The Odisha Gazette
EXTRAORDINARY
PUBLISHED BY AUTHORITY
The Orissa Apartment Ownership Act, 1982 Published vide Orissa Gazette Extraordinary No. 69/20.1.1984. Notifi- cation No. 1166-L
An Act to make provision for ownership of an individual apartment and for matters incidental thereto
Be it enacted by the Legislature of the State of Orissa in the Thirty-third year of the Republic of India, as follows :
1. Short title, extent and commencement. - (1) This Act may be called the Orissa Apartment Ownership Act, 1982.
(2) It extends to the whole of the State of Orissa.
(3) This section shall come into force at once, and the remaining provi- sions of this Act shall come into force in such areas, and on such dates as the State Government may, by notification, appoint and different dates may be appointed in respect at different areas.
Object & Reasons
2. Application of the Act. - All buildings mainly used or proposed to be used for residence, office, practice of any profession of for carrying on any occupation, trade or business or for any other type of independent use shall be governed by the provisions of this Act and the sole owner or all the owners of such building shall duly execute and register a declaration setting out the par- ticulars referred to in Section 12 :
Provided that the provisions of this Act shall not apply to property used for purposes of holding office or otherwise of a Department of Government or of a Government undertaking or where the property is owned and used by the owner himself or for letting it out to others.
3. Definitions. - In this Act, unless the context otherwise require-
(a) "apartment" means the part of a property intended for any type of independent use including one or more rooms or enclosed space located on one or more floors (or part or parts thereof) in a build-
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ing intended to be used for residence, office, practice of any pro- fession or for carrying on any occupation, trade or business or for any other type of independent use and with a direct exit to a pub- lic street, road or highway or to a common area leading to such street, road or highway;
(b) "apartment number" means the number, letter or combination thereof designating the apartment in the declaration;
(c) "apartment owner" means the person or persons owning an apart- ment and an undivided interest in the common areas and facilities in the percentage specified and established in the declaration;
(d) "Association of Apartment Owners" means an association of apart- ment owners formed and acting as a group in accordance with the provisions made in the bye-laws and the declaration;
(e) "building" means a multi-storeyed building containing two or more Departments;
(f) "common areas and facilities" unless otherwise provided in the declaration or in lawful amendments thereto, includes-
(i) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building;
(ii) foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, life-escapes and en- trances and exits of the building;
(iii) the basements cellars, yards, gardens, parking areas, shopping areas, schools, garrages and storage spaces;
(iv) the premises for the lodging of janitors or persons employed for the management of the property;
(v) installation of common services, such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning, sewerage;
(vi) elevators, tanks, pumps, motors, compressors, pipes and ducts and in general all apparatus and installations existing for com- mon use;
(vii) such other community and commercial facilities as may be spe- cially provided for in the declaration ; and
(viii) all other parts of the property necessary or convenient to its ex- istence, maintenance and safety, or normally in common use :
(g) "common expenses" means-
(i) all sums lawfully assessed against the apartment owner by the Association of Apartment Owners or by the Competent Author-
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ity;
(ii) expenses of administration, maintenance, repair or replacement of the common areas and facilities;
(iii) expenses agreed upon as common expenses by the Association of Apartent Owners;
(iv) expenses declared as common expenses by the provisions of this Act or by the declaration or the bye-laws;
(h) "common profits" means the balance of all income, rents, profits and revenues from the common areas and facilities remaining af- ter the deduction of common expenses;
(i) "Competent Authority" means in relation to buildings constructed by a Housing Board, Improvement Trust, Development Authority or a Company, such officer not below the rank of a, Deputy Col- lector as may be appointed by the State Government by notifica- tion;
(j) "Declaration" means the instrument by which the property is sub- mitted to the provisions of this Act, and such declaration as from time to time may be lawfully amended;
(k) "joint family" means an undivided Hindu family, and in the case of other persons, a group or unit, the members of which are by custom joint in possession or residence;
(l) "limited common areas and facilities" means those common ar- eas and facilities which may be designated in the declaration as reserved for use of certain apartment or apartments to the exclu- sion of the other apartments;
(m) "majority" or "majority of apartment owners" means the apart- ment owners with fifty-one per cent of the votes in accordance with the percentage assigned in the declaration to the apartments for voting purposes;
(n) "person" includes a joint family;
(o) "prescribed" means prescribed by rules made under this Act;
(p) "property" means the land, the building, all improvements and structures thereon and the common areas and facilities and all easements, rights and appurtenances belonging thereto and all ar- ticles of personal property intended for use in connection, there- with which have been or are intended to be submitted to the pro- visions of this Act.
