An Inquiry into Some Fundamentals of AWHO

Chandra Nath September 10, 2013

nath@computer.org He is an Independent researcher engaged in research in information security, privacy, law & justice.

Contents
I Introduction 3 4 5 5 6 6 II AWHO and Welfare Activities III No Prot No Loss IV AWHO is a Registered Society V AWHO builds houses on a self-nancing Basis VI Conclusions

AN INQUIRY INTO SOME FUNDAMENTALS OF AWHO

Real Courage is found, not in the willingness to risk death, but in the willingness to stand, alone if necessary, against the ignorant and disapproving herd. Jon Roland, 1976 What we desire to accomplish is, the protection of rights: What we have to inquire is: The means by which protection may be afforded....That men are susceptible of happiness, only in proportion as rights are protected, is a proposition, which, taken generally, it is unnecessary to prove. The importance of the inquiry, therefore, is evident. 1

INTRODUCTION

WHO was established as a Society under the Rule of Law expressly for the welfare of its members and NOT established as a foray by Army Headquarters into Real Estate business in a thriving real estate market at this particular stage in the countrys economy. We, the people, still believe that our obligations as proud Indians and more importantly, as proud veterans, are not just to ourselves, but to all posterity for creating a Society of equals and not divide ourselves into Rulers (powerful, autocratic and ever ready to exploit the powerless) and powerless Subjects.

Edmund Burke asks a key question of political theory: quis custodiet ipsos custodes? (how is one to be defended against the very guardians who have been appointed to guard us?) (1756) 2 Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all. 3
Jurisprudence, Supplement to Encyclopaedia Brittanica http://files. libertyfund.org/files/1760/0886_Bk.pdf 2 Quis 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 Who will guard us from the guards themselves? 3 Aristotle, Politics (c340 BC)
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II

AWHO AND WELFARE ACTIVITIES

This does not provide any special powers, rights, privileges or immunities to AWHO. This is a Liberty right and NOT a Claim Right ala Hohfeld.4 One of the subjects of traditional jurisprudence is the analysis of the most general legal concepts, for example rights and duties. Contemporary philosophers of law similarly ask, What do we mean by a right? This is not a merely academic question, for it arises in legal practice. Wesley Newcomb Hohfeld examined the writings of lawyers and judges and found that they used a right indiscriminately to express four very dierent legal concepts, that of a liberty (or privilege), claim, power or immunity... Hohfeld believed that lawyers and judges need to distinguish between these fundamental legal conceptions to dene the precise issue before a court. 5 A claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder. The distinction between these two senses of rights originates in American jurist Wesley Newcomb Hohfelds analysis thereof in his seminal work Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays.6 This liberty right is provided only as long as the Society fullls its duties to its Members: 1. The Society has a duty to respect the rights of its members. 2. Society has a duty to abide by the Constitution of India and also honor the fundamental and constitutional rights of its members. 3. Society has a duty to abide by the statute under which it was created viz. Registration of Societies Act 1860. 4. Society has a duty to abide by all the applicable statutes and case laws (Consumer protection laws, Property laws: State Apartment Owners Act, Transfer of Properties Act, Indian Trusts Act 1882 etc.)
Hoehfeld, Fundamental legal conceptions as applied in judicial reasoning, http: //plato.stanford.edu/entries/rights/#2.1 and http://www.archive.org/stream/ fundamentallegal00hohfuoft#page/n3/mode/2up 5 http://ivr-enc.info/index.php?title=Rights 6 http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld. pdf
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5. Society has a duty to abide by the tax laws applicable to non-prot societies.

III

NO PROFIT NO LOSS

No Prot No Loss (NPNL) is often being cited by AWHO as bestowing some special powers, rights and prvileges 7 . The saddest fact is that it does not provide any of this. If any thing, it binds some duties, liabilities and disabilities on AWHO. What are these duties? Undoubtedly, 1. AWHO has a duty not to make any prot out of its dealings/transactions with its members. 2. AWHO has a duty to its members to charge its members at cost price and cost price alone. 3. AWHO has a duty to its members NOT to charge for those items for which it has not paid any price or incurred any expense. 4. AWHO has a duty to its members to distribute surpluses if any at the end of the Project. 5. AWHO has a duty to its members to be transparent to establish the truth of all of the above.

IV

AWHO IS A REGISTERED SOCIETY

This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds AWHO to fulll its duties to its members. What are these duties? 1. The Society has a duty to its members that it will be governed democratically as required by the statute. 2. Society has a duty to provide equal rights to its members to be eligible to election to its Board of Management as required by the statute. 3. Society has a duty to provide all the members right to vote as required by the statute.
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http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.

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4. Society has a duty to provide the right to approve all the rules that apply to the Society Members as required by the statute.. 5. Society has a duty to seek approval of the members of its audited accounts as required by the statute. 6. Society has a duty to seek approval of the members (3/5th majority) in case the Society has to be closed as required by the statute.

AWHO BUILDS HOUSES ON A SELF-FINANCING BASIS

This again does not provide any special powers, rights or privileges to AWHO. If any thing, it binds AWHO to fulll its duties to its members. What are these duties? 1. The Society has a duty to its members that it will respect the duciary Responsibilities applicable for trustee to its beneciaries. 2. Society has a duty to provide the trusteeship duties towards its beneciaries. 3. Society has a duty to provide all the members undivided loyalty. 4. Society has a duty to provide all the Members a duty of care. 5. Society has a duty to refrain from any activity that may engender any conict of interest.

VI

CONCLUSIONS

It can easily be veried that any or all the above do not provide AWHO any special powers, rights or privileges. On the other hand each of the above imposes certain duties on the part of AWHO to its members. AWHO is found to quote the above in many courts of law 8 to escape, on some pretext, the requirements to abide by the duties imposed. The above analysis lays bare the duties of AWHO to abide by the Rule of Law.

http://www.rti.india.gov.in/cic_decisions/CIC_LS_A_2013_000543_M_ 115574.pdf