Sunday, March 2, 2008
http://huda.nic.in/news_22feb08.pdf
Implementation of the provisions of the Haryana Apartment
Ownership Act, 1983-
Speaking Orders passed :-
In compliance of the orders dated 10.12.07 passed by the Hon’ble Punjab &
Haryana High Court in CWP No.18571 of 2007 titled as Forum for common
cause (Regd.) society V/s Haryana Urban Development Authority, a
Speaking Order has been passed by the Chief Administrator, HUDA after
giving personal hearing to the petitioner on 14.01.08 & 21.01.08. The
Speaking Order has been supplied to the petitioner vide memo. no. CTP -
HUDA / DTP-M / 1705, Dated 20.02.08. A copy of the order is available on
this site.
Orders:-
In compliance of the orders dated 10.12.07 passed by the
Hon’ble High Court in CWP No.18571 of 2007 titled as Forum for common
cause (Regd.) society V/s Haryana Urban Development Authority, an
opportunity for personal hearing was granted to the petitioner on 14.01.08
at 11.00 AM in the Conference Hall, HUDA Complex, C-3, Sector-6,
Panchkula. Petitioner was informed about the hearing vide memo. no. CTP -
HUDA/DTP-M/132, dated 04.01.08. S/Sh. Deepak Rai Walia, Nath Singh,
B.D. Dhingra and D.R. Sharma were present for petitioners and CTP HUDA,
LR HUDA, EO Panchkula & DTP(M) were present for the respondents. Sh.
Walia requested that they have been given insufficient time to be prepared
for the hearing. Upon this, the hearing was postponed to 21.01.08 at 11.00
AM at the same venue.
2. The hearing on 21.01.08 was attended by S/Sh. Deepak Rai Walia,
Nath Singh, B.D. Dhingra and D.R. Sharma on behalf of petitioners and
by EO Panchkula, DTP(M) & ADA for the Respondents. The Petitioner
has given a representation dated 21.01.08 after the hearing to put on
record the view point expressed by them during the course of hearing.
The CWP number has been wrongly mentioned as 18561 of 2007 by
the Petitioner in his representation which seems to be a typographical
error. The Petitioner has prayed for consideration of all the submissions
made in the representations/appeal as well as in the writ petition. The
basic contentions of the Petitioner which emerge from their
representation and the writ petition can be summarized as under:
i) That the Haryana Apartment Ownership Act, 1983 is not applicable to
the Co-operative Group Housing Societies. The Petitioners
emphasized that the provisions of Section-2 of Haryana Apartment
Ownership Act, 1983 [hereinafter referred to as the ‘Act’] are
applicable for the purpose of transfer of ownership of an individual
apartment, whereas members of the Co-operative Group Housing
Societies have no individual ownerships. Also, as per Haryana
Apartment Ownership (Amendment) Act 2002, the said Act is not
applicable to the societies in which members of the societies are only
shareholders and they have no right of individual ownership.
ii) That under Section-43 of the Cooperative Societies Act, the societies
have been exempted from compulsory registration of instrument.
Cooperative Group Housing Societies are governed by Haryana
Cooperative Societies Act, 1984, as per provisions of which no
member of the society has any individual ownership right. He is only
member of the said society and he has only one share. Therefore,
under the Haryana Cooperative Societies Act, the share holders are
- 3 -
exempted from compulsory registration of instrument. That the
Hon’ble High Court of Gujarat had upheld the version of the ibid
section of the Act in some judgment pertaining to the Santosh
Cooperative Housing Society where the Hon’ble High Court of Gujarat
had ordered that
“ The Santosh Cooperative Housing Society limited is
‘Tenant Co-operative Society’ and since the land and super structure
thereon belongs in the eye of law to the society, in the matter of
transfer of shares relating to them, compulsory registration is not
necessary on account of exemption enacted by the State Legislature
in the clause(s) of section 42. We are, therefore, of the opinion that
transfer of the property in question from Girish to Plaintiff was a valid
transfer ….”
iii) That various societies have filed detailed representation but no one
has examined the same.
iv) That the impugned direction to the members for registration of their
flats under Haryana Apartment Ownership Act, 1983 amounts to
double registration.
v) That almost similar condition has been set aside by the Allahabad
High Court.
vi) That even the Haryana Urban Development Authority itself was not
applying the Haryana Apartment Ownership Act 1983 to the societies.
