o f

a d vertisem en t w as in it ia lly borne b y the society its e lf fro m the ad d itio n a l

c o n tr ib u tio n o f o th er m em b ers fo r the purpose. T h e so ciety advertised the

m a tte r to d ra w a tten tio n o f c la im a n t o f the f la t as w e ll as the m em bersh ip .

B u t none tu rn ed up w ith the c la im . T h e m a tte r w as b ro u g h t to the no tice o f

the D e p u ty R e g is tra r b y the S o c ie ty ’ s B o a rd o f D ire c to rs . T h e D e p u ty

R e g is tra r fo u n d no p ro v is io n in la w to d ea l w ith such a p ro b lem .

A c c o rd in g to the H in d u Succession A c t, 19 5 6 ( 3 0 o f 1 9 5 6 ) i f an in testate

has le ft no h e ir q u a lif ie d to succeed to his o r her p ro p e rty in accordance

w ith the p ro v is io n o f th is A c t, such p ro p e rty shall d e v o lv e on the

G o v e rn m e n t; and th e G o v e rn m e n t shall ta k e the p ro p e rty subject to a ll the

o b lig a tio n s to w h ic h a h e ir w o u ld have been subjected.

263

T h is p ro v is io n is ca lled “ Escheat” . H o w e v e r , escheat has becom e

ra re , a t p resent. E v e n a m o re d is tan t re la tio n o f the in testate becom es a

c la im a n t to th e p ro p erty .

T h e p ro p e rty o f m a le H in d u d y in g in testate shall d e v o lv e accord ing

to the p ro v is io n o f th e C h a p te r I I o f T h e H in d u Succession A c t, 1 9 5 6 in the

fo llo w in g m a n n e r :

“ a ) F irs t ly , u p o n the heirs , b e in g the re la tiv e s sp ec ified in class I

o f th e Schedu le;

b ) S eco n d ly , i f there is no h e ir o f class I , th en upo n the heirs,

b e in g th e re la tiv e sp ec ified in C lass I I o f th e schedule.

c ) T h ird ly , i f th ere is no h e ir o f an y person o f the tw o classes,

th e n u p o n the agnates o f the deceased; and

d ) L a s tly , i f th ere is no agnate, then upo n the cognates o f the

deceased.”

So i f a n y person fa llin g in an y group o f (a ) to (d ) is n o t found or

c la im s. S ec tio n 2 9 o f the H in d u Succession A c t, 1 9 5 6 is ap p licab le fo r

escheat and to vest to the State G o vern m en t.

H o w e v e r , in th e above case the D e p u ty R e g is tra r advised the C o ­

opera tive H o u s in g S o c ie ty to sell the fla t u p o n p ro p e r p u b lic a tio n o f such

sale and due re c e ip t o f quotations o f v a lu e o f the f la t o f the deceased

264

m e m b e r. B u t sale o f the f la t w as to be m ad e to such a person w h o w o u ld

be e lig ib le to b eco m e a m e m b e r o f th a t hous ing society . So, lim ite d

quotations w e re expected . N o n eth e less , a good n u m b e r o f quotations w ere

re c e iv e d b y the so ciety and to the h ighest quoter, th e f la t w as sold b y the

so ciety and he g o t the m em b ersh ip b y re -a llo tm e n t o f the fla t. T h e

e xp en d itu re fo r th e d isposal o f the share and in terest v is -a -v is the fla t w as

deducted fro m the sale proceeds o f the fla t. T h e sale proceeds w e re kept

aside in a B a n k as F ix e d D e p o s it. T h is w as the p o s itio n fo r th ree to fo u r

years. B u t su d d en ly , a c la im a n t appeared and w a n te d share and in terest o f

th e m e m b e rs h ip o f the deceased person on the g ro u n d th a t he w as a

re la tiv e . T h e B o a rd o f the society cou ld n o t be satis fied w ith the evidences

w h ic h the c la im a n t p roduced . H e n c e , the m atte r w e n t to the C iv i l C o u rt.

F ro m th e above fac t, it is e v id e n t th a t a C o -o p e ra tiv e H o u s in g

S o c ie ty has severa l p ro b lem s w h ic h are n o t o n ly its o w n p ro b le m but

p ro b lem s o f in d iv id u a l m em bers .

So, la w shou ld spell out spec ific p ro v is io n s fo r s o lv in g such typ e o f

prob lem s and co n tingencies to av o id disputes and litig a tio n s .

4 .2 .1 5 Alteration, addition or repair :

In a C o -o p e ra tiv e H o u s in g S o c ie ty , fla ts o r apartm ents are requ ired

to be a lte red o r added o r rep a ired in course o f t im e and in v ie w o f

necessity. S p e c if ic a lly fo r a m u lti-s to rie d b u ild in g , a lte ra tio n o r ad d itio n or

265

re p a ir m u st b e done at the consensus o f a ll f la t o w n e r m em bers . A c c o rd in g

to the W e s t B e n g a l C o -o p e ra tiv e Societies A c t, 1983 a m e m b e r o f a C o ­

o p era tive H o u s in g S o c ie ty shall no t m ake an y a lte ra tio n o r ad d itio n or

re p a ir to a n y house o r ap artm en t in a b u ild in g in h is possession excep t w ith

the p rev io u s a p p ro v a l o f the C o -o p e ra tiv e H o u s in g S o c ie ty . T h e m em b er

shall a p p ly to the C o -o p e ra tiv e H o u s in g S o c ie ty fo r the a fo resa id purpose

in the p rescrib ed m arm er. T h e C o -o p e ra tiv e H o u s in g S o c ie ty shall consider

the a p p lic a tio n in a m e e tin g o f the B o a rd and c o m m u n ic a te to the m em b er

its d ec is io n th e reo n w ith in one m o n th fro m the date o f rece ip t o f the

a p p lic a tio n , fa i l in g w h ic h the a p p lic a tio n sha ll b e deem ed to h ave been

approved .

I f the b o ard decides to refuse the a p p lic a tio n , the m e m b e r shall have

a r ig h t to m a k e an appea l against such dec is ion to the R e g is tra r w ith in

f if te e n days fro m the date o f c o m m u n ic a tio n o f the dec is ion and the

R e g is tra r sha ll d ec id e the appeal w ith in f ifte e n days fro m the date on

w h ic h th e ap p ea l is made.'®'*

T h e re fo re , fro m the above p ro v is io n , it is observed that the

a lte ra tio n o r a d d itio n or re p a ir is concerned w ith an y house o r apartm ent in

a b u ild in g . T h a t m eans, the p ro v is io n is a p p licab le o n ly to a b u ild in g in a

c luster schem e. B u t in case o f house constructed on separate p lo t o f land

a llo tte d b y a C o -o p e ra tiv e H o u s in g S o c ie ty to e v e ry m e m b e r, there is no

re g u la tin g p ro v is io n i f the m e m b e r alters, adds o r repairs to his house.

266

A lte ra t io n o r a d d itio n m ust be supported b y a n e w p la n approved by the

C o m p e te n t A u th o r ity lik e C o rp o ra tio n , M u n ic ip a lity o r P an ch ayat in

a d d itio n to consent o f the C o -o p e ra tiv e H o u s in g S o c ie ty w ith m u lti-s to rie d

b u ild in g s . B u t in case o f the second typ e i.e . u n it house on separate land , a

n e w p la n fo r a lte ra tio n o r ad d itio n shall be o b ta in ed fro m the C om p eten t

A u th o r ity b u t the s o c ie ty ’ s consent is im m a te r ia l in such a case, i f interest

o f an o th er m e m b e r is n o t h am pered , and also i f th e co m m o n area and

fa c ilitie s o f th e ho u sin g society is n o t encroached or d is tu rbed in any w ay .

O f course, b e fo re sanction o f the n e w p la n sh o w in g a lte ra tio n o r ad d itio n

to th e d e v ia tio n o f the o rig in a l p lan , the C o -o p e ra tiv e H o u s in g S ociety

shou ld h a v e som e o p in io n to the C o m p eten t A u th o r ity . So, th ere should be

also a separate ty p e o f p ro v is io n in the la w fo r c o n tro llin g a d d itio n or

a lte ra tio n o f th e house on separate p lo t o f land . F o r re p a ir o f such separate

house, no consent o f the co -o p era tive housing society should also be

necessary. F o r re p a ir o f the house or ap artm en t in a b u ild in g so c ie ty ’s

consent is necessary. F o r accord ing such consent, the society o rd in a rily

in v ites o b jec tio n s fro m m em bers w h e th e r th ere is a n y p ro b a b ility o f

dam age o f an y m e m b e r o r not. B u t i f any o b je c tio n is n o t in v ite d and the

so c ie ty ’ s consent is g iv e n to the ap p lican t d es irin g to rep a ir, subsequent

o b jec tio n b y o th e r m em b ers w o u ld em barrass the so ciety a fterw ard s .

A c c o rd in g to S u b -S ec tio n ( 1 2 ) o f S ection 8 5 , W B C S A c t, 1983 a

m e m b e r sh a ll a p p ly to the C o -o p e ra tiv e H o u s in g S o c ie ty fo r the aforesaid

267

purpose in the prescribed manner. But in the Rules thereunder, no

prescription how an appUcation is to be made by the member desiring for

repair, or alteration or addition to his apartment or house has been

provided. A s a result, no uniform procedure is followed in Co-operative

Housing Societies.

