awho & we the people

AWHO & We the People

Chandra Nath 1

[email protected] He is an Independent researcher engaged in research in informa-tion security, privacy, law & justice

ii

Copyright October 2013 by Chandra Nath

All rights reserved.

ISBN . . .

. . . Publications

Dedicated to Veterans in Pursuit of Justice.

Preface

It is for We the people to determine whether societies of menare really capable or not, of establishing good government fromreflection and choice, or whether they are forever destined todepend, for their constitutions, on accident and force.

This book is a collection of all ofcommunications with AWHO, a Reg-istered Society that were totally leftunanswered by AWHO. That muchfor the responsiveness for the AWHOSociety. Now that AWHO is un-der RTI, request for information willhave to be answered within stipu-lated time. AWHO tried its bestto exempt itself from RTI but failedmiserably in its attempt. AWHO re-fused to answer communication fromits members who have investmentsto the tune of Rs half a crore each.Now with RTI, it will have to answerall requests for information from anymember of the public!

Right to Information to the Mem-bers of the co-operative sector is en-shrined in our constitution since theConstitution amendment.

AWHO is engaged in Construc-tion of houses for the Army personnelboth serving and retired. It is reg-istered as a Society under Registra-tion of Societies Act 1860 (though ithas nothing even remotely connected

with literary, scientific or charita-ble activities for which this Act wasdedicated) but is engaged in con-struction of homes for its memberhome buyers. It should have beenregistered under the Co-operativeSociety Act. The purpose of register-ing AWHO under the Registration ofSocieties Act was specifically to avoidthe harsh enforcement of rights of themembers compared to the Registra-tion of Societies. While this may bejustified by some on the grounds thatthe members of Societies engaged inbird watching or poetry appreciationwill not have stakes running to Rshalf a crore each, the case of AWHOis not at par with the societies likebird watching and poetry apprecia-tion. Members of AWHO has stakesrunning beyond Rs half a crore eachand still they have no rights at all:

1. No Democratic member control

2. No member economic partici-pation

3. No autonomous functioning

vi

4. No member participation in theBoard

5. No Open independent profes-sional audit

6. No Right to see the audit re-port

7. No Right to information for themembers

8. Not even right to informationof governance documents, thename of governance Board, andnot even the rules that affectthem financially!

This is more like the plightof people of Libya under ColonelGaddafi except for the fact that inLibya, the the Green Book wasofficially handed over to every cit-izen where as in AWHO, even theMemorandum of Association, lawsand rules are secret even when theyare secretly applied to them by therulers! Long live the oligarchy, thelast bastion still alive in the society ofveterans! And most of the veteransare not even aware that they live ina society of citizens totally deprivedof their rights which even the citizenof 13th century England would scoffat!

The essence of oligarchi-cal rule is not father-to-son inheritance, but thepersistence of a certainworld-view and a certainway of life ... A rulinggroup is a ruling group solong as it can nominateits successors ... Who

wields power is not im-portant, provided that thehierarchical structure re-mains always the same.George Orwell

97th Constitution Amendment(Ninety Seventh Amendment) Act2011 relating to the co-operatives in-ter alia provides for:

incorporation, regulation andwinding up of cooperative so-cieties based on the principlesof voluntary formation, demo-cratic member control, membereconomic participation and au-tonomous functioning;

specifying the maximum num-ber of directors of a co-operative society to be not ex-ceeding twenty-one members;

a fixed term of five years fromthe date of election in respectof the elected members of theboard and its office bearers;and an authority or body forthe conduct of elections to a co-operative society;

a maximum time limit of sixmonths during which board ofdirectors of a co-operative soci-ety could be kept under super-session or suspension;

independent professional audit;

right of information to themembers of the co-operativesocieties;

To believe that AWHO BuilderInterest controlled by the mili-tary brass can deny all the above

vii

to its members who are essentiallyhome buyers unlike in any otherco-operative housing society is thebiggest Criminal Breach of Trust!

It is the Builder Interest thathas usurped the Society of HomeBuyers that gives justification todeny all the above constitutionallyguaranteed rights of a co-operative

society member. If they attempt toanswer my communication, they willrealize that they do not have a casebut then they will have to attemptto answer the questions I have raised.They mistakenly think that that theyhave power to ignore the questionsfrom its Members with total im-punity!

Contents

I An Appeal to Comply with the Constitution & theLaws 1

1 Appeal to the Chairman A Public Servant 3

I POST SCRIPT . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II Annexure A: Obligations of a Public Authority . . . . . . . . 8

III Annexure B: National Litigation Policy . . . . . . . . . . . . 10

IV Annexure C: I have Right of Reply . . . . . . . . . . . . . . . 10

II Messages to AWHO 15

2 An Inquiry into the Rule of Law, AWHO & We the People 19

I Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II Board of Management AWHO . . . . . . . . . . . . . . . . . . 20

III An Appeal to Board of Management . . . . . . . . . . . . . . 21

IV Strict Interpretation of Powers . . . . . . . . . . . . . . . . . 21

A Strict Interpretation of Powers . . . . . . . . . . . . . 21

B Onus of Proving authority lies with the usurper . . . . 23

V Liberty Rights and Claim Rights . . . . . . . . . . . . . . . . 23

VI Property as an Important Right . . . . . . . . . . . . . . . . . 24

A life, liberty and property . . . . . . . . . . . . . . . . . 24

B Rules of AWHO . . . . . . . . . . . . . . . . . . . . . 25

C Governance by Consent Only . . . . . . . . . . . . . . 25

D AWHO Concentration of Power . . . . . . . . . . . . . 26

VII AWHO Rules that violate Rules of Law . . . . . . . . . . . . 26

A Vox populi, vox Dei . . . . . . . . . . . . . . . . . . . 28

B Local Self-governments Rights . . . . . . . . . . . . . 28

x CONTENTS

VIII Response to Democratic Governance . . . . . . . . . . . . . . 29

A Violation of Rule of Law . . . . . . . . . . . . . . . . . 32

B Prostitution of Rule of Law . . . . . . . . . . . . . . . 33

C AWHO Rules: Strict Statutory Criteria . . . . . . . . 33

D Core fiduciary duties . . . . . . . . . . . . . . . . . . . 34

IX Wherever law ends, tyranny begins . . . . . . . . . . . . . . . 35

X AWHO Rules & Equity, Justice & Fiduciary Duties . . . . . 36

A Principles of Natural Right and Justice . . . . . . . . 36

XI Who is the enemy of Society? . . . . . . . . . . . . . . . . . . 37

3 Option Letter for Specific Dwelling Unit - BANGALOREVASANTH VIHAR PROJECT 39

I Appendix A: Criminal Breach of Trust . . . . . . . . . . . . . 48

A Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . 49

B Standard of Care . . . . . . . . . . . . . . . . . . . . . 49

C Buying & Selling Trust Property . . . . . . . . . . . . 49

D Conflict of Interest . . . . . . . . . . . . . . . . . . . . 49

E What Is Criminal Breach Of Trust? . . . . . . . . . . 50

F Entrustment . . . . . . . . . . . . . . . . . . . . . . . 50

G Property . . . . . . . . . . . . . . . . . . . . . . . . . . 51

H Misappropriation . . . . . . . . . . . . . . . . . . . . . 52

I Doctrine of Public Trust and Interpretation of LawCourts . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

J Criminal Breach of Trust by Public Servant or byBanker or by Agent . . . . . . . . . . . . . . . . . . . 55

K Dishonest Intention . . . . . . . . . . . . . . . . . . . 56

II Appendix B: Competition Commission Landmark Ruling . . 57

4 Copies of Original Statutory Documents of AWHO Society 69

5 4th Reminder and Yet No Original Statutory Documents 77

6 AWHO Society: Seeking of Information Relevant to Mem-bers of the Society 81

7 Building a Culture of Respect for the Rule of Law 87

CONTENTS xi

8 Computerized Draw of Lots Bangalore Part A Project 89

9 AWHO: An Appeal to COAS 97

10 Black-Box Analysis of Final Cost of AWHO DU 101

11 Analysis of Final Cost of AWHO DU 103

12 Appreciation Charges 105

13 AWHO & RTI 107

14 Declaration & Deed of Apartment of Vasant Vihar, Ben-galuru 109

15 Builder Interest vs Home Buyer Interest 113

16 An Inquiry into Some Fundamentals of AWHO 115

I Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

II AWHO and Welfare Activities . . . . . . . . . . . . . . . . . . 116

III No Profit No Loss . . . . . . . . . . . . . . . . . . . . . . . . 117

IV AWHO is a Registered Society . . . . . . . . . . . . . . . . . 117

V AWHO builds houses on a self-financing Basis . . . . . . . . . 118

VI Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

17 Real Estate (Regulation & Development) Bill 119

18 AWHO Lawyer as a Fiduciary 123

I Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

II Aiding and Abetting Standard . . . . . . . . . . . . . . . . . 124

III Application of Aiding and Abetting Liability Standard toBreaches of Fiduciary Duty . . . . . . . . . . . . . . . . . . . 124

IV Liability for an Attorney . . . . . . . . . . . . . . . . . . . . . 125

V Mr Lawyer:First, Do No Harm; Second, Prevent Harm? . . . 125

VI Civil Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . 126

VII Fraudulent Scheme . . . . . . . . . . . . . . . . . . . . . . . . 126

VIII Third Party Derivative Client . . . . . . . . . . . . . . . . . . 127

IX Lawyers Duty to Client Who is a Trustee . . . . . . . . . . . 128

X Perpetrating Frauds or Illegal Activity . . . . . . . . . . . . . 128

xii CONTENTS

XI AWHO Context . . . . . . . . . . . . . . . . . . . . . . . . . . 129

XII Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

19 AWHO Appreciation Charges 131

20 An Inquiry into Plot Size & Pricing by AWHO 137

I Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

II Size of Plot . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

III Illegality in Charging for excess Size Plot . . . . . . . . . . . 138

IV Additional Land from UDS . . . . . . . . . . . . . . . . . . . 138

V Cost of additional size of plot in 2013 . . . . . . . . . . . . . 139

A Sinister Motivation to Benefit Friends of AWHO . . . 139

VI Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

VII Remedial Action by AWHO . . . . . . . . . . . . . . . . . . . 141

21 Statement of Account : Bangalore, Yelahanka Part A 143

III Relevant Statutes 145

22 The Societies Registration Act, 1860 147

23 THE KARNATAKA OWNERSHIP FLATS (REGULATIONOF THE PROMOTION OF CONSTRUCTION, SALE, MAN-AGEMENT AND TRANSFER) ACT, 1972 153

