By I C Naik
In Part 8 we examined the above important issue at length. We all know that Bye-Laws and two forms in Appendix 3 and Appendix 12 prescribed there under forbid any change in the original user purpose without the previous consent in writing of the Committee. Every prospective member signs an undertaking to that effect on a stamp paper of Rs 200. The flat Allotment letter issued to member renders a member liable to expulsion for any breach/breaches of the provision of the bye-laws of the Society which are considered by the Managing Committee of serious nature. User change is but a serious breach.
This subject of “user change” surprisingly reached up to the Apex Court which was decided against “such change” on 9th February 1996 [Dadar Avanti Co-Op Housing Society Ltd, Bombay V. Municipal Corporation Of Greater Bombay & Ors [1996] Rd-Sc 222]
The story in brief: Dadar Avanti put up very strong resistance to such user change approved by Municipal Commissioner and had appealed against the judgment of the Bombay High Court dated September 14, 1994. The High Court dismissed the Society’s Writ Petition filed against the order permitting two of its members to change the user of their flats. The change was from residential purpose to that of a commercial one for opening of a Surgical Nursing Home on the Second floor. The building plan was approved on July 25, 1979 for the ground floor to be used for clinics and garages while upper floors for residential premises.
In the Development Control Regulation for Greater Bombay 1991 clinics are permissible in residential area up to second floor with the condition that there should be a separate access” The Apex Court reversed the order of the Bombay High Court observing that “ the order of Additional Commissioner is dated December 15, 1987, allowing such change of user and the regulation of 1991 came into force with effect from 25th March 1991.
In the last Para of the order however there is a rider that “Needless to mention that since the Regulation of 1991 empowers the concerned Authority to allow change of user it would be open for the respondents to move the authority afresh and the said authority may pass appropriate orders in accordance with the Regulations of 1991 which is said to be in force.”
This rider is worth a re-look especially after the Constitution (97th Amendment) Act 2011. The Apex Court had an occasion to have a fresh look at its earlier orders on a contentious issue of the right of a cooperative society’s board to democratically remove its Chairman by passing a no confidence motion, even where no such power was vested in the board under the statute or under the Bye-laws.
The change is evidenced in Para 44 of the order of 19th March 2015 of a Division Bench of Justices Anil R. Dave and Kurian Joseph, in Civil Appeals No. 3047 / 48 /49 OF 2015 Vipulbhai M. Chaudhary [Appellant (s) Versus Gujarat Cooperative Milk Marketing Federation Limited and others [Respondent (s)] reproduced below.
“44. It may be seen that all these decisions dealt with the pre-Ninety Seventh Amendment status of the cooperative societies. The amendment providing constitutional status to the societies has brought out radical changes in the concept of cooperative societies. Democratic functioning and autonomy have now become the core constitutional values of a cooperative society.”
Reverting to the rider in the 1996 order as aforesaid it needs to be re-visited in the context of Bye-Law No 78 and the undertaking by the prospective member as per Appendix 3 applying a touch stone of the “Democratic functioning and autonomy” now constitutionally assured to cooperative societies as affirmed by the Apex Court in its 19th March Order.
One would like to ask a question. “Will it not amount to contempt of constitution if the Municipal Corporation were to issue NOC to the two members making a request to change the user of a flat that too going back on their own written undertaking, not to change the user without permission of the managing committee? Will the members not render themselves liable to be expelled for a breach of Bye-laws which could be viewed quite serious by the managing committee?