A Citizen’s Guide by J B Patel
Sometimes, the managing committee of your co-operative housing society refuses to give you crucial documents or information. This happens when you have a dispute with the society. How to get those documents? I recommend four steps:
A. MAKE APPLICATION TO THE SOCIETY UNDER MAHARASHTRA COOPERATIVE SOCIETIES (MCS) ACT
(i) 32(1) of MCS ACT says that registered member of the society can inspect the required information, with prior permission, in the society’s office during office hours.
(ii) 32(2) of MCS ACT says that the member can make an application in writing to Chairman / Secretary for obtaining information about the society’s affairs. Your society is bound to give you the required information within 30 days of the application on payment of legitimate charges prescribed in the bye-law — Rs. 5/- per page. So, make an application to your society and endorse a copy to the Deputy Registrar of Cooperative Societies in your ward office.
IMPORTANT: Be polite and avoid accusations and references to previous incidents. Don’t use harsh words like corrupt, arbitrary, misbehavior etc. Please write in a neutral and official tone. Stick to the point.
B. FILE COMPLAINT AGAINST THE SOCIETY UNDER MCS ACT
(i) If the managing committee refuses to give information in response to your applications and/or Dy Registrar’s notices, they are committing breach of law and willful neglect of law. The members of the managing committee are “jointly and severally responsible for acts and omissions detrimental to the interests of the society” as per Sec 73(1AB). Such actions will attract both fines and imprisonment. If they do not give you information even 30 days after the above-mentioned application, you may appeal to the Dy Registrar to IMPOSE PENALTIES AND PUNISHMENTS ON THE MANAGING COMMITTEE under Section 146(j) and section 147 of the MCS Act.
(ii) Under Section 89 A of the MCS Act, you can petition the registrar to INSPECT THE AFFAIRS OF THE SOCIETY, specifically for violations of Section 73. If they have signed the M-20 Bond (as per MCS Act Section 73(1ab) and Rule 58) within 45 days of assuming office, they are legally liable. And if they have not furnished the M-20 bond within the time limit, all their actions and decisions stand null and void.
FOLLOW THESE STEPS:
• First file complaint with DEPUTY REGISTRAR of Co-operative Housing Societies (AT YOUR WARD OFFICE). Mumbai residents, to find the address of your Deputy Registrar by ward, name of locality and pin code number, download this: http://tinyurl.com/Mumbai-CHS-Dy-Registrar-Wards
• Second, if this fails to have the desired effect within a month or so, escalate the complaint to the DISTRICT DEPUTY REGISTRAR. People of Mumbai, Navi Mumbai & Thane, to know the address of your District Deputy Registrar, download this: http://tinyurl.com/MMR-DISTRICT-Dy-Registrars
• Finally, in case you don’t get any relief from the above two steps within a couple of months, escalate it further to MAHARASHTRA-LEVEL HIGHER AUTHORITIES i.e. Commissioner, Registrar, Chief Secretary and Minister of Cooperatives & Housing. Contact details: http://tinyurl.com/Maharashtra-CHS-Higher-Ups
HOW TO COMPLAIN:
(i) Send original complaints to each authority. Don’t send any letter as cc, as this dilutes the responsibility of both recipients.
(ii) Each time you escalate the complaint to a higher level, begin by giving reference to your previous complaints at the lower levels, and also enclose copies of previous complaints.
(iii) Please let your complaint be clean and clear in language. Keep it short – not over two pages. State your matter clearly and pointwise. Give references to the rules and laws that were broken by the opposite party. Avoid anger, sarcasm and other emotions, because they will only muddy the waters.
C. FILE RTI APPLICATION TO DEPUTY REGISTRAR
Cooperative Housing Societies are not directly under Right to Information Act 2005 (RTI Act). But they are indirectly covered, THROUGH THE OFFICE OF DY REGISTRAR, AS PER SECTION 2 (F), which entitles you to “information relating to any private body which can be accessed by a public authority under any other law for the time being in force”. This is an indirect way of obtaining information from a society. Make an RTI application to Dy Registrar of the ward in the format prescribed under Maharashtra RTI Rules “Annexure A” with Rs 10/- court fee stamp or Indian Postal Order. Download Readymade RTI Application Format: http://tinyurl.com/RTI-Appl-format-DyRegistrarCHS
The Dy Registrar has to provide the information after getting it from your Society, USING HIS POWERS U/S 77 & 78 OF THE MCS ACT (to which RTI Sec 2(f) refers as “any other law for the time being in force.”)
Quite often, in response to the RTI application, the Registrar or Deputy Registrar will issue notices to the managing committee, threatening stern action if they do not provide information. Copy of this notice will be endorsed to you. Sometimes, this notice will have the desired effect, and you will get the information.
IF INFORMATION IS NOT PROVIDED WITHIN 30 DAYS, INVOKE TWO LEGAL MECHANISMS by filing a complaint with the Dy Registrar, say on the 35th day after the order.
(i) Invoke the mechanism of FIRST APPELLATE AUTHORITY under RTI Act Sec 19(1).
(ii) Invoke Section 148A – i.e. CONTEMPT OF CO-OPERATIVE COURTS, which says, “(1) If any person– (a) when ordered by a Co-operative Court or the Co-operative Appellate Court to produce or deliver up any document or to furnish information, being legally bound so to do, intentionally, omits to do so… he shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
D. IF ALL THE ABOVE REMEDIES FAIL, FILE CONSUMER COMPLAINT
As a consumer of services provided by a co-operative housing society, you are covered by the Consumer Protection Act in matters concerning the “business” of the society. Failure to give you necessary documents is a “deficiency in service”, and so you may approach the Consumer Court and pray for reliefs i.e. copies of documents, and compensation for difficulties suffered by you.
