Answers queries from readers on property matters and co-operative housing society issues

Only society members can contest elections

Answers queries from readers on property matters and society issues

I have a query whether a member of society owning power of attorney from his mother or father is eligible for a post of secretary, treasurer or president and whether he has got a voting right and if so, under which clause he is admitted or not? —Suresh V Shah I think you mean that the flat is owned by the father or mother and being member, whether he or she can give a power of attorney to a person to attend the society meetings to vote and to contest elections. If so, a power of attorney holder from a member of the society has got no such right. It is only the member of the society, who can attend the general body meetings and contest elections, as per the provisions of the bye-laws. We want to have an insurance policy for 15 year old building of our society located at Mulund. After survey by the insurance company, they asked us copy of the commencement certificate, sanctioned plan, as well as the occupancy certificate. On an enquiry from the secretary, we have found that the society has got the commencement certificate but the other documents i.e. sanctioned plan and occupancy certificate are not available in the records of the society. Our follow-up with the builders for more than a month has gone in vain. Please highlight from where we can obtain these documents for the insurance of our building. Do you think a RTI application will help? —Amit Lapasia Normally these documents should have been handed over by the builders to the society on its registration. In the circumstances, the society may contact the concerned department in Municipal Corporation of Greater Mumbai for the attested copies of these documents. In case of non-cooperation from the concerned officials, the society may take recourse to RTI application. Please let me know whether any VAT amount will be chargeable on the flat purchased on 24.11.2009 as we all know that the purchase of the flats on and after April 2010 will attract VAT @ 1% on the market value/sale value. The question is whether this levy shall be applicable for earlier purchase also? —Suman K Mishra VAT is payable for the purchase of the flats between the year 2006 and 2010 @ 5%. The matter is before the Supreme Court, which has passed an interim order that the VAT in respect of flats sold between 2006 and 2010 if paid by 31.10.2012, delayed interest, as well as penalty, need not be paid. The calculation of the amount payable is a complicated one and no one is clear about the actual amount payable in spite of clarification issued by Sales Tax Department. However the position would be clear after the judgment of the Supreme Court whether this discrimination of charging VAT @ 5% for the purchase made between 2006 and 2010 and at 1% from April 2010 will be sustainable in law. During the water shortage, managing committee found leakage in my bathroom flush which might have been caused due to dry push of flush handle not noticed. I was one of the committee members, when the leakage was noticed in September 2011. The matter was not discussed in any of the subsequent managing committee meetings. In January 2012, the new managing committee came into being with all the old members except me. It imposed a penalty of Rs.5000 on me for this leakage. My request to reduce the penalty was rejected. I want to know whether the managing committee is empowered to impose such heavy penalty without the approval of the general body or guidelines by the general body? —S. Mandloi When such things happen without the knowledge of the occupants of the flat, it is advisable that such issues should be tackled in a practical and reasonable manner keeping in view the totality of the circumstances. Any action should have been taken by the society within a reasonable time after inspection and the delayed action in such matters may give rise to the feeling of bias, which may be avoided to maintain the harmonious relations amongst the members. Nevertheless any penalty for any such lapse, whether intentional or unintentional, cannot be imposed by the managing committee without having the guidance and the quantum of the penalty to be imposed in such cases decided in the general body meeting of the society. Our society is naturally divided into two parts by a road. The property cards are also different. It is Collector’s land, which had a no sub-division clause in the initial agreement. We had a re-conveyance in favour of the society and thus the society is the owner of the land. Recently members of one part have approached the registrar for a sub-division of the society, which has been objected by the members of the other part. I would like to know whether in view of the clause in the original agreement, is it possible to go for sub-division and whether the members can request for special general body meeting to discuss this sub-division issue and if yes, what is procedure to be followed by the managing committee? —Akshay The query seems to be a little ambiguous. At one place it is stated that the land is sub-divided by a road and there are two different property cards and on the other, that, being Collector’s land, there is a clause in the agreement against sub-division and since conveyance has been executed in favour of the society, it has become the owner of the land. If in the original agreement there is a clause against sub-division, it is not clear how it has been sub-divided by a road and there are two property cards. In any case since the land from the collector is on lease-hold basis, sub-division is not permissible without the permission of the collector. Secondly, though the conveyance has been executed in favour of the society it would pertain to building and the ownership of the land shall vest with the state government as the lesser and the society will have only right, title and interest therein as the lessee as per the terms and conditions of the lease agreement executed through the Collector. Special general body meeting has to be convened within one month of the date of the receipt of request in writing signed by one-fifth of the members