The society has obtained for a Deemed Conveyance. It has declared that there are 10 members of the society against 11 in this application.
1. Can a member dispute the mis-declaration?
2. Can there be a de-registration of the society on the basis of the mis-declaration?
3. Inspection u/s 89-A not carried out for more than 3 years. Can this be another ground ?
Asked 3 years ago in Civil Law from Mumbai, Maharashtra
1) for deemed conveyance society has to submit List of Society Members including their Flat/ Shop Agreement Details. society has to pass special resolution to opt for deemed conveyance and it is supported by affidavit of secretary of the society
2) The complete set of the Documents is to be annexed with the Deemed Conveyance Application- Form VII & to be filed in a neat & tidy manner.
3) the Office of Competent Authority issues the Deemed Conveyance Scrutiny Report- Form VIII within about 1 month.
4) in the event false declaration has been made by society issue legal notice to society for filing false affidavit
5) forward complaint against society before competent authority
6) you can move HC for setting aside order of CA of grant of deemed conveyance and for stay of order pending hearing and final disposal of petition
1. Has the deemed conveyance been properly stamped and registered? Has the name of society been incorporated in the Land Revenue Records? Under section 11 of Maharashtra Ownership Flat Act, 1963, Conveyance is the Right of the Co- Operative Housing Society and the Duty of the Property Developer/ Promoter to be executed within 4 months from the date of Registration of the Co- Operative Housing Society.
2. To obtain deemed conveyance the society is to submit a list of all its members. A special resolution at a meeting having the requisite quorum is to be passed to apply for deemed conveyance.
3. Since the society has furnished false information supported by an affidavit to competent authority a lawyer's notice should be issued to the secretary of the society.
4. The most effective remedy would be to challenge in the High Court the order granting deemed conveyance to the society.
The Registered Society to obtain a deemed conveyance, has to submit a list of all its members after a special resolution having the required quorum is passed. A member can dispute the mis-declaration if the conveyance has been obtained by furnishing false documents/information. Section 89-A can be made as a ground, however re-registration of the society on this ground alone may not happen.
Send a legal notice to the society giving them time to correct the wrong doing. meanwhile, file a complaint against the society and move the respective High Court for cancellation of the order granting deemed conveyance.
1. Detailed fact has not been provided in the query. Why has the name of one flat owner/member been dropped from the list? However, if any body's name has been dropped, then no conveyance has been made for his flat, deemed or otherwise for which he/she can certainly dispute the mis-declaration,
2. It can not be conclusively told now wehether the registration of the society will be cancelled or not for the said mis-declaration unless the Society's version/argument is pesused,
3. You can lodge a complaint about not carrying the inspection. The Registrar will certainly send notice to the Society to this effect.
Sh. Kishore Kumar Ganguly,
The society was formed in 1979 with 10 members. The Balance sheets of the society show a Share Capital of Rs. 2,750/- i.e. 5 shares of Rs.50/- each per flat for 10 flats (Total Rs.2,500/-) and 5 shares of Rs.50/- each for 1 garage. Thus, 11 members make the membership of Rs.2,750/-. The garage has not been declared but it is held by a member who is not holding any of the 10 flats and therefore an outsider.
This appears to be mystery as none of the founding members survive and the present one are not aware and therefore an explanation at the General Body meet was not given.
Several irregularities exist. Hence a complaint was lodged. The Dy. Registrar ordered an inquiry u/s 89-A. However, the society managed to avoid it under the pretext of correspondence has been submitted for preparation of Deemed Conveyance. Then, it resolved the issue of complaining member not having a valid membership. The matter came up before the Dy. Registrar for hearing.
Here, the society introduced the heir in place of the complaining member. The heir, being one of the several heirs, did not submit a succession certificate. The Dy. Registrar decided that he was not the authority to decide the issue and closed the issue. Follow-up has been maintained and an RTI has been filed for the current position of the inspection u/s 89-A.
The society then applied for a Deemed Conveyance declaring only 10 members. The Dist. Dy. Registrar also ignored this objection and passed the Deemed Conveyance order. The issue escalates further as to how the 11th member would be accomodated for the contemplated re-development plan of the society.
Asked 3 years ago
1) a person holding a mere garage is not entitled to membership of society
2) the rights to hold a garage in society flows from his right as flat owner
3) society should not have admitted a person holding mere garage as member of the society .
4)how person holding mere garage was admitted as member of society is million dollar question
5) even if you challenge deemed conveyance order chances of obtaining relief are bleak
Thanks for your reply.
The question is that there are 11 units, 10 residential and 1 other than residential. This is against the 10 flats declared. The garage is a seperate entity on the plot and does not form a part of the main building of 10 flats.
The garage necessarily forms a part of the plot. The fact that the garage was treated and sold as an unit like any other flat of the society and shares were issued to the garage owner because of the sale. The owner therefore became a member of the society.
The conveyance is for the entire plot along with all the in-built structures on it and the garage cannot be isolated for the conveyance for the plot along with structures thereon.
1. Does it therefore not amount to a mis-declaration in the application, one member being short?
2. The garage owner has to be treated as a member as he purchased the garage and consequently holds the shares of the society in the same proportion as that of a flat.. He too would have a share in the plot and the property re-development, He could not be deprived of his right to the area purchased by him in the society plot like any other member. How this right is settled by the re-developer is another issue.
