This refers to the published article @ Business Standard.

It is not just the default in 'timely completion' of a project complained of , but there are any number of other irregularities persistently perpetrated and callously indulged in by many of the builders/sellers of apartments. That is a scenario commonly noted in almost every state/city. They choose to do so, being well aware of, but in blatant disregard/violation of, the numerous mandatory requirements of the applicable special law, impacting / impairing in no small way the very lawful rights and interests crucial to the purchasers.  

As rightly said by Mr Singh, prescription of a ‘standard agreement document’ might serve as an effective corrective step; and if mandated to be followed, also enforced rigorously, might go a long way in setting things right to a great extent. Such a step is not merely the need but cries aloud requiring to be taken on a war footing. In fact, this is a significant suggestion included in the feedback comments sent to the Housing Ministry long ago, in reference to the Regulatory Bill, still remaining to be enacted.

Further, Singh said, “A proper scrutiny is possible only if the case reaches the Supreme Court.” That, however, cannot be accepted as the right or sane approach expected from the NREDC. For, what has been grossly omitted to be taken a note of is that, the constitutional responsibility to think of and resort to proper proactive steps / course (s) action rests, wholly and solely, with the concerned governments, both at the centre and the states, and the respective executive authorities ; certainly not  with the Judiciary / SC. For useful clues and guidance , one may look up the Judgment of the SC delivered, after decades, against the till then  ongoing practice of GPA  for effecting transfer of property, in daring and heinous violation of the for-ages- known common laws on registration, stamp duty, so on.

As earlier on observed, the text of the  subject law in public domain, on a closer reading, is noted to have several aspects , which might have undesirable consequences affecting the consumers' intersts at large. For instance, it mindlessly provides for phase (block) - wise approval of a project  completion.

To top it all, the new state law as framed does not take cognisance of , and  has not been  so tailored as  to fit into /accommodate,  but flagrantly bypasses  the already mooted but remaining to be enacted Regulatory law mooted by the Centre, genertally applicable to all the States.

 As  noted from his posts, in his ongoing litigation pending in court the principal issue is against the indisputable illegality / unlawful registration of body of  apartment owners as a ‘RWA’ under the KSRA; instead of, as 'Owners' Association' under the KAOA.

Having regard to, and being conscious of the overwhelming uncertainties obtaining in every connected field (mainly, the growingly gloomy ‘politics’ and ‘economy’), any dramatic change(s), as is the wishful thinking, taking place either through legislation or departmental action could be regarded only a very remote possibility. In such a scenario, as may be well imagined, the solitary hope lies in a favourable outcome in pending court proceedings. Provided, of course, that has the avowed effect of conclusively setting right, once for all, the vexing principasl issue, also all other closely connected ones, not before long.

It is only fair to expect that Mr Naik, as a proactive participant, will keep the others promptly informed about any progress, if and soon after, made.  

Recommended for a case study, the SC judgment reported by Taxguru @

Transfer of Flat After issue of notice u/s. 6(1) of SAFEMA is null & void

The aspect calling for an in-depth consideration has been hinted at in the  comment posted thereunder. 

To dilate, In brief :

In the judgment no mention is made or are recorded any submissions / arguments having genesis in certain basically relevant facts; as such, no way to know, whether the property (i.e. the unit  named ‘flat’ (aprtment' ?) in dispute is, - a property actually submitted , as warranted, to the provisions of the special enactment (called, in short, the KAOA (?) ). Further, if that was duly conveyed and registered, after strictly complying with the mandates / requirements of that enactment  by the builder/seller and the first set of buyers. If factually and actually not so, then , according to a rigid but seemingly right view, as per the law,  the property will not  qualify as one which is ‘transferable’ ( or ‘inheritable’)  as contemplated by / spelt out in the said enactment. Consequently, any other related transaction, including forfeiture thereof by a third party (even it be government / its competent authority as is the case herein) can only be considered to be infructuous ; and if made, can only be legally void , and  ineffective for all connected purposes. In other words, that would bring into being an unenviable or unpleasant situation, almost akin to the mythological 'trishanku' - a misery  of the worst type, verging on perennial sin. 

@ ajit n naik 11 June 2011

If closely  observed, it is highly distressing to note, invariably, any such crisis situation entailing ‘public interest’ (in its profound sense) does not  receive the government’s  prompt attention and quick action, remedial  or otherwise, as wanted.  The only exception is to be found in  cases where there is  scope for the government to  levy any tax, cess, so on,,  and /or  significant collection,  to augment the revenue and enrich the treasury.

A recent case on point is here-The crisis that SAT is heading towards

Comment ::

Q

To react quickly (unedited text)>

This is in continuation of the comments posted on the mentioned earlier Post.

Glaringly, there is in sight a very serious crisis situation, and not far ahead.  Thanks to the indifferent and recalcitrant attitude of the whole lot of them , -the concerned ministries; that is, ministers-in-charge and their coterie, besides the empowered authorities.  There, it seems, can be not even an iota  of doubt that is they, they alone, who  have been responsible, hence answerable, for such things to keep happening all the time; so much so, in the ultimate analysis,  it is the stakeholders , who perforce are confronted with crisis, one  after  another. From the common good perspective, what is essentially required is nothing but an appropriate plan of action, to be followed on its heels by suitable well designed proactive step(s) to   tide over the impending crisis. Instead of leaving scope for any further litigation as dreaded.

May be, to initiate more thoughts, one can readily think of a common sense analogy : Imagine a train which  is on the right track and running at its top speed. Its driver all of a sudden comes to notice ahead a rock abutting the track. How best  to avert the tragedy/ disastrous consequences faced with – except by the driver applying the hydraulic break to bring the train to a grinding halt, and proceed only after the track is cleared. Despite that entailing certain inconvenience, or repercussions,; which,  in comparison, could not but be far less serious.

(may be continued)

UQ

Subject to sharing more info. on the present state of affairs @ the Registry,

seemingly worthwhile giving more thoughts on the indicated lines

Here > “If you can’t sell it, increase the price”

Sporadic reaction:

As a preliminary to an intensive eye test medicinal drops need to be administered for ‘dilating’. No test is possible , -hence eventually, no surgery ,- to anyone refusing to submit to the said preliminary. The reason, as one can readily imagine, is that he must be suffering from anyone or more of human weaknesses or idiosyncrasies of extreme type - viz .  Obstinacy, mental block (an aberration, no less serious than blood clot in the brain), - in short, self-centric (-ishness) ( or egocentric)  to the core (with not even an iota of concern for the common good), or the like. These, with no ground for a quarrel, are all commonly perceived traits even amongst the so-called ‘literates’, who are so dogmatic as to refuse to behave as ones. The imponderable is this: -Could the outcome or the end result be expected to be other than a tragedy, with far reaching dire consequences, verging on catastrophe; with no hope for salvation or improvement whatsoever, to eternity.

in the drafting of  any contract agreement :

Many of the problems, woes, hassles, so on, invariably  faced are because of deficient drafting of  contract agreements (e.g. agreement to sell or sale deed for apartments) , more often than not, knowingly, with ulterior motives on the part of Vendor. There are several clauses NECESSARILY TO-BE-INCLUDED , HENCE TO BE INSISTED UPON, IN EVERY commercial CONTRACT AGREEMENT , with no exception. E.G Indeminity Clause,  Arbitration Clause.

To know of an instance of glaring deficiencies in the drafting of  'indemnity clause', and the regrettable  repurcussions,  though in the case of a commercial contract of a different type, look up:

There has been, as lately realised but widely regretted, considerable confusion in understanding the law on apartments (nearly 5 decades old), in Karnataka (KAOA). In published articles on the subject,  a couple of recent ones on this website, attempt has been made to bring about some clarity. However, awareness or true awakening among the people with vested interests, despite being aggrieved and concerned, is nowhere in sight. An effective administration of the law by the ministries and empowered authorities still remain a pipe dream. So much so, a persistent failure in enforcement of the law continues to be worrisome and of common concern.

2.1. Meanwhile, recently, one more disturbing instance has come to be known. That is where purchasers in an apartment complex are confronted with difficulty in having in place an owners’ association. It appears, the problem is mainly because of lack of clarity on the concept of “registration of owners’ association”; for, no knowing what that exactly means. Nonetheless, it is not such an irresolute problem as imagined to be left with no solution; or to panic or feel weak in the knees.   

2.2. In many of the posts herein, just as elsewhere, the term ‘registration’ is commonly used; and considered a prerequisite for bringing into existence ‘apartment owners’ association’, as a ‘legal entity ‘.  Expert professionals in practice of property (apartment) law also are noted to freely use that term, unwittingly or otherwise. Notwithstanding that, the fact remains, unlike in several other statutes, there is no provision or prescription, laying down any procedure for such ‘registration’. Instances of such other statutes are, just as the KSRA,   - Company law, Partnership law, and Public Trust law. They, in terms, unlike the KAOA, lay down the procedure to be strictly followed for bringing into being the respective legal entity viz. society, company, partnership firm, and public trust. Even so, that should not come in the way of formation of owners’ association, provided the procedural aspects as laid down in the KAOA are taken care.

3. In the given case, sale deeds are said to have been registered with the registering authority; and Form A as well. But Form B compliance has remained pending. The purchasers have taken up the issue with Vendor. On enquiry, it is learnt that, there is likely to be a stalemate. The fear is, there could be delay in having established ‘owners’ association’. Consequently, there is no certainty whether, and when, Vendor would be in a position to fulfil his remaining legal obligations; which, in short, are these:–

Convening the maiden general meeting of owners’ association;

Electing a managing committee and office bearers; and

Vendor completing the process of formal conveyance of the property (land and building, together with its common areas and facilities) to the co-owners , through their association so duly constituted.

To sum up:

The forming / setting-up of owners’ association should be easy to accomplish, provided the primary requirements and procedure as spelt out in the KAOA are understood and followed. Briefly stating, - conveyance deed, declaration by vendor in Form A, and declaration by each purchaser in Form B are the 3 documents which need to be registered with the sub-registrar (stamps) , being the empowered registering authority. Having done so, -on which there should be no difficulty, - what the law further requires is simply that a copy each of the said 3 documents (i.e. conveyance deed, Form A and Form B) be filed with ROCS, being the competent authority named by the KAOA.

Compliance with the second mentioned requirement may, of course, prove a stumbling block, should ROCS persist and continue to refuse to act and discharge his duties and responsibilities entrusted to him as the competent authority named  by the KAOA.

Is there no solution or easy way out of the stalemate ?

To be continued..

After going round and round, our legal expert Mr vswami has finally come to the relevant point, at last or at least now, to say that the culprit is the ROCS in not effectively implementing the provisions of KAOA 72 and its Rules. I did bring out this point as far back as on 6 May 2012 at 6.04pm (please see above) and sought suggestions to take action against the authority. Even Mr vswami's latest post does not say about the action to be taken. Can we file a writ petition which might be very effective and who will bell the cat!?

@commander v joshua 8 Dec (a follow-on)

The message  leaves one with an indelible impression that  he is restive and itching for initiating court litigation, by filing a writ petition.

Ostensibly that is a matter in which, if at all, only an 'expert lawyer' in practice, duly equipped, especially having due exposure in constitutional law,will be competent to proffer an advice.

It is my individual belief (open to correction, if I am wrong), this is not a forum of or for law experts; so much so, will be unfair should anyone expect even any suggestion, to be of useful guidance in regard to any such intended move.

Incidentally, I happened to casually  recall, and crave leave to share, the opinion of a noted legal luminary  and outstanding constitutional lawyer of our times .

To requote late Palkhivala :

Q

The greatest illusion of our people is the infantile belief in the legal solubility of all problems. In the wise words of Lord Halisham, the former Lord Chancellor of the UK, "We might do well to remember that in the whole realm of human relations there is no field more vulnerable to corruption, dishonesty, chicanery, and sheer quackery and charlatanism than contested litigation..   real, imagined or invented”. We might also do well to consider that few of the safeguards we have achieved against these evils...” 

UQ

(from his published article in TOI, july 9, 1990)

PS: Having shared again with the best of intentions, as a prelude to my further endeavours, but with the hope of not being accosted with any more insinuating remark  of "going round and round". 

 I am extremely sorry that my comments appear to have offended Mr vswami. It is neither my intention nor is the purpose of participating in this blog to go personal aginst another active participant. I, indeed, am of the sincere openion that Mr vswami is an extremely well versed legal luminary and with that in mind, probably expected quick and result oriented suggestions and may be, a solution to this vexed problem. I agree with him that court litigation should be the last choice as it may take your time and money. Nevertheless, 40 years appears to be a very long time (since KAOA 72 is passed by the Legislature) for soft peddling this issue with the authorities in the Government. I find from High Court judgments available in the website, the Karnataka HC judes are amazingly swift and highly fair/intellectual in disposing the writ petitions. (Please read some of the judgments of, for example, Justice Ravi Malimath with respect to speed and quality). Keeping this in view, I suggested a writ petition. Once again my apologies to Mr vswami assuring that no insinuation is intended.

WITH HEARTY SEASONS' GREETINGS

aside>

http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/12/arianna-huffington-year-we-prioritize.html#!/2012/12/arianna-huffington-year-we-prioritize.html

contd.

Following is an extract  from the above cited write-up in THE HINDU :

"Through these laws, buyers of apartments in multi-storeyed buildings are given the ownership right, which is inheritable and transferable as immovable property, along with certain portions of undivided rights over common areas and facilities."

If read critiacally, in one's firm view (may be, at best requiring an endorsement by a competent law expert), the correct position in law has been misconstrued.

To reason out :

In respect of an apartment, conveyance of the 'property' takes place / becomes finally and fully effected in two stages:

a)  Pursuant to the individual conveyance deed, on registration, what is transferred and physical possession given, to the buyer is only of the apartment  (its exclusive area) ; but of the common areas and facilities', he is given only 'constructive possession' , as opposed to strict lawful  'physical possession'.

b) Only on the formation of the 'owners' association' as envisaged by the law, that the property in and legal possession of  the attached  comon areas and facilities, including the exteriors of the building and land, could be effected, and therefore, accordingly, gets effected and  transferred to the body of buyers constituting , as co-owners, the said association as a legal entity.

In short, one is , beyond an iota of doubt, of the conviction, that such is the strict position in the eyes of law would have quite weighty legal impllications, favourable to  the buyers' benefit; also come to their rescue, should they be faced with any confrontation with their Vendor.

The foregoing aspects , it may be noted, have been brought out at length in the previous messages saved herein before. In fact in one of them, it has been indirectly suggest6ed that Advocate Anup Shah could preferably be approached for expert guidance.

>and critically vet/have vetted, before affixing 'signature' (more so, if - thumb impression) :

Indiacorpblog > Contract Drafting: Indian Style

Reproduce below, what one wrote in the article, INVESTOR PROTECTION - A MYTH? (2005) KLJ pg 17, 21; the burden of the song underlying the quoted viewpoints, it is to be noted, is not materially different from that of this write-up. However, it calls for a further study whether the style of drafting is any better across the globe!

XTRACT:

A seller of Apartments often takes from the purchasers large sums
promising "lifetime maintenance" of the building. Invariably, one finds
that, in none of the relevant documents it is made clear what the term
"lifetime" in this context means. That is, whether it is of the building, or of
the purchaser, or of the seller. This is obviously a Grey area, so much so
the chances of the purchaser are left high and dry at some point of time
in future seem real and cannot be ruled out. Especially, if the seller is a
partnership firm.

In the documents of sale (i.e., agreement to sell and sale deed), just as
in any other contract agreement, in the initial paragraphs, are set out the
names, addresses and other particulars of the parties thereto. Always
added, as a matter of conventional drafting, is a stipulation to the effect
that the seller/purchaser named therein includes his/their heirs, legal
representatives and assigns. It goes on to stipulate to the effect that
wherever/whenever the context requires or admits, the term
seller/purchaser also includes his/their successor-in-business, or
successor-in-interest. However, the question whether or not, or in what
circumstances, any such stipulation (intended to be covered by the words
in italics herein) could be called to his help by the purchaser is difficult to
answer. For example, take a case where the seller is a partnership firm
and it is succeeded in business by another firm. In that case, it would

entirely depend upon the terms and conditions subject to which the new
firm takes over the business. To put it differently, one cannot always take
it for granted that all assets and liabilities (including all the obligations,
besides the rights and interests) of the old firm would be taken over by or
devolve on the new firm in entirety. As such, should the terms of
succession so provide, it may transpire that the rights and interests of the
purchaser derived from the old firm do not survive after the succession;
that is, against the successor-firm.

