Maharashtra Co-operative housing society act bye laws are mandatory in nature - Answers for queries on property matter

WHO IS RESPONSIBLE FOR WATER SEEPAGE FROM SOCIETY ROOF?
I am a member of a registered society. For some time now I am facing problem of water seepage from the roof, which has water tanks for all the flats. Some 'Peepal' trees have also sprouted. What are the obligations of the society in the matter?
–Col. R.S. Bhandari (Veteran)
In terms of Model Bye law No.156, it is the responsibility of the managing committee to maintain the property of the society in good condition at all times. Therefore the society should take corrective measures to stop the water seepage from the roof of the buildings and also to remove the budding of the peepal trees from the terrace, otherwise in the course of time the roots will spread to the walls etc. resulting into cracks in the building, which could pose a major problem to the Society Building.

WE HAVE STILL NOT RECEIVED OC AND CC FROM THE BUILDER

My society was registered in the year 2005 and till date we have not got the conveyance deed and completion certificate from the builders. Moreover the builder has installed MTNL tower on the terrace of our building, without our permission and earning money as lease rent. How to solve this problem?
–Sundaram R.M.
A building cannot be occupied until the completion/occupation certificate has been issued by the local authority and non-execution of the conveyance deed is the breach on the part of the builder of his obligations as per the provisions of Maharashtra Ownership of Flats Act and a criminal complaint may be filed as per the provisions of Section 13 of the said Act. Alternatively, the society may obtain deemed conveyance through the District Dy. Registrar, as the rules have been notified after the amendment in Maharashtra Ownership Flats Act. The MTNL tower cannot be installed without the prior permission of the local authority and if installed after the registration of the society, prior permission of the society will also be necessary. The issue may be taken up with the local authority as well as the Dy. Registrar of the Societies. It is given to understand that Delhi High Court has ordered that before installing a tower, approval of all the residents of a building is necessary (As reported in the DNA issue dated 02.09.2010 page 7).

WHAT IS THE PROCEDURE FOR KEEPING A PAYING GUEST?

I am a frequent traveller and own a home in Mumbai and want to keep paying guest on rent. I would like to know whether I need the permission of the society, though I would keep a room for myself and whether the society can charge anything as non-occupancy charges. What can I do to safeguard my interest against the society and the paying guest.
–Name withheld on request
For giving a flat on rent to a paying guest, even after keeping one room for self, prior written permission of the society will be necessary and the non-occupancy charges will be required to be paid to the society as per the rules i.e. at 10% of the monthly service charges. For giving the flat or a portion thereof on rent or leave and license basis, you should enter into a proper lease rent or leave and license agreement, as the case may be, and stamp it and register the same as per the current rates. You will have to intimate the particulars of the paying guest, tenants etc. to the nearest Police Station for their verification.

HOW CAN I GET THE FLAT TRANSFERRED WHEN SELLER IS DEAD?
I entered into an Agreement for Sale and made the payment for the same at Mumbai but before further procedure could take place, the seller has died in an accident leaving behind two daughters, out of whom one is major and another is a minor living with the guardian. But the society has asked for the succession certificate for the transfer of the flat. It will take 4 years for the minor to become major. What is convenient way for the transfer of the flat in my name? Currently the flat is in my possession and the society is claiming pending dues from me, but issuing the receipts in the name of the deceased owner.
–Amit Ahire
As far as sale of the flat is concerned, it is complete inasmuch as agreement for sale has been executed, full payment has been made and the possession has been given to you and the deceased seller might have taken, as per usual practice, transfer NOC from the society in your name at the time of the execution of the agreement for sale, though it is not now essential as per the bye laws. In any case for the transfer of the flat in a society, certain formalities of application forms etc. have to be complied with both by the seller and the purchaser. Since the seller has expired, the society may call for the succession/ heirship certificate. But in the circumstances of this case, a practical view may be taken and society, in my opinion, may proceed with the compliance of the formalities by the daughter, who is major, and through the guardian of the minor daughter and at the most, it may take an indemnity bond etc, because sale transaction by the deceased is binding on the legal heirs. As regards the outstanding dues, the society will issue the receipts for the payment in the name of the deceased member, as you have not yet been enrolled as a member of the society. However before purchasing the flat, you may have exercised due diligence to ascertain that all the dues payable up to the date of the agreement have been paid by the deceased seller.

CAN NON-RESIDENT MEMBER BE A SOCIETY OFFICE BEARER?

I would like to know whether a member not staying in the society may hold a responsible position in the management of the society. Further Chairman of the society have built a structure in the open space of the building saying that he has purchased two parking slots from the builder. He also does not pay parking charges and argues that a member, who owns parking space, need not pay the parking charges and the Secretary is not including these charges in the maintenance bills. Please advise.
–D.P.S. Nair
By giving the flat on leave and license basis or rent with the prior permission of the society as per the bye laws and staying outside, does not mean that the member has ceased to be a member of the society and he can hold the position in the managing committee, if duly elected or co-opted as per the bye laws. The Chairman or any other office bearer or any member cannot put up any structure in the open space of the society, including the parking slots in spite of the fact that he might have purchased the same from the builders prior to the formation of the society, which has been termed recently illegal by the Supreme Court of India. All the parking slots belong to the society and the society have to allot the same as per the provisions of model bye-laws No.78 to 85. If decided in the general body meeting of the society, each member, who has been allotted the parking slot by the society, has to pay the parking charges. The Secretary is duty bound to include such charges in the monthly maintenance bills.

WHAT IS THE PROCEDURE FOR TRANSFERRING FLAT TO A SON?

