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Disputes and Differences in Co-operative Housing Society

If disputes arise in a co-operative housing society located at Kalyani, Krishnanagar, Nadia, Salt Lake, or any part of West Bengal then such disputes are to be referred to the Deputy Registrar or Assistant Registrar of Co-operative Societies in West Bengal. In accordance with Section 102 and Section 145 of the West Bengal Co-operative Societies Act, 2006 (“the Act”) no Civil Court, Revenue Court or Consumer Disputes Redressal Forum shall have jurisdiction with regard to anything done or any action taken or any order passed under the West Bengal Co-operative Societies Act, 2006. Please note that the said Act came into force in 2010 and has repealed the earlier West Bengal Co-operative Societies Act, 1973 and West Bengal Co-operative Societies Act, 1983.

In Supriyo Basu And Ors vs West Bengal Housing Board And Ors. [(2005) 6 SCC 289] it has been held by the Supreme Court of India that:

“The Society is undisputedly not a department of the State and is also not a creature of a statute but merely governed by a statute. Only if it is established that the mandatory provision of a Statute has been violated, a writ petition could be maintainable. Before a party can complain of an infringement of his fundamental right to hold property, he must establish that he has title to that property and if his title itself is in dispute and is the subject matter of adjudication in proceedings legally constituted, he cannot put forward any claim based on the title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether the rights in or to that property have been improperly or illegally infringed could arise. The dispute as noted by the High Court essentially related to the claims of two rival groups of private individuals in relation to common car parking spaces. Learned Single Judge gave certain directions, which even touched upon the legality of the sale deeds. It was not open to be dealt with in a writ petition. As observed by this Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. (AIR 1999 SC 753) in relation to the question whether a writ petition would lie against a Cooperative Society the question to be considered is what is the nature of the statutory duty placed on it and the Court is to enforce such statutory public duty. The question as to entitlement of the members was to be discussed in the Annual General Body Meeting. The writ petitioners could not have questioned the decision of the Society to discuss the matter in the Annual General Body Meeting. We, therefore, find no merit in this appeal. The Society is free to convene a General Body Meeting and to discuss the rival claims regarding entitlement.”

Further, in Amal Kumar Sarkar vs. The State of West Bengal (2011) it has been further held by the Calcutta High Court that if disputes fall squarely within the statutory definition of Section 102 of the West Bengal Co-operative Societies Act, 2006, then the Writ Court will have no jurisdiction over such disputes and the Registrar will decide upon such disputes. Further, such disputes, except for money recovery suits, have to be filed before the Registrar within 3 months from the date when the cause of action arises. However, under Section 102 (3) of the Act, the limitation period can be condoned if sufficient cause is shown.

Further, although such disputes are decided upon by arbitrators, the award so passed is not an Arbitral Award and is not open to challenge under Section 34 of the Arbitration Act. This has been decided recently by Calcutta High Court in Sri Ramkrishna Banerjee vs. Calcutta Municipal Corporation (2011).

Appeals from orders or award would lie to the Tribunal under Section 146 (4) of the Act. There are provisions for appeal within 90 days and also provisions for review of order of the Tribunal within 90 days. The period of limitation of such appeal and the forum of such appeal is enumerated in the 3rd Schedule of the Act. Further, under the Act, any prosecution or money recovery has to be instituted under the Act only after proper sanction of the Registrar, Co-operative Societies, West Bengal. The Fourth Schedule of the Act enumerates the offences and penalties that are punishable under the Act.

It has been further been held in Pralay Karmakar vs. Uttara Co-operative Housing       [(2008) 1 CALLT 251 HC] by the Calcutta High Court that: under supervisory jurisdiction when it is contended in appropriate cases and members  seeks for High Court’s interference there may not be any bar simply because the points of facts are involved, rather the power under Article 227 of the Constitution is very wide enabling the High Court to ensure that the Courts and Tribunals inferior to it discharge their duties and obligations. Such contention is supported by the ratio expressed in paragraph 25 of the decision of the Supreme Court reported in 2007(4) Supreme Court Cases page – 94 (Sriram Industrial Enterprises Ltd. v. Mahak Singh and Ors.)

