Central Information Commission
Mrvipin Malik vs Delhi Secretariat, Gnct, Delhi on 25 November, 2014
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
File No.CIC/SA/A/2014/000018
Appellant : Sh. Vipin Malik
Respondent : Department of Revenue,
GNCTD, Delhi
Date of hearing : 03112014
Date of decision : 25112014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, 19(3) of the RTI
Act
Result : Appeal allowed/
Disposed of
The appellant is represented by Mr. M.Arif Ansari, Advocate. The Public Authority is
represented by Mr. Anil Kaushal, Dy. Secretary, Land & Building Deptt and Mr. Lalit
Mohan, SDM(Hq), Deptt. Of Revenue, along with one officer from Urban Development
Department.
FACTS:
(CIC/SA/A/2014/000018) Page 1
2. The appellant filed RTI application on 23.4.2011 seeking information with regard to implementation of the Delhi High Court decision, W.P No. 1959 of 2007 dt 28.5.2010 , through 6 points. CPIO vide reply dt 26.8.2013 transferred the application to other Departments. Being unsatisfied with the CPIO's reply the appellant made first appeal on 7.10.2013. FAA vide order dated 10.10.2013 directed the CPIO to provide the information. On noncompliance of the FAA order the appellant made second appeal before Commission. Decision:
3. Both the parties made their submissions. The appellant's representative submitted that the builders are not registering any conveyance deed transferring the possession of the flats to the occupants of the apartments in Delhi. He has submitted that except the letter indicating the transfer of his RTI application to other departments, he has not received any information from the concerned departments.
4. The appellant mailed the written submission on 5th November that:
i. The matter on the file relates to implementation of The Delhi Apartment Ownership Act, 1996. The said Act applies to every apartment in a multistoried building whether residential or commercial or for such offer purpose constructed on a freehold land or a lease hold land, if the lease of such land is for a period of thirty years or more. ii. However, in actual practice, Delhi Apartment Ownership Act, 1996 failed to elicit favorable response from lease administrative agencies, promoters and flat owners and apartment builders. It has been noticed that individual interest in common area & facilitation is not conveyed to the apartment owner, neither fictionally nor particularly while executing the (CIC/SA/A/2014/000018) Page 2 Agreement for allotment/sale of the apartment. In fact those builders have not executed of sale deed & Agreements have also not been registered under the Registration Act inspite of fact that is a compulsory registrable document. The builders are transferring/selling the apartment by making endorsement on the agreement thereby causing a huge loss of stamp duty to the government. For making transfer of these properties, they are clandestinely charging fee @ per square feet from the individual. iii. These results into a number of complaints received from flat owners in Apartments and also become a matter of litigation. On PIL titled O.S. Bajpai vs. The Administrator (Lt. Governor of Delhi) & Ors., the petitioner has drawn attention of the High Court towards apathy and inaction on the part of the respondents in not properly enforcing The Delhi Apartment Ownership Act, 1996. It has been contended that the respondents are helpless in enforcing such Act as it does not provide any remedial or penal action which can be taken by the competent authority in the event the provisions of Act are being violated by the Builders/Promoters, who maintain the multi storied buildings. The Forum for Apartment Owners of Multistoried Commercial Complexes Delhi has filed many complaints and also met the undersigned in that regard and stated that in actual practice, individual interest in common areas and facilities is not conveyed to the apartment owners, neither fictionally nor practically while executing the Agreement for allotment/sale of the apartment. b) In fact, these builders are not even executing Sale Deed and getting it registered in accordance with the Registration Act in spite of specific provisions contained in Section 13 and 14 of the Act in this behalf. c) No associations of apartment owners are formed and the builders are, in fact, ensuring that such associations do not come up. Instead, separate companies controlled and owned by these builders are given the contract of maintenance, which are charging exorbitant amounts as maintenance of the flat owners. The charges are so exorbitant that in spite of purchasing the apartment after (CIC/SA/A/2014/000018) Page 3 paying full consideration, they are made to cuff out the amount, which is more than normal rental in those areas. In this way, the apartment owners are virtually relegated as "tenant" in their own premises. d) In the absence of any association, contract for maintenance given to their own henchmen and no common profits is distributed amongst the apartment owners, who is pocketed by the builders/maintenance companies. iv. In the counter affidavit filed by the Central Government stating that there is no panel provisions under the Act and Rules for taking action against the persons violating the Acts and Rules. Therefore, if any builders or maintenance agencies are violating these provisions, the respondents are not in a position to take any action. It is, however, stated that the following Competent Authorities are appointed under Section 3(m) of the Act vide Notification dated 10.121987: "a) Vice Chairman, DDA in respect of apartments on DDA's Land
b) Land & Development Office, GOI in respect of apartments constructed on lands of Central Government and belonging to the Land and Development Office.
c) Secretary, L&B Department, WP(C) No.1959 of 2007 Page 9 of 19
GNCTD in respect of apartments constructed on any other land not covered by (a) & (b) above.
v. The Hon'ble Court after hearing the matter and taking into consideration the suggestion put forth by the petitioner, after due deliberation there upon directed as under: (CIC/SA/A/2014/000018) Page 4
i) The promoter/builder shall in all cases where the transfer has taken place under the sale deed/lease deed/transfer by endorsement, prior to the date of the order, which may be passed by this Court, execute the deed of apartment in the proformae as may be approved and issued by the competent authority keeping in view the provisions of Section 13(1) of the Act. This should be done within two months from the date of constituting the competent authorities.
ii) For future, the deed of apartment may be registered within one month of its execution by the owner and the promoter/builder.