My brother in law is sick and he wants to transfer his flat in a cooperative society in favour of his son. Please advise if this can be done through gift deed alone. Will his son be required to pay stamp duty and register the flat, as required when flat is sold?
–Jackson B.
Your brother in law may execute a gift deed in favour of his son to make him exclusive owner of the flat. Such a gift deed would attract stamp duty at 2% of the present market value of the flat and registration charges at 1% thereon (subject to a ceiling of Rs.30000) and, thereafter, he and his son may apply to the society to transfer the share certificate and the ownership of the flat in his name in other relevant records of the society.
For deemed conveyance in favour of our society whether all flat documents are to be stamped and registered? Whether papers like building plans, CC are necessary for deemed conveyance?
Amended provisions with regard to deemed conveyance are in addition to and not in derogation of the existing provisions, to the extent they do not contradict each other and are capable to co-exist. Amended provisions require that application for deemed conveyance will be "accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or the company or the association, who have purchased the flats…."
Pre-amended provisions continue to provide that a housing entity can be formed under an application by purchasers owning only 60% of the flats; amended provisions are benevolent in nature to provide inter alia for expeditious conveyance; amended provisions refer to the members of housing entity and not flat purchasers.
A society formed by more than 60% of flat purchasers should be able to get conveyance even though some of the flat purchasers have not complied with stamp duty or registration requirements who are yet to be admitted as members.
Pre-amended provisions enabled societies to get conveyance without reference to stamp duty and registration aspects of individual flat purchase agreements as has been confirmed by various court decisions also.
Even when some of the flat purchase documents are not stamped and conveyance is granted, the Government does not lose revenue, because Government in any case collects stamp duty on present market value of the entire property minus stamp duty paid on the flat purchase agreements with promoter.
Further, society will be within its right to recover from the member on whose flat agreement the stamp duty was not paid or short paid and due to which the society has to pay higher stamp duty on conveyance. Government can always enforce payment of stamp duty on unstamped or deficiently stamped documents.
Under MOFA, a promoter cannot collect sale consideration above 20% unless the sale agreement is registered. If non payment of stamp duty by few flat purchasers results into non conveyance, it would mean an advantage of to a delinquent promoter having failed in statutory obligation.
A view is being propagated that for obtaining deemed conveyance certificate, documents like building plans, commencement certificate, occupation certificate, completion certificate, property cards, would be required to be furnished by the society.
Such a view is in contradiction to the letter and spirit of amended provisions. Unless a promoter has given, society cannot be compelled to produce such requirements. Such additional requirements may be propagated so that non availability of such documents can lead to unreasonable demands.

BUILDER PROBLEMS CONCERNED ABOUT LEGALITY OF PROJECT CONSTRUCTION

I have purchased a residential flat on 3rd floor in a building at Old Panvel in April 2010 and during the search, it was found that the building was approved for stilt plus two floors by the Collector. Now the builder has taken approval from the Gram Sarpanch for the stilt plus three floors. The builder is arranging the loans from Dena bank and Canara bank. I want to know about the legality of the construction and whether to hold the flat or I should cancel the agreement. In case cancellation what return will I get?
–Ravi Shankar
In old Panvel if the area is outside Municipal Council Panvel and within the limits of Gram Panchayats, approval of plans and building permission are issued by respective Town Planning Authorities under the District Collector of Raigad, and it is mentioned in the non-agriculture permission issued by the office of Collector. If the building has been approved for constructing the stilt plus two floors by these authorities, the construction of the third floor, even with the permission of Sarpanch, is unauthorized and illegal and it would be advisable that you should cancel the agreement and take back the refund of money paid to the builders. You may also apply to the Collector of the Stamps for the refund of the stamp duty, as per the provisions of the Bombay Stamp Act, 1958.

OUR BUILDING HAS STILL NOT RECEIVED COMPLETION CERTIFICATE

I own a flat since the last 3 to 4 years, but we have not received the completion certificate and also the property tax demand. Will there be any problem?
–Abhijit Mohite
A building, under the rules, cannot be occupied, until the completion certificate/ occupancy certificate have been issued by the local authority. The non-issuance of such certificate may be due to the violation of FSI by the builders. You are advised to find out the reason for non-issuance of these certificates and the property tax demand from the concerned departments of the local authority to avoid problems in future, such as demolition and/or payment of property tax with arrears along with interest etc.

BUILDER HAS NOT YET TRANSFERRED PROPERTY TO THE SOCIETY

We have purchased a flat 3 years back and residing in it since then but the builder did not provide the water connection and occupancy certificate for one year which was provided after one year of the possession. Even after the expiry of 2 years from the date of OC, we have not received the property tax demand from municipality and the builder has not yet transferred the property in the name of the society.

–Name withheld on request

The building cannot be occupied without having the completion certificate and occupancy certificate and it is the obligation of the builder to provide all the amenities such as water connection, electricity connection, sewage connection and to transfer the property in the name of the society as per the provisions of the Maharashtra Ownership Flats Act 1963 and in case of his failure, legal action may be taken against him as per the provisions of Section 13 of the said Act. Besides the government has been finalizing the rules, whereby the flat purchasers could approach District Dy.Registrar, if the builder fails to form the society and convey the land and building to the society, for having unilateral deemed conveyance in favour of the society and the flat purchasers can take advantage of these provisions in such cases.

CONVEYANCE IS STILL PENDING IN A 35-YEAR OLD BUILDING

Our society is more than 35 years old and the builder has not conveyed the title of the property to the society as yet. Our society is contemplating to go for redevelopment, before which conveyance in favour of the society is necessary. I understand that the deemed conveyance could be applied for by such societies within 4 months of the society's formation. Please clarify whether such a proposal has become law and it is advisable for our society to wait for the law to be enacted, instead of approaching the builder and shelling out huge money for getting conveyance. In case of obtaining the conveyance through the Registrar, who will bear the cost, builder or the society?

–Anand

The state government have notified the rules on 13.10.2010 for the deemed conveyance through the District Dy.Registrar, where the builder fails to convey the property to the society and your society may apply for the conveyance in favour of the society through the District Dy. Registrar. In terms of the provisions of Section 13 of the Maharashtra Ownership Flats Act, the society may also file complaint against the builder for his failure to convey the title to the society as per provisions of the said Act. As regards the expenses for the conveyance, initially the society or the members may have to spend but they may have the recourse to recover the same from the builders as per the provisions of various laws.

MHADA MATTERS

PURCHASED FLAT FROM MHADA BUT DOCUMENTS NOT YET RECEIVED

We had bought the flat in 1991 from MHADA and had applied for the registration of the flat and paid the registration charges etc. But due to personal reasons could not collect the documents. When we approached MHADA, they evaded the issue that they were updating their web-site and after this process is over, they would be able to inform with whom these documents were lying. What should we do?

–Ritu Singh

The officials of Govt. bodies such as MHADA, CIDCO are exempted from the personal appearance before the sub-registrar for registering the documents. Therefore they execute the documents and hand over the same to the purchasers for the purposes of registration. When you applied for the registration and paid the registration charges, it may be that your documents are lying in the office of sub-registrar, because in nineties, the documents were sent by the sub-registrar offices to Pune for micro-filming etc. and were not returned for years together. But all such documents have now been received back from Pune in the respective registrar offices, you may, therefore, contact the sub-registrar office concerned and find out whether your document was lying there. Otherwise, you will have to follow-up the matter with the MHADA authorities and in case of their non-cooperation, you may proceed against them in a consumer court.

IS THERE ANY RESTRICTION ON GIVING MHADA FLATS ON RENT?

I applied for a flat in MHADA society in western suburb, because my office was located in the same vicinity. But by the time the flat was allotted in the year 2004, I changed my company and the new office being at far off place, I preferred to stay near the office and rented out this flat. The society has been charging non-occupancy charges as per their discretion on the ground that the MHADA flats are not supposed to be rented out and if I do not pay the non-occupancy charges as demanded by them, they would inform MHADA. I am getting rent of Rs.15,500 per month and the society is charging Rs.3000 per month, as Rs.2000 society charges and Rs.1000 as non-occupancy charges. Can I stop paying these exorbitant non-occupancy charges? Is it a fact that MHADA flats cannot be rented out legally and is it possible to get the excess money paid adjusted towards future society charges?

