Elections Rules of Cooperative Housing Societies

By Sunil Deshmukh

District Deputy Registrar (Retd.)

For K.K. Ramani & Associates

The Government of Maharashtra has amended the Maharashtra Cooperative Societies Act, 1960 in 2013 and introduced new election procedure for cooperative housing societies.

 

We have explained the procedure as per the Act regarding elections to be conducted by the cooperative housing societies.  We trust that you will find the same useful.

 

Elections of Cooperative Housing Societies

 

  1. Maharashtra Cooperative Societies Act, 1960 has been amended on 13thAugust, 2013.  As per the amended provisions of Section 73CB(1), State Cooperative Election Authority has been constituted.  The Elections of all the Cooperative Societies have to be conducted as per the provisions of Maharashtra Cooperative Societies (Elections to Committee) Rules, 2014.

 

  1. The Housing Societies have been classified in two categories under the aforesaid Rules:

 

  1. Housing Societies having 200 or more members as on 31stMarch of the preceding year in ‘C’ Type.
  2. Housing Societies having less than 200 members as on 31stMarch of the preceding year in ‘D’ Type.

 

Both type of Societies which are due for election has to submit the information in E-2 Format of the aforesaid Rules.

Form E-2

Forms of report to be delivered by the committee of the society 6 months before of the expiry of the period of the committee of the society.

 

Sr. No.

 

 

 

 

 

 

 

(1)

Name of Cooperative Society with registration No. and Address

 

 

 

 

 

(2)

Date of result which last election of managing committee was held declared.

?

 

 

 

(3)

Date on which term of the present MC members in the office to expire.

 

 

 

 

(4)

Names of the constituencies as per bye-law.

 

 

 

 

 

(5)

No. of MC members to be elected against each constituency.

 

 

 

 

 

(6)

Remark

 

 

 

 

 

 

 

(7)

 

Note:  The Certificate from the Chief Executive Office / Secretary of the Society to the effect that submission of provisional voter list will follow within 7 days shall be as under :

 

Certificate

 

I, Shri / Smt. _________________, Chief Executive Officer / Secretary of ___________ _________ Society Limited _________, hereby certify that –

 

(1)           The Society shall prepare provisional voters list of the members prior to that date and on or before expiry of 120/150 days.

(2)           The information furnished in the Form E-2 is as correct and derived from the records of the Society.

(3)           The particulars to be included in the provisional voters list shall be according to the Rules No.6 of these Rules.

Seal of the Society

Date :

Name and Signature of the

Chief Executive Officer / Secretary

Of the Society

The Elections of the ‘C’ Type Societies will be conducted Returning Officer appointed by the Assistant Registrar / Deputy Registrar of Cooperative Societies of concerned Ward.

Every society has to submit the information in above format to the concerned Assistant Registrar / Deputy Registrar.

The Elections of ‘D’ Type Societies will be conducted by the authorized officer appointed by the concerned Registrar.  The Societies have to submit a copy of the byelaw along with the Form E-2 to the concerned Registrar.  Society has to submit final list of voters to the concerned Registrar.   The society should prepare voters list considering Section 26(1), which reads as under :

 

26(1) a member shall be entitled to exercise such rights as provided in the Act, Rules and the Byelaws.

 

The members should be eligible as per Section 27 of the Maharashtra Cooperative Societies Act.  He should not be a defaulter under Section 73CA and should not be disqualified as per the provisions of Byelaws of the Society.

 

The relevant provisions of Section 27 are as under :

 

(1)  save as otherwise provided in sub-section (2) to (7) both inclusive, no member of any society shall have more than one vote in its affairs and every right to vote shall be exercised personally and not by proxy.

(1)A – notwithstanding anything contained in sub-section (1), an active member who subsequently fails to participate in the affairs of the Society and use the services upto the minimum level as specified, from time to time, in its byelaws, shall cease to be active member and shall not be entitled to vote.

(2) Where a share of a society is held jointly by more than one person, (the person whose name stands first in the share certificate, if present shall have the right to vote but in his absence the person whose name stands second and in the absence of both, the person whose name stands next, and likewise, in the absence of the preceding persons the person whose name is next on the share certificate who is present and who is not a minor shall have right to vote.

