When all clapped with
bandmaster exhorting the full General Body in AGM to pass the JVR Bye-laws on
06th May 2018, everyone failed to notice that we are
moving from one Trash bin to another dump yard.
From my point of view the
Byelaw is ultra vires and null & void
.
Understand that after 30 days, 06 hrs labouring by our 07 great Sages, the end product was a still
born baby.
We will soon see how the New
Byelaws enactment not only fails at its very first few steps but woefully out
of the sprit itself in law towards a) Its formation of
the Core Management Team b) Rights to get Elected c) Byelaw approval process d)
Family Member Definition cum Additional Maintenance Charges collection .
There are some basic and
fundamental privileges a member enjoys and this cannot be even curtailed by
General body or through Bylaws amendments.
Let us now examine some facts
and I therefore dare / challenge, anyone
to put their counter points :-
1. Principle
/ Mother Documents :- Given a choice to form some
form of association to obtain a legal sanction for our Behala JVR Housing
colony, we have rightly chosen the route under West Bengal Apartment
Ownership Act, 1972 ( superseded / supplemented by West
Bengal Apartment Ownership Act, 2015 and West Bengal
Apartment Ownership Rules, 1974 ), Model Bye-laws 1974 and amended by 2016
( all readable at link https://drive.google.com/open?id=1O-zo6j9MVrxvqhGTc91-XhXGMwnYe-lD ) click or press here to read
We therefore rightly did not
progress under West Bengal Co-Operative
Societies Act, 2011 and this distinction needs to be understood (
though not relevant in our case but still this document is readable at
link press link )
2. Legality :- All Byelaws have to adhere to their Principle /Parent / Mother documents and at the
same time it can’t be in contravention to State
and Central Laws too.
Read article ... Can housing societies
issue moral, ethical and social diktats?
BY RAVI SINHAFEBRUARY 5, 2018
The legal stand
is clear that no bye-law can be in contravention to the law of land. The Bombay
High Court in the case of Talmakiwadi Cooperative Housing Society case has held
that the bye-laws of a society, cannot violate the provisions of the
Maharashtra Cooperative Societies Act, 1960. If they do so, they will be
declared ultra vires and struck down. Any
resident member, who is aggrieved by the arbitrary and unreasonable actions of
a RWA, can file a suit under Section 6 of the Societies Registration Act, 1960.
3. BoM
Elections :- Our existing election procedure for executive body is not in synch with Apartment rules. Thus instead of the current practice of
selection of office bearers executives directly , we must first
select Board Of Managers who in turn are to select the Executive
Members/ Office Bearers. Please refer Para-13 of the WB Apt Ownership Act
1972 & Amendment 2015 , an extract is reproduced below :-
Para-13 - Bye-laws ()-
(2) The bye-laws shall provide
for the following amongst other matters, namely :
2.(a) the manner in which the
Association of Apartment Owners is to be formed, the election of
a Board of Managers from among the apartment
owners, the number of persons constituting the Board, the number of
members of such Board to retire annually, the powers and duties of
the Board, the honorarium, if any, of the members of the Board, the method
of removal from office of members of the Board, the powers of the Board to
engage the services of a Secretary or Manager, delegation of powers and duties
to such Secretary or Manager.
4. Executive /
Office Bearers :- Having carried out the above process ,we now
need to select thereafter Executive Members / Office bearers from among the
above BoM through internal voting ... e.g In JVR presently we are having 05
positions. This will help us to arrive at the total number of Board Of Managers
who are to be elected in GB / AGM and one third of them to be retired out after
every one year.
Explanation :- In case we
decide to have 05 executive members then the total BoM constitution will be (5x 3 yrs) 15
nos and they need to be elected .. say on 01 May 2019. Note.. we can select maximum of 24 members into the BoM group as provisioned in the rule if we so desire. Then within few days, 05 members out of
the these /above 15 are to be elected/ selected as office bears through internal voting mechanism. Again after 01 year and before ,01 May 2020, the new 05 office bearers amongst the remaining 10 BoMs, are to be
elected/ selected as provisional office bearers to assume their office post/ after the (oncoming) AGM is over and names of the MC to be intimated during the AGM. Immediately after AGM the 05 existing/ present office bearers are to/ should retire / demit their
offices to rejoin back into residual BoM group handing reigns to new elected MC members, to make it all 10 again (05 nos as Executives and 10 balance in BoM). Again on say 01 May 2021 ,
the 05 members who never /did not get elected to MC along with 05 other Office Bearers of 2019-20, constituting 10 BoM members will now be eligible for the
selection to MC if /as they are voted. A BoM member is eligible for re-election for any
position again and may be for same position or new position. On or before 01 May 2022 , the term of entire group of 15 BoM
members will expire on completion of 03 yrs and AGM will then have to elect afresh
15 BoM members where the past members may again find their place unless, Association has contrary rules or has a mandatory cooling-off period .
