Archive for July, 2014

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.

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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: https://advocatechenoyceil.wordpress.com/2014/02/19/co-operative-housing-society-west-bengal-rules/

Transfer of property defined under Section 5 of the Transfer of Property Act, 1882 as an act by which a living person conveys property, in present or in future, to one or more other living persons, 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.

As per General clauses Act also ‘person’ includes a company or association or body of individuals, whether incorporated or not

Trust is defined in section 3 of the Trust Act, 1882 as ” an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner. In simple words it is a transfer of property by the owner to another for the benefit of a third person alongwith or without himself or a declaration by the owner, to hold the property not for himself and another.

Membership in a housing society has to abide by the rules under Section 63 and Section 87 of WBCS Act, 2006. Further, a member in a housing society is defined under Section 4(41) of the WBCS Act, 2006 and inter alia includes a joint member, a self-help group or a nominal member.

A self-help group has been further defined under 4(60) of the WBCS Act, 2006 and includes a group of persons, men or women of 5 to 20 who belong to different families and to the weaker section of the society and have their residential address within a contiguous place.

Further, you must note that the provisions of Companies Act do not apply to Co-operative Societies vide Section 8 of the WBCS Act, 2006.

However, most importantly you must note that only individuals can be members of Housing Societies as under Section 87 WBCS Act, 2006, in addition to the conditions given under Section 63 WBCS Act, 2006, only individuals can be members of Housing Societies. There is no provision for Companies or Firms or Trusts owning such property.

Members also have to submit several documents under Rule 131 of Rules, 2011 such as:

“i) Declaration in the form of an Affidavit in prescribed form (ii) Two recent passport size photographs duly attested by the Chief Promoter and in case of Chief Promoter by an M.P./M.L.A./ local Municipal Commissioner/Pradhan of GP/any Gazetted Officer of the State or the Central Government/Headmaster/ Principal of any Government recognized educational Institution. (iii) Copy of salary certificate or copy of Form – 16 showing deduction of P. Tax (in case of salaried persons), (iv) Copy of Professional Tax Registration Certificate or Professional Tax Enrolment Certificate or Professional Tax Clearance Certificate, as the case may be, (in case of professionals), (v) Copy of PAN Card or PPO or P.Tax Clearance Certificate in case of other category (vi) Application for nomination in prescribed form.”

Further, a company or firm cannot be a member because even if the owner of such apartment wishes to transfer the apartment, he has to obtain permission of the Housing Society as enumerated under Rule 131(3)(a) of Rules, 2011 and the person intending to be a member must show genuine need for housing or additional accommodation from such society and file a given form.

Further, the member also has to abide by Rule 138 of Rules, 2011 and obtain written consent of the Society in case the member wants to transfer the flat.

For more information and advice about Co-operative Housing Society check here: https://advocatechenoyceil.wordpress.com/2014/02/19/co-operative-housing-society-west-bengal-rules/

To register a co-operative housing society in West Bengal, you need at least 8 members.

If one member has the land in his name he cannot start the society without the requisite number of members. However, under Rule 131(6) of the West Bengal Co-operative Society Rules, 2011 (WBCS Rules 2011), a person conveying a plot of land in favour of a co-operative housing society and who 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. Thus, the owner of the plot can become a member of the Society along with other 7 members.

Registration of a housing society is guided under Section 16 of West Bengal Co-operative Society Act, 2006 (WBCS Act 2006). While registering the society you need at least 8 signatures of members from different families with their addresses and occupations.

Under Section 16(5), the application for registering the housing society would be disposed off by the Registrar within 90 days from the date of application and the certificate of Registration would be delivered to the applicant or chief promoting officer.

In case, registration is not allowed, the applicant may further appeal to the Co-operative Registration Council within 30 days from expiry of the previous 90 days or 30 days from the date of receipt of the order of refusal.

Further, it must be noted that the Co-operative Society that has not yet been registered can also enter in transactions in good faith with members or other parties and such acts will get validated upon registration of the Society. This implies that contracts entered into before formation of the Society would also get validated once the Society is registered.

Under Section 17(2) of the WBCS Act 2006, all transactions entered into in good faith prior to registration of the purposes for the Co-operative shall be deemed to be transactions of the society upon registration. Once the society has been registered, it can hold property and even sell or acquire property.

Thus, the owner of the land can sell the land to the Housing Society and thereafter become a member of the Society. The Housing Society can induct members into the society as long as there is availability of flats or apartments.

To apply for membership, the member has to apply in the following format under Rule 108 of the Rules, 2011.

 

FORM XXVIII

Form of application for membership of a co-operative society

[ Rule 108 ]

To

The Secretary/Manager/Chief Executive Officer/Managing Director

……………………………….Co-operative Society Ltd.

 

Dear Sir,

I hereby apply for membership of your society.

I have studied the registered by-laws of your society and the West Bengal Co-operative Societies Act, 2006 and the Rules made thereunder and I hereby declare and undertake to abide by the provisions of the by-laws, the Act and the Rules.

 

Signature

 

Registration fees are payable on transfer of land and upon the cost of transfer. The necessary stamp duty and registration fees would be payable by the Society upon transfer of land in its name. The Registration Act and Stamp Duty Act regulate such provisions.