Meaning and implication of lood relationship

5 years ago

Prestige St. John’s Wood Apartment Owners Association is a resident welfare association formed in March 2007 to the manage the affairs the 483 apartments in the complex. The bye laws of the Association have been registered with the sub-registrar’s office in Bangalore originally on 2nd March 2007 and thereafter again on 24th April 2008 and lastly on 4th February 2016 arising out of certain amendments to the said bye laws.

Since inception of the Association in 2007, the Board of Members were elected out of the Owners/Joint Owners and or spouse of the owner (in case the apartment is in the name of the husband or wife only) for the smooth working of the Association and considering the requirement of members who could devote time for the complex up keep.

However, in the recently held 12th AGM of the complex on 22nd July 2018, one member has raised a dispute challenging the acceptance of two nominations filed by the spouses of two single owners. Of-course both the nominations are supported by the Power of Attorney from their husbands and are also living in the complex. The issue raised is they not being “blood relatives” of the owner are ineligible to be on the BOM in terms of Chapter 1 Para 3 Definitions (d) of the bye laws.

The said para 3(d) as well para (n) (o) and (p) which are relevant here are quoted below.

d) “BOARD OF MEMBERS” means an elected Board of Members, which may also be called Management Committee, (hereinafter referred to as “BOARD”) and shall consist of not more than 18 persons, 3 from each block, (for the purposes hereof Hazel and Olive Blocks are considered as one block) all of whom shall be registered Owners of Apartments, wholly resident in the Building, and elected at a meeting of the Owners by a majority of those who are present either in person, or by proxy, and voting. In the event no nominations or insufficient nominations are received from any particular block/s, such position/s can be filled up by electing residents from under-represented blocks only, by calling for nominations on the floor of the meeting of Owners held for such election, from persons who are Owner’s blood relatives, wholly resident in the Building, and having respective owner’s Power of Attorney to serve in the Board.

n) “MEMBER” means and Owner, as aforesaid. Such an owner shall have full voting rights as provided in Clause 10 of these bye-laws.

o) NEW MEMBER means an Owner who has purchased apartment(s) from the first Owner after 31/12/2007, as recorded in the sale deed.

p) “OWNER” means a person, persons, HUF, Firm, Association of Persons, Trust, Company, owning an Apartment in the Building and an undivided interest in the common areas and facilities, and who has submitted his/her/their apartment to the provisions of the Karnataka Apartment Ownership Act 1972.

We had sought advice from our counsel in Bangalore who has opined as under:
“Further to our telephonic discussion earlier today, we understand you have the following queries in relation to Clause 3(d) of the Bye Laws of the Prestige St. John’s Wood Apartment Owners’ Association (“Bye-Laws”).
1. As per Clause 3(d) of the Bye Laws, would a spouse be considered a ‘blood relative’?
2. Would a previous appointment of a spouse as a member be considered a precedent?
Please see below our response to your queries:
1. As per Clause 3(d) of the Bye Laws, would a spouse be considered a “blood relative”?
Response: A reading of Clause 3(d) of the Bye Laws indicates that the intention behind the words “blood relative” is that a family member could become a member. Since the phrase ‘blood relative’ could include persons such as brother, sister, aunt, uncle, grandmother, grandfather etc. of the owner, it necessarily implies that the spouse who is the closest family member would need to be included under such a category. Therefore, in our opinion, the spouse by necessary implication should be considered a “blood relative”.
2. Would a previous appointment of a spouse as a member be considered a precedent?
Response: As stated above, as a spouse can be considered a family member/blood relative, any prior appointments of a spouse as a member would not have been a violation. Therefore, this question of treating the same as a precedent does not arise.
The member who had challenged our acceptance of the two nominations has reportedly got another opinion contray to the above.

Your guidance please.