–Shobha K.

If it is provided in the allotment letter/agreement for sale of MHADA that the flat cannot be rented out or given on leave and license basis without the prior permission of MHADA, the letting out of the flat, without the permission of MHADA, will be contrary to the terms of the allotment and MHADA can take action as per the rules. Further in terms of the bye-laws of the society, prior written permission of the society is necessary to let out the flat or to give it on leave and license basis and non-occupancy charges at the rate of 10% of the monthly service charges, excluding property taxes, have to be paid. Society cannot charge excess amount towards non-occupancy charges with the threat of complaining the matter to MHADA. If MHADA permission is necessary, you may approach MHADA for the required permission and submit the same to the society. For the excess amount being charged by the society, you may take up the matter with the Dy.Registrar of the Co-operative Societies to issue suitable direction to the society to charge the non-occupancy charges as per the rules and adjust the excess amount charged so far towards the outstanding dues/monthly service charges of the society.

INHERITANCE ISSUESIS A CHILDLESS WIDOWN ENTITLED TO INHERIT A SHARE OF PROPERTY?

Can a childless woman get her husband's share in his ancestral property after his death?

–K.K.Wajge

A widow is one of the class-I legal heirs under the Hindu Law in addition to the sons and daughters and the children of pre-deceased sons and daughters and the mother. If no other legal heirs have been left, the widow would inherit the share of her husband in his ancestral property as his class-I legal heir.

SOCIETY AFFAIRS WHAT IS THE MANAGING COMMITTEE REQUIREMENT FOR OUR SOCIETY?

We are a registered society in Panvel with 70 flats and 26 shops. In the year 2007, managing committee comprising of 9 members, resigned due to personal reasons. Subsequently 7 new members were co-opted and the committee with 2 existing members started functioning. In 2009, again one member has resigned and the committee now consists of 8 members only. Is there any provision to include one eligible and interested person as the 9th member to complete the quorum?

–Manish Agarwal

The composition of the managing committee is governed by the bye-laws of the society. In terms of model bye-law No.115, a society, having 51 to 100 members, may have the managing committee comprising of 7 members, including one woman. Therefore, your present managing committee, consisting of 8 members, is having the required strength. Further, the strength of the committee members should not be confused with the quorum for the meetings of the managing committee. In case of 7 members of committee, 4 members present shall form the quorum for deciding the issues before the committee.

WHAT IS THE MEMBERSHIP STATUS WHEN A JOINT OWNER EXPIRES?

We purchased a flat in Mumbai in joint-names but we have not got the share certificate transferred, as one of the joint-owners has expired without a will. Can we get the membership rights to the society and whom the benefit of redevelopment will go and what will be status of the successors of the deceased?

–Ketan Vira

In case of joint ownership of a flat, first named person is enrolled as member and the second named as the associate member. It is not clear out of both the joint owners, who has expired. If the first named person has expired and he has made a nomination, nominee would take his place, otherwise the legal heir of the deceased would be taken in his place and same thing would happen in the case of the second named person. The benefit of the redevelopment shall go to the surviving joint-owner and the legal heirs of the deceased. The surviving joint owner and the legal heir of the deceased shall be entitled to one half share of the ownership of the property. If there are more than one legal heir, the 50% share of the deceased shall belong to all his legal heirs.

MANAGING COMMITTEE IS NOT IMPLEMENTING CERTAIN BYE LAWS

Our society is registered with the new model bye-laws in July 2002. Since then the managing committee of the society is not implementing the provisions of bye-law No.13 (c) 67, 68 and 69 on the pretext that these are against the majority and are not mandatory. Please clarify whether the sinking fund and maintenance expenses are to be charged at the minimum of 0.25% and 0.75% respectively of the cost of construction of the building of the year 1997 or the present cost of construction?

–Suresh Rao

The objective of creating the sinking fund is to accumulate the funds for the reconstruction of the building, when it becomes dilapidated or inhabitable. If the sinking fund is collected on the basis of the construction of the building in the year 1997, the fund, so accumulated, will not be sufficient, because of the inflation to meet this objective. Similarly, repair fund will not be sufficient to fulfil its purpose. Therefore, it is advisable that the general body of the society may take a decision to obtain a valuation report from a qualified engineer or the architect on an interval of 3 years or 5 years or so, as may be decided, and fix the sinking fund contribution on the basis of that valuation. The same may be followed for the contribution towards repairs etc. under bye law No.69 a (iii). The other expenses are not related with the cost of construction of the building. The bye-laws are mandatory in nature and the implementation of the same is the bounden duty of the managing committee.

CAN A society levy NON OCCUPANCY PENALTY FOR STAYING IN SAME bmc WARD?

My society is charging me 10% non-occupancy charges since last two years under bye-law 43(2) (c). From this month society has given me notice to pay extra penalty of Rs.2000/- per month, because I am staying in same BMC ward. Is there any law that leave and license flat owner cannot stay in the same ward or locality of BMC ward.

–Dalvi M.S.

A member cannot give his flat on leave and license basis without the prior written permission of the society for the reasons as mentioned in bye law 43(i). If you are staying in the area of the operation of the society, you will have to satisfy the committee about the reasons for giving the flat on leave and license basis. But once permission has been given by the society and you have entered into the leave and license agreement, society cannot impose the penalty etc. till the expiry of the period of leave and license agreement. However, if you seek the permission of the society for the renewal of the leave and license agreement, you may have to satisfy the society for giving the flat on leave and license while staying in the same area.

IS FLAT TRANSFERRED TO THE NOMINEES WHEN MEMBER EXPIRES?

Mr. X owns a flat in our society. He has his wife and three children staying elsewhere. About 8 years back, he submitted a nomination to the society in the name of his second son and the grandson to the extent of 50% each. Two years back, Mr. X has expired and both the nominees have approached the society, on the basis of this nomination, to get the rights of the flat transferred in their names jointly. Whether the society can transfer the flat in favour of these nominees or the consent of the wife and two other sons of the deceased would be necessary?

–M. Narayan

Once there is a valid nomination, society cannot refuse to transfer the share certificate in the names of the nominees and no prior consent of the wife and other legal heirs of the deceased is necessary. In case these legal heirs have any objection, they may have to obtain an order from the competent court restraining the society for the transfer of the share certificate in the names of the nominees. Further as per law, the nominees do not acquire exclusive ownership rights and the property vests in the estate of the deceased and all his/her legal heirs will succeed to the property.

CAN A DISQUALIFIED MEMBER HOLD A POST AFTER RE-ELECTION?

