An Inquiry into violations of Rule of Law by AWHO Chandra Nath
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April 10, 2014
[email protected] He is an Independent researcher engaged in research in information security, privacy, law & justice. ∗
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Contents I
Intr In trod oduc ucti tion on
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II Consti Constitut tution ion of india A Fund undame ament ntal al Righ Rightt Arti Articl clee 14 . . . . . B Righ Rightt to Prop Proper ertty . . . . . . . . . . . . C Right Right to Democr Democrati aticc Self Self Gove Governan rnance ce of of Society . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . Co-oper Co-operati ative ve Housin Housingg . . . . . . . . . . . . .
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IIIIndian Penal Code
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IV Transfer ransfer of Property Property Act
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V Righ Rightt to Inf Infor orma mati tion on Act Act
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VI Registr Registrati ation on of Societie Societiess Act
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VIIThe Indian Trusts Act, 1882
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VIII VII IFiduciary Fiduciary Duties under Common Law 14 A Fiduc Fiducia iary ry Du Duti ties es of the lawy lawyer/ er/Offi Officer cer of the the Cour Courtt . . . . . . 15 IX VIOLATIONS VIOLATIONS of THE KARNAT KARNATAKA OWNERSHIP OWNERSHIP FLATS FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT,1972 15 A KOF 1972 1972 Secti Section on 3. Genera Generall lia liabi bili liti ties es of promo promoter ter..- . . . . . 15 B KOF 1972 1972 Sect Sectio ion n 4. Agreem Agreemen entt wit with h Buy Buyers ers..- . . . . . . . . . 16 C KOF KOF 1972 1972 Secti Section on 5. separa separate te accoun account. t.-- . . . . . . . . . . . . 17 D KOF KOF 1972 1972 Sectio Section n 6. Responsibi Responsibilit lity y for for paymen paymentt of outgo outgoings ings..- 17 E KOF KOF 1972 Section Section 7. Alterat Alterations ions,, Chan Changes, ges, Defects Defects and Defect Defect Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 F KOF 1972 1972 Sect Sectio ion n 8. 8. Refund Refund of amoun amountt Pai Paid d . . . . . . . . . . 18 G KOF KOF 1972 1972 Secti Section on 9.No 9.No Mortg Mortgag agee . . . . . . . . . . . . . . . 19 H KOF KOF 1972 1972 Section Section 10. Co-operati Co-operative ve Society Society or Compan Company y . . . 19 I KOF 1972 1972 Sec Secti tion on 11. 11. Prom Promot oter er to to con convey tit title le,, etc. etc.,, and and execute documents documents . . . . . . . . . . . . . . . . . . . . . . . . 20 J KOF 1972 1972 Secti Section on 14. Offe Offence ncess by promo promoter ter . . . . . . . . . . 20 K KOF KOF 1972 1972 Section Section 15. Offences Offences by Compani Companies es (Societie (Societies) s) . . . 20 X The Cons Consume umerr Protec Protectio tion n Act, Act, 1986 1986
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XI Real Estate (Regulation (Regulation & Developmen Development) t) Bill
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XIILocal Authorities BYE-LAWS: BIAAPA
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XIII KARNAT KARNATAKA TOWN TOWN AND COUNTRY COUNTRY PLANNING ACT, 1961 26 XIVAWHO and Welfare Activities Activi ties
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XVNo Profit No Loss
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XVIAWHO is a Registered Society
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XVII AWHO builds houses on a self-financing Basis
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XVIII Conclusions
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AN INQU INQUIR IRY Y INTO INTO VIOL VIOLA ATION TIONS S 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 desire to accomplis accomplishh is, the prote protection ction of rights: What we have to inquire is: The means by which protection may be af forded....That forded....That men are susceptible of happiness, ha ppiness, only in prop proportion ortion as rights are protected, is a proposition, which, taken generally, it is unnecessary to prove. The importance of the inquiry, therefore, is evident. 1
I INTRODUCTION WHO was 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 market at this particula particularr stage stage in the country’s country’s economy economy. We, the peopl p eople, e, 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 ourselves into “Rulers” “Rulers” (powerful, (powerful, autocratic and ever ready to exploit the powerless) and powerless “Subjects”.
