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Instances where housing societies and residents’ welfare associations (RWAs) start issuing moral, ethical and social diktats to the residents, are not uncommon. People, who are single or lead an independent lifestyle, often bear the brunt of such unjust treatment, where housing societies often engage in moral policing. The question, is whether such rules and diktats can be framed, in the first place.
The legal stand is clear that no bye-law can be in contravention to the law of the land. The Bombay High Court, in the case of Talmakiwadi Cooperative Housing Society, held that the bye-laws of a society cannot violate the provisions of the Maharashtra Cooperative Societies Act, 1960. If they do so, they will be declared ultra vires and struck down. Any resident member, who is aggrieved by the arbitrary and unreasonable actions of an RWA, can file a suit under Section 6 of the Societies Registration Act, 1960.
Even for bachelor tenants, as long as one is paying the rent, no RWA or landlord can define who should be their guest, what they should wear, at what time they can come and leave the society and what kind of food habits one can have. However, in practice, RWAs often start defining their own rules.
Society diktats amid COVID-19
The COVID-19 pandemic has only added to the toxic behaviour of the housing societies, with diktats going beyond social and moral policing, in several cases. In Mumbai, one housing society even imposed curbs during the peak cycle of COVID-19 that residents could not invite their relatives, including the aged parents to stay with them. In the Noida market, certain housing societies stopped new apartment buyers from shifting in, even though the area did not fall under the contaminated designated red zone. Across the country, there were reports of ill-treatment meted out to domestic helps and other support staff like drivers and cleaners. The question is how many residents can afford to go against the housing society RWAs or the builder maintaining the society. The situation is even worse for tenants who may be asked to vacate their rented premises over flimsy reasons.
Suvidutt Sundaram, advocate-on-record with Supreme Court of India, points out that in such cases, there are often compromises and negotiations between the residents and the RWA, for the overall welfare of the society. However, in no way can the RWA violate individual rights of its residents, he asserts. “Residents can approach a civil court with appropriate jurisdiction, for compensatory relief against the RWA, if their rights are violated,” says Sundaram. The flipside, is that the resident may have to wage a lone battle against the RWA, which may comprise of his own neighbours, he adds.
Laws that govern residents’ welfare associations
RWAs are typically registered under the Societies Registration Act of 1960. The apartment ownership acts of various states, also clearly define that the role of RWAs, is to handle everyday affairs like maintenance and general administration of the project premises. It cannot interfere with a resident’s right to use his flat. For example, Section 14 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, states that the responsibility of a RWA, is to look after the affairs in relation to apartments, common areas and facilities. Further, Section 5(1) of the UP Apartment Ownership Act, 2010, states that an apartment owner shall have exclusive ownership and possession of his apartment. Therefore, the RWA cannot stop him from renting or selling his flat to any person, irrespective of religion, caste, race, etc.
Remedies available, when tenants’/owners’ rights are violated
Advocate Aditya Pratap of Bombay High Court, concurs that the RWA has no legal authority, to issue moral, ethical and social diktats to its residents. Any such measure, is a direct violation of the fundamental rights prescribed in the Constitution of India. Further, if an RWA starts framing unreasonable conditions, which restrict the sale or renting of flats, it will directly violate an apartment owner’s right to property, under Article 300A of the Constitution of India. “The RWA’s bye-laws and resolutions, must be limited to the mandate of governing the society’s affairs and nothing more. An RWA cannot transgress its statutory mandate under the apartment ownership act of respective states. It has to act within its jurisdiction and cannot abuse its powers to the detriment of residents or others,” says Pratap.
Ultimately, while the legal options may be in favour of the resident, who has suffered owing to high-handedness of the RWA, it is often not easy to challenge them in the court of law, as the onus of proving the illegal diktat is on the victim.
RWA by-laws cannot violate the law of the land
- RWAs have no legal sanctity to issue moral, ethical and social diktats, to society members.
- No apartment owner can be stopped from renting out his apartment to bachelors.
- No bachelor resident can be stopped from entertaining guests, including people from the opposite sex.
- If a bachelor tenant is harassed by the RWA, one has the legal right to sue the RWA and ask for compensation.
(The writer is CEO, Track2Realty)