In a Co-operative Housing Society in South Calcutta, a member had

applied to the society for remodeling the floor by mosaic and the society

consented to such addition. It is to be examined now whether this work can

be treated as an addition. Addition or alteration or repair should be

separately defined. In that case, the member owning the flat just beneath

the flat o f the applicant member objected that the floor above his flat would

become heavier and could not bear the load due to proposed addition.

Ultimately, the society withdrew the consent temporarily and asked the

applicant member to obtain certificate fi*om a Competent Engineer. He

obtained the certificate and produced it to the Board o f society. The society

again gave the consent. This time the aggrieved member complained o f the

thickness o f mosaic against the applicant member and the Board o f the

society to the Registrar (here Deputy Registrar). The Deputy Registrar

found that in respect o f addition, alteration or repair, an appeal under

Section 85(12) o f the Act may be preferred to the Registrar by the

applicant member desiring to repair or add or alter to his apartment when

he is aggrieved with the refusal or inaction o f the society on the

268

application. Nonetheless, the Deputy Registrar heard the applicant

member, the board o f society and the aggrieved member alleging to be

affected by the proposed repair. The Deputy Registrar asked the three

parties to get the subject flat, to which repair is sought for, inspected by

another Engineer to be selected by the society at the cost to be borne by the

applicant member and the aggrieved member. The main objection is the

thickness o f mosaic being added on the floor. The Engineer this time on

the basis o f load bearing capacity o f the floor suggested to add mosaic on

the floor to a maximum thickness and thereafter the Deputy Registrar after

hearing all the parties directed to use mosaic on the floor at a certain

thickness. It is observed that the Deputy Registrar acted on the basis o f

equity, good conscience and justice but not on any prescribed norm.

Hence, clear guidance is necessary in case o f any repair o f an apartment or

house o f a member in a Co-operative Housing Society. And this may be

done by insertion o f some provision in the Rules or in its bye-laws.

In a case, a co-operative housing society resolved to add an extra

room to each apartment from the ground floor to the top. But some

members did not agree to add any room to their existing flats; the housing

society got the extended plan sanctioned by the Competent Authority (Salt

Lake Municipality). The members pressed upon the unwilling members in

different ways. Because, the structure o f the additional room was to be

constructed covering all floors o f the building. I f the unwilling person

269

would not construct the additional room, cost o f construction per member

would rise considerably. On the otherhand, the plea o f these unwilling

people is paucity o f money and non-requirement o f the additional space o f

accommodation.

The matter ultimately came to the Deputy Registrar o f Co-operative

Societies (Housing), Calcutta Metropolitan Area. He found no provisions

laid down in respect o f such addition in the law. Some willing members

proposed to help the unwilling members by way o f giving loan to them on

soft terms. Ultimately, after long persuasions, an amicable settlement was

arrived at and the addition was effected to. But in the meantime a period o f

one year elapsed and cost o f constructing materials became higher and the

estimated cost was escalated. Therefore Rules or the Bye-laws should

contain elaborated guideline in the above respect.

4.3 Laws regarding Group Housing in the West Bengal Apartment

Ownership Act, 1972, Rules 1974 thereunder, Bye-laws, 1974 ;

The W est Bengal Apartment Ownership Act, 1972 was passed with

an intention to provide for the ownership o f an individual apartment and to

make such apartment heritable and transferable property. Housing problem

in India was growing badly. To meet the problem, Group Housing

Schemes with multiple o f dwelling houses or units have been taken up by

the State Goverrmient and by private promoters. In the past, no provision

270

was in any law on succession to such apartments and transferability o f such

units in a Group Housing. This Apartment Ownership Act, 1972 has

removed the difficulties.

4.3.1 Important terms in the W.B. Apartment Ownership Act, 1972 :

There are two main ingredients o f the Act such as :

i) The sole owners must subject their apartments to the provision

o f this Act and submit jointly a Declaration which requires

execution and registration under Registration Act, 1908.

ii) The apartment must be used mainly for residential purposes or

to be used for the same purposes.

Initially at the time o f first promulgation o f this Act, the apartment

must have been used “actually” for residential purposes. But in 1974 by an

amendment the word “actually” has been substituted by “mainly”. So, at

earlier stage before amendment o f the word “actually” the apartments were

to be used actually i.e. truly i.e. as a matter o f fact. But now “mainly”

meants principally or chiefly. Hence, this Act may apply also to those

apartments which are not utilised for the purpose o f residence.

Apparently, an apartment is synonymous to a flat. But in this Act

“apartmenf ’ means part o f a property having a direct exit to a road, street

or highway or to a common area leading to such road, street, or highway

271

which together with its individual interest in the common areas and

facilities forms an independent residential unit and includes a flat.'^^

On the other hand, “flat” shall mean a separate residential unit,

whether self-contained or not, used or intended to be used for any o f the

purposes referred to in Sub-Clauses (a) to (1) o f clause (2) o f Section 390

o f the Calcutta Municipal Corporation Act, 1980. This definition has been

provided in explanation to Section 3(a) o f the West Bengal Apartment

Ownership Act, 1972.

N ow , owner o f an apartment has been defined as follows :

“Ovmer” in relation to any property or part thereof or apartment

includes:

i) Any person owning such property or part thereof or

apartment or,

ii) Any person deemed to be owning such property or part

thereof or apartment, or,

iii) Any promoter or,

iv) A lease o f such property or part thereof or apartment, where

the lease is for a period o f thirty years or more;

Provided that any person who has executed an agreement for the

purpose or for taking lease for a period o f thirty years or more, o f any

272

property or part thereof or apartment or has paid the consideration or part

thereof, shall be deemed to be owning such property or part thereof or

apartment even though the document for purchase or lease o f such property

or part thereof or apartment has not been registered.

Therefore, all lessees are not eligible to become owner o f an

apartment as defined under the interpretation clause o f (ia) o f Section 3 o f

The W est Bengal Apartment Ownership Act, 1972. This definition o f

“owner” was not initially given in the Act. At an amendment in 1998, this

definition has been included. Lessees o f at least thirty years are eligible to

be owners. But a tenant is not included in the definition. So, in a building,

surrounding land to it and other common area like park, garden,

community hall etc. may exist. An owner has distinct apartment in a

building but he has also some right to those common areas and other

facilities. It means, an owner has his apartment plus proportionate interest

in common areas and facilities which are defined as follows : “Common

areas and facilities” in clu d es:

i) The land on which the building is located and all easements,

rights and appurtenances belonging to the land and the

building.

273

ii) The foundation, columns, girders, beams, supports, main

walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-

escapes and entrances and exits o f the building.

iii) The basements, cellars, yards, gardens, parking areas,

shopping centres, schools, garages, building or apartment

vacant or occupied by a tenant or any other person not being

an owner, and transferred or proposed to be transferred to the

Association o f Apartment owners and storage spaces.

iv) The premises for the lodging o f janitors or persons employed

for the management o f the property.

v) Installation o f common services, such as power, light, gas,

hot and cold water, heating, refrigeration, air conditioning,

sewerage etc.

vi) The elevators, tanks, pumps, motors, compressors, pipes and

duets and in general all apparatus and installations existing

for common use.

vii) Such other common facilities as may be specially provided

for in the Declaration.

viii) A ll other parts o f the property necessary or convenient to its

existence, maintenance and safety, or normally in common

use;'°̂

274

Again, inspite o f giving definition o f “owner” in Section 3(2a), a

benamdar o f an apartment shall be the real owner. Where an apartment is

transferred to one person for a consideration paid or provided by another

person for his own benefit, the transferee shall, notwithstanding anything

in the Transfer o f Property Act, 1882 or in the Indian Trust Act, 1882, or in

any other law for the time being in force be deemed to be the real owner of

such apartment and no Court shall entertain any claim o f the person,

paying or providing consideration for title in such apartment on the ground

that he did not intend to pay or provide such consideration for the benefit

o f the transferee and that the transferee in his benamder, or on any other

ground.’ '®

Benami or colourable transfers are those transactions which are not

meant to operate between the parties. This is a collusive transaction. The

property is merely put in a false name and generally for defrauding others

particularly creditors. Section 53, Transfer o f Property Act, 1882 is a

fraudulent transfer which can be distinguished from benami transaction and

the difference between those two transfers is distinct though it is often

slurred. Benami transactions are not valid. They are void transactions. So

the burden o f proof o f benami transaction is on the person claiming against

the tenor o f a person who is the alleged beneficiary. He is to show that the

property was in fact purchased only for the benefit o f the ostensible owner

who was a mere name-lender.

275

But under West Bengal Apartment Ownership Act, 1972, benamdar

shall be deemed to be the real owner o f an apartment and no Court shall

entertain any issue arising out o f this transfer or transaction.

Here it is observed that the Transfer o f Property Act, 1882 (Section

53) and the Indian Trust Act, 1882 (Section 82) or the Benami

Transactions (Prohibition) Act, 1988 (Section 7) have no overriding effect

on Section 4A o f the Apartment Ownership Act. The question arises

whether the provision is repugnant to any provision o f a law made by

parliaments.

