For any meeting that is conducted in a cooperative housing society (CHS), a record of the minutes that contains the proceedings of the meeting and any decisions made therein is an absolute must. Ideally, the minutes should include the type of meeting they relate to, its date, time and venue, persons who had attended, decisions taken, discussion held and voting resolutions.
Minutes should also be posted on the Society's notice board and circulated by other means among residing members. The model cooperative housing society bye-laws have also defined a period within which minutes should be prepared and circulated once a meeting has been conducted. They further stipulate that a minutes book should be maintained by the Society and, once signed by the chairman and secretary, should not be altered in any manner. Resident members are entitled to request an inspection of the minutes book or a copy of the minutes of a meeting.
Not following these rules gives sufficient cause to the deputy registrar to take appropriate action to dissolve the managing committee. This week, I will address concerns about the preparation and storage of minutes of Society meetings and provide solutions to resolve issues of long-outstanding maintenance dues.
Cheating Builder & Outstanding Maintenance Dues
Question: I purchased a flat under the Maharashtra Ownership Flats Act (MOFA) from a builder in 2019 and the occupation certificate (OC) for this building was received in 2017. Until 2020, I have diligently paid maintenance dues, but I stopped paying them as the builder was not providing an audited copy of the balance sheet. He has also refused to do some pending leakage work in my flat.
When the Society was formed, he refused to accept the Society's charges as he demanded that outstanding maintenance dues be paid first. During this time, I came to know that he indicated that my flat is unsold, with his company's name being displayed instead of mine. As the builder has clearly cheated me out of a flat, I need your guidance on tackling this issue.
Answer: If you have executed a sale deed of your flat with the builder, then the flat is legally and rightfully yours. Ask the Society to be formed for your building and to make you a member of the Society.
If you have not executed the sale deed, then unfortunately, even if you have paid the full amount for the flat, it will continue to be owned by the builder. Since you have not clarified in your query whether you have executed a stamp duty paid and sub-registrar of assurances registered sale deed, I have explained this to you.
If the Society does not make you a member, when you have a sale deed of your flat, and apply to the Society with relevant forms, then, under Bye-law No. 174(A)(iii) make a complaint against the Society for refusing membership.
For your flat's unpaid dues, your builder will recover these from you, before the registration of the Society. If the Society asks you for any dues of your flat before registration of the Society, then you will again make a complaint against the Society to the deputy registrar of cooperative societies, under Bye-law No. 174(A)(xxii).
Please note that you cannot stop paying maintenance of your flat for a simple reason, such as the Society or builder failing to provide an audited balance sheet.
Whether Redevelopment or Structural Repairs Are Sufficient?
Question: The management has not repaired the building of our Society, which is just 17 years old and has instead opted to go for redevelopment. They are brainwashing all CHS members about high maintenance charges for repairing and quietly pushing their agenda that redevelopment is the best option. Can you please advise? I want to get a clear understanding. The management has managed to convince most members, as many of them are investors.
Answer: Under bye-law no. 76, a structural audit of the building of your Society should be done to understand whether the building is old enough that it requires demolishing and redeveloping. This structural audit is done by a local municipality-recognised structural engineer.
Even if the structural audit says that the building should be demolished and rebuilt, the building and land's conveyance has to be cleared in favour of the Society, and the land's 7/12 extract at talathi office as well as the property card at the city survey office, has to obtained in the name of the Society. If the conveyance is not given by the builder of the Society's building, then the Society can go for deemed conveyance.
Only after following the above-mentioned steps, it would be possible for the Society's building to go for redevelopment. You may wish to follow up with the Society to understand whether such procedures have been completed.
NOTEWe will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
Bye-laws Pertaining to Recording Minutes of a Meeting
Question: Our Society has not allotted any fixed time or date to view and inspect the minutes book or accounts books; hence, we had written a mail to schedule a time to view them. The Society has responded to this request by stating clause no 63 (e) of the bye-laws. We would like to understand whether clause 63(e) is relevant to viewing minutes or account books of a society.
Answer: It seems the Society has made a fool out of you. For your reference, please note the text of bye-law no 63(e), reproduced verbatim below from the model cooperative housing society bye-laws book.
"The Committee shall ensure that all the applications received by the Secretary of the Society are disposed off within the maximum period of 3 months from the dates of receipt; except application for for subletting, which shall be disposed off in one month."
Kindly buy a bye-laws book of the year 2014 to better understand the contents of the bye-laws and, thus, better equip yourself against any difficulties you may face with your managing committee. The bye-laws book is available with the Mumbai Housing Federation, at its offices in Fort, Andheri east or Ghatkopar east.
For your reference, the bye-law related to the minutes of a meeting conducted by the managing committee is no108. It has been reproduced verbatim below,
"The committee shall finalise the draft minutes of every general body meeting of the Society within three months of the date of the meeting and circulate the draft minutes among all the members of the Society within 15 days of the meeting of the Committee at which the draft minutes were finalised."
There are some further clauses related to the minutes which you can find in the bye-laws book as referenced above.
Addressing Threats by a Defaulting Member
Question: One of the members of our Society has not been paying maintenance since 2018. When he is asked about the outstanding dues, he always says he will file a public interest litigation (PIL) against whoever writes on the WhatsApp group about it. He is a lawyer by profession. Can you please advise?
Answer: A flat-owner who has been a defaulter for a period of more than three months should be given a recovery notice under Section 154b-29 (earlier 101), and a recovery process up to the extent of selling his flat can then be subsequently made.
Kindly hire the services of a good, experienced advocate who can do this sort of work. Please do not be threatened by the actions of the defaulting member. The law is most certainly on your side. Under no circumstances can a PIL be filed by the defaulting member, so do not worry about that.
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
(Shirish Shanbhag has an MSc in Organic Chemistry, a Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)