An Inquiry into violations of Rule of Law by AWHO

Chandra Nath April 10, 2014

nath@computer.org He is an Independent researcher engaged in research in information security, privacy, law & justice.

Contents
I Introduction 4 6 6 6 7 8 9 10 10 12 II Constitution of india A Fundamental Right Article 14 . . . . . . . . . . . . . . . . . . B Right to Property . . . . . . . . . . . . . . . . . . . . . . . . . C Right to Democratic Self Governance of Co-operative Housing Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III Indian Penal Code IV Transfer of Property Act V Right to Information Act VI Registration of Societies Act VII The Indian Trusts Act, 1882

VIII Fiduciary Duties under Common Law 14 A Fiduciary Duties of the lawyer/Ocer of the Court . . . . . . 15 IX VIOLATIONS of THE KARNATAKA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT,1972 15 A KOF 1972 Section 3. General liabilities of promoter.- . . . . . 15 B KOF 1972 Section 4. Agreement with Buyers.- . . . . . . . . . 16 C KOF 1972 Section 5. separate account.- . . . . . . . . . . . . 17 D KOF 1972 Section 6. Responsibility for payment of outgoings.- 17 E KOF 1972 Section 7. Alterations, Changes, Defects and Defect Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 F KOF 1972 Section 8. Refund of amount Paid . . . . . . . . . . 18 G KOF 1972 Section 9.No Mortgage . . . . . . . . . . . . . . . 19 H KOF 1972 Section 10. Co-operative Society or Company . . . 19 I KOF 1972 Section 11. Promoter to convey title, etc., and execute documents . . . . . . . . . . . . . . . . . . . . . . . . 20 J KOF 1972 Section 14. Oences by promoter . . . . . . . . . . 20 K KOF 1972 Section 15. Oences by Companies (Societies) . . . 20 X The Consumer Protection Act, 1986 XI Real Estate (Regulation & Development) Bill 2 21 23

XII Local Authorities BYE-LAWS: BIAAPA

25

XIII KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 26 XIV AWHO and Welfare Activities XV No Prot No Loss XVI AWHO is a Registered Society XVII AWHO builds houses on a self-nancing Basis XVIII Conclusions 26 27 28 28 29

AN INQUIRY INTO VIOLATIONS OF RULE OF LAW BY AWHO

It is an evil that any man should be above the law, it is still a greater evil that the public mind should be taught to regard as a high and venerable distinction the privilege of being above the law.Lord Macaulay, covering letter While submitting the draft of the IPC What we desire to accomplish is, the protection of rights: What we have to inquire is: The means by which protection may be afforded....That men are susceptible of happiness, only in proportion as rights are protected, is a proposition, which, taken generally, it is unnecessary to prove. The importance of the inquiry, therefore, is evident. 1

INTRODUCTION

WHO was established as a Society under the Rule of Law expressly for the welfare of its members and NOT established as a foray by Army Headquarters into Real Estate business in a thriving real estate market at this particular stage in the countrys economy. We, the people, still believe that our obligations as proud Indians and more importantly, as proud veterans, are not just to ourselves, but to all posterity for creating a Society of equals and not divide ourselves into Rulers (powerful, autocratic and ever ready to exploit the powerless) and powerless Subjects.

Thus the transformation of the Company from a trading body, which possessed some sovereign prerogatives for the purposes of trade, into a sovereign body, the trade of which was auxiliary to its sovereignty, was eected by degrees and under disguise. It is not strange, therefore, that the mercantile and political transactions of this great corporation should be entangled together in inextricable complication.The commercial investments have been purchased out of the revenues of the empire. The expenses of war
Jurisprudence, Supplement to Encyclopaedia libertyfund.org/files/1760/0886_Bk.pdf
1

Brittanica

http://files.

and government have been defrayed out of the prots of the trade
2

In similar vein, a Welfare Housing Society started with the noble intention of providing housing on a non-prot basis transformed into a sovereign prerogative of the military to subjugate the members into non-members and to level of slaves where they are subjects of the masters who established themselves as rulers with no accountability to law for the society nor the accountability to the people who were denied all Right to Information. Commercial investments have been purchased out of contributions of the home buyers and the prots out of the business have been exempted out of Income Tax on the signed adavit that they are income from regimental funds, a defnite criminal breach of trust of the veteran home buyers and criminal breach of trust of the tax payers and the general public. The Society escaped the accountability to the members of the Society and strict accountability to the public of public funds handled by public servants! The masters established tyranny where they ruled with secret illegitimate and unpublished rules which are in conict with the constitution and the statutes and imposed on the subjects with out their consent. We shall never consent to administer the pousta to a whole community, to stupefy and paralyse a great people whom God has committed to our charge, for the wretched purpose of rendering them more amenable to our control. What is power worth if it is founded on vice, on ignorance, and on misery; if we can hold it only by violating the most sacred duties which as governors we owe to the governed, and which, as a people blessed with far more than an ordinary measure of political liberty and of intellectual light, we owe to a race debased by three thousand years of despotism and priestcraft? We are free, we are civilised, to little purpose, if we grudge to any portion of the human race an equal measure of freedom and civilisation. 3 Can we the people, the Constitution of India, Government of India and the Courts on Record consent to reduction of some of its citizen to slaves in this 21st century to be ruled by a set of public servants and yet outside the purview of governmental checks and balances and supervision of we the people with full freeedom of a greedy real estate business enterprize where
Macaulay, Thomas Babington Macaulay, Baron (1800-1859), Miscellaneous Writings and Speeches Volume 4 http://www.gutenberg.org/etext/2170 3 ibid.
2

