Members get right to park their car inside the society

By Maharashtra Bureau

THANE

The Maharashtra State Co-operative Appellate Court recently overruled the request of the committee of society for challenging the cooperatives courts order. It ordered the relief to 3 members who were in a two-year legal battle for car parking in their society.

The society consists of 69 stilt and 34 open parking spaces and 168 flats.

The cooperative court gave the decision to affected car owners and the society committee requests appellate court against the order.

The committee used the society fund for paying lawyer and architect without the approval of society members for stating that there is no extra parking space, three members alleged said.

One member from three of them said, the chairman of the society had four parking spaces, one had stilt parking and open parking with one car and also parking was given to non-member of society.

The managing committee closed the exit gate when they were parking cars outside the society, said one of the above alleged.

These 3 members purchased cars in 2016 and we told them as the society rules, parking will be based on a rotational basis and first come first serve basis. As per the queue, their number is 6th or 7th but they want immediately, Chairman of society said.

Also, read the article on Open Car Parking Spaces Cannot Be Sold, Allottee Eligible For Parking.

Transfer fee in housing society fixed to Rs 10k in Chandigarh

By Haryana Bureau

CHANDIGARH

Haryana Government has notified the Haryana Registration and Regulation of Societies (Amendment) Rules, 2018. Now any housing society in Haryana will not charge more than Rs 10,000 as transfer fee in case of change of ownership of apartment.

According to the notification, the Society will fix the maintenance charges on the basis of the size of apartment for maintenance of common area and facilities, as such, existing society will also modify the bye-laws accordingly and get the modified bye-laws approved from the District Registrar.

The amendment further stated that every existing society will apply to the District Registrar for allotment of a new registration number within a period of two years from the date of coming into force of the Act without any fee, or, within next 57 months and three days that is up to December 31,2018, on payment of fee set out in the Schedule of fees. The Society will file an application and submit the required documents along with a certificate from the Society, as being presented before the District Registrar, conform to the provisions of the Act.

Housing societies on Govt Plots to get ownership in Maharashtra

society

By Maharashtra Bureau

The state revenue department is likely to allow conversion of collector land to freehold plots upon payment of a premium.

The move would benefit around 3,000 housing societies in Mumbai alone. There are around 22,000 such societies across the state.

Salil Rameshchandra, a resident of Chembur’s Shivshristi housing society, said conversion to freehold would rid them of red tape. “Now for every change, transfer we need prior permission from the government. The new premium and other charges for redevelopment have made the project completely un-viable,” he said. Rohit Badame, a consultant for sale of flats on collector land said the Maharashtra Land Revenue Code allows the government to place restrictions on transfer of land as the plots had been granted for an objective.

“However, the collector regulates the sale, management and transfer of flats, which is not its mandate. Under the guise of regulation the collector’s office only harasses citizens,” he said.

It was in 2016 when Eknath Khadse was the revenue minister that the state cabinet approved a proposal to convert occupants’ class II land (collector land) to freehold land.

It even set up a committee headed by revenue secretary Manu Kumar Srivastava to recommend the conversion. A senior revenue official said the government would allow the conversion provided the residents are willing to pay for it. The report is expected to be submitted to the government soon, said the official.

“The state has only sold leasehold rights. It still has residual rights to these plots and if it is to give up these rights then it is only right that it charge for it. The money that will come from the conversion of these plots to freehold will only be used for development works,” said the official.

While the report is yet to be submitted, the department has increased the premium for redevelopment of buildings on the collector land from 10% to 25% of the Ready Reckoner Rate. Residents will have to pay another 1% of the RRR if they want to mortgage the land for raising funds for the redevelopment.

