Developers do not Have to Maintain Flat or Apartment after Registration is Completed and Property Handed Over

The Calcutta High Court in Merlin Tf Lake View & Ors vs Ruchir Jain & Ors on 26 August, 2015, held that:

“Once the apartments are constructed and registration is completed, we fail to understand how the maintenance charges could be borne by the developer. It has to be borne by the respective owners of apartments or the tenants depending upon the agreement between the owner of the flat and the tenant who occupies a particular flat.”

The Court also directed the Special Officer appointed by the Court to:

“collect the said money from the flat owners who are refusing or reluctant to pay at the rate of Rs.2 per sq.ft. towards the maintenance charges.”

It is pertinent to note that maintenance charges and maintenance of the apartments, after the building is constructed, the apartments ready and handed over, is upon the owners and residents of such apartments. Forming an apartment association is the best option to deal with apartment maintenance charges. However, if no association can be formed, then the majority of the owners should come together to initiate process of registering an association. It is an easy process and with the coming of the Amendment Act of 2015, all owners are not required to form the association.


For those of you who are looking for ways to file consumer complaints against those who are negligent in their services or goods. The West Bengal government has recently launched an online complaint portal that will help them to tackle such complaints effectively.

You can now file complaints here:

Here is more information about how to register on the site before you can file complaints.

Key numbers are available here:

In continuation to the earlier analysis of thika tenancy in West Bengal :

It has now come to light that the current West Bengal government is trying to bring a one window mechanism to help thika tenants and bharatias regulate their holding. Under the new law, the thika tenants or bharatias will not require the No Objection Certificate (NOC) from the Thika Controller before applying to the Kolkata Municipal Corporation (KMC) to bring about changes to the structures. Th government is trying to provide Occupancy Certificates to all Thika Tenants that allows them to directly apply for building plan from the KMC. Under the system, thika tenants will no longer be required to wait to get approved NOC from the Thika Controller.

This is a great initiative by the government to cut down on the multiple regulations that complicate the process of Thika Tenancy in West Bengal. However, it will also create chaos with realtors rushing to the thika tenants to get power of attorneys that will then allow them to obtain building plans sanctioned by the KMC. For thika tenants living in poverty and slums, this move allows them to bargain and create value for the land they are holding. However, most thika tenants are unaware of their rights and realtors are lurking to take advantage of them.

This will lead to further disputes and unless effectively controlled, this initiative can backfire.

You can read more about this here:

As of now over 28,000 applications for construction of buildings on thika and khatal land have been pending with the KMC for the past 10 years and it is to be seen how the KMC handles this new ruling. Further, any amendment to the law will be highly contested and it is to be seen how the courts adjudicate the matter.

Setting up a business in India is set to become simpler and easier in the coming years as the government has already set up several measures to reduce the time required to set up business in India.

To get things done electronically, the company must first apply to get a digital signature certificate (DSC) from MCA authorized agency or through their website here:

Further, the director of the company would require director identification number (DIN) which can be obtained here:

Once the DSC is acquired, the company can e-file INC-29 form and send various supporting documents to Ministry of Corporate Affairs (MCA) to get approval for the business.

The time required for the entire process is approximately 2 to 3 weeks and the total cost of setting up business in India is approximately Rs 25000 to Rs 30000 (around USD $500), depending on the type of company.

To learn more about e-filing procedure click here:

According to the latest update in the FAQs by the Department of Cooperation, the cooperative housing society cannot charge any fee or donation for transfer of membership from the transferor/member.

This is the latest update from the previous position, where, the society could charge upto 0.5% of the sale value in terms order no. 2522 dated 23.6.2003 of the Cooperation Department.

However, according to the latest update, it is evident that the society cannot charge anything extra and if they do, then the member/transferor or transferee must immediately bring this to the notice of the Registrar.

Please check more details here:


India is one of the fastest growing economies in the world and by 2016-17 it will be the biggest economy in the world. India’s growth rate is destined to touch 8% by 2016-17. Further, by 2050, it is believed India will overtake all countries in its Purchasing Power Parity (PPP).

However, doing business in India is very difficult and the World Bank ranked India 142nd among 189 economies in its Ease of Doing Business Report, 2015. Some problems that businesses face in India relates to lack of effective taxation laws, land ownership laws, governmental regulations and clearances required to set up businesses in India, etc. Most importantly, the legal system needs upgrade to effectively implement the laws in a timely fashion.

Transaction costs of starting and operating a business are also very high  India and there are several regulations that business owners have to follows such as obtaining Tax Account Number (TAN), Permanent Account Number (PAN), Value Added Tax (VAT), Employees Provident Fund (EPF), Employees State Insurance (ESI), Excise Department, etc. It has been seen that setting up a business in India, typically takes about a month whereas it takes one day in New Zealand, three days in Singapore and Rwanda, nine days in Mexico and 19 days in South Africa. In India, it takes 1420 days to enforce a contract which has 46 procedures. India’s rank on this parameter is 182nd out of 183; and, it takes seven years to resolve solvency with barely 20 per cent recovery rate. An entrepreneur spends almost 254 hours per year in paying taxes while registering a property in India takes almost 44 days.
If an entrepreneur in India thinks about a start-up then he has to obtain a number of clearances and permits from the central and state governments, like; a no objection certificate from Pollution Control Board, land use
permits, power, water and sewerage connections, etc. before getting along with his business. On top of that, there are number of restrictions on exiting the business and it takes almost a year to remove the company’s name from government official registrars.

However, to counter such effects, the present government is taking various positive steps that will reduce the red tape in doing business in India. Currently, the government’s “Make in India” policy promises to give a boost to the manufacturing sector to 20% from its current 16%. The government has already circulated a draft national entrepreneurship policy to reduce the time of starting a business from the present 29 days to about two weeks. To achieve this goal, the Government will:

(i) introduce Single Unique Enterprise Identity Number (SUEIN) that a new enterprise could use for various registrations including taxes and social security like, EPF and ESI. Once SUEIN is available, the information could be
forwarded to all the relevant regulatory and support agencies, which in turn use it to facilitate the process of setting up the enterprise.
(ii) encourage states to introduce a ‘Single Composite Application Form’ (SCAF) that will help entrepreneurs file a single application for obtaining all the approvals and clearances from various government authorities. Some states
have already introduced the SCAF; other state governments will be encouraged to follow suit. To this effect, the government has already set up the eBiz website that will allow entrepreneurs and businesses the ease of doing business in India.
(iii) encourage state governments to strengthen their Single Window System on the lines of the states like Andhra Pradesh, Chhattisgarh, Odisha, Rajasthan, under which a High Power Committee is constituted to give all the necessary clearances for setting up a business. The SCAF system will also be implemented under these empowered committees.
(iv) provide on-line access to application forms and other relevant information on availability of land, water and power connection, tariffs, incentive policy, rules, regulations and procedures, etc., to potential entrepreneurs.
(v) convert the present District Industries Centres (DICs) into Business Development Centres (BDCs) with an objective to provide technical and procedural handholding support and counselling to pre-start-up, nascent,
early start up and growth ventures. These BDCs will be governed by an independent Governing Board with successful entrepreneurs in the majority (At least 1/3rd members will be successful entrepreneurs, including successful women entrepreneurs, below the age of 30 years). A successful local entrepreneur will be its Chairperson.
(vi) assess the feasibility of setting up special ‘Fast Track Commercial Courts’ (FTCCs) to settle commercial disputes and cases related to enforcement of contracts and solvency/bankruptcy, within a stipulated, reasonable timeframe. The government will also encourage state governments in setting up FTCCs.
(vii) permit flexibility to start-ups in ‘hiring and retaining’ workforce for operational adjustments and rationalisation during the first three years of operation of an enterprise, assuming that by the end of three years it will either stabilise and grow or become sick and close down.
(viii) allow easy exit to enterprises if they have been in operation for less than three years. Such enterprises will be facilitated to close their operations, if not found viable, within a period of three months.
Acknowledging the information deficit facing nascent entrepreneurs, the Government will also:
(i) set up a One-Stop-Shop that will provide optimal information services to start ups and existing entrepreneurs., (on the lines of ‘One Stop Capital Shops’ in the USA, ‘Direct Access Government Online Resource’ in the UK and ‘EnterpriseOne’ in Singapore) to facilitate easy access of entrepreneurs to ‘online information’ at the click of the mouse. It will be housed in the Ministry of MSME till a better alternative is found. Other relevant ministries like the Ministry of Commerce, Ministry of Rural Development, Department of Science and Technology, etc. will be encouraged to join hands in this endeavour.
(ii) create an all-encompassing website on Entrepreneurship as a one point information kiosk on commercial information which will include market related information on prospects and trends, international business environment and cautions wherever necessary, information on ‘doing business with a particular country’, new emerging technologies and their sources, information on technologies that have potential of commercialisation and are available with public funded research organisations, etc.
(iii) bring out ‘periodically updated’ Entrepreneur Information Handbooks containing guidelines on all the procedures and formalities of setting up and operating a business and accessing support infrastructure, in Hindi and English as well as in regional languages. This source will be made available in both hard as well as soft form.

The policy also suggests:

(i) create district, state and national level ‘Entrepreneurship Ambassadors’ from amongst successful entrepreneurs to recognize their success and achievements.

