• Can 'Residents Forum' charge more maintenance to bachelor tenants

Is it legal for a "Residents Forum" of an apartment complex to arbitrarily decide that non-family tenants (i.e. bachelors) have to pay 2.5 times more maintenance dues ?

We are 3 bachelors staying as tenants at an apartment complex in Bangalore. The "Residents Forum" has recently passed a resolution saying that non-family residents should pay 2.5 times more maintenance charges, with their intention being to "discourage bachelors". 

Effectively, they are reducing their own maintenance bill by making the bachelors pay extra.

Is this legally permitted ?
 
We are on good terms with our neighbours and have had no complaints against us.
Asked 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) non occupancy charges to be levied on flat owners should not exceed 10%of maintenance  bill .

2) apartment association cannot charge bachelors 2..5 times more . 

3) flat owner should move court challenging resolution passed by the association
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
The terms of payment will be governed by your lease deed executed between you and owner. If according to the lease deed you are required to pay maintenance charges as per the Rules of Apartment complex, then you are required to comply the same. However incase an amount is fixed with the landlord then you are not liable to pay.
Further, the rules of apartment complex or societies are more of internal matters, we suggest you speak to your landlord and resolve the issue
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
Bombay High Court
Mont Blanc Co-Operative Housing ... vs The State Of Maharashtra (Notice ... on 2 March, 2007
Equivalent citations: 2007 (4) MhLj 595
Author: B Marlapalle
Bench: B Marlapalle, J Bhatia
JUDGMENT
B.H. Marlapalle, J
 This petition filed under Article 226 of the Constitution of India prays for a writ of certiorari or an
order/direction in the like nature to quash and set aside the Government Order dated 1/8/2001 issued in public
interest under Section 79A of the Maharashtra Co-operative Societies Act, 1960 (for short the Act) thereby
directing the co-operative housing societies registered under the Act not to charge non occupancy charges
beyond 10% of the service charges (excluding municipal taxes).
2. The factual matrix leading to this petition could be briefly stated as under:
The Commissioner for Co-operative Societies, Maharashtra State, issued a Circular on 13/3/1992 laying down
that the co-operative housing societies may levy non occupancy charges upto a maximum limit of 25% of the
service charges collected from the member and accordingly the first sentence in Clause (c) of bye-law No.
45(2)(iii) to be replaced with the following words,
He shall pay non occupancy charges to the society at a rate not exceeding 25% of the service charges as will
be determined by the meeting of the General Body of the society.
This Circular came to be challenged by the petitioner-society and one of its members in Writ Petition No.
1618 of 1993 filed on the Original Side of this Court. But the said petition came to be disposed as withdrawn
as the impugned Circular was also withdrawn. In the General Body meeting of the petitioner No. 1-society
held on 4/2/1995, it was resolved that the non occupancy charges payable under bye-law No. 45(2)(c) should
be levied at Rs. 9/-per sq. ft. per month. On 9/3/1995 the State Government issued an order under Section 79A
of the Act laying down that the non occupancy charges shall not be fixed beyond 100% of the maintenance
charges levied per month and this order came to be challenged in Writ Petition No. 1398 of 1996. On
24/1/2000 when the said petition came up for hearing, the learned Counsel appearing for the State submitted
that the State Government had asked the Commissioner for Co-operation to appoint a Committee to examine
the question relating to non occupancy charges by the co-operative societies and in response thereto the
Commissioner had appointed a Committee on 19/6/1997. It was further submitted that the Committee's report
was submitted to the State Government on 31/7/1998 and it was under consideration by the State Government
and in the meanwhile the order dated 9/3/1995 issued under Section 79A of the Act and impugned in the writ
petition was not being applied. This Court (Single Bench), therefore, dismissed the petition as withdrawn with
liberty to challenge the fresh decision that would be taken by the State Government in relation to non
occupancy charges upon consideration of the Committee's report and also declared the order dated 9/3/1995
rendered as inoperative. The State Government issued the impugned order and consequently the Deputy
Registrar, Co-op. Societies, "D" Ward, Mumbai issued a Circular dated 13/8/2001 appealing the co-operative
housing societies to adopt the amended bye-laws. This Circular dated 13/8/2001 has also been challenged in
the instant petition.
3. The crux of the petitioners' challenge to the impugned order is on the grounds that the said order is against
the interest of the co-operative housing societies, arbitrary, not in public interest, unwarranted interference in
the affairs of the societies, violative of the provisions of the Act and it is illegal and void ab initio. The
petitioners mainly rely upon a division bench judgment of this Court in the case of Karvenagar Sahakari Griha
Rachana Sanstha Maryadit, Pune and Anr. v. State of Maharashtra and Ors. , which came to be confirmed by
the Apex Court in the case of State of Maharashtra and Ors. v. Karvenagar Sahakari Griha Rachana Sanstha
Mont Blanc Co-Operative Housing ... vs The State Of Maharashtra (Notice ... on 2 March, 2007
Maryadit and ors. . In short, it is contended that the order dated
1/8/2001 is against the interest of the members of the society whose views are paramount and secondly there
is no legislative policy either under Section 79A of the Act or otherwise enabling the State Government or the
Registrar to override the bye-laws of the societies duly approved by the Registrar under the said Act enabling
the General Body of the members to fix the non occupancy charges payable by the members who, for some
