Lessons From the Law
In many places, bachelors are found to be very cordial. Also, renting to bachelors is more beneficial to the flat owner as they are willing to pay more by splitting the expenses among themselves. But housing societies in cities often rule that no landlord can give a house to an unmarried man or woman on the pretexts – ‘Bachelors have a bad experience. Flat owners generally have a perception that if a family lives in the flat, they will take better care of the flat. Moreover, there will be no complaints from society and neighbors
As a result, many intelligent, educated and sound background people are also mistreated and humiliated when they come to the city for education or employment. So the question arises that if the society watchers will not let them stay based on many prejudices, where will these people go? The number of hostels is very less and not enough for job aspirants coming to cities like Mumbai, Bangalore, Hyderabad, Pune, Thane and Chennai.
Are these rules legally binding? So no. No one can stop him or her from renting a flat on the basis of caste, religion, creed or gender if one has police verification and all legal documents. Members of society have no right to moral policing. Norms cannot be made by assuming the behavior of a select few as the norm. In simple terms of law, the property is owned by the society. As a result, they have no say over the type of tenant allowed to live in the society.
It is the owner’s discretion and right to rent out his property, subject to appropriate terms and conditions prescribed by law. Only that he should not rent out his premises for commercial or illegal activities. Every member of the society has the right to rent out his tenement at will and the society cannot restrict bachelors or spinsters. The condition of taking prior permission of the society to grant flats on ‘live and license’ basis has been removed from the new model bye-laws. Only that the members are required to inform the society about the flat to be rented by submitting a copy of the duly registered tenancy agreement and a copy of the details of the tenants submitted to the nearest police station.
Society may charge ‘Non-Occupancy Fee’. Society cannot act arbitrarily. Housing associations can make their own rules. There are elaborate guidelines or bye-laws that every housing society adopts when it is registered. These rules and regulations govern the day-to-day operations of the housing organization and are critical to its smooth running. Individual societies have the legal right to refuse tenants based on their bye-laws. In many cases, such bylaws are interpreted in a particular way to achieve this. However, they have no constitutional right to do so. The flat owner is only bound by the tenancy agreement and its terms and conditions. In case of breach of any clause or any rule of that rental agreement, only in that case, the society has the right to ask to vacate the flat, otherwise no one has the right to interfere with renting out his house to someone.
What can be done if society blocks the rental of the house?
The Maharashtra Co-operative Societies Act has no provision for ‘prohibited and restricted’ areas within the society’s premises. If the society violates the rules and regulations and abuses the flat owner, then a complaint application can be sent to the Registrar of Co-operative Societies to cancel the registration of the society. He can also take legal action and obtain an injunction restraining the society from evicting the bachelor by filing a civil case. The senior office bearer of the society may be asked to produce a court order for eviction by showing the agreement. Before filing a case a notice may be given to the society asking ‘why appropriate legal action should not be taken against its illegal acts and appropriate compensation claimed for the violation of the fundamental and constitutional right to live in peace wherever it abides by law’. In case of more physical and mental harassment, harassment, fighting, tension, abuse, beating, a written complaint can be filed with the local police. And the Court can obtain an injunction against such illegal eviction.
Society bye-laws or constitutional rights, which one will prevail?*
The Society has been classified as a “service provider” under the Consumer Protection Act, which has been reinforced by several judgments of the Consumer Courts. The sole-responsibility of the society is to provide “common services and facilities” to its members, which also legally means “common services and facilities”.
Articles 14 and 15 of the Indian Constitution provide for equality before law. Discrimination on the grounds of religion, race, sex, place of birth or any of these is prohibited under this section. Every citizen and non-citizen of India, as per the Constitution of India, is provided with the fundamental right to reside (resident) anywhere in India, except in restricted and restricted areas. None of the Apartment Acts across India have any provision for “prohibited and restricted” areas within society premises. Also, they do not restrict “tenants”, even though a “bachelor tenant” cannot be prohibited (banned) from living in the society for whatever reason.
Can society bye-laws or bye-laws be challenged?
In the case of Samwarmal Kejriwal v. Vishwa Cooperative Housing Society, the Hon’ble Supreme Court upheld the right of the owner to retain a tenant of his choice. Similarly in the case of St. Anthony’s Co-operative, the Bombay High Court ruled against the society and rejected the amended bye-laws by which the society sought to restrict the membership of persons of a particular religion.
Any rule that violates a person’s fundamental rights can be challenged in a court of law. Housing society regulations do not have the status of law. Every Indian citizen has the right to live anywhere in the country and no one is allowed to discriminate on the basis of religion, marital status, caste, sex, food habits or marital status. There are cases where tenants have filed, fought and won many cases. These rules are not laws made by societies, so if an individual feels that his rights as a citizen have been violated, he can be challenged.
It is imperative that people seek legal recourse if they experience any form of discrimination or harassment. Such small steps will go a long way in strengthening the rule of law in the country and achieving the goal of ‘Housing for All’.
– Advocate Sanjay Pandey is a practising lawyer at Mumbai High Court and can be reached at (a[email protected])