(8) No nominal member shall have right to vote (and no such member shall be eligible to be member of a committee)

Section 73CA (A)(e) of the Act : “a member who defaults the payment of dues to the society within three months from the date of service of notice in writing served by post under Certificate of posting demanding the payment of dues and such member fails to make the payment become disqualified.

A member who is having more than two children on or after 7.9.2001 is disqualified to become a member of the committee.

The Secretary /Manager of a society has to prepare a provisional voter list as per the I-Register of members and publish it on the notice board of the society calling the objection on it within 2 days.

After two days prepare a final list of voters and to be submitted to the concerned Registrar in four copies.

The Returning Officer shall be appointed by the concerned Assistant / Deputy Registrar with the prior sanction of State Election Commission.

The Returning Officer with the consultation of Registrar and Society will prepare an election programme and will display it on the notice board of the society.

Expenses of Elections 

  1. Remuneration to the Authorised Officer Rs.750/-
  2. Election Funds – less than 25 members – Rs.2500/-

26 – 50 members         – Rs. 4000/-

51 – 100 members       – Rs. 5000/-

101 – 199 members     – Rs.7500/-

Strength of Managing Committee

 

No of member of the Society General Reserved ? ? ? Total Quorum of Meeting
? ? Women SC/ST OBC VJ/NT/SBC ? ?
Upto 100 6 2 1 1 1 11 6
101 to 200 6 2 1 1 1 13 7
201 to 300 10 2 1 1 1 15 8
301 to 500 12 2 1 1 1 17 9
501 and above 14 2 1 1 1 19 10

 

* Quorum for the meeting will be simple majority for the existing Committee Members.

State Govt increases number of society members to hold election on their own

By Maharashtra Bureau

MUMBAI:

The state government has increased the number of society members to conduct the election. In 2018, an ordinance was passed in which it stated that society can self-conduct elections of the committee if the society has less than or up to 200 Members and on March 9 Maharashtra government published an ordinance which says that housing societies with less than 250 members can conduct elections.

According to the ordinance, any officer or past officer or Member or past Member of the Committee of the housing society fails to supply the copies of the documents a fine will be levied. Previously the committee was liable to pay Rs 25,000 and now it has reduced between Rs 500 and Rs 5,000.

In section 101 of the principal Act, in sub-section (1), the words by a co-operative housing society, for the recovery of its dues or for the recovery of its maintenance and service charges have been deleted.

Procedure for Self Redevelopment of housing societies in Maharashtra

By Dr Sanjay Chaturvedi, LLB, PhD

Builders are not finding viable projects offered by housing societies in Maharashtra, are going in for self redevelopment. Due to slow down in market and new DCR where the redevelopment is not viable in Mumbai, housing societies in Maharashtra are going in for self redevelopment.

Developing a residential project is not a joke. It requires 56 NOCs from local self government but also having jurisdiction of Maharashtra Co-operative Societies Act 1960 and further amendments. There are many other NOCs required besides BMC. Like for example CRZ clearance, Environment clearance, Traffic, Fire, Civil Aviation, defense and railway NOC if you fall under their jurisdictions.

First step: Society must know its potential FSI, fungible FSI and total FSI consumed till date. This is first step because society first should determine that they want redevelopment and reconstruction for themselves or there is sale elements in it. If society wants to redevelop its premises then there is no question of RERA registration. But if society wants to sell some of new flats in its redeveloped project and it is more than 8 units or 500 sq mtrs or more then it has to register it in Maha RERA.

The society must have conveyance its name. While applying for new plan, IOA and CC to BMC, society must be owner of the land on which redevelopment is proposed. If the land belongs to MHADA, Collector, any statutory authority, Pugree, or any ostensible ownership like trust etc then NOC from such owner is must for redevelopment.

Second Step: Society must convene extra ordinary meeting under section 79A of Maharashtra Co-operative Society Act 1960 and notify the Registrar office who will send his representative to conduct the EAGM of the society. Due and clear notice of the meeting must be given to all members and associate members. For procedure under 79A, please read my article on the subject.

