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Author: Debasis Guin, Advocate High Court, Calcutta  

In terms of the provision of Section 92 of the West Bengal Co- Operative Societies Act, 2006 hereinafter referred to as ‘the said Act’ a member or members of a co-operative Housing Society hereinafter referred to as ‘the said society’ who  has been allotted and/or reallotted  an apartment and/or flat in a building including the undivided interest in the common areas and facilities ,by the said society  with such title and interest, as may be granted under the prescribed conditions (prescribed means prescribed by Rules  made under the said Act  as per definition provided in Section 4(51) of the said Act) ,and subject to the provision of Sub section (1) of Section 61 an instrument of transfer in accordance with the provisions of Transfer of Property Act, 1882 (Act 4 of 1882) and the Registration Act ,1908 (Act 16 of 1908) and who is entitled to such flat and/or apartment with right, title and interest which is heritable and transferable immovable property within the meaning of any law for the time being in force having transferable right of such immovable property, he /she /they can transfer such right ,title and interest of the said flat and/or apartment  but such flat and/or apartment can not be partitioned and/or sub divided.

So in terms of the provisions of Section 92 of the said Act the member or members may transfer his/her/their flat and/or apartment, which has been allotted and/or reallotted by the society,  by way of sale or usufructuary Mortgage, as defined in the Transfer of Property Act 1882 ,on one of  the grounds as specified in Rule 138 (2) of the West Bengal Co-operative Societies Rules, 2011 hereinafter referred to as “the said Rules”, The grounds as provided in Rule 138(2) of the said Rules  as follows:

“Rule 138(2) (i) That the member has been involved in debts and the transfer by way of sale or usufructuary mortgage is necessary to pay off his creditors.

 (ii) That the member is compelled to shift from the locality due to unavoidable circumstances beyond the control of the member.

(iii) That the member is in urgent need of money to meet the expenses of marriage or of education of his son or daughter or that the member is in urgent need of money to meet urgent medical expenses of any of the members of his family or any person fully dependent on him.

 (iv) Such other grounds analogous to those mentioned above as the Board might consider reasonable and justifiable.”

Further Rule 138(2) (v) of the said Rules provides as follows:

“Rule 138(2) (v) for obtaining written consent of the housing co operative society in terms of sub section (3) of section 92, the member shall apply in duplicate to the co operative society with credentials of the transferee and with evidence of circumstances under which he/she is compelled to transfer the flat”

So in terms of Rule 138(2) (v) of the said Rules  the member who desired to transfer his flat and/or apartment on any one of the grounds as mentioned in Rule 138(2) (i) to (iv) of the said Rules, shall have to apply in duplicate to the said society with credentials of the transferee and with evidence of circumstances by which he /she /they is /are being compelled to transfer the flat and/or apartment, to obtain a written consent of the said society in terms  of Rule 138(1) of the said Rules, which provides as

“Rule 138(1): In all cases of transfer and letting out of land, house or apartment written consent of the society shall be required “

So, in terms of the aforesaid provision of Rule 138(1) of the said Rules an application is to be made by the member concerned by giving full details of the transferee who has the eligibility for being a member of the said society, and the transferee is genuine need for residential accommodation, for the satisfaction of the society before giving such consent in terms of Rule 131 (3)(a) of the said Rules.

Rule 131(3) (a) provides as follows:

“Rule 131(3) (a) For the transfer of land or house or apartment a member shall obtain a written consent of the society and before giving such consent the society shall satisfy itself that-

(i) the transferee is eligible for being a member of the society

(ii) the transferee has genuine need for residential accommodation.

(iii) the transferor has paid off his outstanding liabilities to the society or the transferee undertaken to take over such liabilities of the transferor.”

             That Rule 131(3)(a) (iv) of the said Rules it has been provided that the transferee formally applies for membership of the society with requisite documents like as the copy of bipartite agreement of the proposed deal of transfer and a declaration to the effect that he/she /they will submit a certified copy of the registered sale deed to the society. Similarly, as  per Rule 131(1) (i) to (iv) of the said Rules provides that the intending transferee must submit the following documents before the Society

(i) Declaration in the form of an affidavit in prescribed form (I,e Form XXVIII-A appended in the said Rules ) in terms of the provision of Section 87 (2) of the said Act which are quoted below:

“87(2) No person shall be admitted as a member or function as an organizer of a housing co-operative Society unti8l he has made a declaration to be sworn by him with the requirements specified in clauses (a) to (f) of sub section (1) “

Section 87(1) (a) to (f) of the said Act is quoted below:

87(1) In addition to the requirements under section 63, an individual shall be eligible for membership of a housing Co- operative society if.

(a) he is a Citizen of India or a non- resident Indian.

(b) He is not a member of any other housing co-operative society in W3st Bengal

(c) he or any member of his family does not own any plot of Bastu land, house or flat within the local limits of any municipal corporation or municipality or town or any Gram Panchayat or any notified area authority where the housing co operative society is situated other than the one in relation to which the membership of a housing co operative society is applied for by him under this section”

(d) he is a permanent resident of west Bengal or intends to reside in West Bengal permanently within as period of one year form the date of application.

