Summary of apartment owners act judgments v1.7

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APARTMENT OWNERS ACTS IN INDIA

APARTMENT OWNERS ACTS IN INDIA

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  • 1. 1 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi Summary of Apartment Owners Act Judgments V1.7 Ser HC/SC Title/Citation/Point Date Pg 1 Bombay Rajendralal Shadilal v State of Maharashtra AIR 1980 Bom 261: Builder member not a purchaser 29-Aug-79 1 2 Bombay Association of Commerce v Vishandas Samaldas (1981) 83 BOMLR 339: Mandate of Section 4 & 7 of MOFA 1963 is absolute 8-Dec-80 24 3 Bombay Neena Sudarshan Wadia (Smt.) v Venus Enterprises 1984 (2) BomCR 505: a promoter is made a trustee, inter alia, of the amounts received as advance or deposit from persons intending to purchase or who have purchased flats, promoter is enjoined upon to hold such moneys for the purposes for which they were taken, promoter prohibited from constructing any additional structures or altering the structure of the building unless previous consent of all the persons who have agreed to take the flats is taken 9-Feb-83 85 4 Bombay Kalpita Enclave Co-Operative v Kiran Builders Pvt. Ltd. 1987 (1) BomCR 355, (1986) 88 BOMLR 100, 1986 Mh.L.J. 110: A blanket consent or authority obtained by the promoter at the time of entering into the agreement for sale or at the time of handing over possession is not the consent contemplated, the law says that without the consent of all flat purchasers no alteration in the structure of the building can be made or no additional structure or any additional structure not warranted by the agreements and the plans and the specifications can be constructed, it is not open to the promoters to turn round and say that they would take the consent of only some of the persons and make some alterations, What is permissible under the Bombay Municipal Corporation Act does not necessarily become 16-Aug-85 133
  • 2. 2 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi permissible under the provisions of the Ownership Flats Act. In such cases, the flat purchasers have remedy in the law because a wrong have been committed and since this wrong cannot be remedied under the provisions of section 7(2), the only forum in which this can be agitated is the Civil Court. 5 Gujarat The Competent Officer Gujarat v .K.B. Parmar AIR 1993 Guj 5: GOFA 1973, Power of Board to evict 15-Apr-91 173 6 Bombay Khatri Builders vs Mohmed Farid Khan And Ors. 1992 (1) BomCR 305, AIR 1975 SC 2238: promoter cannot under the cloak of the blanket consent obtained under the proforma agreement of sale carry out the work of additional structures thus nullifying the provisions which are made essentially for the protection of the purchasers of flats, contravention of section 7(1) of the Ownership Flats Act gives a cause of action because any construction carried on by the promoter which is not in accordance with the plans and specifications of the building on the basis of which the flat owners agreed to purchase the flats will be an unauthorised construction A negative obligation placed upon the promoter by section 7, if broken, must necessarily give rise to a civil cause of action, though it has not been a penal offence under the provisions of this Act, attempt of the promoter to construct any additional structure without the previous consent of all the persons who have agreed to take the flats, it must follow that the Civil Court alone has Jurisdiction 19-Sep 91 214
  • 3. 3 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 7 Delhi Sagar Apartments Flat Owners Association v Sequoia Construction Pvt Ltd 51 (1993) DLT 308: by non execution of the deeds of apartment, rights and interests of the apartment owners/allotters are NOT obliterated, analogy of a suit for specific performance of an agreement to sell a property filed by the vendee is totally alien to the point under consideration regarding applicability of the provisions of a Statute 31-Mar-93 236 8 SC Dr G.N. Khajuria v Delhi Development Authority AIR 1996 SC 253: Punish officers responsible for continuing illegality 31-Aug-95 277 9 Andhra CSR Estates Flat Owners Welfare Association v Hyderabad Urban Development Authority 1998 (6) ALD 547: Amend declaration after consent of all apartment owners 2-Nov-98 285 10 Kerala Lissy Lyju v Tahsildar AIR 2001 Ker 82: Definition of apartment 18-Aug-00 310 11 Gujarat Centre Point Welfare Association v Nita International (2001) 4 GLR 2777: GOFA 1973, builder may not sell shops, one sided contracts Article 21 8-Mar-01 333 12 Gujarat Narendra Shankarbhai Patel v State of Gujarat: Liability for defective construction 30-Apr-01 466 13 SC Gayatri De v Mousumi Cooperative Housing Society (2004) 5 SCC 90: Writ maintainable against orders of Board 16-Feb-04 484 14 Andhra Atluri Purushotham v VUDA: limits placed on rights of neighbours, Article 21 13-Apr-05 502 15 Andhra Dr V. Sundara Rao v Director Town & Country Planning 2005 (6) ALD 525: neighbour may question unauthorized construction 30-Aug-05 577
