The process of redeveloping a housing society is a significant undertaking, often fraught with questions and concerns from its members. One of the most frequently asked questions is whether every single member must sign the Development Agreement (DA) for it to be legally binding. This article delves into the legal standpoint on this issue, explains the implications for members who choose not to sign, and clarifies the associated costs like stamp duty.
The Core Question: Is Unanimous Consent Mandatory?
To put it directly, it is not legally necessary for all members of a housing society to individually sign the Development Agreement.
The legal framework governing cooperative housing societies in Maharashtra, primarily the Maharashtra Co-operative Societies Act, 1960, empowers the managing committee to act on behalf of the society and its members. The critical requirement is not individual signatures on the DA, but a proper resolution passed in a General Body meeting.
If the society’s members have, by a required majority (as stipulated in the redevelopment guidelines), voted in favor of the redevelopment and have authorized the managing committee (typically the Chairman, Secretary, and Treasurer) to execute the DA, this resolution gives the committee the legal authority to bind the society to the agreement.
Why Do Developers Ask for All Members’ Signatures?
Historically, developers often insisted on having every member sign the DA as a “confirming party.” The primary motivation for this was a financial one: to avoid paying separate stamp duty on the Permanent Alternative Accommodation Agreements (PAAAs). By bundling everything into one heavily signed DA, they argued that separate agreements for each member’s new flat were not needed, thereby saving on stamp duty.
However, this practice has been rendered largely obsolete.
The Stamp Duty on PAAA: A Settled Issue
The confusion around stamp duty on PAAAs was a major point of contention for years. This was definitively settled by a landmark judgment of the Bombay High Court, which was subsequently reinforced by a government notification.
The current legal position is clear:
- Once the main Development Agreement between the society and the developer is executed and the appropriate stamp duty is paid on it, the PAAA for each member only attracts a nominal stamp duty of ₹100.
- This applies to the new accommodation being provided in lieu of the old flat, including any additional area given for free by the developer.
- Additional stamp duty at the regular market rate is only applicable if a member is purchasing extra carpet area from the developer over and above their entitled area.
Therefore, the developer’s argument of avoiding a significant stamp duty burden by having all members sign the DA is no longer valid. Societies should be firm in ensuring that separate PAAAs are executed, as they provide individual legal protection to each member regarding their new home.
What Happens if Some Members Refuse to Sign?
When a few members refuse to consent to the redevelopment or sign any documents, it can create hurdles, but it does not automatically halt the project. Here’s what typically happens:
- Project Delays: The refusal can lead to delays. The developer might be hesitant to invest significant capital or start demolition until they have clear possession from all residents.
- Legal Recourse by the Society: If the redevelopment has been approved by the requisite majority, the society is within its rights to take legal action against the dissenting members. Since the decision of the majority is binding on all, the society can seek eviction orders from the competent authority or the court to ensure the project can proceed.
- No Special Standing: A dissenting member cannot hold the entire society’s progress hostage on flimsy grounds. The courts have consistently held that once a democratic decision is taken by the majority of the members in a transparent manner, the minority cannot obstruct it.
- Loss of Goodwill: While not a legal consequence, refusing to cooperate can lead to strained relationships within the society.
It is important to note that members have the right to object if they have valid concerns about the transparency of the process, the terms of the agreement, or the choice of the developer. These concerns should be raised and addressed in the General Body meetings.
The Importance of a Strong, Authorized Managing Committee
The entire process underscores the importance of a well-functioning and trustworthy managing committee. The society should pass a clear and specific resolution that explicitly authorizes the committee members to execute not just the DA, but all related contracts and documents on behalf of the society. This ensures a smooth process and legally empowers the committee to act decisively in the interest of the collective.
In conclusion, while developers might prefer it, there is no legal mandate for every society member to sign the development agreement. A majority resolution is the key. Members should insist on individual PAAAs, for which the stamp duty is a nominal ₹100, to safeguard their individual rights. Members who dissent after a majority decision has been lawfully made may face legal action for eviction to prevent them from stalling a project that benefits the entire society.