What are Section 79 and 88 of MCS Act? Can a disqualified office bearer hold the post of Chairman, Secretary, Treasurer by way of re-election and where records not maintained properly, meetings of the society not held as per the bye- laws, spending the money without the authority of the committee, AGM not held as per the rules and not circulating accounts and the agenda and non-auditing of the accounts of the society etc. are the reasons to disqualify them from contesting re-election to the managing committee and what is the period a disqualified office bearer cannot contest the election?

–E.M.R.Panicker

Section 79 of MCS Act empowers the Registrar to issue necessary direction to the society to keep proper books of the accounts and to produce such statements and returns as and when required from time to time. Section 88 empowers the Registrar to assess the damages against the persons responsible for the management of the committee, whether past or present, within a period of 5 years of the audit of the date or the enquiry or inspection who misappropriates or retains any money or the property of the society or found guilty of misfeasance or breach of trust in relation to the society. For full details of these provisions, you may refer to these Sections and other related provisions of MCS Act. An office bearer becomes disqualified for being a member of the committee, as per the provisions of Section 73(FF) of the said Act, when an order is passed by the Registrar to this effect and such disqualified member will be eligible to be co-opted or re-elected as a member of the committee after the expiry of the period of two years from the date he ceased to be the member of the committee as per Section 73 (FFF) of the said Act.

SOCIETY AFFAIRS CAUSE OF WATER LEAKAGE IS NOT CLEAR, WHO SHOULD BEAR THE COST?

I occupy second floor in a society building. There is water leakage from in between orifice on the wall and connecting pipe to the toilet drainage pipe. The crack seems to be on the connecting point between closet and drainage pipe at some hidden point. Please let me know whether it is to be attended to by me or the society, as it involves demolition of the toilet floor and the closet.

–K. Ramachandran

Repairs to the internal leakage is the responsibility of the member, whereas the external leakages have to be attended to by the society. In a case where it is not possible to find out the cause of the leakage, whether because of internal or external factors, a report may be obtained from a qualified engineer or the architect and the same may be attended to by the member or the society, as the case may be.

SOCIETY HAS CHARGED EXCESS AMOUNT FOR TRANSFER

Recently I have sold my 1 BHK flat in Kharghar, Navi-Mumbai. Because of the buyer's urgency and shortage of the time, I had to pay Rs.35,000 as demanded by the society. Please suggest me what is the amount a society can charge for the transfer and what is the procedure to get the refund of the same?

–Venugopal

For selling a flat no transfer NOC is needed from a society. However after the completion of sale, when flat has to be transferred in the name of buyer, transfer charges have to be paid. A society can charge the transfer charges as per the decision of general body, but subject to a ceiling of Rs.25000 and more than that can't be charged under any pretext or cause or reason whatsoever. In case of excess payment, you can approach the Dy. Registrar to issue the necessary direction to the society to refund the excess amount to you.

SOCIETY NOT RESPONDING TO NOMINATION APPLICATION

My father and mother were the joint share holders of the flat. My father has expired in the year 2003. Now my mother needs to nominate her both the sons (me and my younger brother) in the share certificate. We have given a written letter along with the nomination form to the society and the same has been acknowledged by the Secretary. But in spite of repeated reminders society has not responded and the share certificate does not contain our names. Whether it will affect us in any manner and if so, what further action needs to be taken?

–Name withheld on request

The acknowledgement of nomination by the Secretary shall be deemed to be the acceptance of nomination by your mother for her half share in the flat (if share not otherwise provided in the sale-deed) in your favour. On receipt of nomination papers, Secretary has to place the same before the committee and to record the same in the Nomination Register. During the life time of an owner, a nominee does not acquire any legal right and, therefore, question of entering the names of both of your on the share certificate does not arise. Further, nominee holds the property, after the death of the owner, merely as a trustee on behalf of all the legal heirs and the property vests in the estate of the deceased to be initiated by the legal heirs of the deceased.

CAN WE TRANSFER SHARE CERTIFICATE TO A NOMINEE?

One member of the society, who was unmarried, nominated his brother's son and after his death, it was found that he has left a will for his flat in the society in favour of both the sons of his late brother, including the said nominee. Whether the society should enroll the nominee as the member and transfer the share certificate in his name? One member of the society nominated his daughter and after his death, the share certificate has been transferred in her name. She has now submitted the necessary forms for making a nomination in respect of the said flat. Can the society register such a nomination?

–Secretary of a society

On receipt of the death certificate the society should transfer the share and interest of the deceased member in the property of the society in the name of the nominee and on receipt of the application for membership, he should be enrolled as a member. However, on the share certificate it should be indicated that it has been transferred in his favour as a nominee, so as to reflect his true status.
After the death of the owner of the flat, a nominee does not acquire any beneficial interest therein and the flat vests in the estate of the deceased and nomination is merely for the purposes of the society affairs and the nominee holds the property as a trustee or an agent on behalf of all the legal heirs of the deceased. Nomination is not a third mode of inheritance. Therefore, when the daughter, who is a nominee herself, does not have any ownership rights in the flat, she cannot make another nomination. Nomination can be made only by the beneficial owner of the property.

CAN AN ASSOCIATE MEMBER BECOME PRINCIPAL MEMBER?

Nomination form is filled without date prior to their (A+B) death and accepted by the society signed by the secretary. Is it valid? Can an associate member become member of the society, as a principal member, if principal member has expired.

–Veena Shah

The acknowledgement of the nomination, though not dated, shall be deemed to the acceptance of the nomination by the Secretary. As per the bye-laws, he has to place the same before the managing committee to record the same in the minutes of the committee and to enter the same in the register of nomination. An associate member cannot, automatically, become the principal member of the society, on whose death his share in the property shall pass on to his legal heirs as per the provisions of law and on submission of legal evidence of title, the legal heir of the deceased will be substituted in the share certificate as the member of the society.

SHOULD WE REGISTER THE THIRD TRANSACTION AGREEMENT?

I am third purchaser of the flat in a registered CHS. I have paid balance stamp duty under Amnesty scheme 2008. The first purchaser of the flat had registered his agreement with the Sub-Registrar. Is it necessary for me to register my agreement? I was given to understand that the builder will not convey the property unless all the agreements are registered including the agreements of the previous transferees of the flats. According to some sources only first purchaser is required to register the agreement. Further I understand that Dept of Cooperation, Govt. of Maharashtra has issued circular to housing societies to ensure stamp duty and registration before effecting transfer. Is this circular legally binding?

