FW: Taking forward the Agenda of the meeting (as per discussions taken place) held on 6-1-2019.
Shankar Srinivasan
Forwarded message :
7 Jan 2019
Dear Ajith Sir,
Thanks for the clarifications and summary of discussions. After listening to all the experts my stand and view point is as follows:
Myrequest to you to forward your emails to all members of the group so that some of them can correct us with their knowledge and value based experience our proposed steps to achieve our goal.
1. RERA Karnataka has to be enhanced with full life cycle of the Asset, not just stop at Construction completion- The maintenance and other ongoing aspects have to be incorporated as outlined in KAOA 1972.
Your above understanding is wrong. Any Association formed under section 11(4)(e) and its provision is to meet the requirements of full cycle of living in the apartment complex apart from each allottee getting protection under the Act, from the date of paying advance to the promoter [as per section 13(1) of the Act] to the date as applicable mentioned in section 14(3) of the act. (next five years from the date of taking possession of the apartment/plot/building as the case may be by the allottee.
2. Per se, I have nothing against KOFA, KAOA in principle, they are good piece of legislation. The only worry is the government department / stake holder / competent authority not owning up these laws, ROCS for reasons best known to them.
Agree with your views. But very few people (either apartment buyers or civic activist) took the the government department / stake holder / competent authority to task by taking suitable effective legal course as per these acts or other provisions available in other acts. We should appreciate persons like Mr. C. N. Kumar, Col. Sudheer Chakravarthy, Mr. Raja Nambiyar and another 15-20 persons who fought until end to get verdicts as per laws in the country.There are few judgements in which few members filed writ petition. I am sorry for not being able to name them.
We can make GOK to strengthen KAOA and KOFA. The strengthening of KOFA may help only the small apartment projects coming henceforth with 4/5 to 7 apartments. All purchasers of apartments/flats in old apartment projects and ongoing apartment projects not covered under RERA Act by RERA Authority/GOK have no option of strengthening KOFA without going to courts. I don't understand how we activists can make KOFA strong for old projects when flat purchasers not came forward to take benefits under section 5 and 7 of KOFA even after issuing the gazette notification dated 14-03-2012 for this purpose. We can only ask the GOK (cooperative department) to give more clarifications on the circular issued by them on 30-11-2018. Here also, we can give some useful workable solutions. Members should give their suggestion in this regard.
3.If competent authority and department ROCS owns up KAOA 1972, it would be good, and KAOA outlines bye-laws and deals with maintenance for apartments for residential purpose. However, this has to be enhanced with similar provisions in KSRA 1960 for other sectors(societies under section 3 of the act), such as Sections 9,10,11,12,13 and 25,26 onward in KSRA 1960 ACT for governance of Apartment associations, these are grey areas under KAOA, it stops at bye-laws, formation of association, and does not delve upon ongoing supervision, governance, monitoring, auditing, liquidation of associations.
The effectiveness of KAOA is not in force since the beginning due to the reasons mentioned by you in paragraph No. 2. Now to make it effective, our first job is to make the Cooperative Department to include in their website (mentioned by you in paragraph No.6) the responsibility on implementing KAOA-1972 and KOFA-1972.We should insist them to discharge their duties properly as per the provisions of KAOA and KOFA wherever there are No inconsistencies with RERA act.
Requesting the GOK to enhance the good provisions of KAOA in the KSRA-1960 is a meaningless and incorrect demand of Activists who are fighting for proper legal solutions. There are many judgements of High Courts and Supreme Court which clearly states that wherever there are special laws on the subject that law prevails over the general law and the special law must be a valid law in operation. Please refer one of the such judgements in the below link on Supreme Court judgement.
COMMERCIAL TAX OFFICER, RAJASTHAN v. M/S BINANI CEMENT LTD. & ANR
4. KSRA 1960 for apartment maintenance is a NO GO legally
Agree.