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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 sovereig sovereignty nty,, was effecte effectedd by degr degreees and under disgui disguise. se. 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 1
Juri Jurisp spru rude denc nce, e,
Supp Supple leme men nt
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Ency Encycl clop opae aedi diaa
libertyfund.org/files/1760/0886_Bk.pdf
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Brit Britta tani nica ca http://files.
and government have been defrayed out of the profits of the trade 2
In similar vein, a Welfare Housing Society started with the noble intention of providing housing on a non-profit 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 accountabili accountability ty to the people who were denied all Right to Information. Commercial investments have been purchased out of contributions of the home buyers and the profits out of the business have been exempted out of Income Tax on the signed affidavit 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 public of public public funds handled handled by public public servan servants! ts! The masters masters established tyranny where they ruled with secret illegitimate and unpublished rules which which are in conflict with the constitution 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 munity,, to stup stupefy and paraly aralyse se a gre great peopl oplee who whom m God God has committed to our charge, for the wretched purpose of rendering them the m more more amenab amenable le to our contr control. ol. What What is power power worth 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 despotism and priestcraf priestcraft? t? We are fre free, we are are civilise civilised, d, to little 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 2
Macaulay, Thomas Babington Macaulay, Baron (1800-1859), Miscellaneous Writings http://www.gutenberg.org/etext/2170 170 and Speeches Speeches Volume 4 http://www.gutenberg.org/etext/2 3 ibid.
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secret profits 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 much as I can, just what the law expects expects and whether whether it is violat violated. ed. Even 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, justice, he is the worst of all.4
II A
CONSTITUTI CONSTITUTION ON OF INDIA
FUNDAMENTAL FUNDAMENTAL RIGHT ARTICLE ARTICLE 14
Fundamental undamental Right Article 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 fulfill the requirements of law and hence it is functioning tioning as a Propriet Proprietory ory Real Estate Estate Busins Businsss by “public “public servan servants”. ts”. Public Public servants engaging in Real Estate Business is violation of IPC (See below)
VIOLATED
B
RIGHT TO PROPERTY 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)
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C
RIGHT TO DEMOCRA DEMOCRATIC TIC SELF GOVERNAN GOVERNANCE CE OF CO-OPERATIVE HOUSING SOCIETY
AWHO is NOT a charitable society that can be ruled by the donors at the FULL exclusi exclusion on of the benefi b eneficiar ciaries ies of chari charity ty.. AWHO is fully fully funded by members & they are also the Members of the Society and as such they are Trustors and also Beneficiaries and Members have constitituional rights which have been totally VIOLATED The fact of the matter matter is not in dispute. dispute. Respond espondent ent No. 1 is a retir retireed Army Army Officer. Officer. He and his wife jointly became member member of a Cooperative Society known as ‘Army Welfare Housing Organisation isation’ (‘AWHO’ (‘AWHO’ for short). The said Cooper Cooperative ative Society 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 Constitution (Ninety-sev (Ninety-seventh enth Amendment) Act. 2011 guarentees guarentees 1. Fundamental Right to have a Co-operative Housing Society that is democratically democratically self governed. governed. VIOLATED 2. State obligation obligation to promote voluntary voluntary formation, autonomous 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 five years of office bearers of the cooperative society; VI-
OLATED
6. Convening of the General Body meeting of every cooperative society within a period of six months of the close of the financial year;VIOLATED 7. Access to every member of the society to the books, information and the accounts of the cooperative society; VIOLATED 5
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
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8. Free, fair, impartial and timely elections elections of cooperativ co operativee 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 firms.VIOLATED 10. Most importantly Co-opted members (ex-officio Members) not to be eligible to be elected as office-bearers of the Board. Irony of AWHO is that the Co-opted members (ex-officio Members) are the ONLY ones eligible to be office-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
IIII II
INDIAN INDIAN PENAL PENAL CODE CODE
Since AWHO is not functioning as a Society as per law, it automatically will be deemed to being run as a Sole Proprietorship. Proprietorship. This makes makes AWHO AWHO officials who are “public servants” liable to face consequence of crime under IPC. 1. IPC 119. Pub Public lic servant servant conceali concealing ng design to commit commit offence which 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 offence 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 offence, or makes any representation which he knows to be false respecting such design. if offence be committ committed. ed. if offence offence be committ committed.– ed.– shall, shall, if the offence offence be comcommitted, be punished punished with imprisonmen imprisonmentt of any description description provided for the offence, for a term which may extend to one- half of the longest term of such imprisonment, or with such fine 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 fine, or with both.VIOLATED with full
kowledge that crimes are being committed.
