Maharashtra Co-op. Housing society bye laws and Mhada Mumbai cooperative

Answers for queries on matters of property and societies

I had been allotted a MHADA flat at Versova, Andheri (West). The occupants decided in August 2010 for the formation and the registration of the society and one of them was nominated as the Chief Promoter, with a few others to complete the paper work. I did not move into the flat as there was no water supply and, therefore, rented to a firm for a few months. I would like to know whether such an adhoc committee can impose non-occupancy charges on me for not occupying the flat and whether such a committee can ask me to pay the penalty or fine for renting the flat to the firm. The complex has covered parking slots. This committee has arbitrarily allotted the same as per their discretion without calling for the general body meeting.

 An adhoc committee has no such power to levy non-occupancy charges or impose the penalty for renting out the flat and to allot the covered parking slots as per the sweet will of the members of such a committee. These functions can be exercised only by a managing committee of a society, after it is duly registered. However since it is a MHADA flat, you may ascertain from the allotment letter, agreement for sale etc. by MHADA in your favour for the allotment of this flat, whether their permission will be necessary for letting out the flat.

A resident in our society, who died after making a will, bequeathing all his property to a trust, but some unknown gentleman came forward with a heirship certificate issued by the court with a request to transfer the flat in his name. The case is in the court and the trust, in whose favour a will has been left, has sent us the court order not to proceed with the documentation till further notice. The photo copy of the nomination submitted to the society is missing and it seems the earlier managing committee was hand in glove with the member. The unknown gentleman, who bought heirship certificate, is staying in the flat and using all the amenities. Can we collect maintenance from him and file a complaint against ex-managing committee for the loss of the office copy of nomination form.

 In a case where a person has left a will, a probate is required to be obtained after his death by the beneficiary and in these circumstance, any nomination made by the deceased, stands automatically cancelled. The matter is now in the court about the title to the flat in favour of the trust or the heirship certificate holder and till the final decision, the society should maintain the statusquo and should not transfer the flat and the share certificate in favour of any one.. As regards maintenance charges, the society may move an application in that court to seek instructions for collecting the maintenance charges from the party as may be ordered by the court. For the loss of nomination form from the records of the society, the matter may be brought to the notice of Dy. Registrar for necessary action as he may deem fit.

 

My late father Bapurao Ganpat Bhagat had two wives and a flat at Grant Road. He has two sons from his first wife and three sons from my step mother, out of them two have already expired. My step-mother has a made a registered will in favour of her grandson Ketan Kishore Bhagat. I would like to know whether on becoming an owner by way of nomination has a legal right to transfer the property at her will or is it necessary to consult her step-children.

 A nominee is merely a trustee or an agent on behalf of all the legal heirs of the deceased and the share certificate is transferred by the society in favour of the nominee on the basis of a valid nomination executed by the deceased. But in case other legal heirs raise any dispute against such transfer, society may insist for the succession certificate to transfer the flat and the share certificate. Since your father had made a nomination in favour of your step-mother, she cannot become the sole and exclusive owner because of this nomination and when she is not the owner, she cannot make a will in favour of her grandson and any such will, even if made, shall not be legally valid and enforceable.. In the circumstances of the case, succession certificate/heirship certificate will be required to be obtained from the court to claim the ownership of the flat.

 I booked a flat in Navi-Mumbai in 2010 and the completion date is around 2012. During the booking, builder charged me Rs.1.5 lakh on the ground that parking is compulsory and this amount has been added in the sale consideration without separately mentioning the same as parking charges. The agreement is already registered after paying the stamp duty. The builder has told me that he will give me a separate parking with flat number written on it. Since I will not be staying and after the society is formed, there may be some problem and hence I asked the builder for the refund of that Rs.1.5 lakh. But he has replied that as per the agreement, I have to pay the total amount. I have taken a loan from a Bank and my all original documents are with the bank. I want to know how I can get back my parking charges and whether the service tax has to be paid as builder is charging the same?

 As per latest judgment of the Hon’able Supreme Court of India, a builder is not entitled or empowered to allot or sell the parking slots/space and charge any amount for the same. Any agreement or a letter about the allotment of the parking space will not be binding on the society which will allot the parking slots to the members of the society, as per the bye-laws of the society. As regards the refund of Rs.1.5 lac, paid by you towards the parking charges, you may claim the same from the builder, if you have got satisfactory proof to establish that this amount was charged by the Builder as a matter of compulsion towards the parking but included in the total sale consideration. As per the Order of Hon’ble Bombay High Court, the service tax being collected by the builders will have to be deposited in the court, till the final decision on the applicability of the same.

 I own whole of the first floor in a residential society, which I have beem using as commercial after obtaining NOC from the society. I have taken a shop on (GF) on lease for 3 years. I want to have a separate entrance directly to the first floor by renovating the ceiling. The licensor has agreed for these changes. Whether I need any permission from the society or any other authority?

Firstly in a building of the society, constructed for the purpose of residential purposes, any floor or any portion thereof cannot be used for commercial purposes even with the NOC from the society. Similarly these renovations and connecting the first floor by a separate entrance cannot be undertaken without the prior permission of the society. In both the situation, the approval of the local authority i.e. Municipal Corporation shall also be necessary. If the land of the society is on lease-hold basis, such as the land from the Collector or CIDCO in Navi-Mumbai, the prior permission of the lessor about the change of the user will also be necessary. Hon’ble Bombay High Court has recently held that if any portion in a residential building is used after all the necessary approvals, electricity charges will be payable for such a portion at commercial rates.