WB Apt Ownership Bylaws 1974 -
Para -5. Constitution of a Board and its functions.—
(1) There shall be a Board of
Managers in respect of each Association to carry on and manage the affairs and
business of the Association and to exercise all such powers of the Association
as are not required to be exercised by the Association in a general meeting.
(2) The number of
Managers of a Board shall be equal to one-third of
the number of the apartment owners of the property concerned but in no
case it shall be less than three or
more than twenty-four.
5. Tenure of BoM :-
The max tenure of BoM can be 03 yrs only. Read Para-5A of the West
Bengal Apartment Ownership Bye-laws, 1974 re-produced as below :-
5A- Tenure of the Board. - The
tenure of each Board of Managers shall be three years ,
Provided that any Board elected before “ May, 2016” shall have tenure of one
year only .
6. Approving the
Bylaws :-
a) WB Act -
With West Bengal Apartment Ownership Act, 2015, Para-2 amendment to
principle Act 1972, requirement demands approval from majority of the Owners
i.e 51% of Owners and not as envisaged by many only a simple majority in General
Body or AGM/ EGM. Refer text below :-
2. Application of
the Act.——This Act shall apply to every property having residential units or
both residential and commercial units, and the sole owner or all the owners or
majority of the owners of every such property shall submit the same, within
such period as may be prescribed, to the provisions of this Act by duly
executing and registering a declaration setting out the particulars referred to
in section 10.
Also refer to The
Telegraph Thursday , September 24 , 2015 Bill lifts bar on
flat owners' association Our Special Correspondent
https://www.telegraphindia.com/1150924/jsp/calcutta/story_44176.jsp
The state Assembly on Wednesday
passed the West Bengal Apartment Ownership (Amendment) Bill that allows flat
owners in a building or a housing complex to form an association with a minimum
membership of 51 per cent.
Para-48.
Power to make by-laws
1. Subject
to this Act and the by-laws, the members of a society may, at any annual
meeting called for the purpose, make, amend, repeal, replace or confirm any
by-laws, where written notice of the proposed making, amendment, repeal,
replacement or confirmation—
a. is
forwarded to each member of the society with the notice of the meeting at which
the making, amendment, repeal, replacement or confirmation is to be considered
by a majority of members present and voting at that meeting;
or
b. where
the proposal is not forwarded to each member of the society with the notice
described in paragraph (a), may do so by a three-fourths majority of
the votes cast at the meeting.
7. Co or Associate
or Joint Owner Rights :- With no contra Para or
denial for voting and election to BoM stipulated in the byelaws
and following explanation may amplify certain rights as applicable
in our country :-
a) Right to Membership under WB
Act :- There is no reference or bar on the rights of Co-Owners
on getting elected in the Board Of Managers in WB Act. However with mere
intimation to BoM / Association , as in the WB Apt Ownership Bylaws 1974 -
Para-3(1)(c) ( reproduced below) is enough for a Jt Owner to be a member of the Association.
3. Formation of the
Association.—
(1(c) where more persons than
one jointly own an apartment, such persons shall nominate
one of themselves to be a member of the Association concerned,
and immediately send intimation in respect thereof to the Board
concerned.
b) Right to be Member Of BoM
under Maharashtra Act :- Read full 02 articles at the below links and
only the extract placed below :-
https://mysocietyclub.com/blog/can-associate-member-contest-managing-committee-election/
In November 2014 the state
cooperative election authority (SCEA) clarified that associate members can
participate in election i.e. they can vote but was silent on whether they could
contest the election of the office-bearers.
Now SCEA has clarified that a
housing society’s associate members can be part of the managing
committee. This will be a shot in the arm for old cooperative housing
societies as more residents can participate in their housing society’s daily
affairs.
“With the consent of the
original owner (whose name is first in the share certificate), an associate
member can participate in elections and join the managing committee, provided
his name is on the share certificate,” said Shrikrushna Wadekar, assistant
state cooperative election commissioner.
The SCEA has clarified
that a person whose name comes second in the share
certificate is deemed co-owner of the flat, and thus can
contest and be part of the managing committee. Here
what is important that just adding the name of the “Associate Member” in the
register does not make him eligible to contest the election of Managing
Committee unless his/her name appears on the Share
Certificate as the second member.
