CAN SOCIETY DISALLOW PARKING FOR LESSEES AND LEVY FINES?

CAN SOCIETY DISALLOW PARKING FOR LESSEES AND LEVY FINES?
A flat, in the joint-names of myself and my wife at Mulund Mumbai, has been given on rent since May 2008 and the copy of the lease agreementhas been submitted to society and we have been paying the non-occupancy charges. My tenant was parking his two wheeler in the compound and the society, which was charging Rs.30 per month as parking charges from all the members and Rs.45 from the non-members, payable with the monthly charges. However on 15.6.2009 the Secretary has issued a circular that the non-members shall not be allowed to park their vehicles in the open space and in case of violation of this decision, they shall be fined Rs.360 per vehicle per month and these charges will be added in the maintenance bill from 1st June 2009 onwards. Is the managing committee of the society empowered to issue such a circular and to levy fine which is 12 times of the parking charges payable by the members per month? Please let me know the remedy available to me against the dictatorial and arbitrary decision of the managing committee.
–Haridas Sambhat, R.F.Daruwala
Parking slots, whether stilt or open, have to be allotted by the society as per the provisions of the bye-laws of the society (refer Model Bye Law No.78 to 85). There should not be any discrimination in the charges payable by the members and the lessees (who could also be enrolled as nominal members) for parking the vehicles allotted by the society. However, the society shall allot parking slots first to the members of the society as per the said bye laws and, thereafter, to the lessees. The decision as per the bye laws have to be taken in the general body meeting of the society and the managing committee is not competent to take such a decision. Even the general body meeting cannot take a decision in violation of the rules, regulations and bye-laws. Any violation may be taken up with the Dy. Registrar of the Co-operative Societies for the redressal of your grievance.

WHAT IS THE PROCEDURE FOR NAME TRANSFER IN MHADA PROPERTY?

WHAT IS THE PROCEDURE FOR NAME TRANSFER IN MHADA PROPERTY?
We have purchased a flat in a MHADA society in Byculla, Mumbai, in May 2005 as the third sale. We have already obtained NOC from the society, but we have to have the flat transferred in the records of MHADA. Please let me know the procedure, requirements, tax and charges applicable for the transfer.
–Amit Jain
In the case of a society in respect of MHADA property, any change in the membership by way of any addition or deletion therein would need the prior permission from MHADA. After obtaining the NOC from the society, you and the seller may approach MHADA with the said NOC of the society for approving your name as the member of the society in lieu of the seller. The transfer, prescribed form etc. for this purpose would be available in the office of the society or these may be obtained from the office of MHADA as also the charges payable, because the transfer charges differ from location to location, area of the flat, age of the building etc.

DOES FIXING BOX GRILL FOR AIR CONDITIONER REQUIRE CONSENT?
Our rented flat is converted into a co-ownership flat in JVPD Mumbai by the land lord on payment of the amount with registration fee etc. A number of the flat owners in the building have fixed box grills to safeguard the AC and to keep the flower pots from slab level to top of window without the consent of anybody. However, the care taker of the land-lord has objected to my fixing the box grill. Can I fix grill without the consent of the land-lord and our flat owners' association has not given any account from the date of its formation. Can we take any action against them?
–Mahesh Goradia
It is not clear from your query whether the society has been registered or the apartment owners association under the provisions of Maharashtra Ownership Apartment Act has been registered or the building is still under the control of the builder or the developer. However, there cannot be any discrimination for the fixing of the grill on the windows amongst the purchasers, either by the land-lord or the society or the apartment association, as the case may be. But it has to be ensured that it should not cause any annoyance or inconvenience to the other residents by way of muddy water from the flower-pots or throwing waste material etc. in the compound or the water dipping from the wet cloths hanged in the box- grill. As regards the account, if the building is under the control of the builder, he is bound to render the accounts of all the amounts collected for the purpose as per the provisions of Section No.5 of the Maharashtra Flat Ownership Act 1963, failing which he may be dragged to the court. If the society has been registered, the accounts have to be circulated with the agenda in the general body meeting and the failure may be brought to the notice of Dy. Registrar of the societies. In case of apartment owners association, remedy lies with the civil court.