I STATEMENT OF OBJECTS AND REASONS . . . . . . . . 153

II [KARNATAKA]1 ACT NO. 16 OF 1973 . . . . . . . . . . . . 154

III THE 1[KARNATAKA]1 OWNERSHIP FLATS . . . . . . . . 154

IV General liabilities of promoter.- . . . . . . . . . . . . . . . . . 155

V Offences by promoter. . . . . . . . . . . . . . . . . . . . . . . 160

VI Offences by Companies.- . . . . . . . . . . . . . . . . . . . . . 160

VII Power to make rules.- . . . . . . . . . . . . . . . . . . . . . . 161

VIII NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 162

24 THE KARNATAKA APARTMENT OWNERSHIP ACT,1972. 163

I STATEMENT OF OBJECTS AND REASONS . . . . . . . . 163

II NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 176

CONTENTS xiii

25 REGISTRATION ACT, 1908 177

I PART I : PRELIMINARY . . . . . . . . . . . . . . . . . . . . 177

II PART II : OF THE REGISTRATION-ESTABLISHMENT . 178

III PART III : OF REGISTRABLE DOCUMENTS . . . . . . . 180

IV PART IV : OF THE TIME OF PRESENTATION . . . . . . 183

V PART V : OF THE PLACE OF REGISTRATION . . . . . 184

VI PART VI : OF PRESENTING DOCUMENTS FOR REGIS-TRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

VII PART VII : OF ENFORCING THE APPEARANCE OF EX-ECUTANTS AND WITNESSES . . . . . . . . . . . . . . . . 188

VIII PART VIII : OF PRESENTING WILLS AND AUTHORI-TIES TO ADOPT . . . . . . . . . . . . . . . . . . . . . . . . 189

IX PART IX : OF THE DEPOSIT OF WILLS . . . . . . . . . . 189

X PART X : OF THE EFFECTS OF REGISTRATION ANDNON-REGISTRATION . . . . . . . . . . . . . . . . . . . . . 190

XI PART XI : OF THE DUTIES AND POWERS OF REGIS-TERING OFFICERS . . . . . . . . . . . . . . . . . . . . . . 191

XII PART XII : OF REFUSAL TO REGISTER . . . . . . . . . . 197

XIII PART XIII : OF THE FEES FOR REGISTRATION, SEARCHESAND COPIES . . . . . . . . . . . . . . . . . . . . . . . . . . 199

XIV PART XIV : OF PENALTIES . . . . . . . . . . . . . . . . . 199

XV PART XV : MISCELLANEOUS . . . . . . . . . . . . . . . . 200

26 TRANSFER OF PROPERTY ACT,1882 205

I CHAPTER I PRELIMINARY . . . . . . . . . . . . . . . . . 205

II CHAPTER II OF TRANSFERS OF PROPERTY BY ACTOF PARTIES ELECTION . . . . . . . . . . . . . . . . . . . . 214

III CHAPTER III OF SALES OF IMMOVABLE PROPERTY . 222

IV CHAPTER IV OF MORTGAGES OF IMMOVABLE PROP-ERTY AND CHARGES . . . . . . . . . . . . . . . . . . . . . 225

V CHAPTER IV OF MORTGAGES OF IMMOVABLE PROP-ERTY AND CHARGES . . . . . . . . . . . . . . . . . . . . . 232

VI CHAPTER IV OF MORTGAGES OF IMMOVABLE PROP-ERTY AND CHARGES . . . . . . . . . . . . . . . . . . . . . 238

VII CHAPTER V OF LEASES OF IMMOVABLE PROPERTY . 243

VIII CHAPTER VI : OF EXCHANGES . . . . . . . . . . . . . . . 249

IX CHAPTER VII OF GIFTS . . . . . . . . . . . . . . . . . . . 250

xiv CONTENTS

X CHAPTER VIII : OF TRANSFERS OF ACTIONABLE CLAIMS251

27 THE REAL ESTATE (REGULATION AND DEVELOP-MENT) BILL, 2013 255


II CHAPTER II REGISTRATION OF REAL ESTATE PROJECTAND REGISTRATION OF REAL ESTATE AGENTS . . . . 259

III CHAPTER III FUNCTIONS AND DUTIES OF PROMOTER264

IV CHAPTER IV RIGHTS AND DUTIES OF ALLOTTEES . . 266

V CHAPTER V THEREAL ESTATE REGULATORY AUTHOR-ITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

VI CHAPTER VI CENTRAL ADVISORY COUNCIL . . . . . . 271

VII CHAPTER VII THE REAL ESTATE APPELLATE TRI-BUNAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

VIII CHAPTER VIII OFFENCES, PENALTIES AND ADJUDI-CATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

IX CHAPTER IX FINANCE, ACCOUNTS, AUDITS AND RE-PORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

X CHAPTER X MISCELLANEOUS . . . . . . . . . . . . . . . 280

28 The Consumer Protection Act, 1986 313


II CHAPTER II CONSUMER PROTECTION COUNCILS . . 318

III CHAPTER III CONSUMER DISPUTES REDRESSAL AGEN-CIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

IV Consumer Protection Regulations, 2005. . . . . . . . . . . . . 328

29 The Prevention Of Corruption Act, 1988 337

I CHAPTER I- PRELIMINARY . . . . . . . . . . . . . . . . . 337

II CHAPTER III- OFFENCES AND PENALTIES . . . . . . . 340

III CHAPTER IV- INVESTIGATIONS INTO CASES UNDERTHE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

IV CHAPTER V- SANCTION FOR PROSECUTION AND OTHERMISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . 344

30 The Competition Act, 2002 349


CONTENTS xv

II CHAPTER II PROHIBITION OF CERTAIN AGREEMENTS,ABUSE OF DOMINANT POSITION AND REGULATIONOF COMBINATIONS . . . . . . . . . . . . . . . . . . . . . . 352

III CHAPTER III COMPETITION COMMISSION OF INDIA . 357

IV CHAPTER IV DUTIES, POWERS AND FUNCTIONS OFCOMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . 360

V CHAPTER V DUTIES OF DIRECTOR GENERAL . . . . . 371

VI CHAPTER VI PENALTIES . . . . . . . . . . . . . . . . . . 372

VII CHAPTER VII COMPETITION ADVOCACY . . . . . . . . 374

VIII CHAPTER VIII FINANCE, ACCOUNTS AND AUDIT . . . 374

IX CHAPTER IX MISCELLANEOUS . . . . . . . . . . . . . . . 375

31 The Right To Information Act, 2005 383


II CHAPTER II RIGHT TO INFORMATION AND OBLIGA-TIONS OF PUBLIC AUTHORITIES . . . . . . . . . . . . . 385

III CHAPTER III THE CENTRAL INFORMATION COMMIS-SION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392

IV CHAPTER IV THE STATE INFORMATION COMMIS-SION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

V CHAPTER V POWERS AND FUNCTIONS OF THE IN-FORMATION COMMISSIONS, APPEAL AND PENALTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397

VI CHAPTER VI MISCELLANEOUS . . . . . . . . . . . . . . 400

xvi CONTENTS

Part I

An Appeal to Comply withthe Constitution & the Laws

Chapter 1

Appeal to the Chairman APublic Servant

Dear Mr. Chairman, AWHO,

So as to have very clear under-standing of every issue involved inthe case at hand, and so that themain points emphasized in this longcommunication is not lost sight of,I have drawn an Index wherein eachissue is separated with appropriateheading. Every sentence is employedwith great care and caution and theChairman AWHO (Public Auth) istherefore requested and strongly ad-vised to read every part and everysentence of this long communicationvery carefully so as to have the cor-rect picture of the whole case andthus to adopt the correct course ofaction.1

1. The consequences that may fol-low in the event of non orevasive reply: This is to in-form you that your failure tocomply to legal expectation asstated herein before, may com-

pel me/us to

(a) Institute Writ of Man-damus before HighCourt/ Supreme court,at your personal (exem-plary) cost, taking aidof law settled by HonbleSupreme Court of India inSalem Advocate Bar As-sociation, Tamilnadu Vs.Union of India 2 and manyother countless judgmentsgiven by our Constitu-tional courts, for directingyou to record reasoned re-ply to me/ us; or/ and

(b) I/ we will seek the Writof Quo Warranto againstyou.I/ we may specificallyplead before the Court oflaw to remove you fromthe present public officebecause you have volun-tarily abstained yourself

1Commonlaw blog of Sandeep Jalan vide http://commonlaw-sandeep.blogspot.in/2010/04/historical-dig-in-premise-of-unattended.html

2http://www.indiankanoon.org/doc/342197/

4 Appeal to the Chairman A Public Servant

in performing your legalduties, the duties whichyou have voluntarily un-dertaken & promised toperform while assumingcharge of this Public Of-fice. The Writ of Quo-Warranto is resourcefulenough to take care of thispleading; or / and

(c) I/ we may register an FIRwith Police or may file acomplaint before the com-petent Magistrates Courtunder section 166, 217,218, 409, as applicable, ofIndian Penal Code, 1860.

(d) I/ we may pray for ini-tiating disciplinary pro-ceedings for dereliction ofduty constituting Mis-conduct;

(e) Whereas your inactionwill result in frustrationof my / our fundamen-tal rights,I/ we will seekdamages for the samefrom the concerned PublicAuth, which may finallybe recovered from you.You may please kindly re-fer Supreme court judg-ments wherein the Honblecourt have fastened the li-ability on public servantsfor their negligent acts ofcommission and omission.

