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QUESTIONS & ANSWERS
I am staying in a Society at Kharghar. Recently, Panvel Tehsil Office has served notices to housing societies and individual owners of the plots for the payment of land revenue tax/non-agriculture tax. These properties have been constructed on the plots allotted by CIDCO on leasehold basis. Whether such tax has to be paid b y the Societies and individual owners of the plots, please clarify?
The State Government of Maharashtra acquired the agriculture land in the area of Navi Mumbai to set up a new town and entrusted the same to CIDCO, as the Development Authority, for development and allotment of the plots under various categories. It is the responsibility of CIDCO to arrange all such approvals i.e. conversion of the land, clearance under ULC etc. before allotment of the plots. In the year, 2004, similar notices were issued by CIDCO to the societies and the individuals in Koparkhairane, Vashi and other nodes. One NGO by the name of Citizens for just Society filed a PIL No.58 of 2004 before the Hon’ble. Bombay High Court, wherein the State Govt. of Maharashtra and CIDCO are the Respondents. After the preliminary hearing, the Division Bench comprising of Hon’ble. Chief Justice C.K.Thakkar and Hon’ble. Mr.Justice Sharad Bobade, has stayed the recovery of the tax by Order dated 31.3.2004 and the petition is still pending for final disposal. I am of the opinion that since the Govt. of Maharashtra is one of the Respondents, Panvel Tehsil office should not proceed with the recovery of this tax till the final disposal of the petition. The Societies or the allottees, who have received these notices, may bring this fact to the notice of Panvel Tehsil Office and to proceed further in the matter.
I am a retired senior citizen and my children are abroad. I have got a housing property at Nerul. I have been hearing about some scheme by the name of Reverse Mortgage. Will you please explain the same:
– A. RAJAN
In a reverse mortgage scheme, a residential property in the exclusive name of the owner may mortgaged to a Financial Institution such as LIC Housing Finance Ltd., wherein loan amount, linked with the valuation of the property, is paid as a one time lumpsum payment or in monthly, quarterly, half yearly or yearly installments as an annuity for a period of 15 years. The loan installments are payable to the owner or the spouse till he/she survives or the repayment term of 15 years, whichever is earlier. In case of survival beyond the period of 15 years, the owner or the spouse is permitted to stay in the same house during life time and, thereafter, an option is given to the legal heirs to repay the loan with interest and get the property transferred in their names, otherwise, the Financial Institution would recover its dues from the sale of such property and if there is any excess the same is paid to the legal heirs. In the recent Budget, State Govt. has proposed an amendment to the Income-tax Act not to levy any tax on the annuity amount payable under this scheme. The scheme is in the process of taking concrete shape and is likely to be launched very soon.
I am regular reader of your column in the DNA, Navi Mumbai. You have clarified that where a society allots a flat to its member, the Society will be required to execute an agreement for sale, duly stamped and registered. But there was cases where the flats are being allotted by CIDCO by way of allotment letters and loans are being granted by the Banks and the Financial Institutions on the basis of such allotment letters. How is it that the loans are being disbursed in the cases of CIDCO flats without agreement for sale in favour of the purchasers?
– N. CARVALLO
CIDCO is a wholly owned company of the State Government and is designated as a new town development authority for the town of Navi Mumbai, which, initially, issues an allotment letter with the condition that after the payment of the last installment or the full sale consideration, with miscellaneous charges as mentioned therein, an agreement for sale will be executed and registered in favour of the purchaser within 15 days of the possession; whereas in case of Societies, there is a provision in Article 25 of the Bombay Stamp Act that such a document by the Society attracts stamp duty and after the amendment of the Indian Registration Act in September, 2001, such a deed has to be registered. Therefore, the Banks and the Financial Institutions are advancing loans in cases of CIDCO properties on the basis of the allotment letters with mortgage N.O.C. in their favour.
I am reading in the newspapers about the crisis created by such prime lending by the Banks etc. in America and the American economy because of such lending has adversely affected our country also in some extent. What is all this?
– PRITAM KUMAR
In America at one point of time in the recent past, there was plenty of money available and purchasing the flats or the houses became an attractive investment avenue for most of the Americans. Some of the Banks and the Finance Institutions in their over enthusiasm to capture this market, advanced the mortgage loans to the borrowers with poor credit record and compensated themselves by charging higher rate of interest. Therefore, this sub prime lending is the practice of advancing loans to the borrowers, who are not eligible for the same at the best rate of interest because of their poor credit record. As the housing stock increased in the market, the sale and purchase of the houses dropped sharply, and the sub-prime borrowers started defaulting, particularly, because of higher rate of interest and thus the Banks and Financial Institutions are facing this crisis in America, and the impact of this crisis is being felt in our country also.
I have purchased a Flat in June, 2007 jointly with my mother. Now I want to transfer this flat in the names of my father and mother. What is the procedure and whether we have to pay stamp duty and registration charges again?
You may execute a gift deed in respect of your 50% share in the flat in favour of your father. Such a gift deed would attract stamp duty @ 2% of 50% of the present market value of the flat and 1% registration charges thereon (with a ceiling of Rs.30,000/- on registration charges). Thus your father and mother would become joint owners of the flat. If the Society has been registered, then after the execution and registration of the gift deed, the matter may be taken up with the Society about this transfer of the flat in joint names of your father and mother to correct its records and the share certificate accordingly.
We booked a flat with a Builder in the year 2003 with 95% payment as the possession was to be given within 3 months. Even after 4 years, possession has not be given inspite of the fact that the building is ready for possession. The co-partner of the builder has allotted his share to his clients. We moved the consumer court and the decision was given in our favour to give the possession within 45 days along with compensation. This period is also over and there is no response. How to move further to get the flat?
You may consult your advocate, through whom you went to the consumer court, to move the court for the implementation of its order.
The amount payable towards major repairs of the society building was approved in the special general body meeting as per Bye law No.158(a). Does any member has the right to default or withhold payment for the repairs contribution or refuse to pay interest or demand waiver of interest, if he is of the opinion that the repairs have not been carried out properly or that his suggestions during the execution of the work were not implemented or for any other reason. If not what remedy society is to recover the dues and interest thereon from the defaulting member?
– SURJIT ISRANI, MARUTI ARCADE CHS
Two matters have not to be mixed up and the defaulting member has to abide by the decision of the general body meeting and has to pay the dues as per the provisions of the new model Bye law No.70, 71 and 72, failing which the society may initiate recovery proceedings through the Joint Registrar of the Cooperative Societies as per the provisions of Section 101 of the Maharashtra Cooperative Societies Act.
Our society has two wings A & B. A wing has a lift. The society members staying in B wing and the members of the ground and first floors of A wing are not ready to pay maintenance charges of the lift on the ground that they are not using it. What action can be taken by the society?
In terms of Bye law No.69 (A) (iv) of the new model bye laws, expenses on repairs and maintenance of the lift, including charges for running the lift, have to be shared equally by all the members of the building, in which lift is provided irrespective of the fact whether they use the lift or not. Therefore, the members of the ground floor and first floor of A wing have to pay the lift charges and in case of default, society may start recovery proceedings against such defaulters through the Joint Registrar of Societies as per the provisions of Section 101 of Maharashtra Cooperative Societies Act. The members of B-Wing Building, which does not have the lift, can’t be asked to bear the charges of the lift in the A-Wing Building.
I wish to sell my 2 BKH Flat in New Bombay with car park. Since the buyer is not interested in the car park, I want to sell my car park to my brother, who also owns another flat in the same society. I understand that we are not liable to pay transfer fee charged by the society, if transfer of flat is within the family. I hope the same will be applicable to the transfer of car park also. Will it be sufficient if I intimate the society in writing that I am transferring the car park in my brother’s name?
In terms of Bye law No.39 of the new model bye laws, transfer charges are not to be paid for transfer of the share and the interest of the member in the capital/property of the society to the member of his family and term family has been defined in Bye law No.3(xxv). If the transfer of the flat is in the name of any of the relations mentioned in this definition, no transfer charges can be levied by the society. As regards car parking if it is stilt or open parking, you have no right to sell or transfer the same to any other buyer or your brother, inspite of the fact that you might have purchased the same from the Builders. Such a parking has to be allotted by the society as per the provisions of Bye laws No.78 to 85 of the new model bye laws.
Ours is a society on 12.5% GES land. Lease Deed with CIDCO and Assignment Deed have been executed. Society has also been registered on 12.9.2005. Stamp duty paid on the assignment deed has been adjusted with stamp duty paid by the members on the individual agreements for sale. Is it OK? Builder is not releasing custody of original papers and share certificates. Can you please enlighten us with a list of original documents, which we should ask from the builders. There are many defaulters. Whether the society can withhold distribution of share certificates to the defaulters and if so whether it would amount to contravention of the Bye laws or any other provisions?
The adjustment of stamp duty is as per the provisions of law applicable in such matters. Your society may ask the builder to hand over all the original title deeds of the property, such as CIDCO Allotment Letter and the Agreement to Lease for the plot, duly executed registered Lease Deed with Registration Receipt, Deed of Assignment by builders in favour of the society with the Registration Receipt, Occupancy Certificate, Society Registration Certificate and copies of the agreements and other documents executed by the builders in favour of the individual purchasers of the flats in the society. In case of non compliance by the builders, society may proceed against the builder by way of a criminal case as per provisions of Maharashtra Ownership Flats Act. The share certificates have to be issued by the society and not by the builders. As regards defaulters, your society may proceed against them as per the provisions of Chapter-VIII of the new model Bye laws, followed by recovery proceedings through Joint Registrar of the Cooperative Societies, as per Section 101 of Maharashtra Cooperative Societies Act.
I have booked a flat in New Panvel in September 2006 and the agreement is registered in my name. The total cost includes registration, stamp duty, one year maintenance and Rs.1.47 lakhs as development charges. The total sum of Rs.18,00,000/- as against the cost of the flat Rs.15,00,000/. Now at the time of handing over possession, the builder is asking to pay Rs.1.47 lakhs towards development charges without giving details or the break up of the amount under different heads of the expenses. Please advise whether the builder is bound to provide these details and if so, what action can be taken for the non compliance on his part?
– JAGDISH PAWAR
In terms of the provisions of the Section 5 of Maharashtra Ownership Flats Act, a builder has to maintain separate account of all the amounts taken as advance or deposit and is deemed a trustee for the same and he has to disburse the amount for the purposes for which given. He is also bound to make full and true disclosure of all transactions in respect of that account. In case of his failure to comply with these provisions, criminal case can be filed against the builder as per the provisions of the said Act.
Whether payment of stamp duty and registration of document is required in respect of additional members enrolled by the builders, where no sale was involved but only allotment from the registered society after the approval of CIDCO for the inclusion of such members on individual basis?
It seems the plot has been allotted by CIDCO to a registered society which has given development rights to a builder. With effect from 1st May 1993, where a Flat is allotted even by the society to its member or incoming member whether in consequence of purchase of its share or not, stamp duty has to be paid as per provisions of Article 25 of the Bombay Stamp Act and such an instrument is to be registered after 24.9.2001 as per amendment to the provisions of Indian Registration Act, read with the provisions of Maharashtra Ownership Flats Act. Thus any allotment of the Flat by the society to its original member or the additional member, with the approval of CIDCO, will have to be by a duly executed, stamped and registered document. As regards the other issue, since the matter is sub-judice, wait for the judgement of the court.
The husband of chair-person wants to become an associate member, whose name is not mentioned in the sale agreement. After submitting the form for associate membership, whether he will have to get his name included in the sale agreement. After enrolling him as the society member, how long he will have to wait for voting rights and whether he can become a managing committee member by contesting the election after surrendering the rights by the chair-person and till he gets the voting rights, whether she can continue as the chair-person.
The joint owners of a flat may be enrolled by a society as associate members. But such an associate member shall have no rights or privileges of a member as per the Bye law No.25 of the new model bye laws of the societies, except the right to vote in the absence of the member as per the provisions of Sector27(2) of the Maharashtra Cooperative Societies Act. Thus he cannot contest the election and become a member of the managing committee. Till he is enrolled as associate member, she may continue as chair-person, if duly elected by members of society as per the provisions of Bye laws of the Society.
