Synopsis
RWAs while exercising its powers cannot infringe upon the Right to Free Speech or Right to Privacy of residents, whether they are members of the RWA or not. It cannot interfere with the ownership rights of residents.
An RWA can become a nuisance to residents when the Governing Body, or one of its members, interferes with the rights of others by causing damage, inconvenience, or annoyance.
A Resident Welfare Association (RWA) is a voluntary association of member residents. Its objective is to look after the welfare of its members, in a manner that supplements the responsibilities of municipal and regulatory authorities, by properly maintaining common facilities and providing security to residents on a day-to-day basis.
But what if your RWA turns out to be a nuisance and causes you trouble? Before we examine how to deal with such a situation, let's take a look at the power of the RWA.
How an RWA is formed
An RWA is usually registered as a voluntary society of persons under the Societies Registration Act, 1860. Once registered, the RWA exists as a separate legal entity which can sue, or be sued through its office-bearers or persons appointed for such purpose.
The Governing Body of RWA is elected to office as per the bye-laws in its Memorandum of Association. The bye-laws also state how it conducts itself with other members of the RWA and with third parties. The powers of the Governing Body are to be exercised in a responsible manner without fear or favor.
The RWA while exercising its powers cannot infringe upon the Right to Free Speech or Right to Privacy of residents, whether they are members of the RWA or not. It cannot interfere with the ownership rights of residents.
Misfeasance by RWA
An RWA can become a nuisance to residents when the Governing Body, or one of its members, interferes with the rights of others by causing damage, inconvenience, or annoyance. Like for example, preventing access to persons known to you, or invading the privacy of your guest by selectively asking too many personal details.
In extreme cases of misfeasance, the Governing Body could also be corrupt and engage in extortion, bribery and theft of funds. Like for example, overcharging residents for services like repairs to illegally profit from the service provider. Sometimes this comes with an implicit threat that nonpayment could cause damage or inconvenience to the resident.
Remedies available to a resident
1) Remedy of Abatement before the Registrar of Societies is applied in contracts and debts as a means to reduce the sum payable to the RWA if the resident is overcharged or wrongly charged for services. When this remedy is invoked to deal with nuisance by RWA or any of its members, it is for removing the underlying cause.
The complaint can be made before the Registrar of Societies. If needed, amendments to the Memorandum of Association and Rules of the RWA are allowed under sections 12 & 12A of the Societies Registration Act,1860.
Remember, a resident may not refuse to pay if s/he has already enjoyed the services, or has delayed filing the complaint before the Registrar of Societies.
However, the resident is free to resign from membership on the grounds that the subscription fees are prohibitive or not justified against the costs incurred by the RWA, citing audit reports filed periodically before the Registrar of Societies. Additionally, a complaint to this effect can also be filed with the Sub Divisional Magistrate [SDM] of the area.
2) Remedy of Injunction under Section 9 of the Civil Procedure Code, 1908 is an order or decree requiring the RWA to refrain from committing a specific act, either in process or threatened, that is injurious to the resident.
An injunction is granted by a civil court on grounds that the mentioned action causes, or will cause, irreparable damage to the resident. Injunctions are generally preventive, restraining, or prohibitory in nature. It can also be for affirmative action on the part of RWA, in which case it is called a mandatory injunction. For instance, to destroy a wall that encroaches on the property of the resident.
A Temporary Injunction may be granted under Order 39 of CPC, 1908. A Permanent Injunction may be granted, after hearing both parties, under sections 38-42 of the Specific Relief Act, 1963. For both, a lawsuit can be filed against the President or General Secretary of the RWA, or as per any specific rules of the state government under Societies Registration Act, 1860, read with Code of Civil Procedure,1908.
3) Police Complaints can be filed, in extreme cases, if the Governing Body has become financially corrupt and is engaged in extortion, bribery or theft of funds. An FIR under section 154 of Code of Criminal Procedure,1973 can be filed before the SHO of the local police station Criminal charges can be instituted under sections 383, 171B and 378 of the IPC, based on evidence of transfer of funds by the Treasurer, General Secretary or President of the RWA, and an independent audit report of the books of accounts and bank account maintained in a scheduled bank. Based on these reports, the RWA can be dissolved under sections 13 & 14 of the Societies Registration Act, 1860.
(The writers are Advocates)
No comments:
Post a Comment