2. Your kind attention is in-vited to Judgment of SC inSalem Advocate Bar Associa-tion, Tamil Nadu Vs. Union ofIndia, Please find Annexure A

in this regard.

3. Your attention is further in-vited to fact that I have a Rightof Reply. Please refer Annex-ure C in this regard.

4. Discretion in reality means apower given to a person withthe authority to choose be-tween two or more alterna-tives or possibilities each ofwhich is lawful and permissi-ble. The concept of discre-tion imports a duty to be fair,candid and unprejudiced; notarbitrary, capricious or biased;much less, warped by resent-ment or personal dislike.

5. Recording of reasons will showapplication of mind and proba-bly this recording of reasons isthe only remaining visible safe-guard against possible misuseof powers conferred upon ad-ministrators of a nation.

6. I seek to recall an historic inci-dent of Indian freedom strug-gle, occasioned with Mohan-das Karamchand Gandhi (HisJourney towards Mahatma).In the year 1893, when inSouth Africa, while holdinga First Class Compartmentticket and traveling in, Gandhiwas thrown out of the train, forin those times Blacks were notallowed to travel in the FirstClass Compartment, notwith-standing they hold a validticket. It was 9.00 in thechill night. That designatedBlack sent a Telegram to the

5General Manager of the Rail-ways and registered his com-plaint. The Complaint ofthat designated Black was at-tended, forthwith, the GeneralManager instructed the Sta-tion master to secure that com-plainant reaches his destinationsafely. Complainant was ac-commodated in the very nextmorning train to his destina-tion.

7. It is my case that grievance ofthe people must be promptlyand properly attended insteadof waiting and allowing for itto be translated into court liti-gation. It does no credit to theState or public servant to be in-volved in large number of dis-putes as an oppressive ruler.

8. It is my case that the giving ofsatisfactory reply is a healthydiscipline for all who exercisepowers over others.

9. It is my case that a complaintto any public/ statutory au-thority is the most legitimateincident of a democracy.

10. In the event no reply is receivedfrom you, then I/ we will re-quest the Honble Court to takea very serious view of this as-pect.

I conclude with this quote fromthe Indias Apex Court:

The jurisdiction andpower of the courts to in-demnify a citizen for in-jury suffered due to abuse

of power by public au-thorities is founded asobserved by Lord Hail-sham in Cassell & Co.Ltd. v. Broome on theprinciple that, an awardof exemplary damagescan serve a useful pur-pose in vindicating thestrength of law. An ordi-nary citizen or a commonman is hardly equipped tomatch the might of theState or its instrumental-ities. That is provided bythe rule of law. It actsas a check on arbitraryand capricious exerciseof power. In Rookes v.Barnard it was observedby Lord Devlin, the ser-vants of the governmentare also the servants ofthe people and the use oftheir power must alwaysbe subordinate to theirduty of service. A pub-lic functionary if he actsmaliciously or oppres-sively and the exerciseof power results in ha-rassment and agony thenit is not an exercise ofpower but its abuse. Nolaw provides protectionagainst it. He who is re-sponsible for it must suf-fer it. Compensation ordamage as explained ear-lier may arise even whenthe officer discharges hisduty honestly and bonafide. But when it arisesdue to arbitrary or capri-


cious behavior then itloses its individual char-acter and assumes socialsignificance. Harassmentof a common man by pub-lic authorities is sociallyabhorring and legally im-permissible. It may harmhim personally but the in-jury to society is far moregrievous. Crime and cor-ruption thrive and pros-per in the society dueto lack of public resis-tance. Nothing is moredamaging than the feel-ing of helplessness. Anordinary citizen insteadof complaining and fight-ing succumbs to the pres-sure of undesirable func-tioning in offices insteadof standing against it.Therefore the award ofcompensation for harass-ment by public authori-ties not only compensatesthe individual, satisfieshim personally but helpsin curing social evil. Itmay result in improvingthe work culture and helpin changing the outlook.3

Thanking you in the anticipationof your effective action in this regard.And if you fail to act, the heavy handof the law will soon be coming downhard on you. As a proud veteran Iwould hate to see that day!

With Regards

Chandra Nath. Complainant

I POST SCRIPT

Whereas you are a Public Servantand therefore this is to inform youabout some of the offences that maybe committed in the discharge oftheir official duties, u/s 119, 166, 167,213, 217, 218, 219, 409 or under anyother Section of IPC 1860 or offenceunder section 7, 8, 9, 10, 11, 13, 14 ofPrevention of Corruption Act, 1988;

SECTION 166 OF INDIA PE-NAL CODE declares that when aPublic Servant, in the discharge ofhis official duty, knowingly refuses todo what he is under obligation todo under the law and knowing thatthereby he will cause injury to anyperson, commits the offence underthis section. Section 44 of Indian Pe-nal Code defines the scope of Injurywithin the meaning of offences de-fined under Indian Penal Code. In-jury implies the doing of any actcausing unlawful- harm to reputa-tion, harm to property, causing men-tal alarm, bodily harm.

SECTION 217 OF INDIAN PE-NAL CODE declares that when aPublic Servant, in the discharge ofhis official duty, acting contrary tolaw, knowingly conduct himself insuch a manner, thereby knowing thathis act will (a) save a person fromany legal punishment or to securelesser punishment for that person towhich he is liable for; (b) save aproperty from forfeiture or charge to

3Lucknow Development Authority vs M.K. Gupta on 5 ... 1994 AIR 787, 1994 SCC(1) 243, Sahai,R Jhttp://www.indiankanoon.org/doc/1375046/

I POST SCRIPT 7

which that property is liable to, com-mits offence under this section.

SECTION 218 OF INDIAN PE-NAL CODE declares that when aPublic Servant, in the dischargeof his official duty, who has beencharged with the duty of prepara-tion of any Record or any Writing,knowingly prepares incorrectly suchrecord or writing, with the knowl-edge that by preparing such incor-rect Record or Writing he will cause(a) loss or injury to Public or to anyperson (b) save a person from anylegal punishment or to secure lesserpunishment for that person to whichhe is liable for; (c) save a propertyfrom forfeiture or charge to whichthat property is liable to, commitsoffence under this section.

SECTION 409 OF INDIAN PE-NAL CODE declares that any pub-lic servant who is in any manner en-trusted with any property, or withany dominion over property in his ca-pacity of a public servant, if com-mits breach of trust in respect ofthat property, commits the offenceunder this section and shall be pun-ished with 1[imprisonment for life],or with imprisonment of either de-scription for a term which may ex-tend to ten years, and shall also beliable to fine.

What is Criminal breach of trustis defined under Section 405 of In-dian Penal Code. The section saysthat any person (including a publicservant) who is in any manner en-trusted with any property, or withany dominion over property, dishon-

estly misappropriates or converts tohis own use that property, or dishon-estly uses or disposes of that prop-erty in violation of any direction oflaw prescribing the mode in whichsuch trust is to be discharged, orof any legal contract, express or im-plied, which he has made touch-ing the discharge of such trust, orwillfully suffers any other person soto do, commits criminal breach oftrust.

Public servants are under thesame liability as that of the privatecitizens for all their unjustified actsand omissions. Cases decided byApex Court locating the personal ac-countability of Public Officer:

1. For abusing the process ofcourt the public officer washeld responsible and was li-able to pay costs from his ownpocket; Where the public ser-vant has caused a loss to thepublic exchequer, the court hasallowed the government to re-cover such loss personally fromthe erring officer. State of Ker-ala V Thressia 1995 Supp (2)SCC 449.4

2. For adopting casual approachby which land could not be pur-chased by the authority andinstead purchased by privatebuilder, held officer personallyliable. State of Maharashtra v.P.K. Pangare, 1995 Supp (2)SCC 119.5

3. For irregularities committed

4http://www.indiankanoon.org/doc/417950/5http://www.indiankanoon.org/doc/772100/


in auction of land resultingin loss to public held officialheld responsible for the loss.DDA v Skipper constructionco. (1996) 1 SCC 272. 6

4. We are of the view that thelegal position that exemplarydamages can be awarded in acase where the action of a pub-lic servant is oppressive, arbi-trary or unconstitutional is un-exceptionable. The questionfor consideration, however, iswhether the action of Capt.Satish Sharma makes him li-able to pay exemplary dam-ages. In view of the find-ings of this Court in CommonCause Case - quoted above -the answer has to be in theaffirmative. Satish Sharmasactions were wholly arbitrary,mala fide and unconstitutional.This Court has given clear find-ings to this effect in the Com-mon Cause case. We, therefore,hold that Capt. Satish Sharmais liable to pay exemplary dam-ages. Common Cause (Petrolpump matter) v UOI. (1996) 6SCC 593.7

5. For abuse of power while ex-ercising discretionary power ingranting State largess in anarbitrary, unjust, unfair andmalafide manner, public ser-vant can be held personally li-

able. Shivsagar Tiwary v UOI(1996) 6 SCC 558. 8

6. For granting illegal promotionwith retrospective effect result-ing in frittering in huge publicfunds, held that erring officersshall be personally liable. H RRamachandriah v State of Kar-nataka (1997) 3 SCC 63.9

7. For abuse of power for extrane-ous reason in acceptance of ten-der, held all public officers con-cerned including Minister shallbe liable to punishment. DuttaAssociates v Indo Mercantiles(1997) 1 SCC 53.

8. Departmental Head is vicari-ously responsible for the ac-tions of his subordinates. Stateof Punjab v G S Gill (1997) 6SCC 129. 10

9. Liability of State Executiveswhen they infringe fundamen-tal rights. The Jurisdiction ofSC and HC. Kharak Singh ver-sus State of U P AIR 1963 SC1295. 11

II Annexure A: Obliga-tions of a Public Au-thority

Your kind attention is invited toJudgment of SC in Salem AdvocateBar Association, Tamil Nadu Vs.

