Wednesday, June 5, 2013

BL Regulators, et al ; Hsg. Co-operatives - Recent Developments Revisted >

An Up-date >
Posted: 19 Jun 2014 01:21 PM PDT
In its recent decision in Swiss Timing Ltd, the Supreme Court has dealt with some important questions relating to arbitrability ..... 

Cross Refer >


How to Question Your Housing Society - Consumer ...
Oct 15, 2012 - vati Housing Society in Mumbai and exposed their ... decision everyone knew of before the renovation contract ... Those of us who live in apartment ... and regulations. ..... compensate any victim of negligence, the Delhi High Court ruled. ... bearers under Section 109 of the Karnataka Cooperative Societies.

Case Law

(Add. of KCSR, etc.)



Shareholder inactivism

You can empower investors to vote out bad decisions, but cannot force them to exercise their rights »


The terms of appointment vary from one sectoral regulator to another. Now, there’s a Bill that takes such issues head-on »

<> Let’s regulate the regulators

"Although, the Bill has been JUDICIOUSLY drafted, it fails to adequately provide for some of the goals it sets to achieve. For instance, independence and accountability have been clearly enlisted as important factors, but the mechanism to achieve these is vague."

This one selected potion is enough to proclaim 'enough is enough!'. To be precise, almost each one of the words used, - e.g. 'judiciously ', 'fails to adequately', 'mechanism.. vague', - strikingly bear out a mutually self-effacing contradiction; so much so, as to provoke one to turn skywards and exclaim loudly, in agony, - why should there be so much of deterioration in the quality of journalism in general, and of such write-ups in particular, as to be devoutly or seriously regarded to make for a useful or purposeful reading by the subscribers community at large, left with a hapless and helpless feeling of remorse every morning. Any counter –view?

Now, turning to the merits or purposefulness, remote or otherwise, of the very such policy (ies) lately mooted and being vigorously pursued , the latest News from across the borders is observed to provide a lead clue or sincere guidance to any government , not to talk of an analyst > U.S. regulators failed to spot deadly GM defects that others saw


  Election in housing society - by ars

Arbitration Ag.

Posted: 04 Oct 2013 11:07 PM PDT
In a judgment delivered on September 19, 2013, in the case of Mody v. Kerwala, a learned Single Judge of the Bombay High Court has considered

Key Note:

Instance such as any agreement/arrangement between promoter of a building project for construction and sale of 'units' is  one in which, as experience shows, dispute of several kinds is bound to arise; in fact, , invariably, does arise. As such, 'arbitration' as a mode of settling  disputes between parties must be made a rule /compulsory, for obvious reasons, in the interests of the parties themselves.

In view thereof, the court's cryptic ruling, should desirably not to be assumed to apply to all situations. Further, as one imagines, neither party can have , or be normally expected to have, any serious reservation against arbitration being resorted to for an amicable and expeditious resolution of disputes. To put it differently, as a matter of common sense, and from a practical point of view, parties sahould be allowed rather encouraged to choose arbitration at any time; instead of directly or indirexctly thrusting upon any such rigid view as the court has in its wisdom or lack of it, taken, unwittingly or otherwise.      

Ref. the central regulatory Bill for clues.


Concept known as - 'co-operatives' ! 

Note: For learning more about Apartment Owners’ Association please see

For knowing about the Documents required under Karnataka Apartment Ownership Act, please see



RTI ACT…for Cooperative Society, Applicability?
Procedure for registrar to bring defect to notice of society
And Many More * – All in a bunch Today from AT on MAHA News !!

