Miscellaneous

   25-05-2019 -       UMESHCHANDRA YADAV -       no comment.

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Q.1: In our society the builder has retained some of the units in the society after the registration of the society. In such circumstances, how the maintenance charges are to be levied on such unsold units.

Ans: In relation to your query, we would like to clarify that there is no distinction between the unit purchased by the unitholder and the unit/s retained by the builder/developer as unsold unit/s. Therefore, in case of the unsold unit/s of the builder, the maintenance charges shall be lived in the same way as if it is levied on the other units in the society.

Q.2: Kindly elucidate as to whether an Associate member can contest the election to the Managing Committee of the society?

Ans: As per the provisions of the MCS Act and the model byelaws, the Associate member is synonymous with the term” joint Member”. As per the definitional part, he is the person, whose name stands second on the share certificate. The Associate member can certainly contest the election to the Managing Committee of the society, provided he is being permitted/consented by the Principal member to this effect.

Q.3. I have purchased the flat before two months back. The society has already granted membership to me in respect of my flat. Now, the society is declaring the election program. Now, can I contest the election?

Ans: Your question is generic in nature. We would like to draw your attention towards the provisions of Section 27(3A) of the MCS Act 1960. As the said provision, a member is not entitled to cast the vote for a period of two years from the date of enrollment Therefore, an associate member can enjoy voting rights from the date of admission to the membership of the society. Consequently he can contest the election to the Managing Committee too.

Q.4 In our society, some of the members are not paying the maintenance charges on this account or that account, which has resulted into huge deficit to the society. In this respect, what action may be initiated by the society against such persons ?

Ans: If the members are not paying the maintenance charges of the society, in the first place, the society may send them a notice thereby calling for the dues from them. Irrespective of this, if the concerned members are failed to pay the dues, the society may initiate an action under the provisions of section 101 of the MCS Act-1960. In addition to this, the remedy under section 91 of the MCS Act-1960 is open to the society, which may prove time consuming. Practically, the proceedings under section 101 are summary in nature, the society should take the recourse to the proceedings under section 101 only.

Q.5: In case of garages occupied by the members/ occupiers, how the apportionment of the maintenance charges to be done?

1) One flat owner owns one garage
2) One flat owner owns two garages
3) Garage owned by an outsider who does not reside in the society premises and is not a flat owner. We do not adopted model bye laws till now Old bylaws does not specify any procedure for charging maintenance charges.
Ans. So far the issue of the garages is concerned we would like to inform you as per the amended definitions in the byelaws, the garages are also included in the definition of a “flat”. Therefore, the society recover service/maintenance charge from the garage from the garage holder on equal basis as if it is to be recovered from the flat holder, provided such garages are in the nature of covered a garage

Q.6: One of our members Mrs. A jointly holding flat with her husband Mr. B. whose name stands second in the share certificate expired on 25th April, 2007 without filing any nomination with the society. Mr. B on the death of his wife submitted the nomination form on 26th May, 2007. The managing committee however returned the nomination form on 21st June 2007 as he same was not submitted during the lifetime of the deceased member Mrs. A Mr. B was also advised to submit his application for transfer/membership vide Appendix 17 of the Model Bye laws.

Ans: After the death of the member, the joint member ceases to be a member of the society and the flat property ;goes to nominee or legal heir as the case may be. In the instant case cited by you, the member died without making nomination and hence the legal heir has to follow the transmission procedure as per the provision made in Bye law No.35 of the Byelaws.

Q.7. We want to open an account with the nearest Public Sector Scheduled Bank, which is situated 2 minutes walking distance from our society.

It is therefore, convenient for us to have the banking accounts with the said Bank. Further, the State Co-operative Bank are too far away from our place, at least 3 K.Meters away from us. Please clarify whether we can open an account with the one or more of the above scheduled banks situated close to us?

Ans. We have to state that Co-operative Housing Societies are supposed to invest their funds to the District central Co-operative Bank or State Co- operative Bank as per the provision made in the Section 70 of the Maharashtra Co-operative Societies Act 1960. In view of this, if you want to invest your society’s fund other than those banks specified above, you have to take necessary permission from the concerned Deputy Registrar of your area.

Q.8. A member in our society has handed over his flat to his father in law wherein his son i.e. brother in law of the member and his family members are staying. We have decided to collect non occupancy charges from the member. Please advise whether we can charge from the member. Please advise whether we can charge NOC from the member or not?

Ans: It appears that a member of your society has handed over his flat to his father in law, however, the said flat is occupied by the brother in law of the member. In view of this as per the Government Circular for NOC the brother in law is included in the definition of the family and hence, NOC charges cannot be levied in such case.

Q.9: We seek your guidance on following points.

 When a member expires, his share certificate is transferred to a person who has been nominated in the Nomination Form. In such cases, should society insist of Form No.20 (1), 21, 23, 25, 26 & 4 duly filled in?

Ans. We have to state that the forms referred above are pertaining to transfer of flat between two living persons. In the case of nominee application for membership after the death of the member is called transmission and in transmission case, the nominee has to apply for membership in the prescribed form no.15 with other documents as provided under bye law no.34 of the bye laws.

Q.10. Please guide us when a new member can join managing committee of the society is there is any restriction from the date of membership or he can join the committee on acquiring the membership.

Ans: We have to state the Co-operative Housing Societies are exempted from purview of Section 27(3A) of the MCS Act 1960. Therefore, a member can enjoy voting right from the date of admission to the membership of the society and consequently he can contest the election to the managing committee also.

Q.11: Mr. A is the member of our society. He has appointed Mr. B. as attorney by giving a General Power of attorney. Now Mr. A has requested the society to admit Mr. B as an associate member and has paid requisite membership fee. Mr. B. is not related to Mr. A. We desire to know what is the eligibility for any person to be admitted as an associate member. Bye law No. 19(B) of the bye laws does not specify the person to be admitted as an associated member.

Ans: We have to clarify that the bye law does not specify to prohibit a person to become associate member who is not related to a member. Under the circumstances, we are of the opinion that the society can consider associate membership irrespective of a person related to a member or not.

Q.12: One of the members of our society whose name stands first on the share certificate expired recently. There is no nomination or will. Under such circumstances what the detail procedure

Ans: If the member dies without making any nomination or will the legal heirs have to apply for the membership in the prescribed format No.17 as per the provisions made in bye law No.35 of the bye laws.

Q.13: Kindly elucidate as to whether the society can charge share transfer fee along with member admission fee.

Ans: In relation to your query, we would like to say that after the death of the member, the right, title and interest in the flat of the deceased member needs to transferred in the name of the nominee/legal heir. This process is denoted as d “transmission”. “Transmission” is the process whereby the devolution of the rights is transferred from the deceased person to a living heir. In case of “ Transfer” the devolution of the right is transferred between the living persons only.In case of transmission, no share transfer is involved and hence no transfer fee would be attranced on it. Nevertheless, the society can collect Rs.100/- towards admission fee.

Q.14: One of our members is intending to sell his flat to private limited company wherein he holds a shares. The company is supposed to hold 10 shares. Whether the society has to cancel share certificate for 5 shares issued to the seller and issue fresh share certificate for 10 shares to incoming member or issue additional share certificate for further five shares. Kindly advise.

Ans: One member one vote and one share certificate is the criteria followed in a Co-operative Housing society. In view of this, you have to issue one share certificate for 10 shares canceling the existing 5 shares. Further by issuing 5 additional shares, the share capital of the society would be increased by Rs.250.

Q.15: Please let us know whether it is correct, if transfer of flats and admissions of new members be approved and passed in the meeting of the managing committee of the society. Or whether after passing in the managing committee meeting we should further get it approved in the General Body Meeting of the society.

Ans: We hereby clarify that as per the provision made in the bye law no.19(A) of the bye laws, in case of all individual transfer cases, the managing committee is competent to approve the same. It is not necessary to take approval of the General Body for individual transfer cases.

Q.16: A and B are joint owners “A” has made fresh agreement taking over ‘B’ Share. The new agreement has been duly registered and required stamp duty paid.

The share certificate has now been endorsed on A’s name singly and B’s name is to be deleted.

Is transfer premium (charges) on Rs.25,000/- payable by ‘A’ on the above transfer ? Kindly advice.

Ans: We have to clarify here that the second named person in the share certificate is not being a property of donor and hence in the vent of deleting the second name from the share certificate, the transfer premium, transfer fee and entrance fee shall not apply.

Q.17: Please let us know the procedure to be followed when a member desires to transfer his flat to his father. Kindly indicate the different documents required to be submitted by the member for effecting the transfer. The model bye law No.36 does not clarify the procedure in such case.

And: If a member intends to transfer his flat in the name of his father he can make a gift deed or sale deed as the case may be and pay applicable stamp duty with registration. In addition to this, they have to furnish transfer documents as per bye law no.38 of the bye laws and also transfer fee of Rs.500/- and Rs.100/- towards entrance fee. No transfer premium should be charged, as father is included in the definition of the family as per bye laws.

Q.18: We would like to request you to kindly clarify following points:

1. What papers are required at the time of transfer and/or transmission of Flat ?
2. Can we allow Power of Attorney to a person to attend General Body Meeting?

Ans: 1: For transfer of flat, you have to obtain relevant documents as per the provision made in the bye law no.38 of the bye laws. Whereas in transmission cases, if the member has made nomination at the time of his living then the nominee has to apply for membership in the prescribed Form No.15, as per the Provisions made in the bye laws no.34 of the bye laws. However, if there is no nomination, in such case the legal heir has to apply for membership in the prescribed Form No.17
as per the provision made in the bye law No.35 of the Byelaws.

2. No. As per provision made in the bye law No.105, power of Attorney holder cannot attend the General body meeting.

Q.19: (1) In our society there are 3 different sizes flats 960 sq.ft. 1080 sq.ft. and 1350 sq.ft. areas. As per bye laws, the society can charge maximum Rs.25,000/- as premium of transfer of flat.

It is correct to charge common rate of Rs.25,000/- irrespective of the size/area of the flat?
(2) In the General Body Meeting it was decided that the society should collect a sum of Rs.10,000/- from the member giving their flat on leave and license in addition to the non occupancy charges. Is this decision correct as per law?

Ans: (1): As per the Govt. circular dated 9th August,2001 the transfer premium is fixed at the maximum of Rs.25,000/- in the Municipal Corporation area. Therefore, so long as the Government circular is in force, the society can charge the maximum of Rs.25,000/- as transfer premium regardless of area/size of the flat.

(2) The non occupancy charges are restricted to 10% of the service charges as per the Govt. circular date 1st August, 2001.
In view of the Specific Government directives on the subject, we are of the opinion that the decision of the General Body Meeting to collect a sum of Rs.10,000/- from members giving their flat on leave and license in addition to the non occupancy charges is far from the scope of the Govt. Circular and the provision in the bye laws Therefore, the decision of the general body seems to be superfluous and cannot be maintained in view of the Govt. directive in force.

Q.20: Our society having A and B Wings ‘A” Wing is 7th floor building with lift. A wing having 26 flats and 13 shops on the ground floor, we are collecting lift charges from flat owners of A wing. But some members of A wing have taken objection that why the society is not collecting lift charges from the shop owners of A wing please advice whether we can collect lift charges from the shop owners on the ground floor.

Ans: We have to state that as per the provision made in the bye law No.69 (iv) the expenses of the repairs and maintenance of the lift including charges for running the lift equally by all the members of the building in which lift is provided, irrespective of the fact whether they use the lift or not. In view of the said provision, we are of the opinion that, the society can collect the lift charges from shop owners also.

Q.21: Our Member Mr.A has purchased flat in our society in joint name of Mr. A, (2) Mrs. B and, (3) Mrs. C. Mr. A was admitted as a member of the society. Mr. A has nominated his wife Mrs. A as nominee. Mr. A died recently. Mrs. A has applied for membership of the society. You are requested to enlighten us on the following matters.

(1) As regards the position and right of other two joint purchasers?

(2) Whether any other declaration or forms are required to be obtained from the joint purchasers referred to above.

(3) Any other declaration / consent letter from the heirs or the Applicant is required to be obtained.

Ans: We have to state that after the death of the first member, the joint member ceases to be a member of the society and the flat property goes to nominee or legal heir. In the instant case cited by you, the member died withy nomination in favour of his wife and hence, you may ask the nominee to apply for membership as per the provision made in the bye law no.34 of the bye laws. As regards the position and right of other two joint purchasers, they can be readmitted as joint members along with nominee. As regards undertaking from other legal heirs, since there is a nomination, it is not necessary to take any undertaking from legal heirs.

Q.22: A member of our society who has purchased the flat in March 2008 wants to sell it to a buyer who intends to take a bank loan. The buyer needs a NOC from the society to submit in a Bank for process of loan sanction. Please guide us whether a NOC can be given to a member based on the fact that as per prescribed forms in Appendix 21, point No.5 (Bye law No.38(e)(i) which mentions as under :

I state that the said shares and interest in the capital/property of the society have been held by me for a period of not less than a year.

Ans: We have to state that as per the provisions made in the section 29(2) of the Maharashtra Co-operative Societies Act 1960 shares of Co-operative Housing Society cannot be transferred before completion of one year. In view of the said provision in the Act, it is not advisable by the society to deal with transfer cases before the time frame stipulated in the said provision.

Q.23: We hereby request you to give us clarification about tenure of elected/co- opted members of the managing committee, whether it is up to AGM concerned or up to the end of the previous financial year (31..2007). Also, what are the maximum allowable members of the managing committee of the society with more than 250 bonafide members and having 10 wings in total four (4) buildings, kindly advise.

Ans: We have to state that as per old bye laws the tenure of the elected committee shall be for three years. However, in revised bye laws (2001) the tenure of the committee shall be for 5 years. The tenure of the co- opted member of the committee shall be co-terminus with the tenure of the office of the committee. In view of this, the managing committee shall hold election before expiry of its term and not concerned with AGM and previous financial year. The maximum allowable members of the managing committee upto 300 members would be 9.

Q.24: Mr. A & Mrs B sold their flat to Mr. C and Mrs. D Mr. A & Mr. C are real brothers. Kindly give your opinion whether the society has to charge transfer premium or not.

Ans: We have to state that the transfer premium cannot be levied for transfer of flat to a brother, as brother is included in the definition of family as bye law.

Q.25:  We will appreciate if you can give us your opinion and advise on the following points.
1) Regarding Non Occupancy Charges it is given to understand that for residential flats as per bye laws, the charges are at 10% of the society service charges.
2) We would like to know whether the above mentioned charges are also applicable to shops?

Ans: We have to state that the flat includes shops also and whatever applies to the flats applies to shops also and hence shop holders are also liable for payment of non occupancy charges at 10% of the service charges as stipulated in Government circular.

Q.26: In case of two persons, say husband and wife, or a brother and a sister may have contributed to purchase a flat jointly, then they would desire and insist on both of them being enrolled as member of the society. This requirement becomes necessary when they have obtained loan for purchase of the flat from a bank. While the bye laws are clear, that only one member can exercise voting rights at the general body meetings or its election, it is not clear whether we can grant joint membership though the model bye laws are silent on the subject. Please advise us on the above issue.

Ans: A member also has executed an agreement jointly with a person at the time of purchase of flat, the subsequent member is called joint member or co-owner along with the first member. In view of this the society can enroll them as a member and joint member respectively. As regards exercise of voting rights to joint member, the joint member can attend and vote at the meeting in the absence of the original member.

Q.27: A person whose name was first on the share certificate of the society expired without nomination or will what is the detail procedure to be followed by the survived legal heirs to get the respective flat transferred on their name?

Ans: If a member died without making any nomination or will the legal heir has to apply for membership in the prescribed form No.17 as per the provisions made in the bye law no.3.5 of the bye laws., We advise you to inform the legal heirs to comply the transmission procedure as per the said provision.

Q.28: In 0ur society, defaulter members not paying regular maintenance bill and as well as major repair amount for long period. We have issued many reminders and given notices to defaulters but response is negative.

One of the defaulter members has given his flat on rent without taking permission from society and not completed procedure as per letter sent to him. He refused to accept any letter issued to him. Please advise us on the above mentioned subject.

Ans: If the member is not paying the regular maintenance dues as well as major repair amount, you may proceed against the said member as per the Recovery Procedure U/s. 101 of the Maharashtra Co-operative Societies Act 1960. The procedural booklet is available at our sale counter you may purchase and follow the same.

As regards defaulter member, who has given his flat on leave and license without any permission of the society, you may issue him notice that his subletting is in violation of the provision made in the model bye law no.43 of the byelaw and he should stop subletting immediately, failing which action against him including expulsion as per provision made in the Section 35 of the Maharashtra Co-operative Societies Act 1960 may be initiated against the concerned member.