Clause (2) exacts an exception to the Rule laid down in clause (1) o f

Article 254 in which in the event o f a conflict between a union and a State

law, the former prevails over the latter. It enacts that if any provision o f the

law made by the legislature o f a state is repugnant to any provision o f a

law made by the Parliament which Parliament is competent to enact, or to

any provision o f any existing law with respect to one o f the matter

emanated in concurrent list, then the law made by the Parliament, whether

passed before or after the law made by such state or, as the case may be,

the existing law shall prevail and the law made by the legislature o f the

state shall, to the extent o f repugnancy, be vo id ." '

Thus from Clause (2) or Article 254, whenever there is any

provision in a law made by the legislature o f a state repugnant to the

276

provisions o f a earlier Act o f the Parliament or o f any existing Law with

respect to the matter, then in order that the law made by the State

Legislature may be effective and operative, the assent o f the President has

to be obtained with regard to it. The language o f Article 254(2) is quite

simple. The result o f obtaining assent o f the President would be that so far

as the State Act is concerned, the law will prevail in the State and over-rule

the provisions o f the Central Act in its applicability to that State.

The important thing is to consider whether the Legislation is in

respect o f the same matter. I f the later legislation deals not with the matter

which forms the subject o f the earlier legislation but with other and distinct

matters, though o f a cognate and allied character then its Clause (2) o f

Article 254 shall have no application. A leading case in this respect is

Gram Panchayat vs. Mai Winder Sing [(1985) 3 Sec 661 : AIR SC 1394].

So Section 4A o f the West Bengal Apartment Ownership Act, 1972

is on concurrent subject because Transfer o f property other than

agricultural land is item no.6 o f list III - concurrent list in Schedule VII o f

the Constitution o f India.

As found Supra, Section 2 and Section 10 o f the West Bengal

Apartment Ownership Act, 1972 are the vital Sections o f this Act, because

this Act is applicable to every building used or to be used mainly for

residential purposes. For this purpose a declaration is to be executed and

I l l

registered. Before that, a person should be under Section 3(2a) an owner o f

an apartment o f a building. Unlike acquiring an apartment or house in a

Co-operative Housing Society, a person can acquire more than one

apartment. But that is not permitted in a housing society. Under this

Apartment Ownership Law, a person may own more than one apartment in

a building or buildings forming an association. In the explanation to Clause

N o.3(2) o f the West Bengal Apartment Ownership Bye-law, 1974 it is

stated “For the purpose o f this clause, a person owning more than one

apartment, shall be deemed to be one apartment owner”. Hence, unlike a

member o f a Co-operative Housing society, an owner o f an apartment in an

association may posses more than one flats.

Besides, owners o f buildings are not obliged to come within the

purview o f the Apartment Ownership Act. Therefore, this Act is entirely

optional for owners o f apartments to bind themselves by the bond as

provided under Section 2 and 10 o f the Act. Only by forming an

Association, the owners may ensure to some extent convenience and

benefit o f themselves.

Moreover, once entered into this Apartment Ownership Act by

complying with provision o f Section 2 and 10 with execution and

registration o f declaration, the owners may by Section 11 withdraw the

declaration by registration o f a further instrument. So, withdrawal from the

provision o f the Act may be in following c a se s ;

278

i) A ll the Apartment Owners may with the prior permission o f

the State Government withdraw a property from the

provisions o f this Act by an instrument executed to that

effect.

ii) Upon the property being withdrawn from the provisions of

this Act, it shall be deemed to be owned in common by the

apartment owners and the share o f each such owner in the

property shall be the percentage o f individual interest

previously owned by such owner in the common areas and

facilities.

iii) Any encumbrance affecting any o f the apartments shall be

deemed to be transferred in accordance with the existing

priority to the percentage o f the individual interest o f the

110apartment owner in the property.”

“Property” has been defined to comprise the land, the building and

the common areas and facilities."^ When the apartment owners withdraw

from the provisions o f this Act, the property as defined under Section 3(k)

shall be deemed to be owned in common by the apartment owners. It may

be then treated as a joint property and the share o f each apartment owner

w ill be his original individual share in the common areas and facilities. The

provision o f this Section leaves the owners in a chaotic situation. This

279

Section does not specify why and how withdrawal may be allowed. For

this, before withdrawal some specific procedure has to be followed.

Distribution o f common assets, repayment to creditors, recovery o f dues

from owners and outsiders etc. are the main jobs before proposal o f

withdrawal from the provision o f the Act is submitted. The Competent

Authority should also be satisfied with the close o f all accounts o f the

Association and redemption o f the properties as original as at the time o f

execution and registration o f the declaration.

In this Section, withdrawal o f such declaration is upon the sweet

will o f the owners. There should be a provision giving power to the

competent Authority to compulsorily cause the declaration withdrawn and

taken away the association out o f the purview o f the Apartment Ownership

Act. For that purpose, the Competent Authority should be given power to

dissolve the Association and if there are considerable assets and liabilities,

the Authority should appoint a liquidator. The liquidator may be

remunerated and some specific procedure for his function with duties and

powers should also be embodied in the Act. Besides, the Competent

Authority while dissolving the Association should be empowered to

impose any penalty for any offence like defalcation o f money by any

Manager out o f the fund o f the Association.

In this respect Section 12 o f the West Bengal Apartment Ownership

Act, 1972 should also be amended. This Section states :

280

i) A ll instruments relating to the declaration o f any amendment

thereto referred to in Section 10 or the withdrawal o f a

property from the provision o f the Act referred to in the

Section 11, or the instrument referred to in Sub-Section (3) o f

Section 4 shall be deemed to be instruments compulsorily

registrable within the meaning o f Clause (b) o f Sub-Section

(1) o f Section 17 o f the Registration Act, 1908.

(ii) The withdrawal provided for in Section 11 shall in no way

bar the subsequent re-submission o f the property to the

provision o f this Act.

So, if the provision that the Competent Authority may compulsorily

dissolve the Association, amendment o f Section 12 is necessary. When

dissolution shall be compulsorily ordered by the Competent Authority, the

cancellation o f declaration by him should be conclusive evidence o f its

withdrawal and for that purpose, further registration or instrument should

not be necessary.

In Sub-Section (2) o f Section 12, there is a liberty to the owners o f

the Association to resubmit their property again to the provisions o f this

Apartment Ownership Act. There is no specific time after lapse o f which

the ovmer again may come under the preview o f this Act.

281

In Sections 11 and 12, withdrawal o f a property has been mentioned.

If it is regarded that “a property” means the whole property o f the

Association, the provision is all right. But when, the owners want to

transfer any portion o f common area and facilities to an outsider individual

or any organisation or Government or even to an owner o f an apartment,

there is no provision o f the Act how the portion o f the property proposed to

be transferred may be withdrawn from the preview o f this Act. There

should be such an enabling provision either in the Act or in the Rule but

not in the By e-laws o f the Association. For the purpose o f transferring a

portion o f common areas or facilities, the owners in general meeting

should resolve in affirmative. If there is any difference, there should be

some forum to decide the matter.

4.3.2 Declaration:

Section 2 and Section 10 o f the West Bengal Apartment Ownership

Act, 1972 indicate the person or persons who shall declare some particulars

by submission in prescribed form.

Section 2 states “This Act shall apply to every building which is

used or proposed to be used, mainly for residential purpose and the sole

owner or all the owners o f every such building shall submit the same to the

provision o f this Act duly executing and registering a declaration setting

out the particulars referred to in Section 10”.

282

N ow Section 10 prescribes some particulars which are to be

submitted in Form A given in the West Bengal Apartment Ownership

Rules. 1974.’’^

Either the sole owner or all owners o f apartment in a property shall

submit the property to the provision o f the West Bengal Apartment

Ownership Act, 1972 by the prescribed Form No.A.

But when the sole owner submits the declaration, he declares the

whole particulars on behalf o f the prospective owners who will purchase

apartments o f the property and the owners shall abide by all terms and

conditions o f the Declaration and all provisions o f the Act. So, while

purchasing an apartment along with the fixed percentage o f common areas

and facilities, a person should have been beforehand aware o f the

Declaration and so in the deed o f transfer by the sole owner to him,

assertion o f the fact o f declaration should be inserted.

It is also uncertain when the Bye-laws as required under Section

13(2) shall be prepared and registered again under Clause 3(2) o f the West

Bengal Apartment Ownership Bye-laws, 1974 in the event the sole owner

o f the property submitted declaration under Section 2 and 10.

Because the said Bye-laws, 1974 gives rise to provisions for

formation o f Association. The Clause states ;

283

Form ation o f the A ssociation :

1 a) There shall be in respect o f each property an association, and

each apartment owner o f such property shall be a member o f such

association.

b) Where an apartment owner transfers his apartment by sale or

leases out o f the same, he shall cease to be a member o f the Association

concerned from the date o f the sale or lease, as the case may be, and the

purchaser or lessee on his notifying the purchase or lease to the Board

concerned becomes immediately a member o f the said Association in place

o f the transferor.

c) Where more persons than one jointly own and apartment, such

persons shall nominate one o f themselves to be a member o f the

Association concerned and immediately send information in respect

thereof to the Board concerned.

2) Within forty five days from the appointed day or from the date o f

submission o f the property concerned to the provisions o f the Act, which

ever is later or within such further period as the competent authority may,

on application made to it or o f its own motion, allow, the apartment owners

o f each property, owned by four or more apartment owners, shall in

general meeting to be held on such date and such time and place as may be

convenient to all such owners and to be presided over by an apartment

owner chosen by the apartment owners present in such meeting form an

284

Association under some specific name and style, and the apartment owner

presiding over such meeting shall immediately communicate the formation

o f such an Association along with the names o f the members thereof in

Form No. 1 to the Competent Authority which shall register the Association

under a serial number and cause the names o f the members thereof to be

entered into the book kept in its office for the purpose.

