Archive for the ‘Real Estate Help’ Category

Developers do not Have to Maintain Flat or Apartment after Registration is Completed and Property Handed Over

The Calcutta High Court in Merlin Tf Lake View & Ors vs Ruchir Jain & Ors on 26 August, 2015, held that:

“Once the apartments are constructed and registration is completed, we fail to understand how the maintenance charges could be borne by the developer. It has to be borne by the respective owners of apartments or the tenants depending upon the agreement between the owner of the flat and the tenant who occupies a particular flat.”

The Court also directed the Special Officer appointed by the Court to:

“collect the said money from the flat owners who are refusing or reluctant to pay at the rate of Rs.2 per sq.ft. towards the maintenance charges.”

It is pertinent to note that maintenance charges and maintenance of the apartments, after the building is constructed, the apartments ready and handed over, is upon the owners and residents of such apartments. Forming an apartment association is the best option to deal with apartment maintenance charges. However, if no association can be formed, then the majority of the owners should come together to initiate process of registering an association. It is an easy process and with the coming of the Amendment Act of 2015, all owners are not required to form the association.

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In continuation to the earlier analysis of thika tenancy in West Bengal : https://advocatechenoyceil.com/2013/07/13/deconstructing-west-bengal-thika-tenancy/

It has now come to light that the current West Bengal government is trying to bring a one window mechanism to help thika tenants and bharatias regulate their holding. Under the new law, the thika tenants or bharatias will not require the No Objection Certificate (NOC) from the Thika Controller before applying to the Kolkata Municipal Corporation (KMC) to bring about changes to the structures. Th government is trying to provide Occupancy Certificates to all Thika Tenants that allows them to directly apply for building plan from the KMC. Under the system, thika tenants will no longer be required to wait to get approved NOC from the Thika Controller.

This is a great initiative by the government to cut down on the multiple regulations that complicate the process of Thika Tenancy in West Bengal. However, it will also create chaos with realtors rushing to the thika tenants to get power of attorneys that will then allow them to obtain building plans sanctioned by the KMC. For thika tenants living in poverty and slums, this move allows them to bargain and create value for the land they are holding. However, most thika tenants are unaware of their rights and realtors are lurking to take advantage of them.

This will lead to further disputes and unless effectively controlled, this initiative can backfire.

You can read more about this here: https://www.kmcgov.in/KMCPortal/downloads/Thika_Tenant_29_12_2014.pdf

As of now over 28,000 applications for construction of buildings on thika and khatal land have been pending with the KMC for the past 10 years and it is to be seen how the KMC handles this new ruling. Further, any amendment to the law will be highly contested and it is to be seen how the courts adjudicate the matter.

According to the latest update in the FAQs by the Department of Cooperation, the cooperative housing society cannot charge any fee or donation for transfer of membership from the transferor/member.

This is the latest update from the previous position, where, the society could charge upto 0.5% of the sale value in terms order no. 2522 dated 23.6.2003 of the Cooperation Department.

However, according to the latest update, it is evident that the society cannot charge anything extra and if they do, then the member/transferor or transferee must immediately bring this to the notice of the Registrar.

Please check more details here: http://coopwb.org/faqs.php

 

Today, most developers are selling stilt car parking separately but it is illegal as held by the Supreme Court. Common areas cannot be sold by the Builder/Promoter but the Co-operative Society can regulate such spaces to allow parking to the members of the society.

The Supreme Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited held as under :

“49 The question then is as to whether the stilted portion or stilt area of building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.

65 ……..The promoter has no right to sell any portion of such building which is not a “flat” within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right which remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell “stilt parking space” as these are neither a “flat” nor appurtenant or attachment to a “flat”.”

But we have already held that `stilt parking space’ is not covered by the term `garage’ much less a `flat’ and that it is part of `common areas’. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas’ of the building developed by the promoter, the only right that the
promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat’ under Section 2(a-1) nor `garage’ within the meaning of that provision is not sellable at all.

The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the (2008) 4 SCC 144 promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces’ as these are neither `flat’ nor appurtenant or attachment to a `flat’.

Stilt parking or open parking of any building has to be regulated by a co-operative housing society when formed and under its bye-laws. General Body of a co-operative housing society has got every right to dispose of or to make an arrangement of parking of the vehicles of the members/flat-occupiers by laying a policy to that effect in its general body meeting and the Managing Committee of such co-operative housing society has to carry out the directions given in this behalf by the general body of the society.

 

The Bombay High Court held in M/S. M. Mamotra Associates vs Cooperative Societies Act on 3 January, 2013 (2010) 9 SCC 536 that:

Clause (21) reads as under –

“21 The Buyer of the respective Flats shall be entitled to use and occupy their respective flats only and will not claim any rights in the terraces, staircase, open spaces, compound, parking places, stilts, Garages, etc.”

18 From this it is clear that the claimant was fully aware of the fact that what he could sell to the new flat purchasers was only the flats and nothing else. Moreover, stilt car parking space is an immovable property and if at all it is to be sold, it is to be sold by the registered Agreement, as required under the provisions of the Transfer of Property Act. No such agreement has been produced by the Claimants. This was obviously because he was fully aware that he has no right to sell the stilt car parking spaces.

