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Sreeni (Others)     08 October 2013

Apartment association - misconduct.

Dear Experts,

There is a strange situation in our 36 flat apartment building. The president / secretary are rude in behavior and do not want to listen to people. The issue started where there is a practice in apartment where the lift is stopped at 11.00PM in the night and switched on at 8.00 AM in the morning. Due to this there is a severe pain for people (especially old people). Many people do not raise their voice in this and still adjusting.

However I objected this practice and I requested association that this is illegal and to keep it on is statutory requirement - because what if an emergency arises during night hours. The reason they give that since it makes noise when people use in night they switch off. I did not like this logic and fighting for this from quite some time. Since there is no change /action been taken by association on this activity, i stopped paying maintenance (asking give a break up of money spent on items so that people can deduct the money towards lift usage and pay). They are not doing this too.

While this goes they started  verbal abuse with many people, have regular fights and there by affecting public tranquility, they even started send watchman do put pressure to pay the maintenance. I repeatedly informed that unless lift timing issue is addressed it would be tough to pay maintenance when the services are made unavailable. They even attempted to block way to enter apartment. 

Since I am first year law student I understand all sorts of criminal offences they have commited so far.

such as assult, extortion, intention to cause hurt & grievous hurt, criminal intimidation etc.

I always requested them not to commit offcences of this sort, instead they can file a civil suit for recovery where by I can put the facts infront of judge - so that he can decide on compensation etc.

My query here is once they start above said criminal offences, can I file an NCR? or shall I go ahead with filing a civil suit for cutting the services  - due to which I stopped payment of maintenance.

Can association has any power to discontinues services in illegal way instead of filing a civil suit for recovery - under the above mentioned circumstances?

Please direct me on next step & an legal reference in Bangalore would be appreciated.

Thanks

Sreeni

 

 



Learning

 13 Replies

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     08 October 2013

In the given circumstances, it would be best to file a Consumer Court complaint, under the Consumer Protection Act, and claim damages and compensation, for the Negligency and Deficiency, in providing Lift services.

 

Also think of filing private criminal complaint against the Secretary and Watchman, for criminal intidimation and so on ....

 

Keep Smiling .... Hemant Agarwal
https://hemantagarwal21.blogspot.in/?view=sidebar

Sreeni (Others)     08 October 2013

Thanks Mr.Hemanth;

I understand private criminal complaint as non-cognizable report. Am I right?

 

-Sreeni

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     09 October 2013

Sorry for the confusion.  Read corrected sentence as follows:

 

 

Also think of filing private criminal complaint, WITH THE LOCAL MAGISTRATES COURT,  against the Secretary and Watchman, for criminal intidimation and so on ....

 

Keep Smiling .... Hemant Agarwal
https://hemantagarwal21.blogspot.in/?view=sidebar

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     09 October 2013

It is not possible to give any opinion or advice without the following information:

1.In which State is the Association situated? (The laws of the State have to be applied)

2. Is the Association registered? If so under which Act is it registered and who is the registering authority?

Sreeni (Others)     10 October 2013

Dear Ramani sir;

This comes under karnataka.

The association is NOT registered.

-Sreenivas

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     10 October 2013

If the Association is not registered it is illegal. They cannot collect any funds or make any rules. Though unregistered has the Association got any bye-laws or constitution? Are the office bearers elected?

There are two types of Associations. In one case membership is voluntary and payments are also voluntary. Such an Association can work even without registration. If they register, it will be under the Societies Registration Act and registration is done with the Charity Commissioner of the State. There is a Central Act and each State has also their own acts. Registration is generally done under the State and the Sections in the act can be different from State to State.

A building's association is not a voluntary association. Membership will be compulsory for all the residents. Payments decided by the General Body also will be compulsory. As such associations cannot be registered under the Society's registration Act. Hence they add the word "Welfare" in the name of the Association. Still the office bearers cannot collect the dues compulsorily. But once the members start paying, the payments become a precedent.

Maharashtra has a tradition of residential building complexes. Hence there are various acts available for formation and registration of Associations. Co-operative Housing Societies are the most common. There are comprehensive laws governing the working of the Societies. There is also a Maharashtra Ownership Flats Act. Then there are condominiums. Sometimes the flats associations are registered with the Registrar of Assurances. Such associations will be governed under the Civil laws.

Tamilnadu has an Ownership Flats Act, 1997. The Act contains bye-laws also. Associations registered under the act have to hold elections to the Managing Committee, which is conferred with necessary powers.

I do not know whether Karnataka has any such Act. 

As your Association is not registered, civil or criminal action can be taken only against individuals by name.

Sreeni (Others)     13 October 2013

Dear Dr.Ramani,

Yes, association has bye-laws - which do not mention of right of association to discontinue of services (such as life been switched off from 11 pm to 8 AM).

More over it is against law to cause disruption to the services such as lift (which are life saving during emergencies to reach hospitals etc) whether

association is registered or not.

-Sreenivas

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     14 October 2013

Do the bye-laws say anything about any Managing Committee, the number of members in it, how they are elected, what is the term (number of years) of an elected Managing Committee and so many other things?

How and when did the bye-laws came into existence? Was it placed before the General Body and adopted?

Any Association where membership is compulsory and not voluntary, cannot function without registration. Only registration will give powers to the Office Bearers to exercise the powers under the bye-laws and levy dues from members. 

Your building may have power supply to the common areas for lights etc. In whose name is the power connection? Are you paying your Municipal taxes directly to the Municipality or through the Association.

Whatever is done in the name of the Association may be illegal. But whatever it is, you can get your rights only by going to Police. courts etc. Just because law is on your side, things will not automatically work in your favor.

In which city or village is your Association?

Have you checked whether there are any laws governing the working of such Associations in Karnataka? You can browse the internet and find out.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     14 October 2013

I have attached an article on Karnataka Apartment Ownership Associations


Attached File : 363025345 karnataka apartment owners association acts and legal aspects.pdf downloaded: 179 times

Sreeni (Others)     21 October 2013

Sir,

Thank you for the attachmet related to legal aspects with in karnataka apartment's context.

-Sreenivas

Raj   14 July 2019

Hello,

There is a a similar situation where the owners are divided into 2 groups - one one group doesnt pay maintenance at all putting all burden on the other group, for many reasons (like dispute on byelaws). No amount of explanation or convincing is working. Association is not registered. Of course going to Court  is feasible but it will take a lot of time and due to the non-cooperation of one group of people, the other group is burdened to keep the services running as they have old parents and tenants living in the building.

Is there a mediation route where some third party (like Police or other) can resolve the dispute?

Even if they agree and register the association and start paying, if there is another dispute in the future, that group can again resort to non-payment of maintenance to literally blackmail and get their demands met. That group owners live there itself and are ready to put up a never ending fight, to loose services and let the senior citizens/tenants suffer (so that their owners budge and agree to the demands). What are the legal solutions available in such case? As it is a small apartment, lift/dg/motor etc. are all single and can not be bifurcated to separate the maintenance of these 2 groups of flats.

 

thanksRaj

 

Raj   14 July 2019

This is in Karnataka Whitefield.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     15 July 2019

In the absence of registration the so called office bearers are just individuals and pretenders. They have no authority to do anything. So long as things go smoothly everything will be OK. Otherwise it will be anarchy. There will be no one on whom you can file a complaint.


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