No Capital Gain Tax On Society Redevelopment

By Legal Bureau

Kushal K. Bangia vs. ITO (ITAT Mumbai) – In principle, though the scope of “income” in s. 2(24) is very wide, a capital receipt is not chargeable to tax as income unless there is a specific provision to that effect. As the residential flat owned by the assessee in the society’s building was a capital asset in his hands, the compensation was a capital receipt.
The department’s argument that the cash compensation was a “share in profits earned by the developer” is not acceptable because it proceeds on the fallacy that the nature of payment in the hands of the payer determines the nature in the hands of the recipient. However, as the said receipt reduced the cost of acquisition of the new flat, it had to be taken into when computing the gains from a transfer thereof in the future
INCOME TAX APPELLATE TRIBUNAL, MUMBAI
I.T.A No.2349/ Mum/2011 Assessment year: 2007-08
Kushal K Bangia
Vs
Income Tax officer
Date of pronouncement : 31 .01.2012
ORDER
Per Pramod Kumar:
1. By way of this appeal, the assessee has called into question correctness of CIT(A)’s order dated 9th December, 2010, in the matter of assessment under section 143(3) of the Income tax Act, 1961, for the assessment year 2007-08 on the following grounds:
“1. The ld CIT(A) has erred in confirming the addition at Rs.11,75,000 received by the assessee as cash compensation. He has further erred in confirming the said addition to the income under the head income from other source. The reasons assigned by him doing the same are wrong and insufficient. Provisions of the act ought to have been properly construed and applied. Regard being had to the facts and the circumstances of the case, the said addition ought to have been deleted, being in the nature of capital receipt.
2. Without prejudice to ground No.1, and as an alternative ground of appeal, the ld CIT(A) has erred in confirming the addition of rs.11,75,000 received by the assessee as cash compensation under the head income from other sources, instead of long term capital gain. The reasons assigned by him doing the same are wrong and insufficient. Provisions of the act ought to have been properly construed and applied. Regard being had to the facts and the circumstances of the case, the said addition ought to have been assessed as capital gains.”
2. The issue in appeal lies in a narrow compass of undisputed facts. The assessee before us is an individual and he had received a sum of Rs.11,75,000 on account of what he now terms as, ‘cash compensation’. It is taxability of this amount of Rs.11,75,000 which is in dispute before us, and it is, therefore, necessary to understand the back ground in which this amount was received. The assessee was member of a housing society by the name of Vile Parle Ramesh CHS Ltd. This housing society, alongwith it’s members, entered into an agreement with a developer, and, under the said agreement, the developer was to demolish the residential building owned by the housing society, and reconstruct a new multistoried building by using the FSI arising out of the property, and by utilizing outside TDR under Development control Regulations. Under this arrangement, the assessee, as a member of the housing society, received a slightly larger flat in the new building, which had an additional area of 173 Sq. ft, a displacement compensation of Rs.6,12,000, which was computed @ Rs.34,000 p.m. for the period of construction of the new building, and an additional compensation of Rs.11,75,000. On these undisputed facts, the Assessing Officer was of the opinion that the cash compensation of Rs.11,75,000 is required to be treated as ‘casual income’, and, accordingly, taxable in the hands of the assessee. The Assessing Officer also brought to tax estimated value of additional area in the new flat, but since CIT(A) has deleted the same and revenue is stated to be not in appeal against the same, we are not really concerned with the same. Aggrieved, inter alia, by this addition of Rs.11,75,000 on account of cash compensation, assessee carried the matter in appeal before the CIT(A) but without any success. The assessee is in further appeal before us.
3. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position.
4. In our considered view, it is only elementary that the connotation of income howsoever wide and exhaustive, take into account only such capital receipts are specifically taxable under the provisions of the Income tax Act. Section 2(24)(vi) provides that income includes “any capital gains chargeable under section 45”, and, thus, it is clear that a capital receipt simplicitor cannot be taken as income. Hon’ble Supreme Court in the case of Padmraje R. Kardambande vs CIT (195 ITR 877) has observed that “..,, we hold that the amounts received by the assessee during the financial years in question have to be regarded as capital receipts, and, therefore, (emphasis supplied by us), are not income within meaning of section 2(24) of the Income tax Act….” This clearly implies, as is the settled legal position in our understanding, that a capital receipt in principle is outside the scope of income chargeable to tax and a receipt cannot be taxed as income unless it is in the nature of revenue receipt or is brought within the ambit of income by way of a specific provision in the Act. No matter how wide be the scope of income u/s.2(24) it cannot obliterate the distinction between capital receipt and revenue receipt. It is not even the case of the Assessing Officer that the compensation received by the assessee is in the revenue field, and rightly so because the residential flat owned by the assessee in society building is certainly a capital asset in the hands of the assessee and compensation is referable to the same. As held by Hon’ble Supreme Court, in the case of Dr. George Thomas K vs CIT(156 ITR 412), “the burden is on the revenue to establish that the receipt is of revenue nature” though “once the receipt is found to be of revenue character, whether it comes under exemption or not, it is for the assessee to establish”. The only defence put up by learned Departmental Representative is that cash compensation received by the assessee is nothing but his share in profits earned by the developer which are essentially revenue items in nature. This argument however proceeds on the fallacy that the nature of payment in the hands of payer also ends up determining it’s nature in the hands of the recipient. As observed by Hon’ble Supreme Court in the case of CIT vs. Kamal Behari Lal Singha (82 ITR 460), “it is now well settled that, in order to find out whether it is a capital receipt or revenue receipt, one has to see what it is in the hands of the receiver and not what it is in the hands of the payer”. The consideration for which the amount has been paid by the developer are, therefore, not really relevant in

