By Legal Cell
Mr. S.B.Bhinde a shopkeeper and full-fledged member of Housing Co-operative Society has written to me to know whether a society can now all of a sudden recover lift charges when especially he has not paid for the same for the last 14 years. Mr. Bhinde, writes that the Society is not ready to listen to the shopkeepers and garage owners at all in this matter. A very important question is when the shopkeepers and garage owners who are the member of the society and who have been given the share certificates and those who do business from the ground floor of the building are liable or not pay for the lift expenses in a Society?
Most of the Societies do not recover expenses relating to lifts from shopkeepers and garage owners. Some Societies do not recover lift expenses even from members residing on the ground floor stating that such members do not use the facility of lifts at all.
In many buildings, the shops are located in the front portion of the building and the building for residence is built at a distance of 50 to 100 feet. However, the Society is named for both shopkeepers and the members residing in the building. Often the shopkeepers do not even see the face of the lift as there is considerable distance between the shop and the lift. Lately, many Societies have adopted the Model Bye-law and it is indicated in section 71(A)(5) that all members will have to bear the expenses of lift equally. Whether the member uses the lift or not, would not matter at all. It is also mentioned in the same section that the expenses of the salary of the liftmen, running the lift, electricity expenses etc. should be paid equally by all members. Moreover when the society has to spend heavily to get the lift repaired the expenses for the same should be borne equally by all members.
-When a lift goes out of order and it has to be repaired, the society may have to spend lakhs of rupees. How can the society recover from a member who is not using the lift facility to contribute towards such heavy charges?
Most of the shopkeepers and the garage owners register their strong protest over this issue. Many shopkeepers and garage owners remove items of expenditure on lift from maintenance bill and show a willingness to pay only the rest of the bill. Now the question is that once a society has adopted the Model Bye-laws then whether it is incumbent upon every member including shopkeepers, garage owners and members residing on the ground floor and first floor to pay for such charges? It is to be remembered that while paying such a bill if the member refuses to pay charges for lift expenses, the society is not bound to accept the bill at a reduced rate? Once the member is given a bill, it is his responsibility to pay the full amount. The society is not bound to accept the reduced amount.
Now suppose due to this dispute, if a member does not pay full maintenance bill has the society any remedy for the same? Certainly. A society can serve a notice upon such a member under section 101 of the Maharashtra Co-operative Society Act. On receiving this notice, if the member does not pay full maintenance bill then the society can get a certificate from the Registrar under section 101 of the Maharashtra Co-operative Society Act. Once this certificate is given to the society by the registrar, the society has to give a second notice to the member concerned. If the member still does not pay the maintenance bill in full, then the Registrar may assign tax recovery officer who will take charge of all items in the members flat and may auction them to recover the amount due to the society. If the society’s maintenance bill has gone up to the extent that it cannot be recovered by auctioning all the items in the member’s premises then he may even auction the flat, shop or garage and recover the entire dues for the society.
For this reason, it is my sincere advice that if the society has adopted the Model Byelaws the shopkeepers, garage owner or the member of the first and ground floors should pay for lift expenses.