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Apartment Flat Owners Acts in India

Apartment Flat Owners Acts in India

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    List of dates apartment owners act v1.7 List of dates apartment owners act v1.7 Document Transcript

    • 1 LIST OF DATES APARTMENT OWNERS ACT V1.7 26.01.50 The Constitution of India adopted by the Constituent Assembly on 26.11.1949 came into force. 30.11.63 Punjab Govt. Gaz. Extra of the date published Punjab Act No. 41 of 1963, The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. (applies to Haryana). Section 2(2) “Amenity” includes roads, water-supply, street lighting, drainage, sewerage, public parks and any other convenience which the Government may by notification specify for the purposes of this Act; Section 5(2)(b) - the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; Section 5(2)(g) - the amenities to be provided in relation to any site or building on such site whether before or after the erection or re-erection of buildings and the person or authority by whom such amenities are to be provided; [Rajinder Singh v State of Haryana 2005 (1) RCR (Civ) 249 (SC)] 16.12.63 Maharashtra Govt. Gaz. Extra of the date published Maharashtra Act No. XLV of 1963,
    • 2 The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963. (Amended by Maharashtra Act No. 29 of 1964, 1 of 1966, 2 of 1968, 11 of 1970, 15 of 1971, 5 of 1973, 53 of 1974 (1-1-1975), 66 of 1977, 1 of 1979, 9 of 1981, 6 of 1982 (12-2-1982), 13 of 1983, 5 of 1984 (1-2-1984), 6 of 1985 (20-2-1985), 12 of 1986 (30-1-1986), 36 of 1986 (13-4-1987), 15 of 1990 (17-3-1990) & 10 of 1995 (1-4-1995).) An Act to regulate for a certain period, in the State of Maharashtra, the promotion of the construction of, the sale and management, and the transfer of flats on ownership basis. MOFA, 1963 was the pioneering legislation (but only a partial and limited one) on apartments in India basis the Housing Act, 1961 (30.06.61- passage of Section 234 of the 1961 Housing Act, Public Law 87-70, 87th U.S. Congress, resulting in a system of property ownership that enabled an individual to own, mortgage or sell an apartment unit with relatively the same ease as he could with a single- family dwelling), [See also The Conveyancing (Strata Titles) Act, 1961 (Australia 01.07.61)]
    • 3 26.05.65 Punjab Govt. Notification No. G.S.R. 105/P.A. 41/63/S. 25/65 of the date notified The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965. Rule 8(ii)(b) – areas reserved for public and community amenities, such as civic centres and educational, recreational and social institutions and major open spaces; Rule 11(1)(v) – Layout plan……showing……sites reserved for open space community buildings and schools……. Rule 12 – In the layout plan of the colony, the land reserved for roads, open spaces, schools, public and community buildings and other common uses shall not be less than forty- five percentum of the gross area of the land under the colony……. Rule (19)(e) - undertake to construct at his own cost, or get constructed by any other institution or individual at its own cost, schools, hospitals, community centers and other community buildings on the land set apart for this purpose or undertake to transfer to the State Government at any time it may desire free of cost the land set apart for schools, hospitals, community centers and community buildings, in which case the Government shall be at liberty to
    • 4 transfer such land to any person or institution including a local authority on such terms and conditions as it may deem fit,.. Form CL II (See Rule 19) (b) - That the coloniser shall at his own cost construct or get constructed by any other institution or individual at its cost, schools, hospitals, community centers and other community buildings on the land set apart for this purpose, or if so desired by the Government, shall transfer to it any time it may desire free of cost and thus set apart for schools, hospitals, community centers and community buildings, in which case the Government shall be at liberty to transfer such land to any person or institution including a local authority on such terms and conditions as it may lay down. 01.11.66 Gaz. Of India dated 18.09.66 published Act No. 31 of 1966 notified The Punjab Reorganisation Act, 1966. State of Haryana formed on the date, 01.11.66. 19.02.71 Maharashtra Govt. Gaz. Extra of the date published Maharashtra Act No. XV of 1971, The Maharashtra Apartment Ownership Act, 1970. (Amended by Maharashtra Act No. 6 of 1974 (13-3-1974), 53 of 1974 (1-1-1975), & 14 of
