Preliminary Haryana Act No. 10 of 1983

Received the assent of the Governor of Haryana on 26th September, 1983, and was published in the Haryana Gazette (Extra.), Legislative Supplement, Part I, dated September 28, 1983/Asvina 6, 1905.

An Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property and matters connected therewith.

Be it enacted by the Legislature of the State of Haryana in the Thirty- fourth year of the Republic of India as follows :-

S.1 Short title and commencement

(1) This Act may be called the Haryana Apartment Ownership Act, 1983.

(2) It extends to the whole of the State of Haryana.

(3) This Act shall come into force in such areas and on such dates as the State Government may, by notification, appoint and different dates may be appointed for different areas.

Legal Commentary on Haryana Apartment Ownership Act, 1983 - Section 1

Introduction

Section 1 of the Haryana Apartment Ownership Act, 1983, primarily lays down the preliminary provisions, including the title, extent, and commencement of the Act. It sets the foundation for the regulation of ownership rights in apartments within Haryana.

What does Section 1 Say

Section 1 states that the Act may be called the Haryana Apartment Ownership Act, 1983, extends to the entire State of Haryana, and specifies the date of commencement. It provides the formal nomenclature and territorial scope of the legislation.

Essential Ingredients

• Title: The Act is named "Haryana Apartment Ownership Act, 1983."
• Extent: It applies throughout the State of Haryana.
• Commencement: The section specifies the date when the Act comes into force.
• Legal Framework: Establishes the legislative basis for regulation of apartment ownership.

Scope of Section

• The section applies to all apartments within Haryana, including future constructions.
• It provides the legal basis for subsequent provisions related to ownership, transfer, and management of apartments.
• It sets the stage for detailed rules on ownership rights, maintenance, and regulation of apartments.

Punishment for Section

• Section 1 itself does not prescribe any punishment; it is a framing section establishing the Act's scope and title.
• Penalties related to violations of the Act are specified in other sections, such as non-filing of declarations or violations of bye-laws.

Legal Comments

• Title Clarity - The section clearly defines the name of the Act, ensuring legal clarity and ease of reference. [Source: ""]
• Territorial Extent - The Act's applicability to the entire Haryana state provides a uniform legal framework for apartment ownership within the jurisdiction. [Source: ""]
• Commencement Clause - The specified commencement date ensures clarity on when the provisions become enforceable. [Source: ""]
• Foundation for Ownership Rights - Establishes the legal basis for individual ownership and collective management of apartments, as elaborated in subsequent sections. [Source: ""]
• Scope Limitation - The Act's scope is limited to apartments, excluding other forms of property, which is crucial for targeted regulation. [Source: ""]
• Legal Uniformity - Promotes uniformity in apartment ownership laws across Haryana, facilitating easier enforcement and compliance. [Source: ""]
• No Penalties in Section 1 - The section does not specify penalties; violations are addressed in later sections, emphasizing its framing nature. [Source: ""]
• Legal Hierarchy - Acts as a foundational section, with subsequent sections detailing rights, duties, and penalties, reinforcing the hierarchical structure of the legislation. [Source: ""]
• Enabling Provision - Provides the legal authority for the State Government to make rules and regulations under the Act, as per other provisions. [Source: ""]
• Legal Certainty - Ensures legal certainty by defining the scope and title, which aids in interpretation and enforcement. [Source: ""]
• Applicability to Future Constructions - The Act applies to both existing and future apartments, ensuring comprehensive regulation. [Source: ""]
• Legal Framework for Deeds and Registration - Sets the stage for mandatory deeds of apartment ownership, as mandated in Section 5(2). [Source: ""]
• Basis for Bye-laws - Facilitates the formulation of bye-laws governing apartment management, as per the provisions of the Act. [Source: ""]
• Promotion of Ownership Rights - Encourages individual ownership rights, which are heritable and transferable, as per the Act's objectives. [Source: ""]
• Legal Enforcement - The section's clear scope aids in legal enforcement and adjudication related to apartment ownership disputes. [Source: ""]
• Policy Framework - Acts as a policy framework for urban housing development and regulation within Haryana. [Source: ""]
• Reference for Legal Proceedings - Serves as a reference point in legal proceedings involving apartment ownership issues. [Source: ""]
• Alignment with National Laws - Complements national laws on property and urban development, ensuring consistency. [Source: ""]

Note: The analysis is based on the available sources, primarily focusing on the framing and foundational aspects of Section 1 of the Haryana Apartment Ownership Act, 1983.

