Due diligence of a plot Co-operative Societies Act

FREQUENTLY ASKED QUESTIONS

1.How a cooperative housing society can be formed?

An application for registration in Form No. 1 should be signed by 60 members who
are forming the society. Along with the application the following documents
should also be filed.
=> Four copies of the proposed bylaws duly signed by each of the signatory to
the application.
=> certificate from the Financing bank that the amount of share capital
raised by the promoters has been deposited in the name of the proposed
society in a suspense account.
=> A list of persons who have contributed to the share capital of the society
together with the amount contributed by each of them and the entrance fee
paid by them.
=> The scheme explaining the economically sound functioning and successful
working of the society.
=>A declaration on oath from each of the promoter members to the effect that
he/she is not a member of the family of any promoter joining in the
application for registration.
=> An affidavit from each promoter members stating that
He/she does not own a residential house or plot of land for
construction of a residential house thereon in his own name or in
the names of his spouse or dependent children on leasehold or
freehold basis in NCT of Delhi.
He /she or spouse or any dependent children is not a member of
any other housing society.
He/she or spouse or any of the dependent children is not dealing
in the business of purchase or sale of house or land in the NCT of
Delhi either as principal or agent.
=> A statement showing financial position of each promoter. o A certified
copy of the resolution passed by the promoters specifying the name and
address of one of the applicants [generally the Chief Promoter] to whom the
registrar may address his correspondence before registration and handover
or dispatch the certificate of registration.
The application could be either sent by Registered post or delivered by hand to the
Registrar. The Registrar shall receive the application and issue an
acknowledgement to the applicant and shall enter the particulars of the application
in the Register maintained in Form No.2 for the purpose.

2.Who can be members of a housing society?

The DCSA 2003 prescribes several types of persons who are eligible to become
members of a cooperative society. Since a housing society prima facie is a
cooperative society these types of persons are entitled to seek membership in a
cooperative housing society. The following are the persons who may become
members of a cooperative society.
=> individual competent to contract under section 11 of the Indian Contract
Act. However, no individual can seek admission to a co-operative society
exclusively formed for the benefit of students of a school or college unless
he is a student. Again, no individual would be eligible for admission as a
member of any financing bank or federal co-operative society except as
provided in clause (m) of section 2.
=> Any other co-operative society.
=> The Government.
=> A firm, a joint stock company, or any other body corporate constituted
under any law.
=> Such class or classes of persons or association of persons as may
be notified by the Government in this behalf.

3.Can a company be a member of a housing society?

Yes. Under the 2003 Act a company or a partnership firm can become a member of
a cooperative society. Since housing society is also a cooperative society this
equally applies to housing society also. It is be noted that under the old 1972 act a
company cannot be a member of a cooperative society. Therefore, if any society
wishes to restrict its membership only to individuals, a suitable amendment has to
be made in the byelaws of the society.

4.How a member can transfer/sell his flat?

Neither the membership in a society nor occupancy right in the flat can be
transferred without fulfilling the following conditions.
•The transferor applies to the society for its consent for the transfer.
•The transferor pays the transfer fee to the society.
•Transferor pays all the dues to the society or the transferee agrees to pay the
same. In the case of transferee paying the dues the society should consent
for the same.
•The transferor vacates the flat and hands over the possession to the
transferee.
•The transferee applies for and acquires membership in the society.

5.When a society can expel a member?

The DCSA 2003 has made an elaborate substantive provision for the expulsion of a
member. A member can be expelled from the member ship of a housing society on
any one or more of the following grounds:
=> If he has been a persistent defaulter in respect of any dues of the cooperative
housing society.
=> If he has willfully deceived the co-operative housing society by making any
false statement or submitting any false document to obtain the membership
of such co-operative society.
=> If he has brought disrepute to the co-operative society or has done any other
act detrimental to the interest and proper working of the co-operative
society.

6.What is the procedure for expelling a member?

The DCSA 2003 provides an elaborate procedure for the expulsion of a member.
Since expulsion is like a death penalty the procedural formalities as prescribed
should be followed scrupulously else the expulsion would be rendered void.