Although the Haryana Apartment Ownership Act 1983 was notified on
10.11.1997, even then HUDA had issued the instructions for charging
transfer fee for change /transfer of the membership.
vii) That in the amendment carried out in the Haryana Apartment
Ownership Rules [hereinafter referred to as ‘Rules’] in January 2003,
the Cooperative Societies have been taken out of the preview of the
Haryana Apartment Ownership Act.
3. After examining the matter, I am of the considered opinion that the
contention at serial no. 1 is not supported by the provisions of Section
2 of the Haryana Apartment Ownership (Amendment) Act, 2002. This
section clearly lays down that in case of property/building falling in the
area developed by the Haryana Urban Development Authority, the
owner of such property/building shall duly execute and get registered a
declaration within a period of ninety days after obtaining occupation
certificate of the building under the regulations framed under the
Haryana Urban Development Authority Act 1977(13 of 1977). In case
of property/ building where the owner has already obtained part
completion/completion or occupation certificate under the rules and
regulations framed under the said Acts, the period of ninety days shall
take effect from the commencement of this Act. Section 3(ii) of this Act
separately defines Chief Administrator, Haryana Urban Development
- 4 -
Authority as the Competent Authority in respect of areas developed by
HUDA. Similarly, Director, Town & Country Planning and Director,
Urban Development have been designated as Competent Authority for
the areas under their respective jurisdiction.
4. The Act has been enacted by the Legislature of the State of Haryana
with a view to promote Group-Housing and to have some statute to
control the building activities as well as ownership rights in case of
group housing. As per section 1(2), the Act extends to whole of the
State of Haryana. Under the provisions of section 5 of the Act, each
apartment owner shall be entitled to the exclusive ownership and
possession of his apartment in accordance with the declaration, and
each apartment owner shall execute a deed of apartment in relation to
his apartment in the manner prescribed. Section 13 clearly lays down
that the declaration and all amendments thereto and the deed of
apartment in respect of each apartment and the floor plans of the
buildings are required to be registered under the Indian Registration
Act, 1908.
5. The Act has been enacted by the Town & Country Planning Department
of Government of Haryana, and the Director, Town & Country Planning
Department Haryana has clarified that all the provisions of the Act with
respect to Deed of Declaration and Deed of Apartment are applicable to
land allotted to Group Housing Societies, whether Cooperative Society
or Society under Firms and Registration Act.
6. As per Model Byelaws for Cooperative Group Housing Societies annexed
by the Petitioner as annexure P-2, Byelaw no. 2 defines the Objects of
the Society, relevant part of which is reproduced as under:
(i) To acquire either through outright purchase or on lease, land
for development and construction of residential houses/flats for
giving to its members, either outright purchase or on lease or
rent but the ownership of land shall always remain with the
Society.
(ii) To lease out/sell residential houses/flats to its members.
Byelaw 6 provides that every member must hold at least one
share in the society, and byelaw 7 provides that no member of the society
shall hold more than one flat in the Society in his/her own name/names of
his/her dependents or family members like wife/husband, son or daughter
living with him/her. This suffices to clarify that Flat and Share are two
distinct entities because while one can not own more than one flat in a
society, however, one can have more than one share.
Therefore the contention of the petitioner that members of the
societies are only shareholders and they have no right of individual
ownership is not borne out by the Model Byelaws of the Co-operative
- 5 -
department Haryana governing the Cooperative Group Housing Societies.
While the ownership of land in a Society remains with the society, the
societies have allotted flats/apartments to individual members by issuing
individual allotment letters. The societies have been effecting transfer of
built-up apartments at their own level as change in membership and
unlawfully charging substantial amount from the purchaser, which should
have lawfully gone to the State exchequer in the shape of stamp duty. The
societies/apartment owners have not followed the provisions of the Act
inspite of having obtained the occupation certificate many years ago, and
also inspite of the notices sent to them.
7. Section 43 of the Haryana Co-operative Societies Act 1984, is
concerned with the transfer of share of member and as stated in the
aforesaid, share and flat are two distinct entities. Vide Haryana
Government Gazette notification issued on April 26, 2006, the following
clause has been added in section 43 of the Cooperative Societies Act.