secret prots are made against the Rule of Law? As Macaulay put it, What is power worth if it is founded on vice, on ignorance, and on misery; if we can hold it only by violating the most sacred duties which as governors we owe to the governed, and which, as a people blessed with far more than an ordinary measure of political liberty and of intellectual light..We are free, we are civilised, to little purpose, if we grudge to any portion of the human race an equal measure of freedom and civilisation. I wish that I could promise to be very brief; but the crimes and violations are so extensive that I will only promise to condense what I have to say as much as I can, just what the law expects and whether it is violated. Even then, it runs to 24 pages and the violations could not be just an accident. Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.4

II
A

CONSTITUTION OF INDIA

FUNDAMENTAL RIGHT ARTICLE 14

Fundamental Right Article 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.VIOLATED Every provision of applicable portions of the Constitution and all appllicable statutes have been violated except one provision of the Registration of Society Act (i.e acual registration of the Society) thus denying the right to Equal Protection of Laws to the contributing members of the Society. Even the purpose of registration of Society is defeated if the Society breaks all the protections the registration of the society provides for the members of the Society! VIOLATED The Society does not fulll the requirements of law and hence it is functioning as a Proprietory Real Estate Businss by public servants. Public servants engaging in Real Estate Business is violation of IPC (See below)

VIOLATED
B RIGHT TO PROPERTY

300A. No person shall be deprived of his property save by authority of law. Rules passed by AWHO violate this. VIOLATED
4

Aristotle, Politics (c340 BC)

RIGHT TO DEMOCRATIC SELF GOVERNANCE OF CO-OPERATIVE HOUSING SOCIETY

AWHO is NOT a charitable society that can be ruled by the donors at the FULL exclusion of the beneciaries of charity. AWHO is fully funded by members & they are also the Members of the Society and as such they are Trustors and also Beneciaries and Members have constitituional rights which have been totally VIOLATED The fact of the matter is not in dispute. Respondent No. 1 is a retired Army Ocer. He and his wife jointly became member of a Cooperative Society known as Army Welfare Housing Organisation (AWHO for short). The said Cooperative Society was registered with the Registrar of Societies, Delhi under the Socities Registration Act being Act, XXI of 1860.5 AWHO is thus a cooperative society registered with the Registrar of Societies, Delhi under the Socities Registration Act being Act, XXI of 1860. Constitution (Ninety-seventh Amendment) Act. 2011 guarentees 1. Fundamental Right to have a Co-operative Housing Society that is democratically self governed. VIOLATED 2. State obligation to promote voluntary formation, autonomous functioning, democratic control and professional management of the cooperative societies VIOLATED 3. Incorporation of cooperative societies on the principles of voluntary formation, democratic member control, member economic participation and autonomous functions; VIOLATED 4. Conduct of election of a cooperative society by an independent authority;VIOLATED 5. Fix term of ve years of oce bearers of the cooperative society;

OLATED

VI-

6. Convening of the General Body meeting of every cooperative society within a period of six months of the close of the nancial year;VIOLATED 7. Access to every member of the society to the books, information and the accounts of the cooperative society; VIOLATED
Chandigarh Housing Board vs Devinder Singh And Anr on 14 March, 2007 Supreme Court of India Appeal (civil) 7171 of 2000 Bench: S Sinha, Mark, E Katju
5

8. Free, fair, impartial and timely elections of cooperative societies by the State Election Commission or by any other appropriate and independent body as may be provided by State law;VIOLATED 9. Audit of the cooperative societies to be carried by the auditors from the government approved panel of auditors or rms.VIOLATED 10. Most importantly Co-opted members (ex-ocio Members) not to be eligible to be elected as oce-bearers of the Board. Irony of AWHO is that the Co-opted members (ex-ocio Members) are the ONLY ones eligible to be oce-bearers and that too on the basis selfappointments and thus being usurpers of Power thus this constituional provision(Constitution (Ninety-seventh Amendment) Act. 2011) is totally VI-

OLATED III INDIAN PENAL CODE

Since AWHO is not functioning as a Society as per law, it automatically will be deemed to being run as a Sole Proprietorship. This makes AWHO ocials who are public servants liable to face consequence of crime under IPC. 1. IPC 119. Public servant concealing design to commit oence which it is his duty to prevent. Whoever, being a public servant intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an oence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such oence, or makes any representation which he knows to be false respecting such design. if oence be committed. if oence be committed. shall, if the oence be committed, be punished with imprisonment of any description provided for the oence, for a term which may extend to one- half of the longest term of such imprisonment, or with such ne as is provided for that offence, or with both;VIOLATED with full kowledge that

crimes are being committed.

2. IPC 166. Public servant disobeying law, with intent to cause injury to any person. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall 8

be punished with simple imprisonment for a term which may extend to one year, or with ne, or with both.VIOLATED with full

kowledge that crimes are being committed.

