Should a multi-storied apartment complex association register itself under Societies Act?

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Governance

A reading of the Karnataka Apartment Ownership Act 1972 (KAOA, otherwise called Act no 17 of 1973 - click here) very clearly brings out the fact that that is what is relevant to multi-storied apartment complexes. And, that is what builders are generally following, as required of them as per the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (otherwise called Act no 16 OF 1973 - click here).

However, there is no authority specified under KAOA to 'register' an association, though the 'Registrar of Co-operative Societies' has been named as the "Competent Authority", but with powers and responsibilities not clearly defined.

Because of this lacuna in the KAOA, there have been suggestions from lawyers to register multi-storeyed apartment complexes under the Karnataka Societies Registration Act, 1960 (KSRA, otherwise called Act 17 of 1960 - click here), where the powers of the Registrar have been fairly well-laid out, including of the appointment of an 'Administrator' if required.

A closer reading of the KSRA however clearly shows that it pertains generally to 'Literary, Scientific, Charitable and other organisations'. The relevant Cl 3 is fairly specific in these respects. Nowhere is there even a mention of 'apartment complexes'. Consequently, if still pursuing registration under this Act, the association will require to change its name to include words like 'welfare', etc, and also amend the 'aims & objects' in its by-laws to include pursuit of some of the activities listed under the clause.

Further, registering under this Act will also enjoin a lot of additional responsibilities on the Managing Committee, like filing of annual returns along-with certified copies of Income & Expenditure statement, Balance Sheet, as also payment of filing fees amounting to 0.2% of the 'transaction value' in the Income & Expenditure statement. Even as it is, it is generally difficult to find competent people to take up office (generally honorary positions) in such associations, and adding more burdens, is only helping deter them further. The new requirement of the Govt of Karnataka that all correspondence and documentation will in future have to be in Kannada, is not making things any easier.

But, the proponents of the suggestion go on to argue that it helps bring about greater discipline, therewith accountability, and therefore it is worth the effort. Whatever, as a very senior lawyer in the city (who also was the Charter President of the association in one of the earlist multi-storied housing complexes, where he resides even today) opined, "no administration can be more transparent than that by a democratically elected 'Managing Committee' functioning according to the guidelines prescribed by a vigilant General Body of members".

Comments

update

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On reading this post, a friend linked me to this, published by Mr Ravi Kumar, Provisional secretary, Association of Mysore Apartment Societies (AMAS), and Member, Mysore Grahakara Parishat, which makes interesting reading.

I got through to him on phone, and he told me that their members' meeting the Secretary, Co-operation, GoK, in Bangalore, in March, '08, in this connection, didn't quite solve the problem, and therefore, they addressed a letter to the Principal Secretary, Urban Development, GoK, early this year, which has yet to be responded to.

His belief is that since the 'competent authority' named in the Act is refusing to get involved, an association does not enjoy legal status even if the Deed of Declaration, made out as per the Act, has been registered with the jurisdictional Sub-Registrar (of documents). Many reputed lawyers that I have spoken to, however, content that the Act only calls for 'filing' of the copy of the registered document with the competent authority, and whether that's done or not, the process of registering (with the sub-registrar) gives the association the legal status.

Whatever, no one is currently aware of even a single case where a court has refused to acknowledge an association as a legal entity on account of this.

I referred the matter to Mr Manivannan, who has now offered to Mr Ravi Kumar to pursue the matter at Vidhan/ Vikas Soudha, in his official capacity.
 

Muralidhar Rao

any updates on this?

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 Hi Murali sir.  Did you learn anything more about this? Thanks for bringing this to this forum.  Our apt association is in the process of getting registered and they seem to be pursuing the societies act as recommended by the lawyer. This is useful information.  Now since all laws have "rules", where would one get a copy of the "rules" for the KAOA?

update

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@ Sanjay

A good friend of mine, Mr C N Kumar, raised a querry on the subject under RTI. With the concerned departments passing the buck from one to the other, the matter has now landed up with the Karnataka Information Commission. Check on KIC website with case reference KIC PTN 3658 2009. The next hearing has been posted for March '10.

Our builder gave us a set of rules conforming to the Act, and we have built on it ourselves.
 

Muralidhar Rao

Thank you Murali sir

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 The KIC website has made for entertaining reading.  In short, the law enacted in the 1970s has fallen through the cracks?!!  Amazing.  I hope this RTI request is a catalyst to resolving this issue.  The KAOA is so much clearer and should be a nice tmeplate for dispute resolution within apts.

some movement

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The lacuna in the Act (KAOA 72) pertaining to "there being no authority specified under KAOA to 'register' an association, though the 'Registrar of Co-operative Societies' has been named as the 'Competent Authority', but with powers and responsibilities not clearly defined" should be addressed very soon, pursuant to the order passed by the Karnataka Information Commission on 20.03.10, the relevant excerpts from the same reading as below:

8. He (Sri S. Renukaradya, PIO & Under Secretary and Co-ordinator, Urban Development Department (BBMP), Bangalore) also suggests that now it is clearly indicated that the matter is under the administrative control of the Urban Development Department and they would take action to frame the rules for implementation of the Act. He has also stated it would be appropriate to examine the Model Apartments Bill of the Government of India and review the present Act before framing of the rules for implementation of the Act.
9. Commission directs the Respondent to ensure that the proposed amendments in the model bill are examined by the Government and after incorporation of the suggested amendments in the bill, if any, to the existing Act, the rules are framed with the assistance of Department of Parliamentary Affairs and Legislation at the earliest for effective implementation of the Act.


To accelerate the process, perhaps another RTI query can be raised as to the status on the issuance of the necessary amendments.

Muralidhar Rao

Charge for filing audited balance sheet for associations?

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The website says that the charges for filing audited balance sheet is Rs.100 for every 1 lac rupees, that is 1%. Your article mentions 0.2%. Can you please share the source for your number. It will help us file our association's annual balance sheet with the registrar's office?

Still wrong

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 Rs.100 for every 1 lac rupees, that is 1%. 

No, its 0.1%... which is still not equal to 0.2%

clarification

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0.2% of the 'transaction value' in the Income & Expenditure statement

0.1% on the income side, and 0.1% on the expenditure side - that's what a CA gave me to understand.

 

Muralidhar Rao

RTI query filed

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With over 8 months having passed since the issue of the order by the Information Commission, on the 18th Nov, I filed an RTI query with the UDD, requesting information on the action taken with regard to correcting the lacuna in the Act.

Response awaited.
 

Muralidhar Rao

response received, but - - -

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I received a response to my query well within the time limit from the UDD. But, the response, in essence, says that they are in the process of collecting inputs from BMRDA, BDA, BBMP, and other government departments, on the connected 'Model Apartment Bill' received simultaneously from the Centre, and as soon as they are received, they will be issuing a comprehensive notification incorporating all the changes.

So, I am now sending a response worded as below, with a copy to the KIC:

While acknowledging with thanks the receipt of your letter no 517/ 2010 dt 13.12.10, in response to my query dt 19.11.10, in the subject connection, can I request for a timeline by which the corrective notification can be issued, since it is already more than 9 months since the KIC order was passed. Because of the lacuna, decades together have already passed keeping housing associations in the limbo, posing all kinds of problems. Further delays are only going to exacerbate matters.

As such, if it is going to take further time to collect inputs on the Model Apartment Bill, from the various government agencies listed by you, perhaps you need to look at issuing one notification now covering the KIC order, and another after the required inputs have been received on the Model Bill.

I look forward to your response in the matter at the earliest.

I have, of course, sought a response in English - check this
 

Muralidhar Rao

Is there a way for me to join in this?

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I want to write a note supporting your question.

 I am sitting at this very moment with a copy of the the KAOA act book (thanks Murali sir for pointing me in the right direction).  Reading through the act, it is an outrage as to (a) How some sections of the act are so vaguely worded, especially on the registration of the apartment association under KAOA (b) How the govt has not bothered to implement the act or rules properly. This is the most appropriate act for apartment associations in Bangalore to register under.  Yet, a large percentage of associations are registered under the societies act because of (a) and (b).  Then office bearers of such associations, who are normally unpaid volunteers (including yours truly) grapple with issues that this act empowers them to address!

Reminds me of the Motor Vehicles Act. Public input was collected more than a year ago.  How long does it take to improve a law that is applied everyday and write a new one, when the shortcomings are well known.

 How long does it take to

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 How long does it take to improve a law that is applied everyday and write a new one, when the shortcomings are well known.

This is what MLA's & MP's are supposed to do, attend legislature, pass laws & amendments. Instead they go around promising to clear your garbage and lay more and more asphalt

the original queries

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The text of the original queries filed by Mr C N Kumar:
 

  1. What steps have been taken to effectively implement the provisions of the Karnataka Ownership Flats ( Regulation of the promotion of, construction, sale, management and transfer) Act 1972?
  2. Please provide name and address of the officer appointed under Section 5 and engineer under Sec 7(4). If no one has been appointed the reasons for the same and the likely date by when such persons will be appointed.
  3. Please provide copy of Rules made under Section 16 (1). IF Rules have not been made the likely date by which such Rules will be framed.


 

Muralidhar Rao

let's network with all RWA's

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@ Sanjay

I can courier you a hard copy of the letter I will be sending to the UDD. May be, you can follow that up with a letter from your association.

Ideally, we need to network with all other RWA's acroos the city, and even the state, to collectively tackle such issues. May be that could be a project - any ideas how to further it?

Muralidhar Rao

Sounds good. I will definitely have one sent out

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 Hi Murali,

  I will be happy to have one sent out from our association.  I can also talk to some of our neighboring associations (we have an umbrella assn of assns.)  The other suggestion would  to go through some of the portals that host various associations nowadays to further the campaign.  These include apartment adda, common floor and apna complex.  This is a very important law that needs to be celaned up once and implemented rigorously.  It will make a huge difference to the running of these complexes.

Will send you my postal address on email.

PS: On a side note, there was an incident in an apartment complex which is part of our umbrella where the original landowner who owns a large number of units and has not been paying maintenance kidnapped the maintenance manager, had him beaten up and dropped off.  With the guys political connections, it was not easy to get the FIR registered and now politicians are showing up to "mediate".

See stories here and here.

@ Murali again

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 I was just looking at the questions filed by Mr. C. N. Kumar.  The KAOA book I got does indeed have a set of rules for Karnataka Ownership Flats (Regulation of the promotion of construction... etc.) Rules 1975.  So what did the response of the govt in the KIC hearing mean when they said rules have not been framed?

barking up the wrong tree?

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@ Sanjay  - I had been asking Mr Kumar for the exact queries he had raised from quite sometime, since it was not available on the KIC site either. Now, finally, when he forwards it to me, I realise his queries pertain to Act 16 of 73, and not the KAOA Act (Act 17 of 72 - see the first para of my opening post), in which we are interested. Now, we may have to start from scratch.

May be, we should meet sometime to work out strategies. And, perhaps make it into a PRAJA project involving more RWA office-bearers.

 

Muralidhar Rao

May not be a bad thing

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It may not be a bad thing that Mr. Kumar raised questions on Act 16 of 73.  As I read it, this act is also vital for Act 17 of 72 (KAOA) to be properly implemented, since it places certain obligations on the builder.

The KAOA itself, by my reading is a poorly worded act, though many of the clauses are very important for the proper functioning of apartment associations are part of it.  Compared to the societies act, there is no doubt in my mind that KAOA is the way to go.  It is in the interest of all apartment associations to register under this act, yet very few do because of the procedural difficulty.

Coming back to Act 16 of 73 and the associated rules, below is what I found very interesting wrt to the KAOA (there are other very powerful clauses as well).The selling of apartments by builders / promoters is regulated by the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972. Also known as Act No. 16 of 1973.

The builder / promoter is supposed to declare right at the beginning to customers as to what sort of organization of flat owners is envisaged for the project.

 

Section 3 of the act deals with General Liabilities of the Promoter. Section (3)2h states that the promoter shall

(3) 2h. State in writing, the precise nature of the organization of persons to be constituted and to which Title is to be passed, and the terms and conditions governing such organization of persons who have taken or to take the flats.

The Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1975 further states in Section 5 : Particulars to be contained in the agreement for Sale

(5) d  The precise nature of the organization to be constituted of the persons who have taken or are to take the flats or apartments.

The builder is obligated to take steps to form an association within a reasonable time period as covered by the sections below

 

Section 10 of the act is titled Promoter to take Steps for formation of cooperative society or company. It states

(1)    As soon as a minimum number of persons required to form a co-operative society or a company, have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society, or as the case may be, as a company; and the promoter shall join, in respect of the flats that have not been taken, in such application for membership of a co-operative society or as the case may be, a company.

(2)    Nothing in sub-section (1) shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this act.

In addition, the KOF Rules 1975 provide for a timeline for these actions under section 9, Period for Submission of Application for Registration of Co-operative Society or Company of Flat Purchasers

Where a Co-operative Society or Company of Persons taking the flats is to be constitute, the promoter shall submit an application to the registrar for registration of the co-operative society, or company as the case may be, within four months from the date on which the minimum number of persons required to form such organization have taken flats. Where the apartment takers propose to submit the apartments to the provisions of the Karnataka Apartment Ownership Act, 1972 by executing Declaration and Deeds of Apartment as required by that Act, the promoter shall inform the registrar as defined in the Karnataka Cooperative Societies Act, 1959 as soon as possible after the date on which all the apartment owners (being not less than five)have executed such Declarations and Deeds of Apartment.

So, a builder serious about having a community under KAOA will start collecting Declaration from residents (Form B under KAOA rules) right at the time of sale or registration.  yet very few builders do so making the registration of the Deed of Declaration after sale of the flats difficult and complicated.

Finally, the act also specifies that the builder has to transfer the right, title and interest in the land and buildings to the association within a prescribed or agreed period. Again, this is very important.

 

Further, section 11 of the act is titled : Promoter to convey title etc., and execute documents, according to agreement

A promoter shall take all necessary steps to complete his title and convey to the organization of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat-takers his right, title and interest in the land and building and execute all relevant documents therefor in accordance with the agreement executed under section 4 (agreement of sale) and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.

Further, under the rules section 10 – Period for conveyance of title of promoter to organization of flat purchasers – If no period for conveying the title of the promoter with the organization of flat purchasers or the apartment owners is agreed upon, the promoter shall (subject to his right to dispose of the remaining flats, if any, execute the conveyance within four months from the date on which the co-operative society or the company is registered or as the case may be, the association of flat takers or apartment owners is duly constituted.

 

I agree that these laws have to be properly implemented, with suitable amendments, clear procedures, rules, enforcement as well as public education. Let us discuss how to take this forward Murali sir.

project for the New Year

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@ Sanjay - Looks like you just discovered Act 16 of 73. Since our developer had complied with the requirements under the Act, largely, things are generally in place for us. The only problem we have is on account of the lacuna in the KAOA (or rules there under) regarding the empowerment of the 'competent authority'.

Yes, let's take it up the fine-tuning of the Acts/ Rules pertaining to housing societies as a PRAJA project in the New Year, and possibly set up a consultancy cell thereafter.
 

Muralidhar Rao

Oh yeah, just discovered!

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Our developer did not comply with certain sections of the act and hence now he is acting funny about the deed of declaration.  The KAOA language makes it worse because his lawyer can argue either ways depending on his interpretation.

I also have reason to believe that we are not alone.  Many so called good builders play loose and fast with some of these laws.

Delhi High court Judgement about implementation of Apartment Act

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 It is appreciable to note the efforts put by Mr.C.N.Kumar, Mr Ravi Kumar, Mr Muralidhar Rao and others for getting implemented the two acts {KAO Act,1974 and KOF(Regulation of the promotion of construction, sale management and transfer) Act 1972}. Mr. C N Rao is successful in getting an order from the Information Commissioner of Karnataka directing the State Government to take steps for implementing the above two acts legislated nearly 35 years ago. Still there is NO end result or visible efforts from the State Government. Such acts were framed in most of the other Indian states but the same was not being implemented by any of the  State Govenments in true spirit for which objects legislation was enacted. . There is the requirement of certain amendments to bot the acts and relevant rules framed under the acts. This process of amendment is time consuming and it is left to the prerogative of elected members. So it is not possible to judge the time that may be required to amend the acts and rules. There  is certain progress in State of Maharashtra and they have already amended the act  thrice and they are taking steps for proper implementation of the acts. These acts were first framed in Maharashtra State and the acts framed by the Maharashtra Government was the base for the other states to enact similar laws in their states.  One can see these relevant amendments made by Maharshtra government in their acts and rules by google search. Meanwhile the Delhi High Court has given direction to Delhi Administration through it's judgement in a case O.S.Bajpai Vs The Administrator (Lt. Governor) on 28-05-2010 for implementing the Apartment acts and rules already framed by them pending passing of corrective amendments to them. Mr. O.S.Bajapi is a senior advocate of Delhi High Court. It is a very good judgement which can be brought to the notice of the Information Commissioner of  Karnataka. He may also be requested to give direction to Karnataka Government to implement the act as per the directions given in the Judgement of Delhi High court, pending the amendment to acts and rules. You may go through the entire judgement by searching the judgement in www.indiankanoon.org.   It is also my suggestion to the members to have a meeting of NGOs / volunteer who are already involved in getting implemented the above two acts in Karnataka, so that a future course of action may be chalked out for speeding up the implementation of the acts for the benefit of thousands of apartment owners in Karnataka State.