Ours is a residential building with shops on gaothan plot in Sector-23, Narul. The lessee of the plot gave the development rights to the builders, from whom we have purchased the flats. Subsequently, a family member of the lessee has filed a case in the Thane court against the lessee challenging his right on the said plot and claiming his share. The case is still pending. The builder has informed that he was unable to register the society so long the court matter is pending. He has proposed to form an adhoc committee for the purposes of maintenance etc. NMMC has issued occupancy certificate in the year 2005. Is the contention of the builder for not forming the society due to court matter is correct?
– BIPIN, NERUL
An application may be moved in the court, where the case is pending, to seek the direction to register the society. Meanwhile, there is no harm in forming an adhoc committee, because the members of such an adhoc committee will have the say in the matters. However, such an ad-hoc committee will have no legal status.
I have a duplex flat on 7th and 8th floor of the building. The builder has not provided any emergency exit on the 8th floor and the society is opposing such an exit. Fire department of NMMC has, categorically, emphasized the requirement of emergency exit. The society has approved a resolution in a special general body meeting that no alteration should be allowed in open space, though alteration and encroachment already exist. The society is using its majority card against me to suppress the legal demand for their vested interest.
The directive of the NMMC will be binding on the society to provide the emergency exit. No alteration or encroachment may be made in the open space against sanctioned building plan. In case of existing encroachment, you may approach the Joint Registrar of Cooperative Societies to issue necessary directions to the society.
My husband and I am the joint owner of a plot, which we purchased in the year 1993. For the purchase of this plot, I too contributed a part of money. Now if we want to sell it, how much share I will get. A part of money may attract capital gains tax and how that tax is to be borne by us and used further jointly or individually?
Your share of the sale consideration will be in proportion to the amount contributed by you for the purchase of the plot and the capital gains tax, payable if any, will also be payable or used in the same ratio.
I own a CIDCO flat in Navi Mumbai in an apartment owners association, wherein some of the non-members are holding vital position and misusing the powers in the society. I and some other members of the society sent legal notice to dissolve the existing committee and to conduct fair election. But they are sticking to their position. How to solve this problem?
Since the apartment owners association is not governed by the bye laws of the cooperative housing societies, the affairs of an apartment owners association have to be conducted as per the bye laws or the rules adopted by such an association. In case of violation of the bye laws or the rules of the association, remedy lies to move the civil court for issuing necessary directions in the facts and circumstances of the matter.
While booking a 2 BHK flat in Sai-sthan in November 2007, M/s.Concrete Builders gave in writing, but without signatures, that a sum of Rs.1 lakh will have to be paid at the time of possession for car parking. On 18th February 2008, the builders informed us that the car parking charges have been changed to Rs.2,50,000/-, out of which, a sum of Rs.2,40.000/- has to be given in cash and Rs.10,000/- by cheque. Once a builders has given a commitment in writing to allot the car parking for Rs.1,00,000/- whether the builder, who is a reputed one, change his commitment at the time of possession. How this problem can be solved?
– MAHENDRA L. LATHI
Leaving aside the question whether the written unsigned commitment is binding or not, a builder has got no right and title to sell the covered parking or open parking to any flat purchaser. Such parking and other open and common space belong to the society and the society has the right to allot the parking space as per the new model bye laws No.78 to 85. In case any such parking is allotted or sold by the builder to a member, it will not be binding on the society and the society can proceed with the allotment of the parking as per the provisions of the said bye laws.
I am planning to purchase a flat in Navi Mumbai. I am told that apart from stamp duty and registration charges, a buyer has to pay CIDCO transfer charges also. I would like to know whether such charges are payable and if so, whether it is related to the sale value or is a fixed one and whom these charges have to be pad. Whether is it applicable for the new building from the builders and also for resale cases of the properties ?
– YASHWANT MENDON
The entire land in Navi Mumbai in on lease hold basis and the plots are allotted by CIDCO under various categories such as Tender Plots, Society Plots, Gaothan Plots, APMC Traders Plots, Raw House Plots etc. etc. Except in the case of purchase of a flat in a building constructed on a tender plot, transfer charges have to be paid to CIDCO for the purchase of flats in the buildings constructed on other plots, whether a flat is purchased directly from the builder or in resale. The transfer charges are prescribed by CIDCO based on the location and age of the flat and the quantum may be ascertained from the area offices of the CIDCO.
I purchased a flat on the basis of super built-up area in June 2003 and just six months back, a society has been registered. Our maintenance charges are also based on super built-up area. Society has decided not to keep shoe rakes outsides the flat. As per my religious belief, I cannot take the shoes or the sleeper inside the house. I want to know whether the maintenance charged on super built-up area and not keeping the shoe rake adjacent to the main door of my flat is legal?
The method of levy of charges by the society under the various heads is mentioned in the new model bye law No.67 to 72. The maintenance charges or service charges are not based on the area of the flat. Service Charges are to be borne equally by all the flat owners/members of the society irrespective of the size of the flat. Expenses on repairs and maintenance of the building are to be fixed in General Body, subject to minimum of 0.75% p.a. of the construction cost of each flat, as per Bye law No.69(a)(iii) of the new model bye laws and these can’t be fixed on the basis of the area of the flat.. The common space in the stair case or any other space cannot be used for the personal use of any flat owner and has to be kept vacant and the decision of the society not to allow the shoe rake adjacent to the main door of your flat is in accordance with the bye laws of the society.
I have purchased a flat from a nationalized bank in an auction sale as per the provisions of SARFAESI Act. The bank has to execute the certificate of sale in my favour. Will the certificate attract the stamp duty and registration?
The certificate of sale to be executed by the Bank, as per the provisions of the SARFAESI Act, has to be stamped and registered like any other agreement of sale or conveyance deed as per the rates applicable in Maharashtra.
We had advanced a housing loan in the joint names of its owner and his wife. This case has now become NPA. Both the husband and wife have committed suicide, leaving behind his minor son aged 12 years as the only legal heir. How we can proceed for the recovery of the outstanding dues as per the provisions of SARFAESI Act?
In such a situation an application will have to be moved for the appointment of the guardian of the minor through the court and, thereafter, you may proceed against the secured asset as per the provisions of the SAFAESI Act.
Is it compulsory to register leave and license agreement in respect of a residential flat with the Sub-Registrar? If so from which date such registration has been made compulsory? What are the legal implications, if not registered it? How much is the charge for such registration? Whether both the owner and the tenant have to visit the Registrar’s Office for registration? Who will bear the charges for the registration i.e. the owner or the tenant?
In terms of section 55 of Maharashtra Rent Control Act, 1999, a leave and license agreement has to be in writing and registered. Such registration has been made compulsory as per the provisions of said Act, with effect from 31.3.2000. If such an agreement is not registered, the occupant will not be deemed as a licensee and he may claim the status of a tenant. As per the Notification dated 8.6.2000 issued by the State Government registration charges have been fixed as Rs.1000/- in respect of the premises in the limits of the municipal corporation and Rs.500/- in other areas irrespective of the amount of the license fee or the term of the agreement. The owner and the licensee, both, will have to appear before the Sub-Registrar for the purposes of the registration of the agreement, unless such an agreement is sought to be registered by way of Power of Attorney. It is the responsibility of the land lord to register the agreement and the failure may attract punishment of imprisonment upto 3 months or fine not exceeding Rs.5000/- or both. The question of bearing the charges on the stamp duty and the registration is negotiable between the owner and the licensee.
I am staying in a CIDCO flat and our society is registered as flat owners association. The term of the secretary and the committee was up to March 2008 and now they have raised the service charges without calling the meeting of AGM. I would like to know whether they can do this?
The affairs of the apartment owners association are governed by the rules, regulations, bye laws of such association adopted at the time of registration and any deviation or decision in contravention of such rules, regulations or bye-laws will not be legally sustainable. Since the apartment owners association are not governed by the provisions of the Maharashtra Cooperative Societies Act and the bye laws of the cooperative societies, your remedy lies to approach the civil court to give suitable directions to the office bearers of your association.
I have entered into a MOU for the purchase of a flat in Kandivili for a consideration of Rs.30 lakhs. I paid a token amount of Rs.1 lakh at the time of MOU, partly in cash Rs.50,000/- and partly by cheque of Rs.50,000/-. Thereafter, I came to know that the title of the property is not clear as the building is constructed on a plot allotted by the Collector and there have been more than three transactions about the sale of the flat in the past and at no stage, permission of the Collector has been obtained. Therefore, we have sent the stop payment advice to our bankers against the encashment of the cheque for Rs.50000/-. I am being threatened by the other party that he would initiate the proceedings against me under the Negotiable Instrument Act for the dishonour of the cheque. Can he do so and how I would be able to recover my Rs.50,000/- paid in cash?
If you have stopped the payment of the cheque for a valid reason and if you were having sufficient fund in your bank account on the date of dishonour to meet the cheque amount, the criminal case filed against you for the dishonour of the cheque will not sustain in court of law. As regards the recovery of the cash Rs.50,000/-, if you have got the proof of the payment of the same or prove this payment otherwise, you may proceed against him for the recovery of the same in the court.
I have given my flat on a leave and license basis and have requested the society for its NOC. The society has given me two forms, one for the request for such permission in the prescribed format and the other for the nominal membership of the licensee. I am afraid that if the licensee is made the member of the society, I may loose my flat. Please advise.
The society has called for both the forms as per the provisions of the bye laws of societies. By making the licensee as the nominal member of the society, you will not loose the ownership of your flat or any right, title or interest therein in any manner whatsoever, Such a nominal member does not acquire any rights, as a member of the society.
I am going to purchase a flat under resale in a society building. The present owner, who is the second purchaser, has lost the original society allotment and possession letter. The receipt for the payments of the sale consideration is also lost by the founder member of the society. The present owner has also not registered any instrument with the previous owner in the year 1996 for the sale of the flat to him. The society is prepared to issue duplicate copies of the allotment and possession letters. The present owner is ready to register the agreement on the basis of the power of attorney given by the previous owner. May I go ahead and purchase the flat or I will face any problem, if I want to sell the flat in future. Will a Financial Institution give housing loan to me under these circumstances and whether the duplicate copies of the allotment and possession letters will serve the purpose of loan?
From the year 1993 whether a flat is allotted by a society even to its member, such an instrument has to be stamped as per the provisions of Article 25 of the Bombay Stamp Act. The duplicate copies of the allotment and possession letters cannot be a substitute for the originals. The present owner should have entered into a proper document, duly stamped, in the year 1996 while purchasing the flat from the previous owner and such an instrument could be registered at this stage with a deed of confirmation or declaration. The State Government has announced an amnesty scheme from 01.06.08 for a period of two months for the registration of such documents with a nominal penalty. Therefore, the present owner may seize this opportunity, as soon as such a scheme is announced, for the registration of the instrument in his favour, because registration of such an instrument is compulsory by virtue of amendment to the Indian Registration Act in the year 2001. Simple transfer of the share in your name will not be enough as the proof of your ownership of your flat. Even if the proper instrument is registered by the present owner with the previous owner, you will not be having the original allotment and possession letters and the receipt of the payment of the society as the chain of documents and any purchaser in future may hesitate, because of the non-availability of these documents. In such a case of loss of documents, a police complaint is lodged and public notice is issued through an advocate. The financial institution may consider the case for advancing housing loan to you keeping in view the totality of the circumstances and simply as a matter of their discretion.
We are living in an independent house at Kharghar and the ownership of the same is in the joint names of my husband and his sister. We want to change the ownership in the exclusive name of my husband and his sister is agreeable for the same. Whether re-registration will be necessary for this change and if so, what will be the cost and the procedure to be followed?
Sister of your husband may execute a gift deed in favour of your husband in respect of her right, title and interest in the flat to the extent of her 50% share therein. Such a gift deed will have to be in writing, stamped and registered. It would attract stamp duty @ 2% on the half of the present market value of the flat and registration charges at the rate of 1% thereon, subject to a ceiling of Rs.30,000/- registration charges.
A purchased a flat from the builders and he sold it to B. B sold it to C and he has approached us for the housing loan for the purchase of the flat. C is having only the agreement for the sale executed by B in his favour. Will the Bank have a proper security for the loan to be advanced to C only on the basis of the agreement for sale in his favour?
