Fiduciary Responsibility of Owners Association Officials:

Applied to the Builder & the RWA

By Chandra Nath
October 12, 2016

Contents
1 Introduction

2 Sanctity of Veteran Property Rights

3 Karnatak High Court Writ Petition Verdict

Gates, Security & Public Nuisance

5 Illegitimate MMC Collection for Public Services

6 Impact on MMC and Maintenance
A
Eliminating Security . . . . . . . . . . . . . . . . .
B
Eliminating MMC for Services due from local body
C
Tendency to Spend accumulated reserves . . . . .
D
General Body can not Trump Rule of Law . . . . .

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5
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7 Essential Services as Leverage for Non-essential Services

8 Disability of the Service Provider

9 Conclusion

RULE OF LAW & RIGHT TO PROTECTION OF LAWS:

OWNERS AND CITIZENS

Popularity makes no law invulnerable to invalidation. Americans accept judicial supervision of their
democracy - judicial review of popular but possibly unconstitutional statutes - because they know that if
the Constitution is truly to constitute the nation, it must trump some majority preferences George Will
I have only one passion, the love of liberty and human dignity. In my view, all governmental forms are
only more or less perfect means to satisfy that holy and legitimate passion of menTocqueville

Introduction

by our own organization, our own veteran. Do you know

what their property rights are? If you do not know what
their rights are, how are you going to respect these rights?
If they have RIGHT X, you, both the Association and every individual in it have the DUTY to respect these rights.
If you do not know what exactly these RIGHTS are, how
are YOU going to fulfill this duty. If they have to take you
to the courts for every right of the bundle of rights they
posess, it is exremely unhealthy state of affairs apart from
total breakdown of civil society. The very purpose of the
RIGHT is defeated because RIGHT immediately follows
with DUTY on every one else to respect them. With out
this, we are living in jungle raj. AWHO violated their
property rights, now some of us and our Association are
violating their rights, out of ignorance and, I must add
out of stupidity and viciousness. If nothing else, at least,
we need to remedy this situation. Comes unelectable and
unelected Founding President and violates the rights of
the veteran! And things do not end there. Violations
continue in abundance!

he motivation for this paper was driven by two conflicting responses of our Owners Association. First
is tolerating the outright vioation of the statutes
by our builder AWHO and total helplessness or inaction
to bring to book the offender within the laws of the land.
Second, going out of the way to enforce many outrightly
illegal steps on the owners that are specifically mandated
not to be done by the rule of law. Both are failure of
fiduciary duties on the part of the Owners Association.
Failure to seek protection of the laws for the members is
a failure in fiduciary duties. So is, failure to respect the
right of the members and thus failing in ones own duties
to respect these rights. I will dwell on these two failures
extensively in this paper. The goal of the paper is to seek
protection of the rights of the members of the society and
the citizens. Failure to protect is failure of duty on the
part of the Association and when a fiduciary fails in this,
it is viewed more seriously than when an ordinary citizen
fails.

Sanctity of Veteran Property

Rights
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 James Mill

Why veteran property rights are sanctimonious is not

clear to many. Veterans served the military for 20, 30 or
35+ years and they had sacrificed their Right to Life and
Right to Liberty for the sake of the defence of the nation
and in their evening of their life, they are being targeted
3

Karnatak High Court Writ Petition Verdict

vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public
right. A common nuisance is not excused on
the ground that it causes some convenience or
advantage.

The gist of the Karnatak High Court Writ Ordr (http:

//bit.ly/2e4cH8i) indicates this:

1. Where lay outs hand over the common areas and facilities to the local authorities, the authorities have
Illegitimate MMC
not just rights but duties to enforce the regulation 5
that there are no gated communities and the comfor Public Services
mon facilities like roads will have to be shared for
communication with neighboring lay outs.
Further,
2. We as the owners have NO right to retain the wall
which obstructs road communication with other
neighboring lay outs.

1. The resources being forced out of owners in terms

of MMA on the plea that it has the majority consent of AGBM is not sustainable under the judicial
scrutiny on many grounds, chief being:

3. These walls will have to be destroyed where it connects with other lay out roads.

(a) The lay out is not a gated community and

gates and entry restrictions are violation of
fundamental rights of the citizen for travel
from one public street outside the colony to a
public street with in the colony. The fact that
these are poor and uneducated labor folks(
mostly women domestic labor) who do not
know how to assert their rights does not provide us the POWER to deny their fundamental right to free movement or to restrict their
movement within the colony to seek employment going from door to door.

