The Hon’ble Allahabad High Court, while allowing a writ petition, ruled that for an apartment owners association to be formed and registered, only 33% occupancy is required. The Court quashed a cancellation order where the registration of an Apartment Owners Association was cancelled solely on the ground that the occupancy of the apartments was less than 60%.
What is the objective of the U.P. Apartment Act 2010?
The U.P. Apartment (Promotion of Construction, Ownership, and Maintenance) Act 2010 was enacted to provide for the ownership of an individual apartment in a building of an undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable. Common Areas and Facilities are defined under Section 3(i) of the Act, including roofs, halls, corridors, lobbies, stairs, basements, parks, etc.
What is Section 14 of the Act of 2010 and what is the new amendment of 2016?
Section 14 of the Act of 2010 provides for an Association of Apartment Owners for the administration of apartment affairs and the management of common areas and facilities.
Section 14(2) of the Act further states that the responsibility of forming an association vests jointly with the Promoter and the Apartment Owners. It lays down a condition that the Association shall be registered by the promoter subject to the fact that 33% of the apartments have been handed over to the owners by means of sale, transfer, or possession. Furthermore, the building must have been completed, and the completion certificate must have been obtained from the certificate authority.
The Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) (Amendment) Act, 2016, by means of Section 8, substitutes Section 14(2) of the principal Act of 2010, and essentially makes two changes. First, it changes the 33% of the apartments to 60%, and second, it adds a proviso that the Promoter may form a separate association for the management of an independent area or an independent commercial area if required.
What did the Court hold?
The Hon’ble Court recorded the fact that the registration of the Association was cancelled on the sole ground that the occupancy of the apartments in the building was less than 60%. However, it further found that the Amended Act could only come into force as and when the State Government may make a notification in that regard, and as of this judgment, there has been no such notification. Hence, the Legislation has not yet come into force.
Application of the provisions of legislation that is not in force is completely arbitrary and illegal. Therefore, the Principal Act shall be applicable and Section 14(2) stands without any amendment.
NEUTRAL CITATION No. 2024:AHC:105689
Counsel for Petitioner – Nikhil Kumar