Levying fines arbitrarily against the spirit of cooperation, even illegal
Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker
Can a member be permitted to place refuse material during repairs outside his flat, in common passage; and, if so, for how long? What is the fining procedure in case he causes nuisance and overshoots a decided deadline? Who is authorised to fine the member? Does the society have to approach the Registrar, civic authorities or take action itself against the erring member and under which law?
— Vinay Thorambe, Palghar
Each and every society needs to amend its own bye-laws in keeping with their niche requirements and provide for a schedule of fines and penalties too that don’t exceed reasonable limits. The process of amendment of bye-laws to include a schedule of fines and penalties is laid down in the bye-laws itself.
Cooperative Housing Societies are allowed to amend their bye-laws. However an amendment proposed by a society with regards to the internal management of the society should not violate any of the provisions of the Maharashtra Cooperative Societies Act, 1960; Maharashtra Cooperative Societies Rules, 1961 or any other prevailing laws of the land. Where conditions for repairs and associated fines/penalties are concerned, a CHS can lay down a schedule of terms that could include all or any of the following in its amendments:
a) All works will have to be legal in nature and the member should produce a no objection certificate from concerned authority before commencing any work. Any official stop-work, show-cause notice from any civil authority to the society’s managing committee or brought to their notice will lead to immediate stoppage of work and withdrawal of NOC.
b) Only non-structural repairs can be undertaken subject to a conditional NOC obtained from the managing committee at least a fortnight before initiating work.
c) The member undertaking repairs has to deposit a refundable amount of Rs X that will be refunded to him on completion of repairs and will cover costs undertaken for works left unattended by his workers or damage caused in the process.
d) The member should fill in an undertaking that the work he performs within his premises will be non-structural ‘repairs’ and will not alter integral structure comprising beams, columns and plinth of the society and compromise the society’s structural stability.
e) The member could be made to sign a bond indemnifying the society against any losses caused by him or his workers to the society or any member during the period of repairs.
f ) The member should also undertake to indemnify neighbours or affected members whose properties may be affected in the process of repairing his property.
g) No work-related rabid or refuse may be permitted to be collected in the society’s common passage that includes space outside one’s door; in the common balcony; on the staircase’ on the common terrace; in the playground; at the entrance of the society or in any common area failing which a fine of Rs 500 could be charged on the first day; Rs 1,000 on the next day and stopped from continuing work on the third instance.
h) The society NOC should carry a rider that all repair work should be stopped during afternoon from 1 pm to 4 pm and at 9 pm in the night. Anybody breaking the rule will be fined Rs 500 for the first instance, Rs 1,000 for the next and stopped from continuing work in the third instance.
i) A schedule of fines can be drawn up for civil wrongs such as littering; dirtying the passage and can be laid down in amendments that, however, don’t transgress the very basis of the law and are not extraneously punitive in nature.
In the end though, it is up to the Registrar’s discretion whether to or not to approve the amendment only after which it becomes binding on all members.
Leving fines arbitrarily and without following due process is not just against the spirit of cooperation but, illegal and likely to be struck down in court.
Procedure Of Repairs Not Laid Down In Law
I have to undertake repairs of my home for which I have taken all due permissions from the society. Now, my query is, am I bound to pay up fines levied arbitrarily by my cooperative housing society’s managing committee which I feel is entirely at their whim and fancy? Isn’t there a procedure to ascertain fines and penalties?
—Joseph D’Souza, Mahakali
The New Model Bye-Laws clearly mention that all repairs not covered by the Model Bye-law number 160 (a)), basically non-structural and personalised repairs such as paint jobs, masonry work, plumbing works shall be carried out by the members at their own cost.
Sadly, the law does not detail the manner in which a member should perform repairs of his/her own premises without causing any inconvenience to others which forms the basis of nuisance – the bane of most societies and/or legal remedies in case of transgression.
This weekly legal column has been generated for The Draft News, Without Prejudice and In Good Faith.
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