By I C Naik
This rejoinder has a relevance to the controversy which media keeps putting on trial upon every isolated incident of a housing society refusing membership to minority community.
This is an opportune time to announce a red alert for upcoming housing societies especially in Mumbai Metro where such stories are heard quite frequently. The Constitution (97th Amendment) Act 2011 forced the State to enact the Maharashtra Cooperative Societies (Amendment) Act 2013. This in turn obliged the Commissioner for Cooperation to release the latest Model Bye Laws for societies including housing societies. New Cooperative societies going for registration are likely to be forced to register this Model bye Laws as their bye laws.
The sub-letting of a flat in housing society is not an unconditional basic right to membership just as the right of a flat’s occupancy is. Exceptionally where a member is unable to occupy the flat, the managing committee needs to be satisfied which could be on account of any one of the reasons listed under Bye-Laws (Bye-Law No 45 of Model 1984 and No 43:of Model 2001/2009) : These conditions in brief are:
(i) The member is required to be away for a long duration
(ii) The member is unable to occupy the flat for want of appropriate education facility for the children in the area of the housing society.
(iii) His employer allots him the accommodation as it adds to the efficiency of the member as employee or
(iv) For any other reason otherwise found satisfactory to allow sub-letting
In the order of the Supreme Court cited more than once earlier namely of “Zoroastrian Co-Operative Housing Society [Rd-Sc 253 dated 15 April 2005] the Apex Court has explained as to how a cooperative society comes in to existence under contracts entered in to by all members inter-se and the contract is in the registered Bye-Laws of the Society. At Para 21 of the order, the Apex Court has declared;
”Under the Indian Contract Act, a person sui juris has the freedom to enter into a contract. The bye-laws of a cooperative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society. Even the formation of the society is based on a contract. This freedom to contract available to a citizen cannot be curtailed or curbed relying on the fundamental rights enshrined in Part III of the Constitution of India against State action.
A right to enforce a fundamental right against State action, cannot be extended to challenge a right to enter into a contract giving up an absolute right in oneself in the interests of an association to be formed or in the interests of the members in general of that association.
This is also in lieu of advantages derived by that person by accepting a membership in the Society. The restriction imposed, is generally for retaining the identity of the society and to carry forward the object for which the society was originally formed. It is, therefore, a fallacy to consider, in the context of cooperative societies, that the surrendering of an absolute right by a citizen who becomes a member of that society, could be challenged by the said member by taking up the position that the restriction he had placed on himself by entering into the contract, is in violation of his fundamental right of freedom of movement, trade or right to settle in any part of the country. “
Under the pretext of fundamental right of freedom of movement in the country a member of a housing society cannot insist to sub-let the flat without satisfying the managing committee on the need thereof. Power of approval includes power of refusal. One can challenge the refusal on any other ground that is another matter.
The red alert to new housing societies is for the drastically shortened version of Bye-Law No 43 in the latest Model 2014. Its clause (b) is a blow on the democratic control vested in the Society under the Constitution of India.
(b) No permission of the Society is required to sublet the flat / shop. However the intimation needs to be given to the society 8 days before such subletting.
If a housing society adopts the Model 2014 blindly, the managing committee will have no right to scrutinize application of members letting any person of his choice to occupy the flat and for as long as he so wishes. The Bombay Police has recently clarified that no verification of the tenants is done by them, they merely file the written intimation of tenancy when received.
Now the managing committee will have to follow the Bombay Police. The managing committee will have no say in the matter of occupancy of the flats being the only ‘Economic substance’ of housing societies. A day will not be too far when a decisive majority of the residents in the housing society may comprise of the tenants.
The readers of www.indiancooperative.com may recall a case of a person occupying Chairman’s position for 5 years without having his name appearing on any share certificate issued by the Society. [ Cooperative Queries April 13, 2015 by Dattatray T Redekar ]