5.Most provisions of KOFA are covered under RERA for home buyers, except , explicitly stating the ownership, transfer of property, inheritance rights of common areas etc, for this the RERA needs to be enhanced.
All most all the provisions of RERA except the provisions in section 14(2) (i) and (ii) are more homebuyer friendly than KOFA. On the ownership, transfer of property, inheritance rights of common areas etc,, I will cover in my detailed Note yet to be submitted in this group in the next one or two days. These are covered in RERA but more analysis of the provisions of RERA Act, other Acts/Rules of Karnataka State has to be done with reference to Article 254 of the Constitution.
6.I have listened and understood the constraints in forming cooperative society viz..domicile of Karnataka, hold property without sale for 10 years, etc..these are actually good for actual home buyers, compared to speculators and investors, who are only name sake home buyers..we may want to still explore possibility of apartment associations under Co-op Societies Act under Other Type of Societies..please see this link for possibility and group discussion..
Cooperative Housing Rules in Karnataka with special provisions on Apartment Projects have to be studies. Let us try to get some circulars issued during 2008 by GOK-Cooperative Department mentioned in the above link. Please try to get it through google search and send it in this group for the information and study. I also request the advocates in this group to give reference of proper book which contains all these circulars and guidelines on Cooperative housing in Karnataka with special reference to Apartment projects. In my presentation, I gave some points on Cooperative Housing based on the Article of Shodganga in the following link. I have to study more on Cooperative Housing Rules.
SUMMARY:
I -am OK with KAOA 1972, as long as there is defined government stake holder, governing, supervision body for audits and ownership of these assocations
Explore whether we can adopt OTS under Co-op Act, without major amendments
Finally the option for formation of Company always exists
Migration: A GO / Gazette notification needed for migrating all existing illegal associations under KSRA to port to the final destination ..viz KAOA 1972, or Co- operative OTS, or Company, with minimum discomfort for the existing RWA under KSRA.
We shall collectively work on it only by discussing in this group. Group members especially the Advocates in the group and all participants in yesterday's meeting have to be more proactive in discussing the issues involved in our Agenda. Some how that spirit seems to be missing though there were 7-8 messages in the WhatsApp group. I sent an e mail today discussing only on two issues- (1)Legal Entity and owning property by legal entity and (2) Interpretation on Section 3(ff) of KSRA -1960 on forming the Association of Apartment Owners with main activity of Maintenance of common areas and facilities. Even after 10 hours of sending the email in this group, nobody commented on the points explained by me. Though you replied for that email, you have not commented on the points explained by me.
It is difficult to go ahead unless members are proactive to give their views on the issues raised/explained/commented by any member. I request all to take my this comment sportively for the benefit of all.
Thanks
RaghuKC
Shankar Srinivasan
Dear All,
I thank all the participants in yesterday's meeting. Special thanks to all those who presented their views on RERA, KOFA, KAOA, KOFA, KCSRA, KSRA and Article 254 of our Constitution. Thanks to all those who have actively participated in Q & A session. Thanks to Mr. Shankar and Madam Vidya for moderating and controlling the discussions when there were few instances of derailing in the discussion and also on account of paucity of time. Very very Special thanks for Madam Bhagyalakshmi for bearing all the expenses of yesterday's meeting.
Thanks for the consensus arrived in impllementing KAOA-1972 though there was different views expressed by Col. Mathew Thomas. He is also for the consensus. He is free to express his views freely in our democracy and then accept the views of majority members who gathered together with good motive.
Taking forward the Agenda of the meeting (as per discussions taken place) held on 6-1-2019.
For going ahead, there is the necessity of removing the main confusion or difference of opinions on very basic two points. One is on what is a "Legal Entity" and other is inclusion sub-section (ff) in Section 3 of the Karnataka Societies Registration Act, 1960 through amendments (through Karnataka Act No. 9 of 1999). Can this subsection (ff) of Section 3 of KSRA-1960, be interpreted for formation of Association of Apartment Owners/Allottees in which the main activity of the Association is the maintenance of common areas properties and providing the common amenities of the project to the owners and tenants?