Q.29: We have received deed of sale from flat owners. The flat owner also owns garage which has not been sold. The member wishes to transfer the garage without any transfer documents. We kindly request you to give you advise on the above matter as to whether the garage can be transferred just by a letter to an existing member or an agreement to that with stamp duty and registration fee paid is required.

Ans. We have to state that if the member after sale of his flat wants to transfer his garage without any transfer document. This is incorrect. Further in order to establish ownership right of the purchase in immovable property, it is necessary to execute sale deed and to pay the stamp duty thereon with registration. If the purchaser has not completed these formalities there is no title to the garage.

Q.30: We wish to know whether signature of Hon. Secretary is compulsory in Banking Transaction. You are requested to kindly provide us the Clarification on the matter.

Ans: We hereby clarify that Banking Account shall be opened by the society in the State or District Co-operative Bank and that all acquaintances and discharges must be signed by the Secretary jointly with the Chairman or Treasurer.

Q.31: A member in our society has handed over his flat to his father in law wherein his son i.e. brother in law of the m law of the member is staying. Please advise whether we can charge NOC.

Ans: It appears that a member of your society has handed over his flat to his father in law, however, the said flat is occupied by the brother in law of the member. In view of this, as per the non occupancy changes, the brother in law is included in the definition of the family and hence, NOC cannot be levied in such case.

Q.32: In the Special General Body Meeting our society has unanimously passed a resolution to levy of additional maintenance charges towards lift renovation charges @ Rs.10/- per sq.ft. for the period of 18 months. Some of the members holding ground floor flats raised the objection that they do not use the lift in the building and they may be exempted to levy additional lift renovation charges as per the rate and period as mentioned in the resolution. Please guide in the matter.

Ans: We have to state that if the lift facility has been provided in the society’s building in such case the expenses and repair and maintenance of the lift including charges for running of lift should be equally divided and not area wise by all the members of the building in which lift is provided, irrespective of the fact whether they use the lift or not, or whether the flat is on ground floor.

Q.33: We would like to have your opinion and guidance on the following matter.

Ans: One of our members died last year without having any will and proper nominations Legal heirs of the member applied for the membership. They have obtained letter of Administration form Bombay High Court in favour of son of late member. Please clarify.

Q.34: We would like to seek clarification on the following matter.

(a) Entry date of the member in voter’s list.
(b) Eligibility of Associate member for election.

Ans: (a) On the date admission to the membership.
(b) If the original member gives no objection in Appendix 10-A annexed to the byelaws.

Q.35: A) Our General Body in its meeting held last year passed resolution to collect an interest on deposit from lesser, on the basis on the size of the flat, is this collection in order? If not what are the fees that the managing committee can charge as non occupancy charges?

B) What are the documents that the society must collect from the lesser and lessee in the case, the flat is given on leave and licensee?

C) Is the lessee of a leased out flat entitled to parking space in the society compound?

Ans: A) There is no Provision in the byelaws to collect interest fee deposit from lesser. However, the society can levy non occupancy charges at 10% of the service charges as prescribed in the Government, circular dated 1st August, 2001..

B) You have to collect leave and license agreement copy with duly paid stamp duty and registration. Apart from this, you have to collect application for nominal membership by sublettee in Appendix 11 annexed to the byelaws..

C) The bye laws does not specified about the parking space entitled to lessee in the absence of this, your general body is competent to take decision.

Q.36: We have received sale deed from our member. The flat owner owns garage (stilt), which has not been sold. The member wishes to transfer the garage (stilt) to the existing member without any transfer documents. We kindly request you to give your opinion on the above matter whether the garage (stilt ) can be transferred just by a letter to an existing member or an agreement to that effect with stamp duty registration fees paid is required.

Ans: We have to state that generally, member after sale of his flat cannot retain his ownership stilt. Further, in order to establish ownership right of the purchaser, in immovable property, it is necessary to execute sale deed and to pay stamp duty thereon with registration, if the purchaser has not completed these formalities, there is no title to the stilt.

Q.37: In our society the special General Body Meeting has unanimously passed resolution to levy of additional maintenance charges towards lift renovation from the members of the society. However, two basement flat owners raised an objection that they do not any point of time whatsoever, use the escalator/lift in the building and they may be exempted from levy of additional lift renovation charges as per the Special Body Meeting. Please guide in the matter.

Ans: We have to state that if the lift facility has been provided in the society’s building, in such case the expenses on repairs and maintenance of lift including charges for running of lift should be equally divided by all the members of the building, in which lift is provided, irrespective of the tact whether they use the lift or not.

Q.38: Mr. A and Mrs. B were holding a flat jointly, having joint names in their share certificate in our society. Mr. A died without making nomination. Now Mrs. B is asking society to delete her husbands name from the share certificate. We have requested Mrs. B many times to fill form No.17 and give it to the society but she refuses to do the same. Now we are in trouble what to do, please guide us, how to handle this problem?

Ans: If the flat in a Co-operative Housing Society stands in joint names and n the event of the death of the first member, the joint member ceases to be a member of the society and flat property will be transmitted in the name of the nominee or the legal heir of the deceased member. In the instant case, the principal member has expired intestate and the joint member has asked the society to delete the name of the first member from the share certificate. However, she has refused to comply with the transmission procedure as per the relevant provision in the bye laws no.35 of the bye laws. Under the situation, the society may treat that there is no claimant to the flat property of the deceased member and accordingly, the shares and interest of the deceased member in the capital/property shall vest in the society.

Q.39: One of our managing committee members has a doubt that agreement on stamp paper between the share certificate holders and associate member could be advisable before endorsing the name of the associate member on the share certificate.
We request you to let us have the details of full formalities to be completed by associate member and also the agreement is necessary or not and also obtain the rights and duties of such associate member.

Ans: The associate member has no rights, privileges of a member except attending the general meeting in the absence of the original member. The associate membership will get ceased automatically after the death of the original member. In view of this, it is not advisable to obtain an agreement on stamp paper between the original member and the incumbent associate member.

As explained above an associate member can attend the general meeting in the absence of the original member with no objection from the original member. An associate member can stand for election to the committee if the original member gives no objection in Appendix 10-A annexed to the bye laws. The associate member has to apply in the prescribed form No.7 no agreement on stamp paper is necessary.

Q.40: Mr. A and Mrs. B were holding a flat jointly, having joint names in their share certificate in our society. Mr. A died without making nomination. Now Mrs. B is asking society to delete her husbands name from the share certificate. We have requested Mrs. B many times to fill form No.17 and give it to the society but she refuses to do the same. Now we are in trouble what to do, please guide us, how to handle this problem?

Ans: If the flat in a Co-operative Housing Society stands in joint names and n the event of the death of the first member, the joint member ceases to be a member of the society and flat property will be transmitted in the name of the nominee or the legal heir of the deceased member. In the instant case, the principal member has expired intestate and the joint member has asked the society to delete the name of the first member from the share certificate. However, she has refused to comply with the transmission procedure as per the relevant provision in the bye laws no.35 of the bye laws. Under the situation, the society may treat that there is no claimant to the flat property of the deceased member and accordingly, the shares and interest of the deceased member in the capital/property shall vest in the society.

Q.41: We have received sale deed from our member. The flat owner owns garage (Stilt), which has not been sold. The member wishes to transfer the garage (stilt) to the existing member without any transfer documents. We kindly request you to give your opinion on the above matter whether the garage (stilt ) can be transferred just by a letter to an existing member or an agreement to that effect with stamp duty registration fees paid is required.

Ans: We have to state that generally, member after sale of his flat cannot retain his ownership stilt. Further, in order to establish ownership right of the purchaser, in immovable property, it is necessary to execute sale deed and to pay stamp duty thereon with registration, if the purchaser has not completed these formalities, there is no title to the stilt.

Q.42: In our society the special General Body Meeting has unanimously passed resolution to levy of additional maintenance charges towards lift renovation from the members of the society. However, two basement flat owners raised an objection that they do not any point of time whatsoever, use the escalator/lift in the building and they may be exempted from levy of additional lift renovation charges as per the Special Body Meeting. Please guide in the matter.

Ans: We have to state that if the lift facility has been provided in the society’s building, in such case the expenses on repairs and maintenance of lift including charges for running of lift should be equally divided by all the members of the building, in which lift is provided, irrespective of the tact whether they use the lift or not.

Q.43: Our Member Mr. A has purchased flat in our society in joint name of Mr. A,(2) Mrs. B and, (3) Mrs. C. Mr. A was admitted as a member of the society. Mr. A has nominated his wife Mrs. A as nominee. Mr. A died recently. Mrs. A has applied for membership of the society. You are requested to enlighten us on the following matters.

(1) As regards the position and right of other two joint purchasers?
(2) Whether any other declaration or forms are required to be obtained from the joint purchasers referred to above.
(3) Any other declaration / consent letter from the heirs or the Applicant is required to be obtained.

Ans: We have to state that after the death of the first member, the joint member ceases to be a member of the society and the flat property goes to nominee or legal heir. In the instant case cited by you, the member died withy nomination in favour of his wife and hence, you may ask the nominee to apply for membership as per the provision made in the bye law no.34 of the bye laws. As regards the position and right of other two joint purchasers, they can be readmitted as joint members along with nominee. As regards undertaking from other legal heirs, since there is a nomination, it is not necessary to take any undertaking from legal heirs.

Q.44: One of our members is intending to sell his flat to private limited company wherein he holds a shares. The company is supposed to hold 10 shares. Whether the society has to cancel share certificate for 5 shares issued to the seller and issue fresh share certificate for 10 shares to incoming member or issue additional share certificate for further five shares. Kindly advise.

Ans: One member one vote and one share certificate is the criteria followed in a Co-operative Housing society. In view of this, you have to issue one share certificate for 10 shares canceling the existing 5 shares. Further by issuing 5 additional shares, the share capital of the society would be increased by Rs.250.

Q.45: Please let us know whether it is correct, if transfer of flats and admissions of new members be approved and passed in the meeting of the managing committee of the society. Or whether after passing in the managing committee meeting we should further get it approved in the General Body Meeting of the society.

Ans: We hereby clarify that as per the provision made in the bye law no.19(A) of the bye laws, in case of all individual transfer cases, the managing committee is competent to approve the same. It is not necessary to take approval of the General Body for individual transfer cases.

Q.46: A and B are joint owners “A” has made fresh agreement taking over ‘B’ Share. The new agreement has been duly registered and required stamp duty paid.

The share certificate has now been endorsed on A’s name singly and B’s name is to be deleted.

Is transfer premium (charges) on Rs.25,000/- payable by ‘A’ on the above transfer ? Kindly advice.

Ans: We have to clarify here that the second named person in the share certificate is not being a property of donor and hence in the vent of deleting the second name from the share certificate, the transfer premium, transfer fee and entrance fee shall not apply.

Q.47: Please let us know the procedure to be followed when a member desires to transfer his flat to his father. Kindly indicate the different documents required to be submitted by the member for effecting the transfer. The model bye law No.36 does not clarify the procedure in such case.

And: If a member intends to transfer his flat in the name of his father he can make a gift deed or sale deed as the case may be and pay applicable stamp duty with registration. In addition to this, they have to furnish transfer documents as per bye law no.38 of the bye laws and also transfer fee of Rs.500/- and Rs.100/- towards entrance fee. No transfer premium should be charged, as father is included in the definition of the family as per bye laws

During the last three months, the following questions have been raised through media and by the public. Clarification to them is given here in the form of Questions and Answers.

Q.48: We would like to seek clarification on the following matter.

(a) Entry date of the member in voter’s list.
(b) Eligibility of Associate member for election.

Ans: (a) On the date admission to the membership.
(b) If the original member gives no objection in Appendix 10-A annexed to the byelaws.

Q.49: A) Our General Body in its meeting held last year passed resolution to collect an interest on deposit from lesser, on the basis on the size of the flat, is this collection in order? If not what are the fees that the managing committee can charge as non occupancy charges?

B) What are the documents that the society must collect from the lesser and lessee in the case, the flat is given on leave and licensee?

C) Is the lessee of a leased out flat entitled to parking space in the society compound?

Ans: A) There is no Provision in the byelaws to collect interest fee deposit from lesser. However, the society can levy non occupancy charges at 10% of the service charges as prescribed in the Government, circular dated 1st August, 2001..

B) You have to collect leave and license agreement copy with duly paid stamp duty and registration. Apart from this, you have to collect application for nominal membership by sublettee in Appendix 11 annexed to the byelaws..

C) The bye laws does not specified about the parking space entitled to lessee in the absence of this, your general body is competent to take decision.

Q.50: Which documents can be admitted in the Amnesty Scheme?

Ans: Flats in the buildings constructed for residence or shops, land below the buildings, house, row houses and conveyance documents are covered under this scheme. The scheme is also applicable to the pending documents in Sub Registrar’s Offices where till Stamp duty is not paid.

Q.51: If a person himself is not able to submit application is it necessary to give power of Attorney to another person to submit application? If yes, on what amount of stamp paper?

Ans: If another person is authorized to submit application, it is necessary to give him power of Attorney on Rs.100/- stamp paper, which the other person has to submit along with the application, if, however, any member or office bearer of the Co-operative Housing Society is authorized to submit application, it is sufficient to give authority on the letter head of the society.

Q.52: If many members of a Co-operative Housing Society want to take benefit of the Amnesty scheme, can they file their documents together?

Ans: If the Secretary or any office bearer of a housing society is authorized to file such documents, it is not necessary for all the members to be present while submitting the documents. Such authorized office bearer can collectively submit the documents, which could be returned to them after performing necessary formalities. However, it will be the responsibility of the individual members to pay their own stamp duty. Similarly a member in a society can also personally file his application.

Q.53: How much stamp duty is payable on the Agreements on sale executed before 10.12.1985 ?

Ans: Stamp duty of Rs.5/- only is payable on agreements to for sale executed before 10.12.1985 as per the provisions of Article 5(h) of the Bombay stamp Act 1958 prevailing at that relevant time. However, at the time of conveyance of the property (Land and Building) the said deed of conveyance will be changed with the Stamp duty as per the provisions of article 25 of the Bombay Stamp act 1958.

Q.54: If conveyance of property on Agreement of sale before 10.12.1985 is done of what date, market rate and stamp duty will be fixed?

Ans: If conveyance is to be executed in respect of the unregistered Agreement for sale, executed prior to 10.12.1985, then while calculating the stamp duty the market value as on the date of unregistered Agreement for sale, will be considered. It is further clarified that the rate of stamp duty will be chargeable on the said market value, shall be as per the date of the conveyance.

The above provision will be applicable only for the period of the present Amnesty scheme on the following condition.

A) Concession will be applicable in respect of agreement of sale of flat, bungalow, Row House, House etc. meant only for residential use.

B) This concession will be applicable only on execution of agreement for sale documents during the period of Amnesty Scheme 2008 If such agreement for sale documents were received after expiry of Amnesty Scheme 2008 stamp duty will have to be paid at the market rate prevailing at the time of agreement for sale.

C) With a view to avail the concession, any of the proof hereunder mentioned, in respect of execution of the agreement for sale, will be required to be submitted.

1) The flat purchaser should have declared property his in Income Tax Return.

2) Evidence about the payment to the builder by cheque must be furnished or.

3) To produce share certificate given by the Housing Society.

Q.55: How MHADA’S market rate is arrived at?

Ans: If MHADA has allotted tenements, payment mentioned in the document is taken on market rate. This is also in respect of sold or allottee tenements by other Government, Semi Government institutions and undertakings.

Q.56: If the original document is lost or kept as security in respect mortgage or destroyed in natural calamity or it is laminated, how a party could take benefit of this scheme?

Ans: If original document is lost or destroyed, one can pay stamp duty on the true Xerox copy of that document, as per Section 3 of the Act. However, the party must lodge a complaint with the concerned Police Station regarding the loss of the documents, and the copy of the said complaint and indemnity on Rs.200/- stamp paper must be furnished by the said party. However, there will be no deduction of the value of stamps affixed earlier. Besides if the Xerox copy is certified, the officer giving stamp duty certificate will not be held responsible of its contents for validity or invalidity.

With regard to the mortgaged document, stamp duty will be allowed to be paid on production of its Xerox copy. However, it will be necessary to produce the original document, at the time of certification.

With regard to the laminated documents, after submission of the document, Xerox copy will be certified after the payment of stamp duty.

If the allotment letter issued by MHADA is lost, duplicate copy of the allotment letter should be obtained and on submission of the same during Amnesty scheme, it’s benefit will be give to the person concerned.

Q.57: Will the documents submitted for registration are entitled to get benefit of this scheme?

