By I C Naik
Big news in Mumbai is that the State Government has junked the controversial BMC Development Plan 2034. Lesser known good news is, this has perhaps subconsciously woken up the management of Mumbai Metro housing societies to the core issue of housing; namely BMC’s power to permit flat-owners in housing societies to make user change from residential to commercial.
Under the pretext of paucity of basic amenities like surgical homes, clinical laboratories polyclinics, the user changes are being liberally allowed by the BMC against the application submitted directly by the individual members of housing societies, little does BMC realize that this action tantamount to repudiation of the cooperative society management’s statutory rights over its immovable properties.
In two recent posts (on April 8 and 11) under Cooperative Coffee Shop we delved in to the legal and practical aspects of flat-user change. The issue had reached the Supreme Court two decades ago against the judgment of the Bombay High Court dated September 14, 1994 dismissing the Writ Petition No. 826 of 1988 (Dadar Avanti Cooperative Housing Society Mumbai’s case RD-SC 222, decided in favor of “Dadar Avanti housing society” on 09-02-1996).
The very same matter (Dadar Avanti Society’s case) had on a third occasion landed in to Bombay High Court and a single judge bench of D.B. Bhosale, J. on 30th January 2003, adjudged it in favour of a Medical practitioner duo [AIR 2003 Bom]. The question was whether opening of a surgical nursing home in purely residential zone is in accordance with the Development Control Regulation for Greater Bombay, 1991. The Court upheld the BMC’s action favoring the duo, and against Dadar Avanti Society’s stand.
What this judgment meant was in reality that the residential flats are now used as a private surgical home (a clinic) open to the members of public at large, despite the fact that the clinic is situate on the private property with a right to access only by registered members of Dadar Avanti Society and their families.
It is not palatable that the BMC Authorities, I.e. the Municipal Commissioner is least concerned with this statutory position as also with a daunting reality that it is the management of Dadar Aventi Society that keeps all the flats functional (i.e. maintaining 24X7 hr. facilities like Water, Electricity, Cleaning/Security services, at an uniform costs to all flats) including the flats being commercially exploited by just two members to their exclusive pecuniary gains/profits.
It obliges the management to let the members of public have an unrestricted free access to common areas of the Society to the detriment of the privacy of its own members. It is also, as if, of no consequence to the Commissioner whether he was or was not aware that these very members had purchased the flats under the covenant on a stamped / registered legally enforceable deed, that they will use the flats as residence exclusively. But he cannot deny the fact on record that the Civic Authorities had initially approved the user of the flat under a building plan against the application submitted by the developer/builder, (and not by these individuals), as that is the part of the legal system of town planning.
In turn the developer / builder under Sections 10/11 of MOFA (Maharashtra Ownership Of Flats Act, 1963) is obliged to pass on the titles and rights to the properties so constructed / developed to the legal entity the housing society Dadar Avanti Society in this case. The M C S Act 1960 declares cooperative society as a body corporate fully empowered to act as a natural person through its duly elected managing committee. If any person/statutory authority has got anything to do with the property of this body corporate, they have got to go through the duly elected office bearers of that society as provided under that Act.
In law the managing committee is a sole authority to represent the cooperative society and to handle any issue related to its property, and not that its individual members can do so, not even in respect of the flat deemed to have been allotted to them under its Bye-Laws. Members have well defined user rights with respect to the flats allotted to them, as specified in the registered Bye-Laws which do not include making application to BMC for user change in respect of a part of the society’s property. How BMC could process such applications without verifying the main tenability of such applications.
It is a matter of very serious apprehension as to why this legal angle was not brought in to play in any proceedings before the Courts while challenging the veracity of BMC’s power to modify user of any part of the Property belonged to the Society. User of the flats is the essence of quality community living in a cooperative housing society and if that is allowed to be tempered with, what is it that is left for the managing committee to manage in the Society?
[In the second Part we will attempt a prognosis of the Flat-User change in the context of the constitutional status conferred on cooperative society post Constitution ( 97th Amendment ) Act 2011 as re-affirmed by the Apex Court in its order on 19th March 2015. [(2015) 42 SCD 494 CIVIL APPELLATE JURISDICTION (ANIL R. DAVE) AND (KURIAN JOSEPH) JJ.March 19, 2015 CIVIL APPEALS NO. 3047/48/49 OF 2015 Vipulbhai M. Chaudhary … Appellant (s) Versus Gujarat Cooperative Milk Marketing Federation Limited and others … Respondent (s)