Since, in the West Bengal Co-operative Societies Act 1973 there is no scope of appeal against the Judgment of the Co-operative Tribunal, therefore revisional applications may lie.

In Sadhana Lodh v. National Insurance Co., it was held that:

“The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal.” In the said decision the petition under Article 227 of the Constitution by the insurer was declared wholly misconceived. As an illustration the Supreme Court has further held “where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a state enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie….”

In Surya Dev Rai v. Ram Chander Rai and Ors.(2003) 6 SCC 675, it has been held by the Hon’ble Supreme Court that:

“Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” In the self-same Judgment under paragraph 38/5 it has been held by the Supreme Court “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”

A patent error is an error which is a self evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Thus, orders of the Co-operative Tribunal can be challenged in court if such orders do not provide for appeal or if such statutory orders are against public policy or against the basic tenets of natural justice.

For more information about Co-operative Housing Societies you can read my post here: https://advocatechenoyceil.wordpress.com/2014/02/19/co-operative-housing-society-west-bengal-rules/

55 replies on “Disputes and Differences in Co-operative Housing Society”

can a flat owner of a cooperative housing society purchase a second flat at the same society in the name of his wife under W.B.Cooperative housing society act without voting rights.Please advise immediately,I thank you,

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Wife falls within husband’s family and cannot own flat within same society. However, with limited rights, the co-operative society may admit a nominal member under Section 63(3) of WBCS Act, 2006. However, the eligibility for nominal membership is further guided by Section 87 WBCS Act, 2006 which restricts a wife from becoming a member of the same society in which her husband is a member or owns a flat. Please check the bye-laws of the particular society and seek their advice.

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can a flat owner of a cooperative society gift the flat to his near relative i.e daughter or son

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If in a WB Co-operative Society where some houses are already being used for commercial purposes for quite sometime, any owner now give his house on rent for a kindergarten/ nursery school (students limited to 30 nos), can the Society object it in principle ?

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Our society is not amending bye laws approving compounded interest as in force earlier.ignoring Jt.Registrar orders to amend bye law and refrain from charging interest. There is no provision of charging interest in the ;latest Rules of W B Co operative rules now in force. A supreme court order holding G B resolution superseding all rules or absence of it so long it is not in conflict with the statutes is the plea the Managing Committee is arguing authorizes their current stand which appears illegal. How valid is the argument forwarded which needs to clarification..

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If any flat onower put his flat on rent with the permissio
of society . Any govt. act available to claim some
persentsge of rent claim from flat onower by the
society ?

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Does Registration of an indiviual flat in a co-operative society requires all the members presence??what are the requirements for registration??

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Our co op. society not accepting my letter by hand or by post regarding documents deliver for bank loan.Not accepting mobile calls.What can I do?

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Dear Mr Chenoy, My wife is already a member of a co-op housing society in Newtown. As it is a small one ,so I wanna buy another co op flat in purbachal ,salt lake.Is there any legal hindrance from co op housing rules? Please inform me. Thanks.

Mr a bhattacharyya

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It has been learnt from your previous comments that a Co-op society can draw 10% rental charges from the owner of a rented flat. Whether Society is required to pass it in a GB or in Board meeting?

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I have a house in Co-operative society in Rajarhat Municipality area. The society was formed in 1985. I have been trying to sell this house for last two years. My application for sale is being refused by the society on the grounds that, ‘as per bye laws of the society’- the applicant has to be Bengali, Applicant has to be employed in some company/retired from some company, applicant can not be a business man( even for his residence purposes)’.I am not getting employed person who can pay the sale value And able to get only person having business & with ready fund. My such application has been rejected in 2014. There after I have written application to Society for handing over the copy of such ” bye law”. They do not respond to my Registered letters. They have signed the AD.

I have therefore three queries,
1) Are such byelaws- really validated by the authorities.
2) Whether under WBCS act 2006/WBCS rules 2011, there is provision to sell house to anybody of my choice?
2) Should I make application -on plain paper to Deputy registrar Of co operative Societies, Barasat- allowing me for such sale–as the co-operative is not giving NOC. I also attach application from the prospective buyer that he is ready to buy this house for residential purposes.
eagerly await your advice.

