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
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.
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.