Can a Trust, Company or Firm own Co-operative Housing Property in West Bengal

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