Issuing Show cause notice
When a member attracts any one of the above conditions the society should send
him three show cause notices through registered post. The Act does not prescribe
any length for the notice. However, a 30 days notice would suffice. The notices
could be sent in succession upon the expiry of the earlier notice period. For
example, if the first notice is sent on 1-1-2005 the second notice should be sent on
1.2.2005 and the third notice on 3.3.2005.
Special resolution of the committee
If the member is not making good the default in payment or showing valid reasons
for non-payment or other impugned actions, the management committee can expel
the member by passing a resolution to this effect. The resolution should be
approved by at least three-fourth majority of the committee who are entitled to
attend and vote thereat.
Filing resolution with the Registrar
Within 30 days after passing the resolution as above said, the resolution has to be
filed with the Registrar for his approval.
Registrar’s approval
The Registrar shall take cognizance of the resolution within 30 days and shall
either approve or reject the expulsion within 180 days. If the matter is not decided
by the Registrar within this 180 days the expulsion is deemed to have been
approved.
Proceedings before the Registrar
The Registrar shall hear both the parties i.e. the member who is sought to be
expelled and the society. The Registrar is empowered to take evidence on record,
compel production of documents as a civil court.

7.When a member ceases to be a member?

Cessation of membership is quite different from expulsion of membership. The
expulsion of membership has to undergo the prescribed procedure whereas the
cessation is automatic upon the happening of the eventuality.
The following are the eventualities upon which a member ceases to be a member of
a housing society.
=> Member sells his flat/house on power of attorney and agreement to sell.
=> The member, before becoming a member of the housing society, already
owns either in his/her name or in the name of spouse or dependent children.
=> After becoming member in a cooperative housing society, during the
currency of the membership or till allotment of any plot or flat as the case
may be, acquires either in his/her name or in the name of spouse or
dependent children a residential property exceeding 66.72 Sq.M. in Delhi.
However, the acquisition of house or plot through inheritance is exempted.
Further, a member would not be disqualified if he owns a house or land in
an ‘abadi area’ in Delhi

8.What are the rights of a member?

The following are the rights and privileges of a member:
Right to get certificate of allotment
Every member of a co-operative housing society, whether registered before or after
the commencement of this Act, to whom plots of land or dwelling units have been
allotted, shall be issued certificate of allotment by the co-operative housing society
under its seal and signature in such form as may be prescribed.
Right to hold according to terms of allotment
Irrespective of the provisions of the Transfer of Property Act, or the Registration
Act, any allotment or re-allotment of a plot of land or dwelling unit in a building of
a co-operative housing society to its member as per terms of allotment shall entitle
such member to hold such plot of land or dwelling unit with such title or interest.
Right to transfer / inherit the property
The right, title and interest in a plot of land or dwelling unit in a building of the cooperative
housing society (including the undivided interest in common areas and
facilities) shall constitute a heritable and transferable immovable property.
However, such land or building shall not be partitioned for any purpose
whatsoever.
Right to undivided interest in common area
Every member of a co-operative housing society shall be entitled to an undivided
interest in the common areas and facilities pertaining to the plot of land or dwelling
unit allotted to him.
Right to use the common area
Every member of a co-operative housing society to whom a plot of land or a
dwelling unit has been allotted shall have the right to use the common areas and
facilities as prescribed by the co-operative housing society. In case of any violation
or misuse by a member, the management committee is empowered to recover
damages.
Right to attend meeting and vote
A member has right to attend all the meetings of the society and vote thereat.
Right to contest election
A member has right to stand for the election of the management committee.
Right to seek information from the society
A member can seek information relating to any transaction of the cooperative
housing society and the society is required to furnish such information within 30
days from the receipt of request. The society may fix the application fee for this
purpose.

9.What are the duties of society towards its members?

The rights of members underline the duties of the housing society. The society
should not discriminate between members and should not place unlawful
restrictions on them. Besides this, the society should be prompt in attending to the
complaints and grievances of the members as to provision of services.

10.How a dispute with society is resolved?

The Act provides for statutory arbitration for resolving the disputes that arise
between members (past and present) and the society. The Act excludes the dispute
arising between the paid employees and the society. As the statute itself prescribes
a particular mode and forum for settlement of disputes resorting to any other mode
may become futile. To put it in other words the disputes covered under section 70
of the Act have to be settled through the process of arbitration only. However, if
the dispute is in the nature of dispute pertaining to deficiency in services, defects
etc the same can be resolved in a consumer forum.

