MUMBAI: In a relief to a flat owner keeping short-term paying guests, two months after National consumer commission backed a
South Mumbai cooperative Housing Society on government leased land in disallowing paying guests,
Bombay high court, directed the society to “not take law into its own hands by using force’’ to have them removed.
The interim HC order by Justice Mridula Bhatkar is likely to attract interest in countless flat owners on similarly leased premises. The society, one of 3000-odd on government leased plots in Mumbai alone, had in April 2018 won a case before the National Consumer Disputes Redressal Commission upholding its decision to disallow foreign paying guests in Sadhana and Sahakar, two buildings located in prime area in Churchgate. Its victory was based on an opinion of former city collector Sampada Mehta that paying guests cannot be kept in buildings on government leased premises.
The Bharatiya Friends Cooperative Housing Society and its member, Mahesh Mehta, a 68-year-old retired financial consultant who resides in Sadhana are caught in a four year long bitter dispute over the right to host paying guests, especially international guests, who, the Society had barred on the grounds that they could be unsavoury people. In May, the society acting on the commission’s order, issued notice to its member Mehta with a two week deadline to send his three international guests packing or face action.
The guests are being hosted through a popular online portal. One of them was a US-based professor and author, in Mumbai for two months to research for his book about three international port cities.
In 2007, the Central Tourism ministry introduced its ‘incredible India bed and breakfast; homestay policy’. In 2008, the Churchgate society “to ensure the security of children and senior citizens’’ set out conditions at its annual general meeting for members to keep paying guests. It allowed only widows or members aged 65 whose children reside elsewhere to keep vegetarian girls or married couples as paying guests with prior permission from managing committee. In 2013, the society said Rs 1000 per day fines be imposed on violation of its PG rules and in 2014 it prohibited its members from keeping any foreigners, altogether, as paying guests.
With his society imposing a penalty on him and “blocking and interrogating” his foreign paying guests which he had kept, Mehta launched legal battles against his society on several fronts, in almost parallel proceedings, in 2014. He moved the south Mumbai consumer district forum in July-August 2014 alleging unfair restriction on a member, as well as the cooperative court to challenge the societies resolutions.
The society’s argument, as recorded by the court, was that bye-laws were violated and of “foreigner paying guests being drug peddlers, believe in free sex and may be terrorists.’’
The matter had traversed through district and state consumer commission before reaching the national commission in 2016. The commission in New Delhi had wanted to know whether keeping ‘paying guests’ –domestic or foreign--in a flat constructed on leased land, allotted by the state to a housing society, contravenes the terms of lease deed which allows its use for ‘private residential purpose only’ barring allowances to medical and legal practitioners or a consular service to use one room as an office or consultancy.
The collector in March relied on a 2007 government resolution which says ‘tenant/subtenant doesn’t include Paying Guest’ to state that PGs were not permitted in such societies. The Consumer Commission bench of Rekha Gupta and AK Thakur then held that the housing society had committed “no deficiency in service’’ as keeping PGs was “against existing government policy.’
Mehta moved HC in June, for relief alleging harassment and apprehending forcible removal of his guests by society “misusing the collector’s erroneous opinion and commission’s order solely based on it’’. His plea was in a pending petition filed by the Society against a 2016 order of cooperative appellate court in his favour that allowed him to host PGs, in his four-bedroom apartment, without a no objection certification from the society’s managing committee.
Counsel for the housing society, Ranjeet Thorat, however, contended that the “Collector is likely to take action against the society as the building stands on leased land, which prohibits the keeping of paying guests.’’ He also said that the national commission had set aside a 2016 order of the
Maharashtra commission which had permitted Mehta to keep paying guests and also dismissed his complaint about compensation.
But, after hearing Mehta who argued in person and Thorat, Justice Mridula Bhatkar directed that “Society shall not take law into its hands by using force but it shall follow due process of law.’’ The petition will come up for hearing in due course.
The cooperative court first in 2015 and then in February 2016 its appellate court held that by such hosting by Mehta, “had not violated Society bye-laws, as contended by the Society.’’ Mehta was in May 2014 also issued a two-year license, renewed again in 2016, by Central government under its ‘Incredible India Bed and Breakfast; homestay policy’ to let out his flat. “It is also for the convenience of tourists who come from abroad,’’ the cooperative appellate court had said.
In July 2016, however, the HC admitted the society’s challenge to the cooperative courts’ interim orders and stayed its operation. The society’s case was that “members were very insecure and worried about strangers entering society premises at odd hours.''
In February 2016, meanwhile, the state consumer commission also ruled in favour of the flat owner. In a reasoned order, the state consumer commission bench of Justice AP Bhangale and SS Sawarkar allowed Mehta to continue being a host to guests, both domestic and international, which he was getting through the online platform, as “means to earn his livelihood’’. It had held that the society’s denial of permission to keep guests was “deficiency of service and unfair restriction on the flat owner’’ and ordered refund of penalty, if any collected by society, at 18 per cent per year. The state commission’s order remained in force till it was set aside in April 2018 by the National consumer commission.
The society had, meanwhile, in a separate petition in 2016 filed before the Bombay HC challenged, with no success, the validity of Central Tourism Ministry’s bed-n-breakfast, homestay guidelines for not requiring a prior no-objection from the managing committee of housing society. The HC bench of Justices RM Sawant and AS Gadkari last June refused to entertain the society’s petition after recording that an assurance by Mehta to submit details of all PGs to the society takes care of its apprehension. The HC order strengthened the flat owner’s case of hosting paying guests, domestic and foreign.
Mehta has since filed a review plea before The national consumer commission to have its order withdrawn as he contends that it is based on a “completely erroneous opinion’ of the city collector contrary to the prevalent practice and also against a couple of high court verdicts in Simla and Delhi, which permit homestays to “promote international brotherhood.’’ His application says, “no rights whatsoever get created in favour of a paying guest in the property whether on Government land or private. A Paying Guest is not a Tenant, Sub-tenant, Lessee, Licensee or Sub-letee and his stay in the premises is completely at the pleasure and mercy of the host.’’
Mehta has also written to the Revenue and Law departments to reverse the collector’s opinion which he said could “lead to chaos’’ in a city where there are 3,000 housing societies on collector’s land in Mumbai and around 22,000 across Maharashtra
“The actions of the Society have made my life hell during the last three months, by making me run around from pillar to post for support.’’ The review plea is yet to be heard and the revenue department last month wrote to Mehta that his request is under consideration.
