Fwd: Suggestions for bringing amendments in KAOA and KOFA

[Ajit Naik]

Dear All,

I am forwarding the letter sent to TCPD along with suggestions for bringing amendments to KAOA and KOFA. All the members of the mailing group are requested to send their suggestions for bringing further improvements. Rules on these proposed amendments will be prepared only after considering of  the suggestions by   UDD/TCPD/Legal and Legislative Departments of GOK  . Mr. Sanjay Vijaya Raghavan has assured me that he will go through the suggestions and submit his comments for bringing improvements to the amendments. 

All are requested to send their suggestions within next 10 days. 

All acceptable suggestions by group members will be considered while updating the suggestions. Hard copy of the updated suggestions may be forwarded by RWAs/NGOs to GOK/UDD/TCPD.

Regards,

Ajit N. Naik

---------- Forwarded message ----------
From: Ajit Naik <ajit....@gmail.com>
Date: 8 January 2018 at 12:55
Subject: Suggestions for bringing amendments in KAOA and KOFA
To: dtp...@hotmail.com, shantala mirle <mirles...@gmail.com>
Cc: shashi...@gmail.com

Dear Sir,

I refer to the discussion with you on 20th December, 2017 during my visit visit  along with Mr. Muralidhar Rao, Mr. Shridhar V. Naik and Mrs. Vidya Goggi. This has reference to the letter No. LMKNV/2017/09/15/1 dated 15-09-2017 of registered NGO 'Lancha Mukta Karnataka Nirmana Vedike, Karnataka State addressed to the Additional Chief Secretary, Urban Development department, Government of Karnataka. and their letter No. UDD 482 MAP 217 dated 10-11-2017 addressed to you. I represent the above  NGO.

As discussed with you, I am attaching the following:

1. Suggestions for bringing amendments to 'The Karnataka Apartment Ownership Act, 1972' in short KAOA

2. Suggestions for bringing amendments to 'The Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (in short- KOFA)

3. Statement of Objects and Reasons and Preambles to KAOA, KOFA and RERA along with a brief note on Origin of Apartment Ownership Act which is known as Condominium Laws in the United States. 

IT IS IMPORTANT TO GO THROUGH ALL THESE  Statement of Objects and Reasons and Preambles to KAOA, KOFA and RERA along with a brief note on Origin of Apartment Ownership Act which is known as Condominium Laws in the United States, BEFORE CONSIDERING SUGGESTED AMENDMENTS.

Suggestions of amendments on KAOA and KOFA are based such amendments brought in the State of Maharashtra on MAOA and MOFA. Similar acts/amendments to acts in states like West-Bengal, Uttar Pradesh and Rajasthan are also referred.

Suggestions are also based on the developments on account implementation of  the Real Estate (Regulation and Development) Act, 2016 (in short- RERA Act). It is important to take note of Section 88 and 89 of RERA act. 

A Committee of Members of Lok Sabha constituted to review the on Rules/Regulations framed under the Real Estate (Regulation and Development) Act, 2016 by different States and Union Territories has opined as below:

“The Committee while recognizing that each State have their respective development laws, sanctioning procedures, and other land related unique issues, recommend that the Ministry of Urban Poverty Alleviation should strictly instruct the States to either amend their Rules or re-notify them in line with the letter and spirit of the RERA Act”.

In view of the above, it is very much necessary to review and amend  KAOA, KOFA and other State Acts. 

I am ready to assist you prepare the Revised Rules on the proposed amendments.

With Regards,

Ajit N. Naik

Contact No. 9845243544, 080 29741288

[Ameya Usgaonkar]

Dear Ajit Sir,

    I was going through the file "TPCD-Amendment to KOFA" and I know I am delayed.  Hats off to you for preparing detailed and comprehensive proposal to KOFA.  Below are my comments with reference to section numbers in the above-mentioned file -

</begin section 10 (2)>

(2) If any property consisting of building is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act then the promoter shall inform the Registrar as defined in the Maharshtra Co-operative Societies Act, 1960, accordingly; and in such cases, it shall not be lawful to form any co-operative society or company.

</end>

To the best of my knowledge, almost 90%+ of the apartment complexes are registered as cooperative societies.  Without this registration, a builder cannot get electricity or water connections.  Given this, I am wondering why we have kept a lacunae here.  In other words, and unless I am missing something very obvious, I see this as an "escape route" for builders as the purchasers will be left thoroughly confused.  Therefore, I feel that this escape route be plugged completely as follows -

</begin section 10(2)>

(2) If any property consisting of building is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act then the promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1960, accordingly; and in such cases, the promoter shall use that Declaration in the formation of cooperative society.

</end>

</begin section 11>

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

</end>

Wouldn't we want to plug this hole and confusion too by explicitly calling out that the association be registered only as cooperative society or a company?

</begin section 11 (3)>

(3) If the promoter fails to execute the conveyance in favour of the Cooperative society formed under section 10 or, as the case may be, the Company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such Co-operative society or, as the case may be, the Company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or the Company or the association, who have purchased the flats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, Company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.

</end>

(a) This too needs to cover either cooperative society or a company and nothing outside of these two.  How otherwise would one explain the competent authority issuing certification of registration for an association?

(b) Secondly, in the current situation, there are inordinate delays as coordinating and compiling sale deeds of each and every purchaser is non-trivial task.  Could we make this simpler, say by stating 66% of purchasers' sale deeds?

(c) How about including a penal clause against the builder for failing to transfer benefits to purchasers?

(d) Lastly, and surprisingly, I could not find any mention of clause/obligation in which the promoter transfers maintenance corpus in favour of association in a time-bound manner.  This is one of the main reasons for builders to hold buyers at ransom.  Not only does it create while filing income tax returns (because the taxman views the transfer of interest on the corpus as "taxable income" in the hands of association) but also forces association to increase per SQFT charges.  So, please do make this very explicit somewhere in the Act.

Regards,

- Ameya

[PRAKASH D R]

Dear Ajit Sir,

I fully endorse the points (a) to (d) suggested by Ameya Madam. This may not be found in Maharastra, where apartments are from a very long period, when people were honest and used to stand by their commitment.

But it is NOT so in Karnataka, where Real Estate is totally under Mafia / Political arena, who dictate the government.

Hence these Practical issues have to be included in addition to the existing rules.

This is my opinion. You may consider majority opinion and take appropriate steps to either include or to leave it.

ThanQ,

I Remain,

D.R.Prakash

10 01 18. 

---

From: lmknv-rera-homebuyer...@googlegroups.com <lmknv-rera-homebuyer...@googlegroups.com> on behalf of Ameya Usgaonkar <ameya.u...@gmail.com>
Sent: Tuesday, January 9, 2018 7:00 PM
To: Ajit Naik
Cc: LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

 

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[Ameya Usgaonkar]

Dear Ajit Sir,

   Please find scanned copies of the following -

(a) Circular from RoCS regarding formation of cooperative society for apartment owners.

(b) Amendments to the Constitution of India wherein it bestows the citizens with "formation of cooperative society" as a fundamental right.

I had got these docs from Col Sudhir Chakravarthy (CC'ed).  Together, these should help the apartment owners to form cooperative societies.

Regards,

- Ameya

[Ameya Usgaonkar]

Dear Ajit Sir,

    Please also find attached herewith the "rules" for both KOFA and KAOA.  These rules mention both "flat" and "apartment owner" in almost all the clauses corresponding to the original Act.  For example, the rule corresponding to section 9 of KOFA (formation of cooperative society) states that -

</begin>

9. Period for submission of application for Registration of Co-operative Society or Company of flat purchasers

Where a Co-operative Society or a Company of persons taking the flats is to be constituted, the promoter shall submit an application to the Registrar for registration of the Co-operative Society or the company, as the case may be, within four months from the date on which the minimum number of persons required to form such organisation have taken flats.  Where the apartment takers propose to submit the apartments to the provisions of the Karnataka Apartment Ownership Act, l972 by executing Declaration and Deeds of Apartment as required by that Act, the Promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after the date on which all the apartment Owners (being not less than five) have executed such Declarations and Deeds of Apartment.

</end>

So, aren't we covered here to ask RoCS the reasons why an apartment owners association CAN NOT be registered as cooperative society?

Regards,

- Ameya

[Ajit Naik]

Dear Amey,

First of all do not read KAOA and KOFA. Both acts were drafted/updated on Maharashtra Acts as on 1-1-1975. In Karnataka KAOA and KOFA came into force wef 1-4-1975. Subsequently both acts were neglected without implementing the same. MAOA was MOFA were synchronized as on 31-01-1986. Subsequently MOFA was amended on 8 occasions. MOFA was amended on 22 occasions since its enactment. MAOA was amended for 3 times.

"the Promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after the date on which all the apartment Owners (being not less than five) have executed such Declarations and Deeds of Apartment".  

It is only an information to put an embargo on the Registrar of Cooperative Societies, not to take up registration of cooperative society of flat owners, if they approach him. Nothing more than that.

You will get better understanding on it if you read the  following judgement.
Padmavati Construction Co. And ... vs State Of Maharashtra And Anr. on 22 November, 2006
https://indiankanoon.org/doc/1668783/

Hence we are pursuing the GOK to amendments to KAOA and KOFA so as to bring at par with Maharashtra Acts for proper understanding and implementing the same in Karnataka.
If you have hard copies of 5 pages sent by email, please get xerox copies and send it to me.(It is not visible).

Please write to me, if you still have a point to press upon.

Regards,

Ajit N.Naik

[Ajit Naik]

Mr. Ameya,

Sorry for the delay.

Before referring to your points, I wish to bring the following two corrections in the suggestion forwarded in the group.

There are few errors in proposed amendments in proviso of subsection 1 of section 10 and subsection 2 of section 10 which has to be corrected. -

Error in 10(1) proviso- the Maharashtra Co-operative Societies Act, 1960

To be corrected as- the Karnataka Co-operative Societies Act, 1959

Error in section 10(2)-

1.Error- the Maharashtra Apartment Ownership Act, 1970

To be corrected as – the Karnataka Apartment Ownership Act, 1972

2. Error- the Maharashtra Co-operative Societies Act, 1960

To be corrected as- the Karnataka Co-operative Societies Act, 1959

Now coming to your points, I wish to clarify that amendments are proposed in clauses, subsections and sections wherever it is required.

Please go through section 3(2)(h) of KOFA which is reproduced below:

“3(2) A promoter, who constructs or intends to construct such block or building of flats, shall––

(h) state in writing, the precise nature of the organisation of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organisation of persons, who have taken or are to take the flats;”

Subsequently, please refer proposed amendment in section 4(1A)(a)(v) in which the contents of 3(2)(h) is made one of the several conditions to be included in the Agreement of Sale.

What does it mean?

Each purchaser of the apartment would be knowing at the initial point of deciding to purchase an apartment/flat, the nature of organisation of persons to be constituted and to which titled is to be passed on as per the nature of the organisation and also Competent Authority, applicable acts and rules for maintaining the common areas and facilities after purchase of flats/apartments and started living in it.

The doubts on suggestions to amend section 10 (2) are explained to you by referring the judgement on Padmavati Construction Co. And ... vs State of Maharashtra And Anr. on 22 November 2006 https://indiankanoon.org/doc/1668783/

Your further doubt on section 10(2) is on issue of the certificate of Registration of Association. In fact, on Bye-laws attached to DOD and all other documents attached to DOD (Sanction Plan of project and annexure giving apartment wise details of area, common area share etc) there will be registration number with page number of the document. That registration number of DOD itself is the registration number of Bye-laws and other documents. But unfortunately, Government Departments like (BWSSB, BESCOM and even consumer courts) demand certificate of Registration generally issued by Cooperative Society, Company and Society registered under KSR Act, 1960. I have proposed a new section 25A (2) (ii) to KAOA which reads as under:

(ii) To issue a certificate of Registration of Association based on certified copy of the Declaration, bye-laws, schedule of details of each and every apartment and copy of the sanctioned plan received in the office as per section 11(2) of the act.

Please read 25A and 25B of proposed amendments to the Karnataka Apartment Ownership Act, 1972 (not for KOFA).

This should solve the problem on getting certificate of Registration of Association.

a-answered above.

b- care will be taken based on Maharashtra Rules if GOk agrees to our suggestions for amendments. Solution is authorised agent.

c- penal clauses included in our proposed amendments in section 14.

d- There is already provision in section 5 and 6.  Apartment purchasers may approach the appropriate authorities as appointed by UDD vide two special orders dated 08-03-2012 and 14-03-2012.

 

I am happy, you have raised very valued questions.

If you have further query, please write in our group.

Regards,

Ajit N. Naik

On 9 January 2018 at 19:00, Ameya Usgaonkar <ameya.u...@gmail.com> wrote:

[Ajit Naik]

Dear Ameya,

I have gone through the hard copy of documents sent by you.

As far as The Constitution (Ninety Seventh Amendment ) Act, 2011, the Government of Karnataka has made certain relevant amendments to the Existing The Karnataka Cooperative Socities Act, 1959. Please refer the below link on it.

http://dpal.kar.nic.in/ao2014/35%20of%202014%20(E).pdf

In another document, Circular issued on 07-02-1986 by the Registrar of Cooperative societies, the details of procedures for forming the Flat Owners Cooperative Societies in the state is mentioned. The circular mentions that such cooperative societies are to be formed by the members who wish to purchase flats constructed under KOFA. The membership of the Flat Owners cooperative society shall be confined to the owners of flats in the building for the benefit of whom the society is proposed to be organised.(refer Para 2(1)(b). Various other conditions for having membership in the cooperative societies are mentioned in the circular.

