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 & Kashmir, to purchase property.
At times a person may not need property for his immediate use.In such circumstances, he may sublet his property to a person of his choice.Certain times, restrictions are being placed by the Apartment/Flat Owners’ Societies that Flats cannot be given on Lease & License to Bachelors, Air-Hostess, working women etc. The intention behind the same may be a noble one that there is every possibility of nuisance being created leading to disturbance 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 general, cannot object to the use of the Flat by a member or by a person claiming right through the member. The Hon’ble Supreme Court of India while delivering a Judgement in the case of Sanwarmal Kejriwal Vs Vishwa Co-Operative Housing Society Ltd., & others (Citation: 1990 Page 1 C.T.J. 364) has observed this aspect.
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., At this juncture, first and foremost, a legal notice should be issued to the Society calling upon them to allow the Licensee, Paying Guest, Bachelor, working woman, air-hostess etc., to utilize the Flat as per their choice. If there is no positive response for such legal notice, then the Member may approach to the appropriate Court of Law and obtain injunction. The member may also approach jurisdictional Metropolitan Magistrate’s Court against the Managing Committee Members of the Society for their mischief, criminal breach of trust, wrongful constraining. If such a case is filed, there is every possibility that some amount of pressure may come on the Managing Committee Members of the Society; and then they may allow the Member to utilize the premises by the Licensee/Occupant.
Another line of reasoning given by the Office bearers of Co-Operative Housing Societies, for restraining the working woman, 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 other members of the Society. Herein, one can observe and opine that, the Co-operative Housing Societies cannot act on the principle of apprehension and in case when such nuisance is caused to the Society, the Society has always an option and choice to initiate appropriate action against such member and/or the Licensee, air hostesses, working woman, bachelor, etc.
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, every one 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.
The member, for no reason or cause, is simply harassing 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 Bye-laws of the Society under the guise of ‘Voluntary contribution to the common amenities fund’.