M/s. Designarch Infrastructure Pvt. Ltd. and Another vs. Vice Chairman, Ghaziabad Development Authority and Others (14.11.2013 - ALLHC) : MANU/UP/1765/2013
Issues for Adjudication
42. Following issues have been
raised by the petitioners for consideration of the Court:
I.
Whether the original plan, which was shown to
purchasers, could be amended without obtaining previous consent of intending
purchasers as stated in proviso to Section 4(4) after 19.3.2010/July 2010?
II.
Whether Purchasable FAR of 33% allows the
builder to construct new stones in existing building to encroach common areas
and facilities?
III.
Whether the policy of Purchasable FAR is
contrary to the Statute, illegal and liable to be struck down?
IV.
Whether the builder is entitled to run community
center as a private club or claim any part of common areas and facilities as
private property? (In some cases the land is freehold)
V.
Whether Section 14(2) gives any right to the
builder to resist/disallow formation of a RWA by the apartment owners in
Violation of Article 19(1)(c) of the Constitution of India?
VI.
Whether intending purchaser under Section 4(4)
would also include residents living in the same society who object to
amendments in original plan after 19.3.2010/July 2010 with the concurrent
reading of Section 41(3) of U.P. Urban Planning and Development 1973?
VII.
Whether the builder can resist (deemed) handing
over of common areas and facilities after formation of RWA or after obtaining
completion certificate and how does Competent Authority enforce deemed handed
over if the builder refuses to honor the law?
VIII.
Whether apartment owner would include
spouses/major children/family members of apartment owners so as to enable them
to become member of RWA or shall it be limited to blood relatives on the basis
of SPA or no one can be passed on the power?
IX.
Whether the Deputy Registrar can resist
recognition to RWA on the ground that byelaws framed under the Rules can't be
implemented without obtaining clarification from Registrar?
X.
Whether declaration as provided under Rules in a
mandatory obligation on part of all builder of buildings having more than 4
apartments constructed or under construction in the State of U.P. to be
provided to the Development Authority and what consequences would follow for
non-compliance?
43. In addition the following
issues have also been raised for adjudication in these writ petitions:
Writ Petition No. 33826 of
2012, Designarch Infrastructure Pvt. Ltd. and another v. Vice Chairman, GDA and
others
(1) Whether
the promoter can resist handing over of society to duly constituted RWA on the
pretext that some members are not owners.
(2) Whether
the promoter can challenge orders passed by GDA to hand over complex to RWA
alongwith maintenance deposit of 9.5 crores.
Writ Petition No. 46099 of
2012, Abhinav Jain v. State of U.P. and others
(1) Whether
additional constructions have been made without obtaining consent under the Act
by amending the original map which was shown to the intending purchaser.
(2) Whether
the promoter has caused encroachment on common undivided open park area by
constructing new buildings.
(3) Whether
purchasable FAR of 33% can be allotted to builder after allotment of flats and
start of construction approving change in original plan.
64. To sum up the conclusions
drawn by us are as follows:
(1) The
U.P. Apartment Act, 2010 and the U.P. Apartment Rules, 2011 provides for a
complete code for regulating the rights, duties and liabilities and for
resolving the issues and disputes between the promoters and the apartment
owners. The Act has overriding effect under Section 31(1) over all other laws
on the subject notwithstanding anything inconsistent therewith contained in any
other law for the time being enforced.
(2) The
provisions of the Transfer of Property Act, 1882, in view of Section 29 of the
U.P. Apartment Ownership Act, 2010, shall in so far as they are not
inconsistent with the provisions of the Act apply to the transfer of any
apartment together with its undivided interest in the common areas and
facilities appurtenant thereto made by the owner of such apartment, where such
transfer is made by sale, lease, mortgage, exchange, gift or otherwise as they
are applied to the transfer of any immovable property.
(3) The
apartment owner under Section 3(d) will not only the person or persons owning
an apartment or the promoter or his nominee in case of unsold apartments with
an undivided interest in the common areas and facilities appurtenant to such
apartment in the percentage specified in the Deed of Apartment and includes the
lessee of the land on which the building containing such apartment has been
constructed, where the lease of such land is for a period of thirty years or
more; it includes the spouse and children of the apartment owner and a lawful
tenant of the allottee/owner of the allotment, which will also include officer
or employee of the company/firm or association, which owns an apartment under a
valid allotment letter and its tenant. It will also include a person holding
valid power of attorney of the allottee/owner of the apartment, where it is
owned individually, jointly or in the case of a company/firm/society and
occupied without any right of occupation either as family member, tenant,
employee or person holding power of attorney will not be included in the
definition of apartment owner.