@ vswami on 14 December 2012

contd.>

Refer following:

1.FAQs on WILL

2. Business Line : Today's Paper / OPINION : Laws of inheritance ...

In both these write-ups (first one by a CA and the second by an eminent Advocate), it has been emphasised why the poupularly known instrument called  "WILL" (according to the Advocate "SETTLEMENT") is a must ; in order to safeguard one’s lawful  rights  and interests  in a  property  held or owned, not  only from the viewpoint of present holder or owner but also from those of his/her ‘successor’,  in the eyes of law. The Advocate, for reasons discussed, is seen to have favoured "SETTLEMENT" as a better aslternative to "WILL". He has also gone on to suggest among others that it is possible for the settlor , with a view to protecting his own or spouse's interest/welfare, particularly during his/her own lifetime, to have the same safeguard provisions inbuilt, as in the case of a "WILL".  Be that as it may, in one's individual perception, rather prfoundly  rational  and mindful practical thinking, especially having regard to the natural human behaviour come-across in general, and met with  in modern times in particular, the preference may possibly veer round to "WILL". 

That, however, is not to be regarded to have SAID ALL or providing a wholersome solution to all conceivable situations OR  types of 'property'.e.g  units of a building - "Flats' or 'Apartments'.

To dilate:

In today’s scenario, by and large, anyone having the wish and will to invest, be it for own use /occupation or otherwise,  considers it a better choice, for more than one reason or objective, to go in for such ‘units’ of a building.But, as repeatedly canvassed, difficulties of an insurmountable nature have come to be widely experienced , should no care or insufficernt care been taken to ensure that the two essential rights to 'transfer' or 'inherit' are fully secured. 

Beiing well aware of, and realised for long, the apathy of the men in overnance , so also of socalled  'public servants'  responsible for administration of the law, it is now exclusively  left   to the victims /sufferes to devote serious thoughts , and pursue devoutly, to the end of  bringing about an improvement , and satisfactory solution.

It is in this context that the need for 'nimination' requires to be given a serious consideration; for, perhaps, that holds the key for redeeming the otherwise hopeless situation. 

( open to be edited/modfied)

has come to be tasken NOT A  DAY TOO SOON !

CCI will be creating model framework for commercial agreements$

Xcerpts>

Reading in between ...

on the lawful ground of of 'mutuality' >

For knowing about some recent developments, which must be of common concern, Ref.-

In an earlier post, reference has been made to the tax case of , -S Majithia, reported @itatonline. As a follow-on, wish to invite special attention to, besides  the detailed  comments posted therein, the article (critique) since sent and published @ 

http://taxguru.in/income-tax/itat-order-shantikumar-majithia-dcit-itat-mumbai-critique.html

This add-on is to pinpoint  that, though the referred comments and article are directly related to tax disputes, their relevance or importance having a close connection to the ongoing endeavours through this project @praja;  however remote one may take it to be, ought not to be overlooked or taken lightly. instead, if mindfully gone through might help in pusuing the endeavours more effectively; perhaps, as fruitfully and expeditiously as desired.

(to be contd.)

TO ENTHUSE AND BRING CHEERS :

Right to form a cooperative society is now a fundamental right of the citizens

Here is some latest information from AT.

On the first blush, it appears, the reported development should bring to the aggrieved community of buyers of 'units' in buildings, a years-long awaited move from the Central Government.

Of course. personally speaking, the true implications of the reported amendments of the Constitution itself, with the ostensibly laudable claim / aim of bringing  succour to the impacted people , on the primary area of grievance, call for an intensive study and conclusions. ALSO WAIT FOR FURTHER DEVELOPMENTS/ ELUCIDATIONS.

In the interim, no doubt,, ONE MAY RELAX BUT  HAVE TO KEEP OWN FINGERS CROSSED AS ALL ALONG HITHERTO.

(unedited)

By way of clarifying own thoughts:

As is expected to be known, also as repeatedly mentioned in previous posts herein, MAHA has already in place a comprehensive enactment on Co-operative Societies; and it contains special provisions separately governing housing societies. That being so, any further amendments thereof would have been to further improving upon and streamlining /strengthening those provisions.

In the last AT news, what have been set out are the contents of the 97 th Amendment of the Constitution, effected almost a year ago (?). One's guess is that, the Ordinance  made a mention of in the News can only be the Ordinance announced sometime ago (to be in contemplation at that time) by the MAHA giovernment, and since promulgated. If so, if at all what one would be interested in knowing is the manner in whch the changes envisaged by the 97 th Amendment have now been incorporated in the State enactment.

Be that as it may, so far as one is aware, the actual fact remains that our native state govermment is still way behind MAHA. In that it is not known to have made any positive  move in the matter, following the footsteps of MAHA.

It is earnestly hoped that the apartments community in KAR / Bangalore, especially the social activists like Praja realise the utmost  urgency and pressing need for taking on and moving the local government  and its authorities effectively and expeditiously, to the end of achieving the avowed objectives.

contd.

Since last post on this topic, there has been no known development in Karnataka.; if any, may be worthwhile to share!

Meanwhile, for further News from MAHA, read @

Empanelment of Auditor for Audit of Cooperative Societies F.Y. 2012-13

Comment:

The write-up confines itself to the state of Maharashtra. However, it calls for a specially pointed mention that the amendments of the Constitution are of relevance and equal application to all the states in India.
 
As of now, till the respective States have carried out the consequentially wanted changes in the own independent state enactments in force, by suitably incorporating the referred amendments in general, and in so far as they are to apply to housing societies in particular, the announced empanelment of auditors is, in no way, relatable thereto. 

 Going by one's information, in certain states (e.g. Karnataka) housing societies (in Karnataka, 'owners' associations) have remained, for long, to be brought within the purview of the Co-operative Societies Act.

Of course, as one imagines, until that happens, auditors would, in the audit reports, require to incorporate a suitably framed qualification Note, so as to bring out the actual factual state of affairs. To hint at, may be, it will require to be disclosed to the effect that the audited accounts of such entities (housing societies or associations) are subject to changes, if any called for, if and when the state enactment comes to be modified and the so amended provisions take effect.

Over to the ICAI and its concerned members for a further deliberation, as considered necessary, for providing useful guidance on a timely basis.
 Cr. Ref. March 9, 2013 

..the Steps taken for its imlementation in Karnataka !

Impromptu:

Prima facie, the idea recently mooted, and the steps reported to being taken, are, indisputably, for the common good of the genuine''legal'" owners of  'property'. That would cover , within its ambit, properties in the form of apartment complexes that have increasingly mushroomed not only in towns but also in the remote parts of the state. As such, all concerned, apart from the owners of individual apartments, the "owners' association" being the legal entity of the co-owners and as such, the body in which the legal ownerhip of the entire proerty in an apartment complex  (land and building) is supposed to vest, should identify , -even now, before it is too late, - all such obvious problem areas as are bound to be faced with, and have them sorted out/ resolved at the earliest. In any event , not to leave them to be raised and taken on only when a crisis situation develops. As practical wisdom should dictate, - "thinking of and planning to cross the river only after reaching one" cannot at all be a prudent decision; especially so, having the road map in hand and knowing fully well that  there is /are difficult river(s) to be crossed enroute.

To hint at: Indicated requirements for the purpose of PR Card, worrisome of them being, completion (occupancy) certificate, and 'khata'.

It is mainly for social activists such as those @Praja to explore and devise ways and means to tide over and make a headway !

(unedited)

CONTD.

By the way, in the add-ons on the subject, recently posted elsewhere on this site, as well as of citizenmatters, so far as one could see,  the need for making the necessary  changes, besides in the law on apartment, in the extant enactment on co-opertaive socities as well, has not been specifially brought out  or adequately stressed. If that be so, the activists might have to consider usefully taking it up in the further meetings on the ongoing deliberations with the Kar. State government.

at least from now on, -even granting its present lacunae / deficiencies, identified or otherwise,- is a MUST ?

For clues , if still be in doubt or in search of an answer , may usefully look up the earlier referred websites. blogs, as since updated/modified ! Further,  the one newly added @: http://taxguru.in/corporate-law/applicability-rti-act-cooperative-societies.html

One of the since additionally made points, calling for a mindful consideration, is that pertains to the audit by a member of the CA profession, of the 'books of  account' of the entity, constituted by and for the common benefit / welfare of all its stakeholders, - being not only the purchasers' / residents' community,  but also the others such as, lending institutions, insurers, service providers, so on.

Meanwhile,

A Wake-Up Call To, - Not One And All; But - The Ones , Who Going By The Wisdom Gathered In Hindsight, At Least Know /Are Consci (enti) ous Or Prudent Enough To Know - For Whom, After All,  The Bell Tolls !

click here

A Step Forward ; Aim Of DDA To Reform Realty ...