(ii) facilitate setting up of ‘Young Entrepreneurs’ Consortium’ (of entrepreneurs below 30 years of age) at all levels (district, state and national levels) with the mandate to seek their support in promoting entrepreneurship in their areas by delivering motivational lectures and organising various events around the theme of entrepreneurship and development work (a la Teach for India and Yuva Unstoppable), by involving youth.

(iii) introduce a ‘Give An Entrepreneurial Hour’ scheme to encourage established entrepreneurs to commit 1-hour a month for promotion of entrepreneurship by addressing students of schools, colleges and other groups of youth, in addition to providing hand-holding support to start ups, at local level.

(iv) introduce ‘Young Achievers’ Awards’ (for both men and women entrepreneurs separately) at all levels viz., district, state and national levels to recognise the achievements of entrepreneurs below the age of 30 years. These awards will be coordinated by District Industries Centres at the district level, Commissionerate/Directorate of Industries at the state level and Ministry of MSME at the national level.

(v)encourage media to cover and publicise entrepreneurship related events, including the ‘Award Functions’ and host shows projecting achievements of young entrepreneurs at all levels.

(vi) involve leading industry and business associations like Federation of Indian Chamber of Commerce and Industry (FICCI), Confederation of Indian Industry (CII), the Associated Chambers of Commerce & Industry of India (ASSOCHAM), state level Chambers of Commerce and Industries, sector specific industry associations like NASSCOM, in accomplishing the tasks stated above.

All these measures will definitely help India turn into an entrepreneurial hub in this world. Further, the government should also ease the land acquisition process in India and providing funding avenues for Micro Small and Medium Sized Enterprises (MSME).

In taxation, I think implementation of Goods and Services Tax (GST) will be a welcome move as it will reduce the discretionary nature of taxes. With all these measures, India is the best place to start a business and foreign investors are looking towards India for further changes. Already, there is a very positive mood in the business world and it will continue to grow in future.

Today, most developers are selling stilt car parking separately but it is illegal as held by the Supreme Court. Common areas cannot be sold by the Builder/Promoter but the Co-operative Society can regulate such spaces to allow parking to the members of the society.

The Supreme Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited held as under :

“49 The question then is as to whether the stilted portion or stilt area of building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.

65 ……..The promoter has no right to sell any portion of such building which is not a “flat” within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right which remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell “stilt parking space” as these are neither a “flat” nor appurtenant or attachment to a “flat”.”

But we have already held that `stilt parking space’ is not covered by the term `garage’ much less a `flat’ and that it is part of `common areas’. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas’ of the building developed by the promoter, the only right that the
promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat’ under Section 2(a-1) nor `garage’ within the meaning of that provision is not sellable at all.

The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the (2008) 4 SCC 144 promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces’ as these are neither `flat’ nor appurtenant or attachment to a `flat’.

Stilt parking or open parking of any building has to be regulated by a co-operative housing society when formed and under its bye-laws. General Body of a co-operative housing society has got every right to dispose of or to make an arrangement of parking of the vehicles of the members/flat-occupiers by laying a policy to that effect in its general body meeting and the Managing Committee of such co-operative housing society has to carry out the directions given in this behalf by the general body of the society.


The Bombay High Court held in M/S. M. Mamotra Associates vs Cooperative Societies Act on 3 January, 2013 (2010) 9 SCC 536 that:

Clause (21) reads as under –

“21 The Buyer of the respective Flats shall be entitled to use and occupy their respective flats only and will not claim any rights in the terraces, staircase, open spaces, compound, parking places, stilts, Garages, etc.”

18 From this it is clear that the claimant was fully aware of the fact that what he could sell to the new flat purchasers was only the flats and nothing else. Moreover, stilt car parking space is an immovable property and if at all it is to be sold, it is to be sold by the registered Agreement, as required under the provisions of the Transfer of Property Act. No such agreement has been produced by the Claimants. This was obviously because he was fully aware that he has no right to sell the stilt car parking spaces.


An apartment or a flat is a self contained housing unit that forms part of a building. Under West Bengal Apartment Ownership Act, 1972, (the Act) Section 3(a), an apartment means a property that has direct exit to a road or to a common area leading to such road and the apartment along with common areas and facilities forms an independent residential unit and it also includes a flat.

The object of the Act is to provide for ownership of an individual apartment and to make such apartment heritable and transferable property. The concept of apartment was born due to increasing population and growing need for housing in India and West Bengal. The object of the Act is not just to make such apartment units heritable and transferable but also to set out the common areas and facilities and the percentage share of each apartment owner in the apartment building. Most States in India have separate apartment ownership Acts that regulate such units in different States.

The main difference in Apartment Ownership Acts in different States of India is the purpose for which such apartments are utilized. While in States such as Maharashtra and Haryana, apartments can be utilized for residential as well as commercial purposes, apartments in West Bengal are Kerala are predominantly utilized for only residential purpose. Under West Bengal Apartment Ownership Act, 1972, Section 2, the Act applies to every building which is used, or is to be used, mainly for residential purposes.

Under West Bengal Apartment Ownership Act, 1972, Section 3(b), an association of apartment owners means the association competent to contract its own name and formed in accordance with provisions made in the bye-laws of the association.  This association can be formed in accordance with the Act and the West Bengal Apartment Ownership Rules, 1974.

The association works for the welfare of the residents in an apartment, conducts events and protects the rights of the apartment owners by maintaining varied duties.

The association in West Bengal can be formed by all the owners individually or they can give power of attorney to one person who can submit the building or property under the provisions of the Act. The benefit of registering the property under the Act is that it provides legal help to the residents in case of disputes. Further, it helps in organizing the maintenance of the society and provides clear bye-laws for the residents to abide and follow. If any association is formed which engages in maintaining the property or building without registering under the Act then it is cannot be termed as illegal per se but it is rather an interim/ad-hoc/unregistered association which needs to be registered under the Act.

Steps for Formation of Registered Apartment Owner’s Association under the Act:

Filing of Form A

  1. Firstly, the sole owner or all owners shall submit to the Competent Authority under the Act, a declaration in the given Form A in duplicate in non-judicial stamp paper of Rs. 10/- which needs to be duly signed and notarized. Enclosed within the Form A must be authenticated copies of the Building Plan, Site Plan and all relevant Title deeds. However, in case of prospective buyer, he may also enclose photocopy of the Agreement for Sale Deed duly attested by Notary instead of the sale deed.
  2. The filled in Form A with all annexure must be submitted in duplicate to the Competent Authority within 15 days from the date of their execution. Along with such Form A, the receipt of RBI fee paid and TR Form 7 has to be submitted to the Competent Authority.
  3. Form A can be submitted to the Competent Authority under the West Bengal apartment Ownership Act, 1972 at Law and Promoter Cell, 3rd Floor, ‘C’ Wing, New Secretariat Building, 1, Kiran Shankar Roy Road, Kolkata 700 001. Telephone No. (033) 22420801
  4. A forwarding letter needs to be sent to the Competent Authority along with Form A and all other necessary documents stating the fact that he is submitting the property under the West Bengal apartment Ownership Act, 1972 by way of filing Form A which may be accepted.
  5. After examination/verification of Form A and approval by Competent Authority, a copy of approved Form A with “Accepted” Stamp, date, signature and seal will be returned to the applicant.
  6. After receipt of Accepted Form A, the same needs to be registered within 15 days of return. The duly “Accepted” Form A must be registered under the Registration Act, 1908 with the Registrar / Sub-Registrar having jurisdiction over the property.
  7. After registration, the same needs to be notarized and communicated to the Competent Authority. A photocopy of the registered Form A duly attested by a Notary is to be filed with the Competent Authority along with Form 1 for getting Registration No. of the Association of the Apartment Owners.

Fees for Registration of Association

The fee for registering association is commensurate with the total value of the apartments of the building (i.e. if there are 8 flats of value Rs. 10,00,000/- each the total value of the Apartments will be Rs. 80,00,000/0_ is to be deposited with the Reserve Bank of India in T.R. Form No. 7 under the appropriate head of account.  The T.R.Form No. 7 and computerised receipt of the Reserve Bank of India (both original) and 1 set photocopy of both are to be enclosed.

(i) Amount of Fees :

(a) Upto Rs. 25 lakhs – Rs. 1000/-

(b) Above Rs. 25 lakhs upto Rs. 50 lakhs – Rs. 2000/-

(c)  Above Rs. 50 lakhs upto Rs. 1 crore   – Rs. 4000/-

(d) Above 1 crore upto Rs. 5 crores – Rs. 5000/-

(e) Above Rs. 5 crores – Rs. 10,000/-

(ii) Appropriate Head of Account :


“0216 – Housing – 02 – Urban Housing – 800 – Othen

Receipts – 008 – Receipt under the West Bengal Apartment

Ownership Act, 1972 – 16 – Other Fees”


(iii) Account Code : 0216 – 02 – 80000816.

(iv) Name of the Treasury : Kolkata P.A.O. – II

A specimen of duly filled in T. R. Form No. 7 is given below:

West Bengal Form No. 2380H

  1. R. FORM NO. 7

[See sub-rule (2)(b) of T.R. 3.06]

Challan for Deposit of money in the account of



  1. Name of the Bank of Branch  :  R.B.I., Kolkata
  2. (a) Name of the Treasury       :  Kol., P.A.O. – II


(b)   Treasury Code :

  C   A   C


  1. Account Code :


0 2 1 6 0 2 8 0 0 0 0 8 1 6


(14-Digit must be filled up properly)


  1. Detail Head of Account : “0216 – Housing – 02 – Urban Housing – 800 – Other Receipts – 800 – Receipt under the West Bengal Apartment Ownership Act, 1972 – 16 – Other Fees. Code : 0216 – 02 – 80000816”.
  2. (a) Amount : Rs. 250/-

(b)  In words : Rupees Two hundred fifty only.

