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BY
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Important Questions and Answers
| Q.1 | |
| Q.2 | |
| Q.3 | |
| Q.4 | |
| Q.5 | |
| Q.6 | |
| Q.7 | |
| Q.8 | |
| Q.9 | |
| Q.10 | Is there in reality not 10% expenses are about 50% of maintenance charges? |
| Q.11 |
It is known that problem of housing is universal problem.
1. Some of the members of the co-operative Housing Societies tried to take the advantage of the shortage of residential or commercial accommodation and tried to indulge in exorbitant profiteering. However some are forced to keep their flat closed, as it would be difficult for them to recover the same and therefore Government is thinking to prevent this unlawful profiteering by issuing certain guidelines under section 79A of the Co-operative Societies Act to the Co-operative Housing Societies and has invited suggestions from some of the people who are experienced in the Co-operative Law.
2. While considering the question of problems arising out of Non-Occupation Charges -
What is meant by Non-occupation charges?
Whether Occupation Charges are required to be paid in respect of the premises, which are closed for some valid reason?
Whether the premises which cannot be occupied under the law and/or occupied illegally, can it be said that the premises are occupied, and person is liable for payment of Non occupation charges?
Whether the members who are making exorbitant profits, can they be called upon to pay reasonable share in the profits?
Whether it would help to solve the shortage of housing/accommodation and also help both the members of the society and the society get some benefit of by allowing to give the premises on the basis of non-occupation charges.
Under the Maharashtra
Co-Operative Societies Act, and subject to provisions of the Co-operative
Societies Act and Rules, thon charges defined under bye laws are as under:-
"While referring to the
definition of the Non-occupation charges, it must be noted that every premises
non-occupied, does not mean the premises which are closed. The premises
which are non-occupied mean the premises which are Sublette and/or given
on Leave and License basis for the purpose of occupation."
4. The bye-law No.45 refers
to permission for sub-letting, etc.
The very object of charging
temporary occupation charges is not to prevent a person from subletting
it or giving on license or for occupation to enable the Society to share
the benefit arising out of the transfer for the society itself
and to its members, whereby the residential flats premises will not be
unreasonably kept closed and they should be available for the needy persons
and artificial scarcity will be reduced and the prices of the flat would
come down.
5. MEMBERS OF FAMILIES:
The bye-laws also have
made it clear that even the members of the family who may be father, mother,
brother or sister will be allowed to stay in the premises and non-occupation
charges will not be levied. It is also further made clear that the power
has been given to the general body of the society even to allow the other
persons who are closely related to occupier of the flat without charging
any occupation charges. However, now it is suggested that for the proper
business and management of the society the person who is allowed to occupy
should be made nominal member of the society.
6. FLAT FOR WHICH THERE
IS NON-OCCUPATION CHARGES.
It is brought to the
notice of the government that under Clause L of sub-section (2) of section
3 of Maharashtra Ownership Flat Act 1963 that the promoter shall not allow
any person to enter into possession until completion certificate is given
under the law and no person shall take possession until the completion
certificate is duly given by the local authority. In such a case where
the society is duly registered and where the persons have occupied the
flat, they should not be allowed to escape from paying occupation charges.
7. DIFFERENCE BETWEEN
CO-OPERATIVE SOCIETIES ACT AND COMPANY LAWS
While differentiating
ordinary members and corporate members, it must be remembered that the
Co-operative Society is to have better living and better management for
the purchasers of the flat and they do not intend to make any profits,
whereas in case of the corporate bodies, Companies and other Corporations
profit is the sole and main object of such Corporate Bodies or Companies
and those who are making profit for their institutions, can be treated
liable for stamp duty and the transfer of the membership of the corporate
bodies are restricted and when they are to occupy the flat on the
basis of leave and license additional non-occupation charges
must be levied.
8. USE FOR NON-RESIDENTIAL
PURPOSE
When the Society gives
premises for the purpose other than the residential purposes, it must be
seen that the society should not be allowed to do so unless there is permission
from the Municipal Corporation. The premises can be given on sub-letting
and/or license basis only after it is permitted under the Municipal Laws
and said permission can be granted for nursing home or for running classes
and/or for beauty parlour and not for any other purposes.
9. In this context, Bombay
High Court has already delivered a judgement, which states as under :-
"The Society being a
Co-operative Society was the owner of the building and the member was no
more than an allottee. If the member had introduced a stranger and was
getting a profit out of it, it was but proper that the real owner should
get some part of the profits, if not the entire profit, accruing to the
member." (Ref : Sardar Mohan Singh Ahuluwalia (since deceased) through
his wife and legal representative Smt. Sukhwant Kaur Ahluwalia V/s.Maitri
Park Co-operative Housing Society Ltd. and another. Citation 1986
C.T.J.418).