The question arises that should society appoint a Project Management Consultant (PMC) compulsory? There is no such statutory compulsion to appoint PMC for redevelopment. Neither for self redevelopment nor for builder redeveloping it. PMC, in my opinion is nothing but cordinator between legal aid, architect and structural engineer. PMC, eat away profit of builder as it ask from builder huge compensation besides a hefty fees from society.

Society should appoint its own advocate and architect who gives honest and fair opinion to society on various aspects of redevelopment. It requires huge documentation and agreements hence vetting from a good advocate is always desirable. Any extra area which is not included in the development agreement will attract stamp duty, income tax later on so it is advisable to first vet the legal documents.

Third Step: Get the approval of 50% of the members of the society who have attended the meeting. The meeting should have proper quorum and 50% of them must approve the redevelopment. Mind you, society is the owner of your premises and since you hold a share in it hence you are eligible to occupy one of its units/ flats.

It is advisable to register the all documents which are executed by the society. An Advocate shall give advise to the society on various aspects including when society wants to sell its flats in the open market to fund the redevelopment.

Fourth Step: Find the proper team. Society must appoint own advocate, chartered accountant and Architect to help the process of redevelopment. Role of Chartered accountant will be to find the financier, if society wants to take loan for redevelopment, if self funded then maintaining accounts for redevelopment process and certifying for statutory needs like RERA , income tax and GST.

Fifth Step: Finding contractors under tender system. Many builders are also lending their names to society for Development Model (DM). The builder manage entire process, take loan on society’s behalf, construct it for society and sell for society while just keeping 20% profit margin on entire sale. In this process, the entire statutory requirements, procuring NOC and permissions, observing contractors and sale depends on builder. Builder work like PMC for society. But when society don’t want builder and want to do it self, then society’s architect will prepare tender and scrutinize for society and finalize contractor. Supervise the construction work and vet the contractor’s bills to be cleared time to time.

Sixth Step: While construction work is going on and before that, architect shall get the new building plan approved from BMC/ Municipal Corporation, fulfill all the compliance and make society pay premiums/ permission fees if any. Advocate shall register the project at RERA if there is any sale portion. Chartered Accountant shall keep and record all financial transaction and certify as and when required under GST, RERA and Income Tax.

Seventh Step: Getting Occupation Certificate and Building completion certificate from Authorities, NOCs from various authorities, handing over new premises to members and new purchasers, inducting them into society as members and issue them new share certificates, closing accounts, filing Form 4 to RERA, filimng forms with registrar for co-operative societies.

Eight Step: Update in income tax, file GST returns, Audit accounts and pass in AGM.

There are still some areas left which I have to cover it in my next article on pre-requisites of high rise in Mumbai. Keep in touch.

Properties On The Plots Allotted By Cidco To Co-Operative Housing Societies

By Advocate S. R. Agarwal

Besides leasing out the plots by CIDCO as tender plots as discussed in the earlier Article, plots are allotted by CIDCO to various groups at concessional rates, decided from time to time, including Housing Co-operative Societies formed by the persons of 15 years domicile in Maharashtra.

As per the procedure, when a Society is proposed to be formed by a group of such people or after it is registered, CIDCO is approached for the allotment of a suitable plot to the Society for constructing the flats or apartments for the residence of the members of the Society. A list of such members is attached with the Letter of Allotment or Agreement to Lease of CIDCO as a proof of approved membership.

Initially, when the CIDCO started the allotment of the plots to such Societies in the eighties, there was no restrictive condition about the transfer or assignment of the right, title and interest in the flats by the members; but, subsequently, after a couple of years CIDCO started imposing the restrictions on the transfer or assignment of the flats or apartments, when it was known that the members were profiteering from such transactions. The relevant condition in the Letter of Allotment reads as under:-
“ The Society shall not permit its member to transfer his membership, save and except with the prior written permission of the Managing Director of the Corporation or any officer authorised by him.

Every permission granted by the Managing Director of the Corporation shall be subject to the payment of transfer charges in the manner and to the extent provided in Explanation (iii) to Clause ( vii) of Regulation: 3 of the New Bombay Disposal of Land Regulations, 1975, or as case may be prescribed by the Corporation from time to time.

No member shall sell or otherwise dispose of his/her share in the licensee save and except with the prior permission of the Managing Director of the Corporation.

