THE WEST BENGAL APARTMENT OWNERSHIP ACT, 1972.
An Act to provide for the ownership
of an individual apartment and to make such apartment heritable and
transferable property.
Whereas it is expedient to provide
for the ownership of an individual apartment and to make such apartment
heritable and transferable property;
It is hereby enacted in the
Twenty-third Year of the Republic of India, by the Legislature of West Bengal,
as follows:—
1.
Short title, extent and commencement:
(1) This Act may be called the West
Bengal Apartment Ownership Act, 1972.
(2) It extends to the whole of West
Bengal.
(3) This section shall come into
force at once; and. the remaining provisions of this Act shall come into force
in such areas, and on such dates as the State Government may, by notification
in the Official Gazette, appoint; and different dates may be appointed for
different areas.
2.
Application of the Act:
This Act shall apply to every
building which is used, or is proposed to be used, mainly for residential
purposes:
Provided that the sole owner or all
the owners of every such building shall submit the same to the provisions of
this Act by duly executing and registering a Declaration setting out the
particulars referred to in section 10:
Provided further that the State Government
may exempt by any general or special order any such owner from submitting such
building to the provisions of this Act.
3.
Definitions:
In this Act, unless the context
otherwise requires,—
(a) “apartment” means part of a
property having a direct exit to a road, street or highway or to a common area
leading to such road, street or highway which together with in undivided
interest in the common areas and Facilities forms an independent residential
unit, and includes a flat.
Explanation.—“Flat” shall mean a
separate residential unit, whether self-contained or not, used or intended to
be used for any of the purposes referred to in sub-clauses (a) to (i) of clause
(2) of section 390 of the Calcutta Municipal West Ben. Corporation Act, 1980;
(b) “Association of Apartment
Owners” means the association competent to contract in its own name and) formed
in accordance with the provisions made in the bye-laws;
(c) “building” means a building
containing two or more apartments or more than one building, each being a
complete unit or each containing two or more apartments comprised in the same
property;
(d) “common areas and facilities”
includes—
(1) the land on which the building
is located and all casements, rights and appurtenances belonging to the land
and the building,
(2) the Foundations, columns,
girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs,
stair-ways, fire-escapes and entrances and exits of the building,
(3) the basements, cellars, yards,
gardens, parking areas shopping centres, schools, garages, building or
apartment vacant or occupied by a tenant or any other person, not being an
owner, and transferred or proposed to be transferred to the Association of
Apartment Owners and storage spaces,
(4) the premises for the lodging of
janitors or persons employed for the management or the property,
(5) installations of common
services, such as power, light, gas, hot and cold water, heating,
refrigeration, air conditioning, sewerage, etc.,
(6) the elevators, tanks, pumps,
motors, compressors, pipes and ducts and in general all apparatus and
installations existing for common use,
(7) such other common facilities, as
may be specially provided for in the Declaration,
(8) all other parts of the property
necessary or convenient to its existence, maintenance and safely, or normally
in common use;
(e) “common expenses” means expenses
of administration, maintenance, repair or replacement of the common areas and
facilities and all other sums assessed against the apartment owners by the
Association of Apartment Owners;
(f) “common profits” means the
balance of all income, rents, profils and revenues from the common areas and
facilities remaining after the deduction of the common expenses;
(g) “Competent Authority” means any
person, or any officer not below the rank of a Deputy Magistrate, authorised by
the State Government by notification in the Official Gazette to perform the
functions of the Competent Authority under this Act for such area as may be
specified in the notification, and different persons or officers may be
authorised for different functions or for different areas;
(h) “Declaration” means the
instrument by which the property is submitted to the provisions of this Act, as
hereinafter provided;
(i) “limited common areas and
facilities” means those common areas and facilities which may be designated in
the Declaration as reserved for use of certain apartment or apartments to the
exclusion of the other apartments;
(ia) “owner”, in relation to a
properly or part (hereof or an apartment, includes any person owning the same
or deemed to be owning the same, promoter or, for the purposes of this Act,
excepting the provisions of sub-section (1) of section 4 thereof, lessee of
such property or part thereof or of such apartment, where the lease is for a
period of thirty years or more:
Provided that where a person has
executed and registered an agreement for purchase or for taking lease for a
period of thirty years or more of a building or an apartment or has paid the
consideration or part thereof, he is deemed to be owning such building or
apartment even though the document for purchase or lease has not been executed
and registered;
(j) “prescribed” means prescribed by
rules made under this Act;
(k) “property” comprises the land,
the building and the common areas and facilities;
(l) “promoter” means a person who
constructs or causes to be constructed a building on a plot of land for the
purpose of transfer of such building by sale, gift or otherwise to any other person
or to a company, co-operative society or association of persons, and includes—
(i) his assignee, if any,
(ii) the person who constructs, and
the person who transfers by sale, gift or otherwise, the building, if the two
are different persons,
(iii) the Government,
(iv) an undertaking of the
Government, or
(v) any board or corporation
established by or under any law for the time being in force.