Explanation for the purpose o f this clause, a person owning more

than one apartment, shall be deemed to be one Apartment owner.

Therefore, it is to comment that by Clause 3(2) o f the Bye-laws, an

Association shall be formed by 4 or more apartment owners within 45 days

from the appointed day or from the date o f submission o f the property

concerned. So, by this period or any extended period, at least 4 persons

must have purchased or been owner as defined in Section 2(2a) when the

sole owner has already submitted the property under Section 2 and 10. The

Sub-Clause (2) o f Clause 3 o f the Bye-laws empowers the Competent

Authority to allow the apartment owners to form the Association a further

time beyond 45 days but as it appears from the plain meaning o f this Sub-

Clause (2), the Competent Authority can not extend his period o f 45 days

to the sole owner for the formation o f an Association. So, if the sole owner

cannot transfer this apartment to at least four ovmers who shall form an

Association under Clause 3 o f the Bye-laws, the Declaration shall have no

effect. When the sole owner shall alienate each apartment to individual

285

owners, each o f them is required to furnish under Sub-Section 3(b)(ii) in

Form N o, C particulars and such instrument shall be executed within 30

days from the date o f execution o f the Deed o f Purchase or the Deed o f

Lease under which such owner acquires his interest in such apartment."^

This executed instrument shall be submitted to the competent Authority for

acceptance or rejection.’'̂

4.3.3 Amendment of Declaration :

Once a declaration has been submitted by the sole owner or all

owners, it may afterwards be amended. Under Section lOA in Sub-Section

(1), any declaration referred to in Section 2 or any amendment thereto or

any instrument referred to in Sub-section (3) o f Section 4 shall, in the first

instance, be submitted in duplicate within 15 days from the date o f its

execution, to the Competent Authority along with copies o f Site Plans,

Building Plans and relevant title deeds.

The Apartment Ownership Rules, 1974 prescribed some

circumstances in which a Declaration may be amended under Sub-Section

(2) o f Section 10. The Rule states the grounds as follow

a) When there is any bonafide mistake in the

Declaration.

b) When there is, subsequent to the submission o f

Declaration, any alteration in the description or

286

nature o f the property or any part thereof to which

such Declaration relates, or

c) When subject to the approval o f Competent

Authority, an amendment is necessary for carrying

out the purposes o f the Act.

The circumstances as specified above are not exhaustive. There are

other circumstances in which amendment o f originally submitted

Declaration becomes expedient. These are such a s :

i) The property for which a Declaration has been executed and

registered under Section 2 o f the Act may, at a subsequent

time, divided into more than one property. That means the

original property may be divided and for this purpose also.

Therefore in case o f such division, o f course with the consent

o f owners, new Declaration for each o f the properties after

division should be executed and registered.

ii) When two properties for which two separate Declarations

have been executed and registered under Section 2 read with

Section 10 o f the Act are adjacent and all owners o f such

properties want unanimously to amalgamate the two into one

property, the common areas and facilities shall be merged and

a new Declaration shall be executed and registered under

287

Section 2 again. Hence, for amalgamation o f more than one

property into one property, necessary steps are to be adopted

under Section 10A.

For amalgamation o f more than one property, there shall

require some preliminary steps such as squaring up the assets

and liabilities o f each property or transferring or

amalgamating the assets and liabilities o f each property to the

newly formed big property.

iii) For some complicated situation arisen in a property for which

Declaration has already been submitted, the Board o f

Management finds it difficult to manage the affairs o f the

property. The split o f the property by separating buildings and

common areas and facilities can in many situations solve the

problem. Then inspite o f best effort, unanimous decision or

even decision by the majority o f owners can not be attained.

In such case according to urgency o f the situation the

Competent Authority should enjoy a special power to be

embodied in the Act by addition in the present Rule 4 o f the

said Rules so that the Competent Authority can exercise this

power and amalgamate more than one property into one

property or order division o f a property into more than one

properties. For such purpose, the Competent Authority shall

288

publish a draft o f an order for amalgamation or division in a

prescribed manner for inviting any objection or suggestion, if

any, within a period specified in the draft from the owners o f

the property or properties, as the case may be. Besides,

suggestions or objections shall be taken from other persons

who may have transaction with the Board o f Managers and

are creditors. On getting such suggestions or objections, the

Competent Authority shall give opportunity to the persons

submitting such suggestions or objections o f being heard.

Finally, the Competent Authority shall pass reasoned order

either postponing the proposed amalgamation or division or

issuing order o f amalgamation or the division. I f the order o f

the Competent Authority is not obeyed, the subject property

or properties should be left outside the preview o f the

Apartment Ownership Act, 1972 and for this, specific

provision in the Act should be inserted.

4.3.4 Constitution of a Board :

Constitution o f a Board and its ftinctions are provided in West

Bengal Apartment Ownership Bye-laws, 1974, and by that provision, the

number o f Managers o f a Board shall be equal to one-third o f the owner o f

the Apartment Owners o f the property concerned. But in no case it shall be

less than three or more than twenty four."^

289

On the other hand, minimum 4 owners may join under the

Apartment Ownership A ct.’^̂ Out o f 4 owners, 3 shall form a Board, thus

keeping the fourth owner outside the Board. Besides, if an owner out o f 4

owners purchases another apartment then total number o f owners shall

stand at 3 and thereby this Act shall not apply. At this point, the law does

not speak anything what the situation and the next course o f action would

be. Till the number o f owners remains less than 4, the effect o f the

provision o f this Act is a nullity. Hence, there should be a time limit within

which the number should reach the minimum. Otherwise, the property

should be left out o f the preview o f this Act.

Further in case o f a property under the provision o f the Act in which

only 4 owners occupy the apartments o f the property, the number o f

members o f the Board should be kept at 4 instead o f 3. Therefore, the

relevant Bye-laws clause should be slightly changed to the extent o f the

alteration o f the number o f member from 3 to 4. N ow , as the maximum

number o f Managers is 24, then the minimum total number o f Apartment

Owners is 72. Hence, for a total member o f owners o f 72 or above, the

number o f Managers is 24. But there should be on upper limit o f the total

number o f members and this should be dependent upon the viable

conditions o f service and maintenance o f the building. Further in case o f

total owners above a certain limit, election o f Managers and transaction o f

other business in a general meeting may be chaotic and the meeting may go

290

out o f control. In such cases (say above 1000 o f owners) the participating

persons may be delegates who may be priorly elected for five years.

According to the Bye-laws as prescribed under West Bengal

Apartment Ownership Bye-laws, 1974, a Manager may be removed in

following w a y s :

a) A Manager may be removed from office at any special General

M eeting o f the Association, convened on the requisition o f the

Board, by a vote o f the majority o f the apartment owners present

and thereupon a successor shall be elected from among the

apartment owners at that meeting. The Manager so elected shall

remain in office for the residue o f the term o f the Manager on

whose removal he has been elected.

b) Any other casual vacancy in the office or any elected Manager

by resignation or death shall be filled up by the remaining

Managers by co-option o f a Manager within six weeks from the

date o f the vacancy. The Manager so co-opted shall retire at the

next Annual General Meeting and the vacancy shall be filled up

by election o f a Manager for the remaining period o f the term, if

any, o f the Manager in whose place the vacancy originally

occurred.’ '̂

291

Hence from Sub-Clause (a), it is found that a Manager may be

removed at the instance o f the Board. But when other general owners want

to remove any Manager from the Board, there is no provision to cause his

removal in a Special General Meeting. A provision should be inserted that

if at least a percentage or fraction o f total owners requisition to the Board,

the Board shall convene such a Special General Meeting for the purpose of

removing a Manager against whom the requisition is lodged. It shall also

be included in this clause o f the Bye-laws that if owners with the requisite

number (may be 1/3'' )̂ want to remove the whole Board i.e. all Manager,

then there should also be separate provision o f calling a Special General

Meeting. In such cases, the Board o f Managers may show reluctance to call

such a specific General Meeting against them. In that event also, necessary

provisions o f law should be formulated.

Moreover, the existing provisions o f the clause does not spell out the

situations or reasons for which such removal can be proposed. Some sorts

o f reasons in particular nature should be provided in the clause so that

similar reasons can also be construed to be the grounds for such removal.

Hence, like the Board o f Managers, the specific fraction o f total owners

and the Competent Authority should be empowered in the clause for

removal o f a Manager or all Managers. For such conferment o f powers to

the owners and to the Competent Authority, necessary embodiment in this

clause by way o f addition or alteration should be done.

292

Moreover in above Clause 8(b), it is provided that for any casual

vacancy in the office o f any elected Manager by resignation or death, the

vacancy shall be filled up by co-option. These two causes i.e. resignation

and death are not exhaustive. Because, there are instances where a

Manager does not attend meeting o f the Board consecutively for months.

In that event, the remaining Managers should co-opt in his place. O f

course, the number o f consecutive meetings where he remains absent may

be six or seven which may be fixed while amending the provision o f

Clause 8(b) o f the West Bengal Apartment Ownership Bye-Iaw, 1974.

