Are Managing  Committee Members, Office  Bearers  Of Housing Society Public Servants?

By Advocate Vinod Sampat

 

ANSWER  IS  …YES  AND LIABLE   TO BE PROSECUTED  UNDER  ANTI  CORRUPTION  ACT.

Just go through supreme court of India And Indian High Courts Rulings on the Subject Matter.

As per S. 2(20) of Maharashtra Co.op. Societies Act (MCS Act), the Chairman, Secretary, Treasurer and Committee Member are officers of society and as per S. 161 of MCS Act, an officer as defined by S. 2(20) of MCS Act shall be deemed to be a public servant within the meaning of S. 21 of Indian Penal Code.

The point of law is that all government servants are public servants, but all public servants are not government servants. The immunity of necessity of government sanction before cognizance of offence against a public servant under any criminal law by court as granted by S. 197(1) of Code of Criminal Procedure is granted only to government servants who are public servants and not to non-government public servants or deemed public servants such as office bearers of co.op. society. This fearful paradox is threatening to office bearers of co.op. a society who may be alleged to have committed fraud with society money which is nothing but public money held by such office bearers in trust for members of society.

It is pertinent to note that Hon’ble Supreme Court of India by its judgment dated 6.3.2002 in State of Maharashtra versus Prabhakarrao, (2002) 7 SCC 636 has declared that office bearers of cooperative society are public servants for action under Prevention of Corruption Act, if not within meaning of S. 21 of Indian Penal Code which S. 21 was considered by Hon’ble Bombay High Court for quashing of FIR against office bearers of society. The public servant as defined by S. 2(c) of 1988 Anti Corruption Law means any person who holds an office by virtue of which he is authorized/required to perform any public duty and S. 2(b) of said 1988 law has given wider meaning to public duty.

Now again Hon’ble SC in its very recent judgment dated 23.2.2016 dismissing Criminal Writ Petition No. 167 of 2015 has declared that officer of a banking company is a public servant within the meaning of 1988 Anti Corruption Law, if not within the meaning of S. 21 of IPC. However, the point of difference is that bank officers are paid public servants and office bearers of a cooperative society are unpaid public servants although it is correct to say that such office bearers perform the public duty by holding public money viz. funds of society in trust for members of society.

It is pertinent to note that S. 21 of Indian Penal Code speaks about “public servant” and S.161 of Maharashtra Co.op. Societies Act speaks about “deemed public servant”. The Hon’ble SC in State of Maharashtra versus Laljit Rajshi Shah, 2000 (2) Mh. L. J. (SC) 801 has clearly explained the difference between “public servant” and “deemed public servant”.  But the Hon’ble SC by its latter judgment of 2002 has also made it clear that office bearers of a cooperative society are public servants for the purpose of 1988 Anti Corruption Law.

It is now true that aforesaid provision of S.161 read with S. 2(20) of MCS Act make office bearers of cooperative society public servants within the meaning of S. 21 of IPC and aforesaid 2002 SC judgment make such office bearers public servants within the meaning of 1988 Anti Corruption Law.

Car Parking Charges & Sinking Fund

Image for representation purpose only.

By FCA, Rajkumar Adukia

Introduction

Sinking Fund and Car Parking Charges are two major components amongst the list of charges levied by a Cooperative Society.

The contribution collected from the members of a society is known as ‘charges’ and may include – property taxes, Water Charges, Common Electricity Charges, charges for running the lift, Contribution to the Sinking Fund, Service Charges, Car Parking Charges, Non-occupancy Charges, Insurance Charges, Election Fund etc.

What is a Sinking Fund?

Sinking fund means a fund constituted under the bye-laws of a society for the purpose of reconstruction of its building/buildings or for carrying out any structural additions or alterations to the building/buildings, as in the opinion of the Society’s Architect, would be necessary to strengthen it/ or for carrying out heavy repairs as may be certified by the Architect.

In short, the sinking fund is a fund constituted for repair or reconstruction in the future, wherein the members of a society contribute a certain amount on a regular basis to this fund of the society. In fact, the contribution towards the Sinking fund is a statutory obligation.

Benefits of sinking fund

In recent years, many old buildings have collapsed due to lack of repairs and negligence. If repairs are not done on a regular basis, the serious risk will be posed to the structure of the building. In such situations, the sinking fund becomes useful. Instead of shelling out a lump sum amount of money in case of major repairs, the contribution of a small amount on regular basis to the sinking fund will be a great boon when major repairs or reconstruction is required. This fund will ensure that the society has sufficient funds to carry out the work in times of need.

For example – A complex needs to undergo renovation and the estimated expenditure is around Rupees Fifty lakhs and the sinking fund has already Rupees forty lakhs, then only the balance amount of Rupees Ten lakhs will be required. Otherwise, it will become a huge burden for the members of the society.