 We have built monsoon shade in front of our shops and extended the shops by making a wooden box type structure in the front, which goes beyond the building line but now the society has objected to it and want us to remove the same otherwise they would report the matter to NMMC. My shade and the board is in no way affecting the look or obstructing any movement and when it is in the front of the building. , why the society should have any objection, as they should be more concerned with the interior part of the building.

 The objection of the society is justified and you cannot put up the shade and extend the shop by putting the wooden box type structure without having the prior permission not only from the society but from NMMC, which permits temporary shade only in the rainy season and such extensions cannot be a permanent one.

I stay in a residential building at Bhayander, which consists of 32 flats of 1 BHK and 32 flats of 2 BHK. The builder has provided two water inlets in 2 BHK flats from single pipe connected to the main tank, which is considered as two connections by one BHK flat owners and, therefore, two BHK flat owners are charged higher water charges, though the quantity of the water is the same for all the flats.

 According to model bye law No.69, the water charges are payable on the basis of total number and size of the inlets provided in each flat. It is difficult to assess that the consumption of the water will be the same. Moreover 2 BHK flat owners have the privilege and convenience of two water inlets in comparison to one water inlet in one BHK flats. Therefore, till the said bye-law is on books, two BHK flat owners may have to bear a little higher water charges in comparison to one BHK flat owners.

 In our society a flat was owned jointly by husband and wife. They had nominated their son as a nominee. Unfortunately, wife expired and the husband claims that he, being the co-owner, automatically steps into the shoes of his wife and the nominee can claim only on the death of both. The society has taken a stand that the husband does not become the owner automatically and 50% share of his wife shall go to their son, as the nominee. What is the legal position?

 The stand of the society is justified inasmuch as in case of death of a co-owner, the surviving owner does not become sole and absolute owner of the flat and when there is a nomination, the nominee shall be entitled for the share of the deceased. Therefore, the husband will be the owner of 50% of the share in the flat and the nominee, as a trustee and the agent on behalf of all the legal heirs, for the remaining 50% of the share but the nominee will not become the sole owner of that 50% share. If no other legal heir has been left by the deceased, the husband will be owner of 50% share along with 1/4th share as the legal heir of his wife and the son as the owner of the 1/4Th Share. However, if there is no objection from the husband, Society will transfer 50% share of the deceased in the name of the son, as the nominee.

I have just purchased a commercial premises in a building under SRA project redeveloped by a builder from the free sale quote of the builder. Though the construction has been completed in the year 2005-06, the society has not yet been registered and the building is in the control of the builder, who has not obtained the occupancy certificate, because of the dispute between the promoters and the builders about the non-construction of a 4 storeyed BMC school in the complex, as per the terms and conditions of redevelopment agreement. Since the occupancy certificate has not been issued, we are facing a lot of problems for getting water connection,

license for our business, electricity

charges etc. I want to know whether it

is possible to have a partial OC and if

yes, what is the procedure?

 

Without obtaining the OC, possession cannot be given by the builder and in terms of the development agreement, he has to complete the remaining construction and to obtain the OC to avoid the problems as mentioned. You and other purchasers may proceed against the builder legally for his failure to comply with the terms and conditions of redevelopment agreement. Recently, in such a situation the matter was taken to a consumer court which imposed a penalty of Rs.5 lakhs on the builders for not procuring the OC on time. You may also approach the consumer court against the builders. As regards the partial OC, you may consult the Architect or Engineer to ascertain the circumstances and documents required to obtain the partial OC, if possible.

 A member of our society, affected by the leakage from the top floor flat, filed a complaint in BMC court, against top flat owner, the society and two of its office bearers. Now the members of the top floor owners have carried out the necessary repairs at their cost and the lekage has been plugged. But still the case is pending and dragging in the BMC court. It seems the complainant is resorting to some mischief in delaying the withdrawal of the case. What should be done?

The defendants i.e. top floor flat owners, the society and both the office bearers may move an application in the court with satisfactory evidence to prove that the leakage has been stopped by the members of the top floor flat owners. If the court is convinced it may dispose of the case accordingly or if necessary, it may appoint a commissioner to inspect the premises to report whether the leakage problem has been solved and after considering such a report that cause of complaint has been removed, may dispose of the case..

 Parking slots (stilt and open) are purchased by the members from the builders at their own risk. What will be the consequences after the formation of the society and how these slots will be allotted by the society, as there is a scarcity of parking space in the building complex. What about the people who have purchased the parking slots, will they have to forgo it? The open area marked for garden in the plan has been converted into open parking and that too has been sold. One of the reputed Chartered Accountant, who manages many societies in our area has suggested that since many people have purchased the parking slots in our complex, even if the matter goes to the court, it will be in favour of those people, being in majority.

 It has been clarified through these columns that as per the latest judgment of Hon’able Supreme Court of India, a builder or a developer or a promoter has got no right to sell the parking slots, whether stilt or open parking, and all these parking spaces, ultimately, belong to the society, which after the registration, will have to allot the same as per the bye laws of the society (refer Model Bye-law No.78 to 85). Any such purchase of the parking space by any member in the society shall not be binding on the society. Since this matter has been authoritatively settled by the Apex Court of our country, there is no question of any judgment to the contrary by any subordinate court. The open space approved as ‘garden’ in the sanctioned plan can’t be sold for parking.