Leave & license for students
Atish
(Querist) 08 March 2015
This query is : Resolved
Dear All,
I have flats in co-operative societies in Pune. I believe that either the HC or SC has come out with a verdict that students cannot be banned from entry in flats in societies though their society may have made the rule.
I always register my agreements and obtain Police N.O.C.
I case there is such a verdict of the HC or SC then where could I get it from on the internet or otherwise and what section and where should I be able to obtain it from.
Will be obliged as I am dependent on these incomes.
Regards
Atish
Devajyoti Barman
(Expert) 08 March 2015
You can give students on leave and license basis. THERE IS NO REQUIREMENT FOR CITATIONS FOR THIS.
ajay sethi
(Expert) 09 March 2015
we dont provide citations
Atish
(Querist) 09 March 2015
Dear All,
I have been provided with the following. How should I take it in cnsideration without a citation. Is it at least applicable. My trust in lawyersclub is more. Kindly advise.
3/8/2015 Bachelors Tenants¬ Premises on Leave and License | Accommodation Times
http://accommodationtimes.com/bachelors¬tenants¬premises¬on¬leave¬and¬license/ 3/7 Legal / Real Estate News / Society | By Staff Reporter Bachelors Tenants¬ Premises on Leave and License Share This Tags real¬estate¬1¬150x150 By Accommodation Times News Service
1. 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.
2. 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 individual member. 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 in para ___ “
3. In view of the same, I am of the view that the Society cannot restrict the right of a member to sub‐let his Flat to a person of his choice.
4. 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. I may add that 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.
5. 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.
6. Here I may also add that 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.
7. 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?
8. To conclude I would say the spirit of co‐operation should prevail. Ref: Premises on Leave and License 7.9.13 devesan
SUPREME COURT
(CITATION : 1 C.T.J. 364)
K.J. Shetty & A.M. Ahmadi, JJ.
Sanwarmal Kejriwal
Versus
Vishwa Co-operative Housing Society Ltd., & Ors.
(C.A. No. 1369 / 90 (Arising out of S.L.P. (C) No. 7879 of 1989, decided on the 8th March, 1990)
Maharashtra Co-operative Societies Act, 1960 - section 91 (1) - Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - section 15-A (As amended by Act XVII of 1973) and section 28 - Leave and license - Tenant Co-partnership Society - Eviction u / s. 91 of the Societies Act or protection u / s. 15-A of Bombay Rent Act and / or proceedings governed by section 28 of Bombay Rent Act - Can a licensee occupying a flat in a tenant Co-partnership Society be evicted there from u / s. 15-A of the Bombay Rent Act as amended by XVII of 1973 or whether such proceedings to be governed by section 28 of the Rent Act - 1989 C.T.J.18 (SC); 1989 C.T.J.1(SC);1989 C.T.J.3 (SC) and 1988 C.T.J.717 (SC) ref upon - (Co-operative Society – Leave and license –Tenant Co-partnership Society).
The Societies Act u / s. 91 (1) confers jurisdiction on the Co-operative Court while section 28 of the Rent Act confers jurisdiction on the Court of Small causes.
In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant u / s. 15-A read with section 5 (4-A) and 5(11) (bb) of the Rent Act. The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licenses. Rights which do not flow from contracts but are conferred by law such as the Rent Act, must be determined by the machinery, if any provided by the law conferring the right.
The mere fact that there was a violation of the Bye-laws would not make any difference for it is not unknown that even in cases of breach of statute, the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant e.g., sub-letting was prohibited by section 15 but when the legislature realized the need to protect the sub-tenants it did so by an ordinance promulgated in 1959. Similarly when the legislature felt the need to protect licensees in occupation on 1st February, 1973, it intervened by enacting section 15-A. The legislative policy is quite evident from section 15-A and the protection given to licensees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye-laws. If the occupant – licensee who is a protected tenant u / s. 15-A can be evicted by the society on the plea of absence of privity between the society and the protected tenant, it would render the protection of section 15-A redundant. The situation is more or less similar to the case of an owner-landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by section 15-A of the Rent Act. In such a case notwithstanding the absence of privity of contract between the owner-landlord and the licensee-protected tenant, the latter cannot be evicted except in accordance with the provision of the Rent Act.
This is only the first page.
Should I trust it as I trust you all more.
Regards
Atish
T. Kalaiselvan, Advocate
(Expert) 11 March 2015
Dear Author, the cited judgment is more apt and suitable for your present requirement. However who demanded you the judgement while you have followed the procedures for letting out your flats on rent for student scrupulously? You have registered lease agreements, you have intimated the particulars of the tenants to the nearest police station, you are ready to follow the bye laws and other rules of the society, what else you think you are required to do anymore on this subject? Since you are already in possession of the referred citation, what is your further query on this?
Atish
(Querist) 14 March 2015
Dear All,
I thank you all for the patience in answering my query.
Sir Advocate Kalaiselvan, I thank you for your precious time giving a detailed answer.
Regards
Atish