6http://www.indiankanoon.org/doc/1964027/7http://www.indiankanoon.org/doc/1964027/8http://indiankanoon.org/doc/166611/9http://www.indiankanoon.org/doc/1886570/

10http://indiankanoon.org/doc/1840537/11http://indiankanoon.org/doc/619152/

II Annexure A: Obligations of a Public Authority 9

Union of India, wherein the Court,inter alia, observed as

Whereas it is a common experi-ence and in fact judicially recognizedby Honble SC in one service mat-ter before it that once a decision istaken, there is a tendency to upholdit, and a representation may not yielda fruitful purpose. Thus, attemptsby aggrieved to show any logical basefor his grievance or to highlight thelack of reason in the administrativedecision, to an unwilling authority,results in rejection of the representa-tion with perverse or no reason. It isalso a common experience that oncea grievance is ventilated by an em-ployee, he is subject to more neglectand hostile attitude....that they aretreated in a manner contrary to rea-son and conscience and that decisionof administrative authority smack ofcaprice and whims. The callous at-titude of the authority often breedsa sense of perpetual injustice. AIR1986 SC 686.

I/ we wish to inform you thatin Salem Advocate Bar Associa-tion, Tamil Nadu Vs. Union ofIndia (UOI), (2005) 6 SCC 344,the Honble Supreme Court, amongother things, has observed and di-rected

The Governments, gov-ernment departments orstatutory authorities aredefendants in a largenumber of Cases pendingin various courts in thecountry. Judicial noticecan be taken of the factthat in a large number of

cases either the notice isnot replied to or in thefew cases where a reply issent, it is generally vagueand evasive. It not onlygives rise to avoidable lit-igation but also results inheavy expenses and coststo the exchequer as well.

A proper reply can resultin reduction of litigationbetween the State and thecitizens. In case a properreply is sent, either theclaim in the notice maybe admitted or the area ofcontroversy curtailed, orthe citizen may be satis-fied on knowing the standof the State.

Having regard to the ex-isting state of affairs, wedirect all Governments,Central or State or otherauthorities concerned,whenever any statute re-quires service of noticeas a condition precedentfor filing of suit or otherproceedings against it, tonominate, within a pe-riod of three months, anofficer who shall be maderesponsible to ensure thatreplies to notices underSection 80 or similar pro-visions are sent withinthe period stipulated in aparticular legislation.

The replies shall be sentafter due application ofmind. Despite, if thecourt finds that either


the notice has not beenreplied to or the re-ply is evasive and vagueand has been sent with-out proper application ofmind, the court shallordinarily award heavycosts against the Gov-ernment and direct it totake appropriate actionagainst the officer con-cerned including recoveryof costs from him.

III Annexure B: Na-tional LitigationPolicy

I/ we invite your attention to theNational Litigation Policy [For shortNLP].I/ we am /are of view thatWednesday the June 23, 2010, 14:14Indian Standard Time is one ofa historic moment for India whenDr.M.Veerappa Moily, Minister ofLaw and Justice released a Docu-ment called National Litigation Pol-icy.

The principal aim of this Pol-icy is to transform Government intoan Efficient and Responsible litigant.EFFICIENT LITIGANT under thePolicy is desired as focusing on thecore issues involved in the litigationand addressing them squarely; andManaging and conducting litigationin a cohesive, coordinated and time-bound manner.

RESPONSIBLE LITIGANT un-der the Policy is desired as, whichin my view is more important, thatlitigation will not be resorted to for

the sake of litigating. This Policy, inpoint no. 2. of Chapter II of Vi-sion/ Mission exhorts that Govern-ment must cease to be a compulsivelitigant. The easy approach, Let thecourt decide, must be eschewed andcondemned.

It is equally remarkable to notethat when this policy, in the veryfirst point of Vision/ Mission reaf-firms that it is the responsibility ofthe Government to protect the rightsof citizens and those in charge shouldnever forget this basic principle.

This Policy, in point no. 4(A) ofChapter II of Vision/ Mission delvesthe responsibility on Heads of vari-ous Departments, Law Officers andGovernment Counsel, and individualofficers to secure the strict implemen-tation of this Policy.

In the light of this National Liti-gation Policy, the (Public authority)is empowered to take appropriate le-gal opinion about the merit of thesubmissions made by us in the back-ground of facts of the case, so as toavoid unwarranted litigation in thecourt of law against the Governmentfunctionaries.

IV Annexure C: I haveRight of Reply

(i) A note was struck by Apex Courtin Superintending Engineer, Publichealth, U.T. Chandigarh V KuldeepSingh, 1997(9)SCC 199, when it ob-served: Every Public servant is atrustee of the society; and in allfacets of public administration ev-ery public servant has to exhibit hon-

IV Annexure C: I have Right of Reply 11

esty, integrity, sincerity and faithful-ness in the implementation of thepolitical, social, economic and con-stitutional policies to integrate thenation, to achieve excellence & effi-ciency in public administration. ...

(ii) The right to reply can betraced in the Constitution of India,and, particularly in equality Article14 12 of it. In vast, beautiful, ge-ographical landscape of IndependentINDIA, i.e. Bhaarat, the Constitu-tion of INDIA came into existence on26th January 1950, is the supreme &fundamental Governing Volume.

This epic Governing Volumemakes a categorical announcementin its introductory passage that We,THE PEOPLE OF INDIA are thearchitect of this Volume. This an-nouncement is intelligent, designedand purposeful. The announcementassumes significance because by thisannouncement, the framers of ourConstitution intended to acknowl-edge and give tribute to selfless sac-rifice of every man woman who de-voted his/her life for the indepen-dence of INDIA.

There are three chief organs out-lined in this Governing Volume they are Legislature, the Govt andthe Judiciary; and all these three or-gans derive their origin and all theirpowers from this peoples GoverningVolume. The dicta of the Constitu-tion is crystal clear; namely, the goalof good governance.

Equality is a dynamic conceptwith many aspects and dimensions.In respect of content and reach of the

great equalizing principle enunciatedin Article 14, there can be no doubtthat it is a founding faith of the Con-stitution. It is a pillar on which,the foundation of our Democratic Re-public rests. Hence the Courts in ourcountry do not subject this Article toa narrow approach.

A very fascinating aspect of Ar-ticle 14 which the courts in In-dia have developed over the time isthat Art.14 embodies a guaranteeagainst arbitrariness. A man act-ing without reason is acting arbi-trarily. Any action that is arbitrarymust necessarily involve the negationof equality. Abuse of power is hit byArt.14. AIR 1974 SC 555; AIR 2005SC 2021.

In wealth of the Judgments deliv-ered by our Courts, it is repeatedlyaffirmed that public authorities mustexercise their discretionary powers ina reasoned and justified manner, fail-ing which inescapable violence to Ar-ticle 14 is imminent.

It is my case that individualsRight of Reply is inherent in Dutyto reasoned exercise of discretion byPublic authorities, a duty which isconsistently cast upon public/ statu-tory authorities by our Constitu-tional Courts, in their series of judg-ments.

It is my case that when theCourts, in their wealth of judgments,lay so much emphasize on record-ing of reasons by public authorities,in the discharge of their duties evenwhen administrative in nature, therecording of reason in their decision

12http://www.indiankanoon.org/doc/367586/


itself presupposes the obligation ofgiving reply, and not only a mere re-ply but a reasoned reply. It cannotbe said that whereas authorities areunder obligation to make reasonedreply but they are at liberty to notto make any reply.

It is my case that in wealth ofjudgments, the Courts have insistedupon recording of reasons by admin-istrative authorities on the premisethat such a decision may be sub-ject to judicial scrutiny / review andthe courts cannot exercise their dutyof review unless courts are duly in-formed of the consideration of thepublic / statutory authorities under-lying the action under review. Astatement of reasons serves purposesother than judicial scrutiny / re-view, inasmuch as the reasons pro-mote thought by the public / statu-tory authority and compel it to coverthe relevant points and eschew irrel-evancies and assures careful adminis-trative consideration.

When, in the case of M Kr-ishna Swamy versus UOI reportedin (1992) 4 SCC 605, the HonbleSupreme Court held that any action,decision or order of any statutory orpublic authority bereft of reasoningwould be arbitrary, unfair and un-just violating article 14 of the Con-stitution of India, then, then, it is mycase that non-reply of any complaintreceived by any public /statutory au-thority, is a positive act of omis-sion, an arbitrary, unfair and unjus-tified decision of that public / statu-tory authority to not to make a re-ply, thereby frustrating citizens fun-damental right enshrined under Ar-

ticle 14.

When, in the case of SrilekhaVidyarthi versus State of UP re-ported in AIR 1991 SC 537, it washeld by the Honble SC that in or-der to satisfy the test of Article 14,every State action must be informedby reasons and that an act unin-formed by reasons, is arbitrary, andarbitrariness is the very negation ofthe Rule of Law, then, it is my casethat non-reply of any complaint re-ceived by State, is an act of omissionof the State not informed by reasonand thus arbitrary, and thus does notpass the test of Article 14.

When in the case of DwarkadasMarfatia versus Port Trust Bombay,reported in AIR 1989 SC 1642, it washeld by the Honble SC that everyaction of public authorities must besubject to rule of law and must be in-formed by reason and when there isarbitrariness in their acts and omis-sions, Article 14 springs in and judi-cial review strikes it down and thuswhatever be the activity of the pub-lic authority, it should meet the testof Article 14, then, it is my case thatwhen a public authority does not re-ply to my complaint, I can safely al-lege that the said public authorityis acting arbitrarily, and Article 14springs in and gives me the locus ofbeing aggrieved and jurisdiction tothe High court under Article 226 tostrike down that alleged act of arbi-trariness, i.e. the act of un-repliedcompliant.

Similarly, when, in the case ofUnion of India Vs Mohan Lal Capoorreported in (1973) 2 SCC 836, theHonble Supreme Court said Rea-

IV Annexure C: I have Right of Reply 13

sons disclose how the mind is appliedto the subject matter for a decisionwhether it is purely administrative orquasi judicial; and reveal a rationalnexus between the facts consideredand conclusions reached, then, it ismy case that non-reply of any com-plaint received by any public /statu-tory authority implies that althoughmind was applied to the complaintand arbitrary decision was taken bythe administrative authority that noreply should be made.

