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 /Industrialized Cities (e.g. Mumbai, Pune …. ), a new nefarious and knee-jerk whimsical concept of Prohibiting /Banning “Bachelor Tenant”, from staying in a Society, is emerging, causing gross discontent among the Society members, thus leading to gradual failure of the Cooperative Moment.
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 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 Consumer Court.
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 Consumer Court.
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, WITHOUT 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 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
Email: ha21@rediffmail.com
The constitution of India is supreme and gives fundamental rights to every Indian citizen to live anywhere without any descrimination based on religion ,gender,eating habits ,and marital status . Cooperative housing Societies are governed by rules framed to bring cooperation to reinforce equality ,and liberty and freedom and nurture the secularism amongst every Indian citizen ,and therefore societies can’t overrule the supreme law of the Indian land and can’t make rules or rather are not allowed make rules to prevent accommodation to batchlors, different religion ,non veg eaters or genders .
Hi,
My society has passed a resolution to allow renting out the flat to single person or family, to indirectly ban the bachelors. Is this legal?
My society just charged me 33000 for having bachelor as resident. They will not issue noc to my new tenant. and they cannot move furniture in if they do not have noc. Is that legal pls let me know
Hi, we reside in Pg in Ahmedabad, Didn’t know if owner has taken permission of society , but now chairman of society has restricted entries to the PG occupants. Do we have any legal rights, as we are working professional and don’t know if after attending office, we’ll be allowed entry to society…
Though I am married and have two sons. I am also flat owner and living in my own flat in one of the society where few such issues reported. We do not have legally formed society nor Builder handed over to adhoc commitee. We have only Adhoc commitee who has so called chairman and few herd-mentality commitee members who chase petty issues what Hemant mentioned and pay attention to bigger issues. It seems they assumed that will never come across any situation where they to switch there job and go to other places to live in as post bachler tenant. I think Hemant highlighted lot of informations that are eye openings for herd mentality chairman’s and committee members.
@Bhavesh And looks like you were harassed by bachelors that’s why you can only see one side of the coin. There are cases of dowry in marriages so all the “Marriages” should be illegal or because rapes are committed so all the men should be kept in jail for that?
If no then why double standards for bachelors? How can you know and accuse a bachelor that he is uncivilized unless he has already done something just because some other person has done that. There are cases of domestic violence in the society then should all the families also be banned?
I’m sure you are totally civilized guy and married too I suppose, so you mean to say just when you got married you had a drastic change of character and before that you were too a drunk or dada or bhai as you were a bachelor? May be you are married but you still need to grow up and see conditions in unbiased ways before accusing the writer.
Because we bachelors also come from civilized families, we also prefer cleanliness and peace and work our a** off to fulfill our parent dreams by staying away from them and people like you are making it difficult for us to survive. I hope you have kids some day and when they grow up they are accused of such nuisance and denied a place to live away from home then you will realize what I or the author is trying to say.
Excellent write up by the author on keepin bachelors as p[aying guests in the flat.
There are several Co-op. Hsg. Stys. in Mumbai, who put undue restrictions to their members, such as, to keep only two Paying Guests (PG), only ladies or married couple can be the PGs, members above 65 years, and whose children are not staying with them can only keep the PGs, No foreigner as PG, and lot more.
Even though there is clear cut Government rules in keeping persons on Leave and Licence basis, why these conditions are not used in keeping PGs in the Flat?
Reply to CA. Bhavesh Savla:
Looks like Mr. Bhavesh Bhai is deniying the bachelors to reside in the society for the only reason, that in his young age this Uncle could not got the opportunity to have friends (including girl friends) and learn from and enjoy bachelor’s life. Or it seems this Uncle is a Chairman of such society prohibiting bachelors. Hence the apparent frustrations and jealousy made him write this comment. UNCLE GET A LIFE!!! I really pity your children… Atleast please don’t be jealous of your children’s freedom.
One more thing, are you sure when when u say that ONLY bachelors create disturbance in society and commit crime…? How do u defend a killing of old-aged couple in a society without bachelors in Malad.
Are you sure that so called non-bachelors do not have extra-marital affairs outside in someone else’s Society? they do not Drink? create probs for other neighbors?
Excpt an answer from you UNCLE SAM!!!
Under what presumptions can one say that all bachelors or spinsters will create ruckus or harm the peace.
Also there are many owners who stay as families and create much more ruckus then the tenants.
One cannot just presume and put all bachelors as well as spinsters under one category of nuisance.
There needs to be a better law in place
Societies Harass people who have flats to be rented out as their only income source..
ALso is society paying the owner for every month loss as rent or relieving him from paying maintenance charges. Then why discriminate??
Looks like the author was denied permission to reside when he was a bachelor. Or it seems that some tenant kept by him has been objected to by his society. Hence the apparent anger and making of non relevant points like comparision with MP/ MLA and presumption of all bachelor tenants as innocent.
There is a reason behind verifying the bonafides of tenants. The author says that certain societies have become investigators. Should the societies wait till some crime occurs? Should it not take precautions.
Further, bachelors have a point of bringing friends and creating a lot of noise. There is no discipline of family life sometimes. This may create disturbance in society and is very much a reality. That is why housing societies are wary of bachelors. But the author conveniently excuses it saying that these are rampant in the society itself forgetting the discipline that family life brings.
Further the society bye-law is supreme for all co-operative society members. If these mandate prior permission , then it is mandatory for the prior permission to be taken. It is a co-operative society and not to be run as per the whims and fancies of any particular member.
I would advise the author to avoid such individualism and arrogance as it is precisely such behavior that creates a lot of problems for other members.
we are a society of 12 members in building.Only one member is staying in building.Others have rented flats.Nobody of them ever takes care of bldg.Entire management is done by member who stays in bldg.What is provision of law for such situation and to compensate member who is managing bldg 24×7.Tenants are non cooprative in bldg management like housekeeping,gate security.elctro mechanical maint.etc.Please guide
its a really infoermative