3. Since the right to hold a garage flows from a member's right as a flat owner, the garage could not have been sold to an outsider. The registration and stamp duty is payable on this sale agreement. But the fact is that it was sold, rightly or wrongly, to an outsider and shares were allotted to him. It is therefore a million dollar question which should have been raised by the Dy. Registrar at the time of registration of the society, as you have rightly pointed out. This has not happened then or subsequently.Even after this anamoly was pointed out to the Dy. Registrar and the Dist. Dy. Registrar, it was overlooked by both.
I therefore seek guidance on this please.
Asked 3 years ago
1) does building sanctioned plans by BMC show garage on the plot?
2) you must have entered into agreement with builder for purchase of garage?
3)was agreement duly stamped and registered?
4) when were you admitted as member of society and issued share certificate?
5)since you are not a flat owner you cannot be entitled to be member of society merely because you are holding garage .
6) garage owner cannot cannot claim membership rights in society . the decision by society to admit you as member is flawed .
7) it is surprising that decision of society to admit you member has not been challenged by any member .
8) in the event you file writ petition to set aside deemed conveyance granted to society the high court may not rule in your favour for simple reason that garage owner not owning any flat cannot claim membership rights in a society .
1. First of all Kishore Kumar Ganguly is long dead and here comes Krishna Kishore Ganguly,
2. You are providing vital information in instalments,
3. The Society is formed by the flat owners and the garrages also should be owned by the said flat owners,
4. You have bought 5 shares each of Rs.50/- but whom did you pay the consideration for buying the said garrage?
5. As per the bye laws of the society only the flat owners are to buy the garrage and not any outsiders,
6. The garage owner can not be treated as a member of the Society formed by the flat owners since he is not a flat owner,
7. So, at first you shall have to get it cleared from the registrar of society whether a garage owner can be a member of the society of flat owners where he does not have any flat,
8. If he is so allowed as member, the owner of a shop in that society premise, can also demand to buy share of the society and claim deemd registration of his shop by the Society.
1. What does the bye law of the sciety says?
2. Does it say that non flat owners also can become memers of the society,
3. Does the bye law says that non flat owners also can buy garage in the property belonging to the society?
4. If not, then the said sale of the garage and subsequent sale of shares of the society to the garage owner is not as per law.
1. The bye law of the society is germane to the queries raised by you.
2. Generally, the bye law does not allow any garage to be sold to any one who is not a member of the society, but this is subject to a clause to the contrary in the bye law of your society.
3. If the bye law does not prohibit the sale of a garage to a non member then the sale is valid, else it is illegal. Bye virtue of purchase of garage you could not have become a member of the society.
4. If you challenge the deemed conveyance granted to the society your chances of succeeding will be very miniscule owing to the fact that you could not have been admitted as a member of the society merely because you had purchased the garage.
5. Peruse the bye law of the society to ascertain whether it provides for sale of garage to a non-member and whether the non-member to whom the garage has been sold can be admitted as a member on account of the sale.
Firstly, my sincere apologies to you for addressing you as Kishore Kumar Ganguly.
Shri Krishna Kishore Ganguly,
Your querry regarding flats as defined in the bye-laws:
(vi) Flat' means a separate and self contained set of premises used or intended to be used for residence, or
office, or show-room, or shop, or godown and includes a garage, or dispensary, or consulting room, or clinic, or flour mill, or coaching classes, or palnaghar, beauty parlour, the premises forming part of a building and
includes an apartment.
Thus, share certificates were rightly issued to the garage owner.
Ofcourse, the definition prevalent in 1979, when the society was registered, is not available.
Asked 3 years ago
supreme court has interpreted the meaning `flat'in :Nahalchand Laloochand Pvt. Ltd.
Panchali Co-operative Housing Society Ltd. ...Respondent
7 It must be a separate and self contained premises;
7 It must form part of building;
7 It must be used or intended to be used for any of the uses namely--residence, office, showroom, shop, godown or for carrying on any industry or business.
29. In the discussion made above, we have not referred to the bracketed portion namely - `(and includes a garage)' so far. What is the meaning and significance of this bracketed portion? On technical linguistic basis, the bracketed phrase can only attach to the word preceding it. That may not be happy construction nor such construction by reading bracketed portion `(and includes a garage)' with the preceding word `business' appropriately reflects the meaning of the phrase. The scope of the bracketed phrase has to be seen in the context of the definition given to the word `flat' which is true indication of intent of the legislature. It was suggested by learned senior counsel and counsel for the promoters that the phrase `and includes a garage' must be read with the `set of premises' and not with the user. This does not appear to be a correct reading of the expression. We are not persuaded to accept such construction. We think that statutory definition of `flat' must be construed keeping in view the intent of the legislature and the context of the statute and, seen thus, the phrase, `and includes a garage' in the bracket does not bring in `garage' by itself within the meaning of word `flat'. If stand alone `garage' (or a garage by itself) were intended by the legislature to be a `flat' within the meaning of Section 2(a-1), that could have been conveniently conveyed by use of the expression `or garage' after the word `business' in the same breath as preceding uses. The bracketed phrase is rather indicative of the legislative intention to include a `garage' as appurtenant or attachment to a flat which satisfies the ingredients of Section 2(a-1) meaning of flat
It is clear to us that stand alone `garage' or in other words `garage' as an independent unit by itself is not a `flat' within the meaning of Section 2(a-1) and we answer question (i) in the negative.
in view of Sc judgement your case falls flat and you would not get any reliefs from court
1. The Citation posted by Ld.Advocate Mr.Sethi clears the confusion for good,
2. If you now extrapolate the above interpretationon logical grounds, the sale of garage owned by the society of the flat owners to a non flat owner can be challenged in the Court of law.