All the documents in original, with the registration receipts, in favour of A, B and C will be necessary to be deposited with your Bank by C for creating a proper security by way of either equitable mortgage or even registered mortgage to rule out the possibility of any existing equitable mortgage either by A or B or misuse of the documents in favour of A and B in future by way of multiple mortgages.
We, two brothers and one sister, earlier staying with our parents at Agra. I got a job in Pune, so I shifted to Pune in July 2005. My wife and my parents are staying with me at Pune. My sister is also staying at Pune with her husband. My elder brother with his wife were staying earlier at Agra in the said house, which is owned by my mother. Since my elder brother was not having any source of income, we brought him to Pune for a job and his wife is staying in the same house at Agra with her two children. My brother has been insisting her to shift to Pune, but she has refused and threatened us to teach a lesson in the court. It is reliably learnt that she has an affair with his brother-in-law at Agra, who has been insisting upon her not to shift to Pune. She neither vacates the house nor is prepared for the divorce by mutual consent. Please advise how to obtain divorce from her and get the house vacated?
Your elder brother may file a petition for divorce in the family court at Agra against his wife seeking divorce on any of the grounds mentioned in Section 13 of the Hindu Marriage Act. As regards the vacation of the house, she has got no right to stay therein claiming it a matrimonial home, as the house is owned by your mother and your elder brother is prepared to bring her to Pune, where he is in the job. Therefore, your mother may initiate eviction proceedings against her in the court at Agra.
We have advanced a housing loan to one party about a few years ago. The account is regular. But now the borrower has asked for the copies of the documents deposited by him with our bank as a security for the loan. We are afraid that if we give xerox copies of the documents to him, there may not be any mischief by way of availing of a second loan against the security of the same property claiming loss of documents by submitting the Xerox copies given by us.
You are bound to issue the Xerox copies of the documents to the borrower and you cannot deny the same. As regards your fear of second mortgage, you may give the copies of these documents with a covering letter listing out the documents and mentioning the fact that the property is mortgaged with your bank. In addition, you put a rubber stamp reading as, “Mortgaged to – – – – “ on each page of these documents at different places to avoid any misuse of those copies.
(a): I have given my flat on leave and license basis in a society at Navi Mumbai. The society collects monthly service charges @ Rs.1000/- per month and it has levied non-occupancy charges @ Rs.500/- per month and have collected 11 months non occupancy charges in advance Rs.5500/-. Otherwise, the society was not allowing the licensee inside the premises. The contention of the society is that this decision has been taken in the general body meeting. How far this decision justified and should the non-occupancy charges not be @ 10% of the monthly service charges?
(b): In one of the special general body meeting the society increased the service charges by Rs.150/- per month and since I was representing for the reduction of the non occupancy charges, I have been paying the service charges at the old rate. The society has been sending me the bills, levying delayed payment charges @ Rs.20 per month for each month balance separately compounded.
(a) The service charges levied by the society, as per Bye-law No.68 of the model bye laws, would include the items as mentioned therein. However, such charges cannot be contrary to the provisions of Maharashtra Cooperative Societies Act or the rules or the bye laws of the society. The non occupancy charges cannot be levied by the society more than 10% of the monthly service charges and such charges cannot be collected in advance for a period of 11 months. This decision of the society, even taken in the general body meeting, is contrary to the Government directive binding on the society and such decision is not sustainable in law or justified. You may take up the matter with the Joint Registrar of the Cooperative Societies for issuing suitable direction to the society.
b): You should not with-hold the payment of the bills of the society for the reason which may not be, apparently, justified. However, you may take up this issue with the Joint Registrar of Cooperative Societies to issue suitable directives to the society. As per the provisions of the bye laws of the societies, the delayed payment charges have to be fixed by the Society in the General Body Meeting within the ceiling of 21% per annum, as provided in the Bye-laws. Any decision taken by the Society even in a general body meeting, which is contrary to the provision of the Act, Rules, Bye-laws or the directive issued by the Government or the Joint Registrar, is not legal and can’t be enforced.
Q(138): We were allotted a shop cum godown in APMC, Sector-19, Vashi, by APMC by way of sub-lease in the name of our partnership firm at that time. Subsequently, the partners retired from this firm and the firm became the sole proprietorship, who was earlier one of the partners. Please advise whether the transfer of this property by APMC from the name of the partnership firm to the name of proprietorship firm is necessary?
M/s.Dhiraj & Sons
Ans: The plot in question in the APMC market has been allotted by CIDCO to APMC on lease hold basis with the permission to APMC to allot the shop cum godown to the registered traders/merchants by way of sub-lease. As per the terms and conditions of lease, including sub-lease, any transfer or change in the status of the allottee has to be approved by APMC. Therefore, the change of the status of your partnership firm to the proprietorship firm for the right, title and interest in the shop cum godown is necessary.
Q (139): I have bought a flat in Kharghar, Navi Mumbai, in the year 2007 from a Builder, who told me that the entire construction has been carried out in the name of the Society and, therefore, only CIDCO transfer is necessary in his name. According to him, stamp duty and registration charges have already been paid by Society and only after Occupancy Certificate when I sell the flat to another buyer, stamp duty and registration charges will be payable?
Ans: In terms of Section 4 of the Maharashtra Ownership Flats Act, an agreement by a builder has to be stamped and registered. If the flat has been given to you by a builder on the basis of an allotment letter issued by the society, such an allotment letter has to be stamped as per the provisions of Article 25 of the Bombay Stamp Act effective from 1.5.1993. In view of the amendment to the Indian Registration Act with effect from 24.9.2001, read with the provisions of the Maharashtra Ownership Flats Act, such an instrument has to be, necessarily, registered. Since you have acquired the flat from the builder or the society in the year 2007, a proper instrument of allotment has to be executed in your favour, duly stamped and registered. Since the plot in question has been allotted by CIDCO to a society for the flats to its members, CIDCO permission for your becoming the member of the society on payment of the transfer charges, as prescribed by CIDCO, is necessary. At the time of the resale of the flat, fresh Deed of Assignment will have to be stamped and registered to pass on a valid title to the buyer, with CIDCO approval of the name of the buyer as the incoming member of the society on payment of transfer charges. You may take the advantage of the present Amnesty Scheme announced by the State Govt. to have a proper instrument of title registered in your name by paying a token penalty.
Q (140): We four friends have been jointly allotted a 300 sqmtr. Plot by CIDCO at Vashi and we all are financing the four storeyed construction from our own sources or through the financial assistance from the housing finance companies or the banks. We all have decided amongst ourselves about the ownership of each floor by way of a declaration executed on a stamp paper of Rs.100/-. Please advise whether any one of us will have any problem in case of resale of our floor to a buyer in future?
Ans: The entire property is in the joint names of all of you and each one of you will not become sole owner of a particular floor on the basis of a declaration executed on a stamp paper of Rs.100/-. You all will have to execute a settlement deed duly stamped and registered and, thereafter you may subject the property to the provisions of Maharashtra Apartment Ownership Act 1970. In the alternative, you may form a private limited company and convey the property jointly to the said company and as directors, you may issue the allotment letter and share certificate in the name of each one of you for a particular floor, as may be decided. Since the plot in question is on lease hold basis from CIDCO, you will be required to obtain CIDCO transfer in the name of each one of you for a particular floor and then only your name will appear in the records of NMMC, MSEB etc. as the owners of particular floors.
Q (141): I was holding a flat in a registered society and due to family requirements and other circumstances, I have purchased two more flats in my name in the same society. Please clarify whether I will have one vote or three votes in the general body meetings of the society?
Ans: The holding of more than one flat in a society has nothing to do with the voting rights of a member. In terms of bye law No.107 of the model bye laws, you will be having only one vote inspite of your holding three flats in the Society.
Q (142): One of my colleagues applied for a housing loan to a housing finance company and as per the rules of the company, one guarantor for the loan was necessary. Since he was my colleague for more than 15 years, I gave the guarantee for him to the said housing finance company and executed the necessary documents. However, due to sudden change of circumstances, my colleague has not be able to keep his commitments with the housing finance company and his loan amount has gone into default. The housing finance company has sent me a notice for the repayment of the dues, failing which they have threatened to initiate legal action against me. I would like to know that without proceeding against my colleague or recovering the dues from the sale of the flat, whether they can recover the money from me?
The liability of a guarantor is co-existent with that of the principal borrower and, therefore, the housing finance company has a full legal right to proceed against a guarantor for the recovery of its dues, even without proceeding against the defaulter or with the sale of the property mortgaged to it. It would be advisable for you to prevail upon your colleague to settle the matter with the housing finance company so that you may come out of this ackward situation.
Q (143): We were having a HUF with my father as the Karta. My father has now expired and we want to continue with the HUF, which now consists of two brothers, one sister and our mother. Please advise what formalities will be required to be complied with to continue the same HUF?
Ans: On the death of one of the co-parceners, the HUF property is deemed to have been partitioned amongst all the co-parceners. In your case, the share of your father will be succeeded by all of you. You may continue with the HUF and in that case, a fresh PAN Number should be obtained and this change in the name of the Karta should be intimated to the banks of the HUF and the income tax department and other authorities. If necessary, a declaration in the form of an affidavit may be submitted to these authorities.
Q (144): I am planning to purchase a flat in Kendriya Vihar Cooperative Housing Society, in Kharghar, Navi Mumbai. I am told that I will have to obtain CIDCO Transfer NOC on payment of transfer charges, in addition to the transfer charges to be levied by the Society. Is it correct?
Ans: The plot in question has been allotted by CIDCO to the Kendriya Vihar CHS on lease hold basis for the flats to its members and as per the terms and conditions of the allotment, CIDCO prior approval is necessary in case there is any change in the membership of the society. Therefore, you will have to obtain membership approval from CIDCO in place of the seller on payment of transfer charges. As per the bye laws of the society, you may also have to bear the transfer charges to be levied by the society. However, I am of the view that the Co-operative Housing Societies may have a considerate view and with the approval in the general body meeting fix some nominal transfer charges, within the ceiling of Rs.25,000/-, to provide relief to the members from such double payment.
Q (145): I lost the share certificate issued to me by the society, which issued a duplicate after following the due procedure i.e. Public Notice in news papers, Indemnity Bond from me etc. Recently, I have applied for a loan to a Bank, which is treating my case “as a loss of document case” and asking me to lodge a police complaint about the loss of the share certificate and issue a fresh public notice through their advocate and submit another indemnity bond. Whether is it necessary?
Ans: In my opinion, the bank should not insist for these requirements, when the society has issued a duplicate share certificate, after following the due procedure as per the bye laws of the society and accept the duplicate certificate issued by the society, along with all other title deeds in chain as a security for loan, for compliance of all other formalities.
Q (146): I am negotiating to purchase a flat in a society at Kopar Khairane, Navi Mumbai. The plot in question was allotted by CIDCO to the Builders as a tender plot and the Builders registered the society and handed over the property to the society. When I approached the managing committee for their NOC, they have asked me to obtain CIDCO transfer NOC also on payment of transfer charges. Please advise whether CIDCO transfer NOC is essential for the purchase of a flat in a society in respect of a tender plot?
Ans: In case of a plot allotted by CIDCO to a Builder on the basis of highest bid, the premium payable by the Builders is the market value of the plot and a Builder of a tender plot is permitted by CIDCO to sell the flats to the intending buyers and to have a lease directly in the name of the society. Therefore in my opinion, CIDCO transfer NOC, on payment of transfer charges for the resale of a flat in a society on a tender plot, should not be necessary. In such cases, the society may intimate CIDCO about the change in the name of the member and in case, CIDCO ask for the transfer charges, the matter should be taken up with CIDCO not to insist for the same in such cases.
Q (147): I would like to know the following:-
a) Whether the Society can change any amount to issue NOC to give my flat on leave and license basis and whether they can pass any resolution either in the managing committee meeting or the general body meeting to levy such charge?
b) Whether to levy more than 10% of the service charges in case of sub-letting is legally justified?
c) I have given my flat on leave and license basis and, therefore, not staying in the flat. Whether I may become a committee member?
d) Whether it is necessary to obtain NOC from the Society to give the flat on leave and license basis?
e) Is it necessary to register the leave and license agreement?