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4. Member of a Co-operative Society deemed to be an owner in cer- tain circumstances. - Where a Co-operative Society is the owner in respect of a property or part thereof, a member of such society in lawful occupation of an apartment comprised in such property or such part shall be deemed to be the owner of such apartment within the meaning of the provision of this Act, ex- cepting those of Sub-section (1) of Section 5.
5. An apartment to be transferable and heritable. - (1) Each apart- ment owner shall be entitled to the exclusive ownership and possession of apartment and to an undivided interest in the common areas and facilities in the percentage expressed in the declaration.
(2) An apartment, together with its undivided interest in the common areas and facilities appurtenant to such apartment shall constitute heritable and transferable immovable property within the meaning of any law for the time being in force and accordingly an apartment owner may transfer his apart- ment and the percentage of undivided interest in the common areas and facili- ties appurtenant to such apartment by way of sale, mortgage, lease, gift, ex- change or in any other manner whatsoever in the same manner, to the same extent and subject to the same rights, privileges, obligations, liabilities, inves- tigations, legal proceedings, remedies and to penalty, forfeiture and punish- ment as any other immovable property or may make a bequest of the same under the laws applicable to the transfer and succession of immovable prop- erty :
Provided that no apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment shall be parti- tioned or sub-divided for any purpose whatsoever.
(3) Notwithstanding anything contained in the Transfer of Property Act, 4 of 1882 or in any other law for the time being in force, but subject to provi- sions of Section 14 of this Act, any personal-
(a) acquiring by purchase; or
(b) taking lease of, for a period of thirty years or more, an apartment comprised in a property shall-
(i) in respect of the said apartment, be subject to the provisions of this Act; and
(ii) execute and register an instrument in such form, in such manner and within such period as may be prescribed, undertaking to comply strictly with the bye-laws and with the covenants, conditions and restrictions set forth in the declaration.
6. Benamidar of an apartment to be deemed to be the real owner
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thereof. - Where an apartment is transferred to one person for a consideration paid or provided by another person for his own benefit the transferee shall, notwithstanding anything in the Transfer of Property Act, 4 of 1882, or in the Indian Trusts Act, 2 of 1882, or in any other law for the time being in force, be deemed to be the real owner of such apartment on the ground that he did not intend to pay or provide such consideration for the benefit of the transferee and that the transferee is his benamidar or on any other ground.
7. Common areas and facilities. - (1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities at the per- centage expressed in the declaration.
(2) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration shall not be altered without the consent of all the apartment owners expressed in an amended declaration duly executed and registered as provided in this Act. The percent- age of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered along with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument.
(3) The common areas and facilities shall remain undivided and no apart- ment owner or other persons shall bring any action for partition or division of any part thereof, unless the property has been withdrawn from the provisions of this Act, Any covenant to the contrary shall be null and void.
(4) Each apartment owner may use the common areas and facilities for the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners.
(5) The necessary works relating to the maintenance, repair and replace- ment of the common areas and facilities and the making of any additions or improvements thereto shall be carried out in accordance with the provisions of this Act and the bye-laws made thereunder.
(6) The Association of Apartment Owners or the Competent Authority, as the case may be, shall have irrevocable right to be exercised by the Manager or the Board of Managers on behalf of the Association or the Competent Au- thority with such assistance as the Manager or the Board of Managers, or the Competent Authority, as the case may be, considers necessary, to have access to each apartment, from time to time, during reasonable hours for the mainte- nance, repair and replacement of any of the common areas and facilities therein or accessible therefrom, or for making emergency repairs therein to prevent any damage to the common areas and facilities or to another apartment or
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apartments.
8. Compliance with bye-laws, covenants, etc. - Each apartment owner shall strictly comply with the bye- laws and with the covenants, conditions and restrictions set forth in the declaration and failure to comply with any of the same shall be a ground for an action to recover damages or for other relief or reliefs at the instance of the Manager or the Board of the Managers on behalf of the Association of Apartment Owners or the Competent Authority, or in a proper case by an aggrieved apartment owner.
9. Certain actions prohibited. - No apartment owner shall do any work which would be prejudicial to the soundness or safety of the property or would reduce the value thereof or impair any easement or hereditament nor shall add any material structure or excavate any additional basement or cellar without the prior consent of all the other apartment owners.