8. Family Members
/ Tenants :- The WB Act has no reference to definition of a
Family or Tenant. We have to therefore look for any such reference to other
State Acts , Court or Legal cases for better amplification. Hence
read the article / legal interpretations from Lawyers Club India ,
Mr Hemant Agarwal on 30 Sep 2013 at Para-1(d) -
Email: ha21@rediffmail.com and http://hemantagarwal21.blogspot.in .
Extract as below :-
d) Family Member means: Group
of persons which includes Husband, Wife, Father, Mother, Sister,
Brother, Son, Daughter, Son-in-Law, Brother-in-Law, Sister-in-Law,
Daughter-in-Law, Grandson & Grand-Daughter.
Non-Occupancy Charges CANNOT be
levied to the above family-members of the
bonafide Member. However, intermittent joint-stay of
other family members OR friends, will not attract Non-Occupancy Charges.
9. Management Committee Legal
Authorities :- It is not possible to list or cover all legal
aspects on the limitations/ restrictions for the Management Committee with this small
write-up. Best recourse is to read the above full article , at the above
Sl-08 , while I give some extracts below :-
*03. JURISDICTION OF A
SOCIETY:
*NOTE: * Even if the above Form
no. 27 and Form 11, are not submitted to the Society, it does not
"illegalize" the Tenant, nor does the Tenant become a
"trespasser", as is hallucinating thoughts of/ by various ignorant
MC's.
Subsequent to the above and /or
irrespective of compliance of Form no. 27 and Form 11, the Society is liable
and responsible to levy a FIXED "10% Non-Occupancy Charges",
on the regular Society Service /Maintenance charges. It will
be illegal on part of the Mg. Committee, to raise (Co-Operative Housing Society) CHS Maintenance
bills in the name of the Renter
/Tenant.
*06. SOCIETY “NOT”
THE OWNER OF FLAT:*
c) A Society cannot refuse a
member from keeping a Tenant, even if the member is a defaulter or
whatever. The maximum a Society can do is
to inform the local Police Station, about any illegal activities being
carried out in the members flat, by the Tenant or the Member. Nothing
more. Even if the Flat-Owner (Member) has not taken
permission from the Society for keeping a Tenant, in
his own Flat, it will not amount to any illegality, nor
can the Tenant be classified as a "Trespasser".
d) Some nefarious
MC's have assumed the role of "investigating"
the Tenants, by conducting interviews of the Tenants. Such interviews or
assessment of the Tenants are illegal.
*07. CRIMINAL LIABILITY
ON THE SOCIETY MC:*
Irrespective of any resolution
passed in the Society:
f) MC's can
be criminally prosecuted for Mischief, Cheating, Restraining, Restricting,
Intimidating, Threatening, Insulting, and so on, for restricting /prohibiting
tenants, from residing in a Society.
*11. BACHELOR TENANTS CANNOT BE
BANNED:*
a. Such "selective &
prohibitive" provisions /bye-laws created /amended under a
"bye-law" approved /passed by the GB, is
also "illegal & invalid", leading to animosity and
discontent in the Society, which also means "failure of the Cooperative
Movement". AS IT IS, the Society or the MC or the GB
is a "nobody" or say "does not have the
"Capacity or Capability" to decide the legalities of such
things for which there are various Laws available. The
Society MC or the GB are not "Lok Sabha" members or Parliamentarians
who are empowered to pass Laws.
10. Non-Occupancy / Additional Maintenance
charges :- From rules quoted at above para-09 , it is seen that
charging more than 10% extra / additional above the normal Maintenance charges
is illegal. See now the JVR comparison table below from May 2016 :-
Flats
|
W/o Gen
|
With Gen
|
“A” type
owner occupied/Locked flats
|
1500 (1300+200)
|
as per law
|
diff / excess
|
1500 (1300+200)
|
as per law
|
diff / excess
|
“A” type
Tenant occupied flats
|
1700
|
1650
|
50
|
1900
|
1650
|
250
|
“B” type
owner occupied/Locked flats
|
1000 (800+ 200)
|
|
|
1000 (800 +200 )
|
|
|
“B” type
Tenant occupied flats
|
1200
|
1100
|
100
|
1400
|
1100
|
300
|
calculation method applied here is 10% on Rs 1500/- for A-Type Flat with Generator i.e Rs 1650/- and like wise for B-Type Flats .
It is shameful / condemnable that a association of disciplined and law abiding veterans is continuing to extract extra illegal fee / amount from the Tenants as shown above.