In the first para of the circular (in the middle), it is mentioned that such registration of cooperative societies, is not applicable for apartments which come under purview of the Apartment Ownership Act, 1972 (wrongly mentioned 1982).

So there is clarity, that apartments owners covered under KAOA, need not again register the Association under cooperative Act.

This is my interpretation after reading the materials sent by you and also Bombay High Court Judgement in the case Padmavati Construction Co. And ... vs State Of Maharashtra And Anr. 

If you wish to have further clarification, please write in this group.

Regards,

Ajit N.Naik

[Ameya Usgaonkar]

Good morning!

     Yes, my understanding is also the same - Cooperative society for a property submitted to KAOA 1972 provisions by way of registration of DoD.  The intent of those circulars was _not_ to confuse current understanding nor discourage from approaching the registrar of cooperative societies.  Rather, the intent was exactly the opposite - To try to get background / more concrete material for formation of cooperative society for KAOA submitted properties.

BTW, are there any people/persons in this list who attempted to register their association (KAOA submitted property, of course) as a cooperative society?  If yes, could those people enumerate reasons for failure? 

Regards,

- Ameya

On 19 January 2018 at 02:42, Shiva Kumar <legaladv...@gmail.com> wrote:

Dear all,

I fully agree with Mr.Ajit . An apartment registered under KAOA 1972 need to be registered again as a co-op erative society. The deed of Declaration will suffice.  However, under KAOA , the competent authority is registrar of co-operative societies who regulate the functioning of Apartment owners associations. But, the registrar does not recognise this fact of law. The govt. also  does not seem to be bothered to direct registrar of co-operative societies to consider annual filing from associations registered under KAOA.

Shall stand corrected if there are any errors in my submission to this group.

Best regards

Shivakumar

  

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[Ajit Naik]

Dear All, 

Col  Chakravarty has nicely analysed the relevant important facts of the acts KOFA, MOFA, KAOA and MAOA, legal effects of some sections and applicability of other state High Court judgments on cases of similar acts in Karnataka.

One has to understand the 'Statement of Objects and Reasons' of both the acts. It clearly gives the reasons why legislation of the acts were taken up by the State Governments through legislative procedures.

A. The main contents of the 'Statement of Objects and Reasons'  of KAOA are- (1) to make the individual purchaser of apartment as absolute owner of the apartment along with his UDS of common area properties through a suitable process of registration of the apartment under Registration Act, 1908 to get the effects of Transfer of Property Act, 1882 applicable to sale and purchase transactions of immovable property (2) After getting the ownership of the apartment, to make living of his/his family members/his tenant and their family members in the apartment comfortable in a community atmosphere of different religion, cast, locality, nationality, food habits and culture through the provisions of the act/rules for the next many years (until the apartment building is abandoned/destructed on lawful reasons). Hence there is provision of forming the Apartment Owners Association which runs it routine activities of maintenance of common area properties and facilities and other administration works through the Management Committee elected in General body as per the model bye-laws provided in the Rules. The GBM and MC have powers to take certain decisions to administer its activities. These decisions should be fully supported by the provisions of the act. (3) The Incomes & expenditures of maintaining common properties and facilities of the apartment building/s have to be apportioned based on the UDS of each apartment which is the only fixed and permanent component available relating to various apartment owners. 

B. In the very first paragraph of 'Statement of Objects and Reasons' of KOFA it stated,-"Separate law is being made to declare that flats or apartments in multi storied building may, for all purposes, be heritable and transferable immovable property. Owners of such flats or apartments enjoy exclusive ownership of their flats or apartments while retaining an undivided interest in the common areas and facilities which are to be used and owned by all such owners jointly". This law refers to KAOA. It implies that the law makes have in mind the option of forming  Association of apartment Owners as per KAOA while enacting in KOFA in additiontion to Cooperatives and Company. As mentioned by Col Chakravarti in the above email, forming of Association under KAOA is missing. But some reference of Association of flat takers other than Cooperative Society and Company is mentioned in section 11 of KOFA titled as " Promoter to convey title, etc., and execute documents, according to agreement".  The reference of KAOA is also made in Rule Nos. 5(1) explanation, 5(2), 9 and 10. 

In KOFA and KAOA most of the amendments made MOFA and MAOA  up to 1-1-1975 are taken care off  while making the rules for respective acts without updating the act.  All the rules (KAOR and KOFR) are approved by the same law makers in both the legislative houses of Karnataka.

All the improvements to be done to KOFA and KAOA in tune with MOFA, MAOA and new Act RERA are taken care while suggesting amendments to KOFA and KAOA.  Some  changes are also made based on the suggestions given by the members of the group. 

It would be helpful, if we get more suggestions from group members on the proposed amendments suggested to KAOA and KOFA. Updating of Rules to these acts depends on the final decision of GOK on our suggestions to amend the acts.

Regards,

Ajit N. Naik

On 21 January 2018 at 07:51, sudhir chakravarty <chak...@hotmail.com> wrote:

Dear Ameya and all,

Bonjour,

 Registration of society under Co-Operative societies                     Act , Society under  KAOA :

The issue regarding  whether to Register  a Society under Cooperative Act 1959 vis-a- vis the Society under the KAOA act  is the moot question which I would like to address here  in proper perspective .

 The following are  attached for easy ref:

KOFA = Karnataka Ownership Flats Act 1972,

MOFA =Maharashtra Ownership Flats Act 1963

KOFA Rules 1975

KAOA =Karnataka Apartment Ownership Act 1972

Agreement =Model Agreement under MOFA.

 

At first, it is to be realized that the KOFA is a mandatory law and if not obeyed the builder is required to be punished with imprisonment whereas KAOA is just a procedural law and is not mandatory /compulsory. It is elective which means you can choose if you wish to otherwise you may leave it.

Under sec 10 of KOFA ,a builder is required to form a Cooperative society immediately  after 11 persons( or as stipulated by Coop Act) have taken flats. The idea is that builder has to convey the common areas, open spaces and common facilities to the Society. Even car parking allotment is to be done by the society and not by the builder. If builder does not form the coop society he is punished with max one year imprisonment.

It is important to bring out the  effect  of  MOFA on KOFA as it directly impacts KOFA in a big way.

The MOFA was enacted in 1963.I suggest You to read the preamble of this act. After this, all the States in India borrowed certain clauses fm MOFA to form their own Flat Acts /Development Act. You can see in Gujarat ,UP, Bihar, WB, Haryana, Delhi  etc etc.KOFA was enacted in 1972.It is a mirror image of MOFA meaning that sec by sec, para by para ,sentence by sentence, word by word it is the same .Even the punctuation marks at places are same. When this happens the two laws ie KOFA and MOFA are said to be in ‘Pari Materia’.This is a legal term for the meaning given to similar/same laws/sections . Hence all judgements pertaining to MOFA will be squarely applicable to KOFA .Importantly the Division Bench of High Court of Bombay and Supreme court judgements that pertain to MOFA will be applicable to KOFA .We don’t find much judgements on KOFA .Hence MOFA judgements will help.Similarly other stae laws which have the same clauses their judgements will apply to KOFA.You will not find this to be  in agreement with lawyers who would say that how can one state judgement affect the judgement in another state? Well I have given the answer.

As time went by MOFA added many clauses but no amendment was made to KOFA like the MOFA.The clauses that were added to MOFA over the period of years should help you in getting those added to KOFA. Also there is a model agreement in MOFA which I have Attached .It will further give you ideas regarding improvement to be made to KOFA .The model Agreement is compulsory and is the soul and basis  of some of the judgements in Maharashtra.You could also download other states flats act and study them and include some imp secs from them that have been missed out in KOFA or its rules.

As I said, KOFA is the copy of MOFA but sec 10 of MOFA consists of two parts. Whereas KOFA is only one part.The first part of both are the same .But part 2( subsection 2) of MOFA has disappeared in KOFA  and it has been made available in Rules of KOFA which has made a big difference in interpretation of law.

Subsection  2 of sec 10 of MOFA gives the purchaser an election to either go for  Coop society or register under MAOA ( Maharashtra Apartment Act like our KAOA),So you could elect to form a society either under Coop society Act or society under  under MAOA. In KOFA this subsection does not exist but has been inserted  in the rules of KOFA. Hence the election that one Had in MOFA is not available in KOFA .Since KOFA is statuary you have to obey it ie form a society under the Coop act,even though election is available in Rules .If this rule is applied then under KOFA the main statute gets amended ie election is made available when the law does not permit it. Under settled laws a Rule cannot change the main statute. A rule is made by the Government ( executive) and statute( Law) is made by legislatures and executives. The Executives have no power to modify the main statute made by legislatures. Only legislature/parliament can bring amendments  after approval of both the houses and assent of the President of India is obtained. So this was the error made in KOFA .However although Coop society is mandatory ,in addition you can form as many societies as you want .But Coop Society is a must and cannot be substituted by any other society under any act.

You all must take it to a logical conclusion and make sure that the amendments you want is enacted which will benefit one and all.

Hope this helps!!

Regards

Col S K Chakravarty

9448377177 

---

From: Shiva Kumar <legaladv...@gmail.com>
Sent: Friday, January 19, 2018 2:42 AM
To: Ajit Naik
Cc: Ameya Usgaonkar; LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan; sudhir chakravarty
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

 

Dear all,

I fully agree with Mr.Ajit . An apartment registered under KAOA 1972 need to be registered again as a co-op erative society. The deed of Declaration will suffice.  However, under KAOA , the competent authority is registrar of co-operative societies who regulate the functioning of Apartment owners associations. But, the registrar does not recognise this fact of law. The govt. also  does not seem to be bothered to direct registrar of co-operative societies to consider annual filing from associations registered under KAOA.

Shall stand corrected if there are any errors in my submission to this group.

Best regards

Shivakumar

  

[sudhir chakravarty]

There are three  ways to form societies .One is under,company which is regulated by the Company Act or  cooperative societies which are regulated by the Cooperative Act whereas there was no alternative for flat owners in case where minimum number is not achieved under these two acts .Hence the same is regulated by KAOA, in that KAOA  makes it heritable etc .The MOFA makes it elective for either of three of them so you could follow any one of them .In Karnataka you have a choice only with two.Unfortunately when they removed the part 2 as in M0FA they forgot to remove the preamble .Also this should have been the preamble of KAOA and not KOFA .

The command directives are in sec 10 which has to be read first and interpreted straight .If they have doubts in interpretation then only  the preamble is to be looked into and not vice versa.Preamble is not a statuary provision to be obeyed .I do not think  MOFA had this preamble!!

FAQ issued by Inspector gen for stamps and Reg is under the following link( Sno 3 .Reg of Flats and Apartments)

http://www.karnataka.gov.in/karigr1/Pages/FAQ.aspx

Col S K C 

---

From: Ajit Naik <ajit....@gmail.com>
Sent: Monday, January 22, 2018 2:09 PM
To: sudhir chakravarty
Cc: Ameya Usgaonkar; LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan; Shiva Kumar

[Muralidhar Rao]

Going through some documents stored in my comp, I chanced on the attached document (very likely prepared by Sanjay Vijayaraghavan), which I thought I'll share with the group.

cheers, Muralidhar Rao

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[Ajit Naik]

Dear All,

Purpose of the Discussion

Draft or Legislated bills on KAOA and KOFA were published in the Karnataka Gazette on 2-12-1972. Bill on KAOA was assented by the President of India on 14-7-1973. Bill on KOFA was assented by the President of India on 29-6-1973. Both acts were published in the Karnataka Gazette on the same day i.e. on 23-7-1973. The final rules of both the acts were notified on in the Karnataka Gazette on 10-3-1975. Implementation of KAOA and KOFA are in force in Karnataka since 10-3-1975.

As mentioned in one of the Col Chakravarti’s email, KOFA is mirror image of MOFA. The same is the case in respect of KAOA and MAOA. During the period from 2-12-1972 to 10-03-1975, there were 2 (two) amendments each in MAOA and MOFA. Subsequently MAOA was amended once during 1986 and MOFA was amended 15 times until 2012. 

As far as implementing KAOA and KOFA, though the original intent of GOK was to enact exactly similar acts and rules as existed in Maharashtra (MAOA and MOFA). Though GOK enacted two acts (KAOA & KOFA) and enforced them on 10-3-1975 through gazette notification, Government was totally negligent in implementing the acts. Authorities required to implement KAOA as mentioned in the act/rules (Competent Authority) has not yet started to function until now even after nearly 42 years. Authorities required to implement the provisions of section 5 and 7(4) of KOFA were appointed by two Orders of UDD, GOK on 8-3-2012 and 14-3-2012. These appointments were done as directed by Karnataka High Court. No authorities are named in the KOFA for administering other sections of the act.

In the above background, GOK has totally failed to bring amendments to KAOA and KOFA to put it at par with MAOA and MOFA as on 10-3-1975. The amendments made to MAOA and MOFA during the period from 2-12-1972 to 10-03-1975 were very important and these amendments were brought to get more clarity in understanding both the interlinked acts based on the experience gained in implementing them in Maharashtra from 19-2-1971 to 1-1-1975. In such situation, interlinking of KOFA, KOFR, KAOA and KAOR has become a very difficult task to apartment buyers, promoters, Government Officials of concerned departments, IGRS and his subordinate sub registrars, advocates and even judges. The registration process of Declaration and Deed of Apartments under KAOA has not yet been streamlined in Sub-Registrar’s Offices in the State as per KAOA. In the meanwhile, a new act-RERA is being implemented with effect from 1-5-2017 which will have further impact on implementation of KAOA and KOFA.