    • 5 1986 (31-1-1986).) An Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property. MAOA, 1970 became necessary because MOFA, 1963 lacked certain key provisions qua individual rights over common areas and facilities. 06.06.73 The West Bengal Apartment Ownership Act, 1972 (Act 16 of 1972) came into force vide Notification No. 547-H.I.V. dated 6th June 1973 published in the Calcutta Gazette, Extraordinary, Part I dated 6th June 1973, page 2017. It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. 28.06.73 Gujarat Govt. Gaz. Extra of the date published Maharashtra Act No. 13 of 1967, The Gujarat Ownership Flats Act, 1973. An act to regulate promotion of the construction of, and the sale, management and transfer of, flats on ownership basis and to provide for the ownership of an individual apartment and to make such apartment heritable and transferable. It was a judicious amalgamation of MOFA, 1963 & MAOA, 1970 which obviates frequent judicial interpretation
    • 6 noticed in Maharashtra due to perceived (not actually) conflicting provisions. 02.07.73 Haryana Govt. Gaz. of the date published Haryana Act No. 24 of 1973, The Haryana Municipal Act, 1973. (Section 203C (3) (b) – “reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes;”) 30.01.75 Haryana Govt. Gaz. Extra of the date published Haryana Act No. 8 of 1975, The Haryana Development and Regulation of Urban Areas Act, 1975. (Major Amendment vide Haryana Act No 11 of 2003 (28-3-2003), 16 of 2010 (30-9- 2010), 4 of 2012 (3-4-2012), Bill dated 1-3-2013 ratified by legislature on 11-1-2013 this last sets up a Haryana Infrastructure Development Board) 01.04.75 The Karnataka Apartment Ownership Act, 1972 (Act 17 of 1973) came into force w.e.f. 1.4.1975 vide notification No. FD 28 KHB 75, dated 6.3.1975. It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. For statement of Objects and Reasons see the Karnataka Gazette Part IV -2A (Extraordinary) No. 579 dated 2-12-1972 at page
    • 7 21 to 24. "Consequent upon the shortage of lands in urban areas, the majority of the citizens of urban areas of the State cannot think in terms of owning houses on individual basis. Though there is a tendency to construct multi-storeyed flats, apartments and the like on ownership basis, intending persons cannot purchase flats, tenements, or apartments in multistoried building as they will not have a marketable title thereto and cannot obtain any loan by mortgaging such flats, tenements, etc. Consequently tenements constructed by the Housing Board for example cannot be sold to the tenants who cannot raise any loan on the security of such tenements with the result that an enormous amount of capital will be locked up, which can be utilised for new constructions to meet the increasing demands for housing. It is, therefore, considered expedient that each apartment should for all purposes constitute a heritable and transferable immovable property, and that suitable legislation should provide for all matters connected therewith. It is felt that such a measure will not only enable many a person to own his apartment but it will at the same time enable institutions like Housing Boards to utilise
    • 8 their locked up capital in the construction of new buildings." 07.03.76 Haryana Govt. Notification No. G.S.R. 107H.A.- 875S. 2476 of the date notified The Haryana Development and Regulation of Urban Areas Rules, 1976. 23.03.77 Haryana Govt. Gaz. of the date published Haryana Act No. 13 of 1977, The Haryana Urban Development Authority Act, 1977. (Major amendment vide Act No. 12 of 2004 (11-6-2004) (setting it up as a local development authority- violation of Part IXA of the Constitution of India) 06.01.79 Himachal Pradesh Apartment Ownership Act, 1978. (Received the assent of the President of India on the 18th December, 1978 and was published in R.H.P. Extra., dated the 6th January, 1979, P.93-99). An Act to provide for the ownership of an individual apartment and to make such apartment heritable and transferable property, in Himachal Pradesh. It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. 28.09.83 Haryana Govt. Gaz. Extra of the date published Haryana Act No. 10 of 1983, The Haryana
    • 9 Apartment Ownership Act, 1983. (Major amendment vide Act No. 10 of 2002 (19-4-2002) (definition of apartment). An Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property and matters connected therewith. Statement of Objects and Reasons “Housing is a basic human necessity and the quality of the house as well as of its environment plays an important role in the growth of individuals, both physically and mentally. One of the root cause, of the present day discontent and unrest in the working force as well as the students, in our society, is the lack of proper quality of life and the living environment in the settlements. The widening gap between the rising population and the housing stock added every year has gradually reached such a critical stage that the problem of providing proper shelter and desirable standard of living seems to be beyond solution. The efforts made by the Government as well as different agencies have not made much dent into the problem. Haryana is predominantly an agricultural State, it is not advisable to use fertile lands more and more for housing purposes
