Q. The ceiling of the toilet in my flat is damaged due to leakage from the upper flat. They have done some temporary work which will not be sustained for long. What is the role of the society in the internal leakage issues? What happens if the upper flat owner fails to take remedial action on a durable basis? Can I start the renovation in my flat as in view of the temporary work done in the upper flat? Our building is 40-years-old as such who will be responsible for any future mishaps which God forbid?
Satish Herekar, Goregaon
A. Every member of the society is required to upkeep and maintain their flat in good condition. The expenses for internal leakages should be borne by the concerned flat owners, with intimation to the society. The secretary, along with other committee members, may inspect your flat to check for leakages and issue a notice to carry out the necessary repairs at your own cost within the time period allowed by the committee. If the owner of the flat above you is unwilling to carry out the repairs to permanently stop the leakage, the society has the authority to enter their flat and conduct the repairs after giving them due notice. The cost of these repairs will be recoverable from them.
Generally, affected neighbours share the expenses for repairs of internal leakages since it benefits both parties. Since your building is 40 years old, it is necessary to keep it in good repair and condition, both internally and externally, until your society decides to go for redevelopment. You may submit such a proposal in writing to your upstairs neighbour, with a copy marked to the society. If they fail to accept your proposal or initiate remedial measures on their own, you can individually file a complaint with the cooperative court for the damage caused to your premises (Bye Laws 45, 47(c), 156, and 159(b)).
Q. How can the managing committee or the society deal with or recover maintenance dues from habitual defaulters? Girish Dikey, Andheri
A. Every member is required to pay the maintenance charges as and when they are due; failing to do so may result in the society levying interest as decided by the general body. The society must follow the process to recover the dues from the defaulter.
As a first step, the society should contact the defaulter to inquire about the reason for non-payment, obtain a commitment on when the dues will be paid, and inform them of the consequences of continued nonpayment. If the member still fails to honour the dues, the committee should send a notice (followed by two reminders) to the defaulter to make the payment immediately. Failure to comply will compel the society to initiate action for the recovery of dues as per Section 154B-29 of the MCS Act.
If the defaulting member does not respond to the notices and reminders, the society can present the list of defaulters before the general body and seek approval to initiate action for recovery. The society can apply to the DDR under the aforesaid section to issue a recovery certificate for sums and arrears due to the society as arrears of land revenue. The DDR will conduct inquiries and, if deemed appropriate, will issue a certificate for the recovery of the stated arrears as dues. Such a certificate serves as the final and conclusive proof of the arrears due and can be recovered as arrears of land revenue under the Maharashtra Land Revenue Code. The expenditure incurred in this process is also recoverable from the defaulting member. The Society should initiate action at the first instance of default to ensure no member develops a habit of defaulting.
Q. Can the managing committee, in the AGM or any other meeting, override the Byelaws based on the majority? Will such a decision be considered legal and binding? Nitin Bendre, Goregaon
A. The simple answer to your questions is no. Byelaws are required to be complied with by every housing society. Members cannot take any decision, even with a majority vote, that violates the Bye-Laws, whether at an AGM or any other general meeting. Any such decision will not stand the test of law and will be considered void.
If the members wish to make any changes to the Bye-Laws, they can consider amending them by following the due process mentioned in Bye-Law 166. A proposal to amend the Byelaws, along with the details, must be circulated to the members 14 days before the date of the general meeting at which the amendment will be considered. The resolution to amend the ByeLaws must be passed by a 2/3rd majority of the members present and voting at the said general meeting. The proposed amendments must then be approved and registered by the DDR.
The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to fpjchs@gmail.com