Ans: Benefit of this scheme will be given if systematic application is furnished in respect of flats or shops in the building constructed for residential purpose, and the land under these building and also bungalow, houses, row houses etc, conveyance documents of the residential units.

ADVANTAGES OF PAYMENT OF STAMP DUTY

As per the present practice in the stamp duty offices, at the time of conveyance of land and building in favour of a registered Co-operative Housing Society the property certified registered Agreement for sale of the present flat the holder in respect of his individual Flat gets a rebate/waver/deductions of the stamp duty.

FOR CO-OPERATIVE HOUSING SOCIETY

Benefit in the form of FSI can derived.

Permission is given in respect of repairs, renewal and development.

Compensation can be obtained in case of natural calamities.

The Co-operative Housing Society and not the builder/developer is entitled to get benefit in case of commercial use of the building.

Stamp duty is required to be paid on agreement of sale, allotment letter if executed amongst the developer. MHADA and the flat purchaser for preparing agreement of sale for the benefit of Co-operative Housing Society.

So long as all the members of a Co-operative Housing Society do not pay full stamp duty, no agreement for sale can be made to the benefit of the co-operative housing Society.

STAMP DUTY CENTERS UNDER AMNESTY SCHEME

1. Fort, Mumbai, Collector of Stamps, implementation 1 & 2, principal stamp duty office, Town Hall, Mumbai.
2. Collector of Stamps, 3rd floor, Mumbai – Old Custom House, Mumbai 400 023
3. Collector of Stamps, Andheri, MMRDA Bldg, 1st floor, Bandra, Mumbai 400 051
4. Borivali of Stamps, Borivali Collector of Stamps, Kurla, New Administrative Building, Ground floor, Ramakrishna, Chembur Marg,

Q.58: We would like to request you to kindly clarify following points:

1. What papers are required at the time of transfer and/or transmission of Flat ?
2.Can we allow Power of Attorney to a person to attend General Body Meeting?

Ans.1: For transfer of flat, you have to obtain relevant documents as per the provision made in the bye law no.38 of the bye laws. Whereas in transmission cases, if the member has made nomination at the time of his living then the nominee has to apply for membership in the prescribed Form No.15, as per the Provisions made in the bye laws no.34 of the bye laws. However, if there is no nomination, in such case the legal heir has to apply for membership in the prescribed Form No.17
as per the provision made in the bye law No.35 of the Byelaws.

2. No. As per provision made in the bye law No.105, power of Attorney holder cannot attend the General body meeting.

Q.59: (1) In our society there are 3 different sizes flats 960 sq.ft. 1080 sq.ft. and 1350 sq.ft. areas. As per bye laws, the society can charge maximum Rs.25,000/- as premium of transfer of flat.
It is correct to charge common rate of Rs.25,000/- irrespective of the size/area of the flat?
(2) In the General Body Meeting it was decided that the society should collect a sum of Rs.10,000/- from the member giving their flat on leave and license in addition to the non occupancy charges. Is this decision correct as per law?

Ans: (1): As per the Govt. circular dated 9th August,2001 the transfer premium is fixed at the maximum of Rs.25,000/- in the Municipal Corporation area. Therefore, so long as the Government circular is in force, the society can charge the maximum of Rs.25,000/- as transfer premium regardless of area/size of the flat.

(2) The non occupancy charges are restricted to 10% of the service charges as per the Govt. circular date 1st August, 2001.
In view of the Specific Government directives on the subject, we are of the opinion that the decision of the General Body Meeting to collect a sum of Rs.10,000/- from members giving their flat on leave and license in addition to the non occupancy charges is far from the scope of the Govt. Circular and the provision in the bye laws Therefore, the decision of the general body seems to be superfluous and cannot be maintained in view of the Govt. directive in force.

Q.60: Our society having A and B Wings ‘A” Wing is 7th floor building with lift. A wing having 26 flats and 13 shops on the ground floor, we are collecting lift charges from flat owners of A wing. But some members of A wing have taken objection that why the society is not collecting lift charges from the shop owners of A wing please advice whether we can collect lift charges from the shop owners on the ground floor.

Ans: We have to state that as per the provision made in the bye law No.69 (iv) the expenses of the repairs and maintenance of the lift including charges for running the lift equally by all the members of the building in which lift is provided, irrespective of the fact whether they use the lift or not. In view of the said provision, we are of the opinion that, the society can collect the lift charges from shop owners also.

Q.61: One of our managing committee members has a doubt that agreement on stamp paper between the share certificate holders and associate member could be advisable before endorsing the name of the associate member on the share certificate.
We request you to let us have the details of full formalities to be completed by associate member and also the agreement is necessary or not and also obtain the rights and duties of such associate member.

Ans: The associate member has no rights, privileges of a member except attending the general meeting in the absence of the original member. The associate membership will get ceased automatically after the death of the original member. In view of this, it is not advisable to obtain an agreement on stamp paper between the original member and the incumbent associate member.

As explained above an associate member can attend the general meeting in the absence of the original member with no objection from the original member. An associate member can stand for election to the committee if the original member gives no objection in Appendix 10-A annexed to the bye laws. The associate member has to apply in the prescribed form No.7 no agreement on stamp paper is necessary.

Q.62: A member of our society who has purchased the flat in March, 2008 wants to sell it to a buyer who intends to take a bank loan. The buyer needs a NOC from the society to submit in a Bank for process of loan sanction. Please guide us whether a NOC can be given to a member based on the fact that as per prescribed forms in Appendix 21, point No.5 ( Bye law No.38(e)(i) which mentions as under :

I state that the said shares and interest in the capital/property of the society have been held by me for a period of not less than a year.

Ans: We have to state that as per the provisions made in the section 29(2) of the Maharashtra Co-operative Societies Act 1960 shares of Co-operative Housing Society cannot be transferred before completion of one year. In view of the said provision in the Act, it is not advisable by the society to deal with transfer cases before the time frame stipulated in the said provision.

Q.63: If stamp duty payable on the allotment letter given by MHADA?

Ans: Stamp duty is payable on all documents by which, ownership rights are enjoyed, since property rights are enjoyed by the party and they are transferable. Stamp duty is payable on such documents and it is the responsibility of the flat purchasers to pay the stamp duty.

Q.64:  A Society has filed a case U/s.101 of MCS Act 1960 against defaulter member. Whether defaulter member can attend the AGM/SGM?

Ans. The defaulter member of the society is not prohibited to attend the AGM/SGM as there is no provision in the Bye laws.

Q.65: Can the society discontinue water supply and lift services of the defaulter member?

Ans: Water being an essential commodity under the essential commodities act and lift being essential service, to as such discontinue of both these facilities to the defaulter members amounts to criminal offence.

Q.66: What are the guidelines in case of transfer of membership rights (Share Transfer of the deceased) for following conditions-

a) Deceased member has not made any nomination but made “Will”.

b) Deceased member has made nomination but not made “Will”.

c) Deceased member has made “Will” but not registered with Registering authority.

Ans:
a) “Will” shall be operated only after the probate is obtained from the competent court.

b) Nomination is sufficient for transmission “Will” is not compulsory

c) Registration of “Will” is not compulsory but it is better if it is registered.

Q.67: The members of the society want to propose the amendment to provisions of bye laws No.69(a) (which is already adopted by the society at the time of formation of the society and proposed apportionment of the service charges, and expenses on repairs and maintenance of lift including chargers for running lift on the basis of area of the flat i.e. per sq.ft. basis. Whether such amendment in bye laws No.69(a) will be legal?

Ans: The proposed amendment to the bye laws No.69(a) will be contrary to the provision of the model bye laws. Such amendment of the Bye laws shall not be approved by the Registrar of Co-operative Societies, as per the provision of section 13(1B) of the MCS Act 1960.

Q.68: Managing Committee of our society has decided to issue Identify Cards to all the Members & Tenants Shopkeepers in the building whether it is correct to do so?

Ans: There is no such provision in MCS Act 1960 and MCS Rules 1961 and Model Bye laws to issue such Identity Cards to the members of the society. However, you can take up this issue before AGM/SGM for necessary approval.

Q.69: Whether a member can use his flat solely for conducting coaching class ?

Ans: As per the provision made in Bye laws No.3(vi) coaching classes are allowed in the co-operative housing societies. However, the concerned member has to take prior permission from the society for conducting of coaching class. Please note that if the students are more in number, the interest of the other members of the society may also be protected by the concerned member.,the society expired without nomination or will what is the detail.

Q.70: We seek advise on the following.

For the garages occupied by the members what is the basis of living maintenance charges for the following criteria of the garage.

1) One flat owner owns one garage
2) One flat owner owns two garages
3) Garage owned by an outsider who does not reside in the society premises and is not a flat owner. We do not adopted model bye laws till now Old bylaws does not specify any procedure for charging maintenance charges.

Ans: We have to state that the garages are also included in the definition of flat as per by laws and hence, the society can collect service/maintenance charge from the garage from the garage holder on equal basis, provided such garages are to be covered a garage.

Q.71: We request you to kindly enlighten us regarding the share transfer fee collection on a member’s death and the shares to be transferred to the legal heir. Please guide us whether we can charge share transfer fee along with member admission fee.

Ans: We hereby clarify that after the death of the member, the flat property goes to nominee/legal heir, is called “transmission” and not transfer and in transmission cases no share transfer is involved and hence no transfer fee is to be collected. However, the society can collect Rs.100/- towards admission fee.

Q.72: What charges can be charged and what charges cannot be charged to the builder for his unsold vacant flat in the registered society.
i) Maintenance charges
ii) Sinking fund
iii) Water charges
iv) Building Repair fund.

Ans: We are of the opinion that in the event of the builder keeps his flats vacant quite a pretty long time; the society can levy all the charges as applicable to other flats in the society.

Q.73: What action is to be taken on defaulter member not paying the monthly maintenance charges as well as building repairs fund?

Ans: If the member is not paying the maintenance and other dues, you may initiate Recovery proceeding against the member as per the Recovery procedure under section 101 of the MCS Act 1960. A booklet, which is available at our sale counter explains the procedure. You may purchase the same and follow action as per the format given in the said booklet..

Q.74: One of our members Mrs. A jointly holding flat with her husband Mr. B. whose name stands second in the share certificate expired on 25th April, 2007 without filing any nomination with the society. Mr. B on the death of his wife submitted the nomination form on 26th May, 2007. The managing committee however returned the nomination form on 21st June 2007 as he same was not submitted during the lifetime of the deceased member Mrs. A Mr. B was also advised to submit his application for transfer/membership vide Appendix 17 of the Model Bye laws.

Ans: After the death of the member, the joint member ceases to be a member of the society and the flat property ;goes to nominee or legal heir as the case may be. In the instant case cited by you, the member died without making nomination and hence the legal heir has to follow the transmission procedure as per the provision made in Bye law No.35 of the Byelaws.

Q.75: We want to open an account with the nearest Public Sector Scheduled Bank, which is situated 2 minutes walking distance from our society. It is therefore, convenient for us to have the banking accounts with the said Bank. Further the State Co- operative Bank are too far away from our place, at least 3 K.Meters away from us. Please clarify whether we can open an account with the one or more of the above scheduled banks situated close to us?

Ans: We have to state that Co-operative Housing Societies are supposed to invest their funds to the District central Co-operative Bank or State Co- operative Bank as per the provision made in the Section 70 of the Maharashtra Co-operative Societies Act 1960. In view of this, if you want to invest your society’s fund other than those banks specified above, you have to take necessary permission from the concerned Deputy Registrar of your area.

Q.76: A member in our society has handed over his flat to his father in law wherein his son i.e. brother in law of the member and his family members are staying. We have decided to collect non occupancy charges from the member. Please advise whether we can charge from the member. Please advise whether we can charge NOC from the member or not?

Ans: It appears that a member of your society ahs handed over his flat to his father in law, however, the said flat is occupied by the brother in law of the member. In view of this as per the Government Circular for NOC the brother in law is included in the definition of the family and hence, NOC charges cannot be levied in such case.

Q.77: Can associate member become managing committee member immediately after becoming the associate member?

Ans: Co-operative Housing Societies are exempted from the purview of Section 27(3A) of the MCS Act 1960. Therefore, a member or the associate member can enjoy voting rights from the date of admission to the membership of the society. Consequently he can contest the election to the Managing Committee.

Q.78: We seek your guidance on following points.
When a member expires, his share certificate is transferred to a person who has been nominated in the Nomination Form. In such cases, should society insist of Form No.20 (1), 21, 23, 25, 26 & 4 duly filled in?

Ans: We have to state that the forms referred above are pertaining to transfer of flat between two living persons. In the case of nominee application for membership after the death of the member is called transmission and in transmission case, the nominee has to apply for membership in the prescribed form no.15 with other documents as provided under bye law no.34 of the bye laws.

Q.79: Please guide us when a new member can join managing committee of the society is there is any restriction from the date of membership or he can join the committee on acquiring the membership.

Ans: We have to state the Co-operative Housing Societies are exempted from purview of Section 27(3A) of the MCS Act 1960. Therefore, a member can enjoy voting right from the date of admission to the membership of the society and consequently he can contest the election to the managing committee also.

Q.80: We hereby request you to give us clarification about tenure of elected/co-opted members of the managing committee, whether it is up to AGM concerned or up to the end of the previous financial year (31..2007). Also what are the maximum allowable members of the managing committee of the society with more than 250 bonafide members and having 10 wings in total four (4) buildings, kindly advise.

Ans: We have to state that as per old bye laws the tenure of the elected committee shall be for three years. However, in revised bye laws (2001) the tenure of the committee shall be for 5 years. The tenure of the co- opted member of the committee shall be co-terminus with the tenure of the office of the committee. In view of this, the managing committee shall hold election before expiry of its term and not concerned with AGM and previous financial year. The maximum allowable members of the managing committee upto 300 members would be 9.

Q.81 Mr. A & Mrs B sold their flat to Mr. C and Mrs. D Mr. A & Mr. C are real brothers. Kindly give your opinion whether the society has to charge transfer premium or not.

Ans: We have to state that the transfer premium cannot be levied for transfer of flat to a brother, as brother is included in the definition of family as bye law.

Q.82: We will appreciate if you can give us your opinion and advise on the following points.
1) Regarding Non Occupancy Charges it is given to understand that for residential flats as per bye laws, the charges are at 10% of the society service charges.
2) We would like to know whether the above mentioned charges are also applicable to shops?

Ans: We have to state that the flat includes shops also and whatever applies to the flats applies to shops also and hence shop holders are also liable for payment of non occupancy charges at 10% of the service charges as stipulated in Government circular.

Q.83: In case of two persons, say husband and wife, or a brother and a sister may have contributed to purchase a flat jointly, then they would desire and insist on both of them being enrolled as member of the society. This requirement becomes necessary when they have obtained loan for purchase of the flat from a bank. While the bye laws are clear, that only one member can exercise voting rights at the general body meetings or its election, it is not clear whether we can grant joint membership though the model bye laws are silent on the subject. Please advise us on the above issue.

Ans: A member also has executed an agreement jointly with a person at the time of purchase of flat, the subsequent member is called joint member or co-owner along with the first member. In view of this the society can enroll them as a member and joint member respectively. As regards exercise of voting rights to joint member, the joint member can attend and vote at the meeting in the absence of the original member.

Q.84: A person whose name was first on the share certificate of procedure to be followed by the survived legal heirs to get the respective flat transferred on their name?

Ans: If a member died without making any nomination or will the legal heir has
to apply for membership in the prescribed form No.17 as per the provisions made in the bye law no.3.5 of the bye laws., We advise you to inform the legal heirs to comply the transmission procedure as per the said provision.

Q.85: In 0ur society, defaulter members not paying regular maintenance bill and as well as major repair amount for long period. We have issued many reminders and given notices to defaulters but response is negative.

One of the defaulter members has given his flat on rent without taking permission from society and not completed procedure as per letter sent to him. He refused to accept any letter issued to him. Please advise us on the above mentioned subject.

Ans: If the member is not paying the regular maintenance dues as well as major repair amount, you may proceed against the said member as per the Recovery Procedure U/s. 101 of the Maharashtra Co-operative Societies Act 1960. The procedural booklet is available at our sale counter you may purchase and follow the same.

As regards defaulter member, who has given his flat on leave and license without any permission of the society, you may issue him notice that his subletting is in violation of the provision made in the model bye law no.43 of the byelaw and he should stop subletting immediately, failing which action against him including expulsion as per provision made in the Section 35 of the Maharashtra Co-operative Societies Act 1960 may be initiated against the concerned member.

Q.86: We have received deed of sale from flat owners. The flat owner also owns garage which has not been sold. The member wishes to transfer the garage without any transfer documents. We kindly request you to give you advise on the above matter as to whether the garage can be transferred just by a letter to an existing member or an agreement to that with stamp duty and registration fee paid is required.