    • 10 which ultimately will tell upon the production of foodgrain. It is essential that for solving the housing problem economy in the use of land as well as in the use of Capital Investment should be observed, for which Group Housing will have to be promoted. Therefore, for the promotion of Group Housing, it is necessary that the State should have some statute to control the building activities as well the ownership right.” HAOA, 1983 (ditto copy of MAOA, 1970 which is essentially an amendment / enhancement to/ of MOFA, 1963) is a flawed legislation requiring extensive interpretation due cherry picking of legislation by notifying only MAOA, 1970 but ignoring the main act i.e. MOFA, 1963. It is well settled that when there is an identified gap in beneficial legislation it is to be filled keeping regard to its international/ national historical background in other States of India (and abroad if need be). (Anju Garg v Hotel Association of India AIR 2008 SC 663, 2008 (3) SCC 1) The gaps in HAOA, 1970 have therefore to be/ have been filled up qua MOFA, 1963/GOFA, 1973 etc. In Anju Garg v Hotel Association of India AIR 2008 SC 663, 2008 (3) SCC 1 it was held:
    • 11 “In Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I & Anr. [(2004) 9 SCC 512], this Court had to interpret the meaning and import of the word ‘necessaries’ used in Section 5 of the Admiralty Court Act, 1861. The Court while importing the meaning of the same through Foreign (American) Court decisions, opined: "It is true that this Court is not bound by the American decisions. The American decisions have merely a persuasive value but this Court would not hesitate in borrowing the principles if the same is in consonance with the scheme of Indian law keeping in view the changing global scenario. Global changes and outlook in trade and commerce could be a relevant factor. With the change of time, from narrow and pedantic approach, the court may resort to broad and liberal interpretation. What was not considered to be a necessity a century back, may be held to be so now."” 01.08.85 The Kerala Apartment Ownership Act, 1983 (Act 15 of 1984) came into force w.e.f. 1.8.1985 vide
    • 12 Kerala Gaz No. 6 dt 7-2-1984 (Kerala Gaz Extra No.39 dt 12-1-1984). It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. However the Kerala Apartment Ownership Rules, 1994 came into force as late as 15.03.1994. Even now the area of apartment is an undefined approximation (perhaps the only State to default on such a vital parameter) which is hunting ground for unscrupulous promoters. 23.05.87 The Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987 (Act 29 of 1987). Recieved the assent of the President on the 15th May 1987. For statement of Objects and Reasons see Andhra Pradesh Gazette, Part IV-A Extraordinary dt 7th January 1987 at Page 19. An Act to regulate in the State of Andhra Pradesh the Promotion of Construction and Transfer of Ownership of Apartments. It is similar in scope to GOFA 1973 and wider than HAOA 1983 in that it enforces duties and liabilities of promoters. 17.11.87 The Delhi Apartment Ownership Rules, 1987 published vide MoUD, Lands Division, Central Government Notification No. G.S.R. 914(E) dt
    • 13 17th November 1987. These are very similar to the Haryana Apartment Ownership Rules, 1987. 20.11.87 Haryana Govt. Notification No. G.S.R. 100/H.A.10/83/S. 25/87 of the date notified The Haryana Apartment Ownership Rules, 1987. (Major amendment vide Haryana Govt. Gaz. Extra Notification dated 20.01.2003 at page 120.) 06.01.89 The Delhi Apartment Ownership Act, 1986 (Act No. 58 of 1986) came into force. (Gazette of India Extraordinary, Part II, Section 1A, No. 1, Volume XXV dt 6th January 1989 on pages 3 to 22.). Statement of Objects and Reasons gives one of the reasons as difficulty faced by owners of "flats constructed by agencies like the Delhi Development authority.” It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. 13.12.91 Rule published by Haryana Govt. in terms whereof a condition was imposed by way of condition (e) in the license granted in LC IV. No third party rights will be created without prior permission of DTCP. The condition was otiose and superfluous since Section 3(3)(iv) already placed onerous condition barring transfer at any