reasons or the other, do not occupy the residential dwellings. It is also alleged that the impugned order is
contrary to the norms laid down in respect of subordinate legislation. It is also alleged that the impugned order
may enable a member to use the flat as a vehicle for carrying out the object of earning money and thus defeat
the spirit of co-operative housing. Lastly, it is contended that though the impugned order is claimed to be in
public interest, no material is produced by the respondents to show that public interest has been served by the
same. Reliance has been placed on the statement of objects and reasons for incorporating Section 79A in the
scheme of the Act and it has been argued that the Government had no power to issue the impugned order as
the power is already vested in the Registrar under Section 14 of the Act.
4. The respondents State authorities while pointing out that similar challenge has been raised in several other
writ petitions, including Writ Petition No. 620 of 2003, has opposed the challenge raised to the order dated
1/8/2001 by filing an affidavit in reply. At the same time, the detailed affidavit in reply filed in Writ Petition
No. 620 of 2003 has also been adopted. It is stated that the impugned order has been issued while exercising
statutory powers under Section 79A of the Act in public interest in as much as the said order serves the
interests of the co-operative housing societies as well as the members. The State claims that a large number of
complaints were being received by its authorities from the members of the co-operative housing societies
alleging that by virtue of a brute majority and with a view to extract more money from the members not
occupying the flats, non occupancy charges were being imposed at whimsically exorbitant rates and on the
basis of the income earned by such members and such imposition virtually amounted to levying tax on the
income of the member. The co-operative housing societies were alleged to be exercising its authority
arbitrarily for collection of non occupancy charges causing serious hardships to the members of the
co-operative housing societies who were not in a position to occupy the premises allotted to them for their
bonafide personal reasons and who were, in fact, permitted their flats to be occupied on leave and licence
basis out of necessities. There were also complaints with regard to the demand of unreasonable amount as
transfer fee or donation from members when they sought to transfer their flats. Under these circumstances the
State Government was satisfied about the need in public interest and for the purpose of securing proper
implementation of the co-operative principles as well as to secure the proper management of the business of
the co-operative housing societies generally to take some decisions so as to issue directions in regard to the
imposition of non occupancy charges. The State Government was satisfied that for preventing the affairs of
the society being conducted in a manner detrimental to the interest of the members and to avoid spate of
litigation/complaints being received from the members of the co-operative housing societies, it was imperative
to issue directions and, therefore, to begin with, a committee was constituted for studying the issue of levying
non occupancy charges and to make recommendations so as to bring out a uniform policy. The Committee
submitted its report on 31/7/1998 and the data collected by the Committee indicated that co-operative housing
societies all over the State were charging different amounts towards the non occupancy charges and such
different rates being levied were giving rise to disputes, as a result of which the office of the Deputy Registrar
for Co-operative Housing Societies was clogged with numerous complaints relating to exorbitant non
occupancy charges. The need for intervention by the Government was also admitted in the report of the
Committee. The said report was considered and the State Government found it appropriate to accept some of
the recommendations and more particularly levying of uniform rate of non occupancy charges all over the
State of Maharashtra without linking the said charges to rateable value or the income derived by the member
concerned. As per the State Government, charging of such exorbitant non occupancy charges means unjust
enrichment of majority members at the cost of the members who had not occupied their flats. Two specific
examples have been given, pointing out that the members who were not able to occupy the flats and given on
leave and licence were being made to pay such huge amounts that the co-operative housing societies
concerned started making money/profits from such charges. It has been pointed out that Bhartiya FriFriends
Mont Blanc Co-Operative Housing ... vs The State Of Maharashtra (Notice ... on 2 March, 2007
Co-operative Housing Society Ltd. in Writ Petition No. 1374 of 2002 had collected a sum of Rs.
2,50,578/-during the period from August 2002 to January 2004 only from two out of 49 flats which were not
occupied. The remaining 47 members were not required to pay anything towards the property taxes and, in
fact, their property taxes were borne from the amounts collected from the remaining two members. This was
highly unethical, unjust and arbitrary as per the State Government. Similar was the case of the present
petitioner-society which has in all 51 flats and from the years 1999-2000 to 2003-2004 the total flats let out
were between 3 to 6, whereas the amount of non occupancy charges collected varied from Rs. 3,03,804/-to Rs.
24, 73,488/-. As against this amount the total property taxes bill of the entire society comes to Rs.
16,55,986/-per annum and at the time when the impugned order is issued the petitioner-society was admittedly
charging non occupancy charges at the rate of Rs. 9/- per sq. ft. per month.
5. The respondents State authorities claim that the impugned order dated 1/9/2001 is aimed to achieve the
following objects:
(a) The disputes between members and societies in respect of non occupancy charges were clogging the
