I am holding a Flat in Lokhandwala comples Kandivlai East, I rented out, initially, society used to charges Rs. 3000/- as a non-occupancy charges, no in 2016 AGM, they have increased to Rs.5000/- and Rs.10000 as a deposit for rented flat.
I sent a letter asking the Secretary to know under which Bye laws this was passed in the AGM, he referred Sec 72 of MCS Act, which authorise AGM to pass such resolution, I asked them to new adopted bye laws which were approved by the Dy Registarar, their reply was either you purchase Model Bye laws or else deposit a Prescribed fees of Rs.10 per page, since I am a new member when I was admitted as a member they have no issued me any adopted bye laws of the society, but when I read on net on Sec 72 the section says subject to MCS Act and Rules AGM has power to pass the resolution.
I also shared with them Maharashtra Govt Circular of 2001 and Supreme Court order of 2009, and also informed them that they are not supposed to charge more than 10% of Service Charges. Now What should be my action point on this.
If society is unable to understand despite my clarification, what should be my action point.
I C Naik
RESPONSE
This appears to be more a case of greed to collect more money out of the Rent-Income earned by the member letting out his flat.
If your society has adopted the latest bye-laws Model 2014, then the Committee does not realize that they have LOST control what so ever on members subletting their flats. The bye-law concerning subletting has been slashed so significantly that there is no mention of a NOC at all. But that does not mean that general body meeting is free to pass any resolution disregarding the phrase in Section 72 namely “Subject to the provisions in this Act and the rules:”
NOC rate of 10% of service charges is a mandatory directive to every housing society issued by the Government pursuant to authority given under Section 79A of the MCS Act 1960. See the relevant extract from the order [Government Order No. SAGRUYO-LOAN/15165/case No. 317/14-C / Mantralaya Extension, Mumbai- 32. dt. 9th March, 1995]
ORDER
As per the powers conferred upon government under section 79 A of the Maharashtra Co-operative Societies Act 1960, the government is pleased to give following order in the interest of public.
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- Non-Occupancy charges shall not exceed 10% of service charges. (excludingMunicipal Corporation/ Municipal Taxes).
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- The said order shall be applicable to residential and commercial tenements/flats in all the Co-operative Housing Societies in the state.
- All the housing Societies in the state shall take action to make proper amendment as above their bye-laws/ sub-rules. However, even if no amendment as above has been made, non occupancy charges should not be charged more than maximum limit mentioned in this order from the date of this order.
By order and in the name of the Governor of Maharashtra.
https://sahakarayukta.maharashtra.gov.in/site/upload/documents/Housing%20Manual%202012%20English.pdf [See Page 68/69]
In view of Para 5 of the Order Model bye-laws 2014 should not have omitted the NOC from the Bye Law No 43.
Consequences of non-compliance of Government Order under 79A:
Sub-section (3) provides “ Where the Registrar is satisfied that any person was responsible for complying with any directions or modified directions issued to a society under sub-sections (1) and (2) and he has failed without any good reason or justification, to comply with the directions, the Registrar may by order–
(a) if the person is a member of the committee of the society, declare him to be disqualified to be or to continue to be a member of the committee of any society,for a period of sixyears from the date of the order:
Provided that, before making anyorder underthis sub-section, the Registrarshall give areasonable opportunity of being heard to the person or persons concerned andconsult the federal society is affiliated.
“Provided further that, such notified State federal society shall communicate its opinion to the Registrar within a period of thirty days from the date of receipt of communication, failing which it shall be presumed that such federal society has no objection to take action under this section and the Registrar shall be at liberty to proceed further to take action accordingly.”.
Any order made by the Registrar under this section shall be final.
So write a letter to the Deputy Registrar (R South Ward) whose office is is in, Sanskruti Building 90 Ft Road, Thakur Complex, Kandivali (East) requesting him to invoke proceedings aganst the Hon. Secretary / Chairman of your Society giving copy of the Bill you have received from the Society. Also send the copies of correspondence with the Hon. Secretary about the Excess Charge of NOC.
Do give a copy of the Letter to Deputy District Registrars whose office is situated in the same complex.