3. IPC 168. Public servant unlawfully engaging in trade. Whoever, being a public servant, and being legally bound as such public servant not to engages in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with ne, or with both.VIOLATED with full kowledge that crimes

are being committed.

4. IPC 169. Public servant unlawfully buying or bidding for property. Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with ne, or with both; and the property, if purchased, shall be conscated.VIOLATED with full kowledge that crimes

are being committed.

5. IPC 409. Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to ne. VIOLATED with

full kowledge that crimes are being committed. TRANSFER OF PROPERTY ACT

IV

Non-democratically instituted Rules of the Society which are illegitimate and illegal has rules that deprive protection of laws of right to property. Members have statutory rights which are totally VIOLATED

RIGHT TO INFORMATION ACT

A constitutional court of India has declared AWHO is an instrumentality of State and yet AWHO has consistently refused t provide information asked for on some pretext. Even after CIC and Delhi HC has declared that AWHO is amenable to RTI, AWHO is refusing to provide information requested. All the crimes committed by AWHO will come to light if it provides information asked for is very strong motivation for AWHO to deny information. But as long as AWHO has not taken a stay order of the HC order, saying that case is subjudice and deny information is illegal. The provision relating to Penalty under RTI Act is dealt under section 20 (1) of RTI Act. Thus according to section 20 (1) the Penalties will lie on the following grounds: 1. refusal to receive an application 2. 3.

VIOLATED delay in supply of information VIOLATED Maladely denied the request for information VIOLATED

4. knowingly giving incorrect, incomplete or misleading information; VI-

OLATED

5. destroyed information which is the subject of the request or obstruct in any manner in furnishing the information. VIOLATED Hence provisions of RTI Act violated deliberately, willingly and knowingly with an intent to deceive, a design to induce belief in the falsity or to mislead, with the an intent to defraud that is, the intent to deprive the members of the Sociey the right to information and hence RTI Act conclisively VIO-

LATED VI

REGISTRATION OF SOCIETIES ACT

1. Societies formed by memorandum of association and registration. Any seven or more persons associated for any literary, scientic, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and ling the same with the Registrar of Joint- stock Companies 2[ , form themselves into a society under this Act. The purpose of AWHO is NOT what is cited but is Housing co-operative Society VIOLATED 20. To what societies Act applies. The following societies may be registered under this Act:- Charitable societies, the military orphan funds or 10

societies established at the several presidencies of India, societies established for the promotion of science, literature, or the ne arts, for instruction, the diusion of useful knowledge, 2 [ the diusion of political education] the foundation or maintenance of libraries or reading- rooms for general use among the members or open to the public, or public museums and galleries of paintings and other work of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs. AWHO is not a charitable Society nor does it fall under any categories mentioned.VIOLATED All provisions of the Act that protect the rights of members of the Society have been totally VIOLATED The only compliance of registration is also wrong because Housing co-operative is not covered under this Act. It is covered under the Co-operative Societies Act.The members are both the trustors and the beneciaries and the trustee who owe duciary responsibilities and undivided loyalties to the members have totally disenrachised the members and made them totally powerless.VIOLATED in letter and spirit of the Co-operative Society. First, the BoM decalred that they will not have an Annual General Body meeting, then they decided that members will not be eligible for election to BoM, that the Members will not be eligible to vote for oce bearers, then again,to avoid the need of approval of the rules by Members, Members were declared to be not members but just subjects to the rule by the BoM. BoM decided that members will have no access to information on nance and accounts or for that matter, no information at all. Members bring in money, forgo all their rights, even right to assess the risks involved in investing their hard earned money with AWHO because every thing is kept secret from the members. All these decisions were taken without the knowledge or consent of the members. Every right of the members have been stripped o with out the consent of the members or even their knowledge!TOTAL VIOLA-

TION OF Constitution of India 97th amendment in letter & spirit.

Total lack of transparency gave BoM power to rule by secret unpublished rules and made AWHO fertile ground for corruption and misgovernance thus violating the age old wisdom of the jurisrudence as expressed by the famous jurist Louis Brandeis: Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most ecient policeman. Louis Brandeis, Other Peoples Moneyand How Bankers Use It. There is not a crime, there is not a dodge, there is not a trick, 11

there is not a swindle, there is not a vice which does not live by secrecy. Joseph Pulitzer