 

An apartment or a flat is a self contained housing unit that forms part of a building. Under West Bengal Apartment Ownership Act, 1972, (the Act) Section 3(a), an apartment means a property that has direct exit to a road or to a common area leading to such road and the apartment along with common areas and facilities forms an independent residential unit and it also includes a flat.

The object of the Act is to provide for ownership of an individual apartment and to make such apartment heritable and transferable property. The concept of apartment was born due to increasing population and growing need for housing in India and West Bengal. The object of the Act is not just to make such apartment units heritable and transferable but also to set out the common areas and facilities and the percentage share of each apartment owner in the apartment building. Most States in India have separate apartment ownership Acts that regulate such units in different States.

The main difference in Apartment Ownership Acts in different States of India is the purpose for which such apartments are utilized. While in States such as Maharashtra and Haryana, apartments can be utilized for residential as well as commercial purposes, apartments in West Bengal are Kerala are predominantly utilized for only residential purpose. Under West Bengal Apartment Ownership Act, 1972, Section 2, the Act applies to every building which is used, or is to be used, mainly for residential purposes.

Under West Bengal Apartment Ownership Act, 1972, Section 3(b), an association of apartment owners means the association competent to contract its own name and formed in accordance with provisions made in the bye-laws of the association.  This association can be formed in accordance with the Act and the West Bengal Apartment Ownership Rules, 1974.

The association works for the welfare of the residents in an apartment, conducts events and protects the rights of the apartment owners by maintaining varied duties.

The association in West Bengal can be formed by all the owners individually or they can give power of attorney to one person who can submit the building or property under the provisions of the Act. The benefit of registering the property under the Act is that it provides legal help to the residents in case of disputes. Further, it helps in organizing the maintenance of the society and provides clear bye-laws for the residents to abide and follow. If any association is formed which engages in maintaining the property or building without registering under the Act then it is cannot be termed as illegal per se but it is rather an interim/ad-hoc/unregistered association which needs to be registered under the Act.

Steps for Formation of Registered Apartment Owner’s Association under the Act:

Filing of Form A

  1. Firstly, the sole owner or all owners shall submit to the Competent Authority under the Act, a declaration in the given Form A in duplicate in non-judicial stamp paper of Rs. 10/- which needs to be duly signed and notarized. Enclosed within the Form A must be authenticated copies of the Building Plan, Site Plan and all relevant Title deeds. However, in case of prospective buyer, he may also enclose photocopy of the Agreement for Sale Deed duly attested by Notary instead of the sale deed.
  2. The filled in Form A with all annexure must be submitted in duplicate to the Competent Authority within 15 days from the date of their execution. Along with such Form A, the receipt of RBI fee paid and TR Form 7 has to be submitted to the Competent Authority.
  3. Form A can be submitted to the Competent Authority under the West Bengal apartment Ownership Act, 1972 at Law and Promoter Cell, 3rd Floor, ‘C’ Wing, New Secretariat Building, 1, Kiran Shankar Roy Road, Kolkata 700 001. Telephone No. (033) 22420801
  4. A forwarding letter needs to be sent to the Competent Authority along with Form A and all other necessary documents stating the fact that he is submitting the property under the West Bengal apartment Ownership Act, 1972 by way of filing Form A which may be accepted.
  5. After examination/verification of Form A and approval by Competent Authority, a copy of approved Form A with “Accepted” Stamp, date, signature and seal will be returned to the applicant.
  6. After receipt of Accepted Form A, the same needs to be registered within 15 days of return. The duly “Accepted” Form A must be registered under the Registration Act, 1908 with the Registrar / Sub-Registrar having jurisdiction over the property.
  7. After registration, the same needs to be notarized and communicated to the Competent Authority. A photocopy of the registered Form A duly attested by a Notary is to be filed with the Competent Authority along with Form 1 for getting Registration No. of the Association of the Apartment Owners.

Fees for Registration of Association

The fee for registering association is commensurate with the total value of the apartments of the building (i.e. if there are 8 flats of value Rs. 10,00,000/- each the total value of the Apartments will be Rs. 80,00,000/0_ is to be deposited with the Reserve Bank of India in T.R. Form No. 7 under the appropriate head of account.  The T.R.Form No. 7 and computerised receipt of the Reserve Bank of India (both original) and 1 set photocopy of both are to be enclosed.

(i) Amount of Fees :

(a) Upto Rs. 25 lakhs – Rs. 1000/-

(b) Above Rs. 25 lakhs upto Rs. 50 lakhs – Rs. 2000/-

(c)  Above Rs. 50 lakhs upto Rs. 1 crore   – Rs. 4000/-

(d) Above 1 crore upto Rs. 5 crores – Rs. 5000/-

(e) Above Rs. 5 crores – Rs. 10,000/-

(ii) Appropriate Head of Account :

 

“0216 – Housing – 02 – Urban Housing – 800 – Othen

Receipts – 008 – Receipt under the West Bengal Apartment

Ownership Act, 1972 – 16 – Other Fees”

 

(iii) Account Code : 0216 – 02 – 80000816.

