Q. Can a member not staying in the society be a member on the managing committee? Will the response be different if the members' relatives are staying in his flat in the society?
Sudheer Kumar Joshi, Vile Parle
A. The general body is required to elect the members of the managing committee. There is no specific provision in the model bye laws restricting a nonoccupant member to contest the election and to be appointed as an office bearer of the society unless he is otherwise disqualified to contest the election as per the provision of Section 154B-23 read with Bye Law 119. If such a member has given his flat on leave and license with due intimation to the society and followed the process, then he can contest the election and not otherwise.
Office-bearers are responsible for managing the day-to-day affairs of the society. However, members may face some hardships and delay in getting their work done, if such member or office bearer/s is not residing in your society. Although technically there is no bar, to electing such members, the general body should consider whether such non-occupant will be in a position to duly discharge his/her duties as a member or an office-bearer. If the family of the member is staying in the flat, there is a possibility of his frequent visits to the building.
Q. I came to know that the builder’s flat is available for sale in a building which has received OC and all other flats are sold and occupied by new allottees. The builder asked me to give the cheque in the name of a different person. I have given a cheque for Rs5 lakh. I want to know whether a builder can collect money in the name of someone else?
Anagha Patil, Goregaon
A. Every builder (promoter) is required to maintain a separate account to collect the amount from the home buyers collected after booking the flat. In your case, the construction happens to be completed and the other allottees have already occupied the premises. The OC is also in place. In case the builder is asking you to give the cheque in someone else’s name, you need to ask the builder why the cheque has to be given in the third person’s name. You may visit the website of MahaRERA at www.maharera.mahaonline.gov.in and check the details of the project and the number of flats sold.
If the flat under consideration is unsold, you may inform the developer that you will not make the payment in any other name and you can file a complaint with MahaRERA. If the said flat is in the name of one of the partners, promoters or family members of the developer, please check the document trail including the registration of the sale agreement to ensure that the person is a genuine owner.
In case of an investor flat, the agreement is generally not registered but some MoU may be there in place. You need to ask the developer these questions to protect your interest before making any payment. You may consider executing a tripartite agreement with the builder (as a confirming party) and the owner of the flat is a different person.
Q. What are the voting rights of different types of members of an existing cooperative housing society?
SN Karthikeya, Chembur
A. Section 22 of the MCS Act does not apply to housing societies under the 2019 Amendment. Provisions regarding the voting rights of members are mentioned in Section 154B-11 of the MCS Act. Membership can be of various types like ordinary member, associate member, joint member or provisional member. Further, members can be individuals, firms, corporate bodies, etc.
Each member of the housing society has one vote which should be exercised in person during the general meetings. The associate member and provisional member also have a right to vote in the meetings of the society.
In case of a joint owner, the first person in the share certificate has a right to vote. However, in his absence, the person whose name stands second in the share certificate can cast a vote. If the second person is a minor, he does not have a right to vote.
In case the member is a company, firm or other body corporate, the director/partner or such authorised person can vote. Such authorisation shall be in writing. In case of equal votes, the chairman of the society has a casting vote in the meeting.
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
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