By I C Naik
The first time I saw housing societies’ Model the Bye Laws 2013 was on 22nd February this year on the Commissioner’s web site
Model_ByeLaws_of_Housing_Cooperative_societies.pdf
This gave me a pleasant shock.
Thereafter I came to know that the Maharashtra State Commissioner and Registrar of Co-operatives Societies had issued an advisory on 22-02-2013 to all the Divisional and District Deputy Registrars of Cooperative Societies in Maharashtra. The advisory appears to have been issued as per Government’s communication dated 15-02-2013 referred to therein by the Commissioner Shri Madhukar Chaudhari (IAS).
I was pleasantly surprised at the commitment of this pioneering State to lead implementation of the Constitution (97th Amendment) Act 2011 across the Country.
But I felt terribly sorry to go through the half backed recipe like Model Bye Laws 2013 which were having blanks and had no forms attached.
I had been in constant contact with Mumbai District Cooperative Housing Federation office about printed copies of this Model, for which the federation has an exclusive copy rights.
This morning when I again contacted I was told that the Commissioner and Registrar of Cooperative Societies has made few changes in the Bye Laws posted on net and I should wait for a month as a few changes seem to be under discussions.
So I surfed and I was shocked to see a short Bye Law No 43 of just 80 words in place of 480 words and No 44 just not there.
The substituted Bye Law No 43 has 2 Clauses. Ked It’s very crisp recipe for flat owners who sub-let their flats and societies to become poorer by the much discussed topic of housing societies in Mumbai the NOC. The word NOC has been knocked out leaving for imagination of societies to find ways to make it up. Look at the crisp Bye Law No 43.
(1) Sub-letting etc. of Flats
43. (1) A member shall intimate to the society, of subletting his flat or giving on leave and license basis or care-taker basis or parting with its possession in any other manner.
However the member shall submit registered copy of leave and license agreement and copy of the intimation report to the police station
(2) No permission of the society is required to sub-let the flat / shops, however the intimation needs to be given to the society 8 days before such sub-letting.
THE POSTMORTEM
Now that the Bye Law No 43(1) i. ii. iii. iv(2)(a)i. ii. iii. (b)(c)(d)(e) as per first draft as also the one most housing societies are having in their registered Bye Laws is gone off the most likely mandatory Bye Laws (As Proviso to Section 14 of THE M. C. S. ACT 1960 so empowers the Commissioner and Registrar of Cooperative Societies) let’s have a recap of the history of NOC over last few years.
1. Model 1984 Bye Laws [No 45(2)(iii)c] allowed NOC up to “one time service charges”
2. Circular dated 13/3/1992 set an upper limit of “25% of the service charges.”
3. Section 79 order of 9/3/1995 relaxed NOC up to 100% of the maintenance charges levied per month.
4. Circular dated 13/8/2001 brought down NOC to 10% of Service Charges
5. Model 2001 linked NOC to Government circular in force at a relevant time.
6. Bombay High Court In Mont Blanc Co-Operative Housing … vs The State Of Maharashtra on 2 March, 2007 up held State’s power to give directions under Section 79A.
7. The Court ruled that exemption from the payment of non-occupancy charges will not extend to relations like son-in-law, brother-in-law (sister’s husband), sister-in-law (wife’s sister) and sister-in-law’s (wife’s sister) husband, removing these relations from the definition of the family.
8. Model 2009 Bye Laws also linked NOC to Government circular in force at a relevant time. Important rules of sub-letting a flat in housing societies as per the Bye Laws 2009 No. 43 summarized as under:
a. A member could sub-let his flat only with prior written permission that too if the managing committee is satisfied about the following circumstances:
i. If a member has to go out for a long duration for service. Business or due to prolonged illness; or
ii. Absence of facilities for education of the children or is unable to secure admission to the school; or
iii. Stays in the accommodation allotted to him by his employer; or
iv. Inability to occupy or continue to occupy the flat for any other genuine reasons;
b. No member shall be permitted by the Committee to sub-let, give on leave and license basis or care-taker basis his flat or any part thereof or part with its possession in any manner unless:
(i) he has made an application in the prescribed form;
(ii) he has furnished the application for nominal membership of the proposed sub-lettee, licensee, care-taker or possessor in the prescribed form;
(iii) his application contains the undertaking that –
(a) he shall, by joining the society as a party to the proceedings, initiate necessary legal proceedings against the sub-lettee, on his failure to get vacant possession of the flat.
(b) he shall pay the charges of the society every month during the period of sub-letting, licence etc.;
(c) Non-occupancy charges could not exceed the amount fixed as per the circular issued by the Department of Co-operation Government of Maharashtra and shall not be levied if the flat is sub-let to the “Family” of the member.
(d) The sub-letting at a time should not be for more than 11 months.
PROGNOSIS
1. An issue very hotly debated across the State the NOC is on the verge of getting such an unceremonious burial at the hands of a sole authority the Commissioner and Registrar of Cooperative Societies!!!
2. The cooperative society law seems to have become quite State Friendly under the directive principle viz “43B: The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative” as the Commissioner and Registrar of Cooperative Societies may deem fit and specify in the Bye Laws.
3. A member need not pay any extra amount and society can not extract any as member is free to sub-let his flat to any body.
POINT TO PONDER
A (investor) flat buyer hands over his flat to an unknown criminal informing the Secretary a week before and goes abroad for an indefinite period.
What does the Secretary do?