For personal views>

http://vswaminathan-swamilook.blogspot.in/2013/05/ny-thinking-at-news-welcome-move-not.html

On this topic, which is of a recent origin, its applicablity to transfer of ;units' has cropped up. Personal viewpoints,  posed for stalwarts' / experts' opinion , have been posted,

@ TDS on transfer of immovable properties wef 01.06.2013 & How to pay   and

@ http://vswaminathan-swamilook.blogspot.in/2013/05/tds-woes-continues-persistently-with-no.html

Note: In quest of knowledge; others' thoughts and views should help.

An Added Dimension vis a vis Arbitration X Court Litigation

http://vswaminathan-swamilook.blogspot.in/2013/06/hsg-co-operatives-recent-dverlopments.html

Arbitration of Shareholder Disputes

>Comments posted - Reproduced below:

and valiidly invoked, might help !

Very often, instances of any requirement – say, to sign a contract agreement, though prima facie because of its terms or conditions or the like being unlawful or illegal, or in any case highly objectionable, come to light but go unnoticed or not being made a conscious note of.

To readily recall one such instance: Not long before it came to be noted that lending banks , PSBs at that, requiring the borrower to furnish an affidavit in the form of a personal undertaking to repay the loan in the event of any deficiency in title or the like attached to the mortgaged property provided as a security for repayment. Albeit any such deficiency , especially where the property is an apartment or flat purchased from the promoter / seller is traceable to and for which the blame undeniably lies with the  promoter/seller, or original holder. If so, and were questioned, rightly so, strict legal position, it appears, is that any  such requirement thrust upon , even if been complied with by, the gullible borrower / buyer could be successfully contested as non-est.; not enforceable in law. That will be so, provided it is case coming within the mischief / on the ground of what in contract law is known as consent given under “duress and undue influence”  ; even if verges on but is strictly not tantamount to “coercion”.

Search Google for an answer; here is one specimen/ typical answer! >

 insitelaw - Law of Contract: Duress & UNdue Influence

www.insitelawmagazine.com/ch16duress.htm‎

An Extract>

< Duress and Undue Influence

There are two important cases at the foot of this section where judgments have been extracted to give you an opportunity to read more deeply.

Barclays Bank v O'Brien [1994] AC 180

A security obtained by misrepresentation or undue influence may not be enforced – the creditor should take pains to make sure that no unfair advantage was gained.

The Etridge case

Royal Bank of Scotland v Etridge (No . 2) [2001] UKHL 44; [2002] AC 773

 Introductory

Adam Opel Gmbh and Renault SA v Mitras Automotive (UK) L:td [2008] EWHC 3205 QB
Read this case to get a feel for the subject.

David Donaldson QC sitting as a Deputy High Court judge

"The general principles of the law relating to economic duress have been elaborated over the last forty years in a number of decided cases, and were not in issue before me. It was common ground that they are accurately summarised by Dyson J in DSND Subsea Ltd v Petroleum Geo Services ASA, [2000] BLR 530 at para. 131 and repeated in his later decision in Carillion Construction Ltd v Felix (UK) Ltd, [2001] BLR 1 as follows:

"The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tanking of Monrovia v. ITWF [1983] AC 336, 400 B–E, and The Evia Luck [1992] 2AC 152, 165 G.

In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he confirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining." 

At common law if a party enters into a contract under duress the contract may be set aside on ground of duress unless it has been affirmed expressly or impliedly after the duress has been withdrawn.

Duress may take several and various forms and, in particular, may take the form of economic duress, but whatever form it may take it must amount to a coercion of the will – such that there was no true consent.

The court will consider a range of factors in determining whether a duress was present and, in particular will wish to see whether the person coerced protested, whether he had an alternative course of action available and whether he sought and took independent advice.

Shivas v Bank of New Zealand [1990] 2 NZLR 327 >

THE ABOVE REFERRED COMMON LAW PRINCIPLES ARE NOT BUT OF NO LESS  APPLICATION, HENCE SHOULD BE OF AVAIL, ALSO TO CASES GOVERNED BY THE CONTRACT LAW IN INDIA.

Below is an extract from the text of an Indian court judgment:

< 41. Language of Section 16 of the Indian Contract Act 1872 shows that existence of a
subsisting relationship where one party is in a position to dominate over the will of the
other has to be established before establishing that an unfair advantage has been obtained
by a party. The common law principles relating to duress, undue influence, coercion etc.
rest on the principle of absence of consent. A person subjected to duress, coercion or
undue influence is said to have had his will overborne so that he was incapable of making
a free choice. But as law developed it was recognised that where the will is not
overborne but is deflected it would be sufficient to hold lack of free will. [See Lynch Vs.
DPP of Northern Ireland (1975) AC 653].>

Key Note: In one’s view, for many of the grievances aired against the promoters/sellers,  time and again, by the buyers’ of flats or apartments, mainly by reason of ‘one-sided contract agreement'  (To Sell or Of Sale) the scope for remedy will be worth exploring having in focus the indicated legal position.

I have just completed almost reading of all the post and comments in this project. Excellent work and contributions by all the active Members.                                                

I really feel ashamed to become the President of one Multi storied Apartments with 127 Flats , without knowing these Rules. I really did not expect the Job will be so tough

I now pledge to improve my knowledge and work hard to protect the intrest of my co-owners who have trust on my Team and would like to use this forum to enlighten me on my task.

I thank all the Active Members, Mr. Murali, Mr. Sanjay , Mr. Ajit Naik , Mr.vswami ( hope I got his name rightly ) Col.Joshua and fActivist Shri. C.N. Kumar for their continous hard work and effective quality contributions for suitable amendments in the Rules and Laws.

I would kindly request the team to enlighten me on my current query.  

  I represent an Association, as President which is recently formed to highlight our woes and to co-ordinate with the Builders to get the finishing work monitored as per our requirement and as committed by the Builders. Upon getting elected, we have intimated to the Builders that, a few OWNERS have been elected as office bearers and requested the Builder to receive and send all future communication with them. We totally 14 officer bearers have been selected out of 127 Apartment OWNERS. In the election process it was attended and our election process was accepted by 64 Owners.

Out of 127 Apartments 30 Apartment pertains to the un- sold units of LAND OWNER and the BUILDER shares have been fully sold.

We have recently started the Association Membership and we are confident of getting around 90 + Owners to obtain Association Membership and we are collecting a copy of sale deed for our records for submission during Registration of our Apartments.

We have also upon electing our Office Bearers, have intimated to the Builders, to submit our Association for Registration under KAOA Act 1972 and so far no response from them.

We have had a meeting with the Builder and submitted him a List of facilities, work, requests from our side and they have give some commitment dates and we have made the MOM (mintues of the meeting ) and intimated them.

The work now is not happening as per our wish and the Builder is not responding properly to the Association mails and continuing his finishing work as per his will and wish.

There are still 8 Flats are to be taken possession by the direct OWNERS and around 27 Flats which belongs to the LAND OWNER share needs to be finished.

The committed common amenities are all half way like Gym , Indoor Game , Pool. The Parking space not yet allocated. Under this situation, we request, what should be our next move ?

How do we break this huge Rock ? How do we proceed with the Association Registration ?

I request to help us by your experience to come out of this crisis.

We could able to see from all the posts and comments that presently the RWAs cannot be registered under KAOA 1972 act as this Act does not have any authority under whom it can be monitored and Registered. Is still there is no resoltuion for this ? it is very pity and sad.

For More >

Section 194IA of I T Act- A Critique (Supplement)

Note: First Write-up since published in,-

2013  KLJ PART - 7, pg. 126

For Updtate refer the lately posted comments @

Deemed Conveyance of Cooperative Housing Society's land - A Fiction on TaxGuru!

Real Estate Appellate Tribunal to be established by new RERA

Re SC- itatonline Link>

to travel nto the future (same way as often-heard-of , - advance booking for a journey to any other planet, years hence)  >

News for complaints against builders By Divya ...

Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1001.pdf

Invited to Visit SC Room AND Listen Proceedings >

•  View oral argument video of this case.

< The cited SC Opinion requires to be made a special note of; for, that should be an eye-opener  and be of positive guidance and direrctional value to anyone still remaining clueless - inclusive of his advising lawyer / law office- if and when confronted with odds, such as, a one-sided and incomplete/deficient contract agreement, having been signed by a buyer , educated or otherwise, blindly, on dotted lines.

Latest Here >

Will you have to pay VAT on your flat? SC ruling to push up property ...

 L&T judgment opens a Pandora&apos;s box | Business Standard

Personal Blog  @ -

http://swaminathanv208.blogspot.in/2013/10/legislative-competence-v-presidents.html

This strikingly marks yet another opportunity coming in the way but lost by, besides  the legal fraternity, everyone else directly concerned / adversely  impacted.