Ajit N.Naik

OK, time to start on this

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Murali sir,

  Are you set to start on this?  Let us plan and get started - filing RTIs, outreach to communities and RWAs etc.  Whatever it takes.  These laws have to be amended as necessary and implemented.
 

Once you give your OK to get started, I will start a project for the KAOA - Clarifications and Amendments Project on PRAJA.

-Sanjay

 

yes, let's get a move on

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@ Sanjay  -  Yes, let's get a move on. Today, I shall send out the response to the UDD (under RPAD), as worded here ( I was to do it a month back).

Muralidhar Rao

Great, I have a few questions

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I will frame and post them here by the weekend and then, post discussion, file with the UDD

status quo

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Received a response dt 18th April from the UDD (to my query dt 27th Jan), stating more or less the same thing as was stated in their letter of Dec '10, that they are in the process of collecting inputs from BMRDA, BDA, BBMP, and other government departments, on the connected 'Model Apartment Bill' received from the Centre, and as soon as they are received, they will be issuing a comprehensive notification incorporating all the changes.

From the time of deposing before the Information Commission, in March '10 (over a year back), the UDD officials have been saying the same thing. Perhaps, it now calls for some concerted action on the part of RWAs.

Muralidhar Rao

RTI on Registration of Apartment Owner's Association.

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Dear Shri Murali and Shri. Sanjay

I understand that at present the registration work of Associations/Societies under Karnataka Societies Act, 1960 is transferred to Co-operative Department since 01-08-2008 as per Government Order No. G.O KE/152/MNM/2008. Earlier it was handled by Stamps & Registration Department.

I spoke to the Concerned department in Co-operative Department and made enquiries about Re-registering the Apartment Owners Associations which are already registered under the Karnataka Apartment Ownership Act, 1972 and the connected Karnataka Ownership Flats (Regulation-----------Transfer) Act, 1972 by registering the Deed of Declaration along with the Bye-laws of the Association. He emphatically told me that the Apartment Owner's Associations already registered under KAO Act, 1972 and KOF (Regulation-------------& Transfer) Act, 1972 are not being registered under Karnataka Societies Act, 1960.

But there are instances where Apartment Owner's Associations already registered under KAO Act, 1972 and the connected KOF Act,(---) 1972 were also registered under Karnataka Societies Act, 1960 though it is legally not correct. The KAO Act, 1972 and KOF(--------) Act, 1972 are special Acts enacted for the purpose of providing for ownership of an individual apartment in a building and make such apartment heritableand transferable property and to provide for various matters connected therewith ( like  maintenance, repair, replacement, improvement, painting & colouring of Buildings and  common areas and facilities ). There are few Advocates and Chartered Accountants who are misguiding Apartment Owner's Associations to again register their Associations under the Societies Act, 1960. Based on such advices few Associations are passing resolutions in AGMs for registering their Associations under Karnataka Societies Act, 1960 without comming out from the Karnataka Apartment Ownership Act, 1972. Some Associations also pass resolution to follow the rules of BOTH the Acts. An association can not be controlled under 2 acts for its routine managements. THERE IS TOTAL CONFUSION ON REGISTRATION ISSUE.

Is it possible to take a written guideline from the Head Office of the Co-operative Department (Societies Registration section) stating that the Apartment Owner's Associations already registered under Karnataka Apartment Ownership Act, 1972 need not/ should not/ can not be registered under Karnataka societies Act, 1960? Is it possible to file RTI to the concerned department in view of the confusion among the members of various Apartment Ownership Associations in Karnataka? What is the procedure to be followed to file such RTI application? Can PRAJA take this issue with the Head Office of the Cooperative Department?

Can PRAJA take up the issue of filing an RTI to know the Competent Authority under Karnataka Apartment Act, 1972?[ The same procedure followed by Mr. C.N.Kumar in the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale,Management and Transfer) Act, 1972]

Ajit N. Naik

FLATS/APARTMENTS - THE ONGOING DISCUSSION

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The views, expressing doubts, appehensions, etc., in paryticular on 'anamolies' stated to have been observed  in the governing enactments, are, in my perception, not well founded or logical. It is my conviction for long, based on sound reasoning, rather well reasoned viewpoints on these aspects, the truly concerned people, it is earnestly recommended , should insightfully go through and take a serious note of, a whole lot of material in public domain; e.g. in  the popular websites - 'Common Floor' and 'Adda' ; besides, of course, a few published articles, wherein the legal implications of the 2 enactments - governing the 2 distinct types - 'flat' and 'apartment' have been gone into and analysed in great details, for the benefit of one and all- to be precise, those who have vested interests but endowed with an outlook focused on - 'public interest',- in this context, the 'common interests' of the entire community of 'buyers' / 'consumers', not those of any limited group.

@vswami - the point being?

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Welcome to Praja Mr. Swami. Could you calrify on what are were trying to say above?  I could not figure it out from links on common floor or adda.  Could you shed some light on what you mean in more detail... what is it that is not well founded or logical? Could you point those out?

Also, it would be good to know your background  Have you lived in an apartment? Have you been in the managing board of one?  Are you a lawyer? Thanks.

 

@sanjay v YES, I AM A RETIRED

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@sanjay v

YES, I AM A RETIRED PROFESSIONAL .BUT  ADMIT TO HAVE HAD NO HAND ON EXPERTISE IN 'PROPERTY LAW'. THE ONLY SAVING GRACE, IF COULD BE DUBBED RIGHTLY SO, OF COURSE - I HAVE BEEN LIVING ONLY IN APT./FLAT FOR NEARLY 5 DECADES NOW; COUP[LED WITH THE MISFORTUNE OR HAVING HAD THE BITTER EXOERIENCE OF BEING AN OFFICE- BEARER - OF KNOWN DIFFERENT KNIDS- DURING THE LONG PERIOD. HOWEVER, YOU SHOULD, RATHER I EXPECT YOU TO, REALISE, THOSE SHOLD MAKE NO DIFFERENCE AT ALL  FOR THE INFO. YOU NEED.

JUST TO MAKE YOU AWARE, I AM ONE OF AGE 74 YEARS, AT THE FAG END OF MY JOURNEY ON EARTH.

TO ADD, AS ALREADY SUGGESTED (IN MY FIRST POST SENT - BUT NOT POSTED), MAINLY TO SAVE MYSELF FROM THE HASSLE OF TIRESOME EXERCISE OF RETRACING / REPEATING WHAT ALL MY INPUTS (SPREAD OVER SINCE 2001) YOU COULD EXPECT FROM ME,  YOU ARE WELCOME TO  HAVE ACCESS TO MY BLOGS ON THE RELATED SUBJ. 'REALTY' (BUT THAT IS NOT THE ONLY SUBJECT YOU WILL FIND COVERED)-

@VSWAMINATHAN-VSWAMINATHAN-SWAMILOOK.BLOGSPOT.COM);  

ALAO, MAKE IT A POINT TO GO THROUGH THE WHOLE LOT OF MATERIAL MADE AVAILABLE THERE.

AS REGARDS, 'C F' AND 'ADDA'. , YOU REQUIRE TO LOOK FOR MY INPUTS @ FORMATION OF ASSOCIATION.

LET ME ALSO TRY AND LOCATE.

IS THERE A WAY FOR ME TO SEND ATTACHMENTS - AS THAT MIGHT PROVIDE A SIMPLER SOLUTION, IN CASE I DECIDE TO SEND ANY ?

 

PS: INCIDENTALLY, let me have your profile ; for, i can venture to corrspond with anyone at your end, provided I am sure that I could expect my interlocutor, though not with much background, at least to have the minimum capacity to be tuned on to the same wave length as mine- in order that my communication would prove at least reasonably effective.

 

 

@ vswami

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Dear Mr. Swami,

I am a working professional who lives in an apartment and have served as an office bearer and have the experience of actively participating in getting our apartment association registered under KAOA.

The reason for asking the questions that I did is that someone who has experience living in ana partment will realize that (a) registering under the societies act does not give the governing body any power to run day to day affairs, only obligations.

Registering under KAOA is very difficult unless the builder actively cooperates and takes the necessary POAs etc. right at the beginning.

There is also the question of having proper, detailed bylaws which will avoid the trouble of each association having to draft these from the scratch. Maharashtra for example has a fantastically detailed bylaws which cover most situations and allow the governing bodies with clear procedures to handle almost any issue that crops up.  This allows the volunteers to stick to the process of governing and not having to spend time dealing with some of the non sensical issues that crop up from the scratch.

I have reviewed your blog postings etc. and do not believe that anything posted there negates the arguments made herein regarding the lacunae in the acts and their implementation.

If you feel otherwise, kindly provide specific examples andf we can discuss further.

@sanjayv I appreciate your

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@sanjayv

I appreciate your prompt response; also noted with pleasure that the points you briefly mention are not different,  at least basically, with what I have been solely and lonely crusading and relentlessly fighting for or against, but in my own way , for over  a decade now.

Time and health permitting, I am prepared to place myself  at the disposal of like-minded people, for carrying on any further dialogue, through communication via this site, or any other feasible,or more convenient mode- say, a tele-conferencing, which may prove to be a better mode.

As regards 'lacunae', the enactments have been faulted to contain, as I myself have noted and recorded in more than one context in my published articles (citation given below), there ARE certain 'lacunae' but in my perception, those have NOTHING TO DO with, or could be rightly regarded to have come in the way of the authorities in regard to the strict implementation and compliance  with the requrement of registration i.e, with the Registrar of Co-operative Societies., and with HIM only; with none else. Any registration not done so, entails other  consequences- more serious than what can one, as is commonly believed that to entail.

I. 4 of my articles published in the Madras Law Journal and Karnataka Law Journal, the citations whereof is as below: –

 

(2003) 3 MLJ Pg.5 (journal) 

(2003)(4) KAR. L.J.Pg.1

(2005)(3) KAR.L.J. pg.17

(2005)(5) KAR.L.J. pg.1

 

(For ready reference, the Text of 2 of the articles are being forwarded)

 

II. Posts on websites:

http://www.commonfloor.com/articles/bangalore-apartment-owners-association-123.html/comment-

 

September 24, 2009 at 5:55 am

 

October 8, 2009 at 10:10 am )

 

http://apartmentadda.com/blog/2009/03/10/a-guide-to-apartment-owners-associations-in-bangalore/comment-page-2/ - comment-1531

 

February 10, 2010 at 3:46 pm)

http://www.mysooru.com/article1.html 

 

RE, the last mentioned art., of which a mentioin has been made in ONE OF  the other posts on Praja's site ITSELF, i recall with regret that, though I TOOK THE EXTRA TROUBLE OF GOING OUT OF THE WAY, AND ATTEMPTED TO HAVE HIS ATTENTION  FOCUSED ON A VERY CRUCIAL AND VITAL ASPECT - WHICH GOES TO THE VERY ROOT OF THE WHOLE MATTER, BUT MET WITH NO SUCCESS HE DIDN''T EVEN HAVE THE MINIMUM COURTESY OF ACKNOWLEDGING. NOTHING LOST TO ME ANYWAY.!

 

MANY MORE MAY FOLLOW>....

 

Just a quick Rider: Mr

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Just a quick Rider:

Mr sanjayv,  If you don't mind, please look up the lastly updated Blog- 

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/09/societies-registration-act-v-co.html

wherein I have tried and put in my additional comment on -'lacunae' , as complained of.

RE. the mentioned softcopy of the 2 Art., i shall try to locate and fwd. it to you ASAP, through Admin. I would suggest that, for the sake of completeness and good order, you can send it over also to the others partaking in the subject discussion. 

Having since sent in more

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Having since sent in more feedback material, in the earnest hope  that may be found useful, I have, as a follow-on of my endeavours, kept on updating my Blogs, in particular, @ the fololowing link , off and on, with a view to help in provoking more and more thoughts in the minds of those equally passionate for, and  interested in, securing a fruitful outcome of the exercise on hand ,

Suggest a fresh look  @

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/09/societies-registration-act-v-co.html

for tracking / keep on tracking such updates.

  In order to arrive at a

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>In order to arrive at a logical but right answer, the scheme of the law (i.e. of both the 2 Acts- KAOA and KOFA) should be closely read and understood.

>Neither of these 2 Acts, so far as one could see, speaks of, -as to under which enactment ‘registration’ (of a co-operative society in case of ‘flats’ and of ‘owners’ association’ in case of “apartments’) is required to be made.

>Both the Acts (i.e. KAOA and KOFA) merely specify (defines) who the ‘competent authority’ is for their respective several procedural and other purposes.

>The authority so specified in both the Acts is one and the same – that is, the Registrar of Co-operative Societies (‘ROCS’ -being the authority appointed and functioning under the KCSA).

>If so, and on that premise, neither the other enactment i.e. KSRA nor the authority appointed and functioning as the ‘Registrar’ there under (i.e. ‘ROS’), has anything to do with/for any of the purposes of, either the KAOA or KOFA – to be precise, for the filing or other requirements as envisaged under either or both.

>To repeat, the authority who is empowered to act for all the purposes of either of or both the 2 Acts –KAOA or KOFA is one and the same namely,- the REGISTRAR OF CO-OPERATIVE SOCIETIES (ROCS) ; CERTAINLY NOT THE REGISTRAR OF SOCIETIES (‘ROS’).

>It is probable that, one and the same person (individual), having been so empowered, is discharging his respective duties / carrying out functions, in a dual capacity (i.e. both as 'ROCS' /'RCS' under KCSA and as 'ROS'  under KSRA).

Even if that were so, the point to be specially noted is that, for all purposes, of both the 2 Acts (i.e. KAOA and KOFA), he should be regarded to be acting only in his capacity as ‘ROCS’; certainly not as ‘ROS’

>One wonders as to whether this is the exact reason,- a wrong one though,- for the largely obtaining confusion (as one is led to infer from the Post @ Ajit N Naik).

If so, then the entire episode is, to put it mildly, a sad commentary on the pathetically poor ‘governance’ / ‘administration’ of the law by one and all concerned.

The foregoing elaboration has been attempted in the expectation that  may be of help to anyone bent upon / not minding to have a fresh look at the limited aspect  covered herein but in a different light.

Selfsame

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http://vswaminathan-vswaminathan- swamilook.blogspot.com/2011/09/misrepresentation-law-of.html

The recent article referred @the quoted Blog, rw the comment thereunder, deals with, and is of relevance, as it underlines the importance of proper drafting of deeds, etc. This is an aspect which has been covered in greater details in the material already sent, and in your domain. 
  

http://vswaminathan-vswaminat

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http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/09/misrepresenttatiion-law-of.html

 
This has relevance to the subject of strictly proper drafting of legal deeds, etc.

One is not clear at all as to

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One is not clear at all as to what the concluding para (ref. the maiden post on 30 July 2009) seeks to convey!

".But the proponents of the suggestion ...."- - not clear on - whether or not they are FOR regisering 'apartment owneres' association' strictly as required by the KAOA; that is with the ROCS ? (read my previous posts)

Again, what precisely is the opinion of the 'very senior lawyer' who has been quoted- on the addressed  poser / proposition herein before?

 

Legal opinion required

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Hello All

I have been following this discussion along with the other two related topics on Praja and similar ones on Citizen Matters and other forums as well. I was a silent reader but had to make a post for now a selfish reason where I need some legal opinion and also to understand if any apartment community in Bangalore went through any similar experiences with builders and how they went about handling it. Sorry for the lengthy description of the issue below but I had to ensure to keep the history behind the issue accurate.

*****************************************************************************************

I live in an apartment complex of 300+ apartments. Possession handed in Sep 2008 to residents and subsequently OC from BDA sanctioned in 2009 as well and we are close to 100% occupancy now. We have 11 different blocks with G+6 floors on 7 of them and G+7 floors on 4 of the blocks. Despite all efforts made by the residents association (formed in principle and not registered as yet) asking the builder to hand over the premises and to execute the Deed of Declaration and refund the corpus collected, the builder has been quoting one reason or another to defer the handover until now. 

And now, he has sent a letter to residents association stating his intentions of building additional floors on top of every block citing that he originally had plans of building it as blocks of G+9 floors although the BDA then didn't sanction it on the basis of FAR policy and he is now citing the current revised FAR policy to build additional 3 floors to make it a G+9 (with further claims that the foundation/footing was done keeping in mind for G+9 floors). He goes on to cite the following clause from the Absolute sale deed (pasted at the end of this post) that was executed for every apartment sold as part of the obligations of the purchaser. Although every owner have signed on such a document, the clause reeks of one-sidedness-sided to give unquestionable authority to a builder to make additional construction over and above the originally sanctioned plan. Is such a clause part of typical apartment sale deed templates and hence makes every apartment complex vulnerable to further construction at the whims and fancies of a builder? Can this be legally challenged and is there any other provision in law that supercedes such one sided sale deeds to protect the interests of the residents/consumers? Please advise.

 

 

- It is a specific term and condition of this Deed and of the rights to be created in favour of the prospective purchasers in the building and in the said apartment that :

i) Any further or other construction that may be permitted hereafter over and above the construction to be sanctioned as aforesaid such construction may be carried out by and/or at the discretion of the seller. The purchaser shall not be entitled to object to the same or to cause any obstruction or hindrance thereof, nor to ask for any discount and/or rebate and/or abatement in the above mentioned consideration.

Thanks

Maverick

 

@ Maverick - some comments - not legal opinion

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This is an interesting case study you have brought here Maverick.  Here are some thoughts for you to chew on with a strong disclaimer that I am not a lawyer or legal brain of any sort.  So please consult a good one for this issue.

