Re: Reply to Draft Minutes

[Sanjay Kumar Shrivastava]

Dear Sir

Excellent piece of observation and objections to the MoM of SGM. I thank you for your time and detailed work sir.

Best Wishes

Sanjay Shrivastava

On 27 May 2016 13:23, "anil sharma" <anil...@yahoo.com> wrote:

Dear Chairman/ Secretary

I was quiet confused as to what comments to make on the circulated MoM. I tried to get some idea as to what is the relationship between the agenda items and MoM (copy attached Sl. no 1). Hence the Table for my understanding.

	Agenda Circulated	AS Per MoM (Agenda Items covered in MoM)
1	Briefing on progress in last two months	Item I - Chairman’s address (1)
2	Adoption of model bye-laws for Co-op Housing Society 2014	Item II - Introduction to new Managing Committee (MC).  (1)
3	Approval of new members	Item III- Agenda Points. (1)
4	Handing Over Status- Observations and responses from previous MC. Suggest future course of action	Item IV - Adoption of Model Bye-Laws for Army CHS. (2)
5	Budget for 2016-2017	Item V- Induction of new Members. (3)
6	Legal Cases	Item VI- Progress in last 2 months (1)
7	Water Supply	Item VII - Legal Cases (6)
8	Status of Lifts	Item VIII - FINANCIAL STATUS (new)
9	Security Agency	Item IX - Interim Budget (new)
10	Fire Fighting System	Item X - Approval for Major Projects (14)
11	Society Staff	Item XI - Lift Repairs (8)
12	Housekeeping	XII - Play Area for Children (new)
13	Repair and Maintenance	XIII - Handing over Taking Over (HOTO) process (4)
14	Major Projects	XIV - Staff Salary (new)
15	Cultural Activities	Queries/clarifications from outgoing MC (new)
16	Gardening and Vermiculture	-

 

There are 16 items in the Agenda and it seems from the MoM only7agenda items no. 1, 2, 3, 4, 6, 8& 14 were discussed. What about the other items. There is no mention that the item nos. 5, 7, 9, 10, 11, 12, 13, 15 & 16 (more than half the agenda items) have been dropped without informing the house. Issues to be taken up in SGM just cannot be dropped, defeating the very purpose of such meetings. SGM is a Special General Meeting, permitted at a shorter notice indicating that the items to be discussed need urgent attention. And here we call an SGM stating some items in agenda which are not taken up.

Should I assume that these issues were trivial, that the MC decided not to discuss, then why list them and that to in a SGM. It seems that there was no seriousness in preparing the Agenda for the meeting.

It is suggested that the minutes in future may kindly be drafted as per the agenda items, so that it is easier to correlate and members can respond constructively.

Also new agenda items added: Item VIII-FINANCIAL STATUS, Item IX-Interim Budget Item XII-Play area for children, Item XIV-Staff Salary & Queries/clarifications from outgoing MC. This meeting being an SGM:

a)   Under which bye-law new items have been added. How and under which bye-law can an unsigned document circulated on 29.04.2016 can be taken on record (copy attached Sl. no 2).

Even if it is assumed that this unsigned documentis a part of HOTO (agenda item no. 4), then why the same was not circulated along with the agenda on 22.04.2016.

b)   Adding 05 new items (Refer table) after the meeting was convened and not giving specific notice period for the changed and new agenda items is a clear violation of the bye law no 96 and 99.

Point Wise-Replies

Item-I CHAIRMAN’S ADDRESS:

Sir, it is wrong to say that I had not quoted any bye-laws“I had quoted the bye laws no. 95, 96, 97, 98 & 99 under which the SGM agenda is governed. However the Chairman unilaterally ruled to go ahead with the meeting. I had pointed out that in SGM only the items which have been circulated as agenda items for the SGM can be taken up and no other items are allowed. Thus any other item with the permission of the chair should not have been there in the notice. I had also pointed out that the first notice without any date was not a proper notice and the second notice with date was probably put after mid-night with the previous date. The agenda included items which are mandatory to be taken up at the AGM, e.g., Budget for 2016-17. You cannot take up this item in SGM since a 14 days’ notice period is needed for the AGM to take place and people can be better prepared to discuss something as serious as budget, because it will affect the maintenance charges payable by the members. Chairman then ruled that they will call the item interim budget which is a change in the agenda item. (Attached detailed letter addressed to you Sl. No. 3)

Item-IV: ADOPTION OF BYE-LAWS:

The statement of Col. Bhandari is not correct. The term of the MC is same i.e. 5 years in both the bye-laws i.e. published in 2011(no 116 & 122) & 2014 (bye law no.115 & 121) (society was registered under 2011 bye-laws, and a ruling was given by the joint registrar that fresh Elections are to be held meaning thereby that the ACHS is recognised by Registrar- or one would not have got any hearing from him. Extending the argument further the elections were held under amended bye-laws published 2014). The 97^th amendment does not say speak about the tenure at all (A copy of the 97^th amendment attached for ready reference Sl. no. 4).

