Article originally composed on: 31st August, 2013
HEMANT AGARWAL's Analysis on:
BACHELOR TENANTS - PROHIBITED IN 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.
Mumbai High Court, in a judgment, held that Tenant is entitled to use all the "APPURTENANT" structures (amenities) available in the residential "PREMISES" and/or compound, that is originally available to all the Flat Owner, without any exceptions. This includes PARKING Spaces, Swimming Pool, Club House, Gym, Garden, etc....
Download (Payable) Mumbai High Court judgment (with important Highlights & Comments)
TENANT - ENTITLED TO USE PARKING SPACES: https://chshelpforum.com/Jdoc-0001
01. EMERGING TREND:
a) In Metropolitan /Industrialized Cities (eg. Mumbai, Pune, .... ), a new nefarious and knee-jerk whimsical concept of Prohibiting /Banning "Bachelor Tenant", from staying in a “Cooperative Housing Society (CHS)”, is emerging, causing gross discontent among the Society members, thus leading to failure of the Cooperative Movement.
b) The "Maharashtra Cooperative Societies Act" (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 whatsoever & which-so-ever reasons.
c) The inbuilt nefarious & chronic craving to formulate knee-jerk Laws to govern & control other members, lead to ignorant MC's and the General Body (GB), to pass "illegal & invalid" whimsical resolutions, for "Prohibiting /Banning Bachelor Tenant", from staying in a Society. Such "selective & prohibitive" resolutions /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 on 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 Coop. Registrar, for "de-registration" of the Society registration, citing the "illegal and invalid" activities, failure of objectives of Coop. Society and for violation of the "Rule of Law".
e) IF ignorant & nuisance GB resolutions have their whimsical ways in a CHS, THEN one can also expect that the ignorant GB may pass resolutions for compulsory marriage between the members (apprehensively, 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:
a) A Coop. Society is classified as a "Service Provider", under section 2(1)(m)(iii & iv) of the "Consumer Protection Act" (It is a Central law and not a State law), which is further reinforced from several Judgements of the Consumer Forums/Courts.
b) The Sole-Responsibility & legal liability of a Coop. Society, is to provide "Common Services & Amenities", to its members (u/s 2(16) of the MCS Act), which also lawfully means continuing "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 (whatsoever), directly to the Tenant.
03. TENANT equals to "NOMINAL MEMBER":
a) A “Licensed” Tenant of the Flat-Owner (Society member), is classified as a "Nominal Member" (under bye-law no. 20), who by “Legal Default” derives irrefutable rights to reside in a CHS members flat (under bye-law no. 24(b).
b) The "Nominal Membership" is to be granted to each of the individual Bachelor Tenant/s, by virtue of the Rs. 100/- (as nominal membership Fees), under the Coop. Registrar approved Bye-Laws of the Society.
c) IF the Flat-Owner (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" that is available to a Flat Owner-Member, CANNOT be deprived to a Tenant, even if any resolution is passed in a General Body, and violation of this can be successfully prosecutable in the Consumer Court.
d) The Tenant (Nominal Member) derives NO right whatsoever, to have any say in the management and/or administrative affairs of the Society (under bye-law no. 26). HOWEVER, to the exception of "having any say in the affairs of the Society", the Tenant (Nominal Member), has all the rights & privileges that are available to the original Society member (Flat-Owner), which includes Parking, Club-House, Gym, & other facilities ....
NOTE: "having any say in the affairs of the Society" MEANS:
- Nominal Member (Tenant) 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 CHS.
- Nominal Member (Tenant) CANNOT become MC member and further CANNOT demand any documents or raise any questions to the MC, relating to the administrative affairs of the Society.
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 out his property, 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 some commercial activities 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 Flat-Owner (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 (sic)" the Tenants, by conducting interviews of the Tenants. Such interviews or assessment of the Tenants are illegal, demoralizing, demeaning and beyond the purview (Capacity & Capability) of the MC.
05. JURISDICTION OF A SOCIETY:
A CHS is concerned only with compliance of its Society Bye-Law prescribed norms, which means:
a) Prior intimation to the Society vide Bye-Law form-Appendix no. 27.
b) Form-Appendix no. 11, along with cheque of Rs. 100/- as “Nominal Membership Entrance Fee”.
c) Certified Photocopy (under bye-law no. 19(A)(vi) ), 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 (eg. BMC Property Tax, NA Tax, BMC Water Charges).
