Society Members

This page will provide visitors with details on cooperative housing society members' rights and all legal issues associated with them. Issues regarding fining procedures laid down by the law, mobile towers and police clearances for maids, tenants and more have been dealt with in detail in print and online by legal counsel Gajanan Khergamker. You could contact him to avail legal services hereClick on any of the links below to read the full article:

Amend The Bye-Laws To Fine, Penalise Member
Be Vigil On Issue Of Mobile Towers!
Get Maid, Tenant 'Cleared' By Police Or Land Jail Term!

Amend The Bye-Laws To Fine, Penalise Member

By Gajanan Khergamker

In the absence of clarity of the law and a misplaced sense of authority, there’s a lot of misuse and misinterpretation of the law in cooperative housing societies all over. Across India, different states have their own Cooperative Societies Acts and Rules and, sometimes, their own Model Byelaws. The one thing that stands common among them all is the fact that they are all driven by one basic goal…cooperation.

It must be understood that bye-laws may be binding between the persons affected by them but do not have the force of statute. And, in order to customize niche needs, each and every cooperative housing society should amend their own bye-laws in strict accordance with provisions laid down by the law.

For instance, if a cooperative housing society wants to pass a bye-law that demands every member embarking on structural repairs to his/her flat to obtain prior permission of the society or deposit a said amount of money to be refunded at the completion of the work or fine someone an X amount for construction material placed in common passage, it will have to create bye-law for the same. Anything arbitrary could be extra-legal.

There is a resolution that must be passed by 2/3rd of the members present at the meeting before being submitted to the office of the registrar within two months from the date of the meeting at which it was passed. The resolution must be submitted with a copy of the relevant bye laws in force along with the amendment/s proposed to be made in pursuance of the resolution together with reasons justifying the amendment; four copies of the text of the bye laws as it will stand after amendment/s that should be signed by the office bearers duly authorised by the managing committee of the society and a copy of the notice given to the members of the society for the proposal to amend the bye laws.

There is a good enough reason for the procedure to be in place. The Managing Committee even a General Body is not authorized to pass laws. The onus of passing laws rests upon elected representatives.

Any change in the existing Model Bye-laws to further the purpose of the society can be suggested through an amendment which will have to be cleared by the Registrar who normally acquiesces to the application within two months from the date of receipt of the application or, if of the opinion that the proposed amendment may be accepted subject to any modification, suggest a modification to the society.

The approval of the amendment of a bye law depends on the Registrar’s discretion. It’s important for all cooperative housing societies to stop a civic mess by correcting smaller offences at the very onset to prevent them from snowballing into situation that go completely out of control.

A lot of cooperative housing societies create rules that include fines of Rs.1,000 upwards for each day of construction waste matter accumulated ‘outside’ or in common space and a copy forwarded ‘for reference’ to the local civic authority; any civil changes ‘even those made within’ a member’s premises to be preceded by a structural audit from a BMC-approved civil engineer only; all non-members ‘residents’ to provide a police clearance certificate; fines of Rs.1,000 upwards for each day of garbage or litter thrown in common passage with a copy for reference to the local civic authority and so on and forth.

The ‘rules’ or ‘bye-laws’ created need to be cleared by law and added as amendments to the Model Bye laws, failing which they possess little or no validity. After all, a procedure to amend the Model Bye laws has been put into place to ensure that nobody commits an excess in the process of running a cooperative housing society; the work of a society isn’t converted into a business for profit and the law isn’t subverted for personal gains or prejudices.

Cooperative housing society’s managing committee members are often charged with playing law-enforcers with selective members while concurrently, themselves committing every civic offence in the book and beyond without a heed in the world. Concurrently, rogue members tend to make life miserable for right-thinking managing committee members thereby defeating the purpose of cooperation.

However, either which way, any move to amend the model bye-law to enhance accountability and stop the rot as well as effect fining processes should be endorsed by the Registrar to further the due process. Anything beyond this is an excess of the law itself.

Apart from the health concerns directly affecting residents, mobile towers on one’s society terrace adversely affect the market value. More often than not, a handful of misinformed housing society members spurred on by unscrupulous managing committee members install cell towers on buildings without the required permissions from the said authority and mandatory consent of residents.