Our discussion in this group should be on our suggestions to bring amendments to KAOA and KOFA which is submitted to the Director of Town Planning after our discussions with the three senior officials of the department. Please refer the very first email on the subject link addressed to the Director of Town Planning.  We have tried to bring KAOA and KOFA at par with MAOA and MOFA linked with RERA and some other better provisions in other State Acts.

We are advising members to give suggestions on the amendments suggested by us to TCPD. We will take note of the suggestions while we initiate discussion with them in the next week. We may also submit new amendments to TCPD after updating the suggestions given by group members.

We know that there are many ambiguities, confusion and hurdle in understanding and interlinking KAOA, KOFA, KAOR and KOFR. Our aim is to remove all such difficulties, if government agrees to our suggestions.

Please give your valuable suggestions keeping the above points in mind.

Regards,

Ajit N.Naik

 

[Ajit Naik]

Dear All, 

Please refer to the attached suggestions on amendments to KAOA and KOFA. Please refer the suggestions in the attached drafts on the particular section in which you wish to give suggestions. If  you feel the necessity of  improvements, please suggest the same. It will be very useful to us.

Regards,

Ajit N.Naik

[Ajit Naik]

Forwarded to the groups to remind them our letter address to the Director of Town and Country Planning, Government of Karnataka on 08-01-2018.

[sudhir chakravarty]

Ameya ,

Further I would like to add :

1. That in an ongoing case, the Bangalore Police have already filed a charge sheet against a builder for not adhering (violation ) to sec 10 of KOFA .Cognizance has been taken by the trial court and the process is on.In Maharashtra builders have been punished for not forming coop society irrespective of what the preamble etc is .So it is a settled principle of law that sec 10 has to be obeyed by the builder.
2. To my mind because of RERA,  KOFA etc may be repealed( deleted) at a later date .In Karnataka it has not been done, whereas MOFA was repealed by Maharashtra Govt in 2012/13.
3. To simplify things,I suggest, to  let the law, allow society to be registered  under 'The Karnataka Registration of Societies Act 1960' as they are wrongly doing now and not cooperative Act of 1959 as coop act is too cumbersome. This will only require an addition to sec 4 of the Karnataka Registration of Societies Act 1960 and an  amendment to KOFA, if not repealed. In any case RERA does not mention any thing about,  details of any act  under which a society is  to be registered ( correct me if I am wrong)so only sec 4 of the 1960 Reg of societies Act will be required to be amended by inserting an additional subsection.This has been smartly done in Haryana Societies Act ( subsec 10 of sec 6),which ps find as attached. This to a great extent  will take care of all the hassles which people face now.
4. An issue of greatest concern is that when the builder delays handing over the Flats ,the purchaser faces a burden of paying EMIs for no fault of his and it gets aggravated if matters reach courts.This should be regulated and the builder should be made to pay the EMIs to the bank after due date adding extra burden to him.In one  case , the consumer court has directed the builder to pay the EMIs till the court case finishes.
5. Another issue I found with most societies is  that the builder gets his own chamchas appointed as some authority in the societies which mainly deal with the maintenance money as the builder wants to monetize even after sale of property. Some are additionally on the payroll of the builder ..It must be realized that after handing over the property builder is just a third party having no locus standi. In another place I found domination of a particular community in the society management .But for this other members are to blamed for a 'chalta hai' attitude!! All these vitiates the atmosphere and there is a constant tug of war between groups of residents and almost the whole day they keep fighting with each other giving rise to additional splinter groups .The result is that the same apartment groups take opposite positions in courts. In most cases I found that it is the builder group ( dominant) that does not allow registration under coop act .This issue is  a big headache and worst of all the issues. Hence some thing is required to be done so that these don't  happen.Residents must speak in one voice.
6. The above suggestions, I feel, would greatly address the issues and alleviate the problems faced by purchasers.

Cheers

Col S K C 

---

From: sudhir chakravarty <chak...@hotmail.com>
Sent: Sunday, January 21, 2018 7:51 AM
To: Ameya Usgaonkar
Cc: LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan; Shiva Kumar; Ajit Naik
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

 

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[sudhir chakravarty]

Ameya ,

There is a very imp point also to be incorporated in the statutes:

We all know that laws give certain Rights and interest in property.These have implications which are implied from the Law itself or it has to be culled out from the pari materia laws or other means like the Preamble etc .For example : In joint Development there are 4 to 5 stages in which the Rights gets transferred. Stage one is JDA between the Owner and the Developer.So who has the Right .We don't know.Stage 2 when builder allots the flat and you start paying who has the right Owner,builder or you. We perhaps do not know but it is latent in some laws.Third stage  is EMI Payment .Who has the right Owner ,builder,Allotee or bank.Next stage you pay VAT ( GST) and builder does not deposit Vat that you have paid.This is rampant.Under the VAT Act if Vat is not paid by builder then it is an offence and  till full VAT is paid back the Govt has first Rights on the property.

You know very well we can go to courts for restoration of our Rights provided we have any.Question is who has the Right at what  stage?I have seen if we leave this issue for interpretation in courts, there is every likelihood of variations in interpretation by courts .

So this issue should be addressed by spelling out the Rights in the Statutes itself. 

Col S K C

---

From: sudhir chakravarty <chak...@hotmail.com>
Sent: Wednesday, January 24, 2018 4:36 AM

[Ajit Naik]

---------- Forwarded message ----------
From: sudhir chakravarty <chak...@hotmail.com>
Date: 24 January 2018 at 04:36
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA
To: Ameya Usgaonkar <ameya.u...@gmail.com>
Cc: LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>, Shiva Kumar <legaladv...@gmail.com>, Ajit Naik <ajit....@gmail.com>

Ameya ,

Further I would like to add :

1.That in an ongoing case, the Bangalore Police have already filed a charge sheet against a builder for not adhering (violation ) to sec 10 of KOFA .Cognizance has been taken by the trial court and the process is on.In Maharashtra builders have been punished for not forming coop society irrespective of what the preamble etc is .So it is a settled principle of law that sec 10 has to be obeyed by the builder.

2. To my mind because of RERA,  KOFA etc may be repealed( deleted) at a later date .In Karnataka it has not been done, whereas MOFA was repealed by Maharashtra Govt in 2012/13.

Col. Sir, 

Is it the same case in which 3 persons died while cleaning the STP tank? Please refer section 5A and 14 in our proposed suggestions. We have already taken care of the point. Please give reference of Bombay High Court Judgement in this regard. MOFA is now operative after repealng of MRERDA, 2012 by RERA act section 92. Until GOK changes its RERA rules and includes all real estate developments under RERA [refer section 3 (2)(a) proviso], KOFA shall continue. As per section 10 of KOFA, it is the duty of the promoter to apply for formation of Coop, Company or reegister DOD. In RERA, the promoter has to enable the formation of Association of Allottees [refer section 11(4)(e)]. The process of forming Association allottees shall start after 3 months when majority of allottees book their unit). This provision in RERA is much weaker than KOFA. Proper procedures have to be evolved in this regard and our group and LMKNV will take up this issue with RERA authorities and GOK.

3.To simplify things,I suggest, to  let the law, allow society to be registered  under 'The Karnataka Registration of Societies Act 1960' as they are wrongly doing now and not cooperative Act of 1959 as coop act is too cumbersome. This will only require an addition to sec 4 of the Karnataka Registration of Societies Act 1960 and an  amendment to KOFA, if not repealed. In any case RERA does not mention any thing about,  details of any act  under which a society is  to be registered ( correct me if I am wrong)so only sec 4 of the 1960 Reg of societies Act will be required to be amended by inserting an additional subsection.This has been smartly done in Haryana Societies Act ( subsec 10 of sec 6),which ps find as attached. This to a great extent  will take care of all the hassles which people face now.

In bigger projects, RERA is taking care of Allottees in getting OC, registration of deed of apartment and conveyance of common area properties and facilities and repairs of structural defects up to 5 years. KAOA takes care of most of the issues/problems/disputes of allottees, tenants, vendors. Once Declaration is properly registered along with sanctioned project plan, Statement of UDS of all allottees and bye-laws in the model form given in the Rules, there is no necessity of Registration of Association under KSRA, 1960. Legal backing to issues of apartment dwellers and their association and model bye-laws of Association of apartments owners are not available in KSRA. In cooperative act, GOK has already come out with model byelaws and all issues of allottees and their cooperative society will be taken care under the cooperative principles and Suitable officer of cooperative department will function as competent authority. Our effort is for proper implementation of KAOA and KOFA and to set-right certain issues of previous purchasers of apartment. Please refer proposed section 5, 5A, 5B, 11(3) to 11(5) to KOFA  and Section 2 third proviso   

4. An issue of greatest concern is that when the builder delays handing over the Flats ,the purchaser faces a burden of paying EMIs for no fault of his and it gets aggravated if matters reach courts.This should be regulated and the builder should be made to pay the EMIs to the bank after due date adding extra burden to him.In one  case , the consumer court has directed the builder to pay the EMIs till the court case finishes.

The above issue should be get solved by proper implementation of RERA and amended KOFA.

5. Another issue I found with most societies is  that the builder gets his own chamchas appointed as some authority in the societies which mainly deal with the maintenance money as the builder wants to monetize even after sale of property. Some are additionally on the payroll of the builder ..It must be realized that after handing over the property builder is just a third party having no locus standi. In another place I found domination of a particular community in the society management .But for this other members are to blamed for a 'chalta hai' attitude!! All these vitiates the atmosphere and there is a constant tug of war between groups of residents and almost the whole day they keep fighting with each other giving rise to additional splinter groups .The result is that the same apartment groups take opposite positions in courts. In most cases I found that it is the builder group ( dominant) that does not allow registration under coop act .This issue is  a big headache and worst of all the issues. Hence some thing is required to be done so that these don't  happen.Residents must speak in one voice.

Sir, this issue will get solved only if apartment purchasers (majority purchasers are youngsters) try to understand the acts, rules and bye-laws like our friend Mr. Ameya. In RERA there is provision of only one vote even if the allottee owns more number of flats. This should reduce the monopoly of promoters and land owners in exercising their vote on unsold apartments owned by them. Please refer proposed section 3(n) and 3(s) 0f KAOA. 

6. The above suggestions, I feel, would greatly address the issues and alleviate the problems faced by purchasers.

Cheers

We welcome such suggestions

Col S K C 

Ajit N. Naik

To unsubscribe from this group and stop receiving emails from it, send an email to lmnkv-apartment-rwa-issues+unsubsc...@googlegroups.com.

[Ajit Naik]

---------- Forwarded message ----------
From: sudhir chakravarty <chak...@hotmail.com>
Date: 24 January 2018 at 04:36

Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

To: Ameya Usgaonkar <ameya.u...@gmail.com>
Cc: LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>, Shiva Kumar <legaladv...@gmail.com>, Ajit Naik <ajit....@gmail.com>

Ameya ,

Further I would like to add :

1.That in an ongoing case, the Bangalore Police have already filed a charge sheet against a builder for not adhering (violation ) to sec 10 of KOFA .Cognizance has been taken by the trial court and the process is on.In Maharashtra builders have been punished for not forming coop society irrespective of what the preamble etc is .So it is a settled principle of law that sec 10 has to be obeyed by the builder.

2. To my mind because of RERA,  KOFA etc may be repealed( deleted) at a later date .In Karnataka it has not been done, whereas MOFA was repealed by Maharashtra Govt in 2012/13.

Col. Sir, 

Is it the same case in which 3 persons died while cleaning the STP tank? Please refer section 5A and 14 in our proposed suggestions. We have already taken care of the point. Please give reference of Bombay High Court Judgement in this regard. MOFA is now operative after repealng of MRERDA, 2012 by RERA act section 92. Until GOK changes its RERA rules and includes all real estate developments under RERA [refer section 3 (2)(a) proviso], KOFA shall continue. As per section 10 of KOFA, it is the duty of the promoter to apply for formation of Coop, Company or reegister DOD. In RERA, the promoter has to enable the formation of Association of Allottees [refer section 11(4)(e)]. The process of forming Association allottees shall start after 3 months when majority of allottees book their unit). This provision in RERA is much weaker than KOFA. Proper procedures have to be evolved in this regard and our group and LMKNV will take up this issue with RERA authorities and GOK.

3.To simplify things,I suggest, to  let the law, allow society to be registered  under 'The Karnataka Registration of Societies Act 1960' as they are wrongly doing now and not cooperative Act of 1959 as coop act is too cumbersome. This will only require an addition to sec 4 of the Karnataka Registration of Societies Act 1960 and an  amendment to KOFA, if not repealed. In any case RERA does not mention any thing about,  details of any act  under which a society is  to be registered ( correct me if I am wrong)so only sec 4 of the 1960 Reg of societies Act will be required to be amended by inserting an additional subsection.This has been smartly done in Haryana Societies Act ( subsec 10 of sec 6),which ps find as attached. This to a great extent  will take care of all the hassles which people face now.

