THE ANSAL Apartments at Shyamala Hill have been built on property which belongs to the Shyamala Kothi family. The builders were the Ansal Group from Delhi, but the property continued with M/s Shyamala Builders, who ultimately dissolved their partnership and transferred all rights to Yawar Rasheed. Yawar Rasheed retains a certain number of flats, eight in number if my memory serves me right.
The flat owners have purchased the property in three ways: (1) from M/s Shyamala Builders, (2) from M/s Ansals and (3) in resale from the original purchasers. A fourth manner of acquisition was directly from Yawar Rasheed from the pool of flats retained by him as the original property owner.
When the flats were sold the deed of apartment itself stated the extent of the property sold, including any land for the restricted and exclusive use of the apartment. The MP Prakoshtha Swamitva Adhiniyam (MPPSA), 1976, recognises in Section 3 (n) that certain areas can be designated as reserved for the use of a particular apartment to the exclusion of all other apartments.
Thus if land appurtenant to a property is so reserved in the deed of apartments, this is perfectly valid and legitimate. In the successor Act of the year 2000, Act XV of 2001, which has been enacted and made applicable, though not fully so because the relevant notifications in this behalf have not been notified as per Section 2 of the Act, Section 3 (o) also recognises such land which is reserved for the exclusive use of a particular apartment.
The new Act, in Section 14 (g) states that the deed of apartment will contain a description of such exclusive or limited areas.
Even in the old Act of 1977, under Section 7 (i) the deed of apartment is to specify such areas the use of which is exclusive for a particular apartment. Yawar Rasheed, in the deed of apartment sold by him as the original owner of the property, has made such mention and legally this cannot be faulted. It is unfortunate that neither the courts nor the Lokayukta have taken the note of this specific provision of law.
As per the Act, the management of the property, which together constitutes a particular set of apartments, is to be done under byelaws framed under Section 16 of the MPPSA 1976. It is a matter of enquiry whether such byelaws have been framed for the Ansal Apartments and, if so, whether the Board of Managers has been constituted according to the byelaws.
I state this because there have been a number of complaints in this behalf. Apparently some sort of an appeal has been heard by the Department of Commerce and Industry, whereas under the Business Allocation Rules framed under Article 166 of the Constitution the administration of the Act vests in the Housing and Environment Department.
In other words, if the Commerce and Industry Department has heard any appeal against orders of the competent authority it is tantamount to a coram non judice exercising a jurisdiction which does not vest in it. Such a decision has no validity in law, which means the question of the legality of the present Board of Managers is in substantial doubt.
Under the law the management of the apartments is to be done as per rules. Under Section 7 of the Act each apartment owner is required to comply with the byelaws, etc, and failure to do so is actionable. Section 24 further makes the Act binding on the apartment owners. Section 23 permits action to be taken against violators, but nowhere does the law say that beyond issuing process the Board of Managers can take direct action.
This means that it is only an authority designated as competent authority by government, or a civil court, which can determine what action is to be taken. The question which arises is whether the Municipal Corporation is the authority which is competent to take such action.
Under Section 307 of MP Municipal Corporation Act, 1956, the Commissioner of the corporation can cause the removal or alteration of a work not in conformity with the byelaws or any town planning scheme framed under Section 291 of the Municipal Corporation Act.
Buildings governed by the MPPSA 1976 or 2000 do not fall in either category and, therefore, it is highly questionable whether the corporation has any jurisdiction in this behalf. In my opinion if the corporation has taken any action to remove structures within the designated apartment area it has acted in violation of law.
I state this with some degree of confidence because the MPPSA, 1976, was drafted by me when I was Secretary, Environment Group of Departments and helped the then Chief Minister to pilot the Bill through the legislature. I do know that we had enacted this special legislation to deal with a designated set of apartments, which would have problems very different from those of houses built on individual plots of land, which is why the special vehicle of the Association and Board of Management was created.
The matter has gone to court but the issues raised by me in this article were probably not argued in this form before the courts. Now the Lokayukta has come into picture and has given some very rigid directives to the Municipal Corporation which, in compliance, has taken action which is itself questionable.
I have very great respect for retired Chief Justice Ripusudan Dayal, the present Lokayukta, and I am more than confident that his anxiety is to ensure compliance with law. However, in a society of laws we all have to work within the mandate given to us by law.
Under the MP Lokayukta Evam Uplokayukta Adhiniyam, 1981, Section 2 (b) defines the words “allegation in relation to a public servant”. Under Section 7 of the Act the Lokayukta has jurisdiction to enquire into an allegation made against a public servant.
Such allegation can be that the public servant abused his position to gain favour or cause undue harm, acted in accordance with improper or corrupt motive, is guilty of corruption or has property disproportionate to his known source of income.
Taking or not taking action on a complaint by a section of residents of Ansal Apartments does not fall in any of these categories and with greatest of respect I would submit that this is not a fit case for intervention by the Lokayukta. In any case, regardless of directions of the Lokayukta, the Municipal Commissioner is bound by the provisions of the MP Municipal Corporation Act and as such he had no jurisdiction to act in the Ansal Apartments case.
This is not an article meant to support any particular group or apartment owners in the said property. Basically, issues such as sale of the apartments by the original property owner together with the land appurtenant which is for the exclusive use of the apartment owner, the validity of the present Board of Mangers, actionability, if any, of alleged violators and the forum of action are all matters which call for detailed enquiry.
I would suggest that all punitive action must cease immediately and instead the Housing and Environment Department, which is responsible for the administration of the MPPSA 1976 should set up an enquiry committee to go into the whole issue and present a balanced, objective view before government. The committee should also advise why the MPPSA 2000 has not been notified for implementation even six years after enactment and suggest its immediate notification and enforcement.