Ketan A. Satikumar
I am member of Society situated at Dahisar – Mumbai and currently staying out of India. I have rented my flat to one of the Corporate Houses. Society in the latest AGM passed one resolution restricting members from letting out their flat to any corporate houses and further, if it is given to family then the size of the family should not be more than 6 or 8 members.
In the same AGM, to the best of my knowledge society has also constituted new committee. I am not sure whether committee members have signed the bond M-20. I am currently studying the entire facts and in the process of obtaining notice of AGM and copy of resolution. If required, I am thinking of fighting for my rights legally.
Further, I don’t know whether society has adopted the latest bye-laws of not?
Request you to kindly provide guidance in the matter related to my rights as a member and can I challenge the resolution passed by majority of the members. Also provide the process of fighting it legally if it is applicable in my case.
I C Naik
1.It is presumed that your housing society has registered Bye-laws as per 2001 Model. Sub-letting a flat is permissible under Bye-Law No 43. It provides that a member may, apply to the society, of his intention of sub-letting of his flat and on receipt of the previous permission in writing of the Committee, sub-let or give on leave and license basis or care-taker basis his flat or part thereof or part with its possession in any other manner under 4 circumstances one relevant being QUOTE: Where the member is required to go out of the area of operation of the society for a long duration on account of exigencies of service or business or on account of the prolonged illness UNQUOTE
2.Its Sub-Section 2 lays down certain pre-conditions to allow sub-letting the relevant being this namely : “(ii) he has furnished the application for nominal membership of the proposed sub-lettee, licensee, care-taker or possessor in the prescribed form”
3.You have been sub-letting your flat to a body corporate over past several tears. Now in view of AGM resolution you are afraid you will not be allowed to renew the sub-letting, which you have been doing in terms of the following Proviso to Bye-Law No 43(2)(iii)( c ) reading as under:
QUOTE: Provided that while permitting sub-letting, giving on leave and license or care-taker basis flat or part thereof or permitting parting with its possession in any other manner, the Committee shall restrict the period thereof to 11 months, which may, on the request of the member be extended for similar period or part thereof from time to time. UNQUOTE
4.In a fight which seems imminent, one argument is that this resolution has prospective effect and in view of the Proviso quoted in 3 above, other things remaining unchanged, you continue to be entitled to renewal of sub-letting. For new applicant it may be binding subject to it being held as within the power of A G M to bar corporates from getting nominal memberships in the Society.
5.Since the general body meeting is final authority (Bye-Law No 111) having put restrictions on members to sublet a flat to Corporate houses which can be otherwise sub-let to individual families having less than 8 family members, it is necessary to examine if A G M has the power to put such restrictions.
a.Section 72(1) reads QUOTE: Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the by-laws. UNQUOTE
b.Bye-Law No 111 reads QUOTE: Subject to the provisions of the Act, the rules and the Bye-laws-laws of the Society, the final authority of the society shall vest in its general body meeting, summoned in such manner as is specified in this bye-laws.
6.Use of any authority by A G M ( i.e. Resolution passed in A G M) is liable to review as to whether it did not violate any of the Bye-laws or Rule of the M.C.S. Rules 1961 or provisions of the M C S Act 1960 and if it did, it is inoperative. That takes us to find a provision governing power of members of the Society which disables A G M to take decision which results in to curtailing a privilege of members to sub-let his flat to corporate body or to refuse membership to such body.
a.A body corporate is eligible to become member (including nominal member) under Section 22(1)(b) of the M C S Act 1960.
b.Section 23 (1) lays down that ” No society shall, without sufficient cause, refuse admission to membership to any person duly qualified there for under the provisions of this Act and its by-laws”
c.Bye-law No 20 provides that “A sub-lettee a licensee or a care-taker, or occupant, who/which is eligible to be a nominal member and who shall apply through original member for such membership in the prescribed form, applicable to him/it, along with entrance fee of Rs. 100 may be admitted as such member by the Committee.
d.Applications for nominal membership are to be disposed off by the Committee as provided under Bye-Law No 65(a)(i) and 65(e) within three months. Clause (f) requires that, ‘ If the Committee or the General Body, as the case may be, rejects any applications, it shall record, in the minutes of its meetings, the reasons for rejection of the applications”
e.Clause (g) requires that “The Secretary of the society shall communicate the decisions of the Committee or the General Body, as the case may be, to the applicants concerned within 15 days of the decisions of the Committee or the General Body, as the case may be, with reasons, where the applicants are rejected by the Committee or the General Body, as the case may be.
7.When renewal of your sub-letting is refused on account of resolution of the A G M the Committee is bound to record that reason in communication of rejection of application made under Bye-Law No 43(1).
8.Having complied with requirements of the Bye-Laws a member sub-letting a flat cannot be compelled to reject requests for sub-letting a flat, to a person who is fully eligible to become a nominal member and willing to adhere to all conditions imposed under the Bye-Laws.
9.If members in the general body meeting want to disqualify corporate body to acquire nominal membership, they have to amend Bye-Law No 43 expressly prescribing such disqualification in accordance with the procedure of amending the Bye-Laws as per provisions of the Act, Rules and Bye-Laws.
10.Critical requirement of amending Bye-Laws is registration of such amendment as required under Section 13 of the M C S Act 1960. Its Sub-Section (1B) provides: QUOTE: No amendment of the bye-laws of a society shall be registered by the Registrar under this section or in the case of the bye-laws which are deemed to have been registered shall have effect, if the amendment is repugnant to the policy directives, if any, issued by the State Government under section 4.].
11.No State Policy is known to have been issued as regards eligibility to membership as the the Act provides for an open membership under Section 23 (1) quoted above at Para 6 b. above.
12.Amending Bye-laws in this behalf is unlikely to go through.
13.Rejection of your application to sub-let the flat to corporate house may be contested by complain to
a.The Registrar under Bye-Law No 175 A( c ) – Refusal to admit to nominal membership
b.The Cooperative Court under Bye-Law No 175 B(a ) Resolution of the general body meeting
14.Before making a complaint to the Court a member need to give notice to the Registrar as required under Section 148(3) of the Act QUOTE: No prosecution under this Act shall be lodged, except with the previous sanction of the Registrar. UNQUOTE The Registrar usually writes to concerned housing society if it was willing to settle the matter outside the Court and at times it works.