“(vii) After clause(s), the following clause shall be inserted, namely:
‘(sa) “share” mean an interest of a member in the society measured by a
sum of money including both rights and liabilities.
Therefore, the contention of the petitioner that section 43 of
the Haryana Cooperative Societies Act 1984 provides them immunity from
compulsory registration of instrument does not hold good in the case of
transfer of flats. For example, if a person is a member of Cooperative
Society which has not been allotted land by HUDA till date and if he
transfers the share to any person (which is permissible), no stamp duty
shall be paid because of the exemption granted under Section 43 of the
Haryana Cooperative Societies Act. Had this exemption not been there, the
stamp duty would have been paid as has to be paid on transfer of shares in
listed Companies like Reliance Industries Ltd. etc. However, on transfer of
immovable property like flat, this Section 43 does not provide any
immunity. Similarly, in case of a Society which has been allotted land by
HUDA and a member transfers his share as well as flat, while no stamp duty
shall be paid on transfer of share as it is exempted under Section 43 of the
Cooperative Societies Act, stamp duty has to be paid on transfer of flat for
which Deed of Apartment will have to be executed.
The judgment of Hon’ble High Court of Gujarat quoted by the
petitioner is not applicable in view of above discussion/specific provision in
the Haryana Act.
8. HUDA has sent detailed replies to a large number of societies who had
represented against the Public notice issued in leading newspapers
regarding enforcement of provisions of the Haryana Apartment
Ownership Act, 1983. In its reply sent to various societies, Haryana
Urban Development Authority has clarified that the apartment owners
- 6 -
will not be doubly taxed, since the deed of apartment is to be
executed on the basis of value of the flat only indicated by the Society
in deed of declaration. This value would be the actual cost of
construction excluding land cost in case of original members and
market value of the entire flat including land cost for the owners who
have purchased the flat in resale. The Petitioners during the hearing
raised the issue of discrimination as compared to individual plot
holders if the provisions of this Act are made applicable to even the
original members of the Group Housing Societies. For example, in case
of an individual plot holder when he constructs the same, no stamp
duty is to be paid on the cost of construction but on the other hand, as
per this Act, even the original members are being asked to get Deed of
Apartment registered by paying stamp duty. Though apparently there
seems to be some discrimination but both sets of people are governed
by different statutes and we have to see whether the provisions of this
Act are applicable only on resale or even to the original members.
From the careful perusal of the Act and Rules, it is evident that no such
distinction has been made in the Act, which governs these Apartments.
Even though there is some merit in their plea but for that law itself has
to be amended, and no relief can be granted unless the law is
amended.
9. The contention that the Haryana Urban Development Authority itself
was not applying the Haryana Apartment Ownership Act, 1983 to the
societies is not correct because the allotment letters issued to the
Societies and the agreement executed in Form ‘C’ between CA HUDA &
the allottee societies clearly provide that the provisions of the Haryana
Apartment Ownership Act, 1983 shall be binding on the allottee
society. Since there is a specific provision in the contract which has
been entered into by the Societies with HUDA, the provisions of the Act
& Rules for filing and registration of Deed of Declaration and Deed of
Apartment are applicable & the judgment of the Hon’ble Allahbad High
Court quoted by the petitioner in his representation (Name & citation
not mentioned by the petitioner in the representation) shall not be
applicable in this case. The fees for change in size of dwelling
units/change in number of members/change of membership is
accepted by HUDA, as per approved policy, as an administrative charge
for updating of record. However, charging of this fee does not exempt
the apartment owner from the provisions of the Haryana Apartment
Ownership Act, 1983. Similar administrative charges are payable by
plot/house owners of HUDA also who pay stamp duty whenever the
plot/house is transferred. It stands clarified that this fee may be
charged only up till the time the society has not obtained Occupation
certificate. Once the Occupation certificate has been issued, all
- 7 -
transfer/change in membership has to be as per provisions of the
Haryana Apartment Ownership Act, 1983 read with the Indian
Registration Act, 1908. In addition, HUDA can charge administrative
charges for updating the record pertaining to membership of the
societies.
10. The amendment dated 20.01.2003 in the Rules does not exempt or
exclude the Cooperative Group Housing Societies from the Provisions
Of Haryana Apartment Ownership Act as claimed by the petitioner,
since in the said amendment the words “/group housing scheme” and
“residential apartments” have been omitted/substituted only for the
reason that the Act is applicable not only to Group Housing Societies
but to other buildings also like integrated commercial complexes,
flatted factories, Information Technology Industrial units, Cyber Park
and Cyber City.