Societies cannot charge bills on flat size in Maharashtra

By Legal Bureau

The new guideline of BMC which includes Flower Beds, Lift wells etc in carpet area will not effect the society bills.

The maintenance bills by co-operative housing societies cannot be charged on the basis of area of the flat. The size does not make more or less the services availed by the member. It is sensible to charge the maintenance bills equally from members of the society, rules Bombay High Court, in the court of Mr. Justice Rajan Kochar.

The Bombay High Court had passed a ruling previously stating that society cannot charge non occupancy charges one and half times of the services from its members.

Co-operative housing societies charge its members monthly for services like watchman, power, water, taxes etc. The societies charge its members on the basis of area of the flat. It charge more to big flats and less to small flats. According to Bombay High Court it is not fair practice. The Court has accepted that although the managing committee is authorised to fix charges in AGM, but it should take balanced and sensible decisions. AGM majority cannot do injustice to minority. The supremacy of AGM cannot take unjustified decisions.

So, how to charge its members? The society should follow state government rules according Cooperative Act.

The maintenance should be charged according to the provisions of the Act.

Venus Co-operative Housing Society, Worli ( Sea face ), had filed a Writ in the Bombay High Court. The application was dismissed on the above mentioned ground.

Expenses for the lift has to be shared by all the members of Housing Society

By Legal 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 name 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 lakh 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 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 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 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 members premises then he may even auction the flat, shop or garage and recover the entire dues for the society.

For this reason, it is may 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 .

No Capital Gain Tax On Housing Society Redevelopment

By Legal Bureau

Kushal K. Bangia vs. ITO (ITAT Mumbai) – In principle, though the scope of “income” in s. 2(24) is very wide, a capital receipt is not chargeable to tax as income unless there is a specific provision to that effect. As the residential flat owned by the assessee in the society’s building was a capital asset in his hands, the compensation was a capital receipt.

The department’s argument that the cash compensation was a “share in profits earned by the developer” is not acceptable because it proceeds on the fallacy that the nature of payment in the hands of the payer determines the nature in the hands of the recipient. However, as the said receipt reduced the cost of acquisition of the new flat, it had to be taken into when computing the gains from a transfer thereof in the future

INCOME TAX APPELLATE TRIBUNAL, MUMBAI

I.T.A No.2349/ Mum/2011 Assessment year: 2007-08

Kushal K Bangia

Vs

Income Tax officer

Date of pronouncement : 31 .01.2012

ORDER

Per Pramod Kumar:

1. By way of this appeal, the assessee has called into question correctness of CIT(A)’s order dated 9th December, 2010, in the matter of assessment under section 143(3) of the Income tax Act, 1961, for the assessment year 2007-08 on the following grounds:

“1. The ld CIT(A) has erred in confirming the addition at Rs.11,75,000 received by the assessee as cash compensation. He has further erred in confirming the said addition to the income under the head income from other source. The reasons assigned by him doing the same are wrong and insufficient. Provisions of the act ought to have been properly construed and applied. Regard being had to the facts and the circumstances of the case, the said addition ought to have been deleted, being in the nature of capital receipt.