There are two reasons why I think that clause in your sale deed does not hold any water.

(1)The Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, Section 7 is titled "After plans and specifications are disclosed no altersations or additions without consent of persons who have agreed to take the flats; and defects noticed within a year to be rectified".  I will not type out the detailed text here, but the section title is self explanatory. In light of the clause in the governing statute, I believe that the clause inserted by your builder in the sale agreement is illegal and void.  It cannot be construed as a "consent" in any way from the language.

(2) You must have been sold a certain undivided share in the land and in the common ameneties/facilities.  Forget the common ameneties, but the entire land within the boundaries of the property should have been divided among the flat owners such that the total comes up to 100% for all the flats put together. (Something for you to verify).  So now, if the new apartments that are being proposed to be built are to get an undivided share in the land and in the other common areas, how will those get reapportioned?  Will you get compensation for the lowering of the undivided share of your land.  I think that is another strong argument to ask the builder to cease and desist from his plan,

(3) Has your Katha been transferred?

There are several other clauses in these laws by which you can force him to registed your association, hand over documents and get out of the property.

Once again, this is the view of a non legal guy, but fairly commonsense observations.  Good luck.

 

 

@sanjayvv - Thanks for the opinion

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Sanjay

Thanks for your reply. Your point # 1 reinforced  my belief on that KAOA clause to safeguard our rights in this case.

About point # 2, it is interesting to note that the builder in his letter stating his intent to build additional floors, goes on to say that the UDS he allotted to every purchaser until now was based on G+9 floors calculations (since he had originally planned to build 9 floors although the BDA sanction granted subsequently was only for 6 floors) and hence we will not lost any share due to this new construction, which to me is almost like an admission of fraud of alloting a lesser share of UDS in the sale deed when he really should have done the calculations based on the then sanctioned plan of G+6 floors which would have given us a higher share of UDS. I think he is trying to buy us into the fact that we signed upon a Absolute sale deed wherein he declared a lesser UDS (based on some plan of 9 floors construction which was never sanctioned in first place) and hence claiming that we are not losing out on anything that we originally signed upon.

 

Point # 3 - Katha bifurcation had happened in 2010 and to my knowledge, the majority of the residents hold their individual kathas for their respective flats.

Any references to some knowledgable lawyers well versed with these KAOA rules will help us to engage them.

 

@ Maverick

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Plese note that Point #1 is not KAOA, but a related sister act the name of which I have mentioned.

On point #2 - That is a bit troubling.  Are you telling me that nobody questioned the builder on how the UDS was calculated?  If the builder is planning to build 3 floors on top of existing 6 floors, but divided the UDS based on the assumption of 9 floors, there will be roughly a 30% discrepancy in UDS per apartment.  That is a large difference!  Have you gone thrpough your sale deed and checked the math? 

It is also troubling that the builder can go ahead with an assumption that 3 more floors will be sanctioned in the future and sell the property with a currently approved plan for 6 floors without clearly informing the residents.

Glas to know that the Khatha has been provided as well, which means that a formal property transfer has occurred.

One thing to do (either by yourself or through a proper consultant) is to get all your approval plans.  Builders tend to provide few sheets of the set, but take a look at the whole big fat file (get a copy from the builder or BDA or the right sanctioning authority) and educate yourself on the approvals and information provided therein.  What the builder proposed will be crystal clear.

I am sure you guys have marketing material and other such documents that clearly specifies what sort of apartment complex was envisaged?  If the builder plans more floors, that has to be clearly identified in advance and not through a flimsy clause in the sale deed.

It will also be worthwhile to check the other ameneties - for example, the sizing of the water sumps, STP if one exists, fire pumps, water pumps, parking, lift etc. has to be related closely to the number of apartments and therefore number of floors?

Unfortunately, I do not have any lawyers to recommend at this point in time.  Maybe someone else here may have leads.

classic case of misuse

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@ Maverick  -  Yours apparently is a classical case of the kind of risks apartment owners are exposed to due to non-compliance by the builders to the provisions under the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (otherwise called Act no 16 OF 1973), and the lack of an enforcement mechanism, or the inaction on its part (if it exists). This is more or less what we have taken up with Honourable Sri Suresh Kumar, through our petition, and more and more such happenings bring out the urgency of the need to have the lacunae/ loop-holes in the Acts (and rules thereunder) corrected immediately. I will be seeking a meeting with the minister in the coming week, for which I would suggest a minimum 3-member team from your association joins me. Meanwhile, I would also request your association to send out a letter to the minister, worded more or less on the lines of the letter sent out by me.

Meanwhile, I will also see if I can get CREDAI into the picture, and see what they have to say.

Muralidhar Rao

Re:classic case of misuse

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@Murali - Thanks for the response. I have forwarded your note to our office bearers to get involved in this initiative. Even if the actual office bearers cannot get involved, I have asked them to nominate flat owners on their behalf and I would like to be one of them. Will confirm shortly.

@ Maverick - couple more inputs

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I got 2 more inputs.  One is straightforward and the second - I am in the process of validating.  So will PM you that.

Firstly, section 17 of KOFA says - Act to be in addition to Transfer of property Act and to over ride contract to the contrary.

The text says:The provisions of this act , except where otherwise provided shall be in addition to the provisions of the Transfer of property act, 1882, and shall take effect notwithstanding anything to the contrary contained in any contract.

There - now that offending clause in your contract is indeed null and void.

The second, potentially more useful tip will be sent to you privately.  Please test it out.  i am testing as well for my apt complex.  I got this input from somebody who looks to be fairly knowledgeable over the weekend while discussing an unrelated matter. 

CREDAI and credibility

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I had forwarded a link to Maverick's post of 24th Oct to "info@credaibangalore.com", the only available contact point on the CREDAI web-site, and the following was the response from 'mailer-daemon@googlemail.com' - "Delivery to the following recipient failed permanently".

Obviously, most of the builders are content exploiting a poorly regulated industry regime, and in such a sceanario, transparency is not quite their credo.
   

Muralidhar Rao

CREDAI and credibiilty

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Murali

 

thanks for that. I checked their website and calledup the number given there to report this email ID issue. They gave me another email ID - contact@credaibengaluru.com

 

CREDAI

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Murali sir, I have a very low opinion of CREDAI. I have sent emails, made phone calls on the KAOA issue and even pointed out that my builder, being a member in good standing was violating their own code of ethics. My conclusion based on the reponses and the tone is that they would have preferred if I was an NRI trying to buy a property in Bangalore. However, if the BBMP demolishes part of the boundary wall of a mall built by their president, they are promptly up in arms...

Real estate transparency bill in the offing

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Now, the long-pending legislation – Real Estate (Regulation and Development) Bill – aims to infuse “accountability and transparency” in realty, backed by stringent norms. Builders and developers will have to register each project with the real estate regulator prior to its launch. They cannot advertise, invite bookings and receive advances or deposits from customers for the project without registering it with the regulator. Any deposit or advance can be taken only after entering into an agreement of sale with the customer, stipulates the new draft bill.
    
The promoter has to submit information about the project, like plot size, layout plan and authenticated copy of approval and sanction by competent authority for registration. Declaration has to be made by the developer to the regulator regarding legal title of the land and that the plot is free from all encumbrances along with the project’s completion timeline. Realtors have to keep clients fund in bank

Union Housing Minister, Kumari Selja, has written to the chief ministers enclosing a copy of the draft bill seeking their views on the legislation.


For the full text of the report in the ToI, click here.

Long overdue legislation. But, the problem now is that I expect the state UDD babu's will say that we will wait for this new bill to come through before we move further in the matter. Obviously, we can't accept that.

Muralidhar Rao

New legislation

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This is an interesting bolt from the blue.  I am of the view that existing legislation is not implemented properly in India.  Further, any such legislation has to be implemented in the states and not by the Union government. The matter comes under the "concurrent subject" list.  So does that mean that states have to pass additional legislation?

For all their shiort comings, the existing laws (KAOA and KOFA) if implemented properly and fully will solve a whole bunch of existing problems today. It is almost 40 years since these legislations were passed. The sorry state of implementation is clearly evident.

Strictly speaking, due to improper implementation and processes, by law, this puts into doubt several aspects of apartment ownership.

Note: I have edited the original comment out of an abundance of caution.  Received a note privately that I should probably not bring up some of these issues on a public forum.  I am not sure if I agree, but keeping in mind that this is a twisted world...

appointment fixed for Monday, 28th Nov

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I have managed to get an appointment with honourable Sri Suresh Kumar at 10.45 AM on Monday, the 28th Nov. It will be held in Room no 262, Vidhana Soudha. Request Sanjay and Maverick to make it convenient to join.

Muralidhar Rao

I will join

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As much as I HATE that it is on a Monday morning, this one is too important to pass up...  The issues are much more serious than first thought which I can update this Saturday assuming we are still meeting?  My written summary and recommendations unfortunately is only about 40% done and already too many pages long.  I may have to reduce it to a 1-2 page executive summary or maybe a PPT for this meeting

Registration of Apartment Association under Societies Act-1960

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Dear Muralidhar Rao,

Congratulations for getting appointment with the Minister.

I request you to bring to the notice of the Minister that Registration of Apartment Associations under Karnataka Societies Registration Act, 1960 (KSRA) for the purpose of administration of Apartment Complex is totally illegal as the same is not Covered under the KSRA 1960 and subsequent ammendments untill now. Only group of residents living in Apartment Complex running Cultural and sport activities can  register their such group under the KSRA 1960. In such case all the  owners of Apartment Complex need not be members of such Association. Such Association for Cultural and Sports activities can be promoted by 7 members and only Interested residents can become members of such Association by seperate application. I had filed an RTI with the Registrar of Co-operative Societies (Now looking after Registration under KSRA, 1960) asking him under which Provision of the KSRA, 1960  the bye-laws of Association of Owners of Apartment Complex  covering various Administration Part of the the Apartment Complex is registered by his various subordinate officers in the State. After referring to their legal cell, I got the reply referring a judgement of State RTI Commissioner which says that Policy matters are not covered under RTI application. The Registrar could not quote simple Act and clause of the Act to reply my RTI application. He also did not provide the judgement of RTI Commissioner. Without proper backing registration work is going on under the KSRA, 1960.

For the Administrative purpose of all Apartments in the Complex, it is compulsory that all owners of Apartments in the Complex should be members of the Association and the existing two acts (KAO Act, 1972 and KOF Act, 1972) take care of this aspect by Registration of Deed of Declaration by the Builder with the Subregistrar of the locality and subsequent sale deed Registration of Individual Apartments. All apartment owners will autamatically become the members of the Apartment Association formed/ named in the registrered  Deed of declaration. This is the in-built provision of both the Acts together and as such there is no need of promoters of Association and seperate application as required in Societies Act. 

If Deed of declaration with the bye-laws of the Association is registered by the builder as required by two Acts, there is no need to promote again Association. By simple registration of sale deed the purchaser of flats become automatic members of the Association. 

For further part of legal requirement, there should be a Competent Authority to administer other provisions of the two Acts. This function is not being done as the State Govenment has not given Authority or Identified clearly the Athority to administer the remaining provisions of the two Acts. Based on the Delhi High Court Judgement, our state Govenment should volunterily correct the lacuna of implementing the Acts by Identifying the Authority and fixing the responcibility of implementing the Acts. The Govrnment should not expect the Apartment Owners to approach High Court to get orders like in Delhi.

Next point is about non Registration of Deed of Declaration by certain builders. By proper implementation of the Act, the Govenment can correct such defaulting builders. This is very important for transferring individual ownership of the apartment to the purchaser from the Ownesr /Developers. 

We have been waiting for the last 2 years after the judgement of the Karnataka Information Commissioner, hoping that  new Act will come soon. The Urban dvelopment officials escaped from implementing the Act by producing a Model Act of the Central Government to the Karnataka Information Commissioner and there is absolutely no further progress or effort on the enactment of New Act. Any enactment of New law is the preogarative of the Legislative body. It may take place or may not. The Delhi High Court has nicely commented on this Aspect in its judgement.

Based on the Above comments I request the delegation to convince the minister on the following.

a) Sub-registrar of Co-operative Societies do not have legal power to register Appartment Association whose main job is to look after various administrative work. All owners should and must be members of the Association.

b) Appointment of Competent Authorities immediately.

c) Take steps to register Deed of declaration by all builders so that proper title of property is passed on to the purchasers of apartments.

d) Waiting for new enactment is nothing but waisting time.

Ajit N.Naik

points noted

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@ Ajit Naik  -  points noted, Sir

Muralidhar Rao

appointment fixed for Monday, 28th Nov

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Murali, Sanjay

That is a great news about getting an appointment with the minister but a bad timing for me as I am not in Bangalore for a week. Would have definitely joined if not for that. Apologies!

Apartment Law> not a new story

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Hi All

No fresh feedback though from the promoters of the Project, I wish to share with them the recent Post @ Ecopack *. The views and counter views appearing therein may not be found to contain any real value addition; at best, it is an exercise fitting into what is called - beating about the bush.

* Link: http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/12/home-loan-and-related-requirement-of.html 

Necessity of Mass Movement to implement Apartment Acts

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Whomsoever writes the blog on the subject is the individuals view and it need not be binding or much use unless it is written by supporting / quoting /referring the prevailing Sections / Rule Number of State Acts and Relevant Rules, Government Orders, RBI Guidelines, latest Judgments of highest courts on the subject. The blog helps us to know what is happening around us on the subject.

As per the recent blog on taking affidavit from borrowers of Banks for purchase of apartments, some banks may be insisting the same. Different banks have there own legal Officers who are busy in drafting various legal documents to be obtained from their borrowers for protecting their banks interest and it may not be the RBI guidelines. The main point to be noted – Financial Institutions, RBI, Central Government, State Governments………etc. know that Apartment Ownership Act is not properly implemented throughout India. But no body is bothered to take correct steps. It helps many to amass black money. RBI and Financial Institutions should take up the issue with Central Government for quick implementation of Apartment Ownership Act by all State Government so as to protect their huge Financed money and the interest of all apartment purchasers. NGO and people like ANNA, KEJARIWAL and others should take up such cases of improper implementation of laws which is putting lacs of poor and middle class citizens and their family in difficulty in the hands of Builders / Developers through out India. A MASS MOVEMENT IS A MUST FOR IMPLEMENTING AND CORRECTING EXISTING LAWS.

I wish to comment on the blog of Shri Vaswani (dated 21-09-2011)                                    On first two paragraphs- If any one reads Statement of Objects and Reasons of Karnataka Act No. 16 of 1973 (i.e.- The Karnataka Ownership Flats-Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972) flats and apartment carry the same meaning in multistory building. Please read the contents of the Karnataka Gadget, Extra Ordinary dated 02-12-1972 printed in the Apartment Ownership Book published by Pulani And Pulani.                                                               

On Competent Authorities under KAOA 1972, KO Flats- (Regulations-----------etc.) Act,1972,   Karnataka Co-operative Societies Act, 1959  AND Not concerned act for Apartment purchasers and sellers i.e.  Karnataka Societies Registration Act. 1960.                                                              

1) Obviously the Karnataka Societies Registration Act, 1959 is the Act of Co-operative department and for all purposes Registrar of Co-operative Societies is the Competent Authority for its implementation. Under

2) KAOA 1972 and KOF Act, 1972 the Registrar of Co-operative Societies is named as the Competent Authority to implement thee two Acts. But The Registrar of Co-operative Societies is not discharging his duties since the beginning and the reason for the same is not known. In the recent RTI case No. KIC 3658 PTN 2009 The Karnataka Information Commissioner Bangalore has mentioned the same in his orders and the Secretary Urban Development Department has taken the responsibility of Competent Authority. (But unfortunately there is no government order for both denial of responsibility by Registrar of Co-operative Society or for taking the responsibility by Secretary UDD. This is fashion of how Government and Government Department and Cream of Intelligent people-IAS work in our Mother Land)

3) The Karnataka Societies Registration Act, 1960. This act was controlled by Inspector General of Stamps and Registration until 01-08-2008 and Registrar of Societies of the Area (mostly District wise) was the competent Authority for Registration of Societies. The Societies formed under the act were mainly for promoting literary, scientific, charitable institutions which is more specifically mentioned in section 3 of the Act and subsequent amendment to Act. It is NO WAY CONCERNED WITH APARMENT / FLATS in multistoried buildings.  With effect from 01-08-2008 the responsibility of registration is passed on to The Registrar of Co-operative Societies under Karnataka Societies Registration Act, 1960 (not under Co-operative Act, 1959) and a separate section is formed in the co-operative department. The registration is done under Karnataka Societies Registration Act only. (Not under co-operative Act. There should be no confusion on this issue. One should know that Apartment Associations are spending more than Rs.25000 on this registration with the connivance of some advocates and chartered accountants though the actual registration of any society under the Act is less than Rs.1000/- Without any legal backing Apartment Associations are registered under the Act. I had filed an RTI with the Government seeking the justification of such registration of Apartment Association. After referring to the legal cell I got the reply stating that “Policy matters are not to be disclosed under RTI Act”.

 On the blog of Mr. Maverick dated 24-10-2011 and subsequent dates

I had gone through a sale deed of one of the leading builder with the purchasers in which he has mentioned thatthe additional benefit of  FSI after demolition of the Apartments (after 40-50) will also be with him. The builders wish to keep full control on the property and they do not transfer the Assets to Apartment Association though they are bound to do it as per Apartment Act. There is model draft form of Sale Deed under the act. They are not using the model draft and Sub registrars are also not insisting for the same.