The Society shall not admit any new member at any time save and except with prior written permission of the Managing Director of the Corporation which permission shall be granted subject to the terms and conditions as may be prescribed by the Corporation including the condition of payment of additional premium at the rate as may be prescribed by the Corporation from time to time”

However, these restrictive conditions are being observed more in the breach than compliance. It is a well-known fact that dummy Societies are formed with the fake membership to get the allotment of the plots from CIDCO at the concessional rate and the flats or the apartments are sold out in the open market at the current rate by misleading the prospective buyers. The recent allotment of plots to the Societies by CIDCO along Palm Beach Road in Navi Mumbai was challenged before Hon’ble High Court, which stayed such allotment and issued injunction. The Builder/Developer went to the Hon’ble Supreme Court by way of an S.L.P., when it observed in its Order dated 01.02.2007 that undue advantage had been shown to the societies and the Developer and ordered the revaluation of the plots by an independent Government valuer to and to compensate CIDCO for any loss that may have been caused to it on account of undervaluation of such plots and till the difference is paid, injunction issued earlier to continue.

In case of most old Societies, the office-bearers are, actually, not aware of these conditions but in a large number of cases, they not only feign ignorance of such restrictive conditions but resist compliance as they apprehend that if they apply to CIDCO at this late stage all the past cases may be reopened and the Society may be burdened with a substantial amount payable to CIDCO as transfer charges for regularising the membership to the Society………

A copy of Cidco Letter dated 18.10.02 permitting mortgage in favour of PNB Housing Finance Ltd. is annexed hereto as a specimen. A copy of CIDCO letter dated 27.07.04 about the transfer of membership in a society is also annexed hereto as a specimen.

Bombay High Court: Flat owner entitled  to 1 parking space

By Maharashtra Bureau

MUMBAI

The Bombay High Court on September 12, said that member having a motor vehicle will be eligible to have stilt or open parking space. No member shall normally be eligible for being allotted more than one stilt or a parking space.

Justice Ramesh Dhanuka was hearing the petition filed by Royal Manor Co-operative  Housing Society Ltd.

Dhanuka said, “Any stilts or parking space remain unallotted for want of applicants for allotment, a second or third stilt or parking space may be allotted to the same member who has been earlier allotted the stilt or the parking space. Such allotment of 2nd or 3rd stilts/parking space shall be made on a year to year basis, provided same is not required by another member, who is not alloted even a single stilt/parking space.”

Learned senior counsel submits that there are 19 stilt parking and 5 open parking space which were all allotted by the developer to various prospective buyers of the flats in the compound of the petitioner.

He submits that all 24 car parking spaces are already allotted by the developer to the prospective buyers and thus the Co-operative Court could not have passed a mandatory interim injunction against the petitioner to allot a car parking space even on a temporary basis during the pendency of the dispute Justice read.

Justice said bye-law 81 of the Co-operative Housing Society which is extracted as under:-

“A member, having a motor vehicle will be eligible to have stilts or parking space. No member shall normally be eligible for being allotted more than one stilt or a parking space for parking the car owned by him allotted to him by his employer, or the firm of which he is the partner the company of which he is the director. If any stilts or parking space remain unallotted for want of applicants for allotment, a second or third stilt or parking space may be allotted to the same member who earlier been allotted the stilt or the parking space. Such allotment of 2nd or 3rd stilts/parking space shall be made on a year to year basis, provided same is not required by another member, who is not allotted even a single stilt/parking space.”

 

 

 

 

Maharashtra Co-operative Societies (Second Amendment) Act 2018: All You Need To Know

Image for the representative purpose only.

The sub-section (4), section 166 of the principal Act is been removed.

By Maharashtra Bureau

MUMBAI

The members of the committee and its office bearers not only have to co-terminus of the committee after five years from the date of election but also the members shall be deemed to have vacated their offices as members of the committee, according to Maharashtra Co-operative Societies (Second Amendment) Act, 2018.

The Maharashtra Government after receiving the assent of the Governor it published in ‘‘Maharashtra Government Gazette ’’, on the 9th August 2018.

