Friday, December 19, 2014

INdian Constitution 97th Amendment ...contd.

Dec 21

UPDATE contd.


 MAHARASHTRA ....follow-on

< Inside 

  • Article 19(1)(c) in The Constitution Of India 1949

    Article 19(1)(c) in The Constitution Of India 1949. (c) to form associations or unions;

  • article 19(1)(c) - Indian Kanoon

    19(1)(c) -form associations or unions. Which is protected under Article 19(1)(c) of the Constitution includes the right to continue ... clearly impinged upon the fundamental ...

    Zoroastrian Co-Operative ... vs District Registrar, ... on 16 January, 1997

    "19. Multi-storcyed ownership flats on cooperative basis in cities and big towns have come to stay because of dire necessity and are in the process of rapid expansion for mani-fold reasons. Some of these are : ever growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban areas, rise in price of building material, restrictions under various rent legislations, dis-incentive generated by tax laws and other laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of the conditions of membership of a society which are none too irksome. In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest nor in interest of commerce to impose a ban on saleability of these flats by tortuous process of reasoning. The prohibition, if intended by the legislature, must be in express terms. We failed to find one."
    22. It would be clear from what is stated above that a restriction based on religion, race or caste contained in a bye-law, on the member's right in a co-operative housing society to transfer his membership coupled with his right to alienate his interest in the immovable property would be bad in law.

  •  For points requiring sharp focus HERE >

Consultation on the implications of 97th constitutional ..

Text Of Art (Dec 19)

For ready read > 

        97th Amendment of the Constitution-

                   A Look Through

To share own reactions / view points for the common good; incidentally, by way of focussing on and stressing independent line of approach:
The law experts in the group, as is observed, have, in a manner of saying, gone to town, to try, support and stress their respective but mutually contradicting viewpoints HERE

Constitutional (97th amendment): declared ultra vires ...


2. Just as the several previous ones, to be precise 96 of them, besides the later ones, the 97th amendment has come to be made and is in place. May be, lawyers at large, left to their own line of independent thinking, will have, as always, scope for finding loopholes and fault the amendment on technical grounds. But in one’s longstanding conviction, it could be validly and righteously queried, - why at all the subject amendment needs to be made so serious an issue as to be faulted, also litigated, on such technical grounds, more so if it were just for the heck/fancy of it ? And, especially, should any such challenge have the potentials to jeopardise and frightfully harm /impair the very rights and interests of “the PEOPLE” (or the section of the people directly concerned/having vested interests).

3. As for a fact, the amendment has, by and large, been acclaimed to be for the common good of the people in general; and has been so reported and widely canvassed, besides in the media, in unbiased legal circles as well.
For ready reference, read the following selected extracts:

“The 97th amendment to the Constitution passed in January this year grants citizens the fundamental right to form cooperative societies. The amendment has added the term cooperative societies along with the right to form unions. It has fulfilled a long-standing demand,” vice-president of the cooperatives Gurunath Jantikar has said.
The amendment needs to be ratified by the State governments before February 14, 2013. “However, even if the States don’t do it before the deadline, it will be deemed as ratified,” he said.
The amendment has also added a directive principle of State policy, asking the State “to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies’. This would go a long way in developing the cooperative sector,


(Source: 97th amendment to Constitution hailed- Businessline, October 14, 2012 ISSUE)

4. To illustrate why the amendment has a laudable objective, hence ought not to be desirably subjected to a controversy, consider the instance of so commonly called “housing societies”. No doubt, in most of the States forming part of the Union of India, there are special enactments. Those are intended/ objectively aim at governing the housing societies to be constituted by/ comprising buyers of units as its members (Flats/Apartments). Those are of two types, - e.g. in Karnataka, formed under Karnataka Ownership Flats Act and Karnataka Apartment Ownership Act (KOFA and KAOA-  corresponding to MOFA and MAOA of Maharashtra) . Nonetheless, as is common knowledge, because of the stark laxity/astounding failure in having the enactment implemented/enforced, the rights and interests of the gullible buyers’ community have been virtually set at naught, and tragically jeopardised. In fact, for several reasons, mainly because of promoters / sellers failure to comply, impudently or otherwise, with the mandated requirements, the buyers are left in a state of ‘trishanku’, with no housing society formed and registered , with all its attendant repercussions / mind numbing problems.

For knowing more, recommended to mindfully lookup and go through the host of related material available in public domain.

Now, the point of grave poser requiring everyone concerned to address self, is, as to why, at all, the ‘vires’ (legal validity) of the amendment could be sanely or righteously questioned, - or even been subjected to any controversy, remotely or otherwise.