All politicians from all parties, Government, Top Government Officials are totally involved in delaying the Implementation of the Apartment Acts. The only way left is the Mass Movement as the present situation is putting lacs of flat owners / purchasers in mental and financial tortures. Thou the new Central Act (proposed is good it may take years to become legislation in entire country.

Hope that people like Anna and Kejareewals lead this movement also.

We shall be grateful to Shri Muralidhar Rao if he brings to the notice of members the out come of the meeting with Sri. Suresh Kumar.

Regards,

Ajit N.Naik

Maharashtra - A couple of paces ahead

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Maharashtra seems to be a couple of paces ahead of Karnataka when it comes to the way in which the real estate laws are followed

 

Absolutely

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Agree.  Even though the situation in Maharashtra can do with improvements also, they are way ahead of Karnataka.  In fact, all the Karnataka laws were copies of the Maharashtra laws of that time.  Though the Maha laws have been amended and improved from time to time, Karnataka laws have all been unchsanged and unimplemented.

@ Ajit N Naik meeting report is already published

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You can access it here.

Ignorance, Ignorance everywhere; nowhere to go for enlightenment

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THERE SEEMS TO BE NO DEARTH AT ALL FOR 'NO- KNOWING'

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/12/lci-sale-agreement.html

HERE IS ONE MORE FALL-OUT PROBLEM - as ever, crying for a solution !

 

Proposed Real Estate Bill

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For an update, refer under the head - the AT News @ the Blog>

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2012/01/credibility-of-reg-auth.html

The portions highlighted therein in color font call for a special noting.

 

Proposed Real Estate Bill (REB)

Maharashtra - A couple of paces ahead

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@Maverick The desirability of Maharashtra or any other State going ahead with a regulatory regime on its own, or on an independent basis, even before the central legislation has been gone through, given its final shape and brought into effect requires an anxious consideration and insightful discussion/deliberations. According to a view, unless and until the central legislation is in place, set-up of a  regulatory regime in any State independently, and before hand, might have the potentials for a conflict between the Centre and State ; thereby, impairing the efficacy / objective of the whole exercise in progress at the centre

.

 

Service tax on "flat' >

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MUM HC  ruling in favour of Srevice tax on 'Flat' if advance were paid while under  construction AND before Issuance of CC/ OC>

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2012/01/service-tax-disappointing-at-news.html

The promoter may suffer the least burden; purchaser may have to grin and bear the entire brunt ?

 

"SERVICES" from Realty & Banking Sectors

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Crying NEED / URGENCY that the proposed "CITIZENS' CHARTER" should include , besides the BANKING / FINANCIAL SERVICES, the  more notorious Relaty Sector, both of which have, to the chagrin of the 'serviced' public, pathetically remained to be in a 'disarray' /  'unregulated'

> http://timesofindia.indiatimes.com/city/bangalore/Wanted-citizens-charter-truly-for-citizens/articleshow/11597116.cms 

The very nomenclature 'citizens' charter’, going by anyone's even elementary know of English, beyond doubt, can only signify that it is for protecting the people's /public interest. As such, there is certainly no logic or sanity in any one or more of the services impacting or impairing their said interests being excluded, whatsoever be the reason. If so excluded, that is sure to render the legislation, as rightly canvassed, just  a damp squib.
To stress specially, all the ‘banking/financial’ services, and  all services from the realty sector (including those related to construction and sale of flats/apartments) should, for obvious/well known  reasons, be brought within the scope of the enactment; More so, closely monitored and strictly enforced. 

"SERVICES" from Realty & Banking Sectors > updates

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Updates:

>http://www.thehindubusinessline.com/todays-paper/tp-others/tp-states/article2835250.ece#.TyIIzPXXZQY.email

<>Related intricately >

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2012/01/realty-banking-sectors-need-to-include.html

>>>IS the reported 'trend' something which truly deserves jubilation or requires be viwed abhorring as based on faulty logic / commonly observing one track mindedness on the part of the community of borrowers?!

>>>>PERCETIBLY, FOR OSTENSIBLE REASONS BEHIND,THE UNDERLYING MESSAGES IN THE RELATED STORIES OUGHT NOT TO BE OVER SIGHTED : FROM A MULTIDIMENSIONAL POINT OF VIEW, SEEMINGLY HAVE EVERY RELEVANCE , DIRECT OR OTHERWISE, TO THE MUCH HYPED IDEOLOGIES, COMPENDIOUSLY BEING ADVOCATED AS BASIC REQUIREMTS FOR WORKING TOWARDS - 'GOOD GOVERNANCE', 'TRANSPARENCY', 'ACCOUNTABILITY'.

PATHETICALLY THOUGH, THEY HAVE REMAINED THUS FAR ON 'PAPER', at best words of mouth, - SHEER INCLUSIVENESS IN THOUGHTS NOT IN ACTION,- TO PUT IT pithily IN 'JUGULAR VEIN''S PERCEPTION/CATCHY WORDS>"Jeckyl-and-HYDE India"

 

AT news on Noida

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Ref. my latest Blog

Posted: 02 Feb 2012 04:47 AM PST

By Accommodation Times (www.accommodationtimes.com)

 

Q

NOIDA: The flat owners of cooperative housing society may move to court for help as Noida Authority have been charged them under hefty fines for unable to register their housing units on time. According to the flat owners, the Noida Authority has alleged that they haven’t registered their houses. As owners have missed the deadline of 25th Jan which has been fixed by the Apex court on inability to submit completion certificate mandatory for home registration.

 

President of Federation of RWAs of Sector 62, S M Singh said that “there are several societies those still haven’t done with the issuing of completion certificate whereas members have purchased flats decade back.”

UQ

 

> A very confusing report indeed. 

 

If one is not mistaken,- the duty for procuring a 'cc' is that of the promoter/seller; so also, registration of the "owners' association" . Ref. to 'society' is not understood; so far as one knows, the units constructed/sold in Noida are 'apartments' , not 'flats'. Even under the law in Noida, just as elsewhere, for obvious reasons, that could not have been any different.

The purchasers of units are really the victims of the failures of the promoters/sellers to discharge their duties; if so, report of the purchasers being charged hefty fines makes no sense, much less any legal sense.

No ready reference or any details given for knowing as to which is that apex court's direction made a mention of.

The report hence calls for clarifications.

Further, the factual position needs to be ascertained independently. To be so done, also because of the general importance/relevance of the matter for such communities in other states as well.

 

 

 

Apartment Law - needs a close look at / through !

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"Formation of Apartment Owners Association, Bangalore-Karnataka".

http://www.commonfloor.com/articles/bangalore-apartment-owners-association-123.html

Some Thoughts and Ideas considered worthwhile sharing:
1. There is no gainsaying that difficult questions arise in cases where promoter/seller has blatantly failed, with impunity or otherwise, to comply with/contravened (deliberately or otherwise) the mandatory requirements of the law.
2. To list some of them ostensible but of a vital nature, >
Deviations/violations of the construction regulations;
Non-payment of so called 'development' / 'improvement' charges, being debt principally due / owed by him to the BBMP: 
Not procuring a ‘master’ khata for the entire property (land and buildings), after its completion and the obtaining by him of a OC or CC from BBMP, so as to facilitate the obtaining of the ‘individual’ khatas in the names of the purchasers;
 Not procuring OC or CC from the competent authority (which is now BBMP for all areas, including those earlier fell under different authorities such as, - BDA, etc.) before individual conveyances, in any event, before the final conveyance of the entire property to the Owners’ Association;
AND furnishing to the purchasers/Owners’ Association , among others, the two most essential documents namely, Advocate’s Certificate and Architect’s Certificate ,so as to evidence his title also its /marketability’ (this is what is compendiously referred to /covered in the legal concept of “MARKETABLE TITLE”, so on running into a long list.
3. For useful clues, one has to look at the applicable clinching provisions of the law ; in particular, Rules 9 and 10 of the KAR.OWNERSHIP FLATS (REGN, etc.,) RULES , 1975. What require to be specially and incisively noted there from are these:-  
4.  According to a close reading of the extant  two interrelated  Acts (Flats Act and Apartment Act), the said Rules are of equal application  to, not only ‘Flats’ but also ‘ Apartments’,  as well.
Further, they are seen to make it more than adequately clear on the following <>
> (1) It is the promoter/vendor, and he alone, who is solely responsible for fulfilment / completion of all the above referred mandates of the law;  
>(2) He continues to be so responsible and answerable in law, to the purchasers, until such time he has fulfilled / completed all his obligations; particularly, in case of apartments, including the forming an “Owners’ Association” and due registration thereof with the statutorily appointed competent authority being the ROCS (in short); AND
>(3) Unto the point in time when he has, after having performed duly and strictly all his statutory obligations, to the satisfaction of all the purchasers as a body, finally fulfils his obligation to convey the whole of the property (including land and building(s)), significantly, though symbolically, by the act of formal handing over of all the requisite documentations to the registered Owners’ Association.
To be precise, proceeding on the foregoing premises, in one’s conviction, the purchasers could not be regarded to be left with no remedy ; but could be entitled to, in exercise of their lawful rights and interests , enforce them by resort to  suitable course(s) of action.  May be, in a manner of ( legally and strictly ) speaking, it could be validly urged, that they are entitled to do so, even after the final stage of conveyance as aforementioned ; especially in those cases where purchasers could rightly and validly urge, on the ground that the cause of action arose, as legally understood,  after that stage of final conveyance.
A firm legal opinion, if obtained on the foregoing critical aspects, from any noted competent Advocate, might go a long way in helping and improving upon the present thinking seen to be by and large obtaining in common perception.
 
 

Apartment Laws - Implementation-Filing PIL/WRIT in Highcourt

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The topic is very important. But unfortulately Karnataka Government has failed to to implement the Karnataka Apartment Ownership Act, 1972 and the Karnataka Ownership Flats(Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 and relvent rules of the Acts though these two Acts were enacted 40 years ago. All of us have to seriously think about filing a PIL/ WRIT petition in Highcourt requesting for proper implementation of these Acts for the benefit of lacs of apartment purchasers and residents. We have to find out the possibilities of filing such PIL/WRIT  through expert senior Advocates of High Court.

Fortunately some reputed Developers/Vendors are taking proper steps for registering the Deed of Declaration with the Subregistrar of the Area under registration Act, 1908 as required under the two Apartment Acts of 1972. Here Deed of Declaration includes the the Exibit "A" - being the Building plan in details which is approved by the Local Building sanctioning authority and Exibit-"B"- being the Byelaws of the Association as per the Model Byelaws. Because of registration of Deed of Declaration along with the Exibits-"A"and "B" by the Developer/Vendor, all individual apartments are being registered in the purchaser's name by executing the Sale Deed in Subregistr's Office by the individual purchaser and Developer/ Vendor. In all such individual sale deed, the individual purchaser agrees that he is aware of registering the Deed of Declaration along with Exibit-"A"- Building Plan and Exibit-"B"-Byelaws of the Association by the Developer/Vendor as required by two Apartment Acts of 1972. Without the registration of Deed of Declaration, it is just not possible to register Apartments in the name of the individual purchasers of Apartment as there is no provision in the Registration Act of 1908 to register apartments. Both the Apartment Acts were enacted for the benefit of apartment purchasers/residents so as to get the marketable tittle and Ownership of the apartment and for getting other connected issues of apartment living.

At present, the two Apartment Acts are only helpful until registration of the Apartment in the name of the individual purchasers. Government of Karnataka has utterly failed to implement the Acts in the true spirit for which the same were enacted. Even after 40 years, there are no Regulatory/Competant authorities in the state for implementation and supervision of various activities of the builders, Apartment Associations. 

Though as per the ORDER of Karnataka Information Commissioner, Bangalore, the Urban Development Department (UDD) is responsible for implpementing the Acts, the UDD department is behaving in an evasive and misleading manner stating that Central Govrnment is planning for a comprhensive legislation  for Aparments and they will take decision for appointing the Regulatory/ Competent  Authrity on enactment of the new act by central government. The issue of enactment of new Act is under considerationand discussion with the Central Governmet since the year, 2007. It is difficult to put time frame for legislation and implementation of  any NEW act. It is the prerogative of the legislators and parliamentarians. In this bacground, the attitude of UDD evasive and misleading. The UDD should take immediate steps for appointing Competent authorities for implementing the two  Apartment Acts immediately as per the present act and also by following the improved guidelines on the issues in Maharashtra and Delhi administration.

I had filed a RTI application with UDD on implementation of two Apartment Acts. I got  the evasive reply stating that they are waiting for the report from the UDD. This is one of  the same reason they gave to Karnataka Information Commission in the Case No. KIC 3658 PTN 2009. The UDD of Karnataka Government is not at all serious about appointing the Competent Authorities in the State as per the exsting acts.

In many Apartment Complexes, Apartment Owners Associations are being registered under Karnataka Societies Registration Act, 1960 though there is no provision to register such Apartment Owners Association covered/ not covered under KAO Act, 1972. Section 3 and 5 of Karnataka Societies Registration Act, 1960 is very clear about registration of various societies/ associations. There is no provision for registration of Apartment Owners Associations under the Act. I had filed an RTI application with the State Government (at present Cooperative Department looking after registration of Societies) requesting them to quote the sections of the Act or Government Order authorising them to register Apartment Owners Association und KSR Act. After referring to their legal department, I got he answer stating that there is no scope for clarification under RTI Act. My question was very simple and it was just to know the section of the act or number of government order.

This is the way how Governments work inour beloved country.

I live in apartment Complex. Our Association was registered by the builder alongwith Deed of declaration during 2003. Our present Association Management Committee has now taken unilateral decision and registered our Association under Karnataka Societies Registration Act, 1960 based on the advice of a legal firm. I have filed  two cases on the concerned parties on the issue.

Some time back, a delegation of Praja had met the UDD minister Mr.Suresh Kumar and he was to call a meeting for discussing the issue during December, 2011. We have not heard any further progress on the issue.

It is really shameful that two acts enacted during 1972 are not being implemented even after 40 years. The best course is to file a PIL/WRIT in the Highcourt. PRAJA should take a lead on the issue. Just writing in this BLOG will not solve the problems of Apartment Purchasers and residents. The judgment of Delhi Highcourt in case - O.S.Bajpai   Versus The Administrator (LT. Governor of Delhi) & others is a clear guidline to file such PIL/WRIT.

Ajit N.Naik

 

kaoa - a creature of the law, yet a myth (mirage!)

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@Ajit N NayakThe long (and short!) story goes to relate and illustrate the chaos and confusion doing its rounds for years. This is a pure and simple case of the government and its authorities having failed  in their duties and responsibilities expected of them in a proper implementation of the State enactments in place; thereby betraying the very avowed objectives of the law. It needs to be highlighted, the tragedy behind is that, in comparison (e.g. income-tax law), the subject enactments are riddled with the least complexity.

As regards the ground realities and the disparaging wrong practices in vogue, among several others of its kind, the endless litigation in which the victims of the villainy have been entangled, the story @ L&T south city citizen mattersstands out.
 

   @Ajit N Nayak

The long (and short!) story goes to relate and illustrate the chaos and confusion doing its rounds for years. This is a pure and simple case of the government and its authorities having failed  in their duties and responsibilities expected of them in a proper implementation of the State enactments in place; thereby betraying and defeating the very avowed objectives of the law. It needs to be highlighted, the tragedy behind is that, in comparison (e.g. income-tax law), the subject enactments are riddled with the least complexity.

As regards the ground realities and the disparaging wrong practices in vogue, among several others of its kind, the endless litigation in which the victims of the villainy have been entangled, the story @ L&T south city citizen matters stands out.

 

 

 

http://www.savesuncity.in/ Th

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http://www.savesuncity.in/

This is another story, I guess.. 

              I request the

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I request the members to read  the following sentence with correction in my today's comment.

I got  the evasive reply stating that they are waiting for the report from the UDD. (it should be from BBMP and BDA) 

I regret the mistake.

Ref. ajit n naik (22 Feb) Q I

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Ref. ajit n naik (22 Feb)

Q

I live in apartment Complex. Our Association was registered by the builder along with Deed of declaration during 2003. Our present Association Management Committee has now taken unilateral decision and registered our Association under Karnataka Societies Registration Act, 1960 based on the advice of a legal firm. I have filed two cases on the concerned parties on the issue.

UQ

Observations (impromptu):

This is a typical instance where the apartment owners are now left in the lurch; a situation akin to the mythological story of ‘trishanku’. Who is to be blamed ? Perhaps, one has to wait for what the court is going to say!

 > In effect, what has happened is, - the complex now stands removed from the provisions of the Apartment Act.

>As is now commonly accepted/acknowledged, a registration under the  KSRA is in fructuous; in that, an entity wrongly registered, cannot serve the same purpose or be treated as on par with a AOA registered under the KAOA.

>Previously, the property, by virtue of the Deed of Declaration registered in 2003, was submitted to the provisions of the Act. As such, for a removal there from, the provisions of Section 14 would come into play, and ought to have been strictly complied with.

As spelt out in section 14, no such removal is permitted by law- unless ‘all the apartment owners’ and ‘the holders of all charges and other encumbrances’ have signified their consent by instruments duly executed.