A Wishful Thought  > Would not the turn of events have been altogether different had , seizing the opportunity, the judiciary been devotedly assisted, so as to bring to sharp  focus and appreciate, besides the true implications of the State enactment(s) having regard to its letter and spirit, the very objective behind ?

For Updates, if so minded / interested, may look up >

http://swaminathanv208.blogspot.in/2013/11/realty-o-realties.html

Dear Mr. Shankar,

What are the documents you were able to register with the Registrar? Will you please explain in detail the circumstances under which you were forced to register the documents under KAOA, 1972? Did your builder co-operate with you? Have you registered Declaration in Form "A" as required under KAOA, 1972? Have you also registered the Bye-laws in form "B"  and sanctined plan.

Please write in detail for the benefit of the members.

Regards,

Ajit N. Naik

 Unlike KFOA , the KAOA, in terms, provides for purchaser’s exclusive right to conveyance of “Car Parking”.

For more, the personal Blogs @swamilook on the topic of, - "car parking" ; and

the comment last posted @ http://bangalore.citizenmatters.in/articles/42and02-the-apartment-law-you-must-know#comments

may be read.

Pointedly, @ http://vswaminathan-swamilook.blogspot.in/2013/09/car-park-in-housing-complex-problems.html

The previous post is eaernestly intended to serve as one more wake-up call to the RWAs and like concerned others. And,  it is upto them, excusively for them,, to devoutly consider and decide whether to listen or not, before it meets the fate of another misssed call (missed with no rhyme or reason / genuine excuse !)

Checkmating Some Day (?!)

No Sense of Priorities = No Governance

Toi Today

Vertical growth only way out for Bangalore: CM Siddaramaiah - The ...

"The floating population of the city is 20-25 lakh. The vehicular population is also nearing 50 lakh. Everyone wants to own a house in Bangalore . Every Tuesday during my Janata Darshan programmes, 25% of people come seeking houses in the city. Vertical growth is the only option to meet the demand for housing," he said.

May be or may be not; but certainly not require to be given priority. More so, if government were to have in focus the predominant expectation and most concern of those who are already owning and / or residing in the existing high rise buildings, which is this:  When our long pending grievances requiring to be taken care through proper regulatory /legislative measures, though promised time and again but waiting in a long ‘Q’, are going to be attended ?! To be specific, one is the repeated pleas made for an amendment of the Co-operative Societies Act to bring within its purview ‘housing societies’, at least now,  in line with the 97 th Amendment of the Constitution made effective since months.

A Side Dish (MORE BITTER)

19 MLAs, babus are on a Down Under holiday

The Moment of Truth Hath Come ! Anyone to disagree ?!

A Well -Meaning, - Intended, but caringly given, WAKE-UP CALL (painfully repeated once more, but with a strikingly different stroke)!

>Time to wake up- it is NOW (if not awakened/ aroused thus far).

The proverbial Moment of Truth *, -anyone, with a public- centric approach but profoundly endowed with that  basic  faculty of common sense, - cannot wait any longer TO  Solemnly swear and Affirm ,- HATH COME !

Look back, to remind selves, the utmost  concerns given vent / aired vociferously, nay thunderously, in the very initial stage of this project over the inherently confusing concept, – “COMMON AREAS AND FACILITIES”.  Look Now, - into, rather  through, besides others, the judgment of the highest court of the land, - if devoutly interested to know, - how the self-same concept has come to be interpreted,- causing discomfort not to the purchasers community  alone, but  to the promoters as well, in equal  measure.

To provide a few clues:

Principally, the intended reference is to the lastly reported SC case - Nahalchand Laloochand P.Ltd. vs Panchali Co-Op ... - Indian Kanoon, in which the above concept has been gone into.

To be precise, the cryptic observation in that judgment, which reads, -

“It is, thus, clear that the PROMOTER HAS NO RIGHT TO SELL `stilt parking spaces' as these are neither `flat' nor appurtenant or attachment to a `flat'. (FONT supplied)

This particular finding, endorsing a similar finding in the HC’s judgment under appeal, has, as is common knowledge, given rise to a fresh spate of controversy but of a different nature; though in one’s conviction, neither warranted or called for. Own well considered reason is that, at the best (or worst!) , the said finding could, having special regard to the facts and circumstances of the given case , be rightly taken to be merely an ‘obiter dictum’ ; as distinct from the concept of  ‘ratio decidendi’, so as to be construed to have a binding effect and applied uniformly to all other cases.

To have a bird’s eye view of the controversy floated around, and very much still in circulation, read the media reports; for samples, -

For sampling, if inquisitive, may have look into the media reports @-

Illegal! Builders Can’t Charge For Parking Spaces-Legal Eagle Reports

Builders can not sell stilt parking areas – Supreme Court ...

Implementation of SC order on parking will be difficult, say city ...

'Flat prices will go up to recover garage cost' - Times Of India

http://www.legal-path.com/supreme-court-judgment-car-parking-issues-controversial

*If inquisitive enough  to intimately know what that historical phrase implies/means, may have to  lok up-The moment of truth posted by Marky Mark; further, the informative reply by Victoria S Dennis  @http://www.phrases.org.uk/bulletin_board/44/messages/814.html

If perceptively viewed and incisively considered, -in the aftermath of the referred court case, the fundamentally crucial “ownership rights” of purchasers of ‘Flats’ itself has come to sound, in own view wrongly so, suspect.

NOTE: Requested to read this post as follow-on of the earlier post herein @ SC Ruling on "Common Areas" ; to remain specially  focused on  its concluding sentence.

Also, look into the judgment of the other SC judgment; though settling a tax dispute,  in re.   Podar Cement Ltd.-  reported  in 226 ITR 625 (also @ podar cement - Indian Kanoon.

That is a tax issue oriented case. Yet, may be noted, the court has , in its wisdom, gone to the very roots of , and eminently discussed , the concept of ‘ownership’ rights of a property holder, so also of  holder of a flat.

In the context herein, to aptly quote an eminent Judge, for sampling:

< The purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and eternal sense of it that makes the law meaningful.>

<This Court in Shin-Etsu Chemical Co. Ltd v. Aksh Optifibre Ltd. and Another, (2005) 7 SCC 234 has observed:

69. If the court thinks that an issue does not arise, then any observation made with regard to such an issue would be purely obiter dictum. It is a well-settled proposition that the ratio decidendi of a case is the principle of law that decided the dispute in the facts of the case and, therefore, a decision cannot be relied upon in support of a proposition that it did not decide. [See also: Mittal Engg. Works (P) Ltd. v. CCE, (1997) 1 SCC 203 at p. 207 (para. 8); Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 at p. 560 (para. 17); Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 at p. 206 (para. 23).] >

(Source; SC judgment in Girnar Traders vs State Of Maharashtra & Ors. Dt. 11 January, 2011 -Author: S Kumar J)

http://indiankanoon.org/doc/1383496/

Left unedited

May be contd.

A Feedback:

Attention is invited to the write-up displayed

@Nahalchand's Case

http://swaminathanv208.bl...

That discusses the SC Judgment in Nahalchand’s case, a civil law dispute. The court’s observations and findings have been analysed with particular reference/ having special regard to the enactment of Maharashtra for Flats –MOFA (1963); and also to that on Apartments, - MAOA (1970).

The attempted study could, it is believed, provide incisive clues and may prove useful in likewise taking on/ tackling certain issues, pending in court litigation or elsewhere, under the law on Apartments of Karnataka (KAOA) as well.

Unlike in MOFA, no doubt, in KOFA (1972) the definition of ‘flat’ has not been so framed as to make it explicit that it includes ‘apartment’. Even so, it appears, the same suggested line of reasoning could be pressed into service. As visualized, if successful, that should go a long way in resolving a major, or perhaps a few of the other obstacles, being presently faced by reason of construing KOFA and KAOA as two mutually excluding and independent enactments. In fact, that should be on a strong/better wicket; for which purpose, among others, the PREAMBLE in KOFA might greatly help.

For, under STATEMENT OF OBJECTS AND REASONS in KOFA, the opening sentence reads:

“Separate law is being made to declare that flats or apartments in multistoreyed building may, for all purposes, be heritable and transferable immovable property”.

By necessary implication, that means, rather makes it imperative that, the two enactments are to be read together in any one or more such instances as warrant doing so for giving true effect to either. Two such instances are, - when faced with hurdles at the Registry and the ROCS. In any case, it seems worthwhile to give serious thoughts over the suggested angles, and if so agreed, move forward accordingly. As imagined, if so done, the host of extant RWAs and others left in the lurch may have hopes of getting out of the quagmire those are stuck in for long.

