Housing Manual-Empty Mandate to Maha CHS Law – 2

By I C Naik

The study of scarcely known Housing Manual was commenced notwithstanding it’s an empty legal rhetoric for the management of housing societies. It still exists as a binding document in the form of “97A Directions” issued for proper management of housing societies, pursuant to the power conferred by the State Lawmakers. For non-compliance, the office bearers could face a 2 term disqualification. Even an isolated case of punishment by any Department Officer will easily stand the test of judicial scrutiny.

The startup in Chapter 2.1 titled “To Reserve Name: To Register” provides good information about registration of housing society. This is mainly useful to the developers. The MOFA [Maharashtra Ownership Of Flats (Regulation Of The Promotion Of Construction, Sale, Management And Transfer) Act, 1963] casts an obligation of registering housing society under Section 10 on the Promoter [the builder as defined under Section 2(c) of MOFA. For failure to timely compliance the builder could be sent to Jail up to three years.  Housing societies are sub-classified under Rule 10 (Class 5) of the Maharashtra Cooperative Societies Rules 1961 in to three types only. Housing Manual created a fourth type. It is a product of cooperative departmental creativity, which is a way to protect the builders attracting prosecution for failure in registering housing societies as aforesaid. Need for this immunity to builders in evading this obligation was factored in the State  by the State Legislature in 2009. Proviso to Section 10(1) mentioned above is inserted by amending MOFA. See text of Section 10(1) and its proviso: :.

“Sec 10(1) As soon as a minimum number of persons required to form a co-operative society or a company have taken fiats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be of. a company.

“Provided that, if -the promoter fails within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the Competent Authority may, upon receiving an application from the promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society:”

[Note drafting joke: the District Deputy Registrar is obliged  to direct the Registering Authority to register the society against application submitted to him, by the promoter,  if he failed to make application for registration directly to the Registering Authority as per sub-section 1.]

Housing Manual has christened this escape route as “Builder-Non Cooperation Co-operative Housing Society”. Sub-classification “Builder Defaulted Housing Societies” is more appropriate.  The fact is cooperation of the flat purchasers for registering housing society by the builder was sought through a Clause 12 in the Flat Sale Agreement as per Model Agreement appended to MOFA.

Even for this 4th type of housing societies Housing Manual has given a long list of documents to be submitted to the Registering Authority. Most of these documents are with the non-cooperating builder. If the builder does not provide these documents, the flat purchasers will have to run from pillar to post in the departments of the Civic Authority. Post registration of the society, the Builder is supposed to hand over these documents to the Provisional Committee of the housing society concerned as specified in the registered bye-laws of the society. Nothing stops him to evade this obligation also and will face no consequences as the bye-laws are not laws and they do not apply to the Builders. Housing Manual can not apply to the erring builder in any case.

One vital document critical to managing a housing society which Housing Manual directs to be submitted for registration sounds quite amusing namely: “Two copies of bye laws approved by the Commissioner, Co-operation and Registrar, Co-operative Societies, Maharashtra State Pune” It is amusing in many ways:

  1. Section 8(1) of the M C S Act 1960 requires the Application for registration of the society “four copies of the proposed by-laws”
  2. Section 9(1) requires the Registering Authority to satisfy itself that “the proposed are not contrary to this Act or to the rules”  It is of no consequence that they are approved by the Commissioner,  Co-operation and Registrar, Co-operative Societies.
  3. Under a new Proviso inserted in 2013 in Section 14 (2) of the M C S Act 1960  it is provided that ” the Registrar may specify the Model by¬laws, for such type of societies or class of societies, as he may deem fit.” Under Housing Manual the State has already conferred this power in 2011.

This is how Housing Manual is an empty mandate.

 

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