Vindo L. Jinde
Ans: a) Even with the approval of the managing committee or the general body, the Society cannot charge any amount for issuing NOC to give the flat on leave and license basis.
b) The Society cannot charge more than 10% of the monthly service charges as non-occupancy charges, as per the circular issued by the State Government and upheld by the Bombay High Court.
c) You may contest the election for the managing committee inspite of the fact that you are not staying in the flat. A member has the right to contest the election to the managing committee whether he stays in the flat or not.
d) In terms of Bye Law No.43 of the model bye laws, society’s permission is necessary for sub-letting the flat.
e) In terms of Section 55 of the Maharashtra Rent Control Act, a leave and license agreement has to be writing and registered. In terms of Article 36 A of the Bombay Stamp Act, it has to be stamped accordingly.
Q 148: I purchased an apartment for Rs.15,50,000/- at New Panvel. I paid an advance of Rs.1 lakh and balance was to be paid through the loan from the bank. The agreement has been duly registered on 16.10.2007 and I have spent Rs.81,200/- towards stamp duty and Rs.19,000/- on registration charges etc. The sale transaction was to be completed within 45 days of the agreement, which stipulates that no party had the right to cancel the transaction. In the second week of November 2007, the vendor threatened me and my estate agent to cancel the deal and in case of failure, to face the consequences. The vendor has returned my token money with registration charges and some extra amount, but did not return the stamp duty Rs.81,200/-. My estate agent confirmed that this amount may be shown towards the payment of stamp duty for any other property purchased in New Panvel within a period of six months. But due to financial problems, I could not purchase any other property. I want to know what is the option available to me to get the amount of stamp duty back.
Ans: The advice of your estate agent about utilizing the stamp duty of Rs.81,200/- for some other property transaction within a period of six months is not correct. The only option for you at this stage is to proceed against the vendor in a court of law to compensate you for the loss suffered by you, provided it can be proved that the transaction was cancelled by the vendor.
Q 149: In New Bombay Customs & Excise Directorate of Inspection provided residential accommodation to its employees in the apartments purchased by it in different housing societies. But the problem is that when the apartments are vacant, no payment is made by the said Department towards the monthly maintenance charges and their share of the cost of repairs etc. How to recover the dues from the said Department?
Ans: You can move the Joint Registrar of the Cooperative Societies for the recovery of the dues as land revenue as provided in Section 101 of the Maharashtra Cooperative Societies Act 1960. In case of persistent failure to pay the dues of the society, Society may initiate expulsion proceedings against such defaulted members, as per the provisions of Model Bye Laws No.51 to 56.
Q 150: I would like the clarification on the following points:
a) A member does not attend the meeting inspite of proper intimation.
b) The shop keepers are not attending the meetings and not paying the maintenance charges inspite of providing electricity and water supply to them.
c) The Builders acquired the plot from four plot owners for constructing the building, but according to him he is unable to execute the conveyance deed because two plot owners are not cooperating for this purpose.
d) If the conveyance deed is executed, who will be responsible for making payment to CIDCO, the Builders or members or the society.
A Regular Reader
Ans: a) There is no compulsion on the part of an ordinary member of a society to attend the general body meetings. If you mean a managing committee member, such a member would cease to be the member of the committee, if he fails to attend any three consecutive monthly meetings without the leave of absence from the committee as per the provisions of Bye law No.120 of the model bye laws.
b) The society can recover the maintenance charges from the defaulting shop keeper members by approaching the Joint Registrar of Societies as per the provisions of Section 101 of the Maharashtra Cooperative Societies Act 1960 and incase of persistent dafault may initiate expulsion proceedings against them as per the bye law No.51 to 56.
c) In terms of Section 11 of the Maharashtra Ownership Flats Act, a Builder has to convey the property to the Society within the period prescribed. In case of breach of the provisions of the said Act, a criminal complaint may be filed against him as per the Section 13 of the said Act. However, on 25th February 2008 the President of India has approved several amendments to the said Act, whereby the Society may approach the Dy.Registrar for unilateral deemed conveyance after these amendments are notified and the necessary infrastructure is created by the State Government. Nevertheless, it is for the Builder to sort out the matter with the plot owners for discharging his legal obligations and can’t take the so called non-cooperative attitude of two plot owners as an excuse.
d) It seems the plot is on lease hold basis from CIDCO from the category of society plots, and there have been changes in the membership of the society. Therefore, all these expenses etc. have to be borne by the Builder or the purchaser, as provided in the individual agreements for sale. Usually, such expenses are paid by the flat purchasers.
Q 151: As per Societies bye laws a member who has sub-let his/her flat, he/she is debarred from contesting elections to the managing committee. In such a case, is he or she eligible to continue as a member of the managing committee?
Ans: In terms of bye law No.120, such a member shall cease to be a member of the committee and such a decision has to be conveyed to the members and the Registrar of Societies. On the receipt of the order of Registrar, such member cannot continue as a member of the Managing Committee.
Q 152: I am planning to buy a flat in a building built on a Gaothan plot acquired by the Builder by way of a Tripartite Agreement. The society has been registered and according to owners of the flats, CIDCO transfer cannot be done unless 60% of the flat owners are ready for it. My questions are:
a) What is this Tripartite Plot?
b) What documents should I check before buying the flat?
c) Will I be the complete owner of the flat on the registration of the agreement for resale and obtaining the membership of the society and the share certificate in my name?
Ans: a) When a Gaothan plot allotted to a project affected person by CIDCO is acquired by a Builder or a Society, such transfer is permitted by CIDCO, on payment of prescribed transfer charges for the plot, by way of a tripartite agreement.
b) You should verify that there is a proper agreement for sale duly executed and registered in the name of the vendor and his name is approved by CIDCO as the member of the society and the society has enrolled him as a member. Since it is a case of resale, you should also verify that the occupancy certificate has been issued and the society is prepared to take you as the member in case of purchase of the flat and on the compliance of the requirements for the membership.
c) You will be the owner of the flat on the registration of the agreement for sale and obtaining the membership of the society and the share certificate, provided your name has been approved as the member of the society by CIDCO on payment of transfer charges in place of the vendor.
Q 153: We are living in a flat for over 22 years. Now we are looking to relocate outselves and sell our flat. The price offered is about Rs.40 lakhs. The flat is actually on a “Pagady System”. I am not aware about the English term used for this Pagady System. The problem is that our land-lord is demanding 33% of the sale price, which works out to about Rs.13 lakhs and without which he is not ready to transfer the bill in the name of the buyer. Is there a way that we can sell this flat without making the payment of Rs.13 lakhs to the land-lord and if so, under what legal provision we may force the land-lord to transfer the bill in the name of the buyer?
Ans: By Pagady System means that you are merely a tenant under the Maharashtra Rent Control Act on the monthly tenancy basis. Thus you are not the owner of the flat to enable you to sell your right, title, interest in this flat to a buyer. Similarly, as per the provisions of the said Act, you cannot create sub-tenancy in the same flat or transfer the tenancy without the permission of the land-lord.
Q 154: I have purchased a Flat directly from a registered cooperative society holding the land directly in its name. I was given to understand that allotment letter need not be registered. Now I am being asked to get the allotment letter registered, which means payment of stamp duty etc. I want to know whether such agreement needs to be registered or not?
Ans: In terms of Article 25 of Bombay Stamp Act when a flat is allotted even by a society to its member, such an instrument attracts stamp duty with effect from 1.5.1993 as per the provisions of Article 25 (d) (1) of the Bombay Stamp Act and in view of the amendment to the Indian Registration Act with effect from 24.9.2001, read with the provisions of Maharashtra Ownership Flats Act, such an instrument has to be, necessarily, registered. You may avail of the opportunity provided by the present Amanesty Scheme and get a proper instrument registered in your name.
Q (155): Ours is a registered industrial society in Andheri (East) comprising of 14 members, out of whom 5 members have given their galas on leave and license basis without permission of the society though they are paying their contributions. Two galas have been given to reputed multi-national fast food restaurants, two to call-centres and one to a printing unit. What action can be taken to avoid giving the galas on leave and license basis without permission and what is recourse in respect of these 5 members? We understand that where members give their flat etc. on leave and license basis, an additional sum can be charged to them. Can this be done?
Kapadia Industrial Premises CHS
Ans: The galas cannot be given on leave and license basis without the NOC from the society which, while giving the permission, has to take into account all factors such as parking problem, hygiene etc. etc. Where the members have given the galas on leave and license basis without the permission of the society, such members will not be eligible to contest election to the managing committee or for co-option and besides that, the society can initiate expulsion proceedings against such members as per the provisions of the bye laws.
Q (156): This is regarding your clarification in the last week DNA, Navi Mumbai, that the service charges for the flats in a society should not be based on built-up area. How to remedy the situation if the society insist on built up area based service charges inspite of the provisions of bye law No.67 to 72?
Ans: The decision of a society to charge the service charges on the basis of built up area being in contravention to the said bye laws is not legally valid and enforceable. The members may approach the Joint Registrar of Co-op. Societies to intervene in the matter and issue an appropriate directive to the society to follow the bye-laws of the society.
Q 157: I would like to know if the society changes water line and goes for new connection from 1” to 1 ½” connection whether the members should be charged equally or on the basis of built-up area of the flats. Where I can get a copy of the new bye laws of the society?
Ans: The change of the water line from 1” to 1 ½” connection would fall in the category of repairs and maintenance of the building of the society and such expenses have to be charged as per model bye law No.69(a)(iii) on the basis of construction cost of each flat. You may obtain a copy of the new model bye-laws from the office of Federation of Cooperative Societies. on the 3rd Floor, in Big Splash Building, (above Murugan Store), Sector-17, Vashi, Navi Mumbai, Tel.No.27897301.
Q (158): I have booked a flat at Sanpada in 2006 and my problem is that the builder is asking Rs.2,00,000/- for open parking though, as per law, he cannot sell open parking, as well as stilt parking. The builder is also asking me to pay him Rs.1,00,000/- for club membership, but he is not issuing me a demand letter so that I can raise the money from the bank. In the sale agreement, it is provided that the builder will charge separately for club house but in the Annexure-A he has shown it as a free amenity. He is also demanding Rs.80,000/- in cash for delayed payment, without issuing a letter to me. What should I do?
Sudhir S. Sonavane
Ans: You have rightly mentioned that the builder has no right to sell the open parking as well as stilt parking, and his demand for Rs.2,00,000/- for open parking is not legally valid. Similarly, if he has shown the club membership as a free amenity, he cannot charge for the same. He has to give the details of delayed payment charges demanded from you. These demands seem to be unjustified and you may proceed against him in a court of law to abide by the terms and conditions of the purchase of the flat and the legal provision in this regard.
Q (159): I am not aware with regard to the risk involved in purchasing a flat on a gaothan plot. What is this tripartite agreement? Whether a builder has the right to sell the flats or only he has the development rights. If society is not formed then what is the risk?
Ans: The gaothan plots are allotted by CIDCO to project affected persons primarily for their own use but they can transfer their right, title and interest in such plots with the permission of CIDCO on payment of transfer charges by way of the tripartite agreement by CIDCO in the name of a builder. In such a case, a builder stands in the shoe of the original allottee and he can sell the flats only with permission of CIDCO, which is made available on payment of transfer charges after the completion of the construction, issuance of occupancy certificate and execution of the lease deed. Therefore if a flat is purchased in a building on such a plot without the permission of CIDCO, the title of the purchaser will not be clear and legally valid.
Q (160): We are living in a CIDCO built NL-6 Apartment constructed in the year 1984 and our association is covered by the rules framed under Maharashtra Apartment Ownership Act, 1970. Recently, the transfer fee for the sale of an apartment has been increased by the present managing committee from existing Rs.5000/- to Rs.25,000/- by issuing a notice to all the members of the association, without calling for a AGM/EGM for the said purpose. Is the decision of the managing committee justified? What should be the amount of transfer fee on sale of an apartment admeasuring 54.03 sq.mtr.?
Ans: The question of the justification of the decision of the Managing Committee (Board of Managers) may be raised in the Annual Meeting of the Association for which a prior instruction be given to include this item in Agenda or when any other business is called for discussion by the President. A majority of the owners may also give a petition to the Secretary to convene a Special Meeting to discuss the issue. The decision in the Annual or Special meeting shall be final and binding on all the Owners.
