• Legal Owner is not a registered owner.

Hello,

We had an election to a newly established housing community in Chennai, It is our first election to the community. It was conducted by election committee. The election committee allowed Handover letter from Builder for people to vote as owners were resisting to share the registration document since it has his sign and other information. The EC used the same for nominations too. However on Nomination guideline it says only registered owners and blood relationship can contest. There was also a point in guidelines that Election committee decision to accept nomination is final.

Now there is a contestant whose father jointly owns the house however it was not registered. The father of the contestant has expired due to covid. Then the registration was withheld due to various reasons to get all legal documents, legal heir certificate, death certificate etc. Now the contestant has won the election by one vote. Now the loser of the same post has bought this point that he is not the registered owner wanting the association to disqualify the member.

Would need clarification even if the apartment is not registered is the winner a legal owner and can he be part of the association? Also since the Election committee guidelines say that it's decision is final, can the owners disqualify the winner? He winner has produced Loan modt,death certificate, legal heir certificate which clearly says he is the owner. Also builder has given handover document and the winner is staying in the house for 8 months. 

Need feedback on this. Thanks in Advance.
Asked 2 years ago in Property Law
Religion: Hindu

2 answers received in 30 minutes.

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11 Answers

He is the co owner  of flat 

 

2) if no registered sale deed has been executed by builder in favour of father and son then son cannot stand for election 

 

3) if however registered sale deed has been executed by builder in favour of father and son then on father demise son can stand for elections 

 

3) he has produced death certificate, legal heir certificate 

Ajay Sethi
Advocate, Mumbai
97700 Answers
7911 Consultations

The only person in whose name the flat is registered can be member and part of association

Prashant Nayak
Advocate, Mumbai
33000 Answers
212 Consultations

The allotment letter in case of co operative housing society itself is an instrument of transfer in accordance with the transfer of provision of Transfer of Property Act and the Registration Act and is  conclusive evidence of such title or interest in the concerned properties in favour of such transfer.

So  a legal heir is having full right to the said title and interest can fully eligible for membership and contest election pending any further registration of the property.

In any dispute raised by the society complain to the registrar of the society mentioning the above grounds.

 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

As per guidelines only registered owners and blood relationship can contest. The  elected candidate is blood relation of holder of property who is not a registered owner. In the  first place such candidate is not eligible to contest, election of candidate not eligible to contest is invalid. Though the  point is technical, defeated candidate is entitled to challenge his election as he is registered owner.

Ravi Shinde
Advocate, Hyderabad
4511 Answers
42 Consultations

The persons who won the election might have been allotted with the flat by the builder, but in the absence of the registered sale deed on his name, he cannot be enrolled as a member of the association hence his to election or even the voting rights to him are invalid and illegal. 

His election can be termed as null and void hence by a resolution to this effect the association in a special meeting may resolve to cancel the election as cancelled as the same was null and void due to the said reasons and  conduct the election again.

The election committee cannot give a decision which is not legally valid hence if any such decision given by the election committee upholding his election is an illegal act, it can be challenged in the court.

In the absence of registered sale deed on his name he cannot be admitted  as a member of the apartment owners  association. 

T Kalaiselvan
Advocate, Vellore
87899 Answers
2368 Consultations

- As per rule , No proxy or a holder of power of attorney or letter of authority shall be eligible to attend a General Body Meeting of the Society on behalf of a Member of the Society

- Further, for contesting and electing in the election of the society , a person must have ownership rights of flat  or tenement owner of co-op. Housing Society by legal documents.

- Since the said contestant not having ownership right of the apartment , then his candidature is not legal in the election , and can be decarded null and void after passing a resolution in the GBM. 

Mohammed Shahzad
Advocate, Delhi
14832 Answers
225 Consultations

Yours is an un registered association with no model bye laws 

 

2)elected  body cannot debar winning candidate 

 

3) request is valid 

Ajay Sethi
Advocate, Mumbai
97700 Answers
7911 Consultations

If the association is not a registered body then all the activities of the association cannot be enforceable by law including the legal validity of the election.

If he issued a legal notice then the association has to give a suitable reply denying his allegations and refusing to accept his claim as per procedures of law.

T Kalaiselvan
Advocate, Vellore
87899 Answers
2368 Consultations

Unless the association is duly formed with bylaws and registered, it has no legal entity and authority whatsoever. Everything done otherwise is a farce.

Swaminathan Neelakantan
Advocate, Coimbatore
2967 Answers
20 Consultations

- Without GBM , the association cannot remove a winning candidate.

- Further, as the association is not registered , then it cannot impose any rule over the members 

Mohammed Shahzad
Advocate, Delhi
14832 Answers
225 Consultations

Yes it has authority if there is a mal practice but he can challenge that decision in court later

Prashant Nayak
Advocate, Mumbai
33000 Answers
212 Consultations

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