Some of the observations/viewpoints of the SC in Nahalchand’s case, - such as the court striking down the declaration(s) provided by flat takers to promoter as ab initio void, go to demonstrate what view the courts are likely / be inclined to take in respect of any one-sided and fraudulent action on the part of promoter. 

Now, it is left to the activists, to consider and pursue.

KEY NOTE: In Karnataka, buyers are strikingly at a significant disadvantage; in that, unlike in MAHA, KAR, so far as known, has not provided for an unilateral action by buyers, in the event promoter fails to comply with the mandates of forming a co-operative society/owners’ association, with buyers as members, and “final conveyance” in its favor. So much so, in such a situation, may be, the buyers are left with the only recourse to coercive action / criminal proceedings.

The other possible alternative one can think of is civil law remedy known as suit for “specific performance”. This is an avenue that, to one’s knowledge, has remained to be explored; though not known why so! – Is that not so?

Taxation of Cooperative Societies Under Direct & Indirect Tax Provisions on TaxGuru!

Not Unrelated:

ref. earlier Posts on SC on Stilt Parking>

Any such specially limited facilty , if remaining unsold, for whatsoever reason,  to the Apartments' Purchasers, on the final conveyance to the owners' association of the building complex , will be a property automatically vesting in the Owners' Association. As such, it is the Association/the elected MC who would be so;ely  responsible to , for the attendent puroses;  that is, the purpose of its accounting books, property tax, so on,

No need to add that, in one's long standing conviction, it could be lawfully and validly ureged tghat, for all related ACTIONS / INACTIONS, it is the MC in place from time to time, who, as trustees/ trusted representaives of the entire community being the co-owners of a building complex,  exercised the maximum diligence , been desirably prudent at least to a reasonable extent, should take , have taken, and discharge(d), on a 'timely'. basis the legal responsibility and consequences.

To fittingly recall, in a court case (citation given in an earlier Post), the elected 'secretary' has been held to be a 'public servant' for purposes of action in criminal proceedings. May be, for same reasons, quite sound and logical, even for any other legal action, such as under the common law (civil, etc) , the elected reps. constituting the MC, not merely the Secretary , it could, in one's opinion, be urged to have the same status (i.e. 'public servant").

The recent changes in the law on administration of co-opertaive socities, heard to have been brought in, as understood, go to reinforce the essentiality/ importance of proper election of and MC 's role in the matter of housing societies as well.

Not Unrelated (-but linkable to previous Posts; in particular, the last ones on, - Service Tax)!

Willing to strike, but afraid to wound

(ref. comment)

ஊடகங்கள் விலை போனதாக கூறவில்லை: கேஜ்ரிவால் tamil.thehindu.com

Comment of equal  relevance herein >

oru

அவர் கூறினர் என்பதும் நான் கூரவில்லை என்று அவர் மறுப்பதும் இன்றைய ('மாமுல்') நடைமுறை ஆகி விட்டது. உச்ச திரை நக்ஷத்திரமே! நான் ஒரு முறை சொன்னால் அதுவே நூறு முறை சொன்னது ஆகும் என்று அன்று சொன்னீரே - அதன் பொருள்தான் என்னே ? நூறு முறை சொன்னஆலும் ஒரு முறை கூட புரியாத 'ஆம்' மனிதனுக்கு தங்கள் விடை தான் எதுவோ !

 reply (0)

In the Hope of reaching the end of the 'TUNNEL' , and Seeing 'THE LIGHT' !

Try and Find One More Clue HERE >

http://vswaminathan-swamilook.blogspot.in/2014/03/lci.html

http://www.lawyersclubindia.com/articles/LAW-vs-Case-Law-on-FLATS-MOFA--6013.asp#.Uyuid_mSxPE

Remember, vaguely that, in one of the old posts a reference was made to a couple of useful circulars (?) from the KCSR (made available from a social activist in Mysore*). That was to prevail upon the sub-ordinates not to refuse but accede to requests made urging  for registration of owners' body as an  AOA  , as required by the KAOA.

If so, those may be made available onloine (on this website), so as to be of help to the rest  of the community, faced with the indicated problem but groping for a 'helpline'.

*Addl. Clues HERE:

Residential Apartment Societies to Register
under "The Karnataka Apartment Ownership Act, 1972."

.................................................

We take this opportunity to thank, Secretary to Govt of Karnataka - Co-operation
Department, for the prompt action taken to help apartment societies in this important
legal requirement.

Ravi Kumar

Provisional secretary, A.M.A.S. & Member - Mysore Grahakara Parishat (M.G.P.).

conflicting 'interests', which one may have heard of.

In brief, the point in mind  concerns the way in which , often, each one of the empowered authorities , including 'regulators'  such as, SEBI, RBI, etc. , choose to confine selves/ remain glued  to the individual sector / regime within is domain,  in carrying out their functions; with no regard or concern whatsoever to every other. In the result, it is "the people" who are obliged , rather forced, to suffer, the unpalatable  irritants /consequences of such 'exclusiveness'   in the authority's action/inaction,  in the exercise of its powers in a mutually conflicting fashion.

For instance, a mention may be made of SEBI making PAN, essentially a creature of the IT Act, a pre-requisite for its several purposes as well, e.g 'demat account', 'share issue', 'online banking' ; but, without even thinking of , much less, ensuring that the IT authority empowered to issue PAN acts in a spirit of mutual co-ordination /co-operation as normally expected.

may be contd.

PS: Recommend, for sake of better understanding and clarity in own mind, to read the other related recent  posts herein, along with the updates, attempted to be provided in the personal Blogs @vswami as well.

Problem faced in having a PAN and/or TAN ..

Since Edited / Modified: 

According to information from believed-to-be reliable sources, the Revenue is obstinately holding up/keep pending / in suspense , for long,  application (s) made for allotment of the ubiquitous Identification Numbers, for want of proof of ‘name’ of the  'association' formed by co-purchasers of apartments in Karnataka, mostly in Bangalore, not having itself 'registered' with the registering authority. Such a stance in withholding of the unique numbers, albeit that has been made a pre-requisite for certain purposes, is, in one's well considered view, highly objectionable. So far as could be seen, any demand by the authority to produce any such 'proof'' of ‘name’ or ‘registration’ is prima facie absurd, makes no legal sense; further, gravely offends the thing known as ‘common sense’. Hence, one strongly feels that deserves to be forcefully urged as not at all warranted by the law; that is, for more than one reason.

As per the definition in the IT Act, for its purposes, the term ‘person’ has a very wide meaning. In terms, it is an 'inclusive' definition, in that opens with the crucial words, "unless the context otherwise requires”. As defined,  'person', as defined, includes not only 'registered' entities; but includes/embraces within its ambit  many others, e.g. any unregistered body such as 'Hindu undivided family',  'unregistered firm' , body of 'individuals' ,  a body whether  'incorporated or not', so on.

Moreover, what is not to be ignored or over sighted is the special Explanation under section 2 (31), which reads thus:

Q

Any person, not falling under sub-section (1) or sub-section (2), may apply to the Assessing Officer for the allotment of a permanent account number and, thereupon, the Assessing Officer shall allot a permanent account number to such person forthwith.      (Emphasis supplied)

UQ

The fact that the said Explanation, so also the other provisions, are couched in the widest terms/language possible, clearly goes to demonstrate , rather makes it more than explicit and crystal clear that the objective /intention behind is nothing else except to leave none but cover all conceivable kinds of  'person' . To dilate, that bears on its sleeves the intention/anxiety of the legislature  that none should be left out, leaving any scope for trying and getting out of the tax regime, for several purposes of the law.

Besides, the KAOA, to one's understanding, no where requires an AOA to have 'formally' registered itself with the KCSR in order to be recognised as a 'legal entity’? As such, the demand by the authority for a 'proof' of ‘registration’, to put it in the least offensive manner, calls for 'educating' the authority himself as to what exactly is 'the law'.

 This is an aspect, it requires to be noted, seems to be amply clear even on a plain reading of the relevant provisions of the KAOA. Also that may be found covered in the material in public domain, in the form of article(s) and other Posts.

Additionally, the obviously absurd stance of the empowered officer, if pursued, might, if questioned / agitated against, prove 'suicidal'; in that, as is imagined,  he  will then be required to personally explain why / how then a body of co-purchasers, -and any number of them, -though ‘registered’ but wrongly so under the inapplicable KSRA, has (ve) been granted the unique identity number(s), without his raising an eyebrow, or even a whisper or whimper from him.