–Jaikishan B M

As early as the year 1989 in Hamuman Vitamin's case, the Division Bench of the Hon'ble Bombay High Court, inter-alia, observed that it is difficult to visualize a situation where a purchaser paying close to a million rupees is interested merely in the transfer of five shares of the face value of Rs.50 each for the said consideration and nothing more. In substance and effect this document incorporates along with the transfer of shares the conveyance of the property although label is one of the transfer of shares only. In substance and effect the document also includes the conveyance of a right to occupy immoveable property which as the Supreme Court has pointed out in the case of R. H. Shah as a species of property. Section 41 of the Maharashtra Co-operative Societies Act relates to an instrument relating to the share in a society and the words reading as "notwithstanding that the assets of the society consist in whole or in part of immoveable property", are prone to miss-understanding. If the said section 41 and Section 17 of the Indian Registration Act are read together, the logical interpretation would be that any instrument relating to the transfer of the right, title and interest in an immoveable property would, compulsorily, need registration as per Section 17 of the Central legislation viz. Indian Registration Act. The Circular issued by the Department of Co-operation of Govt. of Maharashtra is complementary and supplementary to the said interpretation. Therefore, an agreement for resale of a flat in a registered society would require registration and you should go for the registration of the same.

SOME MEMBERS HAVE MISUSED SINKING FUND AMOUNT

In 2009 The Deputy Registrar dismissed the then Managing Committee for failing to furnish the mandatory Bond M20 and appointed an administrator. Before being dismissed, the then Managing Committee utilized the entire Sinking Funds of the Society without the consent of the Deputy Registrar or the General Body. The Administrator conducted elections in February 2010 & handed over the charge to the elected Members. Since February three Members of the Managing Committee, including the Secretary, have resigned. The ex-Chairmans' wife being a joint flat holder is the current Chairperson. Can she be declared a defaulter unless & until she recovers and re-instates the illegally utilized sinking funds from the Ex Committee, including her husband? Can she hold to the post of the Chairperson? Under Bond M20 is the present Managing Committee bound to recover and re-instate the sinking funds from the ex Managing Committee Members?

–Rahul K. Parekh

In the event of the vacancies in the committee on account of resignation or other reasons as mentioned in the bye laws, the committee is empowered to fill in such vacancies by co-option of any other members eligible to be on the committee. A joint holder of the flat, whose name appears second on the share certificate is enrolled as an associate member of the society and an associate member shall not have any rights or privileges of a member, except as per the provisions of Section 27 (2) of the Maharashtra Cooperative Societies Act, which permits such a member to participate in the general body meeting and vote and he or she cannot be the office bearer of the society. For the lapse of the previous committee, the present chairman or the committee cannot be held responsible and treated as defaulters. The present committee has to take up this issue with the Dy. Registrar of the Societies to take action against those members for the violation of the bye laws of the society.

IS EXTERNAL AUDIT MANDATORY FOR SMALL SOCIETIES?

Ours is a small housing society, comprising of 14 flats. Our total collection towards maintenance charges is Rs. 7000 per month (Rs. 500 per flat). This is being continued or the last 7 years. We are maintaining all the Documentation and Accounts as per the bye laws meant for of Co. Hg. Societies. So far we have not done any external Audit. Whether it is mandatory for small Housing Societies like us to have external audit and if yes, what is the eligibility of Auditor and is it required to do the Audit since beginning?

–S.E.Venkatraman

In terms of the provisions of the Maharashtra Cooperative Societies Act, each society has to arrange to get the account audited at least once in each cooperative year and circulate the audited account with the agenda of the annual general body meeting. As regards the eligibility of the auditor, he could be a chartered accountant or a person, who holds a Government Diploma in cooperative accounts or a Government Diploma in cooperation and accountancy or a person, who has served as an auditor in the cooperative department and whose name has been included by the Registrar in the panel of certified auditors published by him in the official gazette at least once in three years.

Society's NOC is required for leave and license'

SOCIETY AFFAIRS CAN SOCIETY CHARGE PENALTY WITHOUT GENERAL BODY NOD?

My flat in Andheri (West) was taken up for redevelopment which was completed in December 2009, though OC has yet to be obtained. The builders stopped reimbursing the monthly rent and the society members occupied the flats from January 2010 onwards and the society did not raise any objection. In February 2010 the Secretary of the Society informed the members, who had given their flats on rent and those who intended to do so that they will have to pay a penalty of Rs.5000 per month till the time building gets occupancy certificate. He further told that if this demand was not complied with, they will make the life difficult for the tenants. Can the society charge penalty on such members without prior approval from the general body. If not what is the remedy for the same?

–Name withheld on request

A building cannot be occupied without having the completion certificate and the occupancy certificate, in your case, from Municipal Corporation Greater Mumbai and it is the responsibility of the builder to arrange for the same and to hand over to the society. In case of failure of the builder, the society may initiate appropriate action against him as per the terms and conditions of the redevelopment agreement. When the flats could not be occupied without completion certificate/occupancy certificate, these cannot be let out or given on leave and licence basis. In addition society NOC is required for the said purpose and the owners of the flat have to pay non-occupancy charges @ 10% of the monthly maintenance/services charges, excluding property tax, to the society. The demand of the penalty of Rs.5000 raised by the Secretary is illegal and not justified even with the approval of the general body meeting. You may take up the issue with Dy. Registrar of the Societies.

SOCIETY MEMBER IS SELLING FLAT AND CAR PARKING SEPARATELY

I am a member of a society registered by CGEWHO, which has conveyed the property to the society. I hold two adjacent 1 BHK flat in one of the buildings. I intent to buy a stilt car parking from a member who has 1 BHK flat and stilt car parking in the adjacent building. He has bought the car parking from CGEWHO after the property has been transferred to the society. He has already sold his flat to someone else and offered me the car parking. Can he sell the flat and car parking to two different members?

K. P. Vinod Kumar

The Bench of Justice R.M.Lodha and Justice A.K.Patnaik of Supreme Court of India has finally put an end to the controversy about the sale of stilt and open parking slots by the promoters and ruled on 01.09.2010 that the Builders/Promoters cannot sell stilt and parking areas as independent units or flats, as the same is to be extended as common areas and facilities for the owners. Thus the member of your society cannot sell the stilt parking and you better refrain from purchasing it. All these spaces shall belong to the society, which will be allotted by the society to the members as per the Bye-laws (Refer Model Bye-law No.78 to 85)
CAN AN ASOCIATE MEMBER BECOME PRINCIPAL MEMBER?
Nomination form is filled without date prior to their (A+B) death and accepted by the society signed by the secretary. Is it valid? Can an associate member become member of the society, as a principal member, if principal member has expired.
–Veena Shah
The acknowledgement of the nomination, though not dated, shall be deemed to the acceptance of the nomination by the Secretary. As per the bye-laws, he has to place the same before the managing committee to record the same in the minutes of the committee and to enter the same in the register of nomination. An associate member cannot, automatically, become the principal member of the society, on whose death his share in the property shall pass on to his legal heirs as per the provisions of law and on submission of legal evidence of title, the legal heir of the deceased will be substituted in the share certificate as the member of the society.