3A.
Member of a Co-operative Society, where such society is the owner of a
property, to be the owner of the apartment of such property in his possession
for a limited purposes:
Where a Co-operative Society is the
owner in respect of a properly or part thereof, a member of such society in
legal occupation of an apartment comprised in such property or such part shall
be deemed to be the owner of such apartment within the meaning of the
provisions of this Act excepting those of sub-section (1) of section 4 thereof.
4.
An apartment to be transferable and heritable property:
(1) Each apartment owner shall be
entitled to the exclusive ownership and possession of his apartment.
(2) An apartment, together with its
undivided interest in the common areas and facilities, shall constitute
heritable and transferable immovable property within the meaning of any law for
the lime being in force:
Provided that no apartment and the
percentage of undivided interest in the common areas and facilities appurtenant
to such apartment shall be partitioned or subdivided for any purpose
whatsoever.
(3) Notwithstanding anything
contained in the Transfer of Property Act, 1882, or in any other law for the
time being in force, but subject lo the provisions of section 11 of this Act,
any person,-—
(a) acquiring by purchase or by
inheritance, or
(b) taking lease of, for a period of
thirty years or more, an apartment comprised in a property submitted to the
provisions of this Act, shall,—
(i) in respect of the said
apartment, be subject to the provisions of this Act, and
(ii) execute and register an
instrument in such form, in such manner and within such period as may be
prescribed, undertaking to comply strictly with the bye-laws and with the
covenants, conditions and restrictions set forth in the Declaration.
4A.
Benamdar of an apartment to be deemed to be the real owner thereof:
Where an apartment is transferred to
one person for a consideration paid or provided by another person for his own
benefit, the transferee shall, notwithstanding anything in the Transfer of
Property Act, 1882, or in the Indian Trusts Act, 1882, or in any other law for
the time being in force, be deemed to be the real owner of such apartment, and
no Court shall entertain any claim of the person, paying or providing the
consideration, for title in such apartment on the ground that he did not intend
to pay or provide such consideration for the benefit of Che transferee and that
the transferee is his benamdar, or on any other ground.
5.
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.
(2) The percentage of the undivided
interest of each apartment owner in the common areas and facilities as
expressed in the Declaration shall not be altered without the written consent
of all the apartment owners.
Addition or alteration, if any, is
to be expressed subsequently 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
conveyance or other instrument.
(3) The common areas and facilities
shall remain undivided, and no apartment owner or other person shall bring any
action for partition or division of any part thereof, unless the property has
been withdrawn from the provisions of this Act, ‘
(4) Each apartment owner may use the
common areas and facilities for the purpose for which they are intended without
hindering or encroaching upon the lawful rights of the other apartment owners.
(5) The work relating to the
maintenance, repair and replacement of the common areas and facilities and the
making of any additions or improvements thereto shall be carried out in
accordance with the provisions of this Act and the bye-laws made thereunder.
(6) The Association of Apartment
Owners shall have right, to be exercised by the Manager or the Board of
Managers on behalf of the Association, with such assistance as the Manager or
the Board of Managers, as the case may be, considers necessary, to have access
to each apartment from time to time during reasonable hours, for the
maintenance, repair and replacement of any of the common areas and facilities
therein or accessible therefrom, or for making emergency repairs therein to
prevent any damage to the common area and facilities or Lo other apartments.
(7) The Association of Apartment
Owners shall, subject to any covenants, conditions or restrictions if any
agreement, have the right, to be exercised by the Manager or the Board of
Managers on behalf of the Association with such assistance as the Manager or
the Board of Managers, as the case may be, considers necessary, to transfer
ownership, by sale or by lease for thirty years or more, of any buildings of
apartment owned or deemed to be owned as common areas and facilities by the
Association and occupied by any tenant or any other person not being an owner:
Provided that no such transfer shall
be made by the Association to any person, other than an existing tenant or an
occupier, not being an owner, without the consent of all the apartment owners.
6.
Compliance with bye-laws, covenants, etc:
Each apartment owner shall comply
strictly with the bye-laws and with the covenants, conditions and restrictions
set forth in the Declaration. Failure to comply with any of the same shall be a
ground for an action to recover damages or for other relief or reliefs at the
instance of the Manager or the Board of Managers on behalf of the Association
of Apartment Owners or, in a proper case, by an aggrieved apartment owner.