Contribution by each member

The amount to be contributed by each member to the Sinking fund will be decided at the meeting of the general body, wherein the minimum amount should not be less than 0.25 per cent per annum of the construction cost of each flat incurred during the construction of the building of the society and certified by the Architect. This will not include the cost of the land. Usually, the contribution is done on a monthly basis. If the apartment is on rent, it will be the landlord’s duty to contribute to the sinking fund.

Investment of Sinking Fund

The amount in the sinking fund is required to be utilized when the reconstruction or repair of the building is due. As this is a very long period, the contribution received from members of the society should be invested on a long-term basis so that, the investment can fetch substantial returns to the society. This is covered under Section 70 of the Maharashtra Co-operative Societies Act, 1960 and the Bye-laws of the society.

A Co-operative Housing Society can invest its fund in the State Co-operative Bank i.e. the Maharashtra State Co-operative Bank or The Mumbai District Central Co-operative Bank Ltd. or the securities specified under Section 20 of the Indian Trust Act.  Although the Registrar cam permit Co-operative housing societies to invest their funds in the Nationalized banks or other Commercial banks, or the Urban Commercial Banks, this facility is given only for facilitating day to day banking transactions.  Hence, a long-term investment should be made by Co-operative housing societies only with either of the two banks named above.

If the society fails to invest the fund as prescribed above, then it would be considered as an offence under Section 146(c) of the Maharashtra Co-operative Societies Act, 1960 and the society, officer or past officer, member or past member, employee or past employee of the society, or any other person, who commits the offence will be liable to fine that may extend to five hundred rupees.

Procedure for utilizing the Sinking Fund

As per the model bye-laws, the Sinking fund can be utilized only after obtaining the approval of the General Body of the society. Before embarking on structural repairs, an Architect should be appointed at a general body meeting. Upon inspection, the Architect should prepare plans and estimates with specifications of the structural changed required to be carried out. Thereafter a contractor should be appointed by the Managing Committee of the society on the terms and conditions set out by the general body.

The amount lying in the Sinking fund can be used for the requisite structural repairs after obtaining the permission of the General body of the society.

Sinking fund falls short of requirements

If the Sinking fund investment is less than the estimated cost of major repairs/ reconstruction, in such case each member will have to contribute as per the estimated cost of repair and the shortfall may be collected on the basis of the area of each flat. But then the repair costs of common amenities such as a compound wall, pump room, society office among others will be distributed equally among all the flats irrespective of the flat size.

Sinking fund register

A Sinking fund register should be maintained by every society. It should contain the following details –

  • Name and address of the society
  • Number of flats
  • Details of owners
  • Amount of contribution received
  • Details of bank where amount is deposited
  • Details of amount withdrawn, if any
  • Reasons for withdrawal
  • Any other requisite details

What is Car Parking Charges?

‘Parking Space’ means open space within the premises of the society earmarked by it for parking of vehicles and includes a stilt. Car parking charges are the charges levied by the society on the member who has been allotted space for parking.

Amount to be paid as car parking charges

The bye-laws of the society will have a clause for payment of charges for parking of vehicles. Every member, who has been allotted the parking space will be required to pay the parking charges at such rate as may be decided at the general body meeting of the society, irrespective of the fact whether he actually parks his vehicle or not. Where a member has been allotted more than one parking space, he should pay parking charges in respect of every such parking space, as decided by the General Body Meeting.

The General Body of the Society can also fix car parking charges for the second, third car etc.

In case of other vehicles like a scooter, motorcycle, or an auto rickshaw, the member should obtain prior permission of the Committee for parking his vehicle in the compound of the society and pay the charges fixed by the General Body of the Society at its meeting. In fact, the society can recover different rates for different types of vehicles.

Conclusion

Sinking fund or the future fund, as we can term it is a very vital component among the charges paid by the members of the society. In these days of rising costs, this fund comes as a boon in times of major structural repairs, without pinching the pockets of the members. Of course, last but not the least, the car parking charge, which is another charge levied by the society may vary depending on the number of cars and type of vehicle!

 

Development Rights taxable In Case Of Housing Societies

Image for the Representative purpose only.

By Maharashtra Bureau

Commissioner of Income Tax-18

Vs.

Sambhaji Nagar Co-op. Hsg. Society Ltd.,

Income Tax Appeal No. 1356 of 2012

 

Introduction:

In Mumbai, hundreds of Co-operative Housing Societies are functioning whose buildings have become old and dilapidated due to age. The societies lack finance and technical expertise to repair their buildings. The societies, therefore, seek the help of a developer to carry out the construction at his own cost and pay compensation to the society members in the form of the corpus, rent and larger area.

Controversy had existed between societies and the IT Department regarding taxability of these amounts. On 11-12-2014 the Bombay High Court has given very important judgment on this point.  It is hoped that this decision of Bombay High Court would put the matter to rest.

 Facts:

Recently Bombay High Court has rendered a decision in the above case and confirmed the order of ITAT that compensation of Rs. 2,23,25,157/- received by the society from Developer is not taxable.

