Flats usage
Thyagarajan
(Querist) 20 August 2011
This query is : Resolved
Dear Members,
Can any member give any court judgement that put a bar on a residential flat to be used for conducting tutorial classess on a complaint from either association or any other flat owner?
ajay sethi
(Expert) 20 August 2011
if a flat is primarily used for residence member can use flat for running tution claases.
if however it is primarily used for tutions you can complain to registrar Cooperative societies . also raise issue in society AGM
ajay sethi
(Expert) 20 August 2011
i am enclosing herewith relevant extracts of judgement of supreme court in case of Ishwar nand cooperative society v/s parma nand sharma in appeal no 9671 of 2010 wherein member was using flat for residentil as well as for nurisng home . suprem court held that if used foro residential purposes also it can be used for nursing home
The last submission made by respondent-1 is that the said property is being used only for the purpose of running a nursing home, i.e., for a commercial and not residential purpose. The learned counsel for the appellant-society refuted the same contending that the nursing home was located only on the ground floor of the property and the other floors are being used for residential purpose and the same appears from the various correspondences and affidavits made by the respondent-1 wherein he has shown the said property as his residence. In light of Rule 25, the action of the appellant-society would be justified if the said property is found to be residential house in the light of documents on record. The mere fact that the respondent-1 has shown in affidavits and correspondences the said property as his address doesn’t prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure P-12 and P-13 are respectively self-assessment property tax forms filled by the respondent-1 with respect to the said property and an objection letter written by the respondent-1 against the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexure P-12, while assessing the tax of the property, the respondent-1 has shown the property as used for residential and selfoccupied purpose only. In Annexure P-13, the respondent-1 opposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is under self-occupation for residence and self professional-medical work only and is a single-unit house. The respondent for the purpose of being member of the appellant-society cannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of the counsel for the respondent no. 1 that it is exclusively a commercial property cannot be accepted.
Thyagarajan
(Querist) 20 August 2011
Dear Sethi,
Thanks for your prompt answer. The case you referred is little complicated where as happening in our multi story complex is simple. An owner of a flat was running tutorial for school boys for quite sometime but had to give it up on protest from the association that what he did was a commercial activity much against by-laws of society. After lapse of time the owner felt giving up the activity has substantially reduced his earnings otherwise. He had approached the civil court claiming what he was doing was not commercial activity but professional and is so, not against by-laws.But the problem is he is not having the permission from the Chennai municipality as per section 370 of corporation act 1919 that specifies consent of municipal authorities or municipal officer in writing a must. Possibly the rule is to assess tax irrespective of commercial or rofessional nature. In your quoted case the Apex court had given due regards to municipal rules and in our case too it may be of a matter and the court may find the owner guilty of suppressing fact to Chennai Corporation. From your citation it is clear running tuition is one thing and not getting permission from municipality is another thing and if municipality refuses judiciary will only distance from the dispute. Thanks again.
prabhakar singh
(Expert) 22 August 2011
Dear author : Thyagarajan !
your view in the matter in your hand is more proper and nearer to things likely to emerge during hearing of the suit.