3. IPC 168. Public servant servant unlawfully unlawfully engaging engaging in trade.– Whoever, 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 fine, or with both.VIOLATED with full kowledge that crimes
are being committed.
4. IPC 169. Public Public servan servantt unlaw unlawful fully ly buying buying or bidding bidding for propert property y.– Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids bids for for that that prope propert rty y, eith either er in his his own name name or in the the name 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 fine, or with both; and the property, if purchased, shall be confiscated.VIOLATED with full kowledge that crimes
are being committed.
5. IPC 409. Crimin Criminal al breach breach of trust by public public servant servant,, or by banker, 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 fine. VIOLATED with
full kow kowle ledge dge that crimes ar aree being committe ommitted. d.
IV
TRANSFER TRANSFER OF PROPER PROPERTY TY ACT ACT
Non-democratically instituted Rules of the Society which are illegitimate and illegal illegal has rules that deprive protection of laws of right right to property. property. Members have statutory rights which are totally VIOLATED
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V
RIGHT TO INFORMA INFORMATION TION ACT 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 AWHO is refusing refusing to provide information requested. requested. All the crimes committed by AWHO will come to light if it provides information asked asked for is very strong motivation motivation for AWHO AWHO to deny information. 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 under RTI Act is dealt under section section 20 (1) of RTI Act. Th Thus us according according to section 20 (1) the Penalties will lie on the following grounds: 1. refusal to receive an application VIOLATED 2. delay in supply of information VIOLATED 3. Malafidely denied the request for information VIOLATED 4. knowingly knowingly giving giving incorrect, incomplete or misleading information; 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 falsity or to mislead, with with the an intent intent to defraud that is, the inten intentt to deprive deprive the members members of the Sociey the right to information and hence RTI Act conclisively VIO-
LATED
VI
REGISTRA REGISTRATION TION OF SOCIETIES SOCIETIES ACT ACT
1. Societie Societiess formed formed by memoran memorandum dum of associat association ion and registra registratio tion.– n.– Any seven seven or more persons persons associat associated ed for any any literar literary y, scient scientific ific,, or charit charitabl ablee 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 filing 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 wha whatt societies societies Act applies.– applies.– The follo followin wingg societie societiess may 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 fine arts, for instruction, the diffusion diffusion of useful knowledge, knowledge, 2 [ the diffusion diffusion of political education] 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 philosophical inventio inventions, ns, instruments instruments,, or designs. designs. AWHO is not a charitable 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 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 beneficiaries and the trustee who owe fiduciary 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 office 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 finance and accounts counts or for that matter, no inform informatio ation n at all. Members Members bring in money 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. members. All these decisions decisions were taken without the knowledge or consent of the members. Every right of the members have been stripped off with out the consent of the members or even their knowledge! 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 efficient polic policeman.” eman.” –L –Louis ouis Brandeis, Brandeis, Other People’s 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 secr secreecy.” Joseph Pulitzer Pulitzer
VII
THE INDIAN INDIAN TRUST TRUSTS S ACT, ACT, 1882
Money collected from the Member/allottees is required to be kept in trust (KOF (KOF 1972 Section Section 5. separate separate account account)) and account account for the money to the satisfaction of the benficiary. VIOLATED . 3. Interpretatio Interpretationn- clause” trust”:- A” trust” is an obligation obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, another, or of another another and the owner:” owner:” author author of the trust”: the person who reposes or declares the confidence is called the” author of the trust”: the person who accepts the confidence confidence is called called the” trustee” trustee”:: the person for whose benefit the confidence confidence is accepted accepted is called called the” beneficiar beneficiary”: y”: the subject- matter of the trust is called” trust- property” or” trust- money”: the” beneficial interest” or” interest” of the beneficiary is his right against the trustee as owner of the trust- property; 11. Trustee rustee to execute execute trust.trust.