Steps to Transfer
- 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.
- 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.
- If the Society rejects the proposal for transfer then you may refer the dispute to Registrar within 30 days from such refusal.
- 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.
- 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.
- 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.
- However, you must apply within 3 years and preferably immediately after transfer has been completed.
- 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.
- 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.
- 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.
- Do check whether your Society is registered with KMAH or RTAH or any other district Registrar and send the written complaint to such Registrar.
- 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.
- 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.
- Further, under Section 102(3), the Registrar may admit disputes after the limitation period by condoning the delay if sufficient cause is shown.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”