Who will not want AOAs to be set up?

In­or­di­nate de­lay to grant pro­vi­sional com­ple­tion cer­tifi­cate to many group hous­ing projects de­prive home­buy­ers of their ba­sic rights

HT Estates - - HTESTATES - Jee­van Prakash Sharma

Hun­dreds of group hous­ing projects i n Ghaziabad have been un­able to get an apart­ment own­ers’ as­so­ci­a­tion (AOA) reg­is­tered be­cause of the al­leged ‘ dis­crim­i­na­tory’ at­ti­tude of the Ghaziabad Devel­op­ment Au­thor­ity ( GDA). Many flat own­ers de­mand that the au­thor­ity is­sue pro­vi­sional com­ple­tion cer­tifi­cates for hous­ing projects that do not have all in­fra­struc­ture and ser­vices in place – which is manda­tory for a com­ple­tion cer­tifi­cate.

Ac­cord­ing to the UP Apart­ment Act 2010, an as­so­ci­a­tion of apart­ment own­ers has to be set up for the ad­min­is­tra­tion of the af­fairs of a hous­ing so­ci­ety and for man­age­ment of com­mon ar­eas and fa­cil­i­ties.

Ac­cord­ing to Sec­tion 14( 2) of the Act, “It shall be the joint re­spon­si­bil­ity of the pro­moter and the apart­ment own­ers to form an as­so­ci­a­tion. The pro­moter shall get the as­so­ci­a­tion reg­is­tered when (a spec­i­fied) num­ber of apart­ments have been handed over to the own­ers, which is nec­es­sary to form an as­so­ci­a­tion or 33% of apart- ments, which­ever is more, by way of sale, trans­fer or pos­ses­sion, pro­vided the build­ing has been com­pleted along with all in­fra­struc­ture ser­vices and com­ple­tion cer­tifi­cate ob­tained from the lo­cal au­thor­ity.”

Pos­ses­sion of apart­ments has been given in many so­ci­eties de­spite there be­ing tow­ers in those projects that are un­der con­struc­tion. Com­ple­tion cer­tifi­cates, there­fore, have not been granted to the projects.

HC’s rec­om­men­da­tion

The Al­la­habad High Court, while hear­ing Writ Pe­ti­tion No 33826 of 2012, had rec­om­mended a way out. It said, “It is clar­i­fied that the com­ple­tion of all in­fra­struc­ture ser­vices and com­ple­tion cer­tifi­cate from lo­cal au­thor­ity will not be a ground to deny the regis­tra­tion, as the is­suance of com­ple­tion cer­tifi­cate de­pends on the steps to be taken by the pro­moter. The de­lay caused by him in ob­tain­ing such cer­tifi­cate will de­feat the ob­ject of for­ma­tion of the so­ci­ety and the en­force­ment of the rights and li­a­bil­i­ties of the pro­moter and the apart­ment own­ers. In such case, the so­ci­ety will be reg­is­tered pro­vi­sion­ally un­der the cer­tifi­cate to be given by the com­pe­tent au­thor­ity as de­fined in Rule 2 ( c) of the Act, who will give a time pe­riod to the pro­moter to pro­vide all in­fra­struc­ture ser­vices and to ob­tain a com­ple­tion cer­tifi­cate, fail­ing which the pro­moter will in­vite pun­ish­ment for the of­fence as pre­scribed un­der Sec­tion 25 of the Act, in­clud­ing the pun­ish­ment of im­pris­on­ment un­der Sec­tion 25 (1) of the Act.”

Pro­mot­ers be­ing pro­tected?

Sangeeta Shar ma, ex- s ec­re­tary, Ari­hant Par­adiso in Indi­ra­pu­ram, says, “Now if the GDA is­sues a pro­vi­sional cer­tifi­cate to a group hous­ing project, it will also have to is­sue an in­struc­tion to the pro­moter to com­plete the project within a par­tic­u­lar time­frame. If the pro­moter fails to do so then he will have to face prose­cu­tion. So, to save the pro­mot­ers, GDA is not is­su­ing any pro­vi­sional cer­tifi­cate to group hous­ing projects that are in­com­plete but have hun­dreds of res­i­dents. These res­i­dents have not been able to form any AOA and get the rights to main­tain the com­mon ar­eas and fa­cil­i­ties.”

Two as­so­ci­a­tions set up?

Two groups of res­i­dents of Omaxe Grand Woods in Sec­tor- 93 B Noida have been fight­ing with each other to form an AOA, claim­ing they have the man­date to do the same.

While one group is led by Prakash PVS, the other one is headed by Neelam Gandhi. There is no clar­ity on the is­sue. The deputy regis­trar ( firms, chits and so­ci­eties), Meerut, has handed over a regis­tra­tion cer­tifi­cate to Prakash PV. More im­por­tantly, how­ever, he (the deputy regis­trar) has re­fused to give the orig­i­nal regis­tra­tion cer­tifi­cate and reg­is­ter the model byelaws and the board of man­age­ment – which is manda­tory for the set­ting up of an AOA. “Byelaws of the as­so­ci­a­tion and board of man­age­ment are the es­sen­tial part of a reg­is­tered so­ci­ety, but the deputy regis­trar has is­sued a regis­tra­tion num­ber to a so­ci­ety with­out a byelaw and a board of man­age­ment – which is un­heard of,” writes Prakash PVS in a com­plaint let­ter to the regis­trar, firms, so­ci­eties and chits, Lucknow. When con­tacted, a se­nior of­fi­cial in Omaxe said, “Omaxe has not is­sued an NOC to any group at Grand Omaxe, Noida, to form AOA. Since more than two groups ap­proached the com­pany to form an AOA, the com­pany wrote to them say­ing a con­sen­sus should be reached be­fore an AOA is formed by any sin­gle group and the group that ful­fills all le­gal re­quire­ments would be given an NOC to form an AOA.”

What should the de­vel­oper have done?

Le­gal ex­perts say that a de­vel­oper can’t wash his hands of the whole con­tro­versy by only say­ing that res­i­dents should try to reach a con­sen­sus.“Ac­cord­ing to the UP Apart­ment Act, 2010, the de­vel­oper should have tried to bring about a con­sen­sus among the res­i­dents by ei­ther bring­ing them to­gether and talk­ing to them or by hold­ing an elec­tion in the group hous­ing project. In no con­di­tion should the de­vel­oper keep quiet and al­low the res­i­dents to fight. In many other group hous­ing projects, I have seen that de­vel­op­ers have their own peo­ple as flat buy­ers in the apart­ment who act as proxy can­di­dates for them. The whole pur­pose is to frus­trate the gen­uine home­buy­ers in their ef­fort to take con­trol of the main­te­nance of the so­ci­ety,” says Jas­bir Singh Mal­lik, a Supreme Court lawyer.

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