Q (161): I purchased a flat in the year 2002 and when the share certificate was issued by the society in the year 2005, it was noticed that my name has been wrongly spelt as S.M.Damodharan, instead of S.N.Damodharan. The similar mistake was observed in CIDCO transfer letter. When I approached CIDCO for the correction of the name, they clarified that the transfer letter was issued as per the request letter of the society and, therefore, necessary correction should made first in the share certificate and the society should inform CIDCO for the correction. The society is not taking any action on my application for the correction of my name in the share certificate and CIDCO record. What shall I do to correct this anomaly?
Ans: You may approach the Joint Registrar of the Cooperative Societies to intervene in the matter and to issue necessary directive to the society to correct your name on the basis of the documents to be submitted by you in support of your correct name as Damodharan S.N. and to take up the matter with CIDCO for such correction.
Q (162): I am staying in a flat at Vashi, which belongs to my in-laws, but they had given it to me. But now they are insisting for the transfer of the flat in the name of their daughter. Kindly advise?
Ans: The facts given by you are incomplete. In any case, if the flat has been given to you by way of a registered deed of assignment, they now cannot insist for the transfer of the same in the name of their daughter (presumably your wife). However, if your want to transfer this flat in her name, you can do so by way of a gift deed, which would attract stamp duty @ 2% on the present market value of the flat and registration charges @ 1% thereon.
Q (163): My queries are as under:-
We are living in a building for the last 3 years and the builder has not yet formed the society, though we have already signed the documents for the formation of the society and we have selected the chief promoter for the society. We have to pay to the builder maintenance charges every six months in advance and whether we may compel him to form the society by not paying the maintenance charges.
Ans: A builder has to register the society as per Section 10 of the Maharashtra Ownership Flats Act, as soon as minimum number of the persons required to form a society have taken flats and has to convey the title to the society. The non-payment of maintenance charges, as a tool to compel the builder to register the society, will not be advisable, as it may create more problems for the occupants. The purchasers may proceed against the Builder by way of a criminal complaint for the breach of the legal provisions for not registering the society or in the alternative, the purchasers may themselves take the initiative and get the society registered by complying with the required formalities.
Q (164): What is the maximum amount that can be charged as non-occupancy charges for sub-letting? Out of 10 open parking slots, Builder has already sold three slots. Whether the society has the right to sell the remaining seven open parking slots to the members, who do not have the parking slots?
Ans: The non-occupancy charges cannot be more than 10% of the monthly service charges, as per the circular of the State Government and upheld by Hon’ble Bombay High Court. A Builder has got no right to sell the open parking slots and such sale is not binding on the society. Similarly, society also cannot sell the parking slots to the members. It can only allot the same to the members of the society as per the provisions of bye laws No.78 to 85.
Q (165): The Builder has not handed over the papers. Can we approach the consumer court for a quick settlement? Please inform us where we can get a copy of new bye laws.
Ans: In terms of section 11 of the Maharashtra Ownership Flats Act, the Builder has to convey the title to the society and to hand over all the documents relating to the property to the society within a period of 4 months as provided in Rule No 9 framed under the said act. You can obtain a copy of the model bye laws from the office of Federation of the Cooperative Societies on the 3rd Floor, in Big Splash Building, above Murugan Store, Sector-17, Vashi. Tel.No.27897301.
Q (166): Our society of 80 members was separated from the parent society of 554 members, because of the distance of 1 KM from the parent society through the Joint Registrar of Societies after completing all the necessary formalities. The plot was allotted by CIDCO from the category of society plots. CIDCO NOC for the separation from the parent society was not obtained, but the Joint Registrar, after registration of our separate society, had sent the intimation to CIDCO as well as the parent society about 3 years ago. Since then CIDCO has been accepting membership transfer charges on the basis of NOC from our separated society of 80 members. Suddenly CIDCO has sent a notice to our society that we had not taken permission from CIDCO for the separation of the society. Please advise.
Ans: The fact of separation of your society has become a fait-accompli and in my opinion, CIDCO at this stage cannot raise any objection when due intimation was sent by the Joint Registrar and CIDCO was accepting the transfer charges on the basis of NOC from your separated society for a long period of 3 years. Your society may take up the matter with some senior official concerned to review the matter in the light of these facts and to withdraw the notice.
I executed a Power of Attorney in favour my brother for the sale of my Flat and executing the necessary documents. As per the practice, I fixed his photograph and obtained his signature thereon and went to the Office of Sub-Registrar for the registration of the Power of Attorney, but the Sub-Registrar insisted for the presence of my brother for the purpose of registration. I would like to know whether it is necessary for the attorney to appear before the Sub-Registrar for this purpose?
A Power of Attorney is a document which is executed unilaterally and the attorney is not the party to such document. The practice of fixing the photograph and obtaining the signatures is merely for the purpose of identification. Therefore, the presence of your brother for the purposes of registration is uncalled for and not necessary.
Our building is on a Society Plot and only Allotment Letters and Share Certificates have been issued by the managing committee, comprising of outgoing members. A few days before our society received a letter from CIDCO for transfer of membership. I want to know whether Allotment Letter and Share Certificate, signed by the out-going committee members, is valid and whether it should now be registered under the amnesty scheme.
– Rajesh Kumar,
In case of allotment of flats in a building constructed on a plot allotted by CIDCO to a Society, the names of the members of the Society are approved by CIDCO and any change in the membership or the enrolment of additional members, CIDCO approval is necessary on payment of transfer charges as per the terms and conditions of the allotment of the plot to the Societies by CIDCO. From 1st May, 1993, the Allotment Letter by the Society to its members needs stamp duty as per provisi9ons of Article 25 of the Bombay Stamp Act and such an instrument needs registration after September 2001. Such cases are not covered under the present Amnesty Scheme and you will have to go for the normal process of adjudication.
Our Society conducted election for the managing committee comprising of six male and one female member as per the bye laws adopted by the society for a period of 5 years. During the nomination process, only four names of the male members were received and thus all the four were declared elected. The members were requested by way of a circular for their consent to fill up the vacancy of male members and one female member. Three male members submitted their consent and one female member, who is the second joint holder of the flat submitted her consent. You are requested to clarify whether she can be co-opted as a member against the vacancy of one female member or that seat may be kept vacant for 5 years or could be filled by the co-option of any male member?
In terms of Bye-law No.116 of the Model Bye-laws if the general body meeting fails to elect the required number of members to constitute the committee, the elected members could fill the vacancy by co-option irrespective of the quorum. The female member, being a joint owner, could be co-opted if the original male member submits a no objection certificate and undertaking to the society as per the Appendix 10-A to the said Bye-laws.
The building has been constructed on a tender plot allotted by CIDCO and the occupancy certificate has been issued by NMMC in April 2007. The Flat in question has been purchased by the present seller by way of a registered agreement executed in March 2007 and possession given to him in August 2007. The registration of the society is in process. I would like to know that since the first sale agreement has been executed in March 2007, will I require to pay the stamp duty for the purchase of this Flat only on the additional value or on the full value of the Flat. Will I will be required to obtain CIDCO Transfer NOC after the agreement of resale or sale deed is executed by the seller in my name?
– Prof. Swaminthan N.
In terms of Article 5 (g) (ii) of the Bombay Stamp Act, stamp duty will be required to be paid on the additional value of the flat at the time repurchase in your name. However, this time limit of 3 years provided in the said Article has now been reduced to one year by June 2008 Amendment prospectively. Since it is a case of a flat in a building constructed on a tender plot and the society has not yet been registered, the question of CIDCO permission in your name at this stage will not arise.
Our building is constructed on a tender plot and the society is registered in the year 2003. The Conveyance Deed has not yet been executed by the builders in favour of the society. The builder is not prepared to bear the expenses of stamp duty and registration charges to be levied on the conveyance deed. Who has to pay these charges?
Normally such charges are mentioned in the agreements for sale executed by the builders at the time of the purchase of the flats and these charges are recovered by the builders under various heads and as miscellaneous charges. In terms of the provisions of Maharashtra Ownership Flats Act 1963, read with the Rules of 1964, it is the responsibility of the builders to execute the conveyance within 4 months from the date on which the cooperative society is registered. If the builder has not recovered the expenses for this purpose from the individual purchasers, the individual members may have to bear the same. As per Section 5 of the said Act, a builder has to maintain a separate account for all the charges so recovered by him and he has to make full and true disclosure of the same. In case the builder is not discharging his responsibilities as per the terms of the agreement for sale and the said legal provisions, society may proceed against him by way of criminal complaint as provided in the said Act..
The building of our society is more than 25 years old and require urgent repairs but many members are not prepared to contribute towards the expenses. Is there any rule by which the members may be compelled to make the payment.
– Sucheta Pradhan
The maintenance of the building is the responsibility of the society as provided in Bye-law No.156 of the Model Bye-laws and society is empowered as per Bye law No.67 of the said Bye-laws, to collect the contribution towards repairs and maintenance fund from the members. In case of the failure by a member to make the payment of the bill or the demand notice in full within the time fixed by the committee, the society can levy simple interest, which may be fixed by the general body, subject to a maximum of 21% per annum. In case of default the society may approach the Joint Registrar of Cooperative Societies for the recovery certificate as per the provisions of section 101 of the Maharashtra Cooperative Societies Act. In case of persistent failure to pay the dues, Society may proceed with the expulsion of such member, as provided in the Bye-laws.
I have purchased a Flat in the ‘Sterling CHS Ltd.,’ wherein the building has been constructed on a plot allotted by CIDCO from the category of society plot. The society was formed with 13 members with permission to build 13 units of row type and the occupancy certificate was issued by CIDCO. I have purchased the flat in J block wherein 4 units have been constructed instead of one. On the resale of the flats none of the purchasers got their names transferred by CIDCO. My seller was second owner and since the original owner did not enroll with CIDCO, my seller paid the charges for both and CIDCO, whose name has been approved as an additional member and issued a certificate. When I applied to CIDCO for the approval of my name, CIDCO raised the objection that since the permission was given for 13 units for 13 members, how the 40 units have been constructed. The papers relating to the approval of the name of the original member and my seller as additional member is not traceable in the office of CIDCO due to the shifting of the files from CIDCO Belapur to CIDCO Panvel. Since I have taken a loan from a Bank after satisfying about the approval of the name of the seller by CIDCO, will there be any problem for me in getting the NOC from CIDCO.
It is the responsibility of CIDCO to trace the files and the records or to build the same from the documents to be supplied by you and the society and approve your name as a member of the society on the compliance of the formalities and the payment of transfer charges. As regards the right, title and interest in the unit purchased by you, if it has been constructed outside the permissible FSI and against the sanctioned building plant, CIDCO/NMMC may take action against such unauthorized construction and the approval of your membership by CIDCO to the society will not provide any defence to you.
Our society was registered in the year 1999 and the building consists of both shops and residential flats. One of the owners of the shop has suddenly disappeared from the year 2000 and his whereabouts are not known and all efforts to locate him proved futile. The shop is lying empty and no one has claimed the shares or the interest for this particular shop. Whether this issue can be resolved as per the Bye-law 35 of model Bye-laws. The conveyance deed has not yet been registered in favour of the society and whether the society can auction the property.
– Narayan Shetty
In terms of Bye-law No.35 if there is no claim for the share and interest of the deceased member, the property vests in the society and not in case of a missing person. A person is presumed dead after the expiry of a period of 7 years as per the provisions of Section 108 of the Indian Evidence Act on the basis of the court order. The flat cannot be auctioned by the society and proceeds appropriated till the ownership of the building is transferred to the society by way of conveyance deed. In such a situation, society may proceed with the expulsion of the shop owner member as per provision of Bye-laws No.51 to 55.
I would lke to know whether an associate member can become a member of the managing committee of a registered Society on the strength of NOC from the principal member, who is neither minor nor handicapped?
– L.M. Gavli
As provided by Clause (V) of Bye-law No.118, an associate member may become the member of the managing committee after a no objection certificate with an undertaking is given by the original member in the format as per Appendix 10-A of the Model Bye-laws.