  • 4. 4 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 16 Andhra Pallavi Enclave Flat Owners Association v State of A.P. 2006 (2) ALD 272: once the first flat is purchased by any person, for the first time, such purchaser and the builder become common owners. Even if such builder keeps for himself a flat or two, his status would be that of a co-owner and he cannot claim a priority right or pre-emption right. 24-Jan-06 593 17 Bombay Gladhurst Coop Housing Society v Dr (Mrs) V.B. Shah 2006 (4) BomCR 97: Bye-laws are binding 5-May-06 623 18 Bombay Chheda Housing Development v Bibijan Shaikh Farid 2007 (3) MhLj 402: Obligation to transfer land 15-Feb-07 677 19 Bombay Bjranglal Eriwal And Ors. vs Sagarmal Chunilal And Ors. 2008 (110) Bom LR 1252: There is a statutory embargo upon the making of alterations either in an individual flat or in respect of the structure of the building after the disclosure of the plans and specifications of the building, the State Government was conscious of the fact that on account of an acute shortage of housing, there were "sundry abuses, malpractices and difficulties relating to the promotion of the construction of, and the sale and management and transfer of flats taken on ownership basis." The legislature has found that such malpractices not merely existed, but they were increasing. It is in this background that the Court must adopt a purposive interpretation of law and that interpretation which would defeat the object of the legislature must be eschewed, It is well settled that such a general consent will be of no avail. Such a consent cannot be the basis to enable the builder to go for the amendment of the plan already sanctioned and available at the time of execution of the purchase agreement without taking prior consent of the flat 27-Mar-08 702
  • 5. 5 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi purchasers, Plaintiffs have made out a prima facie case for the grant of interim relief. Denial of interim relief would only encourage a breach of the statutory obligations cast on the promoter under the Act. The balance of convenience must clearly lie in favour of the grant of injunction. 20 Bombay Nahalchand Laloochand Pvt Ltd v Panchali Coop Housing: Parking as common area, Definition of amenity, no estoppel against the statute as is well-known and, therefore, the trial Court rightly held that the individual undertakings furnished by the flat purchasers were contrary to the provisions of MOFA and were illegal 25-Apr-08 720 21 Delhi D.C.M. Ltd v R.K. Towers India Pvt Ltd: No locus of builder after sale of flats 22-Aug-08 754 22 Delhi Guru Ram Das Bhawan v Doon Apartments: upon formation of AOA security deposit to be handed over, while disallowing most of the reliefs claimed in the suit, I do the same with a heavy heart being fully aware of the difficulties being faced 28-May- 09 773 23 Madras Cosmo Towers Owners Association v Chennai Metropolitan Water Supply & Sewerage Board: AOA has no right to disconnect water, electricity, may recover dues as per statute, every owner is automatic member of AOA 18-Jun-09 790 24 P&H CWP No.960 of 2000 Manmohan Lowe v State of Haryana: Apartment owners are entitled to undivided interest in common areas and facilities under section 6 of the 1983 Act and, thus, are vitally affected if common area in which apartment owners are entitled to undivided interest is not declared to be common area; Stand on behalf of the State is that while there is no dispute about common areas covered by Clauses (1) to (6) of Section 3(f), dispute arises with 09-Sep-09 808
  • 6. 6 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi regard to interpretation of Clause (7) and the disputed items may or may not fall under the said clause. Since the matter is pending before the competent authority, the competent authority may be required to take a decision or the Court may clarify the position; In the context of the present complex, the licence was for residential purpose and the definition of “apartment” referred to residential areas; We are of the view that the declaration must categorise the entire property into either apartments or limited areas and facilities or common areas and facilities; As regards judgment of the Hon’ble Supreme Court in DLF Qutab Enclave Complex (supra), holding that community buildings etc. covered by section 3(3)(a)(iv) could be transferred by the colonizer and under the licence, the obligation of the licensee was only to construct the said buildings and not to hand it over to the Government, the same will not apply for interpretation of provisions of Sections 5, 6 and 11 read with Clauses (a), (f) and (l). The said question was not before the Hon’ble Supreme Court; 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; After elections take place, there will be only one association; jurisdiction of the civil court also exists; Elections may be conducted under supervision of representative of competent authority or civil court
