We look at various court cases, to explain the applicability of non occupancy charges under the Maharashtra Cooperative Societies Act and the maximum amount that societies can legally levy
What are nonoccupancy charges?
Nonoccupancy charges are levied by housing societies upon member flat-owners who do not reside in their respective premises. Such non-residence may be on account of the flat being vacant or rented out. If a flat owner chooses not to reside in his flat and gives the same on rent or keeps it vacant, then, society can impose nonoccupancy charges upon him.
How to calculate the non-occupancy charges?
Under a circular issued by the government of Maharashtra, under Section 79A of the Maharashtra Cooperative Societies Act, 1960, the number of non-occupancy charges cannot exceed 10% of the service charges of the society (excluding municipal taxes).
For example, suppose the total maintenance bill of society for a member amounts to Rs 3,500 and it includes service charges of Rs 2,500. Then, the society will levy an amount of Rs 250 as non-occupancy charges, which is 10% of Rs 2,500.
What are the criteria for levy of non-occupancy charges?
If a flat owner is himself residing in the flat, then, he is not liable to pay non-occupancy charges. In case the flat is occupied by members of his immediate family, namely, son, daughter (married or unmarried), our grandchildren, then, they will also be exempt from the payment of non-occupancy charges.
How much can societies charge as nonoccupancy charges?
Before the Maharashtra government capped the quantum of non-occupancy charges at 10% of the service charges, arbitrariness was rampant in its levy and collection. Societies would charge exorbitant rates, as much as Rs 9 per sq ft, as non-occupancy premises. This had the adverse impact of increasing rentals and becoming a financial drain on non-resident flat owners. Non-resident Indians (NRIs), many of whom are avid investors in Indian real estate, were particularly affected. Instances were also coming to light, where the levy of nonoccupancy charges was highly disproportionate, to the tune of several lakh rupees per annum.
Thus, it was apparent that nonoccupancy charges, rather than being regarded as a marginal amount, had effectively become a tool of harassment. Excess amounts collected by way of non-occupancy were being misappropriated towards paying the dues of other defaulting members.
What happens if the flat owner does not pay non-occupancy charges?
The housing society will send a reminder notice, in case the flat owner does not pay or refuses to pay the non-occupancy charges. It can declare the owner a defaulter if the amount is not paid. Moreover, the no-dues certificate will not be provided by the housing society.
Government resolution on nonoccupancy charges
Housing societies in Maharashtra are governed by the Maharashtra Cooperative Housing Societies Act, 1960 (MCS Act 1960). The Act sets in place a legal and regulatory framework, to supervise and administer the affairs of housing societies. Disputes between housing societies and their respective members can also be adjudicated under the provisions of the Act.
Section 79A of the MCS Act 1960, empowers the state government to issue circulars prescribing guidelines for the functioning of societies. Circulars issued under Section 79A are binding in nature. Section 79A was invoked by the government of Maharashtra, to curb the levy of exorbitant nonoccupancy charges by housing societies upon their members.
The circular under 79A, which was issued on August 13, 2001, capped the quantum of nonoccupancy charges at 10% of the standard service charges of the society. The service charges of the society include lift, common area electricity, security, and maintenance charges but exclude municipal taxes. Compliance with the circular was mandatory and any violation would merit penal action, which would include removal of society office bearers.
Nonoccupancy charges circular and the Maharashtra Cooperative Societies Act
The said 79A circular came to be challenged by Mont Blanc Cooperative Housing Society in the Bombay High Court. The society challenged the cap on nonoccupancy charges as unconstitutional and violating Article 19 of the Constitution of India. It also argued that the circular was an unwarranted interference into the internal affairs of housing societies.
Meanwhile, the state of Maharashtra argued that its circular protected minority members from oppression by the majority. The circular also protected the right to property under Article 300A of the Constitution, because a member’s flat is his personal property and the society has no right to interfere with his use or enjoyment of the same. The state further argued that the levy of exorbitant non-occupancy charges ran counter to the spirit of the cooperative movement and would escalate property rentals, thereby, undermining the rental housing market.
Non occupancy charges court judgment
In a landmark judgment, a division bench comprising justices BH Marlapalle and JH Bhatia upheld the 79A circular that capped nonoccupancy charges at 10% of the basic service charges of the society. The said circular was aimed at preventing the exploitation of minority members who were called upon to pay exorbitantly high non-occupancy charges. Further, it represented a bona fide exercise by the state to avoid litigation and disputes, by imposing a uniform rate for the levy of nonoccupancy charges and delinking them from the rental income earned from the flat.
The judgment of the High Court did come with a modification, however. The court reduced the scope of the exemption for members exempt from paying non-occupancy charges. It held that exemption from nonoccupancy charges could extend only to the flat-owner and members of his immediate family, namely, his son, daughter, or grandchildren. Members of his extended family, if they resided in the flat, could not claim any exemption in this regard and would have to pay the nonoccupancy charges as prescribed.
As of today, nonoccupancy charges levied by housing societies cannot exceed 10% of the service charge component of the monthly maintenance bill. Such charges would be levied, the moment the flat is given on leave and license, or falls vacant. A resale flat purchaser is also advised to check for such arrears if any if the flat was vacant prior to the sale.