    • 14 time the land set apart for these public common use purposes to anyone except the Government free of cost thus attracting the mischief of Section 11 of the Transfer of Property Act, 1882 read with Section 18 thereof. See also public trust doctrine. [Velu Pandaram vs Gnanasambanda Pandara Sannadhi (1896) ILR 19 Mad 243 reversed by Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R. [1900] 23 Mad. 271, (1899) 10 M.L.J. 29, L.R. 27 I.A. 69, K.S. Bonnerji v. Sitanath Das (1922) 24 BOMLR 565, 491 A. 46 (9), Menakuru Dasartharami Reddi v. Duddukuru Subba Rao, AIR 1957 SC 797, Sheikh Abdul Kayum v. Mulla Alibhai AIR 1963 SC 309, 1963 SCR (3) 623, DLF Housing and Construction Pvt. Ltd. v. Delhi Municipal Corporation, ILR 1969 Delhi 1055, S. Shanmugam Pillai v. K. Shanmugam Pillai AIR 1972 SC 2069, [1973] 1 SCR 570, Gopala Menon v. Sivaraman Nair AIR 1979 SC 1345, (1981) 3 SCC 586, Additional Commissioner Of Income Tax Surat v. Surat Art Silk Cloth Mfrs Assoc. AIR 1980 SC 387, [1980] 2 SCR 77 (Constitution Bench), Arjansingh v. Deputy Mal Jain 22 (1982) DLT 14, ILR 1982 Delhi 11, 1982 RLR 60] and
    • 15 duty of authorities concerned - “The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good.” [Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243] 01.06.93 Part IXA of the Constitution of India came into force on the day vide Section 2 of the Constitution (Seventy-fourth Amendment) Act, 1992. 09.02.94 DTCP issued a letter to DLF not to create fourth party rights on community sites where third party rights have been created prior to 07.08.1991. 20.10.94 Haryana Govt. Gaz. of the date published Haryana Act No. 16 of 1994, The Haryana Municipal Corporation Act, 1994. (Section 231 (1) (b) of the Haryana Municipal Corporation Act 1994 - "the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any public purpose;" which is similar to Section 313(1) (b) of The Delhi Municipal Act, 1957.) [Arjansingh And Ors. vs Deputy Mal Jain And Ors. 22 (1982) DLT 14, ILR 1982 Delhi 11, 1982 RLR 60]
    • 16 25.10.94 State of Haryana issued instructions regarding transferring of community sites. Three categories were created: (i) community sites still in the ownership of coloniser (ii) colonisers have created third party rights before 07.09.1991 (iii) Licensee has created fourth party rights. These instructions are also otiose in that Section 11 of Transfer of Property Act, 1882 bars any such transfer of land reserved for public purpose. 06.04.95 Tamil Nadu Apartment Ownership Act, 1994. (Act No. VII of 1995) came into force on the date in some areas of the State, being later extended across the State. It is narrower in scope than GOFA 1973 and similar to HAOA 1983 in that it also ignores the aspect of duties and liabilities of promoters. 15.10.95 The Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No. 14 of 1995) (Received the assent of the President of India on the 2nd August, 1995, and was published in the Punjab Gazette, (Extra.), Legislative Supplement, Part I, dated August 9, 1995) Came into force on 15.10.95 vide Notification: No 2/3/92- 2HGIV5080 dated 13th October, 1995. An Act to regulate the promotion of the construction,
    • 17 sale, transfer and management of apartments on ownership basis, to regulate colonies and property transactions and to provide for registration of promoters and estate agents and enforcement of obligations of promoters and estate agents and for matters connected therewith or incidental thereto. Statement of Objects and Reasons - "For some time past the problem of controlling the activities of the private colonisers engaged in the construction of apartments and sale of plots has been engaging the attention of the State Government. Some of the private colonisers are operating solely with the motive of profits with scant regard to the interest and rights of the individual buyers of plots /flats. In order to check, control and regulate effectively the activities of such private colonisers and protect the interests of the consumers, the Government felt the need to formulate a law. The National Housing Policy also stipulates a larger role for the private initiative in adding to the Housing stock and serviced land for housing which also needs a progressive law which encourages construction of houses/development of plots by the private
    • 18 parties and fully protects the interest of the buyers of plots/flats." The common areas have been left largely undefined. Since the Act caters to both heritable rights of apartment owners and to plotted colonies, the failure to define common areas is a fatal defect in this misconceived piece of legislation which falls between two stools. When wiser States like Maharashtra needed two legislations just for apartments how could one composite legislation which mixes a special act with a general act suffice? 13.02.96 Addenda (The Haryana Development and Regulation of Urban Areas Act, 1975) Time schedule of 3 years to apply to all sites where third and fourth party rights have been created before 07.08.1991. 19.04.02 Haryana Govt. Gaz. of the date published Haryana Act No. 10 of 2002, amending The Haryana Apartment Ownership Act, 1983. (Definition of Apartment expanded to include independent units of types as may be prescribed of residence, office, and manufacturing etc relating to Information Technnology) Section 3(a) -“Apartment” means a part of a property, intended for any type of independent use, including building having one
