Registered housing society and open space
Rajiv Nisar
(Querist) 07 March 2015
This query is : Resolved
Hello,
What is the definition of open space within a registered housing society in suburban Mumbai? Can the space below the "chajja" of a commercial premises/shop be considered as open space to be used by general public? Will it not be an obstruction for a retail business?
I know my query is very basic; but for lack of knowledge I am unable to raise in-depth questions on this. Any help will be highly appreciated.
Thanks,
Rajiv
Kishor Mehta
(Expert) 08 March 2015
Sir,
According to MODEL BYE – LAWS OF COOPERATIVE HOUSING SOCIETY(Tenant Co-Partnership Housing Society ) (2014 edition, the definition is as under:
168. The Society shall not let out or give on leave and license basis or permit any subletting, any open space available under the Staircases, Terraces/Open ground/Lawns/Club house/ Common Hall etc. to any person whether the Member of the Society or not, for any purpose whatsoever.
a. All open /common area meant for use of all Members for eg. staircase, steps, landing areas, parking spaces, 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 /Competent Authorities.
Good Luck,
Kishor Mehta
Dr J C Vashista
(Expert) 09 March 2015
Although it is an academic query Mr. Kishor Mehta has explained the question (not query) i.e., "what is the definition of open space....???"very well, I appreciate and agree.
Rajiv Nisar
(Querist) 10 March 2015
hello all those who have gone through my query. This is not an academic query. I have a commercial property and as with other shop members, have been charged with Rs2,000 per month being added to monthly charges as fine for usage of "open space". The open space in question is the space below the chajja of the shop. if this space below the chajja of the shop is considered as open space, then tomorrow the society can claim to use this for society function etc which would be a hindrance to the business as customers won't have access to the shop. Does that mean that the space below the chajja of the shop immediately in front of the shop is actually an open space?
T. Kalaiselvan, Advocate
(Expert) 11 March 2015
Your query is nominal, genuine and natural. You are absolutely right that tomorrow if the society is using this open space it will be a hindrance for he customers accessing the shop. But please be informed that just because the open space if public, the society cannot indulge in such activity which will be objectionable and depriving the rights of general public as well. You consult a lawyer in the local and then see what type of query is this.
Rajiv Nisar
(Querist) 14 March 2015
Thank you Mr Kalaiselvan. Not sure if you can give me a bit of more idea. Can the society charge such an amount to tge Shop ownsr for usage of space below the chajja? The society is about 45 years old and we own the shop since the formation of the society. This is the first time that the current committee has come up with this wierd reason for charging us shopwners and that too an amount of 2000 per month which is more or less eequal to the normal monthly maintenance charges.
Thank you again......
Rajiv Nisar
(Querist) 14 March 2015
Anyone who can give a bit more idea, please? Very much appreciated......
Guest
(Expert) 14 March 2015
Any reason for inviting more ideas by asking, "anyone who can give a bit more idea," like a class teacher to his students?
Can you clarify, what is your real doubt about the views of the experts or what is your real problem?
Better discuss your real problem, rather than expecting the experts to hold tutorials for satisfying your academic queries.
A question of common sense arises, when you have not paid the price for the space more than registered in your name, why unauthorised encroachment on the open area for your commercial use to add profit to your pocket? Why society should not charge for the usage of extra space than allotted. Open spaces are meant for common usage by one and all, not for commercial use by any individual.
Rajiv Nisar
(Querist) 14 March 2015
Thank you Mr Dhingra for your response (though sounds a bit rude). Your comment about encroachment of open space being available for common use contradicts the fact that such a space immediately in front of the shop bekow its chajja would render inaccessibility to the business if society were to claim it as open space. tomorrow they may even decide to add reason to charge claiming that the customers are making use of the "open space" by standing there - would this sound reasonable? I am not asking you to respond to this, but the way you answered seemed very rude and your wrong presumption of me questioning the experts. I have got the best answer so far from Mr Kalaiselvan and highly appreciate it. I am now closing this query.
Thank yoy Mr Dhingra and please accept my apologies for being frank on my views to your response.
Guest
(Expert) 14 March 2015
Mr. Rajiv Nisar,
Although you aimed your post on me, but indirectly desired me not to respond, when you stated, "I am not asking you to respond to this, but the way you answered seemed very rude and your wrong presumption of me questioning the experts." So, irrespective of whether or not you treat it as rude reply, I feel it proper to respond to your query.
Of course, you would definitely not like the reply, which is not favourble to you and you can term that as rude one, if real unfavourable picture is brought before you through that.
But, rest assured, I did not post my reply just to attract your appreciation, but to make you aware of the reality when you just asked "definition of open space" without discussing your real problem. I am sure, had you brought the real picture through your query by making a mention that the chhajja stands extended beyond your own property, even Shri Kaliselvan would not have treated your query to be genuine and natural.
However, if chhajja is not extended beyond your approved construction, you may like to confirm now to make me tender my apology.
You can very well notice general tendency of some people to extend their premises even to the edge of road by not leaving even any walking space for common people. I have got an example, where a person's approved construction was approximately 1/3rd, while the rest of about 2/3 construction was encroachment in two phases on municipal land by the side of road, that too even under the electric power lines.
But, even in your own case, if you have made encroachment, why you should shy to pay rent for that, when not the cost of the space covered by the chhajja?
Rajiv Nisar
(Querist) 14 March 2015
Hi Mr Dhingra, I guess I was too early to judge you based on your way of your first response - please accept my sincere apologies. The reason I started with just a basic query is that I was traveling and based on my parents update, I immeditaely popped the query here. I had assumed that if I got the right answer from my query, then it would be either "Yes, the committee is right" or "No, the committee is wrong".
And please do not consider my response as a method to get you to tender any apology......
I am just an average civilian with not much knowledge about the various laws in favor or against the common man and hence I decided to approach this forum to identify if it was worthwhile putting time and money to legally approach the committee or simply accept they are right and pay the penalty.
Thanks again to your valuable input.
Hemant Agarwal
(Expert) 03 August 2015
1. The Flat /Shop owners is entitled to lawfully use ONLY that area which is defined in the Flat /Shop purchase-agreement.
2. In BMC areas, the BMC allows the three feet forward open space, to used by Shop /Office, for tentative hours, BUT without any solid enclosures.
3. Open-Space cannot be used by ANYBODY, including the Society or whosoever, for "ANY" purposes, whatsoever. It has to be kept vacant under the MMC Act and the Fire Act.
4. The Society is not the owner of the "open-space" and there CANNOT be an purchase agreement of the open-space in favor of the Society. Hence, the Society CANNOT LAWFULLY levy any penalty /charges /whatever for usage of the open space and neither will it regularize or legalize the usage of open space after levy of penalty /charges. IF at all any penalty/charges "IF" levy'able, THEN the jurisdiction to recover penalty /charges vests with the BMC and not the Society.
Keep Smiling .... Hemant Agarwal
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