Again the number o f Managers in a Board resigning may be more

than the number o f Managers remaining. The power o f co-option o f the

greater number o f Managers should not be left to the minority number o f

managers remaining. Besides, there are instances where the whole Board

i.e. all Managers en-mass resign before expiry o f the term. So this

provision o f Clause 8(b) is silent in such a situation. Hence, a provision

should be added to the existing provision o f the Clause 8(b) to tackle the

above situation.

4.3.5 Disqualification for being Manager :

Bye-laws Clause N o.9 states disqualification o f a Manager.

According to it, any apartment owner, who fails to pay by the 31 '̂ January

in any financial year any instalment o f his contribution towards the

293

common expenses which may have been assessed by the concerned

Association in that financial year, shall not be entitled to vote at any

election o f the Managers o f the Board concerned, and to seek election for

the office o f the Board concerned, till all his queries are cleared.

An apartment owner who has not attained the age o f 21 years shall

not be qualified for election as a Manager. An owner who has been elected

as a Manager o f the Board and has held office for the full term or for any

part o f the term as such Manager shall not be qualified for re-election as a

Manager o f Board for the next two terms.

N ow there is a short fall in the provisions o f Clause 9(2) o f the Bye-

laws. By this Sub-Clause (2), a Manager is to be o f 21 years o f age. But in

property consisting o f 4 owners if 2 owners are o f below 21 years, 2

owners out o f 4 becomes eligible to be Manager o f the Board. Because any

person above 18 years may be an owner o f an apartment and even any

person acquiring an apartment by inheritance according to Section 4(3)(a)

may or may not be o f 18 years. But the minimum number o f the Managers

o f a Board must be 3 according to clause 5(2) o f the Bye-laws. Hence,

there should be some relaxation o f exemption o f this clause.

Again, a Manager in a Board for a term in full or in part shall not be

tooqualified for re-election as a Manager o f Board for the next terms. In a

property, declaration o f which has been made to come under the purview

294

o f this Act, i f there are 4 owners, at first 3 o f them may constitute the

Board but in the next two terms, they are not qualified for re-election.

Hence, there is a gap in the provision. Even, if there are 11 owners, by

clause 5(2) the number o f Managers shall be 4. The Managers in the first

term shall not be eligible to be Managers in second and third terms. Then

for the Second terms 4 owners out o f remaining 7 owners may be the

managers leaving only 3 owners in the first term shall not be eligible to be

Managers in second and third terms. Then for the second terms 4 owners

out o f remaining 7 owners may be the managers leaving only 3 owners

eligible to be Managers in the third term. Thus the Board shall not be

complete in the third term. It will be short by one Manager, even though

we suppose that all owners are eligible by completing 21 years o f age and

willing to be joining the Board.

So, though the Competent Authority has been given a discretionary

power to relax the sub-clause (3) o f clause 9 o f the Bye-laws by its proviso

the general provisions is not so sound and happy. In many situations

apartment owners shall have to approach the Competent Authority for

relaxation o f the Clause 9(3).

4.3.6 Officers of Apartment Owners’ Association :

The Bye-laws o f a property provides for election o f other officers

except the President. This clause states as below ;

295

In addition to the President, the principal officers o f an Association

shall, in addition to the Secretary, elect a Treasurer and such other officers

as may be necessary all o f whom including the Secretary shall be elected

by and from the Board and hold office during the pleasure o f the Board.

The election o f these officers shall be held annually at the first meeting o f

each Board after the armual retirement o f one-third o f the Managers and

the election o f new Managers in their places. A Manager, shall however, be

1 0 “Jeligible for being re-elected as President, Secretary or any other officer”.

By this provision, one third o f the Managers are to retire annually.

But according to Clause No.7, “the number o f Managers o f the Board who

shall retire annually shall be the same as the number o f members

constituting the Board”.

Hence, there is a controversy between Clause 7 and Clause 11. In

Clause 7, all Managers o f a Board shall retire annually. But in Clause 11...

after annual retirement o f the one-third o f the Managers ......” These two

provisions are paradoxical and it is very much confusing which o f these

two clauses shall prevail.

The word “term” used in Clause 9(3) o f the Bye-laws is also

undefined. From the meaning o f Clause 7 and 11, it is presumed that the

“term” o f a Board o f Managers is one year. But it is not specifically

defined anywhere.

296

Hence, “term” should be specifically defined. Retirement o f

Managers should be abolished or the manner o f retirement o f 1/3’’̂ o f

Managers should be clearly inserted. Besides, if the provision o f retirement

o f 1/3*̂ ̂ o f Managers is retained, then the total number o f Managers in a

Board should be divisible by 3. That means, total number o f Managers in a

Board may only be 3, 6, 8, 12, 15, 18, 21 or 24. But, if the above is

considered to be inserted in the Bye-laws, then Clause N o.5(2) o f the Bye-

laws should also be amended so that “number o f Managers o f a Board shall

be equal to one third o f the number o f the apartment owners o f the property

concerned.

In Clause N o .l 1(2) appointment o f staff is provided. By this clause

following provision has been embodied :

a) A Board may appoint other officers and employees to assist it in

efficient discharge o f its business under the Act and these Bye-

laws. Such officers and employees may be paid such

remuneration or allowances as may be determined by the Board.

b) A Board shall, subject to the approval o f the Association

determine the terms and conditions o f service o f its officers and

em ployees referred to- in Sub-Clause (a).

Thus in Clause l l ( l ) ( a ) officers have been meant as the President,

Secretary, Treasurer and others. These persons are basically owners in a

297

property and elected by all owners. But “officers” as described in Clause

11(2) are paid staff and these persons can not be equated with “officers” as

described in Clause 11(1 )(a). These terminologies o f “officers” in two Sub-

Clauses are confusing and mingled.

So the “officers” described in Clause ll(2 )(a ) should be termed

otherwise to distinguish two categories o f persons. The “officers”

described in Clause l l ( l ) ( a ) may be termed as “office bearers” and the

“officer” described in Clause 1 l(2)(a) may be retained as is now.

The W est Bengal Apartment Ownership Bye-laws, 1974 gives rise

to acceptance o f registration letter submitted by an officer o f a Board o f an

Association and the procedure how resignation shall be accepted and in his

place another officer o f a Board shall be elected.’ "̂̂ The Clause o f the West

Bengal Apartment Ownership bye-laws, 1974 states as follows :

The President, Secretary and any other elected officer may resign his

office any time by a notice to the Board. On receipt o f the notice, the Board

shall as early as possible at a meeting consider the matter and on the

resignation being accepted shall forthwith elect another officer from

amongst the Managers o f the Board in place o f one who has resigned.

From the above, it is observed that if all the officers including other

Managers o f the Board resign, there is no provision how the vacuum can

be filled. In such a situation, to whom they will submit resignation letter ?

298

So, there should be a provision for submission o f resignation by all officers

and Managers to the Competent Authority. The Competent Authority may,

after a summary inquiry, accept the resignation and appoint an

Administrator in accordance with Section 16B, the West Bengal Apartment

Ownership Act, 1972.

4.3.7 Control and Supersession :

The West Bengal Apartment Ownership Act, 1972 provides for

control and super session o f a Board o f Managers. According to that

provision if the Association o f Apartment owners having right to be

exercised by the Manager or the Board o f Managers fails to perform its

functions under this Act or the Bye-laws made thereunder, the Competent

Authority may give to it such directions as that Authority considers fit.’^̂

By above provision o f Section 16B(1), the competent Authority has

ample power to give directions. But if any directions are contravened, there

is no provision how the direction can be executed or effected. Because the

penalty Section o f the Act is Section 16A in which penalty may be

imposed for contravention o f Section 2, Section 7 or Section 8, any

provision o f the Bye-laws and any covenant, condition or restriction set

forth in the declaration to which he is subject or a party. Therefore, there is

no way o f imposing penalty or taking any civil action against

contravention o f the direction as may be passed by the Competent

299

Authority under Section 16B o f the Act. Moreover, in the Bye-laws also,

there is no provision for contravention o f the direction o f the Competent

Authority. Only this is a provision to supersede the Board o f Managers but

this is a remote remedy and weak also.

Hence, the specific provision should be inserted in the Act or, in the

Bye-laws to execute the directions o f the Competent Authority effectively

and for contravention o f such direction, the responsible Manager should be

penalised after an opportunity being given to him o f hearing.

N ow under Section 16B o f West Bengal Apartment Ownership Act,

1972, the Competent Authority has been empowered to remove the

Manager or supersede the whole Board o f Managers and appoint any

member o f the Association or any employee o f the West Bengal

Government as Administrator to perform the ftinctions o f the Manager or

the Board o f Manager.

In Section 16B(2), the Manager or the Board o f Management may

be either removed or superseded. If the property is managed by a Manager,

he may be removed. But if the property is managed by a Board o f

Manager, the Board may be superseded. In the Bye-laws o f the Association

o f apartment owners, there is no provision in favour o f a single Manager to

function in place o f a Board o f Managers. O f course by Section 5(6), “The

300

Association o f Apartment owners shall have right, to be exercised by the

Manager or the Board o f Managers on behalf o f the A ssociation....”

Thus it is permitted by Section 5(6) and Section 16B(2) o f the Act,

only one person called Manager can function on behalf o f an Association.

Otherwise a Board o f Managers shall exercise rights on behalf o f an

Association.