In bigger projects, RERA is taking care of Allottees in getting OC, registration of deed of apartment and conveyance of common area properties and facilities and repairs of structural defects up to 5 years. KAOA takes care of most of the issues/problems/disputes of allottees, tenants, vendors. Once Declaration is properly registered along with sanctioned project plan, Statement of UDS of all allottees and bye-laws in the model form given in the Rules, there is no necessity of Registration of Association under KSRA, 1960. Legal backing to issues of apartment dwellers and their association and model bye-laws of Association of apartments owners are not available in KSRA. In cooperative act, GOK has already come out with model byelaws and all issues of allottees and their cooperative society will be taken care under the cooperative principles and Suitable officer of cooperative department will function as competent authority. Our effort is for proper implementation of KAOA and KOFA and to set-right certain issues of previous purchasers of apartment. Please refer proposed section 5, 5A, 5B, 11(3) to 11(5) to KOFA  and Section 2 third proviso   

4. An issue of greatest concern is that when the builder delays handing over the Flats ,the purchaser faces a burden of paying EMIs for no fault of his and it gets aggravated if matters reach courts.This should be regulated and the builder should be made to pay the EMIs to the bank after due date adding extra burden to him.In one  case , the consumer court has directed the builder to pay the EMIs till the court case finishes.

The above issue should be get solved by proper implementation of RERA and amended KOFA.

5. Another issue I found with most societies is  that the builder gets his own chamchas appointed as some authority in the societies which mainly deal with the maintenance money as the builder wants to monetize even after sale of property. Some are additionally on the payroll of the builder ..It must be realized that after handing over the property builder is just a third party having no locus standi. In another place I found domination of a particular community in the society management .But for this other members are to blamed for a 'chalta hai' attitude!! All these vitiates the atmosphere and there is a constant tug of war between groups of residents and almost the whole day they keep fighting with each other giving rise to additional splinter groups .The result is that the same apartment groups take opposite positions in courts. In most cases I found that it is the builder group ( dominant) that does not allow registration under coop act .This issue is  a big headache and worst of all the issues. Hence some thing is required to be done so that these don't  happen.Residents must speak in one voice.

Sir, this issue will get solved only if apartment purchasers (majority purchasers are youngsters) try to understand the acts, rules and bye-laws like our friend Mr. Ameya. In RERA there is provision of only one vote even if the allottee owns more number of flats Section 14(2) (ii). This should reduce the monopoly of promoters and land owners in exercising their vote on unsold apartments owned by them. Please refer proposed section 3(n) and 3(s) 0f KAOA. 

6. The above suggestions, I feel, would greatly address the issues and alleviate the problems faced by purchasers.

Cheers

We welcome such suggestions

Col S K C 

Ajit N. Naik

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)

[Ajit Naik]

---------- Forwarded message ----------
From: sudhir chakravarty <chak...@hotmail.com>

Date: 24 January 2018 at 06:21
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

To: Ameya Usgaonkar <ameya.u...@gmail.com>
Cc: LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>, Shiva Kumar <legaladv...@gmail.com>, Ajit Naik <ajit....@gmail.com>

Ameya ,

There is a very imp point also to be incorporated in the statutes:

We all know that laws give certain Rights and interest in property.These have implications which are implied from the Law itself or it has to be culled out from the pari materia laws or other means like the Preamble etc .For example : In joint Development there are 4 to 5 stages in which the Rights gets transferred. Stage one is JDA between the Owner and the Developer.So who has the Right .We don't know.Stage 2 when builder allots the flat and you start paying who has the right Owner,builder or you. We perhaps do not know but it is latent in some laws.Third stage  is EMI Payment .Who has the right Owner ,builder,Allotee or bank.Next stage you pay VAT ( GST) and builder does not deposit Vat that you have paid.This is rampant.Under the VAT Act if Vat is not paid by builder then it is an offence and  till full VAT is paid back the Govt has first Rights on the property.

As per RERA both Land owner and builder are Promoters and both are responsible for construction and sale activities Section 2(zk) explanation. The same is strengthened by reversal of MahaRERA authority order in which the land owner was made as co-promoter. MahaRERA has filed an affidavit to the High Court of Bombay reversing their earlier order and made the land overs as Promoters. Both of them are equally responsible to the Allottees and others. GST and VAT  issues have to be dealt with separately by the competent persons.

You know very well we can go to courts for restoration of our Rights provided we have any.Question is who has the Right at what  stage?I have seen if we leave this issue for interpretation in courts, there is every likelihood of variations in interpretation by courts .

Once RERA is implemented properly there are authorities like RERA Authority, Adjudication Officers and appellate Tribunal to take certain decisions on the disputes between the Promoter and Allottees before approaching High Court. In our suggestions for amending KAOA and KOFA, we have proposed more powers to Competent Authorities which wasmissing in KAOA. In KOFA, appropriate authorities were appointed to take decision on section 5 and Section 7(4). In our proposal, we have demanded Competent Authority to administer all the sections of KOFA.

So this issue should be addressed by spelling out the Rights in the Statutes itself. 

Please go through our proposals before giving suggestions on your views. You can give proper suggestions for improvement at proper place(for sections). We have also added more sections than in the existing acts to address certain additional issues.

Col S K C

Ajit N. Naik

To unsubscribe from this group and stop receiving emails from it, send an email to lmnkv-apartment-rwa-issues+unsubsc...@googlegroups.com.

[sudhir chakravarty]

Hi, 

As below

---

From: Ajit Naik <ajit....@gmail.com>
Sent: Wednesday, January 24, 2018 9:59 AM
To: sudhir chakravarty; LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan
Subject: Fwd: Suggestions for bringing amendments in KAOA and KOFA

 

---------- Forwarded message ----------
From: sudhir chakravarty <chak...@hotmail.com>
Date: 24 January 2018 at 04:36
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA
To: Ameya Usgaonkar <ameya.u...@gmail.com>
Cc: LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>, Shiva Kumar <legaladv...@gmail.com>, Ajit Naik <ajit....@gmail.com>

Ameya ,

Further I would like to add :

1.That in an ongoing case, the Bangalore Police have already filed a charge sheet against a builder for not adhering (violation ) to sec 10 of KOFA .Cognizance has been taken by the trial court and the process is on.In Maharashtra builders have been punished for not forming coop society irrespective of what the preamble etc is .So it is a settled principle of law that sec 10 has to be obeyed by the builder.

2. To my mind because of RERA,  KOFA etc may be repealed( deleted) at a later date .In Karnataka it has not been done, whereas MOFA was repealed by Maharashtra Govt in 2012/13.

Col. Sir, 

Is it the same case in which 3 persons died while cleaning the STP tank? Please refer section 5A and 14 in our proposed suggestions. We have already taken care of the point. Please give reference of Bombay High Court Judgement in this regard. MOFA is now operative after repealng of MRERDA, 2012 by RERA act section 92. Until GOK changes its RERA rules and includes all real estate developments under RERA [refer section 3 (2)(a) proviso], KOFA shall continue. As per section 10 of KOFA, it is the duty of the promoter to apply for formation of Coop, Company or reegister DOD. In RERA, the promoter has to enable the formation of Association of Allottees [refer section 11(4)(e)]. The process of forming Association allottees shall start after 3 months when majority of allottees book their unit). This provision in RERA is much weaker than KOFA. Proper procedures have to be evolved in this regard and our group and LMKNV will take up this issue with RERA authorities and GOK.

a)  No ,the case relates to my builder and I have sued the builder on various other charges under KOFA and  IPC also and I am a 'Party in Person'.

b) Although MOFA got repealed most of the essential ingredients have been retained in MAHA Devep Act 2012.

 

c) Under Gen clause Act 6 when a law is once repealed  it cannot be automatically activated unless there is a specific reenactment of MOFA again. As MOFA was repealed by Maha Development Act and subsequently the Development Act of Maha was repealed by the RERA Act ,till date MOFA remains repealed.

The Maha Housing Act 2012 says this:

56. (1) On and from the appointed day, the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, shall stand repealed :

Found the following link for ready ref:

 https://accommodationtimes.com/mofa-is-scrapped-repealed-by-rera/ 

MOFA is scrapped/ Repealed by RERA | Accommodation Times ... accommodationtimes.com MOFA is scrapped/ Repealed by RERA - Accommodation Times

d) In any case not worried about repealing as the two laws ( MOFA,KOFA)are in Pari Materia and judgement of each of them will be applicable to the other.

3.To simplify things,I suggest, to  let the law, allow society to be registered  under 'The Karnataka Registration of Societies Act 1960' as they are wrongly doing now and not cooperative Act of 1959 as coop act is too cumbersome. This will only require an addition to sec 4 of the Karnataka Registration of Societies Act 1960 and an  amendment to KOFA, if not repealed. In any case RERA does not mention any thing about,  details of any act  under which a society is  to be registered ( correct me if I am wrong)so only sec 4 of the 1960 Reg of societies Act will be required to be amended by inserting an additional subsection.This has been smartly done in Haryana Societies Act ( subsec 10 of sec 6),which ps find as attached. This to a great extent  will take care of all the hassles which people face now.

In bigger projects, RERA is taking care of Allottees in getting OC, registration of deed of apartment and conveyance of common area properties and facilities and repairs of structural defects up to 5 years. KAOA takes care of most of the issues/problems/disputes of allottees, tenants, vendors. Once Declaration is properly registered along with sanctioned project plan, Statement of UDS of all allottees and bye-laws in the model form given in the Rules, there is no necessity of Registration of Association under KSRA, 1960. Legal backing to issues of apartment dwellers and their association and model bye-laws of Association of apartments owners are not available in KSRA. In cooperative act, GOK has already come out with model byelaws and all issues of allottees and their cooperative society will be taken care under the cooperative principles and Suitable officer of cooperative department will function as competent authority. Our effort is for proper implementation of KAOA and KOFA and to set-right certain issues of previous purchasers of apartment. Please refer proposed section 5, 5A, 5B, 11(3) to 11(5) to KOFA  and Section 2 third proviso .

Haryana has done it so it should be very easy.I have attached the Act of Haryana. You can ask Ameya how difficult it is to form a cooperative society.  Effort in amending such a laws is comparatively much less

4. An issue of greatest concern is that when the builder delays handing over the Flats ,the purchaser faces a burden of paying EMIs for no fault of his and it gets aggravated if matters reach courts.This should be regulated and the builder should be made to pay the EMIs to the bank after due date adding extra burden to him.In one  case , the consumer court has directed the builder to pay the EMIs till the court case finishes.

The above issue should be get solved by proper implementation of RERA and amended KOFA.

I have given a specific solution because court has already done it so incorporating it should not be a problem..Should ,would ,could, etc will not lead to a pin point solution.As of now it is not there, no harm in suggesting the same to Govt after all it benefits the purchaser.He should not be shortchanged. 

5. Another issue I found with most societies is  that the builder gets his own chamchas appointed as some authority in the societies which mainly deal with the maintenance money as the builder wants to monetize even after sale of property. Some are additionally on the payroll of the builder ..It must be realized that after handing over the property builder is just a third party having no locus standi. In another place I found domination of a particular community in the society management .But for this other members are to blamed for a 'chalta hai' attitude!! All these vitiates the atmosphere and there is a constant tug of war between groups of residents and almost the whole day they keep fighting with each other giving rise to additional splinter groups .The result is that the same apartment groups take opposite positions in courts. In most cases I found that it is the builder group ( dominant) that does not allow registration under coop act .This issue is  a big headache and worst of all the issues. Hence some thing is required to be done so that these don't  happen.Residents must speak in one voice.

Sir, this issue will get solved only if apartment purchasers (majority purchasers are youngsters) try to understand the acts, rules and bye-laws like our friend Mr. Ameya. In RERA there is provision of only one vote even if the allottee owns more number of flats Section 14(2) (ii). This should reduce the monopoly of promoters and land owners in exercising their vote on unsold apartments owned by them. Please refer proposed section 3(n) and 3(s) 0f KAOA. 

But most of the cases I have handled the builder always has a upper hand because he is enjoined with a splinter group.Builder does not want to give up the Revenue generated from maintenance. In Karnataka I found that people do not question builder as a society.Compare to DLF case in Delhi where the society sued the powerful builders and they have been slapped with a fine of around 600 Crs

)

[sudhir chakravarty]

As below

---

From: Ajit Naik <ajit....@gmail.com>
Sent: Wednesday, January 24, 2018 10:54 AM
To: sudhir chakravarty; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; LMKNV-Apartment-RWA-Issues; Sanjay Vijayaraghavan
Subject: Fwd: Suggestions for bringing amendments in KAOA and KOFA

 

---------- Forwarded message ----------
From: sudhir chakravarty <chak...@hotmail.com>
Date: 24 January 2018 at 06:21
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA
To: Ameya Usgaonkar <ameya.u...@gmail.com>
Cc: LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>, Shiva Kumar <legaladv...@gmail.com>, Ajit Naik <ajit....@gmail.com>

Ameya ,

There is a very imp point also to be incorporated in the statutes:

We all know that laws give certain Rights and interest in property.These have implications which are implied from the Law itself or it has to be culled out from the pari materia laws or other means like the Preamble etc .For example : In joint Development there are 4 to 5 stages in which the Rights gets transferred. Stage one is JDA between the Owner and the Developer.So who has the Right .We don't know.Stage 2 when builder allots the flat and you start paying who has the right Owner,builder or you. We perhaps do not know but it is latent in some laws.Third stage  is EMI Payment .Who has the right Owner ,builder,Allotee or bank.Next stage you pay VAT ( GST) and builder does not deposit Vat that you have paid.This is rampant.Under the VAT Act if Vat is not paid by builder then it is an offence and  till full VAT is paid back the Govt has first Rights on the property.

As per RERA both Land owner and builder are Promoters and both are responsible for construction and sale activities Section 2(zk) explanation. The same is strengthened by reversal of MahaRERA authority order in which the land owner was made as co-promoter. MahaRERA has filed an affidavit to the High Court of Bombay reversing their earlier order and made the land overs as Promoters. Both of them are equally responsible to the Allottees and others. GST and VAT  issues have to be dealt with separately by the competent persons.