Court's and Office of Registrar. This source of disputes comes to an end.
(b) A society and its members are stopped from profiteering at the cost of the concerned member who gives
his flat on leave and licence/rental basis. The impugned order prevent unjust enrichment.
(c) The order prevents Society from acting to the detriment of the member who gives his flat on leave andFriends
Mont Blanc Co-Operative Housing ... vs The State Of Maharashtra (Notice ... on 2 March, 2007
Co-operative Housing Society Ltd. in Writ Petition No. 1374 of 2002 had collected a sum of Rs.
2,50,578/-during the period from August 2002 to January 2004 only from two out of 49 flats which were not
occupied. The remaining 47 members were not required to pay anything towards the property taxes and, in
fact, their property taxes were borne from the amounts collected from the remaining two members. This was
highly unethical, unjust and arbitrary as per the State Government. Similar was the case of the present
petitioner-society which has in all 51 flats and from the years 1999-2000 to 2003-2004 the total flats let out
were between 3 to 6, whereas the amount of non occupancy charges collected varied from Rs. 3,03,804/-to Rs.
24, 73,488/-. As against this amount the total property taxes bill of the entire society comes to Rs.
16,55,986/-per annum and at the time when the impugned order is issued the petitioner-society was admittedly
charging non occupancy charges at the rate of Rs. 9/- per sq. ft. per month.
5. The respondents State authorities claim that the impugned order dated 1/9/2001 is aimed to achieve the
following objects:
(a) The disputes between members and societies in respect of non occupancy charges were clogging the
Court's and Office of Registrar. This source of disputes comes to an end.
(b) A society and its members are stopped from profiteering at the cost of the concerned member who gives
his flat on leave and licence/rental basis. The impugned order prevent unjust enrichment.
(c) The order prevents Society from acting to the detriment of the member who gives his flat on leave andlicence basis.
(d) It protects minority members from oppression by majority. The power under Section 79A can be used to
protect minority members.
(e) A flat is the property of a member concerned and he is entitled to return from the same as he has invested
his money for acquiring the same.
The justification to fix 10% of the service charges as non-occupancy levy is set out as follows:
(a) Society does not spend any extra money on account of member giving his flat on leave and licence or
rental basis and therefore society is only entitled to a nominal amount as non-occupancy charges.
(b) The Notification in question is a policy of the Government. The said Notification will help the
Government in solving the housing problem.
(c) The exorbitant non-occupancy charges run counter to the basic concept of co-operative movement.
(d) There should be uniformity in the entire state as regards non-occupancy charges.
6. Section 14 and Section 79A of the Act are reproduced as under:
14. Power to direct amendment of bye-laws
(1) If it appears to the Registrar that an amendment of the bye-laws of a society is necessary desirable in the
interest of such society, he may call upon the society, in the manner prescribed, make the amendment within
such time as he may specify.
(2) If the society fails to make the amendment within the time specified, the Registrar may after giving the
society an opportunity of being heard and after consulting such State federal society as may be notified by the
State Government, register such amendment, and issue to the society a copy of such amendment certified by
Mont Blanc Co-Operative Housing ... vs The State Of Maharashtra (Notice ... on 2 March, 2007
him. With effect from the date of the registration of the amendment in the manner aforesaid, the bye-laws
shall be deemed to have been duly amended accordingly; and the bye-laws as amended shall, subject to appeal
(if any), be binding on the society and its members.
79A. Government's power to give directions in the public interest, etc.
(1) If the State Government, on receipt of a report from the Registrar or otherwise, is satisfied that in the
public interest or for the purposes of securing proper implementation of co-operative production and other
development programmes approved or undertaken by Government, or to secure the proper management of the
business of the society generally, or for preventing the affairs of the society being conducted in a manner
detrimental to the interests of the members or of the depositors or the creditors thereof, it is necessary to issue
directions to any class of societies generally or to any society or societies in particular, the State Government
may issue directions to them from time to time, and all societies or the societies concerned, as the case may
be, shall be bound to comply with such directions.
(2) The State Government may modify or cancel any directions issued under sub-section (1), and in modifying
or cancelling such directions may impose such conditions as it may deem fit.
(3) Where the Registrar is satisfied that any person was responsible for complying with any directions or
modified directions issued to a society under sub-sections (1) and (2) and he has failed without any good
reason or justification, to comply with the directions, the Registrar may by order
(a) if the person is a member of the committee of the society, remove the member from the committee and
appoint any other person as member of the committee for the remainder of the term of his office and declare
him to be disqualified to be such member for a period of six years from the date of the order;
(b) if the person is an employee of the society, direct the committee to remove such person from employment
of the society forthwith, and if any member or members of the committee, without any good reason or
justification, fail to comply with this order, remove the members, appoint other person as members and
declare them disqualified as provided in clause (a) above:
Provided that, before making any order under this sub-section, the Registrar shall give a reasonable