Ans: We have to state that if the member after sale of his flat wants to transfer his garage without any transfer document. This is incorrect. Further in order to establish ownership right of the purchase in immovable property, it is necessary to execute sale deed and to pay stamp duty thereon with registration. If the purchaser has not completed these formalities there is no title to the garage.

Q.87: We wish to know whether signature of Hon. Secretary is compulsory in Banking Transaction. You are requested to kindly provide us the Clarification on the matter.

Ans: We hereby clarify that Banking Account shall be opened by the Society in the State or District Co-operative Bank and that all acquaintances and discharges must be signed by the Secretary jointly with the Chairman or Treasurer.

Q.88: A member in our society has handed over his flat to his father in law wherein his son i.e. brother in law of the member is staying. . Please advise whether we can charge NOC.

Ans. It appears that a member of your society has handed over his flat to his father in law; however, the said flat is occupied by the brother in law of the member. In view of this, as per the non occupancy charges, the brother in law is included in the definition of the family and hence, NOC cannot be levied in such case.

Q.89: In the Special General Body Meeting our society has unanimously passed a resolution to levy of additional maintenance charges towards lift renovation charges @ Rs.10/- per Sq.ft. for the period of 18 months. Some of the members holding ground floor flats raised the objection that they do not use the lift in the building and they may be exempted to levy additional lift renovation charges as per the rate and period as mentioned in the resolution. Please guide in the matter.

Ans: We have to state that if the lift facility has been provided in the society’s building in such case the expenses and repair and maintenance of the lift including charges for running of lift should be equally divided and not area wise by all the members of the building in which lift is provided, irrespective of the fact whether they use the lift or not, or whether the flat is on ground floor.

Q.90: We would like to have your opinion and guidance on the following matter.
One of our members died last year without having any will and proper nominations Legal heirs of the member applied for the membership. They have obtained letter of Administration form Bombay High Court in favour of son of late member. Please clarify.

i) Do we have to ask for any application form for membership and to transfer the share certificate in the name of member?

ii) Do we have to ask for entrance fee?

Ans: We have to clarify as under:

i) Yes. You have to obtain application for membership by the legal heir. In the Share Certificate, you have to write the name of the person who is applying for membership.

ii) Yes. You can collect Rs.100/- towards entrance fee.

Q.91: Mr. A is the member of our society. He has appointed Mr. B. as attorney by giving a General Power of attorney. Now Mr. A has requested the society to admit Mr. B as an associate member and has paid requisite membership fee. Mr. B. is not related to Mr. A. We desire to know what is the eligibility for any person to be admitted as an associate member. Bye law No. 19(B) of the bye laws does not specify the person to be admitted as an associated member.

Ans: We have to clarify that the bye law does not specify to prohibit a person to become associate member who is not related to a member. Under the circumstances, we are of the opinion that the society can consider associate membership irrespective of a person related to a member or not.

Q.92: One of the members of our society whose name stands first on the share certificate expired recently. There is no nomination or will. Under such circumstances what the detail procedure

Ans: If the member dies without making any nomination or will the legal heirs have to apply for the membership in the prescribed format No.17 as per the provisions made in bye law No.35 of the bye laws.

Q.93: We have lost our original registration certificate, we do not have any copy for the same. We required the same for getting the PAN No. from the Income Tax Authorities. Please advise us how to get the duplicate registration certificate.

Ans. It appears that your society has lost the original registration certificate issued by the Deputy Registrar, C.S. of your area at the time of registration of your society. In this context, we advise you to make an application to the Deputy Registrar, C.S. of your area. Please note that court fee stamp should be affixed on the application.

Q.94: We have received the transfer application from the member of the society, the transferor and transferee have submitted forms and documents, as required under the bye laws. Can the managing committee effect transfer i.e. record charges in the share certificate and society records. Is the formal approval in AGM is necessary and till the AGM takes place, the transfer is to put on hold. Kindly advise in the matter.

Ans. We have to state that as per the provision made in the bye law No.19(a) of the bye laws, the Managing Committee is competent to approve the individual transfer cases; it is not necessary to take formal approval in the AGM.

Q.95: It is stated in the bye laws that a member may revoke or vary his nomination at any time by making application in writing under his hand, to the Secretary of the society. We request you to let us know the following.

i) Whether proof of such application is available?

ii) Whether a fresh set of nomination has to be submitted to the managing committee by a member along with his/her application in writing while revoking/varying his/her nomination.

Ans. We hereby clarify that there is no any specific proforma for revoke or vary nomination filed by the member. If the member intends to revoke or vary nomination, will have to make an application in writing under his hand to the Secretary of the society. The acknowledgment of the variation in nomination/subsequent nomination by the Secretary shall be deemed to be the cancellation of the earlier nomination. Every fresh nomination shall be charged a fee of Rs.50/-. While submitting revocation of nomination, it is not necessary to submit fresh nomination with it. He can submit it subsequently.

Q.96: We have received application for associate membership. The agreement for purchase of flat is in the name of one person only. It is not in joint name. Also the share certificate issued by the society is having one name only. How can one person become member without agreement and his name can be added in the share certificate? If it is so, will it affect any income tax liabilities/stamp duty/right in the flat or not. Kindly advise.

Ans. We have to state that even though the purchase agreement appears to have been in single name, if a member intends to join with him as an associate member, he can apply for associate membership in the prescribed form. Your managing committee can approve the associate membership. After the approval, his name can be added on the backside of the share certificate. Please note that the associate member is not like a property donor and therefore, Income tax liabilities / stamp duty etc. are not applicable to such case.

Q.97: A member of our society has applied for duplicate share certificate since the original issued to him by the society has mislaid. Kindly enlighten the procedure to issue of duplicate share certificate.

Ans. For issue of duplicate share certificate the society has to follow the following procedure.

Please get application from the concerned member. Display on your notice board a notice inviting objections, if any, to issue duplicate share certificate to the concerned member within 15 days. Please note that the objection received after 15 days will not be entertained. If objections are not received, or if received, after considering the same, please the issue before the managing committee and after approving the proposal by the managing committee then duplicate share certificate can be issued to the concerned member. Further to note that the entries in the duplicate share certificate will be ditto as per original, also write the word ‘DUPLICATE’ in bold letter. The society can charge Rs.50/- towards the same.

Q.98: We have little confusion in associate joint member joining in the managing committee. Kindly clarify the same in order to clear our doubt on the said matter.

Ans. The joint / associate member can contest election of the Managing Committee or can be co-opted against vacant post, if any, provided the original member gives NOC in format 10-A appended to the byelaws. Please note that the joint/associate member steps into the shoes of the committee, all the rights and privileges of other original elected members will go to associate/joint member also. In other words the elected/co- opted associate members can become office bearer also.

Q.99: Kindly clarify the position whether indemnity bond is to be obtained from single nominee.

Ans. The Indemnity Bond should be obtained where there are more nominees than one and not otherwise.

Q.100: We have few queries on transfer.
A member sells his flat and submits transfer papers; the society has not considered the transfer for want of the General Body Meeting.
(a) Is this new member liable to pay the non occupancy charges? Since the bills are issued in the name of the old member?

(b) What will be the date of admission to the society? Date of application, date of the managing committee considering the application or the date of the General Meeting?

Ans. We have to state that, if the member submits all the relevant papers for transfer, your managing committee is competent to approve the transfer as per the provision made in the bye laws without waiting for general body meeting.

In view of this, you cannot charge non occupancy charges. We advise you to approve the transfer in the Managing Committee and admit him as a member of the society. The admission of the membership will be on the date of approval of the Managing Committee.

REGISTRATION OFFICES

MUMBAI CITY DISTRICT

Designation of Sub-registrar
His Office addresses & Tel. Nos.

Joint Sub-registrar of Assurance,
Mumbai City – 1
Ground floor, Old Custom House
Near Horniman Circle,
Shahid Bhagat Singh Road
Fort, Mumbai 400 023
Te. 2263 4001

Joint Sub-registrar of Assurance,
Mumbai City-2

Ground floor, Old Custom House,
Near Horniman Circle
Shahid Bhagat Singh Road,
Fort, Mumbai 400 020
Tel: 222613878

Joint Sub-registrar of Assurance,
Mumbai City-3

Ground floor, Old Custom House,
Shahid Bhagat Singh Road
Fort, Mumbai 400 023
Tel. 2264 1985

MUMBAI SUBURBAN DISTRICT

Joint Sub-registrar of Assurance,
Andheri Taluka-1,

Family Court Bldg, Gr.Floor,
Opp. MMRDA Building
Bandra Kurla Complex
Bandra East, Mumbai 400 051
Tel. 2659 2019

Joint Sub-registrar of Assurance,
Andheri Taluka – 2

Family Court Bldg, Gr.floor
Opp. MMRDA Building
Bandra Kurla Complex
Bandra East, Mumbai 400 051
Tel. 2659 0920

Joint Sub-registrar of Assurance,
Andheri Taluka – 3

Opp. MMRDA Building
Bandra Kurla Complex
Bandra East, Mumbai 400 051
Tel. 2659 2636

Joint Sub-Registrar of Assurance,
Andheri Taluka – 4

Family Court Bldg, Gr. Floor
Opp. MMRDA Building
Bandra Kurla Complex,
Bandra East, Mumbai 400 051
Tel. 2659 2907

Joint Sub-registrar of Assurances,
Borivali Taluka – 1

Shree Shreemal House,
Jain Mandir Road, Opp. Aarey Road,
Goregaon West, Mumbai 400 062
Tel. 2877 4683

Joint Sub-registrar of Assurance,
Borivali, Taluka – 2

1st floor, New Tahsildar Office Building
Natakwala Lane,
Opp. Lord Krishna Bank
Borivali West, Mumbai 400 092
Tel. 2861 7775

Joint Sub registrar of Assurance,
Borivali Taluka 3

1st floor, New Tahsildar Office Building
Natakwala Lane, Opp. Lord Krishna Bank
Borivali West, Mumbai 400 092
Tel. 2861 7776

Joint Sub-registrar of Assurance,
Borivali Taluka – 4

Gr. Floor,
Shree Shreemal House,
Jain Mandir Road, Off. Aarey Road,
Goregaon West, Mumbai 400 062
Tel; 28774685

Joint Sub Registrar of Assurance,
Borivali Taluka – 5

1st floor, New Tahsildar Office Building
Natakwala Lane,
Opp. Lord Krishna Bank
Borivali West, Mumbai 400092
Tel; 28617774

Joint Sub-registrar of Assurance,
Borivali Taluka – 6

Gr.floor, Shree Sreemal House,
Jain Mandir Road,
Off. Aarey Road, Goregaon West,
Tel: 228774684

Joint Sub-registrar of Assurance,
Kurla Taluka – 1

New Administrative Bldg, Phase II,
Ground floor,
Ramkrishna Chemburkar Marg,
Near Tilak Nagar Bridge,
Near Rationing Office, Chembur
Mumbai 400 071
Tel. 22529 51 41

Joint Sub-registrar of Assurance,
Kurla Taluka – 2

Shop No.3, Eim Link Complex,
Gr. Floor, Opp. India Container Yard,
Link Road, Bhandup West
Mumbai 400 0789
Tel. 2566 1122

Joint Sub registrar of Assurance,
Kurla Taluka – 3

New Administrative Bldg, Phase II,
Ground floor, Ramkrishna Chemburkar Marg,
Near Tilak Nagar Bridge, Near Rationing Office,
Chembur, Mumbai 400 071
Tel. 2524 6642

Joint Sub registrar of Assurance,
Kurla Taluka – 4

Shop No.3,
Exim Link Complex, Ground floor,
Opp. India Container Yard,
Link Road, Bhandup (West)
Mumbai 400 078
Tel 2566 133

Property Card Offices

FOR MUMBAI CITY DISTRICT

MUMBAI CITY DISTRICT COLLECTOR OFFICE

The Superintendent, Mumbai City Survey & Land
Records, 1st floor, Old Custom House.
Shahid Bhagat Singh Marg,
Near Horniman Circle, Near Central Library
Fort, Mumbai 400 023
Tel. 22661231
Property Card for entire Mumbai City District is available
At this office.

FOR MUMBAI SUBURBAN DISTRICT.

City Survey Officer, Mulund,
Topiwala college Building,
Sarojini Nagar Road,
Mulund West, Mumbai 400 080
Tel : 2561 9878

City Survey Officer, Kurla

Topiwala college Building,
Sarojini Nagar Road,
Mulund West, Mumbai 400 080
Tel : 2561 9878

City Survey Officer, Bandra

Municipal Motor Garage Compound,
Opposite to the Santacruz bus Depot
S.V.Road, Santacruz West
Mumbai 400 054

City Survey Officer, Andheri

MHADA Colony, Opposite Telephone
Exchange, Next to R. T. O. Office,
Near Shree Swami Samarth Nagar Road,
Near Link Road, Andheri West,
Mumbai 400 058 Tel; 26362674

City Survey Officer, Malad,

5th floor, New Tahsildar Office Building,
Natakwala Lane, Opp. Lord Krishna Bank
Borivali West, Mumbai 400 092

City Survey Officer, Borivali

4th floor, New Tehsildar Office Building,
Natakwala lane, Opp. Lord Krishna Bank
Borivali West, Mumbai 400 092

City Survey Officer, Ghatkopar

Topiwala College Building,
Sarojini Nagar Road,
Mulund (West), Mumbai 400 080
Tel. 2561 9878

City Survey Officer, Chembur

Topiwala College Building,
Sarojini Nagar Road,
Mulund (West), Mumbai 400 0080
Tel: 25619878

City Survey Officer, Vile Parle

Municipal Garage Compound,
Opposite to the Santacruz bus Depot
S. V. Road, Santacruz West
Mumbai 400 054 261 28110

City Survey Officer, Goregaon,

MHADA Building, Plot No.10,
Opposite Champion Biscuits Company,
Opposite Sahara India Building,
S. V. Road, Goregaon West,
Mumbai 400 062 Tel: 28729316

Area Jurisdiction (Divisions)

Bhuleshwar, Byculla, Colaba, Dadar-Naigaon, Dharavi,
Fort, Girgaum, Lower Parel, Mahim, Malabar Hill &
Khambhala Hill, Mandvi, Matunga, Mazgaon, Parel-
Sweri, Princess Dock, Salt Pan, Sion, Tardeo & Worli

Area Jurisdiction (Villages):

Bhandup, Kanjur, Kopri, Mulund East, Mulund West,
Nahur, Paspoli, Powai & Tirandaz

Kurla-1, Kurla-2, Kurla – 3, Kurla – 4, Mlhili & Saki.

Bandra East, Bandra-A, Bandra-B, Bandra-C, Bandra-D, Bandra – E,
Bandra – F, Bandra – G, Bandra-H, Bandra – I, Kole-Kalyan & Parigha-Creek
Tel: 26128110

Ambivali, Andheri, Bandivli, ismallya, Madh, Majas,
Mogra, Oshiwara & Versova

Aarey, Chinchaoli, Dindoshi, Goregaon, Gundgaon, Kurar,
Malad East, Malad North, Malad South, Sai & Tulsi

Borivali, Charkop, Dahisar, Eksar, Gorai, Kandivali,
Kanheri, Magaathane, Mandapeshwar, Manori & Shimpoli

Asalpha, Chandivli, Denorar, Ghatkopar, Ghatkopar-Kirol,
Hariyali, Kirol, Tungva & Vikhroli.

Aanik, Borla, Chembur, Deonar, Ghatkopar, Ghatkopar- Kirol
Hariyali, Kirol, Tungva & Vikhroli.

Aanik, Borla, Chembur, Mahul, Manbudruk, Mandale,Mankhurd,
Marvali, Nanale, Turbhe Mulund & Vadhvali

Bapnala, Brahmanwada, Chakala, Gundhvali, Juhu, Kondivata,
Marol, Maroshi, Mulgaoh, Parjapur, Sahar, Varivali, Vile Parle
(east), & Vile Parle (West).

Akse, Akurli, Darvali, Erangal, Malvani, Marve, Pahadi – Eksar,
Pahadi-Goregaon East, Pahadi – Goregaon – West, Poisar, Valnai & Wadhvan.

