(1) No person, who is a promoter, or who is in charge of management or connected with the management of a block or building of flats whether as member of a managing committee, director, secretary or otherwise, or is responsible for the maintenance thereof (hereinafter in this section referred to as "the manager"), shall, without just and sufficient cause, either by himself or through any person cut off, withhold or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat or by any person in occupation thereof through or under him in respect of the flat taken, or agreed to be taken, by him.
(2) The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provisions of sub-section (1), make an application to the Court for a direction to restore such supply or service.
(3) If the Court on enquiry finds that applicant or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without just and sufficient cause, the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.
(4) The manager who fails to restore the supply or service before the date so specified shall for each day during which the default continues thereafter, be liable upon a further direction by the Court to that effect to fine which may extend to one hundred rupees.
(5) Notwithstanding anything contained in any law for the time being in force—
(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad,
(b) In any other area for which Court of Small Causes is established under the Provincial Small Causes Courts Act, 1887, such Court, and
(c) elsewhere, the Court of the Civil Judge (Senior Division), shall have jurisdiction to decide any application made under sub-section (2) and no other Court shall have jurisdiction to entertain such application. No appeal shall lie from any order made on such application; but in the City of Ahmedabad, the Ahmedabad City Civil Court established under the Ahmedabad City Courts Act, 1961 and elsewhere the District Court may, for the purpose of satisfying itself that the order made was according to law, call for the case in which such order was made and the Court aforesaid or the Judge of the City Court or, as the case may be, the District Judge or any Judge to whom the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit.
(6) Any manager who contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months, or with fine, or with both.
(7) The offence under sub-section (6) shall be cognizable and shall not be triable by any Court inferior to that of a Magistrate for the City of Ahmedabad or a Magistrate of the First Class.
Manager not to cut off, withhold, curtail or reduce essential supply or service.
IX of 1887.
Guj. XIX of
1961.
1973 : Guj . 13 ] Gujarat Ownership Flats Act, 1973 9 of 20
Explanation I.-In this section, essential supply or service includes the supply of water, electricity lights in passages and on stair-cases, and lifts and conservancy or sanitary service.
Explanation II.-For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the manager on account of which the essential supply or service is cut off by the local authority or any other competent authority.
14. The provisions of this Part, except where otherwise provided, shall be in addition to the provisions of the Transfer of. Property Act, 1882 and shall take effect notwithstanding anything to the contrary contained in any contract.
15. As respects flats which on the commencement of this Part have already been constructed, or converted, the provisions of sections 2, 6, 8, 9, 10, 11, 12, 13, 42, 43 and 44 shall apply subject to the following modifications, that is to say-
(a) in section 2, in clause (c), the words "who constructs or causes to be constructed" occuring at both the places shall be read as if the words "who has constructed or caused to be constructed" had been substituted;
(b) in section 8, if the date specified or agreed to has already passed at the commencement of Part I, then the promoter shall give possession within three months from such commencement; and if for any reasons beyond his control and of his agent, the promoter has been unable to give possession of the flat within three months from such commencement, he shall give possession thereof within a further period of three months if those reasons still exist; and thereafter the promoter shall be liable on demand to refund the amounts on the terms and conditions provided in the said section;
(c) in section 9, the words and figure "after the agreement referred to in section 4 is registered" shall be read as if the words "after the commencement of Part I" had been substituted;
(d) in section 10, the words "As soon as a minimum number of persons required to form a co-operative society or a company have taken flats the promoter shall within the prescribed period" shall be read as if the words "Where the minimum number of person required to form a co-operative society or a company have taken flats, the promoter shall within three months from the commencement of Part I have been substituted;
(e) in section 11, the words and figure "in accordance with the agreement executed under section 4" shall be read as if the words "in accordance with any agreement made in respect thereof" had been substituted, and the words "within prescribed period" shall be read as if the words "within three months from the commencement of this Part" had been substituted."
16. Nothing in this Part shall apply to the Gujarat Housing Board constituted under the Gujarat Housing Board Act. 1961.
PART II.
PROVISIONS FOR OWNERSHIP OF APARTMENTS.