Inaction by itself is an indepen-dent cause of action and the High

Courts can effectively deal with thesame. It cannot be said that a personis left without a remedy to challengeany omission or inaction on the partof the authority. It may be informedthat in a case, reported in AIR 2003SC 1115, relating to grievance of thePublic servant, the Honble SC heldthat the inaction on the part of theauthority can be challenged in theHigh Court by filing a WP under Ar-ticle 226 of the Constitution of India.

Chandra Nath

Part II

Messages to AWHO

17

Its not unpatriotic to denounce an injustice committed on ourbehalf, perhaps its the most patriotic thing we can do. E.A.Bucchianeri, Brushstrokes of a Gadfly

Chapter 2

An Inquiry into the Rule ofLaw, AWHO & We thePeople

Delivered to MD, Chairman, AWHO & COAS 6 February 2013

Real Courage is found, not in the willingness to risk death, but inthe willingness to stand, alone if necessary, against the ignorantand disapproving herd. Jon Roland, 1976

What we desire to accomplish is, the protection of rights: Whatwe have to inquire is: The means by which protection may beafforded....That men are susceptible of happiness, only in pro-portion as rights are protected, is a proposition, which, takengenerally, it is unnecessary to prove. The importance of the in-quiry, therefore, is evident. 1

I INTRODUCTION

AWHO was established as a Soci-ety under the Rule of Law ex-

pressly for the welfare of its mem-bers and NOT established as a forayby Army Headquarters into Real Es-tate business in a thriving real es-tate market at this particular stage in

the countrys economy. If latter wasthe aim, the risks of the enterprisewere not appreciated fully. For allof us who are proud to swear to up-hold, protect and defend our consti-tution from its enemies, foreign anddomestic, we, the people will estab-lish a governance of, and by and forus, we the people. We, the people,

1Jurisprudence, Supplement to Encyclopedia Brittanica http://files.libertyfund.org/files/1760/0886_Bk.pdf

20 An Inquiry into the Rule of Law, AWHO & We the People

declare today that the most evidentof truths that all of us are createdequal is the star that guides us still;just as it guided our forebears.2 We,the people, still believe that enduringlife, liberty, pursuit of happiness andlasting peace do not require perpet-ual conflict and adversarial adjudica-tion between AWHO and its mem-bers. We, the people, still believethat our obligations as proud Indi-ans and more importantly, as proudveterans, are not just to ourselves,but to all posterity for creating a So-ciety of equals and not divide our-selves into Rulers (powerful, auto-cratic and ever ready to exploit thepowerless) and powerless Subjects.

Edmund Burke asks a keyquestion of political the-ory: quis custodiet ipsoscustodes? (how is oneto be defended against thevery guardians who havebeen appointed to guardus?) (1756) 3

We need to ask a similar ques-tion: How is one to be defendedagainst usurpation, if any, of powerof AWHO, a Society created for thewelfare of the very members whoserights are usurped?

Man, when perfected, isthe best of animals, butwhen separated from lawand justice, he is theworst of all. 4

II BOARD OFMANAGEMENT

AWHO

Board of Management (BoM) havefiduciary responsibilities as inde-pendent directors of AWHO totake action and question actions ofAWHO and BoM will be failingin their duty if they fail to ful-fill these fiduciary responsibilities to-wards member-allottees who havevery high stakes running to Rs Halfa Crores each these days.

This appeal is being addressedto the members of the Board ofManagement of AWHO and may bebrought to the attention of the In-dependent Directors and Members ofthe Board.

How Board of Management(BoM) of AWHO violated the Prop-erty rights guaranteed by the con-stitution and statutes of India andpassed Rules against the propertyrights of the Members of AWHO canbe seen below. Is it because theMembers were deprived of voting toapprove/pass these Rules governingthe Society? Would they have passedthese rules if they had the votingrights? The English radical individ-ualist philosopher Herbert Spencer(1820-1903) distinguished betweenrights properly so-called (such as therights to life, liberty and property)

2Barrack Obama, Presidential Inaugural Address 20133Quis custodiet ipsos custodes? is a Latin phrase traditionally attributed to the Roman

poet Juvenal from his Satires (Satire VI, lines 3478), which is literally translated as Whowill guard us from the guards themselves?

4 Aristotle, Politics (c340 BC)

III An Appeal to Board of Management 21

and political rights so-called (such asthe right to vote). In his mind thelatter were merely an appliance oran instrument for achieving theformer. While we are not certainthat if voting rights were given, theProperty Rights would have beenpreserved, but it is true that deny-ing of voting rights have ensured thedenial of property rights because theBoM are not there to preserve theproperty rights of members but werethere to usurp the property rights ofthe members and that too by a MD,AWHO, a Servant of the Society!

III AN APPEAL TOBOARD OF

MANAGEMENT

AWHO is established as a Society un-der the Rule of Law expressly for thewelfare of its members. AWHO fromits practices over number of yearsseem to follow the practice:

The illegal we do im-mediately. The uncon-stitutional takes a littlelonger. 5

You have fiduciary responsibil-ities as independent directors ofAWHO to take action and questionactions of AWHO and you will befailing in your duty if you fail tofulfill these fiduciary responsibilitiestowards member-allottees who have

very high stakes running to Rs Halfa Crores each these days.

This appeal is being addressedto the members of the Board ofManagement of AWHO and may bebrought to the attention of all the In-dependent Directors and Members ofthe Board.

IV STRICT INTER-PRETATION OF

POWERS

While meeting the Strict StatutoryRequirements, the following is re-quired to be used in interpretationof Constitution, statutes, MoA andoriginal rules as registered with Reg-istrar of Societies while Registeringthe Society:

A STRICTINTERPRETATION OFPOWERS

Whether Powers be are right is de-termined by the rule6:

1. Potestas stricte in-terpretatur. Apower is strictly in-terpreted.

2. In dubiis, non prae-sumitur pro poten-tia. In cases ofdoubt, the presump-tion is not in favorof a power.

5As quoted in Sunshine Week Document Friday! Kissinger Says, The illegal we doimmediately; the unconstitutional takes a little longer. But since the FOIA, Im afraidto say things like that. in Unredacted : The National Security Archive, unedited anduncensored


Right to the Pre-sumption of Non-authority:

1. The right to the pre-sumption of non-authority does notdepend on the sup-port of a court, butdefaults to a find-ing of non-authorityeven if a court de-clines to grant oyerand terminer. Allthat is necessary isto file or notice thecourt, notice the re-spondent and waitthe customary 3-20 days for the re-sponse. It is therespondent officialwho has the right tooyer and terminerin such a case, tosupport his claim ofauthority if he hassuch authority.

2. The un-enumeratedrights are not lim-ited to the right to apresumption of non-authority, which isthe basis for the pre-rogative writs, butalso include rightsto the positive dutyof officials to reportand disclose theiractivities, and notresist such disclo-sure without strong

justification. Theyinclude the deriva-tive rights to beassisted or facili-tated in prosecutingrights, or to havethe means to do so.

3. The natural rightsare those that ariseout of the laws ofnature, and includethe right to have of-ficial acts be logical,reasonable, and ra-tional. One may notbe required to do theimpossible.

4. Delegations ofpower are never ple-nary, but are furtherconstrained, beyondtheir subject matter,to what is reason-able and pursuantto a legitimate pub-lic purpose.

In summary:

1. There is a right not to besubjected to laws or officialacts that are unknown, un-knowable, incomprehensible, ortoo vague to allow for easyinterpretation, or to have therules governing ones behaviorchange adversely between thecontemplation of an action andthe enforcement of the law orapplication of the due process.

2. There is a right not only not

6Jon Roland, Presumption of Non authority and Unenumerated Rights http://constitution.org/9ll/schol/pnur.htm

V Liberty Rights and Claim Rights 23

to have ones rights legislativelyimpaired, disabled, or disfa-vored, but also not to havesome accorded special privi-leges or protections that favorthem over the rest of the peo-ple, in ways not essential tothe performance of public du-ties. This means official immu-nity for damages extends onlyto each act under color of lawfor which an official has author-ity and that is not an abuse ofdiscretion, not to everything anofficial might do while on thejob.

3. There is a right to have del-egated powers construed nar-rowly, and complementaryrights or immunities construedbroadly, and when in doubt,the decision must always bein favor of the claimed rightagainst an action of govern-ment over the claimed powerof an official to so act.

4. One can recognize in these pre-cepts the principles of naturalright and justice that most ofus take for granted, or that areembedded in our public pro-cesses, but which are not al-ways made explicit or stated aspositive rights.

B ONUS OF PROVINGAUTHORITY LIES WITHTHE USURPER

Can AWHO provide the legitimatepublic purpose served by these un-constitutional, illegal and unlawful

rules? The onus of proving thatMD, AWHO has the powers to passthese rules lies with the one who hasusurped the powers and the onus toprove that the usurper has no author-ity to pass these rules does not lie onthe Member.

V LIBERTY RIGHTSAND CLAIMRIGHTS

The Liberty Right to do welfare ac-tivity of any welfare society (includ-ing AWHO) comes with no duty onpart of the individuals or Govern-ment to protect it. Liberty Rightscan only survive if and only if (andit is a very BIG IF) it does nottrample over the individual rightsguaranteed under the constitutionand statutes. Where as the ClaimRights of the individual guaranteedunder the constitution and statutescomes with corresponding duty torespect and protect it by AWHO notto talk of the Government and theseare enforceable with the might of theState and Police, by force, if neces-sary. The difference lies in funda-mentals between liberty rights andclaim rights. Legal Philosophersand political scientists make a dis-tinction between claim rights and lib-erty rights.