As before, sharing the numerous info., but simply/simplistically  for sake of  Info., and joy in sharing !
Anyway, no purpose could  be served, in the foreseeable future, for the natives /residents of other States e.g  KAR.  For, it goes without saying that, KAR and several other States have yet to take even the long awaited initial ‘Baby Step’ – firstly, towards having housing societies (associations) brought within the purview of the decades-old State Co-operative Societies Act.
A noted legal luminary and visionary , a distinguished humanist, of our own times, is remembered to have said, though in another but not an altogether unrelated context :
<  We as a nation have historical reasons for not minding   or least bothered  over inordinate but avoidable delays; that is, in not believing in the fine quality of sense of time but evince a relaxed attitude  to time.
Ancient India had evolved the concepts of eternity and infinity ; so what if years  are wasted  in ... against the backdrop of eternity. Further we believe in incarnation; so what does it matter if you waste this life; as  you will have many more lives in which to make good. >
These words , though tinged with sarcasm but of a sublime quality or subtle in nature, are sure to provide the necessary comfort /solace ; and pacify among others, the very few of the surviving bureaucrats who by nature, left to themselves, hate to think or act at a pace even to leave  snails with self pride !
* A cc of the daily mail from AT being fwded. to an active member on this Project, again for sharing.


Common maintenance expenses - in case of apartment - by Prasad Kumbhojkar
We have apartment of 23 Flats of different sizes. Some of the members have purchased Terraces, Extra Parking as restricted common area and our condominium has been under Maharashtra Apartment Ownership Act.

Big Flat holders do not want to pay maintenance charges as per ratio defined in Deed of Declaration of Condominium and they want to appropriate those equally amongst all members irrespective of the ratio or size of flat etc., at the same time they do not want to share Terraces and extra parking's that they have purchased from Builder.

Apt. Adda>

Aug 2
<worthwhile reading

27th July


Q.49. Is the Society supposed to obtain permission from Bombay Municipal Corporation before starting major repairs? Does the society have to pay specified amount for Water Charges and the Debris Charges?
Ans. If the work are of the nature of tenantable repair then it is not necessary to obtain the permission from the Corporation but if it needs major repairs in that event it is necessary to obtain permission from Corporation and society has to pay the water charges, debris charges etc..
Q.50. Is the permission of the Bombay Municipal Corporation required for demolishing the part of a hall inside the flat?
Ans. Yes.  As per the Development Control Regulations Act, 1991 for demolishing the part of the wall inside the flat requires permission.
Q.51. Is the Permission of the Bombay Municipal Corporation required before carrying out structural changes?
Ans. Yes. It is necessary to make an Application to the Executive Engineer Building Proposals Dept. under Section 342 of the Mumbai Municipal Corporation Act, 1888.
Q.52. What should a Flat holder do if there is leakage from the upper flat?
Ans. If there is a leakage from the upper plot the member should complain to the society and get the leakage done with the consent of the society and expenses be shared with himself and the occupant of the upper flat. If the occupant of the upper flat or the Secretary of the Society are not agreeable in that event only alternative is to complain to the Ward Officer.  On inspection by Ward staff if it is noticed that complaint is genuine the notice will be issued to the Society and its office bearers to carry out the work and comply with the notice failing which Corporation may launch prosecution against them.

Delegate plan approval powers to architects: NREDC

Delegate powers to registered architects: NREDC
Times of India ‎-
, click here.

If insight-fully considered but from a different and better angle:
Going by common knowledge, the institution of 'architects' has an important and vital role to play in the building sector. Strictly speaking, an architect engaged for the purpose is expected , rather duty- bound, to take the utmost care and ensure, even in preparing the building plan for a client, that it is in conformity/compliance  with all the rules and regulations of the concerned local authorities, also vouchsafe and ‘certify’ to that effect. Do so also after satisfying himself about the completion of the project to its last detail. Thus the full responsibility and answer-ability expected of him run through right from the stage of preparation of building plan to the final stage of his certification of its due completion. Should these be  adequately monitored and are ensured to  be safe-proof / foolproof, then the final approval by the empowered  local authorities,  would  become a matter of sheer formality, of a routine nature, hence the formal process should take the least  time.    
But then,  the prevailing field practice and reality  are woefully different. For instance, while the law, for example the special law on apartments, mandates architect's certification of completion of  construction as per approved plan as a precondition for conveyance, by and large non-compliance is found to be the order of the day.
In this scenario,  it might be worthwhile for the government/ministry  to consider and decide upon  the desirability of such bodies as NREDC and CREDAI being entrusted/saddled with powers to discipline their constituent members, whose interests they keep advocating for and seek to protect . More effectively, the ultimate responsibility and answer ability to the mis-adventure . -demeanour, and - conduct could be shifted to vest with those in-house bodies, for securing a better monitoring and supervision.

