Q: I have a flat in a society in Mulund, which is undergoing redevelopment, and the society members are at the stage of finalising the developer. Our society is a huge one, and the management committee has conducted mock voting. Many members are not in Mulund. In fact, many reside outside India. As a result, getting 2/3rd members to make a quorum itself is a big challenge. Please advise whether, as per the law, the society can carry on e-voting or not? Can the society bring consent letters from individual members and create a 51% majority to select the desired builder? What is the sanctity of mock voting in law? Can a member change his choice in the final selection under 79A guidelines? Please guide. —Manpreet Singh, Mulund A:
The questions you have asked are bothering many society members in and around Mumbai, Thane, Pune and elsewhere in the state. Many big housing societies are finding it extremely difficult to get 2/3rd members of the total membership, which is the minimum quorum for commencing the special general body meeting convened for selecting the developer. Every housing society going for redevelopment must know that the process is regulated by the guidelines published vide Government Resolution dated July 4, 2019.
These guidelines lay down the complete procedure to be adopted by the housing societies from the time they decide to go for redevelopment till the selection of the developer. Often, the question arises whether these guidelines are mandatory or only guiding in nature. With several High Court judgments on this point, it is now a settled position that these guidelines are not mandatory. This means they are not of ba inding nature. However, it does not mean that these guidelines can be altogether bypassed.
The law expects substantial compliance, and some minor deviations will not invalidate the selection process. Unfortunately, over the years, there have been aberrations in implementation. The process of deputing the authorised officer from the office of the district deputy registrar (DDR) has been grossly converted into a fertile ground for corruption. The DDR’s office insists on illegal gratification from societies or builders at the rate of Rs15,000 to Rs50,000 per flat for granting permission to organise the special general body meeting and for issuing the nonobjection certificate thereafter.
Since housing societies are unable to pay such hefty amounts running into lakhs of rupees, the DDR’s office came out with ‘innovative ideas’ and suggested to societies, through project management consultants, to conduct ‘mock voting’. The developer who gets selected in such mock voting is then expected to take care of DDR’s illegal demands. Another such ‘innovation’ was the ‘preferred developer’ letter, which societies were asked to issue in favour of the front-runner developer. In reality, such ‘mock voting’ and ‘preferred developer’ concepts have no place in the 79A guidelines. They are creations of the DDR’s office and have no legal sanction.
Mock voting is thus devoid of any legal validity and cannot bind the society. As regards e-voting, as of date the 79A guidelines do not permit e-voting for the selection of a developer. Only members physically present at the special general body meeting can vote. Members who are out of the city or abroad, or those who are very old or bedridden, are not allowed to exercise their votes online. Selection of a developer is a crucial stage in the redevelopment process. The government must therefore seriously consider allowing e-voting and online participation of members. The Mumbai Grahak Panchayat has urged the state government to permit such participation.
Denying members the right to vote online amounts to denying them their right to participate in the selection process, which is unfair. It is hoped the government will soon come out with such a provision in tune with modern technology and democratic principles. Currently, the 79A guidelines also prohibit consent letters from individual members who are not physically present in the special general body meeting organised for selecting the developer.
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)
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