ADJUDICATION OFFICES

For property situated in Mumbai City

Collector of Stamps, Mumbai City
Old Custom House, 3rd floor
Sahid Bhagat Singh Marg,
Near Horniman Circle, Fort,
Mumbai 400 001

For Property Situated in Borivali Taluka

Collector of Stamps, Borivali
MMRDA Building, 1st floor
Opp. Family Court
Bandra Kurla Complex
Bandra East, Mumbai 400 051

For property situated in Andheri Taluka

Collector of Stamps Andheri
MMRDA Building, 1st floor
Opp. Family Court, Bandra Kurla Complex
Bandra East, Mumbai 400 051

For Property situated in Kurla Taluka

Collector of Stamps, Kurla
Ground floor, Kurla Complex
Near Administrative Building, Phase II
Ramkrishna Chemburkar Marg,
Near Tilak Nagar Bridge
Near Rationing Office, Chembur
Mumbai 400 071

BUILDERS CAN’T SELL STILT & OPEN PARKING SLOTS: HC

High Court says buildings & premises belong to Societies.

The builder can’t sell open spaces or space within stilts for parking.

Even if the residents have given an undertaking giving up claim for open spaces, it can’t be held as binding.
The area within stilts, even if enclosed, will be considered as open space as the builder is not paying any separate property tax over it.

In a major relief to thousands of flat owners, the Bombay high Court has ruled that the builders or developers cannot sell open space in housing societies for parking. Disposing a petition filed by a housing society in Borivali against its developer, the HC has categorically made it clear that once the occupation certificate is issued by the relevant authorities and the society is registered. The building as well as the suit parking spaces, open spaces and all common amenities become the property of the society”. The builder/developer ceases to have any title on the same, the court stated.

Justice Mariapaile, in a decision delivered on April 25, has even rejected the builder’s claim that flat owners in this case had given an undertaking giving up their claim on the open space. The HC order is significant given the number of similar complaints various consumer bodies and courts receive regularly.

In this case, the said builder at Borivali had locked open space within the stilt with collapsible gates and wanted to sell it to flat owners in the building for parking. He had kept this open space under lock and key and prevented residents from using it. “This was totally illegal,” the HC stated. Since the space was covered from three sides, the builder had argued that these are garages and as such he can sell them as separate premises. He had also argued that these garages do not form a part of the society’s open space, which should be made available to the society members.

The HC quoting Development Control Rules dismissed this claim and made it clear that the stilt area, even if it is enclosed, continues to be an open space and since the builder is not paying any separate property tax over it, his claim of it being a garage are not acceptable. “It is not an additional premises/area that he is authorised to sell either to any flat purchaser or to any outsider. It is a part and parcel of the society building and it cannot be a separate premises available for sale.” The court noted.

The HC also rejected the builder’s claim that society members have given an undertaking giving up all rights on any open space while purchasing flats. In a clear term, the court noted that, “ it cannot be presumed that every flat purchaser was in the know of the clauses of the model agreement and its binding nature. The builders tend to encash on his ignorance and seek all sorts of undertakings which are contrary to the provisions of DC rules.”

The HC in a definite term has clarified that “any undertaking furnished by the flat purchasers cannot have a binding effect as it would be contrary to the guarantees available to the flat purchasers under the Act”. The HC noted that” such undertakings is an act which is forced upon by the developer and it is commonly known that if the flat purchaser refuses to furnish such an undertaking, he would be informed that the flat is not available for sale.”

Q.4 Kindly enlighten who can attend/vote/contest election, in case the flats are owned by corporate bodies? Further the voting rights in case the corporate body having number of flats in the society?

Ans. When the flats are owned by corporate bodies than the resolution of the Board of Directors authorizing its representative to the vote/contest election on behalf of the corporate body is necessary, then such authorized person can vote/contest election.

As regards voting rights, one member and one vote is a criteria followed in Co-operative Housing Society as per Maharashtra Co-operative Housing Society as per Maharashtra Co-operative Societies Act 1960. In view of this provision, even though, the corporate body/firm is having any number of flats in the society, the corporate body/firm is the sole member of the society and hence, has only one vote.

Q.101 : Under which Act, stamp duty is charged?

Ans. Stamp duty is charged under the Mumbai Stamp act 1958.

Q.102: On which instruments, stamp duty is required to be paid?

Ans. Stamp duty is required to be paid on all types of instruments mentioned in Schedule 1 of the stamp act.

Q.103: On which types of instruments, tamp duty is charted according to the prevailing market rate ?

Ans. Agreements of immovable property, sale deeds, exchange, gift deeds, purchase deeds, power of Attorney with consideration, conveyance deed, lease deed etc. stamp duty is paid on all these instruments at the prevailing market rate.

Q.104: What are the rates of stamp duty on conveyance deed?

Ans. The Mumbai Stamp Act 1925 specified the rates to be charged on transfer of property. This Act is restricted to the State of Maharashtra. The rates of stamp duty charged on conveyance deeds are different and they vary from place to place.

However, the provisions of Maharashtra Ownership Flats Act 1963 or Maharashtra Ownership Act 1970 are applicable to the flats and buildings in Co-operative Housing Societies. Accordingly, concessional rates of Section 25(D) of the Mumbai Stamp Act 1958 are applicable to residential flats. They are as follows:

Market Rate Stamp duty rate.
1. Upto Rs.2,50,000 Rs.100/-
2. Rs.2,50,001 to Rs.5,00,000 Rs.100 + 3P.C.
3. More than Rs.5,00,001 Rs.7,600 + 5P.C.
More than market rate of
Td.5,00,001/-

Q.105: Which Instruments in Maharashtra attract stamp duty as per Indian Stamp act 1899?

Ans. Bill of Exchange, Bill of Lading, Debenture, Letter of Credit, Policy of Insurance, Proxy, Receipt and Transfer of share, attract stamp duty rates as per Indian stamp Act 1899.

Q.106: What is meant by execution of an instrument?

Ans. To affix their signatures on the instruments by parties to the instrument. This is called execution of the instrument. This is called execution of the instrument. It is obligatory to affix the signatures in the presence of two witnesses. The date on which, the signatures are affixed, are to be mentioned on the instruments.

Q.107: Who is to pay stamp what is the provision in the Act?

Ans. Section 30 of the Mumbai Stamp Act 1968 mentions the provisions regarding as to who is to pay the stamp duty? The purchase of the property has to pay stamp duty on purchase deed of immovable property , sale deed etc. The lessee in respect of lease rent or lease agreement has to pays tam duty in respect of exchange of letters, both the parties have to pay stamp duty equally.

Q.108: There is a case in our society that the flat stands in joint names with son and mother and the mother being the 2nd named person in the share certificate intend to release her right in favour of the son. Kindly enlighten us the procedure to be followed in this case.

Ans. If the flat stands in joint names with son and mother and in the event of mother being the joint member wants to release her shares, title and interest in favour of the primary member(Son), she will have to make a “Release Deed” in favour of her son. If the release deed involved without any financial consideration then the stamp duty of Rs.200/- only shall apply as per the article 52 of the amended Bombay stamp Act, 1958. Such Release deed is not required to be registered. However, the same should be executed and signed before the Competent Authority and notarized property. No transfer premium, transfer fee shall apply to such transaction.

Q.109: Our Society is formed and there are certain unsold parking stilts uin our society. Kindly enlighten whether the Builder has the right to sell the unsold stilts after formation of the society or the society has the right to allot the same to its members.

Ans: We have to clarify here that the unsold stilts, parking area if any, after formation of the society belongs to the society and as such the Builder has no rights to sell the same to any of the members of the society. The society has to take possession of the unsold stilts and allot to the members as per the parking provisions laid down in the bye laws.

Q.110: Please clarify the subletting procedure and what action the society can take if a member has subletted his flat without the permission of the society.

Ans. We have to state that in case a member intends to give his flat on Leave & License basis, he should make an application to the committee of his intention of sub letting his flat, as required under the provision made in Bye law No.43. If the society accepts his application, it may ask him to submit the required documents pertaining to sub letting such as Leave & License Agreement duly stamped & Registered as required under Article 36-A of the Bombay Stamp Act, Applicatio9n for Nominal membership in the prescribed form No.29 as appended in the Bye laws. In case of renewal, the same procedure shall apply.

In view of the above, if a member has not complied with the above procedure while giving his flat on Leave & License basis. You may issue him a legal notice that his sub letting is in violation of provision made in the bye laws and ask him to comply with the procedure within the stipulated period in the Notice. Failure of the member amounts to breach of Bye law No.43 & hence procedure as Laid down in Bye law No.166 regarding penalties should be followed by the committee. If this is not effective, Legal action may be initiated against the member.

Q.111: One of our garage owners intends to give her garage for commercial purpose and asked society’s permission for the same. Whether society can give such permission to the garage holder.

Ans. The garage is meant for parking of vehicles and not for the use of any commercial purpose and as such the society can refuse the permission for leasing out the garage for commercial purpose.

Q.112: A flat in our society is very recently transferred. Now the purchaser wants to resell this flat to another person and he sought NOC from the society, whether society can give NOC to such transfer.

Ans. In this connection, we have to state that as per provision made in Section 29(2) (a) of the Maharashtra Co-operative Societies Act, 1960, a share in the society cannot be transferred before completion of one year. In view of this, the society cannot give NOC to such transfer, as it will amount to breach of the said legal provision.

Q.113: A. Kindly explain whether a person, who jointly holds the share certificate can only become an “Associate Member”?

B. How to become a joint holder to the share in the society?

C. How to get registered associate membership under any law for the time being in force? According to the Bye law No.19(B) in order to be admitted as Associate Member”?

Ans. (A) The person who is already admitted to the membership of the society and issued share certificate in single name and who desires to admit another person as an associate who desires to hold shares jointly with the original member by making an application in the prescribed Form No.7, such person can become an associate member, provided the managing committee approves his / flat application for associate membership.

(B) There is no provision for joint membership in the revised bye law No.16. The second person holding shares with original member is called as an “Associate Member”.

© Associate member being an individual and as such it is not necessary to register the Associate membership with any competent authority, except in the records of the society. Bye law No.19B also refers to admission of firm, company etc. which needs to be registered under the related law.

Q.114: We are in the process of issuing share certificates to our members. During the process we observed that one of the members (Firm) has purchased eight flats under single agreement. Now, we are in a dilemma whether to issue single certificate with shares of Rs.50/- each or eight different certificates with ten shares each or any alternative. Kindly give your opinion / guidance on the said issue.

Ans: We have to state that in a co-operative housing society, one member will be issued one share certificate irrespective of a member holds more than one flat in the society as one member, one vote and one share certificate is a criteria followed in a co-operative housing society. In the instant case, the firm being a corporate body, has purchased more than one flat in the society, therefore, the firm has to purchase 10 shares of Rs.50/- each. The society has to issue to the firm only one share certificate for 10 shares each of Rs.50/- as per Annexure 1 to the model Bye laws under Bye law No.18.

Q.115: Kindly enlightens the procedure to be followed for issuing duplicate share certificate in case of loss share of original certificate by a member.

Ans. A member has to make an application to the society for issue of duplicate share certificate with reason therefore. The society on receiving the application should put a public notice on the Notice Board inviting claim / objection,. if any, within 15 days on the date of putting the public notice. If objections are nor received or if received after considering the same get approval of the Managing Committee to issue duplicate share certificate after obtaining an affidavit cum undertaking is available at our sale counter). Please note that the wording on the duplicate share certificate will be ‘Ditto’ as per original. Please write the word ‘DUPLICATE’ issued in lie of original share certificate No.__________ on the top in Red Ink on the duplicate share certificate under initials of secretary, Chairman & Treasurer. You can charge Rs.50/- to the member for the same.

Q.116: (1) Who is eligible to vote and contest election to the managing committee?
(a) First named member only?
(b) Joint member also?
© Associate member?
(2)In what circumstances joint / associate member can vote / contest election to the managing Committee? Any form to be completed by the first named member authority joint / associate member to vote / contest election to the managing committee.

(3) Kindly enlighten whether there is any waiting period from the date of admission for member / joint member / associate member before they are eligible to vote / contest the election. If so, what is the period.

Ans. (a) The First Member is eligible to vote and contest election to the managing committee. However, in the absence of first member, the joint or associate member is entitled to attend General meeting & vote at it or even stand for election provided the first member gives no objection in favour of joint / associate member in Appendix 10-A annexed to the Bye laws.

(b) As explained in para 1 above the joint / associate member can vote and stand for election in the absence of original member with letter of authority in Appendix 10-A.

(c) Co-operative Housing Societies are exempted from the provision of section 27(3) A of the MCS Act 1960. Therefore, the member / joint member / associate member can enjoy the voting rights and consequently stand for election immediately from the date of admission to membership.

Q.117: We would like to know what are the rights and duties / powers and tenure of subcommittee constituted by the General Body to attend particular work?

Ans. There is no any specific provision in MCS Act 1960 or Bye laws regarding rights, duties and powers of sub committee constituted by the General Body. When such sub committee is constituted by General Body, then the General Body ought to have prescribed the rights, duties, powers and tenure of such sub committee, in the absence of such details such sub committee shall function under the over all supervision of Managing Committee.

Q.118: Kindly clarify the position on repairs to the roof of a flat in housing society. Whether roof of all flats or roof on the terrace floor flat?

Ans. We have to state that the Bye law No.160(a) gives various items to be repaired by the society at its cost. Item No,.(x) states “Structural Repairs of roofs of all flats”, said bye law does not specify a particular floor for the repairs of roofs of ceiling by the society. Bye law Nos 156 to 160 have fixed the responsibility of maintaining the property on the managing committee. In view of this I applies to repairs of roofs of all flats on all floors in building of the society at the cost of the society..

Q.119: A Society has filed a case U/S 101 against defaulter member. Whether defaulter member can attend the AGM/SGM?

Ans. The Defaulter member of the society can attend the AGM/SGM.

Q.120 : Can defaulter or member check the other party’s account? Can vouchers, books of accounts, audited by C.A.?

Ans. As per the provisions of Section 32(1) of the MCS Act, 1960, every member of the society (including defaulter ) shall be entitled to inspect free of cost at the society’s office during working hours, or at any time fixed for the purpose by the society a copy of Act, the rules and the byelaws, the last audited annual balance sheet, the profit and loss account, a list of members, the minutes of General Meeting, minutes of committee meetings and those portions of the books and records in which his transactions with the society have been recorded.

Q.121 : Can the society discontinue water supply and lift services of the defaulter member?

Ans. The society cannot discontinue the water supply and lift services of the defaulter member. It is an offence.

Q.122: What are the latest guidelines in the case of transfer of Membership rights (share transfer of the deceased) for the following conditions.

a) Deceased member has not made any nomination but made ‘WILL’?

Ans. “Will” shall be operated only after the probate was obtained from the Competent Court.

b) Deceased member has made nomination but not made Will?

Ans: Nomination is sufficient for transmission ‘woll’ is not compulsory.

c) Deceased member has made ‘Will” but not registered with Govt. Authority.

Ans. Registration of ‘Will’ is not compulsory but it is better if it is registered.

Q.123: One of the members of a society holds flat jointly with his youngest brother whose name is second in the share certificate and his younger brother is not residing in the same flat but he is holding a separate flat in his personal name in the other society. Whether this younger brother can attend the celebration of festival or get-together with lunch or dinner, which has organized by the society for every year, as he is second holder member in the share certificate.?

Ans. A person whose name stands first in the share certificate can attend the celebration of festival or get together with lunch or dinner which are organized by the society. In the absence of elder brother, the younger brother can attend the same.

Q.124: The members of society want to propose the amendment to the provisions of bye laws No.69(a) which is already adopted by the society at the time of formation of the society and proposed apportion ate of the service charges and expenses on repairs and maintenance of lift including charges for running life on the basis of area of the flat i.e. per sq.ft. basis. Whether such amendment in bye law no.69(a) will be legal?

Ans. The proposed amendment to the bye law no.69(a) will be contrary to the provision of the model bye laws. Such amendment of bye laws shall not be registered by the Registrar, C.S. as per the provision of section 13(1B)of the MCS Act,1960.

Q.125: One of the member of our society intends to transfer his flat in the name of his son in law and daughter. Kindly enlighten whether the society can collect transfer premium transfer charges etc. to this transaction?

Ans. We have to state that it is clearly stated in the note below Bye law No.3(e)(ix) that the condition of transfer premium shall not apply to transfer of shares and interest of the transferor in capital / property of the society to the member of his family.

“Family” as defined in Bye law No.3(xxv) includes son in law and daughter also and as such the society cannot collect any transfer premium to this transaction. However, transfer fee of Rs.500/- and entrance fee of rs.100/- as stated in the Bye law No.38(vii) & (Viii) are payable by the transferor and transferee.

Q.126: One of the members of the society having flat at ground floor, is planning to sale off his flat in future. The prospective buyer family being professional like Doctor, Architect and they want to use the said flat for the purpose of residential cum professional practice. Whether the society can reject the NOC?

Ans. As per the D. C. Rules, a buyer being a Doctor, Architect can use residential premises for his profession. The managing committee should not reject NOC.

