ಮನೆ › Groups › Lacunae in Karnataka Apartment Ownership Act

a petition being sent to the minister

Submitted by murali772 on 6 August 2011 - 8:23am
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Governance

A petition as per attachment is being sent by to Sri S Suresh Kumar, Hon’ble Minister for Law, Govt of Karnataka, in the coming week. If he continues to hold the portfolio (assuming he continues as a minister), an attempt will be made to meet him soon.

In the meanwhile, a request will be sent out to all civil society groups, RWA's etc to send out similar letters to the minister. It will be good if others connected to other civil society groups could also join in the exercise.

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posted

Submitted by murali772 on 11 August 2011 - 12:33pm.
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With Sri Suresh Kumar back in the cabinet, and holding the same portfolios, I sent out the petitions today by regd post. Will give it a little time, and then perhaps organise a meet.

Meanwhile, it will be good if we can get more and more RWA's/ NGO's to send out similarly-worded petitions.

Muralidhar Rao

glaring malpractices

Submitted by murali772 on 18 August 2011 - 6:11pm.
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The Competition Commission of India (CCI), the free trade regulator, has imposed a penalty of Rs 630 crore on real estate major DLF for misusing its dominant position in the market by drafting one-sided agreements with flat buyers in Belaire housing complex in Gurgaon.

According to the flat owners, DLF violated building restriction norms. Although it had approval to build 19 floors, it constructed 29 floors and cut down the super area, common area and other facilities. Flat buyers also said that DLF announced the project and entered into agreements without getting the required clearances from the authorities. In its order issued on Friday, CCI said the agreement with buyers is not just one-sided but draconian. It has found that the penalty provision in case of delay in project as per buyers’ agreement is discriminatory and favoured the builder.

For the full report in the ToI, click here.

While CCI's action is laudable, perhaps these kinds of malpractices could have been averted, even to begin with, had the lacunae in the relevant Acts been rectified in time. Well, it's also possible that they were drafted that way, and left that way, at the instance of the DLF's of this world.

All the more reason why there should be a concerted effort on the part of the citizens to press for immediate redressal of the problem.

Muralidhar Rao

Talk show on Radio Indigo - 10AM, 3rd Sept

Submitted by murali772 on 31 August 2011 - 1:45pm.
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The matter is likely to be raised before Honorable Sri Suresh Kumar on our behalf by Mr H S Balram on the 'Straight Talk' show between 10 AM and 12 noon, Saturday - 3rd Sept, on Radio Indigo - 91.9 fm

Muralidhar Rao

proactive comments by minister

Submitted by murali772 on 18 September 2011 - 7:05pm.
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The relevant part of the interview may be accessed here

Muralidhar Rao

YES; ACCESSED, AND HEARD.IN

Submitted by vswami on 20 September 2011 - 12:41pm.
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YES; ACCESSED, AND HEARD.

IN MY PERCEPTION, AND TO MY UNDERSTANDING, THE MINSTER'S RESPONSE , THOUGH HELD OUT HOPES, WAS NOT VERY CLEAR AND ENCOUAGING OR ASSURING TO THE POINT.

ONE OF THE POINTS POSED WAS, I BELIEVE, RELATED TO 'COMMOIN AREAS' AND SUGGESTION WAS  TO BRING ABOUT CLARITY IN LAW  IN FAVOUR OF PURCHASERS OF 'FLATS'. IF SO, I ONLY HOPE, THAT THE MINSTER, AFTER HAVING  BEEN SUITABLY  BRIEFED, UNLESS ALREADY BEEN DONE SO, SO THAT ONE COULD EXPECT  THE CLARITY EVENTUALLY BROUGHT IN  WOULD BE ON THE SAME LINES AS STRICTLY REQUIRED AND EMINENTLY DESIRED.

WHAT REALLY CALLED FOR ARE:PRIMA FACIE BRIEFLY THESE:

1. THE KOFA NEEDS TO BE AMENDED, BY CHANGING THE DEFINITION OF 'FLAT' THEREIN TO SPECIFICALLY INCLUDE 'APARTMENT'(AS DONE LONG AGO IN MAHARASHTRA).

2, . INTER- DEPARTMENTAL STEPS TAKEN, SO AS TO ENSURE THAT ALL REGISTRATIONS OF KAOA ARE DONE ONLY WITH  KRCS, NOT WITH KRS.

EVEN THEN, WHAT IS GOING TO BE LEFT IN LIMBO, IS THE FATE OF THOSE REGISTERED AS RWAs. 

AS I SEE IT, THE OBJEECTIVE SHOULD BE TO SEEK AND HAVE BROUGHT ABOUT ALL SUCH CHANGES , EITHER THROUGH  CHANGES IN THE EXTANT LAW AND/ OR BY WAY OF NOTIFICATIONS, UNLESS THOSE ARE DONE IN A WHOLESOME AND COMPREHENSIVE MANNER , FALLOUT PROBLEMS TO BE FACED WITH COULD BE GALORE.

INCIDENTALLY, FOR A RECENT  DEVELOPMENT AT THE INSTANCE  OF/FROM CREDAI, ATTENTION IS INVITED TO MY BLOG POSTED TODAY@ http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/09/good-morning-news.html

I AM OPEN TO OTHERS' VIEWS ON THE FOREGOING, ESPECIALLY SHOULD THEY BE AT VARIANCE, IN SUBSTANCE. 