I was married more than seven years ago and I have a five year old son. Now my in-laws and husband do not want me the alleged ground of mental disorder and they do not allow me to live in the matrimonial house. I have filed a case against my husband and father-in-law in the family court, which passed an order to pay Rs.5000/- per month as interim maintenance, which they have not paid. The Flat is in the joint names of my husband and father-in-law. My father-in-law has replied that my husband has gifted his right, title and interest in the said flat to his mother at by a registered Gift Deed dated 7.12.2007 and thus my mother-in-law and father-in-law are the legal owners of the flat. I want to know whether my husband can gift his share to his mother without my consent, when I am his legally wedded wife and I am eager to live in the matrimonial house with my son?
As regards your family court case, your advocate will take care of your interest as per the provisions of law. The flat in question seems to be a self-acquired property jointly owned by your husband and father-in-law. Therefore, your husband is fully competent and legally entitled during his life time to gift his share to anybody, including the mother, and the consent of his legal heirs i.e. yourself and his son is not necessary. Under Hindu law, no consent of legal heirs is legally necessary for the disposal of a self-acquired property during the life time of the owner.
(a) My mother owns a flat in a Society and I have been staying with her with my wife and son for the last 22 years and taking care of the house-hold expenses and paying all the bills relating to the flat. My father expired in the year 2004. In May 2008, my mother has gifted this Flat to her daughter (my sister) and asked me and my wife and son to move out. Please let me know what rights we three of us have over this flat.?
(b) I have purchased a Flat in a building constructed on a plot allotted by CIDCO under 12.5% GES. A Society has already been registered and the allottee of the plot has applied to CIDCO for the transfer of the propery in favour of the Society and has paid the necessary transfer fee. However the office bearers of the Society being the family members of the Builders, are not cooperating to complete the formalities for the transfer of the property to the society. As the property is not yet transferred in favour of the society, CIDCO is not ready to transfer flat in the name of the new purchaser. What step we should take for the transfer of the flat?
– K.C. Cherian
(a) The flat in question seems to be the self-acquired property of your mother and she is fully competent in law to give the same to anyone, including her daughter, and you or your family member cannot prevent her from gifting the flat to your sister and any legal proceedings to prevent her to gift the flat to your sister will not be sustainable.
(b) When the allottee of the plot has applied to CIDCO and paid transfer charges, CIDCO will execute the lease deed of the entire property in favour of the said allottee, if the occupancy certificate has already been issued. In the alternative, the said allottee may have the lease deed executed by CIDCO in favour of the society, by himself becoming a confirming party, to avoid the necessity of another deed of assignment by the allottee to the society. Where a society is already registered, CIDCO permits outgoing-incoming membership approval (i.e. the transfer of the flat in the name of the new owner) on payment of transfer charges, even where the lease deed has not been executed.
Our society is registered in the year 1996 and the building consists of 68 units held by way of duly registered instruments. We have sent the necessary documents, list of members, statement of payments towards stamp duty and registration charges to the builders M/s.Charisma Builders, Chembur, Mumbai, on 5.7.2006. Till date the Builder has not executed the conveyance deed in favour of the society. The Builder has also collected an amount of Rs.1,46,630/- from the members @ 1% towards estimated registration charges for the conveyance in the year 1995. What we should do?
As per the provisions of Rule 9 of the Maharashtra Ownership Flats Rules 1964, a builder has to execute the conveyance deed within 4 months from the date on which the society is registered and in terms of section 11 of the Maharashtra Ownership Flats Act 1963, the builder has to convey title and to execute the documents in favour of the society within the said prescribed period. In case of his failure, proceedings may be initiated against the builders as per the provisions of Section 13 of the said Act.
I have booked a 2 BHK Flat in January 2005 and as per the agreement the builder was supposed to give the possession by August 2005. The construction was completed upto 95% in April 2006 and, thereafter, the work has slowed down by the builder. Whenever we contacted the builder, his excuse has been that he is not getting the completion certificate from NMMC. In February 2008, he asked the Flat owners that if they wanted the possession they should pay @ Rs.72.50 per sqft of the flat and sign an indemnity bond permitting him to sell the open parking to the members. He is asking Rs.1.5 lakhs for car parking and Rs.50,000/- for scooter parking. I wanted to give my flat on rent and the builder is asking @ Rs.1/- per sqft of the flat for the NOC, in addition to maintenance charges @ Rs.2/- per sft. of the flat. Please advise the steps to get the completion certificate from NMMC and whether builder can sell the open parking when he forced the purchasers to sign the indemnity bond and what should be the charges for a flat to give on rent?
Shiv Raj Kumar
For delaying the possession and asking additional amount, you may proceed against the builder as per the provisions of Maharashtra Ownership Flat Act 1963. In the alternative, you may also seek suitable relief by way of a petition in the consumer forum. It is the responsibility of the builder to obtain the occupancy certificate from NMMC by complying with the necessary formalities. The builder is not legally entitled to sell the open parking inspite of the fact that he has obtained the indemnity bond from the purchasers. The non-occupancy charges to be levied by a society have been fixed at the rate of 10% of monthly service charges. A builder can’t charge exhorbitant amount as non-occupancy charges.
I purchased a Flat in Seawoods, Sector-44 in Nerul in 2006 on a Gaothan Plot allotted by CIDCO to three persons. The builder did not get the plot transferred in his name from these allottees. The construction of the building is complete and as per the agreement between the allottees and the builders, the flats have been sold by both of them from their respective shares. Since the plot is still in the name of these 3 persons, how to get the plot and the flats transferred and society registered?
– Mukund Bhave
The agreement between the builders and these allottees was not legally valid without the permission of CIDCO. These allottees may apply to CIDCO for the execution of the lease deed in their favour and after the registration of the society, they may execute the deed of assignment in favour of the society. The names of the purchasers of the Flats will automatically be approved by CIDCO at the time of registration of the society. In the alternative, a Society may be registered first and these allottees may have the lease deed executed by CIDCO in favour of the Society.
(a) Kendriya Vihar Kharghar was constructed by CGEWO in 1998. The stilt was sold as parking area and the members are erecting grills and rolling gate structures on the pretext of prevention of vandalism to their vehicles, though the enclosed area is used for storing material. In fact, there was one incident of fire, the result of which could be quite damaging not only to the owner of the still owner but to the owner of the dwelling unit, which is above it.
(b) The members are enclosing common areas in front of their dwelling entrance on the pretext of safety of senior citizens and family members during odd hours, though the enclosed area is used for storing shoe rakes etc.
Whether after giving proper notice and with the approval of the general body, society can charge rehabilitation cost for enclosing the stilt and rent for the additional area enclosed by the members?
– R.C. Pant
The members of the society cannot enclose the stilt parking by putting grills and rolling gate structures and, similarly, the members cannot enclose the common area in front of their entrance door. As per the development rules, stilt have to be kept open and cannot be converted into garages and all common areas are meant to remain open and cannot be enclosed by putting fencing etc. Besides Development Control Rules, the plot is on lease-hold basis from CIDCO and terms and conditions of lease prohibit any such nuisance or use of land or part for the purpose other than for which leased out or given. The society has no authority in law, even with the approval of the general body, to approve such activities by the members by charging rehabilitation cost or the rent. Any such decision shall not be sustainable in law.
I purchased a Flat in 1985 and taken the loan from the Bank which took the original agreement etc. as security. I cleared the loan to the Bank, but did not get the original documents. Whenever I approached them, I have been told to go to the Registrar Office at Thane to obtain the documents. When I approach Registrar Office at Thane they have informed me that the agreement is at Pune office. What can I do to get back my original agreement.
Your query is a little ambiguous inasmuch as on the one hand you say that the original agreement was kept with the bank at the time of the loan and on the other, you have stated that the Registration Office at Thane has informed you that your agreement is at their Pune Office. It seems you had lodged your agreement for registration and the bank had accepted the original registration receipt, with the indemnity bond, as security for loan, which they have returned to you. All the documents lodged for registration were sent those years to Pune for micro-filming etc. and most of these documents have been received back by the respective Registration Offices. You may, therefore, contact the Registration Office, where you had lodged the agreement for registration with registration receipt and if it has not been received yet, you may contact their Pune office, whose address you may obtain from the concerned registration office. However, if you deposited your original agreement with the Bank at the time of the loan, Bank is responsible to return the same to you.
My brother wants to transfer his flat in my name. Will there be a concession in the transfer duty, as the flat transfer is by relation.
– Sunil Pawar
Your brother may transfer the flat by executing a gift deed in your favour and such a gift deed would attract stamp duty @ 2% of the present market value of the flat and registration charges at the rate of 1% if of that value. There is a ceiling of Rs.30,000/- for registration charges.
I would like to know where the husband and wife are the joint owners of three flats in a society and in all the three agreements, the name of the husband is first and wife as second. Whether both can attend the society meetings and whether both have voting rights and whether the names of both should appear on the share certificate and for how many votes we are eligible?
– Paresh K. Rohit
The husband, whose name appears first in the agreement for sale, will be the original member and the wife the second joint-holder will be enrolled as an associate member. The names of both of them may appear in the share certificate in the order as mentioned in the agreement of sale. Your husband, as the member of the society, may attend the meeting of the society; but he can authorize his wife, as the associate member, to attend the meetings. She may even contest the election for the managing committee of the society, provided the husband issues NOC and undertaking as per Appendix 10-A in the model bye laws. As per provisions of Bye-law No.107 of model Bye-laws, every member of the society and in his absence the associate member shall be entitled to one vote only at the general body meeting irrespective of the fact that the member is owning three Flats.
A had purchased a flat from the builders, which he sold to B and the amount received from B has been utilized to make final payment to the builders. B does not have any document executed between A and the builders, though he has received the share certificate with ‘A’s name first and B’s name as second. A duly registered agreement has been executed between A & B. After 13 years, B has paid CIDCO transfer charges for both i.e. A & B, because A is not traceable. B has sold this flat to C who wants a loan, whether the bank will give loan to C on these papers.
For availing a housing loan from a bank all the title deeds in chain from the root of title have to be deposited with bank for the creation of the security for the loan and to rule out the possibility of any existing equitable mortgage because of the non-submission of any one document from the chain. Therefore, a properly executed, stamped and registered deed by the builder in favour of A will also be required by the bank. It is not clear from your query how the society has issued the share certificate in the joint names of A & B without a registered valid title deed in the joint names of both of them. In case of non-availability of a particular document, if the bank is satisfied about the title, it will be in the discretion of the bank to accept such property as a security, after following the procedure of police complaint, public notice, indemnity bond with a surety for the missing document and some other collateral security to secure it interest..
Recently, I have seen an advertisement for sale of property and I am keen to buy a plot located at Indapur, Roha, Wagni, Shaluy. The advertisement claims safe investment with high monthly return. Can an individual purchase an agricultural land and should I approach an advocate to examine the genuineness of the transaction.
– Y. Sequeira
An agricultural land can be purchased in Maharashtra only by an agriculturist unless the land has been converted as non-agricultural land. You should not be tempted by such advertisements and it would always be advisable to have the title of the land thoroughly examined from an experienced advocate and thoroughly examine and consider all the prose and cones of the financial claims by such advertisements before entering into any such transaction.
Q 187: As per Bye-Laws maintenance charges are to be levied @ minimum 0.75% per annum of the construction cost of each flat. The flats were constructed in the year 1996-97 and the construction cost is not known, as the builder had not furnished any accounts. The building consists of four different types of flats of different size and the value of flats as per the sale agreements differ because of the purchase of the flats on different dates and the said cost includes a portion of the cost of the plot also. How we can arrive at a figure of construction cost of each flat?
– Penghat Kumaran
Ans: The whole objective of the levy as maintenance charges is to create funds for major structural repairs, reconstruction etc. Under these circumstances, the society may consider in the general body meeting to have the valuation of the flats from an approved valuer on an interval of each block of three years or five year or so in view of the escalation in the cost of labour and the material with the passage of time and fix the maintenance charges on such valuation as a matter of realistic approach to serve the purpose.
Q 188: I own a flat in Kharghar and while entering into an agreement for sale, I mentioned my name as the fist and my father’s name as second. I have taken a loan from HDFC Bank, which has been repaid. Now I want to change the name in the agreement as myself first and wife’s name as second. Can you tell me the procedure for the same?