11. Storage Area Usage
:-
a) Society has 04 different
types of spaces to be given on rent / common use. On the i) A-Type rooftop we have 01
small space of approx 20 sft in each a-type Buildings i.e total 06 nos usable ii) Ground floors of each A-Type building we
have 01 covered room of approx 35 sft
i.e total 05 Nos usable iii) We
have 04 covered parking spaces in each A-Type blocks for car Parking & Box
/ Article storages iv) Open space for
Car parking only.
b) It is seen that with average
cost of 50 Lakhs per flat of 1200 sft size , the average sft works out to be Rs 4200/- , which effectively translates to approx Rs 85,000/- Real Estate value for this 20 sft for the Rooftop Storage Space. With minimal 7%
interest , the effective cost burden translates / is seen to be not below Rs 500/- per
month.
Golden rule should be Rs25 per sft for locked rooms i.e Rs 500 to 750/- p.m , 25% of said rate (of Rs25/-) i.e Rs06/- for Stilt parkings i.e Rs 1000/- p.m and Rs 03/- per sft for open parking i.e Rs500/- p.m.
Now see the game where some Owners have either occupied it since inception or on permanent retention basis as a personal space at mere
Rs 60/- per month. God forbid at this rate someone will be in perpetual / permanent occupation of these spaces or some other similar space for mere token amount as is prevalent in our country on rental properties.
c) Some owners have occupied
part spaces in each of 02 adjacent car parking spaces , littering the whole
space around while the drive is on for cleaning of the cellar spaces from any
combustible or eye sore storages.
12. Rooftop Constructions
:- Apart from violating the conditions laid down in the “Registration document
“ of each Flat , we now see mushrooming of Penthouse type constructions on roof
tops where the space is authorised / documented / registered for free / open
use without undertaking of any constructions.
Not only they use extra water ,
enhanced electrical bills on use of Lifts and additional garbage disposal services but exempt themselves from
any share / payments of proportional maintenance charges. Can't understand why the lower floor flat owners should share the lift running and infrastructure expenses when not using these services and such a thought process is bound to spring-up in near future.
In case of fire or
any emergencies they will not only use common resources but also presently seen to be obstructing the rooftop common plumbing services /lines , other maintenance envelop like weather coat paintings facilities and also simultaneously seen to be damaging the Building Common Electrical Earthing safety/ lightning arrester system too. At one instance one top floor owner is of the opinion /thinks ... , he/ she is obliging other members in case lower floor owners are to tap an additional water connections.
It is very likely in near future with next generation owning the properties may progress further hiring / permitting erection of Telecom Towers and/or erection / Installation of Hoarding / Advertisement Boards too.
Unless a well documented laws are enacted , we soon are going to have many pot holes to stumble upon.
13. Tenant and
Agreement Copy :- JVR Rental Proforma for Lessee and Lessor has reference to WB
Co-Operative Society Act 1983 instead of referring it as an Association . Further
this demand for personal and
confidential “Lease Agreement” document after
having obtained /Captured all relevant details in the Filled Proforma, is illegal & unethical , beyond the powers of MC to demand / call for such documents and finally with no meaningful role, legal powers & ability to give support during the actual emergencies they act / facilitate as local nuscience body or club . In-fact this very so called Committee actually deserts you in time of emergency / during legal entanglements as was seen in the past for a Flat in Block-03.
14. Inability to Register JVR Association /
Society :- If this attitude
of the Members egged-on with groupism , curtailing of democratic voice and
inserting ultra vires clauses / such processes continues, we do not stand any chance
to get this Association / society registered for ever.
Any question raised has to be
answered as per law and documented so that the infructuous discussion and unnecessary legal
hassles are avoided. In any case it is the right of each member to get proper hearing and get answers in written format if desired. This right cannot be denied even if the full AGM/ EGM or BoM decides so by majority or otherwise.
15. Interim Process Before Registration :- As the actual Association Registration Process may take long time and we have challenges w.r.t FD Interest accruals / renewals or fresh creations, best process would be to progress a generic registration process as are done for any Club / Union / Trade in civil world with PAN also generated based on the said registration. Once we achieve the desired Association or Society Registration as the case may be in due course , the subsequent name change/ migration can be progressed in a timely fashion. This suggestion given during / to the last AGM was suppressed / not put up to the body due inimical attitude of Management Committee.
16. It a further shame that due ego and bullheadedness of Mgnt Committee, we have been suffering huge financial loss on account of Income Tax deduction at source from FD.
For 50 lakhs @ 8% interest the annul income is Rs 4,00,000/- which attracts 20% Income Deduction of Rs 80,000/- yearly directly by banks and cannot be claimed back as JVR had/has no mechanism to fill annual Income Tax returns. This is also not revealed in the AGM too.
further details are being updated