Further, in the context herein, the provisions of sub-section (2) of section 14 and section 15 call for a special focus, and require to be borne in mind

 

Even Registration under KSRA, 1960 is ILLEGAL

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Reference: Mr. Vaswani's Comments

Comments of Mr. Vaswani is totally correct. Moreover the act of  registration of Association under the Karnataka Societies Registration Act, 1960 (in short KSRA) itself is illegal as there is no provision in the said act to register the Apartment Owners Association mainly undertaking the routine maintenance activities, repairs, painting, providing various facilities connected with apartment living. Hence I had filed my RTI application with the Head of the State under whom Registration of Societies are done under KSRA.

One has to go through the Statement of Objects and Reasons of enacting KSRA during 1960 and also section 3 and 5 of the Act. IT IS AN ACT TO PROVIDE FOR THE REGISTRATION OF LITERARY, SCIENTIFIC, CHARITABLE AND OTHER SOCIETIES.

Section 5 of the Act- mode of forming societies- Any seven or more persons, above age of eighteen years associated for any purpose specified in section 3 may, by subscribing their names to a memorandum of Association and otherwise complying with the requirements of this Act and the rules made thereunder, in respect of registration, form themselves into a society under this Act.

3. Societies to which the Act applies.- The following societies may be registered under this Act,-                                                                                                                                     Societies established for,-(a) the promotion of charity;(b) the promotion of education, science, literature, or the fine arts;(c) the promotion of sports 1[x x x x x]1;(d) the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge;(e) the diffusion of political education;(f) the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art; 2[(ff) the promotion of conservation and proper use of natural  resources and scarce infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities as may be notified by the State Government from time to time.] (g) the collection of natural history, mechanical and philosophical inventions, instruments or designs;  and

which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members.

1. In section 3 clause (c), the words- "Other than Horse Riding" was ommited by Ammendment Act No.7 of 1978.

2. In section 3 cause (ff) was inserted by Act No.9 of 1999

 

Since 1960, The KSRA was ammended on more than 10 times and section 3 was ammended on 2 ocassions as mentioned above. Apartment Owners Association was never included in section 3. 

While enacting the two Apartment  Acts during 1972, though KSRA was in force the legislatures never thout of registering the Apartment OwnersAssociation under the said Act. They have only mentioned about registering the Apartment Owners Association under Cooperative Act or Companies Act or under the new Act i.e. KAO Act, 1972.

Everything is GOLMAL and TRISHANKU SWARGA to Apartment purchasers and residents. Our Association has spent more than Rs.65000/- for fres registration of  under the KSRA and added the additional word- "WELFARE" to the existing name. It has acted on the advice of a Legal Firm.

Such wrong registration of Apartment Owners Association without legal support under KSRA and also non implementation of two Apartment Acts are challengeable and hence my request to PRAJA to take initiative to file PIL / WRIT in the Highcourt so as to get proper legal protection to lacs of new purchasers of Apartments and also all residents living in apartments. The illegal Registration of Apartment Owners Association under KSRA can also be stopped.

 

 

 

Today's ToI - Govt promises to rein in apartment developers

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Article in today's ToI - http://timesofindia.indiatimes.com/city/bangalore/Govt-promises-to-rein-in-apartment-developers/articleshow/12000969.cms

Govt promises to rein in apartment developers

 

 

BANGALORE: The government will take a series of measures to ensure that apartment buyers are not shortchanged by developers.

The proposals include steps to see that buyers' interests are protected in case of defective work and unauthorized changes in construction of apartments, and deposits collected by developers towards formation of society, payment of local taxes, electricity/water/revenue charges are used for rightful purposes.

During the hearing of a writ petition, the government told the high court that it will issue appropriate notifications within four weeks. "If granted, (four weeks), the state will try and issue appropriate notifications to comply with Section 5 and subsection 4 of Section 7 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972," advocate general S Vijay Shankar told the court.

Justice Rammohan Reddy acceded to the government's plea for time and adjourned the hearing.

The advocate general told the court that a draft Real Estate (Regulation & Development) Bill, 2011, is on the anvil. The comprehensive legislation seeks to regulate flats and real estate developments and ensure sale of immovable properties in a transparent manner by protecting the interest of consumers, he added.

Shankar said the proposed bill will ensure that an appellate tribunal is set up to adjudicate disputes, besides substantially doing away with anomalies in the state law.

The writ petition was filed by K Gangadhar Reddy and others, all residents of Diamond District apartments on Old Airport Road. Their grievance is that the erstwhile Bangalore Mahanagara Palike (BMP), now Bruhat Bangalore Mahanagara Palike (BBMP), had refused to issue khatas in their name, saying they are all only 'tenants'.

The civic body's argument is that part of the complex had been constructed in violation of zonal regulations and it had withdrawn occupancy certificate issued to the builder way back in 1999. Further, a khata cannot be issued as the apartments haven't been formally registered in the name of buyers. The land on which the complex is built originally belonged to Karnataka State Tourism Development Corporation (KSTDC).

What the govt has promised to do

The government has promised the high court that it will issue notifications to put into effect Section 5 and sub-section 4 of Section 7 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972.

The Sections

Section 5 pertains to the promoter's obligation to maintain a separate bank account for money taken from purchasers as advance or deposit towards formation of a cooperative society or various outgoings like ground rent, municipal taxes, water and electricity charges and revenue assessment. The promoter is obligated to use the money only for the purpose for which he has collected it and provide details of the same on demand.

Sub-section 4 of Section 7 secures the purchaser's interest in case of any defect in the building or material used or any unauthorized change in construction. The promoter is also obligated to rectify any such defect or change or pay reasonable compensation for the same, failing which the matter may be referred to a specified government official, whose decision in the matter will be final.

@ajit n nayak

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Apartment Laws - Implementation-Filing PIL/WRIT in High court

ajit n naik22 February

 Even Registration under KSRA, 1960 is ILLEGAL

 23 February

“Just writing in this BLOG will not solve the problems of Apartment Purchasers and residents. The judgment of Delhi High court in case - O.S. Bajpai Versus The Administrator (LT. Governor of Delhi) & others is a clear guideline to file such PIL/WRIT.”

WHAT NEEDS TO BE APPRECIATED IS THAT, ANY POST / BLOG ON THIS SITE OR ELSEWHERE, PARTICULARLY IF PRIMA FACIE WELL -INTENDED OR -MEANING, SHOULD BE REGARDED AS A SOURCE OF USEFUL INFORMATIION, FOR FUTURE GUIDANCE. OF COURSE, THE RECIPIENTS ARE EXPECTED TO GIVE MORE THOUGHTS AND SEE HOW FAR THAT WOULD BE OF HELP OR PUT TO PROPER USE, TO RESOLVE THEIR OWN INDIVIDUAL PROBLEMS OR LITIGATION FACED WITH.

AS REGARDS SUGGESTED PIL / WRIT, KNOWING THE HASSLE / INHERENT  INCONCLUSIVENESS IT ENTAILS,  ANY LITIGANT,  SHOULD CONSIDER SERIOUSLY THE OTHER, -AS I SEE IT,- THE BETTER OPTION OR COURSE OF ACTION, IF THAT BE OPEN AND PERMISSIBLE BY COURT,  BY HAVING HIMSELF INTRODUCED AS AN ‘INTERVENER’ IN ANY OF THE ALREADY ON-GOING LITIGATION ON SAME OR LIKE GRIEVANCES,E.G.@L & T.THIS IS A MATTER , NO DOUBT, ON WHICH CONSULTATION OF A REPUTED AND WELL KNOWN LAWYER , NOTED FOR HIS INTEGRITY, IS CALLED FOR / A MUST

PS: EXCUSE ME; AS I WISH TO RETAIN/MAINTAIN, IF NOTHING ELSE, MY ‘PERSONAL IDENTITY’, MY NAME MAY PLEASE BE CORRECTLY SPELT > VSWAMI (AS GIVEN)

 

Apologies

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Reference: VSWAMI's comments.

I am sorry for misspelling your name.

This blog was started on 30th July, 2009. Though two beneficial acts were legislated nerly 4o years ago, the same is not being implemented so far. We are not aware of the reasons for not implementing the acts. Meanwhile similar acts were ammended and improved continuously in Maharashtra. Very recently during the last week of December, 2011 a new draft of  legislation on the subject was circulated for comments and suggestions from the public. Redevelopment of old buildings is also  included in these acts of Maharashtra. In Delhi Administration area the apartment act is being implemented by the Order of the  High Court in a writ petition filed by an Advocate.

Proper Implementation of two acts in Karnataka will help lacs of apartment residents and purchasers and it is a fit case for filing of PIL. It is very clear that Karnataka Government is not inclined to implement the Apartment Acts. They are delaying the implementation of the acts by giving absurd reasons stating that Government of India is considering of bringing new comprehensive act. Similar arguments were put foth by Delhi Administration in the writ petition which was not heeded by the Court. Similar pleadings were put forth in the recent case published in TOI on 23-02-2012. At the same time Maharshtra State is going ahead with improving their apartment acts.

I am sorry for my comments referred by you. My comments are in the bacground of above facts. I appreciate your comments.

Ajit N.Naik

@ajit n naik

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'Apologies' , FOR WHAT !- I feel extremely sorry that you were given the impression that I was trying to find fault with or pick holes in your viewpoints as put forth through this site. On the contrary , even on day one of my initiation, when I happened to go through your inputs, I was really of all appreciation for the exemplary efforts made by you in getting at the maximum info. , on a first hand basis, by making use of the RTI.

My comments you refer were posted, just to air my own strong views, founded on my firm conviction for long , against the desirability /advisability of anyone getting into and involving in any long drawn court litigation. unless that becomes absolutely unavoidable. Hence, my suggestion about the other available / possible optiion, requiring to be explored

In my humble personal view, the government alone cannot be blamed, that too solely,  for the increasingly sordid state of affairs that has been perpetrated and being perpetuated, and so allowed, for so many decades;  and still continue to be foisted on the gullible 'public'. To put it differently, as my professional Senior, more than that my Guru, late N A Palkhivala , whom I have always held in hgh esteem and revered as my MENTOR,  used to lament with remorse, quite often, in personal meets as well as in public, the blame has to go and be shared by one and all who has unwittingly or otherwise been directly or otherwise responsible, in no small measure, for the most horrid evil - so called  'commercialisation' of, and the resultant  'corruption' in almost  every field of activity, or  walk of life- not just the players in the realty sector, but every other one having a 'vested' interest' in its bizarre /shameful sense - with advising professionals being no exception.

On the two other things found mentioned by you - the central Regulatory Bill in the offing and the DELHI HC case, if I remember right, i have touched upon them in a couple of previous Posts herein. also, given the LInk for my personal Blogs, where one can find any number of them dealing with the topic on hand,further  kept updtated off and on.

I hope that I have now tried my best to  vindicate myself and cleared my own conscience; which also should help in having cleared any misunderstanding of the purport and import of my recent  inputs, all with nothing but good and sincere intentiions, wholly in 'public interest' .

Does not  the word chosen aptly i.e. 'praja' itself connote the very same ideology!

With Best Regards

 

vswaminathan

 

What is the next step?

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To summarize the discussion so far and what I have found from my own dedicated reading (a) We have 40 year old laws (b) the laws are not implemented (c) The laws can be improved, but even the implementation of existing ones on the books is a huge improvement over the present scenario (d) The reply of the government to the RTI filed by Mr. Kumar and subsequently response to Mr. Naik clearly point to their unwillingness to implement the law.(e) Some of us met the UDD minister, but attempts at appointments subsequently have been futile (f) There are couple of central legislations on the anvil, but going by the track record of amending the Delhi Apartment Ownwrship Bill 1986 (tried in 2001, trying again in 2011), there is little hope of timely and meaningful legislation (g) Clearly, once again, the problem is not the lack of existing legislation, but wilful neglect of the same.

So what is the path forward? Option (a) more of the same - try to meet people, network with partners in the fight, openly and clealy publicize the issue (b) Some kind of legal approach, be it PIL or "Intervening" in existing legal disputes as suggested by Mr. Swami. Neither of the options look inviting because of the sheer effort involved.  Personally, it does not look inviting to me because after all the effort, I may find myself in the same legal limbo as currently exists since only new apartment owners will be helped. Nevertheless, this is an activity to be pursued. The current situation is ridiculous.

So can we discuss on how to move forward?  And in the discussion, it is important to remember that there is no "well funded" entity called PRAJA with funds, staffing and ability to go on a litigation spree.  Whatever is involved will have to be done by volunteers posting here and funded out of a yet to determined source. 

Reaction (impromptu): Through

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Reaction (impromptu):

Through a memorable favourite Quote, requoted>

All said but remaining to be done,-
 
" though one thinks of the future with a great deal of concern, the concern is not tinged with despair. So long as everyone else concerned also is prepared to accept, alsoact, on “the principle – pessimism of the intelligence, optimism of the will.”
 
Of course, in any such matter, in which mutually conflicting 'vested interests' most certainly come into play/have a leading role , there can be no short term ( even within one's life time); OR could be, in anyone's wisdom, be aspired , much less hoped for or expected.
 
Anyway, any thoughts on the intended clues vide the Blog @

 http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/02/final-conveyance-of-apartment-building.html

Mr Sanjay , if he could devote some insightful thoughts, and seriously/incisively pursue, may find some help in reagard to his observations, seemingly with an undertone of pessimism,> 

Q

Personally, it does not look inviting to me because after all the effort, I may find myself in the same legal limbo as currently exists since only new apartment owners will be helped. Nevertheless, this is an activity to be pursued. The current situation is ridiculous. ""

UQ

intended to be contd>>>>


 

 

@ sanjayv REACTION (impromptu) contd..

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Need to keep focussed on among other recently reported stories:

The SC verdict that has come to be given, after several decades, during which the  GPA prectice had continued to be successfully carried on; with not even one being there to raise his eyebrow;  from amongst the socalled two-legged creatures of God , though ever claiming with pride (but never admitting prejudice) to have been exceptionally favoured  / endowed by NATURE with the unique/seldom  faculty of  'fifth sense' (!!!!!).

 

to be contd....

Previous 27 Feb (contd)

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In the Blog @  http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/02/final-conveyance-of-apartment-building.html  supra, are listed  several of the highly objectionable omissions / non-compliance with the mandates of the governing law, often seen to have been deliberately, with no reasonable cause, commited by many of the promoters, as a matter of convention /usual practice. Purchasers on their part  are known to have taken such irregularities in nthe astride, unwittingly or otherwise. Many of them are, if clinically analysed, might be realised to be so closely linked to each other that any omission or non-compliance with anyone of them is bound to impair to a great extent the very validity of the transaction  in law.

For instance, the requirement of OC /CC from a competent authority should be necessarily complied with, failing which conveyance of apartment itself could, if the law be strictly construed, be , to say the least, faulty/incomplete. Shoiuld that be the correct premise, then in any such case, there is, in one's considered view,  a grave doubt  on the legal valiity of the final conveyance of the entire property to the Owners' Association, even if that has been duly constituted and registered as per the law. 

All such concerns require to be properly gone into in depth, studied and addressed,  without which, the expectation of the law being implemented, more so both in letter and spirit, in the profound sense, would, as ever hitherto, remain a myth; a pipedream so to say.

to be contd....

Let us have a meeting to decide future course of Action

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I feel that all of us who had contributed on the subject in this blog and other interested parties and RWA should meet and have formal discussion on the future course of action to be initiated for getting implemented the two apartment acts. I request Shri Muralidhar Rao to decide the date and venue for such meeting.

Vswami's reaction

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Dear Mr. VSwami,  You are obviously an expert on apartment law and in matters of law and taxation in general.  From reading your Karnataka Law Journal articles and comparing them with my own additional reading, you obviously have a firm grasp of the scope of the present law and the additions, changes, amendments required therein.  

However, I have a confession to make.  The language of your posts/blogs makes it very hard to read and comprehend the point being made.  Could you consider writing in simple llanguage, please without clues, slashes, synonyms and antonyms.

For example- consider this

All such concerns require to be properly gone into in depth, studied and addressed,  without which, the expectation of the law being implemented, more so both in letter and spirit, in the profound sense, would, as ever hitherto, remain a myth; a pipedream so to say.

By the time I got to the end of the sentence above, I lost track of what you are trying to say.

This is just a request.  No offence or sarcasm intend at all, if you perceive something of that sort. 

@sanjayv

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@SANJAYV

1. Outset:

TO RECIPROCATE AND MYSELF frankly CONFESS: sv is NOT THE ONLY ONE TO HAVE DONE SO. ACTUALLY, have HAD THE HONOR , may be the unique privilege, OF RECEIVING SUCH 'CONFESSIONS', FROM A COUPLE OF OTHERS AS WELL BEFORE.

BUT MY SIMPLE, FORTHRIGHT REACTIONS,IN GENERAL :

I AM SORRY; I CANNOT in any manner oblige or HELP. I CAN ONLY, will continue to, PUT DOWN MY THOUGHTS AS THEY COME ALONG TO ME; AS SUCH,though in that 'simple language' - English, but IN MY OWN WAY I CONSIDER POSSIBLE for me.