SOCIETY HAS CHARGED EXCESS AMOUNT FOR TRANSFER
Recently I have sold my 1 BHK flat in Kharghar, Navi-Mumbai. Because of the buyer's urgency and shortage of the time, I had to pay Rs.35,000 as demanded by the society. Please suggest me what is the amount a society can charge for the transfer and what is the procedure to get the refund of the same?
–Venugopal
For selling a flat no transfer NOC is needed from a society. However after the completion of sale, when flat has to be transferred in the name of buyer, transfer charges have to be paid. A society can charge the transfer charges as per the decision of general body, but subject to a ceiling of Rs.25000 and more than that can't be charged under any pretext or cause or reason whatsoever. In case of excess payment, you can approach the Dy. Registrar to issue the necessary direction to the society to refund the excess amount to you.


HEADING: CAN SOCIETY CHARGE PENALTY WITHOUT GENERAL BODY NOD?
My flat in Andheri (West) was taken up for redevelopment which was completed in December 2009, though OC has yet to be obtained. The builders stopped reimbursing the monthly rent and the society members occupied the flats from January 2010 onwards and the society did not raise any objection. In February 2010 the Secretary of the Society informed the members, who had given their flats on rent and those who intended to do so that they will have to pay a penalty of Rs.5000 per month till the time building gets occupancy certificate. He further told that if this demand was not complied with, they will make the life difficult for the tenants. Can the society charge penalty on such members without prior approval from the general body. If not what is the remedy for the same?
Name withheld on request
A building cannot be occupied without having the completion certificate and the occupancy certificate, in your case, from Municipal Corporation Greater Mumbai and it is the responsibility of the builder to arrange for the same and to hand over to the society. In case of failure of the builder, the society may initiate appropriate action against him as per the terms and conditions of the redevelopment agreement. When the flats could not be occupied without completion certificate/occupancy certificate, these cannot be let out or given on leave and licence basis. In addition society NOC is required for the said purpose and the owners of the flat have to pay non-occupancy charges @ 10% of the monthly maintenance/services charges, excluding property tax, to the society. The demand of the penalty of Rs.5000 raised by the Secretary is illegal and not justified even with the approval of the general body meeting. You may take up the issue with Dy. Registrar of the Societies.

Heading: FLATS TRANSFERRED WITHOUT TAKING DISTRICT COLLECTOR'S PERMISSION
Our society in Thane district purchased the land from the GP under district collector's orders. Some members surrendered their plots/shares, which were then allotted to the intending persons; but the district collector's permission was not obtained. Notices have been issued by SDO Office that the terms have been violated. What are the possible relief and options available to the members of our society?
K. K. Mohanti
The facts and the circumstances of the case of Aspi Shenoy are not comparable with that of your society. In that case, the land was sold to a company in an auction sale and the society was formed subsequently and the lease deed has not yet been executed by the government in favour of the society. The status of a free-hold land is quite different from that of lease-hold in as much as lease-hold properties carry restrictive conditions, such as specified term of the lease, the user of the land, restriction against the transfer and assignment of the right, title and interest in the demised premises. Similar is the case of the lease-hold plots by CIDCO in the area of Navi-Mumbai. In case of your society, it seems the transfer of the flats, without the prior permission of the district collector, may not be legally sustainable. However it is given to understand that a few cases of the societies on collector's land in Chembur are pending before the Supreme Court of India and the final verdict is awaited. In fact, this lease hold system is a legacy of British Raj and the same has been abolished in the year 1993 in New Delhi by way of conversion of lease-hold properties into free-hold on payment of the prescribed charges. I took up the matter with the State Government with the said scheme and the Government. of Maharashtra engaged the property consultant, Chestertor Meghraj, to examine the matter and suggest the modalities. These consultants submitted their report in the year 2004 to the State Government recommending the abolition of the lease-hold system and suggesting the modalities of the conversion of the same into free-hold. Unfortunately this report is gathering dust.

Heading:

Heading: RESTRICTIONS IMPOSED ON SELLING FLATS TO OUTSIDERS BY LANDOWNER
In a large housing society formed in 1969 at Malad (East) with around 200 members, the members are not allowed to sell their flats to outsiders, other than the employees of a company on whose land the building has been built. Can anything be done to reverse this rule, as many attempts in the past in the AGM were of no avail?
Simon D. Fernandes
If the land on which the building has been constructed has been allotted by a company to the society registered with the condition that the flats could be sold to the employees of the company only, such a condition will be binding, until it is modified either by the company itself or through the judicial process. Sub-letting or giving the premises on leave and license basis is permissible only with the prior written permission of the society and the compliance of the requirements mentioned in bye law No.43 irrespective of the fact whether there are 30% or more lessees in the society. The procedure of recording the minutes has to be followed as provided in the Bye-laws of the society. In terms of model bye-law No.137, it is the duty of the Secretary to record the minutes and to place the same for confirmation in the next meeting of the committee and then signed by the Secretary and the Chairman. When the Secretary is absent, the Chairman has to make alternative arrangement for recording the minutes of that meeting. No member of the society can make any unauthorized alteration, without the prior written permission of the society and the local authority i.e. Municipal Corporation of Greater Mumbai. In case of the failure of the society to discharge its duty, the matter may be taken with the Jt. Registrar of the Societies and MCGM.

Heading: PURCHASED 3BHK FLAT SHOWN AS TWO SEPARATE FLATS IN THE BMC PLAN
I purchased one 3 BHK flat from the builder and the plan annexed with agreement also shows the flat as 3 BHK by a single agreement. However the original plan approved by BMC shows two adjoining flats as one 2 BHK and other 1 BHK. What constitutes a flat? According to the society I have combined and merged two flats and I have to pay maintenance charges for two flats, though I purchased the same by one agreement.
Amit Joshi
A flat has been defined in Section 2 of the Maharashtra Ownership Flats Act, 1963, as a separate and self-contained set of premises used or intended to be used for residence or office, show-room or shop or go-down (includes a garage), forming part of a building (and includes an apartment). When in the building plans approved by BMC, there are two flats, one 2 BHK and another 1 BHK, the same cannot be treated one flat of 3 BHK, even though you have purchased the same by one single agreement and shown as such on the plan attached with the agreement. The society is justified in demanding the maintenance charges for two flats. However the society cannot, as a matter of pressure tactics, withhold the share certificate on account of your failure to pay the maintenance charges as demanded by the society, as it has got enough powers under the bye-laws for the recovery of the same. In case the merger of both the flats has been regularized by BMC and the completion certificate and occupancy certificate and amended plan has been issued showing both these flats as one flat of 3 BHK, you may have a good case for the payment of maintenance charges for one flat.