2. Without prejudice to ground No.1, and as an alternative ground of appeal, the ld CIT(A) has erred in confirming the addition of rs.11,75,000 received by the assessee as cash compensation under the head income from other sources, instead of long term capital gain. The reasons assigned by him doing the same are wrong and insufficient. Provisions of the act ought to have been properly construed and applied. Regard being had to the facts and the circumstances of the case, the said addition ought to have been assessed as capital gains.”

2. The issue in appeal lies in a narrow compass of undisputed facts. The assessee before us is an individual and he had received a sum of Rs.11,75,000 on account of what he now terms as, ‘cash compensation’. It is taxability of this amount of Rs.11,75,000 which is in dispute before us, and it is, therefore, necessary to understand the back ground in which this amount was received. The assessee was member of a housing society by the name of Vile Parle Ramesh CHS Ltd. This housing society, alongwith it’s members, entered into an agreement with a developer, and, under the said agreement, the developer was to demolish the residential building owned by the housing society, and reconstruct a new multistoried building by using the FSI arising out of the property, and by utilizing outside TDR under Development control Regulations. Under this arrangement, the assessee, as a member of the housing society, received a slightly larger flat in the new building, which had an additional area of 173 Sq. ft, a displacement compensation of Rs.6,12,000, which was computed @ Rs.34,000 p.m. for the period of construction of the new building, and an additional compensation of Rs.11,75,000. On these undisputed facts, the Assessing Officer was of the opinion that the cash compensation of Rs.11,75,000 is required to be treated as ‘casual income’, and, accordingly, taxable in the hands of the assessee. The Assessing Officer also brought to tax estimated value of additional area in the new flat, but since CIT(A) has deleted the same and revenue is stated to be not in appeal against the same, we are not really concerned with the same. Aggrieved, inter alia, by this addition of Rs.11,75,000 on account of cash compensation, assessee carried the matter in appeal before the CIT(A) but without any success. The assessee is in further appeal before us.

3. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position.

4. In our considered view, it is only elementary that the connotation of income howsoever wide and exhaustive, take into account only such capital receipts are specifically taxable under the provisions of the Income tax Act. Section 2(24)(vi) provides that income includes “any capital gains chargeable under section 45”, and, thus, it is clear that a capital receipt simplicitor cannot be taken as income. Hon’ble Supreme Court in the case of Padmraje R. Kardambande vs CIT (195 ITR 877) has observed that “..,, we hold that the amounts received by the assessee during the financial years in question have to be regarded as capital receipts, and, therefore, (emphasis supplied by us), are not income within meaning of section 2(24) of the Income tax Act….” This clearly implies, as is the settled legal position in our understanding, that a capital receipt in principle is outside the scope of income chargeable to tax and a receipt cannot be taxed as income unless it is in the nature of revenue receipt or is brought within the ambit of income by way of a specific provision in the Act. No matter how wide be the scope of income u/s.2(24) it cannot obliterate the distinction between capital receipt and revenue receipt. It is not even the case of the Assessing Officer that the compensation received by the assessee is in the revenue field, and rightly so because the residential flat owned by the assessee in society building is certainly a capital asset in the hands of the assessee and compensation is referable to the same. As held by Hon’ble Supreme Court, in the case of Dr. George Thomas K vs CIT(156 ITR 412), “the burden is on the revenue to establish that the receipt is of revenue nature” though “once the receipt is found to be of revenue character, whether it comes under exemption or not, it is for the assessee to establish”. The only defence put up by learned Departmental Representative is that cash compensation received by the assessee is nothing but his share in profits earned by the developer which are essentially revenue items in nature. This argument however proceeds on the fallacy that the nature of payment in the hands of payer also ends up determining it’s nature in the hands of the recipient. As observed by Hon’ble Supreme Court in the case of CIT vs. Kamal Behari Lal Singha (82 ITR 460), “it is now well settled that, in order to find out whether it is a capital receipt or revenue receipt, one has to see what it is in the hands of the receiver and not what it is in the hands of the payer”. The consideration for which the amount has been paid by the developer are, therefore, not really relevant.

