Sohil Sanghvi
I am a committee member of a CHS. Our Society is Ground + three floored + Terrace along with two garages in the open compound. Our Building was constructed on BMC Leased land for 999 years.
Our Society was formed in the year 1969. During that year the Owner of the building sold the building to tenants and that is how the Society was formed.
However, he requested the tenant occupying garage no.1 & no.2 to continue being tenants with the Society and pay rent for parking their Car in the garage. He also proposed them to fill up nominal membership form and submit to Society.
Garage no.2 in the possession of Society and is used as Society’s office. But the tenant of Garage no.1 M/s Pentagon Electrical & Mechanical Engineering has not paid parking charges since 2004 and the car is moved out from the garage since 1998.
There is unbearable menace of rodents, rats, lizards because of non use of said garage no.1. The members in occupation and use of the Society building in general, and those within the vicinity
Of the garage no.1 in particular, experience nuisance due to the emitting of bad odor and foul smell of rodents, rats, lizards etc. find it very intriguing.
The condition of the garage no. 1 has worsened such that the ceiling thereof can at any time collapse. Photograph evidence of the dilapidated status of garage.
We have made ample attempts efforts to get in touch with the tenant which was fruitless and in vain. As last resort vide notices, dated March 31st, 2013 pasted on garage no.1, requisitioned Pentagon Mechanical and Electrical Engineers to make payment of rent charges in the sum of Rs 8040.68 (since in arrears from July’2004).
Further, the said tenant was directed to take necessary efforts/steps of removing the Ambassador motor car parked stationed inside the garage as also to cleanse the garage so that foul smell emanating is wiped out and menace of rodents, rats, lizards etc. is put to an end.
The tenant has failed to respond to the notices date22/03/2009, 02/04/2009 and 31/03/2013.
We have approached Local Police for help but they have shown absolute disinterest in helping us. So is the case with BMC.
Can the Managing Committee under the circumstances break open the garage and take possession and dispose the car to recover past dues. Will this act be a case of property encroachment in the eyes of law.
I C Naik
Facts re-stated briefly
A builder in Mumbai did not part with possession of a parking slot to the Cooperative Housing Society registered in 1969. Instead, it was rented out to a non-member who was registered as a nominal member of the Housing Society. The Society continued to be the land lord for this tenant viz:- Pentagon Mechanical and Electrical Engineers.
Best possible Response
The Cooperative Housing Society renting out a “Car Park” to a non-member and acting as Land Lord collecting Rent from the so-called Tenant (admitting him as a nominal member) is something alien to the Scheme of Cooperative Housing. In earlier times out of ignorance such lapses were understandable.
Legally the relationship between Society and the Nominal member was void ab-initio and as such no obligations are devolved on the Society.
The management committee having tolerated for unduly long duration should now pass a resolution in General Body and terminate the Nominal Membership recording the facts briefly and referring to notices sent to the Nominal Member. The Resolution should also authorize the Committee to dispose off the car lying in the Parking area and proceeds may be adjusted to amounts recoverable and expenses incurred in restoring the parking area to original position.
Any surplus remaining may be deposited in the State Education Fund to prove the bona fides. While depositing the amount describe the contribution briefly in the forwarding letter. The Resolution should authorise the managing committee to allot the parking to any member desiring its use against fees that may be recorded in the resolution. If more than one contender there it should be allotted by lot system on a yearly basis, eliminating those who got the allotment at least once.
Send communication of the disposal at the same address where Notices were sent. There is no right or wrong for handling arrangements which were void in law any way.