Brief Facts of the case are as under:

With the promulgation of Development Control Rules, 1991 (DCR), the society acquired right of putting up the additional construction through TDR. The society transferred the said valuable TDR right to a Developer.

A.O. held that the said right is attached to the land owned by the society which had been acquired for a value and therefore there is a transfer of Capital asset chargeable to Tax. The CIT(A) upheld the order of A.O. holding that this is not a case where extra FSI had occurred due to change in the law but TDR already existed at the time of reconstruction of society’s Bldg.

The Tribunal followed a decision by Coordinate Bench in the case of New Shailaja CHS involving similar controversy and held that sale of TDR does not give rise to any Capital Gains chargeable to tax.

The High Court looked into the provisions of Sec. 48 wherein mode of computation of Capital Gain is laid down, Sec. 49 wherein cost with reference to certain modes of acquisition is set out and Sec 55 (2) clarifying the cost of acquisition for the purpose of sec 48 of 49.

The High Court gave a finding that in the present case additional FSI/TDR is generated by a change in D.C. Rules and it is not a case of sale of development rights which were embedded in the land. High Court held that Tribunal has followed its own decision in New Shailaja Co-operative Housing Society which is based on Supreme Court’s decision in B.C. Srinivasa Setty 128 ITR 294 SC holding that society did not incur any cost of acquisition in respect of the right emanating from 1991 Rules.

The High Court upheld the Tribunals order.

This judgment will be a big relief for all those societies which have redeveloped their properties.

 

Lift expenses has to be shared by all housing societies members

By Maharashtra Bureau

Mr. S.B.Bhinde a shopkeeper and full-fledged member of Housing Co-operative Society has written to me to know whether a society can now all of a sudden recover lift charges when especially he has not paid for the same for the last 14 years. Mr. Bhinde, writes that the Society is not ready to listen to the shopkeepers and garage owners at all in this matter. A very important question is when the shopkeepers and garage owners who are the member of the society and who have been given the share certificates and those who do business from the ground floor of the building are liable or not pay for the lift expenses in a Society?

Most of the Societies do not recover expenses relating to lifts from shopkeepers and garage owners. Some Societies do not recover lift expenses even from members residing on the ground floor stating that such members do not use the facility of lifts at all.

In many buildings, the shops are located in the front portion of the building and the building for residence is built at a distance of 50 to 100 feet. However, the Society is named for both shopkeepers and the members residing in the building. Often the shopkeepers do not even see the face of the lift as there is considerable distance between the shop and the lift. Lately, many Societies have adopted the Model Bye-law and it is indicated in section 71(A)(5) that all members will have to bear the expenses of lift equally. Whether the member uses the lift or not, would not matter at all. It is also mentioned in the same section that the expenses of the salary of the liftmen, running the lift, electricity expenses etc. should be paid equally by all members. Moreover when the society has to spend heavily to get the lift repaired the expenses for the same should be borne equally by all members.

-When a lift goes out of order and it has to be repaired, the society may have to spend lakhs of rupees. How can the society recover from a member who is not using the lift facility to contribute towards such heavy charges?

Most of the shopkeepers and the garage owners register their strong protest over this issue. Many shopkeepers and garage owners remove items of expenditure on lift from maintenance bill and show a willingness to pay only the rest of the bill. Now the question is that once a society has adopted the Model Bye-laws then whether it is incumbent upon every member including shopkeepers, garage owners and members residing on the ground floor and first floor to pay for such charges? It is to be remembered that while paying such a bill if the member refuses to pay charges for lift expenses, the society is not bound to accept the bill at a reduced rate? Once the member is given a bill, it is his responsibility to pay the full amount. The society is not bound to accept the reduced amount.

Now suppose due to this dispute, if a member does not pay full maintenance bill has the society any remedy for the same? Certainly. A society can serve a notice upon such a member under section 101 of the Maharashtra Co-operative Society Act. On receiving this notice, if the member does not pay full maintenance bill then the society can get a certificate from the Registrar under section 101 of the Maharashtra Co-operative Society Act. Once this certificate is given to the society by the registrar, the society has to give a second notice to the member concerned. If the member still does not pay the maintenance bill in full, then the Registrar may assign tax recovery officer who will take charge of all items in the members flat and may auction them to recover the amount due to the society. If the society’s maintenance bill has gone up to the extent that it cannot be recovered by auctioning all the items in the member’s premises then he may even auction the flat, shop or garage and recover the entire dues for the society.

For this reason, it is my sincere advice that if the society has adopted the Model Byelaws the shopkeepers, garage owner or the member of the first and ground floors should pay for lift expenses.

 

Housing societies below 100 member may hold election on own

By Maharashtra Bureau

After several efforts from consumer activists, the state cabinet immune those cooperative housing societies who have less than 100 members may soon be allowed to hold elections itself rather than going to long process.

