By I C Naik
The uses of dwelling units ( home, residence, private abode) in cooperative housing societies in Mumbai (and whole of Maharashtra) for purposes which are prone to generating sources of squabbles and threat to peace and harmony is a biggest flaw of the Model Bye-Laws. It started with a definition of flat which is mindlessly borrowed from the MOFA 1963.
The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 defines flat very broadly under Section 2(a); “Flat” means a separate and self-contained set of premises used or intended to be used for residence, or office, show-room or shop or godown or for carrying on any industry or business (and includes a garage), the premises forming part of a building and includes an apartment.
It is useful to understand how the M C S Act 1960 concerns itself to housing societies. Section 2(16) defines housing society ;
(16) “housing society” means a society, the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats are already acquired, to provide its members common amenities and services;
The M C S Act 1960 does not define flat but it does use two nomenclatures dwelling houses or flats and the Model Bye-laws define flat with reference to its probable uses and not actually indeed uses, making a mindless copy of its definition in MOFA.
‘Flat’ means a separate and self contained set of premises used or intended to be used for residence, or office, or show room, or shop, or godown and includes a garage, or dispensary, or consulting room, or clinic, or flour mill, coaching classes, palnaghar, and beauty parlour the premises forming part of a building and includes an apartment;
As can be seen the uses of flat in one and the same building premises cannot be imagined to be such varied purposes. If different members were to start making use of the flats in accordance with the definition the building and the Society will become unmanageable. When the Bye-laws are registered no care is taken to replace this definition and mention very specific uses for which the building plan was approved by civic authorities. Application for registration of housing societies should as designed as per the M.C.S. Rules 1961 should require the uses to be mentioned as approved by civic authorities.
And finally the allotment letter must be issued to every member specifying the exact use as approved by civic authorities, as per definition of the flat in proposed Bye-Laws and as stated in the Application for registration of the Society – all must be same. The auditors must be required to verify and certify that an uniform purpose for use of flat is mentioned as stated here.
With this background innumerable flaws are pointed out in this shortest form prescribed under Model Bye-laws 2104.
APPENDIX -3 [Prescribed under the Bye-law 19(a)(iv)]
A Form of undertaking to be furnished by the Prospective Member to use the flat for the purpose from which it is allotted.
Facts
1.Bye-law 19(a) (iv) ; applicant has submitted undertaking in the prescribed form to the effect that he shall use the flat / unit for the purpose for which it was purchased by him;
2.Firms and Corporate Bodies are to be admitted to membership if they comply conditions as per Sub-Clause ( c ) of Bye-Law No 19 but they need not file undertaking restricting the use of the flat to purposes mentioned in Allotment letter.
3.This form can be used by firm or corporate body also as the salutation includes the word ‘Messrs’
4.As per the title of the form it is to be used by Prospective Member to whom it is allotted by the Chief Promoter/Builder
5.The description in the Index of Appendices at Page 68 reads “The Form of Undertaking to be furnished by the prospective Member to use the flat for the purpose for which it is purchased”
6.As per Appendix 1 which displays the form of application to membership by a Nominee/heir, who is a Minor, through his Guardian/ Legal Representative requires the applicant to furnish undertaking as prescribed under Appendix 3, along with the Application for membership.
7.The statement being made by the prospective member in this form namely “proposed to be acquired by me /us on cessation of membership of the earlier member” indicates that it could be used by the transferee of the flat i.e. Purchaser from existing member
8.The undertaking about change in the use states “I further give the undertaking that no change of user will be made by me without the previous permission, in writing of the committee of the society.
Flaws
1.The 1st Flaw is that the phrase “he shall” used in the Sub-Clause (iv) and salutation “Messrs” in the appendix 3 creates doubt if an applicant being the firm/body corporate is also required to furnish the undertaking.
2.The 2nd Flaw is that it lacks clarity as to the categories of prospective members as phrases like “Flat allotted” “Flat purchased” are used but no option is given for using this form for the undertaking required to be furnished under Bye-Law No 17(b) and Appendix 1 by the person making application on behalf of minor nominee and that is the 3rd Flaw.
3.The 4th Flaw is that this form is also meant for furnishing undertaking by the transferee under Bye-Law No 38(e) but it is not expressly stated anywhere in Bye-Laws or in Appendix 3 os in the Index except in the Application forms at Appendix 22 and 23 without clarifying that such undertaking has to be in the form at Appendix 3.
4.The 5th Flaw is that the applicant’s undertaking as regards change in purpose for which the flat can be used does not make sense as none of the Bye-Laws confers any power on the managing committee to approve change in the purpose of the use of the flat once mentioned in the allotment letter in Para 5 of the Appendix 12. In fact Sub-Clause (iv) of Bye-Law No 19 asserts a condition that the purpose is unchangeable. The Appendix takes a liberty total?y unintended under the scheme of housing societies. ?