By I C Naik
In Part 1 April 25 2015 we concluded how the residential flat-user now permissible for commercial purpose under the Development Control Regulations for Greater Bombay, 1991 (DCR – GB 1991), resulted in a case of BMC inadvertently abetting to trespass in to society’s property (Dadar Avanti C H S Mumbai). BMC order compelled a free access to the people visiting the nursing home being run in a residential flat. It’s a trespass since the permission of the managing committee of the Society was not obtained. A prognosis of the Flat-User change post latest S C Order of 19th March 2015[42 SCD 494] was promised. So here it is.
In the Order (supra), the Apex Court pronounced that a new law on functioning of the cooperatives has come in to being regardless of it being inserted in to the ordinary statute or not. Para 44 of this order has brought home this point at once. QUOTE: “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. UNQUOTE The Apex Court has directed to all Statutory bodies and law makers in the country to ensure they better remove all impediments to any cooperative society functioning as autonomous organization. BMC has authority under DCR – GB 1991 provided am owner of a residential property asked for it. Combined effect of the M C S Act 1960 and Maharashtra Ownership Flat Act 1963 is: the title to flats/land on which they stand de jure belong to an incorporated body, a cooperative housing society, distinct entity from its members who promoted it. Members are not owners. They are like tenants.
In all housing society cases put up to BMC for a flat-user change from residential to commercial, a housing society approaching for introduce a permissible facility for their members, then it was a different case. The appropriate question which was before the Bombay High Court (D.B. Bhosale, J. on 30th January 2003) was in fact this; Whether the Commissioner could permit he user change to a flat sought by the Medical Practitioner duo the members of Dadar Avanti CHS, though the lawful owner of the property (including the flats), did not ask for it, in fact had objections?
Civic Authorities failed to come to terms with a statutory position that an individual member of cooperative society has just one vote to say “yes” or “no” to any proposal concerning the Society’s property, that too only when it is brought up at the general body meeting and not in any other manner whatsoever. It was a time during which housing societies were not in focus as much the user of the flat was or rather were marginalized literally bu all public bodies. Now the Constitution amendment has overturned this scenario. Cooperative society is in sharp focus. The Amul dairy (Gujarat) case has accelerated this process of bringing cooperative society in to the most deserved lime light which was long overdue.
The Apex court vide its March 19 order overturned several of its own earlier decisions confidently mustered in by the beleaguered chairman’s counsels. The Apex Court was armed by the Constitutional amendment of 2011 (supra). In this case the question considered was supremacy of “a constitutional right of decision making in a democratic manner” per se overlooking a statutory abeyance. Here in the “flat-user change case” it is an issue of a cooperative society functioning in an “autonomous manner” sans interference of other authority or regulatory framework. Both are same about a constitutional status of cooperative society- something it was denied over decades or for a century.
Excerpts Para 8 of the S C Order (supra) QUOTE: “it appears that the cooperatives in India did not have effective autonomy, democratic functioning and professional management. UNQUOTE. The Apex court amplified that cooperative society has been conferred a Constitutional status in the background of National Cooperative Policy 2002, formulated by the Government conforming to the international principles and values applied to running cooperative societies. The Statutes must fall in line with the Constitutional imperatives otherwise it must be held illegal and all authorities acting under any statutes or a regulatory frame work like DCR – GB 1991 must give way to the mandates which are recognized by no less than the supreme legal authority the Constitution – that is the prognosis.
