101. Is 100% consent necessary for redevelopment or 75% ?
The Government of Maharashtra has issued an order u/s 79A of the Maharashtra Co-operative Societies Act, 1960 on 3rd January, 2009 regarding the redevelopment of the building by the Co-operative Housing
Societies. As per this Order, the Special General Body meeting in which builder has to be appointed has to be attended by 75% members and minimum 75% of the members present should select a particular developer.
Thus for the redevelopment and appointment of the developer, may be with 56% of the total members will be sufficient( i.e 75% of 75%). However, at the time of vacating the premises, all the members have to given consent and vacate the premises as per the resolution passed in the General body meeting. In case, some member do not give the consent or vacate the premises, the society or the developer may move before the competent Court/ Authority and get the dissenting member vacated from his premises to implement the decision of the majority. There are many court rulings which has held that the minority cannot stall or create hurdle in the process of redevelopment. Therefore, it is advisable for the societies to compulsorily follow the guidelines , procedure and the system given in the above circular, which will facilitate the redevelopment very smoothly.
102. Is Sec 79A of MCS Act justified? Why cannot the condition be imposed in intimation of disapproval.
103. How many builders have complied & completed the project as per development agreement under order of sec 79A MCS Act.
The Government of Maharashtra has been given under section 79A of the Maharashtra Co-operative Societies Act, 1960 to bring out any notification for the smooth functioning of the society. Since there was not standard practice adopted, transparency was lacking, confusion and litigation in the redevelopment has compelled the government to bring out the notification. This is very much justified and all the societies should adopt the same. I understand the Government has directed BMC to verify before issuing the IOD whether the society has appointed the developer as per the Govt Order and whether necessary approval has been given by the Deputy Registrar for appointment of the Builder. IOD cannot have this condition because, the IOD is given to the society based on the proposal submitted by the appointed builder. In case such order is not followed, the aggrieved members should complain to the Deputy Registrar and also to the Building Proposal Department, not to issue IOD till all the procedures laid
down under the above order is complied with.
I do not have exact numbers but majority of the societies who have initiated redevelopment after 2009 have started to undertake redevelopment as per the guidelines given in the above circular.
104. PMC appointed by society but fees paid by builder – pmc loyal
to whom?
105. Developer to accept pmc as his architect –out of compulsion.
106. PMC fees-% project- too much for issuing members when the builder is going to get profit
Project Management consultants are appointed by the Society much before the selection of the builder and the developer. The terms and conditions of the appointment letter to PMC should mention that the
amount will be paid by the society. The society should collect the amount from the Developer in its name and than pay to the PMC. The society should not all the PMC to receive the payment directly from the builder. If PMC receives the direct payment from the builder, the PMC may not be loyal to society. The builder may ask PMC to relax certain conditions/norms before releasing the payment. Therefore PMC cost should be recovered by the society in advance from the developer and pay to PMC in stages, if the PMC does the work according to the satisfaction of the society and as per the terms and conditions agreed upon. In such cases, PMC will be under direct control of the society.
I recommend that the PMC should have an architect whom the society has appointed to submit the plan and his name will be recorded in the BMC record as the society Architect. The builder should be given a free hand to conceive the idea, let his Architect give the inputs, prepare the plan but the same will be approved and signed by the Architect Appointed by the society.
This gives a good control on the modification of the Plan. Once the architect is appointed by the society, before the plan is modified, he will have to take the approval from the society. This also acts as a good control on unscrupulous builder who influence the architect and construct some illegal construction and getting the OC become difficult.
One has to understand the scope of the PMC. The fees is based on the services availed. PMC service is not like a standard product like TV or electronic goods of certain brand which is available in the market with MRP. This is tailor made. The skill, experience and the quality of the services and the scope of the work offered as PMC is different and is based on the requirement of the society. Therefore it is advisable to get the details. Some PMC charge on lump sum basis and some charge on project cost and some charge on square foot basis. Some also charge on the different services and stage wise like preparing feasibility report, obtaining the documents like Property Card, City Survey Plan, Development Plan Remark, Aviation NOC etc. Survey Report, Measurement, Preparing the tender, tax planning, supervision, structural verification, approved plan verification, vetting of various documents, preparing documents etc.
107. Renovation done at heavy Exp… Can builder pay me ..?
In a society, members carry out different types of renovations in the flat and also many do the fixed furniture which cannot be dismantled. Every member has different circumstances and claims made during the redevelopment. Since the builder/ developer takes up the redevelopment based on the area of the land, FSI and TDR allowed, the same is being distributed amongst the members of the society based on the FSI purchased by them at the time of construction of the building. The society or the builder may not accept your claim of refund of renovation expenses. The builder or the society is not bound to give any extra benefits since you have done the renovation recently.
108. what is the law on about percentage (% ) required of members consent
As per the Government notification dated 3/1/2009, 75% members should attend the special general body meeting in which redevelopment decision is taken and the developer is appointed. In said meeting with majority of 75% of present members decision can be taken and is binding all all the members of the society.
Thus in effect 75% of the present members of the 75% of total members need to agree and approve the resolution for proceeding with redevelopment and appointment of the developer. This means even 56.25% of the total members are sufficient to carry out the resolutions for redevelopment.
However, 100% members should vacate the flats before the commencement certificate is issued by the BMC for construction of the new building. However, the BMC gives the IOD ( approval of the plan with certain conditions before demolition of the building on execution of the development agreement and appointment of the builder ).
If the members do not voluntarily vacate and give the consent, the due process of law will be initiated by the society and the member may be forced to vacate the flat not to become hurdle in the process of redevelopment. This has been upheld by number of high court judgments. Minority cannot stall the process of redevelopment . Thus voluntary consent or the forced consent by due process of law will be taken during the redevelopment .