    • 19 or more rooms with enclosed spaces located on one or more floors or any part or parts thereof, to be used for residence, office or for practicing any profession or for carrying on any occupation, trade, business or manufacturing or other uses relating to Information Technology or for such other type of independent use, as may be prescribed, with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the colonizer/owner of such property for use by the owner of such apartment for parking any vehicle or for the residence of any person employed in such apartment, as the case may be. 28.03.03 Haryana Govt. Gaz. of the date published Haryana Act No. 11 of 2003, amending The Haryana Development and Regulation of Urban Areas Act, 1975. (cyber city, development costs deposit in bank etc). Also Section 2(g) - “External development works” include water supply, sewerage, drains, necessary provisions of treatment and disposal of sewage, sullage and
    • 20 storm water, roads, electrical works, solid waste management and disposal, slaughter houses, colleges, hospitals, stadium/sports complex, fire stations, grid sub-stations etc. and any other work which the Director may specify to be executed in the periphery of or outside colony/area for the benefit of the colony/area; Section 2(gg) - “Flat” means a part of any property, intended to be used for residential purposes, including one or more rooms with enclosed spaces located on one or more floors, with direct exit to a public street or road or to a common area leading to such streets or roads and includes any garage or room whether or not adjacent to the building in which such flat is located provided by the colonizer/owner of such property for use by the owner of such flat for parking any vehicle or for residence of any person employed in such flat, as the case may be; Section 2(hh) - “Group housing” means a building designed and developed in the form of flats for residential purpose or any ancillary or appurtenant building including community facilities, public amenities and public utility as may be prescribed; Section 5(1) - The colonizer shall deposit thirty per centum of the amount
    • 21 released (realized), from time to time, by him, from the plot-holders within a period of ten days of its realization in a separate account to be maintained in a scheduled bank. This amount shall only be utilized by him towards meeting the cost of internal development works in the colony. After the internal development works of the colony have been completed to the satisfaction of the Director, the colonizer shall be at liberty to withdraw the balance amount. The remaining seventy per centum of the said amount shall be deemed to have been retained by the colonizer, inter-alia, to meet the cost of land and external development works. 23.09.06 The Bihar Apartment Ownership Act, 2006. (Bihar Gaz No. Patna 748 dated 23.09.2006 & No. LG 1-022106 Leg- 218 dt 22.09.2006.). An Act to provide for the ownership of an individual Apartment in a multi-storied building and of an undivided interest in the common areas and facilities appurtenant to such Apartment and to make such payment and interest heritable and transferable and for matters connected therewith
    • 22 or incidental thereto. It is similar in scope to GOFA 1973 and wider than HAOA 1983 in that it enforces duties and liabilities of promoters. 29.01.07 Clause 11 (g) & (h) came into the rules whereby LC IVA made applicable to GHS Colony, LC IVB to plotted colony etc. 03.04.07 Haryana Govt. Gaz. of the date published Haryana Act No. 5 of 2007, amending The Haryana Development and Regulation of Urban Areas Act, 1975. (Sec 3A – Infrastructure Development Charges substituted for External Development Charges) 09.09.09 In CWP No.960 of 2000 Manmohan Lowe v State of Haryana decided on 09.09.09, the Punjab & Haryana High Court (D.B.) held:"21. In view of shortage of land in urban areas, concept of apartments has been evolved. Town Planning laws require development of apartments in accordance with a plan and the apartment laws apart from making apartments heritable and transferable, provide safeguards for the apartment owners for their shared use of common area. If shared use of common areas is not allowed, the concept of apartments may not be workable as persons living on different floors require certain