- The trustee is b ound to fulfil the purpose purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.VIOLATED the directions of trust (no profit) with out consent of the beneficiaries(allottees) 14. Trustee not to set up title adverse adverse to beneficiary.beneficiary.- The trustee must not for himself or another set up or aid any title to the trust- property adverse adverse to the interest of the beneficiary. VIOLATED in that common area title not conveyed to Members during registration. 15. Ca Care re requir required ed from trustee trustee..- A truste trusteee is bound to deal deal with with the trust- property as carefully as a man of ordinary prudence would deal with such property if it were his own. VIOLATED in 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 benficiaries at less than 20% of the prevailing market rates thus causing injury to the interest of the rest of the benficiaries. 17. Trustee to be impartial.impartial.- Where there are more beneficiaries 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 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 benficiaries. 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 beneficiary, 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 inflation for the period accounted for only 78% 23. Liabil Liabilit ity y for breach breach of trust.trust.- Where Where the trustee trustee commits commits a breach breach of trust, he is liable to make good the loss which the trust- property or the beneficiary has thereby sustained. VIOLATED 51. Trustee may not use trust- property for his own profit.- A trustee may not use or deal with the trust- property for his own profit or for any other purpose unconnected with the trust. VIOLATED in that charges made to beneficiaries for corner plot and park facing did not involve actual cost to trustee but beneficiaries charged but not given the benefit of such over charges, or at least failed to provide transparent account of money recieved due to such charges. 56. Right Right to specific specific execution. execution.-- The beneficiary beneficiary is entit entitled led to have have the intention of the author of the trust specifically executed to the extent of the beneficiary’ s interest; Right to transfer of possession. VIOLATED in that no profit, undivided loyalty, duty of care and duty to refrain from any activity activity that may engender any conflict of interest. interest. Trustee practices violation of all the above including total conflict of interest with the beneficiaries who are buyes of housing and trustee solely representing the builder interest. 57. Right Right to inspect and take copies of instrument instrument of trust, accounts, etc.The beneficiary 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 in that right to information information is denied totally. totally. 61. Right to compel to any act of duty.- The beneficiary 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 totally inspite of repeated requests. 63. Following ollowing 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 beneficiary 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 Right in case of blended blended property property.- Where the trustee trustee wrongfull wrongfully y 13
mingles the trust- property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him. VIOLATED AWHO funds comingled with beneficiary funds. 68. Liability of beneficiary joining in breach of trust.- Where one of several beneficiaries– (a) joins in committing breach of trust, or (b) knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, 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 beneficiaries, (d) has deceived the trustee and thereby induced him to commit a breach of trust, the other beneficiaries are entitled to have all his beneficial 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 Gen Girish, a favoured beneficiary decieved the trust and trust property in excess of his entitlements.
VIII
FIDUCIAR FIDUCIARY Y DUTIES DUTIES UNDER COMMON LAW
A fiduciary relationship exists “where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard for the interests interests of the one reposing the confidence.” confidence.” Fiduciary duties include: 1. a duty of undivided loyalty loyalty.(The .(The duty of loyalty loyalty requires the fiduciary to act solely for the benefit of the person to whom the duty is owed with respect to all matters within the scope of the fiduciary relationship.)
VIOLATED
2. a du duty ty to disc disclo lose se relev relevan antt facts facts and and to render render accoun accounts ts.. (The (The burburden of proving that he or she disclosed all material facts and that the transact transaction ion was fair lies with fiduciary fiduciary.. He bears b ears 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 confidences.
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A
FIDUCIARY FIDUCIARY DUTIES OF THE LAWYER/OFFICER LAWYER/OFFICER OF THE COURT
A lawyer who represents a society may be held to owe fiduciary duties to members members of the society society. An attorney attorney retaine retained d by the trustee to assist assist him or her in the administration of a trust is the attorney for the entire trust, including including the beneficia b eneficiaries. ries. Courts have have increasingly increasingly been inclined inclined to erode the attorney-client privilege, thereby extending the designation of client to the beneficiaries of trusts.Every advise given by the fiduciary lawyer was against the intersts of the beneficiaries (deying the protection of laws) apart from being a crime/ violation violation of Rule of Law. Lawyer Lawyer violated duty of loyalty loyalty both to beneficiaries and also to the court of which he is an officer of the court.VIOLATED
IX
A
VIOLATIONS VIOLATIONS OF THE KARNAT KARNATAKA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT,1972 KOF 1972 SECTION KOF SECTION 3. GENERAL LIABILITIES LIABILITIES OF PROMOTER.-
(1) Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats, 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 flats, 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 flats, shall,- (a) make full and true disclosure of the nature of his title to the land on which the flats are constructed, or are to be constructed; such title to the land as aforesaid having been duly certified by an Advocate of not less than seven years standing; VIOLATED (b) make make full full and and true true discl disclos osure ure of all all encum encumbra branc nces es on such such land land,, incl includ udin ingg any any righ right, t, titl title, e, inter interest est or clai claim m of any any part party y in or over over such such land;VIOLATED 15
(c) allow inspection on reasonable notice of the plans and specifications of the building built or to be built on the land; such plans and specifications 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 fixtures, fittings 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 flat is to be handed over;VIOLATED (g) prepare and maintain a list of flats 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 flats 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 flats;VIOLATED (i) not allow allow persons p ersons to enter into possess p ossession ion until a completion certificate where such certificate 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, 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
B
KOF 1972 SECTIO KOF SECTION N 4. AGREE AGREEMENT MENT WITH 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 flats, 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 flats, 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
C
KOF KO F 1972 SECTION SECTION 5. SEPARA SEPARATE TE ACCOUNT.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 flats, 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 officer 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
D
KOF 1972 SECTION SECTION 6. RESPONSIBI RESPONSIBILITY LITY FOR 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 flats or are to take over flats 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 flats, or to the organisation of any such persons.PARTIALLY VIOLATED
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E
KOF 1972 SECTION KOF SECTION 7. ALTERA ALTERATIONS, TIONS, CHANGES, CHANGES, DEFECTS AND DEFECT REMOVAL
After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within a year to be rectified.(1) After the plans and specifications 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 flats, the promoter shall not make,(i) any alterations in the structures described therein in respect of the flat or flats 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 flats. VIOLATED (2) Su Subjec bjectt to the provi provisi sions ons of subsub-se secti ction on (1), (1), the build buildin ingg shal shalll be constructed and completed in accordance with the plans and specifications 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 rectified by the promoter without further charge to the persons who have agreed to take the flats, 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 change or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not, rectified by the promoter the matter shall, on payment of such fee as may be prescribed, be referred for decision to such officer 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 officer shall after such enquiry as he deems necessary, record his decision, which shall be final.NOT YET VIOLATED
F
KOF KO F 1972 SECTIO SECTION N 8. REFUND REFUND OF AMOUNT AMOUNT PAID PAID
Refund of amount paid with interest for failure to give possession within specified 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 flat duly completed by the date specified, 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 flat by the date specified, 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 flat (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 flat is or was to be constructed to the extent of the amount due, but subject to any prior encumbrances.VIOLATED
G
KOF 1972 1972 SECTION SECTION 9.NO MORTGAG MORTGAGE E
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 flat, mortgage or create a charge on the flat or the land, without the previous consent in writing of the persons who take or agree to take the flats, 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 affect the right and interest of such persons.VIOLATED
H
KOF 1972 SECTION KOF SECTION 10. CO-OPERA CO-OPERATIVE TIVE SOCIETY 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 flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as a co-operative society, or as the case may be, as a company; and the promoter shall join, in respect of the flats 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 affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.
