Sacchin Sharma

Mumbai

Dear Sir

My name is Sacchin Sharma and I reside in Kalyan-West.  I have given numerous complaints to my society for last 5 to 7 years regarding the water leakage from outside the walls of my building. But the Society has turned a deaf ear and nothing was done year after year.

Tired, I got it repaired at my own cost two years back as my wife was pregnant and I did not want to take any chance.

There is another problem too. Two flats above mine are empty and the owners do not keep it properly or maintain.

What action I can initiate against them?

Can I lodge an FIR of mental torture with the local police station?

I C Naik

Dipto , Banglore

Dear Sir

We would like to know the genuineness of the State Excise Department Welfare and Housing Co-operative Society.

Is this a valid co-operative society? I could not find any information about this society online. But there are some residential plots being sold under this name at Devanahalli, Bangalore.

Could you please let me know any information about this society?

I C Naik

The best way of collecting authentic information is to raise an RTI enquiry with the Registrar of Karnataka or PIO Office of the District Cooperative Societies Banglore.

That would be the right course.

Ritesh

Dear Sir,
I am a member of the management committee in our society.

Can a society pass a resolution to put a blanket ban on the foreign national’s entry to the society?

I C Naik

No. It is against the very 1st Principle of Cooperation.

“Co-operatives are voluntary organisations, open to all persons who use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination.”

Cooperative Housing Society is bound to admit all those who meet the eligibility criteria laid down in the State’s Cooperative Act. For example Section 22 of Maharashtra Cooperative Societies Act permits an individual, who is competent to contract under the Indian Contract Act, 1872 to become a member of a Society. However, as per Section 23(1) for a “sufficient cause’ an individual can be refused membership.

Non Compliance of any regulation under any applicable Indian law by an individual is a sufficient cause for such refusal.

If any foreigners are likely to become member for any reason, as a matter of abundant caution the society should lay down additional (In addition to those in the bye laws) conditions as to eligibility criteria which should definitely include Security Clearances and Clearance for acquisition of Property as laid down by the Government/Statutory Authorities.

Exchange Control Dept of RBI has issued a Notification No-FEMA 21 /2000-RB dated 3rd May 2000 laying down conditions for ac acquisition of immovable property.

Bhavin,  Ahmedabad

Respected Sir,

I am an owner of flat in Ahmedabad and our society is having a total 6 blocks.

Builder also made a temple in our common plot which was covered with small wall with separate entry. Later he stopped maintaining the flats and finally our electric connection was cut about 3 years ago.

In tide over the situation individual block members started collecting money and maintaining their block.

Builder is taking transfer fee officially Rs 25000 in cash and without receipt and Rs 75000 for each resale of flats but not giving any money to block members. He is not even sharing books of account.

Frustrated, a few residents constituted a core committee to fight against builder and floated Owners’ Association under Act of year 1860 in January 2012. The committee has 2 persons from each block.

Taking opinion of majority members Owners Association has broken a wall surrounding temple in common plot area to use it as a parking space.

This new association gave notice in newspaper that all future resale & transfer would be effected through Association only.

But NOC of new association is not accepted by the bank and it is not giving any loan. The bank is asking NOC from builder association.

Association has filed case for securing books of accounts from the builder. It came to light that the builder had sold common plot area constructed with temple to one trust, so the Association has also filed a case against that.

Now this new association  made a resolution in general meeting in April 2012 that occupied members of flat / closed flat owner would pay monthly maintenance charges of Rs. 500.00 and tenant members ( Where original member is renting out the flat as in my case) should pay Rs. 1000.00 maintenance charges.

If anybody fails to do this, service such as water supply, Lift, cleaning will be stopped.

This I came to know when I rented my flat in June 2012. I opposed the provision and asked to them to give me copy of bye laws.  Even after 3 months, they have not given me any copy.

I came to know that they have asked my block committee member to cut water line of my flat and asked my tenant not to use of lift. They also asked cleaning agency not to lend any service to my flat.

Have they any right to ask 100% higher payment then occupied members? Kindly guide me that what should I do and which kind of action I should take against them as well as against builder for selling common plot area to trust.

