(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) can not be
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) can not be
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) can not be
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 delgatee 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 Byelaws to be approved
by the owners representing atleast 2/3
rd
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 UP 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.
66. With the aforesaid interpretation and clarification of the
provisions of the U.P. Apartment Act, 2010, the U.P.
Apartment Rules, 2011 and the Model Bye Laws, 2011,
ironing out the creases for facilitating the resolutions of the
issues, which have been raised in these writ petitions, we
dispose of all the writ petitions with directions that the parties
to the writ petition with the aforesaid clarifications will get
their association of apartment owners registered without any
further delay, and thereafter raise the questions or disputes, if
any, at the first instance in the meeting of the association of the
apartment owners, before such disputes are taken to the
competent authority or the authority to which powers may be
delegated by the Competent Authority in accordance with the
directions issued in the judgment. Considering the number of
writ petitions pending and the issues, which are likely to arise,
we direct that in view of the provisions of Rule 3 of the U.P.
Apartment Rules, 2011 the declaration will be submitted by
the promoter under sub-section (1) of Section 12 in Form-A
appended to the Rule with its Annexures 'A' to 'F' and
Schedule 'A', by all the promoters in the State of U.P., who
have completed or partly completed constructions of the
buildings with more than three allotted or occupied apartments,
with the Competent Authority within one month from the date
of approval of the plans and where the building has been
constructed or is under construction prior to the
commencement of the Act and Rules, within 90 days, and that
in respect of all the buildings where 33% of the apartments
have been occupied after its sale transfer or delivery of 62
possession. The apartment owners, if they have not formed the
association so far and the promoters shall form an association
and get it registered after adopting the model bye-laws as
notified by the State Government on 16.11.2011, within a
period of 90 days. In case a meeting is not called within
reasonable time, say a month, after the notice is given for
convening such meeting and/ or the dispute is not resolved in
the meeting, the apartment owners or the promoter may make a
complaint to the competent authority, who will first make an
attempt to decide the matter with the help of mediation or
conciliation process and thereafter pass reasoned orders after
hearing the parties. Any party aggrieved with the decision
may, thereafter, approach the Courts for redressal of their
grievance.
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