  • 7. 7 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 25 Bombay Noopur Developers v Himanshu V. Ganatra Borivili West: Delay not a ground to condone illegal construction, additional FSI not to go to builder as a matter of course 14-Jan-10 841 26 P&H Celebrity Homes RWA v State of Haryana: FAR benefit on account of delay in completion 8-Apr-10 859 27 Delhi O.S. Bajpai v The Administrator (Lt Gov): Common areas, appointment of AOA registrar, time bound formation of AOA, handing over of land by builder 28-May- 10 903 28 SC Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-Operative Housing Society Ltd. (2010) 9 SCC 536: Definition of Flat - Definition of Common Areas (MAOA) - argued by counsel for promoter that it is for the promoter to prescribe and define at the outset the `common areas' - if the answer to this question is in negative, which it has to be, this argument must fail, argued by learned counsel for the promoter that in view of the provisions of MOFA, Section 6 of T.P. Act and Article 300A of the Constitution, the right of the promoter to transfer parking spaces is not at all restricted, We think this argument does not bear detailed examination - if the argument of learned senior counsel and counsel for promoter is accepted, the mischief with which MOFA is obviously intended to deal with would remain unabated and flat purchasers would continue to be exploited indirectly by the promoters - promoter has no right to sell any portion of such building which is not `flat' and the entire land and building has to be conveyed 31-Aug-10 929
  • 8. 8 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 29 Delhi The Nav Nirman Cooperative Group Housing Society Ltd. v A.K. Murarka & Ors: - decision taken in GBM is binding, enjoyment of parking space does not create any right in the proportionate share in the land, members shall use allocated parking space only for the purpose of parking their vehicles, the allocation of parking space shall be only on license basis, in Nahalchand Laloochand Pvt.Ltd v. Panchali Cooperative Housing Society Ltd. decided on 31.08.2010 - held that the stilt car parking space could not fall within the definition of a flat and was part of common area and could not be sold separately, held also that the promoter thus did not have a right in the same and were this to be permitted, the very purpose of enacting the aforesaid Act would be defeated since the flat purchasers would continue to be exploited indirectly by the promoters 1-Oct-10 968 30 Delhi Cinerama Pvt Ltd v NDMC: Assess each apartment as separate unit for taxation 25-Jan-11 981 31 Delhi Nehru Place Hotels Ltd v Bhushan Ltd: no locus of builder to continue maintenance services without giving accounts 9-Aug-11 999 32 Bombay Mr. Vijay Pandurang Vaidya & Anr. v Credence Property Developers Pvt. Ltd.: Society - when is proper and necessary party, reliance placed in para 8 of the Judgment in the case of Nahalchand Laloochand Private Ltd. v Panchali Co-op Housing Society Ltd (2010) 9 SCC 536 not correct, mandatory on the part of the Buider/developer to provide space for parking purpose, held that Buider/developer is illegally trying to sell/dispose of car parking spaces, locus of individual apartment owner in certain circumstances upheld 7-Mar-12 1025
  • 9. 9 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 33 Bombay Maharashtra Chamber of Housing v State of Maharashtra: rights which are conferred upon flat purchasers transcend those which are available under ordinary contractual conditions - MOFA is not the only regulatory enactment governing the promotion, sale and transfer of flats in the State. The Maharashtra Apartment Ownership Act, 1970 was enacted to provide for the "ownership of an individual ownership apartment in a building and to make such apartment heritable and transferable property."- A circular cannot override a legislative provision or an exercise in the nature of subordinate legislation - in the case of construction contracts where the immovable property, land or as the case may be, interest therein is to be conveyed and the property involved in the execution of the construction contract is also transferred, it is the latter component which is brought to tax under Maharashtra Value Added Tax Act, 2002 10-Apr-12 1032 34 Gujarat Gujarat Vrajmoti Corporation vs Ambawadi Apartment Owners Association: Builders interpretation of Section 53A of the Transfer of Property Act qua common areas and facilities in the cases falling under GOFA 1973 misconceived - refer Preamble, Sections 17, 18(1)(f) & 21; that when the unit holder/flat holders is allotted a flat, he will have a right of enjoyment of common amenities and facilities like compound, staircase and other facilities, which may be there including the terrace in common 23-Apr-12 1090 35 Bombay Pradeep Shankar Walvekar v Anil Narsinha Annachhatre: where the developer proposes to subject the property either to the provisions of MOFA or the MAOA 1970 may be a category of agreement - specifically enforceable 18-Jul-12 1111
  • 10. 10 APARTMENT OWNERS ACT HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi 36 Bombay Sultanabad CHS Ltd (Proposed) v State of Maharashtra: prevent the sundry abuses and malpractices which had been on increase, appointment of one or more Competent Authorities for different local areas, building belongs to the Society which is a body consisting of flat purchasers, but the land beneath it does not belong to it or is not owned by it, If the promoter submits property to the provisions of the Maharashtra Apartment Ownership Act, 1970, it shall not be lawful to form any co-operative society or company 31-Aug-12 1148 FULL TEXT OF JUDGMENTS AT LINK BELOW: http://www.slideshare.net/manioberoi/hc-sc-judgments-aoa-with-index-v17-25353942