18th July
Car Parking Facility- a right !

Car Parking in Society for Tenants

<> "...Many societies have told members that they will not allow parking ..."

Highly preposterous and strongly objectionable as an unlawful practice . The MCs of such societies should be told point blank that not allowing car parking to members or lessees is in violation of the basic right to enjoy the common facilities, alike, with no discrimination.  Failure to listen and act accordingly should be suitably exposed; if so called for, through legal course of action, the first authority to be approached should be the ROCS, empowered to settle such in-house disputes.

Maharashtra co operative socities act - by Laxmikant Iyengar
Can a Registered Housting Society charge a penalty on its members for not attending the Anual General Meeting ?

  • Whether tenents can registered a resident welfare association under societies act ? - by dhiru
    1. whether tenents of any area joining themselves can form a registered resident welfare Association ?

  • SG
    Service Tax
    17th June
    Service Tax on Builders – Tax Provisions in brief

    13th June

    Cabinet’s approval of real estate regulatory bill

    12th June
     Article in the Financial Express >

    Booz Allen & Hamilton >

    < Arbitration of Shareholder Disputes

    <> Impromptu:
    On the first blush, one is perforce tempted to raise the following basic points of doubt and posers of a fundamental but intricate nature:
    As per one’s understanding, the dispute is primarily centered on the issue whether it is ‘arbitrable’ , or should  it be necessarily adjudicated ONLY by court. And, as noted from the sum -up in  paragraph 30, the apex court has handed down its view favouring the latter mentioned proposition.
    A few of the thoughts, one may wish to share with legal fraternity, with a view to provoking an analytical study by them, in proper light, are briefly these:
    1. On the matrix of facts as gathered from the SC judgment, it seems that, the property to which the dispute / primary  issue raised related are 2 “Flats” situate in Mumbai. On the premise that , therefore, it is a property which is governed by the special State enactment  called,- The  Maharashtra Ownership Flats Act (rtw its Rules), the implications thereof  would be of every relevance.
    2. According to the commonly understood, so also lately accepted,  legal position, under the special enactment, while purchase  of a “Flat” is by  individual party, the entire property
    (-“ the property”, with all its attendant rights and interests)  in the land and building, of which the “Flat” is a unit, vests with the co-operative housing  society, as eventually  formed and registered by the body of co-purchasers. And, it is only to such a  co-operative society (as opposed   to/distinct from  the individual Flats purchasers),  -as unequivocally mandated by the special law, -that transfer of the title to “the property”, along with handover of its possession,   has to be effected.
    If due regard be had to the foregoing facets, and kept in sharp focus, to one’s mind, a serious doubt that arises upfront is this:
    Should not the co-operative housing society, - assuming that there is one in place in the instant case- be made/impleaded a necessary party?

    Perhaps, no pleas or arguments were made; and that explains why the court had no occasion to consider the foregoing peculiar clinching aspects. Be that as it may, the concluding portion of the SC Judgment reads, -“We however make it clear that we have not recorded any finding, nor expressed any opinion, on the merits of the claims and disputes in the suit.” As such, it is possible that, in the further impending proceedings,  all such additional  pleas and arguments, as briefly indicated, might come to be advanced, and if so, adjudicated on.
    Now, Over to the legal fraternity, for further study and profoundly useful elucidation / comments.

    Cross refer >

    Sharing further personal thoughts: 

    Among others,  the write-up has placed reliance on the SC case cited and quoted in re.  Booz Allen & Hamilton  for canvassing and finding support for the propositions advanced and  discussed, Seen to be resting on the issue of wheher it is arbitration or court litigation, whch one of the two courses of action open in a given case if it is a shareholder dispute. Prima facie, the discussion has concentrated on the rather too technical or mindboggling debate; not a straightforward and simple logicality.

    Be that as it should, as pinpointed in the previous comment, the SC case was not one directly on the aspect of 'mismanagement ', so on, as in a shareholder dispute; but  is one settling a dispute between parties to transactions related to property rights, that too of a special kind- that is, in Flats in a building.