  1. By whom tendered : Name & Address : XYZ,   ABC Road, Kolkata – 1.
  2. Name / Designation & Address of the Departmental Officer on whose behalf/favour money is paid : Competent Authority, Under the West Bengal apartment Ownership Act, 1972, Govt. of West Bengal, Deptt. of Housing, Law Cell, New Secretariat Building, 1 Kiran Shankar Road, Kolkata 700001.


  1. (a) Particulars and Authority of Deposit : Fees for Form – ‘C’ Instrument executed Apartment Owner(s) Under Sub-clause (i) of Clause (b) of Sub-Section (3) of Section 4 of the West  Bengal Apartment Ownership Act, 1972.

*(b) T. V. No. & Date of A. C. Bill :


  1. Accounts Officer by whom adjustable :         Accountant General (A & E),

Verified                                             West Bengal


Signature of Department/Treasury Officer

Depositor’s Signature                                   Treasury Receipted Challan No.

Date :                                                         Bank Scroll Serial No.

Received payment                                        Signature with seal of the Bank

Date :


*In respect of Challan relating to refund of unspent amount of A.C.Bill.


(6) In case the Declarant is the constituted attorney of the apartment owners he must enclose a photocopy of the Deed of Power of Attorney duly attested by a Notary

(b) Disposal of Form A by the Competent Authority:

If the Form A filed by the Declarant(s) is found in order the Competent Authority will accept the Form A and return one set of Form A duly endorsed as “Accepted” to the applicant(s).

Filling of Form C

  1. Another Form C, needs to be filled in duplicate in non judicial stamp paper of Rs. 10/- and duly notarized and submitted to the Competent Authority along with a copy of the Deed of Transfer and Sanctioned Plan after duly notarizing the same.
  2. Forwarding letter to the Competent Authority under the West Bengal apartment Ownership Act, 1972 requesting him to accept Form C.
  3. Declaration under Form C in Non-Judicial Stamp Paper of Rs. 10(ten) duly affirmed before a Notary (2 Sets) – One set will be retained by the Competent Authority and other set duly “Accepted” will be returned to the Declarant(s).
  4. Photocopy of the Title Deed/Agreement for Sale Deed duly attested by Notary.
  5. Photocopy of the Sanctioned Plan duly attested by Notary.
  6. Fee in T.R. Form No. 7 under the head of account and other details as Sl. No. (5) of item No. (c) of Form A.
  7. The requisite fees need to be deposited to the Reserve Bank of India, Kolkata in TR Form No. 7 and the receipt has to be submitted to the Competent Authority.Amount of Fees :

    (i) Upto Rs. 3 lakhs – Rs. 250/-

    (ii) Above Rs. 3 lakhs but upto Rs. 7.5 lakhs – Rs. 400/-

    (iii) Above Rs. 7.5 lakhs – Rs. 500/-

  8. Original copy of T.R. Form No. 7 and Reseve Bank of India Receipt thereof along with 1 set photocopy of the above.
  9. Photocopy of Registered Form A duly attested by Notary.
  10. In case the Declarant is the constituted attorney of the apartment owner he must enclose a copy of the Deed of Power of Attorney duly attested by Notary.
  11. If the Competent Authority finds the documents in order then he shall return Form C to the owner or owners duly accepted.
  12. When Form C is accepted one copy will be returned to the Declarant.
  13. The Declarant must get the Form C registered under the Registration Act, 1908 within 15 days of receipt.
  14. After completion of all these procedures the association and its allottees can apply for registration of the association. Only those members will form part of the association who have completed the above steps and submitted Form C.
  15. After getting accepted Form C from Competent Authority, the Apartment Owners or Allottees will hold a General Meeting and take steps to submit Form 1 of the West Bengal Apartment Ownership Bye-laws, 1974.
  16. Within 45 days from the date of submission of the property to the provisions of West Bengal Apartment Ownership Act 1972 (date of approval of Form A by the Competent Authority) or within such further period as the Competent Authority may allow, on application to it, the apartment owners shall in a General Meeting form an Association under some specific name and style and the Apartment Owner who presides over such Meeting shall immediately communicate the formation of such Association along with the names of the members in Form 1 to the Competent Authority. However, it must be understood that Apartment Owner implies any person who own one or more than one apartment within the same building.
  17. Thereafter the Competent Authority shall register the Association under a Serial Number and communicate the same to the Apartment Owners.
  18. Within 15 days of formation of an Association, the Apartment Owner presiding over the initial General Meeting for formation of the Association shall serve notice upon each member of such Association fixing therein the date (not before 15 days from the date of issue of such notice) on which and the time and place at which a General Meeting shall be held for election of the Board of Managers (BoM) of such Association by secret ballot. The number of managers in the BoM must be a minimum of 3 and maximum of 24. Votes need to be cast in person.
  19. After BoMs are elected, the Board shall within 10 days of the date of election of its Managers, hold its first meeting and elect its President who shall forthwith forward the names of President and BoMs in Form No. 3 of the West Bengal Apartment Ownership Bye Laws, 1974 to the Competent Authority who shall register such names.
  20. Thereafter the Association will gain legal identity and can function effectively.


Filling of Form 1

Form 1 under bye-law 3(2) is to be filed in plain paper along with a Xerox copy of the certified copy of the Registered Declaration under Form A shall be enclosed.

The names of all apartment owners shall be stated in Form 1 as per regulation 3 of the West Bengal Apartment Ownership Regulations, 1974.

A specimen copy of Form – 1 given below :-



[See Bye-Law 3(2)]


The Competent Authority,

Under the West Bengal Apartment Ownership Act, 1972,

Law Cell, Deptt. of Housing,

New Secretariat Buildings, 1st Floor,

1, Kiran Shankar Rop Ropad,

Kolkata 700 001.



I hereby communicate that a General Meeting duly held on ____ (date) presided over by the undersigned, the Association of apartment Owners under the name and style of “ABC Flat OWNERS’ ASSOCIATION” for our property at Premises No. 111, ABC Road, Kolkata 700 000, Police Station ________ already submitted according to Provisions of the West Bengal Apartment Ownership Act, 1972, has been formed under bye-laws framed under the said Act with the following as members thereof:


Sl. No.         Name of the members         Member of the Apartment

In the building by him.







It is further stated that the Declaration in Form No. a approved by you was registered in the Office of the Assistant Registrars of Assurance – 1, Kolkata, vide being No.01659/07.  A Xerox copy of the certified copy of the Declaration obtained form the Registration Office, Kolkata is attached herewith for your ready reference.


Now, I would request you to register our Association and send the Registration number of our society to us.


Dated  : _____

Place   : Kolkata                                           Sd/-

Signature of the Apartment Owner

Presiding the General Meeting held

On _________________________.


However, as of date, according to the West Bengal Apartment Ownership Act Office at Law and Promoter Cell, 3rd Floor, ‘C’ Wing, New Secretariat Building, 1, Kiran Shankar Roy Road, Kolkata 700 001. Telephone No. (033) 22420801, apartment ownership association formation is currently unavailable due to the recent decision of the Calcutta High Court in Dr. Debdas Banerjee & Ors. v The State of West Bengal & Ors. [W.P. No. 3724(W) of 2013].

In this matter, the Hon’ble Calcutta High Court has stated that Rule 3 of the WB Apartment Ownership Rules, 1974 as ultra vires Section 2 of the WB Apartment Ownership Act, 1972. The main contention in this matter and the confusion still prevalent is whether to form an association under WB Apartment Ownership Act, 1972, the declaration has to be signed by all apartment owners or whether the majority can sign the declaration. The unworkable situation has been created because under Section 2 of the 1972 Act and Form A, all the apartment owners need to sign the declaration while under Rule 3 of the 1974 Rules, signature of only majority members will be required.

However, Rules cannot take precedence over the Act and as such Rule 3 of 1974 Rules was declared ultra vires Section 2 of the 1972 Act. The matter is pending further adjudication or necessary amendments to be incorporated into the Act by the legislature.

In any case, if all apartment owners are willing to abide by the 1972 Act and sign the declaration then I don’t think there should be any issues in registering such Association even under the current legal scenario. I have heard that several Form A declarations have been kept pending as of date but I think if all apartment owners are willing to sign then the question of majority does not arise and the Association should be allowed to be formed under current law.

Steps to Transfer

  1. To transfer house, land or apartment in Co operative society in West Bengal you need permission of the Society as provided under Rule 131 (3) of the WBCS Rules 2011 r/w Section 92 of the WBCS Act 2006.
  2. However, if the Society is asking for donation amount more than 0.5% (prescribed under Order No. 2522 dated 23rd June 2003 of the Cooperation Department) of the Sale Value from either the transferor or the transferee then you should write to the Society and state that you cannot pay the amount as it is illegal.
  3. If the Society rejects the proposal for transfer then you may refer the dispute to Registrar within 30 days from such refusal.
  4. If the Society does not even respond to your proposal for transfer then you must write to them again within 30 days and seek their reply. If they still fail to reply or grant transfer then you must immediately appeal the matter to the Registrar. The limitation period to appeal to the Registrar (when Society does not reply) is 60 days from the date of application for transfer to Society.
  5. If the Registrar fails to grant permission to transfer the house, flat, land or apartment then you may also appeal to the Co operative Tribunal within 30 days from the date on which the order of the Registrar is communicated as provided under Third Schedule of the WBCS Act 2006.