Sensitive to the surge in health risks associated with radiations emanating from cell towers, most concerned house-seekers avoid buying property in a residential society with cell towers. Often, residents looking to sell property are forced to slash down their prices because of the presence of mobile towers on the building.

A sizeable number of citizens have been resisting mobile towers on their buildings and in their vicinity for over years now. However, one needs to be constantly aware of decisions being taken in one’s society to be able to restrain managing committee from illegally installing cell towers without obtaining required consent…and in time. Once the job’s done and a mobile tower put in place, it’s an ordeal getting the authorities to remove the structure. However, it’s here that the Right To Information Act (RTI) comes to good use.

As a case in point, members of a cooperative housing society in Mulund have been battling a similar situation. Here, the residents have been fighting against the building’s managing committee for the removal of a mobile tower on top of the building since 2010 and, till date, there has been no respite. 

Apparently the residents of the building have made several representations to the past and present managing committees but to no avail. The problems supposedly started back in 2010 when the managing committee called for a special meeting to discuss the installation of a cell phone tower. And, even though many members opposed the idea, citing health concerns, the managing committee went ahead with the proposal.

Soon after, a neighbouring cooperative housing society filed an RTI application to the Municipal Corporation of Greater Mumbai (MCGM) questioning the legality of the cell phone tower. It was then revealed the tower was illegal and a notice was issued to the said society in April 2010 to stop work. The tower was deactivated after the notice.

But, despite the stop-work notice, the managing committee went ahead and reactivated the mobile tower with the help of the cellular company, illegally. Reportedly, the mobile tower didn’t even have a clearance from the health department. A new managing committee was formed in the society in 2011. But, they too failed to act on the mobile tower issue despite many complaints from the members. The cooperative housing society has been earning an annual rent of Rs 3.5 lakh from the telecom provider for the mobile tower.

Allegedly, the previous managing committee had written to the telecom provider but there had been some delay in bringing down the mobile tower. Even the new managing committee insists they have written to the telecom provider about the mobile tower and that they were ‘looking into the matter’. 

The civic body, on its part, insists it had taken necessary action and had deactivated the tower back in 2010. Now, apparently, it had not been informed about the reactivation of the mobile tower. And, now it cannot bring down the mobile tower due to a High Court order. 

So, while the concerned residents have been struggling for the past two years to get the cell tower removed, the managing committee insists it is ‘looking into the matter’ and the civic body had washed its hands off the issue. 

To avoid a situation like this, residents have to be very vigil and participate in the day-to-day functioning of the society and ensure a mobile tower is not set up illegally on their building. Use the RTI Act at the stage of inception itself to examine the validity of a proposed mobile tower and put it up before the managing committee and the civic body. Once the mobile tower is installed it may only take years to get it dismantled…by law.

If getting a maid for your home was a tall order, it only got worse. Now, even if you’re at your wit’s end with a maid, don’t dump her and employ the next one that knocks at your door. Surely not without the mandatory police clearance certificate that nine out of ten home-owners simply don’t bother obtaining. The police clearance certificate seems to be the only document which could protect you from the law, now!

The Criminal Law (Amendment) Ordinance, 2013 promulgated by the President on February 3rd not just amends the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. Section 370 of Indian Penal Code (IPC) that has been substituted with Section 370 and 370A which deals with trafficking of person for exploitation affects you…within the safe confines of home itself. 

Accordingly, if a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by using threat, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least seven years to the remainder of the person’s natural life depending on the number or category of persons trafficked.

And, if you thought trafficking was solely for sex, you’re way off the mark. The government has, bringing the Indian law on par with the United Nation’s Protocol to End Trafficking in Persons, given recognition to the fact that people due their poverty and illiteracy are vulnerable to new forms of trafficking. For the first time the government has conceded that human trafficking is not restricted only for sexual exploitation and has reached out to nip child labour, slavery and forced removal of organs by process of law.

