Housing societies have been in the news for a while for discriminating on the basis of religion, community, food habits and marital status. This issue in more pertinent in certain part of our country. Most common issue that crop up in every society is whether to allow student tenants or not. Before we proceed with the article, we would like to clear that we are not discussing the disadvantage of renting out to Bachelor and Student tenants. We are bringing up the legal stand on this issue and why you should understand the legal aspect before enforcing this decision.
Can a housing society bar its members from letting out their flats to students, bachelors, spinsters and foreigners? The legal answer is NO. Let us explain in detail;
Every citizen of India and non-citizens, have been granted fundamental rights under the Indian Constitution, to stay (reside) anywhere in India, BUT except in prohibited and restricted areas. None of the Apartment Acts across India have provisions for “Prohibited & Restricted” areas in the Society premises. Also, they don’t provide for restrictions on “Tenants”, then “Bachelor Tenant” cannot be prohibited (banned) from residing in a Society, even if for whatever reasons.
[Edit] Since this post went live, we received this image from a home buyer. A recent fatwa by Noida based developer.
Legal standing of a Society
The Society is classified as a “Service Provider”, under the Consumer Protection Act, which is further reinforced from several Judgments of the Consumer Court. The Sole-Responsibility of a Society, is to provide “Common Services & Amenities”, to its members, which also lawfully means “Common Services & Amenities” to the Tenants of its members.
The housing societies can indeed frame their own laws. There are broad guidelines, or bye-laws, that every housing society adopts when it is registered. These rules and regulations govern the day-to-day functioning of the housing society and are crucial to its smooth running. Though it is the legal right of the owner to lease his property, the housing society in which the flat is situated, too, has a say in it. “Individual societies are legally empowered to deny tenancy based on their bye-laws. In many cases, such bye-laws are interpreted in a certain manner in order to achieve this. However, they have no constitutional right to do so.
Any regulation which infringes on the fundamental rights of an individual can be challenged in the court of law. “The housing society regulations don’t have the same stature as that of a law. Every Indian citizen has the right to reside anywhere in the country and discrimination is not allowed on the basis of religion, caste, sex, eating habits or marital status.
Case 1: This was probably the first time that flat owners have revolted against the bias, calling it a violation of their fundamental rights. A Mumbai Base Co-op Housing Society had passed a resolution that owners can rent out flats only to families. All members who had let out flats to bachelors and spinsters were asked to get them vacated in a month time. The agenda circulated at the society’s special general body meeting said bachelors, spinsters and foreigners residing in the society were causing a nuisance. There has been a case of suicide, a few foreigners were involved in a sex racket, inadequately dressed females and males gather in the open area of the society at odd hours, it said. The resolution was approved by a majority vote. Aggrieved by the society’s decision, a resident, who had let out two flats to bachelors, challenged the resolution in the district consumer forum Mumbai.
District Consumer Forum later declared the resolution illegal and lifted all such bans. Same was upheld by State Consumer Forum.
Case 2: In case of Sanwarmal Kejriwal vs. Vishwa Cooperative Housing Society, Hon’ble Supreme Court upheld the owner’s right to keep tenant of his choice.
Case 3: In Case of St. Anthony’S Co-Operative, Bombay High Court came out with strong observation and rejected the amended bylaws by which the Society wanted to restrict membership to a particular religion.
Even if your society take the decision to debar the tenants with majority’s resolution, such resolutions are not maintainable in court of law. We advise you to take an informed decision.