In view of the above stated facts/position, I am of the
considered opinion that the Cooperative Group Housing Societies and
Welfare Housing Organizations allotted land by HUDA under its Group
Housing Schemes, as well as the owners of apartments in such societies are
bound by the provisions of Haryana Apartment Ownership Act 1983. The
representation of the petitioner for exemption of Cooperative Group
Housing Societies which have been allotted land by HUDA from the
purview of the Haryana Apartment Ownership Act, 1983 and Rules
made thereunder is hereby rejected.
However, keeping in view the differential treatment meted out
to the original members of the Society as compared to the plot holders,
HUDA is considering recommending to the Government exempting the
original members from getting the Deed of Apartment registered under the
Indian Stamp Act and, therefore, for a period of six months i.e. by
31.08.2008, the original members may not get the Deed of Apartment
registered, by which it is hoped that Government will take a final view in
this regard. However, mere recommendations by HUDA in this regard shall
not overrule the provisions of the Act and shall not give any right to the
original members of the Society to claim exemption later on. This is only a
recommendation being made separately to the Government. At the same
time, it is decided that all those members of the Cooperative Group Housing
Societies who have purchased the flats in resale should get their Deeds of
Apartment registered by 31.3.2008 positively failing which necessary action
as provided for in the Act and Rules shall be taken. Needless to mention
that no Cooperative Group Housing Society is exempted from filing Deed of
Declaration which must be done with a period of 30 days from today failing
which necessary action against the Office Bearers of the Society shall be
initiated as per provisions of this Act.
- 8 -
The orders were reserved after hearing of the arguments and
the speaking orders have been passed today which may be sent to the
petitioners as well as Press Release may be issued to give wide circulation
of these orders. A copy of these orders may also be sent to all the
Administrators and Estate Officers of HUDA for compliance.
Place: Panchkula ---sd---
Date: Feb. 20, 2008 (T.C. Gupta, IAS)
Chief Administrator,
Haryana Urban Development Authority,
E mail: huda@hry.nic.in
Implementation of the provisions of the Haryana Apartment
Ownership Act, 1983-
Speaking Orders passed :-
In compliance of the orders dated 10.12.07 passed by the Hon’ble Punjab &
Haryana High Court in CWP No.18571 of 2007 titled as Forum for common
cause (Regd.) society V/s Haryana Urban Development Authority, a
Speaking Order has been passed by the Chief Administrator, HUDA after
giving personal hearing to the petitioner on 14.01.08 & 21.01.08. The
Speaking Order has been supplied to the petitioner vide memo. no. CTP -
HUDA / DTP-M / 1705, Dated 20.02.08. A copy of the order is available on
this site.
Orders:-
In compliance of the orders dated 10.12.07 passed by the
Hon’ble High Court in CWP No.18571 of 2007 titled as Forum for common
cause (Regd.) society V/s Haryana Urban Development Authority, an
opportunity for personal hearing was granted to the petitioner on 14.01.08
at 11.00 AM in the Conference Hall, HUDA Complex, C-3, Sector-6,
Panchkula. Petitioner was informed about the hearing vide memo. no. CTP -
HUDA/DTP-M/132, dated 04.01.08. S/Sh. Deepak Rai Walia, Nath Singh,
B.D. Dhingra and D.R. Sharma were present for petitioners and CTP HUDA,
LR HUDA, EO Panchkula & DTP(M) were present for the respondents. Sh.
Walia requested that they have been given insufficient time to be prepared
for the hearing. Upon this, the hearing was postponed to 21.01.08 at 11.00
AM at the same venue.
2. The hearing on 21.01.08 was attended by S/Sh. Deepak Rai Walia,
Nath Singh, B.D. Dhingra and D.R. Sharma on behalf of petitioners and
by EO Panchkula, DTP(M) & ADA for the Respondents. The Petitioner
has given a representation dated 21.01.08 after the hearing to put on
record the view point expressed by them during the course of hearing.