Further, there is a strong indication for anyone to safely infer, it has not occurred to the authority that by withholding of the unique numbers, he renders himself solely liable/responsible /answerable for all the attendant consequences, flowing from  the deductor's  failure to withhold tax (TDS) or its payment .

Last but not least, the authority, if he withholds or fails to allot PAN "forthwith" , will be acting in contravention of the clear "mandate" of sub-section (3) of 139A of the IT Act quoted above. To put it differently, he will be exposing himself to "personal" action (civil as well as criminal) as impliedly envisaged by SECTION 293.

Notwithstanding that, in using a clumsy language, the legislature has, according to a critical perspective, exposed itself to the blemish of partiality and want of fair play. For an appreciation of why to say so, read, in comparison, the most stringent language used in those other provisions of the Act in dealing with defaults, failures, etc. on the part of any taxpayer.

In the context herein, the following need to be pertinently made a note of:

1. As per the recently reported SC Ruling, 'aadhaar' , the last of the innovations of the kind, though conceived of and issued in the name of, and though with the aim / for serving the purpose of establishing /evidencing /proving  own "identity" , denoted to be  "UNIQUE" by itself, that ought not to be made a mandatory requirement for every purpose; except, perhaps, for any purpose justifiable to be in the larger "public Interest",; i.e. for serving a social purpose,  to the people's benefit.

2. As held by courts in some decided cases, the designated authority for registration of documents (e.g. relating to transfer of immovable property) has no express or implied power , so as to refuse registration, for any extraneous reason / not directly connected; even if that concerns or affects the very  legal validity of the document  otherwise.

This, of course, is an aspect open to a debate, and calls for an independent deliberation. Even so, this may serve the purpose of  adding to the driving force in general; and for stressing that , in any view, by reason of the clear-cut mandate of section 139 (3) drawn attention to herein before.

3. A new avenue (in offing) hopefully for airing such grievances:

IT-Dept invites suggestions for building the new website

(If interested, may read posted comments)

Recommend, these obviously connected aspects might be kept in focus/ further explored, and made proper use of, so as to be of help in the context herein.

previaling disillusionment far AWAY ?!

New Government will bring New Agenda in Housing

a quixot says:

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April 20, 2014 at 9:05 AM

“The minister for housing and POVERTY ALLOCATION has diluted the concentrated efforts.” (FONT SUPPLIED)

allocation x alleviation – does not seem to be a ‘slip’ of the tongue (KEYs) but an intended but well meaning, conscious  and truthful mix up / inter change?!

This is a follow-up on the subject topic - covered in some of my previous feedbacks.

The comments on the article under the first link* below, simply underscore yet again, in order  to reiterate. the role of, among others, the ‘auditors’.   
The responsibility of doing Audit of Co-operative Housing ...*

Audit Co-Op Soc - SANJAY JADHAV AND ASSOCIATES ...

audit of co-operative housing & credit societies - WIRC
 

Amendment to Maharashtra Co-operative Societies Act ...

The important point to be considered by CA OR G.D....

KEY NOTE: IT IS ENVISAGED THAT, IF VIEWED IN A PROPER PERSPECTIVE, AND IF EFFECTIVELY DONE UNDER COMPETENT LEGAL ADVICE,  A  QUALIFIED AUDIT REPORT (AS SUGGESTED), IN A WHOLESOME WAY,  IS MOST LIKELY TO SERVE A USEFUL PURPOSE THAT IS,  TO FORCEFULLY PERSUADE THE PROMOTER TO REALISE/ADMIT HIS FOLLIES AND COMPEL HIM TO MAKE AMENDS; ALSO. TO PRESSURISE THE GOVT. TO ATTEND TO AND SET RIGHT THE CURRENT  SCENARIO.

Reverting to previous, faced with a road block; for an update, may still look up HERE

Offhand:

The judgment, it is observed, has, besides strict compliance by promoter with the most  important mandate of Declaration in the prescribed Form 'A', setsout  the court's opinion  on the troublesome issues related to the legal concept of  '\"common areas and facilities". To be specially noted, presumably, in several court cases known to be pending e.g. in Karnataka, South Bengaluru, on such or similar issues , the apex court judgment would provide useful guidance for adjudication; hopefully, in the foreseeable future.

REFER HERE >

Check this out, a new apartment law on the cards - Citizen ...

As commented:

Wrt the concluding para., it would have been of great help and served a useful 'public' purpose had, AN Naik, who has been projected , rightly so, as a RTI activist (also known as a participant in the specially mooted project @praja.in), shared the documents with the concerned rest. Even now, it may not be too late for him to do so; as, in any case, as repeatedly pointed out through that website, there has been no known progress but the stalemate tragically continues. Unless the matter requiring concerted class action/pro activism, is devoutly , with all seriousness, taken on and pushed through, without dragging feet, that too on a collective basis, there could be no successful outcome expected but is bound to remain for ever, to eternity, a pipe dream. As one is expected to be aware, according to a well-meaning school of thought, prima facie sound, found to have been deliberated in certain knowledgeable circles, revamping of the extant law , by itself, cannot conceivably hold out any lasting solution, especially in the short life span and agist all attendant inevitable odds. For a specimen, look up a well articulated article in public domain, specifically dealing with the latest official (governmental move) in MAHA (the 2011 Act) proposing to usher in drastic changes in the subject field of activity.

Reg. the article referred, read here >

"NOTES ON MAHARASAHTRA HOUSING ( REGULATION AND DEVELOPMENT) ACT, 2011 NOT IN THE INTEREST OF PUBLIC AT LARGE

Suggestions given by CA. Ramesh S. Prabhu, Chairman, Maharashtra Societies Welfare Association"

PROBLEMS /ISSUES ARISING OUT OF MAHARASAHTRA ...

Further HERE>

The Maharashtra Housing (Regulation and Development ...

L A BILL No XV OF 2012.pdf

Budget 2013-2014: speech of P. Chidambaram, Minister of Finance · Maharashtra ..

PROPERTY INSURANCE

(An Alert – worthwhile reiterating by echoing)

Among several other aspects, what an apartment buyer / owner must know and make a conscious note of  is the concept of property “INSURANCE”. A random survey, to begin with say, in hub city, Bangalore,  is bound to reveal that the utmost need to have a suitable and adequate insurance cover is hardly realised .So much so, no serious steps taken even after the buyers have formed an association and an elected (or selected !) governing body (call it a MC, or by any other name) in place. It could be the invariably prevailing imbecility, callousness, impudence, ignorance , impertinence, so on, attributable to the buyers (as individuals or collectively) , so also of the common body, which is lawfully , in  essence, entrusted with the onerous responsibility to keep the property in the building complex duly protected against all “odds”- 'unforseeables or inevitables',- for the common good of the community.

1.          Why insuring your newly bought apartment is a must - Business ...

2.          Why Do I Need Homeowners Insurance? | eHow

Other Related (suggested to browse websites for knowing):

o    History|

o    Principles|

o    Societal effects|

o    Insurers' business model

As stressed, “Along the way this inevitably becomes related to other concepts ...”

KEY NOTE: Should in any building complex, there happen to be no adequate insurance cover, then it is not the concern of merely the buyers /  owners, and / or of their common body in governance. For, if incisively gone into, that does assume /have a greater  significance, being of common concern to whomsoever is connected directly or indirectly, e.g, the lending banks, and the auditors of promoters and the clientele, as well.

< Open to  ‘edit’ / improve upon 

(May be contd.)

:

Seated in Delhi, the CENTRAL MINISTER's vision is seen to be confined , limited or narrowly fcussed to that locale alone; not extend beyond !

Why to say so, read HERE >

All DDA activities to be online: Venkaish Naidu

AND HERE>

What is unpleasantly or shockingly or stickingly surprising is, - as to why the central minister has confined his concern and addressed self only to DDA; not to every other local authority responsible for urban development in each one of the States across the nation, well within his domain?!

Undoubtedly, there is the utmost necessity for the long / overdue transparency, besides the attached accountability, to be thrust upon forcefully and effectively, more so on a nationwide basis.

@xs400

In a jugular vein, -

Beg your Pardon  Mr ..

i remain humbled becuase  of  'personal' ignorance of cettain terms used in the comment, besides such as 'spin doctor' -e.g. "e.g. pet ownership in apartments". Having made an attempt, hopefully, i guess, it is said to mean 'owning' - (and rearing a 'pet' ; be it a cat or a rat, or dog ( if inverted, wld read - 'GOD') - by an 'owner' of apartment.

Now, coming to the branch of  the topic truly related, these continue to be 'imponderables' galore, for decades; those are , what is 'ownersdhip' , who is the 'owner', and last but not least , of what  !

