Sale of flat in a cooperative society in kolkata
VINOD
(Querist) 11 June 2015
This query is : Resolved
I have a flat in a cooperative society in kolkata. i wish to sell it. i have been asked by the secretary to submit my membership certificate to the society along with a letter saying i wish to sell my flat to the buyername and wait for at least 1 month for the society to decide whether or not the said buyer can be taken as a member of the society. the society will put up a notice giving details of the buyer and if any existing member of the society objects then the buyer will not be taken as a member.this is my understanding so far. i wish to know the sale procedure in this case and how should i proceed so that i can sell my flat without any legal hassels.
Dr J C Vashista
(Expert) 11 June 2015
Is there any clause in the Bye-Laws of the society, WB Cooperative Societies Act or Rules? If so, challenge the action before appropriate forum.
It is your self-acquired property where society do not have any title, right, interest or claim. You can dispose it of as and when you desire.
Rajendra K Goyal
(Expert) 11 June 2015
Refer the bye-laws of the society and if no such clause exist may claim relief legally.
Biswanath Roy
(Expert) 11 June 2015
The transfer of a flat of the Co-operative Society including share of the Society is not governed by the ordinary law but by the provisions of West Bengal Co-operative Societies Act and the rules and bye-laws framed by the Society. However, the right of society to admit a person of its choice as a member cannot be excersized arbitrarily and so as to deprive the purchaser of the flat and his rights of the ownership of the flat and his rights to the shares of the property of a going member. The law does not give a right to the society to refuse to a person who is entitle to become a member in place and stead of an outgoing member. Admitting a person as a society's member does not depends upon the choice and likings of other members of the society.
VINOD
(Querist) 11 June 2015
thank you very much gentlemen for your valued advise on my query. one more clarification if possible do i need to surrender any important document like membership certificate,share certificate etc to the society before i get the full value of the flat.
Biswanath Roy
(Expert) 11 June 2015
Unless you disclose the entire rules and regulations of your Co-operative Housing Society proper advice cannot be given.
P. Venu
(Expert) 07 August 2015
Selling one's property is a Fundamental right. The Society cannot frustrate this right, even if there is a bye-law to this effect.
The principle in this context had been well explained by the then Advocate General to the Government of Bombay more than a century ago in his opinion No.4/1897 dated 18.1.1897 –
“I think it would not be legal to insert in a licence granted under Section 12 and 13 of the Bombay Salt Act, 1890, a condition that the licensee should not sell, mortgage or otherwise alienate his salt work without the permission of the Collector of Salt Revenue. Section 12 renders it obligatory on the Collector to grant the licence for manufacture of salt to the persons entitled under Section 17 and Section 13 directs that certain things shall be specified in the licence and the licence shall be in such from and contain conditions prescribed by the Commissioner, subject to the directions of the Government. It is clear, I think, the conditions referred to are conditions regard to manufacture, excavation, collection and removal of salt and such conditions only can be inserted in the licence. I think the condition preventing a man from selling, leasing raising money upon his salt work is not such a condition: it is a condition which would prevent a man from doing what the ordinary law allows him to do, and all conditions, rules and bylaws encroaching the ordinary rights of individuals are construed strictly and unless it could be shown the legislature clearly intended such a condition could be imposed, it would be invalid.
“I think the condition preventing subletting, mortgaging or otherwise alienation of privilege granted to the licence of manufacture of salt stands on a different footing. The only person entitled as of right under Section 17 to licence is proprietor and there is nothing repugnant to the Act in the condition, which in effect states that no one will be allowed to manufacture of salt without the consent of the Collector, except the proprietor. Even if he leases or mortgages, the privilege to manufacture salt granted by the licence, is equivalent to lease or mortgage of the salt work itself. I think there is nothing unreasonable or repugnant to the Act in providing that lessee or mortgagee shall not be able to manufacture salt without the consent of the Collector…. As regards to the sale of privilege of manufacture salt, it is no doubt correct that sale of privilege is generally the same thing as the sale of the salt work themselves. As one would not in most cases be sold without the other, and in such cases the prohibition against selling would have no effect. It is possible that there might be cases, where the right to manufacture salt was sold without the works themselves being sold, in such cases the purchaser not being the proprietor, the condition would be valid.
“If it is considered necessary that a sale of salt work should not be made without the consent of the Collector, I think it will be necessary to amend the Act and at the same time, it would be as well to insert an express provision against mortgaging, leasing or otherwise alienating the salt work without the Collector’s permission.”
Of course the context was different, but I think principle still holds good as the membership in the Society, as in the case of Licence for making salt, is incidental to ownership of the property concerned.
