The recent Campa Cola episode shows that co-operative housing societies (CHS) must exercise due caution, when it comes to maintaining and ensuring that their buildings comply with the law. Sometimes, there are infractions between housing societies and individual apartment owners, as well as outsiders. However, many individual apartment owners are at a loss as far as grievance is concerned and do not know how to proceed with their complaint. There are several issues in a CHS, like car parking, leakages, fraudulent auditing, unauthorised construction (ala Campa Cola), and many other issues. Home owners need to know the right recourse to take action to ensure that their rights are maintained and upheld. Advocate Vinod Sampat who is the speaker at a seminar being hosted by Moneylife Foundation has given a brief of what you should do when you encounter various problems.
Some of the common problems related to co-operative societies and the solution to the same are produced as under:
|A||AGAINST BUILDERS (ACT FAST BEFORE NEW ACT IS INTRODUCED!)|
|1||Sale of open parking space by builder, sale of pocket terrace by builder, not executing the conveyance, not giving statement of accounts, not obtaining occupation certificate, not obtaining building completion certificate, not handing over original documents of title of the property, not transferring the property card in favour of the legal entity
||a) Approach Consumer Court for deficiency of service;
b) Approach the criminal court for cheating, criminal breach of trust, mischief, violations of the provisions of Sec. 11 & 13 of MOF Act;
c) Lodge complaint with ULC Department as undertakings are given that conveyance will be executed within a stipulated period of time at the time of release of the plot from ULC;
d) Lodge complaint with ISO authorities if the builder has got an ISO certificate;
e) Lodge complaint with SEBI if the builder is going for a public issue and has not made the disclosures in the prospectus;
f) Lodge complaint with BMC to black list the builder;
g) Lodge complaint with police seeking permission to take out morcha by peaceful means to protest against the acts of the builder.
|2||Builder not sharing the amounts received from allotment of hoardings, installation of mobile tower on the societies terrace||a) Approach the consumer courts for deficiency of service;
b) Request police authorities to file an FIR;
c) Approach city civil court;
d) Approach High Court.
|3||Builders developing adjacent plot and apprehension is there that the FSI/TDR of the society is being used||a) Write letters to BMC objecting to the same;
b) File a suit in High Court/ city civil court/ consumer courts praying for an injunction restraining the builder from utilizing the FSI/TDR of the plot of land for which the society has already been formed.
|1||Society not allowing visitors to park their vehicles in the building premises
||a) Approach the police authorities stating that there is violation of the provisions of Table 15 READ WITHRegulation 36 of the Development Control Rules, read with Regulation 36 which stipulates that 10% (now 25%) of the parking space has to be kept vacant for the visitors;
b) Lodge a complaint with Bombay Municipal Corporation requesting the Corporation to cancel the occupation certificate as the terms and conditions pertaining to IOD have been violated.
Society not allotting car parking space to members
|a) Draw the attention to the provisions of Table 15 Regulation 36 of Development Control Rules of Greater Mumbai;
b) Approach Consumer Forum for deficiency of service;
c) Approach Co-operative Court;
d) Approach Registrar’s office;
e) Note if you have other like minded members who are deprived of parking one each can approach different authorities;
f) It will not make difference if the builder has sold car parking space to some other flat purchasers.
|3||Co-operative Housing Society collecting exorbitant amounts at the time of transfer of flat, collecting exorbitant amount towards non occupancy charges||a) Approach consumer court for deficiency in service;
b) Approach police station for extortion, mischief against all the members of the managing committee with a specific request to lodge a First Information Report (FIR);
c) Approach metropolitan magistrates court;
d) Lodge complaint against auditor for professional misconduct.
|4||a) Managing committee members not issuing share certificate to members;
b) Co-operative Housing Society not taking action against the members of the managing committee who have misused the funds of the society;
c) Co-operative Housing Society not taking action against defaulters who are managing committee members
|a) Approach Consumer Forum against society;
b) Approach Co-operative Court;
c) Approach the office of the registrar to remove the managing committee members;
d) If more complainants are there they can approach different authorities.
|5||Co-operative Housing Society and its members employing minors||a) Lodge complaint for violations of Juvenile Workers Act, 1986, Bye law No 161(C), stipulates a punishment up to one year imprisonment and/or fine up to Rs20,000
b) Lodge complaint with labour & police authorities
|1||Office bearers behaving as dictators.
Some members are having parties and disturbing the peace in the building
|To lodge complaints with the registrar of co-operative societies, approach co-operative court or consumer forum;
For certain matters contact police authorities
|2||Co-operative Housing Society not taking action against unauthorised construction||Lodge complaint with Bombay Municipal Corporation (BMC) for unauthorised construction|
|3||Co-operative Housing Society not responding to queries as regards payment of service tax||Do the correspondence with service tax department|
|4||Co-operative Housing Society not maintaining fire fighting equipments||As per section 3(1) Maharashtra Fire Prevention and Life Safety Measures Act 2006 read with rule 4(2) Maharashtra Fire Prevention and Life Safety Measures
Rules every society having a building of ground plus four floors and above have to submit / arrange to submit every half yearly a certificate to the fire authorities. I would like to have a copy of the same at my cost for the last three years. Take up such matters with fire authorities.
|5||Co-operative Housing Society not showing records related to
various expenses being incurred by the society
|Draw the attention of office bearers to the circular dated 10/3/1995 issued by co operative department.|
|6||Complaint against chartered accountant who has audited the accounts of the society||Write to Institute of Chartered Accountants of India highlighting provisions of act, rules and bye laws; Example: Exorbitant amount collected as donation, security not given by persons handling cash. Rule 107-B.
