Analysis on:
BACHELOR TENANTS - PROHIBITED IN A SOCIETY:
Every citizen of India and non-citizens, have been granted fundamental rights under the Indian Constitution, to stay (reside) anywhere in India, BUT except in prohibited and restricted areas.
01. EMERGING TREND:
a) In Metropolitan /
b) The MCS Act does have not provisions for "Prohibited & Restricted" areas in the Society premises. The Mg. Committee (MC) has compulsorily to work under the provisions of the MCS Act and .IF. the MCS Act does not provide for restrictions on "Tenants", THEN "Bachelor Tenant" cannot be prohibited (banned) from residing in a Society, even if for whatever reasons.
c) The inbuilt craving to formulate Laws to govern & control other members, lead to ignorant MC's and GB General Body (GB), to pass "illegal & invalid" resolutions, for "Prohibiting /Banning Bachelor Tenant", from staying in a Society. Such "selective & prohibitive" provisions /bye-laws created /amended under a "bye-law" approved /passed by the GB, is also "illegal & invalid", leading to animosity and discontent in the Society, which also means "failure of the Cooperative Movement". AS IT IS, the Society or the MC or the GB is a "nobody" or say "does not have the "Capacity or Capability" to decide the legalities of such things for which there are various Laws available. The Society MC or the GB are not "Lok Sabha" members or Parliamentarians who are empowered to pass Laws.
d) If such instances in Society are a regular feature, which could also mean "constitutional failure", then a "suo-moto" application may be forwarded to the Registrar of CHS for "de-registration" of the society registration, citing the "illegal and invalid" activities and for violation of the "Rule of Law".
e) If ignorant & nuisance GB resolutions have their whimsical ways in a Cooperative Housing Society, then one can also expect that the ignorant GB may pass resolutions for compulsory marriage between the members (as is a custom in some Indian culture) .OR. "compulsory sale" of flats in case the owner becomes a Widow. This is more so since some nefarious MC's and their cronies, are in a way, controlling the strings in a GB meeting.
02. COMMON SERVICES & AMENITIES:
The Society is classified as a "Service Provider", under the Consumer Protection Act, which is further reinforced from several Judgments of the
The Sole-Responsibility of a Coop. Society, is to provide "Common Services & Amenities", to its members, which also lawfully means "Common Services & Amenities" to the Tenants of its members, which is more so specifically in lieu of the "10% Non-Occupancy Charges" that the Society has to mandatorily collect from its original member. Under no circumstances the Society may levy any charges, directly to the Tenant.
03. TENANT equals to "NOMINAL MEMBER":
a) A licensed Tenant of the original Society member, is classified as a "Nominal Member", who by legal default derives rights to reside in a society members flat. The "Nominal Membership" is to be granted to the Tenant, by virtue of the Rs. 100/- (as nominal members Entrance Fees). However the Tenant derives no right to have any say in the affairs of the Society.
b) IF the original member is paying the mandatory "10% Non-Occupancy Charges", THEN the "Tenant", definitely & lawfully derives all the rights to use the "Services and Amenities" that is available to the original member. This includes Parking, Gym, Club-House & Swimming pool facilities. The usual rights of "Services and Amenities", CANNOT be deprived to a Tenant, even if passed in a General Body, and can be successfully prosecutable in the
HOWEVER, the Tenant (nominal member), does not derive any right to have any say in the management of the Society, more so specifically during the Voting / Contesting Elections / Attending AGM/SGM of the Society, as provided under the Society Bye-Law.
04. SOCIETY “NOT” THE OWNER OF FLAT:
a) The Society does not own the members Flat (ownership property). The Society cannot have a say (whatsoever) nor decide on the type of Tenant that could be allowed to stay in the Society. It is the sole discretion of the Flat-Owner (member) to rent his property out on rent /lease, under the appropriate terms and conditions prescribed by the Law. ONLY the flat owner can decide the type of tenant he wants to rent out his premises, BUT within the parameters of Law (i.e. cannot rent out his premises for commercial or illegal activities and so on).
b) A Society has no legal jurisdiction to refuse residing rights to a Tenant, under any circumstances, especially in a flat owned by its member. This is a legal fact, decided in various orders by the High Court and the Supreme Court.
c) A Society cannot refuse a member from keeping a Tenant, even if the member is a defaulter or whatever. The maximum a Society can do is to inform the local Police Station, about any illegal activities being carried out in the members flat, by the Tenant or the Member. Nothing more. Even if the Flat-Owner (Member) has not taken permission from the Society for keeping a Tenant, in his own Flat, it will not amount to any illegality, nor can the Tenant be classified as a "Trespasser".
d) Some nefarious MC's have assumed the role of "investigating" the Tenants, by conducting interviews of the Tenants. Such interviews or assessment of the Tenants are illegal.
05. JURISDICTION OF A SOCIETY:
A Society is concerned only with compliance of the Bye-Law norms, which means:
a) Prior permission of the Society vide Bye-Law form-Appendix no. 27.
b) Form-Appendix no. 11, along with cheque of Rs. 100/- as Nominal Membership entrance fees
c) Certified Photocopy of the Leave & License (L&L, Rent) Agreement, duly Stamped and Registered.
d) Police verification Report of the Tenant
Note: Even if the above Form no. 27 and Form 11, are not submitted to the Society, it does not "illegalize" the Tenant, nor does the Tenant become a "trespasser", as is hallucinating thought off by various ignorant MC's.