Heading: WATER SEEPAGE PROBLEM HAS SEVERELY DAMAGED CEILING PLASTER
I am the member of the registered society paying maintenance regularly. For the last couple of years, I am facing the problem of water seepage from the floor above me, which has severely damaged plaster of the ceiling of my bed-room and kitchen. This problem is common in our society. I wrote a number of letters to the society but it has neither taken any effective action nor replied to my letters, except that the society engaged a plumber, who changed some rusted pipes here and there, but the problem still persists. What are the obligations of the society in the matter of internal/external leakage and what options I have to make society act in the matter?
V. D. Nadkarni
The internal leakage will have to be rectified by the respective members. The owner of the flat above your flat should get this leakage rectified properly, so as to avoid any damage by way of water seepage to the ceiling of your flat. However, the external leakage and the repairs have to be carried out by the society in an effective manner with a view to maintain the building of the society in good condition at all times. If the society is not taking any cognizance of your complaint, you may take up the matter with the Jt. Registrar of the society to issue suitable direction to the society.

Heading: I WAS MISLED BY THE FLAT SELLER ABOUT PENDING FSI COMPENSATION
I purchased a flat in resale in May 2010, when my purchaser told me that the society has filed a suit against the builder for misusing the FSI and the existing members received part monetary compensation in one case, but another case is still pending for final decision and the members are expecting some more compensation. The seller took my written consent against any claim on such payment on wrong information, that the members had filed the case and they will be eligible for the same. But after a few days in the AGM, I enquired about it and the members present in the meeting informed that the present occupants will get the compensation, as the case has been filed by the society on behalf of the members and not by the individual members. Though I gave the written consent against any claim for the compensation to the seller, I want to know if any monetary benefit arises, who will be the beneficiary of the same whether the existing member or the seller and if I claim the benefit, whether I will have to move the court.
Nilesh Pitliya
When the case has been filed by the society, any benefit accrued to the society by way of compensation etc. shall belong to all the members of the society. Your seller ceased to be a member of the society after the resale of the flat and on your enrolment as the member of the society in lieu of him. But since you have given the consent to the seller i.e. previous owner, he may claim the same, because of the contractual obligation between both of you. Your plea of mis-representation by the seller is not likely to hold good, as you were supposed to have due diligence about all such matters before entering into the agreement for purchase of the same. In any case if you want to claim the amount of compensation, you may have to approach the court.

Heading: BUILDER HAS NOT ARRANGED FOR OC AND CONVEYANCE TO THE SOCIETY
I am residing in the complex for the last 19 years wherein the society has been registered in the year 1993 by the name of Yashodeep Complex CHS Ltd., Thane (West). The builder handed over the property to the members before the registration of the society and assured the members that the conveyance and occupation certificate would be handed over to the members shortly. However he has neither arranged the occupation certificate nor has he executed the conveyance deed so far. We are not able to sell the flats to the purchaser, as they are not getting the housing loans from the financial institutions which are asking for the conveyance and occupation certificate. Can we file a case against the builder?
R.K.S. Mani
In terms of the provisions of Maharashtra Ownership Flats Act 1963, the builder is under legal obligation to hand over the building to the society on its registration with all the necessary documents, such as occupancy certificate etc. and he has to execute the conveyance deed and for non-compliance, the members may file a case against him as per the provisions of the said Act. Recently, the said Act has been modified so as to provide for the unilateral execution of the conveyance deed in favour of the society and the rules are being framed and your society can take advantage of this amendment and have the conveyance deed executed in its favour at the appropriate time. As regards the housing loans by the purchasers, occupancy certificate for the purchase of a flat in a resale demanded by the financial institutions is essential, but in hundreds of the societies, conveyance deeds have not yet been executed and loans are being provided by the financial institutions for the resale of the flats. Therefore, their demand of the conveyance deed may not be essential, provided the financial institutions are satisfied about the title of the property.

Heading: PLANNING TO CONVERT AN OPEN TERRACE INTO A SEPARATE ROOM
I have a residential flat in Dahisar with an open terrace. Can I convert the open terrace into a separate room and if yes, what is the procedure?
Rupesh Mengle
The covering of the open terrace will amount breach of FSI permitted by the local authority. Moreover no addition/alteration/repair etc. can be carried out without prior written permission of the society, if registered, as well as the local authority. You may, therefore, approach them for necessary sanction and then only you can convert the open terrace into a room. Any unauthorised construction is liable to be demolished by the Municipal Corporation.

Heading: WATER SEEPAGE PROBLEM HAS SEVERELY DAMAGED CEILING PLASTER
I am the member of the registered society paying maintenance regularly. For the last couple of years, I am facing the problem of water seepage from the floor above me, which has severely damaged plaster of the ceiling of my bed-room and kitchen. This problem is common in our society. I wrote a number of letters to the society but it has neither taken any effective action nor replied to my letters, except that the society engaged a plumber, who changed some rusted pipes here and there, but the problem still persists. What are the obligations of the society in the matter of internal/external leakage and what options I have to make society act in the matter?
V. D. Nadkarni
The internal leakage will have to be rectified by the respective members. The owner of the flat above your flat should get this leakage rectified properly, so as to avoid any damage by way of water seepage to the ceiling of your flat. However, the external leakage and the repairs have to be carried out by the society in an effective manner with a view to maintain the building of the society in good condition at all times. If the society is not taking any cognizance of your complaint, you may take up the matter with the Jt. Registrar of the society to issue suitable direction to the society.

Heading: I WAS MISLED BY THE FLAT SELLER ABOUT PENDING FSI COMPENSATION
I purchased a flat in resale in May 2010, when my purchaser told me that the society has filed a suit against the builder for misusing the FSI and the existing members received part monetary compensation in one case, but another case is still pending for final decision and the members are expecting some more compensation. The seller took my written consent against any claim on such payment on wrong information, that the members had filed the case and they will be eligible for the same. But after a few days in the AGM, I enquired about it and the members present in the meeting informed that the present occupants will get the compensation, as the case has been filed by the society on behalf of the members and not by the individual members. Though I gave the written consent against any claim for the compensation to the seller, I want to know if any monetary benefit arises, who will be the beneficiary of the same whether the existing member or the seller and if I claim the benefit, whether I will have to move the court.
Nilesh Pitliya
When the case has been filed by the society, any benefit accrued to the society by way of compensation etc. shall belong to all the members of the society. Your seller ceased to be a member of the society after the resale of the flat and on your enrolment as the member of the society in lieu of him. But since you have given the consent to the seller i.e. previous owner, he may claim the same, because of the contractual obligation between both of you. Your plea of mis-representation by the seller is not likely to hold good, as you were supposed to have due diligence about all such matters before entering into the agreement for purchase of the same. In any case if you want to claim the amount of compensation, you may have to approach the court.