Money collected for car parking deposit, amounts of some members waived off, legal expenses recovered from only some members + action at consumer forum.
|7||Complaint against auditor on the panel of registrar||Request the authorities to take disciplinary action against the auditor;
Request the authorities to remove the name of the auditor from the panel of auditors;
If it is a case of negligence approach the consumer forum for the losses caused with a prayer to recover the same from the auditor;
File criminal case. In our view permission to file criminal case from government authorities is required only if the person is appointed by the government;
If the employee is appointed by the head of the state then permission is not required.
|8||Complaint against government officers for not giving the proper information
Always keep camera spy pen with you. It is not known when it can come handy
|Approach the higher authorities;
Ask for the actions initiated against him in his earlier postings;
Ask the pending departmental proceedings going against him as of date;
Here RTI Act can be of help to you.
|1||Government officer not passing the order after the matter is kept closed for order.
|Politely state that the judgment in the case has been reserved since a long time. Order XX Rule 1 of Code of Civil Procedure Code, 1908 fixes a model Time Limit of 30 for pronouncement of Judgment. Therefore please pronounce the judgment at an early date and do the real justice since ‘Justice Delayed is Justice Denied’ (You may also ask for all orders being passed by the said quasi judicial authority)|
|2||No track record as to the court case||Insist on roznamas of all the dates of the hearing|
|3||Reply received from advocates that
court is not sitting
|Tell the advocate to take up the matter with the judge; who has got additional charge of the said court.|
|4||How to speed up court case
|If you are a senior citizen you have a right to request the court to take up the matter for expeditious hearings in the light of the high court circular dated 3/08/2009. If a long date is given insist for a shorter date;
You can approach the higher court for directions to expedite the court case if there is urgency in the matter. File miscellaneous applications to get the necessary information.
|5||How to protect ones interest in matters where there is possibility of litigation.
ALWAYS CARRY LATEST GADGETS AND RECORD
|Use modern technologies like Google search and ask for help;
Tell your advocate to pray for ad interim injunction;
Tell the court for the appointment of court commissioner.
|E||Right to Information -RTI|
|1||Despite writing no action is being initiated by government officers||Make an application under the Right to Information Act (RTI) to the public information officer.|
|2||Evasive replies are given by the public information officer. 4578 illegal cell towers in Mumbai. Action taken big zero. If a common man breaks the law will the BMC be lenient. What was our sleeping giant doing when such towers were installed? Why are criminal cases not being filed by BMC suo moto?||File an appeal. You may also file another application with the public information officer asking for information which may include copies of all the registers being maintained by the office, when the said registers are being updated, details of the registers which are incomplete, number of files in the office which are misplaced, not traceable, number of letters received per month by the office, details of the number of matters disposed of within one week, inspection of the files with specific reference to the files of the matters disposed of within one week. If you have asked for documents like certified true copy you can also approach the consumer forum as you are a consumer;
To put pressure you can tell your relative at say Gujarat to file a complaint from Gujarat in Gujarati. Section 11(c ) of the Consumer Protection Act, which stipulates that a case can be registered where the cause of action wholly or in part arises. (Samajnewale ko ishara kafi hai);
Ask for inspection and reply given to RTI queries in the last six months.
|3||Society not getting copy of building plan||Write to the Bombay Municipal Corporation (BMC) authorities asking for the necessary information using the Right to Information (RTI) act;
Also approach consumer forum for deficiency of services.
|Police not taking steps to lodge an FIR in case of a cognisable offence||Approach the magistrate u/s 154 of Criminal Procedure Code (CPC) to direct the police officers to register an FIR.|
|G||How to draft complaint letters|
|Letter to Co-operative Society/ Government authorities.
|Address to society, managing committee members and various government authorities;
Follow up with email to various government authorities;
Take up the matter on Lokshahi Din;
Just do not stick to one subject. Highlight all the wrong things done in the society;
Dramatise the facts; For eg: Say that the collective value of the property is approx Rs50 crore. If it is government department like BMS say that the yearly budget is Rs2,800 crore and the same is not properly utilised. Ask for information which will result in time being spent by the opposite party which information may not be very important for you;
Highlight instances of corruption, inefficiency pointed out by government authorities eg. Anti corruption bureau, comptroller and auditor general;
Request the government authorities to download the orders as is stipulated in Right to Information act. It is common knowledge that authorities do not do all their jobs as per provisions of all in all cases, follow up with Right to Information application if the matter pertains to government department.
LASTLY reserve your right to take action as per due process of law.
|H||Action against auditors|
(Adv Vinod Sampat is a practising lawyer since past 28 years. He has authored several articles on property-related matters and written 46 books on cooperative societies, transfer of flats, recovery of dues, registration and stamp duty matters. He has been an Hon. Patron member of the Estate Agents Association of India. He is also the Hon. Advisor of the Federation of Accommodation Industry of India and is an advisor to the Maharashtra Chamber of Housing Industry as well as the Federation of Accommodation Industry in India, apart from being part of many committees and winning several honours.)