10. PARKING FACILITIES
It is further suggested
that when the flat is given on temporary Leave and License or temporary
occupation purposes, it should be given along with the facilities for the
purpose of car parking etc. whenever possible. However where it is
not a sale along with the facilities for the purpose of car parking facilities,
temporary license or temporary occupant cannot get the benefit of car parking
facilities.
11. DIFFERENT CATEGORIES
It is further suggested
that while considering the question of levying temporary occupation charges,
the difference between the ordinary persons and corporate personas or between
the flat costing below Rs.10 Lakhs and above Rs.10 Lakhs are required to
be made. The reason being taken into account is the hardship caused
to flat purchasers who purchase the flat costing up to Rs.10 Lakhs certain
concessions are being allowed and/or given to such flat purchasers.
For example it is fully exempted from the payment of stamp duty if the
value of the flat is Rs.1 Lakh or less Rs.1 Lakh and/or up to 10 Lakhs.
12. However if the value of the flat is more than Rs.10 Lakhs, it is required to pay the stamp duty at 8%. Now taking this into consideration, even this principle can be applicable in case into consideration, even this principle can be applicable in case of non-occupation charges and therefore, it is suggested that only one time service charges may levied in case of the flats which are costing more than Rs.10 Lakhs. However where the flat which are costing more than Rs.10 Lakhs and the society has taken heavy deposit for the license fees from the licensee, the Society must get reasonable benefit according to the percentage of profit made by the members of the society.
In conclusion, it can be said that when levying the temporary license/s occupation charges, it must be seen that very object is not only to share the profits when the premises are given to the society are encouraged to give the premises on Leave and License so that the societies are prevented from taking undue advantage of making profits and thereby artificial shortage of residential accommodation can be reduced to a maximum extent.
| Q.1 | What is the object and purpose of Order dated 1st August 2001 issued under section 79 of Maharashtra Co-op.Societies Act ? Whether earlier order dated 9th March 1999 is treated as cancel ? |
| Ans. |
Object of the order is to encourage the people not keep the flat vacant
but to give it on leave & licence on reasonable terms and conditions
and also to share their income by paying 10% of the service charges excluding
municipal charges.
All the co-operative housing societies in the state have to amend the bye-laws/sections accordingly. Even if the amendment is not made, Non occupancy charges, should not be charged more than the maximum limit from the date of issue of this order. This order will come into force from its date of issue. |
| Q.2 | What was the object and purpose of Circular issued on 9th March 1995 by the Department of Co-operation and Textile? |
| Ans. |
According to the said Circular it has come to the notice of the Government
that some Cooperation and assistance on the basis of their majority they
try to collect exhorbitant non-occupation charges and therefore they have
decided to have only one time maintenance charges, no matter what is the
income of the society.
Considering the above situation and the contents of a letter dated 19.12.1994 from the Co-operative Commissioner and Registrar of Co-operative Socieities, from the point of view of the common public interest, the Government under Section 79 (A) of the Co-operative Act gives following directions :- The non-occupancy charges should not be more than one time of the service charges and if a member has given his tenement to below mentioned his near relatives then non-occupancy charges should not be charged :- Mother, father sister brother, son, daughter, son-in-law, brother-in-law, sister-in-law, grand-son, grand-daughter and besides this other relatives as decided by Society. Subject to the aforesaid both the conditions the Housing Societies can recover non-occupancy charges as per the procedure referred to in the Model Bye-law No.45(3)(C) of the concerned Co-operative Society. The above directions shall be applicable to the residential and commercial flats as well as to the all types of Housing Societies and these directions shall come into effect from the date of issuance of the same. |
| Q.3 | Whether it is necessary to make distinction between the flats which are purchased for the purpose of investment and for the purpose of residence ? whether the order issued by the under Secretary, co-operation Textile Department having regard to taking into consideration this point ? |
| Ans. | The order refers to the general provisions stating that non occupancy charges shall be charged more than 10% that of the services charges (including Municipal Taxes). At least two broad categories should be made while charging non-occupation charges. |
| Q.4 | How far the fresh non occupancy charges is correct ? when non occupation charges are not recovered when the flat is not occupied but the charges are occupied when the premises are sublet or given on leave and licence to the members of family ? |
| Ans. | It must be noted that Artificial scarcity of the premises are created in as much as people were reluctant to give the premises to the persons other than the members of family. If the premises are not occupied society does not get any amount in addition to the regular maintenance charges. In fact the premises are vacant there is no consemption of electricity charges, water supply or lift services. One of the object of allowing the members of family to use the premises free of charges is to reduce the problem of accused shortage of housing which has resulted in created artificial rights in the prices as the premises are kept vacant. Instead of calling non occupation charges it should be called non occupancy charges by member. |
| Q.5 | How composition of charges of the society made ? |
| Ans. |
The contribution to be collected from the members of the society, towards
outgoing and establishment of its funds, referred to in these bye-laws
as the charges may be in relation to the following :
(i) Property Taxes (ii) Water Charges (iii) Common Electricity Charges (iv) Contribution to Repairs and Maintenance Fund, (v) Expenses on repairs and maintenance of the lifts of the society, including charges of running the lift (vi) Contribution of sinking fund (vii) Service Charges (viii) Car Parking Charges (ix) Interest on the defaulted charges (x) Repayment of the instalment of the loan interest (xi) Non-Occupancy Charges (xii) Insurance charges (xiii) Lease rent (xiv) Non-agricultural tax (xv) any other charges. |
| Q.6 | How the services charges of the Society calculated ? |
| Ans. |
The
service charges of the society referred to at (vii) above shall include
the following :
Salaries of the office staff, liftmen, watchmen, malis and other employees of the society. Where the Society has independent Office, the property taxes, electricity charges, water charges etc for the same.
