October 22, 2018

Fighting the Mess in Cooperative Housing Society

Maharashtra Cooperative Housing Society Act 1960 has served many constructive purposes. The good part about this Act is, it has consistently improved over the years. Many states in India have similar Act but the way it is implemented in Maharashtra is matter of Pride for all involved. The magnitude of work done under this Act is phenomenal and it can be judged from the simple fact that after RERA Act was implemented, court cases from builder lobby started pouring in at various High Court and even Supreme Court of India, The highest court of India then asked Mumbai High Court to hear all the cases related to RERA Act.

Housing societies where The Managing Committee wants to enforce their decisions, ones who start speaking language of the builder and start ignoring the interests of the owners, etc are the ones who witness legal issues and cases. No matter what happens my one bit advice to all owners is never take law in your hand even if you are humiliated in public, owners are mislead right under your nose. Any unlawful act only weakens your case.

Future of a Housing Society depends on the Managing Committee. There are cases where the Managing Committee has gone beyond the expectation and have done wonderful job. It is a Honorary job and owners come forward to take responsibility volunatrily. There are no salary and all in Managing Committee (MC) take this responsibility out of sheer passion. Some non members also come forward and assist MC members. There are times when the number of passionate members are more than the requirement. This leads to Election as per Amended Maharashtra Cooperative Housing Society Act 1960. Under Section 73 CB (1) State Cooperative Election Authority is constituted and Elections should be done according to Maharashtra Cooperative Housing Society Act 2014. This has two formats. Societies having less than 200 flats and Societies having more than 200 flats. Any election done without following the given guidelines will be treated as Null and Void and it would be in the interest of the owners in that society to report the matter to Dy. Registrar and Election body for necessary action.

Normal disputes to legal fight happen only as an outcome of one party (MC or owner/s) not understanding the other party view point / requests and try to force their view point. Another reason for such fight is owners decide to remain inactive all throughout but want to bombard the MC in AGM. Why wait for a year when the proactive steps can eliminate small or serious issues at initial stage itself.

To ensure there is flawless and legal work happening each owner has to be attentive right from the time they buy the flat (in new construction). At the time of booking the flat the buyer doesn’t see the Sale Agreement. What Buyer typically do is give a token amount and book the flat. The Sale Agreement is given typically by builder staff at the time of Registration and Stamp Duty. The buyer keeps signing dozens of pages without bothering to read some salient points that are in builder favor. Well, some people may have lost faith in legal process but it is very much alive and ticking at good pace. One clause that builder normally slide in the Sale Agreement is that you can’t approach any court without Arbritration. The courts have taken this seriously and even if this clause is their in your agreement, it doesn’t make a difference. You still have the right to approach any consumer / civil court for relief.

All construction have a possession date. This date is important for multiple reason in future. Advance maintenance (12 months / 24 months varies from builder to builder) taken by the builder starts from the possession date. Some builder make friends with some of the owners and put this money in Fixed Deposit without informing the individual buyer/s. This is not done. The matter doesn’t end here. The builder then asks you to pay the maintenance again. When you question, you will be told that the amount put in FD will be transferred when MC is formed and conveyance done. All you have to do is write to the builder asking him to specify the clause under which he has put money in FD without your consent. Chances are you would never get anything in writing. Keep following up at regular intervals. This will come handy when the conveyance is done and MC starts acting smart with you.

Back to the process. Most important part is formation of Provisional Committee with the help of Chief Promotor. The duration of Provisional Committee is one year. This is the time when the occupancy of the complex is not 100% and buyers are happy to shift in their new flat. The problem starts at this juncture. First you can’t blame the Managing Committee if you don’t spare time for them. They do honorary work and are equally busy and have loving family too. Owners who take initiative to be part of the Provisional Committee need to be respected and given free hand to function as long as they remain transparent in their dealings. If you find transparency is missing raise alarm by writing to Dy Registrar and others in the system including Constitutional Head and Ministers. Hon. PMO can be informed if the situation demands so.