A claim right is a rightwhich entails responsi-bilities, duties, or obli-gations on other par-ties regarding the right-holder. In contrast, a


liberty right is a rightwhich does not entailobligations on other par-ties, but rather only free-dom or permission forthe right-holder. Thedistinction between thesetwo senses of rightsoriginates in Americanjurist Wesley NewcombHohfelds analysis. 7

If you do NOT understand this,you do not understand competingclaim rights of citizen viz a vizliberty rights of welfare societiesto do continued welfare activities.The complexity of the idea is no ex-cuse for ignoring the difference andtaking liberties with claim rightsof mostly senior citizens which con-stitute the profile of AWHO Mem-bers because some of these are pro-tected as Fundamental Rights underthe constitution of India and pro-tected under art 14 of the constitu-tion of India as Equality before lawsEqual Protection of laws: The Stateshall not deny to any person equalitybefore the law or the equal protectionof the laws within the territory of In-dia. If you have problem with these,do not proceed before clarifying thefundamental concepts.

VI PROPERTY ASAN IMPORTANT

RIGHT

A LIFE, LIBERTY ANDPROPERTY

What were the three most impor-tant things man look up to from itsgovernment and society? What arethey?

life, liberty and property ap-pear three times in the US Consti-tution. These words mean:

Life: Needs no elabora-tion

Liberty: Needs no elabo-ration

Property: Executes onesexpression of liberty andinsures pursuit of oneslife. Never forget thatprivate property is notsimply a thing. It isthe relationship betweena person and a thing.This relationship allowsindividual citizens to useand enjoy private prop-erty. George Washing-ton described the essenceof that relationship whenhe said: Private prop-erty and freedom are in-separable. 8

7Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, As Applied in JudicialReasoning and Other Legal Essays. See

1. http://en.wikipedia.org/wiki/Claim_rights_and_liberty_rights

2. http://www.jstor.org/stable/785533

VI Property as an Important Right 25

B RULES OF AWHO

How BoM of AWHO violated theProperty rights guaranteed by theconstitution and statutes of Indiaand passed Rules against the prop-erty rights of the Members of AWHOcan be seen below.

C GOVERNANCE BYCONSENT ONLY

And even if this char-ity were not commandedby reason, such a strat-egy for gaining domin-ion would prove only thatthe foundation of govern-ment lies in consent....The hypothetical rise ofproperty and civilization,in the process that theonly legitimate govern-ments are those that havethe consent of the peo-ple. Therefore, any gov-ernment that rules with-out the consent of thepeople can, in theory, beoverthrown. 9

The consent of people who areruled are obtained either directly bythe participation in law making orthrough their representatives. InAWHO, both are non-existent bya clever manipulation/interpretationof rules. This devious trick played onthe members is obtained by the rul-ing that the members are NOT mem-bers but allottees with no right toparticipation in the democratic func-

tioning of the Society. This is ridicu-lously equivalent to, say a Mubarakdeclaring that they have democracywhere only the ruling junta are thecitizen with power to deliberate andvote for law making and the actualcitizen are just residents with noright to participation as citizen indemocratic governance.

How the state (or thepredatory class) forcesthe productive classesinto a condition of un-certainty, insecurity, anddependence: When per-son and property are toa certain degree insecure,all the possessions of theweak are at the mercy ofthe strong. No one cankeep what he has pro-duced, unless he is morecapable of defending it,than others who give nopart of their time andexertions to useful in-dustry are of taking itfrom him. The productiveclasses, therefore, whenthe insecurity surpassesa certain point, being un-equal to their own protec-tion against the predatorypopulation, are obliged toplace themselves individ-ually in a state of depen-dence on some memberof the predatory class,that it may be his inter-est to shield them fromall depredation except hisown. In this manner, in

9John Locke, Two Treatises of Government 1689


the Middle Ages, allodialproperty generally becamefeudal, and numbers ofthe poorer freemen vol-untarily made themselvesand their posterity serfsof some military lord.- 10

D AWHO CONCENTRATIONOF POWER

When the legislative andexecutive powers areunited in the same per-son, or in the same bodyof magistrates, there canbe no liberty; because ap-prehensions may arise,lest the same monarchor senate should enacttyrannical laws, to exe-cute them in a tyrannicalmanner.- There would bean end of every thing,were the same man, orthe same body, whetherof the nobles or of thepeople, to exercise thosethree powers, that of en-acting laws, that of exe-cuting the public resolu-tions, and of trying thecauses of individuals. 11

That is exactly what has hap-pened with AWHO. All power is con-centrated in one person: The Adju-tant General and Chairman,AWHOand more ridiculously, that BoM areboth the rule makers and the citi-zens of the society and the rest of

the highest stake holders are just theallottees. If the BoM are the onlymembers, why have a Board of Man-agement? When the Society is to bedisbanded, BoM will resolve as man-agement and then approve with 3/5majority as members of the Society!This is ridiculous indeed and is de-rived by ignoring the Rules of Inter-pretation of Powers detailed above.

VII AWHO RULESTHAT VIOLATE

RULES OF LAW

Some AWHO rules that violate prop-erty rights of the Members guaran-teed by the constitution and statutesare:

1. Rule 80 No sale/transfer/assigningof a dwelling unit to a thirdparty shall be effected by an al-lottee.. with out prior permis-sion in writing of the Organi-sation, AWHO (the Builder)

2. Rule 81: .. The Organisa-tion (the builder) reserves theright in its absolute discretionto refuse permission to sell thedwelling unit.

3. Rule 82: .. the Organisation(the builder) reserves the rightin absolute discretion to cancelthe allotment of such dwellingunit to the original allottee andto take over possession of thedwelling unit.

10John Stuart Mill in The Principles of Political Economy (1848)11Montesquieu (1689-1755) The Spirit of the Laws(1748)

VII AWHO Rules that violate Rules of Law 27

4. Rule 83.. the Organisation (thebuilder and NOT the Own-ers Association) will charge Rs10000/= from the seller andthe buyer as transfer fee.

5. Rule 84: No allottee shallmortgage/pawn the dwellingunit for the purpose of secur-ing any loan at any stage, ex-cept with the permission of theMD, AWHO.

6. Rule 100. MD, AWHO (theBuilder) has final authority toaccept/reject the applicationand his decision shall be con-clusive and final.

7. Rule 101. MD AWHO (theBuilder) has the final word oninterpretation of the Rules andhis decision is binding and notopen to appeal/representation.

8. Rule 102. The board of man-agement/ executive Committeeof AWHO (the Builder) has theright to alter, add or delete anyrules and it shall be binding.

The above rules are fit only for anempire and not for a Society boundby law in a democratic country likeours.

An empire is a despotism,and an emperor a despot,bound by no law or limi-tation but his own will; itis a stretch of tyranny be-yond absolute monarchy.

Ours is a democratic re-public, a government oflaws, and not of men.Even the British consti-tution is nothing morenor less than a republic,in which the king is thefirst magistrate. This of-fice being hereditary, andbeing possessed of suchample and splendid pre-rogatives, is no objectionto the governments be-ing a republic, as longas it is bound by fixedlaws, which the peoplehave a voice in making,and a right to protect anddefend and if necessary,change. 12

The AWHO Rules violate eventhe rights we, the people won fromthe King Emperor of England as aresult of Magna Carta in 1213 AD:

1. No man shall be disseised, thatis, put out of seison, or dispos-sessed of his free-hold (that is)lands, or livelihood, or of hisliberties, or free customes, thatis, of such franchises, and free-domes, and free customes, asbelong to him by his free birth-right, unlesse it be by the law-full judgement, that is, verdictof his equals (that is, of menof his own condition) or by theLaw of the Land (that is, tospeak it once for all) by the duecourse, and processe of Law.

12Leveller Richard Overton, An arrow against all tyrants12 October 1646 http://www.constitution.org/lev/eng_lev_05.htm


2. We shall deny to no man Jus-tice or Right.

3. We shall defer to no man Jus-tice or Right.

A VOX POPULI, VOX DEI

Even as we pride ourselves on hav-ing a democracy, itself normativelydefined as government of the peo-ple, by the people and for the people,in Abraham Lincolns famous phrase,it has enhanced the definition, bysharpening the distinction betweenwhat is public from what is private.This is against the background thatin a democracy, politicians becomepeoples representatives and bureau-crats as public servants precisely be-cause these functions are deemed tobe conducive to the common good.It is tragic that in such a society, wepermit the servant of Society to as-sume powers of the King Emperor.MD AWHO is not the King but aServant of the Society.

The Christian kings ofEurope once believed theywere answerable to noone except God. Thisidea became known as theDivine Right of Kings.The divine right of kingsbegan to be questioned,and its hold on the pub-lic mind was graduallyweakened, until, finally,it was repudiated alto-

gether, and the oppositeprinciple substituted, thatall governmental poweris derived from the peo-ple; and instead of theking being the vicegerentof God, and the peoplesubjects of the king, theking and other officersof the government werethe servants of the peo-ple, and the people be-came the real sovereignthrough the officials. Voxpopuli, vox Dei, becamethe popular answer to allcomplaints of the individ-ual against the encroach-ments of popular govern-ment upon his rights andhis liberty. 13

B LOCALSELF-GOVERNMENTSRIGHTS

The above quoted Rules violatenot only the constitution of Indiaand Statutes but also local self-governments rights of the AWHOColony residents:

1. The State shall guarantee, toTHE PEOPLE, local govern-ments of the democratic repub-lic form, and that they shallbe confined to the rule of law.These regimes shall be basedon rights.

13The American legal scholar Christopher Tiedeman (1857-1903): these pages are af-fectionately inscribed to my wife, HELEN SEYMOUR TIEDEMAN, whose scrupulousregard for the rights of others, and tender sympathy for their weaknesses, have been myguide and inspiration.

VIII Response to Democratic Governance 29

2. The State shall guarantee theprotection of individual rightsthat no majority of even the co-operatives shall be able to takeaway.

3. The legislative, executive, andjudiciary powers shall be seg-regated into different depart-ments and a system of checksand balances shall be infusedinto the structure, that are suf-ficient to ensure that no branchcan become stronger than theothers.

4. The State shall guarantee thesupremacy of the interests ofTHE PEOPLE that live or willlive in housing developments,over the interests of those thatplan, develop, build or sell ser-vices to them.(If as a homeowner, I can not elect the theboard of management/ execu-tive Committee of the organi-sation (AWHO), then that or-ganisation has no right to makelaws that govern my life and en-joyment of the property.)