Ans: You may have a gift-deed executed by your father in the name of your wife for half share in the flat in his name. Such a gift-deed would attract stamp duty @ 2% on the half of the present market value of the flat and the registration charges @ 1% of the said value, subject to a ceiling of Rs.30,000/-. If the society has also been registered, you may have such transfer registered in the records of the society, as well as CIDCO, to have the perfect title in your name along with your wife.
Q 189: One of the tenants in our society is parking his car in open parking slot stating that the owner of the flat had purchased open parking and whether the owner of the flat can park his company provided car in his open parking space. Please clarifiy.
– Amol P. Surve
Ans: It is well settled now that the open car parking or the stilt parking cannot be sold by the builders and such transactions are not legally valid and binding on the society. All such spaces i.e. open car parking and stilt car parking, ultimately, belong to the society and the society is to allot the same to the members as per the provisions of Bye-law Nos.78 to 85 of the New Model Bye-laws. If the open parking has been allotted by the society to the owner of the flat and in the NOC to let out the flat, the society has permitted the use of the parking by the tenant, he may use it otherwise not. The society may first allot the parking spaces to the owners of the flats, who owns the cars, and if there is any space available, the society may consider the allotment of the same for the company provided cars.
Q 190: I undertake statutory accounting of some of the societies in new Panvel. In some cases, I have noticed that societies are charging non- occupancy charges even in cases, where the flats are vacant, while taking the strict interpretation of the dictionary meaning of the word ‘non-occupancy’ as not occupying the flat. I am unable to convince them that the non-occupancy charges are leviable only in case, where the flat is given either on rent or leave and license basis. Plase clarify which interpretation is correct.
– One Auditor
Ans: In terms of Bye law No.43 of the new Model Bye laws when a flat or a part is permitted to be sub-let or given on leave and license basis or parting with the possession of the flat is permitted in any manner, non-occupancy charges have to be paid. A member is deemed to be in possession of the flat, even when it is vacant. Therefore, non-occupancy charges cannot be levied by the society in respect of the flats which are vacant but in possession of the owners. Thus, your interpretation is correct and in accordance with the provisions of the bye laws.
Q 191: I am staying, with my family, in a Cooperative Housing Society at Vashi for the last 5 years. We purchased this flat, which is on the top floor, from the builders in a new project. But ever since the possession of the flat, we have been facing water seepage problem from the ceiling and the walls in every room, including bath rooms during the monsoon. We complained to the builder during the maintenance period and since last two years, to the society. But none of them have taken up the remedial measures and I am afraid that the ceiling may fall down in the next monsoon. What options do I have?
– Yashwant K. Mendon
Ans: In terms of Section 7 of the Maharashtra Ownership Flats Act, 1963, the builder was under obligation to rectify all such defects within a period of 3 years from the date of the possession and in case of his failure, you could have proceeded against him by way of criminal complaint as per the provisions of section 13 of the said Act. Since that period is now over, the society is bound to take care of the proper maintenance etc. of the building.. In case the society is not paying any heed to your complaint, you may approach the Joint-Registrar of Cooperative Housing Societies with your grievance, who may, on satisfying himself about the genuineness of your complaint, may issue necessary directive to the society.
Q 192: I have purchased a Flat No.C-5/12/1:2 in CIDCO building in Sector-18 at New Panvel and my name has already been transferred in the records of CIDCO in September 2005 on the basis of conveyance deed in my name. But the society has not transferred this flat in my name till date, because the outgoing member has not paid society maintenance charges ranging Rs.12,000/- to Rs.15,000/-, However, I am paying the same with effect from September 2005, when I purchased the flat. Most of the members and the office-bearers of the society are CIDCO staff members, and inspite of my various letters to CIDCO and the society and approaching them personally, nothing has been done. How this matter can be solved?
– Rajan S. Phatak
Ans: While purchasing the flat in case of a resale in a society, though now transfer NOC is not legally necessary, you should have exercised due diligence by way of enquiry about the outstanding dues of the society, local authority, MSEB etc. As these charges are reasonable from the property, you may have to pay the same to safeguard your interest. However, if there is a clause in the conveyance deed, whereby the outgoing member/seller represented to you that all the dues up to the date of sale have been paid or shall be payable by him or her, you may legally proceed against the outgoing member/seller for recovering the said amount.
Q 193: I am staying in Kharghar for the past 3 years and the builder has not yet formed the society, though we, all the purchasers, have signed the necessary papers for the same. We pay maintenance charges for each six months to the builders. Can we stop the payment of maintenance charges to pressurize the builder to form the society?
Ans: Non-payment of maintenance charges may create the problems for the members residing in the building, as he may stop the payment of essential services like water, electricity, lift etc. In terms of section 10 of the Maharashtra Ownership Flats Act, as soon as eleven persons have purchased the flats, the builder is under an obligation to take steps for the registration of the society within a period of four months and in case of his failure, legal action may be taken against him by way of a criminal complaint as per the Section 13 of the said Act. In the alternative, the purchasers and the selected chief promoter may approach the Joint-Registrar of the Cooperative Housing Societies and comply with the formalities for the registration of the society and have the same registered.
Q 194: I took the possession of the flat in April 2005 and I am staying therein since June 2005. I have noticed the leakage in my bath room roof, which I brought to the notice of the builders and the flat owner above my flat orally and the Secretary of the Society in writing on 10th October 2006. Once the Secretary called the owner of the flat above my flat and after inspection by both, they asked me to carry out the chemical treatment from inside my bath room, instead of carrying out the same from the flat above my flat from where the leakage is originated. Thus issue was discussed again in the Annual General Body Meeting on 10th August 2008 and some of the committee members insisted that I should agree to the suggestion of carrying out the chemical treatment to the four or five places of leakage in my bath room. Is this decision correct and, if not, what should I do?
Ans: In terms of Section 7 of the Maharashtra Ownership Flats Act. 1963, the builders is under obligation to carry out the rectification to such leakages etc. upto a period of 3 years from the date of possession of the flat given by him. After the expiry of this period, the society is responsible for the proper maintenance of the building. In your case it is an individual problem and the leakage is from the flat above your flat and the same may not be plugged from inside the bath room in your flat and the remedial measures may have to be taken from the flat above your flat. The society should, after consultation with some engineer etc., ask the flat owner above your flat to take steps for immediate stoppage of the leakage to your bath room. If the society is not attending to your complaint, you may approach the Jt. Registrar of Cooperative Housing Societies for necessary directive to the society, as you have already brought this issue to the notice of the managing committee and general body and nothing has been done.
Q 195: I have purchased a flat in Gokul Society at New Panvel on 10th September 2006 when a No-objection Certificate was issued by the society to the previous owner on receipt of payment of Rs.20,000/- as transfer charges. After 2 ½ years i.e. in the month of July 2008, the society has issued me a notice to pay Rs.11600/- towards outstanding maintenance charges against the previous owner with monthly compound interest @ 21%. I have been paying the maintenance charges regularly from the date of the purchase. In case of my failure to pay the said outstanding dues, the society management has threatened me to cut the water connection. What steps may I take to save myself from paying the dues of somebody else and the negligence of the society while issuing the transfer NOC to the previous owner?
– Bapu Kadam
Ans: Firstly, you should have exercised due diligence before purchasing the flat by ascertaining the dues against the previous owner on such counts. The society should have also issued the transfer NOC, even on payment of transfer charges Rs.20,000/- , subject to the payment of the outstanding dues Rs.11,600/- and have brought this outstanding to your notice at the time of enrolling you as a member of the society in place of the previous owner and should not have waited for a period of 2 ½ years to recover its dues. There has been gross negligence on the part of the society. But the negligence of the society cannot be an excuse for non-payment of the outstanding dues and at the most, you can discuss this issue in the general body meeting or even bring it to the notice of the Jt. Registrar of the Cooperative Housing Societies, so that such things do not happen in future. In case of default, dues are recoverable from the property and, therefore, you may have to make the payment of these outstanding dues to the society to safeguard your interest; but if there is a clause in the deed of transfer, whereby the previous owner has guaranteed that there were no dues outstanding or he would be responsible to pay the dues if any against the property till the date of transfer, you may legally proceed against the previous owner for the recovery of these dues. Further, the society can’t resort to stoppage of essential services, like water supply, as an arm twisting tactic to recover the dues and for such an illegal action, the office-bearers concerned shall be legally responsible. However, society could proceed for the recovery of dues as per the Bye-laws.
Q 196: My mother is 65 years old and staying at Bandra, where she has accommodated two girls as paying guests. The society has charged us double charge as non-occupancy charges i.e. Rs.320/- as the society monthly maintenance charges plus Rs.320/- as non-occupancy charges. Is my mother liable to pay these non-occupancy charges?
– Vanita Menon
Ans: The non-occupancy charges are payable in the case of sub-letting or leave and license basis or where the possession of flat or part there-of is parted with in any other manner. However, in terms of the Government Notification dated 1st August 2001, as upheld by Hon’ble Bombay High Court, the non-occupancy charges cannot exceed 10% of the monthly maintenance charges, which would not include property taxes. Therefore, in your case the society cannot charge more than Rs.32/- per month as non-occupancy charges and your mother should take up the matter with the society and if the society still violates the law, the matter should be taken up with the Jt. Registrar of the Housing Cooperative Societies to issue a directive to the society to charge the non-occupancy charges as per the law and to refund or adjust the excess amount towards the future dues of the Society.
Q 197: I purchased a CIDCO built flat on resale at New Panvel in December 1993 and the instrument of transfer was lodged in the office of Sub-Registrar at Panvel. Since the practice during that period was that the documents were sent by the Sub-Registrars to Pune as all the land records were maintained there, I was given the registration receipt and a certified true copy of the deed. I have been making regular visits to the office of Sub-Registrar, but till date they have not returned me the original document. Ultimately, I have been told that all the documents were badly damaged during the floods on 26th & 27th July 2005 and hence it could not be returned. On the basis of the certified true copy of the deed, CIDCO has transferred the flat in my name. Please advise what is the remedy for getting the original deed from the office of Sub-Registrar and whether the certified true copy, with CIDCO transfer NOC, are sufficient and proper documents in case of sale of the flat or mortgage loan in future.
Ans: The documents in the office of Sub-Registrar are reported to have been badly damaged due to the natural calamity i.e. the floods on 26/27th July 2005. In such a situation, the document in whatever condition it can be retrieved should be given to you by the office of Sub-Registrar, with a certificate that the document, lodged by you, has been totally/badly damaged due to the said calamity as a proof of the same. The damaged document if possible of the certified true copy, with such a certificate from the Sub-Registrar, original registration receipt, and CIDCO transfer NOC will be sufficient documents for the purposes of resale or the mortgage loan, if such a situation arises in future. In addition, a public notice may be issued through some advocate inviting any claim etc. by mentioning the said circumstances and the original news-paper and the certificate of the advocate about the non-receipt of any objection or claim etc. in response to the said public notice will further strengthen your case. Nevertheless, the certificate of Sub-Registrar about the damage or destruction of the document shall be a very valuable document for future reference.
Q 198: I am the owner of a flat on the first floor with a terrace attached to it. The members, staying above my flat, are making my terrace dirty by throwing pieces of paper, cigarette butts etc. Am I authorized to get the terrace cleaned by the sweeper of the society. Further, the society has laid a flower pots, drainage pipe across the terrace of the building in the middle of the terrace dividing it into two parts, inspite of my suggestion for laying the same along the side of the parapet walls. Whether is it legal and whether the society may charge me for the maintenance of my own terrace?
Kuldip Singh Randhawa
Ans: No member of the society is permitted, as per the bye laws of the society, to do anything, which may cause nuisance, annoyance or inconvenience to any of the members of the society or carry on a practice, which may be repugnant to the general decency or moral of the members of the society. If there is satisfactory proof of such nuisance or inconvenience to you, the society may take action against the erring member. If the society is not in a position to control this nuisance for lack of concrete evidence etc., the society may consider to get the terrace cleaned by the sweeper of the society for which, in my opinion, you should not be charged.. The laying of the drainage pipe in the middle of the top terrace is, certainly, a case of nuisance and inconvenience by the Society itself to the members and or any meeting or the function that may be held on the terrace with the permission of the society. The Society is just like a joint-family and each member should be conscious enough against the nuisance or inconvenience of others. All such issues should be sorted out by discussions, mutual understanding etc. in the meetings and such a congenial culture should be developed. Any talk of legal action or complaint to the Jt.-Registrar shall vitiate the atmosphere and create more bitterness, which is not the objective of Cooperative movement.