I C Naik

You should write to the Deputy Registrar of Societies narrating the facts relating to maintenance charges for rented flat and stopping utility services. Stopping utility services is in violation of a Supreme Court order under which housing societies could not stop essential services for any reason what so ever.

You have to be prepared to fight it out in Cooperative Court. But on both scores the Committee’s actions are illegal and cannot be sustained for long time.

Bharat

We are a Cooperative Group Housing Society. The construction started in 1988 and was to be completed in 2 years. Due to certain reasons including lack of funds and due to Builder also, construction of project extended up to 1999 and partly completed project was handed over to the Society by builder. Total 490 flats were to be built out of which when 376 were almost complete the Administrator decided to allot flats to the Members who were not defaulters.

The elected Management Committee of the Society was superseded by Delhi Govt in 1993 and it appointed its own officers as Administrators of the Society and the Administrators remained in office till July 2002.

Much of construction work took place in the regime of the Administrators. And obviously there were large scale bungling such as over-billing, payment for the works not done, double payments of same items and so on.

The Builder had a clout in Govt, he got the Administrator changed. Another Administrator was appointed by the Govt. The Arbitrator found many irregularities could not handle and resigned. Another Arbitrator was appointed and he gave the award of about Rs.8 crores in favour of the Builder in 2002.

Most of the matters were not in the knowledge of members of the Society. The Administrator filed a reference to High Court to challenge the Arbitrator findings to cover up the misdeeds knowing fully well that he had made a solid ground for the Builder to win the awarded amount.

Some members filed a suit in High Court requesting for handing over the papers on which Award was given. They also said that there is wide scale corruption and that was the reason that the first Arbitrator resigned. Despite court order the entire set of papers was not handed over.

These members filed a case based on papers that were received. The court did not hear their case due to lack of locus standi. The case filed by the Administrator was lost in May 2012 and decree awarded. The present Administrator even did not tell that the decree of about Rs.20 crores has been awarded.

Now as per High Court order elections of Management Committee(MC)  were held and the MC has been formed.

Now my Questions are:-

1. Can MC file case fresh or rule of estoppel will apply i.e. can we file appeal against the order of High Court on fresh facts that have come to our knowledge being in-charge of documents that have come in our possession now. The Administrators did not act honestly while appearing before Arbitration or in Court.

2. Can we file fresh case challenging the Arbitration award which we can prove has been based on fraud and connivance of Administrators (who are senior govt officers), Engineers of the Builder and Society who are private persons and responsible for fudging the papers.

3. Will we have possibility of delay being condoned?

I C Naik

This is an extremely serious issue to be handled through any portal. My suggestion is to consult a Senior  Counsel  practicing in the SC.

Nitin Sav

Hello sir,

My name is Nitin Sav. I live in registered society. I have kept my shoe rack outside my flat but the society members are asking me not to keep the shoe rack outside. Are so legally correct to say so?

I C Naik

You have encroached upon common area which belongs to the Society. It could be valid only if the General Body passes a resolution permitting members to keep the shoe rack outside the flat.  Presently you are committing breach of Bye Law 50 (a) Model 2009 approved for CHS in Maharashtra.

Dr Sandeep P Sutar

Respected sir

I am a practicing graduate doctor.  Day by day medical expenses in private or corporate hospital are going beyond limits for common people.

I have worked in Shushrusha Citizens Co-op Hospital, Dadar 16 years back.  But I don’t know the requirements to register a co-op hospital. Please guide me.

I C Naik

To begin with what you have to do is to gather some people at least ten from independent families who are willing to join you in the formation of a health care cooperative. These people are called promoters and you are the chief promoter.

Second critical thing is preparing a health care project report which you want to fructify through this Health Care Co-operative proposed to be set up in Nasik District.

The Project should be viable for at least ten years as evidenced in its projected fund flow statement. You may need to conduct a survey of sources of funds and its use in health care and firm up numbers to be stated in Fund Flow Statement of Ten Years. The Project Reports needs to be approved by the people you have in mind joining you as promoters.

Having done this satisfactorily, the registration procedure is not very complicated. The main work after this is drafting Bye Laws for its day to day activities providing for all aspects of management as provided in the M C S Rules 961. A few matters for example are as under.