11.Can a member approach consumer forum for redressing his grievance?

Yes. Housing is covered under the term “service” in the Consumer Protection Act,
1986 (the CPA 1986). Therefore the services rendered to the members by the
housing society falls within the purview of the CPA 1986. Further, the provisions
of the CPA 1986 are in addition to and not in derogation of any provisions
contained in any other Act This means that the provisions of the CPA are
additional remedial avenues provided to the consumers by the Parliament if India.
In view of the above, any dispute with a housing society by any member with
respect to rendering any services such as allotment of house, possession of house,
rendering maintenance services in relation to housing complex etc are covered by
the CPA 1986 and a member can approach the Consumer Forums for claiming
compensation and damages against the housing society for rendering deficient
services. The Supreme Court has held in the case of Secretary, Thirumurugan
cooperative Agricultural Credit Society v. M.Lalitha, (2004) 10 CLA-BL Supp that
a member can approach consumer forum as a consumer to redress his grievance
against a cooperative society. Housing society primarily being a cooperative
society this judgment is applicable to cooperative housing society also.

12.What are to be checked before becoming a member of a society?

It is always advisable for any person who wants to become a member of a
cooperative housing society to conduct a due diligence test. This due diligence
becomes imperative in the light of recent cooperative housing scam. The following
all or any of due diligence checks can be made by a prospective member.
=> Whether the housing society is registered under the Delhi cooperative
Societies Act? If so obtain the registration number.
=> Verify the registration number provided by the society with the Registrar
of cooperative societies.
=> Whether land has been allotted by DDA? If so ask for the allotment
particulars.
=> Verify the land allotment particulars with the DDA.
=> Whether the society has any legal disputes with builder, or other persons?
=> If so obtain details of the same so that any additional liability on this count
could be worked out.
=> Obtain the byelaws of the society.
=> Verify with the Registrar’s office whether the supplied byelaws confirms
with the registered byelaws.
=> Whether the society is regular in conducting its meetings?
=> Whether the builder is accredited builder?

13.What are to be checked before purchasing a flat from a member of a society?

The purchaser has to verify and satisfy as to various aspects relating to a flat before
he ventures into purchase a flat in a cooperative society from any member of the
society. The following have to be checked:
=> Whether the seller is the member or POA?
=> Whether the seller is sole owner or joint owner?
=> Verify the title documents of the flat i.e. allotment letter, possession letter
issued by the society in case of member. In case of POA besides the title
documents of the original member verify the agreement to sell and the
GPA.
=> Whether the flat is mortgaged with any bank or financial institution?
=> Is there any charge against the flat?
=> Are there any outstanding dues from the seller to the society?
=> NOC from the Society

14.Can a housing society charge transfer fee from its member when he transfers/sells his flat?

Yes. This is the fee that has to be paid to the society by the transferor or the
transferee or both as the case may be. The 1972 Act was silent on the issue of
transfer fee while the 2003 Act is very clear about it. As per the scheme of the Act
the transferor is required to pay transfer fee to the society at the time of applying
for consent letter. The transferee, in the case of freehold sale, is not required to pay
the transfer fee. However, in the case of POA sale the transferee being a POA is
required to pay transfer fee to the society for becoming a member after converting
the leasehold to free hold. It is pertinent to note that the transferor in any case is
required to pay the transfer fee. The demarcating aspect of transfer fee payable by
the transferor and POA is that in the former case it the fee for transferring the
occupancy right in the flat under transfer while in the latter it is for the transfer of
membership in the society. The transfer fee that can be charged from a POA holder
is fixed at Rs.10, 000 while no such limit is fixed for the fee to be charged from the
transferor. The society may decide as to the quantum of transfer fee to be charged
from the transferor.

15.Whether Delhi Rent Control Act applies to a housing society flat?