The CWP number has been wrongly mentioned as 18561 of 2007 by
the Petitioner in his representation which seems to be a typographical
error. The Petitioner has prayed for consideration of all the submissions
made in the representations/appeal as well as in the writ petition. The
basic contentions of the Petitioner which emerge from their
representation and the writ petition can be summarized as under:
i) That the Haryana Apartment Ownership Act, 1983 is not applicable to
the Co-operative Group Housing Societies. The Petitioners
emphasized that the provisions of Section-2 of Haryana Apartment
Ownership Act, 1983 [hereinafter referred to as the ‘Act’] are
applicable for the purpose of transfer of ownership of an individual
apartment, whereas members of the Co-operative Group Housing
Societies have no individual ownerships. Also, as per Haryana
Apartment Ownership (Amendment) Act 2002, the said Act is not
applicable to the societies in which members of the societies are only
shareholders and they have no right of individual ownership.
ii) That under Section-43 of the Cooperative Societies Act, the societies
have been exempted from compulsory registration of instrument.
Cooperative Group Housing Societies are governed by Haryana
Cooperative Societies Act, 1984, as per provisions of which no
member of the society has any individual ownership right. He is only
member of the said society and he has only one share. Therefore,
under the Haryana Cooperative Societies Act, the share holders are
- 3 -
exempted from compulsory registration of instrument. That the
Hon’ble High Court of Gujarat had upheld the version of the ibid
section of the Act in some judgment pertaining to the Santosh
Cooperative Housing Society where the Hon’ble High Court of Gujarat
had ordered that
“ The Santosh Cooperative Housing Society limited is
‘Tenant Co-operative Society’ and since the land and super structure
thereon belongs in the eye of law to the society, in the matter of
transfer of shares relating to them, compulsory registration is not
necessary on account of exemption enacted by the State Legislature
in the clause(s) of section 42. We are, therefore, of the opinion that
transfer of the property in question from Girish to Plaintiff was a valid
transfer ….”
iii) That various societies have filed detailed representation but no one
has examined the same.
iv) That the impugned direction to the members for registration of their
flats under Haryana Apartment Ownership Act, 1983 amounts to
double registration.
v) That almost similar condition has been set aside by the Allahabad
High Court.
vi) That even the Haryana Urban Development Authority itself was not
applying the Haryana Apartment Ownership Act 1983 to the societies.
Although the Haryana Apartment Ownership Act 1983 was notified on
10.11.1997, even then HUDA had issued the instructions for charging
transfer fee for change /transfer of the membership.
vii) That in the amendment carried out in the Haryana Apartment
Ownership Rules [hereinafter referred to as ‘Rules’] in January 2003,
the Cooperative Societies have been taken out of the preview of the
Haryana Apartment Ownership Act.
3. After examining the matter, I am of the considered opinion that the
contention at serial no. 1 is not supported by the provisions of Section
2 of the Haryana Apartment Ownership (Amendment) Act, 2002. This
section clearly lays down that in case of property/building falling in the
area developed by the Haryana Urban Development Authority, the
owner of such property/building shall duly execute and get registered a
declaration within a period of ninety days after obtaining occupation
certificate of the building under the regulations framed under the
Haryana Urban Development Authority Act 1977(13 of 1977). In case
of property/ building where the owner has already obtained part
completion/completion or occupation certificate under the rules and
regulations framed under the said Acts, the period of ninety days shall
take effect from the commencement of this Act. Section 3(ii) of this Act
separately defines Chief Administrator, Haryana Urban Development
- 4 -
Authority as the Competent Authority in respect of areas developed by
HUDA. Similarly, Director, Town & Country Planning and Director,
Urban Development have been designated as Competent Authority for
the areas under their respective jurisdiction.
4. The Act has been enacted by the Legislature of the State of Haryana
with a view to promote Group-Housing and to have some statute to
control the building activities as well as ownership rights in case of
group housing. As per section 1(2), the Act extends to whole of the
State of Haryana. Under the provisions of section 5 of the Act, each
apartment owner shall be entitled to the exclusive ownership and
possession of his apartment in accordance with the declaration, and
each apartment owner shall execute a deed of apartment in relation to
his apartment in the manner prescribed. Section 13 clearly lays down
that the declaration and all amendments thereto and the deed of
apartment in respect of each apartment and the floor plans of the
buildings are required to be registered under the Indian Registration
Act, 1908.
