The Karnataka Apartment Ownership Act 1972(KAOA) is an Act which came into force on 1st April 1975 with the stated object for providing the ownership, transferability and heritability and provide for connected matters. It is a well-known known fact that the ownership is achieved through the execution of the Sale Deed under the provision of the Transfer of Property Act 1808 and the Indian Contract Act 1872. Subsequently there is no requirement of any additional law to prove this. There are many apartments without this till date in India as well as in Bengaluru.
Courtesy:Sentral.com
There seems
to be ulterior motive to force this additional law to submit to its provision
sacrificing the provisions of the Ownership granted by the other laws.
Legally it is not necessary at all. And most importantly, it will help to
retain absolute ownership with the owners without surrendering the rights
assigned under the other laws. This KAOA 1972 applies only to those
properties where the sole owner or all the owners subject their property to the
provision of this KAOA 1972 Act taking away all the rights granted under the
other Acts. The Sole Owners of the property of an apartment complex is the
builder according to the Rule 3 of the KAOR 1975 which states that the Deed of
Declaration has to be executed in FORM A. And this form uses the term
“grantor”. The word grantor refers to the sole owner in the case of the
apartment complex prior to the sale of first flat. This is confirmed by the
usage of words “will sell the flat” and “constructed and proposed to be
constructed”. It indicates that it is before sale of the first flat. Grantor
will be the developer and the owner of the land in case of joint development
agreement. The word property used includes the building and the land. The Form
A will be executed by the builder and all the owners land. Sometime it is only
the builder if there is no joint development agreement. In Form A they are
declaring that they are the owners of the property including the land and the
building. There is no flat purchasers included in the execution of the DOD as
per the provision section 2 and Rule 3 of KAOR 1975. Therefore, as per the
above the DOD declares that the owners of the property and land i.e grantor 1
& 2 remain the perpetual owners of the property. Subsequently thereafter
only the flats are sold by the builder as provided in Section 5 for the
ownership of flats. Rule 4 provides for the execution of declaration in Form B.
Rule 6 provides for the conveyance of flats to the flat purchasers by a Deed of
Apartment. Here there is no mention of conveyance of land. Rule 7 of KAOR 1975
provides for Deed of Apartment and executed by the builder in the first part
and second part is the flat purchaser. And in Form B flat purchaser declares
that he is the owner of the flat no so and so. This has to be executed in the
presence of a magistrate or any competent authority. In practice this provision
has not known to have been complied till date by any apartment with exceptions
may be. And as per section 13 all these documents have to be registered in the
sub-registrar’s office under provision of the section 13 of the Registration
Act 1908. The section 13 has its issues challenged in the PIL 511/2021. Then a
copy has to be submitted to the Registrar of Cooperative society. Therefore, it
is also confirmed that there is no registration of the association under this
law. It is made clear by the Registration Department in their written
statement submitted to the Karnataka High Court in PIL 511/2021. Also, the
Hon’ble Supreme Court has stated in their judgement of Sobha Hibiscus Vs
Sobha Developers that this association is not a voluntary consumer
association. After the execution of the Deed of Apartment each apartment owner
has to sign the form B declaring him/her as a owner of the apartment.
Courtesy:Room Sketcher.com
Therefore,
the act is applicable to the apartment complex if and only if the sole owner or
all the owners before the sale of flats have submitted their property to the
provision of the act. For removal of the apartment from the provisions then all
the owners need to give consent, which is an impossible task. When the
apartment is removed from the provision of the Act, then the common area is
released from the provision of the Act. And there is no provision in the whole
act to form any association any time. However, the subject of the association
is included in the Bye laws which can be any other association/society. When
not being a consumer association it cannot be a consumer to any service
provider like the electricity supplier and the banks in compliance to the
Supreme Court judgement.
One more
issue wrongly being raised is the residential and commercial use of the
apartment. KAOA 1972 includes both Commercial and Residential as stated in
Form A para 4 of the Act which states that the ground floor will be used for
commercial facilities. Twisting this statement few have mislead the Courts
to believe otherwise. It is true that all the apartments are mainly used for
the residential purposes as envisaged in the section 2 of the Act which
doesn’t bar its commercial use as wrongly been interpreted by few. It is
supported by Supreme Court cases also.
This association formed without any provision under KAOA 1972 remains an unregistered association. Registration is necessary for conveyance and collective ownership of the property on behalf of the owners. The KRERA Rule 2(b) also clearly states that the association to be formed has to be registered. The Rule 2(c) also clearly states the Cooperative society. Which means that it has to be the Cooperative Society only. It is also the fundamental right of the citizens of India to form a cooperative society under the provision of the 97th amendment of the Indian Constitution. Registration is necessary to ensure conveyance to a juristic body which the KAOA association is not. The issues with this kind of association are the election and the financial management. There is no control whatsoever in these aspects. All the apartment owners need to think to protect their property with the land for their children and for redevelopment. WE ALL KNOW ONCE WE RECEIVE THE OWNERSHIP THERE IS NO MEANING OF SURRENDERING TO ANY OTHER LAW. BE CAREFUL ABOUT FALSE PROPAGANDA
By Vidyadhar Durgekar, An Advocate , An Author and a Poet with 12 published books in English and Kannada and many articles in Indian and international magazines after a tenure in Armed Forces
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