Q.127: Managing Committee of a society has decided to issue the photo Cards to all members, their nominees, tenants and shopkeepers in the building. Whether it is contrary to the MCS Act, Rules and model bye laws of the society?

Ans. There is no such provision in the MCS Act 1960, Rules 1961 & model bye laws to issue such photo cards to the members of the society. However, your society can take up this issue before AGM/SGM for necessary approval.

Q.128: Whether a member can use his flat solely for conducting coaching class?

Ans. As per the provisions made in the bye law no.3(Vi) coaching classes are allowed in the Co-operative Housing Societies. However, the concerned member has to take prior permission from the society for conducting of coaching class. Please note that if students are more in nu7mbers, the interest of the other members of the society may also be protected by the concerned member.

Q.129: Mother sold her flat to her daughter who is unmarried. Whether in such cases transfer fee/donation is to be charted or not?

Ans. As regards charging of transfer premium for transfer of flat between mother and daughter, the same cannot be levied, as the daughter is included in the definition of family as per the provision made in the bye laws. However, you have to charge for Rs.500/- towards transfer fee and Rs.100/- towards entrance fee from the transferee.

Q.130: One member lost his share certificate what is the procedure for issue of duplicate share certificate?

Ans. For issue of Duplicate share certificate, it is not necessary to give public notice in newspapers it will suffice, if notice is displayed on the notice board of the society including claims and objections within 15 days from the date of display of notice. The concerned member will have to give an undertaking on stamp paper ofrs.100/- a specimen of which is available at our sale counter. All entries of duplicate share certificate as per the original share certificate will have to beamed at appropriate peaces. Remark such as Duplicate share certificate issued in lieu for final share certificate No.____ should be passed on the top of duplicate one under signature of secretary / chairman. You have to charge Rs.50/- on compliance of the above. Your managing committee is competent to approve the proposal & pass suitable resolution.

Q.131: What is the status of joint member and associate member in the society? Can Joint/associate member become nominee?

Ans. Status of joint member and associate member is the same in the co- operative Housing Society. Any second person whose name stands next to the original person in the membership form and share application form either at the time of registration of society or subsequently is called an associate member. His name may be in the Agreement of sale as joint purchaser. Original i.e. 1st member can nominate him associate member.
His name may be in the Agreement of sale as joint purchaser. Original i.e. 1st member can nominate him associate member.

Q.132: One person purchased a flat in our society. he has paid stamp duty but the flat sale documents have not been registered. Under these circumstances, can the society accept the documents for transfer of right and title of the flat?

Ans. We hereby clarify that the registration of sale deed in case of resale of flat is not compulsory as regulated in section 41 of the MCS Act 1960. In view of such provision in the act, if the purchaser paid stamp duty and furnished relevant documents pertaining to transfer as provided in the bye laws No.38(e) your managing committee is competent to approve transfer proposal without waiting for registration of sale deed.

Q.133: In our society one member expired. He had nominated his brother as nominee. The nominee applied for transfer of flat in his favour. Whether our society can transfer the flat in the name of the nominee.

Ans. The member died with sole nomination, hence, the nominee can apply for membership in the prescribed format no.15 as per the provision made in the bye law no.34. Your managing committee is competent to approve transmission, if the nominee furnishes relevant documents.

Q.134: One of the member of our society intends to transfer his flat in the name of his son in law and daughter. Kindly enlighten whether the society can collect transfer premium transfer charges etc. to this transaction?

Ans. We have to state that it is clearly stated in the note below Bye law No.3(e)(ix) that the condition of transfer premium shall not apply to transfer of shares and interest of the transferor in capital / property of the society to the member of his family.

“Family” as defined in Bye law No.3(xxv) includes son in law and daughter also and as such the society cannot collect any transfer premium to this transaction. However, transfer fee of Rs.500/- and entrance fee of rs.100/- as stated in the Bye law No.38(vii) & (Viii) are payable by the transferor and transferee.

Q.135: In our society a flat is owned in the name of Mrs.A Mr. B and Mr. C where Mrs. A is mother. Mr. B and Mr. C are two sons. Mrs. A expired; she has nominated her husband Mr. D in the nomination form. The two sons have requested the society to include the name of Mr. D the father as joint member of the flat. Should the society transfer the flat in the names of Mr. D, Mr. Band Mr. C or flat to be transferred in the name of Mr. D. Only.

Ans. We have to clarify that after the death of a member, the joint/associate member ceases to be a member of the society and the flat property goes to the nominee if the nomination is filed by a member at the time of his living.

In the instant case, the member died with sole nomination and therefore, you may ask the nominee to apply for membership in the prescribed form No.15, as per the provisions in the bye laws no.34. On compliance, the managing committee is competent to approve transmission of the flat 01.

Q.136: The election of the 7 members of the present managing committee was held at its general body meeting. The election of the office bearers amongst the 7 elected members was held subsequent to the above election i.e. Chairman, Secretary and Treasurer of the managing committee. Please clarify how the managing committee could resort the rotation of the office bearers?

Ans. We clarify that the rotation of office bearers i.e. Chairman, Secretary & Treasurer are to be decided amongst the committee itself and there is no specific provision made in the bye laws for the same.

Q.137: Our society has adopted the model byelaws. Please advise us how to handle the following situation.

a) We have 20 members; all are above the age of 65 years nobody has submitted nomination as per bye law no.32.

b) There are two applications for transfer of flat, can the managing committee approve the sale/transfer of the flat?

c) Can any member who is willing but short of two years conditions can be taken in managing committee?

Ans.
a) If a member dies without making nomination, in such event the legal heirs will have to follow certain procedure while claiming estate of the deceased member, as per the provisions of bye laws no.35. In view of this, we advise you to convince your old aged members to make nomination well in time to avoid any extra expenses to be incurred by the legal heirs in the wake of no nomination filed by the member at time of his living.

b) As per the provision made in the bye law No.19(a) the managing committee is competent to approve all individual transfer cases. However, as per the provision made in the bye law no.19(c) all the transfer cases for corporate body will be approved by the General Body.

c) As per the amendment Section 27 of the MCS Act, 1960, the members of the housing societies will be entitled to voting rights as soon as they become a member of the society. Subsequently, they can become committee member if elected.

Q.138: Our society is of 36 members and two buildings are about 40 years old. The society has decided for re-development of the buildings. Out of 36 members, 7 members are opposing the redevelopment of the society building. Is there any law wherein the 7 opposing members can be directed to follow the majority and do not obstruct the redevelopment of the society premises?

Ans. For the re-development of the society’s building if 70% of the members have voted, the redevelopment proposal in the general body, you can go ahead for the redevelopment proposal. Therefore, you may convince other members to joint with the proposal, as they will be unseated at the time of demolition. For more details we advise you to refer the section 33(7) of the D. C. Rules of the BMC.

Q.139: One of our lady members aged beyond 70 along with one of her son, is holding a flat in the society. She wants to eliminate her name and add the name of her daughter in law as a joint holder of the flat. She has furnished the consent of her other sons and also indemnity bond as required. In such case, whether the society can collect transfer fee of Rs.500/- and entrance of Rs.100/- as per the bye law no.38(e)(vii)(viii)?

Ans. In this connection, we would like to clarify that deleting first name during the lifetime of a member from the share certificate amounts to regular transfer as per the Bombay Stamp Act. Therefore, such transaction attracts payment of stamp duty.

In view of this, if the mother in law wants to relinquish her rights in the flat, and instead she wants to make her daughter in law as joint holder with her son, she has to make a sale deed or gift deed of her 50% share and pay stamp duty as per the market value of the flat apart from other documents as provided in bye law no.38of the revised bye laws. We duty, gift deed also is available as daughter in law is also included the definition of the family.

Q.140: One of the members of the society has sold her plot to some trust for their commercial purposes. Our society is purely residential and therefore, the society has not transferred the said plot in the name of the trust. Please advise us whether the society should transfer the plot to the trust which is going to use this plot for commercial purposes like marriage functions and other ceremony, which is causing lot of nuisance and breach of peace?

Ans. It is seen that the member has sold her plot to some trust for commercial purpose. It is further observed that the society has not transferred the plot in the name of the Trust, on the ground that the trust is going to use this plot for commercial purpose like marriage function and other ceremony, which is causing lot of nuisance and breach of peace. From the above, it is seen that the said plot is already sold to the trust. The society cannot withhold the transfer of the said plot. On the ground mentioned above, the change of user of plot is to be approved by the BMC with prior approval of the society. You can take up this issue with BMC authority to safeguard the interest of the society.

Q.141: A member in our society is having two flats. The builder has provided one entrance door for these two flats with all amenities of the single flat on the name, one agreement on the single name, the society has issued one share certificate for these two flats. There are 16 flats and 15 members in the society. Our society is charging for two flats, the member has refused to pay double service charges. Please advise whether these two flats in our society are to be treated as single flat or two flats?

Ans. As per your query, we clarify that if the said flats are shown separately in the BMC approved plan, you can charge two maintenance charges otherwise you can charge only one maintenance charge.

Q.142: We would like to have clarification about a member who has not completed the period two years in our Co-operative Housing Society?

i) Can he contest an election?

ii) Has he got the voting rights?

iii) Can he propose or second candidate member?

Ans. As per Govt. notification dated 29th Oct. 2003, Housing Co-operative Act 1960. Therefore, member is entitled to get voting rights as soon as he becomes member of housing society and contest for the election to the managing committee as well as he/she can propose or second any candidate.

Q.143: Can an associate member become a committee member and can he be appointed as an office bearer of the society?

Ans. An associate member after submitting the NOC and undertaking from the original member can contest the election and can be appointed as office bearer of the society.

Q.144: One of the Members of the society has 3 vehicles. Can the society levy double parking charge for second car and three times for the third car?

Ans. It is seen that one of the members of the society has 3 vehicles, as per your query we clarify that the society ahs to levy parking charges as per the rate decided by the General Body of the society and not more than the rate decided by the General body.

Q.145: What are the documents required for transfer of flats?

Ans. As per your query we advise to refer to the bye law no.38 (a) to(e) for the documents required for transfer of flats. You may refer the book let transfer of flat published by the Federation.

Q.146: One of the members of our society has asked for no objection certificate from the society for giving gift of his flat to his brother’s son, can we do so?

Ans. NOC is not required for Gift. Therefore, the managing committee of the society may consider such application on merit.

Q.147: Mrs. Kale and Mr.Kale (wife and husband ) jointly purchased a residential flat in a registered Co-operative Housing Society. The share certificate was endorsed (transferred) to Mrs.Kale’s name (first name in the share certificate) and Mr. Kale’s name (second in the certificate). The property is jointly held by Mrs. Kale and Mr. Kale in the ratio of 50-50. Mr. Kale and Mr.Kale have jointly nominated a nominee.

1(a) Since Mrs. Kale’s name (wife) first in the share certificate what is the status of Mr.Kale(husband) as a member?

1(b) Can Mr. Kale (second name in the share certificate ) automatically become an associate member or does he have to make an application to the society for associate membership?

1© Is it obligatory/mandatory for Mr.Kale to become an associate member to contest election. A joint holder whose name is already mentioned second in the share certificate is not entitled to contest election?

Ans. As per your queries, we advise you as follows:

1(a) Since Mrs.Kale’s name is first in the share certificate and Mr.Kale’s name second in the share certificate, in this case Mr. Kale is joint holder of the flat (he is joint member of the said flat.

1(b) Since Mr. Kale is the joint holder (second name in the share certificate) of the flat, he automatically becomes associate member. He need not apply for associate membership.

1(c) Mr. Kale being the (second name in the share certificate) he can contest the election by taking NOC and undertaking in Appendix – 10A from Mr. Kale.

Q.148: The society is in receipt of a Nomination whereby the 1st Member upon his demise had nominated as per the Nomination. 1/4th share of his flat, to his brother, sister-in-law, nephew and niece each. Subsequently on the other side of the nomination form, he has requested to transfer to his brother solely. The said brother also happens to be the 2nd name on the share certificate. Kindly let us have your opinion/comment on how the managing committee of the society should precede this matter.

Ans. It is seen that, the society has received a nomination whereby the 1st member had nominated 1/4th share of his flat to his brother, sister in law, nephew and niece each respectively. It is further observed that on the other side of the nomination form he has requested to transfer to his brother’s name solely. Further more the brother happens to be the second name/owner on the share certificate.

As per the situation mentioned above according to us, the second named person ceases to be the member of the society on the death of the original member and the flat property goes to the nominee/legal heirs as the case may be. In the present case, the member has made nomination in the name of four persons, in such event the nominees shall make joint application to the society and indicate the name of the nominee who shall be unrolled as member. The other nominees shall be enrolled as joint/associate members unless the nominees indicate otherwise as per the provision made in the bye law no.34 of the model bye laws.

Q.149: One of the members of our society has not paid the maintenance and taxes amounting to over Rs.13 lakhs for the last 6 years and gone in appeal to High Court against Revision Application as her application was not admitted as she did not deposit 50% amount. Whether society can stop lift and water supply to the member in view of above or not?

Ans. As per your query we have to clarify that lift and water supply are essential services provided by the society to all the members. You cannot deprive of such facilities to the member on the pretext of default.

Q.150(a) One of the members of our society had assigned his flat to his cousin sisters. The agreement is registered and stamp duty paid. The transferor and transferee refused to pay transfer premium to the society on the ground that they are cousin brother and sisters. Kindly guide us whether the society can recover transfer premium from them, as they do not fall under the definition of ‘Family Members’ as per bye law no.3(xxv)

Q.150(b) One of the members of our society having flat no.22 expired on 16.1.2006 and had nominated his relative by filing nomination form in the society on 22nd August, 1991. Nominee has applied to the society to transfer the above flat in his name. The society has received letter along with death certificate along with the nomination form. Whether society can transfer this flat in the name of nominee?

Ans: 150(a) As per your query, we have to state that cousin sisters are not covered under the definition of family and hence, transfer premium is applicable in such transfer cases. In view of the above, the transfer cannot be affected without payment of transfer premium.

Ans: 150(b) The member died with sole nomination. Hence, the nominee can apply for membership in the prescribed form No.15 as per the provisions of bye law no.34. Your managing committee is competent to approve the transmission provided the nominee furnishes relevant documents.

Q.151: One of the members had obtained loan from the Bank against mortgage of his flat and the share certificate is lying with the Bank. The said member expired recently. Nominee has complied with all the requirements except the share certificate and the clearance lien. In this case, whether the society can transfer the flat in the absence of the above two requirements.

Ans. In connection with the above matter we hereby clarify that as per section 30 of the MCS Act 1960 up on the death of a member, the flat property goes to the nominee, if the nomination is made during the period of his living. However, in the instant case, cited by you the deceased member has obtained loan from the Bank against mortgage of his flat and the share certificate is also deposited with the Bank. Under the circumstances, we are of the opinion that before effecting the transmission of flat to the nominee, it is advisable to inform the Banking authority and act as per the instruction of the Bank to avoid any complication.

Q.152: (a) Whether the AGM has power to dissolve the managing committee?

(b) Can the Chairman of the society call Special General Body meeting? Whether such meeting is legal?

(c) If the authentic copy of bye laws is lost, the other copy of the same bye laws can be referred or not?

Ans.(a)Annual General Body Meeting has no power to dissolve managing committee.

(b) As per bye law no.97, Special General Meeting may be called at the instance of Chairman. Further as per bye law no.99, if Secretary fails to issue notice of Special General Body meeting, Chairman can issue the notice. The meeting called by Chairman is legal.

(c) For the time being you can use the ordinary copy of same bye laws. However, for the permanent use you have to get the copy certified/approved from the office of Registrar of your area.

Q.153: Our newly elected managing committee has taken over charge on 24.4.2006. Our society accounts are incomplete. It is not possible to finalize the annual statement of accounts within the period mentioned in bye law no.147(a) please guide us?

Ans. At the outset, it is seen that your society is not in a position to finalize the annual statement of accounts within the period mentioned in the bye law no.147 (a). We therefore, advise you to request to the Registrar of your area to grant extension for submission of annual statement of accounts as per procedure laid down in bye law no.147.

Q.154: Our society was formed by way of non co-operation from the builder in June 2004. The builder owns 6 unsold flats. He thus became a deemed member of society post registration. In the last month, the builder sold one of the unsold flats to Mr. A, Mr. A refused to pay transfer premium as he bought the flat directly from the builder. Please clarify as to whether the transfer premium can be charged or not ?

Ans. We have to state that the first sale/purchase agreement executed between the builder and the purchaser does not amount to transfer of flat and hence, transfer premium cannot be charged for such transaction.

Q.155: Our society wants you to clarify the following points:

(a) In case of flat holding jointly by wife/husband (wife is the first name) what is the procedure of nomination. If the wife wants to nominate her husband for her 80% share of flat and the husband wants to nominate the wife for his 50% of his share.