(iv) Name of the Treasury : Kolkata P.A.O. – II

A specimen of duly filled in T. R. Form No. 7 is given below:

West Bengal Form No. 2380H

  1. R. FORM NO. 7

[See sub-rule (2)(b) of T.R. 3.06]

Challan for Deposit of money in the account of

GOVERNMENT OF WEST BENGAL

 

  1. Name of the Bank of Branch  :  R.B.I., Kolkata
  2. (a) Name of the Treasury       :  Kol., P.A.O. – II

 

(b)   Treasury Code :

  C   A   C

 

  1. Account Code :

 

0 2 1 6 0 2 8 0 0 0 0 8 1 6

 

(14-Digit must be filled up properly)

 

  1. Detail Head of Account : “0216 – Housing – 02 – Urban Housing – 800 – Other Receipts – 800 – Receipt under the West Bengal Apartment Ownership Act, 1972 – 16 – Other Fees. Code : 0216 – 02 – 80000816”.
  2. (a) Amount : Rs. 250/-

(b)  In words : Rupees Two hundred fifty only.

  1. By whom tendered : Name & Address : XYZ,   ABC Road, Kolkata – 1.
  2. Name / Designation & Address of the Departmental Officer on whose behalf/favour money is paid : Competent Authority, Under the West Bengal apartment Ownership Act, 1972, Govt. of West Bengal, Deptt. of Housing, Law Cell, New Secretariat Building, 1 Kiran Shankar Road, Kolkata 700001.

 

  1. (a) Particulars and Authority of Deposit : Fees for Form – ‘C’ Instrument executed Apartment Owner(s) Under Sub-clause (i) of Clause (b) of Sub-Section (3) of Section 4 of the West  Bengal Apartment Ownership Act, 1972.

*(b) T. V. No. & Date of A. C. Bill :

 

  1. Accounts Officer by whom adjustable :         Accountant General (A & E),

Verified                                             West Bengal

 

Signature of Department/Treasury Officer

Depositor’s Signature                                   Treasury Receipted Challan No.

Date :                                                         Bank Scroll Serial No.

Received payment                                        Signature with seal of the Bank

Date :

_________________

*In respect of Challan relating to refund of unspent amount of A.C.Bill.

 

(6) In case the Declarant is the constituted attorney of the apartment owners he must enclose a photocopy of the Deed of Power of Attorney duly attested by a Notary

(b) Disposal of Form A by the Competent Authority:

If the Form A filed by the Declarant(s) is found in order the Competent Authority will accept the Form A and return one set of Form A duly endorsed as “Accepted” to the applicant(s).

Filling of Form C

  1. Another Form C, needs to be filled in duplicate in non judicial stamp paper of Rs. 10/- and duly notarized and submitted to the Competent Authority along with a copy of the Deed of Transfer and Sanctioned Plan after duly notarizing the same.
  2. Forwarding letter to the Competent Authority under the West Bengal apartment Ownership Act, 1972 requesting him to accept Form C.
  3. Declaration under Form C in Non-Judicial Stamp Paper of Rs. 10(ten) duly affirmed before a Notary (2 Sets) – One set will be retained by the Competent Authority and other set duly “Accepted” will be returned to the Declarant(s).
  4. Photocopy of the Title Deed/Agreement for Sale Deed duly attested by Notary.
  5. Photocopy of the Sanctioned Plan duly attested by Notary.
  6. Fee in T.R. Form No. 7 under the head of account and other details as Sl. No. (5) of item No. (c) of Form A.
  7. The requisite fees need to be deposited to the Reserve Bank of India, Kolkata in TR Form No. 7 and the receipt has to be submitted to the Competent Authority.Amount of Fees :

