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Onus of Leakage Repairs Rests Squarely Upon CHS

Legally Speaking - Housing Laws | By Solicitor Gajanan Khergamker

For Cooperative Housing Societies across Maharashtra, particularly Mumbai, it’s the issue of water leakage that is usually the bone of contention. 

The Bombay High Court recently allowed a flat owner to recover over Rs. 46 lakhs from a cooperative housing society as expenses for repairing the building terrace which the society had neglected since 1992 placing the issue of the onus of terrace repairs and ensuing water leakages, squarely on the managing committee.

Image is for representational purpose only
"Court is of the view, had the Society repaired and maintained overhead terrace on the 8th floor, Disputant (flat owner) would not have suffered over a period, since 1992 till date. Indisputably, acts and omissions of the Society call for interference in Disputant's rights to live peacefully and enjoy the flats...", it held. 

The court was tackling a society's writ petition challenging Maharashtra State Co-operative Appellate Tribunal's award to the flat owner for recovery of expense and damages. The court also imposed cost of Rs. 2 lakhs on the society payable to the flat owner who suffered due to leakage from the overhead terrace despite multiple complaints to the society.

In 2021, while observing when a leakage is external, it is the responsibility of the co-operative housing society to fix it, a magistrate’s court convicted a society in Chembur and its chairman and secretary, directing them to pay a fine of Rs 10,000 each for ignoring a shop-owner’s request to repair the damage for almost a decade. 

The court said the leakage would have to be fixed within two months, failing which they would face action. Atul Cooperative Housing Society, its chairman Arun Baghchi and secretary Alok Sarkar were booked on a complaint from Purnachandra Dasgupta, a resident who owned three shops that suffered leakage. 

The court refuted the defence contention that since the accused were not the owners of the housing society, they were not liable to abate the leakages. 

When the defence contended the office-bearers were not the owners, the court held that the building is owned by the society. “After formation of the cooperative housing society, the office-bearers become responsible to take care of every issue relating to the premises of its members. It is well-known that if the leakages are from internal side, then it has to be taken care by the members themselves. However, if the leakages are from external side, then those have to be taken care by the society, that is, office-bearers of the society,” the magistrate’s court said. 

While the defence claimed that the court could only pronounce the sentence and only the cooperative court had the jurisdiction to give directions to fix the leakage, the magistrate’s court held it was not deciding any civil rights of the parties. 

“The object of any law is to protect the rights of citizens and administration of justice. It is unjustifiable that a citizen should run from forum to forum just to get basic reliefs, which often pertain to necessities. Therefore, I do not find any impediment to give directions regarding abatement of leakages,” the court said. The minimum fine amount prescribed by the act was Rs 2,000 and the maximum, Rs 10,000. Imposing the maximum fine, the court reasoned: “The evidence on record reveals that the shop owner is facing this issue of leakages since 2013-14.”

The issue of ‘internal leaks,’ has been tackled by Bye-Law 67 of the Model Bye-Laws that details repairs and maintenance of the property of the Society that shall be carried out by the Society at its costs:
a. (i) All internal roads, (ii) Compound walls, (iii) External water pipelines, (iv) Water pumps, (v) Water storage tanks, (vi) Drainage lines, (vii) Septic tanks, (viii) Staircases, (ix) Terrace and parapet walls, (x) Structural repairs of roofs of all flats, (xi) Staircase lights, (xii) Street lights, (xiii) External walls of the building/ buildings, (xiv) All leakages of water including leakages due to rain water, and leakages due to external common pipeline and drainage line, (xv) Electric lines upto main switches in the flats (xvi) Lifts, (xvii) The damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace.(xviii) Generators,(xvix) also…
b. All the repairs, not covered by the bye­law No. 158(a) shall be carried out by the Members at their cost. The expenditure of the internal leakage due to toilet, sink etc., should be borne by concerned flat holders, with intimation to the Society.

Also, Bye-law No 158 that tackles repairs and maintenance of the property of the Society to be carried out by the Society at its costs includes the issue of leakages: 
a. (i) All internal roads, (ii) Compound walls, (iii) External water pipelines, (iv) Water pumps,(v) Water storage tanks, (vi) Drainage lines, (vii) Septic tanks, (viii) Staircases, (ix) Terrace and parapet walls, (x) Structural repairs of roofs of all flats, (xi) Staircase lights, (xii) Street lights, (xiii) External walls of the building/ buildings, (xiv) All leakages of water including leakages due to rain water, and leakages due to external common pipeline and drainage line, (xv) Electric lines upto main switches in the flats (xvi) Lifts, (xvii) The damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace. (xviii) Generators, (xvix) Security Appliances (CCTV, Intercom, Group Mobile, Mass Data Sharing Devices, Siren Bell) (xx) Rain Water Harvesting,(xxi) Sewerage, Storm water Drain & Water Treatment Plant (xxii) Common areas not specifically allotted, Swimming Pool, Gym, Sauna Bath, Coffee House (xxiii) Common Parking Space (xxiv) Solar and alternate energy devices. (xxv) Garden (xxvi) Community hall (xxvii) Wi-fi setup of the Society 
b. All the repairs, not covered by the bye-law No. 158 (a) shall be carried out by the Members at their cost. The expenditure of the internal leakage due to toilet, sink etc., should be borne by concerned flat holders, with the intimation to the Society.

Internal Leakages as clearly laid down by the Bye-Laws include leakages within one’s home due to toilet, sink, etc., the onus of whose repairs rests entirely upon the individual user.

Now, very often cooperative housing societies insist that repair costs for issues such as leakage need to be split between the parties involved; Such as the one whose home is affected due to leakages from another located directly above.

By legislation, and decided too, the cooperative housing society is the service provider and the flat-owner is the consumer. The question of demanding a service or compensation for deficiency of service from another flat-owner does not arise as there is no service provider-consumer relation between the two. 

The onus of providing a service here, rests squarely upon the cooperative housing society and the flat-owner remains the member and the recipient of service who has the right to avail it and move court in case of deficiency or negligence.

This monthly legal column has been generated, without prejudice and in good faith, answering queries on the issue of leakages in flats and damages raised by Ganeshan Vishwanathan, Borivali | Shirish Gaekwad, Girgaum | Milind Joshi, Pune | CHS Secretary Vasanti Goel, Kalamboli and CHS Chairman Vimla Shah, Kandivali. Queries, general in nature, may be addressed to legal@draftcraft.in.

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