What is 'Legal Entity"? Can Legal Entities own properties?
1.As per Business Dictionary: An association, corporation, partnership, proprietorship, trust, or individual that has legal standing in the eyes of law. A legal entity has legal capacity to enter into agreements or contracts, assume obligations, incur and pay debts, sue and be sued in its own right, and to be held responsible for its actions.
2. As per Law Dictionery: A lawful or legally standing association, corporation, partnership, proprietorship, trust, or individual. Has legal capacity to (1) enter into agreements or contracts, (2) assume obligations, (3) incur and pay debts, (4) sue and be sued in its own right, and (5) to be accountable for illegal activities.
3. In Indian laws what is legal entity is on legal records in section 464 of Companies Act, 2013 by explaining on Prohibition of association or partnership of persons exceeding certain number.—
Section 464 od Companies Act, 2013: Prohibition of association or partnership of persons exceeding certain number:- (1) No association or partnership consisting of more than such number of persons as may be prescribed shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the association or partnership or by the individual members thereof, unless it is registered as a company under this Act or is formed under any other law for the time being in force:
Provided that the number of persons which may be prescribed under this sub-section shall not exceed one hundred. (2) Nothing in sub-section (1) shall apply to— (a) a Hindu undivided family carrying on any business; or (b) an association or partnership, if it is formed by professionals who are governed by special Acts. (3) Every member of an association or partnership carrying on business in contravention of subsection (1) shall be punishable with fine which may extend to one lakh rupees and shall also be personally liable for all liabilities incurred in such business.
The above had reference to Section 11(1), 11(2) and 11(3) of earlier Act, Companies Act, 1956.
In view of the 3 points mentioned above and more particularly what is mentioned in bold in point number 3, Associations formed under KSRA-1960, Cooperative Society formed under KCSRA-1959, Associations formed under KAOA-1972, Associations/Trade Unions formed under Indian Trade Indian Act-1926 and many such Associations/organisations formed under any other law for the time being in force are legal entities and they can own movable and immovable properties. On the question of Owning the property by any Association/organisation, please read section 5 of the Transfer of Property Act, 1882.
Transfer of Companies Act, 1882 : Section 5, defines transfer of property as “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act”. Living person includes a company or association or body of individuals, whether incorporated or not.
In view of the above clarifications, we all should sunk the difference of opinions on discussing/questioning the legal entity right of an Association formed under KAOA-1972 or under KSRA-1960 and about their owning the property. Forming such Associations owning the property in the name of such Associations are following strictly the provisions of these Acts and Rules framed on them.
Sub-section (ff) in Section 3 of the Karnataka Societies Registration Act, 1960. Introduced in KSRA -1960 through Amending Act 9 of 1999
Carefully read why subsection (ff) of Section 3 of KSRA-1960- (ff) "the promotion of conservation and proper use of natural resources and scarce Infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities, as may be notified by the State Government from time to time".
Purpose of Amending Act 9 of 1999 to include subsection (ff) oof Section 3 (which is the lawmaker's explanation).- "To implement the Participatory Irrigation Management, the High level working group has suggested certain amendments to the Karnataka Societies Registration Act, 1960 to enable the water users societies to fully implement the programmes. Therefore, it is considered necessary to amend section 3 of the Karnataka Societies Registration Act, 1960 to provide for the proper use of the natural resources and scarce infrastructural facilities like land, power, water, forest and other resources. Hence the Bill. (Obtained from L.A. Bill No. 24 of 1997) (File No. SAMVYASAIE 23, SHASANA 97)."
With the above clear explanation of law makers, I expect Col. Mathew Thomas agrees with the rest of the members that subsection (ff) of Section 3 of KSRA-1960 is not meant for formation of Association of Apartment Owners/Allottees in which the main activity of the Association is the maintenance of common areas properties and providing the common amenities of the project to the owners and tenants?