NOTE: HERE, IF the MC does not levy (or has maliciously or innocently forgets) the "10% Non-Occupancy Charges", THEN the MC is liable to pay the loss of the Society, means the "10% Non-Occupancy Charges", from their own personal pocket, alongwith accruing interest thereon, to the Society. Negligence & Deficiency of the MC leading to such losses to the Society, means the "10% Non-Occupancy Charges", can be recovered from the MC, even after many years, even if the MC has resigned.
06. NON-OCCUPANCY CHARGES FIXED at 10% :
The Society is concerned only with the FIXED 10% extra charges over the regular Society’s 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 Act).
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 Non-Occupancy Charges, or on any outstanding amount, which-so-ever.
c) IT is illegal to levy any other amount or charges in the Members bills, that is not mentioned in the approved Bye-Law no. 65, of the Society.
d) IT is illegal to levy any Legal Litigation Charges in the Members bills, without a judicial order, irrespective of any criteria or any GB resolution or whatever.
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. OTHER CRIMINAL LIABILITY ON THE MC’s:
a) Some CHS MC's are sadistically, chronically, shamelessly and habitually prone to super-impose (daada'giri) themselves on the other members (Flat-Owners), thinking themselves as Feudal Landlords, and dictate terms to the Flat-Owners and their Tenants.
b) "IF" for "ANY" reason, the MC restricts or prohibits or stops or disallows a bonafide Tenant (Bachelor or any Paying Guest) from entering the Society building /premises, THEN the bonafide Tenant /Paying Guest, may register a Police Complaint, or a Private Criminal case in the local Magistrates Criminal Court, against "ALL" the MC members alongwith the Security personnel, for Restraining /Stopping him from going up to the rented Flat.
c) The aforesaid Police Complaint or a Private Criminal case in the local Magistrates Criminal Court, can be done under the following sections:
i. Section 339 and 341 read with section 34 of the Indian Penal Code.
DEPENDING on other factors, further complaint can be made under the following sections
ii. Section 153-A and 298 read with section 34 of the Indian Penal Code.
(The modalities of these Section's, are explained at the end of this Article)
d) The Police CANNOT REFUSE and are "duty bound" to register the complaint under their powers under Section 149, 154 of the Criminal Procedure Code.
NOTE: "Bonafide Tenant" means a Tenant who has registered his L&L agreement. IF the "L&L agreement", is not registered, THEN the Tenant is not classified as a "Bonafide Tenant", for any & all purposes.
09. LIABILITY /RESPONSIBILITY OF TENANTS:
The Tenant should ensure of the following minimum requirement, to enable him to have "legal rights", as a residing-Tenant, in the Flat owned by the Flat-Owner (member).
a) A duly Stamp Duty paid and Registered "L&L Agreement", with the Flat-Owner (member).
b) Police Verification Report, duly supported by his own PAN /AADHAR card /Passport documents.
c) That the Flat-Owner (Member) has submitted the duly filled in Bye-Law form-Appendix no. 27, to the CHS, under due acknowledgment.
d) That the Flat-Owner (Member) has submitted the duly filled in Bye-Law Form-Appendix no. 11, along with cheque of Rs. 100/- as "Nominal Membership Entrance Fees", to the CHS, under due acknowledgment.
e) ADDITIONALLY, the Tenant should take a Registered specific-purpose "Power of Attorney" of the Flat-Owner (Member), with appropriately required clauses, for any untoward requirements, that may occur “IF” the Flat-Owner (Member) is not available, for any reason.
10. CRITERIA FOR BONAFIDE TENANCY RIGHTS:
The L&L Agreement must be properly drafted & verified and appropriate Stamp Duty & Registration Fees, should be duly paid and only THEN duly registered with the local office of the Registrar of Sub-Assurances. This can be done with physical presence or by online registration.
a) Under Section 55 of the the "Maharashtra Rent Control Act, 1999", read with Section 17 of the "Registration Act, 1908", the Flat-Owner (Member) and the bonafide "Tenant /Paying Guest" are law-bound to Register their "L&L Tenancy Agreement".
b) IF the "L&L Tenancy Agreement", is not duly Stamp Duty Paid and Registered, THEN the "Tenant /Paying Guest", DO NOT become a "bonafide" Tenant, and derive no protection for "ANY" purposes, as far the right to Tenancy /Paying Guest is concerned.
c) HOWEVER, "EVEN IF" "L&L Tenancy Agreement", is not duly Stamp Duty Paid and Registered, EVEN THEN the CHS MC, do not derive any lawful right to restrict /prohibit /stop /disallow the Tenant (Bachelor or any Paying Guest) from entering the Society building /premises.
d) HERE, However, the CHS MC is Lawfully duty bound, to simply inform in writing to the concerned authorities (Police Dept., BMC, IGR, .... ) about the stay of unauthorized Tenant/s (Bachelor or any Paying Guest). PERIOD.