“The Governor of Maharashtra was satisfied that circumstances existed which rendered it necessary for him to take immediate action further to amend the Maharashtra Co-operative Societies Act, 1960, for the purposes hereinafter appearing; and, therefore, promulgated the Maharashtra Co-operative Societies (Second Amendment) Ordinance, 2018 on the 13th June 2018 and whereas both Houses of the State Legislature were not in session”, the official document said.

The act has amended few sections and sub-section which include, Section 73AAA (sub-section 3), section 73CB (sub-section 15) and section 166 (sub-section 4).

The public document says that under section 73CD of sub-section (15), “Where in respect of any society, the term of its committee has expired before the date of commencement of the Maharashtra Co-operative Society (Second Amendment) Act, 2018, the election to such committee shall be held by State Co-operative Election Authority within a period of six months from the date of such commencement.”

Although in respect of such a society, the committee shall continue to hold the office till such a period of six months or declaration of results of the election of such a society whichever is earlier, it said.

In case of society doing the business of banking, the requisition made or guidelines issued by the Reserve Bank of India or the National Bank shall prevail.

The amendment has extended the section 73AAA of sub-section (3) by adding a small paragraph which says that, The term of the office of the elected members of the committee and its office bearers shall be five years from the date of election and the term of the office bearers shall be co-terminus with the term of the committee (before amendment) and ‘on the expiry of the term of the committee, the members shall be deemed to have vacated their offices as members of the committee’ (amended).

However, the sub-section (4), section 166 of the principal Act is been removed, according to the document.

 

 

Housing Societies to be digitised in Jaipur

By Rajasthan Bureau

Registrar, Cooperative Rajan Vishal said on Tuesday that the final audit report of 161 housing construction cooperatives of Jaipur city will be digitized. For this, camps have been organized in the Office of the Mini Secretariat of Regional Audit Officer from 27th June to 13th July.

He said that this step has been taken by the department in compliance with the directions of the High Court and due to non-audit by the housing societies and the cases of irregularities arising in respect of the schemes created by them. He told that 10 to 12 societies have been invited into the camp to be organized so that the digitization can be completed by confirming the facts related to the final audit report.

Vishal informed that full information regarding the schemes created by the societies will be taken in the prescribed formats, in which the purchase details of the land, the list of plenary members, the allocated plot number and their area, the date of the allotment of the plot, the details of the remaining plots from the allocation Including other information will be received.

The registrar said that the actual address of the Aadhaar card number, telephone number and society of the office-bearers belonging to society will also be clearly recorded. In addition to the information which will not be given by the society, the co-operative society Act, along with the provisions of section 174 and 175 of the Indian Penal Code, will be brought into force.

He informed that at the level of the department many complaints related to housing construction cooperative societies have been received, in which a society lease the endorsement to different persons of the same lease, fraud with the land allotted by the society, not audit by the society and documents related to the scheme. This decision has been taken keeping in view the tampering and irregularity situation.

Vishal said that on completion of this work, any person will be able to take all necessary information related to the scheme of society online and will be careful while availing the purchase related to the land and avoid fraud.

 

Society dispute for redevelopment not tenable in RERA

By Dr. Sanjay Chaturvedi LLB, Ph.D.

Suresh Daniel Devaral V/s United Shelters Pvt. Ltd & another (CC006000000001709) Order dated: 3rd January 2018

The Complainants in their complaint have stated that they are the members of a Co-Operative Housing Society which is taken up for redevelopment by the Builder. The Complainants alleged that Respondent 2 has appointed the builder without following the procedures as mandated by law. The Complainants further alleged disputes between them and the Managing Committee members of the said Cooperative Housing Society.

Maha RERA Observed: On the basis of arguments by Complainants, it is evident that the dispute is between the Complainants i.e. some member of the Cooperative Housing Society and the Respondents which are the Promoter and the Cooperative Housing Society (Landowner). The Complainants have not been able to point out any contravention or violation of the provisions of the Real Estate (Regulation and Development) Act, 2015 or the rules or regulations made there under. MaIa RERA is not the proper forum to resolve the above mentioned issues, raised by the Complainants. The Complainants dismissed.