Request you please list out the 'Rights' under various stages of contractual obligations as above.

You know very well we can go to courts for restoration of our Rights provided we have any.Question is who has the Right at what  stage?I have seen if we leave this issue for interpretation in courts, there is every likelihood of variations in interpretation by courts .

Once RERA is implemented properly there are authorities like RERA Authority, Adjudication Officers and appellate Tribunal to take certain decisions on the disputes between the Promoter and Allottees before approaching High Court. In our suggestions for amending KAOA and KOFA, we have proposed more powers to Competent Authorities which wasmissing in KAOA. In KOFA, appropriate authorities were appointed to take decision on section 5 and Section 7(4). In our proposal, we have demanded Competent Authority to administer all the sections of KOFA.

Over the past few years I have been interacting with BBMP ,BDA ,Coop societies, authorities etc  .Most of them do not know their own laws. Authority under sec 5 of KOFA  is the deputy registrar coop society. He does not sort out anything.He just audits the Accounts of the builder on orders of the Govt and that's all.

So this issue should be addressed by spelling out the Rights in the Statutes itself. 

Please go through our proposals before giving suggestions on your views. You can give proper suggestions for improvement at proper place(for sections). We have also added more sections than in the existing acts to address certain additional issues.

Sorry Mr Naik,I do not have much time at hand to go thru every thing  but whatever was generally observed I have put it down as I know Ameya very well.You may like to incorporate whatever you wish to.Best way would be to sit down with other state laws and rules and fill up the voids in state/central laws and be open to suggestions/discussions as when we discuss we are talking about what is Right.

[Muralidhar Rao]

Hi Ajit

Quite as you and Sanjay have stated, furthering this matter has become most urgent. 

In this connection, I had sometime back tried to reach out to CREDAI (Mr Suresh Hari is VP, and a good friend) to join forces with us to help with the fine tuning of the Act, and rules there-under, in our overall mutual interest. Copy of my letter to them is attached. 

I expect most of the points raised in this letter may have already been covered in the draft prepared by you (and whetted by Sanjay). If not, you may want to provide for them.

Actually, in the flurry of mails on the subject, I have lost track of them, or even deleted some. So, if you can send a copy afresh, I myself could have a look. 

Regards, Muralidhar Rao 

PS: The approach to CREDAI was from the earlier RERA group. Now, we can make a fresh approach.

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[vidya goggi]

Good points in credai letter Murali sir.

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[Ajit Naik]

Dear Mr Vittal,

Please go through the proposed amendments to section 2. It takes care of your suggestion. Violation in building plan, it will taken up in different way if the violation is not unauthrised land.

Thanks,

Ajit N. Naik

On 7 February 2018 at 12:11, Vittal B R <vitta...@gmail.com> wrote:

Sir,

One provision should be made in KAOA, that is any apartment registered under KSRA 1960 should get automatically transferred to KAOA.

If builders are violating the sanctioned plan that should not be a trouble for the residents to register under KAOA.

While revenue act and Bescom act,etc provides for collecting taxes for illegally constructed buildings and Bescom act provides provision to submit a plan as per the constructed plan and not as per sanctioned plan, then why are we put into trouble of not registering under KAOA just because there is no OC/CC or DOD etc.

This is my opinion.

Thanks

Vittal B R 

On 8 January 2018 at 13:59, Ajit Naik <ajit....@gmail.com> wrote:

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[vidya goggi]

Dear all

Would like to appreciate and thank all for bringing out all the inputs as under. Would like to bring up following for your advice and how it can be done:

1. repairs of structural defects up to 5 years. - Building bylaws etc have many requirements. Structure may consist of say STP/ WTP/ Solar/transformers etc kind of structures. Will they also get covered under 5 years warranty?  Does  RERA mention links to other acts or compliances?
   
2. The process of forming Association allottees shall start after 3 months when majority of allottees book their unit).  - Simple majority or 2/3rd any guideline/ recommendation?
3. Residents must speak in one voice. -this issue will get solved only if apartment purchasers (majority purchasers are youngsters) try to understand the acts, rules and bye-laws - This is the root cause of most issues. Not just youngsters, but somehow the whole gamut of real estate purchase is daunting and technical for purchaser. They may have lawyers to vet + trust in banks' due dlligence - which together does not stop the issues that come up later (as evident as not having building OC - which one would feel has been vetted by  lawyer and bank!) SO HOW DO WE RAISE THIS LEVEL OF AWARENESS? As a thought process had 3 things in mind  - 1. CHECKLIST FOR PURCHASERS , 2. WORKSHOPS on building awareness. 3. Service standards for whole process of handing over (ala ISO - as done for BPOs etc.) - Do share views and how to evolve this process.
4. As part of above - can we have a guideline for - Registration Of Association - basically guiding under what act to be registered at what stages (i.e. if under KSRA for initial stages and then winding up and/ or forming under KAOA itself, and for existing buildings - if regd under KSRA - is it advisable to change & register under KAOA and process for same etc. I understand that under KSRA registrations - there is a lot of procedural burden and bribe issues and doesn't add any value - while KAOA has enough strength to sustain on its own and authority (yet to be empowered) is needed only extreme instances as whole act is designed for self management.
5. Another concern not talked about before  is w.r.t. INDEMNITY of MC. We have faced situation with the 'dominant builder (holding chunk of unsold apts and having equall voting rights - though it is curtailed to 1 now) - when services are disrupted for defaults - the dominant builder exercises money power to influence police and does not allow byelaws to hold. cases are filed under Individual MC members and not MC (which enjoys indemnity) to extent of arrest warrants (that too on friday evenings!) for punitive measures . Is there any way in which INDEMNITY clause of KAOA can be strengthened for MC and keep police out of civil matters w.r.t. association functioning and allow MCs to enforce accepted rules as per byelaws?

Rgds

Vidya

---

From: lmknv-rera-homebuyer...@googlegroups.com <lmknv-rera-homebuyer...@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>
Sent: Wednesday, January 24, 2018 9:49 AM
To: sudhir chakravarty; LMKNV-Apartment-RWA-Issues; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; Sanjay Vijayaraghavan
Subject: Fwd: Suggestions for bringing amendments in KAOA and KOFA

 

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[Ajit Naik]

---------- Forwarded message ----------
From: vidya goggi <vidya...@hotmail.com>
Date: 8 February 2018 at 11:00
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA
To: Ajit Naik <ajit....@gmail.com>, sudhir chakravarty <chak...@hotmail.com>, LMKNV-Apartment-RWA-Issues <lmnkv-apartme...@googlegroups.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyer...@googlegroups.com>, Sanjay Vijayaraghavan <san...@gmail.com>

Dear all

Would like to appreciate and thank all for bringing out all the inputs as under. Would like to bring up following for your advice and how it can be done:

1. repairs of structural defects up to 5 years. - Building bylaws etc have many requirements. Structure may consist of say STP/ WTP/ Solar/transformers etc kind of structures. Will they also get covered under 5 years warranty?  Does  RERA mention links to other acts or compliances?

Madam,  STP/ WTP should be covered for free maintenance of 5 years. We have to test it in the days to come by judgments/orders of officials of RERA- Regulatory Authority, Adjudicating Officer and Appellate Tribunal in Karnataka and also in other States. As per section 89 of RERA all land and land development acts of the state has to be reviewed by all states. Until such review, RERA is supreme. That is why we have taken care of RERA while suggesting the amendments to KAOA and KOFA.

2.The process of forming Association allottees shall start after 3 months when majority of allottees book their unit).  - Simple majority or 2/3rd any guideline/ recommendation?

This issue is covered in our proposed amendments.

3.Residents must speak in one voice. -this issue will get solved only if apartment purchasers (majority purchasers are youngsters) try to understand the acts, rules and bye-laws - This is the root cause of most issues. Not just youngsters, but somehow the whole gamut of real estate purchase is daunting and technical for purchaser. They may have lawyers to vet + trust in banks' due dlligence - which together does not stop the issues that come up later (as evident as not having building OC - which one would feel has been vetted by  lawyer and bank!) SO HOW DO WE RAISE THIS LEVEL OF AWARENESS? As a thought process had 3 things in mind  - 1. CHECKLIST FOR PURCHASERS , 2. WORKSHOPS on building awareness. 3. Service standards for whole process of handing over (ala ISO - as done for BPOs etc.) - Do share views and how to evolve this process.

For all these days, there was no Regulator for all housing development activities. Now we have the regulator. However, civic activism and imparting knowledge to purchasers and persons dealing in RERA  is a must. Some system may evolve in future. We should prepare checklist.

4. As part of above - can we have a guideline for - Registration Of Association - basically guiding under what act to be registered at what stages (i.e. if under KSRA for initial stages and then winding up and/ or forming under KAOA itself, and for existing buildings - if regd under KSRA - is it advisable to change & register under KAOA and process for same etc. I understand that under KSRA registrations - there is a lot of procedural burden and bribe issues and doesn't add any value - while KAOA has enough strength to sustain on its own and authority (yet to be empowered) is needed only extreme instances as whole act is designed for self management.

We are in the process. One letter is already given to IGRS. I have met him also.  Another letter will be sent shortly.

5.Another concern not talked about before  is w.r.t. INDEMNITY of MC. We have faced situation with the 'dominant builder (holding chunk of unsold apts and having equall voting rights - though it is curtailed to 1 now) - when services are disrupted for defaults - the dominant builder exercises money power to influence police and does not allow byelaws to hold. cases are filed under Individual MC members and not MC (which enjoys indemnity) to extent of arrest warrants (that too on friday evenings!) for punitive measures . Is there any way in which INDEMNITY clause of KAOA can be strengthened for MC and keep police out of civil matters w.r.t. association functioning and allow MCs to enforce accepted rules as per byelaws?

 

Additional powers are given to Competent Authority to solve all such disputes in the suggested amendments. No provision for Police interference. Even if such interference is there, the same can be stopped by meeting the higher authorities and media. When we meet, we can discuss in detail on indemnity.

Rgds

Vidya

---

From: lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com <lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>

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[Harshal Joshi]

Dear All,

We have completed process under KAO Act 1972, by electing a Board of Managers calling 1st AGM, submitting our DOD, Bylaws, Form Bs and Deed of Apartments and other related documents to the Registrar of Cooperative Society. Now, a group in our apartment insists on registering the Association.

I understand that under KOFA the builder/promoter is supposed to register association either under Karnataka Cooperative Societies Act or the Companies Act, 2013.

1) My question is now that we have formed a Board of Managers consisting of 6 managers, how do we go ahead with registering under Karnataka Cooperative Societies Act with the given situation, where we have completed formalities under KAOA? 

2) Also, once we register as cooperative society, do we need to change our Bylaws in accordance with the Karnatka Cooperative Societies Act? and will not not contradict with what we already did as per KAO Act and Rules?

Request urgent inputs on the above questions.

Regards,

Harshal Joshi

[Ajit Naik]

Dear Joshi,

Are you from Mantri Alpyne? Who has registered DOD, Byelaws? Is it by the promoter? Who has submitted copy of registered DOD, Form-B, Deed of Apartment and other documents to the the Registrar of Cooperative Societies? You have also told that by calling firs AGM of apartment buyers you have constituted the Board/MC/EC.

If the promoter/apartment buyers have completed all the above procedures/formalities, there is no need to register any other association neither under Karnataka Cooperative Societies Act nor under the Companies Act, 2013.

MOFA was enacted during 1960. MAOA was enacted during 1970. Fully Based on MOFA and MAOA, GOK enacted KOFA and KAOA during 1972. MOFA was amended for more than 20 times so far. During 1974, section 10 of MOFA was added by sub-section 2. In subsection 2 of section 10 of MOFA, it is clearly mentioned as under:

"If any property consisting of building or buildings, is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that act and in such cases, it shall not be lawful to form any co-operative society or company."

LMKNV has already submitted a representation to UDD to bring suitable amendments to KOFA and KAOA based on amendments/additions/deletions made to MOFA and MAOA. We will pursue the matter with GOK.

I hope that I have answered your queries satisfactorily. As I am busy in election campaign of Mr. Ravi Krishnareddy, I could not answer you calls.I am sorry for the same.

Regaards,

Ajit N. Naik

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[Kabir Fathima]

Dear Mr. Ajit,

Please advise if by the definition of Applicability of KOFA and KAOA, as stated in section 2, wouldn't the inclusion of commercial portion in the estate, render it mandatory for submission to KOFA, instead of KAOA, in spite of this - subsection 2 of section 10.

Thanks,

Kabir,

Mob: 9611135260

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[Ajit Naik]

Dear Madam Kabir Fatima,

As mentioned in my e-mail of yesterday, KOFA and KAOA were enacted during 1972 totally (100 percent) based on MOFA enacted during 1963 (not 1960 as mentioned wrongly in my earlier email) and MAOA enacted during 1970. When MAOA was enacted during 1970, originally Act was meant for residential apartments only. The same concept/principle  was followed while enacting KAOA during 1972 in Karnataka.

Following additions were made in MAOA by bringing amendment to the Act, during 1974. the same is as follows:

Provided that, no property shall be submitted to the provisions of this Act, [unless it is used or proposed to be used for residence, office, practice of any profession or for carrying on any occupation, trade or business or for any other type of independent use :] 

Additions/deletions in any act is done by bringing amendments to the act based on (a) the practical knowledge earned in implementing the existing act or (b) Impact of judgement of higher courts or (c) the developments / changes taking place in the state. Hence the above amendments were done in MAOA as many  commercial / industrial apartment buildings and  mixed activity (residential / commercial/ industrial) apartment buildings were coming up in big cities like Mumbai,Thane and Pune.

