Mumbai Housing Society Queries: Complex must carry out repairs of common areas at its cost

A member in our society is saying that he will not pay the maintenance dues unless the managing committee repairs the compound. What action can we take against him?

Meena Mirchandani, Santacruz

It is the responsibility of all members to pay the maintenance bill/demand notice in full within such a period as may be fixed by the committee. A member commits a default in case he fails to honour the bills in time. Society can levy interest at the rate of 21% or such a lower rate as maybe fixed by the general body. The managing committee can initiate a recovery proceeding under Section 91 or Section 101 of the Maharashtra Cooperative Societies Act. Such defaulters are ineligible to be appointed, nominated, co-opted, and elected to any committee. It is the responsibility of the society to carry out the repairs of the common areas, including the repairs in the compound, at its cost. In case your society does not carry out the repairs, members can file their dispute with the Cooperative Court in accordance with Section 91 of the MCS Act. (Bylaws 68-71, 159 and 74 B of 2014 Bylaws). These are two different actions to be initiated by the society and the member. A member cannot hold the society to ransom by not paying the maintenance. He should follow the process of law.

A lawyer in our building has opened an office in one of the rooms of his flat. Is this legal?

Ghanshyam Nath, Airoli

It is a settled position that an advocate’s office is not a commercial establishment. The Supreme Court has held in Arup Sarkar v/s CESC Ltd & Ors. (WP 18367 of 2019 dated 11.02.2020) that an advocate’s profession is not at all a commercial activity. Yet in another case the apex court has stated that there is a fundamental distinction between a professional activity and commercial activity. Professional activity involves a certain amount of skill as against commercial activity, which is a matter of business. In commercial activity one works for profit and in profession, one works for his/her livelihood. If a lawyer is running his/her chamber office in his/her home that will not make it a commercial use of property. The electricity company also does not charge lawyers commercial tariff if they have their office in one of the rooms of their flat. Hence, it is legal for the lawyer in your society to have his office in his flat.

The managing committee of our society is ordering from a hotel snacks and fruit juices etc for each meeting. The bill comes to about Rs1,000 per meeting. How can we stop this misuse of society funds?

Kevin Misquitta, Mazgaon

Members of the managing committee being the custodian of the funds of the society have to spend the amount collected from the members judiciously and for the cause it has been collected. Bylaws are silent on the limit which the managing committee is allowed to spend on snacks and beverages while attending committee meetings. In case you feel that your managing committee meeting expenses are on a higher side, you may bring this point for discussion before the general body, which can decide a limit up to which expenses can be allowed for the snacks and beverages. Ultimately, the general body decides the charges to be levied on members and the manner in which the funds have to be utilised. However, members should also remember that the managing committee are performing their duties in accordance with the provisions of the bylaws voluntarily and such jobs are thankless.

The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat.

The questions, in brief, may be sent to fpjchs@gmail.com