4. This corroborates with the assertion of the local

authorities that there are no such thing as gated
communities in Bangalore. Any thing which we
are doing to preserve it as such is not only NOT
supported by law but is a CRIME: http://bit.
ly/2dtLGvd

Collection

Gates, Security & Public Nuisance

Any attempt to guard the gates and enforce the writ

of the MC to regulate the entry of the public to public
streets inside the colony has NO support of the laws and
the community of laborers looking upto our lay outs for
economic sustenance have full right to seek employment
with out being interfered with by the MC and any such
interference or regulation is a violation of the fundamental rights of right to movement apart from being a public
nuisance and a criminal offence under The Indian Penal
Code: 268. Public nuisance.

(b) Any villa that has appurtenance to public

street has right to free access not just to the
owners, but to their servants and agents as provided in the sales deed which reads as follows:
The purchasers shall be entitled to
quietly enter upon and hold, posses
and enjoy the property hereby conveyed and with out any interference
or disturbance by the vendor or their
predecessors-in-title or any one claiming through or under them and with
out any lawful interference or disturbance by any one else.

A person is guilty of a public nuisance who

does any act or is guilty of an illegal omission
which causes any common injury, danger or
annoyance to the public or to the people in
general who dwell or occupy property in the

(c) The restrictions imposed by the MC that it requires the Secretarys signature for entry and
4

(d)

(e)

(f)

(g)

(h)
(i)

(j)

(k)
(l)
(m)

the further restrictions that they can work only

in the designated villa for which permission is
given and no where else is illegal.
that the pass is valid for only for the pocket
for which it is issued and you need a separate
pass for each pocket is illegal.
the pass has to be renewed every 3 months or
so at an expense to the laborer of Rs 50/= is
again illegal.
The pass is the requirements of the MC for
identification and not the requirements of the
citizen and hence the renewal will have to be
done at the RWA expense ( with no harassment at all to the citizen that they should line
up in the office of RWA etc.)
it will be tantamount to a tax imposed on the
citizen with out his consent (because there is
NO statute authorizing it)
It is a violation of the rights of the citizen as
RWA has no right to impose such tax.
Rs 50 tax for a laborer is equivalent to an imposition of a tax on the owner amounting to
Rs 5000 (from the affordability point of view)
and will the RWA have the consent for laying
a tax of an amount of Rs 5000 with out the
consent of the owners?
Even with Rs 50 charges, it is the owners who
pay for the pass rather than making the poor
labor pay for it! So essentially it is a tax on
the owner.
Even when a contractor pays for it, the owners
are charged for it by the contractor.
So, it makes more sense for RWA to pay for
the cost of the pass.
The actual cost of production of pass will be
far less than Rs 50/- also.

4. Even violation of the funamental rights are committed by the members of the MC rather than the poor
domestic labor.
5. Petty thievery is punishable with few weeks of imprisonment where as obstructing public streets and
violating the fundamental right of the labor is punishable with 3 years of RI.
6. Committing a serious crime for sure to possibly
eliminate a potential petty crime in the name of
scurity is patently irrational, stupid and flawed.
In view of the above, all of the restrictions and
regulations imposed currently are against the rule of law.
More importantly, to conclude that we will follow law on
minimum wages (a major reason purported to majorly
increase the MMC) but NOT other risks of breaking the
rule of law other than minimum wages laws is fundamentally flawed. Even there,
1. Number of hours of duty is limited to 8 hours.
2. Double compensation (overtime) if made to work
more than 8 hours a day.
(a) 2 security guards working 24 hours costs
vs 3 guards working in 8 hour shifts costs,
former costs more (Assume Min Wage per
hour=100, for convenience, 2x8x100+ 2x4x2x
100 =32x100=3200 vs 3x8x100=2400) and
also,
(b) with 3, it is possible to provide weekly off with
out additional staff!

