Tuesday, August 13, 2013

Apartment:- Meaning as per Indian Laws

An apartment, colloquially speaking, is a self contained housing or dwelling unit that occupies part of a building. In most commonwealth nations including India, an apartment is commonly known as a Flat. The concept of apartment came about due to increasing population and scarcity of available land to meet the growing need for housing, for an ever increasing population. To effectively cater to housing needs of crores of Indian, it was thought best to follow the system of vertical growth, whereby Flats or Apartments would be allowed to be sold to public at large who would own the said spaces within the said apartment and co-own or co-share the other areas as common property. To provide ownership of said unit, make it heritable and transferable property and define the common areas and facilities and the percentage share of each apartment owner in the apartment building the Apartment Ownership Act, was enacted. Housing being State subject, each State depending on available need and infrastructure, legislated somewhat similar versions of Apartment Ownership Acts. In Maharashtra it came to be known as The Maharashtra Apartment ownership Act, 1970. In West Bengal, the same was legislated as The West Bengal Apartment Ownership Act,1972. (Below is a list of various Apartment Ownership Acts of various States)

Legally speaking, as of today, most States in India have somewhat different meaning of an "Apartment", In Haryana, Maharashtra etc, an Apartment means, " a part of the property intended for any type of independent use, including building having one or more rooms with enclosed spaces located on one or more floors or any part or parts thereof, to be used for residence, office or for practicing any profession or for carrying on any occupation, trade, business or manufacturing or other uses related to information technology or for such other type of independent use, as may be prescribed, with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the Colonizer/owner of such property for use by the owner of such apartment for parking any vehicle or for residence of any person employed in such apartment, as the case maybe'.

On the other hand, States such as West Bengal, Himachal Pradesh and Kerela etc, define an Apartment as, " a part of the property  intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors ( or part or parts thereof) in a building intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway".

From the above definitions it is evident, that there exists a major and substantial difference in the meaning assigned by different States to an Apartment. In Haryana or Maharashtra, meaning of apartment is obfuscated with the usage of the space, like office or for practicing any profession, trade, business and even manufacturing  whereas States like West Bengal and Himachal Pradesh have quoted singular use of an apartment as Residential. This glaring discrepancy is negating and defeating the very purpose of the Act, which was to provide co-ownership of all common areas and facilities to the association of owners of the said apartment building. Due to these varied definitions in the States where the meaning of Apartment has been tweaked to incorporate different uses such as trade etc, the Colonizers have sold shops and other such facilities in the name of being an Apartment to third parties which it would not have been able to, had there been a singular meaning. It is pertinent to note that as per the Act the common areas such as shops, schools, dispensaries, service personnel flats and Community center etc all have to be co-owned by all apartment owners through an association. Therefore, definitions which give such large scope for manipulation to Colonizers, are creating unrest among the society, which invariably leads to humongous legal tussles between the State Authorities, Colonizers and apartment owners.

Usually all States have their respective Building Bye-laws that Govern the Construction and Development of the Group Housing Colonies. In Haryana, The Haryana Development and Regulations of Urban Areas Act, 1975. Similarly in Uttar Pradesh, The U.P. Industrial Area Development Act, 1976, govern the various provisions and regulations with respect to the building bye-laws of the particular State. It is evident from these Acts that the Statutory Authorities in each State are either issuing license's or leasing land to Colonizers for construction and development of a specific colony, either it is plotted colony, Group Housing colony or Commercial Complex, shopping mall or Information technology "Cyber Parks" or Industrial spaces. Therefore, before commencement of the project it is very clear to the Colonizer and the Statutory Authority, what the prescribed use of that colony would be after construction and development. Whether it would be used for residential, in case of plotted Colony/group Housing colony or it would be used for commercial purposes, like in case of shopping mall etc, or would be for setting up Industrial spaces, like SEZ etc,. For all different usages, the Building Bye-laws are different in each State, as prescribed by their respective Acts. The F.A.R, the Ground Coverage, the license fee, the lease rent etc all vary for each category of usage, as per rules that govern such activity in the State. For Apartment's in each State in India, the word residential is attached in almost all rules and regulations prescribed by various State Acts that govern the Building Bye-laws for Construction and development of planned urban development within each State. For Example in Haryana, The Haryana Development and Regulations of Urban Areas Act, 1975, defines under Section 2(c) The Colony as, " an area of land divided or proposed to be divided into plots or flats for residential, commercial, industrial, cyber city or cyber park purposes or for the construction of flats in the form of Group Housing  or for the construction of integrated commercial complex's". It is pertinent to mention that the Act is crystal clear in terms of the usage of Flats or plots when it prescribes, categorically the usage, as Residential. The same is further reiterated under Section 2(gg) where it defines a "Flat", " means a part of any property, intended to be used for residential purposes, including one or more rooms with enclosed spaces located on one or more floors, with direct exit to a public street or roads or to a common area leading to such street or roads and includes any garage or room whether or not adjacent to the building in which such flat is located provided by the colonizer/owner of such property for use by the owner of such flat for parking any vehicle or for residence of any person employed in such flat, as the case may be;". Therefore reading both the definitions together, it is evident that the law makers had a clear idea that the Flat or Apartment is a residential dwelling unit.

Then why have they not incorporated the same in the definition of Apartment in the "Apartment Ownership Acts", why some States have deemed it fit to assign varied, multiple and complex meaning to an apartment?? The problem that arises from such complex definition is that apartment owners in each State are fighting to get the Common Facilities back from their respective builders, who have sold the same under the pretext that according to the Act the shops etc are an apartment, which they have been allowed under the Act to sell. Isn't it time that either the Central Government through the Urban and Housing Ministry, directs the State Governments to follow a unified definition of an apartment or the Supreme Court upholds a singular definition for an apartment, which would simplify and erase ambiguity on its meaning through out India. Hope it is brought about soon, so that apartment owners, do not feel cheated and get the fair share of common areas within their respective group housing colonies.

Some of The Apartment Ownership Acts in India:-
1. https://dda.org.in/tendernotices_docs/july09/THEDELHIAPARTMENTOWNERSHIPACT1986.pdf
2. http://www.wbhousing.gov.in/files/WB%20APARTMENT%20OWNERSHIP%20ACT%201972.pdf
3. http://housing.maharashtra.gov.in/Sitemap/housing/pdf/actsrules/Maharashtra%20Apartment%20Ownership%20Act%201970.pdf
4.http://ada.iiita.ac.in/documents/UPApartmentAct07-Revised.pdf
5.http://himachal.nic.in/tcp/ACT_RULE2005.pdf
6. http://www.apoak.org/downloads/Kerala-Apartment-ownership-act-1983.pdf


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