CAN ANYONE DISAGREE IF I SAY:

NOTHING MORE COULD BE EXPECTED FROM ONE WHO SIMPLY and honestly BELIEVES THAT HE OWES IT TO OTHERS TO SHARE ANY 'INFORMATION' OR 'KNOWLEDGE' which  HE BELIEVES TO HAVE, albeit truly speaking available in plenty elsewhere as well but only to those who is prepared to take pains and care to know;  

AND at the same time would EXPECT THAT, IT IS FOR THE OTHER PERSON (RECIPIENT) TO TRY AND GET A GRASP, TO THE BEST OF HIS ABILITY, BY TUNING ON TO THE SAME WAVE LENGTH AS OF SENDER; EITHER HIMSELF OR BY DISCUSSING WITH HIS COMRADES.

IF NOT POSSIBLE, AS I SEE IT, THE ONLY SANE SOLUTION or option LEFT WITH IS TO SIMPLY IGNORE and NOT MAKE USE OF THE INFORMATION OR so called 'KNOWLEDGE' TRIED TO BE SHARED. In preferene to, 'kicking the ball back to where it came from, instead of to the goal as expected. THAT IS A USELESS, purposeless move, blindly leading self or others "BACK TO SQUARE ONE". 

Now,on to specific observations of sv:

1.SV : "obviously an expert on apartment law"

   VS : NO, NOT AT ALL, by no means; BEG TO AGREE ONLY TO DISAGREE !

 

2.SV: "and in matters of law and taxation in general."

    vs: For SV to have a better idea, having been OBLIGED and CALLED FOR, sending some MORE material in a personal mail to HIM. Same way as I have done before,often.

Aside:

I remember SV saying that he is a 'professional', but said nothing more; hence don't know exactly to which of the august  professions he belongs.

As for me, as I was obliged to do so, ALREADY made avialable my 'profile'.

For sv to have a better idea,additional material is voluntarily being sent attached with a separate mail, should that at all help or clear the cloud ignorantly built up.

3. sv: "Could you consider writing in simple language, please without clues, slashes, synonyms and antonyms."

VS: No way ! I thought, still think, English is, as globally acknowledged, a 'simple language'; perhaps, simpler in comparison to any other.

          'CLUES' - NOT AT ALL UNDERSTOOD; THE VERY PURPOSE OR OBJECTIVE OF my going out of the way, taking so much pains in interacting with 'praja', IS nothing else except TO PROVIDE CLUES; AND AGAIN WHAT I THINK MAY BE of 'USE'; if not today, may be someday. Though that entirely depenends on, left to, THE OTHER person TAKING IT IN identically THE SAME sense or SPIRIT. IF NOT, the ONLY OPTION is, TO SIMPLY IGNORE AND FORGET.

4.sv: "comparing them with my own additional reading"

vs: THIS IS,OF COURSE, WHAT IS normally EXPECTED of anyone,a must AND CANNOT BE AVOIDED. As, otherweise,, it is not any SHARER, with a 'sincerity of purpose', most certainly, going to be THE LOSER.

5. sv: "slashes, synonyms and antonyms"

vs: THIS IS THE UTMOST OR LEAST I COULD DO, to make myself understood by the other; though, that again, for obvious reason, wholly depends on the other to try, strive and understand.

OTHERWISE, I WOULD HAVE TO GO TO TOWN, EDIT MY OWN WRITING, JOTTINGS.

sv seems to have imagined it to be otherwise. Any way, TOO MUCH for me to share or be a party to his imagination.

KEY NOTE:

FOR DRIVING HOME THE BURDEN OF WHATEVER SAID:

ANYONE, WITH SO CALLED 'COMMON SENSE', IN ALL FAIRNESS, can EXPECT THAT A MOTHER OWES IT TO HER OWN BABY TO GIVE A FEED,IN GOOD MEASURE, ON TIME, SOMETIMES CAJOLING OR AT TIMES EVEN FORCEFULLY. Even so, CAN ONE EXPECT HER TO DO LIKEWISE, in every detail, TO EVERY OTHER BABY,OR the one on roadside !

ONE MORE THOUGHT: A HORSE (OR ANY OTHER, UNLIKE A HUMAN BEING, ENDOWED BY NATURE WITH ONLY FOUR SENSES (?)) CAN, AT BEST, EXPECT, ITS OWNER OR HIS SERVANT,more so a stranger, TO TAKE IT TO WATER OR FODDER.

CAN IT EXPECT ALSO TO BE shown, demonstrated, MADE TO FIRST BITE, THEN CHEW, ALSO DIGEST ? FURTHER, expect TO BE EXPLAINED, WHY THE NEED FOR IT TO DO SO, ON ITS OWN; AND IF NOT, WHAT ARE THE INEVITABLE CONSEQUENCES?

PS: Again to confess: Such problems I personally have come to experience or face, even in the past, but only rarely, that too with persons whom I have never even met or talked to over phone,or had any personal rapport or familiarity.Had SV, in his wisdom, obliged me with just a call over phone as suggested more than once, he, hopefully, would have come to know me, as a fellow human being/traveller, better; thererby saving me from all this hassle of having to dilate on such simple things now confronted with.

Nonetheless, let him be assured, in turn, that "No offence or sarcasm intend at all, if you perceive something of that sort."

By the way, I hope that, an attempt will be made to undestand the soulful wisdom, though hiddenly underlined, in the memorable quote, aptly requoted in a previous Post. But that was only to provoke some useful thoughts on THE POSER - What is the next step ?

Deceptively easy , but truly imponderable, in surmountable!

Useful Guidance here>

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For some of the individual problems given vent through this site , one may look up for useful guidance / and incisive clues in the material made available @ the following link>

Details of Legal action against builder Apoorva Associate - Tripod

 

 

Even Registration under KSRA, 1960 is ILLEGAL

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Dear Blog Readers/ writers,

Please refer to my blog dated 23-02-2012 wherin I have stated that the registration of Apartment Owners Association under KSRA, 1960 itself is illegal without any legislative support.

I request readers of the blog to make their comments//inputs/remarks on my observations from legal angle based on the Act , subsequent ammendments to the act in Karnataka State. I also request the readers to refer the judgment of Delhi High Court in a case M/s. Lord Builders Pvt. Ltd.   versus  The Registrar of Companies. You may get the judgment by google search. This judgment is on Societies Registration Act, 1860 (Original Act on the subject which is being followed in some states).

We can also bring this illegality to the notice of the Government. I had also mentioned in one of my blogs that the Societies Registration Department has not given proper answer to the RTI query raised by me on the subject. I request for members comments.

Ajit N.Naik

Fast Food>

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Subject: FAST FOOD- to suit the modern times / common outlook

 

food for thought for the day >
 
 
 
 
Who knows, tomorrow may be late !
 
Disclaimer:This feedback is intended to simply providing clues, only to  those having mind and time to take them forward; and like to act on the principle what a great legal luminary, visionary and  humanist of our own times , late N A Pakhivala liked to  <>
pessimism of the intelligence, optimism of the will ! 

@vswami (contd.)

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A few instances of purchasers' woes have come to be exposed through this site. On the basis of strories as narrated, it appears that, it is the respective Vendors, besides their advising professionals,  who are mainly responsible and could be faulted, rather incriiminated  for the miseries meted out to purchasers.  

No doubt, ignorance of law, be it genuine or feigned, and / or the commonly noted  recalcitrant / cavalier attitude of purchsers, be they literate, semi-literate, or illiterate,  also could be another reason. However, in the ultimate analysis, almost every requirement of the law is, in the nature of things, required and expected to be taken care of, and fully complied  with, solely by Vendor; and for any failure to do so, it is the Venor alone who would have to bear the brunt of the blame.

The other aspect being commonly  harped on, unwittingly or otherwise, is of the government's apathy and abject neglet or failure to discharge its duty to implementing the law, On this aspect alone, If  earnestly scouted around, one could succeed in collecting  any amount of material seeking to project arguments and counter arguments. They are bound to be so large in volume, that shoud enable anyone to even think of writing a full-fledged thesis.

At the end of it all, as someone said to me: "It is finally a question of incentives that  drives beehavior". Though, personally , I can readily think of umpteen  reasons to say, there is much more to it.

I vividly recall to have read something related in a Booklet  published by the ICAI, Bangalore Branch, over a decade ago. I may wish to share, subject to my locating it, with the least effort..

Disclaimer: To avoid the cost of repetition and hassle, I prefer not to reproduce every time, the Note in my previous Post; but shall take it  as read once, to remember for ever. 

Regulating the REALTY (contd)

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Latest Served:

Signals being received, even since the talk on regulating the industry started,  in the form of reactions, views considered, well considered or otherwise, so on, have been far too many, to  expect that any two of them could even perchance be of the same wave length. The latest one of them is to be found @ 
 

(kind courtesy: Accommodation Times)


The most disparaging, in a way not surprising, question, requiring a serious consideration and to the end of finding any satisfying answer,  that has lately found  its surface is this: WHITHER ANYONE GOES ? or can be expected to go ?? - FROM HERE.

From the viewpoints of those, though very limited in number, earnestly seeking to find a solution to the untold misery thus far meted out to the buyers of property, to be precise of apartments or flats, the imponderable stops short @ - POSSIBILITY OR CHANCES OF  ANY SOLUTION OR RESOLUTION BEING  FOUND IN THE FORESEEABLE FUTURE  TO BRING 'SUCCOR' TO THEM IN THE PROFOUND SENSE !

Again, of course, one is perforce left with the belief in the wisdom of the saying> GIVEN THE WILL, THERE SHOULD BE A WAY (found!).

Proceeding futher, undeniably, is going to, principally, depend on - how many, without showing any weakness in the knees, are prepared to act on the overriding principle that the need of the hour is, nothing else except, "PESSIMISM OF THE INLTELLIGENCE AND OPTIMISM OF THE WILL".

Disclaimer: TAKEN AS READ

 

 

 
 

Regulating THE Reality

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No need to prompt anyone to necessarily help by giving a hand , right one at that, in the ongoing exercise; howsoever it may seem insurmountable. One way, to begin with, is, perhaps, to offer and exchange their  viewpoints with others, by susbsribing  to such columns , putting in the independent views througth comments. So long as they unmistakably have the objective of inspiring like minded others, to accomplish the ultimate aim of 'common good'.

"Implementataion"

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On the oft voiced concern on ‘implementation’:

@vswami

Following on an earlier post, reproduced below, are certain observations from the Booklet published in 2001 by the Bangalore Branch of the ICAI –Workshop On Transactions in Immovable Properties, pg. 25:

Q

5.7. THE KAR…..

The above Act was passed, but it is observed that in actual practice, the provisions have not been implemented. However the provisions have legal force and as when the parties choose to enforce their rights and remedies under this Act, it can be done…..”

UQ

May be, on the one hand, ideologically speaking, left to any right thinking person, he is inclined to stress , and keep on stressing that contrary to the message sought to be conveyed, any enactment with a laudable objective, without its proper implementation, cannot be expected to serve any social purpose. In other words, the government owes to its people the responsibility to implementation. It is the government, and the government alone,-  if it truly believes in the dire need for good governance, which should strive its best and take all such possible steps, and / or have recourse to all feasible lines of action, in discharging the said responsibility as fully as expected of it by the ‘people’, under the national charter.

On the other hand, however, looking at from a purely pragmatic viewpoint, as driven by so-called ‘worldly wisdom’ (as opposed to ‘wisdom’ in its profoundly ideological sense), only option left to be chosen is seemingly a path driven by ‘balance of convenience’.

In our times, it is a sad commentary that, the mostly preferred choice is seen to be the path of ‘convenience’. This is no different from the attitude, by and large, openly evinced by the players in the realty sector. Sentiments often heard to have been echoed are, like > why do they make laws which cannot be implemented or enforced, how ‘outdated’ laws could truly serve any ‘societal’ purpose, or accomplish any ‘social objective’, - and so on /so forth. This seems to be message underlying the above quoted observations of professionals in general.

The wheel (of thoughts) has come a full circle; and only to stop at the same imponderable: - Whither ‘we’ go ; and where/how to find any solution ?

No conclusion as yet!

Disclaimer: Taken As Read  

 

NOTEWORTHY NEWS ON CREDAI, on its change of mindset

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COULD HELP, TO ANYONE SINCERELY LOOKING FOR HELP, AND INCLINED /MINDING TO TRY >

q

CREDAI NCR have set up Code of Conduct for consumer complaints

Posted: 07 Mar 2012 04:23 AM PST

By Accommodation Times Bureau

New Delhi
In a move to provide more solutions for consumer grievances the (Confederation of Real Estate Developers Associations of India) members of National Capital Region (NCR) has proposed a new set of rules. Now-a-days consumers are facing several problems mainly delay in possession, unfair trade practices, excess money demand over agreed value and ambiguity over sold areas.
Mr. Pankaj Bajaj, President, Confederation of Real Estate Developers Associations of India – National Capital Region (CREDAI NCR) said that, “our prime concern is consumer satisfaction transparency and accountability. Many middle class customers carry the perception that the developers are not answerable and that the only recourse is litigation which is a long drawn and messy process.”
The Confederation of Real Estate Developers’ Associations of India (CREDAI) is the apex body for private Real Estate developers in India. CREDAI represents over 6,000 developers through 18 member associations across the country. According to the Bajaj the concept of introducing code of conduct is to segregate fair developers from fly by night operators in a sector which has been maligned for its opaqueness.
The fundamental objective of the CREDAI NCR’s Code of Conduct is:
•To promote the high standard of real estate development and construction activities so as to promote transparency in system;
•To maintain the honor and dignity of Developers in general and to secure a spirit of friendly co-operation between the Developers and their customers;
•To establish honorable and fair dealing of the Developers with their customers;
•To promote brotherhood amongst the members of the Association;
•To ensure that Developers discharge their responsibilities to the Society in a fair, transparent and efficient manner.

 

uq

 

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Can the Day of Redemption be far off; provided, Should>>>>

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Look up the latest Add ons @

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/02/final-conveyance-of-apartment-building.html

Better realise at least now, though not done before, that THE TIIME FOR A RUDE AWAKENING and for concerted remedial actiion  has already arrived. 

Disclaimer: No need to repeat !

Today's ToI - Govt promises to rein in apartment developers

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Please refer the blog of Mr. Maverick dated 23-02-2011.

As per the press report the government has promised the Highcourt that it will issue notifications to put into effect section 5 and subsection 4 of Section 7 of Karnataka Ownership Flats Act. Now it is obligatory to Government to appoint an officer by a general or specific order to fulfill the promise for implementing section 5 of the Act. (pease read section 5 of the act- at the end). Similarly for implementing sub section 4 of section 7 of the act, it is necessary to appoint an Engineer of suitable grade. Please also read Rule No.7 of Karnataka Ownership Flats Rules, 1975.

I request Shri Muralidhar Rao to have an appointment with the UDD Minister urgently and request him to name the officer to be appointed as competent Authority under Karnataka Apartment Ownership Act, 1972.

Ajit N. Naik

Regulatory Bill FOR 'realty'

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@http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/03/icl-sebi-vodafone-et-al.html 

One really commendable feature of the Bill may be found in the proposed provisions , covering the mechanism /measures (as envisaged) in the Bill. That relates to the aspect / aim of  resolution of inevitable disputes between the players in the Realty sector and their 'consumers'.

The comments @ the cited link just posted mainly pertain to a different subject . Not to worry; as, nonetheless, the relevant concluding part may be seen to provide some clue/ useful key to the context herein as well.

 

Do you have a moment, or a penny for a thought,, to spare ? (!)

@ajit n naik 12 Mar

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Sorry, now it is my turn to be, and so remain,  'nonplussed', dismayed.
 
Unable to even make a wild guess as to what really is the purport or import of the suggestion vide the portion highlighted below:
 
"...to have an appointment with the UDD Minister urgently and request him to name the officer to be appointed as competent Authority under Karnataka Apartment Ownership Act, .."
 
Also puzzled to see that such a suggestion has been made not for the first time.
 
This seemingly goes against the very grain of my info. (already shared through the site) procured from a reliable source: That was to the effect that, after the GO (MADE A MENTION OF IN AN EARLIER MESSAGE FROM ANN HIMSELF), THE SAME PERSON IS SINCE ACTING IN A DUAL CAPACITY, BOTH AS REGISTRAR OF SOCIETIES AND REGISTRAR OF CO-OPERATIVE SOCIETIES (rocs). SHOULD THAT BE SO, WHAT THEN IS THE PROBLEM OR CONCERN ?
 
ONE MORE INFO., may be of use, WHICH I CANNOT HELP BUT AM OBLIGED TO SHARE IS THIS: THE GOVT. FINDS ITSELF FIXED IN THAT, UNDER THE Kar. CO-OPERATIVE SOCIETIES ACT, AS IT STANDS NOW, THERE IS NO SPECIFIC PROVISION empowering the rocs to register owners' association under that act.
 
As I know, of course, in Maharashra there is a separate Act, for registering co-operative housing societies (which in any case a different animal).
 
Personally, however, my strong view is, that should be no reason why in Kar. , even under the present frame work of the law, the rocs should not be able to exercise his powers as vested in him to simply ack., recognise, and take on his record the owners' association as warranted by the Apartment Act itself.
 
KEY NOTE:
 
By the way, one has no news re. any further activity for some time aimed at pursuiung the objects of this Project.
I keep wondering whether  the concerned team has been able to give any serious thoughts to the propositions shared through the post @
 
 

Post on 25 th (contd)

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To add: The propositions referred to i the 'Key Note' are those under>

vswami wrote on 1 March, 2012, 12:47 Sporadic Comments: ..

