ACCODING TO NEW BYE LAW : A member will not have the right to sell a parking space that has not been purchased by him at the time of transfer of shares Bye-Laws | 77
THIS NEW GIMMICK, TRICK, IDEA OR MISCHIEF HAS BEEN DONE IN NEW BYE LAWS TO BENIFIT THE MEMBERS WHO HAVE ILLEGALLY PURCHASED THE PARKING SPACE FROM THE BUILDER. BECAUSE AFTER SUPREME COURT ORDER THAT BUILDER HAS NO RIGHT TO SELL THE PARKING SPACE THE CHAIRMAN OF MCHI SUNIL MANTRI AND BUILDER LOBBY WAS PUTTING THE PRESSURE ON MAHARASHTRA GOVT TO AMEND THE BYE LAWS IN THEIR FAVOUR AND I THINK THEY HAVE SUCCEDDED PARTIALLY. BUT AGAIN WITH THIS NEW BYE WILL GIVE BIRTH TO NEW CONTRAVERCIES IN THE SOCIETY. BUT NOBODY IS ABOVE LAW AND ACCORDING TO SUPREME COURT ORDER BUILDER CANNOT SELL PARKING SPACE EVEN BEFORE OR AFTER THE FORMATION OF SOCIETY. AS PUBLISHED IN TIMES OF INDIA ON 21-12-2010 IN TIMES CITY
State wants housing societies TO TAKE UP MORE SELF-RULE
Sections included in bye-laws governing child labour,rights of heirs,disaster management & other important society issues
Clara Lewis | TNN
The state cooperation department has made it mandatory for all housing societies to self-regulate themselves across a range of issues.For example,societies must ensure that no child below the age of 14 is employed on the societys premises or in any flat.
In a series of new inclusions to the existing bye-laws which govern the internal regulation of a society the government has made housing societies responsible for the implementation of several regulations.
In case a society discovers that child labour exists on its premises,it must immediately contact the labour commissioners office or social service organizations.The labour commissioner can then continue with the case and the guilty party could be penalized with a fine of up to Rs 20,000 and /or a jail term of up to a year.The states Model Housing Society Bye-laws have been changed after nearly a decade,with 30% more regulations being included.Lawyer and housing expert Vinod Sampat said the new inclusions were long awaited.They were to be introduced in 2009,but now it has finally happened.It is a progressive step and requires more participation from the society members in running the society, he added.The running of housing societies is governed by the Maharashtra Cooperative Societies Act,1960.With the increase in the number of housing societies in the state it is estimated that there are around 60,000 societies in Mumbai the state clearly feels that self-regulation is the best regulation.Societies will have to protect the rights of legal heirs by ensuring that a flats nominee does not create third-party rights without paying attention to the heirs rights.This will especially help in cases where a widow could be thrown out of her house.The new clause restricts the rights of the nominee, said Sampat.Societies must also prepare their own disaster management plans.Officials said this is necessary because many societies do not maintain basic safety features,like fire hydrants,clear staircases,etc.Each society will have to maintain important telephone numbers,including those of the members and disaster management officials.
The onus of redevelopment has also been placed on societies.Often,residents realize that the building cannot be maintained,but they refuse to take a call on redeveloping it until it is too late.If it is in the bye-laws,at least people will discuss and debate the issue, said a source.What was earlier a police circular has now been incorporated in the bye-laws.Societies must inform the police about new tenants.
If a flat owner dies without paying all society dues,these can be recovered from the legal heirs and /or the occupant.With members enclosing open spaces for which the society is charged,the bye-laws say that all members must have access to an open terrace.Though the Maharashtra Cooperative Societies Act,1960,made it mandatory for women to be on a managing committee,the new byelaws allow for a male member if no woman is willing to be on the committee.Its contrary to the Act,so it is surprising such a byelaw is introduced, said a source.Societies must respond to queries from members within a fortnight.