“The decision of cabinet will have to enacted through amendment or ordinance of  Maharashtra Cooperative Societies Act. Till then, elections will be held under the supervision of the election authority”, Official from Maharashtra State Co-op Housing Society Federation said

Previously, the societies need to approach Maharashtra State Cooperative Election Authority for election.

For conducting elections the state government established Maharashtra State Cooperative Election Authority in 2015.

In which housing societies were also included, the consumer activist contrary to the addition of housing societies it stated that long paperwork and the expensive process would create an unnecessary burden.

For carrying out elections societies need to spend around Rs 10,000 – Rs 25,000. In which it has to inform at least 3 months prior.

The committee was formed to seek into the matter and resolve an issue quickly. Recently the committee submitted reports and recommended to free the smaller housing societies.

FAQs: Repairs & Leakages in Housing Societies

By Maharashtra Bureau

Q1 What action has to be taken by the Committee after going through the report for repairs to be undertaken in case the repairs have to be done by the member at his cost?

Ans. In respect of the repairs to be carried out by the member at his cost, the committee issues the notice to the member, indicating therein, the particulars of repairs necessary at his flat and calls upon him to carry out the repairs to his flat to the satisfaction of the architect approved by the Society, if any, at his cost, within such period as the Committee may allow.

Q2 Member ‘A’ is holding terrace flat. Damage caused to the plaster of ceiling of his flats, and then can the society incur the cost of it from its own fund?

Ans. If there are outside repairing word of such flats them the society has to bear that cost. However internal plasterwork of the ceiling should have to incur by the ‘A’ him. Similarly, if the work is regarding structural stability (a recasting of slab) then the society has to incur it by its fund.

Q3 Member ‘A’ stays on upper floor he has not done any type of repairing or changes in his flat, even then the leakage develops in the flat of member ‘B’ residing below ‘A’ than can the cost incur on it made from the funds of the society?

Ans. Under bye-laws, it is obligatory to incur such cost by the A and B together. The society cost as per the resolution of general body meeting.

Q4 What power does the Society have regarding an examination of the Flats and for what purpose?

Ans. Every member has to allow the Secretary of the Society, accompanied by any other member of the Committee, to enter upon his flat with prior intimation to the Member by the Secretary of the Society, to examine its condition for ascertaining the repairs, if any, necessary for the purpose of facilitating the discharge of functions mentioned under the Bye-law No. 156 by the Committee.

Q5 When can the Society cause the structural audit of the building to take place?

Ans. The Society has to cause the structural audit of the building of the society as follows:
a. For the building ageing 15 to 30 years – once in 5 years;
b. For the building ageing above 30 years – once in 3 years.

Q6 What action to be taken if lower floor flat owner makes complaints that leakage from the flat caused nuisance, however member from the upper floor did not co-operate for repairing?

Ans. It is expected that members should Co-operate with each other for leakages.  Society first by calling upon both the members for a joint meeting, try to create an atmosphere of getting co-operation for repairing.  If a member is not co-operating and not allowing office bearers of the society/workers in his flat then by making a complaint to the local police station repairing work can be get done through the workers by taking help of local police.  In this regard, a member who caused a nuisance of leakage can seek justice from the co-operation court under section 91 in respect of the leakage problem.

Q7 What does the Secretary have to state after the examination of the Flat?

Ans. The Secretary of the Society has to report to the Committee, and indicate therein, the particulars of the repairs which have to be carried out by the society at its cost and those repairs which have to be carried out by the members at their cost.

Q8 What action has to be taken by the Committee after going through the report for repairs to be undertaken in case the repairs have to be done by the Society at its cost?

Ans. On receipt of the report, the Committee has to ascertain the cost involved in the repairs, which are required to be carried out by the Society at its cost as provided under the Bye-law No. 160(a) and the notice has to be served on the member for such period as the Committee thinks adequate, and also specify its intention to carry out the repairs and thereupon on the receipt of such notice, the member concerned has to allow the workmen engaged by the society, directly or through its architect, access to his flat for carrying out the repairs.

 

Q9 Member ‘A’ resides on upper floor, he has made internal repairing in his gala. This caused damage to the plaster of ceiling of the Member ‘B’ who stay at lower floor, then can a repairing of the ceiling of member ‘B’ made from the funds of the society?

Ans. Such expenses should be borne by Member ‘A’. If he denied that justice can be sought under Section 91 of the Maharashtra Co-operative Societies Act, 1960 by filing a suit in the Co-operative Court and similarly from the local authorities (Municipal Corporation) by making a complaint.

 

Q10 Who has to conduct such a structural audit?

Ans. The structural audit has to be conducted by the Engineers from the panel of Municipal Corporations in case of the Societies which are in the limits of Municipal Corporations.  In the case of other societies, such structural audit has to be carried out by the Govt. Approved Engineer.

Q11 If one member while doing repairing in his gala caused damages to the other member’s gala then which officer gives a decision on it? And whether dues of the societies can be withhold due to this reason?