THE FIRST STEP IS TO SERVE A NOTICE under section 164 of MCS act 1960. Sec 164 says, “No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left.” With luck, this notice may itself subdue the managing committee, causing them to give you the necessary documents.
IN CASE THIS DOES NOT HAPPEN, proceed with litigation in Consumer Court. Don’t engage an expensive lawyer. If you have time and knowledge, appear as party-in-person and argue your own case. This will be an economical and effective solution, and also a learning experience for you. Download readymade format of Complaint before Consumer Court: http://tinyurl.com/Consumer-Complaint-format
WHERE TO FILE? Jurisdictions and addresses of Consumer Courts in Mumbai, Navi Mumbai & Thane: http://tinyurl.com/Mumbai-Consumer-Courts
• CONSUMER COURT IS NOT A FORUM FOR RESOLVING DISPUTES. Therefore, don’t mention personal disputes. Your complaint must highlight various deficiencies of service, and negligence in rendering service, with documentary proofs for each allegation. Build up such documentation beforehand. Your case will be strong only if you establish that you wrote various letters, applications etc. requesting the managing committee by all lawful means to render you the legitimate services.
• YOUR CASE MUST BE ABOUT THE “BUSINESS” OF COOPERATIVE HOUSING SOCIETIES. The scope of a Housing Society’s business is determined by the MCS Act, Rules and the registered bye-laws. It broadly covers membership & share transfer, maintenance & service charges, issues relating to proper conduct of general body and managing committee meeting, accounts & audit parameters, proper maintenance of building, providing a good living environment for all members, proper management and caution towards society funds such as repair funds and sinking funds, due diligence in case of engaging various contractors e.g. lift maintenance, civil works, repairs, and also building redevelopers, project management consultants, etc. As you are paying money towards monthly maintenance dues, sinking fund, repair fund, etc, you are a consumer who is aggrieved by the managing committee’s negligence in rendering services or deficiency in services rendered.
• SERVE NOTICE & ALLOW SUFFICIENT TIME (15 DAYS) TO CORRECT THE DEFICIENCY. As per the provisions of the Consumer Act, we need to serve notice for the “Deficiency of service” on the Housing Society and give them adequate time to correct the deficiency of service.
• CONSUMER PROTECTION ACT IS NOT CONCERNED WITH OTHER LAWS. It is applicable “notwithstanding anything in any other laws”, which includes the MCS Act (section 164 or whatever). It is “over and above” all the laws of the country as long as the law is appropriately invoked by a Consumer within the limitation of time i.e. within 24 months from the date of grievance arising.
• THIS IS “ADDITIONAL REMEDY” AND NOT “ALTERNATIVE REMEDY”. You may file for your grievances in the Co-operative Court as well as Consumer Court, and the orders of both will have to be honoured independently. Other court decisions / rulings are not binding on Consumer Court. The proceedings under a case in the Consumer Court cannot be stopped, even if a similar or same matter is pending before another court.
• ONLY AGGRIEVED PARTY HAS RIGHT TO FILE CONSUMER COMPLAINT. As against this, subject to certain parameters, a third party may petition the Deputy Registrar / Cooperative court, to initiate suo moto proceedings for violations of MCS Act.
• CASE IS AGAINST HOUSING SOCIETY, AND NOT AGAINST INDIVIDUALS. In both Consumer Court and Cooperative Court, complaints and cases may be filed against the CHS. You cannot target individual managing committee members, as you would do in criminal proceedings.
E. ALSO AS A LAST RESORT, YOU MAY FILE FIR OR PRIVATE COMPLAINT WITH MAGISTRATE against Individual member of the Managing Committee. Even if you have initiated proceedings in Cooperative Court and Consumer court, you may also initiate proceedings in Criminal Courts, if you have documentary evidence of nefarious activities such as misappropriation of funds, forgery of society records, duplicate share certificates, letting out the society property for mobile towers, advertisement hoardings etc. without the written consent of 75% members, rigged and manipulated elections, forged and back-dated M-20 Indemnity Bonds, refusal to transfer membership based on caste, creed, religion, assaulting members. This can be done without any permission / sanction from the Registrar of Co-operative Housing Societies, because it is against individuals, and not against the society.
Please Study these Acts & Rules to strengthen yourself:
(i) MCS Act 1960 — http://tinyurl.com/MCS-Act-1960
(ii) Model Bye-Laws of Coop Housing Societies — http://tinyurl.com/Model-Bye-Laws-CHS
(iii) RTI Act 2005 — http://tinyurl.com/Right-to-Info-Act-2005
(iv) Maharashtra State RTI Rules — http://tinyurl.com/Maha-RTI-Rules
(With standard formats for RTI application, First Appeal & Second Appeal)
(v) Consumer Protection Act — http://ncdrc.nic.in/1_1.html
This Citizen’s Guide is created by J B Patel firstname.lastname@example.org 98205 38570.
If you are aggrieved in Housing Society matters in Mumbai Metropolitan Region, you may seek his free guidance.
You can also consult other knowledgeable persons on Big Helpers Community www.bighelpers.org