Shirish Desai
We have a situation. My Father in law’s (Aged 81 yrs.) Flat at Naigaon near Vasai in Maharashtra is transferred on his daughter’s name i.e. on my wife’s name in the month of Nov. 2014. We are trying for Bank’s loan against mortgage of the said flat.
We have written two letters to society on 27/02/2015 & 19/03/2015 enclosed the registration documents in complete along with the society’s share certificate in original for the endorsement and requested for (i) Flat transfer procedure from Father to his Daughter (ii) Various NOC’s like Bank’s & Bank’s advocate for search report, NOC for Grampnachayat, NOC to transfer Electricity Meter as per local MSEDCL’s and asked for any other formalities which might be essential for transfer of the Flat.
Our query is (i) Are we liable to pay PREMIUM CHARGES of Rs. 15,000/- demanded by the society towards transfer of flat on my wife’s name vide their letter written on 29/03/2015. (ii) Society is not ready to issue any NOC’s without these charges are paid. We have even the substantiated by the copy of PAN Card which clearly Highlights both the names and I presume indicates the relation too. Is society liable to reject our specific request?
What options are left with us in case the society does not relax their demands? Our cheque for an amount of Rs. 5.600/- enclosed as good will gesture was also returned by the society.
I C Naik
Seriousness called for in the affairs of management of housing societies on the part of members is terribly lacking and the shortfall is increasing though prices of houses keep rising astronomically. In case of Shirish Desai also this is the case. If he has been surfing www.indiancooperative.com regularly he would have known that in housing societies Bye-laws play a vital role and these are different for different societies. So once again an advice to members of housing societies is to buy a certified copy of your society’s Bye-laws costing not more than Rupees 100/-
Another crucial matter is the minutest details of the problem are required to draw conclusions leading to a right advice. For example, I have to make an assumption that the housing society in which his wife got a gift of a flat from her father was registered prior to 2001 and its registered Bye-Laws are based on Bye-laws Model 1984. During November 2014 (no date) to March 29 2015 there are exchanges of papers as regards the transfer. Had Shirish got Bye-Laws he would have known that there are documents / procedures prescribed to give effect to transfer of such a pride possession, but lack of seriousness!!! No one can say from the facts supplied, whether a complete application was submitted to the Secretary for transfer as prescribed under Bye-Law No 40, is quite important to decide if she could become a member automatically as provided under Bye-Law No 67(g) namely QUOTE: If the society does not communicate the decision to the applicant within three months from the date of receipt of applications for membership, including nominal or associate membership, the applicant shall be deemed to have been admitted as a member as provided under Section 22(2) of the Act. UNQUOTE
With this background let’s attempt a solution. Conditions of approval to transfer of flat by the managing committee are covered under Bye-Law No 40. Condition at Sr. No (vii) of Clause (d) of this Bye-law reads as under:
QUOTE: (vii) to pay the amount of premium at a rate to be fixed by the general body meeting, not exceeding 2.5% of the difference between the book value of the flat and the price realized by the transferor on transfer of the flat, or Rs. 25,000/-, whichever is less. No additional amount by way of donation, etc., will be taken unless it is paid voluntarily by the member. UNQUOTE
This condition is to be read with the Note to the said Bye-law reading as under:
QUOTE: Note: The condition at Sr. No. (vii) above shall not apply to transfers of shares and interests of the transferor in the Capital/Property of the society to the member of his family or to his nominee or his heir/legal representative. UNQUOTE
Members of the family are listed in Note 1 to Bye-Law No 17 which defines relationships to a member to define family for i.e, “Family means and includes husband, wife, sons having no independent source of income, unmarried daughters and person/persons dependent on the member.” Married daughters for the purpose of defining eligibility criteria of membership are outside the family.
“Family” is expressly defined in Bye-laws Model 2001 under Bye-Law No 3(xxv) thus “Family”means Group of perons which includes, husband,wife,father, mother,sister, brother, son,daughter, son-in-law, brothther in law, sister-in-law, daughter in law,grand son/daughter.
As the same definition holds good to exempt member from paying NOC in case of sub-letting the flat to a family under Bye-Law No 43(2)(iii) ( c ) of Model 2001. NOC exemption is available to a member under Bye-Law No 45 (2)(iii) ( c ) of Model 1984 in case a flat is sub-let to his intimate relatives i.e Mother, Father, Sister, Brother, Son, Daughter, Son-in-law, Grand son, Grand daughter and such additional relatives as decided by the society. In this case married daughter is part of the family.
The managing committee in this case appears to be going by the following Government circular and using family definition as per Bye-Law No 17.
In the meanwhile vide Government of Maharashtra’s mandatory Circular No SAGRUYO-2001/PRA.KRA.188/14-Sub-Article Co-operation and Textile Department. Mantralaya, Mumbai-32 issued on 9th August, 2009 under Section 79A of the Act,
Ceiling on transfer premium has been laid down as under:
Areas Rate of the premium
Municipal Corporation and
Development Authoritie – Rs. 25,000/-
A” Class Municipalities- Rs. 20,000/-
‘B’ grade Municipalities Rs. 15,000/-
‘C’ grade Municipalities Rs. 10,000/-
Gram Panchayat (Rural ector) Rs.5,000/-
So it’s all confusing. What is the option? My view is No Transfer Premium since a confusion must benefit an individual and not the institution. But the managing committee of Your Society may not go with this benevolent interpretation.
You start a fresh.
1.Prepare a complete application satisfying conditions as per Bye-Law No 40 (buy the Bye-Laws) , but immediately inspect it free because buying will mean one month.
2.Offer it to the society office and take acknowledgment.
3.If not ready to accept, then take evidence of refusal.
4.Submit the application to Dy Registrar Cooperative societies. Vasai West.
5.The Registrar will send it to the Society.
6.The Society will have to respond to the Registrar.
7.Keep acknowledgments.