 

Meetings and Minutes writting in CHS

By Legal Bureau

MEETINGS & MINUTES WRITING OF CO-OPERATIVE HOUSING SOCIETIES

A) FIRST GENERAL MEETING
1. The first general meeting of the promoters who have signed the applications for registration of the society shall be held within the period of three months of the date of the registration of the society as provided under rule 59 of the rules it shall be the responsibility of the chief promoter of the society to convene the said meeting within the stipulated Period.
2. On failure of the chief promoter of the Society to hold the first meeting of the general body within the period mentioned in bye law no 86 the registering authority shall cause it to be called.
3. Fourteen clear days notice of the first general body meeting of the society or as the case may be by the officer authorised by the registering authority to all the promoters who have signed the application for the registration of the society.
4a. The functions of the first general meeting of the Society shall be as under:
i) to elect a president for the meeting.
ii) to admit persons to membership who have applied for membership of the society.
iii) to elect a provisional committee.
iv) to receive and approve the statement of account as prepared by the chief promoter of the society upto 14 days prior to the date of the first general meeting of the Society.
v) to authorise the committee to secure conveyance of the right title and interest in the property in the name of the society from the promoter builder.
vi) to fix the limit upto, which funds may be borrowed.
vii) to appoint internal auditor of the Society for the year if necessary and to fix his remuneration.
viii) to authorise one of the member of the provisional committee to call the first meeting of the provisional committee.
ix) to consider affiliation of the society as member of the housing federation of the district and other institutions mentioned in the bye law no.6
x) to consider any other matter to be brought before the meeting and with the permission of the chair excepting that requiring proper notice.
4b. Where the first general meeting fails to elect a provisional committee the registering authority shall be competent to nominate such a committee including the Chairman and the Secretary of the society for a period of three years.