109. One flat is used as community Hall
Since the community hall is given as a common asset by the builder to the society, the benefits thereof, if any will also be shared equally be all the members. It is better to get the community hall in turn in the name of the society to be used by all the members in future.
110. Flat area varies … actual to society Record
The construction of the building is done as per the Development control Rules as applicable. BMC grants the building construction as per the FSI allowed on such land based on its area. Therefore, the area to be considered is based on approved plan as per the original building constructed. If the same is not available as per the assessment tax collected by the BMC. If both are not available as per the society record / agreement executed with the builder or as per their respective agreement. The general body can deliberate on this and take an unanimous decision in the interest of all.
111. Redevelopment in phases..??
It depends on Developer’s planning .. if he decides to have more Buildings on the plot Society can discuss phased wise program but on small plot such phase wise program not feasible or economical. The same may be informed to the builder can if feasible, that may be worked out in due course.
112. Approved list of PMC
NO… there is none so far exist ven though it has been mentioned in Govt. order of 3rd Jan 2009 Society has to use its experience or take help of some consultant as PMC consist many duties and experts from many fields are needed. The professionals forming the part of the PMC must be registered with the respective professional bodies like CA with institute of Chartered Accountants, Architect with Council of Architure, Structural Engineer with BMC, Advocate with Bar Association and so on.
113. Plot area.. FSI 1 to 2.. How calculated..?
Area on Property card will be the base.
114. When allotment is to be decided… ? while executing agreement or procession?
Once the plans are prepared and approved by the BMC as per the area to be allotted to each persons, the architect and the builder will request the society to initiate the allotment process. Once the flats are allotted by the general body of the society with whatever method is adopted, the builder will execute the Agreement for Permanent Alternative Accommodation in the new building, the same will be stamped and registered and then the persons have to vacate the old flats and hand over the vacant possession to the
builder for demolition and redevelopment.
115. Do the redevelopment committee has to make/sign any legal Bond.
There is no provision for making any Redevelopment Committee as per the latest Government Circular dated 3rd Jan, 2009 regarding the Redevelopment of the society building. Further, there is no provision in the MCS Act, 1960 or the MCS Rules, 1961 or in t he Bye-laws of the society. However, many societies do constitute Redevelopment committee who work under the guidance and the direction given by the Managing Committee or the General Body meeting. Since, Redevelopment committee is not responsible and accountable for any decision in the working of the society, they are also not make accountable and responsible under the MCS Act. It is only the Managing Committee who are responsible and accountable,
therefore only Managing Committee members have to sign the bonds and there is no requirement of the Redevelopment committee members to sign the bonds.
116. What are the rights and liabilities of the redevelopment committee.
As can be fixed by the Society… it is not mandatory… changes from Society to Society..
117. What action can a society take, if during the general meetings, any member breaks the decorum , repeatedly.
The Chairman of the meeting has the supreme power. The chairman of the meeting can expel him from the meeting and also later on initiate proper legal action against such member as provided in the bye-laws for breach of bye-laws of the society and the decorum of the meeting. The member can also be expelled and later evicted from the flat by taking due process of law.
No member of the society can man handle him or start using abuse language with such member. If a particular member is aggrieved of such member behaviour, the same should be reported to the chairman, who has to take the decision by recording the reasons and passing appropriate resolution in the meeting
118. Do the Redevelopment Committee has to make/sign any legal Bond ?
There is no provision for making any Redevelopment Committee as per the latest Government Circular dated 3rd Jan, 2009 regarding the Redevelopment of the society building. Further, there is no provision in the MCS Act, 1960 or the MCS Rules, 1961 or in t he Bye-laws of the society.
However, many societies do constitute Redevelopment committee who work under the guidance and the direction given by the Managing Committee or the General Body meeting. Since, Redevelopment committee is not responsible and accountable for any decision in the working of the society, they are also not make accountable and responsible under the MCS Act. It is only the Managing Committee who are responsible and accountable, therefore only Managing Committee members have to sign the bonds and
there is no requirement of the Redevelopment committee members to sign the bonds.
119. Is the parking of 20feet/40feet truck/lorry permissible in a residential co-op. hsg .society ?
The parking rules are made by the society in the General Body meeting of the society. The society in its General Body meeting may decided and make the rules as to which type of vehicles will be allowed to be parked in the society, where it will be parked, what will be the system of allotment of the parking, parking charges, who is entitle for parking, who can apply for parking etc. There is no guidelines given in MCS Act, 1960 or the MCS Rules, 1961 or any other law except the General body of the society and the Bye-laws of the society which regulates the parking. It is not possible for me to give any legal answer to this question except the same to be decided in the General body of the society.
120. Is this true that General Body Meeting (GBM) should follow the guidelines prescribed in the Law or the GBM has the right to manipulate the Law ?
Bye –law No. 111 states as under: “ Subject to the provisions of the Act, the Rules and the Bye-laws of the society, the final Authority of the society shall vest in its general body meeting, summoned in such manner as is specified in these bye-laws” Thus General body is not above the law. No body is above the law. Within the general provisions of the law, the general body can take the decision in the interest of the society.
121. What are the rights and liabilities of the redevelopment committee ?
No where in any of the Act, Rules , Bye-laws and the government notification, the mention of the redevelopment committee is made. Therefore, if any society wants to constitute the Redevelopment committee, the rights, privileges, powers and the functioning including the election has to be prepared, approved in the General Body meeting and then the same should be constituted. Many societies constitute redevelopment committee without any proper guidelines and get into a major disputes. It is the managing Committee which is responsible and accountable as per the provisions of law.
