Managing a co-operative housing society involves balancing statutory rules with practical realities and many disputes arise when either members or managing authorities depart from what the law actually permits. Questions around maintenance calculations, documentation of ownership and access to society records are among the most common, and often the most misunderstood, issues faced by flat-owners.
This week’s queries address three such problem areas. The first examines whether Societies can depart from the model bye-laws and levy maintenance uniformly on a per-square-foot basis, despite clear provisions distinguishing between flat-wise and area-wise charges. The second looks at the legal options available to a flat-owner when an old agreement has neither been registered nor properly stamped and has subsequently been lost. The third deals with transparency and accountability when a Society is placed under an administrator and whether members can demand access to basic financial information such as bank account details.
Together, these cases highlight the importance of understanding the scope of Society bye-laws, statutory remedies available to members and the limits of discretion—whether exercised by managing committees, administrators or authorities.
Area-wise vs Flat-wise Maintenance Charges in Housing Societies
Question: We are a co-operative housing society registered in Mumbai, with over 120 flats of varying sizes, ranging from 420sqft (square feet) to 1,500sqft. During our Society’s AGM, maintenance charges were discussed.
Some members expressed the view that, given the wide variation in flat sizes, maintenance should be levied on a per square foot basis across the board. This view is contrary to the bye-laws, which provide that service charges are to be levied on a per-flat basis, while certain charges such as sinking fund, repair fund and insurance are to be levied on a per square foot basis. Kindly clarify the correct position.
Answer: As per Society bye-law no. 67(a):
• Bye-law no. 67(a)(iii) — Expenses on repairs and maintenance of the building(s) of the society are to be charged at the rate fixed by the general body from time to time, subject to a minimum of 0.75% per annum of the construction cost of each flat, towards normal recurring repairs.
• Bye-law no. 67(a)(v) — Sinking Fund is to be charged as provided under bye-law no. 13(c), subject to a minimum of 0.25% per annum of the construction cost of each flat.
• Bye-law no. 67(a)(xi) — Insurance charges are to be levied based on the built-up area of each flat. If the insurance premium increases due to storage of specific goods or commercial use in any flat, the additional premium shall be borne by the concerned flat holders in proportion to the built-up area of their flats.
• Bye-law no. 67(a)(xii) — Lease rent is to be charged based on the built-up area of each flat or unit.
• Bye-law no. 67(a)(xiii) — Non-agricultural tax is to be charged based on the built-up area of each flat or unit.
• Bye-law no. 67(a)(xvi) — Any other charges may be levied as decided by the General Body Meeting of the society.
Only the above charges are to be levied on the basis of the area of each flat or unit. All other Society charges are to be levied equally on each flat or unit, irrespective of its area. Therefore, what you have stated regarding the method of charging maintenance is correct.
Regularising an Unregistered and Lost Flat Agreement
Question: I own a flat in Kandivali. The original agreement has been lost. The agreement was neither registered nor was stamp duty paid. How can I now pay stamp duty and make the agreement legal? Please advise.
Answer: If you have lost the original unregistered sale deed of your flat, you will need to produce evidence showing that you have been residing in the flat for several years. Such evidence may include electricity bills, your driving licence showing the flat address, LIC policy documents delivered at the address, correspondence from the income-tax department, passport records, the flat’s share certificate or any other government documents confirming your address at the time of purchase.
Submit at least two such documents along with an affidavit on ₹100 non-judicial stamp paper stating that the unregistered sale deed, executed on approximately a specified date and on stamp paper of a certain value, has been lost.
These documents should be compiled in a file along with a letter from your housing society addressed to the collector of stamps, requesting acceptance of stamp duty on a duplicate sale deed at the old rate, along with the applicable penalty of 2% per month, subject to a maximum of 400%.
If the xollector of Stamps is satisfied with the evidence provided, stamp duty at the old rate along with the applicable penalty will be accepted. If not, the Collector may require you to execute a sale deed at the current stamp duty rates, without penalty.
If the sale deed is executed at the current rate, stamp duty will be payable on a unilateral sale deed. While such a deed is legally valid, it cannot be registered if the seller is not available. However, if the seller is available, the belatedly executed sale deed can be registered.
Right of Members To Access Society Bank Account Details during Administration
Question: My cooperative housing society has been taken over by an administrator appointed by the registrar, as the previous managing committee had misappropriated funds.
I recently approached the administrator to seek details of the bank accounts held by the Society. However, the administrator has refused to disclose this information and has instead directed me to the former committee members. When I approached the dismissed committee members, they too were reluctant to provide these details. What remedy do I have?
Answer: Under bye-law no. 174(A)(vii), you should make a complaint against the administrator of your Society to the deputy registrar of cooperative housing societies for not supplying details of the Society’s bank accounts. The deputy registrar will direct the administrator to provide you with the bank account details of the Society.
If the deputy registrar does not reply to your complaint within 30 days, you should file a right to information (RTI) application with the public information officer of the deputy registrar’s office, attaching a copy of your complaint letter. In the RTI application, seek information on the action taken by the deputy registrar on your complaint against the administrator for not providing the Society’s bank account details.
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
(Shirish Shanbhag has an MSc in Organic Chemistry, Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)