TENANTS has been made bold properly to make members of this group and specially Col. Thomas know that there is NO provision in KSRA-1960 to apply its various provisions on it's non members (Here Tenants).
With the above explanations, I feel the above mentioned two issues should be closed by members unless they produce a suitable High Courts/Supreme Court judgements (existing and not writ petitions pending) contravening the above interpretations.
On main points of synchronizing all the acts of Karnataka State which are affected by the Central Act- RERA will be discussed in my next note. It will be the same points which I presented (not in detail) in yesterday's meeting but with more clarity, explanations, research notes and judgements of High Courts and Supreme Court. The note will take the benefits of Article 254(1) of our Constitution in changing the Rules of Certain State acts with reference to RERA. The note to be submitted by me will also to be subjected to review and improvements.
I request all of you to actively involved on reviewing the notes submitted by all of us with free mind and without any inhibition. If we are successful to take our agenda to proper conclusion, it will be our great contribution to the younger generation and next generation.
All the members of the group (who were not part of yesterday's meeting) should also participate in this group discussion by giving their valuable new suggestions and also correcting the views expressed in the group discussion.
With Regards,
Ajit N. Naik
.
Shankar Srinivasan
Dear all,
I think we are complicating the topic of discussions.
I did not wish to see our efforts are going in to vain, by frequently diverting and diluting the topic.
If we continue our discussions like this, we will never be able to come for any final decisions / consensus.
We are unable to track the present thread of discussions, as many different topics are discussed at same point of time, without finding solution to the already taken up topics.
First, we need to come for consensus on topic of discussions and later discussions should continue on that topic.
Keep open the topic thread with limited time period.
Collate all the discussion points and put on vote and finalise, based on merits of the submissions legally and logically.
Keep continue and go to next topic.
We are harping on the same context and coming back to square one.
The discussions should go with an intention to come for a conclusion. Unfortunately this discussions are direction less, no target, and no end since 2015.
One can’t devote time to READ and read , to argue, counter argue , argue , and keep continue the same without any end.
All the best.
With warm regards,
M.S.SHANKAR.
Ajit Naik
--
the receipants are requested take appropriate decisions based on the email which are being initiated by the members of RERA- Karnataka. The Manager and or Owner and Members who post such materials and guidance are not responsible for any such act that may have prompt the receipants to take or to be taken.
---
You received this message because you are subscribed to the Google Groups "Fight for RERA - Karnataka Chapter" group.
To unsubscribe from this group and stop receiving emails from it, send an email to rera-for-karnat...@googlegroups.com.
Visit this group at https://groups.google.com/group/rera-for-karnataka.
To view this discussion on the web, visit https://groups.google.com/d/msgid/rera-for-karnataka/!%26!AAAAAAAAAAAYAAAAAAAAAGqF5/%2BcEJhAvIYAnrHSOH4igQAAEAAAAJFI1DpRIAtCr/xg38PAb3sBAAAAAA%3D%3D%40gmail.com.
For more options, visit https://groups.google.com/d/optout.
Shankar Srinivasan
Dear Mr Ajit sir,
I am not against the discussions, but I am not for various topics of discussions and diversion from the tasks taken on hand by us.
All I am emphasizing is discussion in an organized way. This will ensure, the thread of the discussions are traceable and easily accessible.
Not necessary for everyone to substantiate their verdict by getting in to exchange of mails. All are free to air their view with reasons.
We can meet once in a month to evaluate each topic of thread discussions, debate , agree and dis-agree but finally have conclusion.
Let us take every month one topic and conclude.
Let us create another “ group email” where these discussions will take place with all interested activists, experts, etc.,
m.s.shankar 9844010530.
In case of no consensus on the above method of discussion, I wish to move out of this group discussions, and I will restrict myself to the tasks of FPCE ( Fight for RERA ) alone.