5. The builder/developer shouldvanish from the scene oncethe property is registered asfreehold and the owners takecharge the governance in ademocratic way. Any thingmore that this is defective inlaw and hence not enforceable.

VIII RESPONSE TODEMOCRATICGOVERNANCE

The attitude of AWHO towardsdemocratic governance of a Societyregistered under Societies Registra-tion Act 1860 seems clear from theactions by them so far.

We have seen already,that if one man has powerover others placed in hishands, he will make useof it for an evil purpose;for the purpose of ren-dering those other menthe abject instruments ofhis will. If we, then,suppose, that one manhas the power of choosingthe Representatives of thepeople, it follows, that hewill choose men, who willuse their power as Repre-sentatives for the promo-tion of his sinister inter-est.

We have likewise seen,that when a few men havepower given them overothers, they will makeuse of it exactly for thesame ends, and to thesame extent, as the oneman. It equally fol-lows, that, if a smallnumber of men have thechoice of the Represen-tatives, such Representa-tives will be chosen aswill promote the interestsof that small number, by


reducing, if possible, therest of the community tobe the abject and helplessslaves of their will. 14

So what do you expect Chairman,AWHO to do for the Members of theSociety? Nothing unexpected:

1. Defined that members of theBoM will be ex-officio succes-sion only.

2. There will be no General Bodymeeting

3. In fact there will be no generalbody as the the Members areonly allottees and not Mem-bers.

4. Members of the BoM will bethe only Members of the Soci-ety. That way, democratic ap-proval of the Members can bedone away with.

5. Where General Body approvalis required for a decision, BoMwill propose the measure firstand then later vote as GeneralBody.

6. All decisions taken and rulesmade by BoM will be forced onthe Member Allottees by coer-cion and not by Consent of theGoverned

That is the perfect rape of democracyin the society that should function asrequired under the statutes.

I have always thoughtthe actions of men thebest interpreters of theirthoughts. 15

Peoples protector who,once having tasted blood,turns into a wolf and atyrant. 16

To every individual innature is given an in-dividual property by na-ture not to be invaded orusurped by any. For ev-ery one, as he is himself,so he has a self-propriety,else could he not be him-self; and of this no secondmay presume to depriveany of without manifestviolation and affront tothe very principles of na-ture and of the rules ofequity and justice betweenman and man. Mineand thine cannot be, ex-cept this be. No man haspower over my rights andliberties, and I over nomans. I may be but anindividual, enjoy my selfand my self-propriety andmay right myself no morethan my self, or presumeany further; if I do, I aman encroacher and an in-vader upon another mans

14Radical James Mill (1773-1836) on the sinister interests of those who wield power(1825) ), http://goo.gl/DneHs

15John Locke, An Essay Concerning Human Understanding, Volume 1 MDCXC, Basedon the 2nd Edition, Books 1 and 2

16Plato In Book VIII of The Republic (340s BC)


right to which I have noright 17

.. Nature and laws wouldbe in an ill case, if slav-ery should find what tosay for itself, and lib-erty be mute: and iftyrants should find mento plead for them, andthey that can master andvanquish tyrants, shouldnot be able to find advo-cates. And it were a de-plorable thing indeed, ifthe reason mankind is en-dued withal, and which isthe gift of God, shouldnot furnish more argu-ments for mens preser-vation, for their deliver-ance, and, as much asthe nature of the thingwill bear, for makingthem equal to one an-other, than for their op-pression, and for their ut-ter ruin under the domi-neering power of one sin-gle person. Let me there-fore enter upon this noblecause with a cheerfulness,grounded upon this as-surance, that my adver-sarys cause is maintainedby nothing but fraud, fal-lacy, ignorance, and bar-

barity; whereas mine haslight, truth, reason, thepractice and the learningof the best ages of theworld, of its side. 18

When I look around mein society, and see thenations of the earth mostcelebrated for the rigourand despotism of theirgovernment, groaningunder the most grievouscalamities, while oursfrom her freedom hashad safety ensured toher; can these calami-ties be possibly tracedto any other cause thanthis despotism, which hasdestroyed every manlyfeeling Can the rise ofdespotism in any societybe ever so well resisted asat first.The first step ittakes gives it additionalpower to take a second.It goes on thus increas-ing, till mens opinionsare bound up in its sanc-tity, and then it is irre-sistible. 19

Implicit submission toany leader, or the un-controlled exercise of anypower, even when it is

17Leveller Richard Overton, An arrow against all tyrants12 October 1646 http://www.constitution.org/lev/eng_lev_05.htm

18-John Milton (1608 1674) on the ease with which tyrants find their defenders (1651)http://files.libertyfund.org/pll/quotes/291.html

19An Essay on Naval Discipline (1813) the ex-naval officer Thomas Hodgskin (1787-1869) argues that the brutal behavior of the officers has a corrupting influence whichleads to outright despotism http://files.libertyfund.org/pll/quotes/173.html


intended to operate forthe good of mankind, mayfrequently end in the sub-version of legal establish-ments. This fatal revolu-tion, by whatever meansit is accomplished, termi-nates in military govern-ment; and this, thoughthe simplest of all govern-ments, is rendered com-plete by degrees. 20

A Violation of Rule of Law

The existing rules of AWHO whichhave come to the present stage of ille-gality and robs the Member-allotteeof their financial and property rightsand interests protected under theConstitution of India because of

1. Non-application of mind by theindependent Directors/ Mem-bers of the Board of Manage-ment (BoM). the BoM havingonly special interests of COASand NOT the highest stake-holder, Member-allottee whoseindividual stakes these daysrun to Rs Half a crore and theseinvestments are made purelybased on trust and trust alonein the Society.

2. By these fiduciary duties, youare required to have undi-vided loyalty to the Members-Allottees of AWHO who havereposed their complete trust onyou.

3. No contract exists and no con-tract is possible between Soci-ety and its own members andmore importantly, there can beno law that protect the coupleof public servants to engagein real estate business if you areengaged in selling Real Estateto people outside of the Society.

4. The biggest stake-holders in-terests are not being repre-sented in the decision makingprocess even though these de-cisions impact their and theirfamily members and heirs andsuccessors property rights forhis life time and beyond!

5. Consent of the Governed (Member-Allottees) being non-existent due to non-compliancewith statutes protecting suchconsent.

6. lastly it violates even Article21 The Universal Declarationof Human Rights. Whereas itis essential, if man is not tobe compelled to have recourse,as a last resort, to rebellionagainst tyranny and oppres-sion, that human rights shouldbe protected by the rule of law.Will of the people shall be thebasis of any authorityhttp://www.un.org/en/documents/

udhr/index.shtml

7. If we the people do not haveauthority to approve and if nec-essary to change the rules, thenConsent of the governed is

20Adam Ferguson, SECTION VI. Of the Progress and Termination of Despotism inPhilosophical Historyhttp://files.libertyfund.org/pll/quotes/69.html


absent and hence it is a viola-tion of Universal Declaration ofHuman Rights for which Indiais a signatory.

If this is allowed to continue, itwill be failure of fiduciary duties bythe members of BoM towards theMember-allottees and a failure offiduciary duties is a Criminal Breachof Trust.

B Prostitution of Rule ofLaw

1. Rules of AWHO are so cleverlyconstrued by AWHO lawyers(and innocently or foolishly orperhaps maliciously) approvedby the Board of Managementto deny the Property Rights ofindividuals who procure theirhouses from AWHO.

2. If AWHO is a Society and weare members of the Society, noRules can be formulated without the consent of the Mem-bers.

3. For arguments sake, if we as-sume that we are NOT mem-bers of a Society but we arejust customers of AWHO , adeveloper/builder from whomwe are buying the houses, thenAWHO do NOT have power tomake rules which it can forceon the buyers, their family,their heirs and successors andrule over the buyers for the restof their lives and beyond.

4. MD, AWHO is NOT anAlmighty King Emperor (

even King Emperor of Eng-land lost absolute power tomake law/rules in 1215 ADwith magna carta, and comingto modern times, even Presi-dent of USA, PM of Englandor President/PM of India doNOT have powers to makelaws/rules with out consent ofwe the people) that he canmake rules in his sole discretionand no one can question him.

5. If we are members of theSociety, MD AWHO is justa servant of the Societyand if we are not the mem-bers of the Society, then, heis just an employee of thebuilder/developer.

Does it require great legal acu-men to understand this basic prin-ciple of law, equity and governance?Do you have problem with this? Ifyes, there is a big problem.

C AWHO Rules: StrictStatutory Criteria

The Rules have to meet the followingstrict statutory requirements:

1. Rules should be consistent withConstitution of India and NOTviolative of it.

2. Compliance with statutes notonly Registration of Society1860 under which AWHO isregistered but also all otherstatutes dealing with consumerprotection and the case laws


protecting the real estate con-sumer against the builder anddeveloper.

3. The compliance status of theAWHO as a Registered Societyhas to be maintained at 100%or else the AWHO has no lo-cus standi as a Society and canonly revert to Sole ProprietorReal Estate Business engagedby couple of Public Servantsas defined under IPC ( Section21 in The Indian Penal Code,1860)

4. Under the Prevention of Cor-ruption Act 1988 Section 11, itis an offence for a public ser-vant to accept or agree to ac-cept or to attempt to obtain forhimself or for any other per-son any valuable thing with-out consideration or for a con-sideration which he knows tobe inadequate from any per-son whom he knows to havebeen or to be likely to be con-cerned in any proceeding orbusiness transacted or about tobe transacted by such publicservant or from any person, heknows to be interested in orrelated to the person so con-cerned. No Profit No Losscan not be left to trust butshould be verifiable by full dis-closure.

5. The process for passing of thenew Rules should satisfy thestatutory requirements of vot-ing by members and the orig-inal Rules submitted with theMoA of the Society. If not, any

changes made to the originalrules is illegal and invalid andnull and void.

