M Coop Society act Flashcards
Definitions
o Committee - means the committee of management in which the management
of the affairs of a society is vested under section 73;
o Housing Society- means a society, the object of which is to provide its
Members with open plots for housing, dwelling houses or flats ; or if open
plots, the dwelling houses or flats are already acquired, to provide its
Members common amenities and services
o Member - means a person joining in an application for the registration of
a Cooperative society which is subsequently registered, or a person duly
admitted to membership of a society after registration and includes nominal,
associate, or sympathizer member:
Understanding Co Operative Society
Association of people – coming together – Similar interests / goals.
* Economic interests / welfare – serving interests of its members.
* Supporting its members – helping themselves and each other – mutual
assistance.
* Pooling of resources – optimum utilization
State List- A co-operative society may be
governed by the respective state’s Co-operative Societies Act or by
the Multi-State Co-operative Societies Act, 2002.
types of members
▪ Associate Member – means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate – in absence of the original member - AGM / Vote/ Elections
▪ Nominal member - means a person admitted to membership as
such after registration in accordance with the bye-laws – no RTI in
the property – employee of a corporate member – .
▪ Sympathizer member - means a person who sympathizes with the
aims and objects of the society and who is admitted by the society
as such member
▪ who shares the common goals, interests, and objectives of the society - he has no right to vote and is not allotted any shares in the
society – area of expertise.
▪ Sympathizer member - means a person who sympathizes with the
aims and objects of the society and who is admitted by the society
as such member
A nominal member or sympathizer member shall not be entitled to any share in any form
whatsoever in the profits or assets of the society as such member. A nominal or sympathizer member shall ordinarily not have any of the privileges and rights of a member and is not allotted any share in the coop society
- Rights of members
A Member shall be entitled to exercise such rights as provided in the Act,
Rules, and Bye-laws.- no person can excersise these rights unless the have made the required payment to the society or acquired interest in it per the Bye laws
1. Right to inspect free of cost books, registers documents etc. - get copies
of the documents - on payment of the fees prescribed.
- Right to receive a copy of the Approved Bye-laws, Audit Report of the Society, on payment of charges prescribed thereof.
- Right to possession / occupation of his flat.
- Right to attend GBM including AGM / EGM
- Right to vote in the election of the society.
- Right to transfer shares / let out premises \
- No Member shall be eligible for being appointed, nominated, elected, coopted or for being a Member of a Committee, if he is a defaulter of the society.
- Right to appoint associate member / nominal member.
- The member gets right to make nomination of his share.
- Right to get Maharashtra Co-op. Societies Act 1960 Rule 1961 and Registered copy of the society by-laws.
- Right to a copy of Audit Report.
- Right to list of members
- Right to registration book of member.
- Right to minutes of the managing committee meeting.
- Right to minutes of Annual General Body meeting and special general body meeting
conveyance
he conveyance of land to a society refers to the formal transfer of ownership rights from a developer or promoter to a cooperative housing society. This process is significant as it grants the society control over the land and building on which its members reside.
goverened by MCS and MOFA
Section 4 of MOFA- a promoter who constructs a property for COPSOC constructs a block or building of flats,
all or some of which are to be taken or are taken on ownership basis, shall take not more than 20% of the sale price- written agreement- to be registered
Sec 4 A – MOFA - Unregistered agreement for sale – accepted in suits
for Specific Performance
▪ Sec 11 – MOFA - the promoter / landowner – to convey property – execute a deed of conveyance – transferring his right, title, and interest in the land and building
A Conveyance deed or a deemed conveyance means a legal document of ownership right over the property (land and building). It is a document designed to transfer the property ownership right from the developer/builder to the society.
Why is conveyance deed required?
