• Coercive bye laws of the apartment owner association

Dear Sir, 

I live in an apartment in Gurgaon. The apartment complex is being maintained by a maintenance company appointed and managed by the builder. The complex also has an apartment owner association which mostly has pro builder people in power. This is not co-operative society but a condominium association. 

1.	We have not paid the common area maintenance charges to the maintenance company for some time because of poor quality of services provided. 

2.	The Apartment owner association has passed bye-laws authorizing them to do the following in case any resident doesn’t pay CAM charges

a)	Disconnect DG electricity of the apartment. Our complex doesn’t have a proper electricity connection and half the time we are on DG. 100 percent DG backup was part of the apartment offering and the DG was bought by the money paid by the apartment owners as part of the apartment sale consideration. The DG usage charges of Rs 17 per unit are billed with electricity charges and we have been paying the electricity and DG charges regularly.

b)	They are also threatening to restrict usage of the common areas of the complex like the community club for people who have not paid the Common area maintenance charges.

c)	They are also planning to rent the unsold covered parking space in the complex. Is this legal? They have no title in the same as each owner has undivided interest in the common areas as per the Haryana Apartment Owners Act.

d)	They have also passed bye-laws authorizing all kinds absurd fines like speeding etc for the residents in the complex. 

3.	What are the best legal remedies available to us for challenging the coercive actions of the apartment owner association and the maintenance company. The apartment is registered in my father’s name, does the suit/criminal complaint has to be filed by him or can I file it as a resident of the complex?

Regards,
Manoj
Asked 4 years ago in Criminal Law
Religion: Hindu

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10 Answers

Hi, you can file a civil suit for permanent injuction, in order to restrain the association for disconnecting the electricity connection till the final decesion of the case .. Also another relief regarding usage of club house can be asked in the said suit ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Hello,

The case can be filed by the person in whose name the flat has been purchased.

Also, you can file a case before the consumer forum and apart from this you can lodge an FIR against them for harassment and unlawful practices in order to extract money.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

suit has to be filed by your father only

2) electricity is essential service and cannot be disconnected

3) if you dont pay maintenance you can be denied access to club facilities

4) car parking slots cannot be rented out to non members

5) fines can be imposed as per resolution passed in AGM

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1. There are lot of disputes among the flat owners and the office bearers of the association and both sides have something to say.

2. If from CAM the maintenance of common areas or club house is borne then they can take such decision to deprive the defaulters in making such payment but in no circumstances essential supplies like electricity or water connection can be disrupted or disconnected.

3. So to counter this situation your best remedy is to file a civil suit for declaration and to seek interim injunction against disconnection of DG Electric or water supply.

You will get releif from civil court for sure.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

file police complaint against association and its office bearers of association for criminal intimidation under section 506 of IPC

2) you have to file suit to set aside resolutions passed imposition of penalty , renting out car parking , disconnection of electricity supply by the association

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1. first of essential services like electricity and water cannot be disconnected

2. the bye-laws have to be in conformity with model bye laws under the apartment act

3. it is not necessary that the model bye laws as it is are to be adopted. There can be variations. But any such variations have to be in confirmity with the act. Any bye law which violates provisions of the act or the rules and regulations thereunder, then such bye laws are illegal and not binding on apartment owners

4. so have the bye-laws checked whether they are in confirmity to the law

5. once an apartment association is formed the builder has to divest himself of all his right in the land and building and handover management of the same to association - therefore the builder cannot sell the covered parking spaces which now belong to the association

6. complaint can be filed only by the apartment owner. However you can also file the same using the power of attorney of your father

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

Dear Mr Manoj

Please be aware that society is maintained by a common. And by the authorised representatives of the residents in your case society is registered by the Builder and is maintained by the builders company as a service providing company eventually the executive committee is not taking reasonable care for the maintenance of society and owners of the flats due to their grievances have discontinued the payment of common area maintenance which is mandatory to maintain the society and to keep operational all the essential services including the generators in case you are in default you will not be remain the member of the society which is very first thing and the services which are common in nature will be curtailed by the executive committee and you will be bound to adhere the rules made in this regard in General Meeting

The best Idea bill be for the time being if you are a group move your application of complaint to the registrar of societies for his direction in this regard and the directions if you are happy then it is a fine otherwise you can move your petition against the Builder and executive committee in High Court in form of PIL

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Your father is the right person to initiate any action in this regard and not you.

You should gather all like minded members of the association and raise all such grievances in the next meeting and pass resolutions for all remedies that are required.

The association has no power to disconnect the basic amenities, you can obtain stay agaisnt such illegal acts through court.

The common areas as name suggest belong to the association in turn to all the members of the association.

The condominium is another form of association.

The difference stems from ownership, with apartment units housed within a complex owned by a single entity, often a corporation, and then leased out to individual tenants. ... So when you rent a condo, the individual condo owner is your landlord.

The main difference between an apartment and a condo is the ownership. A corporation typically owns an apartment complex, while an individual owns a condo.

Apartment complexes will typically have a staff on hand to deal with maintenance. Many even have a 24 hour emergency on-call maintenance, in case your heat goes out or you have a water leak. This is a huge perk of apartment living. If something breaks, as long as you notify the manger, the problem is resolved quickly. If you give permission, maintenance can even fix the problem while you are at work.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Can a criminal complaint be filed? If yes under what sections and what is the probability of securing a conviction.

You can lodge a criminal complaint if there is a commission of an offence. Therefore the seciton or provision of law will depend on the offence committed by them.

Further If I file a petition under section 145 CRPC - dispute of immovable property to secure an order for maintaining status quo? What is the probability of securing the same.

Section 145 cr.p.c. : Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

You can instead approach civil court with an injunction suit to get suitable remedies in this regard.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Probability of succeeding in 145 petition is less.

He can be consvicted under 420, 504, 506

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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