(b) In case of a flat held by 4 brothers, 25% share each, (elder brother’s name first in the share certificate) how many sets of nomination there will be?

(c) In case of a society, where builder sells flats to some persons, should the seller(builder) take permission from society or not? As this is admission and not transfer, should the managing committee approve the admission?

(d) In case of transfer of flat who decide the transfer? Is it managing committee? Or AGM or both? Please clarify?

Ans. (a) We have to state that the wife being the first named person can nominate her husband. However, husband being the joint member cannot make separate nomination.

(b) A member can file only one sell of nomination irrespective of the nominates more than one person.

(c) The builder has right to sale the unsold flats without the permission even after registration of the society. The society can approve the admission of person (purchaser) as member in the managing committee.

(d) Individual transfer cases can be approved by the managing committee as provided in the bye laws no.19 (A) of revised Bye laws.

Q.156: One of our members Mr. X staying in our society is having outstanding dues to our society for an amount of Rs.1,26,323/- as on July, 2006. The society sent several letters/reminders for the payment of his dues but he refused to pay6 the same. We therefore, request you to guide us in this regards. How can we recover this long outstanding?

Ans. If the member is not paying the society’s dues, you may take action against such member as per the provisions made in section 101 of the MCS Act 1960. The recovery procedure booklet under Section 101 is available at the sale counter of the Federation. You can follow action as per the format given in the booklet.

Q.157: Three joint members of our society wrote letter along with two affidavits cum declarations for deletion of third name from share certificate and addition of new name at the third place. Can the society do it without procedure of payment of stamp duty and registration with office of sub registrar of Assurance? Does the society have to charge any transfer fee, entrance fee in this respect?

Ans: We have to state that for deleting the third name from the share certificate, it is necessary to make relinquishment deed. Thus, deleting third name does not involve any transfer transaction; there need not be any transfer procedure to be involved.

As regards adding the name in the share certificate, original first member has to apply for associate membership in the prescribed form No.7.

Q.158: Can the managing committee of Co-operative Housing Societies accept the nomination form from the member where the name and other details are typed and not hand written? Please Clarify.

Ans. As regards typed nomination form submitted by member, we clarify that as per the provision made under bye law no.32 of the model bye laws, a member has to fill the nomination form in his own handwriting. In view of the said provision typed nomination form cannot be accepted.

Q.159: A family in our society has two flats. One in the name of husband and the other in the name of wife. They have only one son and both have nominated their only son as their nominee. In case of their demise, the son will own two flats in the same society. We read somewhere that one person cannot hold more than one flat in the same society. Please clarify.

Ans. As per your query whether nominee can hold two flats after the death of the member. In this connection, we hereby clarify that after death of the member, the nominee gets the estate of the deceased member’s property by way of inheritance, therefore the nominee is entitled to hold the inherited property/properties and there is no any restriction to it.

Q.160: Our society has received an application for transfer of flat, which is more than Rs.Ten lakhs sale value. Kindly inform us whether we have to insist for any Income tax clearance or any Declaration required from the seller and buyer.

Kindly clarify the Income tax formalities for transfer of flats above Rs. Ten lakhs.

Ans. We have to clarify here that undertaking under Income tax Tax Act is not necessary if the consideration for the transfer is Rs.75,00,000/- or less as provided under footnotes in Appendix 27(1) annexed to the bye laws.

Q.161: Our society wants to recover dues/claims from the members of the society prior to its registration. Please advise how to recover?

Ans. We have to inform you that if the society is having any claims from any members prior to registration of the society. You have to file a suit in civil court for getting such claims.

Q.162: In our society one of the members has gifted her flat to her husband during lifetime. The husband has now applied for transfer of the said flat in his name. Kindly advise whether the society can recover transfer fee and transfer premium from the member who has gifted her flat to her husband.

Ans. Yes. You can charge transfer of Rs.500/- and entrance fee of Rs.100/- However you cannot charge transfer premium as husband is included in the definition of family as per bye law.

Q.163: We had an election in December,2005 through Returning Officer and till today we have saved the Ballot papers as well as Ballot Box. Now when and how to destroy the same ass already three months have been passed..

Ans. All the records pertaining to the election shall be carefully preserved in box duly locked and sealed by the secretary of the society for a period of 3 months and destroyed there after. However, if the result of the election is disputed, the records pertaining to the election shall be preserved until the final decision of the dispute as per the election Rule No.29 appended to the bye laws.

Q.164: In the recent train bomb blast one of the committee members passed away. Now how to replace the committee member? Whether we, balance 4(four)committee members continue or add one more and if it is necessary to add one more, then how to get new one?

Ans. As per the provision made in the bye law no.129 of the bye laws, in the event of the vacancies in the committee, caused on account of the death, resignation, disqualification or removal of any member of the committee by the Registrar, the committee may fill in such vacancies by co-option on the committee of any other members eligible to be in the committee, irrespective of the fact, whether there is quorum or not, notwithstanding anything contained in the bye law no.127.

Q.165: One of our Member Mr. A died in the recent bomb blast. He had nominated his wife to be beneficiary as per bye law No.34 of the bye laws of the society. The managing committee has already received an application along with relevant documents from the nominee, requesting the society to admit her as member of the society in place of the deceased husband, whose application is being considered in the forthcoming meeting of the managing committee. However, we would like to get the following clarification from you. Have we to collect entrance fee of Rs.100/- and Rs.500/- towards the transfer fee?

Ans. As per your query we have to clarify here that the flat property goes to nominee/legal heir after death of the member is called transmission and not transfer and hence, in transmission cases no transfer fee of Rs.500/- is to be changed and you can charge entrance fee of Rs.100/- only.

Q.166: a) We propose to have our second general body meeting in this month. We are in the process of issuing share certificate to the member and seek your guidance (a) where there are more than one name in the purchase agreement (A. B & C) whether all names should be appear in the share certificate or the first name only?

b) If the first name happens to be a Lady(A) and desires her husband (B) to attend all the meetings including general body meeting whether ‘B’ can attend general body meeting in the absence of ‘A’?

c) Whether the name of Associate member should be written on the front side or backside of the share certificate?

d) Our society building was constructed as joint venture project by a developer with landowner. As per their agreement, the land owner has got 10 flats out of 56, which has sublet prior to the formation of the society. The landowner has not become a member of the society ,as per the bye laws he is entitled for 10 membership if he makes application and whether it is necessary to issue him share certificate for each flat ?

Ans. As per your queries, we clarify as under:

a) All the names of the purchasers to be appeared in the share certificate as per the purchase agreement..

b) The joint member (second named)(B) person can attend the General Body meeting in the absence of the first member(A).

c) The name of associate member should be written on the backside of the share certificate.

d) In a Co-operative Housing Society one member is issued only one share certificate irrespective of he/she holds more than one flat, one member one vote and one share certificate is the criteria followed in the Co-operative Housing Society. Therefore, you can issue one share certificate for all 10 flats.

Q.167: We would request you to please advise us that if there is any Time limit for sale of a flat to one person and sale of the same flat to another person for the purpose of approving transfer by managing committee or AGM. Can Committee approve this transfer of flat before one year if the flat has been sold twice within the period of one year?

Ans. We hereby clarify that as per the provisions in section 29(2) of the MCS Act, 1960 shares of Co-operative Housing Societies cannot be transferred before completion of one year.

Shri Raghuvir Samant, adv. D.S.Vader, Chairman, and Shri H. S. Gore, Senior Director of the Federation gave replies to the questions raised by the delegates.

Free FSI upto 200 sq.ft. is given for construction of society’s office. However, previous sanction for such construction from the BMC is a must.

Bye law no.115 restricts the number of persons to be taken on the managing committee. This number is dependent on the strength of membership of the society.

For clubbing two flats, BMC’s permission is a must.

For re-development of buildings, consent of minimum 70% of flat owners is must. The builder should convince other members to give their consent to avoid blocking the construction.

The cost of a flat once decided by the architect cannot be increased with passing time for deducting sinking fund.

Service charges or services mentioned in bye law no.68 can be increased by passing a resolution at the AGM.

Vacancies existed on the managing committees can be filled by co- opting from amongst members of the society.

The Mumbai District Central Co-operative Bank gives loan at 10% for building repairs.

General Body is final authority to decide on the parking charges.

Garages are not to be used for residential purpose.

Associate member has no property rights. On the death of the original member, he ceases to be an associate member.

An associate member can attend meetings, contest the election only if the original member intimates the society accordingly, however, both the original member and the associate member cannot simultaneously attend meetings nor can contest election.

Though the Registrar ahs made adoption of the bye laws by the societies compulsory. It is at the discretion of the societies to do so. However, if any society, which has not adopted the bye laws, approaches the Registrar to solve the problems, the Registrar will insist on the adoption of bye laws. In other words, in the absence of adoption of bye laws, the Registrar will not come to the rescue of such a society. It is therefore, in the interest of the societies to adopt new bye laws.

In his introductory speech, Advocate Vader, Chairman of the Federation referred to the achievements of the Federation under the guidance of Shri Raghuvir Samant.

Andheri Seminar was held at the Vijay Nagar Co-operative Housing Society’s hall on 26th November. The hall was given free of charge holding the Seminar.

As the gesture of thanks, the society’s Chairman Shri Dilip Gokhale was felicitated at the hands of Shri Raghuvir Samant.

Bandra seminar was held at St.Joseph Secondary School on 3rd December,

Both these seminars evoked good response from the member societies.

Q.168: One of the members of our society died on 12.4.2004 and the then managing committee of the society had requested his son to produce letter of Administration from Hon. High Court for transfer of the flat in his name. The Hon. High Court has issued the L. A. in favour of son of deceased. Now the son of deceased has applied for NOC for the sale of the flat. After transforming the share certificate in the name of son, can the society transfer the flat in the name of intending purchaser?

Ans. It appears that the member expired and son of deceased member has obtained letter of administration from the Hon’ble High court. In view of this, you may ask him to apply for membership by furnishing a copy of letter administration along with other documents in connection with transmission of the flat as per bye laws.

As regards, immediately transfer immediately transfer of flat in the name of intending purchaser by the member who has got the flat by way of inheritance, we have to state that as per provision made in section 29(2)(a) of the MCS Act 1960, share of Co-operative Housing Society cannot be transferred before completion of one year.

However, in transmission cases, the nominee/legal heir can transfer the flat before completion of one year, provided he produces no objection for such transfer from all legal heirs.

Q.169: There is leakage of water since long time from the flat no.301 of third floor to the flat no.201 at second floor. leakage is in between bathroom, Hall and bed room. The owner of flat no.201 called the owner of flat no.301 and showed him the leakage and requested for repair, and also complained in writing too. But the owner of flat no.301 is avoiding carrying out the repairing. Kindly advise the society what can be done for above matter and how to deal with it?

Ans. We have to state that as per bye law no.160(a) all leakages of water are to be repaired by the society. However, so far as complaint regarding water leakage from flat no.301(3rd floor) to down below flat no.201(2nd floor) is concerned, the Secretary has to visit and inspect the concerned flat as per bye law no.118 and to give his report to the managing committee stating the cause of leakages as well as expenses to be borne by whom. In the case, the managing committee is competent to take appropriate decision.

Q.170: Out of seven, four of our committee members have resigned suddenly. We three office bearers namely Chairman, Secretary and Treasurer are continuing. Should three of us continue working?

Ans. It appears that your committee consists of 7 members out of which 4 committee members have resigned and remaining 3 members viz. Chairman, Secretary, Treasurer are continuing in the committee. Now we advise you that in the event of vacancies in the committee caused on account of resignation of any members of the committee, the committee may fill such vacancies by co-option on the committee from amongst any eligible members of the society as per the provision made in the bye law no.129 of the bye laws.

It is to inform you further that as per the provision made in Section 73(1AB) of the MCS Act 1960, you may ask the co-opted member to execute Bond in M-20 Form on Rs.200/- stamp paper separately. Non execution of Bond may deem to have been vacated the office of the committee, which may kindly be noted.

Q.171: You are hereby requested to let us know, should we charge the sinking fund and repairs fund against the garages of the society which are situated on the ground floor of our building so as to enable us to levy the same in the monthly maintenance billing of the members of the society.

Ans. As per definition of flat under bye law no.3(vi) the garages are also included in the flat. In view of this, whatever apply to the flat also applied to the garages. Hence, the society can collect sinking fund, repair fund etc. from the garage holders.

Q.172: The original member o our society and sold his flat before issue of share certificate. The society has now issued the share certificate in the name of the original member only.

The purchaser i.e. Transferee is now requesting to give share certificate to him on the strength of sale deed and power of Attorney in his favour. Please advise whether society can give the share certificate of original member to the purchaser i.e. Transferee?

Ans. We have to state that if the transferor and transferee have complied the transfer procedure as per bye law No.38ofthe bye laws and the said transfer is approved by the managing committee. In such case, you can give the share certificate to the transferee after making necessary endorsement on the same.

Q.173: The Society has received family court Judgment for dissolution of marriage with mutual consent wherein the member of our society has agreed to hand over vacant possession of his flat towards lump sum alimony to his divorced wife. The original title deeds are handed over and Deed of transfer is duly stamped and registered. The original transfer sets of documents are also submitted for transfer. Please advise as to whether the society is entitled to collect transfer charges from the outgoing member i.e. transferor.

Ans. We have to state that after dissolution of marriage with mutual consent as per family court Judgment, the relationship no more exists as husband and wife and therefore the society can charge transfer fee, entrance fee and transfer premium etc.

Q.174: We request you to kindly clarify the following quarries on applicability of levy of maintenance charges in our society.

Ans. Number of units that the society must consider for levy of maintenance charge in case there is a single owner of a 3 BHK flat bought with two agreements for the said flat. The two agreements were created by the builder to ensure that the flat fall under 1000 sq.ft. for benefit of tax.

B. Maintenance charges that the society should levy on commercial establishment.

Ans.A)The Service/Maintenance charges are to be levied according to unit/flat shown in the approved building plan of the BMC irrespective of two agreements in one unit.

B) As per the definition of the flat, shops, offices are included in the flat. In view of this, provisions apply for flat also applies to these establishments and hence, you cannot charge them at higher rate than flat owners.

Q.175: One of the members of our society possesses a flat and does not stay there, keeps flat locked or unused, paying dues on the said flat. What is the amount of non occupancy charges can be charged in this case. Is it 10% of the maintenance charges excluding Municipal Tax and Sinking Fund?

Ans. There is no provision in the bye laws to levy non occupancy charges to
the flat, which is kept vacant. Therefore, you cannot charge non occupancy charges for the vacant flat.

Q.176: In our society one of the member’s share certificate mentions two names (a) and (b) (husband & wife ). The second holder (b) expired without nomination or will.

The first name holder (a) has applied for deletion of the second name from the share certificate along with the death certificate of(b),kindly clarify the procedure for deletion of second name.

Ans. We hereby clarify that the joint/associate member does not like a property of donor and therefore, after the demise, the society can delete his/her name from the share certificate on producing the copy of death certificate by the original member.

Q.177: The Co-operative Housing Societies are exempted from the purview of Section 27(3A) of MCS Act 1960 and now a member of Co-operative Housing Society would get voting rights as soon as he becomes a member of Co-operative Society. In view of the above, please let us know whether a new member i.e. as soon as he becomes a new member of a Co-operative Housing Society can become committee member/office bearer by contesting election or by co-option?

Ans. Since the Co-operative Housing Societies are exempted from the purview of section 27(3A) of the MCS Act 1960, therefore, the member can enjoy voting rights immediately he becomes member and consequently he can contest election to the managing committee and can become office bearer if he is elected or otherwise co-opted to the managing committee.

Q.178: One of the lady members of our society is a chronic defaulter. In spite of several notices to her to make the payment, she has not responded to it. In the meantime she expired. She has not made any nomination and her three sons are occupying the flat. Kindly advise u show to recover the dues?

Ans. For recovery of dues, you may issue a notice to the occupant of the deceased member’s flat. As per the recovery procedure under Section 101 of the MCS Act 1960 the booklet of which is available at the sale counter of the Federation. You may purchase the same and follow the action as per the format given to the said booklet.

In the meanwhile, you may also issue notice to the legal heirs to apply for membership as per the provisions of Bye law no.35 of the bye laws as they cannot occupy the flat without becoming member of the society.

Q.179: Our society was registered in June 1982. The earlier managing committee did not issue the share certificates to the members. The new members desiring to purchase a flat in our society find it difficult to raise loans from Bank’s/Financial Institutions. The present managing committee is of the opinion that share certificates should be issued without further delay.

Kindly confirm that the present managing committee is competent to issue the share certificates and the present office bearers are authorized to sign the same with even date.