The New House Rules
Society should ensure that children below the age of 14 are not working on the societys premises,including in
any flat.Maximum fine of 1 year prison and/or Rs 20,000 in fine for the individual hirer Bye-Laws | 49(b) & 153(c)
A flats nominee cannot create an interest in favour of third parties without establishing the rights of the legal heirs of the owner Bye-Law | 34
Society dues can be recovered from the legal heirs of a deceased member and/or the current occupant Bye-Laws | 70(b)
A member will not have the right to sell a parking space that has not been purchased by him at the time of transfer of shares Bye-Laws | 77
Amounts above Rs.1,500 should be paid to the society by accountpayee cheque only Bye-Laws | 138
Monthly honorarium that can be paid to each office-bearer should not exceed 15% of the societys income or Rs.2,000,whichever is lower Bye-Laws | 141(b)
If the share capital of a society exceeds Rs.10,000,then voting has to be by secret ballot at the time of elections in the society Bye-Laws | 108(a)
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Saturday, December 25, 2010
Wednesday, September 1, 2010
SUPREME COURT VERDICT BUILDER CANNOT SELL STILT PARKING SPACE
SUPREME COURT VERDICT BUILDER CANNOT SELL OPEN/STILT PARKING SPACE EVEN AFTER OR BEFORE THE FORMATION OF SOCIETIES, IT IS COMMON AMENITY FOR ALL THE MEMBERS OF SOCIETY.
AS STATED IN TIMES OF INDIA ON PAGE No 2 DTD 2-9-2010
Builders have no right to sell stilt parking: SC
New Delhi: The Supreme Court has ruled that builders/promoters cannot sell parking areas as independent units or flats as the same is to be extended as common areas and facilities for the owners.A bench of Justices R M Lodha and A K Patnaik in a judgment rejected the argument of a real estate development company that they are entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.
If a promoter does not fully disclose the common areas and facilities,he does so at his own peril.Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser.The promoter has no right to sell any portion of such building which is not a flat within the meaning of Section 2(A-1 ) and the entire land and building has to be conveyed to the organization.The only right that remains with the promoter is to sell unsold flats.
It is,thus,clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachment to a flat, Justice Lodha writing the judgment said.
The SC passed the judgment while dismissing the appeal of the promoter,Nahalchand Laloochand Pvt Ltd,challenging the Bombay high courts ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garage.The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas,the same would not have any legal sanctity.
It brushed aside the claim of the promoter that by treating open/stilt parking space as part of common areas,every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all.
As a matter of fact,so far as the promoter is concerned,he is not put to any prejudice financially by treating open parking space/stilt parking space as part of common areas since he is entitled to charge a price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat, the apex court said.AGENCIES
AS STATED IN TIMES OF INDIA ON PAGE No 2 DTD 2-9-2010
Builders have no right to sell stilt parking: SC
New Delhi: The Supreme Court has ruled that builders/promoters cannot sell parking areas as independent units or flats as the same is to be extended as common areas and facilities for the owners.A bench of Justices R M Lodha and A K Patnaik in a judgment rejected the argument of a real estate development company that they are entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.
If a promoter does not fully disclose the common areas and facilities,he does so at his own peril.Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser.The promoter has no right to sell any portion of such building which is not a flat within the meaning of Section 2(A-1 ) and the entire land and building has to be conveyed to the organization.The only right that remains with the promoter is to sell unsold flats.
It is,thus,clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachment to a flat, Justice Lodha writing the judgment said.
The SC passed the judgment while dismissing the appeal of the promoter,Nahalchand Laloochand Pvt Ltd,challenging the Bombay high courts ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garage.The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas,the same would not have any legal sanctity.
It brushed aside the claim of the promoter that by treating open/stilt parking space as part of common areas,every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all.