S.2 Application of Act

The provisions of this Act shall apply to every apartment lawfully constructed for residential purposes, integrated commercial complexes, flatted factories, Information Technology Industrial Units, Cyber Park and Cyber City for the purpose of transfer of ownership of an individual apartment in a building whether constructed before or after the commencement of this Act. In case of licences issued under the Haryana Development and Regulation of Urban Areas Act, 1975 (8 of 1975), the owner of such property/building shall duly execute and get registered a declaration within a period of ninety days after obtaining part completion/completion certificate under the rules framed under the Haryana Development and Regulation of Urban Areas Act, 1975 (8 of 1975) or occupation certificate under the rules framed under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (41 of 1963), whichever is earlier. In case of property/building fal

S.3 Definitions

In this Act, unless the context otherwise requires, -

[(a) "apartment" means a part of a 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 relating 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 the residence of any person employed in such apartment, as the case may be.

Expl

S.4 Status of apartments

Each apartment, together with its undivided interest in the common areas and facilities, appurtenant to such apartment, shall for all purposes constitute heritable and transferable immovable property within the meaning of any law for the time being in force in the State of Haryana.

S.5 Ownership of apartments

(1) Each apartment owner shall be entitled to the exclusive ownership and possession of his apartment in accordance with the declaration.

(2) Each apartment owner shall execute a deed of apartment in relation to his apartment in the manner prescribed.

S.6 Common areas and facilities

(1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. Such percentage shall be computed by taking as a basis the value of the apartments in relation to the value of the property; and such percentage shall reflect the limited common areas and facilities.

(2) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the apartment owners and expressed in an amended declaration duly executed and registered as provided in this Act. The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the

S.7 Compliance with covenants, bye-laws

Each apartment owner shall comply strictly with the bye-laws, regulations, covenants, conditions and restrictions, set forth in the declaration or in the deed of apartment. Failure to comply with any of the same shall be a ground for an action to recover sums due, for damages or injunctive relief or both, maintainable by the Manager or Board of Managers on behalf of the association of apartment owners, or in a proper case by an aggrieved apartment owners.

S.8 Prohibition of certain works

No apartment owner shall do any work which would jeopardise the soundness or safety of the property, reduce the value thereof or impair any easement or hereditament or add any material structure or excavate any additional basement or celler without the prior consent of other apartment owners.

S.9 Encumbrances against apartments

(1) Subsequent to the recording of the declaration as provided in this Act and while the property remains subject to this Act, no encumbrance of any nature shall thereafter arise or be effective against the property. During such period, encumbrances may arise or be created only against each apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment, in the same manner and under the same conditions in every respect as encumbrances may arise or be created upon or against any other separate parcel of property subject to individual ownership :

Provided that, if during the period any encumbrance has arisen or been created against such apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment, no apartment and such percentage of undivided interest shall be partitioned or sub-divided in interest :

Provided further tha

S.10 Common profits and expenses

The common profits of the property shall be distributed among, and the common expenses shall be charged to the apartment owners according to the percentage of the undivided interest in the common areas and facilities.