SHOULD MODEL BYE-LAWS BE REGISTERED WHEN ADOPTED?

SHOULD MODEL BYE-LAWS BE REGISTERED WHEN ADOPTED?
Our society have adopted model bye-laws in the special general body meeting in 2009 and sent to the cooperative department for registration under Section 13 of MCS Act. Please advise whether the registration is necessary or simple adoption by the society is enough to meet the legal requirements and whether the new bye-laws become enforceable on adoption or only after registration and if registration is a must, what is the remedy for expediting the registration?
–S. Gupta
In terms of Section 13 of the MCS Act, read with Rule 12 under the said Act, registration of the bye-laws is essential and till then, these are not valid. For expediting the registration, the matter should be followed up with the office of Registrar of the Societies and in case of undue delay Co-operation Department at Mantralaya may be approached.

IS PROPERTY TAX LEVIED FROM OCCUPANCY CERTIFICATE?

'It is the duty of the society to stop terrace leakage'

Answers queries on property matters

IS PROPERTY TAX LEVIED FROM OCCUPANCY CERTIFICATE? 
I booked a flat in an under-construction building in September 2009. The builder informed in February 2010 that occupancy certificate has been received on 27.1.2010 but he has given the possession of the flat in May 2010 because of the delay in providing the amenities. Please let us know the date for payment of the property tax from the date of occupancy certificate or possession date. 
–Ramesh Narayn Kamath
In terms of Section 6 of the MOFA 1963, a promoter, while in possession and where he collects the sum for the payment of outgoings, including property tax, water charges, electricity charges, is under legal obligation to pay the same to the concerned departments until he transfers the property to the persons taking over the flats or to the organization of such persons. A flat purchased, as per Section 12 of the said Act, has to pay his proportionate share of the said charges in accordance with the terms and conditions of the Agreement of Sale executed between him and the promoter.

Rules for removal of chairman from committee

Our society has elected managing committee of members in August 2010. Now, due to disputes and other problems, five committee members want to remove the chairman. They are also demanding re-election of the entire committee or they will resign and reduce committee to minority. Will our committee be valid then? Tenure of our committee is 5 years which is found to be quite long.
In the context of your query, chairman, secretary or treasurer can be removed by a no-confidence motion in a special meeting of the committee called and presided by the Registrar or under delegated authority by an assistant registrar or an officer above his rank. 
The notice for such meeting will have to be given by one-third members of the committee and motion of no confidence is to be passed by three-fourth members present at such meeting. Attendance at such meeting will have to be two-third of the committee members. 
If 5 out of 9 members of the committee resign, the strength of the committee would reduce to minority and apparently, functioning of the committee becomes questionable. However, the apprehensions about the validity of the committee are ill conceived. It is true that to transact business at a committee meeting, members present should form quorum agenda. However, such requirement of quorum would not be applicable for the purposes of filling in vacancies caused by death, resignation, disqualification or removal of committee members. Period of office of a co-opted member, would be co-terminus with tenure of the committee, which in your case is 5 years from the date of election. Tenure of the committee can be reduced by an amendment to the byelaws

Co-operative housing society Act bye laws maharashtra india Sarfaesi in co op bye-laws

Nomination for your flat must to avoid hassles in the future

It can ensure smooth transfer of membership in the CHS after the death of the flat owner