As a matter of fact,so far as the promoter is concerned,he is not put to any prejudice financially by treating open parking space/stilt parking space as part of common areas since he is entitled to charge a price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat, the apex court said.AGENCIES
Monday, April 12, 2010
HOW YOU WILL COME TO KNOW WHETHER PARKING SOLD BY BUILDER IS LEGAL OR ILLEGAL ?
IF BUILDER IS TAKING FULL AMOUNT IN CHEQUE AND GIVING YOU SALE DEED AND RECEIPT FOR THE SAME THEN PARKING IS LEGAL, BUT IF BUILDER IS ASKING FOR SMALL AMT IN CHEQUE AND BIG AMOUNT IN CASH THEN PARKING SOLD BY BUILDER IS ILLEGAL.BECAUSE IF ANYBODY FROM YOUR SOCIETY CHALLENGES THE SALE OF PARKING BY THE BUILDER THEN COURT WILL ASK THE BUILDER TO REFUND THE AGREEMENT AMT WITH INTEREST, THE AMT PAID BY YOU IN CASH FOR WHICH NO RECEIPT IS ISSUED WILL NOT BE REFUNDED NOR YOU WILL HAVE ANY PROOF THAT YOU HAVE PAID CASH TO BUILDER
IF BUILDER IS TAKING FULL AMOUNT IN CHEQUE AND GIVING YOU SALE DEED AND RECEIPT FOR THE SAME THEN PARKING IS LEGAL, BUT IF BUILDER IS ASKING FOR SMALL AMT IN CHEQUE AND BIG AMOUNT IN CASH THEN PARKING SOLD BY BUILDER IS ILLEGAL.BECAUSE IF ANYBODY FROM YOUR SOCIETY CHALLENGES THE SALE OF PARKING BY THE BUILDER THEN COURT WILL ASK THE BUILDER TO REFUND THE AGREEMENT AMT WITH INTEREST, THE AMT PAID BY YOU IN CASH FOR WHICH NO RECEIPT IS ISSUED WILL NOT BE REFUNDED NOR YOU WILL HAVE ANY PROOF THAT YOU HAVE PAID CASH TO BUILDER
REGISTRAR OF SOCIETIES IS NOT AUTHORISED TO HANDLE PARKING PROBLEM
REGISTRAR OF SOCIETIES IS NOT AUTHORISED TO ADDRESS THE PARKING COMPLAINTS:
AS PER BYE LAWS REGISTRAR IS NOT AUTHORISE TO ADDRESS ANY COMPLAIN REGARDING PARKING HE WILL ADVISE YOU TO FORWAD YOUR COMPLAIN TO CO-OPERATIVE COURT.
SEE PAGE NO 50 OF CO-OPERATIVE HOUSING SOCIETY LTD TOPIC REDRESSALS OF COMPLAIN
AS PER BYE LAWS REGISTRAR IS NOT AUTHORISE TO ADDRESS ANY COMPLAIN REGARDING PARKING HE WILL ADVISE YOU TO FORWAD YOUR COMPLAIN TO CO-OPERATIVE COURT.
SEE PAGE NO 50 OF CO-OPERATIVE HOUSING SOCIETY LTD TOPIC REDRESSALS OF COMPLAIN
Tuesday, September 2, 2008
CAR PARKING PROBLEM AND RECENT MUMBAI HIGH COURT JUDGEMENT IN FAVOUR OF HOUSING SOCITIES
IN RECENT JUDGEMENT OF MUMBAI HIGH COURT ON 25TH APRIL 2008 JUSTICE BH MARLAPALLE HAS RULED THAT BUILDER OR DEVELOPER CANNOT SELL OPEN OR STILT PARKING SPACE, HIGH COURT HAS MADE IT CLEAR THAT AFTER THE OCCUPATION CERTIFICATE IS ISSUED AND SOCIETY IS FORMED AND REGISTERED, THE BUILDING, AS WELL AS STILT PARKING SPACE, OPEN SPACES AND ALL COMMON AMENIETIES BECOME THE PROPERTY OF SOCIETY, NO INDIVIDUAL MEMBER CAN HAVE RIGHT ON THIS COMMON AMENITIES OF SOCIETY, EVEN IF IT IS PURCHASED FROM BUILDER IT IS ILLEGAL. DOWNLOAD JUDGEMENT PDF FILE LINK FROM OFFICIAL MUMBAI HIGH COURT SITE IS AS FOLLOWS :
http://bombayhighcourt.nic.in/data/judgements/2008/CFA1808707.pdf
SUMMARY OF THIS JUDGEMENT WAS ALSO PUBLISHED IN ECONOMIC TIMES ON 1-5-08 ON PAGE NO 3 , FROM THIS SITE I CONGRATULATE CHIEF JUSTICE B.H MARLAPALLE FOR GIVING THIS BOLD JUDGEMENT AGAINST BUILDER LOBBY .
