• Can builder state a apartment welfare society as null and void?

I live in a apartment in Bangalore, with builders permission(in writing) majority of us has formed an welfare association and started representing legal issues through association. One of the landlord denied to join the association. The moment we protested against illegal construction, builder is now stating association is not formed under Kaoa, hence null and void. Is this applicable at all when he himself didn't followed the law as per registered JDA? What corrective action we can take regarding this? Are there any citations I can refer to regarding legality of society if all the owners are not members but majority are.(70%)
Asked 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1. If the welfare society has not been formed as per KAOA then the builder can certainly object to it,

2.Form an association and register it as per KAOA at the earliest,

3. The fact that byour association has not been registered as per PAOA does not legitimise the builder's wrong doings,

4. You all can approach the District Consumer Dispute Redressal forum for redressal.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
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1) if builder has carried out illegal construction complaint to bangalore muncipal corporation that construction has not been carried out as per sanctioned plans 

2) File RTI application and obtain sanctioned plans 

3) if no action taken by the authorities file writ petition in HC against the builder or move consumer forum 

4)KAOA applies only to property the sole owner or all of
the owners of which submit the same to the provisions of this Act by duly executing and
registering a Declaration. the declaration contains detailed description of land , building , apartment , common areas and facilities 

5) apartment owners  have  undivided interest in the common areas and facilities in the percentage specified and established in the Declaration; 

6) "association of apartment owners" would mean all of the apartment owners acting as a
group in accordance with the bye-laws and Declaration

7) 7 or more owners in the Apartment Complex can approach  the Registrar of Societies together and make an application that:

 they desire to form themselves in to a society under Karnataka Societies Registration Act 1960.
Encloses a memorandum with following details: desired name of the Association, aims and objectives of the association, and who in the association will be authorized to correspond with the Registrar of Societies (typically the President of the Association).
Encloses the Bye-laws (rules and regulations) of the Association.
Encloses the prescribed fee.
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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1. Tow illegality does not make a thing legal.
2. Only because builder has made illegal constructions does not give you right to form association without due compliance of law.
3. Since local law is involved you better take help of a local lawyer to find out whether the association is legal or irregular. Then only next course of action can be taken.
4. However any flat owner in his individual capacity can lodge complaint on illegal structure to the Municipality and if  the Municipality fails to act you can invoke writ jurisdiction of high court.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
1. In the instant case, an association of people being the flat owners can file a consumer case or any other case praying for relief for which the said association need not be registered with KAOA,

2. Here, all the flat owners are represented by the said unregistered association as complainant before the Consumer Forum.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
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1) non registration of association cannot be a bar to the association filing suit to enforce any right under the law of the land 

2) it is the duty to builder to carry on construction as per sanctioned plans 

3) if builder fails to carry on construction as per sanctioned plans association can sue the builder in this regard . 

4) mere non registration should not be a bar to said suit or complaint 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
similar question arose before the Supreme Court in the matter of Raptakos Brett & Co Ltd V/S Ganesh Property. The owner here was an unregistered partnership firm which filed a suit for decree for possession and damages for illegal occupation of the premises. The owner gave the premises on lease and the suit was filed after the expiry of the lease period. The tenant contended before the Supreme Court that as the landlord’s firm (partnership) was unregistered, the suit was liable to be dismissed. The landlord contended that they were entitled to possession under the terms and condition of lease as well under the law of the land.
While considering the matter, the Apex court observed that to decide the question whether the suit was hit by section 69(2) of the Partnership Act, one has to see what is the cause of action. The law of the land means the common law under which the erstwhile tenant on the expiry of the lease has to hand over vacant possession to the erstwhile landlord.
The said obligation on the part of the tenant is statutorily recognised by section 108(q) read with section 111(a) of the Transfer of Property Act. The non?compliance of the statutory obligation by the tenant when made the subject matter of a corresponding legal right of the landlord cannot be said to be giving rise to enforce any contractual right under any agreement. The Court therefore held that the suit to enforce any right under law of the land, the non?registration or bar of filing the suit under Sec69(2) of the Partnership Act does not arise.
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Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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1. Register your association and challenge the builder.
2. every individual owner has the right and responsibility to challenge the builders wrongdoing , if you are all in one group no illegality about it.
3. The builder is wrong and you can lodge an FIR against him for illegal construction
the case in the consumer forum and the civil court will take time.You should try for  private complaint before the magistrate if the police does not register an FIR.

 
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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There is no legal impediment in forming association but what about it being registered?  It can be registered as a society too if you cannot get it registered under kaoa.
You may pressurise before the consumer court for a speedy trial so that the builder feels pain and pressure besides  giving a tough fight in the civil case too. 
The builder cannot take law into his hand.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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Hi sir/madam, you have to form the association under the Registration of Society Act. You don't worry about the one member can not taken a membership, you have to fight against illegal construction before the court of law.
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
1. The members have the right to form an association but it should be formed in the manner laid down under the law. If the applicable act is KAOA the association has to be compliant with it. Be that as it may, the builder has no authority of law to declare the association as null and void. Only the court can declare it to be a nullity.

2. The stay from the civil court has to be obeyed by the builder. If the association was not formed in accordance with the law the court would not have granted a stay in the first place.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
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