S.11 Contents of declaration

(1) The declaration shall contain the following particulars, namely :-

(a) description of land on which the building and improvements are to be located and whether the land is freehold or leasehold;

(b) description of the building stating the number of storeys and basement, the number of apartments and the principal materials of which it is or is to be constructed :

(c) the apartment number of each apartment and a statement of its location, approximate area, number of rooms and immediate common area to which it has access and any other data necessary for its proper identification;

(d) description of the common areas and facilities;

(e) description of the limited common areas and facilities, if any, stating to which apartments their use is reserved;

(f) value of the property and of each apartment and the percentage of undivided interest i

S.12 Contents of deed of apartment

(1) The deed of apartment shall include the following particulars, namely :-

(a) description of the land as provided in Section 11 or the postal address of the property, including in either case the liber, page and date of executing the declaration, the date and serial number of its registration under the Indian Registration Act, 1908 and the date and other reference, if any, of its filing with the competent authority :-

(b) the apartment number of the apartment in the declaration and any other data necessary for its proper identification;

(c) statement of the use for which the apartment is intended and restrictions on its use, if any;

(d) the percentage of undivided interest appertaining to the apartment in the common areas and facilities; and

(e) any further details which may be desirable to set forth consistent with the declaration and this Act.

S.13 Declaration, deeds of apartments and copies of floor plans to be registered

(1) The declaration and all amendments thereto and the deed of apartment in respect of each apartment and the floor plans of the buildings referred to in sub-section (2) shall be registered under the Indian Registration Act, 1908.

(2) Simultaneously with the registration of the declaration, there shall be filed alongwith it a set of the floor plans of the buildings showing the layout, location, apartment numbers and dimensions of the apartments, stating the name of the building or that it has no name and bearing the verified statement of an architect certifying that it is an accurate copy of the portions of the plans of the building as filed with and approved by the local authority within whose jurisdiction the building is located. If such plans do not include a verified statement by such architect that such plans fully and accurately depict the layout, location, apartment numbers and dimensions of the apartments as built, there shall be recorde

S.14 Removal from provisions of Act

(1) All the apartment owners may remove a property from the provisions of this Act by any instrument to that effect duly executed :

Provided that the holders of all charges and other encumbrances affecting any of the apartments may consent thereto or agree, in either case by instruments duly executed, that their charges or encumbrances be transferred to the percentage of the undivided interest of the apartment owner in the property as hereinafter provided.

(2) Upon removal of the property from the provisions of this Act, the property shall be deemed to be owned in common by the apartment owners. The undivided interest in the property owned in common which shall appertain to each apartment owner shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities.

S.15 Removal no bar to subsequent resubmission of property to Act

The removal provided for in Section 14 shall in no way bar the subsequent resubmission of the property to the provisions of this Act.

S.16 Bye-laws

(1) The administration of every property shall be governed by bye-laws, a true copy of which shall be annexed to the declaration. No modification of or amendment to the bye-laws shall be valid unless set forth in an amendment to the declaration and such amendment is duly recorded and a copy thereof is duty filed with the competent authority.

(2) The bye-laws shall provide for the following matters, namely :-

(a) the election from among the apartment owners of a Board of Managers, the number of persons constituting the same, the tenure of such Board and that the term of at least one-third of the members of such Board shall expire annually; the powers and duties of the board, the method of appointment and removal from office of Secretary, Manager or Managing Agent and specifying which of the powers and duties granted to the Board by this Act or otherwise may be delegated by the Board to any or all of them :

No apartment owner shall be entitled to exempt himself from the liability for his contribution towards the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by abandonment of his apartment.

S.18 Separate assessment

Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common area and facilities appurtenant to such apartment (being an apartment submitted to the provisions of this Act) shall be deemed to be separate for the purposes of assessment to tax on lands and buildings leviable under such law and shall be assessed and taxed accordingly. The building, the property or any of the common areas and facilities shall not be deemed to be separate property for the purpose of the levy of such tax.

S.19 Charge on property for common expenses

All sums assessed by the association of apartment owners towards the share of the common expenses chargeable to any apartment and remaining unpaid, shall constitute a charge on such apartment prior to all other charges, except charge, if any, on the apartment for payment of the Government and local taxes, and all sums unpaid on a first mortgage of the apartment.