Ans. Justice can be seeking in this regard by filing a suit in the Co-operative Court as per provisions in Section 91 of the Maharashtra Co-operative Societies Act, 1960. However, the dues of the society cannot be withheld for this reason.

 

Q12 What can be done if the member concerned does not agree to comply with the notice issued by the Society to carry out the repairs on his cost?

Ans. If the member fails to comply with the notice, the Secretary of the Society or the Architect appointed by the Society shall be deemed to have the authority to enter upon the flat after giving due notice to the member concerned and cause the repairs to be carried out. The amount which is spent by the society on such repairs is to be recovered from the member concerned.

 

Q13 Member ‘A’ resides upper floor. Since he has done repairing work, this cause leakage in the gala of member ‘B’ who reside low on that floor. Then can society make repairing of its own fund?

Ans. It will be necessary that the said expenses should be borne by the Member ‘A’.  Justice can seek in this regard by filing suit under Section 91 of the Maharashtra Co-operative Societies Act, 1960.

 

Society members are not Allottee as per RERA

By Dr. Sanjay Chaturvedi LLB, Ph.D.

Smt. Vimla Kapoor V/s M/s. Ekta Supreme Corporation (CC006000000023132) Order dated: 10th April 2018

The complainant who is members of o redevelopment society known as “Corner View CHS Ltd” has filed this complaint in the Maha RERA registered project bearing No. P51800000908 at Bandra (West), Mumbai seeking following directions to the respondent.

To give the complainant an additional 41% carpet area over and above the original carpet area of 824 sq.ft. as the rightful and legitimate FSI of the complainant’s property by virtue of the fungible FSI given by Competent Authority i.e. MCGM.

To enter into an agreement for sole for the said premises for the extra carpet area as decided in development agreement / Supplement Development agreement.

To pay the hardship cost/corpus fund to the complainant as given to other commercial uusers/allotteeson the ground floor of the project and to adjudicate for the losses incurred and interest on the amount accrued as per the Act.

This matter was finally heard today. The complainant argued that she is the rightful owner of the apartment in Corner View CHS Ltd. since 1979 which is being redeveloped by the respondent. The latter has denied possession of the apartment agreed to be transferred to her in redeveloped building after forcefully evacuating her from her original premises under section 354 of the BMC Act. She has not given consent for the redevelopment and was forced to accept respondent’s conditions on which he had entered into the agreement with her on 30-09-2009. He never got it registered as required under prevalent laws and in violation of section 13 of the Act. The complainant, therefore argued that she may be given possession of her shop premises under section l9 (3) of the RERA Act,2016 in the redevelopment project of the respondent, since she is occupying the same for the last 40 years.

Maha RERA Ordered: this Authority gets jurisdiction to resolve the dispute pertaining to the sole component. According to Section-3 (2)C, of RERA Act, 2016, no registration of real estate project is required for the purpose of re-development. As the complainant’s claim pertains to the redevelopment component, which is not registered with this Authority, the claim of the complainant is beyond the jurisdiction of this Authority. Complaint Dismissed.

 

Is Society Redevelopment having jurisdiction of RERA?

By Sanjay Chaturvedi LLB, Ph.D.

Himbindu Co-operative Housing Society V/s Mr. Jitendro Shankarlal Brahmbhatt ([email protected]) Order dated: 5th Jan 2018

The complainant Society, through it’s Secretary, has filed this complain seeking following directions from this Authority

a) To register the Second Supplementary agreement doted 23rd August 2015 on payment of all dues within such time as may be fixed by the court.

b) To execute and register for fresh Supplementary agreement.

c) To pay Rs.50,000/- p.m. from September, 2015 to date of registration of supplementary agreement dated 23.08.2015.

d) To pay each of the members liquidated damages.

e) Such other reliefs as is prayed for in complaint.

The respondent disputed the claim of the complainant and stated that the present complaint is not maintainable, since it is o dispute between the society and the promoter. There is no violation of RERA Act, Rules and Regulations made there under and this Authority has no jurisdiction to try and entertain such disputes.

Maha RERA Order: Considering the rival submissions mode by both the parties and after perusing the record, this Authority has observed that Maha RERA is not the forum for the settlement of dispute between the society and the promoter arising out of the development agreement. Further, in the present case the dispute between the complainant and the respondent is of civil nature and does not pertains to any violation of RERA Act, Rules or Regulation mode there under.

Who’s Responsible for ‘Leakage’ Repairs in societies

By Legal Bureau

Introduction-Everyone is waiting for rainy season and now finally after a long wait the season of rainy is finally going to be arrived. But what is the first thought which comes into general public minds when we have our anticipation about the rains??? Hmmm… hold on… let me share you my intuition about it. It’s about leakage, flat’s walls getting wet during the monsoon and the list goes on. There is often a lot of dispute and complaints about it between the society and its members and the society and its committee do not respond to any of the complains of its members that who shall be really held responsible for it. And now here is the answer for it.