No. Section 83 (1) specifically excludes the applicability of rent laws for the
recovery of leased out flats in a cooperative housing society. As per section 83(2)
of the DCSA 2003 no licensee, caretaker, or sub-allottee who is occupying the
dwelling unit or flat, or plot of land in a cooperative housing society shall be a
tenant of such dwelling unit or flat or plot of land within the meaning of that law
notwithstanding anything contained in the law relating to rents or any other
corresponding law for the time being in force. Therefore, a tenant cannot take
refuge under the Delhi Rent control Act, 1956 against any eviction proceedings.
Recovery of society flat would be a dispute within the4 meaning of section 70 that
has to be settled through arbitration.

16.Who are responsible for the conduct of the business of a housing society?

The management of every cooperative housing society shall vest in its management
committee. The general body meeting of a co-operative society shall constitute a
committee as prescribed and in accordance with the byelaws and entrust the
management of affairs of the co-operative society to such committee.

17. What is the frequency of the meetings of the management committee?

The management committee can meet as many times as possible and there is no
restriction on the number of meetings it can hold but there is a minimum
requirement. In the case of a cooperative housing society, which is essentially a
primary society, at least one meeting should be held in each month and there
should be 12 such mandatory minimum meetings in a year. Suppose a housing
society holds three meetings, say in the month of January, it does not mean that it
need not have to hold a meeting in the month of February and there should be a
meeting in February also. If a housing society does not hold any meetings for a
consecutive period of 3 months, the Registrar may appoint an election officer to
conduct the election to appoint a new management committee.

18.What is the time limit for a POA to acquire membership of a housing society?

The Act does not specify any time limit but requires the POA to acquire the
membership of the housing society. It is for the society to fix the time frame for a
POA to become a member.

19.What is freehold and how is it done for a society flat?

When the DDA allots land to a cooperative housing society it gives it under
perpetual lease and annual ground rent is collected from the society as lease
charges. Ownership of the land remains with DDA and possession remains with the
society. Under freehold, ownership of land is transferred to the members of the
society with respect to the land on which the building is standing. The common
area would be still under leasehold. The members who want to convert to freehold t
have to pay the necessary conversion fee to the DDA and the DDA transfers the
land in their name. The process takes approximately 6 months.

20.Whether free holding of flat changes the status of a housing society as the owner of the land and building?

No. Even though the member is the owner of the land beneath his flat, yet for all
practical purposes the housing society is the owner of the land and buildings.

21.How a housing society’s byelaws amended?

The power to amend the byelaws vests with the members of the cooperative
housing society. Any proposal to amend the byelaws should be first approved in
the general meeting of the society held for this purpose. The resolution should be
passed by not less than two-third majority of the members having voting rights
present at the meeting. Within 30 days from the date of the passing of the
resolution, a copy of the same should be filed with the registrar along with the
following documents:
=> A copy of the existing byelaws
=> Reasons justifying amendments
=> Four copies of the byelaws as they would stand after the amendment, duly
signed by the authorized officers of the management committee of the
society.
=> A copy of the notice calling the meeting in which the resolution proposing
the amendments was passed.

The Registrar shall register the amendment provided such amendment
does not contrary to the provisions of the DSCA or rules framed there
under, conflicting with the cooperative principles and would promote
economic, social and cultural interests of the members

21.What is the time limit for holding the Annual General meeting of a housing
society?

All that the DCSA say is that every year a cooperative society is required to have a
annual general meetings of its members within 180 days from the date of closing of
accounts. There is no power to the Registrar to extend the time limit. Therefore, the
AGM of a housing society should be held within this 180 days time limit.

36. First charge of co-operative society on certain assets.
(1) Notwithstanding anything contained in any law for the time being in force, but subject to any prior claim of the Government in respect of land revenue or any money recoverable as land revenue, any debt or outstanding demand owing to a cooperative society by any member or past member or deceased member shall be a first charge upon the crops and other agricultural produce, cattle, fodder for cattle, agricultural or industrial implements or machinery, raw materials for manufacture and any finished products manufactured from such raw materials, belonging to such member, past member or forming part of the estate of the deceased member, as the case may be.
(2) No person shall transfer any property which is subject to a charge under sub-section (1) except with the previous permission in writing of the co-operative society which holds the charge.
(3) Notwithstanding anything contained in any law for the time being in force, any transfer of property made in contravention of the provisions of the sub-section (2) shall be void.
(4) The charge created under sub-section (1) shall be available as against any claim of the Government arising from a loan granted under the Land Improvement Loans Act, 1883, or the Agriculturist’s Loan Act; 1884; after the grant of the loan by the society.