7.
Certain work prohibited:
No apartment owner shall do any work
which would be prejudicial to the soundness or safety of the property or would
reduce the value thereof or impair any easement or hereditament or shall add
any material structure or excavate any additional basement or cellar without
first obtaining the consent, in writing, of all other apartment owners.
8.
Encumbrances against apartments:
During the period the property
remains subject to this Act, no encumbrance of any nature shall be created
against the property. During such period an encumbrance may, however, 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 as in relation to any other separate parcel of property subject to
individual ownership.
9.
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.
10.
Contents of Declaration:
(1) The Declaration referred to in
section 2 shall be submitted in such form and in such manner as may be
prescribed and shall contain the following particulars, namely:—
(a) description of the property;
(b) nature of interest of the owner
or owners in the property;
(c) existing encumbrance, if any,
affecting the property;
(d) description of each apartment
containing its location, actual built-up area, number of rooms, immediate
common area to which it has access, and any other data necessary for its proper
identification;
(e) description of the common areas
and facilities;
(f) description of the limited
common areas and facilities, if any, stating to which apartments their use is
reserved;
(g) value of the property and of
each apartment, and the percentage of undivided interest in the common areas
and facilities appertaining to each apartment and its owner
(h) such other particulars as may be
prescribed.
(2) The Declaration referred to in
sub-section (1) may be amended under such circumstances and in such manner as
may be prescribed.
10A.
A Declaration or an instrument to be submitted before the competent authority
and to be dealt with by him:
(1) Any Declaration referred to in
section 2 or any amendment thereto or any instrument referred to in sub-section
(3) of section 4, shall, in the first instance, be submitted, in duplicate,
within fifteen days from the date of its execution, to the competent authority
along with copies of site plans, building plans and relevant title deeds.
(2) On receipt of a Declaration or
an amendment thereto or an instrument referred to in sub-section (1), the
competent authority shall,—
(a) after issuing notice to the
parties concerned and after holding such inquiry, if any, as it may consider
necessary for the purpose, examine the Declaration, the amendment or the
instrument as the case may be, to ascertain whether—
(i) the property concerned comes
within the purview of this Act. and
(ii) the Declaration, the amendment
or the instrument is in order,
(b) by an order in writing giving
reasons therefor accept or reject the Declaration, the amendment or the
instrument, and
(c) in case of acceptance,
immediately return the Declaration, the amendment or the instrument along with
all the enclosures to the owner or owners, as the case may be, for
registration, within fifteen days of the date of return,
(d) in case of rejection, forthwith
communicate the order of rejection to the owner or owners.
(3) Any person aggrieved by an order
of rejection under sub-section (2) may appeal to such appellate authority as
the State Government may, by notification in the Official Gazelle, appoint,
provided that such appeal shall be made within thirty days from the date of
such order or within such further period as the appellate authority may allow
on sufficient grounds being shown in this behalf. The order of the appellate
authority on any such appeal shall be final and shall not be called in question
in any court of law.
(4) Any order referred to in clause
(b) of sub-section (2) or in subsection (3) shall not be called into question
in any court of law.
10B.
Power to call for records etc:
Notwithstanding anything in this
Act, the State Government may, on its own, call for and examine the records of
any proceeding before the Competent Authority or the appellate authority within
thirty days from the date of any order made by such Competent Authority or
appellate authority, as the case may be, in such proceeding, and make such
order thereon as it may think fit.
11.
Withdrawal from the provisions of the Act:
(1) All the apartment owners may
with the prior permission of the State Government, withdraw a properly from the
provisions of this Act by an instrument executed to that effect.
(2) Upon the property being
withdrawn from the provisions of this Act, it shall be deemed to be owned in common
by the apartment owners and the share of each such owner in the property shall
be the percentage of undivided interest previously owned by such owner in the
common areas and facilities.
(3) Any encumbrance 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,
12.
Instruments of Declaration etc., compulsorily registrable:
(1) All instruments relating to the
Declaration or any amendment thereto referred to in section 10 or the
withdrawal of a property from the provisions of this Act referred to in section
11 or the instrument referred to in sub-section (3) of section 4 shall be
deemed to be instalments compulsorily registrable within the meaning of clause
(b) of sub-section (1) of section 17 of the Registration Act, 1908.
(2) The withdrawal provided for in
section 11 shall in no way bar the subsequent re-submission of the property to
the provisions of this Act.
13.
Bye Laws:
(1) Every property shall be
administered in accordance with such bye-laws as may be framed by the Competent
Authority with the prior approval of the State Government.