    As such, one fails to see as to why the SC case can at all be regarded, even remotely, to be of guidance much less of direct relevance or inspiration in regard to a case involving shareholder disputes. The authors of the write-up will do well to do some rethinking over the matter. 



    The approval of the Real Estate Bill by the Cabinet is a small victory for India's long-suffering real estate buyers.
    * Related >

    Typical and daring instance of,- "Crocodile Shedding Tears" !
    Should you appoint an institutional trustee?
    Designating a bank or company as a trustee can be beneficial as it will be unbiased, more competent, and less likely to commit fraud.
    How net banking helps you save on time, effort and money
    Net banking also helps save money in other ways. For instance, if you have opted for the facility to pay bills online, you can skip the late payment fee.

    AT News>

    Cabinet haing given it's 'nod', can the 'nod' by the legislators for the enactment bev far behind ?

    6th June

    Regulating the unregulatable?

    The absence of a proper policy on urban housing stares us in the face.Controlling malpractices in real estate is no easy task. But with a Bill in place, at least a beginning has been made. »

    <> Q "The Union Cabinet has finally approved the draft..." ;
    "....itself means little, since the Bill will have to be brought to Parliament for passing. And the way ..." UQ

    It is noteworthy that, in certain other knowledgeable circles, the Cabinet is reported to have given its 'nod'.

    As, in any case, as may be well imagined, even if and when enacted, effective follow-up measures, procedural aspects, so on, so also the final implementation and enforcement part of it all is going to rest with , rather necessarily have to be left to, the state governments. If so, one's honest guess and expectation is that , going by wisdom gathered from the past /in hindsight, the parliament would , in turn, give its 'nod' likewise, without much of a reservation or objection even from 'the Opposition' !

    May be, 'politics' has wisdom of its own, beyond the human faculty of foresight or outside of natural expectations.

    Time to up capital controls

    A view of Bombay Stock Exchange… Impose Tobin Tax on FII flows. — Paul NoronhaThe recent permission accorded to the Indian insurance companies, both in the life and general businesses, to set up shops abroad, seems to be an initiative whose time has not come. »

    Q ...There ought to be a Tobin tax that discourages the nonchalant use of the revolving door mechanism, taking a cue from Brazil and Thailand, among others.....UQ

    One can only pity, rather sincerely empathise, the writer, learned but vciferous  in his own way, for his not just in-box but closed-and -sealed tight- box views ! Seems to live in a world of his own, if not in that proverbial paradise believed to be largely inhibited /inhabited by a different class !!

    For knowing what has has been happening to the novel idea/concept of "Tobin Tax" in countries of its origin, better be vigilant and  keep eyes open to the scenario across !!!

    Better it is realized now, instead of late or never, that ours is a nation still believed (open to correction if wrong) to be a live and kicking democracy. And one of those few around the globe which is still left with some belief in values of democracy; further in avoiding as far as feasible any unfair encroachment of others' territories , even remotely or indirectly  through any mesure objectinably attempting to tax cross-border transactions with no rhyme or reason, so on and so forth. If so, the cry , however noisy or feeble that be, for ushering in any novel levy such as Tobin Tax, to say the least, going by diktat of common sense, could only be decried as a cry in wilderness !!!!

    Anyone caring to know what has been the last reported development in the arena of European Community, to which the idea of Tobin Tax owes its birth, one may read the material in public domain; for instance,  Reuters:

    Britain is mounting a legal challenge to plans by 11 European nations to adopt the new financial transactions tax. Concern is that the plan will affect banks and institutions in countries outside the scheme. As it would be levied on all euro transactions anywhere in the world. Hopes for it suffered a setback when George Osborne said in Washington that the UK was taking the case to the European court of justice (ECJ).

    "I am not against financial transaction taxes in principle," the chancellor said, noting that the UK put stamp duty on shares. "But I am concerned about the extra-territorial aspects of the European commission's proposals."

    In one's independent conviction, the idea suggested but only to be promptly eschewed ; for, that is as bad or good as the other idea of Transfer Pricing already put into effect. Bad because it suffers from the malady of being in gross violation  of the principle of 'territorial jurisdiction' , with far reaching dire consequences.