Those, in one's well considered view, are of immense relevance, and worthwhile due consideration and  pursuit, in the several cases where Vendor has failed to comply with,  among others, the most essential, vital, legal requirements of registering Form A, so also Form 'B', forming an 'owners' asociation' (OA)and hence the 'final conveyance of the 'property' remains to take place. Also, to those cases where, instead of the proper legal entity of 'OA', what has been formed is the so caslled 'RWA', a non-entity for all purposes of the KOAA) , hence the event of 'final' cconveyance cannot be said to have been 'effected' strictly as per the law. 

On the suggestion of aggrieved buyers moving the courts in pending cases as an 'intervener', what requires to be specially noted is that, by doing so, the interests of one and all, including even those who are already litigating in courts (e.g. L&T southcity (bng), DLF (del), so on) , would come to be forcefully agitated, to the end of a successful outcome.

On Khata from BBMP

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This concerns the woes/hassles commonly faced by buyers of apartments in having individual khatas issued by the BBMP, the empowered local authority. For thoughts as are intended to provide useful clues, attention is invited to the Post @  http://www.commonfloor.com/articles/what-is-khata-transfer-and-registration-and-how-to-do-it-8.html;

so also @ http://apartmentadda.com/blog/2009/03/10/a-guide-to-apartment-owners-associations-in-bangalore

 

LCG - S 54, 54 F Tax Exemption

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http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/03/httpwww.html

<> Here is a matter worthwhile, and requiring, a close follow-up in the common interests of home (apartments) buyers

 

 

Building (flats/apartments) - Conveyance/its relevance ?

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(contd.)

Why only property tax ? Why not other dues / levies owed only by developer/ seller; not by buyers ?

The recently reported Kar, HC ruling on, - issuance of khata, regardless of  'development' / 'improvement ' fee dues, is of equal relevance; calls for a special noting / sharp focus, for devising a suitable plan of follow-on action by buyers.

KAOA72 and Rules 75

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Mr Ajit.N.Naik had very clearly brought out the gist of the Act and its rules earlier. Mr Swami had given his supporting comments. Yet both think that the Act is yet to be implemented by the Govt and hence Mr Naik even approached the UDD for the same. The UDD had for some unknown reasons given evasive answers.

I really wonder what further process is required after the Act and the rules had been passed by the legislature and gazetted? The authotities mentioned therein had to act without further directives as per the provisions of the Act and Rules..

1.The Owner/Builder has to draw up/execute the Deed of Declaration(DOD) strictly as per the approved Plans and register with the Jurisdictional Sub registrar along with exhibit-A(approved plans) and exhibit-B (Bye-Laws). There appears to be no problem in doing so, though the Sub Registrars register without proper scrutiny/ verification.

2.A true copy of the DOD is required to be filed with the Competent Authority( CA) i.e The Registrar of the Cooperative societies.

3.The apartments have to be conveyed only after the above and the contents of the  sale deeds will be as given in the Act/ rules. After registering the sale deeds the owner is required to execute Form B and file it with the CA along with a copy of the sale deed.

4.The association is thus formed and the managing committe will be elected as per the registered bye-laws and voting percentages stipulated in the DOD.

Now the problem appears to be with the point no 2 above where the Registrar of Cooperative Societies is not willing to comply with the Act. The definition of the CA is very clear and as the CA in the case of Cooperative Societies, he is already implementing provisions of the relevant Act and supervising the functioning of the societies. He is now required to undertake this additional responsibility of understanding the provisions of KAOA Act 72/ Rules 75 and implement the same which includes granting a Registration Number as is done in the case of cooperative societies. There need be no seperate directives or instructions from the Govt above. Afterall what's a Govt, the official at every level is the Govt under law within a stipulated area of governance. His current refusal to do so  is nothing but wilful disobedience and contempt of the legislature. This is also resulting in malfunctioning/mismanagement of all those associations which have already submitted themselves to the Act by registering the DOD and the dilemma of the members regarding the redressal process of grievances.

The Act/Rules and their provisions are excellent in their  intention except that the contents are not properly/logically paraphrased. Needs elaborate analysis and interpretation skills to arrive at the right sequence of implementing the same. It gives a great relief/clarity to all those involved i.e, the land owner/builder/promoter, owners of the housing units, the associations and the govt provided the provisions are implemented correctly in letter and spirit.  

Therefore, the case/complaint to be lodged with either the State Govt / Court of Law or both is against the Registrar of Cooperative Societies on account of his wilful disobedience and contempt of the Act/Law.       

SERVICE TAX - an Add on

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The apex court has, in re. Rashtriya Ispat Nigam limited recently reported, held to the effect that, if it has been mutually agreed, the liability is to his account, and has to be paid and borne by, the service provider. In one’s strong view, however, the ruling cannot be taken to be an authority to say that, service provider who is the ‘assessee’ can, unless agreed to, pass on the burden, particularly as a matter of routine, to  customer. For an account, so also so certain related viewpoints, read here and here.

Some steps after 50 years!

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Read:

http://articles.timesofin...

 

The Urban Development Department has finally issued a gazette notifications to put into effect Section 5 and sub-section 4 of Section 7 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 in March 2012.

 

I have copies of the notifications.

 

What does it say

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@cnkumar   Glad to see some steps are being taken, though there are many more remaining.  I am curious - what does the notification in the gazette say? 

Gazette notification

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The gazette notification says who are the authorities under Sec 5 and 7. Please read the article to understand what it means.

can you share?

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Thanks cnkumar.  That much I figured out from the article and the relevant sections in KOFA.  What I wanted to know is the details - who the authorities are and how an aggreived buyer or association of buyes is supposed to approach them.  If you have a copy, would it be possible to scan and post somewhere - say on slideshare? Thanks in advance.

Link to the Gazette notification

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Here is the gazette issued by Govt of Karnataka in March. You can find this in Page 1314 - http://gazette.kar.nic.in/22-03-2012/Part-EOG-(Page-1305-1424).pdf

 

Nothing new in here except that the govt decides to make use of a law that has been there already for 40 years or so. The gazette notification mentions the details of the designated authorities to exercise the powers stated in those sections of KOFA.

Thanks Maverick

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Thanks for the notification Maverick.  Did anyone notice the fundamental flaw in the gazette notification.  Despite what the language of the legislation so clearly states, the notification pretends that apartment sold under KAOA do not come under KOFA. 

They have only notified concerned authorities under section 5 in the case of "companies" and "cooperative societies" .  Anybody want to guess how many apartments in the state would have been registered as a "company" or "cooperative society".  I will venture that in the last year, that number would be in the single digits. Either the UDD department is ignorant or this is a malafide action. Anybody have any suggestions on how we can fight this? 

TABLE

Sl. No. Officers Jurisdiction Area

1 The District Registrar of Companies - in respect of Company. Concerned district.

2 The Deputy Registrar of Co-operative Societies – in respect of

Co-operative Societies, Concerned district.

 

@Sanjayvv

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Sanjay - On the contrary, my impression was that most of the apartment owners associations are registered under the Karnataka Scoeities Registration Act, 1960 unless and until the DoD was executed thereby making them come under tha KAOA. Atleast, our apartment society which is still in its early stages and in the transition mode from the builder have got ourselves registered under the Socieites Act for now pushing the builder to get the DoD executed under KAOA.

KAOA 72/ KAOA Rules 75 - Amendments.

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We have a case of an Association formed supposedly under KAOA 72,  after carrying out amendments to the Act and Rules by a handful (about 20%) of members. Every one knows that the Act and Rules cannot be amended by the public for their own convenience and can only be amended by the Govt/Legislature.

Can some one tell me what action and how such an action can be taken against this so called association. ROCS does not entertain the complaint as one of the amendments carried out by this association is deletion of ROCS as Competent Authority and also as is widely discussed, ROCS does not want to be associated with implementation of the Act. 

Societies act registration is not same as cooperative society

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Maverick -A socieities act registraion does not make it a cooperative society. These are two different things.

'Policing' for 'realty'

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Here is AN idea (from Accommidation Times) for caring ones to mull over >

Housing Police

Byelaws for 'apartments'

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The cmment

@ http://apartmentadda.com/blog/2009/03/10/a-guide-to-apartment-owners-associations-in-bangalore/#comment-34757

should hopefully throw some light and help in bringing about some clarity on the subject.

A mega serial @ L&T southcity

'Deemed Conveyance' - Maharashtra shows the way !

Apartment Association cannot be registered Under Societies Act

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A very good article with the captioned titled is published in "Citizen Matters" magzine. One can read the same with the link

bangalore.citizenmatters.in/articles/view/4202-the-apartment-law-you-must-know

The article author is Mr. Sanjay Veeraraghavan. I think, he is the same Mr.Sanjay who writes in this blog. If he is the same , I request Mr.Sanjay to contact me on my mobile No.9845243544 so as to get present position of the case he referred in the article. I had also filed a case on same issue of registration wherin our present  Association Committee has re-registered our Association under KSRA though the builder had registered the DOD, Bye-laws, approved construction plan with the subregistrar and all Apartment Deeds of purchasers had a clause about DOD and byelaws.

Hope mr. Sajay will respond to my request.

Regards,

Ajit N.Nai

@ajit n naik"......our

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@ajit n naik

"......our present Association Committee has re-registered our Association under KSRA though the builder had registered the DOD, ...... "

Above statement lacks clarity, giving rise to a doubtWhether there was an association duly registered first with the KRCS (if so, rightly), but re-registered subsequently with KRS, that is under KSRA (if so, wrongly).

Will Mr Naik please clarify !

He has added:

 "...though the builder had registered the DOD, Bye-laws, approved construction plan with the subregistrar and all Apartment Deeds of purchasers had a clause about DOD and byelaws."

But, these facts , by themselves, do not clarify the above mentioned specific point of doubt.

 

 

 

Apartment Association cannot be registered Under Societies Act

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@ vswami

 

I am clarifying on the points raised by Mr.Swami. I also add some more points which might have been discussed earlier

DOD, Bye-laws, approved construction plan and Apartment Deed were registered with the Subregistra by the builder as required by KAOA. Filing of the verysame documents were not done with the Competent Authority i.e. ROCS as per legislated act- KAOA and KOFA (both acts enacted as Karnataka  Act no. 17 and 16 of 1973) 

The ROCS was reluctant to discharge his duties as Competent Authority for implementing the KAOA for the best of reasons known to him. The Government did not take any action on ROCS for his refusal to act as Competent Authority to implement KAOA. Karnataka Government did not bring legislative ammendment to change the Competent Authority. Karnataka Govrnement totally neglected both these acts which were enacted for the benefit and protection of Apartment purchasers and residents. Strangely enough, in the RTI case filed by Mr.C.N.Kumar of Jayanagar, one of the official of Parlimentary Affairs and legislation had stated to the Commissioner of Information, Karnataka (on 20-03-2010,during the 4th round of hearing of RTI case) that implementation of KOFA (Karnataka Act No.16 of 1973) is under the administrative control of Urban Development Department (UDD). Please note that UDD has only administrative control and UDD officials are not Competent Authority for implementing KOFA (Karnataka Act 16 of 1973) unless ammendment is done to the act/s.. This issue is  fairly clear from the gazet notification issued by UDD on 08-03-2012. This gazet notification itself is the outcome of a case filed by Residents of Dimond District in the HighCourt of Bangalore.

KAOA and KOFA (Karnataka Act No.17 and 16 of 1973 respectively) are enacted at the same time and both are complementary to each other for serving various purposes of apartment purchasers and residents.(some of the puposes which were in the mind of the legislatures while enacting these acts- safety of fund advanced to builders for purchase of apartment, regulation of construction and its quality, sale, mananagement and transfer of apartment by builder to purchaser, getting the legal ownership and marketable title to the apartment which is made possible by owning the proportionate share in land holding, make apartments transferable and heritable and all matters, facilities connected with apartment living). Many of the apartment purchasers are not aware that legally they can not own the apartment unless DOD is registered under KAOA. Ownership of Apartments without registering DOD is illegal and not marketable as the title itself is illegal. Whatever registration done by the Subregistrars of such apartments without registering the DOD is only of accomodative nature managed by unworthy builders. The Government is happy with such builders and root cause of numerous scams.

The question of registering the Apartment Owners Association under KSRA is totally wrong approach and the KSRA is specifi for various activities of Associations covered under the Act. KSRA act is applicable only to the members of the Association. It can not be made applicable to vendors, service providers, builders, tenanats and residents other than owners. Our Management committee elected during June 2010,  has registered our Association under KSRA which is no way concerned with regulation of Apartment Associations. If the concerned  Apartment Acts are not implemented by the state, as educated citizens we should take proper steps for implementing the same.

I am firmly of the opinion that like minded persons should come together and file a PIL for getting implemented KAOA and KOFA in totality for the purpose for which acts were enacted.

Karnataka Government (UDD) is inclined to postpone the implementation putting forth a plea that cetral Government is tbinking of bringing new Legislation throught out the Country. Bringing NEW Legislation is the preogarative of parliamentarian and legislatures and it is totally foolish not to implement the existing Acts waiting for new Act. Lokpal Bill is pending for nearly 50 years!!!

Ajit N.Naik

 

@ Ajit Naik

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Yes sir, I am the author of the citizen matters article.  I will be in touch shortly.  Unfortunately, I cannot share any details you desire without permission from the people who revealed it to me.  I am waiting to hear from them.

some progress

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I sought an appointment and got to meet Mr Basavaraju, Jt Sec, UDD, yesterday. He called the case worker, Mr Basavaraju (quite knowledgeable), and for about 15 minutes, we talked about the various issues involved. At the end of it all, I collected copies of the recently notified (supposedly to address the "Diamond District" issues, though it is doubtful it has achieved that purpose even) Order-1 (dt 14/03/12), and Order-2 (dt 08/03/12), as also the address of a consultant, Mr Panduranga Nayak (lawyer), whom they have engaged (on 19th May) to study the matter and come up with draft revisions of the Act, as may be required, and came away.

Actually, Order-1 was also issied on 8th March. But, since there was a mistake in it, they re-issued it on 14th March.

These orders address the issues concerned only partly. When I suggested to Mr Basavaraju that we would like to engage with the consultant, and give our inputs, he readily welcomed the idea. Perhaps, that is what Sanjay Vijayaraghavan and I will be doing, soon.

Muralidhar Rao

Another small step

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Great to hear the update Murali sir.  One more small step forward (hopefully!)

Some progress

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Good progress Murali.

 

They need to publish Rules under both Acts.

Rules are published already, no?

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Sorry, CN Kumar's post above confused me.  I thought the rules were already published.

At least, I have a copy of what claims to be rules for both acts (KOFA and KAOA).  Sure, the rules need to be elaborated and improved further and some missing details added.  Similarly, the acts themselves need to be modernized. However, I thought the rules are already published.

KAOA rules published in the Karnataka Gazette, Extraordinary, dated 10-3-1975, vide Notification No. FD 28 KHB 75 dtd 6-3-1975. Amended by SO 888 dtd 19-3-75 and SO 1756 dtd 51/21-5-1975

KOFA rules published in the Karnataka Gazette, Extraordinary, dated 10-3-1975, vide Notification No. FD 27 KHB 75 dtd 6-3-1975 with a Corrigendum oublished vide SO 887 dtd 19-3-1975

Rules are published /Kind Attention of Mr. Muralidhar Rao

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@Sanjay
You are right Mr.Sanjay. There are rules but unfortunately they are  not implemented. These rules are also not implementable as they need lot of improvements. KAOA and KOFA and relevent rules were framed on the then existing Acts and rules in Maharashtra State (MAOA and MOFA). KAOA, KOFA and relevent rules are exactly same(exact copy) of MAOA, MOFA and  relevent rules. In Maharashtra MAOA and MOFA are ammended many times based on the practical problems faced in implementing the same. Bombay High Court and Supreme Court have also given judments on these acts and accordigly many ammendments  were also legislated.

Unfortunately Karnataka Administration was functioning as if there are no KAOA and KOFA. In very few cases DOD and Apartment Deeds    were   registred by some reputed builders who were aware of  legality of  ownership and transferability of Apartments in multistory buildings. It is something very, very strange that Subregistrars are registeringthe sale deed of the individual apartment owners without registering the DOD of the Apartment complex by the builders. Such registrations are totally illegal as there is no provision in Registration Act, 1908 for transferring the ownership of apartments in the individuals name.

It is something good that in the legal case filed by Dimond District residents, Karnataka Highcourt has directed the UDD to appoint the authorities to look after the functions as required in Section 5 and section 7(4) of KOFA. UDD has acted upon the same. This will not solve the problem faced by the apartment purchasers and apartment residents. As on today, Apartment resident's day to day living is not being protected by any law/s though the relevent acts were enacted nearly 40 yeara ago.

It is something good to hear from Mr. Muralidhar Rao that UDD has engaged a consultant lawyer (Mr.Panduranga Nayak) to study the matter and come out with the draft revision of the Act. I hope it is the draft revision of both acts, KAOA and KOFA.

My suggestions and request to Mr. Shashidhar Rao to putforth the following with the consultant.

1)There is no need of any further study on the subject. As said above, the KAOA and KOFA are nothing but the ditto copy of then existing (during 1972) MAOA and MOFA. By just studying the ammendments done to MAOA and MOFA in Maharashtra state, the consultant can finish his work quickly as almost all the ammendments will be applicable in Karnataka State as far as these acts are concerned. These ammendments are available on google search.

