House Grouse: All your housing queries answered here

Advocate Vinod Sampat, President, Stamp Duty and Registration Payers* Association, Mumbai, answers all questions. Email him at: housegrouse@mid-day.com

Question
My Society underwent redevelopment and repossession was given by developer after 48 months instead of 30 months, that too, without O.C. Developer has flouted all major clauses of theu00a0 Agreement including payment to members, despite, whichu00a0 Managing Committee on it*s own has given him a clean chit with no pending liabilities(without consent from General Body). My query is: Whether an individual member can take criminal proceedings against M.C. for giving false information leading to financial loss and mental hardships. (O.C./payment not received even after 24 months of repossession.)
-- V Kasbekar

Answer
It is indeed sad that your managing committee is acting in collusion with the developer. This is in spite of the fact that members of the society are well aware of the fact that the developer has failed to comply with his statutory obligations. I would advise you to approach the consumer forum on the grounds of deficiency of service against the developer as well as the managing committee members. You can also initiate criminal action for cheating, criminal breach of trust against the society as well as the developer. With a view to build more pressure you should also lodge a complaint u/s. 83 with the registrar of co-operative societies against the managing committee members.
u00a0
Question
I have been the owner in a co-operative hsg society in Mumbai for the last five years holding five shares of the said society. I lost all my documents including the share certificate and knew about it when I wanted to sell the flat. I approached the society who told me to put an advertisement in an English and Marathi news paper after an fir was filed at the local police station. After having done all that was required and receiving duplicate share certificate after giving an indemnity bond to society when the buyers met with the committee members for issue of NOC they told the buyers that if in future any one came with my original or some one filed a case stating that original documents were hypothecated to them then the society does not have funds
to fight a case so asked them to deposit two lakhs which they gave as a cheque without even asking me. I have not received any receipt from the society for this amount who said I can get it back only after two years. Some days they say money belongs to buyer, how can they take money from buyer who is not a member of the society? Please advise.
-- Radhikau00a0u00a0u00a0

Answer
If a member loses his agreement or a share certificate there is no provision in law which states that a first information report (FIR) or a public notice has to be published in local newspapers. However societies insist for such things as a matter of abundant caution. It is not correct on the part of the society to demand deposit of two lakhs. I would advise you and the buyer to issue a legal notice to the society. The buyer should also call upon the society to refund the said amount with interest. Even if their is no receipt issued it will not make much difference if you have witnesses or documentary evidence that money has been paid e.g. cheque payment for the said sum. You and the purchaser should also issue notice to individual managing committee members stating that their act is an act of deficiency of service for which action can be initiated against them in their personal capacity also for deficiency of service.u00a0

Question
In our society one flat is in joint name. Recently the 2nd joint holder made agreement with the third person transferring his right on the said flat and given to society the documents to transfer his right. But they have not taken the consent of 1st joint holder. Can the 2nd joint holder transfer his right of the flat to the third person without the knowledge of the 1st joint holder of the flat? What society will have to do?u00a0
-- B Y Karkera, Jogeshwari, Mumbai

Answer
It is not correct on the part of the second holder to transfer his right in the property to a third party without taking the consent of the first owner. In the given case the society may write a letter to all the parties stating that as per society*s record flat stands in first owner*s name. Until and unless their is consent of the first owner society cannot act on the said documents. The society is also advised to reject the transfer documents immediately.

Question
I have very recently purchased a flat at Cuffe Parade at a premium, when bought I was informed that parking will not be available, to which I had agreed as there is a lot of space to park on the boundaries of the bldg, unfortunately my premium SUV got stolen right from the gates of the bldg compound. Since then I have requested the society to please allow me to park my other vehicle inside the compound which co incidentally has space to accommodate up to 10 more cars at least in the nights, keys can be with the security and charges also can be paid for the same. have also requested them to create parking space, which can be easily created for likewise members who are parking outside and can be charged and in turn the society benefits who is always short on funds for beefing up security and other matters. lastly some members of the society have 1 car and have parking for 3. please advise as we are having sleepless nights regarding our vehicles parked outside.
-- Mahesh Ahuja

Answer
Allotment of parking space has to be done by the society on the basis of first come first serve. Only after one parking space is made available to all the members having vehicle, second parking space can be allotted subject to availability of space by the society to the members who are on waiting list. Bye laws of the society are clear on the same. Even if you had been informed by the society that parking space will not be available to you that does not mean that the society can discriminate between old members and new members. I will advise you to politely draw the attention of the society to the same. You may state that the act of the society is an act of oppression on the minority by the majority. If the bonafide submissions of yours are not being accepted by the society you may approach the consumer forum for deficiency of service. You may make the managing committee members also a party to the proceedings.u00a0 Alternatively you can approach the co-operative court to redress your grievances.

Question
I am the Chairman of a small society in Goregaon with 11 flats and 1 flat with 2 floors. i.e. 12 members. The size of all the flats is not the same. Our society was formed in Dec 09. Prior to that the Building was maintained by the Builder himself and we were paying Rs. 4.00 per square feet per month depending on the area of the flat. In the first General body meeting it was decided that we shall pay the maintenance charges per square feet per month, which was agreed and recorded. 10 members are already paying. Now 2 members have refused to accept the same stating that all shall pay a fixed charges irrespective of the area of the flat. For your information, we have 3 types of flat (1) 1200 Sq. Ft (2) 1300 Sq. ft and (3) 2600 sq.ft.
-- S Narayan

Answer
The basis as to how members should contribute is clearly laid down in bye law no. 69 of the model bye laws which are in force since 2001. Certain expenses like lift charges have to contributed equally by the members irrespective of the fact if they use the said services or not. Expenses like major repairs have to be paid per sq. feet basis. Some amounts like property tax, have to be paid as demanded by the authority. Societies have to recover the charges as per the bye laws adopted by the society. If the bye laws are silent than society can recover the amount on the basis of the resolutions passed by the society at its general body meetings.

Question
My building society members are on the verge of finalizing the contract with a cellular company for installation of a mobile micro tower. Out of the 62 flat owners except four all other owners have given their approval for the tower. My question to you is can the society go-ahead despite not having the clear mandate?
-- Joseph Godinho

Answer
Decisions are taken by a co-operative society on the basis of resolutions passed by the society at its meetings. By and large decisions having a major impact are taken at the general body meetings. If your society has passed resolution by majority at its general body meeting to install a mobile tower, the same would be a binding resolution on the members of your society. It is difficult to expect 100% co-operation of members on all the resolutions being passed by the society. Courts have time and again upheld the decisions taken by the society at its general body meetings. If an individual member feels that the decision taken by the society is harsh than he has a right to ventilate his grievances by approaching the court and challenging the resolution passed by the society. Unless a resolution is stayed and/or set aside by a court of competent jurisdiction, I have no hesitation in stating that co-operative society can continue acting on the said resolution.