S.20 Joint and several liability of vendor etc. for unpaid common expenses

Upon the transfer of an apartment, the transferee of the apartment shall be jointly and severally liable with the transferor for all unpaid assessments for his share of the common expenses upto the time of the transfer without prejudice to the transferee's right to recover from the transferor the amount paid by the transferee therefor. Any such transferee shall be entitled to a statement from the Secretary or Board of Managers, setting forth the amount of the unpaid assessment against the transferor and such transferee and such apartment shall not be liable for nor shall be subject to a charge for any unpaid share of common expenses against such apartment accrued prior to such transfer in excess of the amount therein set forth.

S.21 Insurance

The Manager or Board of Managers, if required by the declaration or the bye-laws or by a majority of the apartment owners or at the request of a mortgagee having a first mortgage covering an apartment shall have the authority to and shall obtain insurance for the property against loss or damage by fire, and such other hazards under such terms and for such amount as shall be required or requested. Such insurance coverage shall be for the property in the name of such Manager or of the Board of Managers or the association of the apartment owners as trustee for each of the apartment owners in the percentage specified in the declaration. Premiums shall be deemed to be a part of common expenses, provisions for such insurance shall be without prejudice to the right of each apartment owner to insure his own apartment for his benefit.

S.22 Disposition of property, destruction or damage

If within sixty days of the date of damage to or destruction of all or part of the property it is not determined by the association of apartment owners to repair, reconstruct or rebuild, in that event :-

(a) the property shall be deemed to be owned in common by apartment owner;

(b) the undivided interests in the property, owned in common which shall appertain to each apartment owner shall be the percentage of the undivided interest previously owned by such owners in the common areas and facilities;

(c) any encumbrances affecting any of the apartments shall be deemed to be transferred in accordance with the existing priority to the percentage of the undivided interest of the apartment owner in the property as provided herein; and

(d) the property shall be subject to an action for partition at the suit of any apartment owner in which event the net proceeds of the sale together with

S.23 Action

Without limiting the rights of any apartment owner, actions may be brought by the Manager or Board of Managers, in either case in the discretion of the Board of Managers, on behalf of two or more of the apartment owners as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities or more than one apartment. Service of process on two or more apartment owners in any action relating to the common areas and facilities or more than one apartment may be made on the person designated in the declaration to receive service of process.

S.24 Act to be binding on apartment owners, tenants etc.

[(1) All apartment owners, tenants of such owners, employees of owners and tenants or any other person who may in any manner use property or any part thereof, shall be subject to the provisions of this Act and to the declaration and the bye-laws of the association of apartment owners adopted pursuant to the provisions of this Act.]

(2) All agreements, decisions and determinations lawfully made by the association of apartment owners in accordance with the voting percentages established under this Act, declaration or bye-laws shall be deemed to be binding on all apartment owners.

S.24(a) Penalties

Any owner of property/building, who does not file declaration within the period specified under section 2, shall be punishable with imprisonment of either description for a term which may extend to three years and shall also be liable to a fine of not less than Rs. 50,000 and Rs. 10,000 for each day of continuing offence.

S.24(b) Sanction of prosecution

No prosecution of any offence punishable under this Act, shall be instituted except with the previous sanction of the competent authority or any officer authorised in writing by him in this behalf.

S.24(c) Composition of Offence

(1) The Competent Authority or any person authorised by him by general or special order made in this behalf, may either before or after the institution of the prosecution compound any offence made punishable by or under this Act.

(2) Where an offence has been compounded the offender, if is custody, shall be released and no further proceedings shall be taken against him in respect of the offence compounded.]

S.25 Power to make rules

(1) The State Government may, by notification, make rules for carrying into effect the provisions of this Act.

(2) Every rule made under this Section shall be laid, as soon as may be after it is made, before the House of the State Legislature while it is in session for a total period of ten days which may be comprised in one session or in successive sessions, and if before the expiry of the session in which it is laid or the session immediately following the House agrees in making any modification in the rule or the House agrees that the rule should not be made the rules shall have effect only in such modified form or be of no effect, as the case may be. However, any such modification or annulment shall be without prejudice to the validity or anything previously done or omitted to be done under that rule.