    (i) Upto Rs. 3 lakhs – Rs. 250/-

    (ii) Above Rs. 3 lakhs but upto Rs. 7.5 lakhs – Rs. 400/-

    (iii) Above Rs. 7.5 lakhs – Rs. 500/-

  8. Original copy of T.R. Form No. 7 and Reseve Bank of India Receipt thereof along with 1 set photocopy of the above.
  9. Photocopy of Registered Form A duly attested by Notary.
  10. In case the Declarant is the constituted attorney of the apartment owner he must enclose a copy of the Deed of Power of Attorney duly attested by Notary.
  11. If the Competent Authority finds the documents in order then he shall return Form C to the owner or owners duly accepted.
  12. When Form C is accepted one copy will be returned to the Declarant.
  13. The Declarant must get the Form C registered under the Registration Act, 1908 within 15 days of receipt.
  14. After completion of all these procedures the association and its allottees can apply for registration of the association. Only those members will form part of the association who have completed the above steps and submitted Form C.
  15. After getting accepted Form C from Competent Authority, the Apartment Owners or Allottees will hold a General Meeting and take steps to submit Form 1 of the West Bengal Apartment Ownership Bye-laws, 1974.
  16. Within 45 days from the date of submission of the property to the provisions of West Bengal Apartment Ownership Act 1972 (date of approval of Form A by the Competent Authority) or within such further period as the Competent Authority may allow, on application to it, the apartment owners shall in a General Meeting form an Association under some specific name and style and the Apartment Owner who presides over such Meeting shall immediately communicate the formation of such Association along with the names of the members in Form 1 to the Competent Authority. However, it must be understood that Apartment Owner implies any person who own one or more than one apartment within the same building.
  17. Thereafter the Competent Authority shall register the Association under a Serial Number and communicate the same to the Apartment Owners.
  18. Within 15 days of formation of an Association, the Apartment Owner presiding over the initial General Meeting for formation of the Association shall serve notice upon each member of such Association fixing therein the date (not before 15 days from the date of issue of such notice) on which and the time and place at which a General Meeting shall be held for election of the Board of Managers (BoM) of such Association by secret ballot. The number of managers in the BoM must be a minimum of 3 and maximum of 24. Votes need to be cast in person.
  19. After BoMs are elected, the Board shall within 10 days of the date of election of its Managers, hold its first meeting and elect its President who shall forthwith forward the names of President and BoMs in Form No. 3 of the West Bengal Apartment Ownership Bye Laws, 1974 to the Competent Authority who shall register such names.
  20. Thereafter the Association will gain legal identity and can function effectively.

 

Filling of Form 1

Form 1 under bye-law 3(2) is to be filed in plain paper along with a Xerox copy of the certified copy of the Registered Declaration under Form A shall be enclosed.

The names of all apartment owners shall be stated in Form 1 as per regulation 3 of the West Bengal Apartment Ownership Regulations, 1974.

A specimen copy of Form – 1 given below :-

 

FORM NO> 1

[See Bye-Law 3(2)]

To

The Competent Authority,

Under the West Bengal Apartment Ownership Act, 1972,

Law Cell, Deptt. of Housing,

New Secretariat Buildings, 1st Floor,

1, Kiran Shankar Rop Ropad,

Kolkata 700 001.

 

Sir,

I hereby communicate that a General Meeting duly held on ____ (date) presided over by the undersigned, the Association of apartment Owners under the name and style of “ABC Flat OWNERS’ ASSOCIATION” for our property at Premises No. 111, ABC Road, Kolkata 700 000, Police Station ________ already submitted according to Provisions of the West Bengal Apartment Ownership Act, 1972, has been formed under bye-laws framed under the said Act with the following as members thereof:

 

Sl. No.         Name of the members         Member of the Apartment

In the building by him.

1.

2.

3.

4.

5.

 

It is further stated that the Declaration in Form No. a approved by you was registered in the Office of the Assistant Registrars of Assurance – 1, Kolkata, vide being No.01659/07.  A Xerox copy of the certified copy of the Declaration obtained form the Registration Office, Kolkata is attached herewith for your ready reference.

 

Now, I would request you to register our Association and send the Registration number of our society to us.

 

Dated  : _____

Place   : Kolkata                                           Sd/-

Signature of the Apartment Owner

Presiding the General Meeting held

On _________________________.

 

However, as of date, according to the West Bengal Apartment Ownership Act Office at Law and Promoter Cell, 3rd Floor, ‘C’ Wing, New Secretariat Building, 1, Kiran Shankar Roy Road, Kolkata 700 001. Telephone No. (033) 22420801, apartment ownership association formation is currently unavailable due to the recent decision of the Calcutta High Court in Dr. Debdas Banerjee & Ors. v The State of West Bengal & Ors. [W.P. No. 3724(W) of 2013].

In this matter, the Hon’ble Calcutta High Court has stated that Rule 3 of the WB Apartment Ownership Rules, 1974 as ultra vires Section 2 of the WB Apartment Ownership Act, 1972. The main contention in this matter and the confusion still prevalent is whether to form an association under WB Apartment Ownership Act, 1972, the declaration has to be signed by all apartment owners or whether the majority can sign the declaration. The unworkable situation has been created because under Section 2 of the 1972 Act and Form A, all the apartment owners need to sign the declaration while under Rule 3 of the 1974 Rules, signature of only majority members will be required.

However, Rules cannot take precedence over the Act and as such Rule 3 of 1974 Rules was declared ultra vires Section 2 of the 1972 Act. The matter is pending further adjudication or necessary amendments to be incorporated into the Act by the legislature.

In any case, if all apartment owners are willing to abide by the 1972 Act and sign the declaration then I don’t think there should be any issues in registering such Association even under the current legal scenario. I have heard that several Form A declarations have been kept pending as of date but I think if all apartment owners are willing to sign then the question of majority does not arise and the Association should be allowed to be formed under current law.

Steps to Transfer

  1. 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.
  2. 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.
  3. If the Society rejects the proposal for transfer then you may refer the dispute to Registrar within 30 days from such refusal.
  4. 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.
  5. 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.

Alternate Course

  1. 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.
  2. However, you must apply within 3 years and preferably immediately after transfer has been completed.
  3. 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.
  4. 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.
  5. 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.
  6. Do check whether your Society is registered with KMAH or RTAH or any other district Registrar and send the written complaint to such Registrar.
  7. 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.
  8. 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.
  9. Further, under Section 102(3), the Registrar may admit disputes after the limitation period by condoning the delay if sufficient cause is shown.
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.”

