Along with the West Bengal Co-operative Societies Rules, 2011, the 2006 Act regulates the formation, structuring and working of co-operative housing societies in West Bengal.
West Bengal Co-operative Housing Societies Act 2006
Housing Co-operative society is defined under Section 4(36) of the 2006 Act. What is important to note is that a member of the co-operative society in West Bengal or Kalyani can be single, joint or nominal member as defined under Section 4 (41) of the Act. A Co-operative housing society means a co-operative society, the object of which is to provide its members with dwelling house, apartments, or lands or construction of dwelling houses or apartments, and maintenance of common services in connection therewith, and includes a federation of such societies. Members holding a particular flat in a housing society jointly can be in the relationship of (i) husband and wife, or (ii) father and son or daughter and (iii) mother and son or daughter. Further, under Rule 2 (k) of the WBCS Rules, 2011, family also includes adult son or daughter irrespective of marital status in addition to the members defined under Explanation of Sub-Section (3) of Section 16 of WBCS Act, 2006.
Membership of 2 Housing Societies Not Allowed
Chapter VIII of the 2006 Act deals with special provisions with regard to housing Co-operative societies. One of the most common query regarding housing societies is whether a person can be a member of more than one housing co-operative society? The answer is a resounding No when it comes to West Bengal. A single member can own more than one flat but not two co-operative housing flats. As long as a person, or any member of his family does not own any plot, house or flat within the local limits of any municipal corporation or municipality or town or gram Panchayat or notified authority area where the housing Cooperative society is situated except for the one where he is applying or has applied. Then the person is under no legal disability to own more than one flat in that housing society. This implies that if the person has another flat or land or plot located at another different municipality area or town or gram Panchayats or notified authority areas then the person can still become a member of a housing cooperative housing society. This implies that a person can own a co-operative housing apartment or flat when the person’s other property is in different jurisdictions. However, ownership of 2 housing co-operative flats in West Bengal is not allowed. An experienced property lawyer in West Bengal and Kolkata can guide you further in such matters.
Developer cannot be Member of the same Housing Society
Another important facet to note that has been asked by a lot of developers and promoters who wish to build a co-operative housing society in a self owned plot and whether it is allowed in law. It is absolutely allowed. Any person can construct flats in his own plot of land and later create a co-operative housing society and sell of the flats. The only impediment is Section 87 (1) (f) of the 2006 Act which states that an individual cannot be a member of the Co-operative housing society if he has entered into any contract with the housing society in the matter of any work constructional or otherwise relating to a project of the Cooperative society. This implies that the member cannot later enter into construction work for the housing society after the flats are constructed. However, he is always free to construct the flats and then sell them off to members. This is also resonated in Section 131(6) of the West Bengal Co-operative Societies Rules, 2011 which states that a person who has entered or intends to enter into any contract with a co-operative housing society in the matter of any work, constructional or otherwise, relating to a project of the society shall not be eligible to be a member. However, where a person conveying a plot of land in favour of a co-operative housing society intends to become a member of such society without any additional consideration and is otherwise eligible for such membership, he may be admitted as a member of such society.
Family Cannot Own 2 Memberships in Housing Societies
The definition of member and family is often complicated by legal jargon. However, simply speaking, a co-operative housing society can be constructed by members of different families. For registration of a housing Co-operative society, a minimum of 8 members are required from different families as provided under Section 16 (3) of the Act. Section 130 (2) of the West Bengal Co-operative Societies Rules, 2011 states that 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. Further, a member shall be eligible for allotment of only one plot, house or apartment in a housing co-operative society. Under the Act, it is explained under Section 16 (3) that a family is generally deemed to consist of Husband, Wife, Minor sons and daughters, dependent widow of a predeceased son, minor sons and daughters of a dependant widow of a predeceased son, husband’s and wife’s dependent parents and dependant divorce daughter. This also includes adult son and daughter, irrespective of marital status under Rule 2(k) of WBCS Rules, 2011. Anyone, outside of this and far-off relatives are free to be members of the same housing society. For further clarification in this regard, contact the best property lawyers in West Bengal who have experience in handling housing society matters.
Case Laws
It has been held in by the Supreme Court in Gayatri De v. Mousumi Co-operative Housing Society Ltd. and Ors. [2004(2) WBLR (SC) 364] while dealing with Sub-section (3) of Section 87 of the said Act and, thereupon, observed in paragraph 26 of the report as follows:
“26. In terms of the Act and the Rules, the heirs of a deceased person are, therefore, entitled to inherit the flat allotted to the deceased as in the instant case. Admittedly, the flat in question was allotted to the father of the appellant who died thereafter and as a consequence thereof, the heirs of the said deceased became and would be entitled to the estate and as a result thereof to the said flat with proportionate interest in the land. The declaration contained in Sub-section (3) of Section 87 of the said Act is clear and unambiguous. By such declaration it has been made abundantly clear that in relation to an immovable property allotted by a Housing Co-operative Society, the legislature did not intend to change the line of succession of a member in his such allotted property. The statutory embargo is that such a property cannot be sub-divided or partitioned.
In Parul Sengupta vs Registrar of Co-op Societies [2005 (1) CHN 281], the court held that the writ petitioner, in whose favour nomination has been made, shall not be made a member of the said Society and having regard to the legislative intent contained in Sub-section (4) of Section 69 it may not be possible for us to direct the appellants to be joint members along with the writ petitioner, but to protect the interest of the appellants in the flat, which they have inherited, it is necessary for the said Society to record their interest expressly in the Share Certificate as well as in its records pertaining to members and, in particular, in the register of members so that one of the joint owners merely because of the nomination in her favour cannot transfer either the share, in which she has a part interest, or the allotment, where also she has a part interest, for the same is expressly declared to be transferable and, accordingly, can only be transferred by express consent of all the heirs.
Registration Format of a Housing Society in West Bengal
For registration of a Co-operative housing society, FORM I for the registration of a Co-operative Society with limited liability under Rule 9 (1) has to be submitted to the Registrar of Co-operative societies in the following format.
PART-I
To
The Registrar of Co-operative Societies,
Dated …………. 20….
Sir,
We, the undersigned, agree to the enclosed by-laws and under section 16 of the West Bengal Co-operative Societies Act, 2006 (West Ben. Act XL of 2006) apply to be registered as a co-operative society with limited liability under the title of …………………………….……. the registered office being at ……….…………………… Post Office ……………….……………. Thana ……………………….. Town/Panchayat ……..………..…………………………………… Sub-division ……………………..…………….. District ………………………………………..
Thereafter provide the Name of Applicant for Registration, Father’s Name, Occupation, Age, Permanent Address, Present Address, Whether member any other society and Signature or L.T.I. of applicant
In PART-II of the Application provide:
1. Name of the proposed society ………………………………………………………………………
2. Nature of liability of members …………………………………………………………………
3. On share basis or without shares …………………………………………………………………
4. Number of applicants …………………………………………………………………………….
(a) Individual :
(b) Co-operative Societies :
5. Names of the members of the first board (constituted under section 16(2) (c) of the Act.
(1) …………………………………………………………….. Chairman
(2) …………………………………………………………….. Vice-Chairman
(3) ……………………………………………………………..
(4) ……………………………………………………………..
(5) ……………………………………………………………..
(6) ……………………………………………………………..
6. Names and address of the person (Chief Promoter in the case of a housing co-operative society) to whom communications, if any, are to be addressed till registration of the society
………………………………………………………………..
7. Certified that each of the applicants belongs to a different family as required under section 16(3) of the Act.
Signatures of three applicants authorized by the promoters to sign and certify on their behalf
(1) ………………………………..
(2) ………………………………..
(3) ………………………………..
Date: …………………………
Registration Procedure For Co-0perative Housing Society
Step -1:-Purchase 3 copies of Application Form (Form No-1) and three copies of Bye laws.
from either West Bengal State cooperative union, 23 A, Netaji Subhas Road, 7 th Floor, Kolkata-7000001
or from Office of the District Cooperative Union of all Districts.
Step- 2:- Obtain confirmation / approval of the proposed cooperative society from the office of the concerned Registering Authority.
Step-3:- a. Fill up the Application Form and the bye laws in triplicate.
b. Get them signed by all the intending and eligible members.
c. Get the signatures attested by the Chief Promoter (both for the application form and bye laws).
Step-4:-Enclosed the list of following documents along with the Application Form.
- 3 copies of the bye laws duly filled in along with the resolution adopted by the promoter members and also in keeping with the relevant provisions of the West Bengal Cooperative Societies Act and Rules.
- Photocopy of plot allotment letter issued by the appropriate authority /
- 2 passport size photographs of all the intending applicant members signing the application form and the bye laws including the Chief Promoter.
- (a) Either latest Salary Certificate or copy of Form 16 reflecting deductions
Professional Tax and duly signed by the Head of the Office or D.D.O.
(b) other professionals should have to submit the Professionals Tax
Registration Certificate or Professional tax Enrolment Certificate as the case
may be.
(c) Govt. Pensioner should have to submit copy of latest I.T.R and copy of
pension payment order.
5. Declaration in the form of affidavit before a Magistrate or a Notary Public as per
model proforma.
6. Copy of the resolutions of all the Promoters’ meetings.
7. Copy of Application for nomination submitted by the each applicants.(enclo C)
8. Declaration of the Chief Promoter addressed to the Registering Authority as detailed under:-
a) I have not acted as Chief Promoter or acting as Chief Promoter in any other Cooperative Housing Society other than the proposed society.
b) It is the sole housing project sponsored by the proposed society.
c) I have obtained the affidavits, nomination, photographs in duplicate, salary certificate / copy of F-16 / P. Tax Registration Certificate / P. Tax Enrolment Certificate.
d) I will furnish all other related document or information considering the nature/ type of cooperative housing society as and when called by the Registering Authority.
9. Statement of up to date accounts (receipts & payments) indicating the period of accounts.
10. Any other document depending upon the project and nature of the society.
All the above documents excepting the affidavits should be attested by the C.P.
The Chief Promoter’s photograph should be attested either by M.P / M.LA / Local Municipal Commissioner / Prodhan of G.P /Group a Officer of Central / State Govt.