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I
KOF 1972 SECTION KOF SECTION 11. 11. PROMOTER PROMOTER TO TO CONVEY 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 flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat-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
J
KOF 1972 SECTION SECTION 14. OFFENCES BY PRO PROMOTER MOTER
Offences 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 fine 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 fine, or with both.VIOLATED
K
KOF 1972 SECTION SECTION 15. OFFENCES BY COMP COMPANIES ANIES (SOCIETIES)
Offences by Companies.(1) If the person committing an offence under this Act is a company, every person who at the time the offence 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 offence and shall be liable to be proceeded against and punished accordingly: Provided that, nothing nothing contai contained ned in this this sub-sect sub-section ion shall shall render render any such person person liable liable to such punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.VIOLATION NOTIFIED
TO ALL THROUGH THIS DOCUMENT 20
(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 officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.VIOLATION
NOTIFIED TO ALL THROUGH THIS DOCUMENT
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THE CONSUMER CONSUMER PROTECT PROTECTION ION ACT, ACT, 1986
“unfair “unfa ir trade trade pract practic ice” e” means means a trade trade practi practice ce which which,, for for the purpos purposee 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 provider;((nnn)) restrictive restrictive trade practice means a trade practice which tends to bring about manipulation of price or conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified 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 practice of making any statemen statement, t, whether whether orally or in writing or by visible representation representation which,(ix) which,(ix) materially 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 specified 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; suffer from one or more defects;VIOLATED 21
3. the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;VIOLATED 4. (iv) a trader or service service provider, provider, as the case may be, has charged charged for the goods or for the service mentioned in the complaint a price in excess of the price (a) fixed by or under any law for the time being in force VIO-
LATED
(b) displayed displayed on the goods or any package package containing containing such such goods ;VI-
OLATED
(c) displa displaye yed d on the price price list exhibited exhibited by him by or under under any any law law for the time being in force; VIOLATED (d) agreed between between the parties; parties;VIOLATED 5. goods which will be hazardous to life and safety when used or being offered for sale to the public,– (a) in contraven contravention tion of any standards relating relating to safety safety of such goods goo ds as required to be complied with, by or under any law for the time being in force; VIOLATED (b) if the trader trader could have have known known with due dilige diligence nce that the goods so offered are unsafe to the public; ”deficiency” 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 Claimed that it functions as Housing Housing Society but actually actually is ruled by an autocratic junta with no semblance of democratic governance.VIOLATED 2. Houses suffer suffer many quality quality defects and reporting recieve no actions and not even response from AWHO VIOLATED 3. Suffers from many deficiencies viz. (a) over pricing to the tune of 480% where as average inflation in construction cost is only 78% VIOLATED 22
(b) Housing Housing delayed delayed by 7 years and Common faclities faclities delayed delayed even beyond the housing by 2+ years and is still NOT ready. VIOLATED (c) Changes Changes to qualit quality y, design design and schedule schedule with out consen consentt of the consumer. VIOLATED (d) Changes to design or quality without without compensation for reduction in cost. VIOLATED 4. Construction Construction carried out with out permission permission from local authorities authorities and hence remain in violation of law. VIOLATED 5. Housing conveyed to consumer with out obtaining Completion Certificate and hence consumer can not obtain essential services in their name. VIOLATED 6. Share of common facilities not conveyed conveyed to owner though fully charged 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 ESTA ESTATE (REGULATION (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 General says: says: “w “wee make make rules, rules, you just obey”, obey”, a violat violation ion of Human 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 Claims that it will be built on “No Profit No Loss” basis but resist persistently to provide verification of the same by denying right to Information. Information.VIOLATED (c) Resist transparency transparency in costing costing to conceal possible profiteering profiteering 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 Makes misleading misleading claims about cheaper cheaper cost ( Rs/square Rs/square foot) by deliberately taking wildly inflated 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 Violate the rule: if the person affected affected by such such incorrect, false false statement 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. Violati Violating ng the clause: clause: “a promoter promoter shall not accept any sum of money money as an advance payment or deposit, from a person without first entering into a written agreement for sale along with specifications and external develo developmen pment, t, wo works, rks, the dates dates and the manner manner by which which payme payments nts 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 specification and quality) to the whims and fancies of AWHO management. VIOLATED 7. Fails to fully meet Obligations of promoter towards towards allottees (for details refer Clause 12 of the bill) VIOLATED 8. Failure to adhere to approved plans and project specifications 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 specification of the property.(Refer Clause 15) VIOLATED 11. Obligations Obligations of allottees allottees limited to Clause 16 and not decided arbitrarily 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 mafia! Shouldn’t 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 defined 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: 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 Construction in common areas handed over to Karnataka Karnataka Government Government as per the regulating authority is patently illegal.VIOLATED 3. AWHO is not able to get a “completion “completion Certificate” for its construction construction of dwelling units and common facilities.VIOLATED 4. Conveying property with out “completion Certificate” of local authorities is violation Karnataka Act. VIOLATED 5. It is a criminal breach of trust of the consumer. VIOLATED
XIII KARNAT KARNATAKA TOWN TOWN AND COUNTRY PLANNING ACT, 1961 Being added shortly.
