Should a multi-storied apartment complex association register itself under Societies Act?
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".
- Login or register to post comments
Forward this Project Blog
Praja.in comment guidelines
Posting Guidelines apply for comments as well. No foul language, hate mongering or personal attacks. If criticizing third person or an authority, you must be fact based, as constructive as possible, and use gentle words. Avoid going off-topic no matter how nice your comment is. Moderators reserve the right to either edit or simply delete comments that don't meet these guidelines. If you are nice enough to realize you violated the guidelines, please save Moderators some time by editing and fixing yourself. Thanks!
Comments
update
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.
any updates on this?
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
@ 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.
Thank you Murali sir
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
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.
Charge for filing audited balance sheet for associations?
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
Rs.100 for every 1 lac rupees, that is 1%.
No, its 0.1%... which is still not equal to 0.2%
clarification
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.
RTI query filed
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.
response received, but - - -
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
Is there a way for me to join in this?
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
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
The text of the original queries filed by Mr C N Kumar:
let's network with all RWA's
@ 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?
Sounds good. I will definitely have one sent out
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
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?
@ 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.
May not be a bad thing
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
@ 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.
Oh yeah, just discovered!
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
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
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
@ 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).
Great, I have a few questions
I will frame and post them here by the weekend and then, post discussion, file with the UDD
status quo
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.
RTI on Registration of Apartment Owner's Association.
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
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?
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
@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
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
@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
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
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
>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
http://vswaminathan-vswaminathan- swamilook.blogspot.com/2011/09/misrepresentation-law-of.html
http://vswaminathan-vswaminat
http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/09/misrepresenttatiion-law-of.html
One is not clear at all as to
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
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
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
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
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
@ 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.
Re:classic case of misuse
@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
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
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.
CREDAI and credibiilty
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
Real estate transparency bill in the offing
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.
New legislation
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
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.