VII

THE INDIAN TRUSTS ACT, 1882

Money collected from the Member/allottees is required to be kept in trust (KOF 1972 Section 5. separate account) and account for the money to the satisfaction of the benciary. VIOLATED. 3. Interpretation- clause trust:- A trust is an obligation annexed to the ownership of property, and arising out of a condence reposed in and accepted by the owner, or declared and accepted by him, for the benet of another, or of another and the owner: author of the trust: the person who reposes or declares the condence is called the author of the trust: the person who accepts the condence is called the trustee: the person for whose benet the condence is accepted is called the beneciary: the subject- matter of the trust is called trust- property or trust- money: the benecial interest or interest of the beneciary is his right against the trustee as owner of the trust- property; 11. Trustee to execute trust.- The trustee is bound to full the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation, except as modied by the consent of all the beneciaries being competent to contract.VIOLATED the directions of trust (no prot) with out consent of the beneciaries(allottees) 14. Trustee not to set up title adverse to beneciary.- The trustee must not for himself or another set up or aid any title to the trust- property adverse to the interest of the beneciary. VIOLATED in that common area title not conveyed to Members during registration. 15. Care required from trustee.- A trustee is bound to deal with the trust- property as carefully as a man of ordinary prudence would deal with such property if it were his own. VIOLATED in that share of trust property allocated as excess to General Girish who was allocated largest area outside of due process (the lottery) and also at throw away price to some other benciaries at less than 20% of the prevailing market rates thus causing injury to the interest of the rest of the benciaries. 17. Trustee to be impartial.- Where there are more beneciaries than one, the trustee is bound to be impartial, and must not execute the trust for the advantage of one at the expense of another. VIOLATED in that Gen Girish was favored excess land at 20% the prevailing market rate allocated largest area outside of due process (the lottery)thus causing injury to the interest of the rest of the benciaries. 12

19. Accounts and information.- A trustee is bound (a) to keep clear and accurate accounts of the trust- property, and (b), at all reasonable times, at the request of the beneciary, to furnish him with full and accurate information as to the amount and state of the trust- property. VIOLATED consistenty in that failed to account for excess charges amounting to 400% whereas the escalation due ination for the period accounted for only 78% 23. Liability for breach of trust.- Where the trustee commits a breach of trust, he is liable to make good the loss which the trust- property or the beneciary has thereby sustained. VIOLATED 51. Trustee may not use trust- property for his own prot.- A trustee may not use or deal with the trust- property for his own prot or for any other purpose unconnected with the trust. VIOLATED in that charges made to beneciaries for corner plot and park facing did not involve actual cost to trustee but beneciaries charged but not given the benet of such over charges, or at least failed to provide transparent account of money recieved due to such charges. 56. Right to specic execution.- The beneciary is entitled to have the intention of the author of the trust specically executed to the extent of the beneciary s interest; Right to transfer of possession. VIOLATED in that no prot, undivided loyalty, duty of care and duty to refrain from any activity that may engender any conict of interest. Trustee practices violation of all the above including total conict of interest with the beneciaries who are buyes of housing and trustee solely representing the builder interest. 57. Right to inspect and take copies of instrument of trust, accounts, etc.The beneciary has a right, as against the trustee and all persons claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the documents of title relating solely to the trust- property, the accounts of the trust- property and the vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the trustee for his guidance in the discharge of his duty. VIOLATED in that right to information is denied totally. 61. Right to compel to any act of duty.- The beneciary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.VIOLATED totally inspite of repeated requests. 63. Following trust property into the hands of third persons; into that into which it has been converted.- Where trust- property comes into the hands of a third person inconsistently with the trust, the beneciary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.VIOLATED 66. Right in case of blended property.- Where the trustee wrongfully 13

mingles the trust- property with his own, the beneciary is entitled to a charge on the whole fund for the amount due to him. VIOLATED AWHO funds comingled with beneciary funds. 68. Liability of beneciary joining in breach of trust.- Where one of several beneciaries (a) joins in committing breach of trust, or (b) knowingly obtains any advantage therefrom, without the consent of the other beneciaries, or (c) becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interests of the other beneciaries, (d) has deceived the trustee and thereby induced him to commit a breach of trust, the other beneciaries are entitled to have all his benecial interest impounded as against him and all who claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated. VIOLATED Gen Girish, a favoured beneciary decieved the trust and trust property in excess of his entitlements.

VIII

FIDUCIARY DUTIES UNDER COMMON LAW

A duciary relationship exists where there has been a special condence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard for the interests of the one reposing the condence. Fiduciary duties include: 1. a duty of undivided loyalty.(The duty of loyalty requires the duciary to act solely for the benet of the person to whom the duty is owed with respect to all matters within the scope of the duciary relationship.)

VIOLATED
2. a duty to disclose relevant facts and to render accounts. (The burden of proving that he or she disclosed all material facts and that the transaction was fair lies with duciary. He bears the burden of proof on these issues, Fiduciary is at risk where the evidence on the questions is inadequate to reach a conclusion.)VIOLATED 3. a duty of due care

VIOLATED

4. a duty to maintain client condences.

14

FIDUCIARY DUTIES OF THE LAWYER/OFFICER OF THE COURT

A lawyer who represents a society may be held to owe duciary duties to members of the society. An attorney retained by the trustee to assist him or her in the administration of a trust is the attorney for the entire trust, including the beneciaries. Courts have increasingly been inclined to erode the attorney-client privilege, thereby extending the designation of client to the beneciaries of trusts.Every advise given by the duciary lawyer was against the intersts of the beneciaries (deying the protection of laws) apart from being a crime/ violation of Rule of Law. Lawyer violated duty of loyalty both to beneciaries and also to the court of which he is an ocer of the court.VIOLATED

IX

VIOLATIONS OF THE KARNATAKA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT,1972
KOF 1972 SECTION 3. GENERAL LIABILITIES OF PROMOTER.-

(1) Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of ats, all or some of which are to be taken or are taken on ownership basis, shall in all transactions with persons intending to take or taking one or more of such ats, be liable to give or produce or cause to be given or produced the information and the documents hereinafter in this section mentioned: VIOLATED (2) A promoter, who constructs or intends to construct such block or building of ats, shall,- (a) make full and true disclosure of the nature of his title to the land on which the ats are constructed, or are to be constructed; such title to the land as aforesaid having been duly certied by an Advocate of not less than seven years standing; VIOLATED (b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;VIOLATED 15

(c) allow inspection on reasonable notice of the plans and specications of the building built or to be built on the land; such plans and specications having been approved by the local authority which he is required so to do under any law for the time being in force;VIOLATED (d) disclose the nature of xtures, ttings and amenities (including the provision for one or more lifts) provided or to be provided; VIOLATED (e) disclose on reasonable notice or demand if the promoter is himself the builder, the prescribed particulars as respects the design and the materials to be used in the construction of the building and if the promoter is not himself the builder disclose, on such notice or demand, all agreements (and where there is no written agreement, the details of all agreements) entered into by him with the architects and contractors regarding the design, materials and construction of the building;VIOLATED (f) specify in writing the date by which possession of the at is to be handed over;VIOLATED (g) prepare and maintain a list of ats with their numbers already taken or agreed to be taken and the names and addresses of the parties and the price charged or agreed to be charged therefor, and the terms and conditions if any on which the ats are taken or agreed to be taken;VIOLATED (h) state in writing, the precise nature of the organisation of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organisation of persons who have taken or are to take the ats;VIOLATED (i) not allow persons to enter into possession until a completion certicate where such certicate is required to be given under any law, is duly given to the local authority;VIOLATED (j) make a full and true disclosure of all outgoings (including ground rent if any, municipal or other local taxes, taxes on income, water charges and electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any);VIOLATED (k) make a full and true disclosure of such other information and documents in such manner as may be prescribed and give or demand true copies of such of the documents referred to in any of the clauses of this sub- section as may be prescribed at a reasonable charge therefor.VIOLATED

KOF 1972 SECTION 4. AGREEMENT WITH BUYERS.-

Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered.- Notwithstanding anything contained 16

in any other law a promoter who intends to construct or constructs a block or building of ats, all or some of which are to be taken or are taken on ownership basis, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such ats, and the agreement shall be registered under the Registration Act, 1908 and such agreement shall contain the prescribed particulars; and to such agreement there shall be attached such documents or copies thereof, in respect of such matters, as may be prescribed.VIOLATED

KOF 1972 SECTION 5. SEPARATE ACCOUNT.-

Promoter to maintain separate account of sums taken as advance or deposit and to be trustee therefor and disburse them for purposes for which given.The promoter shall maintain a separate account in any bank of sums taken by him, from persons intending to take or who have taken ats, as advance or deposit, including any sums so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any); and he shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes, and shall on demand in writing by an ocer appointed by a general or special order by the State Government for the purpose, make full and true disclosure of all transactions in respect of that account.VIOLATED

KOF 1972 SECTION 6. RESPONSIBILITY FOR PAYMENT OF OUTGOINGS.-

Responsibility for payment of outgoings till property is transferred.- A promoter shall, while he is in possession and where he collects from persons who have taken over ats or are to take over ats sums for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, taxes on income, water charges, electricity-charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to the persons taking over the ats, or to the organisation of any such persons.PARTIALLY VIOLATED

17

KOF 1972 SECTION 7. ALTERATIONS, CHANGES, DEFECTS AND DEFECT REMOVAL

After plans and specications are disclosed no alterations or additions without consent of persons who have agreed to take the ats; and defects noticed within a year to be rectied.(1) After the plans and specications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more ats, the promoter shall not make,(i) any alterations in the structures described therein in respect of the at or ats which are agreed to be taken, without the previous consent of that person; or VIOLATED (ii) any other alterations in the structure of the building, or construct any additional structures, without the previous consent of all the persons who have agreed to take the ats. VIOLATED (2) Subject to the provisions of sub-section (1), the building shall be constructed and completed in accordance with the plans and specications aforesaid.VIOLATED (3) If any defect in the building or material used, or if any unauthorised change in the construction is brought to the notice of the promoter within a period of one year from the date of handing over possession, it shall wherever possible, be rectied by the promoter without further charge to the persons who have agreed to take the ats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change.VIOLATED (4) Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction or as to whether it is reasonably possible for the promoter to rectify any such defect or change or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not, rectied by the promoter the matter shall, on payment of such fee as may be prescribed, be referred for decision to such ocer not lower in rank than a Superintending Engineer as the State Government may by general or special order specify in this behalf, within a period of two years from the date of handing over possession. Such ocer shall after such enquiry as he deems necessary, record his decision, which shall be nal.NOT YET VIOLATED

KOF 1972 SECTION 8. REFUND OF AMOUNT PAID

Refund of amount paid with interest for failure to give possession within specied time or further time allowed.- VIOLATED 18

