A detailed study on the burning
issue of time by Adv. R. P. Rathod.
When a
society member takes up cudgels against the entire Co-operative Housing Society (CHS),
refuses to pay dues and poses a veritable nuisance to other members, you can
be assured that the member is capable of going to any extent to ratify his stand, says Adv. R. P. Rathod.
He explains
that there are more than 50,000 CHS in the State and on an average; about 20 to 30 per cent of CHS have members
who are the usual 'trouble-maker' sort. While the degree of trouble they can
cause varies from society to society,
the nature of the scourge is more or less the same. And, what makes matters worse
is that there's poor little by way of legal remedy to the issue. Most problems occur when a member refuses to pay
up dues; stalls Repair Jobs;
entertains anti-social
elements that are usually Land-grabbers, files false complains at Police
Stations, files frivolous petitions against Co-members
and generally stalls regular functioning of the society.
One of the most important duty of a Member is to “regularly pay the Maintenance Charges” of the society on time, but
often some members resort to one or the other excuse in order to withhold the payment
of Society’s
Dues. Adv. R. P. Rathod lists some of the Common excuses
made by these defaulters for not performing their duties.
·
The society is not maintaining the
property, resulting in heavy leakages and deterioration of the
building. Why should I pay in such a situation?
·
I had paid money to
buy the flat and now I am the owner of my flat, so why should I pay towards another contribution?
·
My family lives in the combined Premises of the two flats
that I own but enjoys single privileges, so why do I need to pay for both Flats?
· "I have
constructed the building
and sold the flats to all of you". I am still the owner of the Land &
the building, Why should I pay
the dues?
· My
flat has got severe leakage problems, which I have brought to the notice of the
Managing Committee, but no action is being taken. So Why should I pay my dues towards the Maintenance Charges?
· All my dues are paid up, and as per my calculations the outstanding amount as
per the Society Billing is wrong, so I will not pay.
· According to me, I
have to pay less
than the amounts demanded, in the earlier Bills, so till this is sorted out, I
will pay nothing.
· I have a small flat
and have presented my grievances of overcharging to the Committee. I will not pay till the earlier charges are
refunded by the society along with interest.
· I have not been sent
the AGM notice and other circulars, The society only sends me Bills, So why should I pay the dues?
· The society is
charging Compound interest, So I am not
going to pay anything.
·
The society is charging rate of interest, which has not approved by the General
Body, So why should I pay the dues?
· The Managing Committee is not authorised and is illegally
operating, So why should I pay the dues?
·
Everyone has good Car parking space, but mine space is
very congested, So why should I pay the dues?
· The Sweeper is not doing their jobs properly, the
watchman also is never found in proper uniform, you don’t manage the society is
a proper way, So I will pay nothing?
·
The society is not having 24 hrs water, So why should I pay?
· The road leading to the building is always dirty and is
occupied by hawkers, Since
the society is not bothered to take-up this issue, So I will not Pay?
· Member in General body never accept my suggestions in the meetings, So why to Pay?
·
I don’t stay here, my flat is vacant, I don’t enjoy any facility, So Why should I pay?
In more than 95% of the cases the excuses made by these
defaulters are never maintainable
as per Law. In my practice of last 15 years, in this field of Co-operative
law, I have observed that there are very few cases, wherein a member is
genuinely not in a position to pay the Society dues, owing to his poor financial position says Adv. R. P. Rathod. He further says that you go
to a Electric Office, Telephone Office, Municipal Office, Tax department or any
other Govt. office, with a grievance that the bills are unjustifiable, they will first ask you to pay the same
& then file a written complaint.
Very often, the society stands to lose despite there
being Legal Processes to recover dues
from an 'Errant' CHS member or
evict him. "More often than that, the 'Errant' member besides being a
rogue is affluent enough to tackle Legal
Problems. In some cases says Adv. R. P. Rathod., the societies don't have enough funds to pursue a Legal matter to its Logical end and leave the issue
unsettled in favour of the 'Errant'
member.
CHS cannot legally enforce a member to
pay up by interfering with his Cable, Water or Power connection, as this would
invite adverse Legal issues for the CHS. The Managing Committee of a CHS consists of
Honorary Persons, who reluctantly agree to take out their personal time for
the routine society jobs, so they avoid taking Legal steps as
this would further cause hardship &
unnecessary harassments to them adds Adv. R. P. Rathod.
The Judicial
process which though seems
simple often gets tedious & people get entangled in the never ending Legal Battle
explains Adv. R. P. Rathod. In order to recover dues or eviction of a
'non-paying' resident, the CHS files an application before the Assistant/ Deputy Registrar of Co-operative
societies under Section 101 of the Maharashtra Co-operative Societies Act
1960. A Judicial order for Recovery of Dues passed is binding on the
'non-paying' member, who has the option of appealing to the Divisional Joint Registrar of Co-operative Societies, again if the Joint Registrar rules in
favour of the society. An appeal to this order can be made to the Department of
Co-operative Societies, Mantralaya.
Though the Co-operative Act puts a terminator to the dispute here, if the order is to be appealed further, Article 227 of the Indian Constitution comes to the rescue and a Writ Petition can be filed in the High Court, which then exercises its power of superintendence over subordinate judiciary. By a Special leave to Petition, under Article 136 of the Indian Constitution, the Supreme Court can be approached for a review of the High Court order.
This also denotes the fact that How Co-operation is missing in the Co-operatives. Very often, instead of obtaining a solution from the Legal processes, cash-strapped CHS simply lose money in the pursuit of justice while 'rogue' members stand to gain concludes Adv. R. P. Rathod.
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