iii) That in the case of existing owners, the deed of apartment shall be prepared by the existing owners and the promoters/builders in the proformae as mentioned in para
(i) above enclosing their original Title deed (sale deed/lease deed/transfer by endorsement) and the same will be presented before the subregistrar for registration. It will be the responsibility of the promoter/builder to do so as provided in Section 13(2) of the Act and also to deliver a certified copy of the registered deed to the owner of the apartment after it is registered.
iv) In the case of leaseholder land, the deed of apartment be entered into between three parties, i.e., promoter, apartment owner and Land Development Officer (L & DO) on behalf of the President of India as conforming party.
v) In the case of freehold land; the deed of apartment should be entered into between the promoter/builder and the apartment owner
vi) The competent authority constituted in the aforesaid manner shall give notice to the promoters/builders of all the multistoried apartments in Delhi directing them to (CIC/SA/A/2014/000018) Page 5 execute sale deed/lease deed/transfer by endorsement in favour of the buyers for which time bound period would be prescribed. The competent authority shall prepare necessary proformae for this purpose and issue directions to execute the deed of apartments in the said proformae, keeping in view the provisions of Section 13(1) of the Act.
vii) General instructions shall also be issued for future, viz., the deed of apartment would be registered within one month of its execution by the promoters/builders and the owner.
viii) The terms of deed of apartment shall, inter alia, include conveyance of exclusive ownership and possession of (a) apartment owned by respective owner; (b) title to such percentage of undivided interest in the common area and facilities including land as may be specified in each deed of apartment computed on the basis of proportionate value of the apartment to the total value thereof. The terms of the deed should also make the right and interest in the property described as clause
(v) above inheritable and transferable.
ix) Since it is the obligation of the promoters/builders on the one hand and owner on the other hand to execute and register such a deed of apartment, in the event of failure to execute, this nonaction can be treated as evading payment of necessary stamp duty and registration charges, necessary penalty can be imposed by the Registrar under the Indian Stamp Act, the Registration Act and action for recovery of necessary charges can also be initiated.
(CIC/SA/A/2014/000018) Page 6
x) If it is proved that failure and inaction on the part of promoters/builders in executing and registering sale deed of an apartment, the buyer be treated as the owner of the apartment for the purpose of getting benefits under the Act. vi. On scrutiny of the documents filed by the Apartment Owners Forum along with their representation, it has been noticed that builders/promoters are organizing this activity to evade stamp duty and to deprive a flat owners of his right as mandated under the Act. The modus operandi that has been adopted by the builder is that they executed a flat buyers agreement with the individual and do not get it registered with the registering authority i.e. SubRegistrar of the concerned jurisdiction. Even they transfer a flat by merely making endorsement on the instrument and taking the charges from the intended seller and keep in their pocket. All such endorsements are illegal and such documents are covered under article 23(a) as the possession of the apartment is being transferred and as per the Registration act. In this way they are liable for prosecution on account of evasion of stamp duty and not registering the instrument. This is also violation of the court order as well as the spirit of the The Delhi Apartment Ownership Act, 1996. vii. It has been observed that that in Delhi there are hundreds of towers constructed by the builders on the land which have been leased out by the DDA or L &DO. They are also not getting documents registered and transfer the property in a clandestine manner and also extorting the money in the form of maintenance charges from buyers. These properties are not confined on DDA land but also on L& DO land also such as Connaught Place and New Delhi area. It is a high time that a meeting may be taken at the level of LG and the (CIC/SA/A/2014/000018) Page 7 departments may also publish the relevant extract of the order in newspaper so that the Apartment owners may be apprised of their rights.
4. The PIO/Land & Buildings department stated that he was looking into the present RTI application and would supply the information to the appellant within 10 days. The PIO/Urban Development Department submitted that he has further transferred the RTI application to the PIO, Ministry of Home Affairs, whose reply is awaited.
5. In view of the above, the Commission directs the PIOs of DDA, Land and Building Department,GNCTD, Ministry of Home Affairs, GOI, Land Development officer, Ministry of Urban Development, GOI, and the Department of Revenue Headquareters,GNCTD to respond to the transferred RTI application which deals with very important matter of high public interest, concerning with the ownership rights of apartment owners visàvis the violation of laws by the builders of apartments, causing serious loss of revenue to the Government, which is also the subject matter of the court case in OP Bajpai Vs. Union of India and others in WP No.1959/2007, to furnish the information to the appellant within 15 days from the date of receipt of this order.
(CIC/SA/A/2014/000018) Page 8
6. The appeal is disposed of accordingly.
(M. Sridhar Acharyulu)
Information Commissioner
Authenticated true copy
(Babu Lal)
Deputy Registrar
Address of the parties:
1. The CPIO under RTI, Govt. of NCT of Delhi
Sub Divisional MagistrateII, Headquarters, Department Of Revenue, 5, Sham Nath Marg, DELHI110054
2. The CPIO under RTI, Govt. of NCT of Delhi Land & Buildings Department, Delhi Secretariat IP Estate, New Delhi110002
3. The CPIO under RTI, Govt. of NCT of Delhi DELHI DEVELOPMENT AUTHORITY Vikas Bhavan, near INA New Delhi110023
4. The CPIO under RTI, Govt. of NCT of Delhi Urban Development Department Delhi Secretariat, IP Estate, New Delhi110002.
5. The CPIO under RTI, Govt.of India, Ministry of Urban Development, Land and Development Officer Nirman Bhawan, New Delhi110011 (CIC/SA/A/2014/000018) Page 9
6. The CPIO under RTI, Government of India Ministry of Home Affairs, North Block, New Delhi110001
7. Shri Vipin Malik, Public Interest Crusaders, Flat No.108, Golf Apartments, Sujan Singh Park, NEW DELHI110003 (CIC/SA/A/2014/000018) Page 10