    • 23 services in the complex itself. Purchasers of apartments are also attracted by the services available in a complex and are directly or indirectly made to pay for such services. It is not the intention of the legislature that the developer assumes absolute power of declaring or not declaring areas, normally in common use, to be common areas. Section 11, which deals with contents of declaration, cannot be read as giving absolute power to the developer to exclude common areas from the said concept. To advance the social objective for which the law is enacted, the competent authority before which declaration is filed must be held to have power to consider objections of apartment owners as to whether particular area, which is normally in common use, could be described otherwise. Requirement of making declaration implies that the declaration must be consistent with the spirit of the Act." 18.03.09 Haryana Govt. Gaz. of the date published Haryana Act No. 5 of 2009, amending The Haryana Development and Regulation of Urban Areas Act, 1975. (Sec 3 (4) - Validity of license 4 years extendable 2 years at a time without limit
    • 24 on payment of prescribed fee – condition of recording reasons removed) 03.02.10 Memo No:- LC -147-7/16/2006-2TCP of the date issued by DTCP Haryana (EWS flats - The colonizers are also allowed to allot 5% of total number of plots/flats reserved for EWS Categories to any eligible person.) 19.03.10 Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) Act, 2010 came into force. "Housing is a basic human necessity and the quality of the house as well, as of its environment plays an important role in the growth of individuals, both physically and mentally. The widening gap between the rising urban population and the housing stock added every year has gradually reached such a critical stage that the problem of providing proper shelter and desirable standard of living seems very difficult to be solved. Moreover, majority of the citizen of urban areas of the State cannot think in terms of owning houses on individual basis because of the shortage of land in the urban areas. The efforts made by the Government as well as different agencies have not made much dent into the housing problem. Uttar Pradesh is
    • 25 predominantly an agricultural State; it is not advisable to use fertile lands more for housing purposes which ultimately will affect the production of food grains. It is essential that for solving housing problem economy in the use of land as well as in the use of capital investment should be observed, for which Group Housing development will have to be promoted. With a view to promoting the Group Housing, it has been decided to make a law to provide for the ownership of an individual apartment in a building of an undivided interest in the common areas and facilities appurtenant 'Of such' apartment and to make such apartment and interest heritable and transferable." Section 3 (p) of this Act appears to be violative of the very same social concept that gave rise to law of apartments in early twentieth century - "(p) "independent areas" means the areas which have been declared but not included as common areas for joint use of apartments and may be sold by the promoter without the interference of other apartment owners;" No Government authority should sit in judgment over rights of apartment owners over the transferable land parcel which is
    • 26 the basis of the common areas concept of heritable apartments as such executive function attracts the mischief of Article 300A. [K.T. Plantation (P) Ltd. v. State of Karnataka (2011) 9 SCC 63, Ambika Prasad Mishra v. State of U.P. (1980) 3 SCC 719] 30.09.10 Haryana Govt. Gaz. of the date published Haryana Act No.16 of 2010, amending The Haryana Development and Regulation of Urban Areas Act, 1975. Amendment passed by Haryana Legislative Assembly on the date – in Section 3 The Haryana Development and Regulation of Urban Areas Act, 1975: (6) After the coloniser has laid out the colony in accordance with the approved layout plan and executed the internal development works in accordance with the approved design and specifications, he may apply to the Director for grant of completion or part-completion certificate. The Director may enquire into such matters, as he deems necessary before granting such certificate. (7) After enquiry under sub-section (6), the Director may, by an order in writing, grant completion or part-completion certificate on such