(e) he has genuine need for housing or additional accommodation from such co operative society land

(f) he has not entered into any contract with the housing co-operative society in the mater of any work constructional or otherwise relating to a project of the co- operative society.”

(ii) Two recent passport size photograph s duly attested by himself

(iii) Copy of salary certificate or copy of Form 16 showing deduction of P. Tax (in case of salaried person)

(iv) copy of professional tax enrolment certificate or professional tax registration certificate as the case may be in case of professional)

(v) copy of Pan card or PPO or P. Tax clearance certificate in case of another category.

(vi) that who has no liability to professional tax in such case he also submits an declaration to that effect that he has no liability to pay professional tax.

(vii) Application for nomination in prescribed form (Form XXVIII-B appended to the Rules)

Further subject to eligibility of the intending transferee as member of the said society in accordance with the provision of section 63 and 64 of the said Act.

Section 63 of the said Act is quoted below”

“63: Eligibility for membership of co operative society: (1) Subject to the byelaws the following person shall be eligible for membership of co -operative Society

(a) an individual competent to contract under section 11 of the Indian Contract Act 1872 (Act 9 of 1872) and a permanent resident of India.

 Section 11 of the Contract Act is quoted below

“Section 11. Who are competent to contract? —Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject. —Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

(b) any other Co-operative society.

(c) the State Government.

(d) a self-help groups.

(e) any financing bank:

Provided that a student who has not attained the age of majority according to the law shall be eligible for membership of Co-operative society firmed in an education institution to which he belongs.

(2) An employee of the Co-operative society who is eligible under sub-section (1) to be its member shall on an application made by him be admitted as a member of such Co-operative society but shall have no right to vote at an election of or for being elected as a director of the board or delegate to any other Co-operative society:

Provided that an employee member of an engineers, labour, industrial, service, transport and the like Co-operative societies shall have right to vote at an election of or for being elected as a director of the board or delegate to any other Co-operative society.

(3) Notwithstanding anything to the contrary contained elsewhere in this Act, a Co-operative society may admit [an application] any person, any association or body of persons (whether incorporated or not) as a nominal member who shall not be entitled to any share in any form in the assets or profit of the Co-operative society and shall not be eligible to be elected as director of the board and shall have no right to attend the general meeting of the Co-operative society but shall have such right and privilege and shall be subject to such liabilities of a member as may be specified in the by-laws.

(4) Notwithstanding anything to the contrary contained elsewhere in this Act, a Co-operative society may admit the joint members and may issue a single share in their joint names. Such members shall, except in such cases as may be prescribed, ordinarily enjoy privilege jointly, but voting right shall be exercised by the first named member and in his/her absence by the other member.

(5) Notwithstanding anything contained in sub-section (1), no Central Co-operative society shall have right to admit individuals to its membership otherwise than as nominal members in terms of sub-section (3) and the existing individual members shall be deemed to be nominal members for the purpose of this Act:

Provided that the existing individual members of a Central Co-operative society shall have right to withdraw, after serving three months’ notice on the Co-operative society concerned, the share capital contributed by such members within one month from the date of acceptance of such withdrawal and the concerned Co-operative society shall refund the same to such members after deduction of the debts, if any, due to the concerned Co-operative society from such members.”

Similarly subject to the provision of section 64 of the said Act which is quoted below:

“64. Admission as member. – (1) Any person eligible for membership under sub-section (1) of section 63 may apply to the Co-operative society for admission as a member thereof in the form and manner as prescribed.

(2) Every application for membership shall be disposed of by the Co-operative society within a period of forty-five days from the date of receipt of application. The decision of the Co-operative society on such application shall be communicated to the applicant within fifteen days from the date of such decision. If no such communication is received, the application shall be deemed to have been accepted on the expiry of sixty days from the date of receipt of the application by the Co-operative society.

(3) No Co-operative society shall, without sufficient cause refuse admission to any person duly qualified for membership under this Act and the by-laws of the Co-operative society. Where the application is so refused, the decision with reason shall be communicated by registered post or by hand delivery to such person within fifteen days from the date of decision. Any person whose application for membership has been refused by the Co-operative society may appeal to the Registrar within thirty days from the date of receipt of the decision communicated to him.

(4) The Registrar shall dispose of the appeal within sixty days from the date of receipt of the appeal and pass such order, as he thinks fit and such order shall be final.”.

Further subject to the provision of Rules 107 of the said rules which is quoted below:

“Rule 107: Eligibility for Membership: – No person, qualified to be a member of a co-operative society under the Act or the Rules or the bye laws shall be excluded from membership:

        Provided that without the permission of the Registrar

(i) No person shall be entitled to membership of any society with unlimited liability who is or has been at any time during the two preceding years, a member of any other society with limited liability

(ii) no person shall be entitled to membership of any Credit society even with limited liability if he is a member of or is indebted to, any other such society until he has obtained in writing the consent of the society of which he is already a member.”