Heading: BUILDER HAS NOT ARRANGED FOR OC AND CONVEYANCE TO THE SOCIETY
I am residing in the complex for the last 19 years wherein the society has been registered in the year 1993 by the name of Yashodeep Complex CHS Ltd., Thane (West). The builder handed over the property to the members before the registration of the society and assured the members that the conveyance and occupation certificate would be handed over to the members shortly. However he has neither arranged the occupation certificate nor has he executed the conveyance deed so far. We are not able to sell the flats to the purchaser, as they are not getting the housing loans from the financial institutions which are asking for the conveyance and occupation certificate. Can we file a case against the builder?
R.K.S. Mani
In terms of the provisions of Maharashtra Ownership Flats Act 1963, the builder is under legal obligation to hand over the building to the society on its registration with all the necessary documents, such as occupancy certificate etc. and he has to execute the conveyance deed and for non-compliance, the members may file a case against him as per the provisions of the said Act. Recently, the said Act has been modified so as to provide for the unilateral execution of the conveyance deed in favour of the society and the rules are being framed and your society can take advantage of this amendment and have the conveyance deed executed in its favour at the appropriate time. As regards the housing loans by the purchasers, occupancy certificate for the purchase of a flat in a resale demanded by the financial institutions is essential, but in hundreds of the societies, conveyance deeds have not yet been executed and loans are being provided by the financial institutions for the resale of the flats. Therefore, their demand of the conveyance deed may not be essential, provided the financial institutions are satisfied about the title of the property.

HEADING: TERRACE AC INSTALLATION AMENDMENT PASSED WITH JUST ONE VOTE
Some members occupying top floor flats, including Chairman, have installed six split AC units on roof top open common terrace of the building of the ex-defence personnel known as 'Jalvayu Vihar CHS Ltd.' at Powai, Mumbai, where water tank and lift room are located. On my objection, this item was included in the agenda for the AGM for the year 2010 chaired by the Chairman, who has also installed split AC on the terrace. He proposed an amendment to bye-law No.171 about the use of open terrace on the building stating that the permission was given more than 10 years ago and no damage has been caused to the terrace; hence the same may be permitted. The society has 368 flats, but when this amendment to bye-law No.171 to allow split AC on the open terrace was put to vote, it was responded by only one vote. Is this legal and if not, what is the remedy to restore the terrace to its original condition? What penalty could be levied on the members using open terrace for personal benefit like installation of split AC?
Sqn.Ldr. Sanjay Sinvhal (Retd.)
Any objection to the installation of split AC on the roof top open common terrace, in existence for more than ten years, may not be feasible at this stage, particularly, in the absence of any decision of AGM to the contrary, in spite of the fact that the proposed amendment to Bye-law No.171 has not been carried out. It may be added that any amendment to the existing bye-laws is legal only if the prescribed procedure for the same has been followed (Refer Model Bye-law No.167).

HEADING: CAN TENANCY BE BEQUEATHED BY WAY OF A WILL IN A REDEVELOPED CHAWL?
Ours is an old tenanted chawl building in Mumbai undergoing the process of redevelopment. Most of the residents are the original tenants of the chawl. However some have acquired the tenancy on the demise of their parents, who were the original tenants. Is such tenant eligible for the sole membership of the society, without the consent of other legal heirs of the deceased original tenant and whether such a member, after acquiring the ownership flat on redevelopment in lieu of earlier tenanted premises, which was not acquired from self-earnings, bequeath the same by way of a will?
Hemant Kelsikar
If the tenancy was acquired or inherited on the demise of the parents, without any objection or claim from the other legal heirs, the ownership flat after redevelopment, will be allotted by the developer to the person, with whom he has entered into the agreement and whose name appears in the list of members of the society submitted to the developer at the time of redevelopment and such a member may bequeath the ownership flat acquired on redevelopment.

HEADING: SRA ALLOTTMENT FLAT ENCROACHED BUT OCCUPANT STILL NOT EVICTED
I was officially allotted a flat through SRA Scheme at Andheri (East), which has been forcibly encroached by a person of the area, in spite of the fact that I have all the authentic documents in my name. Though the society has also been formed but it has not been able to do anything. I approached SRA Authorities at Bandra and after detailed investigation which took 3 years, the Encroachment Department of SRA issued an eviction notice to that person in January 2010. He appealed to Lok Ayukt and though he initially obtained a stay against the eviction, his appeal has finally been rejected and an order has been passed in my favour. However he requested SRA for a month's time and, subsequently, appealed to the High Power Committee (Legal Department of SRA) and the matter is still pending. Please advise.
C. D' Souza
It seems that though the flat was allotted to you under SRA Scheme, the possession was not given to you. Therefore, it is the responsibility of SRA authorities, to hand over the possession of the flat free from all such encroachment etc. In case of delay by SRA to hand over the possession, you may approach the Urban Development Department at Mantralaya for the reddressal of your grievance. In the alternative, you may move the court against SRA in the matter.

HEADING: I WANT TO GIFT A FLAT, WILL TRANSFER CHARGES BE LEVIED ON THIS?
I would like to gift the flat to my daughter in Gokuldham at Goregaon (East), whose present market value is around Rs.40 lakh. Please let me know the formalities and the procedure and what will be the approximate value of stamp duty and registration charges on the gift deed? As per the Maharashtra Stamp Duty Structure, the stamp duty payable works out to Rs.2,78,750 and should I have to pay as per this scale? In our society, the transfer charges are fixed at Rs.35,000 and whether these charges also have to be paid?
Lalitha Jayaraman
A gift deed has to be in writing and adequately stamped and registered as per the provisions of law. The stamp duty is payable at 2% of the market value of the flat, as per the ready reckoner available in the office sub-registrar, besides registration charges @ 1% of the said value, subject to a ceiling of Rs.30,000. The society transfer charges are payable at the rate fixed in the general body meeting, but these cannot exceed Rs.25,000 as per the limit prescribed by the State Government. Further in case of a transfer of share and interest in the property of the society to a member of the family, such charges are not payable, as per the provisions of Bye-Laws of the Society (Refer model Bye-law : 38).

HEADING: HOW DOES A SOCIETY FUND INITIAL EXPENSES FOR REDEVELOPMENT?
Our building is 45 years old in western suburb and our society is planning to go for the redevelopment. The society consists of 70 plus members and a resolution to that effect has already been passed in the special general body meeting. I would like to know from which fund of the society expenses towards legal charges, development charges, project management consultant fee, i.e. all such cost involved in redevelopment will be paid?
Ajay Palekar
The expenses for taking up the redevelopment such on advertisement, legal and other consultation charges may be met by the society from other than Reserve Fund or any other Special Fund created by society for some specific purpose. As regards cost of redevelopment, it is a matter of negotiations between the society and developer and, usually, this is borne by the developer.