Chs illegal eviction & bldg redevelopment

Please provide details. CHS matters are heard in the co-op courts

S Jadhav

the Co-op hsg soc. has illegally evicted me (about a year ago) and the bldg has gone for redevelopment. I was sole occupant (and co-owner as the flat was left intestate by my father) for 11 years.

I have not given any consent for the redevelopment, nor has th co-op hsg got any court order against me. The bldg has been completly demolishes as of now (empty plot as of today).

All the members of the bldg had shifted and I along with 2 other tenants were the only occupants of the bldg. The managing committee then stopped pumping water to the overhead tank then also got the electicity to the bldg cut completely (as I had to temperarily stay at my relatives place, as it becomes impossible to stay in a flat with out water) 

Then the buider demolished the bldg, the 2 tenants reached an amicable settelment with the landlord. I was not in a position finnacially to fight them (police is also of their side).

Can I go to court and claim damanges and compensation against the managing committee for illegally evicting me. 

Thanks

As far as remember, there was a Mumbai High Court judgment that a Co-operative Housing Society can go for re-development, if 75% of the members agree. The judgment was given in a case where a minority (less than 25%) of the members filed a petition challenging the decision of the Society to go for re-development.

But I don't think that  the Managing Committee can take law into their hands, cut off water supply and forcibly evict a member

Further to my last post please find enclosed an article on the subject.

Hi,

Thanks alot for your reply Dr. MPS RAMANI appreciate it.

Can I file a criminal case in court against the managing committee with regards to forceful eviction (they should have approached the court to get me evicted).

please guide which court in mumbai should I approach ? can I directly file criminal case in the high court?

Thanks

Bye

Your question is a tricky one. As you can see I am not a lawyer. Hence I caution you regarding following my advice.

In the first place you were not even a member of the Society, hence even your having rights of a member is questionable. Why did you keep quiet for 11 years without taking any action to get yourself admitted as a member of the Society and the property transferred to your name?  What do you mean by saying that you were co-owner? Were you an Associate Member. When and how did your father acquire the property?

Long ago there was no stamp duty on transfer of flats. Persons after purchasing the flat directly applied to the Society for membership. If there were more than one member the second one was admitted as an Associate Member. Many Societies were then transferring flats to the name of the Associate Member in the event of death of the first member. It was a questionable practice.

Then two things happened in the mid-eighties. (1) The Bombay Stamp Act was amended and transfer of Co-operative Society flats were made liable to stamp duty. (2) The Model Byelaws were published and all co-operative housing societies were recommended to adopt it.  Though some Societies did not adopt the byelaws, often the courts relied on  the Model Byelaws even in cases where the concerned Societies had not adopted them.

Under the Model Byelaws and under the Sec:27 of the Co-operative Societies Act, 1960, apart from voting as a proxy in place of the  main member, an Associate Member had no other right. In other words an Associate Member, in the event of death of the Member, would automatically become an outsider in so far as the Society was concerned.

But with the introduction of stamp duty, preparation and execution of stamped transfer document came into practice. There can be more than one individual both on the transferoor side and the transferee side in the document.  The transfer document may mention the share of each of the transferees. In the absence of it the beneficial interest shall be deemed equally divided among the transferees. Among the transferees one will become Member and others Associate Members. No Society can ignore the rights of the Associate Members in such cases. Same will be the situation when property is transferred to heirs in the event of death of the Member.

Hence your right to membership itself is not known unless you give all the relevant details. Your case became further weak when you took no action to get yourself admitted as a member for 11 long years. Mere occupancy can give at the most the rights of a sub-tenant.

Under the circumstances a criminal case against the Society or the builder may take long to get even the case admitted. The presiding officer will have to hear both the sides in detail even admit the case.

But why are you resisting re-development? Was it for the same reason that you took no action to become a member for 11 years?  Had your father given nomination in your favour? Are there other natural heirs to your father's property like your mother, brothers and sisters?

You would gain nothing by filing a criminal case except satisfying your feeling of vendetta.

First take action to become member. In the meantime file a civil case to reserve your proportionate rights in the new building, in the form of an apartment. Neither the builder nor the Society can ignore their liabilities towards the member of the flat. But they may merely make provision in the balance sheet for cash settlement, which will remain static for years until settlement, except for the interest that the amount may accrue. If you are now residing in a rented flat, you may not even get the rent reimbursed by the builder.