Nomination by a member in a cooperative housing society is an important responsibility to be essentially carried out to ensure smooth transfer of membership after his/her death to the heir/legal representative. A member, when alive can nominate one or more persons of his choice and can revoke or vary the nomination as many times as felt necessary. The society should also encourage the members to submit the nomination at the earliest to safeguard the interest of the immediate family or dependents as the case may be. 
Sub-Section(1) of Section 30 of The Maharashtra Cooperative Societies Act 1960 specify that on the death of a member of the society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules. Rule No.25 and 26 of Maharashtra Cooperative Rules 1961 specifies the procedures for submission /revoking of nomination and registration of such nomination/revocation in society records. Bye-law Nos.32 and 33 of Model Bye-laws specify similar conditions for submission and registration of nomination in cooperative housing societies. 
The managing committee is required to consider the application for nomination from a member, approve the same and record it in the nomination register. The member should be provided with the approved copy of the nomination form for his record. On the death of a member, the society after receiving the death certificate and application for membership from the nominee/s in format under Appendix-15; following the provisions of Bye-laws no. 34, 17A, 19 and Section 30 of MCS Act 1960, shall transfer the shares and interest in the capital/property of the society to the nominee/s.
It shall be kept in mind that the intention of specification under section 30 of MCS Act is only to provide for who the society has to deal with on the death of a member and not to create a rule of succession. Though in law, the society has no power to determine the heirs or legal representatives, in order to obviate difficulty and confusion, the section for a limited purpose confers the right to determine to whom the society can transfer the shares of the deceased member as legal representative/heir. 
The admission of the nominee as a member is only to provide for interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right on such person, who in fact shall act as a trustee on behalf of the successors /heirs. The legal heirs or the persons entitled to the estate are decided in a court of law. The society will be bound by such court orders. It is to be noted that a will executed under law will supercede a nomination.

THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 1963.

v     Apartment owners, etc. are referable to Maharashtra Apartment Ownership Act, 1970 as set out therein.

v     A flat has been defined and includes premises used as mentioned therein. The explanation sets out that when there are certain amenities shared then each premise along with such shared amenities shall be deemed to be one flat.

v     Maharashtra Ownership Flats (regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963, sec. 2(c)---Contract Act, 1872, Sec. 10--- Interpretation of documents --- How to be done--- Dispute between promoter and flat purchasers as to whether document were of sale or of lease---Held, documents are to be construed as per wordings of documents if language is unambiguous. Documents are to be given effect consistent with intention of parties where language is ambiguous ignoring grammatical meanings of words appearing in the document.

v     There cannot be any quarrel for the proposition that the documents are to be construed according to the wording if words in documents are clear and unambiguous. The Court will have to give effect to those words as it appears. But when the words or clause of the documents are ambiguous and not in consistent with the context to which it applies then Court will have to take up the task of finding out the intention of the parties. Intention of the parties are if clear, then the Court will have to give effect to the documents consistent with the intention of the parties ignoring grammatical meaning of the word appearing in the documents. Bharat Builders Pvt. Ltd. v/s Parijat Flat Owners Co-op. Hsg. Society Ltd 1998(3) Bom.C.R. 188; 1998 (1) All.M.R. 229; 1999 (3) Bom.C.R. 243    

v     Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale, Management and Transfer) Act, 1963, Sec. 2(c)---Contract Act, 1872, Sec. 10--- Interpretation of documents---How to be done---Dispute between promoter and flat purchasers as to whether document were of sale or of lease---Held, documents are to be construed as per wordings of documents if language is unambiguous. Documents are to be given effect consistent with intention of parties where language is ambiguous ignoring grammatical meanings of words appearing in the document.

v     There cannot be any quarrel for the proposition that the documents are to be construed according to the wording if words in documents are clear and unambiguous. The Court will have to give effect to those words as it appears. But when the words or clause of the documents are ambiguous and not in consistent with the context to which it applies then Court will have to take up the task of finding out the intention of the parties. Intention of the parties are if clear, then the Court will have to give effect to the documents consistent with the intention of the parties ignoring grammatical meaning of the word appearing in the documents. Bharat Builders Pvt. Ltd. v/s Parijat Flat Owners Co-op. Hsg. Society Ltd 1998(3) Bom.C.R. 188; 1998 (1) All.M.R. 229; 1999 (3) Bom.L.R. 243

v     Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale, Management and Transfer) Act, 1963, Sec. 2(c) ---Contract Act, 1872, Sec. 10---Interpretation of documents---Lease Deeds by promoters---Whether a sale---Dispute between promoters and flat owner’s as to whether documents styled as lease were of sale of flats under the Act---Held, in the present case both parties have tried to suppress their real intention and normal rules of interpretation will not apply. This Court was approached by the appellants on the ground that document of transfer was a sale and not a lease and this is sufficient to conclude that document was of sale.