If,(a) the promoter fails to give possession in accordance with the terms of his agreement of a at duly completed by the date specied, or any further date or dates agreed to by the parties; orVIOLATED (b) the promoter for reasons beyond his control and of his agents, is unable to give possession of the at by the date specied, or the further agreed date and a period of three months thereafter, or a further period of three months if those reasons still exist, then, in any such case, the promoter shall be liable on demand (but without prejudice to any other remedies to which he may be liable) to refund the amounts already received by him in respect of the at (with simple interest at nine per cent per annum from the date he received the sums till the date the amounts and interest thereon is refunded), and the amounts and the interest shall be a charge on the land and the construction, if any, thereon in which the at is or was to be constructed to the extent of the amount due, but subject to any prior encumbrances.VIOLATED

KOF 1972 SECTION 9.NO MORTGAGE

No mortgage etc., to be created without consent of parties after execution of agreement for sale.- No promoter shall, after he executes an agreement to sell any at, mortgage or create a charge on the at or the land, without the previous consent in writing of the persons who take or agree to take the ats, and if any such mortgage or charge is made or created without such previous consent after the agreement referred to in section 4 is registered, it shall not aect the right and interest of such persons.VIOLATED

KOF 1972 SECTION 10. CO-OPERATIVE SOCIETY OR COMPANY

Promoter to take steps for formation of co-operative society or company.(1) As soon as a minimum number of persons required to form a cooperative society or a company have taken ats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the ats as a co-operative society, or as the case may be, as a company; and the promoter shall join, in respect of the ats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company.VIOLATED (2) Nothing in sub-section (1) shall aect the right of the promoter to dispose of the remaining ats in accordance with the provisions of this Act.

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KOF 1972 SECTION 11. PROMOTER TO CONVEY TITLE, ETC., AND EXECUTE DOCUMENTS

Promoter to convey title, etc., and execute documents, according to agreement.A promoter shall take all necessary steps to complete his title and convey to the organisation of persons, who take ats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of at-takers his right, title and interest in the land and building and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.VIOLATED

KOF 1972 SECTION 14. OFFENCES BY PROMOTER

Oences by promoter.- Any promoter who, without reasonable excuse, fails to comply with or contravenes any provisions of this Act or of any rule made thereunder shall (where no other penalty is expressly provided for) on conviction, be punished with imprisonment for a term which may extend to one year or with ne which may extend to two thousand rupees, or with both; VIOLATED and a promoter who commits criminal breach of trust of any amount advanced or deposited with him for the purposes mentioned in section 5 shall, on conviction be punished with imprisonment for a term which may extend to four years, or with ne, or with both.VIOLATED

KOF 1972 SECTION 15. OFFENCES BY COMPANIES (SOCIETIES)

Oences by Companies.(1) If the person committing an oence under this Act is a company, every person who at the time the oence was committed was in charge of, and was responsible to the company for the conduct of business by the company, as well as the company, shall be deemed to be guilty of the oence and shall be liable to be proceeded against and punished accordingly: Provided that, nothing contained in this sub-section shall render any such person liable to such punishment provided in this Act if he proves that the oence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such oence.VIOLATION NOTIFIED

TO ALL THROUGH THIS DOCUMENT

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(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act, has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other ocer of the company, such director, manager, secretary or other ocer shall also be deemed to be guilty of that oence and shall be liable to be proceeded against and punished accordingly.VIOLATION

NOTIFIED TO ALL THROUGH THIS DOCUMENT X THE CONSUMER PROTECTION ACT, 1986

unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:1. (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;((nnn) restrictive trade practice means a trade practice which tends to bring about manipulation of price or conditions of delivery or to aect ow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustied costs or restrictions and shall include (a) delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price;) VIOLATED (b) the practice of making any statement, whether orally or in writing or by visible representation which,(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specied to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;VIOLATED 2. the goods bought by him or agreed to be bought by him; suer from one or more defects;VIOLATED 21

3. the services hired or availed of or agreed to be hired or availed of by him suer from deciency in any respect;VIOLATED 4. (iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price (a) xed by or under any law for the time being in force

VIO-

LATED
(b) displayed on the goods or any package containing such goods ;VI-

OLATED
(c) displayed on the price list exhibited by him by or under any law for the time being in force; VIOLATED (d) agreed between the parties;VIOLATED 5. goods which will be hazardous to life and safety when used or being oered for sale to the public, (a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force; VIOLATED (b) if the trader could have known with due diligence that the goods so oered are unsafe to the public; deciency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; AWHO has 1. Claimed that it functions as Housing Society but actually is ruled by an autocratic junta with no semblance of democratic governance.VIOLATED 2. Houses suer many quality defects and reporting recieve no actions and not even response from AWHO VIOLATED 3. Suers from many deciencies viz. (a) over pricing to the tune of 480% where as average ination in construction cost is only 78% VIOLATED

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(b) Housing delayed by 7 years and Common faclities delayed even beyond the housing by 2+ years and is still NOT ready.VIOLATED (c) Changes to quality, design and schedule with out consent of the consumer. VIOLATED (d) Changes to design or quality without compensation for reduction in cost. VIOLATED 4. Construction carried out with out permission from local authorities and hence remain in violation of law. VIOLATED 5. Housing conveyed to consumer with out obtaining Completion Certicate and hence consumer can not obtain essential services in their name. VIOLATED 6. Share of common facilities not conveyed to owner though fully charged by the builder.VIOLATED Act not in derogation of any other law.The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

