Is Noida al­low­ing builders to cheat you of your space?

Some de­vel­op­ers are claim­ing own­er­ship over com­mon ar­eas, con­trary to the terms of the UP Apart­ment Act

HT Estates - - Front Page - Jee­van Prakash Sharma

Is the Noida Au­thor­ity vi­o­lat­ing the Ut­tar Pradesh Apart­ment (Pro­mo­tion of Con­struc­tion, Own­er­ship, and Main­te­nance) Act, 2010? The an­swer could be yes as the au­thor­ity is the first party to the sub­lease deeds ex­e­cuted by de­vel­op­ers in favour of part­ment own­ers in Noida. The deeds state that the com­mon ar­eas (lifts, park­ing space, clubs etc) in the apart­ments are owned by the de­vel­op­ers. This goes con­trary to the act, which states that such spa­ces be­long to the RWAs (res­i­dent wel­fare as­so­ci­a­tions) of the hous­ing so­ci­eties. The in­volve­ment of the au­thor­ity in sign­ing the deed is manda­tory as it owns all the land in Noida, Ut­tar Pradesh.

Land in Noida is leased out to real es­tate de­vel­op­ers who af­ter build­ing apart­ments sulease them to home buy­ers. They (the de­vel­op­ers) have to take the per­mis­sion of the Noida Au­thor­ity for sub-lease be­cause the au­thor­ity is the ul­ti­mate landowner. When de­vel­op­ers ex­e­cute a sub­lease deed in favour of the apart­ment own­ers, three par­ties are in­volved in the trans­ac­tion - Noida Au­thor­ity (the first party that owns the land), a real es­tate de­vel­oper (who gets the land on lease from the Noida Au­thor­ity) and the home owner (to whom the de­vel­oper sub­leases the flat with the au­thor­ity’s per­mis­sion).

Many such deeds ex­e­cuted by de­vel­op­ers deny the apart­ment own­ers any right over com­mon ar­eas and claim th­ese are the de­vel­op­ers’ prop­erty (see box).

Now the ques­tion is : How can the Noida Au­thor­ity be party to a doc­u­ment which clearly vi­o­lates the le­gal pro­vi­sion of the state?

“Noida be­ing a statu­tory au­thor­ity and an ac­tive stake­holder in the UP Apart­ment Act 2010 can­not be party to any doc­u­ment that ex­pressly vi­o­lates any of the pro­vi­sions of the pub­lic pol­icy. When a pub­lic pol­icy is there to define and de­cide what ‘com­mon ar­eas and fa­cil­i­ties’ are, there is no rea­son for Noida Au­thor­ity to al­low the same to be de­cided by the de­vel­oper,” says SK Pal, a Supreme Court lawyer.

Pal adds, “The ear­lier 1975 and the 2010 Acts give a com­pre­hen­sive list of ‘com­mon ar­eas and fa­cil­i­ties’ which in­clude park, com­mu­nity cen­tre, pumps, sewer line, plumb­ing line, com­mon pas­sage, fire refuge area, col­umns, etc. Broadly, the leg­is­la­tors en­vis­aged com­mon as­sets as all those as­sets that are re­quired for the ex­is­tence of the own­ers/in­hab­i­tants in a con­do­minium.”

Apart­ment own­ers are an an­gry lot. “We are los­ing both money as well as our rights. When we buy flats, we pay duty for its regis­tra­tion on the ba­sis of su­per area which in­cludes car­pet area and the com­mon area. So how can de­vel­op­ers claim own­er­ship on the com­mon area?,” asks Prakash PVS, RWA of­fi­cial of a so­ci­ety in Noida.

“If home­buy­ers op­pose this clause, the de­vel­op­ers refuse to ex­e­cute the sub­lease deed and with­out this doc­u­ment home­buy­ers don’t get own­er­ship rights,” adds Prakash.

An­other dis­puted is­sue be­tween home­buy­ers and de­vel­op­ers is the col­lec­tion of money to main­tain com­mon ar­eas. “If we go by the clause that gives com­mon area own­er­ship to the de­vel­oper, the RWA will never have any say in its main­te­nance. The de­vel­oper will col­lect the main­te­nance with­out be­ing ac­count­able to any­one. While the UP Apart­ment Act is clear that it is the joint re­spon­si­bil­ity of the pro­moter and home­buy­ers to from an as­so­ci­a­tion of all the res­i­dents and once the as­so­ci­a­tion comes into ex­is­tence, the man­age­ment of the af­fairs of the apart­ments re­gard­ing their com­mon ar­eas and fa­cil­i­ties shall be deemed to be trans­ferred from the pro­moter to the as­so­ci­a­tion. How is it pos­si­ble when the sub­lease deed is just con­trary to that?,” asks Ashish Kaul, an RTI ac­tivist.

Many RWA mem­bers al­lege that they have raised the is­sue with the Noida Au­thor­ity sev­eral times by point­ing out that the par­tic­u­lar clause is vi­o­lat­ing of their le­gal rights but no of­fi­cer is will­ing to pay any heed to them.

Though HT Es­tates made calls to se­nior Noida Au­thor­ity of­fi­cials, no one was will­ing to comment on the is­sue.

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