Shrinivas Mulki
I would like to put up a case to you for a fair analysis of my understanding which is herewith described below. Thanking in anticipation for your time and efforts for the same.
My residential towers comprises of the following clusters (group of buildings)
1.Fairxxxx (comprising of three wings A,B,C) – society is registered as Fairxxxx Coop Housing Society
2.Westxxxx (comprising of three wings A,B,C) – society is registered as Westxxxx Coop Housing Society
3.Clarexxxx (comprising of three wings A,B,C) – under construction
The complex enjoys the following amenities:
1.Stilt Parking (segregated between the three buildings)
2.Podium gardens
3.Sewage treatment Plant
4.Cricket Ground
5.Tennis/ Badminton courts
6.Clubhouse
7.Driveways
8.Community hall
The case which i am trying to bring up is regarding Fairxxxx for maintenance charges.
Fairxxxx comprises of the following wings
FairA – 83 flat of 3 BHK
FairB – 110 flat of 2 BHK
FairC – 83 flat of 3 BHK
Total number of parking alloted to Fairxxxx is 349 and following is the parking allotment breakup
FairA – 114 parking for 83 flats
FairB – 121 parking for 110 flats
FairC – 114 parking for 83 flats
So this society has 166 flats of 3 BHK and 110 flats of 2BHK which shows that the 3 BHK flats are in absolute majority.
Following additional facility is enjoyed by the two wings of 3 BHK i.e. FairA and FairC
- Access Control Based Private Lifts – 4 Nos. (FairB has conventional lifts – 3 nos.)
- Higher number of lights in each of the buildings
- Bigger lobby areas in each floors than FairB
- Bigger Refuge Areas
- More parking Space allotment for FairA and C than FairB
The basis of maintenance charges under dispute is the following:
1.Electricity Charges of the building – equally divided among 276 flats inspite that the power consumption of the three buildings is different. Why FairB should pay for 4 Nos. of Private lits in FairA and C. Also the lighting load of FairA and C is higher than FairB. There are separate meters wing wise available. So it will be fair to assign the wing with its respective electricity bill.
2.Service Charges – equally divided among 276 flats, while the number of resources deputed to each of the buildings for housekeeping and security is the same. Why FairB wing should pay more for the same number of resources. Since number of flats in FairB is 110 so FairB will pay more since it is flat wise for the same number of resources deployed for upkeep of the respective wing.
3.There is no benefit passed on to FairB residents for the additional parking allotments to FairA and C.
The Managing Committee uses by-laws to convenience. By-laws not applicable for parking whereas when it is coming to maintenance charge distribution it is applied. They want to enjoy luxury while paying less.
Lets take up a scenario to understand the discrimination of per flat basis in our complex:
There are few residents in FairB who have purchased two adjacent 2BHKS and converted to a single flat having two agreements. The carpet area of the combined flat is 1500 sq ft. There are few residents in FairB who have purchased a single flat of 4 BHK of area 1591 sq.ft. Due to flat wise distribution of charges the 4BHK flat will pay 5800 as maintenance charges while jodi flat will pay 9800 as maintenance. Why such a discrimination as both the flat owners are enjoying the same amount of services. Is it Logical approach of By-Laws.
Also the per flat basis distribution is giving upper hand to the high income earners i.e. the 3 BHK flat owners to scale up the luxury requirements because they are in absolute majority. Since due to per flat basis they want to enjoy many numbers of security and housekeeping personnel. They want the club house to be operated for longer hours scaling up the operational cost. They want higher gym attendants, pools attendants, kid attendants etc. adding to huge amount of cost for club maintenance. They do not want to compromise on luxury. Also they want superior quality of maintenance of the cricket ground, tennis courts etc. The 2 BHKs in minority have to bear the heat of the luxury requirements.
Since the distribution is on per flat basis the 3BHK are spending more on service charges while on repairs and maintenance including sinking fund the outflow value it is kept at the lowest.
Request your advise that how do FairB get JUSTICE?
I C Naik
Fair B Towers having 110 2BHK Members are paying more for less services available/accessed the reason is 166 3 BHK members draw upon higher share in common resources per pay same as 2BHK MEMBERS. On the face of it unfair apportionment of common expenses is taking place. You say that the bye laws are adhered to by the managing committee to work out rates of maintenance which are unfair.
It means the bye laws have to be amended and 2BHK being in minority amendment will not go through for sure. So over a period of time 2BHK prices will fall and 3BHK will rise, so double aged loss to 2BHK members. 2BHK members should raise is as an internal dispute on system of working out member’s share in common expenses and it is business dispute liable to be examined by a neutral party which could be a mutually agreed arbitrator or Team of three Arbitrators or maybe it is referred to Cooperative Court through the Registrar as required under Section 148(3) namely “( 3) No prosecution under this Act shall be lodged, except with the previous sanction of the Registrar.
