Delhi High Court
Kundan House Flat Ownrs Welfare ... vs Gurucharan Singh Bhasin & Anr on 26 May, 2015
Author: Jayant Nath
Bench: Jayant Nath
$~A-26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:26.05.2015
+ CS(OS) 845/2014
KUNDAN HOUSE FLAT OWNRS WELFARE
ASSOCIATION(REGD) ..... Plaintiff
Through Mr.Bonny Laishram, Advocate
for Ujjwal Jha, Advocate.
versus
GURUCHARAN SINGH BHASIN & ANR .... Defendants
Through Mr.Mohit Madan, Advocate for D-1.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA 5455/2014
1. This is an application seeking an injunction to restrain the defendants from obstructing the work or services being done by the plaintiff in the suit property.
2. The suit is filed by the plaintiff which is said to be an association of Kundan House Flat Owners registered under the Societies Registration Act. The flats in the said property have been purchased by the members from defendant No. 2 vide agreement to sell. Defendant No.2 has appointed defendant No. 1 for general and overall maintenance of the building and has made the said appointment binding on the members of the plaintiff Society. Hence, a suit is filed seeking a decree of mandatory injunction declaring Clause 12(a) of the agreement to sell between the plaintiff and defendant CS(OS) 845/2014 Page 1 of 6 No.2 as non-binding and non-est. Other connected reliefs are also sought.
3. Learned counsel appearing for the plaintiff has contended that the common areas in the building are in a deplorable condition. The lifts do not function. Other amenities like the lights in the corridors do not function. It is pointed out that there are certain clauses in the agreement to sell which were entered into with defendant no. 2. As per Clause 10 and Clause 12(a), the members of the plaintiff association have no right, title or interest on the open spaces, lobbies, stair-cases, lifts, terraces, etc. Defendant No.2 also purports to appoint defendant No.1 i.e. M/s General Estates Management Company as service agent for general/overall maintenance of the building. This appointment is stipulated to be binding on the buyers of the flats. Reliance is placed on the judgment of the Division Bench of this High Court in the case of O.S.Bajpai vs. The Administrator (Lt. Governor of Delhi) & Ors. in W.P.(C) 1959/2007 dated 28.05.2010 to contend that in the similar facts and circumstances this court held that the Apartment Owners' Association will take over the services of maintaining the common areas of the flats. Hence, it is urged that the plaintiff Association may be permitted to take over maintenance of the commons areas and services to enable them to have the same managed in a proper and legitimate fashion.
4. Learned counsel appearing for defendant No.1 has submitted that they have been maintaining the common areas for the last 35 years. Reliance is placed on the terms and conditions of the agreement to sell executed between the plaintiff and defendant No.2 whereby defendant No.1 has been specifically appointed as service agent to maintain, upkeep and preserve the building, operation of common services and management of common areas. It is urged that in view of the said provisions in the agreement, the plaintiff CS(OS) 845/2014 Page 2 of 6 have no rights and the present injunction application is misplaced. On 21.05.2015 this court had appointed a Local Commissioner to inspect the premises and to see the condition of the common areas. He was also to report about the condition/operation of the lift and building. The Local Commissioner has submitted his report dated 25.05.2015. He has mentioned in his report that the condition of the common areas of the building is quite deplorable. There are two lifts out of which one is out of order. Plaster is coming out from the ceiling. Various other details are mentioned in the report along with the photographs.
5. Section 15 (1) & (2) of the Delhi Apartment Ownership Act, 1986 reads as follows:-
"15. Association of Apartment Owners and bye-laws relating thereto.-
(1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities:
Provided that where any area has been demarcated for the constructions of multi-storeyed buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area.
(2) The Administrator may, by notification in the Official Gazette, frame model bye-laws in accordance with which the property referred to in sub section (I) shall be administered by the Association of Apartment Owners and every such Association shall, at its first meeting, make it bye-laws in accordance with the model bye-laws so framed, and in making its bye-laws the Association of Apartment Owners shall not make any departure from, variation of, addition to, or omission from, the model bye-laws aforesaid except with the prior approval of the Administrator and no such approval shall be given if, in the opinion of the Administrator, such departure, CS(OS) 845/2014 Page 3 of 6 variation, addition or omission will have the effect of altering the basic structure of the model bye-laws framed by him."
6. The Division Bench of this court in O.S.Bajpai vs. The Administrator (Lt. Governor of Delhi) & Ors. (supra) while dealing with a public interest litigation filed regarding enforcement of the Delhi Apartment Ownership Act, 1986 had passed the following directions regarding the Apartment Owners of the association:-
"The competent authority shall send specific notice to all multi- storeyed apartments informing the owners of apartments that it is their right to form owner's association in accordance with the bye-laws as per the Explanation B of Chapter 1 of the said bye- laws under Section 15(2) of the Act. The officials from the office of the competent authority shall be deputed to visit all these multi-storeyed buildings, who would ensure formation of owners' association. They would be authorized to call for the meeting of the owners and supervise the formation of the association, so as to ensure smooth formation of the association. This exercise in respect of multi-storeyed buildings shall be completed within six months and the existing maintenance companies shall transfer the management of the multi-storeyed building to such associations.
c) Transfer of Management, Books of Account, etc. Once the apartment owners' association is formed, it shall take over the management from the promoter/builder. All the books of account, bank account and other documents shall be handed over by the promoter/builder to the apartment owners' association so formed and all functions relating to the management of the building, common area, collection of maintenance charges, expenditure to be incurred on maintenance, employment of manpower, legal compliance, etc. will be performed by the association."
7. The legal position is that the Division Bench has held that the CS(OS) 845/2014 Page 4 of 6 apartment owners association is to take over maintenance of the common areas.
8. A question was posed to the learned counsel for the defendant as to why the common areas are not being maintained properly. He admits that there are some deficiencies in the maintenance of the common areas but he submits that this is wholly as the apartment owners are defaulting in making payments of the monthly dues. He submits that these monthly dues are not exorbitant and defendant No.1 has kept them at a very reasonable rate yet the residents are not paying. As payments are not being received, the condition remains in a somewhat poor state.
9. So the ground reality is that the common areas are not being maintained. The excuse is that the residents do not want to pay to defendant No.1. Defendant No.1 is unable to take steps to recover the arrears and provide maintenance to occupants of the flats.
10. Keeping in view the legal position as stated above by the Division Bench of this court and the conditions of the common areas as elaborated by the Local Commissioner, in my opinion, it is appropriate that the essential services in the building in the common areas like electricity, water, cleanliness and lifts are taken over and handled by the plaintiff association forthwith. This would be in accordance with the judgment of the Division Bench of this High Court. It would also break the impasse which is there whereby defendant No.1 is unable to take steps for maintenance of the common areas. I direct accordingly and permit the plaintiff to take over the above noted services without hindrance by the defendant.
11. The plaintiff shall abide by the terms and conditions as stipulated by the Division Bench in the case of O.S.Bajpai vs. The Administrator (Lt.
CS(OS) 845/2014 Page 5 of 6Governor of Delhi) & Ors. (supra) and statutory provisions while carrying out maintenance of the common areas.
12. Needless to add, the taking over of the maintenance of the building as clarified above by the plaintiff shall be subject to any final orders that this court may pass at the time of final adjudication of the suit.
13. This application stands disposed of.
CS(OS) 845/2014 List on 04.09.2015 before the Joint Registrar for further proceedings.
JAYANT NATH, J MAY 26, 2015 rb CS(OS) 845/2014 Page 6 of 6