The answer of your each and every questions and dilemma is cited under section 160 of model bye-laws  which says that the following Repairs and Maintenance of the Society’s property shall be carried out by the society at its cost:

A)(i) All Internal Roads
(ii) Compound walls
(iii) External water pipes
(iv)Water pumps
(v) Water storage tanks
(vi) Drainage lines
(vii) Septic tanks
(viii) stair-cases
(ix) Terrace and parapet walls
(x) Roof of flats
(xi) Staircases lights
(xii) Street lights
(xiii) Outside walls of the building/buildings
(xiv) All leakages of water (xv) electric lines up to main switches in the flats and (xvi) lifts if any
(xvii) Roofs of the flat and ceiling and the plaster thereon on the top floor on account of the leakages of the rain water through the terrace.
 

(B) All these are exhaustive in nature and the repairs not covered by the underneath  Bye-law, shall be carried out by the members at their cost.     

Accordingly, if there is leakage on the external walls of your flat leading to leakage within, the onus of repairs falls squarely on the Society at its cost. Send the managing committee a legal notice for the same through a lawyer and follow up with the secretary of the society.  There is also a prominent judgment referring the above matter given by Bombay high court in the case of Humble Home Co-Op Housing Society Limited V/S Sham Balani And Another Decided On Wednesday, June 28, 2006 and its being ordered in the above matter that Terrace repairs is the responsibility of the society .The first issue has been answered by holding that the terrace which forms the roof of the disputant’s lat is the property of the society and therefore, in reply to issue No. 2, the society has been directed to pay an amount of  8.458/-

As per the old Bye-laws it was stipulated that internal leakage as well as external leakage of the premises was the responsibility of society. However, in the new Bye-Laws it is specifically mentioned that internal leakage will be the responsibility of the member.

If the resident above and/ or society is not co-operating to solve the internal leakage problem, you can complaint to local BMC ward office. BMC has the power to inspect and then issue a notice to the resident staying above, under section 381 of the BMC Act. If the member or the society still does not act, then there are several district court orders (Vile Parle district court order on Prashant Trivedi v/s Bansi CHS, as reported by DNA newspaper on 22/1/2011) also in such matters of internal flat leakage.

Other solutions for solving internal flat leakage problem:

  • File police complaint.
  • Mandatory injunction against him/her for carrying out the repairs to the seepage or file a civil suit for injunction and obtain stay order restraining that resident from using the area which is the cause for the seepage
  • For quick response file a petition u/s 133 crpc in the court of local 2nd Class Magistrate.
  • Criminal cases can also be filed against him/her with charges of criminal intimidation and verbal abuses/insult.

 

Is RTI applicable on Housing Society

By Adv.Hemant Agarwal

In general anticipation of at least a consolation relief, scores of Society members and related activists have been consistently yearning for the Coop. Societies to come within the ambit of the Right to Information Act.

CONTRARY to the increasing yearning!!!! :

01. Direct application of “Right to Information Act”, CAN-NEVER-EVER is applicable to Non-Aided Coop. Societies of any kind (including Housing Societies). Coop. Society is a group of members, means OF the members, BY the members, FOR the members, ONLY.

REASON: The office-bearer of a Non-Aided Coop. Society “CANNOT” be classified as a “Public Information Officer” (u/s 2(l)), simply because they are not within the pay ambit defined for “Public Information Officer”, which further means that a “Public Information Officer”, must mandatorily be a Public servant or a Govt. Servant (refer section 20(2), who must be drawing Salary from the Public coffers, which in any case cannot be stated /defined for a office-bearer of a Coop. Society.

02. Applicability of “Right to Information Act”, to the Cooperative Society’s is wishful thinking (flying Horses). However, selective information from a Cooperative Society can be obtained by making an RTI Application u/s 2(f) to the competent Public / Govt. Servant (example: to the Deputy / Assistant Registrar of Cooperatives), since he alone is bound by law (as a State PIO) to obtain relevant documents from the coop. Society AND THEN provide it to the RTI applicant. Quote u/s 2(f): […. Information relating to any private body which can be accessed by a public authority under any other law for the time being in force]

a) NOTE: Such procurable information under RTI, would only be in the nature of documents relating to the Society Registration & Membership details, the Audited Balance-Sheet, the registered Bye-Laws, the minute books of the Managing Committee meetings, the minute books of the

General Body meetings and so on …. BUT to the exclusion of any further documents concerning the Society’s business.

b) NOTE: U/s 32 of the MCS Act, 1960, “restrictions” are already in place for providing information about its own members to other members in the same Society, leave aside providing information to non-members (means the Public). The provisions of the RTI Act, would not be able to supersede the established “autonomous provisions” of the MCS Act, and on the contrary would be contrary to the established provisions of the MCS Act. c) For obtaining any & all (information) copies of the various records & registers of the Society, other legal options have to be adopted.