of the society or from the registering authority or from the housing federation to which the society is affiliated as per the provisions of the bye-laws. Such a request shall be placed by the secretary before the managing committee within 7 days of its receipt for fixing the date, time and place for a special general body meeting for discussing the issues raised by the one who has requisitioned. We are the commercial owners of a CHS at Malad (West). The builder had provided two toilets in the building and as per the sanctioned plan, one toilet was meant for ladies and other for gents. From the beginning, the committee had kept the gents toilet key with them and a few days ago they demolished that toilet without any concern for us. Please suggest what steps can be taken and who can help us? —Chaitanya S Nalawade The society cannot demolish the toilet, causing inconvenience to its members, may be the owners of the commercial premises, when the same has been sanctioned by BMC as per the plan of the building. The matter may be taken up with deputy registrar of the societies and/ or the BMC, if necessary. After the demolition, the police may not be of any help. However, the deputy registrar has the power to enquire into the matter and to fix the responsibility and to take appropriate action in the matter. We have recently purchased a flat at Kamothe for Rs.34,00,000 and the bank sanctioned a loan of Rs.24,00,000. I have already paid balance Rs.10,00,000 to the seller and the agreement has been registered in my name, but because of various reasons such as non-issue of transfer booklet by CIDCO due to March closing, the transfer form signed by the attorney, the new officer has taken over and that some papers are with the builders of the society and so on, the mortgage NOC is not being made available to us by CIDCO. I would like to know whether the seller can cancel deal because of this delay and if so, what would happen to the stamp duty and registration expenses of Rs.2,15,000 already spent and when we have completed all the requirements whether the seller may insist for interest because of the delay in not completing the transaction in 45 days. —Priya Pednekar It is a case of resale of a flat in a building under 12.5% GES on lease-hold basis from CIDCO with restrictive terms and conditions against transfer of the plot or the demised premises or any portion thereof. CIDCO mortgage NOC will be required by the financial institutions or banks to advance loans. Without examining the agreement of sale entered into by you with the seller, it is not possible to comment whether, because of delay in the release of the loan by ICICI bank due to non-availability of mortgage NOC, the seller can terminate the deal or ask for delayed interest. If all the formalities for the transfer, as per the CIDCO rules, have been complied with by you and the seller, CIDCO cannot withhold or unnecessarily delay the mortgage NOC on flimsy grounds and in such a situation, appropriate action may be initiated against CIDCO in a court of law for the loss that may be incurred by you. Further the bank, keeping in view the totality of the circumstances, may use its discretion (though not legally binding) and consider to release the loan without the submission of mortgage NOC at this stage, with some other safeguards such as a guarantor or some other moveable or immoveable as a collateral security as a stop-gap arrangement as may be deemed necessary by it, as CIDCO is concerned merely with its transfer charges. In my opinion, it may not be possible for CIDCO to cancel the lease because of mortgage in the absence of its NOC in these circumstances. After the registration of our society, having less than 100 members, in December 2010 a resolution was passed disallowing the members to keep their shoe racks, etc. in the respective floor lobby and in violation of which, a penalty of Rs.1000 for every instance was to be paid. Most of the members followed this decision, but only one member does not follow the rule of the society, in spite of notice issued to him. He is not bothered about the penalty and he has also defaulted in the monthly maintenance charges since last 7-8 months. Since all persuasion failed, the managing committee started charging penalty for shoe rack from April 2012 in the monthly bills and the interest is being shown therein. Please guide how to tackle this member, who is adamant in refusing to remove the shoe rack. —RG Iyer A member of the society is bound to abide by the bye-laws and the decisions taken by the society. The floor lobby is the common space and the ownership of which vests in the society and no member can make any encroachment etc. in such common space and society is within its rights to have it removed. It is not clear from your query whether the penalty has been decided by the managing committee or the general body meeting. The penalty for the violation may be imposed after a resolution in the general body meeting. In case of violation of the payment of the charges due to the society, a society may even expel such member from the membership of the society as per model bye-law No.51. The society may also approach the deputy registrar for the recovery proceedings against the member as per the provisions of Section 101 of the Maharashtra Co-operative Societies Act. I wanted to ask whether two blood relations, father and daughter can be in the managing committee as chairman and treasurer. Earlier managing committee had committed a mistake that any two can sign on behalf of the society. In fact it should be mandatory for the secretary signing along with the chairman or treasurer that is the law which I presume, but the father and daughter are taking advantage as per their wishes. —Anil Shah If the father and the daughter or for that matter any two blood relations are the members of the society in their own right, they may be elected as the office bearers as per the provisions of the bye-laws. In terms of model bye law No.114, the bank account has to be opened and operated with the signature of the society jointly either with the chairman or the treasurer. Therefore, the account cannot be operated by the chairman and the treasurer i.e. father and daughter in this case.