Your question is a tricky one. As you can see I am not a lawyer. Hence I caution you regarding following my advice.

In the first place you were not even a member of the Society, hence even your having rights of a member is questionable. Why did you keep quiet for 11 years without taking any action to get yourself admitted as a member of the Society and the property transferred to your name?  What do you mean by saying that you were co-owner? Were you an Associate Member. When and how did your father acquire the property?

Long ago there was no stamp duty on transfer of flats. Persons after purchasing the flat directly applied to the Society for membership. If there were more than one member the second one was admitted as an Associate Member. Many Societies were then transferring flats to the name of the Associate Member in the event of death of the first member. It was a questionable practice.

Then two things happened in the mid-eighties. (1) The Bombay Stamp Act was amended and transfer of Co-operative Society flats were made liable to stamp duty. (2) The Model Byelaws were published and all co-operative housing societies were recommended to adopt it.  Though some Societies did not adopt the byelaws, often the courts relied on  the Model Byelaws even in cases where the concerned Societies had not adopted them.

Under the Model Byelaws and under the Sec:27 of the Co-operative Societies Act, 1960, apart from voting as a proxy in place of the  main member, an Associate Member had no other right. In other words an Associate Member, in the event of death of the Member, would automatically become an outsider in so far as the Society was concerned.

But with the introduction of stamp duty, preparation and execution of stamped transfer document came into practice. There can be more than one individual both on the transferoor side and the transferee side in the document.  The transfer document may mention the share of each of the transferees. In the absence of it the beneficial interest shall be deemed equally divided among the transferees. Among the transferees one will become Member and others Associate Members. No Society can ignore the rights of the Associate Members in such cases. Same will be the situation when property is transferred to heirs in the event of death of the Member.

Your right to membership itself is not known until you give all the relevant details. Your case became further weak when you took no action to get yourself admitted as a member for 11 long years. Mere occupancy can give at the most the rights of a sub-tenant.

Under the circumstances a criminal case against the Society or the builder may take long to get even the case admitted. The presiding officer will have to hear both the sides in detail even to admit the case.

But why are you resisting re-development? Was it for the same reason that you took no action to become a member for 11 years?  Had your father given nomination in your favour? Are there other natural heirs to your father's property like your mother, brothers and sisters?

You would gain nothing by filing a criminal case except satisfying your feeling of vendetta if you succeed.

First take action to become member. In the meantime file a civil case to reserve your proportionate rights in the new building, say, in the form of an apartment. Neither the builder nor the Society can ignore their liabilities towards the unknown member of the flat. But they may merely make provision in the balance sheet for cash settlement, which will remain static for years until the settlement, except for the interest that the amount may accrue. In the meantime the cost of real estate would have shot up. Further if you are now residing in a rented flat, you may not even get the rent reimbursed by the builder.

Hi,

Thanks a MILLION for your detailed reply Dr. MPS RAMANI, please don't say that you are not an ADVOCATE. Your knowledge of LAW seems second to none. 

Sir, this particular was belonged to my father who died Intestate. He had only made my sister a Nominee for the flat. 

As Nomination does not rescind my rights to the flat, I believe I'm as heir have evqual rights to the flat as a legal Heir of my father.

Even if lets assume for the sake of argument that I;m not an owner, how can anyone illegally evict me with a court order. What about my Human Rights.

Please guide if I can directly approach HIGH COURT for this CRIMINAL OFFENCE on the managing committee's part.

Thanks,

Bye 

Are you and your sister the only children of your father? Is your mother alive?  Under the succession law, if a person dies intestate, his children, both male and female and his widow, if alive, will be entitled to equal share of the property. If any of the children had predeceased the father the respective grandchildren with respect to the predeceased child will have equal share of the share of the predeceased child.

You say that your sister is the nominee of your father. Did she not claim the flat from the Society? If she had claimed,  the Society could have transferred the property to her subject to formalities like indemnity bond. Why did your sister not claim the flat? Even if the Society had transferred the flat to her you would not have lost your share. On the basis of information you have disclosed to me you and your sister have 50% share in the flat. If your sister is willing to abandon her claim, you will become the sole owner of the flat.  If she wants her share of the flat, both of you can become members of the Society, one being member and the other Associate Member. Notwithstanding whatever is stated in the byelaws, Act or Rules, both of you will have equal beneficial rights on the property. One cannot sell the property without the consent of the other. I would say that your priority should be to acquire rights over the property, whether it physically exists or not.