17. This Part applies only to property, the sole owner or all of the owners of which submit the same to the provisions of this Part by duly executing and registering a Declaration as hereinafter provided :
Provided that, no property shall be submitted to the provisions of this Part unless it is mainly used, or proposed to be used for residential purposes.
18. In this Part, unless the context otherwise requires,- IV of 1882.
Part to be in addition to Transfer of Property Act and to over-ride contract to the contrary.
Application of certain provisions to flats already in existence.
Part not to apply to Gujarat Housing Board.
Guj. XXVIII of
1961.
Application of Part.
Definitions.
[ 1973 : Guj . 13 Gujarat Ownership Flats Act, 1973
(a) "apartment" means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors (or part or parts thereof) in a building, intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway;
(b) "apartment owner" means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration;
(c) "apartment number" means the number, letter, or combination thereof designating the apartment in the Declaration;
(d) "association of apartment owners" means all of the apartment owners acting as group in accordance with the bye-laws and the Declaration;
(e) "building" means a building containing five or more apartments, or two or more buildings, each containing two or more apartments, with a total of five or more apartments for all such buildings, and comprising a part of the property;
(f) "common areas and facilities" unless otherwise provided in the declaration or lawful amendments thereto, means-
(1) the land on which the building is located;
(2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-es- capes and entrances and exits of the building;
(3) the basements, cellars, yards, gardens, parking areas and storage spaces;
(4) the premises for the lodging of janitors or persons employed for the management of the property;
(5) installations of central services, such as power, light, gas, hot and cold water, heating, refrigerations, air-conditioning and incinerating;
(6) the elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;
(7) such community and commercial facilities as may be provided for in the Declaration; and
(8) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normaly in common use;
(g) "common expenses" means,-
(1) all sums lawfully assessed against the apartment owners by the association of apartment owners;
(2) expenses of administration, maintenance, repair or replacement of the common areas and facilities;
(3) expenses agreed upon as common expenses by the association of apartment owners;
(4) expenses declared as common expenses by the provisions of this Part or by the Declaration or the bye-laws;
1973 : Guj . 13 ] Gujarat Ownership Flats Act, 1973 11 of 20
(h) "common profits" means the balance of all income, rents, profits and revenues from the common areas and facilities remaining after the deduction of the common expenses;
(i) "competent authority" means in relation to a building constructed or to be constructed by a Housing Board, the Housing Commissioner; and in any other case, the Registrar of Co-operative Societies as defined in the Gujarat Cooperative Societies Act, 1961;
(j) "Declaration" means the instrument by which the property is submitted to the provisions of this Part as hereinafter provided, and such Declaration as from time to time may be lawfully amended;
(k) "Housing Board" means the Housing Board constituted under the Gujarat Housing Board Act, 1961;
(l) ''Housing Commissioner" means the Housing Commissioner appointed as such under the Gujarat Housing Board Act, 1961;
(m) "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;
(n) "limited common areas and facilities" means those common areas and facilities designated in the Declaration as reserved for use of certain apartment or apartments to the exclusion of the other apartments;
(o) "majority or majority of apartment owners" means the apartment owners with 51 per cent. or more of the votes in accordance with the percentages assigned in the Declaration to the apartments for voting purposes;
(p) "manager or Board of managers" means the manager or Board of managers of an association of apartment owners;
(q) "person" includes a joint family;
(r) "prescribed" means prescribed by rules made under this Act;
(s) "property" means the land, the building, all improvements and structures thereon, all owned in freehold or held on lease or as occupant under any law relating to land revenue and all easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of this Part.
19. Each apartment, together with the undivided interest in the common areas and facilities, appurtenant to such apartment, shall, for all purpose, constitute heritable and transferable immovable property within the meaning of any law for the time being in force in the State;
and accordingly, an apartment owner may transfer his apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever, in the same manner, to the same extent and subject to the same rights, privileges, obligations, liabilities, investigations, legal proceedings, remedies and to penalty, forfeiture and punishment as any other immoveable property, or make a bequest of the same under the laws applicable to the transfer and succession of immoveable property.