But in the Bye-laws, Clause 5 gives rise to constitution o f a Board

and its functions. According to Clause 5(1), there shall be a Board o f

Managers in respect o f each Association to carry on and manage the affairs

and business o f the Association to exercise all such powers o f the

Association as are not required to be exercised by the Association in a

general meeting.

Therefore, there is no scope in Bye-laws to confer power o f a Board

to sole Manager to carry on and manage the affairs and business o f the

Association.

Hence, it is expedient to amend Section 5(6) and Section 16B(2) to

the extent that the “Manager” shall be omitted.

The provisions o f Section 16B(2) is not exhaustive. Because, the

rights and duties o f the Administrator must be to form another Board o f

Managers and if he can not constitute such a Board within 3 years on any

unavoidable situation, there should be some way or provision to extend the

301

maximum period o f three years by exemption o f the general provision.

Otherwise the property concerned should be left out o f the purview o f the

Act by way o f canceling the declaration originally executed and registered

under Section 2 o f the Act.

Moreover, when an employee o f the State Government is appointed

an Administrator, some remuneration should be fixed for his job, if this is

additional to his normal duties. For action o f the Competent Authority in

superseding a Board o f Managers, if the Board becomes aggrieved, there

should have some provisions for appeal to the State Government in

Housing Department against the supersession o f the Board. Besides, the

Competent Authority should be empowered to change the Administrator

and in case o f a property with a considerable number o f apartments, a

Board o f Administrator consisting o f more than one person may be

appointed for pulling up volume o f works therein.

There should also remain a provision by which the Competent

Authority may be empowered to constitute a Board o f Managers

superseding the existing Board in lieu o f appointing an Administrator. The

power o f the Competent Authority to exercise Section 16B(2) should be

originated from his ovm initiation i.e. suo-moto or from any complaint

lodged by some owners o f the apartment against the Board. Therefore,

Section 16B(1) and Section 16B(2) should be more comprehensive and

workable on the part o f the Competent Authority.

302

Moreover, during taking action under Section 16B(1) or under

Section 16B(2), tlie Competent Authority may observe tliat some Manager

o f the Board are liable for any act detrimental or prejudicial to the interest

o f the Association o f apartment owners. For such acts o f the Manager, the

Competent Authority should debar him for a certain period not eligible to

become Manager o f subsequent Boards and simultaneously institute a

quasi criminal case against him. For the insertion o f that provision

Section 16B as a whole should be a subject o f Section 16A for the purpose

o f imposing penalty upon liable persons.

4.3.8 Common Expenses:

“Common expenses” has been interpreted as “expenses o f

administration, maintenance, repair or replacement o f the common areas

and facilities and all other sums assessed against the apartment owners by

the Association o f Apartment owners”.

This assessment o f the share o f common expenses has been

provided in the Bye-laws. According to the Bye-laws, every apartment

owners o f the property shall be assessed with such sum, being his share o f

the common expenses for the year as may be determined by the

Association concerned to defray the common expenses which include an

Insurance Premium and any repair and reconstruction work in case o f

hurricane, fire, earthquake or any other kind o f hazard or calamity.

303

The assessment shall be made pro-rata according to the value o f the

apartment unit as specified in the Declaration in pursuance o f the provision

o f Clause (g) o f Sub-Section (1) o f Section 10.'^^

Hence, from the above provisions, it is observed that common

expenses are assessed pro-rata according to the value o f each apartment

unit is specified in the Declaration. But such common expenses have been

defined in Section 2(e) at various items like :

i) Administration.

ii) Maintenance.

iii) Repair o f common areas and facilities.

iv) Replacement o f common areas and facilities.

v) A ll other sums which may be assessed by the Association o f

Apartment owners.

But there are some ingredients o f administration or maintenance

which are in regular nature and perennial and expenses o f which do not

depend on the valuation o f apartment. Those are among others :

i) Consumption o f water.

ii) Garbage clearing from the premises o f the property.

iii) Security arrangements.

304

iv) Stationary and postage.

v) Electricity in common areas like stair case, paths etc.

These expenses should be equally divided among the number o f

apartments.

Other items like repair or replacement o f common areas and

facilities would require occasional expenditure. The pro-rata distribution o f

such expenses on the valuation o f each apartment is not justified. But, in

many cases, it is found that roof o f a building requires repairing. The top

apartment is thereby affected by the damaged roof. The expenses o f

repairing are to be borne ordinarily by the top apartment owner. But, if in

the Declaration, provision is given as to how expenses o f such repair shall

be met up, there may not arise dissatisfaction or any controversy among

the owners. So, before hand at the time o f execution and registration o f

such a Declaration, conditions and terms o f repairing roof and any other

common areas and facilities should be included. For the purpose o f repair

or replacement o f common areas and facilities, the Association may utilise

some portion o f common areas and facilities to earn some compensation

out o f it and make a permanent fund.

I f any apartment ovmer does not pay arrears common expenses,

steps can be taken against him under Clause N o.24 o f the Bye-laws.

305

According to that provision for non-payment o f dues o f common

expenses, the Board o f Managers can take steps o f which prosecution o f

the defaulting owner is one. Other steps may be taken by the Board as may

be considered necessary.

Therefore, under Clause No.24 o f the West Bengal Apartment

Ownership Bye-laws, 1974, Board o f Managers may take recourse o f

Section 16A o f the Act for punishment. The punishment is prescribed as a

fine which may extend to Rupees one thousand or to a term o f

imprisonment which may extend to six months or to both and in case o f

continuing contravention, to additional fine which may extend to rupees

fifty for every day during which such contravention continues after

conviction for the first such contravention.

But the above provision is for a quasi-criminal case. In this case the

Magistrate will take cognizance on the prayer o f the Board o f Managers or

an aggrieved owner or the Competent Authority. It has been laid down in

Criminal Procedure Code, 1904 that all offences under any other laws shall

be investigated, inquired into, tried and otherwise dealt with according to

the provisions (i.e. the provisions o f the criminal procedure code), but

subject to any enactment for the time being in force regulating the manner

or place o f investigating, inquiring into, trying or otherwise dealing with

such offences.

306

In Section 16A o f the West Bengal Apartment Ownership Act, 1972

there is no specific procedure detailing the manner o f investigation.

Therefore, the offences under this Act are to be tried according to the

provisions o f Criminal Procedure Code in Summons cases. Evidently so

the offences are to be taken as bailable and non-cognizable.

Sub-Section (3) o f the above Section 16A lays down the provisions

for civil action under Section 6, 15 and 16. This shall not affect in any way

the provision for Criminal action under Section 16A o f the act. But this

Sub-Section (3) o f Section 16A does not include any clause o f the Bye-

laws as framed by the Competent Authority, though Section 16A (1) and

Section 16A(2) are applicable.

It is very important to note that Sections 6, 15 and 16 lay down an

action in a proper case and the apartment concerned to be charged for

common expenses. The Section 6 o f the West Bengal Apartment

Ownership Act, is this in brief

Each apartment owner shall comply strictly with the Bye-Laws and

with the convents, conditions and restrictions set forth in the Declaration.

Failure to comply with any o f the same shall be a ground for an action to

recover damages or for other relief or relieves.

Hence, there are provisions for relisation o f common expenses and

other charges in Section 6, 15 and 16 o f the Act but there is no indication

307

in which forum, such cases shall be agitated and effected. For a defaulted

amount o f common expenses o f a meager amount (say Rupees 200), the

Apartment Association can not spend money o f Rupees 5000, in a Court o f

Law. To obviate this, a speedy and cheap proceedings for recovery o f such

sums due from a defaulter owner should be adhered to in the law. This can

only be done by empowering the Competent Authority to determine and

this shall be deemed to be a public demand which may be recovered by a

certificate case. Such certificate case may be filed before the Certificate

Officer (ordinarily who is a Deputy Magistrate) empowered under the

Bengal Public Demand Recovery Act, 1913. Otherwise the order o f the

Competent Authority directing for payment o f defaulted common expenses

under Clause 24 read with Section 15 and Section 16 may be recoverable

by any Civil Court having jurisdiction, in the same manner as a degree o f

such Court upon application o f the Association or the judgement holder.

4.4 Salient Features of W. B. Building (Regulation of Promotion of

Construction and Transfer by Promoters) Act, 1993 ;

Initially the West Bengal Apartment (Regulation o f Construction

and Transfer) Act, 1972 West Bengal Act XVII o f 1972 was promulgated

on 5̂ ’’ June 1972 to regulate the Construction and Transfer o f Apartments

in group buildings which were at that time being constructed by private

individuals or entrepreneurs or companies and statutory Government

bodies like West Bengal Housing Board.

308

But, in 1994, the above Act has been replaced by the West Bengal

Building (Regulation o f Promotion o f Construction and Transfer by

Promoters) Act, 1993. It came into effect from 9̂ ̂ August 1995.'^^ This

Act stipulates the promoters who construct or cause to be constructed a

building on a plot o f land in transferring such building by sale, gift or

otherwise to any other person or to any Company, a Co-operative Society

or Association o f persons. Promoters include any Board, Company,

Corporation or Firm or other Association o f persons.

