By I C Naik
Implications of the reformed Bye-Laws [ Nos. 20, 24(b), 43 and 60 Model 2014] on the co-operative movement and interest of the society registered under the MCS Act 1960.
Co-operative movement cannot grow without the member’s democratic control and autonomy in management of the society’s affairs. ”Election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.” [The Supreme Court in O. N. Bhatnagar vs Smt. Rukibai Narsindas 1982 AIR 1097, 1982 SCR (3) 681 [http://indiankanoon.org/doc/329158/].
Long term interest of the housing society lies in “maintaining harmonious living amongst the residents with a bond of common habits and common usage among the members leading to neighbourly feelings and their loyal adherence to the will of the society expressed by the committee’s orders and their unselfish and harmonious working together.” [Zoroastrian Co-Operative Housing in Gujarat, Rd-Sc 253 – 2005)].
Now in a new housing society a member can freely sub-let his flat to any-person of his choice, at his will. So far the Police used to verify the authenticity of all details furnished by the proposed licensee, helping the society ensure that the aspiring tenant does not have a criminal past. This practice has been replaced [TOI Report dated 3 -02-2105] by the Police requirement the licensee to deposit a copy of the license agreement in the nearest Police station. This is a set back to the efforts of a housing society management striving to maintain a bond of common habits and common usage and neighborly feelings amongst the residents. The result could undermine the residents’ loyal adherence to the committee’s orders weakening the co-operative movement in general.
Most important damage is, now no NOC can be levied by new societies. NOC had been under legal tangle for over a decade till it settled down with a cap of 10% of maintenance (Except BMC Taxes) as per. Govt.Order issued U/S 79A (Mandatory) No.SAGRUYO-1094/15165/ case No. 317/14-C dated 1st August 2001. This order was also upheld by Bombay High court. [Mont Blanc Co-Operative’s case … on 2 March, 2007: 2007 (4) MhLj 595].
After the flat is sub-let, the concerned member’s where-about could become untraceable leading to mounting arrears of Society dues in respect of sub-let flat. If a large number of flats are sub-let the residents may start feeling in-secured with huge outstanding and presence of large number of unknown people as neighbours.
One very important member’s undertaking has also been abolished- an undertaking of the member to join the society in an evacuation proceedings. As the member has put a stranger in possession of the flat the evacuation proceedings could be marred by a licensee creating a confusion between applicability of provisions of the MCS Act 1960 and Rent Act. The case on this point:
The S C in O. N. Bhatnagar’s case (supra) had to engage in redressing a humiliating treatment meted out to a member by a sticky licensee of her flat in Shyam Cooperative Housing Society at Bhulabhai Desai Road [ then Warden Road] Mumbai. Leave License Agreement of this flat though expired on February 28, 1965, the oppressive licensee stuck to the flat in the posh SoBo locality for as long as 17 years, keeping the flat-owner busy in one or other litigations, till the “dispute” was finally resolved by the S C in 1982. At one stage the Small Causes Court entertaining the licensee made an erroneous order in licensee’s favor granting protection under the Bombay Rent Act denying jurisdiction of the Cooperative Court.
One observation of the S C is quite pertinent in this discussion. “the High Court had taken the view in certain cases that unless the cooperative housing society is a disputant, the claim by a member thereof for possession of the premises of a flat against a licensee would not be a dispute falling within the ambit of s. 91(1) of the Act.” A few years were lost because initially the member chose to fight alone individually on her own without involving the society. As a result the Small Causes Court seems to have been misled in to recognizing the arrangement as a matter covered by Bombay Rent Control Act.
There is nothing in new Bye-Law No 43 as regards evacuation proceedings of a sticky licensee by the society. Why should a licensee leave a flat? Like the one in O. N. Bhatnagar’s case (supra), he will get opportunity to confuse the proceedings only to drag on for years to gather.?