XI

REAL ESTATE (REGULATION & DEVELOPMENT) BILL

The real estate regulation and development bill that seeks to protect home buyers from dishonest builders was tabled in the Rajya Sabha on Wednesday by minister of housing and urban poverty alleviation. The cabinet had approved the bill on June 4. The bill has provisions like a jail term of up to three years if developers put up misleading advertisements about projects. Draft Real Estate (Regulation & Development) Bill, 201 Many practices of AWHO become punishable under this bill! unfair practice means a practice which, for the purpose of promoting the sale or development of any immovable property adopts any unfair method or unfair or deceptive practice including any of the following practices. AWHO is engaged in many unfair practices like: 1. Represent that AWHO is a registered Society but members are denied participation in governance in every way possible virtually turning it into a Sole Proprietor business ( or at best a partnership of the 23

self-appointed Board of Management) of a public servant. Adjutant General says: we make rules, you just obey, a violation of Human Rights, constitution of India and a large number of statutes. VIO-

LATED

2. Draw up rules which are with out legitimacy ( rule makers have no legitimacy under statute) and are illegal( violate constitution, statutes and case laws established in the courts of law) and worst of all kept totally SECRET till it hits you on your face!.VIOLATED 3. Makes a false or misleading representation concerning the services: (a) Claim that the property is developed under a State Apartment Act but fails to take appropriate actions to provide protection of the Act to the allottee members.VIOLATED (b) Claims that it will be built on No Prot No Loss basis but resist persistently to provide verication of the same by denying right to Information.VIOLATED (c) Resist transparency in costing to conceal possible proteering and speculation in land prices.VIOLATED (d) Violate laid out process to favour friends of the Board of Management providing largest plot size at throw away prices .VIO-

LATED

(e) Makes misleading claims about cheaper cost ( Rs/square foot) by deliberately taking wildly inated super area in case of AWHO but taking carpet area in case of other builders.VIOLATED 4. Not providing mandatory information as per chapter III section 8 ( including the carpet area of each unit) VIOLATED 5. Violate the rule: if the person aected by such incorrect, false statement contained in the advertisement or prospectus, intends to withdraw from the proposed project, he shall be returned his entire investment along with interest at such rate as may be prescribed ( and NOT paltry 5%)

VIOLATED
6. Violating the clause: a promoter shall not accept any sum of money as an advance payment or deposit, from a person without rst entering into a written agreement for sale along with specications and external development, works, the dates and the manner by which payments towards the cost of the plot, building or apartment are to be made by 24

the allottees and the date on which the possession of the plot, building or apartment is to be handed over and such other particulars with such person leaving every thing(including specication and quality) to the whims and fancies of AWHO management. VIOLATED 7. Fails to fully meet Obligations of promoter towards allottees (for details refer Clause 12 of the bill) VIOLATED 8. Failure to adhere to approved plans and project specications by the promoter.( Refer Clause 13 of the Bill) VIOLATED 9. Failure to take all necessary steps to execute a registered conveyance deed in favour of the allottee thereby transferring the title in the immovable property along with the undivided proportionate title in the common areas simultaneously with the handing over of the possession of the immovable property and the other title documents pertaining thereto.( Refer clause 14 of the bill) VIOLATED 10. Return of amount along with prescribed interest ( not just 5% as arbitrarily determined) along with penalty if not complied with time or specication of the property.(Refer Clause 15) VIOLATED 11. Obligations of allottees limited to Clause 16 and not decided arbitrarily by AWHO in the rule book.VIOLATED AWHO being a Welfare Society should be proactive in protecting the rights of the member allottees rather than wait for the law to catch up with unfair practices of the real estate sharks and builder maa! Shouldnt a welfare society engaged in welfare activities for the veteran NOT do acts which are punishable and also should actively engage in acts that promote transparency as dened in the bill? All provisions of the Act that protects the rights of the buyers of Housing Real Estate (and AWHO which is nothing but the Society of Housing Buyers) have been totally VIOLATED

XII

LOCAL AUTHORITIES BYE-LAWS: BIAAPA

We understand major violations of the BIAAPA bye-laws have been committed by AWHO.VIOLATED Some of the violations are: 25

1. Construction has proceeded beyond authorized by regulator and hence hence the facilities are essentially non-compliant! VIOLATED 2. Construction in common areas handed over to Karnataka Government as per the regulating authority is patently illegal.VIOLATED 3. AWHO is not able to get a completion Certicate for its construction of dwelling units and common facilities.VIOLATED 4. Conveying property with out completion Certicate of local authorities is violation Karnataka Act. VIOLATED 5. It is a criminal breach of trust of the consumer.

VIOLATED

XIII KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961

Being added shortly.