Ans. We have to state that societies are supposed to issue share certificate to its members within six months after the registration of the society. It appears that although your society is registered in the year 1982. You have not issued share certificates to your members which was a major lapse on the part of the society.

Now we advise that the delay in issuing the share certificate may be condoned and immediately issue share certificates to the members to facilitate them for sale / transfer of flat.

Q.180: In our society some members have submitted their flats on leave and license basis. The society in its general body meeting has decided and agreed to levy the subletting charges, which are as per Government circular i.e. 10% of the maintenance charges excluding Municipal Tax and also agree to charge some extra amount being repair fund or donation since the amount of subletting /non occupancy charges are very less. In view of this, we would like to know following points.

a) Can society charge such additional amount to these members over and above 10% of the maintenance charges?

b) Whether this is legally allowed?

c) Can a member file a legal complaint against society for this extra amount?

d) Can society refuse by way of rule for giving flat on leave and license basis ?

Ans. As per your queries, we advise you as follows :

a) No. General Body cannot decide to charge extra amount in addition to non occupancy charges of 10% as prescribed in the Government circular.

b) No, it is not legally allowed.

c) Yes. A member can file a complaint to the authorities if he feels aggrieved.

d) Generally subletting of flat is allowed as per the provision made in bye law no.43 Therefore, it is not justified to refuse the subletting unless there are sufficient grounds for refusal.

Q.181: In our society one couple is having flat. However, they are not good terms. The flat is in the name of husband and wife is nominee. He is not paying the society maintenance charges, which is accumulated to Rs.22,000/- The member’s wife wrote the society to get her consent if he tries to sell the flat. We request you to advise us how to deal in this matter?

Ans. It appears that the flat stands in single name and his wife who is only nominee wrote to you to get her consent if he tries to sell the flat. In this connection, we have to state that a member whose name stands single in the share certificate can sell/transfer his flat during his lifetime without anybody’s consent. As regards non payment of society’s dues, you may take action against the member as per the recovery procedure under Section 101 of the MCS Act 1960. The booklet of which is available at our sale counter, you may purchase the same and follow action as per the procedure in the booklet.

Q.182: We refer to the section 73-A of the MCS Act 1960 and request you to kindly clarify whether this section is applicable to the Co-operative Housing Societies or not.

Ans. As per your query, we clarify that the provision of section 73-A of the MCS Act 1960 is not applicable to Co-operative Housing Societies.

Q.183: The original registration certificate of our society was misplaced by the then office bearers during the year (1990-93) kindly advise us how to get duplicate registration certificate?

Ans. It appears that your society’s original registration certificate was misplaced and you want duplicate registration certificate?

In this connection, we advise you to make an application by affixing necessary court fee stamp to the deputy Registrar, CS of your area who is the proper authority to issue the same.

Q.184: Our society’s election is due we request you to advise us on the following points.

(a) Which member can be termed as defaulter, to be admitted to the managing committee member?

(b) What are the criteria of an associate member for becoming a managing committee member?

Ans: As per your queries we advise you as follows :

(a) A member who is in arrears in respect of any dues to the society as on the date of scrutiny of nomination papers.

(b) The first member has to give a no objection in favour of an associate member in Appendix 10-A annexed to the bye laws.

Q.185: Our society was formed on June 18,2001. While forming the society, the builder still had one flat in his possession. Mr. X purchased this flat on October 2003 directly from the builder. The then secretary charged the new buyer a transfer premium of Rs.25,000/- However, the buyer under protest paid the transfer premium. Now the purchaser Mr. X has approached the new committee requesting the refund of transfer premium, which was levied to him. Please advise whether the society can charge a transfer premium or not on first sale of flat even if the flat is sold after the society was formed?

Ans. We have to state that the builder has got exclusive right to sell the unsold flats to the prospective buyer directly by sale agreement even after formation of the society. Such first sale / purchase agreement between builder/and purchasers, does not amount to transfer and hence, the transfer premium, transfer fee are not applicable to such transaction.

Q.186: Kindly guide us for the following queries (1) One of the members of our society wants to transfer his flat to his son and daughter in law in his life time. In this case, the society can recover transfer premium from him.(11) What are the documents to be required to effect the transfer of flat in such cases?

Ans. (1) If a member is interested to transfer his flat to his son and Daughter – in Law in his lifetime, he will have to make a gift deed and pay 2% stamp duty as per the market value with registration apart from other documents as specified under the bye law no.38 of the bye laws. No transfer premium is to be charged, as son/daughter in law is included in the definition of family as per bye laws.

Q.187: Our society is the newly registered society. Our builder/developer had convened 1st AGM on November 11th 2006 and formed provisional committee. The developer has handed over the society to the provisional committee from January 1st 2007.

Our developer has not yet transferred the share amount to the society’s account. Since our committee is not elected and share amount is not yet handed over to us, we have not issued the share certificates to the members. Many of our members are requiring share certificate for their genuine needs. We seek your advise on this whether we are rightfully in position to issue share certificate to our members.

Ans. We hereby clarify that the provisional committee shall have the same powers and functions of the regular elected committee as per bye laws. In view of the express provision it is pertinent to note that the provisional committee shall also have the right to issue share certificate to the members of the society.

Q.188: Kindly inform us procedure, which is required for deleting second name from share certificate.

Ans. For deleting the name of second holder from the share certificate, the second holder has to make a relinquishment deed, relinquishing his rights in favour of the first holder. In view of this, you may inform the concerned member accordingly.

Q.189: A couple is having two flats in our society. One of the flats is wife’s name and the other in joint name of the husband and son. The wife is already a committee member. The husband who is the owner of the other flat has sublet his flat and presently staying along with his wife. The husband has applied for a committee membership post in the society. Please advise us in the matter.

Ans. It appears that husband and wife are having separate flats in the society. The wife is already a committee member and husband has applied for committee membership. In this connection, we have to clarify that husband being member of the society shall have right to become committee member if he is elected/co-opted to the committee.

Q.190: We have a flat in our society which stand in the names of Smt. X with her son Mr. Y as associate member. We have now received a letter from Mr. Y who has tendered his resignation as an associate membership from the subject flat.

We shall be highly grateful if you could kindly advise us on the procedure to be adopted by the society for the cancellation of associate membership.

Ans. We have to state that as per the provision made in bye law no.58 of the bye laws, the person shall cease to be the member of the society on the acceptance of the resignation of the associate member by the committee.

In view of the above provision, the managing committee can accept the resignation tendered by associate member and delete his name from share certificate, without any other formalities since the associate member is not like a property donor.

Q.191: Kindly inform us procedure and form nos. required for deleting second share holder’s name from share certificate.

Ans. For deleting the name of second holder from share certificate, the second holder has to make a relinquishment deed, relinquishing his rights in favour of the first holder. There is no specific form made out for such deal.

Q.192: We are having few unsold stilt/open parking spaces in our building. The society has been formed and registered in the year 2000. We are planning to allot parking space. If we do so, can builder/developer object to the society for giving parking on rental basis.

Ans. We have to state that the allotment of parking space/stilts shall be made by the committee on the basis of First come first served for unsold and available parking spaces. However, in case of parking space/stilts allotted by the society, the member shall have no right to sell or transfer the said allotted by the society, the member shall have no right to sell or transfer the said allotted parking space/stilts to anybody. In view of the above, you may follow the above condition, while allotting unsold stilt/parking space to the members of the society.

Q.193: We have the following queries-

1. Which member can be termed as a defaulter to be admitted to the managing committee?

2. What are the criteria of an associate member for becoming managing committee member?

3. Can we co-opt members to the managing committee during the co- operative year?

Ans. 1.The member who is in arrears in respect of any dues to the society as on the date of scrutiny of nomination paper.
2.The first member gives a no objection in favour of associate member in Appendix 10-A annexed to the bye laws.

3.Yes. The society can co-opt the eligible members for the vacant post in the managing committee.

Q.194: A society has filed a case under Section 101 against defaulter Member. Whether defaulter member can attend AGM/SGM?

Ans. The defaulter member of the society can attend the AGM/SGM?

Q.195: We need your clarification on the following problems.

(a) If a meeting of managing committee is adjourned for want of quorum and the adjournment meeting is called again, there is no quorum, can the meeting proceed. Do we need quorum for adjourned meeting to proceed with the same agenda.

(b) If a managing committee member does not attend three consequent meetings, is he/she liable for disqualification?

Ans. a)In the case of the managing committee, the adjourned meeting shall not be conducted without quorum as per the provision in the bye laws. It is necessary to have quorum for the adjourned meeting.

Q.196: (a) Whether the old nomination forms submitted by the members are still valid? This because the nomination form designation are changed from 15(1)15(2) to 14

(b) Does the nominated persons/1st nominee become the owner of the flat after he/she becomes the member of society? can he / she sell the flat.

Ans. a) The nominations filed by the members are valid so long as they have not withdrawn the same.

(b) A person who is admitted to the membership on account of inheritance, (nomination) such inherited member, holds the flat as trustee and not as owner and as such in the event of sale/transfer of the inherited property he will have to take consent from all the other legal heirs. In short, he cannot transfer the flat without the consent of the legal heirs.

Q.197: One of the members of our society has asked the society to delete the names of joint member from the share certificate. We seek your opinion in the matter, whether the society can delete names of joint members from the share certificate? Please clarify?

Ans. We have to state that for deleting the names of joint members from the share certificate, the joint members are required to make relinquishment deed in favour of the first member without which their name cannot be deleted from the share certificate.

Q.198: One of our members wanted to make of her son as a co-owner of her flat, for which she has submitted an affidavit to the society. As per model bye laws, there is no provision to make a person as a co-owner, There is provision only to make an associate member or can be nominated member. Kindly advise in the matter.

Ans. It is true that there is not provision to make a person as a Co-owner/joint owner unless the agreement is executed jointly at the time of purchase of flat. However, a member can make any body as an associate member by applying in the prescribed form No.7 and also a member can nominate any body as his nominee during his life time.

Q.199: We have received sale deed from flat owner. The flat owner also owns garage, which has not been sold. The member wishes to transfer the garage to existing member without any transfer document. We kindly request you to give the opinion on the above matter as to whether the garage can be transferred just by letter to an existing member or an agreement to that effect with stamp duty and registration fees paid is required.

Ans. We have to state that generally member after sale of his flat cannot retain his ownership stilt. Further in order to establish the ownership right of the purchaser on immovable property, it is necessary to execute sale deed and to pay stamp duty thereon with registration. If the purchaser has not completed these formalities there is no title to the stilt.

Q.200: We are the registered Co-operative Housing society registered under the Maharashtra Co-operative Societies Act, 1960. We have lost the original registration certificate. We request you please to guide us how to get the duplicate registration certificate and the procedure to be followed in the matter.

Ans. For issue of duplicate registration certificate, you have to make an application by affixing Rs.50/- court fee stamp to the Deputy Registrar, Co-operative Societies of your area who is the proper authority to issue the duplicate copy.

Q.201: One of our members has applied for transfer of premises to his mother as a gift from son to mother. We have received copy of gift deed. Stamp duty is paid on the said gift deed. The member is willing to pay Rs.100/- and Rs.500/- as entrance fee and transfer fee respectively in such case

Ans. In the event .of a member interested to gift his flat to his mother the transfer premium cannot be applicable to such case as the mother is included in the definition of family as per bye laws.

Q.202: Mother sold her flat to her daughter who is unmarried. Whether in such case transfer fee/donation is to be charged or not?

Ans. As regards charging of transfer premium for transfer of flat between mother and daughter, the same cannot be levied, as daughter is included in the definition of family as per provision made in the bye laws. However, you have to chargers.500/- towards transfer and Rs.100/- towards entrance fee from the transferee.

1. We request you to clarify and advise us on the following.

(a) From which year law has come into force to pay stamp duty on transfer of flat/premises in Co-operative Housing Society?

(b) Are stamp duty / registration are compulsory when a flat is transferred in favour of spouse/legal heirs/relatives.

(c) Is an NOC from the society required prior to transfer of a flat?

Ans. a) The stamp duty came into force from 10th December, 1985

b) If the transfer is between two living entities regardless of any close relation with member. It attracts payment of stamp duty. However, registration is optional and not compulsory in case of regular transfer cases, but registration is compulsory in case of transfer by gift.

c) As per model bye laws, NOC is not required while transfer of flat.

Q.203: We would appreciate if you kindly guide us in the following matters.

a) What are the documents that society must collect from the lessor and or lessee in our property entitled to parking space in the society compound?

Ans. a) You have to collect leave and license agreement duly paid stamp duty with registration apart from this, you have to collect application for nominal membership by the sublet tee in Appendix – 11 annexed to bye laws.

b) The bye laws do not specify about parking space entitled to the lessee. In the absence of this, your general body is competent to take decision.

Q.204:  In our society one member wishes to transfer his flat to his wife’s name we request you to guide the procedure.

Ans. If a member intends to gift his flat in the name of his wife, he has to make a gift deed and pay applicable stamp duty with Registration. In addition to that they have to furnish the documents as prescribed in the bye law no.38of the bye laws, including transfer fee of Rs.500/- and entrance fee of Rs.100/- However, you cannot collect transfer premium as wife is included in the definition of family as per bye laws.

Q.205: In our society defaulters not paying regular maintenance Bills and Major Repair amount for long period. Now it is very difficult to run the society’s day today work without funds. We have issued many reminders and given notices to defaulter members but response is negative. One of the defaulter members has given his flat on rent without taking permission from the society, we request you to advise us on the above mentioned subject.

Ans. If the members are not paying the regular maintenance dues as well as Major repair amount, you may proceed against the said member as per the Recovery procedure against the said member as per the Recovery Procedure U/s 101 of the MCS Act, 1960. The procedural booklet is available at our sale counter. You may purchase the same and follow the same.

As regards the defaulter member has given his flat on leave and license basis without permission of the society, you may issue him a notice that subletting is in violation of provision made in Bye Law No.43 of the bye laws and he should stop subletting it immediately failing which, action against him including expulsion as per the provision made in section 35 of the MCS Act 1960 may be initiated against the concerned member

Q.206: (a) Considering the prevailing rates of the flats in Mumbai, kindly advice us about flat transfer fees to be collected by society from the outgoing member.

b) If the flat is transferred within family members, i.e. in the name of daughter, husband / wife children how much transfer fee is applicable?

Ans. a)transfer premium is fixed at maximum of Rs.25,000/- in the Metropolitan area as per Govt. Circular dt. 9th Aug. 2001. In view of this, the society cannot collect more than what is stipulated in the circular irrespective of the fact that the member is getting good appreciation of the time of sale of flat.

b) In case of transfer of flat within the family members viz. daughter / husband /wife and children etc. the transfer premium cannot be charged to such transaction as they are included in the definition of family as per bye laws. However, you can chargers.500/- towards transfer fee and Rs.100/- towards entrance fee.

Q.207: Please enlighten us on the following issue.
a) Whether the society can ask for transfer premises for the sale of a flat/shop effected by the builder after formation of Co-operative Society?

b) Whether the industrial estate and premises co-operative society can proceed to recover dues from the member under 101 of the MCs Act 1960

Ans. a) the builder has got exclusive rights to unsold flats even after formation of the society, such transaction is not called transfer and hence no premium can be charged.

b) The Co-operative industrial Estate and Premises Co-operative Societies are also covered under Section 101 of the Maharashtra Co- operative Societies act 1960 for recovery of due

Q.208: One of the members who was a member owning a flat died without nominating any of his three children (his wife had predeceased him). The society after completing all due requirements stipulated under bye law no.35 of the Model bye law, transferred the shares pertaining to the flat to the 3 children’s with the eldest daughter as the member and the other two as associate members. The new member has now submitted a letter to the society expressing her desire to sell the flat, as none of the three desires to settle down in this flat. Section 29(2) of the MCS Act 1960 however lays down the condition that a member shall not transfer any shares held by him unless he has held such shares for not less than one year, you are requested to clarify whether the application for transfer can be entertained given the above mentioned provision of the MCS Act 1960?

Ans. It is true that as per the provision made in section 29 (2) (a) of the MCS act 1960 shares of the Co-operative Housing cannot be transferred before completion of one year. However, in transmission case such condition is not applicable provided a member who has been admitted on account of inheritance shall produce no objection from other legal heirs for sale transfer of flat.

Q.209: We hereby request you to kindly enlighten us regarding the share transfer fee collection on a member’s death and the shares to be transferred to the legal heirs. Please guide us whenever we can charge share transfer fee along with member admission fee.

Ans : We hereby clarify that after the death of the member, the flat property goes to nominee/legal heir, is called transmission to and not transfer and is to be collected. However, the society can collect Rs.100/- towards admission fee.


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