I am not sure whether you will succeed if you file a criminal case. Did anyone push you or other members of your family out of the flat or throw out your belongings from the flat? If no physical force had been used, they can claim that though you were against redevelopment, you willingly vacated the flat agreeing to accept compensation from the Society/Builder. Where is your sister now?

Hi,

i have 1 brother, 1 sister and my mom is also alive. After my father's death the flat was transferred to my mother's name, All of us gave written consent for the same.

I was miss guided by the secretary and the rest of the family that I had no legal rights to the property as my father had left the flat to my sister by nominating her. I was given an impression that nomination means ownership, that is why I gave my consent to transfer the flat to my mother's name.

Only recently I read in a newpaper article that nominee does not mean ownership and I still can claim my share of the flat.

With regards to illegal eviction, the flat was broken into and all my belongings thrown out in my abence. The was of no help they are in the builder's pocket. They said this is a civil matter go to court.

I want to hold these people accountable for breaking entering my home and throwing my belonging out. I want to file CRIMINAL CASE against them in this regard.

I can always claim my share of the property from the court that is not the concern. Main thing is I want them to be tried for the CRIMINAL ACT that they have committed,

Thanks,

Warm Regards,

Bye

You first said that your father has nominated your sister. Now you say that the flat is in your mother's name. I am confused. Nomination does not mean transfer of ownership, whether it is Society's flat, bank sccount ir insurance. Many people including your secretary may be ignorant of this. Who were all staying in the flat at the time of your eviction? Where are your mother, brother and sister staying? Has your mother given any nomination? You should ask her to nominate all the three of you, Even now all of you can become Associate Members. For a further safe-guard, you all family members can prepare joint affidavit clearly saying that all of you have equal claim on the property and get it registered. Give an attested copy to the Secretary under acknowlegement..

You can file a criminal case for your forcible eviction. But when did it happen? If it was a certain period ago, it can time barred under the law of limitations. But remember, the Builder would be having goondas and he will behave as though he and his people are a law unto themselves.

Again I say you have drifted too much without taking any action.

You first said that your father had nominated your sister. Now you say that the flat is in your mother's name. I am confused. Whom did your father nominate, your sister or your mother?  Nomination does not mean transfer of ownership, whether it is Society's flat, bank sccount or insurance. Many people including your secretary may be ignorant of this. Who were all staying in the flat at the time of your eviction? Where were your mother, brother and sister staying, at the time of your eviction? Has your mother given any nomination? You should ask her to nominate all the three of you, Even now all of you can become Associate Members. For a further safe-guard, you all family members can prepare joint affidavit clearly saying that all of you have equal claim on the property and get it registered. Give an attested copy to the Secretary under acknowlegement..

You can file a criminal case for your forcible eviction. But when did it happen? If it was a certain period ago, it can time barred under the law of limitations. Even otherwise criminal cases are time sensitive.  But remember, the Builder would be having goondas and he will behave as though he and his people are a law unto themselves.

Again I say you have drifted too much without taking any action. Hurry at least now. Otherwise you will loose everything.

Hi,

My father had nominated my sister but we collectively gave consent to the transfer if the flat in the mother's name. I was purposely miss guided by the Secretary who is good friends with my other family members.

I was evicted 1 year ago. I'm trying to go to High Court in this regard & for the partition of ASSETS left behind by my father. Within a months time I would most probably file a suit.

Don't have financial resources to fight, trying to find a solution for the same.

Thanks once again for all your kind advice. Hopefully I will get JUSTICE before my money runs out.

Warm Regards

Bye

my quest ion is for mr ramani,

i have unique case, i have purchased CHS flat in joint name with my father , who left nomination in my name , mother name and my brother name, due to personal reason all are not coming forward to claim and nominate someone in place of fathers name , now since i am joint member/owner(not assoicate member)  share certificate is in both my and fathers name, since chs is going under RD, can CHS  place all names mentioned in nomination by my father in place of fathers name without anyone applying for membership/indeminity bond etc?? as they want to make agreement for our flat with RD builder

my name i believe will remain as it ispl reply