This is a question that frequently arises in cooperative housing societies in Maharashtra. Societies are entitled to regulate the use of their premises and protect members from nuisance, illegal activities and misuse of flats. However, that does not mean that a society can impose arbitrary restrictions on whom a member may allow to occupy his or her flat.
The fundamental issue is the distinction between the member’s right to use and deal with the flat and the society’s right to regulate the manner in which the premises are used.
A Society Cannot Act Merely on Suspicion
A housing society may have genuine concerns about security, discipline, noise, nuisance or misuse of the premises. However, a restriction cannot ordinarily be justified merely because the proposed occupant belongs to a particular category.
For example, a society should not automatically assume that:
- a bachelor will create nuisance;
- a working woman will violate society rules;
- an air hostess will disturb other residents;
- a paying guest will misuse the premises; or
- a tenant or licensee will not respect society regulations.
Such assumptions, without evidence of actual misconduct, cannot by themselves become the basis for preventing a member from giving his or her flat on leave and licence.
The correct approach is to regulate conduct, rather than discriminate against an entire category of occupants.
If an occupant actually causes nuisance, damages common property, violates security regulations or uses the flat for an illegal purpose, the society can take appropriate action in accordance with law.
What Did the Supreme Court Say?
The Supreme Court considered the relationship between a cooperative housing society and a licensee occupying a flat in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. & Ors., decided on March 8, 1990.
The case concerned the rights of a licensee occupying a flat in a cooperative housing society and the interaction between the Maharashtra cooperative law and rent legislation. The decision is therefore important background when considering the relationship between the society, member and licensee.
The judgment demonstrates that the mere fact that a person is a licensee rather than the member himself does not automatically make the occupation unlawful.
However, it is important not to overstate the judgment. The case involved a specific statutory protection applicable to a licensee in occupation on February 1, 1973. Therefore, it should not be treated as a blanket declaration that every present-day licensee has unrestricted rights against a housing society.
The broader principle remains relevant: a society cannot simply treat a lawful licensee as an unauthorised occupant merely because the member has permitted another person to occupy the flat.
Can the Society Prohibit Leave and Licence?
In Maharashtra cooperative housing societies, the model bye-laws contemplate members giving their flats on leave and licence or otherwise parting with possession, subject to the prescribed intimation and documentation requirements.
The society’s role is therefore generally one of regulation and record-keeping, rather than granting an unrestricted veto over the identity of every proposed licensee.
A member should comply with applicable requirements, including giving the society the prescribed information and documentation relating to the leave and licence arrangement.
The society can insist on compliance with legitimate requirements relating to:
- security of the building;
- identity of occupants;
- copy of the leave and licence agreement;
- police intimation or verification where applicable;
- payment of legitimate society charges;
- compliance with society bye-laws; and
- prevention of nuisance or illegal activities.
But these regulatory requirements should not be converted into an arbitrary prohibition against particular professions or categories of people.
Can a Society Ban Bachelors?
A blanket resolution stating that “bachelors are not permitted to occupy flats” is legally questionable.
The fact that a person is unmarried does not, by itself, establish that the person will cause nuisance or violate society rules.
If a bachelor occupies a flat pursuant to a lawful leave and licence arrangement, the society should ordinarily deal with the person in the same manner as other occupants.
If the occupant subsequently causes:
- excessive noise;
- harassment;
- damage to common property;
- security violations;
- illegal activities; or
- persistent disturbance to other residents,
the society can address the actual violation through the appropriate procedure.
The society should not punish an occupant for conduct that has not occurred merely because it fears that such conduct might occur.
What About Working Women or Air Hostesses?
The same principle applies to working women, air hostesses and employees in other professions.
A person’s occupation is not, by itself, evidence of nuisance.
A society cannot reasonably conclude that a person working in a particular profession will necessarily cause inconvenience to other members.
For example, an air hostess may have irregular working hours, but irregular working hours do not automatically amount to a violation of society rules.
Similarly, a working woman cannot be denied occupation merely because she is a working woman.
Any restriction should be based on lawful and objective criteria, rather than stereotypes or assumptions.
Can the Society Take Action Against a Licensee Who Causes Nuisance?
Yes.
The society does not lose its authority to maintain discipline merely because a flat has been given on leave and licence.
If a licensee or occupant causes genuine nuisance, the society can issue notices and take appropriate action against the member and/or occupant, depending upon the nature of the violation and the applicable legal provisions.
For example, if an occupant repeatedly:
- plays loud music late at night;
- damages common areas;
- parks vehicles improperly;
- threatens or abuses other residents;
- carries out an unauthorised commercial activity;
- conducts an illegal activity from the flat; or
- seriously interferes with the peaceful enjoyment of other members,
the society should document the complaints and follow the prescribed legal procedure.
The important distinction is that the action should be based on actual misconduct, not merely on the occupant’s marital status, gender or profession.
What About Paying Guests?
A society may regulate the use of its premises and insist upon compliance with applicable documentation and security requirements.
However, simply labelling an occupant as a “paying guest” does not automatically give the society unlimited power to prevent the member from permitting occupation.
The exact legal position will depend on the nature of the arrangement. A genuine leave and licence arrangement, a paying guest arrangement and an arrangement involving transfer of possession are not necessarily identical.
Therefore, the society should examine the actual agreement and nature of occupation, rather than relying merely on the description used by the parties.
Non-Occupancy Charges Cannot Become a Penalty
One of the most important protections for members is the limitation on non-occupancy charges.