    • 27 terms and conditions and after recovery of infrastructure augmentation charges, as may be prescribed: Provided that where in the agreement executed to set up a colony, a condition was incorporated for deposit of surplus amount beyond maximum net profit @ 15% of the total project cost and the coloniser has not taken the completion certificate of the said project, then notwithstanding the said condition in the agreement, the coloniser shall have the option either to deposit the infrastructure augmentation charges as applicable from time to time at any stage before the grant of such completion certificate and get the exemption of the restriction of net profit beyond 15% or deposit the amount as per terms of the agreement.} 16.11.11 The Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Rules, 2011 notified on the date vide Notification no. 3975/8-1-11-115D.A./02T.C.-I dated 16 November, 2011. 03.04.12 Haryana Govt. Gaz. of the date published Haryana Act No. 4 of 2012, amending The Haryana Development and Regulation of Urban Areas Act, 1975:
    • 28 1. This Act may be called the Haryana Development and Regulation of Urban Areas (Amendment and Validation) Act, 2012. 2. In clause (a) of sub-section (3) of section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called the principal Act),- (i) for sub-clause (iv): ‘(iv) to contruct at his own cost, or get constructed by any other institution or individual at its cost, schools, hospitals, community centers and other community buildings on the lands set apart for this purpose, or to transfer to the Government at any time, if so desired by the Government, free of cost the land set apart for schools, hospitals, community centers and community buildings, in which case the Government shall be at liberty to transfer such land to any person or institutions including a local authority on such terms and conditions as it may deem fit;’ the following sub-clause shall be substituted, namely:- “(iv) to construct at his own cost, or get constructed by any other institution or individual
    • 29 at its cost, schools, hospitals, community centres and other community buildings on the lands set apart for this purpose, in a period as may be specified, and failing which the land shall vest with the Government after such specified period, free of cost, in which case the Government shall be at liberty to transfer such land to any person or institution including a local authority, for the said purposes, on such terms and conditions, as it may deem fit: Provided that in case of licenses issued prior to the notification of the Haryana Development and Regulation of Urban Areas (Amendment and Validation) Act, 2012, the licensee, the purchaser or the person claiming through him shall construct the school, hospital, community centres and other community buildings on the land set apart for this purpose, within a period of four years, extendable by the Director by another period of two years, for reasons to be recorded in writing, from the notification of the Haryana Development and Regulation of Urban Area (Amendment and Validation) Act, 2012: Provided further that at the end of the period as specified under the proviso, if the site is not
    • 30 utilised for the purpose, it was meant for, the land shall vest with the Government and in which case, the Government shall be at liberty to transfer such land to any person or institution including a local authority, for the said purposes, on such terms and conditions, as it may deem fit: Provided further that a show cause notice and an opportunity of hearing shall be issued before vesting the land in the Government."; (ii) after sub-clause (iv), the following sub-clause shall be inserted and shall be deemed to have been inserted with effect from the 30th January, 1975, namely:- “(iv-a) to pay proportionate cost of construction of such percentage of sites of such school, hospital, community centre and other community buildings and at such rates as specified by the Director;". Insertion of section 10A in Haryana Act 8 of 1975 3. After section 10 of the principal Act, the following section shall be inserted, namely:- “10-A. Recovery of dues.-- All dues payable under the Act, which have not been deposited
    • 31 within the time specified, shall be recovered as arrears of land revenue.". Insertion of section 23A in Haryana Act 8 of 1975. 4. After section 23 of the principal Act, the following section shall be inserted, namely:- “23A. Power to issue directions.-- The Director, with the approval of the Government, may, from time to time and/or under the directions issued under section 9A by the Government, shall, issue directions as are necessary or expedient for carrying out the purposes of this Act.". 5. (1) Notwithstanding any judgement, decree or order of any court or tribunal or other authority to the contrary, any action taken with regard to the recovery of proportionate cost of construction of such schools, hospitals, community centres and other community buildings, either through the issuance of executive instructions or through condition prescribed in the Bilateral Agreement executed at the time of grant of licence or through any undertaking obtained from the coloniser, or any action taken or things done or purporting to have been taken or done, before the commencement of the Haryana Development and