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.

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.

The law of trusts in India has developed in its own specialized way but it has definitely created a lot of advantages as a very convenient instrument for running religious and charitable organisations. A trust provides the means by which specific benefits are carved out for different people who are interest in the same Trust property.

In India, the Indian Trusts Act, 1882, deals with private trusts only. Section 1 of the Indian Trust Act, 1882 prohibits applicability of such Act into the area where Religious or Charitable endowment applies.

Section 3 of the Indian Trusts Act, 1882 defines a trust as “an obligation annexed to the ownership of property and arising out of 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.”

The Charitable and Religious Trusts Act, 1920 was enacted to provide facilities for the obtaining of information regarding trust created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts

Section 7 of the Charitable and Religious Trusts Act, 1920 (Act XIV of 1920) provides as follows:–

Section 7–“(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property and the Court shall give its opinion, advice or direction, as the case may be, thereon:

Provided that the Court shall not be bound to give such opinion advice or direction on any question which it considers to be a question not proper foe summary disposal.

(2) The Court, on a petition under Sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persona interested in the trust, or to be published for information in such manner, as it thinks fit.

(3) On any date fixed under Sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.

(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under Sub-section(1), and acting upon the opinion, advice or direction of the Court given thereon shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.”

Section 7 entitles a trustee to apply for the direction, advice or opinion of the Court with regard to the management or administration of the trust property where the trust is a public charitable or religious trust.

Sub-section (1) of said Section 7 confers the right upon any one of the trustees to apply under Sub-section (1) of the said section. If there be more than one trustee, then either one is entitled to apply to Court for necessary guidance.

Under Section 2 of the Charitable and Religious Trusts Act 1920, the Court” means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.

In Mohan Lall Seal & Ors. v Kanak Lall Seal & Ors. G.A. No. 3095 of 2008 C.S. No. 116 of 2008 it has been held that:

“Under Section 36 of the Indian Trustees Act, it was necessary to obtain permission of the principal Civil Court of original jurisdiction to execute a long term lease, exceeding 21 years. Even though the trust was a charitable trust to which the Indian Trusts Act did not apply all the principles embodied in the Indian Trusts Act would apply.”

Property belonging to religious and charitable endowments could not be permitted to be sold, unless the same was justified by reasons as stated in R. Venugopala Naidu v. Venkatarayulu Naidu Charities & Ors. AIR 1990 SS 444.

The Supreme Court in Committee of Management of Pachaiyappa’s Trust vs. Official Trustee of Madras & Anr. AIR 1994 (1) SCC 475, has held that lease of trust property should be granted by public auction.

In Dhanalal Karnawat & Anr. AIR 1975 Cal. 67 it has been held that:

“The provisions of Section 34 of the Indian Trusts Act are similar to those of Section 7 of the Charitable and Religious Trusts Act. The impugned order was made on 11 th April, 1973 on the application were in the cause title mention was made of Section 34 of the Indian Trusts Act. Apart from the said mention of Section 34 there was nothing to show that the application was not made under Section 7 of the Charitable and Religious Trusts Act. The application in effect, was made by the trustees seeking a direction from this Court to grant lease of the Trust property No.48, Sir Hariram Goenka Street, Calcutta. As a matter of fact in the Charitable and Religious Trusts Act there are no provisions similar to those contain in the latter portion of Section 36 of the Indian Trusts Act. Therefore in this respect the provisions in the Trusts Act should be followed.

In a case reported in AIR 1941 All 387, it was held that though the Indian Trusts Act does not apply to public or private religious charitable endowments, but nevertheless the principles underlying the sections served as useful guide.

In Abdul Kayum vs. Alibhai AIR 1963 SC 309 the Supreme Court held that the principles embodied in the provisions of the Indian Trusts Act, 1882 would apply to public and private religious/charitable trusts. In Venugopala Naiduvs. Venkatarayulu Naidu Charities AIR 1990 SS 444 the Supreme Court held that the Court should not permit property belonging to religious and charitable endowments to be transferred by private negotiations.

It was finally held by the Court in Mohan Lall Seal & Ors. v Kanak Lall Seal & Ors. G.A. No. 3095 of 2008 C.S. No. 116 of 2008 that:

“Even though this Court is unable to arrive at any definite finding with regard to the appropriateness of the terms and conditions on which Premises No.2, Red Cross Place, Kolkata – 700 001 has been leased out, this Court is constrained to hold that efforts to obtain the best offers had not been made. Public notices could have ensured the best offers.

The trustees ought to have issued public notices in newspapers instead of privately negotiating an apparently unconscionable bargain.

This Court is also of the view that a long term lease exceeding 21 years requires the sanction of Court as provided in Section 26 of the Indian Trusts Act, 1882 and in any case has to be at the best rent. Properties of public and/or private charitable trust cannot be decimated by the trustees at their own whims and fancies. A property held in trust cannot be alienated save for compelling reasons at rent that is not the best. In this case, the transfer is coupled with the right of demolition and construction.”