(4) The
U.P. Apartment Act, 2010, which has come into force w.e.f. 19.3.2010 is
applicable to all the buildings, which have three or more than three apartments
intended for any type of independent use including enclosed spaces located on
one or more floors to be used for residential or official purposes or for the
purpose of practising any profession or for carrying on any occupation, trade
or business, excluding shopping malls and multiplexes. The word 'apartment'
includes any garage or room whether or not adjacent to the building in which
such apartment is located, if it has independent access to public street, road
or to a common area leading to such street, road, used for parking cars or for
residence of any domestic aid. The garage or such rooms, however, do not have
any independent status as apartment, to carry with it any rights of common
areas and facilities.
(5) Each
of the chapters namely Chapter-II Duties and Liabilities of Promoters; Chapter
III Right and Obligations of Apartment Owners; Chapter IV Ownership,
Heritability and Transferability of Apartment; Chapter V Declaration of
Building and Deed of Apartment; Chapter VI Association of Apartment Owners and
Bye-laws for the Registration of the Affairs of such Association; Chapter VII
Common Profits, Common Expenses and Other Matters, are independent and that the
rights and liabilities under these chapters can be enforced independently
unless these are essentially depending upon rights and liabilities in other
chapters subject to Chapter VIII 'Miscellaneous' with the ultimate control of
the State Government of which directions have to be carried out by the
competent authority as defined in Rule 2(c) of the Rules, 2011.
(6) Chapter
V Declaration of Building and Deed of Apartment, carries within it the content,
which fulfills the primary objective of the Act. The declaration under Section
12 falling in the said chapter, with which the complete information as provided
in Form-A under Rule 3 of the Rules of 2011 with Annexure-A to F and Schedule
A, must be enclosed as mandated by Section 13 with the deed of transfer, is
mandatory for handing over possession of any apartment constructed after the
commencement of the Act and also to get such transfer deed registered under the
provisions of the Registration Act, 1908.
(7) Under
Section 5(1) of the U.P. Apartment Act, 2010 every person to whom any apartment
is sold or transferred by the promoter shall subject to other provisions of the
Act be entitled to exclusive ownership and possession of the apartment so sold
or otherwise transferred. He is under sub-section (2) entitled to the exclusive
ownership and possession of apartment and shall be entitled to such percentage
of undivided interest in the common areas and facilities as may be specified in
the deed of apartment and such percentage shall be computed by taking, as a
basis, the area of the apartment in relation to the aggregate area of all
apartments of the building. Such percentage of undivided interest under
sub-section (3)(a) in the common areas and facilities shall have a permanent
character, and shall not be altered without the written consent of all the
apartment owners and approval of the competent authority, and which shall not
be separated from the apartment to which it pertains. It shall be deemed to be
conveyed or encumbered with apartment, even though such interest is not
expressly mentioned in the conveyance or other instrument. The common areas and
facilities under sub-section (4) cannot be transferred and will remain
undivided with the apartment. These cannot be partitioned or subject to any
division and will be enjoyed by the apartment owner under sub-section (5),
without hindrance or encroaching upon the lawful rights of the other apartment
owners.
(8) The
'limited common areas and facilities', which are specified in writing by the
promoter before the allotment, sale or other transfer of any apartment as
reserved for use of certain apartment or apartments to the exclusion of the
other apartments as defined in Section 3(s) and the 'independent areas', which
have been declared but not included as common areas for joint use of
apartments, and which may be sold by the promoter without the interference of other
apartment owners under Section 3(p), must be clearly defined and delineated in
the declaration under Section 12, failing which the promoter will not be
entitled to claim these common areas and facilities to be limited or
independent. Any dispute with regard to common areas and facilities, limited
common areas and facilities and independent areas, and for its provisions in
the declaration is subject to decision by the competent authority as defined
under Rule 2(c) of the Rules of 2011. The failure to submit the declaration and
its enclosure with the deed of transfer and its non-registration will
disentitle the promoter from claiming common areas and facilities in the
property in which the apartments are built to be limited common areas and
facilities or independent areas.