Alternate Course

  1. Further, you may also pay the donation amount asked for by the Society (in excess of 0.5% of the sale value) upfront to allow the transfer to occur smoothly and thereafter you may apply to the Registrar and seek recovery of the amount with interest.
  2. However, you must apply within 3 years and preferably immediately after transfer has been completed.
  3. Please note that when you pay the amount seek receipt for the same and before paying the amount send at least one letter to the Society objecting to paying the amount so that you can prove later that you paid the donation money under duress, distress and coercion.
  4. Always keep notices, receipts and letters forwarded and received from the Society. Always try to send letters by registered post or speed post with A/D so that you can track the delivery of such letters.
  5. Once the transfer has been completed and if you have paid excess donation amount then you may immediately refer the dispute under Section 102(1) of the WBCS Act 2006 to the Registrar or Deputy Registrar of Co operative Societies, West Bengal in written format for recovery of the amount. You may appoint an advocate or any person to apply on your behalf.
  6. Do check whether your Society is registered with KMAH or RTAH or any other district Registrar and send the written complaint to such Registrar.
  7. The limitation period for filing any dispute, except for disputes regarding recovery of money is three months (90 days) from the date on which cause of action arises.
  8. For recovery of money the Act does not prescribe any limitation period but in essence it must be within three (3) years, as soon as possible.
  9. Further, under Section 102(3), the Registrar may admit disputes after the limitation period by condoning the delay if sufficient cause is shown.
  1. Please note that the Consumer Court or any Civil Court or the Writ Jurisdiction of the High Court does not have any jurisdiction to try any dispute referred to under Section 102(1) of the WBCS Act 2006.
  2. Once the dispute has been lodged, the Registrar himself may decide the dispute or appoint an arbitrator or board of arbitrators under Section 103(3) of the WBCS Act 2006 to decide upon the dispute.
  3. Normally, the dispute should be decided within 6 months from the date of receipt. If extension is provided, such extension should not exceed 6 months and the matter must be decided within a year.
  4. Further, the plaintiff or complainant has to submit or deposit fee within 15 days from the date of Registrar’s decision to refer the dispute to an arbitrator or board of arbitrators. The Fee to be deposited shall be decided by the Registrar depending on the nature of the dispute. Failure to deposit fees shall result in rejection of the dispute and the dispute would also stand to lapse.
  5. The Forum of arbitrators or arbitrator can pass interlocutory orders or stay orders for preservation of property and will give each party an opportunity of being heard.
  6. The decision, order or award passed by the Registrar or Arbitrator is final and cannot be challenged in any Court except for want of jurisdiction as provided under Section 145 (4) of the WBCS Act 2006.
  7. However, appeals lie to the Cooperative Tribunal within 2 months from date of award or 2 months from the date of knowledge about the order.
  8. It is to be noted that you can also claim interest on the amount paid under distress and you may also claim costs for the proceedings.
  9. Under Rule 174(1) of the WBCS Rules 2011, any sum recoverable under an award in any dispute shall by the awardeee as Public Demand upon requisition of the awardees as provided under Second Schedule of the WBCS Act 2006.
  10. However, if the award is not regarding recovery of money then the award shall be enforceable by any court as the decree of the court upon an application by the awardee as provided under Rule 174(2) of the WBCS Rules 2011.

Recent Judgment of Calcutta High Court allowing Recovery of Donation Money

In Dover Co-Operative Housing v State Of West Bengal and Ors (2007) 3 CALLT 522 Hc, 2007 (3) CHN 508, the Hon’ble Calcutta High Court held that:

“Sections 32, 49 and 92 to 94 of the Act, we find that both the State Government and the Registrar of Co-operative Societies have been vested with the overall power of supervision over the affairs and working of a Co-operative Society under the Act and if it appears to the State Government or the Registrar that any of the Co-operative Societies registered under the Act had contravened any of the mandatory statutory provisions, it can suo motu pass necessary direction for rectification of such illegal act notwithstanding the fact that the aggrieved party has not referred the dispute to arbitration in terms of Section 95 of the Act.”

“According to Rule 142(2) of the West Bengal Co-operative Societies Rules, a Co-operative Housing Society may raise such fee or donation as may be specified by the State Government from time to time by notification for according consent for transfer by a member of his land, house or apartment to another person having eligibility to become a member of the society. There is no dispute that until the year 2003, no such notification was issued and in the notification of the year of 2003, the societies were for the first time permitted to accept by way of such transfer-fees an amount equivalent to 0.5% of total consideration money. Therefore, prior to issue of the notification of the year 2003, a Co-operative Society was not authorized to accept any amount of money by way of transfer-fees.”

The Court further held that:

“Rule 142(2) in the proper perspective, we find that up to the year 2003, nothing was specified by way of notification authorizing a Co-operative Society to raise by way of fee or donation any amount for according consent for transfer and therefore, up to the year 2003, a Co-operative Society was authorized to accept “nil” amount of money for giving consent and from the year 2003, for the first time, the State Government has authorized the societies to accept something as transfer-fees or donation for the above purpose by limiting it to 0.5% of the consideration money.”

The Court further held that:

“Writ petitioner complained before the State Government as well as the Registrar drawing their attention to such illegality committed by the society and on that basis, the State Government took decision directing the Co-operative Society to refund the amount and such order was sought to be implemented through the Deputy Registrar, Co-operative Society, which was the subject-matter of the writ application. The writ petitioner alleged inaction on the part of the State Government in implementing its own decision and prayed for direction upon the State to enforce its decision against the Society.”

On 15th April 2014, the landmark judgment in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) was passed.

The court was constituted of two judges and the leading judgment was given by Justice K.S. Radhakrishnan, whose judgment was endorsed by Justice A.K. Sikri and Justice Sikri went on to provide valuable inputs of his own.


However, the judgment is limited to only the Transgender Community and does not include Gay, Lesbian or Bisexuals.

According to Justice Skiri:

“The grammatical meaning of ‘transgender’ is across or beyond gender. This has come to be known as umbrella term which includes Gay men, Lesbians, bisexuals, and cross dressers within its scope. However, while dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender. Therefore, we make it clear at the outset that when we discuss about the question of conferring distinct identity, we are restrictive in our meaning which has to be given to TG community i.e. hijra etc….”

Justice Radhakrishnan held that:

“Transgender” (TG), in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female. TG may also takes in persons who do not identify with their sex assigned at birth.”

“TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of vedic and puranic literatures.”

Thus, the judgment is limited in its extent to the TG Community.


Domestic Laws and International Law

The Court upheld the rights of TG in accordance with International laws and Domestic laws. Some of the international laws delved upon by the Court were the International Covenant on Civil and Political Rights (ICCPR) Article 6 (right to life), Article 7 (prohibition of torture or cruel, inhuman or degrading treatment), Article 16 (recognition before the law), Article 17 (right to private and family life). The Court also took into consideration the Universal Declaration of Human Rights (UDHR) Article 6 (right to life), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Article 2, Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 4 (right to life), 6 (right to privacy), 9 (right to treatment with humanity while in detention), 18 (protection from medical abuses).

Justice Radhakrishnan held that:

“Article 253 of the Constitution of India states that the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Generally, therefore, a legislation is required for implementing the international conventions, unlike the position in the United States of America where the rules of international law are applied by the municipal courts on the theory of their implied adoption by the State, as a part of its own municipal law. Courts in India would apply the rules of International law according to the principles of comity of Nations, unless they are overridden by clear rules of domestic law.”

Article 51 of the Indian Constitution read with Article 253 of the Constitution provides that if the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.

According to Justice Radhakrishnan:

“Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the “Psychological Test”.”

“Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.

According to Justice Sikri:

“The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights. It is a matter of historical significance that the 20th Century is often described as “the age of rights.”

The Hon’ble Supreme Court found transgenders to be a socially and educationally backward class under Article 15(4). The Hon’ble Supreme Court opined that TGs should be entitled to reservation in matters of appointment in Article 16(4). The Court also held that gender identity is protected under Article 19 (1) (a) as a means of expression protected under the Constitution. The Court held that the right to choose one’s gender identity is integral to the right to lead a life with dignity and hence protected under Article 21 of the Indian Constitution.

Justice Sikri stated:

“We are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well”

Justice Sikri succinctly states the protection guaranteed to TGs under the Indian Constitution:

“It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.”

The TG Community now has the right to be recognized as third gender.


Effects of the Judgments

The judgment has definitely helped the TG community to come forward and is a landmark judgment in the history of India. After the judgment was passed, DU admissions and admissions in various colleges have introduced space for third genders in its application forms. UGC scholarships and fellowships have also been opened for third genders.

The government has taken significant steps, ever since the judgment was passed, such as constituting an expert committee by Ministry of Social Justice and Empowerment and in-depth study of the problems faced by TGs in India but the application of law would require further research and legislation.


No One Can Be Forced Into Sexual Determination and Medical Examination

The first instance of utilization of the law declared in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) is

I.Jackuline Mary v The Superintendent of Police (17 April 2014) W.P. No. 587 of 2014 and M.P. No. 1 and 2 of 2014 wherein, the Hon’ble Madras High Court extended the TG community to include the case of Females to Males (FTMs) and stated that fundamental rights are available to them and therefore, it is for them to chose and express their identity either as females or males or as transsexuals.