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As per Section 93 of the West Bengal Cooperative Societies Act’ 2006, in the event of letting out of a house by the member, the Housing Cooperative Society may realize a tenancy charge @10% of the monthly rent from the tenant per month. Please guide whether the maintenance charges recovered from a tenant by a member of Society, would also for part of rent for payment of tenancy charge payable to Society. The rent agreement between member and tenant shows bifurcation of the monthly rent (e.g 20000/-) and maintenance charges ( Rs. 3000/- per month). Whether 10% to be paid on Rs. 23000/- or Rs. 20000/-.

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Hello Mr. Mandal. Good question. The 10% is on the rent. Maintenance charges are separate from rent. However, if the maintenance charges are included in the rent agreement then it may be considered as part of the rent that is paid by tenant. It is a moot question. Depends on how the society considers it. Email me to chenoyceil@gmail.com for detailed help. Thank you.

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1.Can Joint member be a director and secretary if he is professional qualified if first named member is absent in meeting
2. Can director be elected without interferrance of election commissioner in the year 2015

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Our Co-operative Housing society (at New Town, Rajarhat, Kolkata) is registered and completed the building construction and also handover the flat. What is the procedure and documents required for individual flat registration?

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I have been elected as a Secretary of a HSG Co-operative at Salt lake recently.
I have observed,
1) there is no audit from 2009 to till now. Is that mandatory to make Audit by Govt. auditors or It can be done by private auditors.
2) there is no submission of Annual return to the Registrar. What will be the fine for that. Co-operative is 20 years old.
3) there is no rule here for any membership fees by the members. How can I introduce that?

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A flat in a cooperative housing society is up for sale and we are interested in buying it. The flat falls under LIG category. I am a retired pensioner and my monthly income is below 30,000/-. Could you kindly advise on the procedure that I need to follow to make sure that the flat/share transfer is legally tight. I would like to avoid any kind of fraud transactions.

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sir, 8 of us willing to form a co-operative housing and purchase land from wbhidco in the year 2000. after allotment 2 of them stopped their portion of installment. hidco charged interested on dues. by collection from others members we paid the balance payment in the year 2005. on 2011 that 2 members asking for one lack each for leaving the co-operative. we paid them by ourselves and now in the year 2015 when we try to introduce new 2 members and proced to registration our co-operative at DRCS.
Those 2 outgoing members asking for more amount. using the political/police power they complain against CP to throw them out from co-operative. they also said same language in the time of hearing at wbhidco.
so wbhidco also not update the members list after shown all evidence like, 6 no of resolution, refund cheque passed from CP a/c on 2004. they also challange that their resignation letter is false

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Sir, Namaskar, my father in law is a member of DSP housing cooperative society,Durgapur and have a plot where he has constructed a house my mother in law has expaired on April 2018. My brother in law is living with my father in law in said house. My father in law is seriously ill he wants to divide the property between both son and daughter equally. so what formalities we have to do with the cooperative society so that it may lawful deal.

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I, employee of NTPC had purchased a flat through IRWO in Rail Vihar Kolkata as this scheme was opened for Railway/Govt./PSU employee. After registration of Cooperative Society of Rail Vihar , I registered the flat after becoming the member of Society.As, I residing most of the time at my working place outside the Kolkata, I had given my flat on rent most of the time after according permission of Society. Now after retiring , I have decided to sale this flat and planned to stay some other place. According to Society guide lines, I had given the letter to Society Secretary for selling this flat in the month of July’18. Immediately, Society issued the notice for sale of said flat. After finalization of customer who is daughter of member of society ( Secretary informed me they would give first preference to member’s children), I have made agreement with her for selling this flat and submitted all requisite documents to the society for according the permission from the Directors through board meeting. They were unable to conduct board meeting up to 7th Oct’18 (more than three months). After conducting the BOD on 07.10.2018, it was informed by Secretary of society your case has been approved in BOD and collect the letter after handing over the flat key as they desire to use this flat for Durga Puja committee work but I conveyed him that presently, I am outside Kolkata, how can I hand over key of the flat and in spite of my repeated request he is not issuing the NOC mentioning different reasons like you never stayed in this flat etc.
Therefore, you are requested to guide me , how to handle this case?

