The Contradictions of the Defective KAOA 1972: Objective, Applicability under Section 2, and Its Tension with Property Rights under the Transfer of Property Act

 

It is stated in the statute that the Karnataka Apartment Ownership Act, 1972 (KAOA) was enacted to provide a legal framework for the ownership of individual apartments. While its stated objective is to facilitate transferability and heritability of apartments, its applicability—specifically under Section 2—raises significant legal and constitutional concerns.

 

Objective of the KAOA, 1972

The preamble of the KAOA, 1972 states:

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

The legislative intent behind the Act is clearly to:

• Enable individual ownership of apartments;
• Make such ownership heritable and transferable;
• Ensure co-ownership of common areas and establish rights over common facilities.

However, these rights are not automatically conferred upon the registration of a sale deed. Instead, the Act mandates a further step—“submission to the Act”—which creates a dual-layered legal regime for apartment ownership defeating the Central Act of Transfer of Property Act.

There is question raised about the Objective of Karnataka Society Registration Act 1960 stating it doesn’t cover maintenance, then here in KAOA 1972 Objective also doesn’t cover the same and it doesn’t even cover the formation of Association which is covered in KSRA 1960 and KCSA 1959.

 

Applicability under Section 2: Submission Requirement

Section 2 of the KAOA reads:

“This Act applies only to property which the sole owner or all the owners submit to the provisions of this Act by duly executing and registering a declaration as hereinafter provided.”

Thus, the applicability of the Act is not automatic. It requires:

• The forced submission of the property by the owner(s);
• Execution and registration of a Deed of Declaration & Deed of Apartment;
• Only upon such submission do the provisions of the Act apply.

This raises several concerns:

• An apartment owner who has already obtained title via a Registered Sale Deed under the TPA must “submit” again to the KAOA, effectively surrendering absolute ownership under a second legal framework.
• This creates a situation akin to a “surrender” of rights already granted under the TPA in favour of a biased regulated structure that, practically, benefits developers/builders more than buyers.
• If the builder does not initiate submission, owners are denied rights and protections under the Act, including participation in the management of common areas.? The ownership is already transferred through the registered Sale Deed under TPA then, why this drama?

 

Conflict with Transfer of Property Act, 1882: Absolute Ownership under the TPA:

Under the Transfer of Property Act, 1882, the sale of immovable property is governed by Section 54, which provides that:

“Sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.”

A Registered Sale Deed confers:

• Absolute ownership;
• Full rights to enjoy, transfer, alienate, lease, mortgage, or bequeath the property;
• No need for further “submission” for ownership to be valid and enforceable.

KAOA’s Conditional Ownership:

In contrast, under the KAOA:

• The Declaration and Deed of Apartment define and limit the rights of apartment owners;
• Ownership becomes subject to restrictions imposed by the Declaration, which is usually drafted and registered by the builder;
• Rights over common areas are inseparable and cannot be transferred independently, creating further limitations on alienation.
• The owner's absolute rights granted by the TPA are effectively “surrendered” to the framework of the KAOA upon submission;
• This surrender is unilateral and often not subject to negotiation or review by individual apartment buyers.
• Ownership becomes subject to conditions upon submission;
• The declaration (often drafted by builders) may include restrictive covenants;
• The Act makes provisions for undivided interest in common areas, which is not independently alienable;

This two-tiered ownership mechanism introduces a conflict with the TPA and undermines the principle of absolute ownership.

 

No Express Provision for Formation or Registration of Apartment Owners’ Association

One of the most glaring lacunae in the KAOA is that it contains no express provision for the formation and registration of an Association of Apartment Owners (AOA). The Act itself does not mandate:

• Formation of an association;
• Registration with any statutory body;
• Election of office-bearers or internal governance.

This has significant implications:

• Builders often retain control of common areas and management;
• Owners remain disempowered, lacking a statutory mechanism to take over control;
• The lack of enforceability leads to arbitrary management, misappropriation of funds, and denial of rights.

In contrast, other statutes like the Karnataka Ownership Flats Act, 1972 (KOFA) and the Real Estate (Regulation and Development) Act, 2016 (RERA) contain clear provisions for formation and functioning of registered resident welfare associations which gives them the legal and juristic rights.

 

Supreme Court Jurisprudence and Related Case Law

1. Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711

The Court held that property rights must be interpreted in a manner that promotes certainty and avoids unnecessary procedural barriers to enjoyment and alienation of property.

2. K.K. Kochunni v. State of Madras, AIR 1959 SC 725

The Supreme Court observed that statutes cannot restrict ownership rights arbitrarily, especially where a right to property has been validly acquired.

3. Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649

While not directly related to property, the Court discussed how voluntary submission to a statutory framework can affect rights, and that any such submission must be clear, lawful, and not contrary to constitutional guarantees.

5. K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1

This case clarified the scope of Article 300A (Right to Property) and emphasized that deprivation of property must be legal, reasonable, and proportionate. Forcing apartment owners to “submit” to another Act after obtaining title under TPA may be viewed as excessive and arbitrary.

 

Constitutional Implications: Article 300A

Article 300A of the Constitution states:

“No person shall be deprived of his property save by authority of law.”

The requirement under KAOA for a property owner to submit to the Act via a separate declaration, failing which their rights under the Act are not recognized, may amount to an arbitrary deprivation of full ownership rights. It can be argued that this violates Article 300A, especially when:

• Ownership has already been conferred under a registered sale deed;
• The builder fails or refuses to make the necessary declaration;
• Owners are denied access to statutory rights and remedies.

 

The Karnataka Apartment Ownership Act, 1972,  fails to fully safeguard the rights of apartment owners. While its stated objective is to promote transferability and heritability, Section 2 renders the Act applicable only upon a submission, creating unnecessary and legally questionable restrictions on absolute ownership already conferred by the Transfer of Property Act. Moreover, the absence of a direct provision for forming and registering associations further skews the balance of power in favour of builders and against apartment owners.

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By Vidyadhar Durgekar, An Advocate, Aan Author and a Poet with twelve published books in English and Kannada and many articles in National and international magazines after leaving the Armed Forces.