11. PRESUMED NUISANCE, BY BACHELOR TENANTS:
Sometimes, the Society does experience nuisance from some uncivilized & arrogant type of Bachelor Tenants, in the form of Rowdiness, Alcoholism, Drug abusers, visiting Boy/Girl friends of the Tenants, playing of Loud Music, etc.... HOWEVER “legally” these can never ever be a ground for restricting /prohibiting Bachelor Tenants, more so specifically since all these nuisances are rampant and unchecked, amongst the Flat-Owners (Society members) themselves. It is a routine feature amongst Society Members, to bicker and fight for petty things, which includes, Ogling, Stalking, Bitching, Parking, Drunkenness, Gambling, Spitting Paan juice inside the Lift /staircase /lobby /compound premises, Loud music, Abuses & Dadagiri, misappropriating society members funds, egoistic power-struggle and what-not's ....
NOTE:
a) IF the CHS MC encounters such "uncivilized & arrogant type of Bachelor Tenants", THEN the CHS MC (Secretary) MUST simply complaint in writing to the local Police Station, mentioning reasons such as "security & nuisance & breach of peace", against the said Tenant. Here the basic Police Action, against the Tenant, would be sufficient enough deterrent to the Tenant and a Security caution to the original Flat-Owner (Member), for future eventualities.
b) As precaution, the CHS MC "should NEVER" indulge, under any circumstances, to take on to themselves, to take ANY kind of action /dialogue with such type of Tenants.
12. BACHELOR FLAT OWNERS:
Under the present Indian laws, a Bachelor-Person, can purchase a Flat in a Society /Condominium, WIHOUT ANY RESTRICTIONS, whatsoever & whichsoever. 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 section 23 of the MCS 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.
13. LEGAL BY-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 & his Family, 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 member can make his "Tenant" as his Associate member.
NOTE: Associate Membership can simply be withdrawn, by the Flat-Owner (Member) 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, for any purposes, more so in a Tenant-Ownership type CHS.
a) A Society CANNOT charge 10% as Non-Occupancy Charges, from an Associate Member, as prescribed under bye-law no. 24(b).
b) A Bachelor Tenant can be made an Associate Member.
c) Associate Member CANNOT be the Flat Owner; hence his name CANNOT be recorded in the Share Certificate or any membership registers of the CHS.
14. 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 CHS properties. On realizing the nefarious management attitude in a CHS, some people have started registering their group properties, under the concept of a "Condominium" (under Maharashtra Apartments Ownership Act, 1970), which truncates out the nefarious & bickering management attitude in a CHS. 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.
15. 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, Rules and the Bye-Laws, prescribing Penal Action on the Mg. Committee, for restricting or prohibiting Bachelor Tenants in Coop. Societies. This obvious and much needed move (directives and/or provisions), would positively help in upholding the Cooperative movement, which is the obvious preamble of the MCS Act.
16. INTROSPECTION:
WHEN India can have few Criminally Accused /Tainted persons as "Members of Parliament", THEN there is no logic what-so-ever and which-so-ever, from restricting or prohibiting innocent Bachelors from staying in a Coop. Housing Society.
AUTHOR: Hemant Agarwal
EXTRACT OF SOME SECTIONS, OF THE RELEVANT LAWS, under which a Bonafide Tenant (Bachelor or otherwise) may seek some legal help, from the Police authorities or the Local Magistrate Courts:
INDIAN PENAL CODE:
01) Section 34 : Acts done by several persons in furtherance of common intention
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
02) Section 153A : Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony
(1) Whoever -
a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, OR
b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility
c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc….
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
03) Section 298 : Uttering, words, etc., with deliberate intent to wound the religious feelings of any person
Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
04) Section 339 : Wrongful restraint
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
05) Section 341 : Punishment for wrongful restraint
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
CRIMINAL PROCEDURE CODE (Cr.P.C.)
01) Section 149 : Police to prevent cognizable offences
Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence
02) Section 154 : Information in cognizable cases
1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
MAHARASHTRA RENT CONTROL ACT, 1999
Section 55 : Tenancy agreement to be compulsorily registered.
1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908.
2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise.
3) Any landlord who contravenes the provisions of this section shall, on conviction, be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or with both.
