Premprakash
Can you help with your expert response on below question –
We have a tuition class being operated by one of the members in our Society. Kids below age of 7-8 years from the society and neighborhood comes in a batch of 5-6 at a time and once a day.
There are set of Members who have raised this as a commercial activity that cannot be carried out and needs to be stopped.
In the view of Managing Committee (Me being part of it), this tuition class does not inconvenience anyone and also does not result into any material monetary benefit to the Member holding such tuitions. More importantly, the Member taking tuitions does it out of interest to remain occupied and positively contribute to the kids in whatever little way.
Your legal understanding on the matter will be highly appreciated.
I C Naik
Occupancy right of a member of the cooperative housing society including the terms and conditions and the purpose of the use of the flat are specified in its registered Bye-Laws [Number 26/78(a) of 1984 Model, 24/78(a) of Model 2001, 24/76(a) of Model 2009 and 24/75(a) of Model 2014 depending upon the Model used to register the Bye-Laws or adopted later on].
1.Clause (a) of Bye-Law Nos 75/76/78 reads as under:
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 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, including subsequent modifications made by the Society
2.“Flat” is defined as under;
‘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, the premises forming part of a building and includes an apartment; [ Models 1984,
In subsequent Models i.e 2001 2009 and 2014 three more uses of flats are added namely coaching classes, palnaghar, and beauty parlour are added
3.The Letter of Allotment referred to in Para 1 above is to be issued to every member in the form displayed at Appendix 12 under all the Models. This form carries an important clause as under:
“The Flat/ Bungalow allotted to you shall be used only for the purposes mentioned below. (State here the purpose for which the flat / plot in question allotted/ is deemed to have been allotted.)
4.It is significant that every prospective member has to furnish an Undertaking in the Application (Appendix 1,2.23, and 24) for membership as under:
a.“I enclose the undertaking in the prescribed form (Appendix – 3) to use the flat on behalf of the minor for the purpose for which it was held/ acquired by the deceased member and that any change of user will be made with prior approval of the society.”
b.The undertaking in form as per Appendix 3 has a different text as far as the approval for other uses namely no change of user will be made by me without the previous permission, in writing of the committee of the society.
5.Members conducting tuition Classes in their flats in housing societies is quite common feature and the management is really at a loss to handle it properly without creating ill-will with in otherwise harmonious environment.
6.It will be difficult for the management of housing societies continuing their registered Bye-Laws as per 1984 Model to permit tuition classes in any of the flats as the definition of the flat in that housing society does not recognize intended use of it for imparting tuition. If it is so desired to accommodate special cases, the definition the flat will have to be adopted as per subsequent Models which require a bit long drawn procedure of amendment spread over at least 2 and a half month.
7.For the management of other societies having a Model 2001, 2009 or 2014 where a flat Owner seeks prior permission to use the flat for tuition classes it will be extremely difficult to refuse except on the ground that the proposed classes would pose serious threat to security and peace, excessive engagement of the lift which may cause a grave inconvenience to the residents, as also higher running and maintenance expenses of lift, parking problems, where classes are proposed to be run as a professional activity by a member giving on rentals to a commercial organization etc. The managing committee would be well advised to put it up before the members in the general body meeting as the managing committee does not have an express/implied power under any Bye-law to consider such request and decide. The list of powers of the managing committee in Bye-Law No 139, (Model 2001/2009) or 138 (Model 2014) does not contain any power to allow change of the use of any flat not mentioned in the Allotment letter. Even the open item of power namely “To consider and decide any other matters provided under the Act, the Rules and the Bye-laws of the Society but not expressly indicated hereinabove.” also does not seem to confer this power on the managing committee.