 Having given our anxious considerations to the grounds on which the impugned order came to be
challenged, we are satisfied that the same is issued to secure the proper management or the business of the
co-operative housing societies in general and for preventing the affairs of such societies being conducted in a
manner detrimental to the interests of the members of such societies. The order does not suffer from the vice
of arbitrariness and it cannot be termed as an unfair or unjust act by the State Government so as to deprive the
societies from their legal, just and proper levies. It is a bonafide exercise by the State to avoid
litigations/disputes and to bring in a uniform levy of non-occupancy charges without linking the same to the
income derived by the concerned member who cannot occupy the premises/flat. It is also an action of the
State Government preventing the exploitation of minority members who were called upon to pay exorbitantly
high non-occupancy charges. The co-operative housing societies concerned were using the power under the
bye-laws to hike the non-occupancy charges at their whims and fancies and, in fact, the societies used this as
the source for revenue collections and profits. To bring in an orderly situation, the Government stepped in and
exercised its statutory powers under Section 79A by issuing directions to levy non-occupancy charges at 10%
of the service charges. However, in clause 3 of the impugned order there appears to be no justification in
granting exemption from non-occupancy charges if the flat is occupied by the son-in-law, brother-in-law
(sister's husband), sister-in-law (wife's sister) and sister-in-law's (wife's sister) husband. None of these could
be called as the members of the family as legally defined. At the same time, the brother's widow could be
termed as a member of the family, but the sister's husband or for that matter a deceased sister's husband
cannot be treated as a member of the family. We are, therefore, of the view that the exemption granted in
clause 3 of the impugned order cannot be made applicable to such relations of the member concerned.
18. In the result, we hold that the challenge to the impugned order dated 1/8/2001 raised in this petition is
devoid of merits and the same must fail. The petition is, therefore, dismissed. However, we clarify that Clause
3 of the impugned order regarding exemption from the payment of non-occupancy charges will not be
applicable to the near relations like son-in-law, brother-in-law (sister's husband), sister-in-law (wife's sister)
and sister-in-law's (wife's sister) husband and the same exemption shall be applicable only to the members of
the family, including a married daughter and grand children.
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
1. It is against the basic tenets of our constitution since all are expected to be treated equally and bachelors have equal right to live alongwith family members,

2. However, the said decision has been taken by the Society by passing a resolution in a meeting,

3. Arrange to get a copy of the said reslution and file an appeal to the Registrar of societies to intervene and stop such illegal collection from the bachelors,

4. If he fails to act, file a writ petition before the high Court ahainst his inaction.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0

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