According to the MOFA Act (Maharashtra Ownership Flats) a land or building is deemed to be conveyed to a legal body or a cooperative housing society within four months of when a housing society comes into existence. This is essential because there have been several instances when
the builder or the promoter has sold parts of the land or the building to a third party
Regular Conveyance vs Deemed Conveyance
within 4 months of formation of housing society, developer is legally required to convey the land to the society typically the managing committee. if they execute the conveyance deed within the required timeframe- this is regular conveyance
IF the developer is not prompt or proactive then the societies can approach the competent authorities and sub registrar to obtain deemed conveyance
the society has
to follow a procedure of obtaining certificates and documents from local authorities while simultaneously applying to the Sub-registrar who examines the documents provided and allows the builder to present his case. Only after due diligence and after ascertaining that the society
is correct in demanding conveyance, the Registrar passes the order of issuing Deemed Conveyance under the Registration Act 1908, which is then considered legal and final.
Up until a few years ago, it was mandatory for the society to submit an OC (Occupation
Certificate) and BCC (Building Completion Certificate).
procedure to get deemed conveyance
- Submit an application in Form -7 to the District Dy. Registrar, Co-operative Societies
(Competent Authority). - Along with the form, add the court fee stamp of Rs 2000.
- Affix the documents listed below along with the application form.
The decision is taken by the Sub-registrar within the time period of six months or less. Any
official who does not provide a Deemed Conveyance within 6 months is penalised between Rs
500 to Rs 5000. - Documents Required to obtain Deemed Conveyance
Affidavit made before a Notary or Executive Magistrate.
List of all members and details of each member’s share certificate.
True copy of Society Registration Certificate
Copy of the legal notice issued to the builder for issuing Regular Conveyance Deed.
RE – DEVELOPMENT
Redevelopment is the process of demolishing existing old society building and
reconstructing it by appointing a good Builder who can construct and handover new flats
to the society members free of cost with some additional benefits and make profit by
utilising balance plot potential by constructing additional flats and shops as per approval
from M.C.G.M. Before opting for redevelopment, the society must complete a Structural Audit of the existing building
Applies to all kinds of redevelopment – developer / self / cluster
o Instances:
▪ Ruinous Conditions – Competent Authority declares so – SGBM –
decision to redevelop
▪ Members to take decisions - SGBM to be held in accordance with the
bye laws – Administrator appointed by the Registrar cannot take the
decision.
process for redevelopment
No less than 1/5th of the members – submit an application – Secretary – to
convey a SGBM - the policy for redevelopment – take note of such application in 8 days.
o SGBM to be convened within 2 months – Agenda to be shared – 14 days in
advance.
o** Before doing so – invite quotations – preliminary feasibility reports - 3 -
project management consultants – registered on the panel of local authorities – 1 to be selected in the SGBM.**
o Transparency to be maintained – all correspondences / notices / minutes etc –
website – to be communicated to the Registrar.
Members allowed to give suggestions / recommendations – Architects /
PMCs
Quorum requirement – 2/3rd of the members – failing which adjourned – to be reconvened within a month – if no quorm – assume members not interested.
- majority of members to be present- not less than 51% of total membership to decide whether to redevelop or not - the minutes are to be circulated. Once approved, those in favour must give written consent.
– appt of architect/expert and realistic project report to be presented by esxpert within 2 months of appt.
Recommendations / issues – to be discussed with Architect / PMC / Expert –
Approved after a comprehensive discussion.
o **Draft Tender Document – developers to be invited – cut-off date **
o List of tenders received to be displayed on notice boards for the members
information.
o Managing Committee meeting – bidders / members can attend – tenders to be
opened in presence of all present – scrutinize – at least 3 to be received –competitive reasons – PMC to approve such tenders to be kept before the SGBM.
SGBM to be convened – to select developers from the tenders received and
short listed – Authorised officer from the registrars office to be appointed -
be present in the SGBM – Agenda to be circulated to all members / registrars
office –** selected developer – minimum 1 project to be registered with MahaRERA**
Written approval of 51% of total
members - for appointment of developer – no one other than bonafide members to be present
o Quorum – 2/3 of members – if no quorum – postpone by 7 days – again no
quorum – assume members not interested.
o Development agreement / Permanent Alternative Accommodation Agreements
to be executed – 3 months from date of selection.- Alternative
accommodation / rent / bank guarantee / dispute resolution / timelines etc
o Premises to be vacated only after all necessary approvals are in place –-
allotments– draw lots – Disputes Section 91
Section 91
Sec 91 of MCS act- referenc of dispute
A reference of a dispute under Section 91 shall be made in writing to the
Registrar – he may require - certified copy of the relevant records / statements before proceeding with the consideration of such reference.
