Housing societies under RTI Umbrella

The following article was published in The Times of India, Mumbai Edition on 17^th September 2011, and is copied here for the information of readers of the blog:

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SEEK RELIEF

You can use the RTI Act to seek information from the society, says J B PATEL

There are some ways to obtain the desired information from the managing committee. 

FILE RTI APPLICATION TO DEPUTY REGISTRAR:     

Co-operative housing societies are not directly under the Right to Information Act 2005 (RTI Act).     But they are indirectly covered, through the office of the Deputy Registrar, as per section 2 (F), which entitles you to "information relating to any private body which can be accessed by a public authority under any other law for the time being in force". This is an indirect way of obtaining information from a society. Make an RTI application to the Dy Registrar of the ward in the format prescribed under Maharashtra RTI Rules "Annexure A" with Rs 10/- court fee stamp or Indian Postal Order. You can also download readymade RTI Application Format from the official website.

The Deputy Registrar has to provide the information after getting it from your society, using his powers U/S 77 and 78 of the MCS Act (to which RTI Sec 2(f) refers as "any other law for the time being in force."). Quite often, in response to the RTI application, the registrar or deputy registrar will issue notices to the managing committee, threatening stern action if they do not provide information. A copy of this notice will be endorsed to you. Sometimes, this notice will have the desired effect, and you will get the information. If the information is not provided within 30 days, invoke two legal mechanisms by filing a complaint with the Dy Registrar, say on the 35th day after the order. 

Invoke the mechanism of first apellate authority under RTI Act Sec 19(1). Invoke Section 148A - i.e. contempt of co-operative courts, which says, "(1) If any person - (a) when ordered by a Co-operative Court or the Co-operative Appellate Court to produce or deliver up any document or to furnish information, being legally bound so to do, intentionally, omits to do so, he shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 

IF THE ABOVE REMEDIES FAIL, FILE A CONSUMER COMPLAINT 

As a consumer of services provided by a co-operative housing society, you are covered by the Consumer Protection Act in matters concerning the "business" of the society. Failure to give you necessary documents is a "deficiency in service", and so you may approach theconsumer court and pray for reliefs i.e. copies of documents, and compensation for difficulties suffered by you.
    

The first step is to serve a notice under section 164 of MCS act 1960. Sec 164 says, "No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of
the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." With luck, this notice may itself subdue the managing committee, causing them to give you the necessary documents. In case this does not happen, proceed with litigation in the consumer court. Don't engage an expensive lawyer. If you have time and knowledge, appear as partyin-person and argue your own case. This will be an economical and effective solution, and also a learning experience. Download a readymade format of complaint before the consumer court from the internet. 

KEY POINTS:

The consumer court is not a forum for resolving disputes. Therefore, don't mention personal disputes. Your complaint must highlight various deficiencies of service, and negligence in rendering service, with documentary proofs for each allegation. Build up such documentation beforehand. Your case will be strong only if you establish that you wrote various letters, applications etc. requesting the managing committee by all lawful means to render you the legitimate services.

Your case must be about the “business” of co-operative housing societies. The scope of a housing society's business is determined by the MCS Act, rules and the registered bye-laws. It broadly covers membership and share transfer, maintenance and service charges, issues relating to proper conduct of general body and managing committee meeting, accounts and audit parameters, proper maintenance of building, providing a good living environment for all members, proper management and caution towards society funds such as repair funds and sinking funds, due diligence in case of engaging various contractors e.g. lift maintenance, civil works, repairs, and also building redevelopers, project management consultants, etc. As you are paying money towards monthly maintenance dues, sinking fund, repair fund, etc, you are a consumer who is aggrieved by the managing committee's negligence in rendering services or deficiency in services rendered.

    Serve notice and allow sufficient time (15 days) to correct the deficiency. As per the provisions of the Consumer Act, we need to serve notice for the "deficiency of service" on the housing society and give them adequate time to correct the deficiency. Consumer Protection Act is not concerned with other laws. It is applicable "notwithstanding anything in any other laws", which includes the MCS Act (section 164 or whatever). It is "over and above" all laws of the country as long as the law is appropriately invoked by aconsumer within the limitation of time i.e. within 24 months from the date of grievance arising. 

    This is an "additional remedy" and not "alternative remedy". You may file for your grievances in the co-operative court as well as consumer court, and the orders of both will have to be honoured independently. Other court decisions / rulings are not binding on theconsumer court. The proceedings under a case in the consumer court cannot be stopped, even if a similar or same matter is pending before another court. 

    Only an aggrieved party has the right to file a consumer complaint. As against this, subject to certain parameters, a third party may petition the deputy registrar / cooperative court, to initiate suo moto proceedings for violations of MCS Act. 

The case is against the housing society, and not against individuals. In both consumer court and cooperative court, complaints and cases may be filed against the CHS. You cannot target individual managing committee members, as you would do in criminal proceedings. 

Also as a last resort, you may file FIR or private complaint with magistrate against individual member of the managing committee. Even if you have initiated proceedings in cooperative court and consumer court, you may also initiate proceedings in criminal courts, if you have documentary evidence of nefarious activities such as misappropriation of funds, forgery of society records, duplicate share certificates, letting out the society property for mobile towers, advertisement hoardings etc. without the written consent of 75% members, rigged and manipulated elections, forged and backdated M-20 indemnity bonds, refusal to transfer membership based on caste, creed, religion, assaulting members. This can be done without any permission / sanction from the registrar of cooperative housing societies, because it is against individuals, and not against the society. 

QUICK BYTE
CO-OPERATIVE HOUSING SOCIETIES ARE NOT DIRECTLY UNDER THE RIGHT TO INFORMATION ACT 2005 BUT THEY ARE INDIRECTLY COVERED, THROUGH THE OFFICE OF THE DEPUTY REGISTRAR The author is an activist for CHS related matters. This article is continued from last week

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