Mumbai Housing Society Queries: 'Not Necessary For All Members To Sign DA,' Says Expert

Q. Is it necessary for all members of the society to sign the development agreement? What happens if some members do not sign up?

Geeta Nair, Bhandup

A. It is not necessary for all the members to sign the development agreement. It is not desirable as the managing committee is authorised to execute all the contracts on behalf of the society. Developers have been making members as confirming parties to the DA in order to avoid the payment of the stamp duty on the Permanent Alternative Accommodation Agreement (PAAA).

This issue was settled when the government issued a notification pursuant to the judgment of the Bombay High Court. The stamp duty required to be paid is Rs 100 for the PAAA. The society should specifically tell the developer that the members have unanimously or by majority authorised the chairman, secretary and the treasurer to execute the DA.

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Q. Our society has not given us an updated copy of the bye laws since it adopted the 2014 model bye laws. Is it not necessary for the society to add the new provisions in the bye laws each time there is an amendment in the applicable laws?

Vishwas Ahirekar, Andheri

A. It is up to your society to adopt the model bye laws or amend the same by following the prescribed procedure. The government notified the model bye laws in 2014, which does not include the subsequent amendments made to the MCS Act and Rules. The latest law will prevail irrespective of whether the bye laws have been amended or not. For example, the provisions of the MCS (Amendments) Act 2019 will be binding. There may be some discrepancies in the provisions of the bye laws (2014) as the amendments have not been incorporated.

Nothing stops your society from amending the bye laws to be in line with the provisions of the existing law. Your managing committee can circulate a proposal to amend the bye laws to all the members, 14 days before the meeting of the general body at which such proposal will be considered.

The resolution should be passed by a majority of two-third members present and voting at the GM. Such amendments have to be approved and registered with the registrar.

Q. Ours is an apartment owners association as against a cooperative society. One of the apartment owners has not been paying the monthly contribution towards maintenance. What is our recourse to recover the same?

Vimal Shah, South Mumbai

A. Apartment association and cooperative housing societies are governed under different statutes. Every apartment owner has to execute a deed of apartment and has to abide by its terms. The ownership of the apartment along with the undivided common areas is with each apartment owner. Thus each one is liable to pay their individual share of the expenses for the upkeep and maintenance of the common areas and other facilities.

A complaint could have been filed with the competent authority under the Maharashtra Apartment Owners Act, 1970. The said Act was amended in 2023 to delegate the powers of the competent authority to deal with the complaints of the apartment owners and the association to the registrar of societies. Hence the apartment association can file a complaint against such defaulting member with the registrar of societies.

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