The Maharashtra Government has prescribed that non-occupancy charges in cooperative housing societies shall not exceed 10% of the service charges, excluding municipal taxes. The order applies to residential as well as commercial premises in cooperative housing societies across Maharashtra.
Therefore, a society cannot use the fact that a member has rented or licensed out the flat as an opportunity to impose an excessive financial burden.
An AGM resolution or a society bye-law cannot simply be used to defeat a binding government restriction.
Recent disputes have also resulted in cooperative authorities directing societies to reverse charges imposed over and above the permissible non-occupancy charge.
Is 10% Calculated on the Rent?
No.
The ceiling is linked to the society’s service charges, not 10% of the rent received by the member.
For example, if the applicable service charges are ₹3,000 per month, the maximum non-occupancy charge would ordinarily be calculated with reference to those service charges, subject to the applicable government directions and exclusions.
It is therefore incorrect for a society to demand a percentage of the member’s rental income merely because the member has given the flat on leave and licence.
Close Relatives and Non-Occupancy Charges
The Maharashtra Government’s order also provides that non-occupancy charges should not be levied where members induct specified close relatives into their flats, including relations such as mother, father, sister, brother, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, granddaughter and grandson, among others recognised under the applicable framework.
Thus, the society should carefully examine the circumstances before automatically imposing non-occupancy charges.
Can the Society Stop the Licensee from Entering the Building?
A society should be extremely cautious before taking coercive measures against a lawful occupant.
If the member has complied with the applicable leave and licence requirements and the occupant has a legitimate right to use the flat, the society should not resort to arbitrary measures such as:
- blocking the person’s entry;
- disabling access cards without lawful justification;
- threatening the occupant;
- preventing delivery of essential services;
- obstructing use of the flat; or
- creating unnecessary harassment.
If there is a genuine violation, the society should follow due process and take action based on the specific violation.
What Should a Member Do if the Society Refuses Permission?
A member facing an arbitrary restriction should first make a written representation to the managing committee.
The representation should clearly state:
- that the flat is owned by the member;
- that the proposed occupant will occupy it under a lawful arrangement;
- that the member will comply with all applicable society and statutory requirements;
- that the occupant will comply with the society’s legitimate rules;
- that the member will remain responsible for legitimate society dues; and
- that any alleged violation should be dealt with on the basis of evidence rather than assumptions.
The member should request the society to communicate its objection in writing, together with the specific legal or bye-law provision on which the objection is based.
This is important because a verbal refusal provides little clarity regarding the society’s actual legal basis.
Can a Member Approach the Court?
If the society continues to obstruct lawful occupation despite compliance with applicable requirements, the member may consider appropriate legal remedies.
Depending upon the facts, the dispute may involve the jurisdiction of the Co-operative Court, civil court or another competent forum.
The member may seek appropriate relief against unlawful interference with possession or enjoyment of the flat.
A legal notice can also be issued before commencing proceedings.
However, the precise forum and remedy should be determined after examining the society’s bye-laws, the leave and licence agreement, the nature of the dispute and the conduct of the occupant.
Society’s Legitimate Concerns Must Also Be Respected
The rights of members do not mean that a society must tolerate genuine nuisance.
A balanced approach is necessary.
The society has a legitimate responsibility to protect:
Security + Peaceful Living + Common Property + Hygiene + Legal Compliance
At the same time, the member has a legitimate interest in using his or her flat and permitting lawful occupation.
The best approach is therefore:
Regulate misconduct, not identity.
A society should not presume that a bachelor, working woman, air hostess, paying guest or other licensee will cause problems. If problems actually arise, they can be dealt with under the applicable law and bye-laws.
Can an AGM Resolution Override the Law?
No.
An AGM has important powers in the management of the society, but a resolution cannot override a binding statutory provision or government direction.
Similarly, a society cannot impose a financial charge that exceeds a legally prescribed ceiling merely because its members passed a resolution approving it.
The government’s 10% ceiling on non-occupancy charges is a good illustration of this principle.
Important Takeaways for Housing Society Members
1. A member can generally give the flat on leave and licence subject to applicable legal and society requirements.
2. A society should not impose a blanket ban on bachelors, working women or persons belonging to a particular profession merely on the basis of apprehension.
3. Actual nuisance or misconduct can be dealt with separately.
4. The society can insist upon legitimate documentation and compliance with security requirements.
5. Non-occupancy charges in Maharashtra cannot exceed the prescribed 10% of service charges, excluding municipal taxes.
6. Non-occupancy charges should not be confused with a percentage of the rent earned by the member.
7. An AGM resolution cannot override a binding government direction.
8. A member facing arbitrary obstruction should first seek the society’s decision in writing and, if necessary, pursue the appropriate legal remedy.
Conclusion
A cooperative housing society undoubtedly has the responsibility to maintain discipline, security and peaceful enjoyment of the premises. But this power cannot be converted into an unrestricted right to decide who may occupy a member’s flat.
A society should not discriminate against bachelors, working women, air hostesses or other lawful occupants merely because of their personal circumstances or profession.
The correct legal approach is to ensure that every occupant complies with the applicable rules and that any genuine nuisance or violation is dealt with on its merits.
At the same time, members must also respect the society’s legitimate requirements regarding documentation, security, non-occupancy charges and lawful use of the premises.
Ultimately, the principle should be simple: a society may regulate the lawful use of its premises, but it should not impose arbitrary restrictions based merely on apprehension or prejudice.