(a)  name of the society and address of the society and its branches;

(b)  area of operation;

(c)  objects of the society;

(d)  manner in which and the limit up to which the funds of the society may be raised.

(e)  terms and qualifications for admission to membership;

(f)   privileges, rights, duties and liabilities of members including nominal, associate and sympathizer members;

Objectives in the Bye Laws of the hospital could be as under.

To provide for the members and their families health care services at concessional charges

To give the citizens medical help at a reasonable charge

To render medical aid to the needy and poor free of charge or at subsidized charges

To enlighten the citizen about the care of his health

Pourush Garg

I have paid maintenance charges annually to cooperative management in the start of the year.  Assistant Registrar disbanded the existing management mid-way.

A new management comes up to look after the day to day activity. Now new management is also asking for maintenance charges. This way I have to pay maintenance charges twice for the same period.

Is there any provision or way out to avoid this?

Your help and guidance is highly appreciated in this regard.

I C Naik

If the maintenance charges have been paid already irrespective of the management people, there is no need to pay once again.

Send a letter providing the details of payments made vis a vis the demands. If the rates are revised upward for the same period there can be some extra payment which will be payable in addition to the amounts paid.

Shri I C Naik is on a vacation for a couple of days. Interestingly, we notice other readers such as Mr Paresh filling up the gap so well. Below is his take on a cooperative query.

Prasad

I have installed the cooling unit of the split AC on the exterior wall of my flat outside the grills. Our society has raised a notice against me for such installation and they are asking me to remove the cooling unit and install it on the grill outside my window. In case if no action is taken then society has threatened to slap penalty on me.

This matter was later discussed in AGM meeting & with majority they agreed that no one should utilize external wall outside the grills for any personal use. In AGM it is also decided that society can apply penalty of Rs 1000 in case of no action taken by member.

Is the AC connection made by me on the exterior wall not valid from legal point of view?

Also is society legally allowed to slap penalty to any member of society in such case?

Paresh

The society can levy charges IF AND ONLY IF a resolution to this effect has been passed in the General Body meeting. Since this was done, MC is within its right to exercise that option. Anything that alters the facade of the building is generally not approved.

IC Naik who was on vacation replies as following

I C Naik:

Use of exterior wall is prohibited by BMC. AGM also not empowered to permit such use. Split AC’s Cooling units can be installed in the Window grills but with the condition that it does not protrude outside the buildings external wall tarnishing the ambience of the Building.

As regards levying penalty the bye law No 165/166 (Model 1984/2009) lays down the procedure. For breach of any bye law general body meeting should prescribe the penalty beforehand. When a breach is noticed the Secretary should take it up in the Managing Committee seeking direction to send notice to member for taking corrective actions. If defaulting member persists the Secretary has to bring it in to Committee Meeting to send notice to member proposing penalty for approval of the general body meeting after giving an opportunity to the delinquent member to represent his case in the general body meeting.

As per bye law 166 (2009 Model) maximum penalty is Rs 1000.

Alteration of any type in the flat require prior permission as per Bye Law 47 (Model 2009) which includes installation of AC using any other space than originally provided.

It is important that rate of penalty for a specified action leading to breach of any bye law must be prescribed by general body meeting beforehand. Since exterior wall form part of the approved building plan doing any alteration is not covered by alteration in the flat and as such it is prohibited under BMC Rules. The member has to restore the position to its original and no amount of penalty can allow the member to continue with it.

Gundeep S Sodhi

We are an NGO named HOPE & HOPE registered in Punjab. In our search for making women empowered we came through cooperative societies and self help groups.

We have gathered that under cooperative department there are schemes geared at women empowerment. Thus we want to register a cooperative society in Punjab, kindly let us know the procedures.

I C Naik

Minimum 10 women of 18+ needs to sign an application to the Registrar of Cooperative Societies.

The Registrar must be satisfied –

(a) that the application complies with the provisions of the act and the rules,

(b) that the objects of the proposed society are in accordance with section 4.

(c) that the proposed bye-laws are not contrary to the provisions of this Act and the rules; and

(d) that the proposed society has reasonable chances of success, the Registrar may register the society, and its bye-laws.