Impact on MMC and Maintenance

2. The current thinking that the domestic labor is the A Eliminating Security
potential lawbreakers (petty thievery) and the seWe can save more than half of MMC if we eliminate ilcurity should be tailored to counter the potential is
legal gates and illegal security totally. If a private army
patently wrong.
is maintained by the RWA, they will misuse it to break
3. If any thing, there is more propensity to commit the law and even to commit crimes against the owners
crime and serious ones at that among the owners and renters ( and past history supports my inference)!
than the domestic servants.
GOD has not imposed this requirement of security on
5

the owners and RWA has no power/authority with ma- 7

Essential Services as Leverage
jority or with even unanimity among the General Body.
for Non-essential Services
If top residential areas like Indiranagar and Kormangla
can survive with out barricading the public streets and To say that if you do not support and fund Nonprivate security, hell will not fall down on VV!
essential services, you will be denied essential services
like water, electricity, sewerage and garbage disposal is
B Eliminating MMC for Services due not sustainable under the applicable statutes and on the
basis of equity and natural justice.

from local body

If public streets, drains and street lighting are public

8 Disability of the Service
property to be maintained at public expense from our
House tax collected by the Panchayat, then forcing memProvider
bers to contribute for reserve/sink fund for maintenance
of these public assets held by the Panchayat is unjustifi- It is not without logic and reason that the applicable
statutes clearly spell out the disability of the service
able and worse, still, illegal and illegitimate.
provider (in other words lack of power) to deny the essential services and provide the owners the immunity
C Tendency to Spend accumulated re- from these bullying tactics of the service provider in these
words.
serves
MMC dues are civil dues to be recovered as civil
More over, If people are forced illegally and money is ac- debt where as the denial of essential service is a crime to
cumulated, there will be no incentive for the MC to liaise be punished with jail!
with local body to get these services from them because
For definition of these technical words, refer:
money is readily available in the coffers The inference http://bit.ly/2dtLOuR ) :
would be, reserve fund charges for these public assets will
straight away go to zero under these heads at least.
13. Manager not to cut off, with-hold, curtail
or reduce essential supply or service.-

When an Act of Parliament is against right

and reason, the common law will control it
and adjudge such Act to be void Coke

(1) No person, who is a promoter, or who is

in charge of management or connected with
the management of a block or building of flats
whether as member of a managing committee,
Director, Secretary or otherwise, or is responsible for the maintenance thereof (hereinafter
in this section referred to as the manager),
shall, without just and sufficient cause, either by himself or through any person, cut off,
with-hold or in any manner curtail or reduce,
any essential supply or service enjoyed by the
person who has taken a flat (or by any person
in occupation thereof through or under him) in
respect of the flat taken, or agreed to be taken
by him.

If Parliament can not trump rule of law, how can

GB trump law?

(2) The person who has taken or agreed to take

the flat or the occupier may, if the manager
has contravened the provisions of sub-section

General Body can not Trump Rule of

Law

Any majority decison has to be within the confines of

law, justice and equity. It has to be rational. If you say
that MMC for flats will be based on the covered area, it
will be against equity and justice to say that such a rule
will not apply for villas. A rule should apply consistently
across entities and not tailored to suit private and conflict
of interests. Influencing policy while oncealing conflict of
interests is criminal breach of trust.

(1), make an application to the Court for a direction to restore such supply or service.......

on oneself and ones neighbors, assuming the risk of failure

in the controversy, and avoiding the lure of procrastination.

(7) Any manager who contravenes the provisions of sub-section (1) shall, on conviction,
be punished with imprisonment for a term
which may extend to three months or with fine
or with both.

In law a man is guilty when he violates the

rights of others. In ethics he is guilty if he
only thinks of doing so. Kant
[I]t appears in our books, that in many cases,
the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is
against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act
to be void. English Law - Dr. Bonhams Case
- Coke, Parliament, Court, and Power.

(8) An offence under sub-section (7) shall be

a cognizable offence.
Had this NOT been so, RWA can cut off essential
services of AWHO Project office to cough up the Corpus
Fund rightly due to us. It is not the validity of the dues
that score over the disability of the RWA to impose its
will for a civil due!

Conclusion

If Parliament can not pass a law against common

right and reason, a decision passed by the AGBM, if it is
repugnant to the common law, common law will control
it, and adjudge such Act to be void. There should no
doubt left in the minds of those who talk of decisions of
majority in the AGBM being sacrosanct. Owners Association will have to function under the Rule of Law and
NOT repugnant to it.

Denial of rights is NO welfare. Aristotle recognized 2,000

years ago that an individual must have the virtues of
courage and temperance to achieve the welfare of others. He wrote that courage means facing pain. The challenge of leadership in difficult situations is confronting
ones neighbors and friends, imposing financial demands

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