Housing Societies Cannot Legislate Beyond The Law
Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker
The housing society claims that there is an increase in pests in and around owing to a few members, like myself, feeding stray dogs which the society, wrongly maintains, has to incur a lot of expenditure in cleaning. They plan to pass a resolution to raise the maintenance of the offending members by Rs 1,000 every month and say the idea is not to raise revenue but to deter them from littering the area. Is this resolution legal?
- Vidhi Shah, Palghar
We plan to pass a resolution in a Special General Body in our housing society to ban members from giving their places on leave and licence to bachelors as they tend to wreak havoc in the place and create nuisance. We have a majority who are all for it, yet a few members, who have given their places out on leave and licence to singles are opposing it. What is the legal position on this?
- Deepak Menon, Chembur
I am a single senior citizen and have been getting singled out in my cooperative housing society owing to a few members keen on forcing me into selling off my flat after my only sister’s death. They have passed resolutions preventing entry into the society at late hours to harass me from taking a walk late at night to forcing me to install a window grill put up by them and at my expenditure, all under the guise of security concerns. They have even tried to pass a resolution in this regard to force me to pay up fines that I simply cannot afford. What should I do?
- A senior citizen, Vashi
To sum up things, it is pivotal to examine the recent dismissal of a writ petition by the Bombay High Court on 20 March 2023 that underlines the letter and upholds the spirit of the law. The move has far-reaching repercussions and addresses a pivotal issue: One of housing societies illegally attempting to thwart legal processes and legislate on issues that have been laid down in law.
A writ petition to cap membership of a housing society on community basis was dismissed and orders denying permission to a housing society in Mumbai's plush Malabar Hill area to amend its bye-laws so as to cap membership of each community at 5 percent of the society's total membership, upheld.
Bombay High Court’s Justice Rajesh S Patil was hearing a plea filed by Blue Haven Co-op Housing Society Limited and its secretary, challenging the April 2011 order of the Divisional Joint Registrar and a November 2008 order passed by the Deputy Registrar of D ward, rejecting the proposed amendments to the bye-laws by the society.
While the society argued the Registrar has no power to dictate in regard to amending bye-laws and that, as the society had enough powers to frame its own bye-laws, the amendments sought should have been approved, it echoed the sentiments of most housing societies which feel they have the authority to ‘enact’ laws, levy ‘fines and penalties’, cap ‘ceilings’ on numbers and ‘limit’ processes already laid down in legislation.
“If the proposed amendment is approved, it will divide the society on community basis. The building was not constructed on community basis. On inception, there were no such bylaws of mathematical division of 5 per cent per community,” said Justice Patil, adding, “If the proposed amendment is approved, and in a situation where a member wants to sell his flat, and the community to which he belongs already has 5 per cent membership out of 100 per cent, in that situation, he would have to search for a buyer from his community only. In such a situation, the sale is likely to be a distress sale. Therefore, the proposed amendment is not in the interest of the society.”
It was on September 19, 2008, in its special general body meeting, that the society members unanimously resolved to add to the bye-laws a clause that a person cannot be admitted as a flat-owner if he or she, along with other existing members of the community to which the person belongs, constitute more than 5 per cent of the total flat owners. It was resolved that the home-owner should not belong to a community that would constitute more than 5 per cent the total members in the society.
It is the issue of enacting laws, being the norm with most housing societies, that is in question. When a bye-law is amended, firstly it has to be done in a manner that it remains in accordance with the Maharashtra Cooperative Societies Act and Maharashtra Cooperative Societies Rules, secondly it has to be ratified by the Registrar to have the force of law, failing which the resolution, passed with a majority even if in toto, is rendered null and void.
Yet, most housing societies, in the absence of a formidable opposition, penal action or financial or statutory accountability like the M-20 Bond, most resolutions are passed, processed and placed into action even without legal backing.
The Bombay High Court, rightly too, held the proposed amendments were against Section 22 (1), which stipulated qualification to be a member of a society, under the Maharashtra Co-operative Societies Act. “The society by proposed amendment to the bylaws wants to defeat the section itself, as it wants to insert a condition whereby even though a person who is otherwise qualified under Section 22 (1) to be a member, cannot become a member if the proposed amendment to bye-laws is allowed,” it noted while dismissing the plea.
The attempt to enact and enforce law without the basis of law is, in itself, an attempt to subvert the law and flies against the letter and spirit of the law, ironically pivoted on cooperation. If there is an attempt to subvert the law, you must contest it; For, even if everyone is against the law, by way of a full majority backing a resolution in a society, it reigns supreme by sheer dint of its legality.
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