NEW BYELAW 170 COULD HELP STOP VIOLATIONS, BUT CAN BE MISUSED TOO

NEW BYELAW COULD HELP STOP VIOLATIONS, BUT CAN BE MISUSED TOO

We draw your attention to bye-law no. 170(a) – a new provision that says that if any society member is found to have encroached on common areas, or used the flat for any purpose other than that for which it was allotted, “shall pay an amount equal to five times the monthly maintenance charges, per month with retrospective effect for the period for which such violation is existed.”Sir, there are High Court judgments upholding individuals’ right to peacefully carry on professions from their own premises. Many self-employed professionals peacefully working from home e.g. Insurance Agents, Lawyers, Architects & interior Designers, Chartered Accountants, Translators, Tuition Teachers, etc. will be badly hurt by implementation of Bye-law no. 170(a) by their societies..

“The common property only means that it belongs commonly to all of us members and not selectively to them only, right?” he quips. It isn’t exactly easy to run a cooperative housing society and keep a check on the misuse of common property by a handful, which positions itself as being more equal than the others.
According to the New Model Bye Laws, ‘Common Areas and Facilities’ means

a) the land on which the building is located;

b) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair- ways, fire escapes and entrances and exits of the building;

c)  the  basements,  cellars,  yards,  gardens,  parking areas (unless not specifically sold), and storage spaces.

d) the premises for the lodging of janitors-or persons employed for the management of the property;

e) installations of central services such as power, light, gas, cold and water heating, refrigeration, air conditioning and generators.

f) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;

g) such community and commercial facilities as may have been provided for, and

h)   all   other   parts   of   the   property   necessary   or convenient to its existence, maintenance and safety, or normally in common use.

NEW ADDITION AIMED TO STOP VIOLATIONS
The New Model Bye-law 170 (a) lays down that all open / common spaces meant for use of all members for eg. Staircase, steps, landing areas, parking areas, lift, corridor and such other spaces cannot be occupied by any member for his own use.

The use of such areas shall be restricted to the cause for which these are meant.

Any member found to be violating the above condition by encroachment shall have to vacate the encroachment and further he/she shall pay an amount equal to five times the monthly maintenance charges per month for the period for which he/she has encroached such spaces and further members must not carry out any constructions, structural changes over and above the sanctioned plan without prior permission of the society and concerned municipal authorities.

Also, members must only use the flat / unit for which it was meant / sanctioned.  Any member violating the above directives shall pay an amount equal to five times the monthly maintenance charges, per month from retrospective effect for the period for which such violation
existed.

MOVE SEEMS HARSH BUT IN RIGHT DIRECTION

New Model Bye-law 170 (a) that permits fining a violating member five times the monthly maintenance charge per month for the period of ‘encroachment’ may be a move in the right direction but is perceived as harsh by most and one that’s likely to be misused drastically by draconian managing committee members.

Failure to keep a check on arbitrary action by managing committee members who are given wide discretionary powers to fine could lead to an abject failure of the very objective itself.

The law, in itself, is a strong enough deterrent for encroachers or members who conveniently change the use for their premises.

So many cooperative housing society members are known to ‘operate’ from their homes as well as ‘live’ in their shops and for years on end.

For these, Bye-law No 170 (a) works like magic.

They will be bound to pay up huge fines that will deter them from repeating the offence otherwise conveniently ignored by the civic authorities who’d ‘pocket’ the fine when approached each time, and look the other way.

The concept on encroachment itself is a bit vague though.

Feeding strays for instance should not qualify strictly as ‘change of use’ as the act in itself is not commercial or residential in nature and does not accord any new or change in use to existing ones.

In view of the new amendments in the law, cooperative housing societies will need to educate their members on New Model Bye-law 170 (A) on encroachment.

Instead of processing show-cause notices to each and every ‘encroaching’ member, through a general body meeting, the society could lay down on a pre-decided period within which affected members could ‘regularise’ the usage of their premises in sync with the original permissions granted failing which they initiate the penalising processes.

That way, those involved in change of use could avail enough time to rectify their positions in time.

Concurrently, they will not be able to hold the managing committee responsible for losses suffered due to legal action initiated after the stipulated period.