Where the Registrar is satisfied that there is a dispute, the Registrar may
decide the dispute himself or refer it for disposal to a Co-operative Court
having jurisdiction.
No other court shall have jurisdiction to entertain any suit or other
proceedings in respect of any dispute referred to hereinabove.
o Shall include claims by or against a society / debt due to it or from it to a
member – past – present – alive or deceased through their representatives /
claim by a surety in respect of amount due to him from the principal
borrower to whom a loan is given by the society / a claim by a society for
any loss caused to it by a member etc – past – present or deceased.
o Exception being – Co Op Court may suspend any proceeding with regard
to any dispute if it opines that the said dispute involves a complicated
questions of law and fact – till such time the said question it is decided by
way of a regular suit in a Civil Court.
Constitution of Co-Operative Courts – Section 91A.
o Shall consist of a Single member – Judge - all pending matters – before
the constitution of such court - to be transferred to Co Op Courts – proceed
to hear and dispose of such proceedings from the stage it was.
- Judge to be holding or held judicial office not lower in rank that of Civil Judge – Civil Court
under CPC 1908 / Advocate – Pleader – 3 years’ experience.
- Co Op Court – to be vested with the powers of the Civil Court under CPC
- Party can have a legal practitioner representing – only with permission of
the court.
if neither party appears –
dismissed for default – if disputant does not appear - may be dismissed – if
disputant appears and opponent does not – may decide ex-parte – where it
appears – elements of settlement exist – ADR mechanisms
If a case is decided ex-parte – party may apply to be set aside – in 30 days – court may accede.
o Co Op Court / Registrar – direct conditional attachment of property –
same effect as if made by a competent Civil Court.
Appeals to coop appellate court
Maharashtra State Co-operative Appellate Court.- Section 149
A person who is qualified to be appointed as a Judge of the High Court or
is holding or has held a judicial office not lower in rank than that of the
District Judge can be posted to the office of the President of the Maharashtra
State Cooperative Court.
o Benches shall consist of 2 or more members – if odd nos. – decision of
the majority shall prevail - / even nos. – and opinion equally divided - refer
it to the President – his decision to prevail – powers of a civil court.
Appellate Court - may call for and examine the record - legality or
propriety of any decision or order passed - modified, annulled or reversed An order passed in appeal / revision / review - shall be final and
conclusive.
parking space, open space and parking slot
- A parking space – means open space within the premises of the Society
earmarked by it for parking of vehicles and includes a stilt, basement, podium , mechanized parking. - Open space - means an Area, forming an integral part of the site, left open
to sky. - Parking Slot – means - demarcated and numbered individual parking slot
for a single vehicle ( for four wheeler LMV or two wheeler ) within the
parking space available with the Society.
what is the parking allottlement general guideline?
General Body Meeting (GBM) to decide the exact guidelines, including charges and process of application for the parking slots
- typically first come first serve basis of parking slots, no right to sell or transfer the alotted slots.
- cannot utilize more parking slots than those alotted
- Every member having a vehicle – eligible – one slot per person per vehicle – if slots in excess – can be allotted for second vehicle – on a year-to-year basis.
- If eligible members more and slots less – allotment on an annual basis –
fair and transparent process - GBM
Parking charges to be paid – whether parks the vehicle or not – as fixed
by the GBM.
o Disputes related to parking – Co Op Courts
- Case Law – Nahalchand Laloochand Pvt. Ltd.vs. Panchali CHS Ltd – 2010
o The stilt parking spaces cannot be put on sale by the developer as he ceases to
have any title on the same as soon as the occupation certificate is issued it
becomes the property of the society - the building / stilt parking spaces / open
spaces / common amenities become the property of the Society. Appeal fails.