Redevelopment of Societies not subject matter of RERA

By Dr. Sanjay Chaturvedi LLB, PhD

Muralidhar Mahadeo Prabhu V/s G A Builders Pvt Ltd.( CC00600000000-12265) Order dated 15th January 2018

The Complainant in his complaint has stated that he is the member of a Co-Operative Housing Society which is taken up for redevelopment by the Respondent. He alleged that the Respondent had in 2007 promised that the redevelopment work of the said building will be completed within 24 months from thereon, however, the Respondent has failed to handover possession and pay rent as per the Development agreement dated October 25, 2007.

Maha RERA observed “The Complainant has not been able to point out any contravention or violation of the provisions of the Real Estate (Regulation and Development) Act, 2016 or the rules or regulations made thereunder. Maha RERA is not the proper forum to resolve the grievance pertaining to non-payment of rent raised by the Complainant.”

Credits: Landmark Judgements of RERA (Book)

To buy the book click here

 

GST for Housing Societies

gstBy Legal Bureau

Registration :

A Co-op Hsg Society is required to be registered under GST if the Aggregate turnover exceeds Rs 20 lakhs annually. Aggregate turnover shall include all taxable and exempt services. Aggregate turnover means all billing other than Municipal Tax & Sinking Fund, but includes Interest received from banks, and members.
Registration :

If the Society has to pay GST under Reverse Charge [ Supply of services by Advocates ], irrespective of the turnover, the Society has to Register under GST.

Exemptions :

If the maintenance charges towards reimbursement of charges/contributions are less than Rs 5000/- per month GST will not be charged to such members. However, such members will be charged GST on Vehicle parking charges, Non –occupancy charges, Facility booking, Share Transfer premium etc. which are not of the kind of contributions or reimbursement of charges.

If the maintenance charges towards reimbursement of charges/contributions exceed Rs 5000/- per month, GST will be charged. [ provided the aggregate turnover is more than Rs 20 Lakhs annually. ]

Reverse Charge: If the Society receives any supply of services from Advocates/firm of advocates, the society has to register under GST and pay the GST under Reverse In case of a Society registered under GST, the GST shall be paid on Inward Supply of goods/services by an Unregistered Vendor under Reverse charge.

Taxation on Bills raised on members.

  • Municipal Tax: is covered under Services provided by the Society to its members as an Agent of the Service Recipient and thus, outside the provisions of GST. However, an exact amount of Municipal Tax is required to be recovered from members as paid to BMC.
  • Sinking fund: is covered under Deposits without any provision of supply of service and thus, is outside the provisions of GST. However, on the utilization of the Sinking Fund, it will become Taxable and Tax has to be paid.
  •  Water Charges: Water is procured by the Society from the Municipal Corporation and is supplied to the members. Water is a “goods” and attracts “zero “ rate of tax.

·        All other charges, including electricity, repair fund, maintenance charges, service charges, vehicle parking charges, non-occupancy charges, any other recovery of expenditure, etc are taxable under the category “Services provided by other membership organizations n.e.c.” under SAC number “999599”

·        Interest/ penalty on delayed payment of maintenance charges is taxable under GST.

·        Advance Received from members, if any, towards the maintenance charges, is taxable under GST, adjustable against GST payable on raising of monthly/ quarterly bill.

Taxation on other Income [ from members or non-members]

·        Interest earned from banks is “Exempt” from GST.

·        Rent received from any Hoarding / Cell phone tower etc is taxable under the categories:-

997211: Rental or Leasing Services involving own or leased residential property.

997212: Rental or Leasing Services involving own or leased non- residential property.

(iii)  All other incomes and receipts such as

Facility booking charges

Fit out charges

Reimbursement of Expenditure

Share Transfer premium

Membership Entrance Fee / Share Transfer fee

Exhibition in the Society premises etc.

Are taxable.

Security Deposits: All refundable security deposits are outside the provisions of GST.

Input Tax Credit :

·        All the GST paid on inward supply either for services or for goods, can be set off against liability to pay GST by the Society. However,

·        In case of capital goods procurement, [ Fixed Assets ], the Input Tax Credit can be availed equally spread over five years.

·        If the society is availing the benefit of Exemption, then proportionate Input Tax Credit as is attributable to exempted services will not be available for Input Tax Credit.

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