16 April,2022 08:17 AM IST | Mumbai | Vinod Kumar Menon
NOC is not must for sale and purchase of flat but if the purchaser desires for NOC for loan or title verification purpose, then the committee has to consider such an application within one month. Representation pic
A no Objection Certificate (NOC) of society is not required for the sale and renting of a flat, the state housing minister had recently said. However, housing experts and legal brains have claimed that such provisions were already given in the bye-laws of the society and it is not a new provision.
CA Ramesh Prabhu, founder chairman of Maharashtra Societies Welfare Association (MahaSEWA) said, "Whatever the Hon'ble Minister has stated is not a new provision. The model bye-law no.38 of the cooperative housing society approved by the cooperative commissioner of Maharashtra in 2014 states that it is not mandatory to obtain NOC for the sale of flats. The Maharashtra Cooperative Societies Act, 1960, states that in case the society fails to discharge its obligation as per Act, Rules and bye-laws, the deputy registrar on complaints is empowered to do the needful."
"The challenge is that in spite of such provisions in the bye-laws, some societies by their unwritten rules do not issue NOCs to sell or let out the flat based on religion, caste, creed, region, food habits, marital status, etc. When the aggrieved person approaches the registrar, it takes 3 to 4 months for the said registrar to issue directions to the society to issue NOC. Thereafter, society may either appeal such directions of the registrar or further delay in issuing NOCs," Prabhu said.
Advocate Shreeprasad Parab, Expert Director, The Maharashtra State Co-operative Housing Federation Ltd, said, "The co-operative laws in Maharashtra were amended after the 97th Constitutional Amendment and thus the model bye-laws for co-operative housing societies were framed in 2014 on the principles based on the term fraternity in the Preamble of our Constitution that is based on the spirit of common brotherhood."
"Bye-law No. 38 (d) states that the NOC of the society is not required to transfer the shares and interest of the transferor to the transferee. However, in case such certificate is required by the transferor or transferee, he shall apply to the society. The committee of the society may consider such an application on merit, within one month."
"Therefore, NOC is not mandatory for sale and purchase of flat but if the purchaser desires for NOC for loan or title verification purpose, then the committee has to consider such application within one month," said advocate Parab.
Bye-law No. 43 (a) states that "A member shall intimate to the society, of subletting his flat or given on leave license basis or caretaker basis or parting with its possession in any other manner, however, the member shall submit a copy of leave and license agreement and copy of intimation report to the police station."
Bye-law No. 43 (b) further states that "No permission of the Society is required to sublet the flat/shop. However, the intimation needs to be given to the Society 8 days before such subletting."
Also if the member fails to intimate the society before subletting of flats then as per Bye-law No. 117, such member shall not be eligible for being elected as a member of the committee. Also, as per bye-law No. 165 the society may levy a penalty to the extent of a maximum R5,000 in one financial year for breach of bye-laws, said Parab.
Advocate Vinod Sampat, founder and President of Flat Users Residents Welfare Association said, "The statement over NOC by the housing minister, is a big boost to break the abuse of power of the office bearers in a cooperative housing society. The only problem is that there is no accountability nor there is any action for non-issuance of NOC on the cooperative housing society office bearers, hence I feel the statement made by the minister to a major extent is a forthcoming election gimmick and to divert the attention of common man from other issues of concern."
Advocate Godfrey Pimenta said, "NOC is not mandatory as per the Society bye-laws, however, it is advisable to insist on NOC of the society, particularly in transactions related to purchase of the flat. Under the principle of Caveat Emptor, the buyer alone is responsible for checking the overall title, the statute of pending dues to society, status of the flat structurally lien on the flat, dispute raised by family members of deceased members etc. before a purchase is made. As a property lawyer, I insist on society NOC to safeguard the interest of flat purchasers."
2014
Year in which the cooperative commissioner of state approved the model bye-law no.38