The Madras High Court held that in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) theHon’ble Supreme Court referred the male to female (MTFs) to be treated as a Transgender for the purpose of safeguarding their rights under Part-III of the Constitution of India and the laws made by the Parliament and the State Legislatures. The other transsexuals such as Females to Males (FTMs) will not have the benefit of the classification as third genders. Therefore, even after the said judgement, there is a legal compulsion that these Females to Males [FTMs] are to be brought within the binary classification as male or female. If they are not brought under this binary classification , then, they will be deprived of the fundamental rights under Part-III of the Constitution of India. If an individual, who is born as a female, is declared as a transsexual by the medical community, on that score, the individual cannot be kept out of the binary classification. Irrespective of the opinion of the medical, psychological, genetical and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognised by the society. If we have to treat this group of medically declared transsexuals as outside the purview of the female sexual identity, then, the State will not be in a position to provide employment and other opportunities by treating them as females or as males.”

The Madras High Court also stated that:

“By compelling an individual, who has been recognised all through as a female, like the petitioner, to undergo medical examination so as to declare her as a transsexual will be a gross violation of the right to privacy which falls within the ambit of Article 21 of the Constitution of India. Such kind of forcible declaration will have a lot of repercussions in her personal life.”

“In the absence of a legislation, compelling an individual to expose to medical examination to declare medically his/her sex identity itself is violative of Article 21 of the Constitution of India.”

The Madras High Court held that:

(i) The petitioner is declared as a female for all purposes and she has got right to retain such sexual / gender identity.

(ii) The petitioner has liberty to chose a different sexual / gender identity as a third gender in future based on the medical declaration, if there is any law put in place recognising FTMs as a third gender.

The most important statement by the Hon’ble Madras High Court:

“Pinky Pramanic choose to declare herself as a female forever. So was Shanthi Soundararajan. The petitioner herein also has declared her gender identity only as a “Female” notwithstanding the declaration made by the medical community that she is a transgender. Her sexual identity as female by birth and recognised by the society and her own self-identity as female should be recognised by the Government. Therefore, the petitioner should be treated as a female for all purposes, such as, employment, property rights, etc. Unless laws are made recognising this Female to Male (FTMs) as third genders providing certain special rights, such identification by the individual as third gender thereby exercising her freedom of expression will not be beneficial to her.”

Thus the Court recognized that expression of identity is an individual opinion and unless special provisions are made for FTMS, such persons would have the liberty to continue in the gender prescribed to them in their birth certificate and the gender she/he has been following till date. Further the Court has also held that no person can be forced to undergo medical examination for determination of their sexual identity (biological identity).

In Para 129 of the judgement of the Hon’ble Supreme Court in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) the Hon’ble Supreme Court has declared that the transgender persons have right to decide their self identified gender and the Governments have to grant legal recognition of their gender identity such as male or female or as third gender.

Thus the Hon’ble Supreme Court and the Hon’ble Madras High Court have held that gender identity is an integral part of the personality and one of the most basic aspects of self-determination, dignity and freedom. Thus, no one can be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy as a requirement for legal recognition of their gender identity. Psychological gender is to be given priority over biological sex. Rights have to be protected irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. 


Questions Remain

The Heinous law of Section 377 Indian Penal Code, 1860 Still Looming Large

In National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) Justice Radhakrishnan recognized the role played by Section 377 of the IPC:

“During the British rule, a legislation was enacted to supervise the deeds of Hijras/TG community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’.

Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of Criminal Tribles Act that criminalized all penile-non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices.”

Justice Sikri stated that:

“Section 377 of the Indian Penal Code was misused and abused as there was a tendency, in

British period, to arrest and prosecute TG persons under Section 377 merely on suspicion.”

However, Section 377 was upheld by the Hon’ble Supreme Court to be constitutionally valid in Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1 SCC 1]

The Hon’ble Supreme Court stated that:

“The learned Attorney General, who argued the case as Amicus, invited our attention to affidavit dated 1.3.2012 filed on behalf of the Home Ministry to show that the Group of Ministers constituted for looking into the issue relating to constitutionality of Section 377 IPC recommended that there is no error in the impugned order, but the Supreme Court may take final view in the matter. The learned Attorney General submitted that the declaration granted by the High Court may not result in deletion of Section 377 IPC from the statute book, but a proviso would have to be added to clarify that nothing contained therein shall apply to any sexual activity between the two consenting adults in private. Learned Attorney General also emphasised that the Court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century”

However, the Hon’ble Supreme Court concluded the judgment by stating that:

“While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”

As it stands today, Section 377 IPC is valid law and the rampant misuse of the law by police authorities would continue in future. The question that arises after the judgment in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) is that if the TGs come out declaring their identity. Wouldn’t they be the easy targets since Section 377 IPC is still the valid law of the country? How would the administrative and enforcement agencies react to the present situation?

Further, while arriving at its decision, the Hon’ble Supreme Court of India in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) considered several foreign judgments. However, one particular judgments is of significant importance and was dealt by Justice Radhakrishnan:

“A.B. v. Western Australia (2011) HCA 42 was a case concerned with the Gender Reassignment Act, 2000. In that Act, person who had undergone a reassignment procedure could apply to Gender Reassignment Board for the issue of a recognition certificate. Under Section 15 of that Act, before issuing the certificate, the Board had to be satisfied, inter alia, that the applicant believed his or her true gender was the person’s reassigned gender and had adopted the lifestyle and gender characteristics of that gender. Majority of Judges agreed with Lockhart, J. in Secretary, Department of Social Security v. “SRA”, (1993) 43 FCR 299 that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual.”

In India there is no such law for Gender reassignment and gender recognition by any Board. Further, the judgment has recognized the concept of psychological gender instead of the biological gender to arrive at recognizing TGs in India. Thus, TGs do not have to undergo any biological tests to get themselves recognized. However, it has to be seen whether in future, specific State or Centre Boards are constituted to recognize the TG community and protect them from intrusion. Further, the Judgment is limited to the TG community. This implies that the protection is not extended to Lesbians, Gays or Bisexuals who are still a part of marginalised community and looking for ways to deal with Section 377 IPC. The LGBT Community has been divided by the Supreme Court judgment as the protection extends only to the transgender community. It is without doubt true that the marginalized would look for ways of inclusion and therein problems would arise.

Since there is no legislation to force any person to determine their sexual identity (biological identity) and since the Courts have recognized that sexual identity is psychological, it would be interesting to see how the administration declares certain individuals as TGs and provides affirmative action to support the TG community. Further, Section 377 should be immediately repealed or amended to protect the TG community from being easy targets.

Background of Domestic Violence Act and Live-In Relationship in India

The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.  The DV Act has been enacted to uphold the constitutional principles laid down in Article 15(3), reinforced vide Article 39 of the Constitution of India for protection of women in India.

Protection of women has been recommended by the Malimath Committee report and even under Section 125 CrPC, a man who marries a second wife, during the subsistence of the first wife, should not escape his liability to maintain his second wife.

The DV Act recognizes the right of a woman to live in violence free home and provides legal remedies if this right is violated. The Legal remedies pertain to civil reliefs such as injunctions, protection order, compensation, custody order and monetary relief or compensation. However, the Act does not provide for arrests made on a complaint filed except when the accused has violated a court order or continues to commit violence.

The objective of the Act is to provide civil law relief to the woman without dependence on the police to initiate action. This Act is not a criminal Act law. The Woman can file the complaint and it would be put in the Domestic Incidence Report (DIR) format which shall be sent to the Magistrate.

In Indra Sarma v V.K.V Sarma Criminal Appeal No. 2009 of 2013 (SLP No. 4895 of 2012), the Hon’ble Supreme Court held that:

“Domestic Violence is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act.”

Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.

To understand the nature of relationship there must be a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account.

The Court cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration.

Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.

Certain Provisions Guiding Domestic Violence and Live-In Relationship

Section 3 of the DV Act (the Act) deals with domestic violence and reads as under:

  1. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.- For the purposes of this section,-

(i)  “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes” domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Section 2(f), of the Act, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:

a) Consanguinity

b) Marriage

c) Through a relationship in the nature of marriage

d) Adoption

e) Family members living together as joint family.

“The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “means” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive. It is in that context that the meaning of the expression “a relationship in the nature of marriage” is restrictive in meaning:

“Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression a relationship in the nature of marriage” is also described as defacto relationship, marriage like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.”

Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the “Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

Section 5 of the Hindu Marriage Act 1955 and which reads as under:

  1. Conditions for a Hindu marriage – A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-

(i)  neither party has a spouse living at the time of the marriage (ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v)  the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Section 7 of the Hindu Marriage Act deals with the Ceremonies for a Hindu marriage and reads as follows:

  1. Ceremonies for a Hindu marriage. –

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

The Hon’ble Supreme Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.