XIV
AWHO AND WELFARE WELFARE ACTIVITIES 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. Hohfeld .6 One of the subjects of traditional jurisprudence is the analysis of the most general legal concepts, for example rights and duties. Contemporary Contemporary philosophers of law similarly ask, What do we mean by a right? This is not a merely academic academic question, for it arises in legal practice. Wesley Newcomb Newcomb Hohfeld examined the writings of lawyers and judges and found that they used a right indiscrimina indiscriminately tely to express four very different different 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 define the precise issue before a court. 7 A claim right is a right which entails responsibilities, duties, or obligations obligations on other parties parties regar regarding ding the right-holder. right-holder. In contrast, a liberty right is a right which does not entail obligations 6
Hoehfel Hoehfeld, d, Fundame undament ntal al legal legal concep conceptio tions ns as applie applied d in judici judicial al reason reasoning ing,, http: //plato.stanford.edu/entries/rights/#2.1 and http://www.archive.org/stream/ http://www.archive.org/stream/ fundamentallegal00hohfuoft#page fundamentallegal00hohfuoft#page/n3/mode/2up /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. right-holder. The distinction distinction between between these two senses of “rights” “rights” originates in American jurist Wesley Newcomb Hohfeld’s 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 fulfills its duties to its Members: 1. The Society has has a duty to respect the rights rights of its members. members.VIOLATED 2. Society has a duty duty to abide by the Constitution Constitution of India and also honor 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 (Consumer protection laws, Property laws: laws: State Apartment 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-profit societies. VIOLATED
XV
NO PROFI PROFIT T NO LOSS LOSS
No Profit 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 provide any of this. this. If any thing, thing, it binds some duties, duties, liabilit liabilities ies and disabilities on AWHO. What are these duties? Undoubtedly, 1. AWHO has a duty not to make any any profit out of its dealings/transactions with its members.VIOLATED 2. AWHO has a duty duty to its members members to charge charge its members members at cost cost price 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/facu http://www.law.harvard.edu/faculty/cdonahue/cou lty/cdonahue/courses/prop/mat/Ho rses/prop/mat/Hohfeld. hfeld.
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http://www.law.harvard.edu/facult http://www.law.harvard.edu/faculty/cdonahue/cours y/cdonahue/courses/prop/mat/Hohf es/prop/mat/Hohfeld. eld.
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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 REGIST REGISTERED ERED SOCIETY SOCIETY
This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds binds AWHO AWHO to fulfill fulfill its duties to its members. 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 approval of the members (3/5th majority) in case the Society has to be closed as required by the statute.VIOLATED
XVII
AWHO BUILDS BUILDS HOUSES HOUSES ON A SELF-FINANCING BASIS
This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds binds AWHO AWHO to fulfill fulfill its duties to its members. members. What are these duties? 1. The Society has a duty to its members that it will respect the fiduciary Responsibilities applicable for trustee to its beneficiaries.VIOLATED 2. Society Society has a duty duty to provid providee the trusteeshi trusteeship p duties duties towa towards rds its beneficiaries.VIOLATED 28
3. Society has a duty to provide all the members undivided loyalty loyalty.VIOLATED 4. Society has has a duty to provide provide all the Members Members a duty of care.VIOLATED 5. Society has a duty to refrain from any activity that may engender any conflict of interest.VIOLATED
XVIII CONCLUSIONS It can easily be verified 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 requirements to abide by the duties imposed. The above analysis analysis lays bare the duties of AWHO to abide by the Rule of Law. Every violation has been notified to AWHO MD, Chairman & Board of Management and also the Chief of Army Staff by Members of AWHO repeatedly in writing and none of the authorities have responded to these notifications notifications even once! Not responding to these notifications do NOT give AWHO Society and its management any immunity from prosecution for offences fences committ committed ed delibera deliberatel tely y, willin willingly gly and knowin knowingly gly with an inten intentt 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 convict’s suit or a monarch’s crown.–Victor Hugo ********************************** 10
http://www.rti.india.gov.in/cic http://www.rti.india.gov.in/cic_decisions/CIC_L _decisions/CIC_LS_A_2013_000543_ S_A_2013_000543_M_ M_ 115574.pdf
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