What is a Deed of Declaration under U.P. Apartment Act ?

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Introduction

The declaration is defined in Section 3 (m) of U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 to mean declaration referred to in Section 12 of the said Act. The contents of declaration in Section 12 and the registration of deed of apartment enclosing the true copy of declaration made under Section 12 to such deed of transfer by the promoter to be filed in the office of the competent authority, is the most important provision under the U.P. Apartment Act, 2010. Section 12 is quoted below:

Importance of Deed of Declaration

The U.P. Apartment Rules, 2011 provide for a form of declaration under Rule 3 to be submitted on Form-A giving all the requirements, which are necessary to be provided under the Act for the benefit of the promoter and the apartment owners regarding common areas and facilities, under Section 3 (1) of the Act, limited common areas and facilities under Section 3 (s) of the Act and independent areas as defined in Section 3 (p) of the Act. The amendment of declaration under Rule 4 is permitted for any clerical or arithmetical mistake or error arising therein from any accidental slip or omission under Rule 4 (a) or when the amendment is necessitated by reason of any revision in the sanction plan of the building in (b) or where the proposed amendment is just and reasonable under (c) provided the amendment shall not violate the building bye-laws, sanctioned building plan or the contractual obligation of the promoter. A written application in this behalf has to be moved specifying reasons to the competent authority under sub-rule (2) and on the receipt of such application a written notice will be given to the association of the apartment owners by the competent authority under sub-section (3) inviting objections and also publication of a public notice in two daily newspapers circulating in that locality. The amendment shall be considered by the competent authority under sub-rule (4) after hearing the objector, association of apartment owners and promoter and after passing such order as it deems fit and expedient with copy of the order under sub-rule (5) to be sent by the competent  authority to the promoter, association or apartment owners or the objector as the case may be.

Contents of Deed of Declaration

The contents of the declaration on Form-A under Rule 3 of the UP Apartment Rules 2011 not only provides for details of the property in Annexure ‘A’ but also the details of the apartments in Annexure ‘B’, it also contains the details of covered area of apartment and total covered area of common areas and facilities/ limited common areas and facilities in Annexure ‘C’. The details of the common area and facilities of the building to which the declaration relates in Annexure ‘D’; details of the limited common areas and facilities of the building to which the declaration relates in Annexure ‘E’; the Details of the ‘Independent Areas’ of the building to which the declaration relates as well as Schedule ‘A’ giving specifications of constructions including (1) foundation; (2) flooring; (3) doors; and hardware (4) windows; (5) internal finish; (6) external finish; (7) sanitary ware and fittings; (8) electrical and (9) plumbing and water line. These details have to be furnished along with Form ‘A’ by the promoter in the presence of witnesses and is in the form of solemn declaration made by him before the Prescribed Authority.

Thus, Chapter V Declaration of Building and Deed of Apartment carries within it the content, which fulfils the primary objective of the Act. The declaration under Section 12 falling in the said chapter, with which the complete information as provided in Form-A under Rule 3 of the Rules of 2011 with Annexure-A to F and Schedule A, must be enclosed as mandated by Section 13 with the deed of transfer, is mandatory for handing over possession of any apartment constructed after the commencement of the Act and also to get such transfer deed registered under the provisions of the Registration Act, 1908.

Importance of Deed of Declaration in Election of AOA

The Hon’ble Allahabad High Court, in the case of Manish Kansal v. State of U.P. & Ors (Writ-C no. 17986 of 2015) deliberated on the importance of the Deed of Declaration for holding the election of association of apartment owners and has very succinctly held as under:

A careful reading of these provisions makes it imperative that for election of the Board of Management of the condominium the voting rule is the percentage basis. The percentage of the votes to which an apartment owner is entitled, is the percentage assigned to the dwelling unit or units in the declaration [(as per Section 12(1)(f), Rule 3, Form ‘A’, (Annexure ‘B’)].

Rule 12(f) provides that the declaration which shall be submitted by a promoter in the office of the competent authority in respect of a building must contain the value of the property of each apartment, the percentage of undivided interest in the common area and the facilities including voting.

Rule 3 which is referable to rule 12 (1) says that the declaration shall be submitted by the promoter in Form “A” which is the Form of Declaration. Annexure ‘B’ to Form “A” gives the details of the apartment which also includes proportionate representation of the apartment owners for voting purpose in the meeting of the association of apartment owners.

Clause 8 is specific in saying that the voting shall be on percentage basis and the percentage of vote to which an apartment owner is entitled is the percentage assigned to the dwelling unit in the Form of Declaration.

Section 3(d) defines apartment owner means a person or persons owning an apartment and undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment.

Thus, the voting rule decided in the meeting of General Body of the Association held on 18.2.2015 of “one flat one vote” is not in conformity with the provisions of the rules and the Model bye-laws which provides for a vote carrying a percentage value worked out in accordance with the Rules.

Manish Kansal v. State of U.P. & Ors (Writ-C no. 17986 of 2015

EXAMPLES OF DECLARATION

A reader can see Deed of Declaration of various group housing projects in Ghaziabad uploaded by the competent authority i.e. the Ghaziabad Development Authority at its website by clicking here. Though most of the declaration submitted by certain promoters may be defective.