10. Encumbrances against apartments, removal from encumbrances and effect of part payment. - (1) On encumbrance of any nature shall be created against the property :
Provided that encumbrances may arise or be created only against each apartment ana the percentages of undivided interest in the common areas and facilities appurtenant to such apartment, in the same manner and under the same conditions in every respect as encumbrances may arise or be created upon or against any other separate parcel or property subject to individual ownership :
Provided further that if any encumbrance has arisen or been created against such apartment and the percentage of undivided interest in the com- mon areas and facilities appurtenant to such apartment, no apartment and such percentage of undivided interest shall be partitioned or subdivided in interest :
Provided also that, no labour performed or material furnished with the consent or at the request of an apartment owner or his agent or his contractor or sub-contractor shall be the basis for a charge or any encumbrance under the provisions of the Transfer of Property Act, 4 of 1882, against the apartment or any other property of any other apartment owner not expressly consenting to or requesting the same, except that such express consent shall be deemed to be given by the owner of any apartment in the case of emergency repairs thereto. Labour performed and material furnished for the common areas and facilities, if duly authorised by the Association of Apartment owners, the Manager or Board of Managers in accordance with this Act, the declaration or the bye- laws, shall be deemed to be performed or furnished with the express consent of each apartment owner and shall be the basis for a charge or encumbrance un- der the Act aforesaid against each of the apartments and shall be subject to the
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provisions of Sub-section (2).
(2) In the event of a charge or any encumbrance against two or more apartments becoming effective, the apartment owners of the separate apart- ments may remove their apartments and the percentage of undivided interest in the common areas and facilities appurtenant to such apartments from the charge or encumbrance by payment of the fractional or proportional amounts attributable to each of the apartments affected. Such individual payment shall be computed with reference to the percentages specified in the declaration. Subsequent to any such payment, discharge or other satisfaction, the apart- ment and the percentage of undivided interest in the common areas and facili- ties appurtenant thereto shall thereafter be free and clear of the charge or en- cumbrances so paid, satisfied or discharged. Such partial payment, satisfaction or discharge shall not prevent the person having a charge or any other encum- brance from proceeding to enforce his rights against any apartment and the percentage of undivided interest in the common areas and facilitates appurte- nant thereto in respect of which such payment satisfaction or discharge has not been effected.
11. Common profits and expenses. - The common profits of the prop- erty shall be distributed among, and the common expenses shall be charged on the apartment owners according to the percentage of the undivided interest in the common areas facilities.
12. Contents of declaration. - (1) The declaration referred to in Sec- tion 2 shall be submitted in such form and in such manner and within such period as may be prescribed and shall contain the following particulars, namely
(a) description of the land on which the building and the improve- ments are or are to be located and whether the land is freehold or leasehold;
(b) description of the building stating the number of storeys and base- ments, the number of apartments and the principal materials of which it is or is to be constructed;
(c) the apartment number of each apartment, and a statement of its location, approximate area, number of rooms, immediate com- mon area to which it has access, and any other date necessary for its proper identification;
(d) description of the common areas and facilities;
(e) description of the limited common areas and facilities, if any, stating to which apartments their use is reserved ;
(f) value of the property and of each apartment, and the percentage
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of undivided interest in the common areas and facilities apper- taining to each apartment and its owner for all purposes, includ- ing voting; and a statement that the apartment and such percent- age of undivided interest are not encumbered in any manner what- soever on the date of the declaration;
(g) statement of,the purposes for which the building and each of the apartments are intended and restricted as to use;
(h) the name of the person to receive service of process in the cases hereinafter provided, together with the residence or place of busi- ness of such person which shall be within the city, town or village in which the. building is locate;
(i) provision as to the percentage of votes by the apartment owners, which shall be determinative of whether to rebuild, repair, re- store, or sell the property in the event of damage or destruction of all of part of the property;
(j) the method by which the declaration may be amended, consistent with the provisions of this Act;
(k) any other details in connection with the property which the per- sons executing the declaration may claim desirable to set forth consistent with this Act.
(2) A true copy of each of the declaration and bye-laws and all amend- ments to the declaration or the bye-law shall be filed in the office of the com- petent authority. The declaration may be amended under such circumstances and in such manner as may be prescribed.
13. A declaration of an instrument to be submitted before the com- petent authority and to be dealt with by him. - (1) All declarations, all amend- ments thereto and all instruments referred to in Sub-section (3) of Section 5 shall in the first instance, be submitted in Duplicate within fifteen days from the date of their execution to the competent authority along with copies of site plans and building plans with relevant title deeds.
(2) On receipt of the declaration or an amendment thereto or an instru- ment referred to in Sub-section (1) the competent authority shall, after holding such inquiry as he may consider necessary for the purpose, examine the decla- ration, the amendment or the instrument, as the case may be, to ascertain whether-
(i) the concerned property is governed by this Act ; and
(ii) the declaration, the amendment or the instrument is in order, and by an order in writing giving reasons therefor, accept or reject the declaration, the
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