Right of equality is a fundamental right. If a person has money, he had got every right, subject to restriction of acquiring property in Jammu and Kashmir, to purchase property.
At times a person may not need property for him immediate use. In such circumstances, he may sublet his property to a person of his choice. Certain times, restrictions are being placed by by the Societies that Flats cannot be given on Leave and License to Bachelors, Air-hostess, working women, etc. The intention behind the same may be a noble one that nuisance should be caused to the resident members of the Society. However, one has to appreciate the fact that if a person resides in the Flat or some third party resides that would be the choice of the individualmember. The Society, in my view, cannot object to the use of the Flat by a member or by a person claiming right through the member. The Honorable Supreme Court while delivering a judgment in the case of Sanwarmal Kejriwal v/s. Vishwa Co-operative Housing Society Ltd. & Others (Citation : 1990 PAGE 1 C.T.J. 364), has observed this.
Let us examine the situation where the Society restrain the occupant from entering the premises or create hurdles with regards to use and occupation of the premises by the Licensee, paying guest, etc. In my view, first and foremost, a legal notice should be issued to the Society calling upon them to allow the Licensee, Paying Guest, Bachelor, working women, air hostess, etc. to utilize the Flat as per their choice. If there is not positive response, then the member may approach to the Court of laws and obtain injunction. The member may also approach Metropolitan Magistrate’s Court against the Managing Committee Members of the Society for mischief, criminal breach of trust, wrongful constrained. if such a case is filed, there is every possibility that some amount of pressure may come on the Managing Committee Members and they may allow the members to utilize the premises by the Licensee / Occupant.
Another line of reasoning given by the Office Bearers of Co-operative Housing Societies for restraining the working women, bachelor, air hostesses, etc. from utilizing the Flat as Licensees as paying guest is that if such persons are allowed to use and occupy the Flat, they may not have respect for the laws of the land. They may create nuisance, which will be detrimental to the interest of the members of the Society. I may add that Co-operative Housing Societies cannot act on the principle of apprehension and when such nuisance e is caused to the Society, the Society can take action against the member and/or the licensee, air hostesses, working women, bachelors, etc.
It is common knowledge that in number of Societies the laws of the land are violated more rather than comply with in letter and spirit. How many Societies can vouch for the fact that the members of the Society have not encroached upon the open space, there is no misuse of Niche, drying space, there is no water tank in the Flat, there is no box grill. Practically, everyone is aware that the laws in Society are violated on a number of occasions. We have ridiculous laws, which stipulates that the person handling the cash of the Society is supposed to give security to the Society as if such person is likely to run away with the negligible amount of cash in his possessions as compared to the cost of the Flat, which legally belongs to the Society and the member gets limited right to use and occupy the Flat.
The member is harassed by not allowing his Licensee to utilize the Flat. If he deems fit, he may also take up the above said point while issuing legal notice by highlighting the fact that in a number of Societies, lakhs of rupees are demanded by the Society at the time of transfer of Flat in excess of the provisions of the Bye-laws of the Society under the head of voluntary contribution to the common amenities fund. Let us ask to our own conscious. If this amount is given by the outgoing / incoming member voluntarily or it is a sort of extortion. Similarly, it is crystal clear that the Society cannot charge more than 10% of Service Charges under the Head Non Occupation Charges. However, jealousy and greed have no bond. There are Societies, which charge huge amount when Flats are sub-let ted. The line of reasoning given is that the member is minting money. Why should Society not get the legitimate share on such occasions?
Ref: Premises on Leave and License 7.9.13 devesan