 

For an Update on STP, the ongoing struggle of old apt. complexes with BWSSB, refer the recent Post http://bangalore.citizenmatters.in/articles/42

@ glaring malpractices ( by

Submitted by vswami on 20 September 2011 - 1:52pm.
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@ glaring malpractices ( by Mr M Rao)

For certain other areas requiring to be focused on, please read the Blog@

http://vswaminathan-vswaminathan-swamilook.blogspot.com/2011/08/cci-slaps-penalty-notice-on-nse-times.html

For an Update on STP, the ongoing struggle of old apt. complexes with BWSSB, refer the recent Post http://bangalore.citizenmatters.in/articles/42

Law on Apartments - Irritant called the "limited common areas"

Submitted by vswami on 23 September 2011 - 5:55am.
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In Continuation:
There are no doubt, as mentioned elsewhere, in the law governing ‘apartment’, it is riddled with certain aberrations, -lacunae. As needs to be noted, one such lacuna in the Apartment Act, which proves an irritant to a discerning purchaser of an apartment, is the concept of - the "limited common areas and facilities". It is , no doubt, a term specially defined in the Act. However, what requires to be importantly noted is that, - the so-called - "limited common areas and facilities” are really nothing but very much part and parcel of, and carved out of, - the "common areas and facilities”, as has been likewise specially but separately defined.
Going by the general scheme of the law on apartments, strictly speaking, the said - "common areas and facilities" are primarily meant / intended strictly for common use and enjoyment by all the co-owners of an apartment building. To put it more succinctly, in the normal course of events, such
'common use and enjoyment' would necessarily mean these: -
(i) In the initial stage, - by everyone of the purchasers, as one amongst the body of co-purchasers, in common with all of the other co-purchasers; and
(ii) at the next stage, being the final stage, - that is, when after all the apartments have been sold and conveyed to their individual purchasers, and also having completed the legal formality of formation and registration of an “owners’ association” (which, as mandated by the law, is required to be done with the Registrar of Co-operative Societies under the Karnataka Co-operative Societies Act)- by everyone of the co-owners /co-members of  such Association, - essentially in common with
 all of the other co-owners/co-members.
It is the concept of - the "limited common areas and facilities", which one finds in the Act that has, in a manner of plain speaking, brought into being a lacuna in the law, thereby cutting into /eroding the other broader and comprehensive concept of, - "common areas and facilities".
Of course, there is no way for anyone to know or find out, much less ascertain, whether such a concept (i.e. "limited common areas and facilities") came to be introduced, by the body of legislature, intentionally or otherwise.
Be that as it may, any competent professional, with adequate experience and exposure, particularly any professional in tax practice, might not be unaware of the following facts of life:
(a) Any such lacuna in a statute is invariably sought to be exploited , human nature and behaviour being what it is, by people having vested interests; and
(b) the sufferers/victims of such exploitation are left helpless  and obliged to put up with it ,– until such time the men in power become aware, either on their own or otherwise, of the  lacuna and take steps to the end of making a suitable amendment of law.
 
There is, as one may think of, a recourse available to the purchasers’ community; that is, to try and take up the issue for its resolution through court litigation. That involves challenging the constitutional validity (‘ vires’ ) of the  aforementioned objectionable concept  giving  rise to the lacuna. But then, for obvious reasons, particularly  from a pragmatic point of view, no individual purchaser, for that matter even all of them put together, will be well advised, or would consider it prudent for him/them to involve himself / themselves and get entangled in any such mindless litigation.
With the same breath, it requires to be emphasised that a professional,  who is acting for and on behalf of any  players in the realty sector or the buyer is per force obligated to, nay duty bound to play ‘fair’, keeping in mind that from the standpoint of the purchasers, and in their interests,  the builder/seller  cannot be allowed to exploit any such lacuna / loophole in the law; except, of course, to the possible extent or  permissible limit. This is precisely what the author of a published article, available in public domain,   has, in his wisdom, rightly so, chosen to do. In that, he has rightly highlighted his opinion on the premise that –even granting the mentioned lacuna, what could, under its cloak, be conveyed by a vendor to any purchaser cannot, in any case, be anything more than a – “right to use and enjoy (as a licensee) certain common amenities, facilities and infrastructure”.
In a case taken up for my study, the relevant portion read– “for use of the open car park or garden area on the area around the building”. One may find quite many instances of like or similar nature . It is for the buyers and /or his advising  professional to identify, and  discuss this aspect in all its
ramifications with  his builder/seller, before judging and  deciding, and suitably objecting,  whether or not it could stand on par with – ‘open car park’. In this regard, it is imperative to keep in view and be guided by taking into account the possible consequences as  are implicit in inter- alia sub-section (2) of section 6 of the Act (closely to read that section  for knowing what it says).

In this context,  it calls for a pointed mention that, however, in respect of a ‘flat’ (as distinct from  ‘apartment’, under the separate scheme of things as envisaged in the applicable Flats  Act, there is no scope at all for any such issues to arise.  Be that as it should, in those cases where any such issue arose in the past and taken to courts, the view taken by the courts in favour of the buyers is noteworthy.          


 

For an Update on STP, the ongoing struggle of old apt. complexes with BWSSB, refer the recent Post http://bangalore.citizenmatters.in/articles/42

apartment owners and builders.

Submitted by captainjohann on 10 October 2011 - 10:55am.
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  I am living in Suncity aprtments, located in sarjapur road. It was built by corporate leisure. As a Senior citizen I was not very particular about various clauses in the agreement which I signed. But now some active youngn  owners have formed an association.they are pursuing various issues legally after exhausting all avenues at a compromise but I do not know how it will come out. I was told the law is loaded in favour of builders who control the Karnataka government whichever party from BJP<Congress and JD(U) come to power.One cannot go to consumer court all the time.Hope this project by Praja fructifes. I hope they involve many association in the Outer ring road, sarjapur road belt.

Greatness lies NOT in never falling but in rising everytime we fall.

http://www.captainjohann.blogspot.com

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