Wednesday, 9 May 2018

The Saga of Behala JVR New Byelaws 2018



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for our Behala JVR Housing colony, we have rightly chosen the route under West Bengal Apartment Ownership Act, 1972  ( superseded / supplemented by West Bengal Apartment Ownership Act, 2015  and  West Bengal Apartment Ownership Rules, 1974 ), Model Bye-laws 1974 and amended by 2016 ( all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.
  
      b) Under Model Act :- Read the Act / relevant Para as extracted from  Advocate Site and shared below :-     https://www.advocatekhoj.com/library/bareacts/cooperativesociety2008/48.php?Title=Cooperative%20Societies%20Act%202008&STitle=Power%20to%20make%20by-laws  
      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.
Further the role of JVR Association / Society / MC as per Para-4 of AFNHB letter 21 Mar 2014 is clearly to give NOC/ NDC against pending dues if any and nothing more. Read the letter at link   https://drive.google.com/open?id=1tJfQ_cP_Q9ZG37nsGkj2N9dh299YmZDq 

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.
All that is legal is a Police verification and this  form is available at link ..     http://www.kolkatapolice.gov.in/images/docs/TenantProfile.pdf  . Please note that police/ legal authority  also doesn’t call for Lease Agreement Copy and neither does the Kolkata Police Notification has any such provisions  in their letter No 73/ICA/NB/PN dt 06 Mar 13  ... downloadable from ..     https://wb.gov.in/portal/documents/10180/0/Kolkata+Police+notification+to+House+Owners/dd2af37b-d2d8-4e9b-8502-1578c2bd44dd?version=1.0


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.



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