Viswanathan Nair
Our society, having 10 shops, 16 1BHK, 42 2BHK and 10 3BHK, has done building painting work against which an advance amount of Rs.500/- per month (instead of fixing proportionate higher amounts for higher flat areas during advance collections of painting fund.) from all shops and flats collected towards ‘painting fund’, as per the resolution passed earlier.
Before collecting the full budgeted/expected exp., painting work started and completed, utilizing the funds collected and other funds available with the society and payments to the contractor is made.
Thereafter, in the AGM this matter was discussed/resolved that “Then painting fund charges were discussed and decided to allocate the cost of painting per flat, based on the area and to recover the balance payable as per the agreed schedule by all members. All members, irrespective of the size of the flat/shop, will pay Rs.500/- per month till March 2013 and the balance payable, if any, will be scheduled for another 24 months ending 31/3/2015”.
Subsequently, the society, based on the actual expense and area of flats and shops, has calculated the balance payable (area in sq.ft x cost per sq.ft.) by each member. Accordingly, society started deducting Rs.500/- p.m. from all members.
1BHK/shops members have fully repaid their balance by April 2013, whereas 10 shops should get a refund of Rs.172,100/- as on March 2013. As on date, society is still recovering Rs.500/-p.m. from 2BHK and 3BHK members without rescheduling repayment so as to complete the recovery by end 31/3/2015. If this present recovery schedule continues, it will take approx. 2 years for 2BHK and 4 years for 3BHK to fully recover the balance payable.
However, even after July 2013 there is no decision to this effect and installment of RS.500/- p.m. still continues, that means another 2 (for 2BHK) – 4 (for 3BHK) years will take to fully recover this arrears of painting exp.
I feel that as majority of the members are from 2BHK and 3 BHK (42+10=52) against minority of shops and 1BHK (10+16=26), is this recovery schedule leading to a scenario where majority of the members (having higher size flats) would pass a resolution against a minority which is a clear oppression on the minority by the majority, whereas actually recovery schedule (start and end dates) should have been equal for all member.
Sir, I want your advice as to whether the resolution is valid or not and whether member can approach Dy. Registrar of Societies for getting justice.
I C Naik
Only correct part is the painting costs sharing formula as resolved by the members in the general body meeting viz:- (area in sq.ft x cost per sq.ft.) since it is in accordance with what is stated in Bye Law No 13 (b) viz:- Major Repair Fund, as and when required and decided by the General Body at the rates fixed on area basis.
Two decisions vlz The advance at uniform rate and part B of the resolution of members is in breach of Bye Law No 13(b) such as such it can not be implemented. In implementing correct resolution Part A the managing committee has committed breach of the decision of the the general body meeting. This needs to be reversed.
Now the dispute is between certain members and the managing committee and is related to the business of the Society as per objects set out in Bye Law No 5. There is a dispute settlement mechanism laid down in Bye Law Nos 173-175 may be followed.
Member/Members shall submit their complaint application to any of the Office bearers of society, in writing, giving thereby the details of the complaint.
After receipt of such complaint application, the committee shall take decision thereof, in the coming Managing Committee meeting. Such decision shall be communicated to the concerned member, with in 15 days thereof.
If the Member/Members are not satisfied by the decision of the Committee, or does not receive any communication from the Committee , then he/they may make complaint to the Advisory Committee constituted by the General Body. If the concerned member is not even satisfied by the decision given by such Advisory Committee, then as per the nature of complaint the complainant may approach below mentioned authorized officer,
c. The authorized officer for this dispute is designated to be Cooperative Court as it fits in to following description of the Complaint Repairs, including major repairs, internal repairs, leakages
Before approaching the Court as aforesaid one procedure is to be followed as laid down in Section 148(3) i.e. “No prosecution under this Act shall be lodged, except with the previous sanction of the Registrar.”
Of late there are precedents that cooperative housing society is a service provider and for deficiency in service to its members and if a case is presented properly relatively quicker and less expensive dispute redressal is feasible. Before taking this route also the Registrar’s clearance as afore said is required.
Normally the Registrar refers the dispute and check with the society management if an out of the court settlement was feasible. Chances are the managing committee may reconsider the matter once Registrar steps in.