Basically MAOA/KAOA is (1) to get legal ownership of apartment in a building  and then (2) to have a law/act backed by byelaws, rules and regulations to share the common expenditures of maintaining various facilities provided to the owners / tenants  continuously until future demolition of the building, may be after 5-6 decades.

If apartment building is exclusively for commercial or indusrial or residential purposes, there is no problem in (1) owning the apartment and (2) sharing expenditures among the apartment owners as per MAOA/MAOR/KAOA/KAOR  But there will be certain problems in (a) sharing common areas, expenditures and incomes and (b) framing of byelaws, rules and regulations, if the apartment building is for mixed use purpose.

In Karnataka, many mixed types apartment buildings are approved by the UDD/TCPD/BBMP/BDA. So far,there is no clarity on byelaws, rules and regulations framed by GOK in sharing expenditures and various common areas  and facilities of mixed apartment buildings.  Sanctions of mixed use  apartment buildings are granted by various Competent Authorities though GOK has so far not amended the KAOA/KOFA. Such amendment to KAOA/KOFA is necessary, in view of RERA act allowing for residential/commercial/mixed use development of apartment buildings.

On behalf of LMKNV, we few activists will take up the issue and put our efforts to get clarity from the concerned departments of GOK.

I Hope that, I clarified your query.

Regards,

Ajit N. Naik 

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[Harshal Joshi]

Dear Ajit Sir,

Thank you for your reply. Following are the answers:

Are you from Mantri Alpyne? 

Yes

Who has registered DOD, Byelaws? 

Promoter has registered DOD and Bylaws with the sub-registrar office in 2012. Gave us possession of apartments in 2016.

Who has submitted copy of registered DOD, Form-B, Deed of Apartment and other documents to the the Registrar of Cooperative Societies?

Residents/Owners. Being a lawyer myself, I along with few others we interpreted various laws such as KAO Act, KOFA, KSRA, KCSA and decided to follow KAO Act. We went to UDD, Registrar of Cooperative Society and after deliberations few experts like you, MS Shankar sir and others took following steps:

Once our occupancy reached more than 51% (majority), we residents formed a Form B Committee gathered Form Bs and Deed of Apartments (Sale Deed) for almost 3 months as ours is a very huge apartment. Once we hit more than 51% (majority), we called our 1st AGM, elected Board of Managers. 

Within 30 days of formation of Board of Managers, the Board of Managers submitted MOM of AGM, Personal Details of Board of Managers, Deed of Declaration, Form Bs and Sale Deeds collected so far, Plans and all other documents required under KAO Act 1972 & Rules, 1974 and got an acknowledgment of submission of documents from Registrar of Cooperative Societies. 

 You have also told that by calling first AGM of apartment buyers you have constituted the Board/MC/EC.

Yes, details in above answer.

Sir, I am aware of the above analysis presented by you, however, my questions is in the present situation where GOK did not add (amend) a similar subsection 2, Section 10 (like MOFA) in to KOFA. Where do we stand legally as of today in the absence of similar provision in Karnataka?

 

I am also aware that LMKNV has already submitted a representation to UDD to bring suitable amendments to KOFA and KAOA based on amendments/additions/deletions made to MOFA and MAOA. You will pursue the matter with GOK. However, until then what is the status of our association and the Board of Managers formed following steps under KAOA? My initial question was addressed to know if there is any recent development or if the UDD has come up with a solution.

Last year, in one of the Forums MS Shankar sir had posted this:

The Builder hand over the Registered Deed of Declaration and Form “B” upon forming the Association of Owners, under Karnataka Co-operative Societies Act 1959 or under Company’s Act 2013. (Earlier 1959).

The Association Committee submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority, within 30 days* of its first General Body meeting , and this completes the process of KAOA.

The above post from MS Shankar sir has confused me as it states that Builder has to first form an association under Cooperative society Act or Companies Act and later submit DOD and form Bs to Registrar of Cooperative Society as per KAOA. Although, I am not convinced, I wanted to know if there is any development on this front or any apartment that you all are aware of that has formed Board of Managers as per KAOA and still went ahead and registered under any other act to get registration certificate?

Also, the issue is more grievous as other government departments like BWSSB etc are not aware of law and all they ask is a certificate of registration of association while transferring any connections from Promoter name to the Association name.

Regards,

Harshal Joshi, CCMP 

Joshi & Associates

Advocates & Legal Consultants

#57, Novel Business Park,

2nd Floor, 13th Cross Road,

Gajendra Nagar, Baldwins College Road,

Bangalore 560030

Mobile # 9731592546

har...@jalaw.in

www.jalaw.in

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[Ajit Naik]

Dear Joshi, 

I hope as an advocate you agree with me that all steps taken by promoter/apartment owners in forming association, registering bye-laws and running the Association activities should be backed by proper Act and rules.

There is no clarity in KAOA, KOFA and rules framed on them. The only way left with the consumers is to approach the GOK to bring clarity in these two acts and rules framed on them.

Hundreds of apartment owners, Government Officials and expert lawyers or otherwise may give their own solution on the problems faced by consumers/promoters in forming Association. All these are meaningless unless proper procedures are followed backed up with KAOA and KOFA.

Take example of registering the Association of Apartment Owners for taking up maintenance activities of Apartment/flat buildings under the Karnataka Societies Registration Act, 1960. KSRA does not deal in anyway with apartment activities. Kindly refer section 3 and 5 of KSRA. Many wrong things are happening like this on the advice of non competent advocates and corrupt officials.

The best solution to all apartment/flat purchasers problem lies in forcing GOK for bringing required amendments to KAOA and KOFA. GOK officials just have to study amendments made to MAOA and MOFA in the last 45-50 years and propose amendments to legislatures which may suit us in Karnataka.

I have made little study on the subject and  discussed the the matter in this forum. I have submitted two proposals to GOK on behalf of LMKNV for bringing amendments in KAOA  and KOFA. I am attaching those documents for your study. You being an advocate, I request you to give further suggestions for bringing improvements for the requested amendments.

Some of us (4-5 activists) will begin our follow up measures with TCPD and  the new Government from next week onward continuously. All members who have legal mind/aptitude may join us in our efforts.

In view of the above,I can't give any more comments on the issues involved in your latest email.

[sudhir chakravarty]

I have seen that  aspect of KOFA and KAOA  are mostly discussed in various forums and quite misunderstood giving various interpretations.I give below the broad meaning of these laws which are in Agreement with these two laws.I will request all concerned to please go through the 'Statement of Objects' in both these enactments to bring further clarity to the subject matter.

  

Flats and Apartments

The words ‘Flats and ‘Apartments’ have been used in KOFA and KAOA interchangeably to mean the same. Please read the 'statement of objects' pertaining to both KOFA and KAOA and so also KOFA rules. In Canada and USA they probably use the word ‘Apartment’ whereas  the word ’Flats’ is used in England to mean the same as ‘Apartment’. ‘Flat’ is defined in KOFA and ‘Apartment’ is defined in KAOA. If you feel ‘Apartment’ has a different connotation than ‘Flats’ it has to be defined as such and shown that it is different to the meaning as given in these statutes. The difference should be clearly discernible to warrant a separate definition. However in India/Bangalore  it means the same.

KOFA and KAOA

The various aspects of KOFA and KAOA are required to be clearly understood  and I will try to make it as simple as possible for all to assimilate as I understand and perceive . The purpose and intent of these enactments like KOFA and KAOA are important and address the core issues at the grass root levels.

 Before 1963 ,In India,The Registration Act and Transfer of Property Act only catered for sale and transfer of land /finished houses belonging to one person or jointly , wherein the question of common areas/UDI did not arise as construction of Flats were little unheard off .Because of the scarcity of land the people started constructing Flats wherein the concept of Undivided share of land ( UDI)came in. Then the sharing of common Areas and maintenance were the main issues. So some regulation had to be brought in to address these issues where the bye laws were required to be given sanctity after following some democratic norms like election etc. KOFA ( apart from other purposes)and KAOA address this issue, their Maharashtra counterpart being MOFA and MAOA.

    

The First and the moot question that arises then is that, Why both KOFA and KAOA  were enacted, as only a single Act could have done the job? The Second Question is that do we have the luxury in Karnataka to either form a Cooperative society or an Association under KAOA? In general there was a logical reason for enacting KOFA and KAOA separately with different intent and purposes .

 Explanation on Applicability of KOFA and KAOA is as under:

Construction of ‘Flats’ takes place under following Three  agencies.

          a)  Completed ‘Flats’ wherein the builder uses his own money from start to end and   

               then sells the Flats to purchasers. Builders may be private or even BDA. In other 

               words it is selling and purchase of ready made Flats.

          b)  Some people get together and jointly buy land and construct  Flats by pooling                        their  own money from start to end. This is a feature mostly found in Calcutta 

               where you cannot buy independent plots and construct independent houses.You  

               have to have at least four people buying the land and constructing Flats on a  

               Cooperative basis.

          c)  Builder takes the money required for construction of Flats from you in certain  

               tranches and subsequently hands over the Flats to you and so also conveys 

               common Areas, car parking and  the common Facilities like club house swimming                   pool etc  to the society.  

 

The formation of society under (c) is mandated by KOFA but what about formation of society  which fall under  (a) and (b) above as they do not come under KOFA. This was a lacuna before the 70's so later on KAOA was  enacted to fill this void. Hence

 

KAOA is primarily for (a) and (b) above.

 KOFA is for (c) above. Where law permits even KAOA can be for (c) above.

KAOA:

KAOA is not concerned that who has to hand over the common Areas to you. It presumes that Common Areas etc  are already in  possession of the Purchasers. The builder would have included  Common Areas in your UDI or in the Contract and sold you the Flats. For (b) from start to end the common Areas will belong to such people so till eternity it will belong to persons of (b) category .So it is essential that you should get the common areas conveyed to your society before you apply for KAOA otherwise the common areas will remain with builder till eternity and he can use it as he wants to and if Common Areas do no belong to you you will not be able to frame bye laws on a property that legally does not belong to you. Of course it is meant for after purchase of ready made flats or  if it is permitted by any other law.These don’t come under KOFA.

KOFA:

 Refer (c) above :

BDA constructions do not come under KOFA .

This is a mandatory law for (c) above.You have just no choice.The  Flats which are constructed by taking  the money from Allottees in tranches from start to end will have to follow KOFA ( mandatory) only. Because you have been given certain Rights and interest in property right at the beginning after your Agreement has been executed and Registered. It is a statuary order to Register the Agreements and it is an offence if not obeyed. Your money requires protection and this law protects it. There is adequate protection to additional illegal construction by the Builder without your consent. If the Flat construction is delayed you may demand your money back with interest etc as per the laws. If there are defects in the building ,it can addressed  under KOFA. Whereas ,KAOA does not address any of these  issues. Well, in KOFA , unlike MOFA there is only and only one choice between formation of a Company or Cooperative society. Unlike MOFA the third option of KAOA is not available in KOFA . The builder has to form a Cooperative society otherwise he will get punished. So if the builder is to get punished for not forming a cooperative society it indeed, therefore, is mandatory and compulsory for builder and also the purchasers and Allottees to form Coop society. So in this case KAOA is not applicable.

The above are broad based  perceptions in the simplest form as stated in these statutes itself . Detailed reasoning are not provided as it would clutter up in the initial stages. However should anyone have a query, I can certainly answer it to the best of my abilities.

Col S K C

---

From: lmknv-rera-homebuyer...@googlegroups.com <lmknv-rera-homebuyer...@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>
Sent: Thursday, June 7, 2018 10:00 AM
To: Harshal Joshi
Cc: Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; LMKNV-Apartment-RWA-Issues
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA

 

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[Ajit Naik]

Dear All,

I agree with some of the explanations given by Col. Chakravaty. 

At the end of his email on paragrph- KOFA he has written as under:

"Well, in KOFA , unlike MOFA there is only and only one choice between formation of a Company or Cooperative society. Unlike MOFA the third option of KAOA is not available in KOFA . The builder has to form a Cooperative society otherwise he will get punished. So if the builder is to get punished for not forming a cooperative society it indeed, therefore, is mandatory and compulsory for builder and also the purchasers and Allottees to form Coop society. So in this case KAOA is not applicable." 

He has to reread statement of objects of KOFA which was simultaneously enacted with KAOA. He should also refer to Rule 5 explanation 1 & 2 and Rule 9 of KOFA. Afterwords, he can test whether he still holds above opinion.

As mentioned earlier in the protracted discussions on the current subject, there may be hundreds of opinions on KAOA, KOFA, MAOA and MOFA. Here I refer MOFA and MAOA of other States only because as mentioned earlier KAOA and KOFA are totally based on Maharashtra acts.

MOFA was enacted during 1963. MAOA was enacted during 1970. Karnataka acts (KAOA, KOFA) were exactly as per Maharashtra acts as on 1970. Maharashtra Acts were amended in 1974 and subsequent years until 2008. So far there are 3 amendments in MAOA and 23 amendments in MOFA.

Through these amendments, there is required clarity in Maharashtra Acts on most of the issues/confusions which we homebuyers are facing in Karnataka. Acts/Rules are not static, they should be amended based on experience of implementing them and also on changing scenarios. But unfortunately, KAOA and KOFA are totally static and not implemented properly for the last 45 years.

Our job is to bring pressure on GoK to implement KAOA and KOFA properly by bringing amended to them to the existing level of Maharashtra Acts.

