Empty Mandate Maharashtra CHS Law -3

By I C Naik

Housing Manual 2015 being a “97A Statutory Directive” still exists. Chapter 4 is about “Rights and Responsibilities of the Members and Managing Committee. Following directives at page number 16 really gave a shock:

  1. “If a shop owner is a flat owner in the co-operative housing society, then it is compulsory that to become the member of the society.
  1. In case such shop owners do not come forward to become the members of the society, the same can be informed to the Deputy Registrar who shall inform the shop owners to become the member of the society.”
  1. If the benefits of common amenities created by the members of the society are taking by the shop owner/flat owner without being the member of the society, then society   can   take   decision   on   its   level   regarding   not   providing   such benefits/services to the shop owner/flat owner.

This means a shop owner/flat owner can occupy his shop / flat without becoming a member of the society .The Committee is directed to inform the Registrar about it to ask him to become member. If the Registrar does not oblige the society and the flat/ shop purchasers ignore information received from the Registrar What the Committee can do is to take   decision regarding   not providing such benefits/services to the shop owner/flat owner as are being provided to the flat/ shop purchasers who joined the society as members as agreed to by them.

Many cooperators still do not know that a cooperative society is born as a legal entity, after due discharge statutory obligation of

(i) The builder specified u/s 10(1) of MOFA [the Maharashtra Ownership Of Flats (Regulation Of The Promotion Of Construction, Sale, Management And Transfer) Act 1963] and

(ii) The Registrar of cooperative societies of issuing the Registration Certificate to the society as specified u/s 9(1) or (2) of the M C S Act 1960.

The M C S Act 1960 under Section 36 confers a statutory status of a judicial person to the registered cooperative society that, it‘s a body corporate with perpetual succession with power to acquire, hold and dispose of property…………The registered co-operative housing society is the entity to which the developer under MOFA has to hand over the legal ownership papers of the land/building including the shops/flats taken by individuals as per agreement u/s 4(Supra). The builder has to register a deed of conveyance as his statutory obligation u/s 11 of MOFA. If he fails he can be sent to jail for 3 years.

The concerned builder/developer of a building is called a “promoter”   under Section (2) of MOFA to perform its duties prescribed under the M C S Act 1960. In this behalf the flats / shops purchasers and the Promoter must agree on terms and conditions of sale / purchase under a written  agreement (to be registered as per the Registration Act, 1908) in the form prescribed under Sec 4 of MOFA read with Rule 5 of MOFA Rules 1964.  Under Clause 12 of this agreement the purchasers have to accept onerous responsibilities, relevant to the topic are briefly stated as under:

  1. The Flat Purchaser along with other purchasers of flats in the building must agree to join the Chief Promoter in forming and registering the organization as co-promoters. Sec 4[1A](a)(v) of MOFA requires the builder to state “the precise nature of the organization to be constituted of the persons who have taken or are to take the flats;”
  1. Flat Purchasers agree to sign and execute the application for registration and/or membership and other papers and documents necessary for the formation of the specified organization and for becoming a member including signing of the proposed bye-laws thereof.
  1. They also undertake “Not to take any objection to any changes or modifications if made in the proposed bye-laws as may be directed by the Registering Authority as so authorized under the M C S Act 1960

As no punishment/penalty for default of any of the above conditions by any flat purchaser is prescribed, some purchasers may happen to be occupying the flat/shop without joining the society as members, as apprehended in the Housing Manual. The builder/promoter in most cases hands over to the parties to the agreement u/s 4, the possession of the flat/shop before the housing society is registered or without the knowledge of the Committee even after registration.

The housing society is the de jure owner of its property pending conveyance of title deeds and flats / shops which is regulated in terms of its registered bye-laws. So in effect this is a case of cover up to the laxity in implementation of toothless MOFA. Undoubtedly the managing committee cannot afford to fail in preventing such harmful situations soon after their members occupying their new homes. They have to proactively marshal in the provisions of the M C S Act 1960 and registered bye-laws. But how? Is it possible? Read in the next Part.


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