    Further matured thoughts and frank and free exchange of opinion among the international tax experts, having direct experience and exposure to such matters might help in crystallising a largely acceptable objective view. 


    Maharashtra Co-operative Societies Act, 1960 – Amendments 2013
    What is much talked about 97th Amendment and why the need?
    By Accommodation Times News Services
    By J B Patel, Housing Activist
    Since Independence, cooperative movement has grown significantly with most extensive
    network of cooperative institutions all over the country. These cooperative institutions are
    functioning in the sectors of agricultural credit, agricultural inputs, marketing of agricultural
    produce, storage and processing of agro produce, urban credit, housing, production of
    fertilizers, dairy, fisheries, handlooms and handicrafts, etc. However, it has been experienced
    that in spite of considerable numerical expansion of cooperatives in different sectors of the
    national economy, their performance in qualitative terms has not been up to the desired level, many of these institutions are not being managed on principles of democratic member control and professional management. In many cases, these cooperatives are heavily dependent on financial support from the Government, which has led to intervention in their day to day functioning. There are also instances of avoidable political interference in working of these institutions.
    The Constitution (One Hundred and Eleventh Amendment) Bill, 2009 has been introduced
    in the Lok Sabha on 30.11.2009. The Hon. Speaker, Lok Sabha referred the Bill to the
    Parliamentary Standing Committee on Agriculture. The Standing Committee after holding
    discussions with Secretary and other officers of the Department of Agriculture and
    Cooperation, State Governments, Experts and other stakeholders in the field of cooperatives,
    presented its Report to Lok Sabha on 30th August, 2010.
    The suggestions made by the Standing Committee have been examined in the Department
    in consultation with the Ministry of Law and Justice. It has been decided with the approval of
    the Cabinet in its meeting held on 01.12.2010 to accept one of the main recommendations
    of the Standing Committee that is right to form cooperative societies as a Fundamental Right by amending Article 19 (1) (c) of the Constitution. The Bill already takes care of another important recommendation of the Committee to set up a specialized agency on the lines of Election Commission for conducting elections of the Cooperative Societies.
    The object of the Constitution (One Hundred & Eleventh Amendment) Bill 2009 is to
    ensure that the Cooperative Societies in the country function in a democratic, profession, autonomous and economically sound manner.
    The proposed amendment in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-state Cooperative Societies and the State Legislatures in case of other Cooperative Societies to make appropriate law, laying down the following matters, namely:-
    a) Right to form Cooperative Societies as a Fundamental Right by insertion of the
    words ‘Cooperative Societies’ in sub clause (c) of clause (1) of Article 19.
    b) Insertion of Article 43B in part IV of the Constitution as Directive Principles of State
    Policy for voluntary formation, autonomous functioning, democratic control and professional management of Cooperative Societies.
    c) Provisions for incorporation, regulation and winding up of cooperative based on the
    principles of democratic member-control, member-economic participation and autonomous
    d) Specifying the maximum number of Directors of a Cooperative Society not exceeding
    twenty-one members;
    e) Providing for a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers;
    f) Providing for a maximum time limit of six months during which a Board of Directors of a
    Cooperative Society could be a superseded or kept under suspension;
    g) Providing for independent professional audit;
    h) Providing for right of access to information to Members of Cooperative Societies;
    I) Empowering the Government to obtain periodic reports of activities and accounts of
    Cooperative Societies;
    j) Providing for reservation of one seat for the Scheduled Castes or the Scheduled Tribes and
    two seats for women on the Board of every Cooperative Society, which have individuals as
    members from such categories; and
    k) providing for offences relating to Cooperative Societies and penalties in respect of such offences.

    It is expected that these provisions will not only ensure the autonomous and democratic
    functioning of cooperatives, but enhance the public faith in these institutions and also ensure the accountability of management to the Members and other stakeholders and also provide for deterrence for violation of the provisions of the law.

    Some Links >>>>
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    2.               [PDF]
    4.               [PDF]
    The Registrar of Co-operative Societies, No.1, Ali Aksar Road, Bangalore ...

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