Guidelines to Understand Whether Protection Should Be Granted to Women in Live-In Relationships

In D. Velusamy vs. D.Patchaimmal (2010) 10 SCC 469, The Hon’ble Supreme Court held that whether a relationship in the nature of marriage akin to a common law marriage between a male and female partner as provided under Section 2(f) of the DV Act, the following conditions must be met in addition to proof of the fact that parties had lived together in a shared household as defined in Section 2(s) of the DV Act:

  1. The couple must hold themselves out to society as being akin to spouses.
  2. They must be of legal age to marry.
  3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.
  4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time

In a recent decision, the Hon’ble Supreme Court in Indra Sarma v V.K.V Sarma Criminal Appeal No. 2009 of 2013 (SLP No. 4895 of 2012) have suggested several guidelines (not exhaustive) which give further insight into what kind of relationships (live-in relationships) are considered by the Court to be in the nature of marriage as defined under Section 2(f) of the Act:

1) Duration of period of relationship

Section 2(f) of the DV Act has used the expression at any point of time, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household

The expression has been defined under Section 2(s) of the DV Act, which provides:

“shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

(6) Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public

Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”

Certain Women Cannot Claim Protection under Domestic Violence Act while in Live-In Relationship

If the woman enters into a live-in-relationship with the respondent knowing that he was married person, with wife and two children, then she cannot claim protection under DV Act.

If there has been alienation of affection created in the life of the respondent then the woman cannot claim protection under DV Act. If the woman has tried to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception then the woman cannot claim protection under DV Act. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort.

The law laid down by the Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185, that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply when the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character.

In Tulsa v. Durghatiya 2008 (4) SCC 520 it was held that presumption of marriage could be drawn under Section 114 of the Evidence Act. Section 114 of the Evidence Act refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. However, the presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.

Though, in Gokal Chand v. Parvin Kumari AIR 1952 SC 231 the Hon’ble Supreme Court held that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabition is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

However, the Hon’ble Supreme Court in Indra Sarma v V.K.V Sarma Criminal Appeal No. 2009 of 2013 (SLP No. 4895 of 2012) held that:

“We may note, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.”

Need for Reform to Extend Protection to Mistress and Concubine in Live-In Relationships

The Hon’ble Supreme Court in Indra Sarma v V.K.V Sarma Criminal Appeal No. 2009 of 2013 (SLP No. 4895 of 2012) went on to note that:

“We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer. Law of Constructive Trust developed as a means of recognizing the contributions, both pecuniary and non-pecuniary, perhaps comes to their aid in such situations, which may remain as a recourse for such a woman who find herself unfairly disadvantaged. Unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage. We can also come across situations where the parties entering into live-in-relationship and due to their joint efforts or otherwise acquiring properties, rearing children, etc. and disputes may also arise when one of the parties dies intestate.”

“Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against”

“Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.”

“We have, on facts, found that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.”

Hindus have been known to dedicate property for religious and charitable purposes since the Vedic ages. Dedication of property has been mainly under two heads: Ishta and Pushta, which have been considered as means for going to heaven. The former indicates the Vedic sacrifices and rites and gifts associated with such sacrifices while the latter stands for all other religious and charitable acts and purposes unconnected with Vedic sacrifices.

However, religion and charity is often intermixed in India and it has been held by the Hon’ble Supreme Court Ramchandra Shukla v. Shree Mahadeoji 1970 AIR 458, 1970 SCR (2) 809, that there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion.

Public trusts in India can be classified into three kinds. The first kind would be the trusts brought into existence by state grants whereas the second kind would be those with definite endowments established by private beneficiaries. The third kind would be trusts that benefit the public, but are maintained entirely by particular families or groups of families or special communities. In the first two kinds of trusts, the question of what constitutes a complete dedication does not arise. But in the third kind the difficult question of whether there is a complete dedication of the funds or not may arise.


What is Debutter Property?

There are two kinds of religious trusts both of which are ancient and highly popular in Hindu society. One of them is known as Debutter/Debutter or endowment in favour of an idol, while the other can be described as mutt or marham, which means a religious establishment endowed for the benefit of certain classes of ascetics or religious men belonging to particular sects or congregations. An idol is not an infant, but it is similar to a minor and is considered a juristic person.

In accordance with Indian Law, any property absolutely dedicated to Hindu religious or charitable purpose is called Debutter Property. Debutter means literally belonging to a deity. Where the dedication is absolute and complete, the possession and management of the property belongs, in the case of a Deosthana or temple, to the manager of the temple, called Shebait but the property vests in the idol; and in case of math that is an abode for students of religion, to the head of the math called Mahant.

Debutter Property essentially means that kind of property that has been dedicated to God. The conception of debutter is comprised of two essential ideas. The first is that property is dedicated to the deity and vests in an ideal sense in the deity itself as a juristic person. The second is that the personality of the idol becomes linked up with the natural personality of the shebait , being the manager or being the dharmakarta and who is entrusted with the custody of the idol and who is responsible otherwise for the preservation of the property of the idol (Varadachari 2006). There cannot be a dedication in the name of a deity that is not recognised by the Shastras as held in Ram Janki Ji and Others v State of Bihar AIR 1992 135.


Shebait or Manager

The person who manages the debutter property is known as the Shebait in Bengal, Dharmakarta in Tamilnadu and Andhra Pradesh, and Panchayatdar in Tanjore and Malabar. The Shebait is not really a manager although in English he is referred to as the manager. The Shebait is more like trustee since he is the holder of an office of dignity and God.

In the words of Mayne: “The shebait is one who serves and sustains the deity whose image isntalled in the shrine. The duties and privileges of a shebait are primarily those of a one who fills a sacred office”. A shebait is a mere manager, not the owner of the debutter property, the idol is the owner, but only in an ideal sense. There is always a human personality linked up with this ideal personality, and the shebait or manager of the deity must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property. There is no provision that obliges a shebait to take prior permission of any court for alienating a property owned by the deity, it is only that if the alienation is challenged at a future date, the alienee, in spite of the order, will have to prove as a fact that there was legal necessity for the transfer or that he made enquiries and was reasonably satisfied that such necessity existed. A shebait is not a trustee in the proper sense of the word and the Indian Trusts Act, 1882 has no application to the case of a Hindu religious endowment. The court, therefore, has no jurisdiction to grant an application by a shebait to sanction his transaction on the ground of necessity. (B.K. Mukherjea’s The Hindu Law of Religious and Charitable Trusts, 5th ed. by A.C. Sen, paras.4.1A, 6.15, 6.16, 6.38, 6.67 and 6.38).

Dedication and Creation of Debutter Property

Dedication of property is essential for the creation of an endowment and debutter property. A dedication consists of the two elements which are known as Sankalpa or the formula of resolve, or an intention to dedicate properties and Utsarga or renunciation of property. Dedication can occur when there is the intention to dedicate (Sankalpa), manifested by performing certain ceremonies, which include the recitation of time, date and year of dedication, and of the object the founder has in his mind. The Utsarga completes the gift with renunciation and giving of the property.

Judicial discourse reveals a great deal about the question of dedicaton in debutter property. The concept of dedication and its characterisation is explained in the case of Maharani Hemanth Kumar Debi and Others v Gauri Shankar Tewari AIR 1941 PC 38. In this case there was a dispute over the usage of a religious ghat which led to the question whether Maharani Hemanth Kumari (who had claimed obstruction of the ghat) was the owner of the ghat itself or the hereditary superintendent of a religious endowment. In this case it was held that dedication involves divesting property completely of human ownership and vesting the property in the institution or object.


In Rita Shaw And Ors. vs Dipendra Lal Shaw And Anr. 2006 (4) CHN 414, it has been held that:

“….24. On the question as to whether the property is debutter or not, the following passage from the authoritative text to which I have referred to in the earlier part of this judgment may be referred to: As regards the first question, I have stated already that in order that there may be a real dedication to a deity, it is necessary to show that the grantor intended to divest and did divest himself completely of every part of the property which was the subject-matter of the grant, and the dedication was not a mere colourable device to tie up the property for the benefit of the donor’s heirs or other relations.

In this respect, the two decisions of the Hon’ble Supreme Court in the cases of Badrinath (supra) and Prafulla Chorone Requitte vs Satya Charonne Requite 1979 AIR 1682, 1979 SCC (3) 409 are for the proposition that shebaitship is not merely an office but is property as well, and hence subject to the rules of devolution of property.


Transfer of Shebaiti Right

In Hari Shanker Son Of Shri Amir Chand … vs Shri Lala Ram Alias Shiam Sunder … on 7 October, 2004, it has been held that the following are the judicially recognized exceptions to the general rule for transfer of debutter property. Transfer of shebaitship right by gift or will has been held to be permissible in the following three cases:-

(a) The transfer of Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the deed of endowment, unless an ancient or reasonable custom or usage has been followed to be contrary.

(b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his deed of endowment, a particular shebait cannot change the line by succession by any deed or transfer unless the shebait transfers the totality of his rights in favour of succeeding shebait or shebauits during his life time.

(c) A transfer by Shebaiti right is also permissible for the benefit of idol or the deity or for imperious necessity under special Circumstances.

Shri B.K. Mukherjee in para 5.37 of Chapter 5 on page 232, 4th edition of the above book has mentioned the circumstances under which the office of shebait can be transferred: –

“(1) Where the transfer is not for any pecuniary benefit and the transferee is the next heir of transferer or stands in the line of succession of shebait and suffers no disqualification regarding the performance of the duties.

(2) When the transfer is made in the interests of deity itself and to meet some pressing necessity.

(3) When a valid institute is proved sanctioning alienation of Shebaiti right with a limited circle of purchasers who are potential shebaits of the deity or otherwise connected with the family.