Q 199: In the year 2004, I and my son-in-law purchased two adjoining flats in Thane, one was for my use and other one was for the son-n-law. I opted to take the flat in the joint names of my son-in-law as the first owner and myself as the second owner, because of the housing loan in the name of my son-in-law, with the understanding that I would be repaying my share of installments and he will be paying his share. In December 2006, I repaid my share of the dues for my flat. In April 2008, my son-in-law also repaid the share of the loan. He has handed over the flat documents to me. I would like to know what procedure is to be adopted for the removal of his name from the flat documents?
Ans: An instrument of transfer will be required to be executed by your son-in-law in your favour in respect of his right, title and interest in your flat. Such an instrument will attract stamp duty @ applicable on a conveyance as prescribed in Bombay Stamp Act and the registration charges @ 1% of the half of the present market value of the flat. Your son-in-law does not fall within the category of relations for gifting his share to you by way of gift deed, which attracts a concessional stamp duty @ 2% of the value of the gifted property.
Q 200: I would like to know whether only registered/associated member (any one member) can attend the annual general body meeting and is there any restriction for both the registered as well as associated member to attend the meeting.
– Richard Sequeira
Ans: As per the bye laws of the societies, the registered member is entitled to attend the annual general body meeting and cast the vote. However, the associate member may be authorized by the registered member to attend the general body meeting. Thus only one of them can attend the meeting and in terms of bye law No.107 of the new model bye laws, one member is entitled for one vote only.
Q 201: CIDCO allotted a plot to Air India for the construction of the staff quarters of its employees and the flats were constructed in the year 1996 when the Air India decided to sell the flats on out-right purchase basis, but Air India could not find the purchasers. However, In the year 2005, Air India could find purchasers from its employees and accepted 10% of the proposed value of each flat as booking amount from such employees. The rate was fixed by Air India as Rs.1350/- per sft. Though, Air India could not sell the flats without obtaining NOC for the change of user of the property from CIDCO in advance, Air India have not returned the money collected from such employees inspite of the fact that the NOC would not be available from CIDCO. The present rate in Nerul is @ Rs.4500/- per sft. What is the way out?
– Govind Padgaonkar
Ans. The offer of sale of flats on out-right sale basis in the building constructed on a plot allotted by CIDCO on lease-hold basis for the purpose of staff quarters, without obtaining the NOC from CIDCO for the change of user of the property is a clear violation of terms and conditions of the allotment of the plot by CIDCO. In such a situation, Air-India may return the money collected from the prospective buyers with reasonable interest for the money utilized by Air-India or it should take up the matter with CIDCO for the necessary approval/permission for the change of user and to sell the flats on payment of transfer charges, as may be decided by CIDCO and, thereafter, the Air-India keeping in view the total cost of the project, including CIDCO charges, may renegotiate with such prospective purchasers to complete the sale. In the alternative, Air-India may consider to retain the building and use it as a staff quarters for its employees for the up-coming international air port in Navi Mumbai, after returning the money collected from the employees as mentioned herein..
Q 202: We reside in Vijay Castle CHS on Plot No.159, Sector-12, Vashi, Navi Mumbai. The building has been constructed on a plot allotted by CIDCO to M/s.S.S. Trading Co. on 20.7.1992 as a Bungalow Plot. Thereafter, this plot was transferred by CIDCO in the name of Vijay Castle CHS Ltd., by way of a Tripartite Agreement dated 5.8.2003. One of the promoters of the society Shri Gopal Iyer and six other members were issued the share certificates and the flats were allotted to them by way of allotment letters. While allotting the flats, the promoter-builders assured that under the existing provisions, letters of allotment were not required to be registered. It has been legally advised that since the owners of the flats are the promoter-members-cum-share holders, it is enough if the tripartite agreement is registered at the rate applicable in the year 2003 and individual registration was not required. However, two members have got the documents registered on their own by paying the requisite stamp duty and registration charges. Is it mandatory that all the individual members should get the letters of allotment registered or whether registration of the tripartite agreement is enough?
– Gopal Iyer
Ans: The plot in question has been allotted by CIDCO from ‘Traders Category’ with the specific purpose of construction of the residents of the allottee, but transferred in the name of the society by way of a Tripartite Agreement. In terms of Article 25 of Bombay Stamp Act, even where a flat is allotted by a society to its member, such an instrument of allotment has to be stamped on the same pattern of “agreement for sale” with effect from 1st May, 1993, and have to be registered as per the 2001 amendment to the Indian Registration Act. The tripartite agreement, to be read with the agreement to lease, is merely a license by CIDCO permitting the construction of the building within a specific period, now six years, and it is not deemed to be a title deed, which is executed by CIDCO “in the form of a lease deed” after the completion of the construction and issuance of occupancy certificate. Therefore, the registration of the tripartite agreement will not confer any legal title of the property on the society. In view of the said provision of Bombay Stamp Act, the individual letters need to be stamped and registered as per the rate applicable, like usual agreement for sale. However if the lease deed has been executed and the owners of the flats are the original approved members of the society by CIDCO and the letters of allotment have been issued after the execution of the lease deed, the matter may be taken up with the Registration authorities to permit registration of such letters of allotment bearing stamp duty @ Rs.100/- on the pattern of a society having followed this course recently in Thane. It is not clear from your query whether society entered into a development agreement with some builder or developer to construct the building with the authority to sell the flats. If such is the case, the allotment letters by the society will not confer any title on the individual owners and the agreements for sale will be required to be adequately stamped and registered by such Builder/Developer.
Q 203: Our society, consisting of 35 flats and 17 shops situated in Sector-40, Seawoods, was registered in the year 2006. The building is ground plus 4 floors in two wings with one lift for each wing and all the floors have common lobby. The flat owners have occupied common lobby unauthorizedly by keeping stand/wooden cabinets, steel rakes etc. for storing foot-wears etc. The managing committee tried to convince the flat owners not to encroach the common lobby for the said purpose and issued circulars from time to time, but it has no effect. In the AGM no satisfactory decision could be arrived at to keep the common lobby free from encroachment and it was concluded that it being an individual problem, each floor should solve this problem. Is it legal for the flat owners to occupy the common space in the lobby without any authority and whether any member can cover the common lobby by putting collapsible gates for personal use and what action can be taken by the society to keep the common lobby free of encroachment by such members?
– Venkat Raman
Ans: It needs to be clearly understood that the society is the owner of the property i.e. the building, including common space, compound etc. and the individual owners of the flats have merely the occupancy rights of the flats purchased or allotted to them with the right to use the common spaces for the purpose of ingress and egress to their individual flats. In terms of the agreements for sale, CIDCO agreement to lease/lease deed, development control rules, bye-laws of the society, no member has got any right of encroachment in the common space or to create any annoyance, nuisance or inconvenience to any other member of the society or to carry on any practice repugnant to the general decency or morals of the members of the society. If such encroachers are not paying any heed to the decision of the society, the society is fully competent to initiate expulsion proceedings against such encroachers, as per the provisions of the bye-laws of the society. It may also be kept in view that such illegal action could not be legalized even by the decision in the general body meeting, as the society is not about the law.
Q. 204: Please clarify the following issues:-
a) Our society is charging non-occupancy charges in the range of Rs.100/- to Rs.200/- depending on the size of the flat, as fixed in the general body meeting in the year 2004. Is the society right and, if not, do they have to refund the excess amount to the respective members?
b) Whether any amendment or the model bye-laws become, automatically, applicable to the society or these have to be, specifically, adopted in general body meeting?
c) Can a member transfer his stilt parking to another member without society’s approval. Whether a member may sell his flat to one person and transfer the stilt parking to another existing member, without the consent of the flat buyer and the society?
d) Can a society refuse to carry out repair of external leakage affecting a member, who has, substantially, defaulted in payment of society maintenance charges?
e) The previous managing committee did not issue demand notice for monthly maintenance charges. Whether new committee may levy the delayed payment charges at the rate decided in the General Body Meeting?
Ans: (a) Non-Occupancy charges cannot be recovered by a society more than 10% of the service charges, excluding property taxes, even with the approval in the general body meeting. The society may refund the excess amount or adjust the same in the future maintenance charges, as may be decided in the general body meeting.
(b) No amendment to the bye laws or the new model bye laws does not become, automatically, applicable which have to be adopted by giving a minimum 14 days notice of the general body, at which such amendment or the adoption has to be considered and the resolution is passed by not less than 2/3 members present in such general body meeting and the amendment or the adoption is approved and registered by the registration authority.
c) All the common areas including the stilt parking compound etc. belong to the society and parking slots have to be allotted by the society as per provisions of Bye-law No.78 to 85 of the new model bye laws or the similar provision of the existing bye-laws of the society. Therefore, a member has no right, title or interest to sell the stilt parking and such sale is not binding on the society, which can proceed with the allotment of the same as per the bye-laws.
d) The repairs to the external leakage and the default in payment of maintenance charges should not be mixed-up. It is the responsibility of the society to carry out such leakage for the proper maintenance of the building and, simultaneously, should not allow the maintenance charges to be, substantially, accumulated against the defaulters and the society should take timely steps for the recovery of the same as per the provisions of bye-laws.
e) In terms of the bye-laws of the society (Bye-law No.70 of new model bye laws) the secretary of the society has to issue demand noticed and the managing committee is responsible to ensure that office bearers are discharging their duties as per bye-laws. However, if the demand notices have not been issued, I don’t think, the new managing committee may recover delayed payment charges on the same.
Q. 205: A society has the lease deed executed in its favour in the year 1985. The original allottees of the flats, which were constructed in the year 1988, did not register their flats as per the prevalent practice. Subsequently, the flats have changed hands and the second and third buyers have duly registered the transfer deeds in their favour. What is the legal standing with respect to the original allottee of the year 1988, who is now not the member and the owner of the flat?
Ans: When the flats have been constructed in the year 1988, CIDCO must have executed an agreement to lease in favour of the society in the year 1985 about the allotment of the plot, because the lease deed is executed by CIDCO after the completion of the construction and issuance of the occupancy certificate. In those years after the allotment of the plots, societies were entering into construction contracts with the contractors for the construction of the building and the construction was being financed by the allottee members either out of their own resources or through loans from the financing institutions. The share certificates were being issued by the societies to the members and the flats were being allotted by the societies by way of allotment letters, containing the terms and conditions of such allotment. In case of resale, the deed of transfer, whether second or third sale or so, were being executed and registered. In view of the legal provisions and practice in vogue in those years, the allotment letter and the society share certificate were the title deeds of the flats in favour of the original allottee.
Q 206: Please guide me on the following:
a) Whether the documents duly stamped and executed in January 2002 need to be registered?
b) How such a document can be registered by single party?
a) If a document has been, adequately, stamped and adjudicated upon in January 2002 and could not be registered due to one reason or the other, the same can be registered with a confirmation deed bearing stamp duty Rs.100/-, on payment of registration charges @ 1% of the value at the time of purchase of the flat.
b) If the seller of the flat is not available for the admission of the execution of the document, the Sub-Registrar, usually, permits the registration by the buyer, who is the present holder, by way of a declaration, bearing stamp duty Rs.100/-, and on payment of the registration charges @ 1% on the value of the flat at the time of the execution of the document.
Q. 207: One of the flats in our society, registered 20 years back, is owned by a member in his single name. He now wants to add the name of his wife as the joint-owner of the flat as the second owner. Whether he has to execute a fresh sale deed, duly stamped and registered, in her favour?
Ans: The present member may execute a gift deed in favour of his wife in respect of his right, title and interest to the extent of 50% share in the flat. Thus he and she will become the joint-owners, he being the first owner and she being the second owner. Thereafter, he may apply to the society to endorse the share certificate and correct the records of the society in respect of this flat, as both of them being joint owners. Such a gift deed would attract stamp duty @ 2% on the half of the present market value of the flat and the registration charges @ 1% on the said value.