In the previous law o f 1972, there was no compulsion for a promoter

for registration o f his name and for permission for construction o f any

building. N ow in the present law o f 1993, a promoter shall get certificate

o f registration or the permission for construction o f building to be granted

under Section 3 o f the new Act and such certificate shall remain valid for

three years ordinarily. The period may be extended by the State

Government upto a total period o f five years. The Authorised Officer is the

competent person to whom an application as provided in Section 3(1) read

with Rule 3 o f the West Bengal Building (Regulation o f Promotion o f

Construction and Transfer by Promoters) Rules, 1995 shall be submitted

by an intending promoter at least 90 days before the commencement o f the

construction o f any building. The Authorised Officer is an officer not

below the rank o f Deputy Magistrate and Deputy Collector appointed by

the State Government in the Housing Department. After having a

309

registration certificate, the promoter is to get permission under Rule 4 to

construct any block or building or flat or to convert a building into flats.

Fee for Registration is Rupees 5 0 0 . '

For application for getting permission o f construction fees are

Rupees 2000, Rupees 4000 and Rupees 5000 for buildings o f estimated

expenditure upto Rupees 20,000,000, exceeding 20,000,000 but below

Rupees 50,000,000 and exceeding Rupees 50,000,000 respectively.

Section 10 o f the above Act directs a promoter to take steps for

formation o f Co-operative society. According to this Section if a minimum

number o f persons required to form a Co-operative Society have formed an

organisation and have taken flats, the promoter shall within a period o f two

months from the date o f taking flat by the last member o f such

organisation, submit an application to the Registrar for registration o f such

organisation as a Co-operative Society (by whatever name called) and shall

join, in respect o f the flats which have not taken, in such application for

membership o f the Co-operative Society.

It is now to comment that the Section 10 is conflicting with Section

2(g). Because, a promoter constructs or causes to be constructed a building

for the purpose o f transfer o f such building, according to Section 2(g) by

sale, gift or otherwise to any other person or to a Company, Co-operative

Society or Association o f persons. But by Section 10, the promoter is to

310

take steps for registration o f a Co-operative Society. As a Co-operative

Housing Society may be registered with a minimum no. o f 8 flat owners,

then in respect o f any building or buildings on a specific plot o f land

comprising equal to or more than 8 flats, a Co-operative society shall be

registered. It is further to comment that in any building with less than 8

flats for which a Co-operative Housing Society can not be registered, the

property may come under the purview o f the West Bengal Apartment

Ovmership Act, 1972.

So, the Section 10 should be amended in following ways ;

1) Section 2(g) o f the Act should be amended so that there remains

no conflict o f this Section with Section 10.

2) The organisation comprising flat owners should either be

registered under the West Bengal Co-operative Societies Act,

1983 or the property o f this organisation should come under the

purview o f the West Bengal Apartment Ownership Act, 1972 by

forming an Association o f all.

3) The organisation shall take steps in forming Co-operative

Society or subject the property under the Apartment Ownership

Act. The promoter shall have nothing to do in such purpose. He

may take leading part in it. For such proposed amendment,

suitable steps should be taken.

311

It has been discussed supra that at least four apartment owners are

required to form such an Association as per Clause 3(2) o f West Bengal

Apartment Ownership Bye-laws, 1974. Hence, it is not clear from the

Building Act, 1993, how less than 4 owners o f flats in a building shall

function when they can not form a Co-operative Housing Society or come

under the purview o f the West Bengal Apartment Ownership Act, 1972

and even they can not form a society under the West Bengal Societies

Registration Act, 1961 as at least seven persons are required to form a

society under Section 4 o f the later Act.

Besides, in Section 10 o f this Building Act, 1993, minimum no. o f

persons required to form a Co-operative can get a Co-operative Housing

Society registered. But if the prospective owners o f the remaining flats do

not, after purchasing their flats, want to become members o f the Co­

operative Society, there will arise conflict and complication. For an

example in a specified project 500 flats are constructed. 8 persons

purchased 8 flats and they got a Co-operative Housing Society registered.

These 8 persons shall control rest 492 persons in induction o f membership

o f the society. This is not at all desirable. Besides, these 492 persons may

afterwards try to form another Co-operative Housing Society.

Therefore, at the time o f entering into a written agreement for sale

with each person under Section 7, there should remain compulsory

provision that each such person shall be bound to become a member o f the

312

Co-operative Housing Society, Rule 8 o f the West Bengal Buildings

(Regulation o f Promotion o f Construction and Transfer by Promoters)

Rules, 1995 prescribes 12 particulars to be incorporated in, and the

documents (or copies) to be attached to, the Deed o f Agreement under

Section 7 o f the Act. With such particulars, another information for

compulsory membership in the Co-operative Housing Society to be formed

after getting possession o f the flats should be included in Rule 8 above.

4.4.1 Adjudication of Disputes :

Section 6 o f the West Bengal Building (Regulation o f Promotion

etc.) Act, 1993 provides a right to a purchaser to make an application in

prescribed form to such officer as the State Government may appoint for

adjudication o f disputes under Rule 7. The application for adjudication o f

dispute under Section 6 o f the Act shall be preferred in forms “G” before

the Authorised Officer who shall furnish the promoter with a copy o f such

application fixing a date for a written reply and shall thereafter fix a date o f

hearing and notify the same to the applicant and the promoter who may(

represent h im self personally or by an authorised representative. The

Authorised Officer, after hearing the parties, shall come to a decision

which shall be building on both parties.

The Memorandum o f appeal under Section 5 o f the West Bengal

Building (Regulation o f Promotion o f Construction etc.) Act, 1993 is to be

313

preferred by an aggrieved person to the appellate authority in a prescribed

form.

In respect o f the appeal, it is to comment that for any dispute

between a purchaser and a promoter, the purchaser can file a dispute before

the Authorised Officer. But, there should be also provisions giving rise to

right to the promoter to file a dispute under Section 6 also. Because, there

are instances when for the default o f the purchaser to make timely

payment, the construction may get a set back. For this, other purchasers

who contribute timely payment towards construction becomes affected.

Besides, there should be mentioned a time limit within which a purchaser

or a promoter ( if he is given right to prefer a dispute) shall file a dispute

under Section 6. The authority o f the Authorised Officer to entertain a

dispute should be fixed up to a period after delivering possession o f flats or

execution o f conveyance by promoter under Section 11 read with Rule 12.

There should be also a mention o f eligible parties to a dispute. The parties

may be a purchaser and a promoter. A dispute may be filled by them

against each other. A purchaser should also prefer a dispute against another

purchaser. Besides, there is no time limit for adjudication o f a dispute

under Rule 7 or under Section 6. The time limit for such adjudication may

be 3 months or 6 months initially and this may be subject to extension if

necessary depending upon the volume or gravity o f the dispute.

314

Like appeal under Section 5 read with Rule 6 preferred by an

aggrieved promoter by an order o f the authorised officer under Section 3(5)

for refusal to register the name o f the applicant promoter or to grant

permission to construct the building or Section 4(2) in the event o f

cancellation o f certificate o f registration by the Authorised Officer,

provision for appeal against a decision o f a dispute by the Authorised

Officer should be embodied. Any purchaser filling or defending a dispute

or any promoter filling a dispute or defending a dispute should be given a

right to prefer an appeal to the Appellate Authority i.e. the State

Government in the Housing Department. The Secretary or Special

Secretary o f the Department may hear the appeal following similar

procedure as in Rule 6.

4.4.2 Restriction of a Promoter:

From the definition under Section 2(g) it is to comment that, a

promoter shall construct or cause to be constructed a building on a plot and

transfer the whole subsequently but by this definition he has no right to

retain any flat for his own. On the other hand, from the definition under

Section 2(h), a “purchaser” shall enter under Section 7 into an agreement

with the promoter for the purchase o f a flat. So, a promoter can not be a

purchaser. I f a promoter wants to possess a flat, there should be some

provisions in this Act or the Rules for this purpose. “Promoter is a person

who constructs under Section 2(g)(ii) in which a person who transfers by

315

sale, gift or otherwise the building. Hence, the true owner o f the building

can also not retain a flat in his name. So, there should also remain a

provision in the Act or the Rules giving rise to a right o f such promoter to

possess a flat also.

4.5 Summing up of Co-operative Law and Apartment Ownership

L a w :

The Group Housing in the West Bengal Co-operative Societies Act,

1993 and its Rules thereunder is guided by a Special Chapter provided in

the said Act and Rules. Co-operative Housing Societies are an extra­

ordinary type o f society unlike other types o f Societies like Primary

Agriculture Co-operative Society (PACS), Primary Co-operative

Agricultural Marketing Society (PAMS), Co-operative Bank, Milk

Producers’ Co-operative Society etc. In other States o f India, all types o f

Co-operative Societies are governed by a single law. There is no extra

chapter for Group Housing. The State o f West Bengal only introduced a

special chapter, though all provisions are not adequate to solve several

problems arising in Co-operative Housing Societies. The areas o f

amendments have been identified in this chapter both in Co-operative law

and Apartment Ownership law. In Co-operative Sector the area is more

vast than in the Apartment Ownership Sector. Because, in Co-operative

Sector, Group Housing starts from initial stage i.e. from acquiring land on

which the Co-operative Society shall erect either individual building or

316

multi-storied building whereas in the other Sector, common function starts

after acquiring ownership o f apartments or flats in a building which the

owners subject it under the purview o f Apartment Ownership Act. That

means, in Co-operative Sector, procurement o f land, construction thereon,

allotment to individual persons, maintenance o f buildings with common

areas and facilities and its services are the serial steps o f a Co-operative

Housing Society. But in the private sector, only maintenance and services

are the main function o f the apartment Owners’ Association. Therefore, the

main thrust in Group Housing should be imposed on the Co-operative

Housing Society.