37. Charge on immovable property of members borrowing loans from certain societies.
Notwithstanding anything contained if this Act or in any other law for the time being in force;
(i) (i) any person who makes an application to a society of which he is a member for a loan shall, if he owns any land or has interest in any land as tenant, make a declaration in the prescribed from which shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the loan which the society may make to the member in pursuance of the application and for all future advances, if any, required by him which the society may make to him as such member subject to such maximum as may be determined by the society together with interest on such amount of the loan and advances;
(ii) any person who has borrowed a loan from a society of which is a member before the date of the coming into force of this Act, and who owns any land or has any interest in land a tenant shall; as soon as possible, make a declaration in the form and to the effect referred to in clause (i).
(iii) a declaration made under clause (i) or clause (ii) may be varied at any time by a member with the consent of the society in flavor of which such charge is created;
(iv) no member shall alienate the whole or any part of the land or interest therein specified in the declaration made under clause (i) or clause (ii) may be varied at any time a by a member with interest thereon is paid in full :
Provided that for the purpose of paying in full to the society the whole amount borrowed by the member together with interest thereon, the member may, with the previous permission in writing of the society and subject to such conditions as the society may impose, alienate the whole or any part of such or interest thereon:
Provided further that standing crops on any such land may be alienated with the previous permission of the society;
(v) any alienation made in contravention of the provision of clause (iv) shall be void;
(vi) subject to the prior claims of the Government in respect of land revenue or any money recoverable as land revenue, there shall be a first charge in favor of the society on the land or interest specified in the declaration made under clause (i) or clause (ii) for and to the extent of the dues owing by him on account of the loans and advances;
(vii) the record of rights shall also include the particulars of every charge on land or interest created under a declaration under clause (i) or clause (ii) notwithstanding anything contained in any law relating to land revenue for the time being in force;
(viii) any sum due to a society in consequence of charge created under a declaration under clause (i) or clause (ii) shall, on application for its recover being made by such society accompanied by a certificate signed by the Registrar, be recoverable by the Collector, according to the law and under the rules for the time being in force for the recover of land revenue.
Explanation – For the purposes of this section, “society” shall mean any co-operative society or class of co-operative societies specified in this behalf by the Lieutenant-Governor by general or special order

• Call for original property documents. The non-availability of such documents should be taken as a red signal. It could mean that the title of the seller is not clear and there could be a lien, mortgage or other encumbrance on the property.
• Find out the marketability of the title. Examine the title certificate of the property. Conventionally, a 30-year title investigation report is obtained from the sub-registrar's office. Obtain an abstract of the title from the property registration card.
• The original sale agreement should have the municipal-approved plan of the flat, carpet area with the area of the balconies shown separately, price of the property including the proportionate price of common areas and facilities shown separately and intervals at which installments may be paid.
• Check if proper stamp duty has been paid.
• If the property is in a co-operative society, examine the original share certificate. It mentions the latest owner's name.
• Obtaining a society's NOC may not be mandatory under the new Model Bye-laws of the Co-operative Housing Society, but it is advisable as it offers clarity about the title of the property, pending society dues, property disputes and hypothecation, if any.
• Meet the secretary and chairman of the society as well as neighbours before buying.
• An income tax clearance certificate would ensure that the seller has discharged his income tax liabilities to avoid attachment of the property.
• Obtain a copy of the latest society bill and electricity bill.
• Ensure that the consent, sanction or no objection certificate of the urban land ceiling authority and the municipality if applicable have been obtained.
• If possible, consult a property lawyer, especially where the sale is through a power of attorney. A good lawyer will undertake proper investigation and issue prominent public notices to clear interest of other properties in the property concerned.
• Getting a home loan sanctioned ensures that the documents are in place as banks or institutions conduct due diligence before disbursing loans.
• Finalise the terms and conditions of the sale deed and provide for the duration of their compliance.
• Ensure payment and discharge of encumbrances that are to be cleared before purchase.
• Obtain physical delivery of the property and of the title deeds.
• Complete the transaction of sale by executing and registering the deed. An unregistered sale agreement has no validity in a court of law.