Note that any claim of defence that your domestic help has ‘consented’ to work, won’t cut ice in a court of law. The recent promulgated ordinance on criminal law recognises that trafficking, willingly or forced, is due to the victim’s vulnerable condition. It also, for the first time, addresses the issue of ‘lack of choice’ for the victims making the issue of ‘consent’ completely immaterial.

Now, traffickers could face a maximum of ten years of imprisonment and upto one’s natural life in case of trafficking of a child or more than one person. This has been raised from the earlier maximum punishment of three years and life imprisonment in case of trafficking children for sexual exploitation.

Making employing trafficked persons a crime is aimed to curb child trafficking for employment. So, if you’re knowingly employing children and adults for labour, you could face maximum imprisonment for seven and five years respectively, as per the new law.

Trafficking happens to be the third largest organised crime after small arms and drugs and, in India, reportedly over a lakh children go missing each year with innumerable girls trafficked for prostitution and forced labour. The recent ordinance may well help curb the trafficking menace.

Cut to 2008. When the terror attacks occurred in Mumbai, they underlined the need for a police clearance certificate. Apparently, informers and information agents managed to bypass the mandatory police clearance from cooperative housing societies and rented flats in and around Colaba in South Mumbai for a recce of the targets.

Investigations revealed that the terrorists had lived in Colaba posing as students to “study the place” before launching the final blitzkrieg. The local police and area’s cooperative housing societies managing committees are to be held responsible for permitting foreign or Indian nationals without credentials to avail residence.

Cooperative housing societies maintain, on paper, that the local police station has to provide a No-Objection Certificate/Police Clearance Certificate to the ‘owner’ of the premises on a form/letter detailing the photo credentials of the inmates to be permitted to stay. What the police usually do is provide a stamped “acknowledgement” of the receipt of the request provided to them asking for a No-Objection Certificate/Police Clearance Certificate without actually doing any kind of groundwork to ascertain their credentials. The owner, on his part, gives a copy to the same “acknowledged” letter to the cooperative housing society whose secretary promptly issues a No-Objection Certificate to the owner to lease out the place to the tenants.

The cooperative housing society’s secretary, unwilling to take on any responsibility, passes the buck onto the owner of the premises who passes it to the police who complete the circle by giving an “acknowledgement” of the request for an NOC. The process, though legally incomplete, is conveniently considered sufficient for the purpose of leasing out the property that fetches hefty sums of income to the owner, especially if located in South Mumbai. The society on its part charges the member a hefty sum it clears through an outrightly illegal resolution passed in its general body or managing committee in the guise of ‘non-occupancy’ charges. That the police “NOC” comes without any verification is substantiated by a spurt in similar ‘verifications’ across the city for subletting flats and premises that just cannot be sub-let or leased out by law itself.

Like Jinal Cooperative Housing Society secretary M R Rao maintains, “A lot of our flats are state government flats that just can’t be leased out, sublet or given out on rent. However, on several occasions, the occupants or their proposed ‘tenants’ or ‘sub-lessees’ approach us with ‘NOCs’ from the local police station which doesn’t even bother checking from the society whether the flats/premises in question are capable of being leased/rented out in the very first place.”

Exasperated with trying to explain the issue to the police on the issue, Rao maintains, “The police tell us that they can provide a No-Objection Certificate to the occupant/tenant without an accompanying NOC from the society to indicate the premises are clear and capable of being sub-let.” The police mislead most society officials into believing they’ve followed due procedure. A Police Clearance Certificate is needed for the purpose which takes a while to generate as it entails the police personally having to visit and validate the person’s residence and authenticity.

The Police Clearance Certificate is an acknowledgement the person in question is of good character; does not have a police record and has a permanent address/local guardian to support. To get this, however, requires some leg work on the part of the local police who would be happier acknowledging the application itself and sitting on it.

The Model Bye-laws of Cooperative Housing Societies too have been amended to make the Secretary responsible for the employment of child labour within the society. That, however, does not deter the practice which continues to persist with the patronage of most managing committees. Now, things will change. 

The recent amendments to the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 will ensure that, consent notwithstanding, those guilty of employing without police clearances and checks in place will be booked for ‘trafficking’ and if it’s is a child…for a good seven years!