Illegal Encroachment of Common Area

Illegal Encroachment of Common Area under Bylaws No. 169A in Cooperative Housing Societies: Legal Remedies and Penalties under MCS Act

Published on CSLawship.in
Author: CSLawship Editorial Team

In housing societies governed by the Maharashtra Cooperative Societies Act, 1960 (MCS Act), Rules 1961, and Model Bylaws, encroachment on common areas is a serious violation that can lead to legal and financial consequences for the errant member.

Applicable Legal Framework

MCS Act, 1960 – Sections 73, 146, 147
MCS Rules, 1961
Model Bylaws (latest revision) – Especially Bylaws 168, 169, 169A
Fire Safety & Municipal Laws under Maharashtra Fire Prevention and Life Safety Measures Act and BMC Act

What Constitutes Encroachment?

Encroachment includes unauthorized:

Construction of grills/shades in the passage or gallery
Storage of personal goods e.g., gas cylinders, vegetable bags, etc.
Blocking fire exits or access paths
Capturing passageways, window chajja or open space for personal use

In your case, the member has:

Installed grills and shade in the common gallery
Stored gas cylinders and personal items
Justified it as a solution to garbage issues from upper flats

This action violates fire safety norms, society bylaws, and municipal rules.

Step-by-Step Action for Society

1.Serve First Notice (already done):
Refer to Model Bylaw 169A; give the member 7 days to remove the encroachment.

2.Final Warning:
If the encroachment is not removed, issue a final notice with a deadline and notify that penalty action will be initiated.

3.Initiate Penalty under Model Bylaw 169A:

If the member fails to comply:

Society may charge up to five 5 times the regular maintenance charges for the encroached area.

This penalty continues until the encroachment is removed.

4.File Complaint with Authorities:
If the member still refuses to comply, the society may:
Lodge a formal complaint with the Deputy Registrar of Cooperative Societies under Section 146/147
File a complaint with the BMC Ward Office for unauthorized construction
Report to the Fire Brigade for gas cylinder or fire safety violations.

When Can Society Apply 5 Times Maintenance?

The society may impose 5x maintenance under the following conditions:

Encroachment persists despite written notice and deadline as per Model Bylaw 169A
No stay order or legal exemption from any authority
Society has documented the encroachment and retained photo/video evidence
Society has followed proper due process Notice → Reminder → Final Notice
Society should pass this notice of non-compliance by the member in their monthly managing committee meeting.

Note: This penalty is not arbitrary and must be applied only after following the above procedural safeguards.

Where to Lodge External Complaints

1. Deputy Registrar of Cooperative Societies Ward or your jurisdiction
2. BMC Assistant Engineer Maintenance & Encroachment Cell
3.Fire Department Local Station or via online complaint
4.Police Station (only if member gets violent or abusive)

Sample Grounds for Complaint: