Uttar Pradesh Apartment (Amendment) Act 2016 was Repealed without ever being enforced.

by

Introduction:

The Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 is one of the most progressive laws on apartment ownership which clearly demarcates the right, duties, and obligations of the Builder, Buyer and the Development Authorities w.r.t. to construction, ownership and maintenance of an apartment in a group housing and also the group housing or the apartment condominium.

Amendment

However, some of the most important provisions brought in the 2010 Act to control the builders from treating the group housing projects as their personal assets were diluted by the U.P. Apartment (Promotion of Construction, Ownership & Maintenance)(Amendment) Act 2016  (Act 30 of 2016). Although due to the effect of section 1(2) of the amendment act these amendments never came into force as the required notice therein to bring the amendment into force was never issued. However, despite they not coming into force the development authorities and registrars of societies very profusely violated the rights of innocent home buyers by applying the provisions of the amendment act. One of the abused amended provisions was w.r.t. to the occupancy of a group housing required to form the apartment owners association. The 2010 act prescribed 33% whereas the 2016 act amended the same to 60%.

Enforced?

The U.P. Apartment (Promotion of Construction, Ownership & Maintenance) (Amendment) Act 2016 though published in U.P. Gazette, Part-1 Clause (a) dated 19.09.2016 but its provisions never came into effect. This amendment Act 2016 amended sections 2, 3, 4, 7, 12, 13 and 14 of the 2010 Act.

Repealed

In 2020, the UP State Legislature passed, the Uttar Pradesh Repealing Act, 2020 and the same was published in the Gazzette and enforced from 31.08.2020 and amongst 62 Acts, it also repealed the U.P. Apartment (Promotion of Construction, Ownership & Maintenance)(Amendment) Act 2016. Thus, the unwanted and unenforced changes made in the original 2010 Act by the 2016 Amendment Act stood repealed in 2020.

DOWNLOAD THE REPEAL ACT (31 OF 2020) WHICH REPEALED UP APARTMENT AMENDMENT ACT 2016 – Repealed at item no. 62 in the Act.

The Lotus Boulevard Espacia Case

In this case, the registration of the AOA on the complaint of the builder was cancelled by the Registrar of Societies citing the 2016 amendment requiring 60% occupancy. However, the Hon’ble Allahabad High Court vide order dated 01.07.2024 in Neutral Citation No. – 2024:AHC:105689 – M/S Lotus Boulevard Espacia Apartment Owners Association And 2 Others v. State Of U.P. And 5 Others has noted that the 2016 amendment never came into effect and quashed the cancellation order by noting followings:

“13. The Court finds that Section 1(2) of the Act, 2016 categorically provides that the Act, 2016 shall come into force on such date as the State Government may by notification in the official gazette appoint but till date, the State Government has not notified the date with effect from which the Act, 2016 will come into force. The aforesaid inference has been drawn by the Court as State respondents in their Counter-Affidavit have not given any detail of such notification and even further in spite of various opportunities granted by this Court, the State respondents have not produced any such notification.

14. Once this Court finds that the Act of 2016 itself did not come into force as till date, the State Government has not issued notification as contemplated under Section 1(2) of the Act, 2016, the amendments sought to be incorporated by the Act, 2016 in the Act, 2010 have not become effective. The registration of Petitioner No. 1 has been done as per Section 14(2) of the Act of 2010 but the said registration has been cancelled relying on the amended Section 14(2) in terms of the Act, 2016 whereas the Act, 2016 itself has not come into force till date, as till date notification contemplated under Section 1(2) of the Act, 2016 has not been issued.

15. In view of the aforesaid reasons, the impugned order dated 15.01.2020 passed by Respondent No. 4 cannot sustain in the eyes of law.

16. Accordingly, this writ petition is allowed. The order dated 15.01.2020 passed by Respondent No. 4 is hereby quashed.”

Download the Judgment dated 01.07.2024

Conclusion

With the repeal of the UP-Apartment Amendment Act 2016, the following provisions, amongst others, as they stood in the 2010 Act are applicable:

  1. The provisions of the Apartment Act do not apply only to residential and office buildings but to all shopping malls and commercial complexes as well. (ref. Sec. 2).
  2. Builders cannot amend building plans without the consent of the intending purchasers/ buyers. [ref. Sec. 4(4)].
  3. The apartment is to be handed over within two years from the date of the agreement. [ref. Sec. 4(5)].
  4. The Deed of Declaration is required to be submitted within 12 months from the date of the sanction of the real estate project falling under the definition of apartment and building. [ref. Sec. 12].
  5. Enclosure of a true copy of the deed of declaration made under section 12 to each deed of transfer of the apartment is mandatory.
  6. An association of apartment owners can be formed when there is occupancy of 33% of apartments in any given apartment condominium. There can be only one association in the condominium.[ref. Sec. 14].

Summary

  1. Background of the 2010 Act:
    • The Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 is a comprehensive law.
    • It defines the rights, duties, and obligations of Builders, Buyers, and Development Authorities regarding the construction, ownership, and maintenance of apartments in group housing.
  2. 2016 Amendment and Its Impact:
    • The 2016 amendment to the 2010 Act (U.P. Apartment (Promotion of Construction, Ownership & Maintenance)(Amendment) Act 2016) proposed significant changes.
    • These changes were seen as diluting the control over builders, potentially allowing them to misuse group housing projects.
    • Notably, the amendment altered the requirement for forming an apartment owners’ association from 33% occupancy (as per the 2010 Act) to 60%.
  3. Non-Enforcement of the 2016 Amendment:
    • Despite being passed, the 2016 amendment never officially came into effect.
    • This was because the necessary notice to enforce the amendment was not issued.
    • However, development authorities and registrars of societies erroneously applied the provisions of the 2016 amendment, affecting home buyers’ rights.
  4. Repeal of the 2016 Amendment in 2020:
    • In 2020, the Uttar Pradesh Repealing Act, 2020 was passed and enforced from August 31, 2020.
    • This Act repealed 62 different Acts, including the 2016 amendment.
    • As a result, all changes made by the 2016 amendment to the original 2010 Act were nullified, restoring the original provisions of the 2010 Act.

In summary, the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010, a law governing apartment ownership in group housing, underwent an amendment in 2016 which was never effectively enforced and subsequently repealed in 2020, restoring the original 2010 Act’s provisions.

4 thoughts on “Uttar Pradesh Apartment (Amendment) Act 2016 was Repealed without ever being enforced.”

  1. Thank you for sharing this important information !
    Kindly amend the following unintended error in your blog above.
    QUOTE
    “Thus, the unwanted and unenforced changes brought in the original 2010 Act stood repealed in 2020.”

    Reply

  2. Dear Prashant Ji,
    Appreciate the Cause & Effects of repealing the infamous Amendments -2016 to UPA&C Act of 2010. However the clarity/ ambiguity to term Independent Areas / Islands of sole and exclusive Builder Ownership still continues to haunt the AOAs to claim it’s owner ship . Our logic is very simple that how can Builder Own an area of Housing Land as a commercial one ..
    Regards

    Reply

  3. UP Apartment Act is giving a power to just few persons to grab the a complex by giving bribe in registrar office and form a AOA. The AOA of handful persons never follow any law but they torture innocent old age civilian/ residents /Apartment owners. When UP Apartment Act has provisions to control builders then it should have provision to control AoAs also.
    AOAs are going in the hands of Gundas who are ruling innocent civilians provisions to control AOAs

    Reply

please share your comments or questions...