We have to provide to GoK sufficient information/documents on good amendments on apartment acts brought by other states also.We should also link our suggestions  to the changing scenario on account of RERA implementation.

Any hearsay suggestions, without backing of any specific acts/rules of our state or other states may not help us to impress the officials who are looking after our suggestions for bringing amendments to KAOA and KOFA. Our suggestions for bringing amendments to KOFA and KAOA are already with the GoK. It is attached to the very first email sent on the subject. I have also attached the STATEMENT OF OBJECTS AND REASONS and PREAMBLE OF- KAOA, KOFA and RERA AND Note on ORIGIN OF APARTMENT OWNERSHIP ACT WHICH IS KNOWN “CONDOMINIUM LAWS” in the United States. 

Let members comments be on the above documents with very appropriate changes to be made in our suggestions for amendments to KAOA and KOFA specifically worded to the point. I have already informed the group in this regard in my reply to Col. Chakravaty on his email dated  24-01-2018.

Let members give specific suggestions on our proposed  amendments and not generalized statements/explanations.

Regards,

Ajit N. Naik 

---

From: lmknv-rera-homebuyers-and-affecting...@googlegroups.com <lmknv-rera-homebuyers-and-affectin...@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>

[sudhir chakravarty]

At the onset we are discussing on 'What is Right' and not 'who is Right'.I do not know whether we should be just listeners on this forum or have the privilege to respond also.I am responding to issues that are brought out in this forum.If there is a bar or embargo  ps let me know .I will abide  by it.For information of all I have the judgments of each and every issue that I write and it is not just a verbose/hearsay.We don't belong to such groups. Let us have the intent and purpose of both the forums.

For the information of all, it is brought out that after a relentless battle with the Registrar of the Cooperative society by the Army Folks, the Registrar  has agreed that KOFA will have to be implemented.He has ruled out the 'Registration under  Society Act 1960' which is a welcome sign.We want the Registrar to issue notice in the News  Papers . Further work is in progress. As the grounds have been cleared and the ice broken ,I would suggest and request that the authorities in this Forum may further take up the matter and get the Notices issued by the Departments .It will help one and all in Karnataka.  

Could not make out what was the  issue under reference for sec 5 as stated , so cannot offer comments.

 I did not want to bring out issue of sec 9 of Rule of KOFA at this stage because as I said it would clutter up the information. This aspect of the Rule cannot be implemented as given below:

We all know that formation of Society under MAOA  was  one of the main statuary options given in MOFA so in Maharashtra people  exercised their option to either  form a Society under the Coop society Act or Association under the Deed of Declaration under MAOA. Unfortunately,in Karnataka, this option was removed from KOFA and inserted in the Rule to KOFA, so this option got transferred from the main law to the rule of KOFA. So as it reads , there is no mandate for KAOA in KOFA. KOFA does not require to form an Association under KAOA. So in other words   when the law does not give the option the Rule gives this option, hence it modifies the main Law ie KOFA. 

The Law, like KOFA, is made by legislatures and the Rule is made by the Government.A Rule can aid the main law to attain the objectives set out in law,but it cannot modify the main Law .I will give a simple example .Say if the main law states that a particular document has to be signed by a person,the rule can say that what colour of ink to use for the signature ,whether black or red or blue, but the Rule cannot give an option that if you don't want to sign you can put your thumb impressions . In such a case the law gets amended by rule which is impermissible in law.The Rule cannot  amend the law. Government or the executive has no powers to amend the law. By this Rule of KOFA , the Govt is enacting a fresh law, which is impermissible.In legal terms it is called 'Ultra Vires' and likely to be struck down by courts.'Ultra Vires' simply means that it is beyond somebody's powers. In support,here are a few judgments, out of the many, along with relevant excerpts as under:

Supreme Court of India

State Of Karnataka And Anr vs H. Ganesh Kamath Etc. Etc on 31 March, 1983

"It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto"

Supreme Court of India

State Of U.P. And Ors vs Renusagar Power Co. And Others on 28 July, 1988

Equivalent citations: 1988

"If the exercise  of   power  is   in  the   nature  of   subordinate

legislation the  exercise must conform to the provisions of

the statute"

Supreme Court of India

Kunj Behari Lal Butail And Ors vs State Of Himachal Pradesh And Ors on 18 February, 2000

"We are also of the opinion that a delegated power to legislate by making rules 'for carrying out the purposes of the Act' is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself"

Supreme Court of India

General Officer ... vs Subhash Chandra Yadav & Anr on 25 February, 1988

"It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void."

The above are just a few of  the many that exist .I hope it would convince all as it is just not a gossip or hearsay .We don't do that and don't stand on that platform.As an  additional information this issue to quash this portion of the rule  being 'ultra vires' is being taken up.

If the Govt amends it before that it will be Fine. Other issues I have no comments to offer.

Col S K Chakravarty

   

---

From: lmknv-rera-homebuyer...@googlegroups.com <lmknv-rera-homebuyer...@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>
Sent: Saturday, June 9, 2018 11:41 PM
To: Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; LMKNV-Apartment-RWA-Issues

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[Ajit Naik]

Dear All,

Our request to the group members on the subject is to suggest specific corrections/improvements to the amendments already submitted to GoK. Very few members (1 to 2 members) have given convincing suggestions.

Army folk should refer three orders of KIC on the RTI appeal Petition No. KIC 3658 PTN 2009 filed by Shri C. N. Kumar against PIO and Undersecretary to Government of Karnataka, Urban Development Department. As per the final order of KIC, implementation of KOFA is the responsibility of UDD. Army folks should also go through the interim order issued by Karnataka High Court during February 2012 on writ petition No. 18969/2005 directing UDD to appoint competent officer and Technical officer as required under section 5 and 7 of KOFA. 

In view of the above, the Registrar of Cooperative Societies can not  issue any order on implementation of KOFA. It hsa to be done by UDD.

We will follow up with UDD for bringing amendments to KAOA and KOFA since 2011. For the last 7 years, GoK has delayed the process of bringing amendments to KAOA and KOFA on the pretext of implementing RERA by GOI. Now RERA is being implemented in states and it is the responsibility of all State Governments to make amendments  to its existing laws and fall in line with RERA act if any provision of state acts contravenes the provisions of RERA act.

Let us go ahead with our existing plan of pursuing GOK to bring amendments to KOFA and KAOA as per our proposal submitted on 08-01-2018. Army folks can get all the documents submitted by us to GOK in this group mailing. If required, let them study it and decide the course of action to be taken by them on implementation of KAOA and KOFA. At present we don't have any correspondence/documents between GOK and army folks on implementation of KOFA and KAOA.

I feel that there is no need to consider the views expressed by Col. Chakrarty in his 2-3 emails. We have been discussing all the problems of implementing KAOA and KOFA for the last 7-8 years. We can consider any suggestions from members if it is  specific to the amendments suggested  and submitted by us to UDD and not lengthy explanation. 

We shall plan to meet UDD officials in the next 4-5 days.

Regards,

Ajit N. Naik

---

From: lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com <lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com> on behalf of Ajit Naik <ajit....@gmail.com>

To post to this group, send email to lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com.

[Harshal Joshi]

Dear All,

I agree with Ajit Sir in that the main KOFA should be amended to bring it at par with MOFA. Although, the  KOFA is silent on KAOA, Rule 9 of KOFR still shows the intent of the GOK to consider submission under KAOA at par with registration under Cooperative Societies Act or Companies Act.  After explaining the process of registration under Cooperative Societies Act or Companies Act, said Rule 9 goes on to state in relevant part:

 "................Where the apartment takers propose to submit the apartments to the provisions of the Karnataka Apartment Ownership Act, 1972 by executing Declaration and Deeds of Apartment as required by that Act, the Promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after the date on which all the apartment Owners (being not less than five) have executed such Declarations and Deeds of Apartment."

I am sure we all can agree here that as far as Rule 9 of KOFR is concerned it cannot be interpreted to have the Promoter register under Cooperative Societies Act or Companies Act and at the same time inform Registrar if the purchasers decide to submit themselves to KAOA.

 Further, there are several apartments in Karnataka where the Promoters have duly submitted their apartments under KAOA and refuse to register under Cooperative Societies Act or Companies Act. Their DODs and bylaws are drafted and registered with sub-registrar offices as per model KAO Rules, 1974. Therefore, it would be unfair to again have them register under Cooperative Societies Act or Companies Act. Most of them are confused due to conflicting views expressed on various forums. 

To add to it most of the lawyers blindly ask them to register under Karnataka Society's Act 1960. Further, most other government bodies are not well versed with laws and require "some registration certificate" from Association "no matter under what law" to process requests such as transfer of any account name from builder/promoter to the Association. (Example BWSSB connection)  

In the wake of above, following are my request and suggestions to the group:

1) Instead of asking the Court to declare Rule 9 of KOFR as ultra vires, the legislature shall amend it to bring at par with MOFA.

2) The Registrar of Cooperative Societies must issue a certificate or some "number", if not called "registration no" if an apartment has duly completed entire process and submitted documents under the KAO Act. This amendment should be retrospective.

3) Sole Authority under KAOA shall be Registrar of Cooperative Societies. Currently, the DOD and Bylaws are required to be registered with the sub-registrar's office and the documents are to be submitted to the Registrar of Cooperative Societies. (This was the request made to me when I recently visited the ROCS Office)

Further, one of the Officers of Registrar of Cooperative Societies requested to be added to this group and whatsapp group so that he can give his suggestions while amending KAOA and KOFA. If the administrators are fine I can provide his details.

Regards,

Harshal Joshi, CCMP 

Joshi & Associates

Advocates & Legal Consultants

#57, Novel Business Park,

2nd Floor, 13th Cross Road,

Gajendra Nagar, Baldwins College Road,

Bangalore 560030

Mobile # 9731592546

har...@jalaw.in

www.jalaw.in

www.corpocorpus.com

Confidentiality Notice:
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[Kabir Fathima]

Extremely valid points Mr. Joshi.

It would be definitely good to include a representation from the registrar's office. Many a times the deputy registrar's recommendation is totally tangential, and reflects inadequacy of process knowledge about KAOA 1972; he lands up guiding the group coming to him, to a KSRA 1960 registration, with full convinction, instead.

Thanks

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[sudhir chakravarty]

The issue is that some portion of ‘sec 9’ of the rules is ‘ultra vires’ of the main act w.e.f. 1975. Hence the Constitutional, ‘Retrospective’ and ‘Prospective’ issues arise. At the end I have suggested remedies for consideration. These are as under:

Constitutional

I suppose you are trying to make amendments in KOFA by adding second part of sec 10 of MOFA to KOFA. We are now considering its implication on Constitutional Rights. MOFA was enacted in 1963 and subsequently in 1970 or so MAOA was added to sec 10 of MOFA. This gave the builder an opportunity to elect between Company, Coop society and MAOA based society and accordingly societies were formed. But, 1n 2012, under Article 19(1)(C) ,the Constitution gave a Fundamental Right to the Citizens to form a Coop society   by the 97^th  amendment of Constitution of 2011 ,by addition of the words "Cooperative Societies". Now if this is your Fundamental Right, then  there is no power on earth which can deny this including the parliamentary laws and state laws. Hence the aspect of election does not arise. Even if you consider KOFA as full form of MOFA the election will not survive in the face of the Fundamental Rights .So if some want to form a Coop society and the builder wants to form a society under KAOA ,even though the KOFA would permit such action it will have to yield in favour of those who want to form a Coop society which is their  Fundamental Right as no parliamentary or state legislations can take away the Fundamental Rights of such persons. Even, you don’t have to wait for Builder to form the society .Since this is your Fundamental Right you can form it any time without even waiting for the builder and the Registrar cannot refuse such an action. For information, if you are not allowed to form coop society you can directly approach the High/Supreme court because it is violative of Fundamental rights. Hence, for the reasons aforesaid , as on today  such an action for amendment may not be under taken.

In fact, I was wanting to give this issue in the ‘Lancha Vadike’ forum but restrained initially as it would have cluttered up all issues and people would have got mixed up.

Retrospective Cases

 Barring the discussion above, amending by legislation now is no doubt a solution which, but, is limited to the extent that it will  be ‘prospective’ and  not be ‘retrospective’ because KOFA is also a substantive criminal law wherein the new amended legislation cannot be made retrospective. This is in accordance with Article 20 (1) of the constitution of India which forbids enacting retrospective criminal laws. The legislature cannot address this issue in the retrospective if it is criminal. We all know sec 10 and 11 of KOFA have criminal liability. So for such  cases either the courts are required to quash the relevant portion of the Rule or the Govt should issue notification of amendment to remove this portion of the rule. Hence in this case Registration of society under cooperative Act becomes mandatory under the statuary provisions. Nothing else can be done and KAOA will not be mandatory. If such an amendment is brought now it will be therefore have a prospective  effect only.I have already stated earlier that KAOA is for finished  and already constructed Flats .Also ps check if KAOA is a corporate body. From a reading of this Act , it looks like it is not. If  so, it may be an infirmity. Otherwise this clause that it is corporate body has to be incorporated in KAOA also. The KAOA rules requires that the declaration is to be signed by the Owner of Flat  in front of a Magistrate competent to sign after oath  otherwise it will be invalid. Ps check if this clause still exists in the rules.