In private sector, West Bengal Apartment Ownership Act, 1972 is

applicable to a specific type o f immovable property such as apartment or

flats, the sole owner or ovmers o f which shall execute and register a

Declaration under Section 10. Apartments for mainly residential purposes

in a Group Housing with owners who make a declaration, which must also

be registered, come within the purview o f this Act.

The sine quo non o f application o f the West Bengal Apartment

Ownership Act to apartments in a Group Building is the submission o f a

declaration and registration thereof on approval o f the Competent

Authority. An apartment owner owns not only the apartment but common

areas and facilities. But he is entitled to an undivided interest in the

common areas and facilities in the percentage expressed in the declaration.

317

The A ct lacks in some areas which have been discussed supra. The

loopholes, therefore, are to be plugged by amending the present provisions

o f the above Act in some places.

318

319

E ndnotes :

1. Chapter IX o f West Bengal Co-operative Societies Act, 1983 and

West Bengal Co-operative Societies Rules, 1987.

2. Act XVI o f 1972 as amended by Act XXVIII o f 1996, Act XXXVI

o f 1997, Act XVIII o f 1998 and Act 34 o f 2001.

3. Preamble o f the W .B. Apartment Ownership Act, 1972.

4. Section 85, WBCS Act, 1983 on Membership or Promotership o f

Co-operative Housing Society.

5. Rule 135(1), W .B.C.S. Rules, 1987.

6. Rule 135(2), . . . i b i d . . .

7. Section 70(2) W .B.C.S. Act, 1983.

8. Previously in W.B.C.S Act, 1972 but now omitted in the W.B.C.S.

Act, 1983.

9. Section 3(k), W.B. Apartment Ownership Act, 1972.

10. Rule 130(c), W.B.C.S Rules, 1987.

11. Rule 1 3 1 ( a ) . . . i b i d . . .

12. Rule 1 3 1 ( a ) . . . i b i d . . .

13. Proviso to Section 13(2) W.B.C.S. Act, 1983.

14. Rule 8, W .B.C.S. Rules, 1987.

320

15. Rule 141 ... ibid ...

16. Rule 11 ... ibid ...

17. Rule 9 ( 1 ) . . . ibid ... and Form I o f First Schedule.

18. Section 13(1), W.B.C.S. Act, 1983.

19. Rule 8(3), W .B.C.S. Rules, 1987

20. Rule 30(b), . . . ibid.. .

21. Rule 149, ... ibid ...

22. Section 85(2) W.B.C.S. Act, 1983.

23. Rule 11, W .B.C.S. Rules, 1987.

24. Rule 132, . . . i b i d . . .

25. Section 86, WBCS Act, 1983.

26. Rule 133(1), W .B.C.S. Rules, 1987

27. Rule 133(2) . . . ibid. . .

28. Rule 133(2) Proviso ... ibid ...

29. Rule 133(3) . . . ibid. . .

30. Rule 133(4) . . . ibid...

31. Section 85(10), W.B.C.S. Act, 1983.

32. Rule 144 W .B.C.S. Rules, 1987.

33. Rule 18 ... ibid ...

34. R u le 23 . . . i b i d . . .

35. Rule 2 4 . . . i b i d . . .

36. Rule 24(3) 2^^ proviso, W.B.C.S. Rules, 1987.

37. R u le25, . . . ib id. . .

38. Section 60, W .B.C.S. Act, 1983.

39. Proviso to Section 60(2)(a) and Proviso to Section 60(2)(b) ...

ibid...

40. Substituted by Section 3, W.B.Coop. Societies (Amendment) Act,

1995 (W est Bengal Act XX o f 1995)

41. Rule 134(1), W .B.C.S. Rules, 1987.

42. Rule 134(2), . . . i b i d . . .

43. Section 13(2), Proviso, W.B.C.S. Act, 1983.

44. Section 87(2), ... ibid ...

45. Rule 139(f), W .B.C.S. Rules, 1987

46. Section 3(d), The W.B. Apartment Ownership Act, 1972.

47. Rule 150, W .B.C.S. Rules, 1987.

48. Rule 152(1), . . . i b i d . . .

49. Rule 140, . . . i b i d . . .

50. Rule 137(1) . . . ibid. . .

51. Rule 137(2) . . . ibid. . .

52. Rule 137(3) . . . ibid. . .

53. Section 95, W.B.C.S. Act, 1983.

321

54. Rule 171, W .B.C.S. Rules, 1987.

55. Rule 172, . . . i b i d . . .

56. Rule 179, . . . i b i d . . .

57. Section 135, W .B.C.S. Act, 1983.

58. Section 96(5), ( 6 ) . . . ibid. . .

59. Section 87(1), ... ibid ...

60. Section 87( 2) . . . ibid ...

61. Section 60(2)(a), proviso and Section 60(2)(b) proviso, West Bengal

Co-operative societies Act, 1983.

62. Section 87 ( 3) . . . ibid ...

63. Section 8 7( 5 ) . . . ibid ...

64. Section 69. W .B.C.S. Act, 1983.

65. Section 12, Indian Contract Act, 1872.

66. Section 6 4 , . . . ibid ...

67. Section 30, Indian Partnership Act, 1932.

68. Section 2(18), W.B.C.S. Act, 1983.

69. Section 2 ( 9 ) . . . ibid ..

70. Section 2(2) ... ibid ...

71. S ection 33 ... ibid ...

72. Rule 136(l)(ii) W.B.C.S. Rules, 1987.

322

73. Rule 133(4) . . . ibid. . .

74. Rule 139, . . . i b i d . . .

75. Bye-law No.52( l ) o f the Model Bye-laws o f a Co-operative

Housing Society.

76. Rule 152(2), W .B.C.S. Rules, 1987.

77. Appeal N o. 25/2000

78. Clause 8(c) o f Bye-laws o f the Co-op. Housing Society.

79. Section 85(9), W .B.C.S. Act, 1983.

80. Notification N o.2522 Co.op/A/3P-20/2001 issued by Co-operation

Department, Govt, o f West Bengal.

81. Section 30, W .B.C.S. Act, 1983.

82. Serial 9 o f Third Schedule, ... ibid ...

83. Section 87, ... ibid ...

84. Section 3 o f the W .B.C.S. (Amendment) Act, 1995

85. Section 81 o f W .B.C.S. Act, 1983.

86. Section 89 ... ibid ...

87. Section 2(g), W. B. Premises Tenancy Act, 1997.

88. Section 2 ( e ) ... ibid ...

89. Section 85(1), W .B.C.S. Act, 1983.

90. Procedure followed by the Registrar o f Co-operative Societies.

91. Section 79, W .B.C.S. Act, 1983.

323

92. Rule 127, W .B.C.S. Rules, 1987.

93. Explanation to Section 13(2), W.B .C .S . Act, 1983.

94. Form N o. XII o f Schedule 1 appended to the W .B.C.S. Rules, 1987

read with Rule 70(ii).

95. Section 69(4), W .B.C.S. Act, 1983.

96. Section 2(28), ... ibid ...

97. Section 80(1 ) ( b ) ... ibid ...

98. Section 8 0( 2 ) , . . ibid ...

99. Rule 137, W .B.C.S. Rules, 1987.

100. Section 137(1), W.B.C.S. Act, 1983.

101. Rule 128(1), W .B.C.S. Rules, 1987

102. Section 29, The Hindu Succession Act, 1956

103. Section 8 , . . . ibid ...

104. Section 85(12), W .B.C.S. Act, 1983

105. Section 136, ... ibid ...

106. Section 2, The W est Bengal Apartment Ownership Act, 1972.

107. Section 3 ( a ) ... ibid ...

108. Section 3 ( i a ) ... ibid ...

109. Section 3 ( d ) ... ibid ...

110. Section 4A ... ibid ...

324

325

111. Articles 254(2) The Constitution o f India.

112. Section 11, the W.B. Apartment Ownership Act, 1972.

113. Section 3 ( k ) ... ibid ...

114. Rule 3, W. B. Apartment Ownership Rules, 1974.

115. Clause 3 o f W .B. Apartment Ownership Bye-laws, 1974.

116. Rule 6( 1 )(a), W.B. Apartment Ownership Rules, 1974.

117. Section lOA, W.B. Apartment Ownership Act, 1972.

118. Rule 4, W.B. Apartment Ownership Rules, 1974.

119. Clause 5(2), W. B. Apartment Ownership Bye-laws, 1974.

120. Clause 3 ( 2 ) . . . ibid ...

121. Clause 8 ... ibid ...

122. Clausee 9 ( 3 ) . . . ibid ...

123. Clause 11 ... ibid ...

124. Clause 12 ... ibid ...

125. Section 16B, W. B. Apartment Ownership Act, 1972.

126. Section 2 ( c ) ... ibid ...

127. Clause 20, W. B. Apartment Ownership Bye-laws, 1974.

128. Section 4(2), Criminal Procedure Code, 1904.

129. West Bengal Act XX o f 1993.

130. Section 2(g), West Bengal Building (Regulation o f Promotion o f

Construction and Transfer by promoters) Act, 1993.

131. Rule 3, W. B. Building (Regulation o f Promotion etc.) Rules, 1995.

326