The only major difference in the bye-laws 2011 & 2014 Vis a Vis elections is that in 2011 bye-laws, the elections were conducted by returning officer nominated by MC, whereas in 2014 bye-laws are conducted by the state (that is why Annexure 3 is missing from 2014 bye laws).

I would also like to point out that prior to our registration as ACHS, we followed Maharashtra co-operative bye-laws, knowing fully well that there was no legal remedy available for anyone as AWS was registered with Charity Commissioner who cannot interfere in the functions of the Registrar of co-operative societies. Both are governed under different Acts. Prior to AWS we worked as Users maintenance Committee (as proposed ACHS) having no legal entity to approach the Registrar of societies for anything as ACHS was not registered.

The above facts can be seen in all the previous General Body meetings. One thing was common that we were all governed by the General Body Resolutions and practically everyone honoured these decisions.

Item-V INDUCTION OF NEW MEMBERS:

This is what I had said “I welcome the addition of new members but objected to their presence in this SGM and they are welcome to take part in the next general body meeting.

Mr. Umesh Sharma objected to the admission of some of these members since they had opposed the conveyance of land in favour of the Society (which is on written record) and thus acted against the interest of the members of ACHS.

My additional observations:

1.      It is seen that the new members, though not yet admitted by the general body are already sitting as members, and also voted (voice vote) for item no IV, which is illegal as the resolution to admit them as members is Item no.V.

2.      New members have also been allowed to sign the attendance register meant for ACHS members only, though at the time of signing they were not members and should not have been allowed to sign.

3.      In the past also first the members were admitted and then allowed to participate.

4.      Sir, I would like point out here that I had asked to inspect the documents’ and asked for copies or the attendance registrar and a copy of the presentation in which the new agenda items were projected. I have been denied this right which as a member I drive from the Bye-laws and Maharashtra cooperative Act 1960.

Item VII (a) Conveyance of Land:

Para 1, 2 & 3: It is wrong to say that the money has been spent without authority. Approval of the AGM exists to spend for conveyance of land at the rate of Rs. 10,000 per DU. Till date only 3500 had been collected per DU. Chairman is making a wrong statement that money has been paid without any receipts. I (ALL) have been given to understand that all payments were made by Cheque and receipts to these payments exists. What is missing are the vouchers?

To my understanding that is an irregularity which may or may not lead to an illegality. I hold no brief for Ex-MC, my money is also involved. You already have the mandate to get any enquiry conducted at cost/ no cost. My only request is make sure that money is judicially spent. Kindly address my concern, if the enquiry goes in Ex-MC’s favours who will then reimburse my costs involved?

In case of housing societies and in matter of conveyance advocates generally insist on full payment upfront.The probable reason could be that cases normally carry on for a very long time and in case there is change of MC, it is possible that the balance amount may not be realized. I have been given to understand that advocate Mr. Patil has undertaken to fight the case till the end even if it goes to Supreme Court.

Para 6 hearing……….”where our advocate used to reside and he not only asked to leave, but was……………

Replace by the exact words said by Brig Dharam Prakash

….where our advocate used to reside and he not only asked to leave was thrown out, but was…

Para 7 & 8. Col Yadav pointed out that that AWHO creates some space for itself like CSD, to which I responded that in that case CSD would not been paying rent to us (all member 518 are part owner of the shopping complex) through ACHS but to AWHO (the rent received from CSD is reflected in all the Balance sheets).

My additional observations:

1.    In para 4 Col Bhandari states that there is a legal hindrance and that’s why CIDCO has been rejecting our Deemed Conveyance.

Sir, I am interested to know what is that legal hindrance and if that hindrance cannot be overcome then why should we be spending so much money on legal cases. Kindly provide the house the details of the legal hindrance.

2.    I have not seen the letter submitted by Karunesh (C-602), but I believe what he has said that ACHS is not recognized by CIDCO. Also Brig. Thyagarajan added that Deemed Conveyance is applicable when there is an agreement as per MOFA.

I fully agree to both the statements, if there are seen as it is. Here I have some questions which only members of AWS can answer as civilians at that time were not allowed to become members of AWS when the illegal lease agreement between AWHO and CIDCO was signed. That’s the (ill)legal hindrance.

Why was Rs.10, 000/- per dwelling unit not paid when CIDCO as well as AWHO was ready to transfer land in the name of ACHS?

Why was the society not registered as ACHS in spite of clear directions in the original allotment letter and master brochure 1987?

Why was the society registered as welfare society under charities Act, knowing fully well that there is no legal remedy to the members in matters related dwelling units?

How can Charity commissioner adjudicate on matters of Housing when it comes under Registrar of societies?