    • 32 Regulation of Urban Areas (Amendment and Validation) Act, 2012, shall be deemed to be as valid and effective as if such action was taken or done in accordance with the provisions of the Haryana Development and Regulation of Urban Areas (Amendment and Validation) Act, 2012 and any executive instructions or any Bilateral Agreement or any undertaking obtained in this regard and all such recoveries made, shall be deemed to be as valid and effective as if such Bilateral agreement were executed, or executive instructions were issued or undertakings were obtained or recoveries were made in accordance with the provisions as amended and validated in accordance with the provisions contained in the Haryana Development and Regulation of Urban Areas (Amendment and Validation) Act, 2012, and shall not be called in question in any court or tribunal or other authority: Provided that the amount already deposited against the cost of construction of the community buildings shall be spent on the construction of such community buildings or related infrastructure within a period of five years hereafter, unless any further extension is allowed
    • 33 under exceptional circumstances by the Government after recording reasons thereof, and accordingly,— (i) all acts, proceedings or things done or action taken by the Government or by any other official of the Government or by any authority, in connection with the recovery of cost of construction of such schools, hospitals, community centres and other community buildings by the Director either through issuance of executive instructions or through condition prescribed in bilateral agreement or through any undertaking obtained from coloniser, for all purposes be deemed to be and to have always been done or taken in accordance with law; (ii) no suit or other proceedings shall be maintained or continued in any court or before any authority for the refund of any such amount already deposited or for nullification of Bilateral agreement already made, executive instructions already issued and undertaking obtained; and (iii) no court or authority shall enforce a decree or order directing the refund of any such recovery of cost of construction of such schools, hospitals, community centres and other community
    • 34 buildings so charged or for nullification of bilateral agreement executed or any executive instructions issued or any undertaking obtained in this regard. (2) Notwithstanding any judgement, order or decree of any court or tribunal or other authority to the contrary, if a licensee who deposited the cost of construction, full or part, on the demand of Government and later took the refund under a judgment, order or decree passed by court or tribunal or any other authority, the Government may, after the notification of the Haryana Development and Regulation of Urban Areas (Amendment and Validation) Act, 2012, order the recovery of the amount of construction of which the refund has been taken by the licensee under such judgment, order or decree, after giving a show cause notice and an opportunity of being heard. 24.06.12 Memo No. LC-147-II/2012/7/16/2006-2TCP of the date (EWS flats - The allotment of residential units constructed in Group Housing Colonies will be done by the colonizers as per the policy dated 03.02.2010.)
    • 35 08.07.13 Memo no. LC-147- 7/16/2006-2TCP of the date (EWS flats - policies issued vide memo no. LC- 147-7/16/2006-2TCP dated Chandigarh the 3rd Feb, 2010 and vide memo no. LC-147- II/2012/7/16/2006-2TCP dated 14.06.2012 have been reviewed and in supersession of these policies, the following comprehensive policy is framed:- 2.1 Quota of EWS flats: The licensee shall reserve 15% of total number of residential flats in Group Housing colony for allotment to economically weaker section/lower income group category.) AUTHOR NOTE: Earlier condition of "The colonizers are also allowed to allot 5% of total number of plots/flats reserved for EWS Categories to any eligible person." has been silently deleted. There is no mention at all of the LC-IVA condition (a): a) That in case of group housing adequate accommodation shall be provided for domestic servants and other services Population of economically weaker section and number of such dwelling units shall not be less than 10% of the number of main dwelling units and the area of such a unit shall not be less than 140 square feet., which will cater to the minimum
    • 36 size of the room along with bath and water closet. hence apartment owners are denied the mandate of Section 3(f)(iv) “The premises for the lodging of janitors or persons employed for management of the property;”