6. Any rule not meeting the abovecriteria are illegal/ invalid/ andin the case of violation of theconstitutional protections, ul-tra vires.

D Core fiduciary duties

The BoM have fiduciary duties to-wards the Member Allottees whohave extremely high stakes ( run-ning to Rs half a crore) in the So-ciety while Members of BoM have nostakes at all except loyalties to au-thorities outside of the Society whichitself is a violation of fiduciary dutiesof absolute and undivided loyalty tobeneficiaries. Core Fiduciary dutiesitself impose on the trustees the fol-lowing:

1. Core fiduciary duties of care

2. Absolute and undivided loyaltyto beneficiaries

3. Prudence in dealing with trustfunds

4. Disclose all material informa-tion ( Sunlight is said to bethe best of disinfectants; elec-tric light the most efficient po-liceman. OTHER PEOPLESMONEY - CHAPTER V The Louis D. Brandeis ) whenseeking trust outgoes and in-come and their nature and dis-posal

5. Conflicts of interest

IX Wherever law ends, tyranny begins 35

6. Fair Process (approval by non-interested directors) or elseburden on directors to show en-tire fairness.

7. No co-mingling of funds

IX Wherever law ends,tyranny begins

Where-ever law ends,tyranny begins, if the lawbe transgressed to an-others harm; and whoso-ever in authority exceedsthe power given him bythe law, and makes useof the force he has underhis command, to com-pass that upon the sub-ject, which the law al-lows not, ceases in thatto be a magistrate; and,acting without author-ity, may be opposed, asany other man, who byforce invades the rightof another. This is ac-knowledged in subordi-nate magistrates. He thathath authority to seizemy person in the street,may be opposed as a thiefand a robber, if he en-deavors to break into myhouse to execute a writ,notwithstanding that Iknow he has such a war-rant, and such a legal au-thority, as will empower

him to arrest me abroad.And why this should nothold in the highest, aswell as in the most infe-rior magistrate, I wouldgladly be informed. 21

For AWHO, law has ended thevery moment it started a real estatebusiness under the garb of a Societyand the Real Estate business doesnot fall under Society and that toounder the non-democratic and tyran-nical rule of a self-appointed Chair-man and BoM which does not meetthe requirements of functioning ofthe Society on democratic lines un-der the Registration of Society Act1860.

The rot has deep roots and arenot just cosmetic.

But the great securityagainst a gradual con-centration of the severalpowers in the same de-partment, consists in giv-ing to those who admin-ister each department,the necessary constitu-tional means, and per-sonal motives, to resistencroachments of the oth-ers Ambition must bemade to counteract am-bition. The interest ofthe man, must be con-nected with the constitu-tional rights of the place.It may be a reflection onhuman nature, that such

21John Lock, Section 202 of Chap. XVIII Of Tyranny in Book II of the Two Treatisesof Government that even magistrates must abide by the law: http://files.libertyfund.org/pll/quotes/115.html


devices should be neces-sary to control the abusesof government. ... 22

Remember always and every timewhat history teaches: James Madi-son on the need for the separation ofpowers because men are not angels,Federalist 51 (1788)

X AWHO Rules & Eq-uity, Justice & Fidu-ciary Duties

Equity refuses to con-fine within the boundsof classified transactionsits precept of a loyaltythat is undivided and un-selfish. Certain at leastit is that a man obtain-ing his locus standi, andhis opportunity for mak-ing such arrangements,by the position he oc-cupies as a partner, isbound by his obligationto his copartners in suchdealings not to separatehis interest from theirs,but, if he acquires anybenefit, to communicateit to them. Certain itis also that there may beno abuse of special oppor-tunities growing out of aspecial trust as manageror agent..... A trustee isheld to something stricter

than the morals of themarket place. Not hon-esty alone, but the punc-tilio of an honor themost sensitive, is thenthe standard of behav-ior. As to this therehas developed a traditionthat is unbending andinveterate. Uncompro-mising rigidity has beenthe attitude of courtsof equity when petitionedto undermine the ruleof undivided loyalty bythe disintegrating ero-sion of particular excep-tions. Only thus hasthe level of conduct forfiduciaries been kept ata level higher than thattrodden by the crowd. Itwill not consciously belowered by any judgmentof this court. 23

A Principles of NaturalRight and Justice

1. There is a right not to have of-ficials take actions, under colorof delegated authority, thatmay be convenient or that maytend to achieve the outcomesought by the exercise of a del-egated authority, but only tomake the reasonable effort sucha delegation authorizes, whichneed not be sufficient to attain

22James Madison-Federalist Paper no. 51 James Madison (1751-1836): http://www.constitution.org/fed/federa51.htm

23Cardoza Ch. J. Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928): http://www.courts.state.ny.us/reporter/archives/meinhard_salmon.htm

XI Who is the enemy of Society? 37

the ends.

2. There is a right to have del-egated powers construed nar-rowly, and complementaryrights or immunities construedbroadly, and when in doubt,the decision must always bein favor of the claimed rightagainst an action of authorityover the claimed power of anofficial to so act.

3. One can recognize in these pre-cepts the principles of naturalright and justice that most ofus take for granted, or that areembedded in our public pro-cesses, but which are not al-ways made explicit or stated aspositive rights.

XI Who is the enemy ofSociety?

1. The Board of Managementwho retains absolute power andcontrol if necessary even byfailing the commands of ruleof law and denying even Mem-bership privileges and the pro-tection of Fundamental Rights:Equality before law and EqualProtection of Laws to thestake-holders. 24

2. Or, those who assert their ownFundamental Rights and EqualProtection of Laws

You be the judge.

24http://www.pmindiaun.org/data/UPRII-AnnexureII.pdf

Chapter 3

Option Letter for SpecificDwelling Unit -BANGALORE VASANTHVIHAR PROJECT

From CPC Nath,

C 679 Sarita VIhar,

New Delhi 110076

[email protected]

To MD AWHO,

South Hutments,

Kashmir House,

Rajaji Marg,

New Delhi - 110011

Fax : 23010599

E-mail : [email protected]

OPTION LETTER FOR SPE-CIFIC DWELLING UNIT

Sir,

1. It is brought to your noticethat the AWHO vide their undertak-ing to the lender had promised on6/12/2004:

It is certified that the

AWHO is controlled bya Board of Managementheaded by Adjutant Gen-eral as ex-officio Chair-man. All other members ofthe Board are serving se-nior officers of the Army,the MD of AWHO, thecivilian officers of Ministryof Defense(Finance). Itis certified that the landis totally unencumbered atpresent and in future noaction will be taken byAWHO which will make itencumbered

These assurances and the trustreposed on the builder ( AWHO) asthe Trustee that I and my lenderbank relied heavily in our consider-ation without personally inspectingthe local body clearances and per-mits etc. and the transfer deed doc-

40Option Letter for Specific Dwelling Unit - BANGALORE

VASANTH VIHAR PROJECT

uments of the land held in trust onbehalf of the veteran (the beneficiary) that I and my lenders relied heavilyand entrusted 95% of the enhancedcost of Rs 48.5 Lakhs without visitingthe site even once or examining anypapers/documents for its authentic-ity.

2. Part of the land was acquiredfor the highway passing through thecolony and thus the allottees com-mon area stands reduced to the ex-tent. The compensation receivedwas not distributed to the allotteesthough the builder ( AWHO) wasonly holding it in trust on behalf ofthe beneficiary (the allottees).

3. With the builder ( AWHO) astrustee, I was fully confident that myinterest as beneficiary would be safe-guarded with full fiduciary responsi-bilities.

4. With the above as back-ground, the latest option letter cameas a bombshell exploding my confi-dence in the exercise of the fiduciaryresponsibilities of the trustee.

5. Please read my comments oneach aspect suitably numbered foreasy reference. Information is soughtto enable to decide commitment toinvest up to Rs 38 Lakh in addition(almost 100% additional investment)is given in the form of questions foryou to respond well on time so thatI can give options as desired by you.

6. Your Reference Para: Theproject is nearing completion and theDwelling Units (DUs) are likely tobe ready for handing over with effectfrom 15 Oct 2012.

1. Comments/Observation: We

are excited at the fact thatthe project is nearing comple-tion albeit after a delay of 5years.(2007)

2. Information Sought:

(a) How much %age of in-vestment on common areaand facilities/ infrastruc-ture has been completed?

(b) What items of common fa-cilities and infrastructurehave been completed andwhat items are left?

(c) What are the target datesfor completion?

7. Your Reference Para: Thesizes of the plots, in general, forDSUs in approx 400 Sq yds plotshave been considered as 3572 sq ftand in case of DSUs in 300 Sq ydsplots the same have been consideredas 2652 sq ft to accommodate Maxi-mum number of plots on the ground.

1. Comments/Observation

(a) Where the options are400Sq yrd ( 3600 sq ft)and 300 sq yrd ( 2700 sqft), then rounding it off to3572 sq ft instead of 3600Sq ft and 2652 sq ft in-stead of 2700 sq ft soundtotally irrational especiallywhen the reason assignedis to accommodate maxi-mum number of plots. Ifthat was the rationale, howcome you have recklesslyassigned more excess landgoing up to 3328 sq ft toplots of size both 400Sq yrdand 300 sq yrd.?

41

(b) By bringing in 3572 Sq ftand 2652 sq ft, you havemade it possible for pric-ing the excess area allo-cated higher than had itbeen 400sq yrd and 300 sqyrd. This resulted in aconflict of interest and thusfailing in your fiduciary du-ties as a trustee.

(c) These notional figures areimportant because you arecharging for land in excessof these figures!

(d) Trustee is bound by a dutyof loyalty and thus avoidself dealing by fully alignedand being in any position inwhich the Trustee has inter-est to serve other than thatof the trust is violation offiduciary durty a

2. Information Sought:

(a) What exactly is your logicfor this notional figure3572/2652 sq ft which isneither related to 400 SqYrds/300 Sq Yrds nor torounding off of 3600/2700sq ft as these figures arealready rounded and moreimportantly, nor to the ac-tual size of the lots as itemerged after division intolots of m