Why was MOFA not followed by AWHO?

Not registration under MOFA is a crime.

How can AWHO usurp the rights of the flat owners by making you sign an illegal agreement of sale/ sale agreement?

Why was the offer of AWHO to hand over the land was rejected by the management of AWS whereas in all the minutes of the General body right from 1995 onward resolution after resolution were passed to register our society as ACHS ?

There is No resolution by AWS that says that the all the previous General body resolutions on the issue of registration under Registrar of Housing societies are overruled and under what conditions did AWS agree to these illegal conditions.

 

All members please have a look at the illegal Deed of Transfer that all of us have signed, where you are made to surrender your right to the Land. Especially read para 1, 21 and 22. In para 1, it says that you are the owner of the land whereas para 21 and 22 speaks the contrary (Kharghar residents have also signed the same, in fact the total agreement is full of illegalities).

 

Under Contract act 1872, and subsequent amendments’ and law commission’s recommendation (latest one is 2006? On contract Act), all one sided agreement which are of the type ‘take it or leave it’, etc. etc. are covered under the doctrine:

“Unconscionability is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract.”

 Why was this Deed of transfer (agreement of sale/sale agreement) not challenged by the MC of AWS? Was it Just 10,000 rupees or something more that is hidden?

 Why did AWHO give NOC to Kharghar project (the land there also has been given at concessional rate too? I hope that they also had the same legal hindrance as mentioned by Col. Bhandari and their illegal Deed of Transfer was also not as per MOFA, Brig Thyagrajan sir.)

 How and who will recover close to crore rupees of transfer fees which AWHO has been illegally charging and that money rightfully belongs to ACHS?

 Why should all the legal expenses in lakhs that we all are shelling now should not be recovered from the people who took these wrong decisions which were against the path of Natural Justice? And what about the transfer fees as mentioned above?

 Two hearings were held in the Registrar office for Deemed conveyance in the last 3 months. The house needs these answers:

Why was adjournment taken in the 1^st hearing by the present MC?

(I have never seen or heard a claimant i.e. ACHS take an adjournment against the respondents i.e. AWHO when all documents have been submitted by the claimant.)

Why MC was again not present on time in the 2^nd hearing and where AWHO took an adjournment?

Why was this critical information not shared with the house on the day SGM was held?

The Resolution passed in the meeting was for a 3 member committee. Few members of MC will also be part of the committee have been added as an afterthought. The same needs to be corrected.

Item VII (b) Case filed by AWS Members with Deputy Charity Commissioner Thane:

Sir, the correct recording of the minutes should be “Mr. Umesh Sharma said transfer of the assets and liabilities of AWS to ACHS was approved by the general body. All the members who are today voicing their concern were also present at that general body meeting also and if not the minutes of the meeting were circulated and there was no talk of taking legal opinion then. It was a direction of the general body to merge the assets and liabilities, and the same was carried out by the MC. It should also be understood that what was transferred was the contributions of members for maintenance and not any donations. The Charity Commissioner cannot question the transfer of member’s contributions, which are not donations from public.

I feel that it would be prudent to defend the case.

Chairman pointed out that if there was procedural lapse, the same would be corrected (now that is for AWS case, I hope the stand will be similar in case of cases regarding ACHS also), however in case of misappropriation action will be taken. Now sir, can you enlighten us how this is possible?

The only way possible is audit, how can members of ACHS pay for the audit for AWS now?

After the audit findings if there is case of misuse of fund there will be an enquiry set up under some law of charity Act.  My suggestion is don’t get trapped in the words of Mr. Kale, the then Deputy Commissioner who confirmed “there are chances of misuse of fund”. It does not mean anything it is a very general statement, the chance can be 0 or 100 % or in between which is very difficult to prove.

Sir, if ACHS gives the mandate to spend on an AWS audit, I have no issues as long as I am told under which bye-law I will have to contribute and I also need an assurance from you if nothing comes out someone has to pay back my money.

We should think twice before we pass such resolutions.

Item VII (c) Case against CSD Canteen:

I had pointed out that for the interests of the few defense members of the ACHS we are sacrificing the interest of the members at large. CSD are a commercial venture and they should be paying the same rent as Vijaya Bank is paying, which is at the same location. However some consideration or concession can be shown to them. (Refer my reply on the same subject in a mail sent to your office on 16.05.2016 sl. no. 5).

About the resolution the same was not put to vote and the same should be taken up at next general body meeting.

My additional observations:

1.     Rent: I will not give up my right as 1/518th owner of the shopping center. I have every right to know what the notional loss is if the Rent is not recovered at the market rent (you are in negotiations on behalf of the members of ACHS with Vijaya Bank and have a fair valve of the market trend). Kindly let me know the loss and let the same be reflected in the minutes with justifications for the loss.

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