 

Prospective

Apart from the above Constitutional provision,for ‘prospective’ cases no doubt, the amendment can be made and KAOA be made to come under statuary provisions of KOFA but ,first, there has to be a notification by the Govt for the amendment in rules. It should remove this affected portion of the rules and then the legislatures should  enact the new amended law or the vice versa .The amendment to the Legislation bill has to be signed by President of India as KOFA has been signed by the President of India. Hence there will be a time lag in these processes between Govt notification and legislation to the amended act. So the new law/rule should address this issue for these intervening periods which may vary from months to years.

Remedy

Considering the Fundamental Rights and other issues as aforesaid, in my opinion, it will be much easier to persuade the Govt to amend the Rule so that sec 10 of KOFA remains reinforced and in tact in its present form which also satisfies the Constitutional requirement as above . This is because the Govt makes the Rules of KOFA . There is no harm in forming a cooperative society and there is perhaps just no operational difficulty. I do not know why in Karnataka almost everyone fears formation of society under Coop Act whereas in Maharashtra people largely prefer to form Coop Societies .Rather under the Cooperative Act, you can ask the Govt to modify the Coop Act specially tailor made for your purposes like you can ask the Govt to incorporate all the aspects of KAOA in the Coop Act itself. In this Act this power of amendment of Coop Act 1959 has been given to Govt to make any amendment to the cooperative act .There is no need of amendment through legislation. After all even for the purpose of KAOA as in KOFA the regulatory authority /sole authority in Law is the ‘Registrar’ of the   Cooperative society ie both Coop society and KAOA come under the same Law. By opting for this process you can get everything done by the Govt itself and no amendment to legislation will be required for meeting your objectives.

These are my views

Col S K C

 

 

---

From: Kabir Fathima <kabir....@hotmail.com>
Sent: Thursday, June 14, 2018 5:07 AM
To: Ajit Naik; Harshal Joshi
Cc: sudhir chakravarty; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; LMKNV-Apartment-RWA-Issues

[Harshal Joshi]

Dear Col Chakravarty Sir, 

So going by your analysis, can we agree here that until the Court declares the portion in Rule 9 of KOFR related to KAO Act 1972 as ultravires it holds good? and that those of us who have already submitted our DODs under KAO Act, 1972 need not register under Cooperative Societies Act or Companies Act till the court declares rule 9 as ultravires?

Regards,

Harshal Joshi, CCMP 

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[Ajit Naik]

---------- Forwarded message ----------
From: Harshal Joshi <advhar...@gmail.com>
Date: 13 June 2018 at 23:05
Subject: Re: Suggestions for bringing amendments in KAOA and KOFA
To: Ajit Naik <ajit....@gmail.com>
Cc: sudhir chakravarty <chak...@hotmail.com>, "Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS" <lmknv-rera-homebuyers-and-affecting-acts@googlegroups.com>, LMKNV-Apartment-RWA-Issues <lmnkv-apartment-rwa-issues@googlegroups.com>

Dear All,

I agree with Ajit Sir in that the main KOFA should be amended to bring it at par with MOFA. Although, the  KOFA is silent on KAOA, Rule 9 of KOFR still shows the intent of the GOK to consider submission under KAOA at par with registration under Cooperative Societies Act or Companies Act.  After explaining the process of registration under Cooperative Societies Act or Companies Act, said Rule 9 goes on to state in relevant part:

I also refer your subsequent email of today. One should know that whatever is happening in Karnataka on implementation of KOFA and KAOA are ab initio  ultr virus. There are irregularities in implementation of the act at all level. Registrar of Cooperative Societies was not accepting until recently Copy of the DOD, Deeds of Apartments and Annual Return, balance sheet etc. in respect of apartments covered under KAOA. As per your email, he is now accepting copies of DOD and Deeds of Apartments. I will discuss with you separately on this issue. There is no clarity between KAOA and KOFA and the relevant Rules on them. Agreement for Sale is not generally not registered and the AFS does not contain most of the clauses required under KOFA. Sale deeds are registered without registering DOD in respect of projects to be submitted to KAOA. AFS usually does not contain nature of organisation to be formed as per section 3 (2) (h) of KOFA and Rule 5 (1) (d). AFS also does not contain information as per section 6 of KAOA and Rules 5 (1) (e) to (h) if Apartment project is to be subjected to KAOA. More than 95 % of promoters do not make efforts to form Cooperative Societies. Association of flat/apartment purchasers are registered under KSRA, 1960 which is no way connected to the main activity of maintaining common area and facilities of apartments/buildings. I can enlist many, many such irregularities. All these amount to ultra virus in implementing KAOA and KOFA. 

KOFA/KOFR have given the right of choosing the formation of Association of flat/apartment purchasers to the promoter of the multi-storied building projects. He has to mention the same in the AFS and clearly state that he is going to form one specific type of organisation of all flat/apartment purchasers.It may be Cooperative Society under Cooperative act or Company under Companies act or Association of Apartment Owners under KAOA by registering DOD with bye-laws and sanctioned project details copy. He has to abide by it. The choice of choosing nature of organisation is not with the purchasers as there will be hundreds to few thousand apartments in many apartment projects and purchasers will  come from (a) different parts of the country/world and (b) different culture and food habits. It is difficult to bring  together all such purchasers for following the required procedures of forming Cooperative Society or Company or Association under KAOA. The promoter has to take steps in this regard and form the organisation as mentioned in the AFS, call the first meeting of flat/apartment purchasers and constitute the first Managing Committee of the Organisation formed for Administration. Subsequently when the project is completed in all respect, the promoter should hand over the maintenance activities to the organisation by handing over all the legal documents/deposit receipts with water supply board/electricity board, NOCs obtained etc.

As we are aware that there is a big mess/confusion/disconnect in implementing the KAOA and KOFA acts, contents/wordings of these Acts and Rules, understanding of the Acts and Rules by officials and flat purchasers we are pursuing with GOK to minimize/remove the mess/confusion/disconnect in this regard by bringing appropriate amendments to these Acts and Rules based on the MAOA and MOFA. Our papers/suggestions for bringing required amendments are with the Government and also in this group discussion. All suggestions for amendments are suitably worded with section and subsections of the Acts. Most probably we will meet the officials in the next week and try to know the action taken by them. If members suggest  improvements on our suggestion, the same is most welcome but it should be specific with section and subsection numbers with proper wordings in simple language. There is also the necessity of bringing amendments to the Karnataka Registration Rules, 1965 so as to comply with the provisions of Section 13 of KAOA on registration of DOD, Deed of Apartment and maintaining the Index of DOD and Deeds of Apartment.

 

If somebody/other groups wishes to bring changes in KOFA, KAOA, KOFA and KOFR through courts, it is left to them. 

Now coming to your point- KOFA is silent on KAOA, Rule 9 of KOFR - Please understand MAOA was enacted during 1970 and MOFA during 1963. Section 10 of MOFA was amended after enactment of MAOA to make provision for submission of apartments buildings under MAOA by apartment takers. The officials of Karnataka were experts of today's cut and paste method in 1972. They just copied Maharashtra Act- MAOA and MOFA  as on 1970 and made changes by inserting Karnataka wherever Maharashtra was appearing in the act. This was done during 1971 while enacting the KAOA and KOFA. 

Meanwhile MOFA was again amended during 1971 and the right of submission of apartment building to the provisions of MAOA was given to the apartment takers by this amendment to MOFA . Necessary changes in MOFR was made on account of amendment to MOFA. 

KOFR and KAOR were copied from MOFR and MAOR as of 1972 without bothering to the amendments made to MOFA during 1971. Hence KOFA is silent on   KAOA, Rule 9 of KOFR still shows the intent of the GOK to consider submission under KAOA.

 "................Where the apartment takers propose to submit the apartments to the provisions of the Karnataka Apartment Ownership Act, 1972 by executing Declaration and Deeds of Apartment as required by that Act, the Promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after the date on which all the apartment Owners (being not less than five) have executed such Declarations and Deeds of Apartment."

Here after submitting the apartments   to the provisions of the Karnataka Apartment Ownership Act, 1972 by apartment takers   by executing Declaration and Deeds of Apartment as required by that Act, the Promoter shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after the date on which all the apartment Owners (being not less than five) have executed such Declarations and Deeds of Apartment. Here the information to be given to the Registrar of Cooperative Societies is just an embargo on him so that he should not take up registration of cooperative society of purchaser of flats of that prticular project. This has been qouted in some of the Bombay High Court judgments.

MOFA is again amended during 1974 and as per the amendment the subsection 2 of section 10 of MOFA reads as under asontoday:

(2) If any property consisting of building is constructed or to be constructed [and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act] then the promoter shall inform the Registrar as defined in the Maharshtra Co-operative Societies Act, 1960, accordingly; and in such cases, it shall not be lawful to form any co-operative society or company.

I am sure we all can agree here that as far as Rule 9 of KOFR is concerned it cannot be interpreted to have the Promoter register under Cooperative Societies Act or Companies Act and at the same time inform Registrar if the purchasers decide to submit themselves to KAOA.

Here the information to be given to the Registrar of Cooperative Societies is just an embargo on him so that he should not take up registration of cooperative society of purchaser of flats of that prticular project. This has been qouted in some of the Bombay High Court judgments.

 Further, there are several apartments in Karnataka where the Promoters have duly submitted their apartments under KAOA and refuse to register under Cooperative Societies Act or Companies Act. Their DODs and bylaws are drafted and registered with sub-registrar offices as per model KAO Rules, 1974. Therefore, it would be unfair to again have them register under Cooperative Societies Act or Companies Act. Most of them are confused due to conflicting views expressed on various forums. 

This is what I have mentioned in the beginning in blue colour.

To add to it most of the lawyers blindly ask them to register under Karnataka Society's Act 1960. Further, most other government bodies are not well versed with laws and require "some registration certificate" from Association "no matter under what law" to process requests such as transfer of any account name from builder/promoter to the Association. (Example BWSSB connection)  

This can be taken care of whille framing rules on KAOA and KOFR.

In the wake of above, following are my request and suggestions to the group:

1) Instead of asking the Court to declare Rule 9 of KOFR as ultra vires, the legislature shall amend it to bring at par with MOFA.

Already commented.

2) The Registrar of Cooperative Societies must issue a certificate or some "number", if not called "registration no" if an apartment has duly completed entire process and submitted documents under the KAO Act. This amendment should be retrospective.

This can be taken care of whille framing rules on KAOA and KOFR.

3) Sole Authority under KAOA shall be Registrar of Cooperative Societies. Currently, the DOD and Bylaws are required to be registered with the sub-registrar's office and the documents are to be submitted to the Registrar of Cooperative Societies. (This was the request made to me when I recently visited the ROCS Office)

Please give me some more details on your experience in the ROCS office in this regard.

Further, one of the Officers of Registrar of Cooperative Societies requested to be added to this group and whatsapp group so that he can give his suggestions while amending KAOA and KOFA. If the administrators are fine I can provide his details.

I welcome the suggestion and ready to include in the group. I wish to plan to visit ROCS office on getting more information from you. Please provide the contact number of the person in ROCS office.

Regards,                                     

Harshal Joshi, CCMP                                     Regards,

                                                                       Ajit N. Naik

[sudhir chakravarty]

Dear Mr Harshal Joshi,

You do not have to wait for rule to be made 'ultra virus' because there is already a judicial precedent where this ratio has been brought out by the High Court of Karnataka and ordered accordingly. It is a settled Law that cooperative society has to be formed in Karnataka. It automatically takes care of the overriding effect of this rule. Even if this  order is further challenged, the higher courts will quash the relevant portion of the rule to give effect to the statute and this order of the court. You being an advocate would  understand and know this better. I have already given this judgment of Karnataka High Court: Sri S Kesava Viswanathan vs The Registrar Of Societies on 14 September, 2012 in the previous Mails .I do not know if it has reached you.

 

In this judgment  certain directions were given to the Registrar by the Court that he should consider the Application of this person to Register as Coop society in accordance with section 10 of KOFA. I have met this Association and strangely even after the court directing in their favour they have still gone and Registered under the KRSA 1960 Act!!!.So the Association have themselves to blame. To my mind if this society would have prevailed there would have been the correct order from the Registrar because he has been directed to keep in mind sec 10 of KOFA. So if the Doctor ( courts) has prescribed the Right medicine who can stop anyone from continuing with a wrong  medicine !!

You don’t have to form a coop society. The builder has to do that.

Any way, it will be wrong on my part to advise you but all I can say that I 

would have made a course correction to follow the correct law. It is my conviction with which I live and will not bend or buckle under the protection of the wrong law. Just made that way and if authorities don’t work give them the stick from the court. This is the system in our country.To be frank I have never had a problem convincing the authorities whichever case we have handled.Even all court cases have come in our favour.

 

In relation to above , I have already prosecuted our builder for various offences under KOFA and IPC .Not forming ‘Cooperative society’ is one of them as it is a statuary order. So you can understand that I will not be able to take any other position in the matter other than the statutory order which prevails. It is entirely up to you as to what you will want to do. KOFA has been made for us so that the builder does not cheat us but if we don’t avail of this it would mean we are allowing the  builder to cheat us .We can then not complain. Conveyance of common Areas is the main concern

Lastly, you have the big advantage of having an Association to fight for the Right and not wrong .A ‘Writ’ in the High Court just like a ‘Rrepresentative suit’ or a ‘PIL’ duly signed by maximum members would do the job. As it is you have the above judgment which I have cited.

Regards

 

Col S K C

---

From: Harshal Joshi <advhar...@gmail.com>
Sent: Thursday, June 14, 2018 4:37 PM
To: sudhir chakravarty
Cc: Kabir Fathima; Ajit Naik; Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS; LMKNV-Apartment-RWA-Issues