5. The Act has been enacted by the Town & Country Planning Department
of Government of Haryana, and the Director, Town & Country Planning
Department Haryana has clarified that all the provisions of the Act with
respect to Deed of Declaration and Deed of Apartment are applicable to
land allotted to Group Housing Societies, whether Cooperative Society
or Society under Firms and Registration Act.
6. As per Model Byelaws for Cooperative Group Housing Societies annexed
by the Petitioner as annexure P-2, Byelaw no. 2 defines the Objects of
the Society, relevant part of which is reproduced as under:
(i) To acquire either through outright purchase or on lease, land
for development and construction of residential houses/flats for
giving to its members, either outright purchase or on lease or
rent but the ownership of land shall always remain with the
Society.
(ii) To lease out/sell residential houses/flats to its members.
Byelaw 6 provides that every member must hold at least one
share in the society, and byelaw 7 provides that no member of the society
shall hold more than one flat in the Society in his/her own name/names of
his/her dependents or family members like wife/husband, son or daughter
living with him/her. This suffices to clarify that Flat and Share are two
distinct entities because while one can not own more than one flat in a
society, however, one can have more than one share.
Therefore the contention of the petitioner that members of the
societies are only shareholders and they have no right of individual
ownership is not borne out by the Model Byelaws of the Co-operative
- 5 -
department Haryana governing the Cooperative Group Housing Societies.
While the ownership of land in a Society remains with the society, the
societies have allotted flats/apartments to individual members by issuing
individual allotment letters. The societies have been effecting transfer of
built-up apartments at their own level as change in membership and
unlawfully charging substantial amount from the purchaser, which should
have lawfully gone to the State exchequer in the shape of stamp duty. The
societies/apartment owners have not followed the provisions of the Act
inspite of having obtained the occupation certificate many years ago, and
also inspite of the notices sent to them.
7. Section 43 of the Haryana Co-operative Societies Act 1984, is
concerned with the transfer of share of member and as stated in the
aforesaid, share and flat are two distinct entities. Vide Haryana
Government Gazette notification issued on April 26, 2006, the following
clause has been added in section 43 of the Cooperative Societies Act.
“(vii) After clause(s), the following clause shall be inserted, namely:
‘(sa) “share” mean an interest of a member in the society measured by a
sum of money including both rights and liabilities.
Therefore, the contention of the petitioner that section 43 of
the Haryana Cooperative Societies Act 1984 provides them immunity from
compulsory registration of instrument does not hold good in the case of
transfer of flats. For example, if a person is a member of Cooperative
Society which has not been allotted land by HUDA till date and if he
transfers the share to any person (which is permissible), no stamp duty
shall be paid because of the exemption granted under Section 43 of the
Haryana Cooperative Societies Act. Had this exemption not been there, the
stamp duty would have been paid as has to be paid on transfer of shares in
listed Companies like Reliance Industries Ltd. etc. However, on transfer of
immovable property like flat, this Section 43 does not provide any
immunity. Similarly, in case of a Society which has been allotted land by
HUDA and a member transfers his share as well as flat, while no stamp duty
shall be paid on transfer of share as it is exempted under Section 43 of the
Cooperative Societies Act, stamp duty has to be paid on transfer of flat for
which Deed of Apartment will have to be executed.
The judgment of Hon’ble High Court of Gujarat quoted by the
petitioner is not applicable in view of above discussion/specific provision in
the Haryana Act.
8. HUDA has sent detailed replies to a large number of societies who had
represented against the Public notice issued in leading newspapers
regarding enforcement of provisions of the Haryana Apartment
Ownership Act, 1983. In its reply sent to various societies, Haryana
Urban Development Authority has clarified that the apartment owners
- 6 -
will not be doubly taxed, since the deed of apartment is to be
executed on the basis of value of the flat only indicated by the Society
in deed of declaration. This value would be the actual cost of
construction excluding land cost in case of original members and
market value of the entire flat including land cost for the owners who
have purchased the flat in resale. The Petitioners during the hearing
raised the issue of discrimination as compared to individual plot
holders if the provisions of this Act are made applicable to even the
original members of the Group Housing Societies. For example, in case
of an individual plot holder when he constructs the same, no stamp
duty is to be paid on the cost of construction but on the other hand, as
per this Act, even the original members are being asked to get Deed of
Apartment registered by paying stamp duty. Though apparently there
seems to be some discrimination but both sets of people are governed
by different statutes and we have to see whether the provisions of this
Act are applicable only on resale or even to the original members.