Subsequent to the above and /or irrespective of compliance of Form no. 27 and Form 11, the Society is liable and responsible to levy a FIXED "10% Non-Occupancy Charges", on the regular Society Service /Maintenance charges, in the society bill of its own registered member, but to the exclusion of Statutory charges (e.g. BMC Property Tax, NA Tax, BMC Water Charges).
06. NON-OCCUPANCY CHARGES FIXED at 10% :
The Society is concerned only with the FIXED 10% extra charges over the regular service charges, as "Non-Occupancy Charges" and STRICTLY NOTHING beyond this. There is no concept of less than 10% or greater than 10% non-occupancy charges. Anything besides the FIXED "10% Non-Occupancy Charges", is ILLEGAL, and is duly prosecutable under the Consumer Protection Act and also under the Indian Penal Code (Criminal Acts)
07. CRIMINAL LIABILITY ON THE SOCIETY MC:
a) It is a Criminal offence to collect any charges in the guise of "Shifting Charges", or "Tenancy Deposit" or higher non-occupancy charges, over and above the mandatory 10% Non-Occupancy Charges on the Society Service /Maintenance charges.
b) A Society is not entitled to levy compounding rate of Interest, on any outstanding amount.
c) False levy of any other amount or charges in the Members bills
d) Levy of any Legal Charges in the Members bills, without a judicial order.
e) MC's cannot restrict or restrain or intimidate any Bachelor from staying in a Housing Society, subject to compliance of minimum requirements, i.e. Registered Leave & License agreement and Tenants Police verification report.
f) MC's can be criminally prosecuted for Restraining, Restricting, Intimidating, Threatening, Insulting, and so on, for restricting /prohibiting Bachelor tenants, from residing in a Society.
08. PRESUMED NUISANCE, BY BACHELOR TENANTS:
Sometimes, the Society does experience nuisance from Bachelor Tenants, in the form of Rowdiness, Alcoholism, visiting girl-friends of the Tenants, playing of Loud Music, etc.... HOWEVER these can never ever be a ground for restricting /prohibiting Bachelor Tenants, since all these nuisances are rampant and unchecked, amongst the Society members themselves. It is a routine feature amongst Society Members, to bicker and fight for petty things, which includes, ogling, bitching, Parking, Drunkenness, Gambling, Spitting Pan juice, Loud music, Abuses & Dada’giri, misappropriating members funds, egoistic power-struggle and what-not's.
09. BACHELOR FLAT OWNERS:
Under the present Indian laws, a Bachelor-Person, can purchase a Flat in a Society, WIHOUT ANY RESTRICTIONS. The Society CANNOT prohibit / restrict any person, who is a Bachelor or a Widow from purchasing a Flat in a Society. The concept of Residence in a Society, is defined as "Open Membership", under the Coop. Act, which also means "No-Restriction Membership", which also means "No-Caste-Barred", No-Sex-Barred", "No-Age-Barred" and so on....
CONCLUSIVELY and LAWFULLY, it collectively means that Bachelor “OWNERS” and /or Bachelor “TENANTS”, CANNOT be stopped from residing in a Coop. Society.
10. LEGAL BYE-PASS:
Subject to duly executing a Registered Leave & License agreement and Tenants Police verification report, the following can ALSO be successfully complied:
a) Under a typical Bye-Law, an Associate Member is not barred from Staying in the Member's Flat
b) Limited to filing in Bye-Law appendix no. 7, (alongwith Rs. 100/- as Associate Member Entrance Fees) the original owner can make his "Tenant" as his associate member.
Note: Associate Membership can be withdrawn, by just simply instructing the Society for withdrawing the Associate Membership. There is no legal-lacunae or legal-risk (whatsoever), since this type of Associate membership, has negligible rights.
c) A Society CANNOT charge 10% as Non-Occupancy Charges, from an Associate Member.
d) A Bachelor tenant can be made an Associate Member.
11. SHYING AWAY FROM COOPERATIVE SOCIETY:
Looking at the consistent nefarious attitude of few MC's and herd-mentality GB's, Investors are avoiding investing in Housing Society properties. On realizing the nefarious management attitude in a Housing Society, some people have started registering their group properties, under the concept of a "Condominium", which truncates out the nefarious management attitude in a Housing Society. A condominium management is highly flexible and more easily, peacefully & professionally manageable, WITHOUT the usual bickering & bitching that is rampant in present Housing Society’s.
12. APATHY BY THE COOP. DEPT.:
Though the Coop. laws allows sub-letting or renting members flats, the Coop. Dept., has consistently failed to issue directives or make provisions in the Coop. Act or in the Bye-Laws, prescribing Penal Action on the Mg. Committee, for restricting or prohibiting Bachelor Tenants in Coop. Societies.
13. INTROSPECTION:
WHEN
AUTHOR: Hemant Agarwal
Email: ha21@rediffmail.com
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Tags :Constitutional Law