Another exploratory suggestion is Fair is sub divided in to three separate societies. Under Section 17 a voluntary sub-division proposal will not be supported by 3BHK members so 2 BHK has to make out a case before the Registering Authority that the sub-division of Fair in Fair A Fair B and Fair C is in the interest of members of Fair Society for it will secure a proper management of all sub-divided societies. For this purpose Section 18 makes a provision to that effect as reproduced below. Some PR work will be necessary within District Cooperative Federation also.
“18(1) Where the Registrar is satisfied that it is essential in the public interest or in the interest of members of such societies ;or in the interest of the co-operative movement, or for the purpose of securing the proper management of any society ,that two or more societies should amalgamate or any society should be divided to form two or more societies or should be reorganized then notwithstanding anything contained in the last preceding section but subject to the provisions of this section, the Registrar may, after consulting such federal society as may be notified by the State Government by order notified in the Official Gazette, provide for the amalgamation, division or reorganisation, of those societies into a single society, or into societies with such constitution, property rights, interests and authorities, and such liabilities, duties and obligations, as may be specified in the order. “
A beneficial reference may be made to a circular issued by the Government in 2004. Permitting in one building wing-wise distinct C H S registration. Relevant portion is reproduced here.
Government of Maharashtra Co-operation, Marketing & Textile Department, Government Circular No SAGRUYO-2001/PRA.KRA234/14 SA Mantralay Extension, Mumbai 400032. Dt 30th July 2004;
QUOTE: By considering the said fact, permission may be granted for registering co-operative housing societies wing wise as per the re commendation received from the Commissioner, Co-operative on the following criteria.
1.Each society should have separate entrance for entering in the building.
2.Each society should have separate Electricity meter.
3.Each society should have separate water tank and water meter.
4.Each society should have to prepare tax assessment from Municipal Corporation.
5.Before commencement of the building, the builder/ promoter has to get the Layout of the building approved from the concerned Municipal Corporation by dividing electricity, water.
6.If some matters are common in the area of the building for e.g. compound wall, main gate, open space, swimming pool etc. then the promoter of the society should have to execute Indemnity Bond of Rs.50/- for executing partnership agreement with the societies of other wing under Section 20A of Maharashtra Co-operative Societies Act, 1960.
8.Builder, Promoter should have to give Indemnity Bond on Rs.50/- in respect of doing transfer of land wing wise in the proportionate of the area held by all wings.
9.If the proposals restoration of the society filled in the column builders non-cooperation, then the promoter of the society should have to give Indemnity Bond on Rs. 50/- bond paper for the doing the transfer of land in the proportion of the area held by the society.
While registering the society wing wise, the proposal with rationale that why it is necessary that society to be registered after checking the criteria as mentioned above should have to be forwarded to the Government. UNQUOTE
It is important that due consideration is given to the Circular issued in the year 2000 under Section 79A of the Act which overrides the bye law provisions also.
No .SAGRUYO- 1096/PRA. KRA. 137/14-5 Co-operative & Textile Department, Mantralaya, Mumbai- 400 032 Dt. 29th April, 2000.
Relevant portion is reproduced here.
QUOTE: And therefore, by considering above fact, the government is hereby cancelled the earlier orders dated 26th May 1999. And in view of the public interest, the government directs under Section 79 (A) of the Maharashtra Co-operative Societies Act, 1960 as follows:
1) The Co-operative Housing Societies should charge the maintenance charges ‘equally to all flats” as earlier under rule no 71 (A) (7) of model bye laws they accepted.
2) The Above order shall be applicable to all residential flats and commercial galas in all types of registered Co-operative Housing Societies. Similarly these orders will come into force from 26/05/1999 respectively.
3) Those housing societies have collected maintenance charges from their members as per the government order dt. 26-05-1999, then such societies should return the said maintenance charges to the concerned member or adjusted in the next months monthly charges with the consent of the concerned members.
4) All the registered co-operative housing societies in the state should make necessary amendments in their bye-laws as above. However, even after not doing this, these orders shall come into force from dt. 26-05-1999 respectively. UNQUOTE
The fact that during the last 10-15 years amenities in housing societies have become luxuries far from bare necessities of a middle class dwelling unit or a tenement, a strong case is feasible to be made out which can raise serious questions on the logic that every flat irrespective of size and opportunity to access facilities in varying proportions, should contribute equally to pay for such luxuries which cannot be thrust upon those who do not want.
This case is a red alert for buyers of flats in luxury apartments to understand the monthly maintenance scheme the developer weaves in proposed Bye-Laws which is hardly given any thought as of now. The MOFA should be amended to spell out the scheme of financing for such luxury apartments. For that reason also Fair B should pursue their cause vigorously. You could be doing a great service to future flat owners.
The start should be persuasion by 2BHK Members with the rest by talking to well meaning members to agree to revise to fair basis of sharing maintenance as that is the foundation of cooperative society. Task is tough but where there is mass will anything is possible, so best of luck.