Printing, Stationery and Postage
Entrance fees for affiliation to the Housing Federation and any other co-operative
institution.
Expenses incurred at meetings of the general body, the Committee and the
sub-committee, if any.
Any other charges approved by the General Body at its meeting. However
such charges should not contradict the provisions of the Act, Rules and
bye-laws of the Society.
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| Q.7 | How many flats are vacant in the state of Maharashtra ? |
| Ans. | It appears from the press report that there are more than 12,50,000 flats (18,000 + 11,000 housing Societies) out of which about 15,000 or thereabout are in posh localities like Malabar Hill, Nepean Sea Road, Cuffe Parade, Warden Road, Worli, Bandra and such other localities where it is found that some of the members of the Co-operative housing Societies take exorbitant and unreasonable deposit when the premises are sub let or given on leave and licence and they are also collecting exorbitant amount in the form of compensation. By such a transaction the members are benefited but society does not get any benefit about such transaction. Some of the Co-operative Housing Societies thinking to challenge the Order. However there are more than 90% of the small flats of less then 2 bed room and costing less than 10 lacs or thereabout. |
| Q.8 | What steps are taken by the Government to reduce financial burden of Flat Owners ? |
| Ans. |
The Government of Maharashtra in order to reduce the financial burden has
given such flat purchasers concession from Stamp Duty and has tried to
reduce it from time to time. Originally the small flats up to area of 650
sq.ft were fully exempted subsequently flat costing up to 10 lacs were
required to pay sum of Rs.49,000/- this amount was reduced
Rs.47,500/- and thereafter it is
reduced Rs.38,750/- with effect from 1st September 1995.
The Government realising the financial burden caused to the Flat Owners/the members of Co-operative Housing Society, in order to give them some incentives to sub-let the premises or give to Leave and Licence, amount of Non-occupation charges is also reduced from 100% to 10% i.e. One time maintenance charges to 10% of service charges excluding Municipal Taxes. This was done on the basis of several representations that the Government received from several Co-operative Housing Societies and Flat Owners Organisations all over Maharashtra. |
| Q.9 | What additional protection is given to the Flat Owners ? |
| Ans. |
In order to give reasonable protection to the Landlord or to the Licensor
amendment is also made to the provisions of Maharashtra Rent Control Act
wherein notwithstanding anything contained in any other Act registration
of leave and licence is mandatory. As a result of which Licensor were hopeful
of getting the possession back after expiry of the period.
Top
However, in addition to non-occupation charges which they were required
to pay to the society they were required to incurred additional expenses
payment of Stamp Duty which was Rs.2000/- for a period not exceeding 1
year without any renewal clause and Rs.10,000 for a period of 1 year but
not more than 3 years without any renewal clause. The Period over 3 years
they were required to pay same Stamp Duty as leavyable under Article 36.
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| Q.10 | Is there in reality not 10% expenses are about 50% of maintenance charges? |
| Ans. | In
addition to that the parties were also required to pay the Registration
Charges Rs.1000/- if the property is situated within the area of Municipal
Corporation and Rs.500/- in other areas. I therefore say that
it can be seen that when a member was allowed to give the premises on leave
and licence he is required to incurred the following expenses :-
Payment of stamp duty Rs.2000/- or 10000/-
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| Q.11 | Is Order dated 10th August 2000 is legally valied ? Is the Order is consistant with Directive Principles of State Policy ? |
| Ans. |
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(MAHABALESHWAR
MORJE)
Gen.
Secretary.