Not to forget registration of the Housing Society with Dy Registrar. This date is sacrosanct. Within three months of the registration, Provisional Committee should be formed. Duration is one year. Minutes of Meeting and AGM have to be recorded and edited if there is any mismatch between the preceding and what is written. Any objection have to resolved by the MC. List of documents to be handed over by the builder to Provisional Committee has to be as per Law and Act. There can’t be any short cuts to it. The builder can’t ask for his style of handover. Anyone in the Provisional Committee trying to side with the builder has to give an explanation. If any owner or any MC member at any given point of time feels the process is compromised, they need to write to Dy. Registrar and follow up till convinced or rightful action not taken. Before handover builder or key representative have to meet the owners and take their inputs for inputs like water supply issues, fixtures not operational, leakage in flat, etc. The builder has no right to demand that conveyance would be done only to Final Managing Committee. This is illegal and if done such MC will have to do do a lot of explanation and consequences are beyond explanation.

Some Cases / Laws you should know. This might help and motivate law abiding owners to fight legally.

If your housing society has passed a law that bachelors can’t be given flat on rent, then it is illegal. If the matter is reported to the Dy Registrar then the MC members will land up in serious trouble for not following law of the land. The owner has final say on who he wants to give his property on rent. This is Criminal intimidation and Criminal Breach of Trust. Constitution allows a person to stay anywhere in India of his choice unless an order is given by Court of Law or special provisions created by the government.

Defaming / Public humiliation is serious crime. Add to this if someone in MC provokes the rest of the owners either directly or indirectly to insult other owner or MC member, it leads to serious implications. This is Criminal Intimidation and covered in Section 503 of IPC.   Check this case.

MC can’t ask you to vacate your flat. For details read the case of Actor Deepak Tojori.

32(1) of MCS ACT allows you  to Check / inspect documents in society office with prior information / appointment. 32(2) of MCS ACT allows you to ask for copy of documents. An owner has to bear the costs for photocopy and DVD. No one in MC has the right to refuse.

If the MC does not give the requested information within 30 days then you may use other available options to escalate the matter and get reply/information. All form of Cooperative Housing Society come under RTI Act as well. Supreme Court of India order (Para 52) in Thalappalam Services Cooperative Bank Ltd. against State of Kerala throws light on this. Add to it in February 2017 Aurangabad bench of Bombay High Court has ruled that Cooperative Society under MCS Act 1960 come under RTI Act.

Salient Points:

If in doubt talk to concerned member or MC in privacy. MC members are not enemy, they need to be respected. Fight the unlawful act with evidence against the MC member/s not the member. Never tag the person as corrupt. Keep the focus on unlawful act/s. Generalising the issue never serves the purpose. When in court or consumer forum one has to prove everything. Therefore, stick to the issue and never deviate from it.

If information is not given in writing by the MC then there are high chances of something not being done the way it has to be done.

Ones who follow up are tagged as trouble maker and may face social boycott as well. If you can’t sustain pressure, avoid getting into this.

When MC comes together to shout at you, suppress facts and hardly gives anything in writing, smile and tell yourself – Half the battle is won. No one can run away from the law. Remain patient and keep watching the MC breaking rules. Keep Deputy Registrar in the loop. If need arises escalate the matter. Never get scared of AGM approving certain unreasonable demands of the MC. Law sees such an act in different perspective. If you have a reason with facts and circumstantial evidence, that is good enough to pursue your case and get favorable order.

It is better to be tagged as villain then to be coward and watch some handful of owners having high handed approach as MC members and rest support them. Government is not responsible to change the system 100%. We as citizens got to be part of the change to ensure Governance.

In my next article I would cover Safety and Security of Housing Society.

 

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About Swati Ojha Srivastava 13 Articles
#LivewithDignity is the belief in spirit and practice. Love to take corrupt and people supporting them head on. Managing Trustee - 1 Ka Dum Foundation