From the careful perusal of the Act and Rules, it is evident that no such
distinction has been made in the Act, which governs these Apartments.
Even though there is some merit in their plea but for that law itself has
to be amended, and no relief can be granted unless the law is
amended.
9. The contention that the Haryana Urban Development Authority itself
was not applying the Haryana Apartment Ownership Act, 1983 to the
societies is not correct because the allotment letters issued to the
Societies and the agreement executed in Form ‘C’ between CA HUDA &
the allottee societies clearly provide that the provisions of the Haryana
Apartment Ownership Act, 1983 shall be binding on the allottee
society. Since there is a specific provision in the contract which has
been entered into by the Societies with HUDA, the provisions of the Act
& Rules for filing and registration of Deed of Declaration and Deed of
Apartment are applicable & the judgment of the Hon’ble Allahbad High
Court quoted by the petitioner in his representation (Name & citation
not mentioned by the petitioner in the representation) shall not be
applicable in this case. The fees for change in size of dwelling
units/change in number of members/change of membership is
accepted by HUDA, as per approved policy, as an administrative charge
for updating of record. However, charging of this fee does not exempt
the apartment owner from the provisions of the Haryana Apartment
Ownership Act, 1983. Similar administrative charges are payable by
plot/house owners of HUDA also who pay stamp duty whenever the
plot/house is transferred. It stands clarified that this fee may be
charged only up till the time the society has not obtained Occupation
certificate. Once the Occupation certificate has been issued, all
- 7 -
transfer/change in membership has to be as per provisions of the
Haryana Apartment Ownership Act, 1983 read with the Indian
Registration Act, 1908. In addition, HUDA can charge administrative
charges for updating the record pertaining to membership of the
societies.
10. The amendment dated 20.01.2003 in the Rules does not exempt or
exclude the Cooperative Group Housing Societies from the Provisions
Of Haryana Apartment Ownership Act as claimed by the petitioner,
since in the said amendment the words “/group housing scheme” and
“residential apartments” have been omitted/substituted only for the
reason that the Act is applicable not only to Group Housing Societies
but to other buildings also like integrated commercial complexes,
flatted factories, Information Technology Industrial units, Cyber Park
and Cyber City.
In view of the above stated facts/position, I am of the
considered opinion that the Cooperative Group Housing Societies and
Welfare Housing Organizations allotted land by HUDA under its Group
Housing Schemes, as well as the owners of apartments in such societies are
bound by the provisions of Haryana Apartment Ownership Act 1983. The
representation of the petitioner for exemption of Cooperative Group
Housing Societies which have been allotted land by HUDA from the
purview of the Haryana Apartment Ownership Act, 1983 and Rules
made thereunder is hereby rejected.
However, keeping in view the differential treatment meted out
to the original members of the Society as compared to the plot holders,
HUDA is considering recommending to the Government exempting the
original members from getting the Deed of Apartment registered under the
Indian Stamp Act and, therefore, for a period of six months i.e. by
31.08.2008, the original members may not get the Deed of Apartment
registered, by which it is hoped that Government will take a final view in
this regard. However, mere recommendations by HUDA in this regard shall
not overrule the provisions of the Act and shall not give any right to the
original members of the Society to claim exemption later on. This is only a
recommendation being made separately to the Government. At the same
time, it is decided that all those members of the Cooperative Group Housing
Societies who have purchased the flats in resale should get their Deeds of
Apartment registered by 31.3.2008 positively failing which necessary action
as provided for in the Act and Rules shall be taken. Needless to mention
that no Cooperative Group Housing Society is exempted from filing Deed of
Declaration which must be done with a period of 30 days from today failing
which necessary action against the Office Bearers of the Society shall be
initiated as per provisions of this Act.
- 8 -
The orders were reserved after hearing of the arguments and
the speaking orders have been passed today which may be sent to the
petitioners as well as Press Release may be issued to give wide circulation
of these orders. A copy of these orders may also be sent to all the
Administrators and Estate Officers of HUDA for compliance.
Place: Panchkula ---sd---
Date: Feb. 20, 2008 (T.C. Gupta, IAS)
Chief Administrator,
Haryana Urban Development Authority,
E mail: huda@hry.nic.in
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