XIV

AWHO AND WELFARE ACTIVITIES

This does not provide any special powers, rights, privileges or immunities to AWHO. This is a Liberty right and NOT a Claim Right ala Hohfeld.6 One of the subjects of traditional jurisprudence is the analysis of the most general legal concepts, for example rights and duties. Contemporary philosophers of law similarly ask, What do we mean by a right? This is not a merely academic question, for it arises in legal practice. Wesley Newcomb Hohfeld examined the writings of lawyers and judges and found that they used a right indiscriminately to express four very dierent legal concepts, that of a liberty (or privilege), claim, power or immunity... Hohfeld believed that lawyers and judges need to distinguish between these fundamental legal conceptions to dene the precise issue before a court. 7 A claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations
Hoehfeld, Fundamental legal conceptions as applied in judicial reasoning, http: //plato.stanford.edu/entries/rights/#2.1 and http://www.archive.org/stream/ fundamentallegal00hohfuoft#page/n3/mode/2up 7 http://ivr-enc.info/index.php?title=Rights
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on other parties, but rather only freedom or permission for the right-holder. The distinction between these two senses of rights originates in American jurist Wesley Newcomb Hohfelds analysis thereof in his seminal work Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays.8 This liberty right is provided only as long as the Society fullls its duties to its Members: 1. The Society has a duty to respect the rights of its members.VIOLATED 2. Society has a duty to abide by the Constitution of India and also honor the fundamental and constitutional rights of its members.VIOLATED 3. Society has a duty to abide by the statute under which it was created viz. Registration of Societies Act 1860.VIOLATED 4. Society has a duty to abide by all the applicable statutes and case laws (Consumer protection laws, Property laws: State Apartment Owners Act, Transfer of Properties Act, Indian Trusts Act 1882 etc.)VIOLATED 5. Society has a duty to abide by the tax laws applicable to non-prot societies.VIOLATED

XV

NO PROFIT NO LOSS

No Prot No Loss (NPNL) is often being cited by AWHO as bestowing some special powers, rights and prvileges 9 . The saddest fact is that it does not provide any of this. If any thing, it binds some duties, liabilities and disabilities on AWHO. What are these duties? Undoubtedly, 1. AWHO has a duty not to make any prot out of its dealings/transactions with its members.VIOLATED 2. AWHO has a duty to its members to charge its members at cost price and cost price alone.VIOLATED 3. AWHO has a duty to its members NOT to charge for those items for which it has not paid any price or incurred any expense.VIOLATED
8

http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.

pdf
9

http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.

pdf

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4. AWHO has a duty to its members to distribute surpluses if any at the end of the Project.VIOLATED 5. AWHO has a duty to its members to be transparent to establish the truth of all of the above.VIOLATED

XVI

AWHO IS A REGISTERED SOCIETY

This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds AWHO to fulll its duties to its members. What are these duties? 1. The Society has a duty to its members that it will be governed democratically as required by the statute.VIOLATED 2. Society has a duty to provide equal rights to its members to be eligible to election to its Board of Management as required by the statute.VIOLATED 3. Society has a duty to provide all the members right to vote as required by the statute.VIOLATED 4. Society has a duty to provide the right to approve all the rules that apply to the Society Members as required by the statute..VIOLATED 5. Society has a duty to seek approval of the members of its audited accounts as required by the statute.VIOLATED 6. Society has a duty to seek approval of the members (3/5th majority) in case the Society has to be closed as required by the statute.VIOLATED

XVII

AWHO BUILDS HOUSES ON A SELF-FINANCING BASIS

This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds AWHO to fulll its duties to its members. What are these duties? 1. The Society has a duty to its members that it will respect the duciary Responsibilities applicable for trustee to its beneciaries.VIOLATED 2. Society has a duty to provide the trusteeship duties towards its beneciaries.VIOLATED 28

3. Society has a duty to provide all the members undivided loyalty.VIOLATED 4. Society has a duty to provide all the Members a duty of care.VIOLATED 5. Society has a duty to refrain from any activity that may engender any conict of interest.VIOLATED

XVIII

CONCLUSIONS

It can easily be veried that any or all the above do not provide AWHO any special powers, rights or privileges. On the other hand each of the above imposes certain duties on the part of AWHO to its members. AWHO is found to quote the above in many courts of law 10 to escape, on some pretext, the requirements to abide by the duties imposed. The above analysis lays bare the duties of AWHO to abide by the Rule of Law. Every violation has been notied to AWHO MD, Chairman & Board of Management and also the Chief of Army Sta by Members of AWHO repeatedly in writing and none of the authorities have responded to these notications even once! Not responding to these notications do NOT give AWHO Society and its management any immunity from prosecution for offences committed deliberately, willingly and knowingly with an intent to deceive, a design to induce belief in the falsity or to mislead, with the an intent to defraud that is, the intent to deprive the members of the Sociey the right to the protection of the Laws of the land by means of deceit. Practically every fella that breaks the law has a danged good reason, to his own way of thinking, which makes every case exceptional, not just one or two. Take you, for example.Jim Thompson. For the powerful, crimes are those that others commit. Noam Chomsky, Imperial Ambitions The larger crimes are apt to be the simpler, for the bigger the crime, the more obvious, as a rule, is the motive. Arthur Conan Doyle A criminal remains a criminal whether he uses a convicts suit or a monarchs crown.Victor Hugo **********************************
http://www.rti.india.gov.in/cic_decisions/CIC_LS_A_2013_000543_M_ 115574.pdf
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