03. Scores of Coop. Society members and related activists are being mislead by some self-glorifiers, that the office-bearer of a Coop. Society, has become

a “Public authority” u/s 2(h), just simply because now the Coop. Society has become a “self government established /constituted under the Constitution (97th Amendment) and/or under the State Legislature”, WHEREAS to the contrary, a “Public Authority” can only be a person who is a Public / Govt. servant, which is mandatory. In the case of a Coop. Society, its office-bearers CAN NEVER is classified as a Public / Govt. servant.

NOTE: The Gujarat High Court has declared on 22-04-2013, that “Articles 243ZH to 243ZT” of the 97th Constitutional amendment are “ultra virus”.

These articles were SPECIFICALLY & SPECIALLY related to the Coop. Society’s. The MCS (Amendment) Ordinance, 2013, of 15-02-2013 is based on Constitution [97th amendment] Act, 2011, making it as in fructuous.

04. A non-aided Coop. Society is not liable to answer ANYBODY (to the exclusion of its own members), for the profit / loss earned OR on the admission /rejections of memberships OR making expenses for the Society OR any other business (under MCS Act) of the Society.. The decision of an autonomous Coop. Society is challengeable selectively /alternatively before the Coop. Registrar and/or before the Coop. Court.

05. WHO IS A “Public Authority u/s 2(h)” of the RTI Act?

a) A Public Authority is mandatorily a Public servant or a Govt. Servant (u/s 20(2) and should necessarily be drawing Salary from the Public coffers.

b) The senior most officer of the relevant Public /Govt. dept., appoints a competent officer for the “additional” post of “Public Information Officer (PIO)” (u/s 2(l), for the purposes of RTI Act, who is classified as a “State PIO”, meaning he works for the particular State of India.

c) The PIO (u/s 2(l), is mandatorily a Public /Govt. Servant, mandatorily drawing his salary from the Public coffers along with the relevant pay benefits, holidays, retirement benefits and so on….

d) A PIO cannot be honorary or a voluntary Public /Govt. servant, simply because there is no such provision under the present laws, for a “Public /Govt. servant” to work without Salary & other retirement benefits.

e) The RTI-PIO, mandatorily being a “Public /Govt. servant” and drawing Salary from the “Public Coffers” CANNOT hold any “office of profit”, which in turn means that he cannot conduct any Business or join any other private job, till he remains a Public servant or a Govt. Servant.

f) Presently no Public servant or Govt. servant is designated as a stand-alone Public-Information-Officer. A PIO is logically a person holding an additional post apart from his usual post. By example a PSU bank manager, is a PIO for his branch, which means the bank manager is a Bank-Manager cum PIO. The Appellate authority, mandatorily has to be next in rank (u/s 19(1)), and in a PSU bank it is generally the Deputy General Manager who holds multiple positions viz…. Deputy General Manager cum (&) Appellate Authority (RTI). Here the “Public Authority u/s 2(h), too would be the Deputy General Manager cum Appellate Authority (RTI)

g) Information under RTI can be sought from Public / Govt. Dept., for any periods, even for the previous 30 years. Records have to be mandatorily maintained, preserved and/or reconstructed by the departments PIO. The PIO is liable to provide correct information on time and in the format it is sought for. Refusal /Failure of which, the PIO can be subject to “departmental disciplinary action” u/s 20(2) & imposition of “penalty up to 25,000/-“u/s 20(1).

h) NOTE: Disciplinary action against the PIO, is possible under the “Service Rules” applicable to the PIO as provided for u/s 20(2), which reinforces the fact that the PIO has “mandatorily” to be “Public / Govt. servant” and the “Code of Conduct of services rules”, is applicable to the State PIO.

i) The PIO is liable under The “Public Records Act, 1993″, to maintain, preserve and/or reconstruct the missing / mutilated public documents.

06. WHY a Coop Society CANNOT appoint an RTI-PIO:

a) The office-bearers of a Coop. Society cannot be defined as a “Public /Govt. servant”, hence do not derive authority to appoint a “Public Authority u/s 2(h) .OR. A PIO u/s 2(l)”. ONLY & ONLY a “Public / Govt. servant”, derives the lawful authority to appoint a “Public Authority u/s 2(h) or a PIO u/s 2(l)”.

b) The office-bearers of a Coop. Society cannot draw Salary from the Public coffers along with the relevant pay & retirement benefits and so on…., simply because they are not classified as a “Public /Govt. servant”.

c) The office-bearers of a Coop. Society have to mandatorily work as “Honorary Workers”, (means without Salary) simply because under the provisions of the MCS Act, Rules & Bye-Laws, there is simply no provision for payment of Salary, pay benefits, holidays, retirement benefits and so on…. In exceptional events & subject to various parameters & subject to “income over expenditure”, a token “Honorarium fees”, MAY be given to the office-bearers of a Coop. Society. Honorarium Fees are not defined as Salaries.

d) “Code of Conduct of services rules”, DO NOT apply to the office-bearers of a Coop. Society, simply because they CAN hold any “office of profit”, which in turn means that they CAN conduct any Business or join any other private job, since they are not a Public / Govt. Servant. Hence nobody can be appointed as a PIO of a Coop. Society, which means that RTI Act cannot be made applicable to a Coop. Society.

e) IF AT ALL, a Coop. Society were to appoint an PIO, THEN it would have to be from the “duly constituted” Mg. Committee itself AND NOT from the members of the General Body, due to authorities hurdles and due to the fact that only the Secretary is liable for safe-keeping and assessing the Society records. IF a Society Secretary is made the PIO (u/s 2(l), THEN the Appellate Authority (u/s 2(h) would be the Society Chairman, which by default would mean & result in gross failure of the RTI movement in a Coop. Society, given the evidently consistent gross  Apathy, Ignorance, Arrogance, Ego being cultivated in Coop. Societies.

f) Under the various parameters prescribed under the provisions of the MCS Act, Rules & Bye-Laws, a Coop. Society is bound to preserve its records for a maximum of 10 years, to the exclusion of the Society Registration documents, the Share Certificate Books, the various registers pertaining to its members, the various minute books pertaining to Mg. Committee and General Body meetings, which are to be preserved life-long, in its original state.

g) The Officer-Bearers of a Coop. Society has no authority to reconstruct any Society records & registers, without the express approval of Society General Body and the Final directions of the Coop. Registrar, failure of which it will be termed as “Fraud & Forgery”. The “Public Records Act, 1993” will not be applicable to Coop. Society’s. The member’s records & registers of a Coop. Society are held in a Fiduciary-in-Confidence u/s 8(1 )(e), the information-disclosure of the same would not warrant any larger public interest.

h) The Officer-Bearers of a Coop. Society, not being a Public / Govt. servant, cannot be penalized up to 25000/- u/s 20(1), for Refusal /Failure to provide Information and neither can be subject to “departmental disciplinary action” u/s 20(2). IF the PIO is a office-bearer of a Coop. society, THEN the penalty up to 25000/- (u/s 20(1)), cannot be recovered, simply because the office-bearer of a coop society work on honorary basis and further the said penalty amount cannot be recovered from the Coop. Society Coffers (i.e. members funds), THUS “jinxing” the provisions u/s 20(1) & 20(2) of the RTI Act.

i) On an average the gross yearly salary for a “Public /Govt. servant” is approx. 300,000/- per annum, specifically for a person who could be competent enough to be designated as a PIO (RTI) cum regular post. Similarly for an Appellate Authority (RTI) cum regular post, the average gross yearly salary for a “Public /Govt. servant” is approx. 500,000/- per annum, for a person who could be competent enough to be designated as a Appellate Authority (RTI) cum regular post.

NOTE: A Coop. Society does not have any “Public Coffer” to afford around Te Lakhs annually, to pay such PIO & Appellate Authority, and leave aside the decade-old pending expenses of repairing & painting the society buildings. This being further so when the Coop. Society maybe a small Society with only 20 members, wherein logically the Society cannot annually spend around Ten Lakhs to pay as Salary to the PIO and the Appellate Authority

.07. BUMPER INTROSPECTION:

a) IT would be infructuous to imagine that the Govt. would designate a PIO for each Coop. Society, especially so when the Govt. wants the Coop. Society to function on Autonomous mode, without the interference of the Govt. & other persons with vested interests.

b) IT would be a further gross misconception to imagine that the Govt. would pay the salaries of the PIO’s that would be required to be designated for each Coop. Society.

08. INSTANT INFALLIBLE SOLUTION:

a) Depending on the State Governments inclination towards upholding the Cooperative Movement, AND under the powers vested u/s 157 & 158 of the MCS Act, the State Govt. may depute a dedicated “visiting PIO”, from the Coop. Dept., to each Coop. Society, on “fee-recoverable basis” from the coop. society, who would authoritively access the Society records & registers (u/s 80(3), 81, 83, 84, 89A) & provide all the relevant information to the RTI Applicant.

b) The next-in-rank, means the “Appellate Authority” under RTI Act, would obviously be the Deputy Registrar of the ward, who would obviously be forced to sit-up from his apathy-chair, to uphold the Coop. Movement, using his Suo-Moto powers /authority, to rectify the defect shown by his own departments PIO.

c) This OBIVOUSY would instantly truncate out ALL the consistent gross Apathy, Ignorance, Arrogance, Ego being cultivated in Coop. Societies, besides disciplining the over-all needs & discontent of the Society members.

d) This could also alleviate unemployment, which is over 40% of the gross population of any State. The educated unemployed would be more than happy and the Registrar could delegate his authority to a “authorized officer” who would be appointed as the PIO (under delegated authority), who’s fees would be recoverable from the Coop. Society, since the so appointed “Authorized Officer cum PIO” would be covered as a Public Servant u/s 21 of the Indian Penal Code.

QUOTE: “It requires a very unusual mind to undertake the analysis of the obvious”