5. The person who presides over the first general meeting shall record the minutes of the meeting sign them and hand them over to the Secretary of the Society elected at the first meeting of the provisional committee or nominated by the registering authority under the bye law no 89(b).
6. The Chief Promoter of the society shall immediately after election or office bearers of the Society at the first meting of the provisional committee or its nomination by the registering authority under the bye law no 89(b) hand over to the Chairman of the Society or any members of the provisional committee authorised by it in that behalf all records of the Society particularly the copy of the application for registration of the Society received back from the registering authority the copy of the bye laws of the Society registered by the registering authority the certificate of registration of the society the challans for credit of amounts into the bank the counterfoils of the used cheques and the unused forms of the cheques the bank pass books copies of all the agreements entered into by him with the different parties the statement of account as prepared by him the application for membership the statement of information of the promoters the vouchers for amount spent the cash balance if any the site plan, the minutes of the first general body meeting of the society the files of the correspondence with he registering authority the local authority and all such other records and assets of the Society as are in his possession leaving nothing with him.
7. The provisional committee or the nominated committee shall have the same powers and functions as the committee duly elected in accordance with the bye laws of the Society.
8. The provisional committee or the nominated committee shall be in office for a period of one year.
9. The chairman of the provisional committee or the nominated committee shall handover charge of all the assets and papers of the Society to the chairman of the newly elected committee at the time of its first meeting leaving nothing with him.
B) ANNUAL GENERAL MEETINGS
1. The annual general meeting of the Society shall be held on or before 14 August each year or within the extended period as provided under section 75 (1) of the act.
2. The annual general meeting of the Society shall transact the following business.
a. to read the minutes of the last annual general meeting of the society and the special general body meeting of the Society if any and not to action taken thereon.
b. to receive from the committee the report on the proceeding co-operative years working together with the statements of accounts in the form n prescribed under rule 62 of the rules showing the income and expenditure during the proceeding co-operative year an the balance sheet as at the close of the proceeding co-operative year.
c. to consider audit memorandum if received from the Statutory Auditor for the previous co-operative years or year along with the audit rectification report of the committee thereon.
d. to declare the result of election of the committee if election to the committee has taken place during the year in which the annual general meeting of the society is held.
e. to appoint an Internet Auditor if considered necessary and to fix his remuneration.
f. to consider any other matters specifically requiring decisions concurrence or sanction of the general meeting of the Society b virtue of the provisions in act rules and bye laws of the society.
g. To consider any important communications received from the registering authority, the Statutory Auditor, Government, Collector, Local authority or any other officer of the government.
h. To consider any other matter excepting those requiring proper notice with the permission of the chair after the regular agenda is over.
C) SPECIAL GENERAL BODY MEETING
1. A special general meeting of the society may be called at any time at the instance of the chairman or by the decision of the majority of the committee and shall be called within month of date of the receipt of requisition in writing signed by at least 1/5 of the members of the society or from the registering authority or from the housing federation to which the society is affiliated the meeting so convened shall not transact any business other than that mentioned in the notice of the meeting.
2. The requisition for the special general meeting of the society under the bye law no.97 shall be placed within the 7 days of its receipt before the meeting of the committee by the secretary of the society for fixing the date time and place of the special general meeting if the Society
3. The Committee shall decide the date, time and place of very general meeting of them society and the business to be transacted at the requisitioned special general meeting shall be only that mentioned in the requisition. The notice convening the general meeting shall be issued by the Secretary of the society accordingly on his failure to issue the notice the chairman shall, issue it.
4. In case of the annual general meeting 14 clear days notice and in the case of the special general body meeting 5 clears days notice of the meeting shall be given to all the members of the society under intimation to the registering authority in case of an emergency the special general body meeting may be called even at a shorter notice if the committee unanimous decides to call the special general meetings a shorter notice.
5. The quorum for every general meeting of the society shall be 2/3rds of the total numbers of members of the society or 20 whichever is less.
6. If within half an hour after the time appointed for the general meeting of the society there is no quorum the meeting if convened upon the requisition of the members shall be dissolved in any other case it shall be adjourned to a later hour on the same day and at the same place as may have been specified in the notice calling the general meeting of the society or to a subsequent date not earlier then 7 days and not later than 30 days and at such adjourned general meeting the business on the agenda of the original general meeting shall be transacted whether there is no quorum or not.
7. If all the business on the agenda of the general meeting of the society cannot be transacted on the day on which the general meeting is held the meeting shall be postponed t any other suitable date not later than 30 day from the date of the meeting as may be decided by the members present at the meeting.
8. The chairman of the society shall preside over all general meetings of the society provided that if the chairman is absent or is present if unwilling to preside the members present may elect a person from themselves to preside over it.
9. No proxy or a holder of power of attomey or letter of authority shall be eligible to attend a general meeting if the society on behalf of a member of the society.
10. Voting right of the member and an associate member of the society shall be regulated in accordance it the provisions of section 27(1) and(2) of the act.
11. At the general meeting of the society every member of the Society and in his absence his associate member shall have only vote in case of equality of votes the chairman of the meeting shall have a casting vote.
12. Unless otherwise specifically provided under the act the rules and the bye laws of the society all questions at a general meeting of the society shall be decided by a simple majority of those present and voting at the meeting.
13. The committee shall finalise the draft minutes of every general meeting of the Society within 3 months of the date of the meeting and circulate the draft minutes amongst all the members of the society within 15 days of the meeting of the committee at which the draft minutes were finalised the members of the society may communicate to the Secretary of the society their observations if any of the draft minutes within 15 days of the date of their circulation. The committee at its subsequent meeting shall prepare the final minutes of the general meeting after taking into consideration the observations if any made by the members on the draft minutes and cause them to be recorded in the minutes book by the Secretary of the society or any other person authorised in that behalf.
14. No. resolution can be brought at a general meeting of the society canceling it previous resolution unless 6 clear months have expired after passing of the previous resolution.
TYPES OF MANAGING COMMITTEE MEETING
1. No member of the committee shall be present at the consideration of any matter in which he his directly or indirectly interested.
2. The period of office of the committee elected under the Bye-law no. 115 shall be for 3 years from the date of its first meeting.
3a. The first meeting of the newly elected and outgoing committee shall be held within 30 days from the date of the general body meeting of the society at which the result of its election was declared.
3b. Subject to the previous of the bye-law no.121 the Secretary of the out going committee shall issue notice of the first meetings of the newly elected committee to the members thereof on the failure of the secretary of the outgoing committee to convene the said meeting the chairman of the outgoing committee shall call it on the failure of both the registering authority may call such a meeting.

4. All records of the Society shall be kept at its registered address till construction of the building is not complete on completion of construction the building the records of the society shall be kept at its premises convenient to the secretary with the approval of the chairman of the society.
5. When the new committee is elected the Secretary of the outgoing committee shall prepare the list of papers and property of the society in his custody and hand over the charge there to the outgoing Chairman the retiring Chairman shall hand over the charge of the office of the committee and all papers and property of the society in his possession to the Chairman of the new committee as per previsions contained in Section 160 of the Act.
6a. Every committee at its first meeting after its election shall elect a Chairman and Secretary from amongst the members of the committee.
6b. The Chairman, Secretary of the Society shall hold office for the period of 3 years from the date on which he is elected to be the Chairman or as the case may be the Secretary.
Provided that he shall cease to be the Chairman or as the case may be the Secretary of the Society if the motion of no confidence is moved in the special meeting of the Committee called upon the notice given by 1/3rds members of the committee and the motion of the no confidence is passed by ¾ the members present it such meeting having attendance of at least 2/3rds members of the Committee.

7. The quorum for a committee meeting shall be members of the committee it shall not be competent for the committee to transact any business there is the quorum at the time of consideration of every item on the agenda of the meeting of the Committee.

8. The Committee shall meet as often as necessary but at least once in a month.

9.In the event of vacancies in the Committee caused on account of the death, resignation, disqualification or removal of any members of the Committee may fill in such vacancies by co-option on the committee of any other members eligible to be on the Committee irrespective of the fact whether there is the quorum or not withstanding anything contained in the bye-law no.125.

10. The period of office of the co-opted member of the Committee shall co-terminus with tenure of office of the Committee.

11. A Member of the Committee may be a letter addressed to the Chairman of the Society resign his membership of the Committee the resignation shall be effective from the date it is accepted by the Committee or on expiry of the period of one month from the date of the receipt of the letter of the resignation by the Chairman of the Secretary of the Society whichever is earlier.

12a. The Chairman of the Society may resign his Office as Chairman by a letter addressed to the Secretary of the society.

12b. The Secretary of the Society may resign his office as Secretary by letter addressed to the Chairman of the Society.

12c. The Committee may accept resignation of the office of the Chairman, Secretary of the Society has brought upto date the work entrusted to him and has produced the entire papers and property of the Society in his possession before the committee.

13. The Secretary of the society shall give 3 clear days notice of every meeting of the committee to all the members of the Committee which shall state the date, time and place of the meeting and the business to be transacted thereat in consultation with the Chairman of the Society where the Secretary of the Society fails to issue such a notice and agenda of any meeting of the committee the Chairman of the Society shall issue it if the Chairman and Secretary of the Society fails to issue a notice and agenda of any meeting of the committee the Chairman of the society shall issue it if the Chairman and Secretary of the Society fails to issue a notice and agenda of any meeting of the committee the registering authority may call such things.

14. The Chairman of the Society shall preside over all the meetings committee provided that if at any meeting of the committee is absent or if present is not willing to preside those members of the committee present shall elect one of them to be the Chairman for the occasion who shall preside over meeting.

15. Every member of the Committee shall have one vote however in case of equality of votes the Chairman of the meeting will have a second or casting vote all decisions shall be taken by majority of votes.
16. On a requisition by 1/3rds of the members of the Committee the Secretary of the society shall convene a special meeting of the committee within 7 days of this date of receipt of the requisition to discuss the matters mentioned in the requisition on type failure of the Secretary of the society to convene such a meeting within the terms stipulated the procedure laid down under the bye law no. 131 shall be followed.
17. The Secretary of the Society shall attend every meeting of the Committee and record its minutes and place and the same for confirmation before the next meeting of the Committee after the minutes are signed by the Secretary of the Society and the Chairman of the meeting in the absence of the Secretary of all Society the Chairman of the society shall make alternate arrangement for recording minutes of the meeting.
18. The member of the committee shall be jointly and severally liable for making good any loss which the society may suffer on accounts of their negligence or omission to perform any of the duties and functions cast on them under the act rules and bye laws of the society.

 

Builders can not sell stilt parking areas – Supreme Court

By Legal Bureau

Though the news is old but in a case of an argument of a real estate development company that they are entitled to sell garages or stilt parking areas as separate flats to owners who intend to use it as parking facilities, a bench of Justices A K Patnaik and R M Lodha of Supreme Court, ruled that builders or promoters cannot sell parking areas as independent units or flats as these areas are to be extended as “common areas and facilities” for the owners.

The court passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, who challenged the Bombay high court’s ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garages. The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas, the same would not have any legal sanctity.

the court also disclaimed the appeal of the promoter that by treating these parking spaces as common areas, every flat purchaser in any case will have to bear proportionate cost for the same even if he may not be interested in such parking space at all.

Justice Lodha wrote in the judgment that the promoter has no right to sell any portion of such building which is not a ‘flat’ within the meaning of Section 2(A-1) and the entire land and building has to be conveyed to the organization. The only right that remains with the promoter is to sell unsold flats. Thus, it is clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachments to a flat.

It is necessary for a promoter to fully disclose the common areas and facilities. Stilt parking spaces are usually not described as the part of the common areas. The same as such does not appear in the advertisement and agreement with the flat purchaser.

So far the said promoter is not put to any prejudice financially by treating open parking space/stilt parking space as part of common areas since he is entitled to charge a price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat,” the apex court said.

 

Precautions to be taken while purchasing a terrace flat

By Advocate Vinod Sampat

Please peruse the approved original building plan. check that there is a unambiguous (clear – cut) accessibility of the terrace from your flat only. The terrace should not have access from the common staircase of the Building. This is one of the most important step to be taken. So make sure that before purchasing a terrace flat a copy of the Original building plan must be demanded from the builder. You should ascertain that in the approved plan, terrace should be a part of your flat with FSI. I will justify you the reason why Building Approved plan should be checked as there are in many cases, “few builders”, what they do is that once the plans are approved from the BMC and the Occupation certificate is procured, they block the access from the common staircase and provides exclusive access to the terrace for the adjacent flat to term it as a terrace flat which is nothing but cheating. Generally building plan shows terrace flat as spaces having access from the common staircase so that builder will enable to get municipal approvals for terrace development free of FSI.

Please also ensure a clear-cut agreement with the builder spelling out in the agreement clause that terrace being sold as an integral part of FSI. The Agreement should also specify the carpet area clearly along with the Terrace rights. I mean to say that carpet area of flat should be inclusive of terrace. Also ensure that an enclosed drawing of the terrace space and get the same registered. Stamp duty should be paid only when in the agreement the carpet area of flat will be inclusive of the terrace FSI. If terrace flat is free of FSI then legally speaking it cannot be included in your FSI of flat and if you had a transaction with the builder for the same then you will be in deep trouble inspite of an agreement for the Terrace flat duly stamped and registered.

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