(9) The
association of apartment owners is to be registered by the Registrar, Deputy
Registrar or Sub-Registrar under the Societies Registration Act as amended in
the State of U.P. If bye-laws are inconformity with the model byelaws as notified
on 16.11.2011, the Registrar/Deputy Registrar/Sub-Registrar cannot refuse to
register association on the ground that it contains less than minimum number of
members of the society under the Societies Registration Act or that it does not
comply with any of the provisions of the Societies Registration Act as amended
in the State of U.P. The registration of the association is in compliance with
the provisions of the U.P. Apartment Act, 2010, U.P. Apartment Rules, 2011 and
model bye-laws. It shall be the joint responsibility of the promoter and
apartment owners to obtain the registration. The Registrar/Deputy Registrar/Sub
Registrar shall not refuse to register the association, if the promoter does
not join even after one month's notice given by the apartment owners or 33% of
the apartment owners, whichever is more. It is clarified that the completion of
all infrastructure services and completion certificate from local authority
will not be a ground to deny the registration, as the issuance of completion
certificate depends on the steps to be taken by the promoter. The delay caused
by him in obtaining such certificate will defeat the object of formation of the
society and the enforcement of the rights and liabilities of the promoter and
the apartment owners. In such case the society will be registered provisionally
under the certificate to be given by the competent authority as defined in Rule
2(c) of the Act, who will give a time period to the promoter to provide all
infrastructure services and to obtain completion certificate, failing which the
promoter will invite the punishment for the offence as prescribed under Section
25 of the Act including the punishment of imprisonment under Section 25(1) of
the Act.
(10)The
'competent authority' within the meaning of Rule 2(c) as defined will include
Vice Chairman of the Development Authority in whose notified development area
the building is situate or the Collector of the district, where no such
development authority exists. In case of the Industrial Development Authority
the competent authority shall be the Chief Executive Officer of the Industrial
Development Authority. For the purposes of discharging functions and duties and
resolving the disputes the competent authority will be entitled to delegate its
powers to an officer not below the rank of Joint Secretary including Legal
Advisor of the authority and any Sub Divisional Magistrate of the district in
case of a district. The competent authority shall set up mediation and
conciliation centres in each authority, or the district, which will resolve to
mediate the disputes at the first instance between the disputing parties.
(11)Any
dispute raised before the competent authority shall be decided by the competent
authority or delegatee as provided above or his delegatee as provided above, to
be decided by the officer notified by the State Government under Section 27(2)
and (3) of the Act, before it is brought before the Court of law.
(12)The
competent authority will also be entitled to verify the contents of the
declaration under Section 12 of the U.P. Apartment Act, 2010 and to decide any
question, which may arise out of such declaration.
(13)The
model byelaws as notified on 16.11.2011 under sub-section (6) of Section 14 of
the U.P. Apartment Act, 2010, if not approved and appended to the application
for registration, made prior to the enforcement of the Act shall be adopted in
the first meeting of the association of apartment owners and will be registered
by the Registrar. Any amendment in the model bye-laws will be made in
accordance with the Bye Law 58 of the Model Bye-laws to be approved by the
owners representing atleast 2/3rd of the total number of units in the building
with the prior approval of the competent authority and will thereafter be
registered by the Registrar of Societies without insisting upon complying with
the provisions of any other Act including Societies Registration Act as amended
in the State of U.P. No alteration in the declaration given by the promoter
under Section 12 shall be permitted except in accordance with the Act and for
which the approval of the development authority or regulating authority in
which such property is situate will be necessary and thereafter with the
approval of the association of apartment owners by resolution passed by the
apartment owners in which vote of promoter shall not be counted. The
development authority or regulating authority may in such case demand a NOC
from the apartment owners before allowing any alteration in the building plans
as a condition for granting approval.
(14)The
FAR or any additional FAR is a property, appended to rights in the property on
which the building is constructed, and is thus a property in which the
apartment owners have interest by virtue of the provisions of the U.P. Apartment
Act, 2010. The purchase of additional FAR is not permissible to be appropriate
by the promoter without any common benefits to the apartment owners. The
consent of the apartment owners obtained by resolution in the meeting of the
apartment owners by majority will be necessary for purchasing additional FAR.
Its utilization will also be subject to the consent of the apartment owners.
M/s. Designarch Infrastructure
Pvt. Ltd. and Another vs. Vice Chairman, Ghaziabad Development Authority and
Others (14.11.2013 - ALLHC) : MANU/UP/1765/2013