In para 5.30 of Mr. B.K’s Mukherjee book of Chapter 5 it has been stated that a founder of an endowment can always confer upon a shebait appointed by him the right of nominating his successor. When such authority is not specially given to him, no shebait can appoint a successor to succeed to him in his office.


Extinction Of Line Of Shebait

When the lien of shebait laid down by the founder is extinct, when the shebait to whom a power of nomination has been given does not exercise power, the managership reverts to the founder who endowed the property or his heirs. ‘ In case of the line of shebait is extinct, there is always an ultimate reversion to the founder or his heirs….”

Further, Sarvakar is fully competent to transfer the property and any term or condition in the deed restraining Sarvakar/Manager of which temple or property vested in deity is void under Section 10 of the Transfer of Property Act and a Manager is fully competent to alienate a Debutter property for legal necessity or for the benefit of the Deity (Almighty).


Transfer of Debutter Property or Deity Property

“Transfer of property” is defined under Section 5 of the Transfer of Property Act as:-

In the following Sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more than living persons, or to himself, (or to himself) and one or more other living persons; and “to transfer property” is to perform such act.

(In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals).

According to Section 5 of the Transfer of Property Act, transfer of property means an act by which a living person conveys property, in present or in future, to one or more than living persons, or to himself, (or to himself) and one or more other living persons; and “to transfer property” is to perform such act. Living person has been defined which includes a company or association or body of individuals whether incorporated or not.

Juristic or Legal Personality of God

The question whether an Idol or Religious Institution or Gurudwara constitutes a living person or juristic person came up for consideration by Apex Court in the case of Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Das and Ors. (AIR 2000 (3) SC 1421) where ‘Guru Granth Sahab’ was recorded in the revenue record and question arose whether ‘Guru Granth Sahab is a juristic person or not. The Supreme Court ruled in Shiromani Gurdwara Parbandhak Committee, Amritsar vs. Somnath Dass and Others (AIR 2000 (3) SC 1421) that “Sri (the Aad) Guru Granth Sahib is a juristic person”. Therefore, it can hold and use property donated by the devotees. The Supreme Court held that the High Court “committed a serious mistake of law in holding that Guru Granth Sahib was not a juristic person and in allowing the claim over the property in favour of respondents”. The dispute concerned land measuring 22 acres and buildings attached to Gurdwara Sahib Dharamsala at Village Bilaspur, District Patiala.

It was held in Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Das and Ors. (AIR 2000 (3) SC 1421) that ‘Juristic Person’ connote recognition of an entity to be in law a person which otherwise it not. In other words, it is not an individual natural person but artificially created person which is to be recognised to be in law such.

The Apex Court in Paragraph 13 of he said judgment has dealt with ‘Natural person’ and ‘Legal person’.

In Paragraphs 13 and 14 of the judgment of the Apex Court in Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Das and Ors. (AIR 2000 (3) SC 1421) it has been held that with the development of society, ‘where an individual’s interaction fell short, to upsurge social development, co-operation of a larger circle of individuals was necessitated. Thus, institutions like corporations and companies were created, to help the society in achieving the desired result. The very Constitution of State, municipal corporation, company etc. are all creations of the law and these “Juristic Persons” arose out of necessities in the human development. In other words, they were dressed in a cloak to be recognised in law to be a legal unit.

Corpus Juris Secundum, Vol. LXV, page 40 says:

Natural person: A natural person is a human being; a man, woman, or child, as opposed to a corporation, which has a certain personality impressed on it by law and is called an artificial person. In the C.J.S. Definition ‘Person’ it is stated that the word “person,” in its primary sense, includes natural persons and artificial, conventional, or juristic persons.

Corpus Juris Secundum Vol. VI, page 778 says:

Artificial persons: Such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

Salmond on Jurisprudence, 12th Edn., 305 says:

A legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human being is one of the most noteworthy feats of the legal imagination….

Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognised by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporation.

…If, however we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application and that there are several distinct varieties, of which three may be selected for special mention.

1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members 1

2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself….

3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special uses a charitable fund, for example or a trust estate.

Jurisprudence by Paton, 3rd Ed., page 349 and 350 says

It has already been asserted that legal personality is an artificial creation of the law. Legal persons are all entities capable of being right-and-bearing units all entities recognised by the law as capable of being parties to legal relationship. Salmond said: ‘So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties.

…Legal personality may be granted to entities other than individual human beings, e.g. a group of human beings, a fund, an idol. Twenty men may form a corporation which may sue and be sued in the corporate name. An idol may be regarded as s legal persona in itself, or a particular fund may be incorporated. It is clear that, neither the idol nor the fund can carry out the activities incidental to litigation or other activities incidental to the carrying on of legal relationship, e.g., the signing of a contract: and, of necessity, the law recognises certain human agents as representatives of the idol or of the fund. The acts of such agents, however (within limits set by the law and when they are acting as such), are imputed to the legal persona of the idol and are not the juristic acts of the human agents themselves. This is no mere academic distinction, for it is the legal persona of the idol that is bound to the legal persona of the idol that is bound to the legal relationships created, not that of the agent. Legal personality than refers to the particular device by which the law creates or recognizes units to which it ascribes certain powers and capacities.” Analytical and Historical Jurisprudence, 3rd Edn. At page 357 describes “person”;

We may, therefore, define a person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed.

Thus, it is well settled and confirmed by the authorities on jurisprudence and Courts of various countries that for a bigger thrust of socio-political-scientific development evolution of a fictional personality to be a juristic person became inevitable. This may be any entity, living inanimate, objects or things. It may be a religious institution or any such useful unit which may impel the Courts to recognise it. This recognition is for subserving the needs and faith of the society. A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law. In other words, the entity acts like a natural person but only through a designated person, whose acts are processed within the ambit of law. When an idol, was recognised as a juristic person, it was known it could not act by itself. As in the case of minor a guardian is appointed, so in the case of idol, a Shebait or manager is appointed to act on its behalf. In that sense, relation between an idol and Shebait is akin to that of a minor and a guardian. As a minor cannot express himself, so the idol, out like a guardian, the Shebait and manager have limitations under which they have to act. Similarly, where there is any endowment for charitable purpose it can create institutions like a church hospital, gurdwara etc. The entrustment of an endowed fund for a purpose can only be used by the person so entrusted for that purpose in as much as he receives it for that purpose alone in trust. When the donor endows for an Idol or for a mosque or for any institution, it necessitates the creation of a juristic person. The law also circumscribes the rights of any person receiving such entrustment to use it only for the purpose of such a juristic person. The endowment may be given for various purposes, may be for a church, idol, gurdwara or such other things that the human faculty may conceive of, out of faith and conscience but it gains the status of juristic person when it is recognised by the society as such.

The judgments of the Apex Court in The Controller of Estate Duty, West Bengal, Calcutta v. Usha Kumar and Ors. 1974 SC 663 and in Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Dass and Ors. (AIR 2000 (3) SC 1421) make it clear that Deity is a juristic person and a gift to the juristic person is perfectly valid in accordance with law, but Deity cannot be treated as a living person like Shebaits and, therefore, Section 5 of the Transfer of Property Act will not apply. It has been further held in the judgments of the Apex Court that affairs of the Deity could be managed through Shebaits/Sarvakars/Managers appointed in accordance with the Deed of Dedication, who are simply managers to manage the properties vested in the Deity (Almighty). Shebait is a person, who is appointed according to Deed of Dedication, to give effect: to the terms and conditions contained therein and to perform Rag, Bhog and Worship and other connected affairs and to protect the properties vested in Deity (Almighty) not to alienate the same. Gift once made to the Deity is irrevocable on any ground.


Sale of Debuttar Property With Permission of District Judge


The Apex Court in Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Dass and Ors. has held that the Deity is a minor and if the property is dedicated for the religious purposes, welfare of the Deity could be looked into by the Shebait/Sarvakar/Manager appointed in accordance with the Deed of Dedication or by the Management as Guardian as Deity never attains and always remains minor. Any transfer made against the interest of the Deity will be void as other minors may attain majority, but Deity cannot.

Temple where Idol of the Deity was installed and other property endowed for the purposes of Idol are unalienable, if it is restricted in Deed of Dedication. In Mukundji Mahraj v. Persotam Lalji Mahraj AIR 1957 All 77 it has been held that the first and foremost duty of a Mahant or a Shebait of an idol is to preserve and maintain the Idol, that is to say, as an object of worship inasmuch as a Temple, the abode of the Idol is to be preserved and maintained at any cost. Property other than the Temple endowed for the purposes of the Idol may have to be alienated if it is absolutely legally necessary for the purpose of preservation of the Idol and its Temple and there is no restriction. No Shebait or Mahant/Manager can, therefore, have the right of alienating the Temple itself. As the Temple has a special sancity distinct from other endowed property, to alienate the temple itself is to cut root of the very existence of the idol in the habitation intended by the founder. Hindu sentiment views the alienation of a Temple as a sacrilege.

In Sree Sree Ishwar Narayan Jiu v. Soler [1937] I.L.R.2 Cal.133 a shebait of the deity applied to the court for permission to transfer a part of the debutter as he needed funds for repairing the rest. His Lordship (Ameer Ali, J.) held that a shebait, not a trustee in law, has to act for the deity according to the circumstances and his dealings with the property, vested in the deity, are valid transactions, if they complied with certain conditions, generally referred to as necessity; that there is no power in the court to grant an application filed by a shebait seeking sanction to transactions on the ground of necessity; and that there is no statute that deals with debutter and there can be no question of a shebait being appointed guardian of the properties of the deity.

In Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee 2007 WRIT – C No. – 56447 of 2003 [2007] INUPHC 14725, it has been held that:

“In the Hindu Minority and Guardianship Act, Section 8(2) is also there which says that if the property is vested in Hindu Minor, it could be transferred with the prior permission of the District Judge. So far as the deity is concerned, it is always considered a minor a juristic person’ who is represented through Shebait/Sarvakar/Manager and in case of a minor in the Hindu Law protection has been given to minor to the effect that the property cannot be sold without permission of the District Judge. The question under consideration is whether such protection could also be available to deity who is also minor or whether there could be such restriction on the Shebait who manages the affairs of the deity a ‘minor’.

The law has already created a restriction on transfer of charitable and Trust properties and made certain provisions so far as the charitable societies are concerned. So far as societies established for charitable purposes which are governed by the Societies Registration Act are concerned, Section 5A of the Societies Registration Act makes it clear that no transfer is permissible without prior approval of the District Judge. Section 5A of the Society Registration Act is quoted below:

Section 5A, Restriction on transfer of property- (1) Notwithstanding anything contained in any law, contract or other instrument to the contrary, it shall not be lawful for the governing body of a society registered under this Act or any of its members to transfer without the previous approval of the Court, any immovable property belonging to such society.


In Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee WRIT – C No. – 56447 of 2003 [2007] INUPHC 14725, it has been held that:


  1. Property dedicated to and vested in Deity is unalienable if there is restriction in the Deed of Dedication and any alienation made in contravention of such restriction is not binding on the Deity.
  2. The Temple which is abode of the Deity is unalienable on any condition and the other properties vested in Deity may be alienable in the event of legal necessity if there is no restriction in the Deed of Dedication with the prior permission of the concerned District Judge.
  3. Offering to the Deity or Endowment is an offering to the Almighty or for religious purposes and a person attached with the management of a religious Institution is entitled to get from the offering only in accordance with the Deed of Dedication or in accordance with law.

However, in Smt. Shakuntala Devi Dalmia & Anr. v. Howrah Municipal Corporation & Ors. W.P. No. 9660 (W) of 2006, it has been held that for transfer of debutter property there is no need to obtain permission or leave of the District Judge when the transfer is essential and there is legal necessity for the same. It was further held that the warrant for entering into any transaction on behalf of the deity for sale of debutter property can only be raised or questioned by one claiming interest in the property, such as any successor to the office of the shebaits or any other person claiming interest in the property. No one else has the right to question the sale of debbutter property if it was for the benefit of the Deity. However, this view is contradictory to that of the court presented in Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee WRIT – C No. – 56447 of 2003 [2007] INUPHC 14725, wherein it has been held that properties vested in Deity may be alienable in the event of legal necessity with the prior permission of the concerned District Judge.

It has been held time and again that in mutation application, the municipal corporation or concerned authority should not go into the question of whether valid title exists for the applicant. Mutation of property does not prove ownership or title to the property but it only showcases that the State is collecting revenue for the property from a certain individual.

In Sankalchan Jaychandbhai Patel & Ors. v. Vithalbhai Jaychandbhai Patel & Ors., (1996) 6 SCC 433, it was held (para.7) that it is a settled law that mutation entries are only to enable the state to collect revenues from the persons in possession and enjoyment of the property; that right, title or interest in the property should be established dehors the entries; that the entries are only one of the modes of proof of the enjoyment of the property; and that mutation entries do not create any title or interest therein.

In K.G. Patel & Co. v. Smt. Chandra Devi Bothra & Ors., 1997 (1) CLJ 156, it was held (para.9) that it is a settled principle of law that disputed question of title cannot be gone into in any mutation proceedings.

In Balwant Singh & Anr. v. Daulat Singh & Ors., (1997) 7 SCC 137, it was held (para.27) that mutation entries do not convey or extinguish title to the property.

In Shrenik Kumar Singhee v. the State of West Bengal & Ors., (2006) CalLT 435 (HC), relying on K.G. Patel, it was held (para.33) that the municipal authority cannot adjudicate the question of title raised by the rival claimants. Therefore, the consistent view taken by the courts is that in mutation proceedings the authority dealing with the matter cannot go into the question of title of the parties to the property.

This view has also been recently upheld by the Hon’ble Calcutta High Court in Smt. Shakuntala Devi Dalmia & Anr. v. Howrah Municipal Corporation & Ors. W.P. No. 9660 ( W ) of 2006.

It has been held that in a mutation application, the corporation could not go into the petitioners’ title to the property. Thus, for any mutation application in India, West Bengal or mutation application in Kolkata, Krishnanagar, Kalyani or Bidhannagar, the concerned authority should not question the ownership while dealing with such mutation unless there is absolute lack of evidence to support the claim. Mutation applications are not meant for interpretation of diverse laws to understand the legality of the ownership.

A Co-operative Housing Society is formed under the West Bengal Co-operative Society Act, 2006 (previously the West Bengal Co-operative Society Act, 1983). The Act extends to the whole of West Bengal and came into force on 18th January, 2011 vide Notification No. 177 – Coop/H/2R – 1/2006. Under Section 157(1) of WBCS Act, 2006, the WBCS Rules, 2011 were formulated which along with the WBCS Act, 2006 regulates the formation and working of Co-operative Housing Societies in West Bengal. The Rules 2011 came into force on 18th January, 2011 vide Notification No. 180 – Coop/H/2R – 1/2006.

Under the WBCS Act, 2006, co-operative housing societies are formed as democratic institutions that are owned, managed and controlled by the members of the society who operate their business on the principles of co-operation and mutual aid.

Under Section 3(iv) of the WBCS Act, 2006, the economic benefits out of the Co-operative Society would belong to the members of the Society and the society acts as an autonomous body with little interference from the State Government. A co-operative housing society works on the theory of mutuality and sharing of funds among the members of the society and hence the society is exempted from tax.

The Housing Society can also enter into contracts for business purpose. However, any income that is received by the Society from outside, i.e. from sources other than the members of the Society is taxable. Renting parking lot or commercial space to outsiders would incur tax liability.

The board of Directors, in a Housing Society, as formed under Section 32 of the WBCS Act, 2006, controls the operations of the housing society and constitutes the governing body vide Section 4(8) of the WBCS Act, 2006. A housing Co-operative Society is defined under Section 4(36) of the WBCS Act, 2006 and includes a society whose primary object is to provide to its members dwelling units, flats or provide land for construction of such flats or houses and the Society may also provide finance to the members for purchase of land and construction of flats thereupon. The Society also looks into the maintenance of common service facilities to its members.

A Co-operative is defined under Rule 6 of the Rules, 2011 and states:

“Cooperatives are autonomous associations of persons united voluntarily to meet their common needs and aspirations through a jointly owned and democratically – controlled enterprise and adhering to the cooperative principles and values.”   

Persons from other States in India can also become members of a housing co-operative society registered in West Bengal, provided they have the intention of residing in West Bengal permanently within a period of one year from the date of application for membership [vide Section 87(d) of WBCS Act, 2006]. Further, any member who wishes to be a part of the housing co-operative society in West Bengal must make a declaration before a Magistrate stating several details as enumerated under Section 87 WBCS Act, 2006.

The member must also showcase genuine need for housing or additional accommodation from such Co-operative Society.

Practically speaking, a person may always showcase intention to reside in West Bengal and express his need for accommodation in a co-operative housing society in West Bengal but thereafter due to change in circumstances he may also sell the flat or rent it out according to the given situation by showcasing that due to professional or business needs he has to reside elsewhere. Such declarations cannot be used against them under such circumstances. However, a test of bonafide may be called if the member fails to live up to the declaration provided while acquiring interest in the co-operative housing society.

An NRI can also be a member of Co-operative Housing Society in West Bengal if he/she abides by the above provisions and gives the necessary directions, as provided under Section 87 of WBCS Act, 2006. Please refer to the provisions contained in Foreign Exchange Management Act (FEMA) for further guidance regarding what kind of property can be held by NRIs. Agricultural land cannot be held by NRIs.

A housing Co-operative Society in West Bengal can be of three different types under Section 88 WBCS Act, 2006:

a)    a society where all the members have purchased the land for construction of unit houses on separate plots on their own or through the Co-operative Society. However, if the members elect to construct houses on their own then they must construct the same within 3 years from the date of possession.

b)    A housing society where the members have purchased land for construction of flats which shall be allotted to the members by the society.

c)     Lastly, the society may also be formed after construction has started on any building and when the members of the building want to form a Co-operative society for providing maintenance, common services and amenities.

It must also be understood that the Housing Society can build more apartments than the number of members who have subscribed as long as the plan or scheme has such option. Flats can always exceed the number of members but number of members should not exceed total number of apartments or flats.

However, under Rule 131(2) of WBCS Rules, 2011:

“In a co-operative housing society the number of members shall not exceed the total number of plots, houses or apartments proposed by a society to be allotted to members under any scheme or project of such society:

Provided that member shall be eligible for allotment of only one plot, house or apartment in a housing co-operative society.”

From the above reading, it must be understood that although a person from outside West Bengal or an NRI can be member of Co-operative Housing Society in West Bengal but they have to abide by several other regulations and guidelines as provided under WBCS Act 2006 and WBCS Rules 2011.

For more information and advice about Co-operative Housing Society check here: