Whatsapp Faq From CA ramesh Prabhu
ABOUT THE AUTHOR CA. RAMESH S. PRABHU, B.com. F.C.A., CISA (USA)
1. CA.Ramesh S. Prabhu is a highly qualiied Mumbai-based Chartered Accountant with CISA(USA) practicing for over last 22 years, and a well-known public igure, whose opinion is sought on various laws and issues concerning the common man.
2. He is partner in Chartered Accountants irm, director of Prabhu Associates Consultants Pvt Ltd and Chairman of Swagat Housing Finance Company Ltd.
3. He is a regular faculty and Task force member with Institute of Chartered Accountants of India (ICAI) on the Cooperative Sector-2011-12. He is also on ICAI's expert committees for analyzing various new laws and rules. He is also addresses number of seminars organized by Govt Department, News papers, Political Parties, NGOs etc. He is the co-opted member of Co-op Committee for Maharashtra by WIRC of ICAI for last 3 years.
4. CA Ramesh has practical in-depth knowledge of the Cooperative Housing sector, and is the author of 40 books on issues like conveyance, transfer of lats, parking, collection of dues from members, and service tax for housing societies. Two books authored by him have been published by WIRC of ICAI. He is an Editor of MSWA Housing Societies Review having circulation of 30000 copies.
5. He was appointed by Govt. of Maharashtra in 2008 on its committee for drafting the law for Deemed Conveyance. He was invited to discuss before the Joint Committee of Govt of Maharashtra about the Maharashtra Housing(Regulation and Development) Act, 2012 and most of his suggestions were incorporated in the inal approval of the said Act.
6. CA. Ramesh heads “Maharashtra Societies Welfare Association” (MSWA), an NGO for addressing Cooperative Society issues. Recently MSWA has joined hands as “knowledge partner” with a leading newspaper of Mumbai viz. Daily News and Analysis (DNA) for conducting seminars on Redevelopment of Housing Societies in Mumbai.
7. CA Ramesh believes that “Right to Housing” is a fundamental right, and is working in various ways to ensure that this fundamental right is recognized and enforced by the government.
8. Regularly interviewed with number of TV channels and writer and contributor in numner of news papers.
9. His book on Deemed conveyance has been released by CM Shri. Prithviraj Chavan with a forward Message from Her Excellency Smt. Prathibathai Patil, the then President of India and had occasion to be her Guest at Rashtrapathi Bhavan.
1. CA.Ramesh S. Prabhu is a highly qualiied Mumbai-based Chartered Accountant with CISA(USA) practicing for over last 22 years, and a well-known public igure, whose opinion is sought on various laws and issues concerning the common man.
2. He is partner in Chartered Accountants irm, director of Prabhu Associates Consultants Pvt Ltd and Chairman of Swagat Housing Finance Company Ltd.
3. He is a regular faculty and Task force member with Institute of Chartered Accountants of India (ICAI) on the Cooperative Sector-2011-12. He is also on ICAI's expert committees for analyzing various new laws and rules. He is also addresses number of seminars organized by Govt Department, News papers, Political Parties, NGOs etc. He is the co-opted member of Co-op Committee for Maharashtra by WIRC of ICAI for last 3 years.
4. CA Ramesh has practical in-depth knowledge of the Cooperative Housing sector, and is the author of 40 books on issues like conveyance, transfer of lats, parking, collection of dues from members, and service tax for housing societies. Two books authored by him have been published by WIRC of ICAI. He is an Editor of MSWA Housing Societies Review having circulation of 30000 copies.
5. He was appointed by Govt. of Maharashtra in 2008 on its committee for drafting the law for Deemed Conveyance. He was invited to discuss before the Joint Committee of Govt of Maharashtra about the Maharashtra Housing(Regulation and Development) Act, 2012 and most of his suggestions were incorporated in the inal approval of the said Act.
6. CA. Ramesh heads “Maharashtra Societies Welfare Association” (MSWA), an NGO for addressing Cooperative Society issues. Recently MSWA has joined hands as “knowledge partner” with a leading newspaper of Mumbai viz. Daily News and Analysis (DNA) for conducting seminars on Redevelopment of Housing Societies in Mumbai.
7. CA Ramesh believes that “Right to Housing” is a fundamental right, and is working in various ways to ensure that this fundamental right is recognized and enforced by the government.
8. Regularly interviewed with number of TV channels and writer and contributor in numner of news papers.
9. His book on Deemed conveyance has been released by CM Shri. Prithviraj Chavan with a forward Message from Her Excellency Smt. Prathibathai Patil, the then President of India and had occasion to be her Guest at Rashtrapathi Bhavan.
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QW/RP/083/19.08.2015
when a building is redeveloped, and a member aquires additional floor space, is there requirement to pay stamp duty/any other charges on the additional area ? Who is liable for such payment ?
ANS BY CA. Ramesh Prabhu
When a new flat is given with additional area or the same area in the new building, a permanent alternative accommodation agreement between the society, develop as confirming party and the member need to be executed and registered by paying applicable stamp duty. Normally the stamp duty at 5% on the cost of construction of the entire new flat including the additional area shall be calculated and need to be paid. The cosy of construction as per latest ready reckoner is Rs.25000 per Sq.meters and registration fees of 1% or Rs.30000 whichever is less. Normally this cost of stamp duty and registration has to be paid by the developer. The same should be part of terms and conditions of redevelopment agreement.
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QW/RP/084/19.08.2015
What remedy is available if any person collects share money or any other sum by misrepresentation to the propsective membersin the name of the consumer society to be registered?
ANS BY CA. Ramesh Prabhu
No one is authorised to collect any share money or entrance fees to form any type of society unless and until, the registrar grants the name reservation letter and the promoters pass a resolution to authorise the chief promoter to collect such funds. As you say, if any one collects such amount by misrepresentation, it amounts to fraud and cheating, you have to file an FIR at the relevant police station under section 420 of Indian penal code,1860 or complaint to economic offense wing at the police commissioner office with a copy to registrar.
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QW/RP/085/19.08.2015
Sir this is DPGondhali from Powai Park Chs Ltd Question...
Will there be increase in property tax if the Car Parking area is permanently covered with plastic/ galvanized sheets.Does it need in permission from Muncipalty?
ANS BY CA. Ramesh Prabhu
Any construction temporary or permanent like plastic or galvanised in municipal area even within the compound of the society requires MCGM permission legally. If some society allows the member to construct and no member of the society complaints to MVGM, action for demolition may not be initiated but legally permission from MVGM is a must. For covered area and open car parking property taxes at different rates are charged. In other words covered car parking certainly will be charged more than the open car parking.
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QW/RP/086/19.08.2015
Sir. In our society, there are quite a few members who have sublet their flats without submitting any docs viz agreement, police clearance, NOC payment etc to the society. What action as per the bylaws, can the society take on such members.
ANS BY CA. Ramesh Prabhu
For any breach of bye-laws, the managing committee need to issue showcase notice for levy of penalty including legal proceedings to expell from the society on persistent default. The explanation and compliance in writing can be taken or call in SGM and after hearing levy the penalty and if required to file a case on cooperative court to evict the tenant etc can be done. Any legal actions depend on the response given by the members. Even, the society can pass a resolution unless and until proper identity of the tenant is not submitted, the tenant may be retrained to enter the society compound.
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QW/RP/087/19.08.2015
Is education fund payable for 14-15 by society?
ANS BY CA. Ramesh Prabhu
As per new section 24A effective from 14.2.2013, societies need to collect education fund as per bye-laws. As per bye-laws of CHS, Rs.10 per member per month need to be collected and separate fund need to be maintained. The society from this fund require to do the training and education of committee members, staff and members from the notified institutions;federations which has been done.Section 24A also provides, education fund at the rate notified, need to be paid annually to the notified institutions and Federations but presently as per my knowledge no such notification to pay education fund is published. So effective from 2013-14 onwards till proper notification is issued, you need not pay any education fund to any one but need to do the training and education at the society through notified bodies which has been done by paying training fees
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QW/RP/088/19.08.2015
Could you explain how to start a federation of CHS. There are multiple society's Total 15 buildings with over 1000 apartments. The election process Managing Committee etc.
ANS BY CA. Ramesh Prabhu
Since the amendment done to Maharashtra cooperative societies Act, 1960, elective from 14.2.2013, election to all types of societies including housing society has to be conducted by the Election officer appointed by the State cooperative election authority (SCEA).
Following elections are to be done by the election officer as per Mah cooperative societies (election to committee ) Rules,2014 and the notification issued by SCEA from time to time
(1) Before the expiry of the term of the committee by conducting election in Special General body meeting (SGM) on the basis of voters list given by the committee(firm E-3) and report regarding the expiry of term as per form E-2 given to the registrar. If the number of members in cooperative hsg society is less than 200 elections are done in SGM by giving 15 days notice unless the society demands election program of 35 days by passing a resolution in such SGM called to hold election immediately.
Where there are more than 200 members, elections are done by following 35 days election program.
Depending on number of members committtee members are elected. 5 seats are reserved for all CHS like two for women, 1 for SC/ST, 1 for Numadic Tribe/ other backward and 1 for Special backward class.
The reserved seats can be filled by only those class of members otherwise need to be kept vacant.
(2) Election of office bearers on getting new committee elected or on the resignation of any office bearers or inter change of office bearers need to be done in the committee meeting in which election officer appointed by SCEA need to be present.
(3) Any casual vacancies arise in the committee due to death, resignation or disqualification or removal of the committee members, the election in the form of by-poll need to be done by getting the appointment of election officer by the SCEA.
Regarding the formation of Federation, any five societies in your layout pass a resolution to form the federation, elect the chief promoter and submit the proposal of registration of federation to the Deputy registrar of your ward.
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QW/RP/089/19.08.2015
Gm sir..Kindly advise is it possible to get Deemed conveyance of leasehold property.society is paying lease rentals to the developer and has passed a resolution saying conveyance to be obtained on onwership basis..but the land is leasehold land.what happens after the expiry of the lease?? Flat gets automatically transferred to the flat owners or flat owners will have to vacate the premises..
Kindly advise
ANS BY CA. Ramesh Prabhu
Under Transfer of property Act,1882, a right, title and interest in the immovable property can b transferred by two ways:
(1) Freehold basis which means, the buyer get all the rights, title and interest in the property without any restrictions by executing sale or conveyance dees in favour of buyer by the seller. The seller or their legal heirs will have no control thereafter in the property.
(2) Leasehold basis which means the use and occupancy of the immovable property is given by the owner to leasee by executing a lease deed for a certain period to use and occupy on certain terms and conditions including the manner of use of such property and on payment of certain lease rent. So in order to answer your queries, we need to go through the lease rent executed between the owner and builder. In your case between the developer and society. Any lease rights by paying proper compensation to the owner/lessor, one can get freehold rights.
In fact, in your case, I can make out that builder/developer has executed the lease deed in favour of the society and you are paying lease rent. Now society must be negotiating with the developer to give freehold rights which is possible.
In case, you are not able to do anything, in such case, the ownership of building will remain with you and land rights will remain with lessor. Till the building becomes completely dilapidated, irrespective of the clauses in the lease deed, owner cannot ask you to vacate the building
If he has to do so, he has to pay the compensation to you and the matter may go to court of law. Once the building due to dilapidated condition local authorities evict and demolish the building and mean time lease period has expired and is not lease period is not renewed, you will not be able to reconstruct the building.
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QW/RP/090/15.08.2015
In Thane, Wagle estate there is slum named"Dnyaneshwar Nagar"structure owenerMr.Patil as per record &upstair first floor some Mr pawar illegally occupied .my question is that "as per SRA scheme is Mr Pawar become leagally occupier /owener or any how? pl guide me Thanks.
has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
ANS BY CA. Ramesh Prabhu
As per the latest changes done in the SRA provisions about the eligibility to get a free house to the upper floor occupier is also will be considered. The upper floor resident should be different family, has separate electric bills, names of such persons should be entered into election rules prior to 1.1.2000.So you are advised to check about the above conditions and if pawar fullfills all of them, in such cases he will be entitled to get new house under new SRA guidelines.has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
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QW/RP/091/15.08.2015
Sir our secretary has resigned nd elections are due in nov.15..can we depute existng treasurer as secretary and the other committee member as treasurer in his place..whether dat will amount to co option??
ANS BY CA. Ramesh Prabhu
Since the amendment to MCS act,1960, effective from 14.2.2013, any General elections to the entire committee memembers or election to fill the casual vacancy due to resignation/ dismissal or resignation of any committee member (earlier the same is filled by co-option now has to be done as by-poll) and election or changes in the designation of committee members /office bearers has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
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QW/RP/092/15.08.2015
A chs in Girgaum completed its Redev on self redev basis by appointing a contractor. No OC is granted as yet. Some members have already shifted in their new homes. However, the chairman is not allowing other members to rent out their flats for want of OC. Is it fair or as per law. Phadnis.
ANS BY CA. Ramesh Prabhu
As per the Greater Mumbai Development Control Rules, 1991 or any applicable development control rules across India, no one is allowed to occupy the building without OC. Occupation certificate is the permission giving by the planning authorities (i.e in your case Mumbai Municipality) stating that building has been completed as per the provisions of development control Rules and is ready in all respect to occupy the building. However, for one or the other reasons, like not planting required trees, covering balcony, not installing fire safety systems, pending dues of property tax , not getting completion certificate from the architect or licensed plumber etc, the OC is not issued. Since in the redevelopment project many are paying rent and in a hurry to come back in their own flat start occupying the building without OC.
Since in the given case, the society has allowed the members to occupy the flat without OC which means the society cannot refuse to give NOC to let out the flats by members whom already allowed to take the possession of flat.
Further as per new model bye-laws: to give flat on rental basis by members NOC from society is not required but need to inform the society about flats given on rent along with copy of information of the tenant given to the police station and registered Leave and license Agreement.
So in your case, the member should take the possession of flat and then give the flat on LL basis by executing the LL registered agreement and inform the society and police about the details of tenant. In case, society objects the tenant immediately a Complaint to bodged with police and see that tenant is allowed to occupy the flat.
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QW/RP/093/15.08.2015
Hi we want to form a Apex body for Panch Society though we have larger federation with currently 9 Societies, as Panch Societies got certain specific amenities which is not a part of federation. But currently we have 4 registered Societies under Panch Societies and one society not yet registered and under builder. Builder is not helping and we have various issues. Can any one help us to form that apex body? Indranil, Panch Smruti
ANS BY CA. Ramesh Prabhu
To form a cooperative Housing Federation, you need to have five registered cooperative societies. In your case since presently 4 societies and you will be able to form registered federation only after registering the fifth society. Since you have a larger federation of consisting 9 Societies, in order to have another federation within the same complex, you will have to obtain NOC from Federation of 9 Societies.
You are advised to meet the Free CHS legal advisory cell of MSWA by taking a prior appointment by calling on 42551414. Once you get complete guidance from experts of MSWA understanding your specific issues you may decide to form another federation or get better legal body to handle your specific issues.
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QW/RP/094/15.08.2015
What is the difference between attorney, barrister, lawyer, and solicitor? How about advocate, counsel, counselor, or counselor-at-law?
ANS BY CA. Ramesh Prabhu
Lawyer is a general term for a person who gives legal device and aid and who conducts suits in court. An attorney or, more correctly, an attorney-at-law, is a member of the legal profession who represents a client in court when pleading or defending a case. In the US, attorney applies to any lawyer. In the UK, those who practice law are divided into barristers, who represent clients in open court and may appear at the bar, and solicitors, who are permitted to conduct litigation in court but not to plead cases in open court. The barrister does not deal directly with clients but does so through a solicitor. The word attorney comes from French meaning 'one appointed or constituted' and the word's original meaning is of a person acting for another as an agent or deputy. A solicitor would be the UK equivalent of the US attorney-at-law. Counsel usually refers to a body of legal advisers but also pertains to a single legal adviser and is a synonym for advocate, barrister, counselor, and counselor-at-law. As to the abbreviation 'Esq.' for 'Esquire' used by some lawyers ... it has no precise significance in the United States except as sometimes applied to certain public officials, such as justices of the peace. For some reason, lawyers often add it to their surname in written address. However, it is a title that is specifically male with no female equivalent, so its use by lawyers should fade away.
SOURCE : http://dictionary.reference.com/help/faq/language/d11.html
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QW/RP/095/14.08.2015
A G M ghenyasathi election chi garaj ahe ka society members 42 flat please mahiti sanga. (Same in English: For AGM, you need valid managing committee. For Valid managing committee you need election. For Election ... Adv. Neeta's turn !!!) service charge/tax applicable on the amount collected Thanks
ANS BY CA. Ramesh Prabhu
Till the managing committee is not disqualified /dismissed by the Deputy registrar and appoints an authorised officer in their place, the committee is fully empowered to hold the AGM. They get all the powers of regular committee. Any action done by them under good faith and in the capacity of managing committee is valid and is binding on all.
They also can initiate necessary steps to conduct elections through the state cooperative election authority.
Any body who is not officially removed by registrar by issuing an order of dismissal such committees are valid and legal and all actions which a regular Committee does can be done by them
To conduct elections, the exiting committee need to submit a certificate in E-2 form and list of voters in E-3 form to the registrar who shall get the election officer appointed under whose supervision and guidance new Committee shall be elected
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QW/RP/096/14.08.2015
Sir, can ad hoc committee before registration of society collect maintenance charges and give receipt for the same. If yes then is there any service charge/tax applicable on the amount collected Thanks
ANS BY CA. Ramesh Prabhu
Normally it is the stutory obligations and duty of builder to maintain the property till the society or any legal entity to manage the complex is registered. It is observed that in many builders neither register the society nor maintain the property and provide common services like security, water supply, common electricity, cleanliness etc. In such cases, it becomes necessary for flat owners to come together and form an Ad hoc committee to manage day to day affairs.
In such cases, you form an ad hoc committee of proposed societies by holding the meetings of flat owners, obtain signature, record the minutes in which a resolution authorising the adhoc committee to collect service/ maintenance charges at a particular amount/rate , issue bills, receipts and spend money for common services can be passed. Unless until you get Permanent Account No (PAN) you will not be able to get service tax numbers even if you are liable. Similarly, to get PAN, society need to be registered.
Thus I am of the opinion that you need not collect service taxes. However, the adhoc committrr will be able to issue bills and receipts based on resolutions passed.
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QW/RP/097/14.08.2015
Our society was originally a 4 storied structure. Subsequently, floors 5-7 were built. Earlier residents were not desirous of availing lift facility(barring floor 4)which was then built to only service floors 5-7. Two questions about this -
1. Should the lift maintenance be a part of the society responsibility?
2. Do all residents also have to contribute towards it?
Presently only residents 4-7 are contributing & maintaining said lift.
ANS BY CA. Ramesh Prabhu
Since the lift was specially built for servicing the flats of 4 and above, it is proper to collect charges from 4th floor onwards only. The bye laws provides that the contribution towards maintenance of lift to be shared equally by all the flat owners of the building in which the lift is installed. In your case the additional construction has been done and lift is not stopping at 1st to 4th floor and is installed for those exclusive floors. Therefore it is proper, legal, logical and justified to collect lift maintenance only from 4th floor and above flat owners whose exclusive benefit such lift is installed. Action and Hold Position in Managing Committee if full consent given by First member
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QW/RP/098/14.08.2015
I wanted to know whether we can hold election in the absence of election officer?
ANS BY CA. Ramesh Prabhu
Since amendment done to MCS Act,1960 effective from 24.2.2013, the election to each and every society has to be done by the election officer appointed by the State cooperative election Authority. Therefore, in the absence of election officer, you can not hold the election. The election in the absence of election officer has to be postponed to the date when election officer is available.
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QW/RP/099/14.08.2015
Can an Associate Member ( am not a Co Owner obf property) in Absence of First Share Holder in an AGM Attend it , take part in any Discussions in it , place my opinion for any Points or have right to speak in any matter of it or Vote in that AGM .
Can I an Associate Member ( am not a Co Owner of property) can attend only AGM or all Meetings in which First Member is allowed to attend like SGM and Emergency meetings in Absence of First Member
Now in new Bye Law atleast One AGM is must in 5 years to remain Active and avoid expulsion. If the First Member don't attend a Single AGM in 5 years and In his absence Associate Member Attends atleast one AGM then will the First Member be considered a Active member or Non Active member.
This Bye Law of atleast One AGM is must in 5 years to remain Active will be considered after 2014 or the attendenace prior to 2014 will be considered.
I as an Associate Member ( am not a Co Owner of property) c an not have any priviledge of Member by default. Can First Member Give consent letter to Associate Member with complete authority to do all acts of society such as Applications , Representations , Getting any information of society or any matters in absensce of First Member or can a First member issue a POA to Associate Member for Handling all Matters related to society.
Can an Associate Member ( am not a Co Owner of property) contest Election and Hold Position in Mananging Commitee if full consent given by First member
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QW/RP/151/21.08.2015
I am expecting urgent reply from you. One of the credit societies, Bye laws has been approved by the Dy. Registrar on 27-01-2014. As per the Bye laws a post of Secretary is not in existence. Now Secretary has called Society's AGM . Whether this AGM is vadid.As per the provisions of the Bye laws only Chairman,Vice Chairman from the Management and C.V.O/Manager posts are in existence.Who is authorized to call AGM. Board of Directors has not given specific powers to any Directors to call meeting till date.Pl guide me.
ANS BY CA. Ramesh Prabhu
As per bye-law there is no post of secretary but in realty the board has elected post of secretary. The board is within its power to elect any office bearers with the designation they wish to give. Since the Secretary has called the AGM, the board wants to ratify by calling board meeting they can do so or wants to postpone the meeting called by the Secretary treating it has without delegation of power, that is also possible. In case, the meeting is held and decisions are taken, I do not think such meeting can be called as illegal unless and until some member drags the society to the cooperative court and place an evidence that many persons have not received the meeting notice,agenda etc. Any action done in good faith by any office bearers will not amount to illegal activity.
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QW/RP/152/21.08.2015
If on property card someones name comes as pattedar, can he become d landlord of d said property?
and in same property 7/12 utara shows different names as landlord do what is d current status refects of that property?
ANS BY CA. Ramesh Prabhu
Let us note 7/12 is the revenue record reflecting who is the owner of the property and the property card is issued in Muncipalty area where the revenue department has set up city survey offices to maintain the property records. Normally if the property card has the names of the owner, that becomes the latest entry of the Ownership evidence and is considered final as once property card enters name of the owner from the records submitted by the owner, the 7/12 extract entries are immaterial. In your case, it is entered as pattedar means tenancy rights holder
Therefore there is a separate owner whose name is in 7/12 extract. Thus, the owner need to apply to City survey dept and get his name incorporated in the property card. Pattedar is not the owner. He is only a tenant of the land I. E leasee on long lease of the land
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QW/RP/153/21.08.2015
I am staying in CHS at 16 th rd Khar. A member staying at 3rd floor has pulled down wall in his flat as interior changes. The pillars r not touched. But exactly above that wall is our building water tank. Our secretary informed BMC about this & requested them to check the same. BMC has not taken any action. My question is What action/ Procedure our CHS should take/ follow ?? Can a member make complaint ?
ANS BY CA. Ramesh Prabhu
Any repairs and renovation within the flat is considered two types as per MCGM act, 1881. I. E (1) tenable repairs such as painting, changing the tiles, repairing the pipes, plastering etc which does not require permission from the local authority.
(2) Non tenable repairs such as fixing the new window, covering the balcony, removing partition wall which does not amount to structural changes but certainly needs permission of local authority
Any structural changes will not be permitted by the BMC.
In the case, referred by you, removal of wall is a non tenable repairs which needs permission from BMC. These type of repairs becomes irregular repairs which can be regularised by taking the post facto permission on the complaints made by any member or society. They may have to pay the penalty also.
Therefore, many flat owners do carry on such no tenable repairs which can be regularised on complaint received by BMC.
Now, the society or any members can complaint to BMC about carrying out such non tenable repairs. BMC shall issue show cause notice and advise them to regularise or being the same to original position.
As you said, many times BMC does not take any action. In such cases, the complaint can file an RTI demanding an action taken report and if not satisfied file an appeal under RTI.
The BMC will certainly issue show cause notice and if you regerously follow up by filling reminders an multiple RTI either the complaint will be forced to regularise by paying penalty or bring back the structure to original state or file a case by the BMC against the wrong doer in the BMC magistrate court to pay the fine for wrong doing and directing him to regularise or bring to original position
Therefore, Unless and until there is continuous follow is not done, against such illegal or irregular non tenable repairs , MCGM does not initiate any actions.
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QW/RP/155/21.08.2015
The current bylaws is very vague about subletting of flat. Though it is mentioned that society NOC is not required however under occupation of flat it has clearly mention who has the right to occupy the flat. Can anyone through some light on this. Moreover in our society we have a process of introduction. Can we still go ahead with the same? Also can we pass specific resolution and define some process in our GB. Last GB we have already done that to avoid nuisance mostly by bachelors. We have not stopped bachelors accommodation by we have made some processes. Appreciate a revert.
ANS BY CA. Ramesh Prabhu
In a cooperative Housing society members and associate members are allowed to occupy the flat. However earlier to sell /transfer such occupy rights, society permission was required. Due to unethical demand and harassment made by the managing committee, since 2001 in the model bye-laws NOC which was earlier required to sell /transfer of the shares or flat was done away with.
When the registrar office started getting many conplaints against the society for not permitting letting out of flat on filmsy ground like flat cannot be given to bachelor or spinster or Non vegetarian eyc.
Therefore in the new Bye-law 2015, has included the clause thar any member who wants to give flat on leave and license basis need not obtain the NOC from the society.
In fact the member should submit the following to the society
(1) Application to the society intimating the flats given on rent or care taker books
(2) Duly stamp duty paid and registered agreements
(3) information of tenant submitted to police station.
Thereafter pay regular non occupancy charges of 10% of the service charges.
NO NOC IS REQUIRED. in case you have developed the system or guidelines to consider the LL cases and resolutions are passed, each tenant has go through that process till the same is not set aside by the court.
My advice is file to set aside any illegal resolutions by the aggrieved members before the coop court.
There is no bar in continuing your present system
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QW/RP/156/21.08.2015
In our society we have passed resolution for rent flats as follows,
Noc to be obtained before lease agreement done.
Noc issuance fees 100 paid by cheque by the owner. Validity of noc 1 month.
One time shifting fees of Rs. 2000. Towards use of infrastructure etc. Per agreement period. To be paid by cheque by owner.
Rs.5000 zero interest refundable deposit to be taken for the agreement period via cheque from owner.
Onus of renewing the agreement is on owner and if he forsee the dates all legal charges or repercussions towards such act of negligence would be charged to the owner. A penalty for non compliance towards rent agreement is payable by owner for Rs. 2000.
Pls share your views:
ANS BY CA. Ramesh Prabhu
after adopting bye-laws making any guideline against bye law would not be binding on Member who does not want to follow the guidelines.
In case, you want to make the above guidelines as a part of your bye-laws, the Deputy registrar shall not approve any amendments against the approved model bye-laws.
In case, you want to follow the set guidelines as stated by you, it is advisable and recommended to take an undertaking to follow the above guidelines whenever the said member decide to let out.
This may give some relief and power to insist the self undertaking given and if any resolutions are passed against the bye-laws, the aggrieved member need to move before the coop court to get the same either stayed or set aside.
However to respect the law of the land and to facilitate easy letting out by the members, insisting beyond what is required by the new model bye law is not at all a good practice for having a mutually cooperative members hsg society.
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QW/RP/157/21.08.2015
Our society is consiting of 2 complete seperate wing in one compound under one common CHS Registration no. Can we split these 2 wings into 2 seperate CHS? We have 2 seperate main gate also. In one wing there are 13 flats. In another wing there are 23 flats. What is the procedure?
ANS BY CA. Ramesh Prabhu
Under section 17 of MCS Act, by taking the General body meeting by majority resolution of 2/3rd members present, a proposal to divide into society can be done. In case a lesser members want division but majority members do not cooperate, an application by minority members file application for division u/s 18 of MCS act 1960 before the Deputy registrar.
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Ca.Q14:
Sir, If AGM unanimously passes enclosed resolution any legal implication pl explain we have agm on23 rd Aug i.e. tomorrow.
"Resolved that 2BHK shall contribute Rs.1.25L and 1BHK shall contribute Rs.1L towards building repair/amenity fund. Further to reduce the burden, the said may be paid by the members before selling/transferring the flat"
ANS BY CA. Ramesh Prabhu
As per the bye-laws and GR issued by Govt, transfee fees as decided by General meeting not exceeding Rs. 25000 can be collected as transfer premium. Further no donation or contribution under any other head or nomiculture can be collected in excess of Rs.25000 at the time of sale of flat Any one reading the resolution can make out that it is payable at the time of sale of flat as building amenity fund. If any member challenges this resolutions than only it may be set aside. Since no one is immediately affected, the same may not be challenged and at the time of selling, since amount is shared equally by both the parties and they want to complete the transactions, it will be paid under pressure..
Any General body resolution passed against the provisions of Act;Rules, circulars, notification and bye-laws will be binding on members till it is stayed or set aside by the cooperative court. So according to me morally, ethically and legally it is not advisable to pass such resolutions but if proposed and majority passes, if abided by members it gets implemented but if member refuses to pay legally you will not be able to recover it.
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Ca.Q15:
Can you also elaborate on the requirements for condominiums please ? Thanks in advance.
ANS BY CA. Ramesh Prabhu
Condominium is a form of legal entity created to manage the day to day affairs of building complex by registering a declaration under Maharashtra Apartment Ownership Act,1970 and Rules,1971.
It is an extension of co-ownership and therefore even apartment owner shall get undivided rights in the land and building as per the deed of declaration registered by the builder even before selling a single flat. The dispute is resolved through civil court and no authority like a to registrar of cooperative societies to hear and resolve the disputes among the apartment owners.
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Views of M S Mangle on collecting more Rs.25000/-as transfer fees by passing resolution against bye laws and Govt notifications.
As housing cooperative spciety is a legal body all transactions should be legal and as per the provisions of Act,rules,byelaws and govt notifications. If challenged it should not go against society..As it is not commercial organisation there should not be commercial view.
Comments on this by Advocate Nitin Nikam:
Sir, merely because Hsg Society is legal and registered one, its functioning cannot b said to b legal all the time. If any wrong decision, provisions are there under the MCS Act n byel laws , the socirties should take corrective action by making subsequent corrective resolutions.
Views of CA. RAMESH PRABHU
I fully agree with both the above views. A cooperative Housing society is an organisation formed by all owners of the flat who are members of the society to elect democratically the managing committee who shall function and take decisions to serve all the members betterment and not to extract additional amount under one or other pretext for the benefit of other members. The society serves it's own owner members by collecting contribution to give service.
So any resolution against Act, Rules and bye laws create a bitterness among members which should be avoided under all circumstances. The bye-laws and GR is issued by Govt Considering the arm twisting approach of few societies. This type of resolutions should not be passed which divides members
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QW/RP/158/23.08.2015
Last AGM in our society passed a unanimous resolution to penalize members for keeping plants in the balcony. Structural audit suggested that plants in balconies can adversely affect structural balance of building in the long run apart from spoiling the walls. Is such financial penalty on those who have still kept plants legal?
ANS BY CA. Ramesh Prabhu
As per the new model bye law society is authorised to levy penalty upto Rs.5000/- per year for any act done by the members against the interest of the society; against the Act, rules, bye laws and resolutions passed by the society either in General meeting or Managing committee.
It is an accepted fact and in the opinion of expert I. E. Structural auditor the plants should not be kept in the balcony and society has passed the resolution advising members not to do so. In spite of this, if few members are keeping the plant, they should be issued show cause notice for removing on certain date otherwise penalty of Rs.1000 pee week or day not exceeding Rs.5000 be charged in this financial year and why society should not get the labour and remove it on so and so date at your cost and expense etc. Put if required on the notice board etc You may warn that all damages to the building shall be recovered from him/her and only such member shall be held responsible for any mishap etc. After following above procedure you may levy penalty
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QW/RP/159/23.08.2015
Which type of decisions can be finalised at M.C. meeting level in a CHS ? And for which type of decisions it is compulsory for M. C. to take General Body permission in a CHS ?
ANS BY CA. Ramesh Prabhu
As per the model Bye-law, the managing committee members should meet at least once to discuss, decide and take necessary steps to carry on day to day management of the CHS. It includes, receiving various application from members such as NOC for mortgage of flat, to stop leakage , allotment of parking, apply for Membership and communicate the decision. Provide and make arrangements for supply of common services like lift, water supply, drainage, common lights, security. Administration like preparing bills, accounts, Getting audit done, repairing upto Rs.100000 at a time and provide all services to the members and employee staff, decide their salary and so on General body takes the policy decisions like fixing the various charges, approve budgeted expenses, major repairs above 100000, appointment of auditors, amending the bye-laws? Redevelopment decisions, declaring election results and giving the overall guidance as a policy to be implemented by the Managing committee
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QW/RP/160/23.08.2015
SUB. REDEVLOPMENT
U R KINDLY REQUESTED TO LET ME KNOW THAT OUT OF 14 MEMBERS SOCIETY 2 R DESENDING ( NOT AGREE FOR THE REDEVLOPMENT) DEVELOPERS IS READY TO DO LEGAL ACTIONS AGAINST THEM. NOW SOCIETY READY TO SIGN MOU AND P.O.A. IS THIS DOCUMENTS R SUFFICIENT FOR LEGAL ACTION? .
PLEASE ADVICE
THANKS.
ANS BY CA. Ramesh Prabhu
In order to take action against the dissenting members for redevelopment, societies by majority of 75% members should appoint a developer, get the NOC from registrar as per the directions issued by Govt for redevelopment u/s 79A of MCS act, execute and register development agreement, give POA and get IOD and issue eviction notice to every one including the dissenting one. If such dissenting member does not vacate, a case for appointment of court receiver can be done before the Hon'ble High court.
Unless and until you get IOD and balance of incontivence is in majority of members, you may not get the required relief. So go ahead and execute DANCE, POA and insist the developer to obtain IOD to file eviction case against non cooperating members.
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QW/RP/161/23.08.2015
Sir .. Is fresh nomination required after the members are shifted in new building permanently in case of redevelopment ??
ANS BY CA. Ramesh Prabhu
Member nominates as per bye law to transfer his right, title and interest in the society along with shares held by him I favour of nominee to bring legal heirs on record. So even if new nomination is not done after the redevelopment, the old nomination shall be binding and society shall obliged to act on such nomination form.
However, practically in order to have better clarity it is advisable to file new nominations with new flat number and new area so that in future when the society is required to take action on nomination, the prevailing committee should not take a stand that old flat and area are not in existence so nominations are not valid. So my advice would be to file new nomination form after the redevelopment or immediately after executing permanent alternative accommodation agreement is executed whichever is earlier.
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QW/RP/162/23.08.2015
Our society had transferred the flat in the name of members son on the basis of nomination & giftdeed though the giftdeed was not registered nor stamp duty was paid on same.
But after some years someone objected the transfer.
Legal opinion was souught the advocate said the transfer was wrong on his opinion the society transfered the flat on original members name.
Is this correct? whats your comment &opinion?
ANS BY CA. Ramesh Prabhu
If society has done some actions /transfers which could not been done but due to ignorance can be rectified by taking legal opinion in due course when such mistakes are noticed or brought to the knowledge by the affected persons.
Therefore whatever decision you have taken is proper and is also legal. If there is an error committed for whatever reasons, it need to rectified on getting such knowledge which you have done so.
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QW/RP/163/23.08.2015
Our society has already completed the procedure of model bye laws of society after 97th ammendment in the year 2012/13&submitted to Thane Dy registrar but till today there is no reply from them.& department is asking us that the complete praposal had been lossed.&saying that to call special GM &make a new praposal for adopting bye laws pl guide us what can we do?
ANS BY CA. Ramesh Prabhu
Pls follow what has been said by registrar. You have to call SGM with 14 clear notice and get the resolution to adopt new bye laws by more than 2/3rd majority and submit the proposal of adopting new bye-laws within 2 months of holding SGM along with notice, old original bye-laws, new two copies of bye-laws duly signed by office bearers.
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QW/RP/164/24.08.2015
We had election next week. Nobody wants to work for the society.
If nominations is not receive by members then what would be action taken by appointed officers .
What should as chairman I have to do?
ANS BY CA. Ramesh Prabhu
If till the last date fixed for filing nomination for the committee members are not received, the election officer in the meeting called to declare the results of the election, once again advice and request members to come forward to be part of committee. If minimum members required to form the quorum of the committee meeting do not come forward, the election officer shall report the fact of not able to form the committee to the Deputy registrar who shall appoint an authorised officer to manage the day to day affairs for a period of 6 months and to arrange for fresh election. This will continue till proper committee is not constituted by the members.
I fail to understand why members do not come forward to serve themselves. It is collective body of all flat owners and the elected members not only able to get served them better and also other persons staying on the complex. The committee members should be able to take policy decisions by spending 30 minutes to one hour in a month and appoint a trained manager whom reasonable salary can be paid and fix the responsibility and make him accountable. As per new bye-laws and amended MCS act, 1960 the manager is a functional director of the society and many responsibility of routine work can be assigned to such manager. Issue with the members of the society and committee members that they expect the committee members to spend their time, energy and carry out day to day work of looking after water supply, security gauradrs, sweeper, drainage, electricity issues, leakage, parking , billing, collection, attending complaints etc These routine work should be delegated to professional qualified and trained manager. The salary of manager will be shared by all members equally and you can get and demand quality services. The committee members and office bearers should think that it is the honorable post of committee members and not thankless and is a tension. My question is it serving ourself is a thankless job like taking care of myself, my family , my flat, surroundibgs nd then the complex in which my flat is situated. One need to change the mind set and accept the responsibility of committee members and enjoy the power of getting work executed for the benefit of all through paid and trained managers.
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QW/RP/165/24.08.2015
The administrator appointed by the registrar on his last day before handing the office to the newly elected committee transfered a tenant's share certificate to his son's name on the basis of gift deed without examining the authenticity of the deed. No resolution of the said transfer of membership is passed in any general body meeting till date. There is no record in the I- form , J- form register of d same. Later on after one year of the new committee's term they co- opted the said person in the committee and made him the secretary. My question is just by transfering the share certificate can the person become a member ? If not what action should be taken ?
ANS BY CA. Ramesh Prabhu
Endorsement on share certificate regarding the admission of member by transfering the share certificate by an administrator or the office bearers is a conclusive proof Passing a resolution in the minutes book or recording in yI Form, J form or share transger register by the administrator or the committee is the accountability of committee or administrator. The admission or transfer of membership is within the power of administrator or the committee, it does not require approval of General body. Many societies do record the transfers done in annual report, inform and introduce new members in General body and get it ratified. This system of approval is not compulsory as per the MCS act, Rules and bye-laws. The present committee must have now recorded on all statutory records, if not, they can on your bringing the facts to the notice of committee, even today they can do it and update the records. Pending updating of records by the responsible person does not make the transfer illegal or void. Since he is the member of the society based on share certificate Endorsement, he can context election and as per old bye laws before 14.2.2013, he could be cooped in the committee and become secretary also.
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QW/RP/167/24.08.2015
To adopt the new bye laws is it mandatory for 2/3rd of the total members of the society to attend the meeting or just 2/3rs of the members present in the SGM voting in favour is sufficient to adopt and pass resolution.
ANS BY CA. Ramesh Prabhu
to adopt the new bye-laws, the notice of 14 clear days should be given. If there is a quorum of members at the scheduled time, the agenda for adoption of new bye laws can be taken and 2/3 of members present can decide by giving in favour of such adoption If there is no quorum as per the agenda notes, meeting may be adjourned for half an hour and the members present in such meeting whether there is a quorum or not the agenda items can be decided. Thus, it is 2/3rd of the members present who is required to pass a resolution to adopt new bye-laws.
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Ca.Q6:
Elaborate provisions of Associate member and their election to MC, and what to do with those associate members on MC, who are not eligible to become even associate member under new Bye-law.
ANS BY CA. Ramesh Prabhu
As per new bye laws only joint owners of the property/flat can become the associate member. However, if there are some associate members whose name is incorporated as per old bye law by accepting Rs.100/- as entrance fees as a joint share holder in the share certificate who is not owner of the property, till such associate member name is deleted from the share certificate after adoption of new Bye-law, they continue to be associate member. Such associate member is entitled to attend AGM, vote and contest election by taking NOC from first member.
In order to get those associate members who are not joint owner of the property and want to get them disqualified from MC, you need to do the following:
(1) New byes has to be adopted and approved by registrar
(2) MC member name should not be in the share certificate as joint holders
(3) MC need to issue member ceasation letter as per Bye-law no.55 of new model Bye-law has to issued.
After all the above, if MC member does not resign, the aggrieved member should file an application before deputy registrar to order removal of such associate members who are not joint owners of property.
In case, associate member attend the AGM, it will be on behalf of member only and therefore, associate member attendance will in the AGM will be treated as the attendenace of member on AGM and will b treated as Active member. Plz note that associate member, even if he is a joint owner as a member he does not have an independent status.
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QW/RP/168/28.08.2015
Our society has formed a new managing committee after resignation of few members by selection in September 2014.without informing Dy. Registrar.Also Co-opted few members through SGM.What is the status of the managing committee?
ANS BY CA. Ramesh Prabhu
As per the MCS act,1960 amendment done effective from 14.2.2013, all election to the committee, fiilibg of casual vacancy and election of office bearers has to be done by election officer has to be done by the election officer appointed by state coop election authority. There is no provision for cooption. By election by appointing the election officer has to be done by the registrar. The present committee elected in sept 2014 will be only caretaker committee who need to inform the registrar and get the proper election done
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QW/RP/169/28.08.2015
Sanction of FSI by TMC as per DCRules for a plot of 1000sq yds being 1:1.5, is a member of a copartnership tenant Society has equal right to FSI divided by no of membe rs or by no of flats?My view is that each member has one vote irrespective of the area or no of flats in his possession. Can a member claim equal area for each member claiming total FSI divided by next of members on Redevelopment though the area in his possession by way of transfer f on earlier member is less?Please quote any rules/bye laws on the subject in MCS Act.
ANS BY CA. Ramesh Prabhu
Every member when paid for construction of flat has contributed as per the area booked by him and when flat is purchased paid as per area of the flat purchased. Therefore any extra benefit on redevelopment also need to be shared as per the area of the flat.
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QW/RP/170/29.08.2015
ANS BY CA. Ramesh Prabhu
Ans to Mr.Sachin Dixit query by CA. RAMESH PRABHU.
The Municipal Corporation of Greater Mumbai (MCGM) or any Local Authority passes the plan , permit use of FSI/TDR for the purpose of construction on plot of land as per the applicable Development control rules. The MCGM is not concerned with the provisions of MOFA or the terms of agreement. As per MOFA model agreement in Form No.V, the builder while executing the individual flat agreement is supposed to give discreption of land area, allowed FSI and used FSI and balance FSI to be used in future to construct building in phases. Such details are rarely mentioned in the agreement. Instead it is mentioned that all future FSI/TDR benefits vests with the builder and the flat owners give the unconditional consent to use future FSI/TDR by the builder. Therefore, to curb this practice, MCGM has come out with a notification/ order in 2008 advising the building proposal department not to permit any use of TDR on the societies building constructed with one FSI, without taking permission in writing from the registered cooperative Housing societies on that plot of land. Plz email message your email address , we shall send to the person requesting such order of MCGM. Thus, the builder if the building is constructed prior to 1995 under DCR 1967 or prior to enact of DCR 1991 where TDR is permitted, the builder without consent of society can use TDR or additional FSI which was originally not permitted under old DCR but permitted under new DCR, 1991. Of course, if any society is aggrieved, immediately they have to file a case under MOFA for violation of section 7 and violation of clauses in the model agreement form no.V before the civil court and restrain the developer using such additional FSI/TDR to which such societies are entitled.
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QW/RP/171/30.08.2015
If any CHS building has been developed under the SRA , then is there is any lock in period for selling the flats etc may be it belongs to old member or belongs to new property buyers.
ANS BY CA. Ramesh Prabhu
In case a property is developed under SRA, all free flats given to slum dwellers as Rehab part flats cannot be sold for period of 10 yrs from the date of allotment. In case of flats of sale buildings, there is no restrictions on sale. Any time free sale flats can be sold for any number of times
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QW/RP/172/30.08.2015
There are many defaulters in our society who pays late maintenence charges. Till now we are charging 21% per annum simple interest penalty charges. But it becomes difficult and time consuming every month for calculation. So the committee has decided to pass a resolution in the coming AGM, charging interest flat rs 100 monthly on delay payments or 21% p.a whichever is higher. can this be passed with majority? Even after passing resolution can any defaulters make complaints against the society to deputy registrars?
ANS BY CA. Ramesh Prabhu
Bye laws of CHS is very clear that no interest or fine or penalty under whatever name on defaulted dues cannot exceed more than 21% p.a. simple interest. Any violation on this the member can lodge a complaint against the society before the Deputy registrar.
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QW/RP/173/30.08.2015
This has come to understand that ,
while clearing “ B1 Property “ for re development of a Society , the collector authority are likely to levy the Tax for,
# if a member (original) in a society purchased a flat from builder in the year 1972 and registered the documents
# In 1986 the same member sold out the above flat to “ X “ and Mr. X has registered the documents
# Again in 1995 Mr. “ X “sold out the above flat to “ Y “ and Mr. Y has registered the documents
# and now the member ( Z ) who is staying in that flat has purchased the same flat in 2002 after registering the documents as usual.
In such case who will be liable to pay the New Tax etc. / what is the remedy of such cases.
ANS BY CA. Ramesh Prabhu
When the land was originally alloted to the society by the collector, the names of First Members approved by collector is mentioned in the lease deed. One of the conditions of lease agreement is that every transfer shall be approved by collector. As per notification dated 2007, there was restriction of family income to RS. 20000/- per month and 20% was required to be alloted to SC/ST. Now in 2015 both these conditions are relaxed. The applicable transfer fees with penalties has to be paid by the latest owner as he has purchased it with all liability. Further any appreciation in the value of property is not given to the old member or seller, so expecting that the old member has to clear such liabilities on account of collector transfer fees will not be proper
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QW/RP/174/30.08.2015
Is there any rule for seperate parking charges for members & tenants. Pls tell me the bye law.
ANS BY CA. Ramesh Prabhu
Legally speaking the parking facilities are amenities attached to the flat As per DC Rules; depending on size of flats number of parking has to be provided. When the tenant is getting the flat on rent, the parking facilities also enjoyed by him as an amenities attache d the flat which was originally alloted to the members. For tenanted flats other than 10% of maintenance charges as non occupancy charges can be levied no other additional parking charges or under other name any additional amount can be charged. However as a arm twisting tactics few societies charge double parking charges to tenanted flats by passing a General body resolution and tenants or owners pay such additional parking charges to get continuity in parking facilities. This type of resolutions are against the bye laws and Govt notifications
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QW/RP/175/30.08.2015
our bldg plot was alloted to individual person and allotee has developed the plot after taking NOC from Mhada n BMC authority with one partner after completion of legal documents in the year 2009 but till today no OC is obtained, no regular ( residential ) water connection has been provided only commercial water connection is provided presently.society has not been formed.There are residential 8 flats and 1 commercial purpose flat in the bldg & ground floor area front facing is provided to BMC for dispensary as per terms and conditions laid down by BMC at the time of iod /cc
Sir
Kindly advice ,what to do for registration of society and getting oc and residential water connection?
Who is responsible to undertake and complete all necessary documents,amenities ( water connection) and formation of society
ANS BY CA. Ramesh Prabhu
Society Formation responsibility is on the developer. You can file an application for registration of society at the Mhada, Deputy registrar and get the societies registered under non cooperation from builder.
Further to get OC, water connection etc, you have to file a case against the developer before the consumer court with demand for compensation.
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QW/RP/176/30.08.2015
I paused one question on 28th regarding registration of co op Hsg Society by gift deed of members. Please can you help w ith your experiences n under which rule or notification etc.
Regards
ANS BY CA. Ramesh Prabhu
Only flat owners or co-owners of flat/ shop can become the Member of cooperative Housing society. One can acquire the property under Transfer of property Act 1882 by way of gift, sale, transfer, purchase or release deed. Therefore even by gifting the right title and interest of the flat in favour of donee, the donee can become the Member of the CHS.
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QW/RP/177/31.08.2015
Society has not been formed by the builder. First agreement with builder not registered now these owners want to get society registration. Minimum required numbers have no registered agreements therefore to avoid stamp duty n registration experience they want to gift 50 % to family member and get the gift deed registered as stamp duty of Rs.200/- is payable on gift deed effective from 24.4.2015 if gifted to spouse, children and grandchildren.After that they want to give application for society registration as they have registered gift deed. Is this possible ?
By Adv. Kirit Purohit
Addition information by Adv. Purohit.
My client has purchased flat in Virar. Agreement with the builder is not registered no stamp duty paid. Only notarised. Now I came to know that in this building 50 flats have been sold by notarised agreement. Total flats in building are 50 all sold. Now all these owners having no registration of agreement want to form co operative Hsg Society. Can you please advise how to get registration of Hsg Society. Builder will not help. Owners have to register in non co operation of builder'.
Views by Advocate H.M.sutar:
A lawyer should never advise client tp commit breach law. Non payment of stamp duty is an offense . Non registration of a document may result into loss of evidentiary value but may not be an offence. MOFA gives some right even though an agreement is not registered.
All the donees in a building may join registration of a CHS. However the previous documents on which SD is not paid may attract action under Maharashtra Stamp Act.
Again even though a soc is registered and a donee may become member of society, the share certificate in itself does not give marketable title. A purxhaser will surely ask for duly stamp duty paid and registered documents of title.
In effect becoming member of a CHS by availing stamp duty concession will not serve purpose.
Views by CA Shilpa Shinagare.
In order to register a cooperative societies more than 60% flats should be sold by the builder. In your case 50% are sold by notarised agreement and as per section 4A of the MOFA,1963, unregistered agreements can be treated as evidence to grant the relief to the flat purchaser to protect his rights.
The registrar considers resale agreements which are registered to Admit such new purchasers as a member of the society. Therefore even gift deed properly stamped with Ts.200/- which is proper and duly registered will be taken as proper evidence to register the society and meet minimum numbers to register the society.
Comments by CA. RAMESH PRABHU.
When an issue is placed before a consultant to get the solution, the consultant should give all legal options and planning within the purview of the law.
If the execution of gift deed by the seller to relative by paying Rs.200/- as stamp duty and is able to get registered, it is legal and no reason to think that the advocate is giving any wrong or illegal option.
It is true that; if the agreement is executed after 10.12.1985, the stamp duty applicable on the date of execution along with penalty at the rate of 2%per month total penalty not exceeding 400% can be levied as and when collector of stamps comes to know such deficit payment of stamp duty.
Further at the time of execution of conveyance such deficit with penalty will be recovered.
Only caution to such evader of stamp duty is to complete required formalities for registration of society by gift deed or by giving any substantial evidence of having sold more than 60% of flats and whenever stamp duty amnesty scheme is announced to take the benefit and regularise such documents
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Qw178/RSP/31.8.2015
Ajay Khare from Dombivali asking where printed Marathi Byelaws are available for sale or is it available on website.
ANS BY CA. Ramesh Prabhu
Maharashtra societies Welfare association has printed and released Coop hsg societies model bye-laws released on 30th Aug 2015 on the occasion of opening of 5th branch at Pune.
Marathi bye laws are available at all branches of MSWA at the price of Rs.70/-per copy.
Pl contact on 42551414/32 to order for marathi or English model bye-laws of society. It also will be send on making phone calls at home delivery by charging additional home delivery charges of Rs.200/- in addition to cost of bye-laws within mumbai/Thane and pune district
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Qw153/21.08.2015 :
I am staying in CHS at 16 th rd Khar. A member staying at 3rd floor has pulled down wall in his flat as interior changes. The pillars r not touched. But exactly above that wall is our building water tank. Our secretary informed BMC about this & requested them to check the same. BMC has not taken any action. My question is. What action/ Procedure our CHS should take/ follow ?? Can a member make complaint ?
ANS BY CA. Ramesh Prabhu
Any repairs and renovation within the flat is considered two types as per MCGM act, 1881. I. E (1) tenable repairs such as painting, changing the tiles, repairing the pipes, plastering etc which does not require permission from the local authority.
(2) Non tenable repairs such as fixing the new window, covering the balcony, removing partition wall which does not amount to structural changes but certainly needs permission of local authority
Any structural changes will not be permitted by the BMC.
In the case, referred by you, removal of wall is a non tenable repairs which needs permission from BMC. These type of repairs becomes irregular repairs which can be regularised by taking the post facto permission on the complaints made by any member or society. They may have to pay the penalty also.
Therefore, many flat owners do carry on such no tenable repairs which can be regularised on complaint received by BMC.
Now, the society or any members can complaint to BMC about carrying out such non tenable repairs. BMC shall issue show cause notice and advise them to regularise or being the same to original position.
As you said, many times BMC does not take any action. In such cases, the complaint can file an RTI demanding an action taken report and if not satisfied file an appeal under RTI.
The BMC will certainly issue show cause notice and if you regerously follow up by filling reminders an multiple RTI either the complaint will be forced to regularise by paying penalty or bring back the structure to original state or file a case by the BMC against the wrong doer in the BMC magistrate court to pay the fine for wrong doing and directing him to regularise or bring to original position
Therefore, Unless and until there is continuous follow is not done, against such illegal or irregular non tenable repairs , MCGM does not initiate any actions.
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Legal news Update/SS-3/01.09.2015
Perfectual Lease Deed and conveyance Deed:
The immovable property can be transferred from one person to another as per the provisions of transfer of property Act, 1882. There are two types of transfer of property is possible (1) Free hold rights transfer (2) Leasehold rights.
When property is sold on freehold, the buyer gets all right, title and interest in the property.
Under leasehold rights it may be for a particular period say 30 years or 60 years or 99 years and other one is perfectual lease.
Lease on the expiry of a particular period need be renewed or handed over the property back to the owner.
Perpetual lease means the lease deed for 999 yrs or for unlimited perod executed and registered. Since it is a lease the ownership rights on the land will continue to be with the owner. We need to check the terms and conditions of such perfectual lease deed whether redevelopment or use of TDR or additional FSI can be done without taking NOC from the owner need to checked. Ultimately it is the terms and conditions of lease deed which will prevail and not the headings or the period of lease. Only advantage is that the owner cannot ask the leasee to vacate due to expiry of lease. In case of lease on limited period or perpetual lease for any other breaches or violations of terms of lease deed, a suit in the appropriate court to terminate and evict the leasees may be initiated. However, it is practically difficult to evict or terminate such perfectual lease deeds.
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Qw180/RSP/02.09.2015
Pl anyone advise me whether landlord can issue rent receipt in the name of two persons ( who r friends) ? If yes ? What are the other effects ?
ANS BY CA. Ramesh Prabhu
According to my opinion there can be one tenant for one room and rent receipt has to be issued in the name of one person as per Mah rent control act 1999.
In case rent receipts are issued in two names, the first person in whose name rent receipt is issued will b considered to be legal tenant and second name may be considered as occupying the premises with the first with the consent of owner.
It is a unique case.
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Qw:180/RSP/06.09.2015
Question sir pl clarify the matter , if there was a collection of sinking fund from members in the period of fitrst&earlier committee but there was no fixed deposit stand in current asset,Now society has stopped the collection in between days more than 10 years gone .May be spended in routine expenditure no correspondence records available .pl guide .Regards Deshpande Thane (w)
Views of CA. Shilpa Shinagare :
Dear Mr.Deshpande sinking fund collection is required under bye laws at per the min prescribed rates .The spirit of the provision to build the fund for future major repairs and reconstruction work.Now if society has collected and if the same is not parked in the long term investments in the form if FDs or recurring deposits then the auditor should have qualified the reports in previous years assuming previous years audits are completed and on record. Negligence of the auditor in reporting the breaches of bye law is a matter of question here .Before the amendments and as per the old bye law for utilising sinking fund Registrar permission was needed.so if society has collected and utilised it for routine expenses then for the period prior to 14.2.13 I.e wen new Act came into place, the same is a default on the part of the society .As per model bye laws however sinking fund can be utilised with general body permission nd registrar permission is not required. So in my opinion if you are the auditor for the year 14-15 then kindly bring this issue to the notice of the management and in turn to the members since non collection is more serious than collection and utilisation for routine expenses. I think Prabhu sir to support the views and guide on how to proceed further I mean whether complaint needs to filed with registrar for utilising it for normal expenses in prev years and for non collection in previous and current audit year..Prabhu sir please guide further.
Clarification by CA . RAMESH PRABHU
As per bye law No.13 (a) of model bye-laws since 1984 sinking Fund has to be collected @0.25% of cost of construction per annum.
Once collected to be deposited in the long term Fixes deposit on cumulative interest basis till the same has to be utilised as per Bye-law.
For utilisation of sinking Fund upto the introduction of amended bye-laws in 2009, permission from registrar was required to utilise it.
So if new bye laws of 2009 or later version is adopted, the society can use the flsinking fund for major repairs by passing resolution in general body meeting.
In the situation cited by you: there are many lapses like SF not collected, if collected, not separately deposited and used for routine society expenses. There is violation of bye- laws by Managing committee.
The lapse on auditor may be not reporting the breaches of bye-laws. It cannot be called as a serious lapse on the auditor nor any action can be taken against the auditor.
Now recommended action:
Having noticed the lapse, the committee should start collecting the funds effective from the date of AGM/SGM.
Pass a resolution in the General body meeting approving such lapse of earlier years and to take necessary rectification thereafter.
Inform the registrar with a copy of resolution to condoning such lapse as per the decision of General body.
In such case, registrar may not take any punitive action against society. If initiated by registrar, the General body resolution condoning such lapse can be presented to registrar who certainly will accept us ch resolution and drop the punitive action against the society
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Qw181/RSP/ 06.09.2015
Question by Rajesh Nambiar, Dear Sir Can existing members of a CHS discuss, adopt and pass a resolution to bill and collect extra monthly outgoings such as "Garden maintenance" from new members only under undertaking and affidavit from new members during admission.
Pass resolution in AGM.
Views of CA. Shilpa Shinagare :
No all common maintenance to be equally divided amongst all the members.
Ans by CA Ramesh Prabhu
The societies cannot pass a resolution discriminating between different members of society based on their date of admission or type of use like shop or flat etc.
Any charges levied on the members has to be same to all and cannot discriminate.
If your society has passed such resolution and you are agreieved of of such resolution, you may complaint to deputy registrar about violation or breaches of bye laws.
Or file a case before cooperative court to get such resolution set aside.
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Qw182/ RSP /06.9.2015
We want a clarification on subletting and non occupancy charges.
Under the earlier Byelaws bylaws 43 (1) and 43 (2) dealt with subletting of flats. 43 (2) (c) dealt with non occupancy charges. In the new model byelaws (2014) subletting is covered under 43 (a) and (b). Old 43 (2) has been completely removed including nonoccupancy charges. But 67 (a) (x) of new byelaws still mentions nonoccupancy charges at the rate fixed under byelaw 43 (b). It appears there is an error ir anomaly in dtafting. Can the society continue to leavy nonoccupancy charges as per the earlier byelaws and circular issued by the commisioner of cooperation GoM? Or is it that nonoccupancy charges are now not permitted under the new byelaws? Please guide us. Regards, Janardhanan - Awesome Heights CHS
ANS BY CA.RAMESH PRABHU
Whether old bye law or new bye law (2014) adopted, the non occupancy charges can be charged only upto 10% of services charges as non occupancy charges.
There are certain errors in numbering of bye-laws, those cannot be reasons for not implementing the Govt resolutions
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Qw183/RSP/ 07.09.2015
Registered society having 34 total members. In last year AGM. 5 member out of 7 of MC. Has resigned .Chairman also wish to resign but no one was willing to join MC, chairman acted as care taker. & appealed all member to come forward to do society work. After few month formed a committee but. Not. Notified in bank record. & old Office bearer used to sign cheques .is it valid pl. Guide
Ans by CA Ramesh Prabhu
After 14.2.2013, election to the managing committee or office bearers has be done by the duly appointed election officer of state cooperative election authority. U r society entire working and managing committee is illegal. Therefore as a immediate action, you are advised to inform the registrar by sending an application in E-2 and E'3 forms. The registrar shall depute a election officer to your society who shall call SGM with 15 days notice to get the election in SGM. If no one takes interest, registrar shall appoint an authorised officer to manage the affairs till proper election is done.
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Qw184/RSP/08.9.2015
Hello Sir. I am Girish Ganu. I m member of MSWA I. My query is in the managing comm. of the society where I am working there is a lady comm. member who never behaves properly with anybody, she always insults the secretary chairman and other comm, members. She is very rude, and always doubts about the committee and creates disturbance in the comm, functioning. When the comm, members oppose her she threatens to go to police and says that she will make any type of complaint against them as she is a lady and law will easily support her,. ( she is a widow in her mid forties) she even gives information about the committee to the members who are the committee members opponents. Even some ladies of the society have lodged a police complaint against her for her pathetic behaviour. The committee is fed up with her. Can the secretary remove her from the committee with the general body's permission in the forthcoming AGM on Sunday.
Secondly the father of a member wants to become associate member of the society. What procedure he has to follow? Please guide.
Ans by CA.RAMESH PRABHU
(1) Once any person gets elected as committee member, no one except registrar by following due process of law based on disqualification mentioned in the Act like defaulter, not attending 3 consecutive meetings without leave of absence etc.
In case, you want to get rid of her ,as per my understanding ,she does not fit into any disqualification to remove as committee member by registrar, all committee members except her resign and since committee becomes minority, you can request the registrar to hold the fresh election. This is the easiest and best option.
Regarding to become associate member as per the new model bye-laws, the person should be co-owner or joint owner of the property. In case father who wants to become associate member is not the co-owner it is advisable to execute a gift deed transferring part of the property in the name of father and then he should apply for associate membership
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Qw.185/RSP/08.9.2015
Can it be possible for a re-shuffel in office bearers post. We are in the last year of the tenure.Oct 2016 is the deadline for election.TY
Ans by CA.RAMESH PRABHU
Effective from 14.2.2013 Any election to committee members due to expiry of the term or due to casual vacancy like death / resignation, the seats has to be filled by conducting election through election officer appointed by SCEA (state coop election authority ).
Further election to office bearers also need to be done in the presence of election officer. Reshuffle of office bearers amounts to election of office bearers and therefore you have to approach the registrar to get election officer appointed and then reshuffle the office bearers.
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Qw164/RSP/24.08.15
We had election next week. Nobody wants to work for the society.
If nominations is not receive by members then what would be action taken by appointed officers .
What should as chairman I have to do?
Ans by CA. Ramesh Prabhu
If till the last date fixed for filing nomination for the committee members are not received, the election officer in the meeting called to declare the results of the election, once again advice and request members to come forward to be part of committee. If minimum members required to form the quorum of the committee meeting do not come forward, the election officer shall report the fact of not able to form the committee to the Deputy registrar who shall appoint an authorised officer to manage the day to day affairs for a period of 6 months and to arrange for fresh election. This will continue till proper committee is not constituted by the members.
I fail to understand why members do not come forward to serve themselves. It is collective body of all flat owners and the elected members not only able to get served them better and also other persons staying on the complex. The committee members should be able to take policy decisions by spending 30 minutes to one hour in a month and appoint a trained manager whom reasonable salary can be paid and fix the responsibility and make him accountable. As per new bye-laws and amended MCS act, 1960 the manager is a functional director of the society and many respinsibility of routine work can be assigned to such manager. Issue with the members of the society and committee members that they expect the committee members to spend their time, energy and carry out day to day work of looking after water supply, security gauradrs, sweeper, drainage, electricity issues, leakage, parking , billing, collection, attending complaints etc These routine work should be delegated to professional qualified and trained manager. The salary of manager will be shared by all members equally and you can get and demand quality services. The committee members and office bearers should think that it is the honorable post of committee members and not thankless and is a tension. My question is it serving ourself is a thankless job like taking care of myself, my family , my flat, surroundibgs nd then the complex in which my flat is situated. One need to change the mind set and accept the responsibility of committee members and enjoy the power of getting work executed for the benefit of all through paid and trained managers.
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Qw186/RSP/08.09.2015
Dear Mr. Prabhu, What happens to associate members who are not co-owners or joint owners and who were already admitted under the old byelaws? Can they continue as associate members or will they cease to be assiciate members on adoption of new byelaws?
K.P. Janardhanan
Ans by CA.RAMESH PRABHU
On adopting the new bye-laws, the associate member whose name is added as second in the share certificate will continue to associate member till proper procedure about cancellation of Associate member is not adopted as laid down in new model bye-laws No.55 regarding ceasation of membership.
In other words as per new Bye-law only joint owner can be associate member. Now there are few associate members by paying Rs. 100/- as associate member.
As per bye law No.55 various circumstances under which a person ceases to be Member of the society like:
(a) On resignation
(b) On transfer
(c ) on death
(d) on expulsion
(e) Adjudicated as insolvent
(f) person missing for 7 yrs
(g) on ceasation of right/title and interest of the member in the property of the Society etc.
Thus as per new bye-laws, if the member does not hold share in the property, he cease to be the Member and thus a notice to cease the membership can be issued and terminated
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw.188/RSP/14.09.2015
Mr. R. Prabhu if I have purchased the flat n the stamp duty registration process is over but the Secretary has not yet transferred the flat n the matter is with registrar under section 23(2). Can I attend the agm???
Ans by CA.RAMESH PRABHU :
No. You cannot attend AGM as you are still not the member of the society
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Qw 192/ RSP/15.09.2015
If the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA.RAMESH PRABHU
It is the duty of mgt committee to inform the due date of election to the registrar before six months. If they fail to do so, members can complain to registrar who shall issue so cause notice and if proved guilty, can order for disqualification to context election for 5 years.
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Qw 192/ RSP/15.09.2015
If the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA.RAMESH PRABHU
It is the duty of mgt committee to inform the due date of election to the registrar before six months. If they fail to do so, members can complain to registrar who shall issue so cause notice and if proved guilty, can order for disqualification to context election for 5 years.
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Qw193/Rsp/15.09.2015
Whether committee whose term has expired but not informi g registrar to conduct election, has the right to take any dicision regarding break any fix deposits sinking fund for society development?
Ans by CA Ramesh Prabhu
Such committees are called care taker committee and they can take up only day to day activities. No major decisions on policy matters cab be taken. However, if there is a requisition SGM (special General body meeting) is called and decisions are taken, such committees can implement the decisions. In your case, if major repairs has to be done as it is urgent and SGM has decided to use sinking fund, such committees can implement the decision for the betterment of all the members of the society
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Qw.193/15.09.2015
After 1-4-2010 property tax is based on the capital value of the property but will it be different for the property which are given on leave and license ? Will the owner of that property have to pay higher property tax?
Ans by CA Ramesh Prabhu
Once the capital value is adopted and implemented for property tax levy, the property tax on the property which is let out and self occupied are being valued in the same ready recknor value and the tax rate applicable considering the use of property whether residential, commercial, industrial, educational etc
So giving o rent does not affect the propety tax levied by mcgm
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Qw.194/15/09 16:56
As far as my knowledge, in most of the cases society undertakes the shade building but few member who do not have the leakage problem says why should we contribute as the problem is with top floor people ?
But what if in a society some people are adamant & do not contribute? (as the case with my society).
Ans by CA.RAMESH PRABHU
It is the responsibility of the society to repair terrace and take all actions to stop water leakage from the terrace including fixing of shade or sheet on the terrace. The society in General body meeting can pass a resolution by majority (50%+1) of members present to collect the contribution from every Maer as per area of the flat. The society should bill in monthly / quarterly bill and collect from members. If not paid can be recovered by filing recovery cases u/s 101 of MCS act including simple interest @21%p.a by passing such resolutions.
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Qw.195/RSP/15.09.2015
Question: Prabhu sir pl answer can associate member become office bearer? Is it compulsory to add his name in share certificate? As per amendment in law 10 shares are compulsory for each member..
Ans by CA.RAMESH PRABHU
If associate member name is appearing in the share certificate as 2nd or 3rd, he can vote in d absence of First Member and to contest election by taking NOC from first member in Form No.10A. On getting elected, associate member can become office
Bearers of the society.
Associate member name has to be in the share certificate.
On afopted new bye-laws, the balance share capital for 5 shares of Rs.250 to be collected and issue additional share certificate or issue new certificate for 10 shares by taking back the old share certificate of 5 shares.
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CA.Q9:
I am practicing CA ca Goregaon. One of the cooperative Housing society who had claimed standard deduction of Rs. 50000 80P has been disallowed by assessing officer and demand has been raised? What is the legal position.?
Ans by CA. RAMESH PRABHU :
If properly 80P (2)(a) to (c) is studied or analysed, it is applicable for cooperative societies having business income.
Section 80P (2)(c ) is reproduced as under for clarity:
(C) in the case of coop societies engaged in activities other than those specified in claise (a) or clause (b), so much of its profit and gains attributable to such activities as does not exceed (i) where such society is a consumers' coop society one hundred thousand rupees and
(ii) in any other case, fifty thousand rupees.
.........
So much of profits and gains attributable makes it very clear that coop society should be carrying onbusiness activity. Housing society is getting it's surplus exempted under concept of mutuality received from members. It does not carry on any business. Of course, if it gets rent for hoarding or telecommunication towers rent/ service charges, such income or interest income on FD eyc are incidental to proving service to its members or maintaining building but cannot be said to be profit or gain attributable to carring any business activity by such hsg societies.
Therefore, assessing officer is right in disallowing the deduction of Rs.50,000 for coop hsg societies under section 80P(2)(c).
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Qw.199/Rsp/15.09.2015
We are having a caretaker committee since April 2015, now the caretaker committee in reluctant to hold the AGM. What's the legal opinion?
It may be true that caretaker committee is illegal but what about the accounts?
ANS BY CA.Ramesh Prabhu :
Since amendment done to MCS Act,1960 effective from 24.2.2013, the election to each and every society has to be done by the election officer appointed by the State cooperative election Authority. Therefore, in the absence of election officer, you can not hold the election. The election in the absence of election officer has to be postponed to the date when election officer is available.
Since term of office of the committee is expired in April 2015, since than MC is a caretaker committee. However such caretaker committee need to comply with all provisions of law like holding AGM, finalise accounts. It is having all rights of regular duly elected committee except taking any policy decisions like redevelopment etc.
Such caretaker committee need to follow up with registrar and get elections done.
It will be failing it's duty if such committees do not hold AGM by 30th September and get accounts audited and approved in the AGM. All day to day expenses and decisions can taken by such committees and get implemented
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Qw200/RSP/15.09.2015
Counter question to qw199;
Thanks Sir. But here it is slightly different. Committee resigned but failed to send the proper documents to registrar. Hence the election is delayed n committee is playing with members
Ans by CA Ramesh Prabhu
So u may as a member complain to registrar and get authorised officer appointed or election officer appointed. Of you are able to prove their in active actions, get them disqualified for next 5 years from contesting elections. You have to take stand and get such committees thrown out. You cannot expect in such committees to take necessary steps, you aggrieved members do not complain and follow up with the registrar by using RTI or Right to Public service Act, 2015.
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Qw201/RSP/15.9.15
In respect of sale of one shop, we observed that due to earlier endorsements there is no space to endorsement the last transfer. Pl advise how do we resolve this issue?
The last sale is the fourth transfer.-BY Prayers Tapisay
Ans by CA Ramesh Prabhu
It is advisable to attach a continuing sheet of transfer attached to the share certificate. On the original sheet you have to note that sheet no 2 is attached for further transfer
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Qw 202/16.09.2015
Govt had increased property tax and had reduced after sometime. During this period Society had collected @ higher rates. For the credit balance arising can the Society keep it as funds or should the credit balance be refunded or adjusted.
Ans by CA Ramesh Prabhu
Any excess collection on property tax or on any account need to be informed to the members of its utilisation. If any surplus is collected on such account, it is advisable to take an appropriate resolution in the General body meeting whether the same to be credited to the members or transfer to general reserve. Honestly the society should inform the members about extra amount collected on account of property tax and transfer to general reserves such extra to take care of future expenses. Of course, you need to get the resolution passed in the General body meeting.
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QW:190.
One member is not living in a CHS flat registered and stamp duty paid for last 5 years.Last three years a person having family stayed for last years without permission of the society MC.Now another person comes from nowhere and stays the flat belongs to him where as the original member has no alternative address such as native place.Only society has the Xerox copy of the Agrmnt with the buider.Man in is armtwisting with the MC claims to be the real owner and has not paid the Arrears fully for some time.
What actions can be taken against such flat owner?
Ans by CA Ramesh Prabhu
The flat is owned by the members of the society. Legal entity is registered as CHS to manage and provide common services. The society neither has any right to stop giving flat on caretaker or LL basis by member to any person. In case, any nuisance or illegal activities are created by such third party kept by the owner of the flat, the society can initiate legal actions before the appropriate authorities /forums.
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Qw 203/RSP/16.09.2015
We have some members in our society who have huge outstanding and repetitive letters hv yield no action from them. Many of these flats are on leave n License. Plz advice how can we get these members to pay up?
Ans by Uday Prabhu
Please table the same in your Managing Committee Meeting approve the outstanding & then issue at Max 3 Notices & seek justification from Defaulters on reasoning for non-payment then if it still remains unpaid / unresolved then if within 3 years; please go ahead & file Recovery Case under section 101 of MCS Act.
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Qw 204/Rsp/16.09.2015
Can the agm be attend by the defaulters. If yes can they vote too.???
Ans by CA Ramesh Prabhu
Only active member in the cooperative Housing society can vote in the General meeting resolutions or in the election
As per the NEW Model byelaws -2014, if all three of the conditions are full filled, such members are treated as Active members:
(1) to own or co-own the flat/ shop/gala or share in the property of the Society
(2) pay at least once in earlier 5 years.
(3) attend at least one general meetings in the last 5 years provided this clause not applicable if leave if absence is granted by GB.
Defaulter under MCS act means for CHS, if any amount is not paid after the expiry of three months from the date of issue of notice in writing by society to pay such outstanding amount. Issue of monthly or quarterly bill or demand notice cannot be considered as notice to declare a person as defaulter.
Defaulters as stated above do not pay outstanding balance even after issue of such notice in writing over a perod of 3 months cannot contest the election or if elected as committee members and become a defaulters as above, they can be removed from the committee by registrar u/s 77A of MCS act.
So if even if once a small amount towards society charges are paid they are treated as Active members and eligible to vote
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Qw/RSP/17.09.2015
To CA. Prabhu, Mumbai,
Sir pl. Clarify. I hv commenced the audit on 17/03/2015 for the FY 2014-15. There is onjection that audit cannot be commenced before closing of books i.e 31/03/2015. Pl. Confirm.
Ans by CA Ramesh Prabhu
General body appoints the auditor for the current financial year and continues from the date of AGM in which appointed till next AGM. You must have been appointed in the AGM held after 31.3.2014 but before 15.9.2014 for carrying out audit for the cooperative year 2014-15. Therefore, it is expected by law that you start the audit for 2014-15 immediately on appointment, so that you have sufficient time to complete audit. Further, if any rectification has to be done, it can be done during the financial year only. Of course, the statutory audit report can be submitted after the books of account are closed and such accounts statements are adopted by the board of directors / Commitee after the close of cooperative year
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Qw 208/RSP/17.09.2015
I am an office bearer of a Managing Committee (MC) of one of the co-operating housing society in Mumbai. The society has 96 members.
This MC was constituted in Feb 2014 after following the process of election. The election officer has followed the bye-laws prevailing on the day of declaring the election and conducted the same for 11 members. Out of which was reserved for ladies and 1 each for reserved cast respectively.
Unfortunately no one from OBC reserved category filed the nomination for reserved seat; hence the election officer has declared the result for 10 positions and kept the result of one seat in abeyance. Pursuant to which he placed a notice on the notice board seeking the new application for reserved seat from eligible resident members and mentioned in the notice that if no application is received he’ll declare the name of the contestant as 11th members who has received next lowest votes in Feb 2013 election.
On account of not receiving any new nomination/ application the election officer has declared the name of a general category contestant as 11th member. My query to you- does this act of the election officer is valid under the provisions of law/ byelaws?
Ans by CA Ramesh Prabhu
The post for women or reserve categories can be filled from the candidates belonging to that category only. If there are no candidates, it should be kept vacant. It is a Rly compartment reserved for ladies cannot be occupied just because it is vacant by gents, same way, if ladies or SC/ST or OBC or special BC or NT candidates are not available it should be kept vacant and to be filled as and when such categories candidates desire to occupy the seats. Therefore, the returning officer has done a mistake. Now you are either request that 11th candidate to resign or report to registrar who may u/s 77A of MCS act remove him from the post of committee. In case committee want that person to be in the committee or any other active experts who have not contested the election, the committee can coop two committee members as experts or technical knowledge committee members.
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Qw 207/RSP/17.09.2015
Plz.suggest Wht is procedure to adopt new bye laws.
Answer by CA. RAMESH PRABHU
1. Pass general body resolution adopting the new bye laws
2. Two new bye laws
3. Copy of old bye laws
4. Copy of notice agenda and minutes of the general body meeting wherein the bye laws has been adopted
5. Online registration must
6. Filling up forms
7. Affix 50/- court fee stamp on that form
8. Submit to deputy registrar
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Qw/206/RSP/17.09.2015
Sir pl. Clarify. I hv commenced the audit on 17/03/2015 for the FY 2014-15. There is onjection that audit cannot be commenced before closing of books i.e 31/03/2015. Pl. Confirm.
Ans by CA Ramesh Prabhu
General body appoints the auditor for the current financial year and continues from the date of AGM in which appointed till next AGM. You must have been appointed in the AGM held after 31.3.2014 but before 15.9.2014 for carrying out audit for the cooperative year 2014-15. Therefore, it is expected by law that you start the audit for 2014-15 immediately on appointment, so that you have sufficient time to complete audit. Further, if any rectification has to be done, it can be done during the financial year only. Of course, the statutory audit report can be submitted after the books of account are closed and such accounts statements are adopted by the board of directors / Commitee after the close of cooperative year
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Qw 209/RSP/17.09.2015
Is there a rule that a new member of redeveloped society cannot sell his flat for 2 years?
Ans by CA Ramesh Prabhu
There is no such rule. It is a fundamental right of every member to transfer his right, title and interest in the flat/property to any other person in the cooperative Housing society. Therefore, as per bye-laws of CHS, the SRA/Mhada/collector or any govt sponsored schemes where such authorities NOC for the Sale or giving on LL is required. In all other cases NOC for sale or to give on Leave and license or caretaker nasis , socieyy is not required.
Many developers or even committees at the influence of developers incorporate such clauses in the DA agreement not to dispose of flats by any existing members for a perod of two years from the date of handing over the possession of new flat. Some builders incorporate in DA that prior NOC from developers required to sell the flats after executing DA in which case builders demand transfer fees of Rs.1000 or more per sq.feet. I have seen few DA in which societies have accepted the clause that even if builder gives NOC, the balance corpus to be paid to existing member will be forfeited and new person shall not get rent for the balance construction period which is available to others and also any additional benefits arising due to change in the Development control rules like increase in FSI will not be available to such new person who has purchased such flats.
These restrictive clauses at any cost need to be avoided. The reasons given by some societies that, the builder may buy the flats of chairman and office bearers and others will not be able to make such office bearers liable. If such act has to happen it will happen because corrupt practitioners know how to get their work done but it will certainly harm the innocent flat members who fir some reasons want to sell but will be discouraged by such clauses.
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Qw 210/RSP/17.09.2010
Society is formed and mhada alloted a plot to society on 30 yr lease. Society has 11 members. Society entered into developer agreement with developer with all right to him n only right to claim damages to society incase of delay.
Present members wants to transfer there share to other members n developer consent is there.
Can they transfer by executing share transfer form. Do they have to pay stamp duty on it.
Present status is members have right to own flat once developed. Pls advise-
CA Shenal Kamdar
Ans by CA Ramesh Prabhu
It is like any other transfer of flat. Though in this case, the flat may be under construction or is just demolished, the outgoing member is transferring his right, title and interest in the property under construction which will be in due course available to the purchaser from the developer by virtue of development agreement executed by the society.
It is advisable, recommended and legally required that such agreement of transfer of under construction flat gone for redevelopment whenever sold is sold, the agreement should be tripartite I. E seller, buyer and Builder/developer with due NOC from the society..
Stamp duty and registration as per the agreement value or market value as per the ready recknor whichever is more, required to be paid. It is not sufficient to simply fill up the transfer forms and get transfer of share certificate is done. Of course after registering the transfer agreement with tripartite, all transfer forms as required under coop hsg societies bye laws need to be filled, transfer fees and transfer premium of Rs.25000 or as may be decided by the society need to paid and get the shares of the society of outgoing members transferred in the name of new purchaser to admit as member in place of outgoing member.
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Qw211/RSP/17.09.2015
We have a complex of about 24 buildings. 2 societies have been formed for 5 bldgs. 4 bldgs. Are under construction. For others society is yet to be formed. A federation society is also to be formed. Builder is managing common security & facilities. He gave a huge bill to our society which our society rejected on the ground that he has yet to deliver the club house. He has started sending individually to all owners. What should be done by the individual owners & society
Ans by CA.RAMESH PRABHU
It is the duty of the builder to manage the common services in the complex till the project is completed. Once the society is registered, the builder has to collect it from society and cannot issue individual bills The flat owners should not pay such amount to the builder.
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Qw212/RSP/17.09.2015
Is it necessary that car parking alloted nos among original members in redevelopment of society be mentioned when the Permanent accommodation agreement is executed between the members and builder or what is the best solution to secure car parking rights.?
Ans by CA Ramesh Prabhu
If the Development Agreement mentions that each member shall be provided with car parking facilities and the sane is approved by Municipal Corporation and at the time of allotment of flats, the car parking is also identified for respective flats, in such cases, it is advisable and recommended to include in the permanent alternative accommodation agreement. This will not be considered as sold but will b considered as the amenity to the flat which was agreed at the time of DA has been fulfilled and provided along with respective flats.
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Qw/PV/01/17.09.2015
At what stage of redevelopment of a society the permanent alternative accommodation agreement be executed between original member n builder.
Ans by CA. PRAKASH VALECHHA :
First the Development Agreement between builder and society. Then receipt of corpus before shifting and after bldr gets IOD, ( intimation of disapproval) from MCGM ( Municipal Corportion of Greater Mumbai, PAA ( Permanet Alternative accommodation agreement) be signed where area of flat location, details of amenities car park etc is mentioned. PAAA has to tripritite ( builder, society and member ) take Advance rent upto time of const. Usually 18 to 24 months. Then register the agreement and then move out.
PAAA has to be duly stamped and registered. Without executing PARA no one should move out of the flat. There is a judgement on this account passed by High court Mumbai and is now made a part of IOD conditions.
Unfortunately, few society office bearers at the influence of developers and with a hope to get additional area as and when additional FSI is granted, do not get the PARA registered but get only motorised on Rs.100 stamp paper which has no legal validity and then sign an understanding to get commencement certificate before MCGM that PAAA is executed with every member as a fulfillment of terms and conditions of IOD.
Only God has to save such members of societies who have moved out without executing PAAA
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Qw 213/RSP/17.09.2015
Dear Mr.Prabhu
With regards to defaulters : For them to fulfil the condition of active members they should have paid the equivalent of 1 years maintenance in one of years and for a continuous period of 1 year. This was a clarification given in the TOI a couple of weeks back. I find this quite reasonable. Paying one months maintenance in 5 years and seeking to exercise rights without responsibilities is expecting too much from maintenance paying members.
Is this the correct view?
Ans by CA Ramesh Prabhu
Regarding active members of CHS, new model bye-laws at two places have defined separately regarding the payment of dues are concerned.
At one place it says, member should be at least paying once in five years. This means, even in five years he pays once Rs.1/-he shall be active member.
In another place it says, to become active one has to pay maintenance charges regularly. What is the meaning of paying regularly not mentioned.
We as MSWA have requested the commissioner to give clarity on this important vague definition of active members in bye-laws and further requested that a defaulters as per MCS act should not be considered as Active member. As per MCS act, 1960, defaulter in case of coop hsg societies means, a member who has not paid any amount even after the expiry of three nlmonths since the issue of notice for payment outstanding dues.
The response from the department is that the existing g committee in order to see that their opponents or who are against their working style many charge any arbitratorary amount in the bill and then issue notice for recovery and declare them as defaulters. This could be a big scandal misused by the exiting committee.
Therefore, only once payment in five years has been mentioned.
Considering your views, we shall represent to the Govt that average monthly dues of 12 months out of 60onths, if paid by the members, such members are to be considerd as Active members
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Qw214/RSP/18.09.2015
Can a few flat-holders who have bought flats from builder, choose not to become members of the co-op housing society formed by other such flat buyers?
There is a apparently no reason why they chose not to become members. They however contribute towards the common maintenance expenses of the society.
By CA. Rushika (Anitha) Tandol
Ans by CA Ramesh Prabhu
Membership in a cooperative Housing society is a voluntary. No one compel the person who has bought the flat to become the Member of the society.
However, if a person purchases the flat in a cooperative Housing society or purchased the flat from the builder and majority have formed the CHS, it is advisable and recommended that all flat purchasers should become the members of the society fir the following benefits:
(1) members can attend meeting and express views on many important decisions including decisions on outgoings
(2) Can get elected to manage the affairs
(3) If any certificate of residence or NOC for raising loan is required, without being a member society does not grant
(4) common facilities of car parking may be given only to the members.
(5) if such persons want to sell the flat, the buyer would have many doubts on the legal title of the flat.
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Qw/215/RSP/18.09.2015
In our society's Registered redevelopment Avgreement dated 21.05.2008 it was clearly mentioned & agreed by all old members that the developer would have right to allot 50% car parking spaces to his prospective property buyer & remaining 50% parking spaces will be kept reserved for old member of the society.
Developer has issued Parking Space Letter, out of his 50% Parking space quota, to his property buyers.
please reply can society deny to allot Parking spaces to developer's property buyers by passing resolution to the same effect in the SGM Dec 2012,attended by only old members?
Please note till date M.C. has not enrolled any developer's property buyers as members of the society.
Now what is the remedies for new property buyers for getting their dedicated car parking space ?
By Vimal Jain
Ans by CA.RAMESH PRABHU
Car parking facilities has to be provided by the builder to any building developed by them as per Development control rules.1961. The developer has to provide the required car parkings approved by MCGM as per the approved plan to tespective flats as per it's size. Visitors car parking of 25% and 1 parking approved for two or more flats as per DCRULES will be common amenities to be handed over to the society for allotment among members of the society as per the resolution passed in the society meeting.
In your case, since as per DA, it has been agreed that 50% of car parking will be available only to the existing members, society before admitting new myers get the allotment of parking amongst them. Since new flat purchasers are not yet admitted they will not have any say.
After new purchasers are admitted as members and are agreieved of old allotment done by the society against their rights on parking, may file a case before cooperative court to get such resolutions set aside and get the fresh allotment done. If any flat purchaser is aggrieved before admitting as member about the car parking, they can move before civil court or consumer court against the builder and the society to get justice. Otherwise what has been done by the society is proper in the given situation as explained by you
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Qw/PV/01/17.09.2015
At what stage of redevelopment of a society the permanent alternative accommodation agreement be executed between original member n builder.
Ans by CA. PRAKASH VALECHHA :
First the Development Agreement between builder and society. Then receipt of corpus before shifting and after bldr gets IOD, ( intimation of disapproval) from MCGM ( Municipal Corportion of Greater Mumbai, PAA ( Permanet Alternative accommodation agreement) be signed where area of flat location, details of amenities car park etc is mentioned. PAAA has to tripritite ( builder, society and member ) take Advance rent upto time of const. Usually 18 to 24 months. Then register the agreement and then move out.
PAAA has to be duly stamped and registered. Without executing PARA no one should move out of the flat. There is a judgement on this account passed by High court Mumbai and is now made a part of IOD conditions.
Unfortunately, few society office bearers at the influence of developers and with a hope to get additional area as and when additional FSI is granted, do not get the PARA registered but get only motorised on Rs.100 stamp paper which has no legal validity and then sign an understanding to get commencement certificate before MCGM that PAAA is executed with every member as a fulfillment of terms and conditions of IOD.
Only God has to save such members of societies who have moved out without executing PAAA
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Q. What. About the society those who have signed d.a but developers now not interested in developing projects due to various reason going to court tedious work n fees.
Ans by CA P. Valecha
Every DA has a Time limitation clause. Hence if the developer is unable to perform his part and delays the process the agreement lapses. Hence drafting terms have to be clear. It is very important these clauses are catefully drafted that dont bind the society with any unreasonable terms.
The high court has also held in favour of society whenever builders have del. ayed. In a recent judgement the society was permited to change the developer.
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Qw/PV/18.09.2015
What. About the society those who have signed d.a but developers now not interested in developing projects due to various reason going to court tedious work n fees.
Ans by CA P. Valecha
Every DA has a Time limitation clause. Hence if the developer is unable to perform his part and delays the process the agreement lapses. Hence drafting terms have to be clear. It is very important these clauses are catefully drafted that dont bind the society with any unreasonable terms.
The high court has also held in favour of society whenever builders have del. ayed. In a recent judgement the society was permited to change the developer.
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Qw216/ RSP/ 18.09.2015
What is alternative to secure car parking alloted by gen body to original members in redev of socy if nt part of DA and some members insist not to mention car parking nos in Permanent alternative accommodation agreement as it is annexed to the DA.
Ans by CA Ramesh Prabhu
It is advisable to get Parking allotment as per DA in PAAA also.
In case, society has any reservations to get them included in PAAA, at least get the allotment letter issued by the society about car parking as per DA so that in future there will not be any issues related to car parking
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Qw.217/ RSP/ 18.09.2015
Sir I'm member of Pune unit. I would like to know that our building is constructed in 5 floor, initially PMC has sanctioned plan for 4th floor. After the builder have submitted 5th plan on sold of flats. We have taken loan from nationalised Bank but after 3 yrs PMC has not approved the plan stating that road development charge should pay by builders. It is in rule or what action will we take since no completion has been recd & tax also?
Ans by CA Ramesh Prabhu
You have to file a case against the builder before consumer court for claiming damages.
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QW/216/VIM/18/09/2015
1.What is Current account balance limit for the CHS?
Ans by CA Ramesh Prabhu
There is no limit set by any act, rules or bye-laws. Housing societies are permitted to open the savings account in any banks.
If more money is kept idle in the current account, society is going to loose the interest kept in current account. Therefore, the society should not open current account only
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QW/218/VIM/ 18.09.2015.
Please advice
1.How to check whether M.C.has passed any back dated resolution in M.C.meeting or not?
2. Is there any system under Bye Laws to keep Minutes register up to date regularly, so no one can temper or can passed any back dated resolution?
If yes please inform.
Ans by CA.RAMESH PRABHU
Every month you can ask for a certified copy of managing committee meeting agenda and minutes u/s 32 of MCS act and the committee has to provide the same by charging nominal amount.
It is otherwise practically difficult for any ordinary member to keep the track of any back dated resolutions unless and until one or two committee members take the mi uses of the meeting immediately.
When such doubts are raised by the Committee myers, we have advised society to write the minutes in the meeting g only and obtain the signature of all members present at the end. Circulate such minutes xerox to all members of the society. This system adopted by the societies fir general body meetings also. This has reduced the doubt raised by members.
This system has to be afopted by committee otherwise there is no vlbye-laws or rule which provides to wrote minutes immediately.
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Qw/219/RSP/18.09.2015
Within how much time after the AGM do we have to send the papers of bye-law adoption to registrar?
Ans by CA Ramesh Prabhu
Within two months from the date of General body meeting in which resolution to adopt or amend the bye-laws are taken place.
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Ca.Q/RSP/17.09.2015
Sir , I have a Query that should major structural Repairs Expenses of a Cooperative Hsg Society be Borne by all members of the society as per the area occupied irrespective of Commercial and Residential. Or Should the Commercial shops owners bear more.
Ans by CA Ramesh Prabhu
Contributors towards all repairs expenses should be collected from members in the basis of area occupied / purchased by them. There is no separate or extra changes can be levied to commercial members.
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Qw /RSP/17.09.2015
Is it true CA does not hv to enrol for panel , only GDCA has to do that for doing audit, and if not so, where n how can be some one enrol himself on panel.
Ans by CA.RAMESH PRABHU
All auditors like CA individual or firm of CAs, GDCA, retired officers or govt auditors, all are required to be in the panel of Auditors prepares by Govt.
Last panel of Auditors was approved in 2014.
Normally once in a year panel is updated by the dept.
For the current year 2015, it has not been updated or applications are invited.
As and when such applications are invited to update the panel auditors, it is published in news paper, wirc website and now we shall update on this group.
It is expected to happen very shortly.
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Qw222/RSP/19.09.2015
What is the last date for submitting copy of the annual report of the Society to the registrars office ?
Dust be submitted after AGM ? OR Can be submitted before AGM and approval at a later date as Secretary and Jt.secretary abroad !
Ans by CA Ramesh Prabhu
Annual report and return has to be submitted on or before 30th Sept every year but after holding AGM. It cannot be filed before holding AGM
Accounts need to be adopted in the MC meeting and pass a resolution as to the person who shall be signing on behalf of the committee, get it audited and circulate to the members along with AGM notice and get it approved in the AGM.
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QW/223/RSP/ 19.09.2015
In our society land has been conveyed to the society. The land record in b m c has not been changed. They are asking for a fat amount. If they don't do it what is the consequences. C A N B Shetty.
Ans by CA Ramesh Prabhu
If you have proper documents of conveyance Deed properly registered, the authorities cannot demand any extra amount.
You need to take the help of RTI and Maharashtra Right to Public services ACT, 2015.
If within 2 months of making application, no actions are taken, file an RTI to get status report on your application and also file an appeal under right to serve vice act, 2015.
You will certainly get positive outcome
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Qw 224/RSP/ 18.9.2015
In our society for 3 BHK flats 2 sale agreement made by builder. 1 sale agreement for 2 BHK flats.
Our previous Managing committee has issue one share certificate of 5 shares to 2BHK flat and 2 shares certificate of 5 shares to 3 BHk flat.
Is it correct ?
Ans by CA Ramesh Prabhu
As per the old Bye-laws, minimum shares issued to the members of CHS is five and as per new model bye-laws minimum shares issued to be 10 of Rs.50/- each.
Nothing prohibits societies to issue more shares, if there is silufficient authorised capital as per registered bye-laws and proper resolutions to this effect is passed in the MC meeting.
In your case, society has adopted the system to provide one share certificate in respect of each agreement since the approved plan must be showing them as one independent flats and to make it big, the developer must have combined without amending plans, as one flat of 3BHK and sold to the flat purchasers
As per bye-laws, it is necessary to issue one share certificate per flat to get the title of flat identified with agreement and corresponding share certificate. Therefore, there is nothing wrong or mistake or illegal thing has been done by previous committee issuing two share certificate to a person who has two agreements in respect of two approved plans which has been combined for the purpose of convenient.
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Question 225
In all existing CHS which followed the old Bye-laws a member had to purchase 5 shares to own the flat.
Now after adopting the new bye-laws which state fully paid up value of at least 10 shares.
Has it now become mandatory for each Society to issue additional 5 shares to every member at Rs 50/- per share??
Michael
Ans by CA Ramesh Prabhu
Yes by passing resolution and collecting additional Rs.250/- .
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Question 226
The administrator was there in the soc and aftr conducting elections now new committee is in place..One of the off bearer is not ready to sign the accounts saying that tymes committee is responsible .He is an advocate nd wants a section or rule or clause which states its mandatory and respinsivility of the existing off bearer to sign on the accounts for the period wen new committee was not in picture.Plz guide...
Ans by CA Ramesh Prabhu
As per bye law 146 (a) of new model bye laws, it is the responsibility of the secretary or any person authorised by the Committee to finalise the account. At the relevant time whoever is in charge of the affairs need to prepare and finals accounts. The signature by office bearers on account of token of adoption in the committee without any accountability on the committee members who were not in office during the relevant time when the actual transactions took place
Once old Commitee is out of office, they will not have any access to books or records and it is not legal to ask them to do accounts and sign them when they are not holding any post.
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Qw 227/RSP/ 18.09.2015
Our society has declared agm on
On 24 sep which is bakri idd ...national holiday we have 6 muslim members who have pointed out that it is a big festival of minority community and therefore meeting shall be invalid if u dont postpone they will get it cancelled thru registrar...what to do sir ...pl
Ans by CA.RAMESH PRABHU
AGM can be called with 14 days clear notice on any day or night including on public holidays. Any democratic process in the society like holding AGM or any meeting can be stopped by any court or registrar.
You cannot fix the meeting taking into all aspects and every ones convenience.
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Qw 228/RSP/ 18.09.2015
Whether society annual gen meeting can be held on 24 sep one member is saying u cannot hold meeting after 14 aug without registrar permission.
Ans by CA Ramesh Prabhu
As per the amendments done to MCS Act, 1960 effective from 14.2 2013, the society has to conduct AGM by 30th September and the power of the registrar to grant permission has been removed from the Act.
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Qw 228/RSP/19.09.2015
Pl suggest on the following
Due to some reason new commitee formed on may 2014.now we have prepared balance sheet for 14 &15 & planning to take Agm. But repeated verbal request till date we have not recd previous balance sheet from prevoius commitee.
What next. Pl suggest.
Ans by CA.RAMESH PRABHU
Once the new committee is elected and taken charge, all pending work including pending account had to be done by the new committee.
All records should be in the office of society or with the available records, new committee has to prepare accounts of earlier period and any difference to be shown in the ex- committee names and finalise accounts. Without old a/C new accounts cannot be prepared. Plz pass necessary resolutions to this effect and do the needful
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Qw/CA/RSP/ 19.09.2015
Where and when the AGM Can be held. Can it be held in any other city, other than the city in which the society premises are situated.
Ans by CA Ramesh Prabhu
The AGM or any coop society to be held on or before 30th Sept every year. Normally meeting has to be held in the district where registered office is situated. It can be held on holiday as per the notice given 14 days prior to the meeting date. There is no bar to hold the meeting other than the city in which society premises is situated but ideally it should be done within the area of operation of the society. The provision fir holding AGM says, the notice should specify the date, time and place of meeting without any restriction as to where the meeting need to be held
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Qw 230/Rsp/ 20.09.2015
if the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA Ramesh Prabhu
A complaint need to be filed before the Deputy registrar of the respective ward about failure to inform election authority about the expiry of the term before 6 months of expiry of term with all proof of last election held and having send a letter to society about the actions taken to hold election and inform the state coop election authority or registrar
(2) Registrar shall hold a hearing if parties and find guilty shall appoint an Authorized officer u/s 77A of MCS act to manage day to day affairs till elections are held by dismissing the exosting committee
(3) All committee members responsible to inform and initiate election process will be held liable for offence u/s 146 of the Act and shall be disqualified to contest election for a next full term of 5 years u/s 73 CA (1A) of MCS Act, 1960 read with punishment for offence u/s 147 of MCS Act, 1960.
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QW/231/Rsp/20.09.2015
Pl .inform us we have developement aggrement for bldg.no.28.but now bldg.is demolished .and developer still not done individual aggrement. And CC has also come.as per law developer is not ready to do the individual aggrement.so pl.advise .
Ans by CA Ramesh Prabhu
It is violation of High court order, violation of MCGM commissioner direction, so plz complain about this to
(1) Dy chief engineer (Building proposal) of your area about violation of high court order and commissioner direction and if no stop work notice is issued till PAAA is executed, Dy CE (BP) will be held responsible and accountable.
(2) File an RTI for status report to PIO on the complaints made by you
(3) File a complaint under Mah Right to Public services ACT, 2015 before first appellate authority empowered under that act
(4) complaint to MCGM commissioner.
If no actions taken, prepare a perform writ petition to be filed before Hon'ble High court to direct MCGM officials to get the implementation of high court order
5) prepare contempt of high court order petition to be filed before Hon'ble high court and serve on the authorities giving ultimatum to take actions within 30 days.
This will compel the concerned officer including the builder to do the needful.
No one is above the law
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Qw /RSP/22.09.2015
If minute books of society AGM and SGM is not available and produce to auditor for verification and auditor qualify his report . now what remedy is available to society. The same is lost by old committee or accountant
Ans by CA.RAMESH PRABHU
The present committee should make a record of what documents are received and which doxlcuments are not received from old committee duly signed by both new and old committee members.
A police complaint for loss of certain records including minutes book as per the missing list to be filed before the nearest police station.
Infirm this fact to the registrar and then call a Special General body meeting to get the facts recorded and if possible? Compile the minutes or resolutions of earlier committee and General body meetings and get it approved as reconstructed minutes of earlier period
Thus minutes can be reconstructed and made authentic and binding on all
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Qw/RSP/22.09.2015
Is it mandatory to file online AGM munutes with annual and report to the registrar ?
Ans by CA.RAMESH PRABHU
As per section 79 (1A) of the MCS Act, 1960, it is mandatory to file 6 types of annual returns I which AGM date is recorded online along with annual activities, Annual valance sheet / audit report etc within 6 months of close of coop year ime by 30th September Every Year.
Not filing annual returns call for show cause notice including levy of penalty upto Rs.5000 including dismissal of committee or person responsible and disqualification for contesting election for next 5 years as per section 73CA (1A) of the MCS act
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QW/233/RSP/22.09.15
Question being asked in my group...
158-Charkop Anand sec.3.
We have pased redevelopment resolution in last agm,&decided to take fisiblity report first. We took took fisiblity report now, (we wasted hole year to take fisiblity report in fact it's maximum one month job, still I feal my associate committee members delaying & being a committee member I can't talk, to avoid this delay what can I do. Our agm is on 26th September, 2015.
Ans by CA.RAMESH PRABHU
Since your is Mhada society, there is no clarity in the FSI granted to Mhada societies. Amendment to Development control Rules, 1991 to grant 3 FSI with premium payment to Mhada without sharing upto to the plot area of 1500 to 2000 sqmtrs of land and above that area, sharing of built up area with Mhada with 4 FSI is on the pipeline.
You cannot expect the redevelopment to take place in time bound manner as you need consensus of over 75% of myers, locating good developer, policy changes by Govt etc. Any redevelopment process go from the date of starting to finally APPOINT a developer takes anywhere between 3 to 5 years and thereafter 3 to 5 years for completion by developer to give new building
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Qw/236/RSP /25.09.2015
Dear Sir
M a committee member in bhoomi park in malad west. Recently v had our agm on 30th August.. during addressing general body on a box grill agenda..one of our lady committee member who has reserved her seat in womens category in d election alongwith her husband pounced on me with provoking language to indulge in fight n threatening to physically harm me..members of general body suggested me to keep calm..so i kept queit..since she has made a box grill against agm rulings of 5 years.
Next day i wrote to chairman to kindly include d incident in d minute .. no response.. after some day i found dat dey r about to circulat d minutes..so i guided dem dat its needs to b approved in a MCM b4 circulation.. so now dey hav cald a MCM
Dey r planning to create a majority n paas it in MCM for not minuting it.
Apart dis lady is a big nuisance to society bcoz she is regularly doing des harassment in al agm n in general too.
Plz advice..what should i do.
2nd .. dis lady has filed a case in coop court agnst mc n its few members 2 years ago.. d case is still on..in may 2015 v had undergone election thr registrar wherein she got elected in woman category.
Ans by CA.RAMESH PRABHU
Minutes are to be written by the Secretary and the MC can suggest certain changes in that. Thereafter, it is circulated to the members for giving suggestions and objections or omissions which need to be included in minutes. If such procedure is not adopted and you want certain incidents happened or arguments took place need to be recorded, pls do give in writing with a request to include in the final minutes. When such minutes come before next general body for adoption or approval and your points are not recorded, you may request the General body to add in the minutes, if majority is on your side, the same be recorded or your contention by be over ruled by General body. At least such minutes of over ruling be asked to recorded in the minutes of current meeting. Thus record is created.
In case, you are still aggrieved about the way minutes are written by omitting certain important points, you are free to file a dispute before coop court u/s 91 of the MCS Act.
Regarding behaviour of certain committee members etc, the MC or general body or police can have control. However any incidents of criminal nature is done, you may file a complaint before local police station to take necessary actions. If proper actions are not initiated by police, you have to file a case before the magistrate court.
It is always advisable not to get provoked with such behaviour of any persons. By getting provoked, you are allowing them to suceed in their mission of cresting disturbance in the society. I appreciate if you ignore such behaviour and if really it matters and need legal actions of criminal or civil, approach a legal council or meet our legal team by taking prior appointment for first time free legal consultancy by calling on 42551414/32
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Qw 237/RSP/ 25.09.2015
Dear Mr Prabhu, waiting for your revert and help on the below mentioned matter I highlighted previously. It's a big pain and we are sandwiched between builders, BMC and politicians.
Dear Mr Prabhu, need some guidance on the below mentioned matter: -
Panch Sristhi Complex currently comprises of 9 registered societies and few more upcoming buildings. The road inside the complex connects Hiranandani and Chandivalli/ Sakinaka. It's a layout road and is very narrow. All traffic including heavy traffic is plying through this road. Road is in pathetic condition and builder is not maintaining the same. There is also no street lights. We raised with BMC and BMC refused to maintain saying builder has not handed over the road. The situation is pathetic now and becoming bad to worst everyday. Can we get some help from association to take it up strongly with respective authorities. If you need I can send you a mail with photographs.
Ans by CA.RAMESH PRABHU
MSWA has created many platforms and guidance cell to the residents who want to help themselves.
(1) Meet with all documents, complaint made to our legal.team.
(2) we can take up in our MSWA talk show which will be live Webinar type
(3) Meet media consultant of mswa how the same can be high lighted in media.
(4). Arrange an agitation of one day before the concerned authorities by taking necessary police permission.
You need to be proactive, create a movement in your area and unitedly take measures to fight against authorities to get your rights.
Pls contact 42551414/32 To get appoint of legal team a d come with all papers. You may send papers in advance in my email : rsprabhu13@gmail.com
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Q.CA/RSP /25.09.2015
Sir , A society has 10 shops and 20 Residential Flats , now society wants to take a seperate water meter for commercial , is it o k .
And moreover till that time they want to charge more water charges to one of the shop out of 10 shops , is it correct and can it b done by society which is injustice to the targeted shop owner.
Ans by CA Ramesh Prabhu
The society can charge differential water charges for all shops and all residents, if the water bill is charged in that way.
It is not justified to charge only one shop leaving all other nine shops lesser water charges equal to residents.
It is advisable to take two different connectors for residents and commercial, so that commercial bill can be distributed equally amongst shops and residential bill on all flats. No dispute can arise. It is legal and m mcgm does on receiving applications from society
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QW/239/RSP/ 25.09.2015.
Please let me know the WP or case no, in which Honourable Bombay High Court has ordered for executing PAAA compulsory before demolition of the building in process of the Redevelopment.
Ans by CA.RAMESH PRABHU
Any IOD issued after 23
06.2014, has a condition that no comment certificate shall be issued, unless permanent alternative accommodation agreements are executed with existing flat owners on case of CHS or tenants under tenanted buildings which are demolished due to dilapidated conditions or going for redevelopment under different schemes of redevelopment like under DCR 33 (7) cess buildings or under 33 (9) cluster development or u/s 33 (5) MHADA redevelopment or by loading TDR under DCR 34 for private chs .
The honourable high Court in writ petition (L) No.1135 of 2014 has ruled in para 9 (p) that CC to be issued unless PAAA with every member is filed with Corportion.- refer page 13 and 14 of the judgment passed by a division bench Justice Shri. Anoop V Mohta and Justice Shri. A.A.Sayed on 23rd June 2014.
Case law is uploaded on www.mswahousing.org website. Pls visit and download.
Case filed by MCGM against state of Maharashtra, police commissioner and others when notice u/s 354 of MCGM is issued tenants / occupier are not sure about the builder and land owner providing houses in the redevelopment. So a policy guidelines in this case is given in detail at para no.9 of the judgment.
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Qw240/ RSP/ 25.09.3015
In one of the high rise CHS, as per Mumbai Fire Brigade compliances Nov 2009 it was compulsory to provide 2 main Gate (4.5 meter broad with 4.5 meter clear heught) and 1 basement gate (6 meter broad with 3 meter clear height), 6 meter open space in south west corner.
But developer provide only 1 main gate & 1 basement gate. He didn't leave above said open space also.
Till date 20.09.2015 MFB has never cancelled requirement of 2nd main gate & open space.
Developer how ever suceeded to get O.C. in last Nov 2014 with the help of some corrupt personnel by exhibiting basement gate as 2nd main gate and 6 meter above said open space on sanctioned plan copy.
Lots of complaints have been filed at Building Proposal ( Eastern Suburban) vikhroli & MFB.for above said laps.
But non of the department is ready to take any action against these very important safety laps or ready to revoke the O.C.till the date of completion of above said fire compliances. Please advice now what steps shoud be taken ?
Ans by CA Ramesh Prabhu
In case you are sure that there is a need of another gate for safety of the residents as per laid down norms and DCRULES, you need to follow that and not insist for revocation of OC. Your move of getting revocation of OC will be something like putting a fire to your own house to get rid of rat. In the process rat will run away and you will lose your house. In the similar way, if you persistently follow up with the dept to revoke OC, they may do so and the bldg which you are staying can be considered as illegal and every one including you will receive the notice fir eviction which you or your society need to fight in the court and builder will be no where and will run away like the rat in the earlier example and you will then run the risk of making your legal building into illegal.
Instead demand the authorities to direct the developer to provide alternative gate or to the society to install another safety gate. Get the order for gate installation instead of revoking OC.
If MCGM/ Fire dept does not take necessary steps in this direction prepare a perform writ petition to be filed before before honorable High court against BMC/ Fire dept ; builder, society and diver to all of them. The file an RTI demanding status on your complaint.
File an appeal under a Mah. RIGHT TO PUBLIC SERVICE ACT 2015 EFFECTIVE FROM APRIL 3015.
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Qw241/ RSP/25.09.2015
Can Managing Committee charge a commercial establishment (hospitals) for creating nuisance & unhygienic environment in the Society Compound. Up to what amount it can charge? Request guidance from members of this group / MSWA.
Ans by CA.RAMESH PRABHU
Normally, it is advisable to take an undertaking from such members that certain nuisance shall not be created. Whatever is your apprehension about nuisance and for every violation, they may agree to pay certain compensation.
Legally all charges to be approved by General body and it has to be same for all members irrespective of use of property. It is also given in the model bye-laws. ANY NUISANCE OR DISTURBANCE CAN BE OR SHOULD BE TOLERATED BY CHARGING .ADDITIONAL . CHARGES. G.R DATED 29.04.2000 ALSO HAS STATED THAT NO DISCRIMINATION IN LEVY OF.CHARGRS SHOULD.BE DONE BASED ON ITS USES.
The G.R copy can be found I our website ;www.mswahousing.org
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Qw242/RSP/25-09-15
Whether expenses incurred on executing Conveyance including incidental expenses, should be shared equally by members or by the areas of respective flats.
Ans by CA.RAMESH PRABHU
Since it is related to land and bldg, it should be as per area of flat
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Qw243/RSP/25.09.2015
Can a society levy parking charges for basement parking even though the parking lot is in the name of the flat owner
And can the society raise the parking charges
Is any resolution required for that
Is there any way to prevent the society from doing this
Ans by CA.RAMESH PRABHU
Society charges are levied as per resolution of the general body as per the provisions made in the Bye-law. Parking charges also can be collected by the society to whom parking facilities are made available. The way flat is owned by members still various charges are paid, same way, parking though owned or purchased by members, if decided by the General body, every one need to pay.
In case you do not want to charged for car parking, get the majority on your side and stop the resolution from getting passed and even if resolution is moved, see that Rs.10/ per month or nominal charges are levied.
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Qw/RSP/ 25.09.2015
Sir, can one person hold the different co op hsg soceity (chairman) or he become different co op hsg soceity m.c member. ???
Ans by CA Ramesh Prabhu
BY virtue of having purchased the flat/ shop, a person becomes member of the society. So he gets rights to vote and contest. Each society is an autonomous body. So there is no restrictions on holding posts at different societies so long he is otherwise eligible under the respective act.
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Whether Member can be expelled from membership due to misbehave and nuisance
Answer by Vimal Jain
By giving member to clear his stand, in the G.B.Meeting, General Body can expell the said member U/S 35 of MCS Act.
But final decision can be taken by only the concern Deputy Registrar.
Please also check the whole provisions of section 35, whether the said member fit for expell under the the same section or not.
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Qw/RSP/
Question . Is there any bye-law that bar relatives from being office bearers and signatories in bank account of CHS . Thanks
Ans by CA.RAMESH PRABHU
No such restrictions
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Qw/RSP/ 26, 09,2015
Due to any reason, if any CA not able to deliver the audit report by 30th Sept., what can be done in AGM? Is there any way to pass the Accounts and audit report after AGM?
Kindly guide.
Ans by CA Ramesh Prabhu
Accounts subject to audit to be approved with concerns and queries to be considerd by auditors in their report.
After the audit report is received, SGM can be called to approve the audited accounts
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QW/RSP -
"Is there any bye law that bar relatives from being office bearers and signatories in bank accounts of the CHS?
CLARIFICATION BY Adv. M.V Gupta:
D ue respect to Prabhu ji, I would like to bring to notice the following correct position:
A relative who is not a Member of the Society cannot either be an office bearer or be signatory in bank accounts of a CHS unless he is firstly a Read Member of the Society and is duly ejected as Member of MC of the Society under bye law 116 of Model bye laws. Further bye law 114 stipulates that the bank account and all acquittances of the Society should be signed by Secretary Jointly with Chairman or Treasurer. Mere relationship with any office bearer does not entitle a person to become official bearer of the CHS or be signatory in Society bank or other accounts.
Response by CA.RAMESH PRABHU.
I fully endorse the views of Adv.M.V.Gupta. when I stated that there is no restrictions in few societies relatives like brothers and married sisters, parents are members. Thus from one family father becomes chairman, elder son secretary and sister becomes treasurer. They are duly elected members. In such situations few members raise the voice when any action is initiated against them that all office bearers are relatives. If that is the situation no restrictions in act, rules or bye-laws. However, if relative is not member, such relative of member cannot attend even meeting. So there is no question that they can become office bearers or become signatories to cheques
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My question is one of our society member having laminated share certificate in name of previous owner now he wants to transfer the same on his name since laminated certificate unable to add his name can we issue duplicate share certificate to him pls guide us.
Answer by Vimal Jain
Please take original laminated share certificate in M.C . possession alongwith undertaking on stamp paper from the original member for surrendering original share certificate with reason willingly & application for duplicate share certificate and after passing the Resolution in M.C.meeting for the same effect, duplicate share certificate can be issued.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Instead of postponement of AGM in lack of qurom
You should have to wait for next 30 minutes & then AGM should have been concluded with present members.
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It is a practise to write in the agenda itself Should there be no quorum till the appointed time meeting shall be adjourned till and will be held on same place, same day whether there is quorum or no quorum time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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Question: from one of the member from chembur Group:
:- Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure
to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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1) Our AGM is on 27th September 2015.
2) Committee has changed the Auditor for 14-15 .
3 ) Approval was taken for 'A' but got approved from 'B'.
3) Their are no. of anomalies in Balance/Sheet which Auditor also has also accepted .
4 ) Whether under such circumstances the agenda of approving the balance sheet can be discussed or firstly should i say the committee to take the opinion of Federation or Dy..Registrar on the subject matter
5 ) I need to follow Byelaws in this regard.
Answer by Vimal Jain
1.First ask M.C to furnish Audit Rectification Report.
2.Check whether M.C.has follwed the RAR or not.
3.If not,don't approve any Audit Report.
4.File complaint at Deputy Registrar regarding non compliance of Statutory Audit Report.
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Whether Member can be expelled from membership due to misbehave and nuisance
Answer by Vimal Jain
By giving member to clear his stand, in the G.B.Meeting, General Body can expell the said member U/S 35 of MCS Act.
But final decision can be taken by only the concern Deputy Registrar.
Please also check the whole provisions of section 35, whether the said member fit for expell under the the same section or not.
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Qw/RSP/
Question . Is there any bye-law that bar relatives from being office bearers and signatories in bank account of CHS . Thanks
Ans by CA.RAMESH PRABHU
No such restrictions
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Qw/RSP/ 26, 09,2015
Qestion:-
: Due to any reason, if any CA not able to deliver the audit report by 30th Sept., what can be done in AGM?
Is there any way to pass the Accounts and audit report after AGM?
Kindly guide.
Ans by CA Ramesh Prabhu
Accounts subject to audit to be approved with concerns and queries to be considerd by auditors in their report.
After the audit report is received, SGM can be called to approve the audited accounts
QW/RSP -
"Is there any bye law that bar relatives from being office bearers and signatories in bank accounts of the CHS?
CLARIFICATION BY Adv. M.V Gupta:
D ue respect to Prabhu ji, I would like to bring to notice the following correct position:
A relative who is not a Member of the Society cannot either be an office bearer or be signatory in bank accounts of a CHS unless he is firstly a Read Member of the Society and is duly ejected as Member of MC of the Society under bye law 116 of Model bye laws. Further bye law 114 stipulates that the bank account and all acquittances of the Society should be signed by Secretary Jointly with Chairman or Treasurer. Mere relationship with any office bearer does not entitle a person to become official bearer of the CHS or be signatory in Society bank or other accounts.
Response by CA.RAMESH PRABHU.
I fully endorse the views of Adv.M.V.Gupta. when I stated that there is no restrictions in few societies relatives like brothers and married sisters, parents are members. Thus from one family father becomes chairman, elder son secretary and sister becomes treasurer. They are duly elected members. In such situations few members raise the voice when any action is initiated against them that all office bearers are relatives. If that is the situation no restrictions in act, rules or bye-laws. However, if relative is not member, such relative of member cannot attend even meeting. So there is no question that they can become office bearers or become signatories to cheques
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My question is one of our society member having laminated share certificate in name of previous owner now he wants to transfer the same on his name since laminated certificate unable to add his name can we issue duplicate share certificate to him pls guide us.
Answer by Vimal Jain
Please take original laminated share certificate in M.C . possession alongwith undertaking on stamp paper from the original member for surrendering original share certificate with reason willingly & application for duplicate share certificate and after passing the Resolution in M.C.meeting for the same effect, duplicate share certificate can be issued.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Instead of postponement of AGM in lack of qurom
You should have to wait for next 30 minutes & then AGM should have been concluded with present members.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Yes Sir.
You should mention the same in the Agenda.
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It is a practise to write in the agenda itself
Should there be no quorum till the appointed time meeting shall be adjourned till and will be held on same place, same day whether there is quorum or no quorum time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Rajesh Nambiar MSWA: It is a practise to write in the agenda itself
Should there be no quorum till the appointed time meeting shall be adjourned till ----- and will be held on ----- same place, same day whether there is quorum or no quorum
time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Question: from one of the member from chembur Group:
Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure
to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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1) Our AGM is on 27th September 2015.
2) Committee has changed the Auditor for 14-15 .
3 ) Approval was taken for 'A' but got approved from 'B'.
3) Their are no. of anomalies in Balance/Sheet which Auditor also has also accepted .
4 ) Whether under such circumstances the agenda of approving the balance sheet can be discussed or firstly should i say the committee to take the opinion of Federation or Dy..Registrar on the subject matter
5 ) I need to follow Byelaws in this regard.
Answer by Vimal Jain
1.First ask M.C to furnish Audit Rectification Report.
2.Check whether M.C.has follwed the RAR or not.
3.If not,don't approve any Audit Report.
4.File complaint at Deputy Registrar regarding non compliance of Statutory Audit Report.
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Qw/03/vim.
Whether now the suspended MC CAN challenge the above said order? Under sec 22 (2)of the MC Act.
Ans:
As the D.J.R.has ordered status quo, the MC which was suspended by the Dy. Registrar gets reinstated during subsistence of the DJR order. The committee can file appeal against the order under Section 22 (2).
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Will seek your guidance over membership in society for HUF.
One of d flats in our society has recently been bought by HUF in resale.
Their membership application is pending with our society' s committee. I've heard in past that HUF can't be taken in as member, hence want to b sure. Pl note its 20 yr old mhada soc. Buyer (huf) has got d flat transferred in his name from mhada. Pl advise.
Answer by Vimal Jain
Under MCS Act provision of eligibility for Membership,
HUF are not eligible to be members of the CHS.
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Qw /RSP/ 27.09.2015
In the month Jan 2013 AGM approved amount for Painting of Rs. V1.25 out of which 1 crore was collected from members and balance was to be used from R & M fund. Actual expense was 1.05 cr. only. Rs. 5 lacs was out of society fund. In year 2013-14 the work got completed. Whole amount was collected and paid out of it. In last AGM the accounts approved. Now few members want refund vide allocating part of expenses from Repair and maintenance fund. In other words refund of Repair and maintenance fund. Does AGM is having power to refund.?
Ans by CA Ramesh Prabhu
The General body is the Supreme authority to decide on any matter within the provisions of Act, Rules and bye-laws. The contribution is received from members as per general body estimating it to be Rs.1.25crores and you had decided to spend Rs.25 lakhamshi from R&D and Rs.1 crores by contribution. Now let u have saved Rs.20 Lakhs. This can be treated as savings from extra contribution taken for major repairs and accordingly, you may refund to members. There is no restrictions to refund such extra contribution
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Qw/1/Dadar/28
i have lots of problems
main builder gave ua flat after resevelopment in 2010 but not yet given OC.last soo many yrs hw was paying maintainence for existing ones and new members paid for 2/3 yrs.and we all expected that by this time we wil get OC.but now he has stopped paying maintainece and asked us to do all expensesfor r society.light bill security water bills property tax.bla bla all we have to pay. please suggest us how to start. He is not picking up r calls nor repling to ur msg.If we go and ait in his office .He is not available.any solution for that
Ans By Veeraiah Gupta
As per recent judgement of the consumer forum the builder is under obligation to pay taxes etc. Until he executes conveyance in favor of the Society. builders failure to furnish OC amounts to deficiency in service under the CP Act. Get legal notice issued and if he doesn't respond file complaint before the Cons forum.
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Qw/RSP/27.09.2015
With new rules by government Of maharashtra for co op. Societies, is it necessary to start election process six months before the end of the present MC tenure ?
Is it applicable to small ( 18 ) societies ?
Ans by CA Ramesh Prabhu
It is compulsory from 14.2.2013 to get the election to office bearers, committee and fill up the casual vacancies by an officer appointed by state coop election authority.
It is the duty of the committee to inform the registrar of coop societies 6 months prior to the expiry of term the committee to conduct election by submitting E-2 form about the number of committee members to be elected and E'-3 Form about the voter list
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Qw/RSP/27.09.2015
Was it compulsory in 2010 also to inform D.R . regarding completion of election tenure period before six months?
Vimal Jain
Ans by CA Ramesh Prabhu
No it become compulsory from 14.2.2013 but actually started implementation from sept-2014 after the election rules were notified. Prior to that the election was supposed to be done by society and file M-20 bond with registrar within 45 days of assuming office till 6..09.2012. Thereafter M-20 bond is removed
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QW/2/KHC/25.09.2015
If AGM not completed before 30th September then can
1. Society get permission from Registrar for exemption and take time.
2. Society on its own decide date for next AGM
3.. What recourse do the members have in such a case.
4. Can the office bearers be held responsible for the delay.
5. What action can be taken by the members against the committee or the committee members.
Ans Veeraiah Gupta
AGM held after 30 Sept without informing the Registrar is illegal. MCS ACT does not provide for post facto approval. Next AGM should be held after due submission of voters list and request the Registrar to appoint election officer to conduct election.
Undoubtedly the Office Bearers are at fault and liable for punishment under the Act. But complaining against them
May make things more complicated.
[9/28/2015, 10:07 AM] +91 98212 37947: Reminder 2
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Qw/RSP/27.09.2015
With new rules by government Of maharashtra for co op. Societies, is it necessary to start election process six months before the end of the present MC tenure ?
Is it applicable to small ( 18 ) societies ?
Ans by CA Ramesh Prabhu
It is compulsory from 14.2.2013 to get the election to office bearers, committee and fill up the casual vacancies by an officer appointed by state coop election authority.
It is the duty of the committee to inform the registrar of coop societies 6 months prior to the expiry of term the committee to conduct election by submitting E-2 form about the number of committee members to be elected and E'-3 Form about the voter list
You need to adopt new bye laws whether or not you take action against these brothers.
After adopting new bye laws all the effects of new bye laws will happen that increase in MC capacity.
There is also a procedure to follow before declaring any one inactive under new bye laws. You have to follow the procedure like issuing notices to them etc.
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
Strictly speaking it is illegal.
No case law on the topic to the best of my knowledge.
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QW/2/KHC/25.09.2015
If AGM not completed before 30th September then can
1. Society get permission from Registrar for exemption and take time.
2. Society on its own decide date for next AGM
3.. What recourse do the members have in such a case.
4. Can the office bearers be held responsible for the delay.
5. What action can be taken by the members against the committee or the committee members.
Ans Veeraiah Gupta
AGM held after 30 Sept without informing the Registrar is illegal. MCS ACT does not provide for post facto approval. Next AGM should be held after due submission of voters list and request the Registrar to appoint election officer to conduct election.
Undoubtedly the Office Bearers are at fault and liable for punishment under the Act. But complaining against them
May make things more complicated.
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw /RSP/28.09.2015
Our Society hv not submitted financial accounts for last 2 years. Several time we hv ask them to conduct the AGM, but no response. What to do? Saiswami CHSL, Thakurli.
Ans by CA Ramesh Prabhu
You have to file a complaint to registrar. After 15 days file an RTI Demanding status of your complaint and action taken report. You will get necessary solutions
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Qw RSP/ 28.09.2015
As discussed please find the details
One flat owner complained about falling off ceiling plaster from the beam which had spread to other part of the ceiling. He has mentioned that as per clause 160 of bye law the cost of repairs to this has to be borne by the society.
Kindly let us know the legal aspects of this complaint and if the society has to bear the charges of repairs inside the flat. Conveyance deed not done to the society so far.
Please respond on above query...
Ans by CA Ramesh Prabhu
As per Bye-law 160, ceiling and roof has to be repaired by society which means outside the flat and not inside the flat. If society decides to do all ceilings at the time of major repairs ok. But cannot decide for one member ceiling inside.
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Q2/KC/29/09-2015
This query is for amenities plot...
Does the Builder have the right to keep the amenities plot on his name even after the society is formed.Does the revenue generated from the amenites plot -ie : given to hospital on rent beong to only the builder or the society has a right over it?
Answer by Vimal Jain
Any constructed portion, which has not been incorporated into FSI & easily accessible through a common passage for all members, , belongs to the society. Developer couldn't keep such area under his ownership or could let the same area on rent basis to anybody.
As per the deemed conveyance society become the owner of the whole land area.
If you haven't got deemed conveyance, please get it for society interest.
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Q2/KC/29/09-2015
This query is for amenities plot...
Does the Builder have the right to keep the amenities plot on his name even after the society is formed.Does the revenue generated from the amenites plot -ie : given to hospital on rent beong to only the builder or the society has a right over it?
Answer by Vimal Jain
Any constructed portion, which has not been incorporated into FSI & easily accessible through a common passage for all members, , belongs to the society. Developer couldn't keep such area under his ownership or could let the same area on rent basis to anybody.
As per the deemed conveyance society become the owner of the whole land area.
If you haven't got deemed conveyance, please get it for society interest.
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QW/RSP/29.09.2015
If in case any of the office bearers resigns or falls out on compassionate grounds can any body from within the managing commitee take over for ashort period ie one year left for fresh election.
Ans by CA.RAMESH PRABHU
If any casual vacancy arises or any changes in the designation of office bearers even for a short perod need to be done through the election authority only as per amendment done in MCS act, 1960
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Qw/RSP/29.08.2015
Does MHADA conducts a structural audit of cessed buildings in city.
Ans by CA.RAMESH PRABHU
Yes
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Qw/RSP/30.9.2015
Dear Ramesh prabhu sir, there is no change in our committee members since last almost 6 years, now the past Secretary is keeping both the post, post of chairman and Secretary, how can it be possible, what the by laws says
Ans by CA Ramesh Prabhu
As per MCS act?1960, election has to be held once in five years, Two posts cannot be given to one committee member
So, your are advised to file a complaint to deputy registrar who shall appoint an authorised officer to manage the affairs of the society till election is held and handover the management to newly elected committee
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Qw/RSP/30.9.2015
If the AGM not completed b4 30th Sep, is it penalised to Society or Committee members??
Question from one of the committee member
Ans by CA Ramesh Prabhu
If the AGM is not held before 30th September, the society need to inform the registrar who shall appoint an authorised officer to conduct the AGM and fees of officer need to be paid by society. If members complain and wants committee to be penalised, Rs.5000 penalty may be levied , committee can be disqualified for five years from contesting elections and dismiss the committee also.
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Qw^RSP/01.10.2015
Dear prakashji can the 3rd co owner on the basis of a simple letter of consent given by the 1 st co owner ( staying abroad) vote in the MC elections without becoming an associate member. Form 5 not given Rs 100 not remitted. In short he has not applied for associate membership. Ramesh Prabhuji had said NO but I had not mentioned being a co owner his name is mentioned on the share certificate.
Ans by CA Ramesh Prabhu
Pls note that once the name appears in the share certificate as second or third shareholders along with first share holder, all 2nd, 3rd share holders are considered as associate members whether they have filled the form or not or whether they have paid entrance fees of Rs.100/- or not. In such cases, to attend AGM or general meeting and vote by such associate member no consent from first member is also required
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Qw.RSP/01.10.2015
Good Morning: can a Model Bye law as available in book form be modified by insertion / elaboration of clauses ?
Ans by CA Ramesh Prabhu
Yes. You may change the clauses of new model bye-laws by stating provisions in new model bye-laws, new provision the society wants to add, replace or delete and reasons and justification for the same.
In the normal couse, registrar would not accept any changes beyond model bye-laws as it is approved by commissioner and beyond provisions of Act, Rules and GR, circulars issued from time to time. Before rejecting any amendment a hearing will be conducted and the society should present the case properly to get the approval from registrar.
If registrar rejects, an appeal can be filed before Divisional joint registrar y/s 152 of MCS act and
If joint registrar rejects appeal, a revision of an appeal before Divisional he joint registrar can be filed before Hon'ble coop minister.
If rejected by minister, a writ can be filed before Hon'ble High court against the minister order.
Then you can also move before Hon'ble supreme Court by filing a special leave petition against High court order, if you are convinced that amendment I the bye-laws are legitimate and model bye-laws cannot be Imposed on the societies. As the heading itself speaks it is a model or guidelines to societies given while preparing new bye-laws
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/01.10.2015
Gm
My soc.failed to take AGM
No audit last 3 years
Today I am writing to dy.reg
U/s 75(5)for disqualification,
Is it d correct process?
Ans by CA Ramesh Prabhu
Yes
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Qw/RSP/01.10.2015
What if CA audited any CHS for consictive 3 years?
Ans by CA Ramesh Prabhu
As per section 81 of MCS act , effective from 14.2.2013, the panel auditors , can audit consecutive for 3 yrs
Even, if Bye-law provides two years, the same auditor can audit for 3 yrs as the MCS act supersedes bye-laws. As per supreme Court, bye law does not have force of law
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw^RSP/01.10.2015
Dear prakashji can the 3rd co owner on the basis of a simple letter of consent given by the 1 st co owner ( staying abroad) vote in the MC elections without becoming an associate member. Form 5 not given Rs 100 not remitted. In short he has not applied for associate membership. Ramesh Prabhuji had said NO but I had not mentioned being a co owner his name is mentioned on the share certificate.
Ans by CA Ramesh Prabhu
Pls note that once the name appears in the share certificate as second or third shareholders along with first share holder, all 2nd, 3rd share holders are considered as associate members whether they have filled the form or not or whether they have paid entrance fees of Rs.100/- or not. In such cases, to attend AGM or general meeting and vote by such associate member no consent from first member is also required
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Qw.RSP/01.10.2015
Good Morning: can a Model Bye law as available in book form be modified by insertion / elaboration of clauses ?
Ans by CA Ramesh Prabhu
Yes. You may change the clauses of new model bye-laws by stating provisions in new model bye-laws, new provision the society wants to add, replace or delete and reasons and justification for the same.
In the normal couse, registrar would not accept any changes beyond model bye-laws as it is approved by commissioner and beyond provisions of Act, Rules and GR, circulars issued from time to time. Before rejecting any amendment a hearing will be conducted and the society should present the case properly to get the approval from registrar.
If registrar rejects, an appeal can be filed before Divisional joint registrar y/s 152 of MCS act and
If joint registrar rejects appeal, a revision of an appeal before Divisional he joint registrar can be filed before Hon'ble coop minister.
If rejected by minister, a writ can be filed before Hon'ble High court against the minister order.
Then you can also move before Hon'ble supreme Court by filing a special leave petition against High court order, if you are convinced that amendment I the bye-laws are legitimate and model bye-laws cannot be Imposed on the societies. As the heading itself speaks it is a model or guidelines to societies given while preparing new bye-laws
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/01.10.2015
My soc.failed to take AGM
No audit last 3 years
Today I am writing to dy.reg
U/s 75(5)for disqualification,
Is it d correct process?
Ans by CA Ramesh Prabhu
Yes
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Qw/RSP/01.10.2015
What if CA audited any CHS for consictive 3 years?
Ans by CA Ramesh Prabhu
As per section 81 of MCS act , effective from 14.2.2013, the panel auditors , can audit consecutive for 3 yrs
Even, if Bye-law provides two years, the same auditor can audit for 3 yrs as the MCS act supersedes bye-laws. As per supreme Court, bye law does not have force of law
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Mr Prabhu Sir
Can a society by passing a resolution in the AGM change the by-laws and reduce the notice period given for the AGM to 10 days (as per the MC Act it is 14 days)
Is it legal?
What action should the minority members take?
Answer by Vimal Jain
As per The MCS Act it is compulsory for M.C.to circulate AGM Agenda copy before clear 14 days of the AGM date.
General Body can't pass any resolution which over ruled the MCS Act in any matter.
If the are trying to do so, please file complaint in this regard at the office of your local Deputy Registrar.
Even one Member is enough to file complaint.
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Can a society stop falt owners from renting /lease to bachelors in the societies after approving it in the AGM....
or marital status of a person cannot be a reason for not allowing him to take a flat on rent in the society. ?
Answer by Vimal Jain.
Society can't deny to let flat owner to give his flat/shops on rental basis on Religion/Cast/Gender/Married/Unmarried/vegetarian/Non vegetarian basis.
It is the duty of flat/shop owner to make registered agreement, police verification, Nominal Membership Application and he has handover the same documents to the M.C. before giving physical possession of his flat/shop.
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QW/RSP/29.09.2015
If in case any of the office bearers resigns or falls out on compassionate grounds can any body from within the managing commitee take over for ashort period ie one year left for fresh election.
Ans by CA.RAMESH PRABHU
If any casual vacancy arises or any changes in the designation of office bearers even for a short perod need to be done through the election authority only as per amendment done in MCS act, 1960
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What is the recourse available
if it is denied by MC. Renting out to bachelors
Answer by Vimal
File complaint at concerned Deputy Registrar of Co operative society.
He will direct M.C.to let flats on Rent Basis to the Bachelor.
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Qw/RSP/03.10.2015
Dear sir
As our committee has 1 years left in his 5 years tenure, than also we have to adopt new bye laws,
If we accepting new bye laws we have to make new election as per law?
Ans by CA Ramesh Prabhu
Since the term of committee is five years, you will continue till the expiry of the term. By adopting new bye laws, you need not conduct elections before the expiry of the full term of 5 years. New Bye-law has to be adopted as there are many changes in the coop act, rules and election procedure as per Mah coop societies (election to commitee) Rules, 2014
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
Strictly speaking it is illegal.
No case law on the topic to the best of my knowledge.
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Sirji, whether a person who is admitted as a Member on d basis of Nomination is eligible to contest Socy. Election. 2) Whether such member can nominate someone. 3) A member has 3 flats in his name. But in one flat, his wife has jointly purchased d flat. Whether this woman and also her husband contest in d election. Wife from the flat where she is going owner nj thus Associate member. Whether wife has to obtain NOC from her husband to contest election.
Joint owner not "going owner". Pls correct it.
Answer by Vimal Jain
1. Nominee is neither have any right to attend any G.B.Meeting nor he/she can contest M.C.election.
2.Nominee is a mere legal heir of the property after the sad demise of the original owner of the said property.
3.Wife can also contest the M.C.election as a joint owner of the said property with prior consent of the Husband whose name is reflecting as 1st owner of the property on the Share Certificate.
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We are a newly registered Society under builder non cooperation route. We are 253 members and today is our First Constituted General Body Meeting. Please advise what rule applies while constituting the Provisional Committee. What should be the strength of this Privisional Committee. ? Is the 10/2/3 strength to be observed now or this can be followed when we conduct Elections after one year of Provisional Committee management.
Answer by Vimal Jain
MCS Act's Rules &Regulations are applicable, same to both, Provisional committee and elected committee.
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
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was-After death of member, d Nominee is admitted as Member on d basis of the Nomination made by d deceased Member. Whether such member can contest election. Legally this person does not have stake in the property. Legal heir certificate is yet to be submitted to d Socy. After being admitted as Member, whether such person who was d Nominee of the deceased Member make nomination in favor of another person?
Answer by Vimal Jain
1.Before transferring the Share Certificate it was duty of the M.C.to get Legal Heir certificate from the nominee
2.Now nominee has become the member of the society, so he can contest the M.C.election but first let him submit his Legal Heir Certificate or else any litigation issue may be raised by original owner's other Sons, Daughters & Spouse or don't allow him.
3.As M.C.has accepted Nominee as owner of the said property cum member of the society, he has right to make nomination if he succeeds to submit his legal heir certificate
4.If nominee fails to submit his Legal Heir Certificate within reasonable period, pass resolution to reverse original decision of transferring share certificate .
5.Minimum six months gap is required to pass above said new resolution to nullify 1st resolution of his membership.
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A person purchased a resale flat at Kamothe after registration of society. Parkings were allotted by the builder. Is the builder still authorised to allot unallotted parking slot directly to the second purchaser?
Regards
Lt Dinesh Singh.
Answer by Vimal Jain
1.Developer don't have right to allot car parking space at any stage.
Neither at the time of construction nor after completion of building.
2.Only M.C.has right in this regard.
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In continuation to above parking query; I wish to know if a 25 year old Society with pending land conveyance can allot or rather ear mark parking places fir it's Members?
Answer by Vimal Jain
1.With the permission of General Body and after passing Resolution for the same effect, M.C.can allot car parking space
accordingly.
2. There is no connection between pending conveyance & parking allotment.
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Qw.RSP/03.10.2015
Prabhuji, if the Assoc member has stake in the property, his name is second in d share cert, is he still reqd to fill up form 10-A, n submit d NOC frm d first named member.
Ans by CA Ramesh Prabhu
Yes. Noc from first member required to contest the election by the associate member in firm no.10-A is required to be given.
Who can call Special/Extra ordinary General Body meeting? Chairman or Secretory
Who can call Special/Extra ordinary General Body meeting? Chairman or Secretory.
Answer by Vimal Jain
Either chairman, or majority of M.C.Members or 1/5 of General Body can call SGM.
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Dear sir if a flat is in a joint name of a father and daughter but 1st name is of daughterand she has become Nri can she surrender her right and the name can be transfered to father's name though the bank loan is also being paid by father & share certificate is also in joint name Pl guide with regards
Answer by Vimal Jain
After getting Bank's Loan Forclosure NOC, Daughter's consent & undertaking for indemnify society in this regard, M.C.can transfer Daughter's 50% share in the name of her father.
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In our society we have club house facility like swimming pool,Gym.,Squash court etc. Out of 268 flats few members are using.
Society have Banquet hall. My question is society is taking rent for using Banquet hall by members and for other facilities like Gym. Swimming pool, Squash court they are not charging any fees.Maintenance of such amenities is paid by all members. Only few members are using.
How far it is correct? Is their any law that members using these should pay and from that income maintenance of this amenities should be done
Answer by Vimal Jain
As per the MCS Act, every member has to pay maintenance charges for the common facilities/amenities available for the whole members in the area of the society.
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Is there any charges that can be levied or collected by society in sale/transfer of flat other than transfer premium. Dear sir could anyone clear this doubt
Answer by Vimal Jain
1 . Society can collect only Transferfees, Membership fees & Maintenance charges from the flat purchaser and nothing else.
2.If there is any balance due for the said flat, same has to be recovered from the old owner before transfering the flat in the name of the new owner in society record.
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After the election a new comm is elected and ask the old comm to handover the documents lying at society office in presence of the all the new comm members.
The old comm is not responding. Pls suggest wat actions can be taken.
Answer by Vimal Jain
Please don't accept any document randomly.
First let Old M.C.to prepare list of each & every document. Compare the list & actual document old M.C.is going to hand over to new M.C
Please keep copy of the list in possession of the new M.C for any future reference.
List of the documents should be acknowledged by both old & new M.C.Members.
If old M.C.is not ready to hand over all documents to new M.C. or ready to hand over without giving list of documents, please make complaint at concerned DR.
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Qw.RSP /05.10.2015
Dear Sir
If society wants to get deemed conveyance which has its own boundary on a common plot then in that case can society get individual deemed conveyance?
Ans by CA Ramesh Prabhu
Yes. It is advisable that you meet our legal team with prior appointment on 42551414/32 with documents like property cars, approved plan and copy of one agreement
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Is there any charges that can be levied or collected by society in sale/transfer of flat other than transfer premium. Dear sir could anyone clear this doubt
Answer by Vimal Jain
1 . Society can collect only Transferfees, Membership fees & Maintenance charges from the flat purchaser and nothing else.
2.If there is any balance due for the said flat, same has to be recovered from the old owner before transfering the flat in the name of the new owner in society record.
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Mr. Phadnis, please help me understand whether a member who has not completed 2 years of membership in co-op society is allowed to contest elections in society and can he be made treasurer of society?? If it has appened, then what should he do, as he was unaware of such law?
Answer by Vimal Jain
In case of CHS, from day one of becoming Member of the society,
Said member can contest M.C.election as well can be appointed treasure of the society.
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If a person buy a flat under construction with 100% down payment in redevelopment building in February 2010. After 3 slap builder stop construction since April 2010. As per unregistered agreement building is supposed to complete in 2013. At present he is paying rent regularly to old. Tenant . but not giving proper response to New buyer. What is the remedy available with new tenant now
Answer by Vimal Jain
1.If developer is not replying properly, flat buyer can knock the door of consumer forum.
2.In his agreement there must be a clause regarding tentative possession date.
He should high light this clause in consumer forum . Thus he could get some compensation for delayed possession.
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Dear Vimal Jain. Whether trf of 50% by daughter to father should be through registered Gift Deed or any other Instrument.
Answer by Vimal Jain.
Sorry for replying little late.
1.Daughter can transfer her 50% share in the name of her father by executing Registered Gift Deed with appropriate payment of Stamp Duty accordingly.
2.No other documents require for transfering her share.
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Q: Are sweepers and watchmen employees of Society?
A:If they are engaged through a contractor for which money is paid to the Contractor then they are not employees of the Society; if they are paid salary directly by the Society they would be regarded as Society's employees.
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/07.10.2015
Dear sirs, we don't have the conveyance in the name of society. Without that can GB resolve to construct a badminton court and a ramp parking in the society.
Ans by CA Ramesh Prabhu
Yes. Once the society is registered, all the common areas are to be maintained and managed by registered cooperative Housing society. Society need not wait for conveyance to grant any facilities to its members
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Qw.Rsp/07.10.2015
can u guide us reg auditor too. v have appointed auditor who is not empaneld in the last Agm held. v have written abt this to registrar with reminder but no response.
Ans by CA Ramesh Prabhu
You have done your job of informing registrar. Next time appoint a panel auditors.
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Vasant Heble MSWA: Builder would like to know about the formation of co-operative society situated at kalina. How to apply & whom to approach as federation office is not providing proper information to the query
Vasant Heble MSWA: Dear Sir query received from one of the Kalina member
Pls reply on same
Answer by Vimal Jain
Please file an application under RTI, asking required details at the office of the local or concerned Deputy Registrar of Co operative society as well as at the office of the Federation of Co operative society, Mumbai.
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Vasant Heble MSWA: Builder would like to know about the formation of co-operative society situated at kalina. How to apply & whom to approach as federation office is not providing proper information to the query
Dear Sir query received from one of the Kalina member
Pls reply on same
Answer by Vimal Jain
Please file an application under RTI, asking required details at the office of the local or concerned Deputy Registrar of Co operative society as well as at the office of the Federation of Co operative society, Mumbai.
Dear Sir,
we are aware of the RTI process if possible please let us the complete information & documents require & procedure about formation of Co-op HSG SOC.
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Qw/RSP/8.10.2015
Dear Sir,
I would like to know process of forming housing society and register it, where total number of members is 6(six).
I was told by someone that to form a housing society, minimum number of members should be 12. Is it so ?
What is other alternative ? Kindly guide me
Thanks - Dilip N Shinde
Ans: by CA Ramesh Prabhu .
Minimum members required to form the co op hsg society is 10 or 60% of flats sold in the building whichever is more.
We can get your society registered by getting special order issued by coop minister under section 157 of the Maharashtra cooperative societies Act, 1960.
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Qw/RSP^15.10.2015
Kindly ask in MSWA Group about
1. How much maximum amount society can levy for entry to new occupant of resale flat for providing society membership ?
Ans by CA. RAMESH PRABHU :
As per the government notification dated 9th August 2001 by the Govt of Maharashtra under section 79A of MCS act, coop hsg societies can charge transfer fees as may be decided by General body which shall be upto Rs. 25,000/-.
In other words, society can charge transfer fees not exceeding Rs.25000/- to transfer membership to new person who has purchased the flat on resale.
2. Can society charge for providing NOC for mortgage of resale flat ? If yes, maximum cost ?
Ans by CA Ramesh Prabhu :
No. Giving NOC for mortgage and other letters of residence etc are normal services to be given by the society. In case, society need to take a legal opinion before issuing g such NOC and by passing a resolution in the General body meeting such actual cost incurred may be recovered from such member as such legal opinion is taken execlusively to provide service to such members.
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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Qw/MG/19.10.2015
Dear CA. Manish Gadia Ji,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex.
Ans by CA Ramesh Prabhu
Sir,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex
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Qw/MG/19.10.2015
CA.Manishji: thanks for sharing info on service tax. Can you pls inform when Service tax is payable by society? I.e within what timeframe?
Sir, whether service tax is payable within 7 days of receipt of maintenance charge or within 7 days from the month of receipt of charge. Request if this can be clarified.
Ans by CA Manish Gadia
In case of society Service Tax shall be payable monthly by 6 of next month except in case of March month on 31st March.
Since point of taxation is the date of bill, whether the members pay the amount or not, the service tax included in the bill in a particular month should be deposited by 6th of the following month. Thus if some members do not pay maintenance charges, still society will be liable to pay service tax based on the billing date on accrual basis.
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Qw/RSP/ 18.10.2015
Hi regarding filing 101 against defaulters is there any limits or outstanding amount if exceed then only we can file against 101?
Ans by CA Ramesh Prabhu
No minimum or maximum amount. The managing committee may decide any amount and file cases of recovery u/s 101
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Qw/RSP / 19.10.2015
Dear Ramesh Prabhu Sir, under the byelaws a resident who wish to repair and renovate the flat needs the permission of the society to do so. Given the applicant is a defaulter, can the MC reject such application with clearly specifying the reason of default in payments. My reading is the byelaws doesn't explicitly define this aspect.
Ans by CA Ramesh Prabhu
The Govt of Maharashtra has issued an order dated 02.11.2002, advising registrar not to entertain any complaints of defaulters.
The said notification is uploaded on our website on ;
Www.mswahousing.org
In your case, member has money to renovate but does not want to contribute outgoings of society can a strong reasons to state that application shall be considered only after clearing the society dues.
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Qw: /RSP/19.10.2015
Hi can Treasurer act as an accountant?
Ans by CA Ramesh Prabhu
Section 64 of Maharashtra cooperative Societies Act, 1960 provides for distribution of funds of the society. Proviso to section 64 is as under:
"Provided further that a member may be paid remuneration on such scale as may be laid down by the bye-laws, for any services rendered by him to the society "
Pls note, if treasurer is the responsible person to maintain accounts. He can do it himself or by paid accountant. The accountant will be doing the accounts as directed by the treasurer. If the treasurer is authorised to write accounts on honorary basis. He can also write accounts for which society by passing resolution in the managing committee or General body can pay to the treasurer. Before becoming treasurer , he is a member of the society. The law provides for compensating to the member for any additional work done by them which otherwise would have been paid to an outsider.
Audit cannot be done by any commitee member. MCS act or Rules do not prohibit the member of the society to do the audit, if he is in the panel of auditors.
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Qw./RSP/ 19.10.2015
Hello.Good evening Sir. If a member of the society expired,nominee created by him/her can become the member of the society by obtaining the membership by way of Nomination and are known as trustee.This rule is applicable even if the nomination is created by the deseased member in the name of his/her blood relationship such as wife,son or daughter.And if such nominee wants to have the absolute ownership of the said flat for having it disposed off,they are also bound to have succession certificate or letter of administrator from the court of law to prove their eligibility to do so.Please advise.
Ans by CA Ramesh Prabhu
I agree with your views that nominees are only trustees of property till legal heirs are brought on record whether the nominee is blood relative or not.
The legal heirs can be brought on record in different ways:
(1) If there is WILL get the probate where applicable.
(2) Succession certificate from testimantory dept , if there is movable only or it includes immovable properties
(3) Letter of administration from testimantory dept for exclusively immovable property to manage and own
(4) Heirs hip certificate from the district court and registration of release deed in favour of the legal in white name it need to be transferred. Such release deed need to be compulsorily duly registered by paying applicable Stamp duty
(5) Executing gift deed duly stamped and registered in favour of legal heir
(6) An affidavit Cumbria indemnity Bond by all legal heirs in whose name property to be transferred , issue of public notice by society advocate inviting claims and objection as per registered bye-laws of society by taking no claim certificate from advocate and thereafter registering the release deed by paying applicable Stamp duty and registration of the same.
Merely by taking NOC from legal heirs by an affidavits without getting it registered will be a defective title and will invite litigation by legal heirs or property will not have free and marketable title
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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Qw/MG/19.10.2015
Dear CA. Manish Gadia Ji,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex.
Ans by CA Ramesh Prabhu
Sir,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex
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Qw/MG/19.10.2015
CA.Manishji: thanks for sharing info on service tax. Can you pls inform when Service tax is payable by society? I.e within what timeframe?
Sir, whether service tax is payable within 7 days of receipt of maintenance charge or within 7 days from the month of receipt of charge. Request if this can be clarified.
Ans by CA Manish Gadia
In case of society Service Tax shall be payable monthly by 6 of next month except in case of March month on 31st March.
Since point of taxation is the date of bill, whether the members pay the amount or not, the service tax included in the bill in a particular month should be deposited by 6th of the following month. Thus if some members do not pay maintenance charges, still society will be liable to pay service tax based on the billing date on accrual basis.
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Qw/RSP/19.10.2015
Sir good evening.kindly guide that after cirulating AGM minutes to the society member,if any objection ìs to be taken regarding any point written in minutes... what is the time limit to submit letter to secretary after receiving minutes.dr r d singh thane.
Ans by CA Ramesh Prabhu
Within 15 days of circulation of draft minutes any members can give suggestion and objections as per new 2014 Bye-law no. 108 and old bye-laws no.109
Thereafter, the managing committee can consider such objection and modify minutes or reject such suggestion given by the members.
If any member is aggrieved of not including his suggesteions/ objections or challenging any resolutions or minutes can be done only in Cooperative court u/s 91 of Maharashtra cooperative Societies Act, 1960
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Qw^RSP/21.10.15
Hi chairman of our society had two flats in the same society one of Flat he given on Rent but when the management committee ask him about that he always says that they are his relatives and or guest in our society we charge 5,000 for those who are given their flats on rental basis is there any provision to dealt with this please share.
Ans by CA Ramesh Prabhu
You have to take an indemnity Bond from the members when they keep any person on caretaker stating the relationship and how the are exited from charging g dues applicable to other members.
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Qw/RSP/23.10.2015
Sir
In this answer of yours point
No. 4 is not clearly understood by me.
What is legal Heirs hip certificate
Would appreciate a clarification please.
Ans by CA. Ramesh Prabhu
In a coop hsg societies, on the demise of any members, such deceased members shares are transferred to legal heirs by taking affidavit and indeminity bonds from the legal heirs and completing formalities given in the bye -laws.
If there is a WILL it gets probated or succession certificate or letter of administration is taken in metropolitian area.
However places other than metropolitian areas, the family members have to apply to Tashildar or district court on the demise of any person as to who are the legal heirs to inherit the property The court after receiving the petition from any person declaring him or her along with others to declare them as legal heirs of the deceased person. Such order is known S legal heirs hip certificate
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Qw/RsP/ 24.10.2015
Question to Mr RAMESH PRABHU
Sir
U have mentioned before a member stands disqualified if he is inactive
Can any member be actually declared inactive before April 2018.
5 AGMs wef 14/2/13 will be
2013,14,15,16,17. But the end of the financial year 31st March 2018 we have to inform within one month
Ans by CA Ramesh Prabhu
There are 3 conditions to declare a member as non active.
The condition of attending General body is one of the conditions which becomes operative as you say only after 2018.
Regarding irregular payment can be another reason and sale of flat or associate member is not having interest in the property etc can be the reason which becomes effective on the the date of approval of new bye-laws by the registrar.
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We want your advice on the following mentioned points.
And for this ur advice is necessary.
1. IN our 19th AGM we had 9 points of agenda.
But without agenda GENERAL BODY forced chairman to resign.
Whether it is VALID or NOT.
Ans by CA Ramesh Prabhu
No person , managing cimmittee or General body can force any elected maanaging committee / office bearers to resign. It is the power vested with Registrar of the ward only after giving sufficient time and opportunities to put up his/her say mat remove the committee member / office bearer under section 77A of the MCS Act. So the Act of general body to force the chairman to resign is illegal and invalid. If he has resigned on such force, he can call back or withdraw his resignation by addressing letter to all members / committee and registrar
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2. MR.SURVE resigned from chairmanship IN AGM.
According to our understanding MR.SURVE is continued to be a management committee member.
Subsequently GENERAL BODY appointed Mr.Vichare in replacement of Mr. SURVE as a new Management committee member in AGM...whether it is VALID OR NOT?
Ans by CA Ramesh Prabhu
The casual vacancy arises due to death, resignation etc can be filled only by conducting by election in the society by duly appointed election officer. Even changes in the office bearers also need to be done by the duly appointed election officer. Therefore, appoinyment/ co-option or election of another committee member in the general body without inviting the returning officer appointed by the State coop election authority or registrar is illegal and invalid. Pls inform this to the registrar who shall take necessary hearings in such a matter and give his verdict or take necessary action to rectify such illegal actions of the general body.
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3.One of our senior management committee member called new committee member(Mr.Vichare) in one of Management committee meeting as an INVITEE MEMBER..
Does that new committee member (Mr.Vichare) has a voting right or not?
Ans: The MCS Act, 1960 provides for co-option of two expert directors who are members of the society or not to guide and give professional advice to the committee. Thus it is a valid to coopt such a senior member of the society as expert director. He does not have voting rights in the matter of election of the office bearers and also cannot become office bearers. He has a voting rights on all other regular resolutions or decision to be taken when the matter is put to vote like any other committee members
We have adopted modern bye-laws.
Ans by CA Ramesh Prabhu
Whether u have adopted the new model bye-laws or not, the answers given above are as per the Amended MCS act, 1960 and MCS Rules 1961.
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Regards,
Question asked by Mr. S.P.Adhatrao, from borivali area..
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Qw/RSP/ 01.11.2015
If there is a change of members in managing committee, is it required to conduct election ? If not what procedure to be followed.
Ans by CA Ramesh Prabhu
Yes. Whenever any one committee members to be elected due to casual or entire committee to elected due to resignation of old committee or on account of expiry of the terms or even there is interchange of office bearers or election to the office bearers need to be done by the duly appointed election officer by the registrar.
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Querry- in case of co op hsg society while filing itr 5 do we need to give details about audit under mcs act.....? If we don't then how due for filing of return Will be 30 Sept.....?
Ans by CA Ramesh Prabhu
Yes. U have to state that accounts are audited under another Act and then only the due date for filing return of income shall be 30th September
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Qw/RSP/4.11.2015
In new construction one flat buyer have purchased podium parking place as terrace. Other have made outside his flat big .shoe rack which is disturbing other flat purchaser..many flat owner have come to stay .still in hands of builder no o.c. yet.......sir pl guide..kapur..
Ans by CA Ramesh Prabhu
Encroachment of common areas by residents for shoe racks , using car parking for other uses and handing over and occupying the flats without OC is very much common in this country. Every body does one or the other illegal activities in chs or in the building industry. In case, u r aggrieved, the best way is to complain to building proposal department of all Encroachments and illegal use of podium parking. U may take help of RTI and right to public services act, 2015.
Regarding not proving oc , u have to move against the builder before the consumer court.
There is a legal remedies and one need to pursue and constantly be after such illegal activities to get the justice. If u think, every one should behave in a legal way and govt should so motto stop such activities, such things as on today in India not available.
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Qw/RSP/4.11.2015
Is it not enough just to Inform the registrar along with copies of resolution. Election process is for election of mc members. After this mc elects the office bearers.
Ans by CA Ramesh Prabhu
Election to Managing committee , office bearers, filling of casual vacancies at any time has to be done in all types of societies as per Maharashtra cooperative societies (Election to commitee) Rules, 2014. All the above election whether there is a unanimous or unopposed need to be done in front of the election officer appointed by the office of the Maharashtra state cooperative election Authority (SCEA ).
The Deputy registrar of the respective ward has been designated and given additional responsibility of ward election Authority.
Therefore, whenever u have election to committee or filling casual vacancy or changing in the office bearers, u have to communicate to the rehlgistrsr who shall after taking approval from state coop election authority appoint a returning officer in whose presence the said election shall be done.
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For conveyance index 2 of existing members enough or is it a must to have that of the original members especially since soceties are more than 15 yrs old and cannot trace orininal members ramaswamy Chandivali
Ans by CA Ramesh Prabhu
As per Govt resolution dated 12.04.2014, for conveyance or deemed conveyance index 2 or Stamp duty paid proof of the present owners. There is no need to submit the chain of documents of earlier owners.
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Qw/RSP /04.112015
My one of the friend died five months back.he had taken loan from the bank against morgage of his flate.two other friends are guarenteer. Now how bank will recover loan amont given to my friend who died five months back??? Pls guide.......krishnakant Raval
Ans by CA Ramesh Prabhu
The bank shall issue notice to the legal heirs of the borrower. If they repay the loan, the mortgage will be released otherwise bank shall auction the property and recover their dies. If the sale of property realises lesser than the loan amount , the guarantors will have to make it good otherwise, guarantors need not worry. They have to cooperate with the bank to realise the dues by selling the mortgaged property
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Sir. Our soc is at Andheri(w) one member joined in 2006 he is Paranoid schizophrenia. Bit not medicaly detected. He is writing letters since 2007 to all the soc authorities n police. Due to him we had admin for 5 years. N now mg.comm. but every one is tired of him due to repeated complaints and calls by police. Soc condition is becoming bad to worst. Guide us what to do. He is not paying dues amount has gone to 5.5 L. Our adive some resonable legal adviser. Pls help.
Ans by CA Ramesh Prabhu
In every society we have one or two members who create issues which increases the importance of the committee. It also gives an opportunities to the committee to either tolerate or ignore or retaliate.
My sincere advice would be to take the legal recourse to recover dues u/s 101 of MCS Act. U need to appoint a manager whom instruction and advice to be given to replies against all complaints made. U should not be attached to any positions. U need to note that u have nothing to lose other than the members of the committee. No one of the committee should retaliate or give much importance such complaints and the law should take its own couse. The day u get attached personally to such issues, u loose u r peace of mind and the disturbing member gets his work done. Any way, if u need a legal help, pls do call on 42551414/32 to get MSWA legal team expert advice.
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Sir. Our soc is at Andheri(w) one member joined in 2006 he is Paranoid schizophrenia. Bit not medicaly detected. He is writing letters since 2007 to all the soc authorities n police. Due to him we had admin for 5 years. N now mg.comm. but every one is tired of him due to repeated complaints and calls by police. Soc condition is becoming bad to worst. Guide us what to do. He is not paying dues amount has gone to 5.5 L. Our adive some resonable legal adviser. Pls help.
Answer by Vimal Jain
1. First please check all complaints whether they are genuine or bogus.
2.As per my best knowledge Government Authorities would never entertain bogus complaint.
3.If complaints are genuine, please sort out the same asap to avoid any future litigation excepet few chances.
4.If you find complaints are bogus then please file a Harassment case with proofs against the complainant in the Metropolitan Court.
5.This step would surely rein him permanently to file any further bogus complaint.
👍👍👍👍
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Qw/RSP/5.11.2015
In a re-development agreement of 27 months ,but crosses by 3 more months till possesion.is it not the builder liable tco pay the members compensation for the last three months.is the members justified by their claim for extra 3 months which the builder has delayed while giving poscession.Pl clarification required.
Ans by CA Ramesh Prabhu
It is the duty and obligation of the builder to give rent upto the date of possession. Therefore, the society should demand three months rent otherwise file a case to recover three months rent in the consumer court
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QW/01/PS/ 22.09.2015.
Please let me know the WP or case no, in which Honourable Bombay High Court has ordered for executing PAAA compulsory before demolition of the building in process of the Redevelopment.
Prashant Sanghavi
Ans by CA Ramesh Prabhu
Any IOD issued after 23
06.2014, has a condition that no comment certificate shall be issued, unless permanent alternative accommodation agreements are executed with existing flat owners on case of CHS or tenants under tenanted buildings which are demolished due to dilapidated conditions or going for redevelopment under different schemes of redevelopment like under DCR 33 (7) cess buildings or under 33 (9) cluster development or u/s 33 (5) MHADA redevelopment or by loading TDR under DCR 34 for private chs .
The Honourable High Court in writ petition (L) No.1135 of 2014 has ruled in para 9 (p) that CC to be issued unless PAAA with every member is filed with Corportion.- refer page 13 and 14 of the judgment passed by a division bench Justice Shri. Anoop V Mohta and Justice Shri. A.A.Sayed on 23rd June 2014.
Case law is uploaded on www.mswahousing.org website. Pls visit and download.
Case filed by MCGM against state of Maharashtra, police commissioner and others when notice u/s 354 of MCGM is issued tenants / occupier are not sure about the builder and land owner providing houses in the redevelopment. So a policy guidelines in this case is given in detail at para no.9 of the judgment.
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QW/RP/083/19.08.2015
when a building is redeveloped, and a member aquires additional floor space, is there requirement to pay stamp duty/any other charges on the additional area ? Who is liable for such payment ?
ANS BY CA. Ramesh Prabhu
When a new flat is given with additional area or the same area in the new building, a permanent alternative accommodation agreement between the society, develop as confirming party and the member need to be executed and registered by paying applicable stamp duty. Normally the stamp duty at 5% on the cost of construction of the entire new flat including the additional area shall be calculated and need to be paid. The cosy of construction as per latest ready reckoner is Rs.25000 per Sq.meters and registration fees of 1% or Rs.30000 whichever is less. Normally this cost of stamp duty and registration has to be paid by the developer. The same should be part of terms and conditions of redevelopment agreement.
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QW/RP/084/19.08.2015
What remedy is available if any person collects share money or any other sum by misrepresentation to the propsective membersin the name of the consumer society to be registered?
ANS BY CA. Ramesh Prabhu
No one is authorised to collect any share money or entrance fees to form any type of society unless and until, the registrar grants the name reservation letter and the promoters pass a resolution to authorise the chief promoter to collect such funds. As you say, if any one collects such amount by misrepresentation, it amounts to fraud and cheating, you have to file an FIR at the relevant police station under section 420 of Indian penal code,1860 or complaint to economic offense wing at the police commissioner office with a copy to registrar.
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QW/RP/085/19.08.2015
Sir this is DPGondhali from Powai Park Chs Ltd Question...
Will there be increase in property tax if the Car Parking area is permanently covered with plastic/ galvanized sheets.Does it need in permission from Muncipalty?
ANS BY CA. Ramesh Prabhu
Any construction temporary or permanent like plastic or galvanised in municipal area even within the compound of the society requires MCGM permission legally. If some society allows the member to construct and no member of the society complaints to MVGM, action for demolition may not be initiated but legally permission from MVGM is a must. For covered area and open car parking property taxes at different rates are charged. In other words covered car parking certainly will be charged more than the open car parking.
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QW/RP/086/19.08.2015
Sir. In our society, there are quite a few members who have sublet their flats without submitting any docs viz agreement, police clearance, NOC payment etc to the society. What action as per the bylaws, can the society take on such members.
ANS BY CA. Ramesh Prabhu
For any breach of bye-laws, the managing committee need to issue showcase notice for levy of penalty including legal proceedings to expell from the society on persistent default. The explanation and compliance in writing can be taken or call in SGM and after hearing levy the penalty and if required to file a case on cooperative court to evict the tenant etc can be done. Any legal actions depend on the response given by the members. Even, the society can pass a resolution unless and until proper identity of the tenant is not submitted, the tenant may be retrained to enter the society compound.
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QW/RP/087/19.08.2015
Is education fund payable for 14-15 by society?
ANS BY CA. Ramesh Prabhu
As per new section 24A effective from 14.2.2013, societies need to collect education fund as per bye-laws. As per bye-laws of CHS, Rs.10 per member per month need to be collected and separate fund need to be maintained. The society from this fund require to do the training and education of committee members, staff and members from the notified institutions;federations which has been done.Section 24A also provides, education fund at the rate notified, need to be paid annually to the notified institutions and Federations but presently as per my knowledge no such notification to pay education fund is published. So effective from 2013-14 onwards till proper notification is issued, you need not pay any education fund to any one but need to do the training and education at the society through notified bodies which has been done by paying training fees
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QW/RP/088/19.08.2015
Could you explain how to start a federation of CHS. There are multiple society's Total 15 buildings with over 1000 apartments. The election process Managing Committee etc.
ANS BY CA. Ramesh Prabhu
Since the amendment done to Maharashtra cooperative societies Act, 1960, elective from 14.2.2013, election to all types of societies including housing society has to be conducted by the Election officer appointed by the State cooperative election authority (SCEA).
Following elections are to be done by the election officer as per Mah cooperative societies (election to committee ) Rules,2014 and the notification issued by SCEA from time to time
(1) Before the expiry of the term of the committee by conducting election in Special General body meeting (SGM) on the basis of voters list given by the committee(firm E-3) and report regarding the expiry of term as per form E-2 given to the registrar. If the number of members in cooperative hsg society is less than 200 elections are done in SGM by giving 15 days notice unless the society demands election program of 35 days by passing a resolution in such SGM called to hold election immediately.
Where there are more than 200 members, elections are done by following 35 days election program.
Depending on number of members committtee members are elected. 5 seats are reserved for all CHS like two for women, 1 for SC/ST, 1 for Numadic Tribe/ other backward and 1 for Special backward class.
The reserved seats can be filled by only those class of members otherwise need to be kept vacant.
(2) Election of office bearers on getting new committee elected or on the resignation of any office bearers or inter change of office bearers need to be done in the committee meeting in which election officer appointed by SCEA need to be present.
(3) Any casual vacancies arise in the committee due to death, resignation or disqualification or removal of the committee members, the election in the form of by-poll need to be done by getting the appointment of election officer by the SCEA.
Regarding the formation of Federation, any five societies in your layout pass a resolution to form the federation, elect the chief promoter and submit the proposal of registration of federation to the Deputy registrar of your ward.
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QW/RP/089/19.08.2015
Gm sir..Kindly advise is it possible to get Deemed conveyance of leasehold property.society is paying lease rentals to the developer and has passed a resolution saying conveyance to be obtained on onwership basis..but the land is leasehold land.what happens after the expiry of the lease?? Flat gets automatically transferred to the flat owners or flat owners will have to vacate the premises..
Kindly advise
ANS BY CA. Ramesh Prabhu
Under Transfer of property Act,1882, a right, title and interest in the immovable property can b transferred by two ways:
(1) Freehold basis which means, the buyer get all the rights, title and interest in the property without any restrictions by executing sale or conveyance dees in favour of buyer by the seller. The seller or their legal heirs will have no control thereafter in the property.
(2) Leasehold basis which means the use and occupancy of the immovable property is given by the owner to leasee by executing a lease deed for a certain period to use and occupy on certain terms and conditions including the manner of use of such property and on payment of certain lease rent. So in order to answer your queries, we need to go through the lease rent executed between the owner and builder. In your case between the developer and society. Any lease rights by paying proper compensation to the owner/lessor, one can get freehold rights.
In fact, in your case, I can make out that builder/developer has executed the lease deed in favour of the society and you are paying lease rent. Now society must be negotiating with the developer to give freehold rights which is possible.
In case, you are not able to do anything, in such case, the ownership of building will remain with you and land rights will remain with lessor. Till the building becomes completely dilapidated, irrespective of the clauses in the lease deed, owner cannot ask you to vacate the building
If he has to do so, he has to pay the compensation to you and the matter may go to court of law. Once the building due to dilapidated condition local authorities evict and demolish the building and mean time lease period has expired and is not lease period is not renewed, you will not be able to reconstruct the building.
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QW/RP/090/15.08.2015
In Thane, Wagle estate there is slum named"Dnyaneshwar Nagar"structure owenerMr.Patil as per record &upstair first floor some Mr pawar illegally occupied .my question is that "as per SRA scheme is Mr Pawar become leagally occupier /owener or any how? pl guide me Thanks.
has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
ANS BY CA. Ramesh Prabhu
As per the latest changes done in the SRA provisions about the eligibility to get a free house to the upper floor occupier is also will be considered. The upper floor resident should be different family, has separate electric bills, names of such persons should be entered into election rules prior to 1.1.2000.So you are advised to check about the above conditions and if pawar fullfills all of them, in such cases he will be entitled to get new house under new SRA guidelines.has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
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QW/RP/091/15.08.2015
Sir our secretary has resigned nd elections are due in nov.15..can we depute existng treasurer as secretary and the other committee member as treasurer in his place..whether dat will amount to co option??
ANS BY CA. Ramesh Prabhu
Since the amendment to MCS act,1960, effective from 14.2.2013, any General elections to the entire committee memembers or election to fill the casual vacancy due to resignation/ dismissal or resignation of any committee member (earlier the same is filled by co-option now has to be done as by-poll) and election or changes in the designation of committee members /office bearers has to be done through and in the presence of election officer appointed by the State cooperative election Authority. In other words, in your case changes within the committee members about their designation amounts to election of office bearers. So legally you are required to approach the registrar to depute election officer to elect the new office bearers due to resignation of the Secretary.
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QW/RP/092/15.08.2015
A chs in Girgaum completed its Redev on self redev basis by appointing a contractor. No OC is granted as yet. Some members have already shifted in their new homes. However, the chairman is not allowing other members to rent out their flats for want of OC. Is it fair or as per law. Phadnis.
ANS BY CA. Ramesh Prabhu
As per the Greater Mumbai Development Control Rules, 1991 or any applicable development control rules across India, no one is allowed to occupy the building without OC. Occupation certificate is the permission giving by the planning authorities (i.e in your case Mumbai Municipality) stating that building has been completed as per the provisions of development control Rules and is ready in all respect to occupy the building. However, for one or the other reasons, like not planting required trees, covering balcony, not installing fire safety systems, pending dues of property tax , not getting completion certificate from the architect or licensed plumber etc, the OC is not issued. Since in the redevelopment project many are paying rent and in a hurry to come back in their own flat start occupying the building without OC.
Since in the given case, the society has allowed the members to occupy the flat without OC which means the society cannot refuse to give NOC to let out the flats by members whom already allowed to take the possession of flat.
Further as per new model bye-laws: to give flat on rental basis by members NOC from society is not required but need to inform the society about flats given on rent along with copy of information of the tenant given to the police station and registered Leave and license Agreement.
So in your case, the member should take the possession of flat and then give the flat on LL basis by executing the LL registered agreement and inform the society and police about the details of tenant. In case, society objects the tenant immediately a Complaint to bodged with police and see that tenant is allowed to occupy the flat.
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QW/RP/093/15.08.2015
Hi we want to form a Apex body for Panch Society though we have larger federation with currently 9 Societies, as Panch Societies got certain specific amenities which is not a part of federation. But currently we have 4 registered Societies under Panch Societies and one society not yet registered and under builder. Builder is not helping and we have various issues. Can any one help us to form that apex body? Indranil, Panch Smruti
ANS BY CA. Ramesh Prabhu
To form a cooperative Housing Federation, you need to have five registered cooperative societies. In your case since presently 4 societies and you will be able to form registered federation only after registering the fifth society. Since you have a larger federation of consisting 9 Societies, in order to have another federation within the same complex, you will have to obtain NOC from Federation of 9 Societies.
You are advised to meet the Free CHS legal advisory cell of MSWA by taking a prior appointment by calling on 42551414. Once you get complete guidance from experts of MSWA understanding your specific issues you may decide to form another federation or get better legal body to handle your specific issues.
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QW/RP/094/15.08.2015
What is the difference between attorney, barrister, lawyer, and solicitor? How about advocate, counsel, counselor, or counselor-at-law?
ANS BY CA. Ramesh Prabhu
Lawyer is a general term for a person who gives legal device and aid and who conducts suits in court. An attorney or, more correctly, an attorney-at-law, is a member of the legal profession who represents a client in court when pleading or defending a case. In the US, attorney applies to any lawyer. In the UK, those who practice law are divided into barristers, who represent clients in open court and may appear at the bar, and solicitors, who are permitted to conduct litigation in court but not to plead cases in open court. The barrister does not deal directly with clients but does so through a solicitor. The word attorney comes from French meaning 'one appointed or constituted' and the word's original meaning is of a person acting for another as an agent or deputy. A solicitor would be the UK equivalent of the US attorney-at-law. Counsel usually refers to a body of legal advisers but also pertains to a single legal adviser and is a synonym for advocate, barrister, counselor, and counselor-at-law. As to the abbreviation 'Esq.' for 'Esquire' used by some lawyers ... it has no precise significance in the United States except as sometimes applied to certain public officials, such as justices of the peace. For some reason, lawyers often add it to their surname in written address. However, it is a title that is specifically male with no female equivalent, so its use by lawyers should fade away.
SOURCE : http://dictionary.reference.com/help/faq/language/d11.html
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QW/RP/095/14.08.2015
A G M ghenyasathi election chi garaj ahe ka society members 42 flat please mahiti sanga. (Same in English: For AGM, you need valid managing committee. For Valid managing committee you need election. For Election ... Adv. Neeta's turn !!!) service charge/tax applicable on the amount collected Thanks
ANS BY CA. Ramesh Prabhu
Till the managing committee is not disqualified /dismissed by the Deputy registrar and appoints an authorised officer in their place, the committee is fully empowered to hold the AGM. They get all the powers of regular committee. Any action done by them under good faith and in the capacity of managing committee is valid and is binding on all.
They also can initiate necessary steps to conduct elections through the state cooperative election authority.
Any body who is not officially removed by registrar by issuing an order of dismissal such committees are valid and legal and all actions which a regular Committee does can be done by them
To conduct elections, the exiting committee need to submit a certificate in E-2 form and list of voters in E-3 form to the registrar who shall get the election officer appointed under whose supervision and guidance new Committee shall be elected
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QW/RP/096/14.08.2015
Sir, can ad hoc committee before registration of society collect maintenance charges and give receipt for the same. If yes then is there any service charge/tax applicable on the amount collected Thanks
ANS BY CA. Ramesh Prabhu
Normally it is the stutory obligations and duty of builder to maintain the property till the society or any legal entity to manage the complex is registered. It is observed that in many builders neither register the society nor maintain the property and provide common services like security, water supply, common electricity, cleanliness etc. In such cases, it becomes necessary for flat owners to come together and form an Ad hoc committee to manage day to day affairs.
In such cases, you form an ad hoc committee of proposed societies by holding the meetings of flat owners, obtain signature, record the minutes in which a resolution authorising the adhoc committee to collect service/ maintenance charges at a particular amount/rate , issue bills, receipts and spend money for common services can be passed. Unless until you get Permanent Account No (PAN) you will not be able to get service tax numbers even if you are liable. Similarly, to get PAN, society need to be registered.
Thus I am of the opinion that you need not collect service taxes. However, the adhoc committrr will be able to issue bills and receipts based on resolutions passed.
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QW/RP/097/14.08.2015
Our society was originally a 4 storied structure. Subsequently, floors 5-7 were built. Earlier residents were not desirous of availing lift facility(barring floor 4)which was then built to only service floors 5-7. Two questions about this -
1. Should the lift maintenance be a part of the society responsibility?
2. Do all residents also have to contribute towards it?
Presently only residents 4-7 are contributing & maintaining said lift.
ANS BY CA. Ramesh Prabhu
Since the lift was specially built for servicing the flats of 4 and above, it is proper to collect charges from 4th floor onwards only. The bye laws provides that the contribution towards maintenance of lift to be shared equally by all the flat owners of the building in which the lift is installed. In your case the additional construction has been done and lift is not stopping at 1st to 4th floor and is installed for those exclusive floors. Therefore it is proper, legal, logical and justified to collect lift maintenance only from 4th floor and above flat owners whose exclusive benefit such lift is installed. Action and Hold Position in Managing Committee if full consent given by First member
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QW/RP/098/14.08.2015
I wanted to know whether we can hold election in the absence of election officer?
ANS BY CA. Ramesh Prabhu
Since amendment done to MCS Act,1960 effective from 24.2.2013, the election to each and every society has to be done by the election officer appointed by the State cooperative election Authority. Therefore, in the absence of election officer, you can not hold the election. The election in the absence of election officer has to be postponed to the date when election officer is available.
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QW/RP/099/14.08.2015
Can an Associate Member ( am not a Co Owner obf property) in Absence of First Share Holder in an AGM Attend it , take part in any Discussions in it , place my opinion for any Points or have right to speak in any matter of it or Vote in that AGM .
Can I an Associate Member ( am not a Co Owner of property) can attend only AGM or all Meetings in which First Member is allowed to attend like SGM and Emergency meetings in Absence of First Member
Now in new Bye Law atleast One AGM is must in 5 years to remain Active and avoid expulsion. If the First Member don't attend a Single AGM in 5 years and In his absence Associate Member Attends atleast one AGM then will the First Member be considered a Active member or Non Active member.
This Bye Law of atleast One AGM is must in 5 years to remain Active will be considered after 2014 or the attendenace prior to 2014 will be considered.
I as an Associate Member ( am not a Co Owner of property) c an not have any priviledge of Member by default. Can First Member Give consent letter to Associate Member with complete authority to do all acts of society such as Applications , Representations , Getting any information of society or any matters in absensce of First Member or can a First member issue a POA to Associate Member for Handling all Matters related to society.
Can an Associate Member ( am not a Co Owner of property) contest Election and Hold Position in Mananging Commitee if full consent given by First member
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QW/RP/151/21.08.2015
I am expecting urgent reply from you. One of the credit societies, Bye laws has been approved by the Dy. Registrar on 27-01-2014. As per the Bye laws a post of Secretary is not in existence. Now Secretary has called Society's AGM . Whether this AGM is vadid.As per the provisions of the Bye laws only Chairman,Vice Chairman from the Management and C.V.O/Manager posts are in existence.Who is authorized to call AGM. Board of Directors has not given specific powers to any Directors to call meeting till date.Pl guide me.
ANS BY CA. Ramesh Prabhu
As per bye-law there is no post of secretary but in realty the board has elected post of secretary. The board is within its power to elect any office bearers with the designation they wish to give. Since the Secretary has called the AGM, the board wants to ratify by calling board meeting they can do so or wants to postpone the meeting called by the Secretary treating it has without delegation of power, that is also possible. In case, the meeting is held and decisions are taken, I do not think such meeting can be called as illegal unless and until some member drags the society to the cooperative court and place an evidence that many persons have not received the meeting notice,agenda etc. Any action done in good faith by any office bearers will not amount to illegal activity.
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QW/RP/152/21.08.2015
If on property card someones name comes as pattedar, can he become d landlord of d said property?
and in same property 7/12 utara shows different names as landlord do what is d current status refects of that property?
ANS BY CA. Ramesh Prabhu
Let us note 7/12 is the revenue record reflecting who is the owner of the property and the property card is issued in Muncipalty area where the revenue department has set up city survey offices to maintain the property records. Normally if the property card has the names of the owner, that becomes the latest entry of the Ownership evidence and is considered final as once property card enters name of the owner from the records submitted by the owner, the 7/12 extract entries are immaterial. In your case, it is entered as pattedar means tenancy rights holder
Therefore there is a separate owner whose name is in 7/12 extract. Thus, the owner need to apply to City survey dept and get his name incorporated in the property card. Pattedar is not the owner. He is only a tenant of the land I. E leasee on long lease of the land
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QW/RP/153/21.08.2015
I am staying in CHS at 16 th rd Khar. A member staying at 3rd floor has pulled down wall in his flat as interior changes. The pillars r not touched. But exactly above that wall is our building water tank. Our secretary informed BMC about this & requested them to check the same. BMC has not taken any action. My question is What action/ Procedure our CHS should take/ follow ?? Can a member make complaint ?
ANS BY CA. Ramesh Prabhu
Any repairs and renovation within the flat is considered two types as per MCGM act, 1881. I. E (1) tenable repairs such as painting, changing the tiles, repairing the pipes, plastering etc which does not require permission from the local authority.
(2) Non tenable repairs such as fixing the new window, covering the balcony, removing partition wall which does not amount to structural changes but certainly needs permission of local authority
Any structural changes will not be permitted by the BMC.
In the case, referred by you, removal of wall is a non tenable repairs which needs permission from BMC. These type of repairs becomes irregular repairs which can be regularised by taking the post facto permission on the complaints made by any member or society. They may have to pay the penalty also.
Therefore, many flat owners do carry on such no tenable repairs which can be regularised on complaint received by BMC.
Now, the society or any members can complaint to BMC about carrying out such non tenable repairs. BMC shall issue show cause notice and advise them to regularise or being the same to original position.
As you said, many times BMC does not take any action. In such cases, the complaint can file an RTI demanding an action taken report and if not satisfied file an appeal under RTI.
The BMC will certainly issue show cause notice and if you regerously follow up by filling reminders an multiple RTI either the complaint will be forced to regularise by paying penalty or bring back the structure to original state or file a case by the BMC against the wrong doer in the BMC magistrate court to pay the fine for wrong doing and directing him to regularise or bring to original position
Therefore, Unless and until there is continuous follow is not done, against such illegal or irregular non tenable repairs , MCGM does not initiate any actions.
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QW/RP/155/21.08.2015
The current bylaws is very vague about subletting of flat. Though it is mentioned that society NOC is not required however under occupation of flat it has clearly mention who has the right to occupy the flat. Can anyone through some light on this. Moreover in our society we have a process of introduction. Can we still go ahead with the same? Also can we pass specific resolution and define some process in our GB. Last GB we have already done that to avoid nuisance mostly by bachelors. We have not stopped bachelors accommodation by we have made some processes. Appreciate a revert.
ANS BY CA. Ramesh Prabhu
In a cooperative Housing society members and associate members are allowed to occupy the flat. However earlier to sell /transfer such occupy rights, society permission was required. Due to unethical demand and harassment made by the managing committee, since 2001 in the model bye-laws NOC which was earlier required to sell /transfer of the shares or flat was done away with.
When the registrar office started getting many conplaints against the society for not permitting letting out of flat on filmsy ground like flat cannot be given to bachelor or spinster or Non vegetarian eyc.
Therefore in the new Bye-law 2015, has included the clause thar any member who wants to give flat on leave and license basis need not obtain the NOC from the society.
In fact the member should submit the following to the society
(1) Application to the society intimating the flats given on rent or care taker books
(2) Duly stamp duty paid and registered agreements
(3) information of tenant submitted to police station.
Thereafter pay regular non occupancy charges of 10% of the service charges.
NO NOC IS REQUIRED. in case you have developed the system or guidelines to consider the LL cases and resolutions are passed, each tenant has go through that process till the same is not set aside by the court.
My advice is file to set aside any illegal resolutions by the aggrieved members before the coop court.
There is no bar in continuing your present system
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QW/RP/156/21.08.2015
In our society we have passed resolution for rent flats as follows,
Noc to be obtained before lease agreement done.
Noc issuance fees 100 paid by cheque by the owner. Validity of noc 1 month.
One time shifting fees of Rs. 2000. Towards use of infrastructure etc. Per agreement period. To be paid by cheque by owner.
Rs.5000 zero interest refundable deposit to be taken for the agreement period via cheque from owner.
Onus of renewing the agreement is on owner and if he forsee the dates all legal charges or repercussions towards such act of negligence would be charged to the owner. A penalty for non compliance towards rent agreement is payable by owner for Rs. 2000.
Pls share your views:
ANS BY CA. Ramesh Prabhu
after adopting bye-laws making any guideline against bye law would not be binding on Member who does not want to follow the guidelines.
In case, you want to make the above guidelines as a part of your bye-laws, the Deputy registrar shall not approve any amendments against the approved model bye-laws.
In case, you want to follow the set guidelines as stated by you, it is advisable and recommended to take an undertaking to follow the above guidelines whenever the said member decide to let out.
This may give some relief and power to insist the self undertaking given and if any resolutions are passed against the bye-laws, the aggrieved member need to move before the coop court to get the same either stayed or set aside.
However to respect the law of the land and to facilitate easy letting out by the members, insisting beyond what is required by the new model bye law is not at all a good practice for having a mutually cooperative members hsg society.
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QW/RP/157/21.08.2015
Our society is consiting of 2 complete seperate wing in one compound under one common CHS Registration no. Can we split these 2 wings into 2 seperate CHS? We have 2 seperate main gate also. In one wing there are 13 flats. In another wing there are 23 flats. What is the procedure?
ANS BY CA. Ramesh Prabhu
Under section 17 of MCS Act, by taking the General body meeting by majority resolution of 2/3rd members present, a proposal to divide into society can be done. In case a lesser members want division but majority members do not cooperate, an application by minority members file application for division u/s 18 of MCS act 1960 before the Deputy registrar.
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Ca.Q14:
Sir, If AGM unanimously passes enclosed resolution any legal implication pl explain we have agm on23 rd Aug i.e. tomorrow.
"Resolved that 2BHK shall contribute Rs.1.25L and 1BHK shall contribute Rs.1L towards building repair/amenity fund. Further to reduce the burden, the said may be paid by the members before selling/transferring the flat"
ANS BY CA. Ramesh Prabhu
As per the bye-laws and GR issued by Govt, transfee fees as decided by General meeting not exceeding Rs. 25000 can be collected as transfer premium. Further no donation or contribution under any other head or nomiculture can be collected in excess of Rs.25000 at the time of sale of flat Any one reading the resolution can make out that it is payable at the time of sale of flat as building amenity fund. If any member challenges this resolutions than only it may be set aside. Since no one is immediately affected, the same may not be challenged and at the time of selling, since amount is shared equally by both the parties and they want to complete the transactions, it will be paid under pressure..
Any General body resolution passed against the provisions of Act;Rules, circulars, notification and bye-laws will be binding on members till it is stayed or set aside by the cooperative court. So according to me morally, ethically and legally it is not advisable to pass such resolutions but if proposed and majority passes, if abided by members it gets implemented but if member refuses to pay legally you will not be able to recover it.
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Ca.Q15:
Can you also elaborate on the requirements for condominiums please ? Thanks in advance.
ANS BY CA. Ramesh Prabhu
Condominium is a form of legal entity created to manage the day to day affairs of building complex by registering a declaration under Maharashtra Apartment Ownership Act,1970 and Rules,1971.
It is an extension of co-ownership and therefore even apartment owner shall get undivided rights in the land and building as per the deed of declaration registered by the builder even before selling a single flat. The dispute is resolved through civil court and no authority like a to registrar of cooperative societies to hear and resolve the disputes among the apartment owners.
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Views of M S Mangle on collecting more Rs.25000/-as transfer fees by passing resolution against bye laws and Govt notifications.
As housing cooperative spciety is a legal body all transactions should be legal and as per the provisions of Act,rules,byelaws and govt notifications. If challenged it should not go against society..As it is not commercial organisation there should not be commercial view.
Comments on this by Advocate Nitin Nikam:
Sir, merely because Hsg Society is legal and registered one, its functioning cannot b said to b legal all the time. If any wrong decision, provisions are there under the MCS Act n byel laws , the socirties should take corrective action by making subsequent corrective resolutions.
Views of CA. RAMESH PRABHU
I fully agree with both the above views. A cooperative Housing society is an organisation formed by all owners of the flat who are members of the society to elect democratically the managing committee who shall function and take decisions to serve all the members betterment and not to extract additional amount under one or other pretext for the benefit of other members. The society serves it's own owner members by collecting contribution to give service.
So any resolution against Act, Rules and bye laws create a bitterness among members which should be avoided under all circumstances. The bye-laws and GR is issued by Govt Considering the arm twisting approach of few societies. This type of resolutions should not be passed which divides members
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QW/RP/158/23.08.2015
Last AGM in our society passed a unanimous resolution to penalize members for keeping plants in the balcony. Structural audit suggested that plants in balconies can adversely affect structural balance of building in the long run apart from spoiling the walls. Is such financial penalty on those who have still kept plants legal?
ANS BY CA. Ramesh Prabhu
As per the new model bye law society is authorised to levy penalty upto Rs.5000/- per year for any act done by the members against the interest of the society; against the Act, rules, bye laws and resolutions passed by the society either in General meeting or Managing committee.
It is an accepted fact and in the opinion of expert I. E. Structural auditor the plants should not be kept in the balcony and society has passed the resolution advising members not to do so. In spite of this, if few members are keeping the plant, they should be issued show cause notice for removing on certain date otherwise penalty of Rs.1000 pee week or day not exceeding Rs.5000 be charged in this financial year and why society should not get the labour and remove it on so and so date at your cost and expense etc. Put if required on the notice board etc You may warn that all damages to the building shall be recovered from him/her and only such member shall be held responsible for any mishap etc. After following above procedure you may levy penalty
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QW/RP/159/23.08.2015
Which type of decisions can be finalised at M.C. meeting level in a CHS ? And for which type of decisions it is compulsory for M. C. to take General Body permission in a CHS ?
ANS BY CA. Ramesh Prabhu
As per the model Bye-law, the managing committee members should meet at least once to discuss, decide and take necessary steps to carry on day to day management of the CHS. It includes, receiving various application from members such as NOC for mortgage of flat, to stop leakage , allotment of parking, apply for Membership and communicate the decision. Provide and make arrangements for supply of common services like lift, water supply, drainage, common lights, security. Administration like preparing bills, accounts, Getting audit done, repairing upto Rs.100000 at a time and provide all services to the members and employee staff, decide their salary and so on General body takes the policy decisions like fixing the various charges, approve budgeted expenses, major repairs above 100000, appointment of auditors, amending the bye-laws? Redevelopment decisions, declaring election results and giving the overall guidance as a policy to be implemented by the Managing committee
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QW/RP/160/23.08.2015
SUB. REDEVLOPMENT
U R KINDLY REQUESTED TO LET ME KNOW THAT OUT OF 14 MEMBERS SOCIETY 2 R DESENDING ( NOT AGREE FOR THE REDEVLOPMENT) DEVELOPERS IS READY TO DO LEGAL ACTIONS AGAINST THEM. NOW SOCIETY READY TO SIGN MOU AND P.O.A. IS THIS DOCUMENTS R SUFFICIENT FOR LEGAL ACTION? .
PLEASE ADVICE
THANKS.
ANS BY CA. Ramesh Prabhu
In order to take action against the dissenting members for redevelopment, societies by majority of 75% members should appoint a developer, get the NOC from registrar as per the directions issued by Govt for redevelopment u/s 79A of MCS act, execute and register development agreement, give POA and get IOD and issue eviction notice to every one including the dissenting one. If such dissenting member does not vacate, a case for appointment of court receiver can be done before the Hon'ble High court.
Unless and until you get IOD and balance of incontivence is in majority of members, you may not get the required relief. So go ahead and execute DANCE, POA and insist the developer to obtain IOD to file eviction case against non cooperating members.
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QW/RP/161/23.08.2015
Sir .. Is fresh nomination required after the members are shifted in new building permanently in case of redevelopment ??
ANS BY CA. Ramesh Prabhu
Member nominates as per bye law to transfer his right, title and interest in the society along with shares held by him I favour of nominee to bring legal heirs on record. So even if new nomination is not done after the redevelopment, the old nomination shall be binding and society shall obliged to act on such nomination form.
However, practically in order to have better clarity it is advisable to file new nominations with new flat number and new area so that in future when the society is required to take action on nomination, the prevailing committee should not take a stand that old flat and area are not in existence so nominations are not valid. So my advice would be to file new nomination form after the redevelopment or immediately after executing permanent alternative accommodation agreement is executed whichever is earlier.
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QW/RP/162/23.08.2015
Our society had transferred the flat in the name of members son on the basis of nomination & giftdeed though the giftdeed was not registered nor stamp duty was paid on same.
But after some years someone objected the transfer.
Legal opinion was souught the advocate said the transfer was wrong on his opinion the society transfered the flat on original members name.
Is this correct? whats your comment &opinion?
ANS BY CA. Ramesh Prabhu
If society has done some actions /transfers which could not been done but due to ignorance can be rectified by taking legal opinion in due course when such mistakes are noticed or brought to the knowledge by the affected persons.
Therefore whatever decision you have taken is proper and is also legal. If there is an error committed for whatever reasons, it need to rectified on getting such knowledge which you have done so.
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QW/RP/163/23.08.2015
Our society has already completed the procedure of model bye laws of society after 97th ammendment in the year 2012/13&submitted to Thane Dy registrar but till today there is no reply from them.& department is asking us that the complete praposal had been lossed.&saying that to call special GM &make a new praposal for adopting bye laws pl guide us what can we do?
ANS BY CA. Ramesh Prabhu
Pls follow what has been said by registrar. You have to call SGM with 14 clear notice and get the resolution to adopt new bye laws by more than 2/3rd majority and submit the proposal of adopting new bye-laws within 2 months of holding SGM along with notice, old original bye-laws, new two copies of bye-laws duly signed by office bearers.
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QW/RP/164/24.08.2015
We had election next week. Nobody wants to work for the society.
If nominations is not receive by members then what would be action taken by appointed officers .
What should as chairman I have to do?
ANS BY CA. Ramesh Prabhu
If till the last date fixed for filing nomination for the committee members are not received, the election officer in the meeting called to declare the results of the election, once again advice and request members to come forward to be part of committee. If minimum members required to form the quorum of the committee meeting do not come forward, the election officer shall report the fact of not able to form the committee to the Deputy registrar who shall appoint an authorised officer to manage the day to day affairs for a period of 6 months and to arrange for fresh election. This will continue till proper committee is not constituted by the members.
I fail to understand why members do not come forward to serve themselves. It is collective body of all flat owners and the elected members not only able to get served them better and also other persons staying on the complex. The committee members should be able to take policy decisions by spending 30 minutes to one hour in a month and appoint a trained manager whom reasonable salary can be paid and fix the responsibility and make him accountable. As per new bye-laws and amended MCS act, 1960 the manager is a functional director of the society and many responsibility of routine work can be assigned to such manager. Issue with the members of the society and committee members that they expect the committee members to spend their time, energy and carry out day to day work of looking after water supply, security gauradrs, sweeper, drainage, electricity issues, leakage, parking , billing, collection, attending complaints etc These routine work should be delegated to professional qualified and trained manager. The salary of manager will be shared by all members equally and you can get and demand quality services. The committee members and office bearers should think that it is the honorable post of committee members and not thankless and is a tension. My question is it serving ourself is a thankless job like taking care of myself, my family , my flat, surroundibgs nd then the complex in which my flat is situated. One need to change the mind set and accept the responsibility of committee members and enjoy the power of getting work executed for the benefit of all through paid and trained managers.
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QW/RP/165/24.08.2015
The administrator appointed by the registrar on his last day before handing the office to the newly elected committee transfered a tenant's share certificate to his son's name on the basis of gift deed without examining the authenticity of the deed. No resolution of the said transfer of membership is passed in any general body meeting till date. There is no record in the I- form , J- form register of d same. Later on after one year of the new committee's term they co- opted the said person in the committee and made him the secretary. My question is just by transfering the share certificate can the person become a member ? If not what action should be taken ?
ANS BY CA. Ramesh Prabhu
Endorsement on share certificate regarding the admission of member by transfering the share certificate by an administrator or the office bearers is a conclusive proof Passing a resolution in the minutes book or recording in yI Form, J form or share transger register by the administrator or the committee is the accountability of committee or administrator. The admission or transfer of membership is within the power of administrator or the committee, it does not require approval of General body. Many societies do record the transfers done in annual report, inform and introduce new members in General body and get it ratified. This system of approval is not compulsory as per the MCS act, Rules and bye-laws. The present committee must have now recorded on all statutory records, if not, they can on your bringing the facts to the notice of committee, even today they can do it and update the records. Pending updating of records by the responsible person does not make the transfer illegal or void. Since he is the member of the society based on share certificate Endorsement, he can context election and as per old bye laws before 14.2.2013, he could be cooped in the committee and become secretary also.
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QW/RP/167/24.08.2015
To adopt the new bye laws is it mandatory for 2/3rd of the total members of the society to attend the meeting or just 2/3rs of the members present in the SGM voting in favour is sufficient to adopt and pass resolution.
ANS BY CA. Ramesh Prabhu
to adopt the new bye-laws, the notice of 14 clear days should be given. If there is a quorum of members at the scheduled time, the agenda for adoption of new bye laws can be taken and 2/3 of members present can decide by giving in favour of such adoption If there is no quorum as per the agenda notes, meeting may be adjourned for half an hour and the members present in such meeting whether there is a quorum or not the agenda items can be decided. Thus, it is 2/3rd of the members present who is required to pass a resolution to adopt new bye-laws.
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Ca.Q6:
Elaborate provisions of Associate member and their election to MC, and what to do with those associate members on MC, who are not eligible to become even associate member under new Bye-law.
ANS BY CA. Ramesh Prabhu
As per new bye laws only joint owners of the property/flat can become the associate member. However, if there are some associate members whose name is incorporated as per old bye law by accepting Rs.100/- as entrance fees as a joint share holder in the share certificate who is not owner of the property, till such associate member name is deleted from the share certificate after adoption of new Bye-law, they continue to be associate member. Such associate member is entitled to attend AGM, vote and contest election by taking NOC from first member.
In order to get those associate members who are not joint owner of the property and want to get them disqualified from MC, you need to do the following:
(1) New byes has to be adopted and approved by registrar
(2) MC member name should not be in the share certificate as joint holders
(3) MC need to issue member ceasation letter as per Bye-law no.55 of new model Bye-law has to issued.
After all the above, if MC member does not resign, the aggrieved member should file an application before deputy registrar to order removal of such associate members who are not joint owners of property.
In case, associate member attend the AGM, it will be on behalf of member only and therefore, associate member attendance will in the AGM will be treated as the attendenace of member on AGM and will b treated as Active member. Plz note that associate member, even if he is a joint owner as a member he does not have an independent status.
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QW/RP/168/28.08.2015
Our society has formed a new managing committee after resignation of few members by selection in September 2014.without informing Dy. Registrar.Also Co-opted few members through SGM.What is the status of the managing committee?
ANS BY CA. Ramesh Prabhu
As per the MCS act,1960 amendment done effective from 14.2.2013, all election to the committee, fiilibg of casual vacancy and election of office bearers has to be done by election officer has to be done by the election officer appointed by state coop election authority. There is no provision for cooption. By election by appointing the election officer has to be done by the registrar. The present committee elected in sept 2014 will be only caretaker committee who need to inform the registrar and get the proper election done
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QW/RP/169/28.08.2015
Sanction of FSI by TMC as per DCRules for a plot of 1000sq yds being 1:1.5, is a member of a copartnership tenant Society has equal right to FSI divided by no of membe rs or by no of flats?My view is that each member has one vote irrespective of the area or no of flats in his possession. Can a member claim equal area for each member claiming total FSI divided by next of members on Redevelopment though the area in his possession by way of transfer f on earlier member is less?Please quote any rules/bye laws on the subject in MCS Act.
ANS BY CA. Ramesh Prabhu
Every member when paid for construction of flat has contributed as per the area booked by him and when flat is purchased paid as per area of the flat purchased. Therefore any extra benefit on redevelopment also need to be shared as per the area of the flat.
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QW/RP/170/29.08.2015
ANS BY CA. Ramesh Prabhu
Ans to Mr.Sachin Dixit query by CA. RAMESH PRABHU.
The Municipal Corporation of Greater Mumbai (MCGM) or any Local Authority passes the plan , permit use of FSI/TDR for the purpose of construction on plot of land as per the applicable Development control rules. The MCGM is not concerned with the provisions of MOFA or the terms of agreement. As per MOFA model agreement in Form No.V, the builder while executing the individual flat agreement is supposed to give discreption of land area, allowed FSI and used FSI and balance FSI to be used in future to construct building in phases. Such details are rarely mentioned in the agreement. Instead it is mentioned that all future FSI/TDR benefits vests with the builder and the flat owners give the unconditional consent to use future FSI/TDR by the builder. Therefore, to curb this practice, MCGM has come out with a notification/ order in 2008 advising the building proposal department not to permit any use of TDR on the societies building constructed with one FSI, without taking permission in writing from the registered cooperative Housing societies on that plot of land. Plz email message your email address , we shall send to the person requesting such order of MCGM. Thus, the builder if the building is constructed prior to 1995 under DCR 1967 or prior to enact of DCR 1991 where TDR is permitted, the builder without consent of society can use TDR or additional FSI which was originally not permitted under old DCR but permitted under new DCR, 1991. Of course, if any society is aggrieved, immediately they have to file a case under MOFA for violation of section 7 and violation of clauses in the model agreement form no.V before the civil court and restrain the developer using such additional FSI/TDR to which such societies are entitled.
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QW/RP/171/30.08.2015
If any CHS building has been developed under the SRA , then is there is any lock in period for selling the flats etc may be it belongs to old member or belongs to new property buyers.
ANS BY CA. Ramesh Prabhu
In case a property is developed under SRA, all free flats given to slum dwellers as Rehab part flats cannot be sold for period of 10 yrs from the date of allotment. In case of flats of sale buildings, there is no restrictions on sale. Any time free sale flats can be sold for any number of times
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QW/RP/172/30.08.2015
There are many defaulters in our society who pays late maintenence charges. Till now we are charging 21% per annum simple interest penalty charges. But it becomes difficult and time consuming every month for calculation. So the committee has decided to pass a resolution in the coming AGM, charging interest flat rs 100 monthly on delay payments or 21% p.a whichever is higher. can this be passed with majority? Even after passing resolution can any defaulters make complaints against the society to deputy registrars?
ANS BY CA. Ramesh Prabhu
Bye laws of CHS is very clear that no interest or fine or penalty under whatever name on defaulted dues cannot exceed more than 21% p.a. simple interest. Any violation on this the member can lodge a complaint against the society before the Deputy registrar.
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QW/RP/173/30.08.2015
This has come to understand that ,
while clearing “ B1 Property “ for re development of a Society , the collector authority are likely to levy the Tax for,
# if a member (original) in a society purchased a flat from builder in the year 1972 and registered the documents
# In 1986 the same member sold out the above flat to “ X “ and Mr. X has registered the documents
# Again in 1995 Mr. “ X “sold out the above flat to “ Y “ and Mr. Y has registered the documents
# and now the member ( Z ) who is staying in that flat has purchased the same flat in 2002 after registering the documents as usual.
In such case who will be liable to pay the New Tax etc. / what is the remedy of such cases.
ANS BY CA. Ramesh Prabhu
When the land was originally alloted to the society by the collector, the names of First Members approved by collector is mentioned in the lease deed. One of the conditions of lease agreement is that every transfer shall be approved by collector. As per notification dated 2007, there was restriction of family income to RS. 20000/- per month and 20% was required to be alloted to SC/ST. Now in 2015 both these conditions are relaxed. The applicable transfer fees with penalties has to be paid by the latest owner as he has purchased it with all liability. Further any appreciation in the value of property is not given to the old member or seller, so expecting that the old member has to clear such liabilities on account of collector transfer fees will not be proper
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QW/RP/174/30.08.2015
Is there any rule for seperate parking charges for members & tenants. Pls tell me the bye law.
ANS BY CA. Ramesh Prabhu
Legally speaking the parking facilities are amenities attached to the flat As per DC Rules; depending on size of flats number of parking has to be provided. When the tenant is getting the flat on rent, the parking facilities also enjoyed by him as an amenities attache d the flat which was originally alloted to the members. For tenanted flats other than 10% of maintenance charges as non occupancy charges can be levied no other additional parking charges or under other name any additional amount can be charged. However as a arm twisting tactics few societies charge double parking charges to tenanted flats by passing a General body resolution and tenants or owners pay such additional parking charges to get continuity in parking facilities. This type of resolutions are against the bye laws and Govt notifications
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QW/RP/175/30.08.2015
our bldg plot was alloted to individual person and allotee has developed the plot after taking NOC from Mhada n BMC authority with one partner after completion of legal documents in the year 2009 but till today no OC is obtained, no regular ( residential ) water connection has been provided only commercial water connection is provided presently.society has not been formed.There are residential 8 flats and 1 commercial purpose flat in the bldg & ground floor area front facing is provided to BMC for dispensary as per terms and conditions laid down by BMC at the time of iod /cc
Sir
Kindly advice ,what to do for registration of society and getting oc and residential water connection?
Who is responsible to undertake and complete all necessary documents,amenities ( water connection) and formation of society
ANS BY CA. Ramesh Prabhu
Society Formation responsibility is on the developer. You can file an application for registration of society at the Mhada, Deputy registrar and get the societies registered under non cooperation from builder.
Further to get OC, water connection etc, you have to file a case against the developer before the consumer court with demand for compensation.
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QW/RP/176/30.08.2015
I paused one question on 28th regarding registration of co op Hsg Society by gift deed of members. Please can you help w ith your experiences n under which rule or notification etc.
Regards
ANS BY CA. Ramesh Prabhu
Only flat owners or co-owners of flat/ shop can become the Member of cooperative Housing society. One can acquire the property under Transfer of property Act 1882 by way of gift, sale, transfer, purchase or release deed. Therefore even by gifting the right title and interest of the flat in favour of donee, the donee can become the Member of the CHS.
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QW/RP/177/31.08.2015
Society has not been formed by the builder. First agreement with builder not registered now these owners want to get society registration. Minimum required numbers have no registered agreements therefore to avoid stamp duty n registration experience they want to gift 50 % to family member and get the gift deed registered as stamp duty of Rs.200/- is payable on gift deed effective from 24.4.2015 if gifted to spouse, children and grandchildren.After that they want to give application for society registration as they have registered gift deed. Is this possible ?
By Adv. Kirit Purohit
Addition information by Adv. Purohit.
My client has purchased flat in Virar. Agreement with the builder is not registered no stamp duty paid. Only notarised. Now I came to know that in this building 50 flats have been sold by notarised agreement. Total flats in building are 50 all sold. Now all these owners having no registration of agreement want to form co operative Hsg Society. Can you please advise how to get registration of Hsg Society. Builder will not help. Owners have to register in non co operation of builder'.
Views by Advocate H.M.sutar:
A lawyer should never advise client tp commit breach law. Non payment of stamp duty is an offense . Non registration of a document may result into loss of evidentiary value but may not be an offence. MOFA gives some right even though an agreement is not registered.
All the donees in a building may join registration of a CHS. However the previous documents on which SD is not paid may attract action under Maharashtra Stamp Act.
Again even though a soc is registered and a donee may become member of society, the share certificate in itself does not give marketable title. A purxhaser will surely ask for duly stamp duty paid and registered documents of title.
In effect becoming member of a CHS by availing stamp duty concession will not serve purpose.
Views by CA Shilpa Shinagare.
In order to register a cooperative societies more than 60% flats should be sold by the builder. In your case 50% are sold by notarised agreement and as per section 4A of the MOFA,1963, unregistered agreements can be treated as evidence to grant the relief to the flat purchaser to protect his rights.
The registrar considers resale agreements which are registered to Admit such new purchasers as a member of the society. Therefore even gift deed properly stamped with Ts.200/- which is proper and duly registered will be taken as proper evidence to register the society and meet minimum numbers to register the society.
Comments by CA. RAMESH PRABHU.
When an issue is placed before a consultant to get the solution, the consultant should give all legal options and planning within the purview of the law.
If the execution of gift deed by the seller to relative by paying Rs.200/- as stamp duty and is able to get registered, it is legal and no reason to think that the advocate is giving any wrong or illegal option.
It is true that; if the agreement is executed after 10.12.1985, the stamp duty applicable on the date of execution along with penalty at the rate of 2%per month total penalty not exceeding 400% can be levied as and when collector of stamps comes to know such deficit payment of stamp duty.
Further at the time of execution of conveyance such deficit with penalty will be recovered.
Only caution to such evader of stamp duty is to complete required formalities for registration of society by gift deed or by giving any substantial evidence of having sold more than 60% of flats and whenever stamp duty amnesty scheme is announced to take the benefit and regularise such documents
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Qw178/RSP/31.8.2015
Ajay Khare from Dombivali asking where printed Marathi Byelaws are available for sale or is it available on website.
ANS BY CA. Ramesh Prabhu
Maharashtra societies Welfare association has printed and released Coop hsg societies model bye-laws released on 30th Aug 2015 on the occasion of opening of 5th branch at Pune.
Marathi bye laws are available at all branches of MSWA at the price of Rs.70/-per copy.
Pl contact on 42551414/32 to order for marathi or English model bye-laws of society. It also will be send on making phone calls at home delivery by charging additional home delivery charges of Rs.200/- in addition to cost of bye-laws within mumbai/Thane and pune district
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Qw153/21.08.2015 :
I am staying in CHS at 16 th rd Khar. A member staying at 3rd floor has pulled down wall in his flat as interior changes. The pillars r not touched. But exactly above that wall is our building water tank. Our secretary informed BMC about this & requested them to check the same. BMC has not taken any action. My question is. What action/ Procedure our CHS should take/ follow ?? Can a member make complaint ?
ANS BY CA. Ramesh Prabhu
Any repairs and renovation within the flat is considered two types as per MCGM act, 1881. I. E (1) tenable repairs such as painting, changing the tiles, repairing the pipes, plastering etc which does not require permission from the local authority.
(2) Non tenable repairs such as fixing the new window, covering the balcony, removing partition wall which does not amount to structural changes but certainly needs permission of local authority
Any structural changes will not be permitted by the BMC.
In the case, referred by you, removal of wall is a non tenable repairs which needs permission from BMC. These type of repairs becomes irregular repairs which can be regularised by taking the post facto permission on the complaints made by any member or society. They may have to pay the penalty also.
Therefore, many flat owners do carry on such no tenable repairs which can be regularised on complaint received by BMC.
Now, the society or any members can complaint to BMC about carrying out such non tenable repairs. BMC shall issue show cause notice and advise them to regularise or being the same to original position.
As you said, many times BMC does not take any action. In such cases, the complaint can file an RTI demanding an action taken report and if not satisfied file an appeal under RTI.
The BMC will certainly issue show cause notice and if you regerously follow up by filling reminders an multiple RTI either the complaint will be forced to regularise by paying penalty or bring back the structure to original state or file a case by the BMC against the wrong doer in the BMC magistrate court to pay the fine for wrong doing and directing him to regularise or bring to original position
Therefore, Unless and until there is continuous follow is not done, against such illegal or irregular non tenable repairs , MCGM does not initiate any actions.
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Legal news Update/SS-3/01.09.2015
Perfectual Lease Deed and conveyance Deed:
The immovable property can be transferred from one person to another as per the provisions of transfer of property Act, 1882. There are two types of transfer of property is possible (1) Free hold rights transfer (2) Leasehold rights.
When property is sold on freehold, the buyer gets all right, title and interest in the property.
Under leasehold rights it may be for a particular period say 30 years or 60 years or 99 years and other one is perfectual lease.
Lease on the expiry of a particular period need be renewed or handed over the property back to the owner.
Perpetual lease means the lease deed for 999 yrs or for unlimited perod executed and registered. Since it is a lease the ownership rights on the land will continue to be with the owner. We need to check the terms and conditions of such perfectual lease deed whether redevelopment or use of TDR or additional FSI can be done without taking NOC from the owner need to checked. Ultimately it is the terms and conditions of lease deed which will prevail and not the headings or the period of lease. Only advantage is that the owner cannot ask the leasee to vacate due to expiry of lease. In case of lease on limited period or perpetual lease for any other breaches or violations of terms of lease deed, a suit in the appropriate court to terminate and evict the leasees may be initiated. However, it is practically difficult to evict or terminate such perfectual lease deeds.
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Qw180/RSP/02.09.2015
Pl anyone advise me whether landlord can issue rent receipt in the name of two persons ( who r friends) ? If yes ? What are the other effects ?
ANS BY CA. Ramesh Prabhu
According to my opinion there can be one tenant for one room and rent receipt has to be issued in the name of one person as per Mah rent control act 1999.
In case rent receipts are issued in two names, the first person in whose name rent receipt is issued will b considered to be legal tenant and second name may be considered as occupying the premises with the first with the consent of owner.
It is a unique case.
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Qw:180/RSP/06.09.2015
Question sir pl clarify the matter , if there was a collection of sinking fund from members in the period of fitrst&earlier committee but there was no fixed deposit stand in current asset,Now society has stopped the collection in between days more than 10 years gone .May be spended in routine expenditure no correspondence records available .pl guide .Regards Deshpande Thane (w)
Views of CA. Shilpa Shinagare :
Dear Mr.Deshpande sinking fund collection is required under bye laws at per the min prescribed rates .The spirit of the provision to build the fund for future major repairs and reconstruction work.Now if society has collected and if the same is not parked in the long term investments in the form if FDs or recurring deposits then the auditor should have qualified the reports in previous years assuming previous years audits are completed and on record. Negligence of the auditor in reporting the breaches of bye law is a matter of question here .Before the amendments and as per the old bye law for utilising sinking fund Registrar permission was needed.so if society has collected and utilised it for routine expenses then for the period prior to 14.2.13 I.e wen new Act came into place, the same is a default on the part of the society .As per model bye laws however sinking fund can be utilised with general body permission nd registrar permission is not required. So in my opinion if you are the auditor for the year 14-15 then kindly bring this issue to the notice of the management and in turn to the members since non collection is more serious than collection and utilisation for routine expenses. I think Prabhu sir to support the views and guide on how to proceed further I mean whether complaint needs to filed with registrar for utilising it for normal expenses in prev years and for non collection in previous and current audit year..Prabhu sir please guide further.
Clarification by CA . RAMESH PRABHU
As per bye law No.13 (a) of model bye-laws since 1984 sinking Fund has to be collected @0.25% of cost of construction per annum.
Once collected to be deposited in the long term Fixes deposit on cumulative interest basis till the same has to be utilised as per Bye-law.
For utilisation of sinking Fund upto the introduction of amended bye-laws in 2009, permission from registrar was required to utilise it.
So if new bye laws of 2009 or later version is adopted, the society can use the flsinking fund for major repairs by passing resolution in general body meeting.
In the situation cited by you: there are many lapses like SF not collected, if collected, not separately deposited and used for routine society expenses. There is violation of bye- laws by Managing committee.
The lapse on auditor may be not reporting the breaches of bye-laws. It cannot be called as a serious lapse on the auditor nor any action can be taken against the auditor.
Now recommended action:
Having noticed the lapse, the committee should start collecting the funds effective from the date of AGM/SGM.
Pass a resolution in the General body meeting approving such lapse of earlier years and to take necessary rectification thereafter.
Inform the registrar with a copy of resolution to condoning such lapse as per the decision of General body.
In such case, registrar may not take any punitive action against society. If initiated by registrar, the General body resolution condoning such lapse can be presented to registrar who certainly will accept us ch resolution and drop the punitive action against the society
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Qw181/RSP/ 06.09.2015
Question by Rajesh Nambiar, Dear Sir Can existing members of a CHS discuss, adopt and pass a resolution to bill and collect extra monthly outgoings such as "Garden maintenance" from new members only under undertaking and affidavit from new members during admission.
Pass resolution in AGM.
Views of CA. Shilpa Shinagare :
No all common maintenance to be equally divided amongst all the members.
Ans by CA Ramesh Prabhu
The societies cannot pass a resolution discriminating between different members of society based on their date of admission or type of use like shop or flat etc.
Any charges levied on the members has to be same to all and cannot discriminate.
If your society has passed such resolution and you are agreieved of of such resolution, you may complaint to deputy registrar about violation or breaches of bye laws.
Or file a case before cooperative court to get such resolution set aside.
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Qw182/ RSP /06.9.2015
We want a clarification on subletting and non occupancy charges.
Under the earlier Byelaws bylaws 43 (1) and 43 (2) dealt with subletting of flats. 43 (2) (c) dealt with non occupancy charges. In the new model byelaws (2014) subletting is covered under 43 (a) and (b). Old 43 (2) has been completely removed including nonoccupancy charges. But 67 (a) (x) of new byelaws still mentions nonoccupancy charges at the rate fixed under byelaw 43 (b). It appears there is an error ir anomaly in dtafting. Can the society continue to leavy nonoccupancy charges as per the earlier byelaws and circular issued by the commisioner of cooperation GoM? Or is it that nonoccupancy charges are now not permitted under the new byelaws? Please guide us. Regards, Janardhanan - Awesome Heights CHS
ANS BY CA.RAMESH PRABHU
Whether old bye law or new bye law (2014) adopted, the non occupancy charges can be charged only upto 10% of services charges as non occupancy charges.
There are certain errors in numbering of bye-laws, those cannot be reasons for not implementing the Govt resolutions
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Qw183/RSP/ 07.09.2015
Registered society having 34 total members. In last year AGM. 5 member out of 7 of MC. Has resigned .Chairman also wish to resign but no one was willing to join MC, chairman acted as care taker. & appealed all member to come forward to do society work. After few month formed a committee but. Not. Notified in bank record. & old Office bearer used to sign cheques .is it valid pl. Guide
Ans by CA Ramesh Prabhu
After 14.2.2013, election to the managing committee or office bearers has be done by the duly appointed election officer of state cooperative election authority. U r society entire working and managing committee is illegal. Therefore as a immediate action, you are advised to inform the registrar by sending an application in E-2 and E'3 forms. The registrar shall depute a election officer to your society who shall call SGM with 15 days notice to get the election in SGM. If no one takes interest, registrar shall appoint an authorised officer to manage the affairs till proper election is done.
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Qw184/RSP/08.9.2015
Hello Sir. I am Girish Ganu. I m member of MSWA I. My query is in the managing comm. of the society where I am working there is a lady comm. member who never behaves properly with anybody, she always insults the secretary chairman and other comm, members. She is very rude, and always doubts about the committee and creates disturbance in the comm, functioning. When the comm, members oppose her she threatens to go to police and says that she will make any type of complaint against them as she is a lady and law will easily support her,. ( she is a widow in her mid forties) she even gives information about the committee to the members who are the committee members opponents. Even some ladies of the society have lodged a police complaint against her for her pathetic behaviour. The committee is fed up with her. Can the secretary remove her from the committee with the general body's permission in the forthcoming AGM on Sunday.
Secondly the father of a member wants to become associate member of the society. What procedure he has to follow? Please guide.
Ans by CA.RAMESH PRABHU
(1) Once any person gets elected as committee member, no one except registrar by following due process of law based on disqualification mentioned in the Act like defaulter, not attending 3 consecutive meetings without leave of absence etc.
In case, you want to get rid of her ,as per my understanding ,she does not fit into any disqualification to remove as committee member by registrar, all committee members except her resign and since committee becomes minority, you can request the registrar to hold the fresh election. This is the easiest and best option.
Regarding to become associate member as per the new model bye-laws, the person should be co-owner or joint owner of the property. In case father who wants to become associate member is not the co-owner it is advisable to execute a gift deed transferring part of the property in the name of father and then he should apply for associate membership
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Qw.185/RSP/08.9.2015
Can it be possible for a re-shuffel in office bearers post. We are in the last year of the tenure.Oct 2016 is the deadline for election.TY
Ans by CA.RAMESH PRABHU
Effective from 14.2.2013 Any election to committee members due to expiry of the term or due to casual vacancy like death / resignation, the seats has to be filled by conducting election through election officer appointed by SCEA (state coop election authority ).
Further election to office bearers also need to be done in the presence of election officer. Reshuffle of office bearers amounts to election of office bearers and therefore you have to approach the registrar to get election officer appointed and then reshuffle the office bearers.
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Qw164/RSP/24.08.15
We had election next week. Nobody wants to work for the society.
If nominations is not receive by members then what would be action taken by appointed officers .
What should as chairman I have to do?
Ans by CA. Ramesh Prabhu
If till the last date fixed for filing nomination for the committee members are not received, the election officer in the meeting called to declare the results of the election, once again advice and request members to come forward to be part of committee. If minimum members required to form the quorum of the committee meeting do not come forward, the election officer shall report the fact of not able to form the committee to the Deputy registrar who shall appoint an authorised officer to manage the day to day affairs for a period of 6 months and to arrange for fresh election. This will continue till proper committee is not constituted by the members.
I fail to understand why members do not come forward to serve themselves. It is collective body of all flat owners and the elected members not only able to get served them better and also other persons staying on the complex. The committee members should be able to take policy decisions by spending 30 minutes to one hour in a month and appoint a trained manager whom reasonable salary can be paid and fix the responsibility and make him accountable. As per new bye-laws and amended MCS act, 1960 the manager is a functional director of the society and many respinsibility of routine work can be assigned to such manager. Issue with the members of the society and committee members that they expect the committee members to spend their time, energy and carry out day to day work of looking after water supply, security gauradrs, sweeper, drainage, electricity issues, leakage, parking , billing, collection, attending complaints etc These routine work should be delegated to professional qualified and trained manager. The salary of manager will be shared by all members equally and you can get and demand quality services. The committee members and office bearers should think that it is the honorable post of committee members and not thankless and is a tension. My question is it serving ourself is a thankless job like taking care of myself, my family , my flat, surroundibgs nd then the complex in which my flat is situated. One need to change the mind set and accept the responsibility of committee members and enjoy the power of getting work executed for the benefit of all through paid and trained managers.
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Qw186/RSP/08.09.2015
Dear Mr. Prabhu, What happens to associate members who are not co-owners or joint owners and who were already admitted under the old byelaws? Can they continue as associate members or will they cease to be assiciate members on adoption of new byelaws?
K.P. Janardhanan
Ans by CA.RAMESH PRABHU
On adopting the new bye-laws, the associate member whose name is added as second in the share certificate will continue to associate member till proper procedure about cancellation of Associate member is not adopted as laid down in new model bye-laws No.55 regarding ceasation of membership.
In other words as per new Bye-law only joint owner can be associate member. Now there are few associate members by paying Rs. 100/- as associate member.
As per bye law No.55 various circumstances under which a person ceases to be Member of the society like:
(a) On resignation
(b) On transfer
(c ) on death
(d) on expulsion
(e) Adjudicated as insolvent
(f) person missing for 7 yrs
(g) on ceasation of right/title and interest of the member in the property of the Society etc.
Thus as per new bye-laws, if the member does not hold share in the property, he cease to be the Member and thus a notice to cease the membership can be issued and terminated
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw.188/RSP/14.09.2015
Mr. R. Prabhu if I have purchased the flat n the stamp duty registration process is over but the Secretary has not yet transferred the flat n the matter is with registrar under section 23(2). Can I attend the agm???
Ans by CA.RAMESH PRABHU :
No. You cannot attend AGM as you are still not the member of the society
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Qw 192/ RSP/15.09.2015
If the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA.RAMESH PRABHU
It is the duty of mgt committee to inform the due date of election to the registrar before six months. If they fail to do so, members can complain to registrar who shall issue so cause notice and if proved guilty, can order for disqualification to context election for 5 years.
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Qw 192/ RSP/15.09.2015
If the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA.RAMESH PRABHU
It is the duty of mgt committee to inform the due date of election to the registrar before six months. If they fail to do so, members can complain to registrar who shall issue so cause notice and if proved guilty, can order for disqualification to context election for 5 years.
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Qw193/Rsp/15.09.2015
Whether committee whose term has expired but not informi g registrar to conduct election, has the right to take any dicision regarding break any fix deposits sinking fund for society development?
Ans by CA Ramesh Prabhu
Such committees are called care taker committee and they can take up only day to day activities. No major decisions on policy matters cab be taken. However, if there is a requisition SGM (special General body meeting) is called and decisions are taken, such committees can implement the decisions. In your case, if major repairs has to be done as it is urgent and SGM has decided to use sinking fund, such committees can implement the decision for the betterment of all the members of the society
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Qw.193/15.09.2015
After 1-4-2010 property tax is based on the capital value of the property but will it be different for the property which are given on leave and license ? Will the owner of that property have to pay higher property tax?
Ans by CA Ramesh Prabhu
Once the capital value is adopted and implemented for property tax levy, the property tax on the property which is let out and self occupied are being valued in the same ready recknor value and the tax rate applicable considering the use of property whether residential, commercial, industrial, educational etc
So giving o rent does not affect the propety tax levied by mcgm
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Qw.194/15/09 16:56
As far as my knowledge, in most of the cases society undertakes the shade building but few member who do not have the leakage problem says why should we contribute as the problem is with top floor people ?
But what if in a society some people are adamant & do not contribute? (as the case with my society).
Ans by CA.RAMESH PRABHU
It is the responsibility of the society to repair terrace and take all actions to stop water leakage from the terrace including fixing of shade or sheet on the terrace. The society in General body meeting can pass a resolution by majority (50%+1) of members present to collect the contribution from every Maer as per area of the flat. The society should bill in monthly / quarterly bill and collect from members. If not paid can be recovered by filing recovery cases u/s 101 of MCS act including simple interest @21%p.a by passing such resolutions.
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Qw.195/RSP/15.09.2015
Question: Prabhu sir pl answer can associate member become office bearer? Is it compulsory to add his name in share certificate? As per amendment in law 10 shares are compulsory for each member..
Ans by CA.RAMESH PRABHU
If associate member name is appearing in the share certificate as 2nd or 3rd, he can vote in d absence of First Member and to contest election by taking NOC from first member in Form No.10A. On getting elected, associate member can become office
Bearers of the society.
Associate member name has to be in the share certificate.
On afopted new bye-laws, the balance share capital for 5 shares of Rs.250 to be collected and issue additional share certificate or issue new certificate for 10 shares by taking back the old share certificate of 5 shares.
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CA.Q9:
I am practicing CA ca Goregaon. One of the cooperative Housing society who had claimed standard deduction of Rs. 50000 80P has been disallowed by assessing officer and demand has been raised? What is the legal position.?
Ans by CA. RAMESH PRABHU :
If properly 80P (2)(a) to (c) is studied or analysed, it is applicable for cooperative societies having business income.
Section 80P (2)(c ) is reproduced as under for clarity:
(C) in the case of coop societies engaged in activities other than those specified in claise (a) or clause (b), so much of its profit and gains attributable to such activities as does not exceed (i) where such society is a consumers' coop society one hundred thousand rupees and
(ii) in any other case, fifty thousand rupees.
.........
So much of profits and gains attributable makes it very clear that coop society should be carrying onbusiness activity. Housing society is getting it's surplus exempted under concept of mutuality received from members. It does not carry on any business. Of course, if it gets rent for hoarding or telecommunication towers rent/ service charges, such income or interest income on FD eyc are incidental to proving service to its members or maintaining building but cannot be said to be profit or gain attributable to carring any business activity by such hsg societies.
Therefore, assessing officer is right in disallowing the deduction of Rs.50,000 for coop hsg societies under section 80P(2)(c).
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Qw.199/Rsp/15.09.2015
We are having a caretaker committee since April 2015, now the caretaker committee in reluctant to hold the AGM. What's the legal opinion?
It may be true that caretaker committee is illegal but what about the accounts?
ANS BY CA.Ramesh Prabhu :
Since amendment done to MCS Act,1960 effective from 24.2.2013, the election to each and every society has to be done by the election officer appointed by the State cooperative election Authority. Therefore, in the absence of election officer, you can not hold the election. The election in the absence of election officer has to be postponed to the date when election officer is available.
Since term of office of the committee is expired in April 2015, since than MC is a caretaker committee. However such caretaker committee need to comply with all provisions of law like holding AGM, finalise accounts. It is having all rights of regular duly elected committee except taking any policy decisions like redevelopment etc.
Such caretaker committee need to follow up with registrar and get elections done.
It will be failing it's duty if such committees do not hold AGM by 30th September and get accounts audited and approved in the AGM. All day to day expenses and decisions can taken by such committees and get implemented
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Qw200/RSP/15.09.2015
Counter question to qw199;
Thanks Sir. But here it is slightly different. Committee resigned but failed to send the proper documents to registrar. Hence the election is delayed n committee is playing with members
Ans by CA Ramesh Prabhu
So u may as a member complain to registrar and get authorised officer appointed or election officer appointed. Of you are able to prove their in active actions, get them disqualified for next 5 years from contesting elections. You have to take stand and get such committees thrown out. You cannot expect in such committees to take necessary steps, you aggrieved members do not complain and follow up with the registrar by using RTI or Right to Public service Act, 2015.
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Qw201/RSP/15.9.15
In respect of sale of one shop, we observed that due to earlier endorsements there is no space to endorsement the last transfer. Pl advise how do we resolve this issue?
The last sale is the fourth transfer.-BY Prayers Tapisay
Ans by CA Ramesh Prabhu
It is advisable to attach a continuing sheet of transfer attached to the share certificate. On the original sheet you have to note that sheet no 2 is attached for further transfer
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Qw 202/16.09.2015
Govt had increased property tax and had reduced after sometime. During this period Society had collected @ higher rates. For the credit balance arising can the Society keep it as funds or should the credit balance be refunded or adjusted.
Ans by CA Ramesh Prabhu
Any excess collection on property tax or on any account need to be informed to the members of its utilisation. If any surplus is collected on such account, it is advisable to take an appropriate resolution in the General body meeting whether the same to be credited to the members or transfer to general reserve. Honestly the society should inform the members about extra amount collected on account of property tax and transfer to general reserves such extra to take care of future expenses. Of course, you need to get the resolution passed in the General body meeting.
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QW:190.
One member is not living in a CHS flat registered and stamp duty paid for last 5 years.Last three years a person having family stayed for last years without permission of the society MC.Now another person comes from nowhere and stays the flat belongs to him where as the original member has no alternative address such as native place.Only society has the Xerox copy of the Agrmnt with the buider.Man in is armtwisting with the MC claims to be the real owner and has not paid the Arrears fully for some time.
What actions can be taken against such flat owner?
Ans by CA Ramesh Prabhu
The flat is owned by the members of the society. Legal entity is registered as CHS to manage and provide common services. The society neither has any right to stop giving flat on caretaker or LL basis by member to any person. In case, any nuisance or illegal activities are created by such third party kept by the owner of the flat, the society can initiate legal actions before the appropriate authorities /forums.
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Qw 203/RSP/16.09.2015
We have some members in our society who have huge outstanding and repetitive letters hv yield no action from them. Many of these flats are on leave n License. Plz advice how can we get these members to pay up?
Ans by Uday Prabhu
Please table the same in your Managing Committee Meeting approve the outstanding & then issue at Max 3 Notices & seek justification from Defaulters on reasoning for non-payment then if it still remains unpaid / unresolved then if within 3 years; please go ahead & file Recovery Case under section 101 of MCS Act.
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Qw 204/Rsp/16.09.2015
Can the agm be attend by the defaulters. If yes can they vote too.???
Ans by CA Ramesh Prabhu
Only active member in the cooperative Housing society can vote in the General meeting resolutions or in the election
As per the NEW Model byelaws -2014, if all three of the conditions are full filled, such members are treated as Active members:
(1) to own or co-own the flat/ shop/gala or share in the property of the Society
(2) pay at least once in earlier 5 years.
(3) attend at least one general meetings in the last 5 years provided this clause not applicable if leave if absence is granted by GB.
Defaulter under MCS act means for CHS, if any amount is not paid after the expiry of three months from the date of issue of notice in writing by society to pay such outstanding amount. Issue of monthly or quarterly bill or demand notice cannot be considered as notice to declare a person as defaulter.
Defaulters as stated above do not pay outstanding balance even after issue of such notice in writing over a perod of 3 months cannot contest the election or if elected as committee members and become a defaulters as above, they can be removed from the committee by registrar u/s 77A of MCS act.
So if even if once a small amount towards society charges are paid they are treated as Active members and eligible to vote
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Qw/RSP/17.09.2015
To CA. Prabhu, Mumbai,
Sir pl. Clarify. I hv commenced the audit on 17/03/2015 for the FY 2014-15. There is onjection that audit cannot be commenced before closing of books i.e 31/03/2015. Pl. Confirm.
Ans by CA Ramesh Prabhu
General body appoints the auditor for the current financial year and continues from the date of AGM in which appointed till next AGM. You must have been appointed in the AGM held after 31.3.2014 but before 15.9.2014 for carrying out audit for the cooperative year 2014-15. Therefore, it is expected by law that you start the audit for 2014-15 immediately on appointment, so that you have sufficient time to complete audit. Further, if any rectification has to be done, it can be done during the financial year only. Of course, the statutory audit report can be submitted after the books of account are closed and such accounts statements are adopted by the board of directors / Commitee after the close of cooperative year
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Qw 208/RSP/17.09.2015
I am an office bearer of a Managing Committee (MC) of one of the co-operating housing society in Mumbai. The society has 96 members.
This MC was constituted in Feb 2014 after following the process of election. The election officer has followed the bye-laws prevailing on the day of declaring the election and conducted the same for 11 members. Out of which was reserved for ladies and 1 each for reserved cast respectively.
Unfortunately no one from OBC reserved category filed the nomination for reserved seat; hence the election officer has declared the result for 10 positions and kept the result of one seat in abeyance. Pursuant to which he placed a notice on the notice board seeking the new application for reserved seat from eligible resident members and mentioned in the notice that if no application is received he’ll declare the name of the contestant as 11th members who has received next lowest votes in Feb 2013 election.
On account of not receiving any new nomination/ application the election officer has declared the name of a general category contestant as 11th member. My query to you- does this act of the election officer is valid under the provisions of law/ byelaws?
Ans by CA Ramesh Prabhu
The post for women or reserve categories can be filled from the candidates belonging to that category only. If there are no candidates, it should be kept vacant. It is a Rly compartment reserved for ladies cannot be occupied just because it is vacant by gents, same way, if ladies or SC/ST or OBC or special BC or NT candidates are not available it should be kept vacant and to be filled as and when such categories candidates desire to occupy the seats. Therefore, the returning officer has done a mistake. Now you are either request that 11th candidate to resign or report to registrar who may u/s 77A of MCS act remove him from the post of committee. In case committee want that person to be in the committee or any other active experts who have not contested the election, the committee can coop two committee members as experts or technical knowledge committee members.
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Qw 207/RSP/17.09.2015
Plz.suggest Wht is procedure to adopt new bye laws.
Answer by CA. RAMESH PRABHU
1. Pass general body resolution adopting the new bye laws
2. Two new bye laws
3. Copy of old bye laws
4. Copy of notice agenda and minutes of the general body meeting wherein the bye laws has been adopted
5. Online registration must
6. Filling up forms
7. Affix 50/- court fee stamp on that form
8. Submit to deputy registrar
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Qw/206/RSP/17.09.2015
Sir pl. Clarify. I hv commenced the audit on 17/03/2015 for the FY 2014-15. There is onjection that audit cannot be commenced before closing of books i.e 31/03/2015. Pl. Confirm.
Ans by CA Ramesh Prabhu
General body appoints the auditor for the current financial year and continues from the date of AGM in which appointed till next AGM. You must have been appointed in the AGM held after 31.3.2014 but before 15.9.2014 for carrying out audit for the cooperative year 2014-15. Therefore, it is expected by law that you start the audit for 2014-15 immediately on appointment, so that you have sufficient time to complete audit. Further, if any rectification has to be done, it can be done during the financial year only. Of course, the statutory audit report can be submitted after the books of account are closed and such accounts statements are adopted by the board of directors / Commitee after the close of cooperative year
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Qw 209/RSP/17.09.2015
Is there a rule that a new member of redeveloped society cannot sell his flat for 2 years?
Ans by CA Ramesh Prabhu
There is no such rule. It is a fundamental right of every member to transfer his right, title and interest in the flat/property to any other person in the cooperative Housing society. Therefore, as per bye-laws of CHS, the SRA/Mhada/collector or any govt sponsored schemes where such authorities NOC for the Sale or giving on LL is required. In all other cases NOC for sale or to give on Leave and license or caretaker nasis , socieyy is not required.
Many developers or even committees at the influence of developers incorporate such clauses in the DA agreement not to dispose of flats by any existing members for a perod of two years from the date of handing over the possession of new flat. Some builders incorporate in DA that prior NOC from developers required to sell the flats after executing DA in which case builders demand transfer fees of Rs.1000 or more per sq.feet. I have seen few DA in which societies have accepted the clause that even if builder gives NOC, the balance corpus to be paid to existing member will be forfeited and new person shall not get rent for the balance construction period which is available to others and also any additional benefits arising due to change in the Development control rules like increase in FSI will not be available to such new person who has purchased such flats.
These restrictive clauses at any cost need to be avoided. The reasons given by some societies that, the builder may buy the flats of chairman and office bearers and others will not be able to make such office bearers liable. If such act has to happen it will happen because corrupt practitioners know how to get their work done but it will certainly harm the innocent flat members who fir some reasons want to sell but will be discouraged by such clauses.
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Qw 210/RSP/17.09.2010
Society is formed and mhada alloted a plot to society on 30 yr lease. Society has 11 members. Society entered into developer agreement with developer with all right to him n only right to claim damages to society incase of delay.
Present members wants to transfer there share to other members n developer consent is there.
Can they transfer by executing share transfer form. Do they have to pay stamp duty on it.
Present status is members have right to own flat once developed. Pls advise-
CA Shenal Kamdar
Ans by CA Ramesh Prabhu
It is like any other transfer of flat. Though in this case, the flat may be under construction or is just demolished, the outgoing member is transferring his right, title and interest in the property under construction which will be in due course available to the purchaser from the developer by virtue of development agreement executed by the society.
It is advisable, recommended and legally required that such agreement of transfer of under construction flat gone for redevelopment whenever sold is sold, the agreement should be tripartite I. E seller, buyer and Builder/developer with due NOC from the society..
Stamp duty and registration as per the agreement value or market value as per the ready recknor whichever is more, required to be paid. It is not sufficient to simply fill up the transfer forms and get transfer of share certificate is done. Of course after registering the transfer agreement with tripartite, all transfer forms as required under coop hsg societies bye laws need to be filled, transfer fees and transfer premium of Rs.25000 or as may be decided by the society need to paid and get the shares of the society of outgoing members transferred in the name of new purchaser to admit as member in place of outgoing member.
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Qw211/RSP/17.09.2015
We have a complex of about 24 buildings. 2 societies have been formed for 5 bldgs. 4 bldgs. Are under construction. For others society is yet to be formed. A federation society is also to be formed. Builder is managing common security & facilities. He gave a huge bill to our society which our society rejected on the ground that he has yet to deliver the club house. He has started sending individually to all owners. What should be done by the individual owners & society
Ans by CA.RAMESH PRABHU
It is the duty of the builder to manage the common services in the complex till the project is completed. Once the society is registered, the builder has to collect it from society and cannot issue individual bills The flat owners should not pay such amount to the builder.
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Qw212/RSP/17.09.2015
Is it necessary that car parking alloted nos among original members in redevelopment of society be mentioned when the Permanent accommodation agreement is executed between the members and builder or what is the best solution to secure car parking rights.?
Ans by CA Ramesh Prabhu
If the Development Agreement mentions that each member shall be provided with car parking facilities and the sane is approved by Municipal Corporation and at the time of allotment of flats, the car parking is also identified for respective flats, in such cases, it is advisable and recommended to include in the permanent alternative accommodation agreement. This will not be considered as sold but will b considered as the amenity to the flat which was agreed at the time of DA has been fulfilled and provided along with respective flats.
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Qw/PV/01/17.09.2015
At what stage of redevelopment of a society the permanent alternative accommodation agreement be executed between original member n builder.
Ans by CA. PRAKASH VALECHHA :
First the Development Agreement between builder and society. Then receipt of corpus before shifting and after bldr gets IOD, ( intimation of disapproval) from MCGM ( Municipal Corportion of Greater Mumbai, PAA ( Permanet Alternative accommodation agreement) be signed where area of flat location, details of amenities car park etc is mentioned. PAAA has to tripritite ( builder, society and member ) take Advance rent upto time of const. Usually 18 to 24 months. Then register the agreement and then move out.
PAAA has to be duly stamped and registered. Without executing PARA no one should move out of the flat. There is a judgement on this account passed by High court Mumbai and is now made a part of IOD conditions.
Unfortunately, few society office bearers at the influence of developers and with a hope to get additional area as and when additional FSI is granted, do not get the PARA registered but get only motorised on Rs.100 stamp paper which has no legal validity and then sign an understanding to get commencement certificate before MCGM that PAAA is executed with every member as a fulfillment of terms and conditions of IOD.
Only God has to save such members of societies who have moved out without executing PAAA
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Qw 213/RSP/17.09.2015
Dear Mr.Prabhu
With regards to defaulters : For them to fulfil the condition of active members they should have paid the equivalent of 1 years maintenance in one of years and for a continuous period of 1 year. This was a clarification given in the TOI a couple of weeks back. I find this quite reasonable. Paying one months maintenance in 5 years and seeking to exercise rights without responsibilities is expecting too much from maintenance paying members.
Is this the correct view?
Ans by CA Ramesh Prabhu
Regarding active members of CHS, new model bye-laws at two places have defined separately regarding the payment of dues are concerned.
At one place it says, member should be at least paying once in five years. This means, even in five years he pays once Rs.1/-he shall be active member.
In another place it says, to become active one has to pay maintenance charges regularly. What is the meaning of paying regularly not mentioned.
We as MSWA have requested the commissioner to give clarity on this important vague definition of active members in bye-laws and further requested that a defaulters as per MCS act should not be considered as Active member. As per MCS act, 1960, defaulter in case of coop hsg societies means, a member who has not paid any amount even after the expiry of three nlmonths since the issue of notice for payment outstanding dues.
The response from the department is that the existing g committee in order to see that their opponents or who are against their working style many charge any arbitratorary amount in the bill and then issue notice for recovery and declare them as defaulters. This could be a big scandal misused by the exiting committee.
Therefore, only once payment in five years has been mentioned.
Considering your views, we shall represent to the Govt that average monthly dues of 12 months out of 60onths, if paid by the members, such members are to be considerd as Active members
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Qw214/RSP/18.09.2015
Can a few flat-holders who have bought flats from builder, choose not to become members of the co-op housing society formed by other such flat buyers?
There is a apparently no reason why they chose not to become members. They however contribute towards the common maintenance expenses of the society.
By CA. Rushika (Anitha) Tandol
Ans by CA Ramesh Prabhu
Membership in a cooperative Housing society is a voluntary. No one compel the person who has bought the flat to become the Member of the society.
However, if a person purchases the flat in a cooperative Housing society or purchased the flat from the builder and majority have formed the CHS, it is advisable and recommended that all flat purchasers should become the members of the society fir the following benefits:
(1) members can attend meeting and express views on many important decisions including decisions on outgoings
(2) Can get elected to manage the affairs
(3) If any certificate of residence or NOC for raising loan is required, without being a member society does not grant
(4) common facilities of car parking may be given only to the members.
(5) if such persons want to sell the flat, the buyer would have many doubts on the legal title of the flat.
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Qw/215/RSP/18.09.2015
In our society's Registered redevelopment Avgreement dated 21.05.2008 it was clearly mentioned & agreed by all old members that the developer would have right to allot 50% car parking spaces to his prospective property buyer & remaining 50% parking spaces will be kept reserved for old member of the society.
Developer has issued Parking Space Letter, out of his 50% Parking space quota, to his property buyers.
please reply can society deny to allot Parking spaces to developer's property buyers by passing resolution to the same effect in the SGM Dec 2012,attended by only old members?
Please note till date M.C. has not enrolled any developer's property buyers as members of the society.
Now what is the remedies for new property buyers for getting their dedicated car parking space ?
By Vimal Jain
Ans by CA.RAMESH PRABHU
Car parking facilities has to be provided by the builder to any building developed by them as per Development control rules.1961. The developer has to provide the required car parkings approved by MCGM as per the approved plan to tespective flats as per it's size. Visitors car parking of 25% and 1 parking approved for two or more flats as per DCRULES will be common amenities to be handed over to the society for allotment among members of the society as per the resolution passed in the society meeting.
In your case, since as per DA, it has been agreed that 50% of car parking will be available only to the existing members, society before admitting new myers get the allotment of parking amongst them. Since new flat purchasers are not yet admitted they will not have any say.
After new purchasers are admitted as members and are agreieved of old allotment done by the society against their rights on parking, may file a case before cooperative court to get such resolutions set aside and get the fresh allotment done. If any flat purchaser is aggrieved before admitting as member about the car parking, they can move before civil court or consumer court against the builder and the society to get justice. Otherwise what has been done by the society is proper in the given situation as explained by you
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Qw/PV/01/17.09.2015
At what stage of redevelopment of a society the permanent alternative accommodation agreement be executed between original member n builder.
Ans by CA. PRAKASH VALECHHA :
First the Development Agreement between builder and society. Then receipt of corpus before shifting and after bldr gets IOD, ( intimation of disapproval) from MCGM ( Municipal Corportion of Greater Mumbai, PAA ( Permanet Alternative accommodation agreement) be signed where area of flat location, details of amenities car park etc is mentioned. PAAA has to tripritite ( builder, society and member ) take Advance rent upto time of const. Usually 18 to 24 months. Then register the agreement and then move out.
PAAA has to be duly stamped and registered. Without executing PARA no one should move out of the flat. There is a judgement on this account passed by High court Mumbai and is now made a part of IOD conditions.
Unfortunately, few society office bearers at the influence of developers and with a hope to get additional area as and when additional FSI is granted, do not get the PARA registered but get only motorised on Rs.100 stamp paper which has no legal validity and then sign an understanding to get commencement certificate before MCGM that PAAA is executed with every member as a fulfillment of terms and conditions of IOD.
Only God has to save such members of societies who have moved out without executing PAAA
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Q. What. About the society those who have signed d.a but developers now not interested in developing projects due to various reason going to court tedious work n fees.
Ans by CA P. Valecha
Every DA has a Time limitation clause. Hence if the developer is unable to perform his part and delays the process the agreement lapses. Hence drafting terms have to be clear. It is very important these clauses are catefully drafted that dont bind the society with any unreasonable terms.
The high court has also held in favour of society whenever builders have del. ayed. In a recent judgement the society was permited to change the developer.
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Qw/PV/18.09.2015
What. About the society those who have signed d.a but developers now not interested in developing projects due to various reason going to court tedious work n fees.
Ans by CA P. Valecha
Every DA has a Time limitation clause. Hence if the developer is unable to perform his part and delays the process the agreement lapses. Hence drafting terms have to be clear. It is very important these clauses are catefully drafted that dont bind the society with any unreasonable terms.
The high court has also held in favour of society whenever builders have del. ayed. In a recent judgement the society was permited to change the developer.
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Qw216/ RSP/ 18.09.2015
What is alternative to secure car parking alloted by gen body to original members in redev of socy if nt part of DA and some members insist not to mention car parking nos in Permanent alternative accommodation agreement as it is annexed to the DA.
Ans by CA Ramesh Prabhu
It is advisable to get Parking allotment as per DA in PAAA also.
In case, society has any reservations to get them included in PAAA, at least get the allotment letter issued by the society about car parking as per DA so that in future there will not be any issues related to car parking
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Qw.217/ RSP/ 18.09.2015
Sir I'm member of Pune unit. I would like to know that our building is constructed in 5 floor, initially PMC has sanctioned plan for 4th floor. After the builder have submitted 5th plan on sold of flats. We have taken loan from nationalised Bank but after 3 yrs PMC has not approved the plan stating that road development charge should pay by builders. It is in rule or what action will we take since no completion has been recd & tax also?
Ans by CA Ramesh Prabhu
You have to file a case against the builder before consumer court for claiming damages.
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QW/216/VIM/18/09/2015
1.What is Current account balance limit for the CHS?
Ans by CA Ramesh Prabhu
There is no limit set by any act, rules or bye-laws. Housing societies are permitted to open the savings account in any banks.
If more money is kept idle in the current account, society is going to loose the interest kept in current account. Therefore, the society should not open current account only
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QW/218/VIM/ 18.09.2015.
Please advice
1.How to check whether M.C.has passed any back dated resolution in M.C.meeting or not?
2. Is there any system under Bye Laws to keep Minutes register up to date regularly, so no one can temper or can passed any back dated resolution?
If yes please inform.
Ans by CA.RAMESH PRABHU
Every month you can ask for a certified copy of managing committee meeting agenda and minutes u/s 32 of MCS act and the committee has to provide the same by charging nominal amount.
It is otherwise practically difficult for any ordinary member to keep the track of any back dated resolutions unless and until one or two committee members take the mi uses of the meeting immediately.
When such doubts are raised by the Committee myers, we have advised society to write the minutes in the meeting g only and obtain the signature of all members present at the end. Circulate such minutes xerox to all members of the society. This system adopted by the societies fir general body meetings also. This has reduced the doubt raised by members.
This system has to be afopted by committee otherwise there is no vlbye-laws or rule which provides to wrote minutes immediately.
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Qw/219/RSP/18.09.2015
Within how much time after the AGM do we have to send the papers of bye-law adoption to registrar?
Ans by CA Ramesh Prabhu
Within two months from the date of General body meeting in which resolution to adopt or amend the bye-laws are taken place.
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Ca.Q/RSP/17.09.2015
Sir , I have a Query that should major structural Repairs Expenses of a Cooperative Hsg Society be Borne by all members of the society as per the area occupied irrespective of Commercial and Residential. Or Should the Commercial shops owners bear more.
Ans by CA Ramesh Prabhu
Contributors towards all repairs expenses should be collected from members in the basis of area occupied / purchased by them. There is no separate or extra changes can be levied to commercial members.
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Qw /RSP/17.09.2015
Is it true CA does not hv to enrol for panel , only GDCA has to do that for doing audit, and if not so, where n how can be some one enrol himself on panel.
Ans by CA.RAMESH PRABHU
All auditors like CA individual or firm of CAs, GDCA, retired officers or govt auditors, all are required to be in the panel of Auditors prepares by Govt.
Last panel of Auditors was approved in 2014.
Normally once in a year panel is updated by the dept.
For the current year 2015, it has not been updated or applications are invited.
As and when such applications are invited to update the panel auditors, it is published in news paper, wirc website and now we shall update on this group.
It is expected to happen very shortly.
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Qw222/RSP/19.09.2015
What is the last date for submitting copy of the annual report of the Society to the registrars office ?
Dust be submitted after AGM ? OR Can be submitted before AGM and approval at a later date as Secretary and Jt.secretary abroad !
Ans by CA Ramesh Prabhu
Annual report and return has to be submitted on or before 30th Sept every year but after holding AGM. It cannot be filed before holding AGM
Accounts need to be adopted in the MC meeting and pass a resolution as to the person who shall be signing on behalf of the committee, get it audited and circulate to the members along with AGM notice and get it approved in the AGM.
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QW/223/RSP/ 19.09.2015
In our society land has been conveyed to the society. The land record in b m c has not been changed. They are asking for a fat amount. If they don't do it what is the consequences. C A N B Shetty.
Ans by CA Ramesh Prabhu
If you have proper documents of conveyance Deed properly registered, the authorities cannot demand any extra amount.
You need to take the help of RTI and Maharashtra Right to Public services ACT, 2015.
If within 2 months of making application, no actions are taken, file an RTI to get status report on your application and also file an appeal under right to serve vice act, 2015.
You will certainly get positive outcome
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Qw 224/RSP/ 18.9.2015
In our society for 3 BHK flats 2 sale agreement made by builder. 1 sale agreement for 2 BHK flats.
Our previous Managing committee has issue one share certificate of 5 shares to 2BHK flat and 2 shares certificate of 5 shares to 3 BHk flat.
Is it correct ?
Ans by CA Ramesh Prabhu
As per the old Bye-laws, minimum shares issued to the members of CHS is five and as per new model bye-laws minimum shares issued to be 10 of Rs.50/- each.
Nothing prohibits societies to issue more shares, if there is silufficient authorised capital as per registered bye-laws and proper resolutions to this effect is passed in the MC meeting.
In your case, society has adopted the system to provide one share certificate in respect of each agreement since the approved plan must be showing them as one independent flats and to make it big, the developer must have combined without amending plans, as one flat of 3BHK and sold to the flat purchasers
As per bye-laws, it is necessary to issue one share certificate per flat to get the title of flat identified with agreement and corresponding share certificate. Therefore, there is nothing wrong or mistake or illegal thing has been done by previous committee issuing two share certificate to a person who has two agreements in respect of two approved plans which has been combined for the purpose of convenient.
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Question 225
In all existing CHS which followed the old Bye-laws a member had to purchase 5 shares to own the flat.
Now after adopting the new bye-laws which state fully paid up value of at least 10 shares.
Has it now become mandatory for each Society to issue additional 5 shares to every member at Rs 50/- per share??
Michael
Ans by CA Ramesh Prabhu
Yes by passing resolution and collecting additional Rs.250/- .
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Question 226
The administrator was there in the soc and aftr conducting elections now new committee is in place..One of the off bearer is not ready to sign the accounts saying that tymes committee is responsible .He is an advocate nd wants a section or rule or clause which states its mandatory and respinsivility of the existing off bearer to sign on the accounts for the period wen new committee was not in picture.Plz guide...
Ans by CA Ramesh Prabhu
As per bye law 146 (a) of new model bye laws, it is the responsibility of the secretary or any person authorised by the Committee to finalise the account. At the relevant time whoever is in charge of the affairs need to prepare and finals accounts. The signature by office bearers on account of token of adoption in the committee without any accountability on the committee members who were not in office during the relevant time when the actual transactions took place
Once old Commitee is out of office, they will not have any access to books or records and it is not legal to ask them to do accounts and sign them when they are not holding any post.
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Qw 227/RSP/ 18.09.2015
Our society has declared agm on
On 24 sep which is bakri idd ...national holiday we have 6 muslim members who have pointed out that it is a big festival of minority community and therefore meeting shall be invalid if u dont postpone they will get it cancelled thru registrar...what to do sir ...pl
Ans by CA.RAMESH PRABHU
AGM can be called with 14 days clear notice on any day or night including on public holidays. Any democratic process in the society like holding AGM or any meeting can be stopped by any court or registrar.
You cannot fix the meeting taking into all aspects and every ones convenience.
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Qw 228/RSP/ 18.09.2015
Whether society annual gen meeting can be held on 24 sep one member is saying u cannot hold meeting after 14 aug without registrar permission.
Ans by CA Ramesh Prabhu
As per the amendments done to MCS Act, 1960 effective from 14.2 2013, the society has to conduct AGM by 30th September and the power of the registrar to grant permission has been removed from the Act.
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Qw 228/RSP/19.09.2015
Pl suggest on the following
Due to some reason new commitee formed on may 2014.now we have prepared balance sheet for 14 &15 & planning to take Agm. But repeated verbal request till date we have not recd previous balance sheet from prevoius commitee.
What next. Pl suggest.
Ans by CA.RAMESH PRABHU
Once the new committee is elected and taken charge, all pending work including pending account had to be done by the new committee.
All records should be in the office of society or with the available records, new committee has to prepare accounts of earlier period and any difference to be shown in the ex- committee names and finalise accounts. Without old a/C new accounts cannot be prepared. Plz pass necessary resolutions to this effect and do the needful
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Qw/CA/RSP/ 19.09.2015
Where and when the AGM Can be held. Can it be held in any other city, other than the city in which the society premises are situated.
Ans by CA Ramesh Prabhu
The AGM or any coop society to be held on or before 30th Sept every year. Normally meeting has to be held in the district where registered office is situated. It can be held on holiday as per the notice given 14 days prior to the meeting date. There is no bar to hold the meeting other than the city in which society premises is situated but ideally it should be done within the area of operation of the society. The provision fir holding AGM says, the notice should specify the date, time and place of meeting without any restriction as to where the meeting need to be held
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Qw 230/Rsp/ 20.09.2015
if the committee completed its tenure in 2015 but not inform the election pradhikarn for election so what action should be taken against the committee?
Ans by CA Ramesh Prabhu
A complaint need to be filed before the Deputy registrar of the respective ward about failure to inform election authority about the expiry of the term before 6 months of expiry of term with all proof of last election held and having send a letter to society about the actions taken to hold election and inform the state coop election authority or registrar
(2) Registrar shall hold a hearing if parties and find guilty shall appoint an Authorized officer u/s 77A of MCS act to manage day to day affairs till elections are held by dismissing the exosting committee
(3) All committee members responsible to inform and initiate election process will be held liable for offence u/s 146 of the Act and shall be disqualified to contest election for a next full term of 5 years u/s 73 CA (1A) of MCS Act, 1960 read with punishment for offence u/s 147 of MCS Act, 1960.
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QW/231/Rsp/20.09.2015
Pl .inform us we have developement aggrement for bldg.no.28.but now bldg.is demolished .and developer still not done individual aggrement. And CC has also come.as per law developer is not ready to do the individual aggrement.so pl.advise .
Ans by CA Ramesh Prabhu
It is violation of High court order, violation of MCGM commissioner direction, so plz complain about this to
(1) Dy chief engineer (Building proposal) of your area about violation of high court order and commissioner direction and if no stop work notice is issued till PAAA is executed, Dy CE (BP) will be held responsible and accountable.
(2) File an RTI for status report to PIO on the complaints made by you
(3) File a complaint under Mah Right to Public services ACT, 2015 before first appellate authority empowered under that act
(4) complaint to MCGM commissioner.
If no actions taken, prepare a perform writ petition to be filed before Hon'ble High court to direct MCGM officials to get the implementation of high court order
5) prepare contempt of high court order petition to be filed before Hon'ble high court and serve on the authorities giving ultimatum to take actions within 30 days.
This will compel the concerned officer including the builder to do the needful.
No one is above the law
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Qw /RSP/22.09.2015
If minute books of society AGM and SGM is not available and produce to auditor for verification and auditor qualify his report . now what remedy is available to society. The same is lost by old committee or accountant
Ans by CA.RAMESH PRABHU
The present committee should make a record of what documents are received and which doxlcuments are not received from old committee duly signed by both new and old committee members.
A police complaint for loss of certain records including minutes book as per the missing list to be filed before the nearest police station.
Infirm this fact to the registrar and then call a Special General body meeting to get the facts recorded and if possible? Compile the minutes or resolutions of earlier committee and General body meetings and get it approved as reconstructed minutes of earlier period
Thus minutes can be reconstructed and made authentic and binding on all
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Qw/RSP/22.09.2015
Is it mandatory to file online AGM munutes with annual and report to the registrar ?
Ans by CA.RAMESH PRABHU
As per section 79 (1A) of the MCS Act, 1960, it is mandatory to file 6 types of annual returns I which AGM date is recorded online along with annual activities, Annual valance sheet / audit report etc within 6 months of close of coop year ime by 30th September Every Year.
Not filing annual returns call for show cause notice including levy of penalty upto Rs.5000 including dismissal of committee or person responsible and disqualification for contesting election for next 5 years as per section 73CA (1A) of the MCS act
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QW/233/RSP/22.09.15
Question being asked in my group...
158-Charkop Anand sec.3.
We have pased redevelopment resolution in last agm,&decided to take fisiblity report first. We took took fisiblity report now, (we wasted hole year to take fisiblity report in fact it's maximum one month job, still I feal my associate committee members delaying & being a committee member I can't talk, to avoid this delay what can I do. Our agm is on 26th September, 2015.
Ans by CA.RAMESH PRABHU
Since your is Mhada society, there is no clarity in the FSI granted to Mhada societies. Amendment to Development control Rules, 1991 to grant 3 FSI with premium payment to Mhada without sharing upto to the plot area of 1500 to 2000 sqmtrs of land and above that area, sharing of built up area with Mhada with 4 FSI is on the pipeline.
You cannot expect the redevelopment to take place in time bound manner as you need consensus of over 75% of myers, locating good developer, policy changes by Govt etc. Any redevelopment process go from the date of starting to finally APPOINT a developer takes anywhere between 3 to 5 years and thereafter 3 to 5 years for completion by developer to give new building
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Qw/236/RSP /25.09.2015
Dear Sir
M a committee member in bhoomi park in malad west. Recently v had our agm on 30th August.. during addressing general body on a box grill agenda..one of our lady committee member who has reserved her seat in womens category in d election alongwith her husband pounced on me with provoking language to indulge in fight n threatening to physically harm me..members of general body suggested me to keep calm..so i kept queit..since she has made a box grill against agm rulings of 5 years.
Next day i wrote to chairman to kindly include d incident in d minute .. no response.. after some day i found dat dey r about to circulat d minutes..so i guided dem dat its needs to b approved in a MCM b4 circulation.. so now dey hav cald a MCM
Dey r planning to create a majority n paas it in MCM for not minuting it.
Apart dis lady is a big nuisance to society bcoz she is regularly doing des harassment in al agm n in general too.
Plz advice..what should i do.
2nd .. dis lady has filed a case in coop court agnst mc n its few members 2 years ago.. d case is still on..in may 2015 v had undergone election thr registrar wherein she got elected in woman category.
Ans by CA.RAMESH PRABHU
Minutes are to be written by the Secretary and the MC can suggest certain changes in that. Thereafter, it is circulated to the members for giving suggestions and objections or omissions which need to be included in minutes. If such procedure is not adopted and you want certain incidents happened or arguments took place need to be recorded, pls do give in writing with a request to include in the final minutes. When such minutes come before next general body for adoption or approval and your points are not recorded, you may request the General body to add in the minutes, if majority is on your side, the same be recorded or your contention by be over ruled by General body. At least such minutes of over ruling be asked to recorded in the minutes of current meeting. Thus record is created.
In case, you are still aggrieved about the way minutes are written by omitting certain important points, you are free to file a dispute before coop court u/s 91 of the MCS Act.
Regarding behaviour of certain committee members etc, the MC or general body or police can have control. However any incidents of criminal nature is done, you may file a complaint before local police station to take necessary actions. If proper actions are not initiated by police, you have to file a case before the magistrate court.
It is always advisable not to get provoked with such behaviour of any persons. By getting provoked, you are allowing them to suceed in their mission of cresting disturbance in the society. I appreciate if you ignore such behaviour and if really it matters and need legal actions of criminal or civil, approach a legal council or meet our legal team by taking prior appointment for first time free legal consultancy by calling on 42551414/32
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Qw 237/RSP/ 25.09.2015
Dear Mr Prabhu, waiting for your revert and help on the below mentioned matter I highlighted previously. It's a big pain and we are sandwiched between builders, BMC and politicians.
Dear Mr Prabhu, need some guidance on the below mentioned matter: -
Panch Sristhi Complex currently comprises of 9 registered societies and few more upcoming buildings. The road inside the complex connects Hiranandani and Chandivalli/ Sakinaka. It's a layout road and is very narrow. All traffic including heavy traffic is plying through this road. Road is in pathetic condition and builder is not maintaining the same. There is also no street lights. We raised with BMC and BMC refused to maintain saying builder has not handed over the road. The situation is pathetic now and becoming bad to worst everyday. Can we get some help from association to take it up strongly with respective authorities. If you need I can send you a mail with photographs.
Ans by CA.RAMESH PRABHU
MSWA has created many platforms and guidance cell to the residents who want to help themselves.
(1) Meet with all documents, complaint made to our legal.team.
(2) we can take up in our MSWA talk show which will be live Webinar type
(3) Meet media consultant of mswa how the same can be high lighted in media.
(4). Arrange an agitation of one day before the concerned authorities by taking necessary police permission.
You need to be proactive, create a movement in your area and unitedly take measures to fight against authorities to get your rights.
Pls contact 42551414/32 To get appoint of legal team a d come with all papers. You may send papers in advance in my email : rsprabhu13@gmail.com
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Q.CA/RSP /25.09.2015
Sir , A society has 10 shops and 20 Residential Flats , now society wants to take a seperate water meter for commercial , is it o k .
And moreover till that time they want to charge more water charges to one of the shop out of 10 shops , is it correct and can it b done by society which is injustice to the targeted shop owner.
Ans by CA Ramesh Prabhu
The society can charge differential water charges for all shops and all residents, if the water bill is charged in that way.
It is not justified to charge only one shop leaving all other nine shops lesser water charges equal to residents.
It is advisable to take two different connectors for residents and commercial, so that commercial bill can be distributed equally amongst shops and residential bill on all flats. No dispute can arise. It is legal and m mcgm does on receiving applications from society
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QW/239/RSP/ 25.09.2015.
Please let me know the WP or case no, in which Honourable Bombay High Court has ordered for executing PAAA compulsory before demolition of the building in process of the Redevelopment.
Ans by CA.RAMESH PRABHU
Any IOD issued after 23
06.2014, has a condition that no comment certificate shall be issued, unless permanent alternative accommodation agreements are executed with existing flat owners on case of CHS or tenants under tenanted buildings which are demolished due to dilapidated conditions or going for redevelopment under different schemes of redevelopment like under DCR 33 (7) cess buildings or under 33 (9) cluster development or u/s 33 (5) MHADA redevelopment or by loading TDR under DCR 34 for private chs .
The honourable high Court in writ petition (L) No.1135 of 2014 has ruled in para 9 (p) that CC to be issued unless PAAA with every member is filed with Corportion.- refer page 13 and 14 of the judgment passed by a division bench Justice Shri. Anoop V Mohta and Justice Shri. A.A.Sayed on 23rd June 2014.
Case law is uploaded on www.mswahousing.org website. Pls visit and download.
Case filed by MCGM against state of Maharashtra, police commissioner and others when notice u/s 354 of MCGM is issued tenants / occupier are not sure about the builder and land owner providing houses in the redevelopment. So a policy guidelines in this case is given in detail at para no.9 of the judgment.
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Qw240/ RSP/ 25.09.3015
In one of the high rise CHS, as per Mumbai Fire Brigade compliances Nov 2009 it was compulsory to provide 2 main Gate (4.5 meter broad with 4.5 meter clear heught) and 1 basement gate (6 meter broad with 3 meter clear height), 6 meter open space in south west corner.
But developer provide only 1 main gate & 1 basement gate. He didn't leave above said open space also.
Till date 20.09.2015 MFB has never cancelled requirement of 2nd main gate & open space.
Developer how ever suceeded to get O.C. in last Nov 2014 with the help of some corrupt personnel by exhibiting basement gate as 2nd main gate and 6 meter above said open space on sanctioned plan copy.
Lots of complaints have been filed at Building Proposal ( Eastern Suburban) vikhroli & MFB.for above said laps.
But non of the department is ready to take any action against these very important safety laps or ready to revoke the O.C.till the date of completion of above said fire compliances. Please advice now what steps shoud be taken ?
Ans by CA Ramesh Prabhu
In case you are sure that there is a need of another gate for safety of the residents as per laid down norms and DCRULES, you need to follow that and not insist for revocation of OC. Your move of getting revocation of OC will be something like putting a fire to your own house to get rid of rat. In the process rat will run away and you will lose your house. In the similar way, if you persistently follow up with the dept to revoke OC, they may do so and the bldg which you are staying can be considered as illegal and every one including you will receive the notice fir eviction which you or your society need to fight in the court and builder will be no where and will run away like the rat in the earlier example and you will then run the risk of making your legal building into illegal.
Instead demand the authorities to direct the developer to provide alternative gate or to the society to install another safety gate. Get the order for gate installation instead of revoking OC.
If MCGM/ Fire dept does not take necessary steps in this direction prepare a perform writ petition to be filed before before honorable High court against BMC/ Fire dept ; builder, society and diver to all of them. The file an RTI demanding status on your complaint.
File an appeal under a Mah. RIGHT TO PUBLIC SERVICE ACT 2015 EFFECTIVE FROM APRIL 3015.
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Qw241/ RSP/25.09.2015
Can Managing Committee charge a commercial establishment (hospitals) for creating nuisance & unhygienic environment in the Society Compound. Up to what amount it can charge? Request guidance from members of this group / MSWA.
Ans by CA.RAMESH PRABHU
Normally, it is advisable to take an undertaking from such members that certain nuisance shall not be created. Whatever is your apprehension about nuisance and for every violation, they may agree to pay certain compensation.
Legally all charges to be approved by General body and it has to be same for all members irrespective of use of property. It is also given in the model bye-laws. ANY NUISANCE OR DISTURBANCE CAN BE OR SHOULD BE TOLERATED BY CHARGING .ADDITIONAL . CHARGES. G.R DATED 29.04.2000 ALSO HAS STATED THAT NO DISCRIMINATION IN LEVY OF.CHARGRS SHOULD.BE DONE BASED ON ITS USES.
The G.R copy can be found I our website ;www.mswahousing.org
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Qw242/RSP/25-09-15
Whether expenses incurred on executing Conveyance including incidental expenses, should be shared equally by members or by the areas of respective flats.
Ans by CA.RAMESH PRABHU
Since it is related to land and bldg, it should be as per area of flat
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Qw243/RSP/25.09.2015
Can a society levy parking charges for basement parking even though the parking lot is in the name of the flat owner
And can the society raise the parking charges
Is any resolution required for that
Is there any way to prevent the society from doing this
Ans by CA.RAMESH PRABHU
Society charges are levied as per resolution of the general body as per the provisions made in the Bye-law. Parking charges also can be collected by the society to whom parking facilities are made available. The way flat is owned by members still various charges are paid, same way, parking though owned or purchased by members, if decided by the General body, every one need to pay.
In case you do not want to charged for car parking, get the majority on your side and stop the resolution from getting passed and even if resolution is moved, see that Rs.10/ per month or nominal charges are levied.
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Qw/RSP/ 25.09.2015
Sir, can one person hold the different co op hsg soceity (chairman) or he become different co op hsg soceity m.c member. ???
Ans by CA Ramesh Prabhu
BY virtue of having purchased the flat/ shop, a person becomes member of the society. So he gets rights to vote and contest. Each society is an autonomous body. So there is no restrictions on holding posts at different societies so long he is otherwise eligible under the respective act.
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Whether Member can be expelled from membership due to misbehave and nuisance
Answer by Vimal Jain
By giving member to clear his stand, in the G.B.Meeting, General Body can expell the said member U/S 35 of MCS Act.
But final decision can be taken by only the concern Deputy Registrar.
Please also check the whole provisions of section 35, whether the said member fit for expell under the the same section or not.
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Qw/RSP/
Question . Is there any bye-law that bar relatives from being office bearers and signatories in bank account of CHS . Thanks
Ans by CA.RAMESH PRABHU
No such restrictions
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Qw/RSP/ 26, 09,2015
Due to any reason, if any CA not able to deliver the audit report by 30th Sept., what can be done in AGM? Is there any way to pass the Accounts and audit report after AGM?
Kindly guide.
Ans by CA Ramesh Prabhu
Accounts subject to audit to be approved with concerns and queries to be considerd by auditors in their report.
After the audit report is received, SGM can be called to approve the audited accounts
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QW/RSP -
"Is there any bye law that bar relatives from being office bearers and signatories in bank accounts of the CHS?
CLARIFICATION BY Adv. M.V Gupta:
D ue respect to Prabhu ji, I would like to bring to notice the following correct position:
A relative who is not a Member of the Society cannot either be an office bearer or be signatory in bank accounts of a CHS unless he is firstly a Read Member of the Society and is duly ejected as Member of MC of the Society under bye law 116 of Model bye laws. Further bye law 114 stipulates that the bank account and all acquittances of the Society should be signed by Secretary Jointly with Chairman or Treasurer. Mere relationship with any office bearer does not entitle a person to become official bearer of the CHS or be signatory in Society bank or other accounts.
Response by CA.RAMESH PRABHU.
I fully endorse the views of Adv.M.V.Gupta. when I stated that there is no restrictions in few societies relatives like brothers and married sisters, parents are members. Thus from one family father becomes chairman, elder son secretary and sister becomes treasurer. They are duly elected members. In such situations few members raise the voice when any action is initiated against them that all office bearers are relatives. If that is the situation no restrictions in act, rules or bye-laws. However, if relative is not member, such relative of member cannot attend even meeting. So there is no question that they can become office bearers or become signatories to cheques
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My question is one of our society member having laminated share certificate in name of previous owner now he wants to transfer the same on his name since laminated certificate unable to add his name can we issue duplicate share certificate to him pls guide us.
Answer by Vimal Jain
Please take original laminated share certificate in M.C . possession alongwith undertaking on stamp paper from the original member for surrendering original share certificate with reason willingly & application for duplicate share certificate and after passing the Resolution in M.C.meeting for the same effect, duplicate share certificate can be issued.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Instead of postponement of AGM in lack of qurom
You should have to wait for next 30 minutes & then AGM should have been concluded with present members.
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It is a practise to write in the agenda itself Should there be no quorum till the appointed time meeting shall be adjourned till and will be held on same place, same day whether there is quorum or no quorum time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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Question: from one of the member from chembur Group:
:- Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure
to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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1) Our AGM is on 27th September 2015.
2) Committee has changed the Auditor for 14-15 .
3 ) Approval was taken for 'A' but got approved from 'B'.
3) Their are no. of anomalies in Balance/Sheet which Auditor also has also accepted .
4 ) Whether under such circumstances the agenda of approving the balance sheet can be discussed or firstly should i say the committee to take the opinion of Federation or Dy..Registrar on the subject matter
5 ) I need to follow Byelaws in this regard.
Answer by Vimal Jain
1.First ask M.C to furnish Audit Rectification Report.
2.Check whether M.C.has follwed the RAR or not.
3.If not,don't approve any Audit Report.
4.File complaint at Deputy Registrar regarding non compliance of Statutory Audit Report.
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Whether Member can be expelled from membership due to misbehave and nuisance
Answer by Vimal Jain
By giving member to clear his stand, in the G.B.Meeting, General Body can expell the said member U/S 35 of MCS Act.
But final decision can be taken by only the concern Deputy Registrar.
Please also check the whole provisions of section 35, whether the said member fit for expell under the the same section or not.
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Qw/RSP/
Question . Is there any bye-law that bar relatives from being office bearers and signatories in bank account of CHS . Thanks
Ans by CA.RAMESH PRABHU
No such restrictions
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Qw/RSP/ 26, 09,2015
Qestion:-
: Due to any reason, if any CA not able to deliver the audit report by 30th Sept., what can be done in AGM?
Is there any way to pass the Accounts and audit report after AGM?
Kindly guide.
Ans by CA Ramesh Prabhu
Accounts subject to audit to be approved with concerns and queries to be considerd by auditors in their report.
After the audit report is received, SGM can be called to approve the audited accounts
QW/RSP -
"Is there any bye law that bar relatives from being office bearers and signatories in bank accounts of the CHS?
CLARIFICATION BY Adv. M.V Gupta:
D ue respect to Prabhu ji, I would like to bring to notice the following correct position:
A relative who is not a Member of the Society cannot either be an office bearer or be signatory in bank accounts of a CHS unless he is firstly a Read Member of the Society and is duly ejected as Member of MC of the Society under bye law 116 of Model bye laws. Further bye law 114 stipulates that the bank account and all acquittances of the Society should be signed by Secretary Jointly with Chairman or Treasurer. Mere relationship with any office bearer does not entitle a person to become official bearer of the CHS or be signatory in Society bank or other accounts.
Response by CA.RAMESH PRABHU.
I fully endorse the views of Adv.M.V.Gupta. when I stated that there is no restrictions in few societies relatives like brothers and married sisters, parents are members. Thus from one family father becomes chairman, elder son secretary and sister becomes treasurer. They are duly elected members. In such situations few members raise the voice when any action is initiated against them that all office bearers are relatives. If that is the situation no restrictions in act, rules or bye-laws. However, if relative is not member, such relative of member cannot attend even meeting. So there is no question that they can become office bearers or become signatories to cheques
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My question is one of our society member having laminated share certificate in name of previous owner now he wants to transfer the same on his name since laminated certificate unable to add his name can we issue duplicate share certificate to him pls guide us.
Answer by Vimal Jain
Please take original laminated share certificate in M.C . possession alongwith undertaking on stamp paper from the original member for surrendering original share certificate with reason willingly & application for duplicate share certificate and after passing the Resolution in M.C.meeting for the same effect, duplicate share certificate can be issued.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Instead of postponement of AGM in lack of qurom
You should have to wait for next 30 minutes & then AGM should have been concluded with present members.
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We have arranged AGM on 25 sep. Quorum was not there.now once again arranged on 03rd Oct.if once again quorum not there. What next. Pl suggest.
Urgent. Pl reply
Answer by Vimal Jain
Yes Sir.
You should mention the same in the Agenda.
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It is a practise to write in the agenda itself
Should there be no quorum till the appointed time meeting shall be adjourned till and will be held on same place, same day whether there is quorum or no quorum time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Rajesh Nambiar MSWA: It is a practise to write in the agenda itself
Should there be no quorum till the appointed time meeting shall be adjourned till ----- and will be held on ----- same place, same day whether there is quorum or no quorum
time gap of 30 minutes from scheduled time
Answer by Vimal Jain
You should mention the same in the Agenda.
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Question: from one of the member from chembur Group:
Builder has handover possesion of the new bulinding after redevelopment. What documents/papers Society has to demand from the Builder n what is the procedure
to follow.
Answer by Vimal Jain
1.Ask him to
Furnish original Occupancy Certificate along with
Final sanctioned plan copy & fire compliances NOC.
2.Please don't forget to make physical reconciliation of sanctioned plan copy & fire compliances NOC.
3. Keep some part of the bank guarantee for next 2 to 3 year for any possible dispute arise between developer & society, may be arise due to inferior quality of construction work, ,amenities or any government due balance of the construction period or for doing construction.
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1) Our AGM is on 27th September 2015.
2) Committee has changed the Auditor for 14-15 .
3 ) Approval was taken for 'A' but got approved from 'B'.
3) Their are no. of anomalies in Balance/Sheet which Auditor also has also accepted .
4 ) Whether under such circumstances the agenda of approving the balance sheet can be discussed or firstly should i say the committee to take the opinion of Federation or Dy..Registrar on the subject matter
5 ) I need to follow Byelaws in this regard.
Answer by Vimal Jain
1.First ask M.C to furnish Audit Rectification Report.
2.Check whether M.C.has follwed the RAR or not.
3.If not,don't approve any Audit Report.
4.File complaint at Deputy Registrar regarding non compliance of Statutory Audit Report.
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Qw/03/vim.
Whether now the suspended MC CAN challenge the above said order? Under sec 22 (2)of the MC Act.
Ans:
As the D.J.R.has ordered status quo, the MC which was suspended by the Dy. Registrar gets reinstated during subsistence of the DJR order. The committee can file appeal against the order under Section 22 (2).
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Will seek your guidance over membership in society for HUF.
One of d flats in our society has recently been bought by HUF in resale.
Their membership application is pending with our society' s committee. I've heard in past that HUF can't be taken in as member, hence want to b sure. Pl note its 20 yr old mhada soc. Buyer (huf) has got d flat transferred in his name from mhada. Pl advise.
Answer by Vimal Jain
Under MCS Act provision of eligibility for Membership,
HUF are not eligible to be members of the CHS.
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Qw /RSP/ 27.09.2015
In the month Jan 2013 AGM approved amount for Painting of Rs. V1.25 out of which 1 crore was collected from members and balance was to be used from R & M fund. Actual expense was 1.05 cr. only. Rs. 5 lacs was out of society fund. In year 2013-14 the work got completed. Whole amount was collected and paid out of it. In last AGM the accounts approved. Now few members want refund vide allocating part of expenses from Repair and maintenance fund. In other words refund of Repair and maintenance fund. Does AGM is having power to refund.?
Ans by CA Ramesh Prabhu
The General body is the Supreme authority to decide on any matter within the provisions of Act, Rules and bye-laws. The contribution is received from members as per general body estimating it to be Rs.1.25crores and you had decided to spend Rs.25 lakhamshi from R&D and Rs.1 crores by contribution. Now let u have saved Rs.20 Lakhs. This can be treated as savings from extra contribution taken for major repairs and accordingly, you may refund to members. There is no restrictions to refund such extra contribution
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Qw/1/Dadar/28
i have lots of problems
main builder gave ua flat after resevelopment in 2010 but not yet given OC.last soo many yrs hw was paying maintainence for existing ones and new members paid for 2/3 yrs.and we all expected that by this time we wil get OC.but now he has stopped paying maintainece and asked us to do all expensesfor r society.light bill security water bills property tax.bla bla all we have to pay. please suggest us how to start. He is not picking up r calls nor repling to ur msg.If we go and ait in his office .He is not available.any solution for that
Ans By Veeraiah Gupta
As per recent judgement of the consumer forum the builder is under obligation to pay taxes etc. Until he executes conveyance in favor of the Society. builders failure to furnish OC amounts to deficiency in service under the CP Act. Get legal notice issued and if he doesn't respond file complaint before the Cons forum.
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Qw/RSP/27.09.2015
With new rules by government Of maharashtra for co op. Societies, is it necessary to start election process six months before the end of the present MC tenure ?
Is it applicable to small ( 18 ) societies ?
Ans by CA Ramesh Prabhu
It is compulsory from 14.2.2013 to get the election to office bearers, committee and fill up the casual vacancies by an officer appointed by state coop election authority.
It is the duty of the committee to inform the registrar of coop societies 6 months prior to the expiry of term the committee to conduct election by submitting E-2 form about the number of committee members to be elected and E'-3 Form about the voter list
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Qw/RSP/27.09.2015
Was it compulsory in 2010 also to inform D.R . regarding completion of election tenure period before six months?
Vimal Jain
Ans by CA Ramesh Prabhu
No it become compulsory from 14.2.2013 but actually started implementation from sept-2014 after the election rules were notified. Prior to that the election was supposed to be done by society and file M-20 bond with registrar within 45 days of assuming office till 6..09.2012. Thereafter M-20 bond is removed
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QW/2/KHC/25.09.2015
If AGM not completed before 30th September then can
1. Society get permission from Registrar for exemption and take time.
2. Society on its own decide date for next AGM
3.. What recourse do the members have in such a case.
4. Can the office bearers be held responsible for the delay.
5. What action can be taken by the members against the committee or the committee members.
Ans Veeraiah Gupta
AGM held after 30 Sept without informing the Registrar is illegal. MCS ACT does not provide for post facto approval. Next AGM should be held after due submission of voters list and request the Registrar to appoint election officer to conduct election.
Undoubtedly the Office Bearers are at fault and liable for punishment under the Act. But complaining against them
May make things more complicated.
[9/28/2015, 10:07 AM] +91 98212 37947: Reminder 2
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Qw/RSP/27.09.2015
With new rules by government Of maharashtra for co op. Societies, is it necessary to start election process six months before the end of the present MC tenure ?
Is it applicable to small ( 18 ) societies ?
Ans by CA Ramesh Prabhu
It is compulsory from 14.2.2013 to get the election to office bearers, committee and fill up the casual vacancies by an officer appointed by state coop election authority.
It is the duty of the committee to inform the registrar of coop societies 6 months prior to the expiry of term the committee to conduct election by submitting E-2 form about the number of committee members to be elected and E'-3 Form about the voter list
You need to adopt new bye laws whether or not you take action against these brothers.
After adopting new bye laws all the effects of new bye laws will happen that increase in MC capacity.
There is also a procedure to follow before declaring any one inactive under new bye laws. You have to follow the procedure like issuing notices to them etc.
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
Strictly speaking it is illegal.
No case law on the topic to the best of my knowledge.
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QW/2/KHC/25.09.2015
If AGM not completed before 30th September then can
1. Society get permission from Registrar for exemption and take time.
2. Society on its own decide date for next AGM
3.. What recourse do the members have in such a case.
4. Can the office bearers be held responsible for the delay.
5. What action can be taken by the members against the committee or the committee members.
Ans Veeraiah Gupta
AGM held after 30 Sept without informing the Registrar is illegal. MCS ACT does not provide for post facto approval. Next AGM should be held after due submission of voters list and request the Registrar to appoint election officer to conduct election.
Undoubtedly the Office Bearers are at fault and liable for punishment under the Act. But complaining against them
May make things more complicated.
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw /RSP/28.09.2015
Our Society hv not submitted financial accounts for last 2 years. Several time we hv ask them to conduct the AGM, but no response. What to do? Saiswami CHSL, Thakurli.
Ans by CA Ramesh Prabhu
You have to file a complaint to registrar. After 15 days file an RTI Demanding status of your complaint and action taken report. You will get necessary solutions
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Qw RSP/ 28.09.2015
As discussed please find the details
One flat owner complained about falling off ceiling plaster from the beam which had spread to other part of the ceiling. He has mentioned that as per clause 160 of bye law the cost of repairs to this has to be borne by the society.
Kindly let us know the legal aspects of this complaint and if the society has to bear the charges of repairs inside the flat. Conveyance deed not done to the society so far.
Please respond on above query...
Ans by CA Ramesh Prabhu
As per Bye-law 160, ceiling and roof has to be repaired by society which means outside the flat and not inside the flat. If society decides to do all ceilings at the time of major repairs ok. But cannot decide for one member ceiling inside.
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Q2/KC/29/09-2015
This query is for amenities plot...
Does the Builder have the right to keep the amenities plot on his name even after the society is formed.Does the revenue generated from the amenites plot -ie : given to hospital on rent beong to only the builder or the society has a right over it?
Answer by Vimal Jain
Any constructed portion, which has not been incorporated into FSI & easily accessible through a common passage for all members, , belongs to the society. Developer couldn't keep such area under his ownership or could let the same area on rent basis to anybody.
As per the deemed conveyance society become the owner of the whole land area.
If you haven't got deemed conveyance, please get it for society interest.
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Q2/KC/29/09-2015
This query is for amenities plot...
Does the Builder have the right to keep the amenities plot on his name even after the society is formed.Does the revenue generated from the amenites plot -ie : given to hospital on rent beong to only the builder or the society has a right over it?
Answer by Vimal Jain
Any constructed portion, which has not been incorporated into FSI & easily accessible through a common passage for all members, , belongs to the society. Developer couldn't keep such area under his ownership or could let the same area on rent basis to anybody.
As per the deemed conveyance society become the owner of the whole land area.
If you haven't got deemed conveyance, please get it for society interest.
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QW/RSP/29.09.2015
If in case any of the office bearers resigns or falls out on compassionate grounds can any body from within the managing commitee take over for ashort period ie one year left for fresh election.
Ans by CA.RAMESH PRABHU
If any casual vacancy arises or any changes in the designation of office bearers even for a short perod need to be done through the election authority only as per amendment done in MCS act, 1960
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Qw/RSP/29.08.2015
Does MHADA conducts a structural audit of cessed buildings in city.
Ans by CA.RAMESH PRABHU
Yes
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Qw/RSP/30.9.2015
Dear Ramesh prabhu sir, there is no change in our committee members since last almost 6 years, now the past Secretary is keeping both the post, post of chairman and Secretary, how can it be possible, what the by laws says
Ans by CA Ramesh Prabhu
As per MCS act?1960, election has to be held once in five years, Two posts cannot be given to one committee member
So, your are advised to file a complaint to deputy registrar who shall appoint an authorised officer to manage the affairs of the society till election is held and handover the management to newly elected committee
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Qw/RSP/30.9.2015
If the AGM not completed b4 30th Sep, is it penalised to Society or Committee members??
Question from one of the committee member
Ans by CA Ramesh Prabhu
If the AGM is not held before 30th September, the society need to inform the registrar who shall appoint an authorised officer to conduct the AGM and fees of officer need to be paid by society. If members complain and wants committee to be penalised, Rs.5000 penalty may be levied , committee can be disqualified for five years from contesting elections and dismiss the committee also.
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Qw^RSP/01.10.2015
Dear prakashji can the 3rd co owner on the basis of a simple letter of consent given by the 1 st co owner ( staying abroad) vote in the MC elections without becoming an associate member. Form 5 not given Rs 100 not remitted. In short he has not applied for associate membership. Ramesh Prabhuji had said NO but I had not mentioned being a co owner his name is mentioned on the share certificate.
Ans by CA Ramesh Prabhu
Pls note that once the name appears in the share certificate as second or third shareholders along with first share holder, all 2nd, 3rd share holders are considered as associate members whether they have filled the form or not or whether they have paid entrance fees of Rs.100/- or not. In such cases, to attend AGM or general meeting and vote by such associate member no consent from first member is also required
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Qw.RSP/01.10.2015
Good Morning: can a Model Bye law as available in book form be modified by insertion / elaboration of clauses ?
Ans by CA Ramesh Prabhu
Yes. You may change the clauses of new model bye-laws by stating provisions in new model bye-laws, new provision the society wants to add, replace or delete and reasons and justification for the same.
In the normal couse, registrar would not accept any changes beyond model bye-laws as it is approved by commissioner and beyond provisions of Act, Rules and GR, circulars issued from time to time. Before rejecting any amendment a hearing will be conducted and the society should present the case properly to get the approval from registrar.
If registrar rejects, an appeal can be filed before Divisional joint registrar y/s 152 of MCS act and
If joint registrar rejects appeal, a revision of an appeal before Divisional he joint registrar can be filed before Hon'ble coop minister.
If rejected by minister, a writ can be filed before Hon'ble High court against the minister order.
Then you can also move before Hon'ble supreme Court by filing a special leave petition against High court order, if you are convinced that amendment I the bye-laws are legitimate and model bye-laws cannot be Imposed on the societies. As the heading itself speaks it is a model or guidelines to societies given while preparing new bye-laws
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/01.10.2015
Gm
My soc.failed to take AGM
No audit last 3 years
Today I am writing to dy.reg
U/s 75(5)for disqualification,
Is it d correct process?
Ans by CA Ramesh Prabhu
Yes
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Qw/RSP/01.10.2015
What if CA audited any CHS for consictive 3 years?
Ans by CA Ramesh Prabhu
As per section 81 of MCS act , effective from 14.2.2013, the panel auditors , can audit consecutive for 3 yrs
Even, if Bye-law provides two years, the same auditor can audit for 3 yrs as the MCS act supersedes bye-laws. As per supreme Court, bye law does not have force of law
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Qw^RSP/01.10.2015
Dear prakashji can the 3rd co owner on the basis of a simple letter of consent given by the 1 st co owner ( staying abroad) vote in the MC elections without becoming an associate member. Form 5 not given Rs 100 not remitted. In short he has not applied for associate membership. Ramesh Prabhuji had said NO but I had not mentioned being a co owner his name is mentioned on the share certificate.
Ans by CA Ramesh Prabhu
Pls note that once the name appears in the share certificate as second or third shareholders along with first share holder, all 2nd, 3rd share holders are considered as associate members whether they have filled the form or not or whether they have paid entrance fees of Rs.100/- or not. In such cases, to attend AGM or general meeting and vote by such associate member no consent from first member is also required
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Qw.RSP/01.10.2015
Good Morning: can a Model Bye law as available in book form be modified by insertion / elaboration of clauses ?
Ans by CA Ramesh Prabhu
Yes. You may change the clauses of new model bye-laws by stating provisions in new model bye-laws, new provision the society wants to add, replace or delete and reasons and justification for the same.
In the normal couse, registrar would not accept any changes beyond model bye-laws as it is approved by commissioner and beyond provisions of Act, Rules and GR, circulars issued from time to time. Before rejecting any amendment a hearing will be conducted and the society should present the case properly to get the approval from registrar.
If registrar rejects, an appeal can be filed before Divisional joint registrar y/s 152 of MCS act and
If joint registrar rejects appeal, a revision of an appeal before Divisional he joint registrar can be filed before Hon'ble coop minister.
If rejected by minister, a writ can be filed before Hon'ble High court against the minister order.
Then you can also move before Hon'ble supreme Court by filing a special leave petition against High court order, if you are convinced that amendment I the bye-laws are legitimate and model bye-laws cannot be Imposed on the societies. As the heading itself speaks it is a model or guidelines to societies given while preparing new bye-laws
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/01.10.2015
My soc.failed to take AGM
No audit last 3 years
Today I am writing to dy.reg
U/s 75(5)for disqualification,
Is it d correct process?
Ans by CA Ramesh Prabhu
Yes
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Qw/RSP/01.10.2015
What if CA audited any CHS for consictive 3 years?
Ans by CA Ramesh Prabhu
As per section 81 of MCS act , effective from 14.2.2013, the panel auditors , can audit consecutive for 3 yrs
Even, if Bye-law provides two years, the same auditor can audit for 3 yrs as the MCS act supersedes bye-laws. As per supreme Court, bye law does not have force of law
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Qw187/RSP/08.09.2015
IS IT COMPULSORILY TO ADOPT NEW BYE-LAWS. IF NO, CAN we follow previous bye laws?
Ans by CA. RAMESH PRABHU
Adoption of new Bye-law no compulsory but changes in the Act and Rules have overriding effect in the old bye-laws at nearly 150 places.
All changes in the model bye-laws are due to changes in the MCS act and Rules.
Still you can continue wirh old bye-laws but changes in the MCS act has affected nearly @150 places and will be difficult every time to follow the act and bye-laws. As provision in act and Rules shall over ride the provisions of bye laws. Therefore it is very much recommended to go for adoption of new bye-laws
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Mr Prabhu Sir
Can a society by passing a resolution in the AGM change the by-laws and reduce the notice period given for the AGM to 10 days (as per the MC Act it is 14 days)
Is it legal?
What action should the minority members take?
Answer by Vimal Jain
As per The MCS Act it is compulsory for M.C.to circulate AGM Agenda copy before clear 14 days of the AGM date.
General Body can't pass any resolution which over ruled the MCS Act in any matter.
If the are trying to do so, please file complaint in this regard at the office of your local Deputy Registrar.
Even one Member is enough to file complaint.
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Can a society stop falt owners from renting /lease to bachelors in the societies after approving it in the AGM....
or marital status of a person cannot be a reason for not allowing him to take a flat on rent in the society. ?
Answer by Vimal Jain.
Society can't deny to let flat owner to give his flat/shops on rental basis on Religion/Cast/Gender/Married/Unmarried/vegetarian/Non vegetarian basis.
It is the duty of flat/shop owner to make registered agreement, police verification, Nominal Membership Application and he has handover the same documents to the M.C. before giving physical possession of his flat/shop.
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QW/RSP/29.09.2015
If in case any of the office bearers resigns or falls out on compassionate grounds can any body from within the managing commitee take over for ashort period ie one year left for fresh election.
Ans by CA.RAMESH PRABHU
If any casual vacancy arises or any changes in the designation of office bearers even for a short perod need to be done through the election authority only as per amendment done in MCS act, 1960
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What is the recourse available
if it is denied by MC. Renting out to bachelors
Answer by Vimal
File complaint at concerned Deputy Registrar of Co operative society.
He will direct M.C.to let flats on Rent Basis to the Bachelor.
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Qw/RSP/03.10.2015
Dear sir
As our committee has 1 years left in his 5 years tenure, than also we have to adopt new bye laws,
If we accepting new bye laws we have to make new election as per law?
Ans by CA Ramesh Prabhu
Since the term of committee is five years, you will continue till the expiry of the term. By adopting new bye laws, you need not conduct elections before the expiry of the full term of 5 years. New Bye-law has to be adopted as there are many changes in the coop act, rules and election procedure as per Mah coop societies (election to commitee) Rules, 2014
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
Strictly speaking it is illegal.
No case law on the topic to the best of my knowledge.
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Sirji, whether a person who is admitted as a Member on d basis of Nomination is eligible to contest Socy. Election. 2) Whether such member can nominate someone. 3) A member has 3 flats in his name. But in one flat, his wife has jointly purchased d flat. Whether this woman and also her husband contest in d election. Wife from the flat where she is going owner nj thus Associate member. Whether wife has to obtain NOC from her husband to contest election.
Joint owner not "going owner". Pls correct it.
Answer by Vimal Jain
1. Nominee is neither have any right to attend any G.B.Meeting nor he/she can contest M.C.election.
2.Nominee is a mere legal heir of the property after the sad demise of the original owner of the said property.
3.Wife can also contest the M.C.election as a joint owner of the said property with prior consent of the Husband whose name is reflecting as 1st owner of the property on the Share Certificate.
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We are a newly registered Society under builder non cooperation route. We are 253 members and today is our First Constituted General Body Meeting. Please advise what rule applies while constituting the Provisional Committee. What should be the strength of this Privisional Committee. ? Is the 10/2/3 strength to be observed now or this can be followed when we conduct Elections after one year of Provisional Committee management.
Answer by Vimal Jain
MCS Act's Rules &Regulations are applicable, same to both, Provisional committee and elected committee.
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QW/3/KC/27.09.2015
The query is for amalgamation of flats should both flats be in same name?
What are the modalities pertaining to the same?
Please suggest some case laws on the said topic to oppose amalgamation.
Ans Veeraiah Gupta
Reply for query relating to amalgamation of flats:
Amalgamation of flats is being done by the builders un officially and without BMC clearance.
amalgamation of two flats may be regarded as structural alteration.
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was-After death of member, d Nominee is admitted as Member on d basis of the Nomination made by d deceased Member. Whether such member can contest election. Legally this person does not have stake in the property. Legal heir certificate is yet to be submitted to d Socy. After being admitted as Member, whether such person who was d Nominee of the deceased Member make nomination in favor of another person?
Answer by Vimal Jain
1.Before transferring the Share Certificate it was duty of the M.C.to get Legal Heir certificate from the nominee
2.Now nominee has become the member of the society, so he can contest the M.C.election but first let him submit his Legal Heir Certificate or else any litigation issue may be raised by original owner's other Sons, Daughters & Spouse or don't allow him.
3.As M.C.has accepted Nominee as owner of the said property cum member of the society, he has right to make nomination if he succeeds to submit his legal heir certificate
4.If nominee fails to submit his Legal Heir Certificate within reasonable period, pass resolution to reverse original decision of transferring share certificate .
5.Minimum six months gap is required to pass above said new resolution to nullify 1st resolution of his membership.
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A person purchased a resale flat at Kamothe after registration of society. Parkings were allotted by the builder. Is the builder still authorised to allot unallotted parking slot directly to the second purchaser?
Regards
Lt Dinesh Singh.
Answer by Vimal Jain
1.Developer don't have right to allot car parking space at any stage.
Neither at the time of construction nor after completion of building.
2.Only M.C.has right in this regard.
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In continuation to above parking query; I wish to know if a 25 year old Society with pending land conveyance can allot or rather ear mark parking places fir it's Members?
Answer by Vimal Jain
1.With the permission of General Body and after passing Resolution for the same effect, M.C.can allot car parking space
accordingly.
2. There is no connection between pending conveyance & parking allotment.
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Qw.RSP/03.10.2015
Prabhuji, if the Assoc member has stake in the property, his name is second in d share cert, is he still reqd to fill up form 10-A, n submit d NOC frm d first named member.
Ans by CA Ramesh Prabhu
Yes. Noc from first member required to contest the election by the associate member in firm no.10-A is required to be given.
Who can call Special/Extra ordinary General Body meeting? Chairman or Secretory
Who can call Special/Extra ordinary General Body meeting? Chairman or Secretory.
Answer by Vimal Jain
Either chairman, or majority of M.C.Members or 1/5 of General Body can call SGM.
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Dear sir if a flat is in a joint name of a father and daughter but 1st name is of daughterand she has become Nri can she surrender her right and the name can be transfered to father's name though the bank loan is also being paid by father & share certificate is also in joint name Pl guide with regards
Answer by Vimal Jain
After getting Bank's Loan Forclosure NOC, Daughter's consent & undertaking for indemnify society in this regard, M.C.can transfer Daughter's 50% share in the name of her father.
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In our society we have club house facility like swimming pool,Gym.,Squash court etc. Out of 268 flats few members are using.
Society have Banquet hall. My question is society is taking rent for using Banquet hall by members and for other facilities like Gym. Swimming pool, Squash court they are not charging any fees.Maintenance of such amenities is paid by all members. Only few members are using.
How far it is correct? Is their any law that members using these should pay and from that income maintenance of this amenities should be done
Answer by Vimal Jain
As per the MCS Act, every member has to pay maintenance charges for the common facilities/amenities available for the whole members in the area of the society.
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Is there any charges that can be levied or collected by society in sale/transfer of flat other than transfer premium. Dear sir could anyone clear this doubt
Answer by Vimal Jain
1 . Society can collect only Transferfees, Membership fees & Maintenance charges from the flat purchaser and nothing else.
2.If there is any balance due for the said flat, same has to be recovered from the old owner before transfering the flat in the name of the new owner in society record.
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After the election a new comm is elected and ask the old comm to handover the documents lying at society office in presence of the all the new comm members.
The old comm is not responding. Pls suggest wat actions can be taken.
Answer by Vimal Jain
Please don't accept any document randomly.
First let Old M.C.to prepare list of each & every document. Compare the list & actual document old M.C.is going to hand over to new M.C
Please keep copy of the list in possession of the new M.C for any future reference.
List of the documents should be acknowledged by both old & new M.C.Members.
If old M.C.is not ready to hand over all documents to new M.C. or ready to hand over without giving list of documents, please make complaint at concerned DR.
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Qw.RSP /05.10.2015
Dear Sir
If society wants to get deemed conveyance which has its own boundary on a common plot then in that case can society get individual deemed conveyance?
Ans by CA Ramesh Prabhu
Yes. It is advisable that you meet our legal team with prior appointment on 42551414/32 with documents like property cars, approved plan and copy of one agreement
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Is there any charges that can be levied or collected by society in sale/transfer of flat other than transfer premium. Dear sir could anyone clear this doubt
Answer by Vimal Jain
1 . Society can collect only Transferfees, Membership fees & Maintenance charges from the flat purchaser and nothing else.
2.If there is any balance due for the said flat, same has to be recovered from the old owner before transfering the flat in the name of the new owner in society record.
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Mr. Phadnis, please help me understand whether a member who has not completed 2 years of membership in co-op society is allowed to contest elections in society and can he be made treasurer of society?? If it has appened, then what should he do, as he was unaware of such law?
Answer by Vimal Jain
In case of CHS, from day one of becoming Member of the society,
Said member can contest M.C.election as well can be appointed treasure of the society.
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If a person buy a flat under construction with 100% down payment in redevelopment building in February 2010. After 3 slap builder stop construction since April 2010. As per unregistered agreement building is supposed to complete in 2013. At present he is paying rent regularly to old. Tenant . but not giving proper response to New buyer. What is the remedy available with new tenant now
Answer by Vimal Jain
1.If developer is not replying properly, flat buyer can knock the door of consumer forum.
2.In his agreement there must be a clause regarding tentative possession date.
He should high light this clause in consumer forum . Thus he could get some compensation for delayed possession.
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Dear Vimal Jain. Whether trf of 50% by daughter to father should be through registered Gift Deed or any other Instrument.
Answer by Vimal Jain.
Sorry for replying little late.
1.Daughter can transfer her 50% share in the name of her father by executing Registered Gift Deed with appropriate payment of Stamp Duty accordingly.
2.No other documents require for transfering her share.
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Q: Are sweepers and watchmen employees of Society?
A:If they are engaged through a contractor for which money is paid to the Contractor then they are not employees of the Society; if they are paid salary directly by the Society they would be regarded as Society's employees.
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Qw/RSP/ 01.10.2015
Can a Society collect say ₹ 200 per month for celebration of cultural festivals in monthly invoice ?
Ans by CA Ramesh Prabhu
Any contribution for common get together and social functions by taking majority decision can be collected from members.
I would suggest, while fixing service charges we estimate expenses like electricity; security, salaries of manager; house keeping etc, you have to estimate yearly budget for social functions and collect it as a part of service charges without a separate head. The controversy like I m not attending functions and should not be collected from our bill etc gets reduced. The expenses for social functions can be approved by General. Body.
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Qw/RSP/07.10.2015
Dear sirs, we don't have the conveyance in the name of society. Without that can GB resolve to construct a badminton court and a ramp parking in the society.
Ans by CA Ramesh Prabhu
Yes. Once the society is registered, all the common areas are to be maintained and managed by registered cooperative Housing society. Society need not wait for conveyance to grant any facilities to its members
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Qw.Rsp/07.10.2015
can u guide us reg auditor too. v have appointed auditor who is not empaneld in the last Agm held. v have written abt this to registrar with reminder but no response.
Ans by CA Ramesh Prabhu
You have done your job of informing registrar. Next time appoint a panel auditors.
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Vasant Heble MSWA: Builder would like to know about the formation of co-operative society situated at kalina. How to apply & whom to approach as federation office is not providing proper information to the query
Vasant Heble MSWA: Dear Sir query received from one of the Kalina member
Pls reply on same
Answer by Vimal Jain
Please file an application under RTI, asking required details at the office of the local or concerned Deputy Registrar of Co operative society as well as at the office of the Federation of Co operative society, Mumbai.
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Vasant Heble MSWA: Builder would like to know about the formation of co-operative society situated at kalina. How to apply & whom to approach as federation office is not providing proper information to the query
Dear Sir query received from one of the Kalina member
Pls reply on same
Answer by Vimal Jain
Please file an application under RTI, asking required details at the office of the local or concerned Deputy Registrar of Co operative society as well as at the office of the Federation of Co operative society, Mumbai.
Dear Sir,
we are aware of the RTI process if possible please let us the complete information & documents require & procedure about formation of Co-op HSG SOC.
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Qw/RSP/8.10.2015
Dear Sir,
I would like to know process of forming housing society and register it, where total number of members is 6(six).
I was told by someone that to form a housing society, minimum number of members should be 12. Is it so ?
What is other alternative ? Kindly guide me
Thanks - Dilip N Shinde
Ans: by CA Ramesh Prabhu .
Minimum members required to form the co op hsg society is 10 or 60% of flats sold in the building whichever is more.
We can get your society registered by getting special order issued by coop minister under section 157 of the Maharashtra cooperative societies Act, 1960.
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Qw/RSP^15.10.2015
Kindly ask in MSWA Group about
1. How much maximum amount society can levy for entry to new occupant of resale flat for providing society membership ?
Ans by CA. RAMESH PRABHU :
As per the government notification dated 9th August 2001 by the Govt of Maharashtra under section 79A of MCS act, coop hsg societies can charge transfer fees as may be decided by General body which shall be upto Rs. 25,000/-.
In other words, society can charge transfer fees not exceeding Rs.25000/- to transfer membership to new person who has purchased the flat on resale.
2. Can society charge for providing NOC for mortgage of resale flat ? If yes, maximum cost ?
Ans by CA Ramesh Prabhu :
No. Giving NOC for mortgage and other letters of residence etc are normal services to be given by the society. In case, society need to take a legal opinion before issuing g such NOC and by passing a resolution in the General body meeting such actual cost incurred may be recovered from such member as such legal opinion is taken execlusively to provide service to such members.
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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Qw/MG/19.10.2015
Dear CA. Manish Gadia Ji,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex.
Ans by CA Ramesh Prabhu
Sir,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex
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Qw/MG/19.10.2015
CA.Manishji: thanks for sharing info on service tax. Can you pls inform when Service tax is payable by society? I.e within what timeframe?
Sir, whether service tax is payable within 7 days of receipt of maintenance charge or within 7 days from the month of receipt of charge. Request if this can be clarified.
Ans by CA Manish Gadia
In case of society Service Tax shall be payable monthly by 6 of next month except in case of March month on 31st March.
Since point of taxation is the date of bill, whether the members pay the amount or not, the service tax included in the bill in a particular month should be deposited by 6th of the following month. Thus if some members do not pay maintenance charges, still society will be liable to pay service tax based on the billing date on accrual basis.
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Qw/RSP/ 18.10.2015
Hi regarding filing 101 against defaulters is there any limits or outstanding amount if exceed then only we can file against 101?
Ans by CA Ramesh Prabhu
No minimum or maximum amount. The managing committee may decide any amount and file cases of recovery u/s 101
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Qw/RSP / 19.10.2015
Dear Ramesh Prabhu Sir, under the byelaws a resident who wish to repair and renovate the flat needs the permission of the society to do so. Given the applicant is a defaulter, can the MC reject such application with clearly specifying the reason of default in payments. My reading is the byelaws doesn't explicitly define this aspect.
Ans by CA Ramesh Prabhu
The Govt of Maharashtra has issued an order dated 02.11.2002, advising registrar not to entertain any complaints of defaulters.
The said notification is uploaded on our website on ;
Www.mswahousing.org
In your case, member has money to renovate but does not want to contribute outgoings of society can a strong reasons to state that application shall be considered only after clearing the society dues.
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Qw: /RSP/19.10.2015
Hi can Treasurer act as an accountant?
Ans by CA Ramesh Prabhu
Section 64 of Maharashtra cooperative Societies Act, 1960 provides for distribution of funds of the society. Proviso to section 64 is as under:
"Provided further that a member may be paid remuneration on such scale as may be laid down by the bye-laws, for any services rendered by him to the society "
Pls note, if treasurer is the responsible person to maintain accounts. He can do it himself or by paid accountant. The accountant will be doing the accounts as directed by the treasurer. If the treasurer is authorised to write accounts on honorary basis. He can also write accounts for which society by passing resolution in the managing committee or General body can pay to the treasurer. Before becoming treasurer , he is a member of the society. The law provides for compensating to the member for any additional work done by them which otherwise would have been paid to an outsider.
Audit cannot be done by any commitee member. MCS act or Rules do not prohibit the member of the society to do the audit, if he is in the panel of auditors.
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Qw./RSP/ 19.10.2015
Hello.Good evening Sir. If a member of the society expired,nominee created by him/her can become the member of the society by obtaining the membership by way of Nomination and are known as trustee.This rule is applicable even if the nomination is created by the deseased member in the name of his/her blood relationship such as wife,son or daughter.And if such nominee wants to have the absolute ownership of the said flat for having it disposed off,they are also bound to have succession certificate or letter of administrator from the court of law to prove their eligibility to do so.Please advise.
Ans by CA Ramesh Prabhu
I agree with your views that nominees are only trustees of property till legal heirs are brought on record whether the nominee is blood relative or not.
The legal heirs can be brought on record in different ways:
(1) If there is WILL get the probate where applicable.
(2) Succession certificate from testimantory dept , if there is movable only or it includes immovable properties
(3) Letter of administration from testimantory dept for exclusively immovable property to manage and own
(4) Heirs hip certificate from the district court and registration of release deed in favour of the legal in white name it need to be transferred. Such release deed need to be compulsorily duly registered by paying applicable Stamp duty
(5) Executing gift deed duly stamped and registered in favour of legal heir
(6) An affidavit Cumbria indemnity Bond by all legal heirs in whose name property to be transferred , issue of public notice by society advocate inviting claims and objection as per registered bye-laws of society by taking no claim certificate from advocate and thereafter registering the release deed by paying applicable Stamp duty and registration of the same.
Merely by taking NOC from legal heirs by an affidavits without getting it registered will be a defective title and will invite litigation by legal heirs or property will not have free and marketable title
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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CA/Qw/RSP/ . 19.10.2015
Hi Good Morning I am C.A. and my query is w.e.f. 01/06/2015 service tax has been amended. Have this ammendments were effected on maintain charges received to Co-op Society. ? And how? Kindly revert.
Ans by CA Manish Gadia, sevice tax expert and faculty
There is no change in servicetax law on or after 1 st june 2015 impacting service Tax implications of societies. Servicetax rate is enhanced from 12.36% to 14%..
For Housing societies, if monthly maintenance charges excluding property tax is less than Rs.5000/- , service tax is not applicable
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Qw/MG/19.10.2015
Dear CA. Manish Gadia Ji,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex.
Ans by CA Ramesh Prabhu
Sir,
In case of Commercial Complex exemption of Rs. 5,000 is not available. Its only for residential complex
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Qw/MG/19.10.2015
CA.Manishji: thanks for sharing info on service tax. Can you pls inform when Service tax is payable by society? I.e within what timeframe?
Sir, whether service tax is payable within 7 days of receipt of maintenance charge or within 7 days from the month of receipt of charge. Request if this can be clarified.
Ans by CA Manish Gadia
In case of society Service Tax shall be payable monthly by 6 of next month except in case of March month on 31st March.
Since point of taxation is the date of bill, whether the members pay the amount or not, the service tax included in the bill in a particular month should be deposited by 6th of the following month. Thus if some members do not pay maintenance charges, still society will be liable to pay service tax based on the billing date on accrual basis.
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Qw/RSP/19.10.2015
Sir good evening.kindly guide that after cirulating AGM minutes to the society member,if any objection ìs to be taken regarding any point written in minutes... what is the time limit to submit letter to secretary after receiving minutes.dr r d singh thane.
Ans by CA Ramesh Prabhu
Within 15 days of circulation of draft minutes any members can give suggestion and objections as per new 2014 Bye-law no. 108 and old bye-laws no.109
Thereafter, the managing committee can consider such objection and modify minutes or reject such suggestion given by the members.
If any member is aggrieved of not including his suggesteions/ objections or challenging any resolutions or minutes can be done only in Cooperative court u/s 91 of Maharashtra cooperative Societies Act, 1960
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Qw^RSP/21.10.15
Hi chairman of our society had two flats in the same society one of Flat he given on Rent but when the management committee ask him about that he always says that they are his relatives and or guest in our society we charge 5,000 for those who are given their flats on rental basis is there any provision to dealt with this please share.
Ans by CA Ramesh Prabhu
You have to take an indemnity Bond from the members when they keep any person on caretaker stating the relationship and how the are exited from charging g dues applicable to other members.
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Qw/RSP/23.10.2015
Sir
In this answer of yours point
No. 4 is not clearly understood by me.
What is legal Heirs hip certificate
Would appreciate a clarification please.
Ans by CA. Ramesh Prabhu
In a coop hsg societies, on the demise of any members, such deceased members shares are transferred to legal heirs by taking affidavit and indeminity bonds from the legal heirs and completing formalities given in the bye -laws.
If there is a WILL it gets probated or succession certificate or letter of administration is taken in metropolitian area.
However places other than metropolitian areas, the family members have to apply to Tashildar or district court on the demise of any person as to who are the legal heirs to inherit the property The court after receiving the petition from any person declaring him or her along with others to declare them as legal heirs of the deceased person. Such order is known S legal heirs hip certificate
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Qw/RsP/ 24.10.2015
Question to Mr RAMESH PRABHU
Sir
U have mentioned before a member stands disqualified if he is inactive
Can any member be actually declared inactive before April 2018.
5 AGMs wef 14/2/13 will be
2013,14,15,16,17. But the end of the financial year 31st March 2018 we have to inform within one month
Ans by CA Ramesh Prabhu
There are 3 conditions to declare a member as non active.
The condition of attending General body is one of the conditions which becomes operative as you say only after 2018.
Regarding irregular payment can be another reason and sale of flat or associate member is not having interest in the property etc can be the reason which becomes effective on the the date of approval of new bye-laws by the registrar.
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We want your advice on the following mentioned points.
And for this ur advice is necessary.
1. IN our 19th AGM we had 9 points of agenda.
But without agenda GENERAL BODY forced chairman to resign.
Whether it is VALID or NOT.
Ans by CA Ramesh Prabhu
No person , managing cimmittee or General body can force any elected maanaging committee / office bearers to resign. It is the power vested with Registrar of the ward only after giving sufficient time and opportunities to put up his/her say mat remove the committee member / office bearer under section 77A of the MCS Act. So the Act of general body to force the chairman to resign is illegal and invalid. If he has resigned on such force, he can call back or withdraw his resignation by addressing letter to all members / committee and registrar
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2. MR.SURVE resigned from chairmanship IN AGM.
According to our understanding MR.SURVE is continued to be a management committee member.
Subsequently GENERAL BODY appointed Mr.Vichare in replacement of Mr. SURVE as a new Management committee member in AGM...whether it is VALID OR NOT?
Ans by CA Ramesh Prabhu
The casual vacancy arises due to death, resignation etc can be filled only by conducting by election in the society by duly appointed election officer. Even changes in the office bearers also need to be done by the duly appointed election officer. Therefore, appoinyment/ co-option or election of another committee member in the general body without inviting the returning officer appointed by the State coop election authority or registrar is illegal and invalid. Pls inform this to the registrar who shall take necessary hearings in such a matter and give his verdict or take necessary action to rectify such illegal actions of the general body.
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3.One of our senior management committee member called new committee member(Mr.Vichare) in one of Management committee meeting as an INVITEE MEMBER..
Does that new committee member (Mr.Vichare) has a voting right or not?
Ans: The MCS Act, 1960 provides for co-option of two expert directors who are members of the society or not to guide and give professional advice to the committee. Thus it is a valid to coopt such a senior member of the society as expert director. He does not have voting rights in the matter of election of the office bearers and also cannot become office bearers. He has a voting rights on all other regular resolutions or decision to be taken when the matter is put to vote like any other committee members
We have adopted modern bye-laws.
Ans by CA Ramesh Prabhu
Whether u have adopted the new model bye-laws or not, the answers given above are as per the Amended MCS act, 1960 and MCS Rules 1961.
------------
Regards,
Question asked by Mr. S.P.Adhatrao, from borivali area..
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Qw/RSP/ 01.11.2015
If there is a change of members in managing committee, is it required to conduct election ? If not what procedure to be followed.
Ans by CA Ramesh Prabhu
Yes. Whenever any one committee members to be elected due to casual or entire committee to elected due to resignation of old committee or on account of expiry of the terms or even there is interchange of office bearers or election to the office bearers need to be done by the duly appointed election officer by the registrar.
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Querry- in case of co op hsg society while filing itr 5 do we need to give details about audit under mcs act.....? If we don't then how due for filing of return Will be 30 Sept.....?
Ans by CA Ramesh Prabhu
Yes. U have to state that accounts are audited under another Act and then only the due date for filing return of income shall be 30th September
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Qw/RSP/4.11.2015
In new construction one flat buyer have purchased podium parking place as terrace. Other have made outside his flat big .shoe rack which is disturbing other flat purchaser..many flat owner have come to stay .still in hands of builder no o.c. yet.......sir pl guide..kapur..
Ans by CA Ramesh Prabhu
Encroachment of common areas by residents for shoe racks , using car parking for other uses and handing over and occupying the flats without OC is very much common in this country. Every body does one or the other illegal activities in chs or in the building industry. In case, u r aggrieved, the best way is to complain to building proposal department of all Encroachments and illegal use of podium parking. U may take help of RTI and right to public services act, 2015.
Regarding not proving oc , u have to move against the builder before the consumer court.
There is a legal remedies and one need to pursue and constantly be after such illegal activities to get the justice. If u think, every one should behave in a legal way and govt should so motto stop such activities, such things as on today in India not available.
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Qw/RSP/4.11.2015
Is it not enough just to Inform the registrar along with copies of resolution. Election process is for election of mc members. After this mc elects the office bearers.
Ans by CA Ramesh Prabhu
Election to Managing committee , office bearers, filling of casual vacancies at any time has to be done in all types of societies as per Maharashtra cooperative societies (Election to commitee) Rules, 2014. All the above election whether there is a unanimous or unopposed need to be done in front of the election officer appointed by the office of the Maharashtra state cooperative election Authority (SCEA ).
The Deputy registrar of the respective ward has been designated and given additional responsibility of ward election Authority.
Therefore, whenever u have election to committee or filling casual vacancy or changing in the office bearers, u have to communicate to the rehlgistrsr who shall after taking approval from state coop election authority appoint a returning officer in whose presence the said election shall be done.
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For conveyance index 2 of existing members enough or is it a must to have that of the original members especially since soceties are more than 15 yrs old and cannot trace orininal members ramaswamy Chandivali
Ans by CA Ramesh Prabhu
As per Govt resolution dated 12.04.2014, for conveyance or deemed conveyance index 2 or Stamp duty paid proof of the present owners. There is no need to submit the chain of documents of earlier owners.
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Qw/RSP /04.112015
My one of the friend died five months back.he had taken loan from the bank against morgage of his flate.two other friends are guarenteer. Now how bank will recover loan amont given to my friend who died five months back??? Pls guide.......krishnakant Raval
Ans by CA Ramesh Prabhu
The bank shall issue notice to the legal heirs of the borrower. If they repay the loan, the mortgage will be released otherwise bank shall auction the property and recover their dies. If the sale of property realises lesser than the loan amount , the guarantors will have to make it good otherwise, guarantors need not worry. They have to cooperate with the bank to realise the dues by selling the mortgaged property
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Sir. Our soc is at Andheri(w) one member joined in 2006 he is Paranoid schizophrenia. Bit not medicaly detected. He is writing letters since 2007 to all the soc authorities n police. Due to him we had admin for 5 years. N now mg.comm. but every one is tired of him due to repeated complaints and calls by police. Soc condition is becoming bad to worst. Guide us what to do. He is not paying dues amount has gone to 5.5 L. Our adive some resonable legal adviser. Pls help.
Ans by CA Ramesh Prabhu
In every society we have one or two members who create issues which increases the importance of the committee. It also gives an opportunities to the committee to either tolerate or ignore or retaliate.
My sincere advice would be to take the legal recourse to recover dues u/s 101 of MCS Act. U need to appoint a manager whom instruction and advice to be given to replies against all complaints made. U should not be attached to any positions. U need to note that u have nothing to lose other than the members of the committee. No one of the committee should retaliate or give much importance such complaints and the law should take its own couse. The day u get attached personally to such issues, u loose u r peace of mind and the disturbing member gets his work done. Any way, if u need a legal help, pls do call on 42551414/32 to get MSWA legal team expert advice.
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Sir. Our soc is at Andheri(w) one member joined in 2006 he is Paranoid schizophrenia. Bit not medicaly detected. He is writing letters since 2007 to all the soc authorities n police. Due to him we had admin for 5 years. N now mg.comm. but every one is tired of him due to repeated complaints and calls by police. Soc condition is becoming bad to worst. Guide us what to do. He is not paying dues amount has gone to 5.5 L. Our adive some resonable legal adviser. Pls help.
Answer by Vimal Jain
1. First please check all complaints whether they are genuine or bogus.
2.As per my best knowledge Government Authorities would never entertain bogus complaint.
3.If complaints are genuine, please sort out the same asap to avoid any future litigation excepet few chances.
4.If you find complaints are bogus then please file a Harassment case with proofs against the complainant in the Metropolitan Court.
5.This step would surely rein him permanently to file any further bogus complaint.
👍👍👍👍
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Qw/RSP/5.11.2015
In a re-development agreement of 27 months ,but crosses by 3 more months till possesion.is it not the builder liable tco pay the members compensation for the last three months.is the members justified by their claim for extra 3 months which the builder has delayed while giving poscession.Pl clarification required.
Ans by CA Ramesh Prabhu
It is the duty and obligation of the builder to give rent upto the date of possession. Therefore, the society should demand three months rent otherwise file a case to recover three months rent in the consumer court
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QW/01/PS/ 22.09.2015.
Please let me know the WP or case no, in which Honourable Bombay High Court has ordered for executing PAAA compulsory before demolition of the building in process of the Redevelopment.
Prashant Sanghavi
Ans by CA Ramesh Prabhu
Any IOD issued after 23
06.2014, has a condition that no comment certificate shall be issued, unless permanent alternative accommodation agreements are executed with existing flat owners on case of CHS or tenants under tenanted buildings which are demolished due to dilapidated conditions or going for redevelopment under different schemes of redevelopment like under DCR 33 (7) cess buildings or under 33 (9) cluster development or u/s 33 (5) MHADA redevelopment or by loading TDR under DCR 34 for private chs .
The Honourable High Court in writ petition (L) No.1135 of 2014 has ruled in para 9 (p) that CC to be issued unless PAAA with every member is filed with Corportion.- refer page 13 and 14 of the judgment passed by a division bench Justice Shri. Anoop V Mohta and Justice Shri. A.A.Sayed on 23rd June 2014.
Case law is uploaded on www.mswahousing.org website. Pls visit and download.
Case filed by MCGM against state of Maharashtra, police commissioner and others when notice u/s 354 of MCGM is issued tenants / occupier are not sure about the builder and land owner providing houses in the redevelopment. So a policy guidelines in this case is given in detail at para no.9 of the judgment.
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