 

Further as per Rule 108 of the said Rules the intending transferee must apply to such co-operative society in form XXVIII and such application shall be addressed to the Chief Executive Officer of the society by whatever designation he may be called.

Further subject to the provision of Rule 111 of the said Rules which is quoted below:

“Rule 111 Exercise of right of membership and liability of the members- (1) Before a member may exercise rights of membership, he shall

(i) sign a declaration in such form as may be required by the Board, undertaking that he shall be bound by the bye laws of the socie4ty

(ii)Sign the register of members and

(iii) make payment of share money wherever necessary

Provided that the requirements of the provisions of this clause shall be communicated to a member within fifteen days from the date of enrolment of such member.”

Further subject to the restriction of membership as per provision of Rule 18 of the said Rules which is quoted below.

 

“Rule 18: Prohibition of admission of members and transfer of shares on the eve of general meeting- No co operative society shall admit a member or transfer shares of members within thirty days prior to the date of the annual general meeting in which election of the directors of the board is to be held and till assumption of charge by the new Board.”

That as per provision of section 64(3) of the said Act no co-operative society shall without sufficient cause refuse admission to any person duly qualified for membership under the Act and the bye laws of the co-operative society. Where the application is so refused, the decision with reason shall be communicated by registered post or by hand delivery to such person within fifteen days from the date of decision. Any person whose application for membership has been refused by the co-operative society may appeal to the Registrar within thirty days from the date of receipt of the decision communicated to him and the Registrar in terms of sub-Section (4) of section 64 shall dispose of the appeal within sixty days from the date of receipt of the appeal and pass such order, as he thinks fit and such order shall be final. Similarly Rule 110 of the said Rules it has prov8ided that in case of refusal on the part of the society to admit such person as member appeal is to be preferred within 30 days from the date of communication of the decision as per Rule 110(2) of the said Rules. Further Rule 138 (2) (vii) and (viii) also provides for appeal

Now as per above discussion it is clear that a member who has the right title and interest in respect of a flat and/or apartment in a co operative Housing society Ltd may transfer his flat and/or apartment to any person or persons who has/have eligibility to be a member of the said society.

The formality in short cut is thus.

(1) the Transferor /member of the society shall have to submit a written application seeking written consent of the society for transfer of his flat and/or apartment specified in such application the ground for such transfer as provided in Rule 138(2) (i) to (iv) of the said Rules.

(2) For obtaining consent of the Housing Co-operative Society the member shall apply in duplicate to the co-operative society with credential of the transferee and with evidence of circumstances under which he/she is compelled to transfer the flat (Rule 138(v) of the said Rules).

(3)  The Transferee shall apply for membership of the society with requisite documents like copy of bipartite agreement of the proposed deal of transfer and a declaration to the effect that he will submit a certified copy of the registered sale deed to the society. (Rule 131(3)(a) (iv) of the said Rules)

(4) Along with the application for membership the intending transferee in prescribed form (form XXVIII appended to the Rules) shall submit the following documents before the Co -operative society.

(i) Declaration in the form of an affidavit in prescribed form (XXVIII-A appended in the Rules) sworn before ethe Executive Magistrate or Judicial Magistrate in accordance with the requirements as provided in Section 87 (a) to (f) of the said Act.

(ii) Two recent passport size photograph s duly attested by himself

(iii) Copy of salary certificate or copy of Form 16 showing deduction of P. Tax (in case of salaried person)

(iv) copy of professional tax enrolment certificate or professional tax registration certificate as the case may be in case of professional)

(v) copy of Pan card or PPO or P. Tax clearance certificate in case of another category.

(vi) that who has no liability to professional tax in such case he also submits a declaration to that effect that he has no liability to pay professional tax.

(vii) Application for nomination in prescribed form (Form XXVIII-B appended to the Rules)

(5) The society shall take decision on the said application for granting consent to the transferor member having been satisfied regarding eligibility of the transferee as member and the ground for such transfer by the transferor member and also admission of the transferee  as member after completion of the transfer of the flat by way of sale by a registered instrument within 45 days from the date of receip0t of the said application a in default to take decision it will be deemed that such application has been accepted.

(6)  after obtaining written consent from the society to transfer the flat and/or apartment the sale deed is to be registered and in such sale deed the society is also required to be made party as confirming party thereby confirming such sale.

(7) In case of refusal on the part of the society to grant permission and to admit the transferee as member of the society such decision is to be communicated by the society by registered post or by hand delivery within fifteen days from the date of taking such decision.

(8)   The aggrieved person against such decision of the society may prefer appeal within 30 days from the date of receipt of the said communication before the Registrar.

(9) The Registrar shall dispose of the said appeal within 60 days from the date of receipt of the said appeal and such order shall be final.

Ref: (1)  West Bengal Co- Operative Societies Act,2006 (2) West Bengal Co-operative Societies Rules,2011.