V Swaminathan B.Sc., B.L., FCA
Prologue
To share own reactions / view points for the common good; incidentally, by way of focussing on and stressing independent line of approach:
The law experts in the group, as is observed, have, in a manner of saying, gone to town, to try, support and stress their respective but mutually contradicting viewpoints in the write-ups in public domain on the topic of 97th Constitutional Amendment AND the HC’s reported verdict declaring it ultra vires.
1. Just as the several previous ones, to be precise 96 of them, besides the later ones, the 97th amendment has come to be made and is in place. May be, lawyers at large, left to their own line of independent thinking, will have, as always, scope for finding loopholes and fault the amendment on technical grounds. But in one’s longstanding conviction, it could be validly and righteously queried, – why at all the subject amendment needs to be made so serious an issue as to be faulted, also litigated, on such technical grounds, more so if it were just for the heck/fancy of it ? And, especially, should any such challenge have the potentials to jeopardise and frightfully harm /impair the very rights and interests of “the PEOPLE” (or the section of the people directly concerned/having vested interests).
2. As for a fact, the amendment has, by and large, been acclaimed to be for the common good of the people in general; and has been so reported and widely canvassed, besides in the media, in unbiased legal circles as well.
For ready reference, read the following selected extracts, from a leading business daily The Hindu:
The 97th amendment to the Constitution passed in January this year grants citizens the fundamental right to form cooperative societies. The amendment has added the term cooperative societies along with the right to form unions. It has fulfilled a long-standing demand,” vice-president of the cooperatives Gurunath Jantikar has said.
The amendment needs to be ratified by the State governments before February 14, 2013. “However, even if the States don’t do it before the deadline, it will be deemed as ratified,” he said.
The amendment has also added a directive principle of State policy, asking the State “to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies’. This would go a long way in developing the cooperative sector,
4. To illustrate why the amendment has a laudable objective, hence ought not to be desirably subjected to a controversy, consider the instance of so commonly called “housing societies”. No doubt, in most of the States forming part of the Union of India, there are special enactments. Those are intended/ objectively aim at governing the housing societies to be constituted by/ comprising buyers of units as its members (Flats/Apartments). Those are of two types, – e.g. in Karnataka, formed under Karnataka Ownership Flats Act and Karnataka Apartment Ownership Act (KOFA and KAOA- corresponding to MOFA and MAOA of Maharashtra). Nonetheless, as is common knowledge, because of the stark laxity/astounding failure in having the enactment implemented/enforced, the rights and interests of the gullible buyers’ community have been virtually set at naught, and tragically jeopardised. In fact, for several reasons, mainly because of promoters / sellers failure to comply, impudently or otherwise, with the mandated requirements, the buyers are left in a state of ‘trishanku’, with no housing society formed and registered , with all its attendant repercussions / mind numbing problems.
Now, the point of grave poser requiring everyone concerned to address self, is, as to why, at all, the ‘vires’ (legal validity) of the amendment could be sanely or righteously questioned, – or even been subjected to any controversy, remotely or otherwise.
5. The other connected matter covered in the topic of discussion by law experts group is on the rationale behind the Model Bye-laws of 2013 framed by the State of Maharashtra; and the shortcomings/ problems in store. That, of course, needs a separate study, on the lines indicated elsewhere. Attention may be invited to the following comment on a write-up in public domain, canvassing the view that, – Residential Premises could be used for Professional Purposes.
As viewed with a different stroke, however, there can be no doubt or denying that the observations / view points of its writer brought to bear/ aired are based on, as a professional, his own study and personal, independent understanding of, among others, the “bye-laws”, the last one referred being of 2001 .
Be that as it could not have been expected to be otherwise, it may be noted that, the latest Model Bye-Laws brought in, in 2013, since effected, – though, as understood, stalled for the time being/ and yet to be given effect, -would ostensibly have every relevance. Hence, it might be worthwhile making an insightful study. That should help in an incisive understanding and getting a true grip of what is in store, if and when the 2013 Model of Bye-laws is announced and made effective. Even so, in one’s mind, there is a very vital and predominant doubt of all, of a grievous nature, having quite possibly far reaching repercussions and consequences, impinging the common interests of one and all concerned. That, in short, is , – as to what extent/ which of the new provisions, IF AT ALL, sought to be brought in, could/ are intended to be applicable / adopted and followed retroactively; so as to impact, adversely or otherwise, the functioning/conduct of the affairs of the extant housing societies already registered and in place. To put it differently, each of those societies will be obliged to have a detailed exercise carried out, may be not without the help of a law expert, for identifying and deciding how best all or any of those bye-laws should be fitted into the already adopted bye-laws, with the least impediment or messing up. As this is a very intricate aspect, seemingly riddled with potentials for controversies galore, one strongly feels that the State government/its concerned authorities ought to , if not already done, even now/beforehand, mindfully consider and as far as feasible, make the ‘intention’ clear on the indicated and other related worrisome aspects.
KEY NOTE: On a tentative perusal of the new Bye-laws (2013), as is noted, there are quite many of its contents, which warrant a deep study/application of mind by one and all concerned . For that matter, one keeps wondering as to why at all the new bye-laws, -not an amendment of the erstwhile bye-laws as seem to have been wrongly construed-, should apply or could be imposed, in particular on the housing societies already registered and functioning in accordance with the erstwhile rules/regulations. Apart from the governmental experts, the advising experts at large, in the interests of selves or own clientele, need to study this aspect, and come out with a comprehensive unbiased/impartial opinion /viewpoints; also share with the rest openly, the earliest, the better.
Epilogue:
Left open/ welcome to share own thoughts, if anyone holds a materially varying view (s) but to do so with a public -centric outlook as earnestly expected. For useful hints, invited to look up the personal blogs on the related topics @swamilook. Googleblogs.
Author Bio
An UPDATE: The sub. write-up (dt. 12 Jan 2015) wprt the Gujarat HC requires to be studied, afresh, having due regard to the recently reported SC Judgment (WRIT) on the 97th amendment of the INdian COstitution.
(see the REPORT on this website)
TENTATIVE observation: The SC has been addressed, and has accordingly adjudicated upon, with the only focus on the general concept of ‘ co-operative societies’ as covered in both the central and state (s) legislative enactments. Differently viewed , however, the impact of the amendment (s) on the so called ‘ HOUSING SOCIETIES’ ,- a peculiar creature of the states’ spl. enactments – has not, not having been pointedly addressed, not been gone into but left to be adjudicated upon.
MAY have MORE to ADD !
In the interim, OVER /BAck To – ‘lawyers of eminence’ , in active field practice, for independent thoughts and viewpoints, if any, to spare and share, having in the BACKDrop , -as INEVITABLY warranted,- the legal implications of the inter-connected Spl. State(S)’ LEGISLATIVE ENACTMENTS DIRECTLY COVERING/ GOVERNING ‘ HOUSING (co-op) SOCIETIES’ ?!?