5. The other connected matter covered in the topic of discussion by law experts group is on the rationale behind the Model Bye-laws of 2013; and the shortcomings/ problems in store. That, of course, needs a separate study, on the lines indicated elsewhere. Attention may be invited to the following comment @   

December 17, 2014

OFFHAND (To share own independent thoughts, for the ‘common good’)
Though not so stated, there can be no doubt or denying that the observations / view points of the writer brought to bear/ aired are based on, as a professional, his own study and personal, independent understanding of, among others, the "bye-laws", the last one referred being of 2001 .
Be that as it could not have been expected to be otherwise, it may be noted that, the latest Model Bye-Laws brought in, in 2013,- though, as understood, stalled for the time being/ and yet to be given effect, -would ostensibly have every relevance. Hence, it might be worthwhile making an insightful study. That should help in an incisive understanding and getting a true grip of what is in store, if and when the 2013 Model of Bye-laws is announced and made effective. Even so, in one's mind, there is a very vital and predominant doubt of all, of a grievous nature, having quite possibly far reaching repercussions and consequences, impinging the common interests of one and all concerned. That, in short, is , - as to what extent/ which of the new provisions, IF AT ALL, sought to be brought in, could/ are intended to be applicable / adopted and followed retroactively; so as to impact, adversely or otherwise,  the functioning/conduct of the affairs of the extant housing societies already registered and in place. To put it differently, each of those societies will be obliged to have a detailed exercise carried out, may be not without the help of a law expert, for identifying and deciding how best all or any of those bye-laws should be fitted into the already adopted bye-laws, with the least impediment or messing up. As this is a very intricate aspect, seemingly riddled with potentials for controversies galore, one strongly feels that the State government/its concerned authorities   ought to , if not already done, even now/beforehand,  mindfully consider and as far as feasible, make the ‘intention’ clear  on the indicated and other related worrisome aspects.

KEY NOTE: On a tentative perusal of the new Bye-laws (2013), as is noted, there are quite many of its contents,  which warrant a deep study/application of mind by one and all concerned . For that matter, one keeps wondering as to why at all the new bye-laws, -not an amendment of the erstwhile bye-laws as seem to have been wrongly construed-, should apply or could be imposed, in particular  on the housing societies already registered and functioning in accordance with the erstwhile rules/regulations. Apart from the governmental experts, the advising experts at large, in the interests of selves or own clientele, need to study this aspect, and come out with a comprehensive unbiased/impartial opinion /viewpoints; also share with the rest openly, the earliest, the better. 
(Left open/ Welcome to ‘EDIT’ the foregoing, with a public -centric outlook as earnestly expected)





(Also published in (2014) Kar. 1)

In that article, in PROLOGUE, has been referred to / discussed, in brief, implications of the 44th Amendment (s) of 1978, need to be kept as a backdrop. As noted,  through that amendment, the "right to property", earlier recognized as a 'fundamental right", has come to be regarded , - a 'constitutional' of 'statutory right'. (-recommended to read on) 

Rajendra N Shah vs Unknown on 22 April, 2013

(J). Thus, the power to amend Constitution is vested in the Parliament and while exercising the powers under Article 368, the Parliament would not be subject to the limitations which curb its Legislative powers to make laws under Articles 245-246 because the amending power conferred by Article 368 is constituent power as held by the Apex Court in the case of SASANK vs. UNION OF INDIA reported in AIR 1981 SC 522.
(K). By the amendment, by insertion of Chapter IXB, Article 19(1) (c) has been amended and now the co-operative societies have also been included in Part-III of the Constitution in Article 19(1) (c) and therefore, there is an addition in the fundamental rights so far as addition of fundamental rights guaranteed under 19(1) (c) has been extended to the Co-Operative Societies.
(L). Therefore, Article 368 (2) proviso has to be read in its strict sense and it is apparent that the amendment under challenge is not changing any of the matters enumerated in clauses (a) to (e) of the provision.
(M). The Parliament has exercised its constituent powers, which is distinct from its legislative power and by the 97th amendment, the Parliament has not legislated on the subject, but in its constituent power has amended the Constitution by addition of guarantee of the fundamental rights in favour of the Co-Operative Societies. By this amendment, the Parliament has not attempted to change the basic features of the Constitution. The Principles of Federalism are also not altered. Therefore, the challenge to the 97th amendment in Constitution is misconceived and has no merits, and therefore, the writ-petition deserves to be dismissed.
4. The State Government, although has not filed any affidavit, Mr. Jani, the learned Government Pleader appearing on behalf of the State, has supported the contentions of Mr. Champaneri, and has prayed for rejection of the writ-application.




<If builder/ promoter is not co-operating in registering the Co-operative Housing Society, then in that case, the application for registration of society be submitted in Form 6 (Rule 12) before the District Deputy Registrar, who has been given power under section 10(1) of the Maharashtra Ownership Flats Act 1963. While submitting the said proposal, a Notarized Indemnity Bond of the members who applied for the registration of society on the stamp paper of Rs. 200 is required.>

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