WITH THIS JUDGEMENT COMMON FLAT PURCHASER WILL HAVE FAITH IN JUDICIARY SYSTEM AND WOULD BELIEVE, JUSTICE IS THEIR ALIVE IN OUR COUNTRY, BUT FOR HOW LONG AGAIN LAW MAY BE AMENDED IN FAVOUR OF BUILDER LOBBY BY POLITICIANS. ANOTHER USEFUL LINK OF ECOTIMES
http://economictimes.indiatimes.com/PoliticsNation/Builders_can't_sell_stilt_open_parking_slots_HC/articleshow/3000217.cms
MUMBAI: In a major relief to thousands of flat owners, the Bombay High Court has ruled that 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 stilt 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 BH Marlapalle, 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.
“It has become a practice now where builders charge flat owners for space which otherwise should have come to them as their right,” observed Mumbai Flat-Owners Association president Mahabaleshwar Morje, that has been fighting for flat-owners’ right.
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 this ignorance and seek all sorts of undertakings which are contrary to the provisions DC rules”.
The HC in a definitive 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 rightfully 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”.
IMPORTANT LINKS:http://www.indiankanoon.org/doc/1359331/
http://advocatekamalkumarpandey.wordpress.com/2008/05/08/builders-cant-sell-stilt-open-parking-slots-hc/
http://bombayhighcourt.nic.in/data/judgements/2008/CFA1808707.pdf
SUMMARY OF THIS JUDGEMENT WAS ALSO PUBLISHED IN ECONOMIC TIMES ON 1-5-08 ON PAGE NO 3 , FROM THIS SITE I CONGRATULATE CHIEF JUSTICE B.H MARLAPALLE FOR GIVING THIS BOLD JUDGEMENT AGAINST BUILDER LOBBY .
WITH THIS JUDGEMENT COMMON FLAT PURCHASER WILL HAVE FAITH IN JUDICIARY SYSTEM AND WOULD BELIEVE, JUSTICE IS THEIR ALIVE IN OUR COUNTRY, BUT FOR HOW LONG AGAIN LAW MAY BE AMENDED IN FAVOUR OF BUILDER LOBBY BY POLITICIANS. ANOTHER USEFUL LINK OF ECOTIMES
http://economictimes.indiatimes.com/PoliticsNation/Builders_can't_sell_stilt_open_parking_slots_HC/articleshow/3000217.cms
MUMBAI: In a major relief to thousands of flat owners, the Bombay High Court has ruled that 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 stilt 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 BH Marlapalle, 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.
“It has become a practice now where builders charge flat owners for space which otherwise should have come to them as their right,” observed Mumbai Flat-Owners Association president Mahabaleshwar Morje, that has been fighting for flat-owners’ right.
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 this ignorance and seek all sorts of undertakings which are contrary to the provisions DC rules”.
The HC in a definitive 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 rightfully 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”.
IMPORTANT LINKS:http://www.indiankanoon.org/doc/1359331/
http://advocatekamalkumarpandey.wordpress.com/2008/05/08/builders-cant-sell-stilt-open-parking-slots-hc/
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