That has been the ultimate reality ;  notwihstanding that, the men in governance have, in their utmost generosity and kindness to the hapless victims (admittedly the gullible but 'unaroused' buyers, a section of THE PEOPLE) brought into being, on the statute / rules book any number of 'laws' in a line, and the judiciary , in its turn, has been, with no less sincerity,  labouring  hard to enlighten, through volumes of case law handed down in a long but never ending  line,

May be, not being competent enough,  not have made self clear enough; if so, would, in all inborn humility, repeat the entraety . simply pleading to read though the  case law (SC)  in re. Podar Cement Ltd. - settling a tax but property connected issue.

May be excused; as usual, no mind , or patience to spare, to 'edit' the above jottings !

The article is HERE >

http://consumerresourcesin.files.wordpress.com/2012/10/how-to-question-your-housing-society-times-of-india.pdf

The angle that needs to be kept in view is that the article seems to focus itself on the scenario as obtaining in , and state of affairs prevailing in Maharashtra / cities in that State. So far as Karnataka /its cities such as Bengaluru is concerned, the scenario/ state of affairs in apartments complexes may not be said to be any better. On the scope for course of action (s) open to the aggrieved, as repeatedly noted, because of certain unintended deficiencies in the governing law, also in KCSA to cover, unlike in Maharashtra,  specifically housing societies, recourse to the Co-operative Societies Registrar is not a clear cut way to go. That, however, may be urged, ought not to have the doors to KCSA kept shut. The said Registrar  being the "designated authority" for the purposes of / in terms of KAOA, one feels strongly that, gven the determined wish and dominant will , as a first preference and being a speedier way, , over other possible courses, the doors of the Registrar are certainly open to be knocked at , also pushed through for gaining an entry into, and try and have the grievances of sorts met with resolved / remedied by him , 

Hope the underlying message is clear enough , so as to be given a serious thought and considered worth an attempt anyday; pending,  of course,  the long pressed-for but still awaited changes come to be effected in the extant statute / rules book .

contd.

Other related Observations:

A CA engaged for audit of the final accounts of Housing Socities (Flats and Apartments), besides any other already prescribed qualification (s), ought to have a reasonably good knowledge of ,  and insightful practical exposure to, -

A) the governing law (s) in force in each of the States e.g. In Maharashtra (Mumbai) , mainly the MAOA and  MOFA, and, in Karnataka, KAOA and KOFA;

B) the other State law (s) applicable to them e.g in MAHA, the old (still in force) and amended enactment(s) for formation and conduct of the affairs of CHS (- in KAR, the status of corresponding enactment (s) on same lines as in MAHA  still remains unknown); and

C) the tax legilations (e.g. of the Centre , on income-tax and service tax, and of the States on VAT)

Then and then only . any external independent audit by  a CA could have significance and serve a truly useful purpose ; that is, primarily from the viewpont of the common interests of the referred Housing Socities and their respective constituents, and incidentally, that of the concerned Central and State authorities duty bound to administer, implement and enforce the respective laws.

Sadly, the commonly observed and complained of heart-felt grievance is that,  there has been a cavenrous gap , increasingly widening, between what the laws say /mandate and the field realities.

In short, the travel time between heart and head (mind) , it appears, has been alarmingly shooting up, but with no hope for a let-up in the foreseeable future.

After our successful completion of KAOA Registration procedure of our Apartment Owners Association, we had went through another battle with IT Department for processing of our PAN/TAN Application, without availablity of proper Registration certificate, as available as per KSCA Act 1960 ( Society's Act 1960 ). At the first instance, our PAN allotment application was rejected on Feb 2014, stating the reason - " Proof of identity- certificate of Registration number issued by Registrar of co-op society- submit the proof of identity where name in the application exactly matches with the name in proof ".

We have pleaded  with Income tax department, stating that, there is no provision exists to issue any specific Certificate of Registration for Apartment Owners Association, as per KAOA Act 1972 and relying upon the Certificate issued by the Co-operative Society is totally mis-leading of all Apartment Owners Association, as by merely getting any  7 persons any group can get the registration completed as per Society's Act 1960 and unlike, KAOA Act 1972, where all the Owners are mandatorily have to submit their concurence by Deed of Declaration and taking membership in the Association is very much cumbersome process, which was adopted by our association.

Thereafter upon exhange of few more communications ,we have got another hurdle by again rejecting our application stating " the douments submitted by you found to be correct ; but the status selected by you ( Association of Persons ) is wrong and re-apply freshly by correctin the status as " Association of Persons ( Trust ) ".

Again upon re-submiting of our New Application, by changing the status as AOP ( Trust ),it is rejected for the same very first reason - Proof identity - Certificate of Regisratin number issued by Regstrar of Co-o Society...

Our pleading and arguements were initiated and finally, we could able to make the Income Tax department to accept our very first application of February 2014, and our PAN Number just got alloted on 30th June 2014.

It took 4 full months for us to convince the Income tax department.

It is also worth mentioning now, that our Builder too, did not approve our Association formation, who was liable to initiate this process and getting our Association Registered as per KAOA Act 1972. Even he ( Builder ) was initially insisting for submission of Registration Cerificate and since now have received back the  " Association Deposit " money.

The Fire Department inspection and Occupancy Certificate inspection are all pending. There are many deviations observed and we are now trying to resolve all the issues.

M.S.SHANKAR.- PRESIDNET - MCAOA.

The Union Territory of Delhi , it is noted, has a special enactment on more or less similar lines as in Maharashtra and Karnataka. That is available http://www.legalindia.in/the-delhi-apartment-ownership-act-1986

The neighbour Haryana State as well has an enactment of 1983 likewise providing for ownership of apartments by the buyers.

With these in the back drop, some of the observations in the News reported in AT and also elsewhere –

refer Here New Bill on Delhi apartment ownership in the offing - The ...

And Here Centre proposes new Bill to simplify sale, inheritance of ...

-  are not quite understood; instead, confusing (or with the subsisting confusion worse cofounded).

Especially that, it is quite puzzling as to why and what sort of simplification is spoken of. As one sees it, if at all, should there be lacunae, problems in implementation or enforcement, so on, what may be required are amendments, resolution, etc.  Not restructuring or rewriting /revamping the extant law.

Until there is any further development (s) and a clear picture emerges for clarity , one is left with hopes on hopes that in the name / under the guise of simplification,  the obtaining scenario will not happen to be muddled up. Same way as it has happened in respect of the task of simplification of the law on income-tax (the DTC); Or the concept of ‘”deemed conveyance” that came to be inserted in the MOFA, but according to a view mindlessly so, as commented elsewhere. 

What is In store ? Wishes aired are galore; for an insight >

..which, according to a school of thought, suffers from the malady of half-baked legislation, without giving due thought and incisive consideration of all its varying facets/ missed practical implications.

1

Dear Experts,

We intend to register our apartment association under THE KARNATAKA APARTMENT OWNERSHIP ACT, 1972.

As far as sharing of common expenses are concerned, the proposal is to have a hybrid model, where day-day maintenance expenses which do not depend on the unit size (eg electricity bills, lift maintenance, landscaping etc) are to be divided on a per flat basis, while expenses which has relavance to the flat size (eg painting, structural repairs etc) are to be on a per sq.ft basis. We have incorporated the basis by a clear table in our by-laws.

However, clause 10 of KAOA 1972, states that The common profits of the property shall be distributed among and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities.

Now, my question is : Are our by-laws valid? is it in violation of law?

How will our by-law affect the way we share profits when there is any redevelopment?

regards,

Savi

<ALL IS WELL > Agree or Not , all depends...

Two flats merged into one must get tax exemption: Bombay ...

timesofindia.indiatimes.com › City › Mumbai

11 hours ago - If two adjacent flats are bought from different people through two agreements ... Two flats merged into one must get tax exemption: Bombay HC.

Reasoning:Per Layout Plans,to have only one common  kitchen ?!

READ ALSO: Mumbai flat buyers at mercy of property developers

Per last official count:
Q
Interest Circle
Rajendra Pratap Gupta is the circle founder and administrator.
All members in this Circle (6808) UQ

Think or ponder for a moment or while  how shamefully it compares, in the backdrop of the over-bloated, and
e(o)vergrowing 'populace' 

Whither Awakening or Awareness (even in the farthest sight)?!

All Apiece (In One GO; Signal to march ahead, not in reverse direction))-

AT News

Self Re-Development of housing society buildings

Conveyance in favour of Society

F.S.I. under different schemes

What is Grievance Redressal Policy?

Worthwhile a study in-depth ?