v     In this case that both the parties did not want to disclose their actual intention while entering into documents of the agreement. This has become amply clear from the judgment of this Court in Misc. Petition No.581 of 1977 in their petition filed under Article 226 by the appellant and the some of the members of the respondent Society. The said petition arises from demand made by the Municipal Corporation under section 29(2) of the Bombay Building Repair and Reconstruction Board Act, 1969 on the assumption that the appellant are lessor of the ‘Parijat Flats’ and occupier of the flats are lessees under them. The appellants in this case took a stand in that case that no relationship between lessor and lessee exists between the appellants and flat takers and they are occupying the flats as owners of the flat. Therefore, appellant company was entitled for exemption for payment by virtue of section 28(1)(h) and (1) of the Act. The real intention of the appellant and members of the respondents was to create an agreement for a sale instead of lease. Therefore, in the light of joint submission made before this Court, in earlier occasion it is sheer impropriety on the part of the appellant to argue and contest the matter once again to establish just opposite to what has been contended earlier before this Court. Court has examined the documents very closely; every evidence has been scrutinized by Court. Court has no doubt that every efforts have been made by both the parties to conceal their intention in executing of documents. The very preamble of the documents was made as ambiguous as possible. Therefore, though words are ambiguous, the intention of the parties were also tried to be made more ambiguous. Parties deliberately tried to suppress their intention to be divulged and therefore normal rule of interpretation cannot be possible to apply in the present case. The learned Counsel for the appellant has strenuously argued that the conclusion arrived at by the learned Counsel for the appellant has strenuously argued that the conclusion arrived at by the learned Single Judge in the earlier writ petition cannot be relied upon. For the purpose of this appeal, it is not necessary to rely upon the judgment. This cannot be accepted. It is to note that this Court was approached by the appellant and members of the Society with a joint plea that the document is a sale and not a lease. Therefore, the mere pleading contained in the writ petition will be sufficient to come to the conclusion of the clauses contained in the document indicate that the document Exh. E is an agreement for a sale. In view of this, Court does not find any fault in the Court below decreeing the suit of the respondent. In the result, appeal fails and is dismissed. Bharat Builders Pvt. Ltd. v/s Parijat Flat Owners Co-op. Hsg. Society Ltd 1998(3) Bom.C.R. 188; 1998 (1) All.M.R. 229; 1999 (3) Bom.L.R.243

v     Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale, Management and Transfer) Act, 1963, Sec. 2(c) ---Provisions of Act---Applicability to the suit building and to convey their right title and interest in favour of the plaintiffs Society.

v     In the present case the suit is decreed in favour of the plaintiff society in the terms: it is hereby declared that the provisions of Maharashtra Ownership Flats Act (Regulation and the Promotion of Construction, Sale Management, and Transfer) Act, 1963 are applicable to the suit building. It is further declared that first defendant company is a ‘promoter’ within the meaning of Section 2(c) and was under obligation to take steps for the formation of a Co-operative housing Society or a company of owners of flats and garages according to law and to do all such acts and things as are necessary for the said purposes. It is declared that first defendant is therefore under statutory obligation to take all necessary steps to complete their title to the suit land and building and to convey their right title and interest in the suit land building in favour of the plaintiffs Society. Bharat Builders Pvt. Ltd. v/s Parijat Flat owners Co-op. Hsg. Society Ltd 1998(3) Bom.C.R. 188; 1998 (1) All.M.R. 229; 1999 (3) Bom.L.R.243