I purchased a newly constructed flat on the 7th floor in 2011, in a old 6th storey building which still now is not conveyed to society (formed and registered with registrar of societies in 2003 by the then existing members) by the builder. The builder had constructed 1 floor (i.e. 7th floor) above the 6 stored old building with the consent term with the society managing committee. Now the society has not made me a member of the society nor has they made any of the other 8 flat purchasers as members in the society whereas applied for the membership with society in 2014 with all forms and undertakings filled and submitted to society and also Rs.100+ Rs.500/- paid for membership fees and share fees already credited to the society account in 2014.
Believe the managing committee of the society had some vested interest and to which the builder did not succumb hence they have a vengeance against the builder….so none of the new flat purchasers (9 flat purchasers) on the 7th floor have been given membership till date….
The society started charging all the 7th floor flat purchasers maintenance charges (excluding property tax) all of a sudden in 2013 with billing starting since 2011. The bills were unnamed with only flat numbers mentioned. I sent several letters to the society stating that the bill is not in my name and also they have not made me as the member of the society so how can they charge maintenance charges against my flat.
The society said I have a flat in the society so I have to pay, since I am staying in the flat so i have to pay. I did not pay the maintenance bills till date whereas the remaining flat purchasers in the 7th floor started paying after lot of coercion by the managing committee by using all illegal tactics and threatening, but till date I did not pay. Now they have recently sent a Notice U/S 101 of the society’s act for recover of maintenance dues to me.
I consulted with some friends who are office bearers in few other societies. some of them say the amount is not payable and some say it is payable. Can you please advise if the amount shall be legally recovered from me by the society ?? what action will they take ?? will the society registrar of society give an verdict against me favouring the society’s arguments ?
I am really worried and do not know what to do ?? also need a good lawyer to fight the case right if required.Please advise.
I C Naik
1.Very vital issue how the Society’s consent to add one story to existing building (Since 2003 or earlier) mattered when no conveyance of title deeds was done in favour of the C H S?
2.The Builder seems to have violated BMC Regulations and No OC for 7th floor also obtained. This floor is under a serious threat of demolition. Move swiftly but tactfully. File RTI asking for inspection and copies of approved building plan and also oc and if any conditions are imposed for 7th floor.
3.All 9 of you should rush with a petition under Consumer Protection Act 1986, to the District Consumer Forum against the Builder for deficiency in service of no “OC/Conveyance/facilitate membership of the housing society etc…” These are seriously handled by the Consumer Court, expeditiously and minimal costs. Look at the terms of the Agreement to sale a builder was duty bound to execute individually with all nine buyers under Section 4 of MOFA Act. (See Bye Law No 19(A)(vi) you will find several obligations accepted by the builder and not honoured. These are to be included in the petition.
4.You state that “whereas members applied for the membership with society in 2014 with all forms and undertakings filled and submitted to society and also Rs.100+ Rs.500/- paid for membership fees and share fees already credited to the society account in 2014’ the Society has not conferred membership and started charging maintenance.
5.Please note that there is a provision in registered bye laws of every housing society as under: See relevant portion of the Bye Law No 65(a) as reproduced here:
(a) All the applications for (i) admission to membership of the society, including associate and nominal membership…………. shall be addressed to the Secretary of the society. Every application received by the Secretary shall be acknowledged by him.
(b) On receipt of the applications, the Secretary of the society shall scrutinize them and bring any short comings therein to the notice of the members concerned within 7 days of their receipt for compliance;
(c) The Secretary shall place all the applications, complete in all respects, or incomplete, before the meeting of the Committee or the general body, as the case may be, held next after receipt of the applications;
(d) The Committee or the General Body, as the case may be, shall consider all such applications at its meetings and take decisions thereon;
(e) The Committee shall ensure that all the applications received by the Secretary of the society are disposed off well within the maximum period of 3 months from the dates of their receipt;
(f) If the Committee or the General Body, as the case may be, rejects any applications, it shall record, in the minutes of its meetings, the reasons for rejection of the applications;
(g) “(g)The Secretary of the society shall communicate the decisions of the Committee or the General Body, as the case may be, to the applicants concerned within 15 days of the decisions of the Committee or the General Body, as the case may be, with reasons, where the applicants are rejected by the Committee or the General Body, as the case may be. If the society does not communicate the decision to the applicant within three months from the date of receipt of applications for membership, including nominal or associate membership, the applicant shall be deemed to have been admitted as a member as provided under Section 22(2) of the Act.
6.See the last para extremely carefully and satisfy yourselves the 9 of you as to how your case fit in. If not make an application to the Registering Authority for granting you membership under Section 23(1A) of the MCS Act 1960 reading as under:
“(1A) Where a society refuse to accept the application from an eligible person for admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties.”
7.Not paying maintenance is a bad decision and it contradicts your own case that you are member. Moreover being on the 7th Floor you are using all common facilities of your housing society free. You must pay up all the demands by Account Payee Cheques immediately otherwise your case would be very weak.The Consumer Court will refuse to hear you because you are not a consumer of service of the Society.
8.There is a good lawyer in Andheri though I have heard of him through a reliable person. I will give you his address if you decide to hire him ofcourse subject to his availability.