(2) The bye-laws shall provide for
the following amongst other mailers, namely:—
(a) the manner in which the
Association of Apartment Owners is to be formed, the election of a Board of
Managers from among the apartment owners, the number of persons constituting
the Board, the number of members of such Board to retire annually, the powers
and duties of the Board; the honorarium, if any, of the members of the Board;
the method of removal from office of members of the Board; the powers of the
Board to engage the services of a Secretary or Manager, delegation of powers
and duties to such Secretary or Manager;
(b) method of calling meetings of
the apartment owners and the number to constitute a quorum;
(c) election of a President who
shall preside over the meetings of the Board and of the Association of
Apartment Owners;
(d) maintenance, repair and
replacement of the common areas and facilities and payments therefor;
(e) manner of collecting share of
the common expenses from the apartment owners;
(f) any other matter considered to
be necessary for the administration of the property.
14.
Separate assessment:
Notwithstanding anything to the
contrary in any other law for the time being in force, each apartment (of a
properly including its percentage of undivided interest in the common areas and
facilities thereof) the owner of which does not own any other apartment in such
property, shall be deemed to be a separate unit for the purpose or assessment
of municipal rates and taxes.
15.
Charge for property of common expenses:
All sums assessed by the Association
of Apartment Owners for the share of the common expenses chargeable to any
apartment shall constitute a charge on such apartment prior to all other
charges, except charge, if any, on the apartment for payment of municipal rates
and taxes.
16.
Liability for unpaid common expenses:
Upon the sate of an apartment, the
purchaser or the apartment shall be jointly and severally liable with the
vendor for all unpaid assessment against the latter for his share of the common
expenses up to the time of the sale.
16A.
Penalty:
(1) If the owner of any apartment
subject to the provisions of this Act, contravenes—
(a) any of the provisions of section
7 or section 8,
(b) any bye-law that may be framed
by the Competent Authority, or
(c) any covenant, condition or
restriction set forth in the Declaration to which he is subject or a party, or
if such owner stands in the way of submitting the properly to the provisions of
this Act and does not furnish the particulars or documents as required for
execution of Declaration in accordance with the provisions of section 10A and
the rules made under this Act, he shall, at the instance of the Manager or the
Board of Managers on behalf of the Association of the Apartment Owners, an
aggrieved apartment owner or, in a proper case, the Competent Authority, on
conviction before a Magistrate, be liable lo a fine which may extend to rupees
one thousand or to a term of imprisonment which may extend to six months or to
both, and in case of continuing contravention, to additional fine which may extend
to rupees fifty for everyday during which such contravention continues after
conviction for the first such contravention.
(2) Any contravention punishable
under sub-section (1) may, where prosecution lies or is instituted at the
instance of, or by, the Manager or the Board of Managers on behalf of the
Association of the Apartment Owners, be compounded by such Association, either
before or after the institution of the prosecution, on payment of, for credit
lo its fund, such sum as it may think fit.
(3) The provisions of this section
shall apply without prejudice lo those of section 6, section 15 and section 16.
16B.
Control and supersession:
(1) If the Association or Apartment
Owners having right to be exercised by the Manager or the Board or Managers fails
to perform its functions under this Act or the bye-laws made there under, the
Competent Authority may give to it such directions as that Authority considers
fit.
(2) If the Competent Authority is of
the opinion that the function of the Manager or the Board of Managers is
detrimental to the interest of the Association of Apartment Owners or of the
apartment owners or is against the public interest, the Competent Authority may
give a notice to the Manager or the Board of Managers to show cause why he should
not be removed or, as the case may be, it should not be superseded. If the
reply of the Manager or the Board of Managers is not considered satisfactory,
the Competent Authority may by order remove the Manager or supersede the Board
of Managers, as the case may be, and appoint any member from amongst the
members of the concerned Association of Apartment Owners or any employee of the
Stale Government or any other person as administrator to perform the functions
or the Manager or the Board of Managers, as the case may be, for a period not
exceeding six months:
Provided that the Competent
Authority may, if it considers necessary so to do by order extend the period of
removal of the Manager or supersession of the Board of Managers, as the ease
may be, for a further period, not exceeding six months at a time; so, however,
that the aggregate period of removal or supersession, as the case may be, shall
not exceed three years.
17.
Power to make rules:
The State Government may make rules
for carrying out the purposes of this Act.
18.
Removal of doubts:
For the removal of doubts, it is
hereby declared that the provisions of the Transfer of Property Act, 1882,
shall, in so far as they are not inconsistent with the provisions of this Act,
apply to every apartment together with its undivided interest in the common
areas and facilities as those provisions apply in relation to any other
immovable property.