2) I request Mr. Rao to bring to the notice of the Consultant the judgment of Delhi High Court in the WP (C) No. 1959 of 2007 (O.S.Bajpai Vs. Delhi Administration) wherin the High Court had given direction / guidelines to Delhi Administration for quick implementation of the act without further delay. The situation is still worse in Karnataka State. But the UDD is time and again taking evasive plea for implementing these acts. In the RTI case of Mr. C.N.Kumar the UDD official had submitted (on 20-03-2010) to the Commissioner of Information stating that they are waiting for the Model Apartment legislation to be passed by GOI and hence waiting for that bill. In the legal case filed by the  Dimond District residents the UDD advocate had taken the similar stand. UDD has wasted time for last 40 years and  now on the evasive plea of new Model Act of GOI, UDD is again delaying the implementation of the Acts. In the judgment of the above referred Delhi High Court Case the judge has very clearly commented in paragraph 13 to 18 that it is the prerogative of legislature to legislate or not to legislate any act and he has opined that it is not proper for delaying the implementation of the existing act waiting for the new legislation which may  or may not be legislated.

3) The registration of Apartment Owners Associations by the Dy.Registrar of Coperative Societies( Separate wing to handle KSRA in Co-op dept after transfer of this work from the Office of  Inspector of Stamps and Registration since August, 2008) is illegal as registration of such associations is not included in section 3 0f KSRA. There is NO gazet notification for such registration of Apartment Owners Association under KSRA.

4) With the Gadget notification (UDD) of 14-03-2012, the responsibility of implementing section 5 of KOFA lies with Co-operative Department. As mentioned above implementation of KSRA is also with Co-operative department. Co-operative department has illegally and suo moto taken the responsibility of  registering all sorts of (With DOD and without DOD) Apartment Owners Associations without legal backing under KSRA or Govrenment Gazet Notification. The same Co-operative department is reluctant to function as Competent Authority in KAOA and KOFA for the last 40 years. With the gazet notification of 14-03-2012, the Co-operative department has now agreed to take the responsibility of implementing section 5 of KOFA. In this background, the Government should work out ways for correct and legal implementation of KSRA , KAOA and KOFA.

Let us hope that Mr. Pandurang Nayak will do justice and take proper decision for implementing the KAOA and KOFA. Let us also hope that engaging the consultant is not another delaying tactics of UDD for implementing the Acts. We have to wait and see the real outcome on the issue.

Regards,

Ajit N.Naik

 

 

Apartment Law and its niceties

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Latest from Maharashtra, which in common perception, is invariably in the 'lead'; a role model, so to say !

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/06/at-news-on-m20-bonds-maharashtra.html

At the end of the day, one is regretfully obliged to remain disapponited, disillusioned over the fact of life that, the special enactments applicable to flats and apartments, - despite, in comparison, having been structured resonably well, in the simplest language possible, with the least scope for complicity or complexity,- continue, for so long, to prove for some to be muddled with confusion; tragically, worse confounded by advising professionals. ('editing' deliberately avoided)

Is there at all really no solution OR at least a way to try...?

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For some more clues, which hopefully may help in carrying forward the task on hand herein, and especially in the right direction, see the latest add-on @

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2011/10/awareness-v-awakening.html

Is there at all really no solution OR at least a way to try ..?

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....for salvation / saving the future !!!!!???????????????

For some more clues, which hopefully may help in carrying forward the task on hand herein, and especially in the right direction, see the latest add-on @

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2011/10/awareness-v-awakening.html

ROCS named the 'competent authority' - more thoughts!

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In the posts herein, aggrieved individuals have given vent mainly against the difficulty continued to be faced with ROCS, being the designated 'competent authority' for the purposes of the KAOA. The difficulty complained of, it requires to be realized, is not an insurmountable one. It could, in one’s view, be successfully overcome and resolved, provided it is discussed with the ROCS, if necessary with the assistance of a competent Counsel, in proper light; and pinpointing to him as to why he cannot rightly refuse or be reluctant to discharge his responsibility / duties as entrusted to him very clearly under the KAOA.

In the KAOA, ROCS is named the authority for certain specified purposes, mainly for meeting the filing requirements. To be precise, he is the authority with whom the following are, as is mandated by the law, ordained to be filed:

1.  A true copy of the Declaration in Form ‘A’ (together with the ‘bye-laws’, executed and registered by the ‘promoter’) – SUB-SECTION (2) of SECION 11

2. A true copy of the ‘Deed of Apartment’ (sale / conveyance deed) – SUB-SECTION (2) of SECTION 12

3. A copy of any amendment to the EXHIBIT ‘B’ (Bye-Laws forming part of the registered Declaration in Form ‘A’) – SECTION 16

Besides, the points below, also require to be essentially noted:

A. As provided in the KOF Rules, ROCS is the authority, who the Promoter should formally inform regarding the apartment takers’ proposal to submit the apartments to the provisions of the KAOA -  RULE 9; and

B. As is more than adequately provided and made clear or borne out, the promoter should execute the final conveyance of the property (comprising the land and apartment building thereon) to the ‘association of apartment owners’, after it is duly constituted – RULE 10

Pithily stated: According to a harmonious reading and understanding of the applicable law, it is principally the Promoter who is obligated to ensure compliance with among others the above mentioned legal requirements, to the end of forming and having in place a duly constituted ‘owners’ association’. For obvious reasons, the Promoter would be in no position to discharge/fulfil his mandated responsibilities, without the active help and co-operation of ROCS. In other words, ROCS has an importantly active role to play throughout the entire process. Any reluctance on his part to do so, whatever be the reason behind, to say the least, will be tantamount to a gross failure or grave deficiency in the performance of his duties. And, for all the attendant consequences, foreseen or otherwise, he will render himself, it could be rightly urged, accountable and answerable in law.

ROCS, as unequivocally spelt out by the law, is the authority for receiving, taking on record, and maintaining a register of the documents so presented and filed by the Promoter. There could conceivably no doubt that his inherent responsibilities are so onerous, failure of which entail far reaching consequences, that under no circumstances, or on no technical ground (such as any obviously unintended lacuna or incompatibility between two enactments), he could refuse to act accordingly.

Going by reliable information, the enactment namely, the Karnataka Co-operative Societies Act, under which he is appointed, does not provide in so many words for ROCS to act as the competent authority under the KAOA, hence his hesitation or reservation to act as such.  Even granting that is so, it is a matter which ought to have been sorted out long ago in discussion with the ministries concerned. Or in any case, it is high time to have it resolved, as speedily as warranted, at the government level; and perhaps, among the concerned authorities themselves. In any event, whatever be the reason for laxity any longer or further inaction on his part, it cannot come to rescue, or serve as a valid defence, if ROCS were to continue to disown his duties entrusted / expected of him under the KAOA.

Incidentally, there is an unexplained, rather yawning gap, in understanding and reconciling the positive and welcome past developments as narrated in the write-up in public domain @ http://www.mysooru.com/article1.html and the still obtaining field reality.

It is earnestly hoped that the viewpoints volunteered as above will be of assistance to the persons giving the lead @praja in deciding upon the furher course of action, as considered suitable in consultation with a competent counsel.


 

Ref.today’s TOI Issue on Property, Legal Eagle

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In his query, ‘A reader' (last one in the column)has indicated that his is an old apartment complex (year 2001).The learned advocate cum columnist, in his answer, seems to imply that, even so, it is still possible for the complex to form an 'association' and have it registered.

Strictly speaking, that will be possible provided the concerned promoter/seller has taken care, on a timely basis, particularly before his formal conveyance of the property to the body of co-owners, of the primary legal requirements, - namely, the formalities of execution and registration of Form A and Form B.

However, it might be worthwhile for the people @praja to seek and obtain the Counsel's opinion, preferably in writing, on all related points of doubt. The most predominant doubt of all is this: Whether, in the absence of a clear-cut provision in law / clarity, it is open to the community of co-purchasers, or anyone or more of them, to urge, validly so, that, unless and until he has fulfilled all his lawful obligations, -(for a list of them, see the Blog @http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/02/final-conveyance-of-apartment-building.html)- / such point in time a duly constituted owners’ association has come into being, he cannot be regarded to have finally conveyed the property to them, in its absolute legal sense.

That, as one may readily visualise, might help in taking the issues forward, for finding an early solution.    

May prove an opportunity to get first hand clues on the topic !

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More interaction means more clues !

(no interaction can only lead to being left clueless, for EVER, TO ETERNITY)

 

 

"Deemed Conveyance"

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This is a concept, which may be found referred in a previus Post .

Of course, known and enacted on, as of now  in only Maharashtra; why not in our State (besides others) as well !

 

Court & Bar - a view !

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I Why is the need to shun courting litigation! To know pitfalls >

"There is the lighter side to the law- mainly fed by the ignorance and foibles of men. There are few places where the amusing and exasperating sides of human nature can be watched so closely and so continually in a court of law. There is your opponent, who, though vanquished, can argue still. There is your client whose cupidity is sometimes matched only by his illiteracy."

Can anyone honestly dispute, that was truly but wisely said by the renowned legal luminary, Palkhivala (in his speech broadcast over All India Radio- 'Professionally speaking' (year 1968) - WE THE PEOPLE). 

II Why briefing counsel requires an intelligent involvement! >

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/07/formation-and-registration-of-society.html

another small step

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Today, Murali sir and I met with the lawyer taking a relook at KOFA and KAOA for the UDD and conveyed our view points to him and gave feedback on some of his ideas. He plans to submit his draft to the UDD in 15 days to a month..

Still a long way to go before real progress on the books and in implementation.

A wake-up Call (once more)

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New philosophy to suit our times : It might never be too late !

Excerpts from latest add-ons in the related Blog:

wrt AT News

Penalties for non payment of development charges by builders : Maha CM

It is high time that the other States, including Karnataka, also wake up from decades-long  feigned sleep and think of  and  taking, all such necessary steps, towards accomplishing the same laudable goal aimed at by Maha.

Occupancy Certificate Scheme soon : Maha CM

The report of the Maha scheme 'to regularize' has come to be announced not a day too soon. However, the most startling  and reprehensible is the simplistic  mention,  that "BMC can charge Rs.500/- per day as penalty to the occupants of buildings..." Needs to be realized that, indisputably, if at all, it is only the BMC and/ or the builders/developers who are solely  responsible , hence truly the culprits. As such, the builders / developers being the prime offenders who could by an logic be lawfully penalized; certainly, not the helpless occupants victimized.
 

Viewing from a different angle

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Tax case

Resident welfare societies cannot be granted sec.12A registration

<> The dispute is confined to the point whether or not a rwa qualifies for registration u/s 12A of the IT Act.  As such, the discussion has followed a single track. In that, it has  failed to address itself to a more crucial and  fundamental point; that is,  whether or not any such association, having regard to its objects, first of all, qualifies for registration as a ‘society’ under the Societies Registration Act itself.
According to a well-reasoned view, the answer can only be an emphatic, –  ’NO’. If so, the instant case clearly goes to demonstrate the truth underlying the proverb – missing the wood  for the tree.
The related proposition may be found to have been discussed in numerous material made available in public domain. That is in the specific context of  apartment buildings in Karnataka (Bangalore, etc.) requiring to be registered following the elaborate procedure as mandated under the applicable special  State enactment, which, simplistically  but blindly, as a matter of convenience, are  known to have been / continue to be registered, wrongly so, under the patently  inapplicable- Karnataka  Societies Registration Act.
To  know in detail,  recommend to look up the viewpoints  canvassed in the larger interests of the concerned public  through the  popular Blog, – @ http://praja.in/en/blog/m
As in most of the States the enactment governing registration of societies is no different, the above referred points must be of equal relevance to all of them.  


 

 

VAT and Service Tax latest worries !

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Presently ongoing  debate on controversial  levies of VAT and Service Tax has once again brought to the fore /lime light, though for wrong reasons, the continuing irregularities in the ubiquitous ‘realty ‘ sector,  admittedly but rightly dubbed as a  highly disorganised sector. Prominent and topping the list are the defaults or delays committed more often than not by builders/ sellers of Flats or Apartments, not excluding some so called reputed builders. They pertain to, besides others, in not completing the construction within the promised time frame or even unilaterally extended dates; in failing to have a formal agreement to sell, executed, signed and registered, in flagrant violation of the mandate of the law; and in not executing and registering final deed of conveyance, and effecting final conveyance to the co-purchasers, after proper compliance with the several mandatory requirements of the law. Two such requirements worth a special mention are procurement of ‘completion certificate’ from the competent local authority, and having an apartment owners’ association (or if flats, a co-operative housing society) formed and registered, to which the final conveyance of the entire property (i.e. land and building (s)) is required to be effected.

Turning to the above referred VAT and Service tax levies, in a manner of speaking, they are inter related. As such, the irregularities, including the delays and defaults have an adverse  bearing on the incidencde / levy of VAT and Service Tax. Therefore, any attempt by builder to demand and collect these levies, which are principally his liability, could be successfully resisted on lawfully valid  grounds.

As per present ruling(s) of court(s), the levies are, by and large, considered to be a fait accompli; though not in one’s strong conviction rightly so, unless and until the pending final verdict of the SC comes to be delivered.

Be that as it may, the information increasingly available in print and electronic media in recent times carries any number of disgustingly related stories, and discouraging expert views on the entire scenario. For one such story, though having its locale in Mumbai, attention is invited to the lastly published article @ Sales Tax Raids on Builders - Accommodation Times.

Incidentally but importantly, participants on this website are eagerly looking forward to know of encouraging development since, if any, on the subject project.

Law on "UNITS" - Awareness / in quest of !

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Permission for any construction on the terrace of building:HC *

On the first blush, one's guess is that the dispute pertained to a building comprising 'flats'. If so, according to the applicable law ( MOFA, and rules there under) the ownership of such property ((land and building) is essentially vested in, and belongs to the co-purchasers of the flats, in common. Further, as mandated by the law, there is expected to have been in place a duly constituted and registered legal entity, known as co-operative housing society (not a ‘RWA’ as mentioned).

The law, in one's view based on an understanding of it, unequivocally provides, and clearly envisages, that it is only such a legal entity  which has the power to take any decision or give permission; that is, - in regard to any such  portion of the  property, which as per the law is entitled to be owned and enjoyed only as the common property (that will include the open terrace) ,  of all the co-owners as a body in its true connotation.
 
The narration in the write-up seems to make no reference or provide no useful clue on the mentioned crucial aspects. Hence, for a better, if not a wholesome, understanding of the implications of the HC judgment, it requires to be read in its details.


 

A Fall- out Tale >

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One can readily realise from the realted story @ @ http://indiankanoon.org/doc/1418982/ that after all,  things are not so bad in Maharashtra as in Karnataka; with the very much desired arousal / awareness of the purchaser's rights evidenced / noted in the first -  mentioned State.  

Bangalore (The OLD) Nostalgic Thoughts shed by an -'oldie'!

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BIG BLR KEEPS MARCHING TOWARDS PROGRESS TO ETERNITY - AGREE ????
 
Towards eternal bless - of ignorance OR ?????
 
Do you agree- 'ignorance' can be tolerated and taken in the stride; BUT CETAINLY NOT "IMPERTINENCE" (vergig on "chicanery")!!!!!
 
Worth a LOOK: if not a profound introspection >>
 
From : 'INDIA OF THE PAST' - link <http://www.indiaofthepast.org>
those interested may find further links with the past there.
 

Bangalore Bus Route No.11 in the 1950s

 
Editor's note: This is a modified version of an article that was posted here http://churumuri.wordpress.com/2008/12/07/once-upon-a-time-in-bangalore-on-route-no-11/
 
More TO FIND if intelligently looked for and sincerely scouted around !
 

latest AT News on CREDAI, Bombay Chapter

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@ link : 

CREDAI taking foot ahead to protect buyer rights

Q

Recently passed Noida Extension after 10 long months is in fuss again. The buyers are in biting nails situation and fear the fresh problem of cancellation and unethical demand letters from the developers. The recent protest of all the buyers clearly shows the anger and anxiousness.

In a meeting, CREDAI has issued a set of instructions to all Noida
Extension developers asking to protect the existing buyers interest. It has strictly asked the builders to not charge any extra money from existing buyer, making changes in original layout and do not issues any cancel letters.
Spokesperson from CREDAI said that we have maintained throughout the plan the price hike will not be burden on old buyer and we have given set of directions to all the builders. Also we have directed to developers to ensure to buyers who have paid the mandatory 10% of the Basic Sale Price must not be threatened with cancellation. One copy of this direction is given to the buyers association to ensure them.
 
UQ
A move from Builders' Association, extending a seemingly helping hand  to the harried buyers'  community at Noida.
 
The buyers ' communities in  the other parts of the country, PARTICULARLY IN BENGALURU, are looking forward for a similar move and positive steps, rather more comprehensive ones, from the respective Chapters of  Credai , long pending, hence requiring immediate attention/priority.
 
Is CREDAI listening !
 
 
 

 

Article of sanv@citizenmatters

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Attention is invited to added comments (to be contd.)

kaoa - a creature of the law, yet a myth (mirage!)

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Read the new posts @commonfloor  

'MAHA' on the lead, AS ALWAYS BEFORE >>>>

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To whomsoever truthfully intereted in 'improving upon'...

Why "KAR" cannot care to even just take a sincere note / get  a grip of the clues from the WEST and make things work, so as to put an end once for all to the agonising state of affairs prevailing fo too long to bear ?!

'AT' NEWS for today (and, many more) >

Pay Rs.100 per day if co-operative flats not registered

 

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