Thus, in case of charitable and religious trusts, the trustees have an inherent obligation to act in the interest of the trust and its beneficiary and/or in other words, in public interest. Public interest demands that any transfer or alienation of the trust property should be completely transparent, fair and in public interest. It is, therefore, expedient that all transfers of property held by religious or charitable trusts, should be open, by issuance of public notices and/or advertisement. The transfer should be given sufficient publicity to fetch the best offers.

Thus, Section 7 of the Charitable and Religious Trust Act, 1920 gives power to the Trustee to apply to the Court for the purpose of obtaining certain directions. Such Section is very much comparable with Section 34 of the Indian Trust Act. In both the Sections, any Trustee without instituting the suit can be able to apply to the Court having appropriate Jurisdiction mentioned therein for getting any directions in respect of the management or administration of the Trust property.

But one aspect is very clear that the Court can proceed in a summary manner either under Section 34 of the Act of 1882 or under Section 7 of the Act of 1920 provided such application is made by a Trustee. It must also be noted that directions given by the Court under Section 7 of the Act is not appealable.

Section 12 of the Charitable and Religious Trusts Act, 1920 bars appeals from being filed and states that no appeal shall lie from any order passed or against any opinion, advice or direction given under the Act.

However, In Re: Birla Jankalyan Trust vs Unknown AIR 1971 Cal 290, it has been held that:

“Opinion expressed under said Section 7 of Religious and Charitable Trusts Act or advice or directions given thereunder cannot be challenged in appeal in view of the provisions of Section 12 of the Charitable and Religious Trusts Act. The said opinion, however, shall not operate as res iudicata in subsequent proceedings if and when they arise between the Revenue and the Trustees (See Babu Bhagwandin v. Gir Har Saroop, 67 Ind App 1 = (AIR 1940 PC 7).”

It was further held by the court that:

“The provisions of Section 7 of the Charitable and Religious Trusts Act are similar to the provisions of Section 302 of the Indian Succession Act. The said section is to the following effect:–

Section 302: – Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof.

In construing the said Section 302, P. B. Mukharji, J. (as His Lordship then was) observed In re: Akshoy K. Ghose, AIR 1949 Cal 482 at page 466 as follows: “In my opinion Section 302 should not be read in such a way as to make this section in the statute a substitute for a suit in any and every case relating to the estate or its administration. The legislature uses the word “directions” which in my judgment should receive a construction consonant to the ordinary meaning of that word. The word “directions” does not in my view mean adjudication and determination of substantive rights, but they mean in my judgment directions to help the executors in the difficulties in respect of practical management or administration where no disputed question of title or difficult question of construction of will or complicated questions of law are involved.”

The aforesaid observations apply with equal force in my opinion to an application made under Section 7 of the Charitable and Religious Trusts Act as well.”

Thus, from the above discussion it is evident that leasing Trust property in any part of West Bengal, including, Mayapur, Kalyani or Krishnanagar requires adherence to Section 7 of the Charitable and Religious Trusts Act, 1920. A public notice, advertisement in local newspaper must be given regarding the lease of the said property and thereafter the necessary lease deed may be executed for the said purpose. Further, in case the Trust property requires reconstruction or demolition with subsequent construction, then the permission of the Court must be sought under Section 7 of the Charitable and Religious Trusts Act, 1920.

Under West Bengal Co-operative Society Rules 2011 (WBCS Rules 2011), Rule 124, before the Housing Society gets registered, the members should hold a meeting where the Chief Promoter, Chairman, Vice-Chairman and Treasurer from amongst the promoters should be elected. The proposed name of the Society should also be discussed and the agreement to be entered with the land owner needs to be considered. Further, under Rule 125 of the WBCS Rules 2011, the Chief Promoter of the Society needs to open a bank account to be operated jointly along with the Chairman or, in absence of any of them, the Vice-Chairman and the Treasurer together with the other available and submit such document alongwith updated statement of accounts (receipts and payments) to the Registrar alongwith the application for registration.

Under Rule 130 of Rules, 2011, allotment of plots or flats has to be decided according to the principles and policies adopted in the first general meeting of the Society.

Plots or flats can be allotted in a housing co-operative by draw of lots or by calling subscriptions in accordance with the bye-laws of the society.

You need to get the building plan sanctioned by the local authority and thereafter you can have members joining the society. There is no requirement to have all the members joining in the process of registration of the Housing Society. You just need 8 members. Once the Housing Society is formed it can buy the land and get the plan sanctioned. Thereafter you may float any scheme of lottery or advertisements to sell the flats.

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

To convert doba/tank or water body land into residential or commercial or homestead land, one has to apply to local municipality as well as the District Land Reform and Land Reform Officer (DLR/LRO) in the given format that is attached below.

The cost for conversion is somewhere between Rs. 20 to Rs. 100 per decimal of doba or tank or water body land, depending on location. Check with concerned authority in your area.

If one were to apply for conversion of doba or tank or water body land then the competent authority to look into such matters is the Municipal Commissioner of the Corporation. The application must be forwarded to the Municipality and the (DLR/LRO) must recommend the proposal of for sanction of building plan. The land must be surveyed by the Surveyor and a report submitted. Further, in pursuance of the aforesaid report, the Deputy City Architect must also give his approval and thereafter the proposal must finally receive clearance certificate under the Town and Country (Planning & Development) Act, 1979.

Further, you must also seek permission of the Fisheries Department to check whether the said land is suitable for pisiculture purposes.

You must be aware that Section 17A of the West Bengal Inland Fisheries Act, 1984 states that:

(1) No person shall

(a) put any water area including embankment measuring 5 cottahs or 0.035 hectare or more, which is capable of being used as fishery, or any naturally or artificially depressed land holding measuring 5 cottahs or 0.035 hectare or more, which retains water for a minimum period of six months in a year, to such use, other than fishery, as may result in abolition of fishery, or

(b) fill up any water area including embankment or naturally or artificially depressed land holding as aforesaid, with a view to converting it into solid land for the purpose of construction of any building thereon or for any other purpose, or

(c) divide any water area including embankment or naturally or artificially depressed land holding as aforesaid into parts so as to make any such part measure less than 5 cottahs or 0.035 hectare for any purpose other than pisciculture or transfer any part of any such water area including embankment or naturally or artificially depressed land holding as so divided to any other person.”

(2) If the competent authority, on receipt of an information or on his own motion or otherwise, is satisfied that –

(a) any water area including embankment or naturally or artificially depressed land holding, referred to in clause (a) of sub-section (1), is being, or is about to be, put to any use, other than fishery, or

(b) any such water area including embankment or naturally or artificially depressed land holding is being, or is about to be, filled up, or

(c) any such water area including embankment or naturally or artificially depressed land holding is being, is about to be, divided into parts, or any part of any such water area including embankment or naturally or artificially depressed land holding as so divided is being, or is about to be, transferred to any other person, in contravention of the provisions of sub-section (1) and that it is necessary for the purpose of promotion of pisciculture, checking of destruction of fisheries and prevention of environmental degradation so to do, he may, by order in writing, take over the management and control of such water area including embankment or naturally or artificially depressed land holding, as the case may be.

(4) The management and control of such water area including embankment or naturally or artificially depressed land holding may be transferred by the competent authority to any person for proper utilization for pisciculture of such water area including embankment or naturally or artificially depressed land holding, as the case may be, in such manner as may be prescribed.

 

(7) If the person referred to in sub-section (4) fails to utilize the water area including embankment or naturally or artificially depressed land holding, as the case may be, in accordance with the prevailing norms of pisciculture, the competent authority may, after giving noting to such person, resume the management and control of such water area including embankment or naturally or artificially depressed land holding, as the case may be, without payment of any rent or compensation to such person; and such water area including embankment or naturally or artificially depressed land holding, as the case may be, may thereafter be managed by the competent authority or transferred to some other person for pisciculture.

(10) (a) The competent authority may, by a written notice, require any person who, by contravening the provisions of sub-section (1)- (i) puts any water area including embankment or naturally or artificially depressed land holding to any use other than fishery, or (ii) fills up any water area including embankment or naturally or artificially depressed land holding with a view to converting it into solid land, or (iii) divides any water area including embankment or naturally or artificially depressed land holding into parts for any purpose other than pisciculture or transfer any part of any such water area including embankment or naturally or artificially depressed land holding as so divided to any other person, to restore, within such period as may be specified in the notice, such water area including embankment or naturally or artificially depressed land holding, as the case may be, to its original condition at his own expense.

(b) If such person fails to restore such water area including embankment or naturally or artificially depressed land holding to its original condition within the period specified in the notice under clause (a), the competent authority may, by order in writing, take over the management and control of such water area including embankment or naturally or artificially depressed land holding, as the case may be, restore it to its original condition, and recover the entire cost in this behalf or any part thereof from such person.

(c) The management and control of such water area including embankment or naturally or artificially depressed land holding as may be taken over by the competent authority under clause (b) may be transferred by the competent authority to any person for proper utilization of such water area including embankment or naturally or artificially depressed land holding, as the case may be, in such manner as may be prescribed. And, thereupon, the provisions of sub- sections (5), (6), (7) and (8) shall apply to such water area including embankment or naturally or artificially depressed land holding, as the case may be.”

Fishery has been defined in Section 2 (vi) of the West Bengal Inland Fisheries Act, 1984. It reads:

2(vi) fishery means any activity or occupation connected with conservation, development, propagation, protection, exploitation or disposal of fish and fish products, or any place or water area where such activity or occupation is carried on, and includes a tank fishery.” Mr. Chatterjee has argued that the said property is not naturally or artificially depressed land holding but a water area as mentioned in the first part of clause (a) of Section 17A(1) of the Fisheries Act and that there has been contravention of provisions of clause (b) thereof.

In Siteswar Pramanik -vs- The State of West Bengal & Ors (W.P. 16140(W) of 2008) it has been stated that if the conversion is violative of West Bengal Land Reforms Act, 1955 and West Bengal Municipal Act and West Bengal Fisheries Act, 1984 then steps may be taken for inquiry. As per section 4(C) of the West Bengal Land Reforms Act, nobody can change the nature and character of any plot without permission of the Collector and violation of the said provision is punishable. Further, West Bengal Inland Fisheries (Amendment) Act, 1993 puts an embargo on the conversion of water area for other use as per provision of section 17A(1)(b) of the said Act.