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Samir Kumar Haldar October 21, 2018 — 11:48 AM
Your comment is awaiting moderation.

I, employee of NTPC had purchased a flat through IRWO in Rail Vihar Kolkata as this scheme was opened for Railway/Govt./PSU employee. After registration of Cooperative Society of Rail Vihar , I registered the flat after becoming the member of Society.As, I residing most of the time at my working place outside the Kolkata, I had given my flat on rent most of the time after according permission of Society. Now after retiring , I have decided to sale this flat and planned to stay some other place. According to Society guide lines, I had given the letter to Society Secretary for selling this flat in the month of July’18. Immediately, Society issued the notice for sale of said flat. After finalization of customer who is daughter of member of society ( Secretary informed me they would give first preference to member’s children), I have made agreement with her for selling this flat and submitted all requisite documents to the society for according the permission from the Directors through board meeting. They were unable to conduct board meeting up to 7th Oct’18 (more than three months). After conducting the BOD on 07.10.2018, it was informed by Secretary of society your case has been approved in BOD and collect the letter after handing over the flat key as they desire to use this flat for Durga Puja committee work but I conveyed him that presently, I am outside Kolkata, how can I hand over key of the flat and in spite of my repeated request he is not issuing the NOC mentioning different reasons like you never stayed in this flat etc.
Therefore, you are requested to guide me , how to handle this case?

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Sir, could you tell us the legal aspects of construction of lift in a KMDA Cooperative society especially for the senior citizens?
Thank you.

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Hello
From your writting it is understood that any person can have membership in more than one housing cooperative society, if not in same location. In this respect can you refer any acts and/or rule or order referring to this?

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In my society total members are 9 holding equal share but three size of flats.Building is G+3. .Now we want s to know that …
1) How can we contribute maintained cost.
Equally as per share or unequally as per occupancy area.
2) how can we divide parking area. Equally or unequally ?
Presently parking is common.
Plz answer me sir.

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If the society is registered, what’s stated in the bye-laws of the society? You can also decide in the general meeting by vote if it is not decided already. Generally, it is proportionate to area holding, but sometimes, it is also a fixed price. It all depends on the co-ordinated decision of the housing society members and how it has been enumerated within the bye-laws of the society. Let me know if you require any professional help.

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I am regularly paying Durga puja subscription yearly to my housing society. But they are not sending me the income – expenditure of Puja expenses to me . Are they supposed to send it to me by registered post, hand delivery or by email? Our housing registered under west Bengal apartment owners Act and bye laws. Please advice. Mention relevant authority for me to ask for the puja expenses balance sheet. Regards

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My wife became member of a co-operative housing society in 2006 after demise of her mother in 2000, by way of nomination, but the apartment is yet to be registered in her name. I became a member of another housing society in 2003. Is it mandatory to sale my this (bought in 2003)property to get my wife’s apartment registered in her name as per respective rules & acts?

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one son got nomination after demise of father member who got ownership of plot within society.plot devolved upon all legal heirs. Can any one legal heirs entitled to file partition suit before civil court when nominated member denying to take any proper step.

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There are many flats rented out in our Co-op Housing Soc.
I have recently signed a lease with a foreign tenant with 5 months prior written intimation to the Society office. But on the behest of a physical interview of the tenant, the Secretary has denied entry of the tenant and purposely kept the date of interview after 20 days from the agreement start date and meanwhile, Managing Committee expects the tenant to stay in a hotel. Their intention is mainly to harass us. We have every proof of the communication with them which was mainly by hardcopy letters and emails.
They have denied facts and construed them in such a way that to look like that we are at fault, but we have followed every rule which is required in this procedure.

What can we do in this case? How can we get a solution?
The owner of the flat is a widowed lady of 73yrs and yet she is being harassed?
Is there a body where our complaint can be heard and we get a solution?

Kindly advise?

Thanks in advance.

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