Ashok Patawari
Our C.H.Society is situated at Kandivali, Mumbai, one of our society member who is a school teacher is taking Tuition classes, most of the society members are against allowing Tuition classes in society.
Can we stop him from taking Tuition as ours is a Residential Building.
I C Naik
In view of increasing costs of premises required to carry on one’s vocation Residents in cooperative housing societies are tempted to use their residential accommodation for making extra income as dispensary, or consulting room, or clinic, or flour mill, or coaching classes, or palnaghar, beauty parlourh, yoga classes etc,
Members would be divided as to a firm view if these activities can be allowed to continue and generally the members do not wish to come in to bad books of such minority members. Such vocations cause stress on the resources of the Society the power, water, security besides disturbances to the residents.
(1) Definition of a flat the Bye Laws is itself prime source of confusion as can be seen from the following definition.
a. Bye Law No 2 (vi) reads ”Flat’ means a separate and self contained set of premises used or intended to be used for residence, or office, or show-room, or shop, or godown and includes a garage, or dispensary, or consulting room, or clinic, or flour mill, or coaching classes, or palnaghar, beauty parlour, the premises forming part of a building and includes an apartment
b. The Maharashtra Ownership Of Flats (Regulation Of The Promotion Of Construction, Sale, Management And Transfer) Act, 1963 (MOFA) also defines flat in the same way in Section 2(a) as reproduced below:
“Flat” means a separate and self-contained set of premises used or intended to be used for residence, or office, show-room or shop or godown for carrying on any industry or business and includes a garage, the premises forming part of a building and includes an apartment.
(2) What people fail to understand is the definition do not lay down the use of a flat that a member can put to.
(3) As per section 04 of MOFA the promoter (before accepting advance payment or deposit) is required to enter into agreement which is to be registered and this agreement requires to list out a whole lot of particulars including in sub-clause (ix) a statement of the use for which the flat is intended and restriction on its use, if any.
(4) The Building Regulations of BMC Act require a builder to furnish building plan inter alia stating the purpose for which the building is intended and whether for carrying on any trade or business. [Sections 337/338]. Any change at a later date requires prior approval of BMC as per Section 347B reading as under.” No person shall without the written permission, of the Commissioner or otherwise than in conformity with the terms of such permission use or permit to be used any building or any part of a building originally constructed or authorised to be used for human habitation as godown, warehouse, workshop, workplace, godown, etc., factory, stable or a motor garage.
(5) As for Bye Laws look at the following Bye Law No 77 carefully.
a. The member, person/firm who had purchased the flat under an agreement under Section 4 of the Ownership Flats Act, or acquired interest in the flat on transfer of the same by existing member with the previous permission of the society, shall be deemed to have been allotted the same flat by the society subject to the terms and conditions set out in the letter of allotment in the prescribed form, issued to the member including subsequent modifications made by the society to it.
b. No member of the society shall use the flat deemed to have been allotted to him under (a) above, for a purpose other than that mentioned in the letter of allotment, without the previous consent in writing of the Committee
(6) The Tuition classes can be allowed or not depends on the facts as examined with reference to above. Generally in cooperative housing society such activities which could amount to a vocation or profession are not encouraged.
Remedy
The general body meeting should prescribe a penalty for breach of Bye Law No 77(2) and after that Secretary should issue a letter to stop Tuition Classes. If the member does not discontinue the classes take the matter in to another the general body meeting for approval of the penalty after giving the member an opportunity to present his case. Look at the Bye Law No 166
The meeting of the general body of the society may prescribe penalties for different breaches of the bye-laws of the society. The Secretary of the society, under instructions from the Committee, shall bring to the notice of the member concerned, the breach/breaches of the bye-law/bye-laws committed by him. If the member persists on continuing the breach/breaches, the Committee shall give the notice to the member to show cause as to why the penalty should not be inflicted on him for breach/breaches of the bye-law/bye-laws. The general body meeting, after considering the say of the member and after giving him hearing, may levy penalty at the rate fixed by the meeting of the general body of the society, maximum penalty of Rs 5000/-in a particular year.”