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ChsGuru Answers
Answers to your queries on Co-operative Law as posted in Free Query’s* section on Chsguru.com.
Builder is not ready to give the details of Maintenance collected and how the same is utilsed. Can the builder do this?
Rupesh Patil, Jairam Wadi, Ashokvan, Dahisar.
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No, under Section 5 of the Maharashtra Ownership of Flats Act 1963 the builder/ promoter is made a trustee, inter alia, of the amounts received as advance or deposit from persons intending to purchase or who have purchased the flats. The builders/ promoters are required to make full and true discloser of all the transactions in respect of the account maintained by him/ them. The promoter is required under the said Section to not to keep the said moneys in his private coffers but to put them in a separate Bank account and these funds cannot be mixed with the other bank accounts of the builder/ promoter. Section 13 of the Maharashtra Ownership of Flats Act 1963 provides for punishment upto four years for committing the original Breach of trust of the money received. You should immediately initiate necessary Legal action against the builder/ promoter, before your matter gets barred by the Law of Limitation.
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We are 5 societies and have formed an Apex Society. Apex will run the club house and has passed resolution to collect 500 rupees from all members as Apex charges. Can individual member say that he will not pay?
Sub Rajan. Shirish, Vasant Vihar, Thane – 400 610.
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Yes, there could be every possibility that an individual member may deny the said payment; your Guess work is as good as ours. Further, if you are intending to ask whether this amount is Legally recoverable from the said member, then the answer would be: Everything will depend upon the resolution adopted, further there are many factors which will have to be looked into like, is the Club House transferred in the name of the Apex Society or has the property been officially handed over to the Apex Society, further what basis is adopted for charging of Rs. 500/-, does the said basis impugns the principles of Mutuality, etc. A CHS is based upon the concept of mutuality and if any illicit conditions are forced on members, consequently the spirit of mutuality is abused with impunity & this could amount to malpractice, so the maintainability of the charges would depend upon many facts & factors.
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From April 1st society is going to charge maintenance per square feet which will result in large square feet residents paying more and less square feet residents paying less. Can society charge maintenance per square feet?
Raju Gopalakrishnan.,
Kulgaon, Hendra Pada, Badlapur West.
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No, the society cannot charge maintenance charges per square feet. This will violate the provisions of Bye-laws of the society. Thus your society deciding to charge the maintenance charges on square feet basis is illegal. You can refer to our Article CHS CANNOT LEVY MAINTENANCE ON THE AREA OF FLAT.
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In your Services page, under Co-op Drafting Guru, there is an item "Drafting Co-operative Society Transmission Papers". One of our member units had the names of three co-owners (mother and two sons) entered in the Share Certificate, and the relevant registers of the Society. Upon the demise of the mother, the other co-owners (the two sons) applied to the Society for deletion of the first co-owner's (mother's) name from the Share Certificate. There is no nomination or WILL lodged by the deceased co-owner with the Society. Are the surviving co-owners required to submit any Transmission Papers to the Society?
J. V. Adavi. V. N. Road,
Off. Backbay Reclamation Estate, Mumbai – 400 020.
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Yes. Accordingly to your query it appears that the mother was the Original member of the society and upon her death all the Legal Heirs of the deceased will have to submit the transmission papers & other important documents to the society & before transmitting the units the society will have to ensure that all the Legal Heirs have duly proved that they are the only surviving Heirs & claimants of the deceased and as such are entitled to transmit the units to their names. Further thesociety will have to make sure that the applicants have duly complied with the provisions of Section 30 of the Maharashtra Co-operative Societies Act 1960, the Bye-laws of the society and the Succession Law. The society has to take utmost care as in such cases; there are chances of third party claims in which the society gets entangled in a Lawsuit.
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Please clarify about how to obtain Registration Certificate which is lost in transit.
Anand Ranade., Thane Belapur Road, Turbhe - 400 705.
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To obtain Registration Certificate which is lost in transit, you will have to approach the local Police Station & to obtain duplicate copy of the Registration Certificate you will have to approach the Office of Assistant/ Deputy Registrar, Co-operative Societies having jurisdiction over the society. To know the office of your Assistant/ Deputy Registrar visit our page: Address & Jurisdiction of the Registrar of Co-operative Societies.
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Sir, It’s been more than 1 1/2 year and the builder has still not formed the Co-operative Housing Society. He has taken Rs. 40,000/- from us for forming the society at the time of possession. Now neither he is forming the society nor returning the money so that we can form the society. After completion of 1 year he also asked us to maintain the building. He did not provide us the maintenance expense details for last 1 year. Could you please advise what options we owners have? What can we do?
Samant Kumar., Plot 73/3, Sec: 27,
Seawoods, Nerul, Navi Mumbai – 400 706.
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As per Section 10 of MOFA Act 1963 & Rule 8 of the MOFA Rules 1964 it is the duty of every builder to register a CHS within a period of 4 months as soon as the 60% of flats are sold. If the Builder is not registering your CHS, better proceed for Registration of CHS under non-co-operation from the builder, for other problems and recovery of Rs. 40,000/- collected by the builder towards formation of the society you can approach Consumer Court. Please read the respective articles of our CHS Attorney. There are several other remedies which can be availed based upon the facts of the matter, so it’s advisable to consult a lawyer having good experience & expertise in this field. Instead of waiting for miracle, please act ASAP & protect your rights.
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Our current MC was nominated in 2011. Is their tenure valid till 2016?
Jayaram M., 101/80, Vasant Vihar,
Pokhran 2nd Road, Thane – 400 610.
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Everything will depend upon the Bye-laws of your society at the time of your society’s last Elections, so if your Bye-laws stipulates that the tenure of the Managing Committee is Five Years, then the Managing Committee of your society will be valid for a tenure of FIVE Co-operative years to be counted from the date of declaration of the results of the Elections.
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This is Mehul Bajaj one of our member is not paying maintenance since last 8 months and not even interest or anything, What action we can take or any solution please help us sir? Thanks.
Mehul Bajaj., Pandit Complex,
Near Moraya Nagri, Ulhasnagar – 421 004.
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Serve him a Legal Notice and file Recovery proceedings against him under Section 101 of the Maharashtra Co-operative Societies Act 1960 before the Office of Assistant/ Deputy Registrar Co-operative Societies having jurisdiction over the society or file a dispute in Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act 1960.
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