As per the provisions of then West Bengal Municipal Act, 1993 nobody can make any construction for residential house without permission and the Municipal Authority cannot issue sanction plan in a water body. The Land Reform Department cannot also convert the water body for other purpose. However, a deeper analysis of such provisions is required.

It has been held in Bajranglal Sarda & ors. vs State of west Bengal & Ors. W.P. No. 9383 ( W ) of 2008 that:

“water area including embankment or naturally or artificially depressed land holding as aforesaid” and “such water area including embankment or naturally or artificially depressed land holding” have been used in Section 17A, the expressions “as aforesaid” and “such” refer either to “any water area including embankment measuring 5 cottahs or 0.035 hectare or more, which is capable of being used as fishery” or to “any naturally or artificially depressed land holding measuring 5 cottahs or 0.035 hectare or more, which retains water for a minimum period of six months in a year”. I am conscious that clause (b) of Section 17A(1) does not contain the words “as may result in abolition of fishery”, which find place only in clause (a) thereof. However, having regard to the object of the Fisheries Act, the words “for any other purpose” in clause (b) is wide enough to include within its reach “as may result in abolition of fishery”.

Further, it has been held by the Hon’ble Calcutta High Court that:

“In order to attract Section 17A(1) of the Fisheries Act that debars conversion of a water area of the requisite nature and area to any other use including construction of building thereon, as in the present case, it was therefore imperative for the competent authority to reach a satisfaction that not only a water area of the requisite size is being sought to be filled up or has been filled up for use other than fishery as may result in abolition of fishery but also that such water area is capable of being used as fishery. From the order of the competent authority it is revealed that no finding has been given as to whether the water body which, according to him, was existing and has since been gradually filled up, was at all capable of being used as fishery or not.

What clauses (a) and (b) of Section 17A(1) seek to prevent is that no water area existing on the relevant date, measuring 5 cottahs or more and which is capable of being used as fishery, shall be put to any use other than fishery or filled up with a view to converting it into solid land for the purpose of construction of any building thereon or for any other purpose, including a purpose that may result in abolition of fishery. The words “which is capable of being used as fishery” after the words “water area including embankment measuring 5 cottahs or 0.035 hectare or more” assumes significance in the light of sub-section (2) of Section 17A which confers power on the competent authority, if contravention of provisions contained in sub-section (1) thereof by any person is established, to take over management and control of such water area, if necessary, inter alia for the purpose of “promotion of pisciculture” and “checking of destruction of fisheries”. Sub-sections (4) and (7) of Section 17A also refer to handing over of management and control of a water area for “proper utilization for pisciculture” and “for pisciculture” respectively. The predominant purpose is to give effect to the object of the Fisheries Act, i.e. for conservation, development, propagation, protection, exploitation and disposal of inland fish and fisheries in West Bengal.”

Check this link for further info: http://ldo.nic.in/ & http://ldo.nic.in/conversion/SCHEME.pdf

Also check this link: http://ipheindia.org/yahoo_site_admin/assets/docs/scan_1.109161203.pdf

 

Format for Application for Conversion of Land for Setting up of Industries /Housing Complex.

(Court fee of Rs.10/- to be affixed)

To

The District Land and Land Reforms Officer,

……………………………………………….

Sub : Prayer for conversion of Land.

Dear Sir,

I/ we shall be very much glad if you kindly arrange to convert the following schedule of

land to Non-agri land for setting up of Industries/ Housing Complex.

Schedule of Land.

a) Name of Mouza- ………………………………………………………….

b) J.L.No. ………………………………………………………….

c) Khatian No. ( R.S. & L.R.) …………………………………………………………

d) Plot No. ( R.S. & L.R.) ………………………………………………………….

e) Recorded classification. ………………………………………………………….

f) Area of Land. …………………………………………………………

g) Police Station. ………………………………………………………….

h) District. ………………………………………………………….

The following documents in 5 copies are enclosed.

1. Declaration

2. Copy of Mutation Certificate.

3. Copy of current Record-of-Right.

4. Site plan in duplicate.

5. Certificate regarding industries issued by the D.I.C./ Dte. Of

Industries / Deptt. of Industry.

6. Copy of the project report duly vetted by the Competent Authority.

I/we further undertake to the effect that I/we will have no claim over the said land if in future the land(s) vests in the State in any proceeding under any provision of law. I/we also undertake to the effect that if the land in question is found to be vested. I/we will apply to the State Govt. for Long Term Settlement of the same under usual terms and conditions on payment of Rent and Salami etc. as will be determined by the State Govt.

That in case of my failure to apply Long Term Settlement within the period of one month. I shall be liable to be evicted from the land as a trespasser and shall also be liable to payment of damage for the use and occupation of the said land.
That I have taken over possession of the land and the said land is free from encumbrances.

I/we also declare that none of the land is recorded as Tank/Orchard or cultivated by Bargadar.

Date :                                                                    Yours faithfully