The Tide Is Turning – Friday Gurgaon – 28-Nov-2014
December 2, 2014 - Uncategorized
With the new BJP government in Haryana firmly in the saddle, it is fair to expect that things will change for the better in the State, and particularly Gurgaon – which had become a personal fief of powerful politicians who, in cahoots with builders, threw the rulebooks out of the window and reigned supreme. The citizens and civil society are also enthused that the residents of many real estate complexes, which are involved in running battles with their builders, will get relief – with the government and bureaucracy having come out of the thrall of the powerful cabal (the corrupt nexus), which has not allowed any regulation or monitoring of private real estate in the City. It was with this hope that, on November 21, the members (apartment owners) of the Ambience Lagoon RWA (ALARWA) decided to take over the maintenance and security of the complex, after the agencies deployed by the builder went on strike over the non-payment of their dues for the last two months. The apartment owners, who have been in a constant tussle with the builder over the poor management of the residential complex, say that a resolution was passed by more than 200 apartment owners (out of 345), approving the taking over the management of this residential complex by ALARWA. The decision, however, did not go down well with the builder, who came the next day with a large posse of his staff, and allegedly even bouncers, to threaten the apartment owners. The builder asserted that the maintenance of the complex could only be given to an association called LRACA (Lagoon Residential Apartments Complex Association), which the residents claim is his own creation, and comprises his family members and a couple of ‘personally loyal to him’ residents.
While the presence of the police and the intervention of senior officials defused the situation on that day, there is now a bitter standoff between the apartment owners and the builder – with both sides refusing to budge from their stated positions. Anita Parashar, Secretary of the Ambience RWA,says that many of the women residents have decided that they would guard the gate to the complex. “We have hired our own maintenance and security agency, and things are improving. The residents had been pleading with the builder for the last 12 years, to improve the service, security and overall maintenance, but they were completely ignored,” says Parashar. Now, with their patience having almost given way, they want to no longer accept the old way. They want the new government to intervene and end this running battle. Parashar says that they have played by the book, and have complied with the directions of the DTCP, the Registrar of Societies and the Haryana Apartment Ownership Act 1984. “We want the government to ensure that the law is implemented in letter and spirit, so that the residents are not left to the mercy of a builder,” asserts Kavita Roy, a resident. Roy says that every facility within the complex has been compromised by the builder in the last 12 years, and the community centre of the complex has been turned into a private club, which is rented out to outsiders. The Association also claims that originally the complex comprised of 18.98 acres, but the plot size was reduced to 10.98 acres, on the plea that this project had been converted into an ‘integrated’ complex. Sanjay Lal, Vice President of ALARWA, says that when the builder sold the complex to the buyers, they were promised a beautiful lagoon landscape – with water bodies, a large club, sports areas and other facilities. All these vanished later. “Even the quality of basic facilities, like lifts, was ‘compromised’, and the residents had to pool money to repair and replace some of them,” says Lal. In fact the Supreme Court, in a recent decision, has directed the builder to refund 70 per cent of the maintenance fees (collected over a decade plus) to the apartment owners, as the Company (builder) had failed to provide the facilities that were promised when the project was launched – as also failed to maintain some (provided) facilities adequately. The Supreme Court bench of Justices V Gopala Gowda and Adarsh Kumar Goel upheld a ruling of the National Consumer Disputes Redressal Commission (NCDRC), which had asked the builders of Ambience Lagoon Apartments to refund 70 per cent of the maintenance fees – along with 9 per cent interest – that had been collected from the buyers.
The tales of poor infrastructure, and lack of maintenance are long and weary, says Advocate Pooja Aganpal, who has been pleading the case on behalf of ALARWA. Aganpal says that a builder is supposed to hand over the maintenance and operations of a complex to the association immediately after grant of the Occupation Certificate (OC), and file the Deed of Declaration (DoD) within 90 days of the grant of OC. (DoD is the ‘mother instrument’ that is filed before the registrar/sub-registrar while transferring ownership from a builder/developer to apartment owners). In the instant case of Ambience Lagoon, there was an almost six years delay in the filing of the DoD (after the filing of the OC). Aganpal claims that the Declaration was filed in 2009, while ALARWA was registered in 2003. “The builder was aware of the same, but to create (his) perpetual interest, a separate RWA, which comprised of the family members and supporters of the builder, was created in the name and style of LRACA. This association was to be used as a vehicle to run the affairs of the complex,” asserts Aganpal. The lawyer adds that as per the resolution passed and signed by 200 of the 345 available owners, and submitted to the DG, TCP (Town & Country Planning), ALARWA is the only association that has been registered under the Haryana Apartment Ownership Act, 1983, and is indeed the only official and legal association of the Lagoon complex. She also says that when the RWA passed the resolution, created byelaws, gave notice of the election and conducted elections, none of the parties raised any objections or contested this in the court. However, strangely, the DG, TCP told the newly elected ALARWA office bearers that he was not competent to decide whether the association was legal or illegal, alleges Anita Parashar. With the battle between the residents and the builder continuing within the State machinery, which is preferring for now to sit on the fence, the RWA – while appreciating the role played by the Police in defusing the situation – asserts that there is now need for the government to intervene more forcefully. Kavita Roy says that they have sent letters to the CM, the PMO and all concerned officials, and requested for help, as the builder is a powerful and influential person. The RWA has also decided to approach the Gurgaon MP Rao Inderjit Singh and Badshahpur MLA Rao Narbir Singh. Many professionals living in the complex have taken leave from office to man the entrance gate, and also to continue this ‘fight’, which they believe is just and fair. Aashima Kalra, a resident, says that the people are hoping for conclusive action from the State government. Meena Ayri, who has been a regular in guarding the front gate, says that they have been deceived from the beginning. “The complex has also been deteriorating by the day. Repeated complaints to the Estate Manager did not help, as he always told us that there was not enough staff. The greenery suffered, security suffered, and so did housekeeping,” says Ayri. The residents claim that had the maintenance been even satisfactory, they would not have rebelled this way. With the situation getting pathetic, the residents felt that they had to break free from the perpetual ‘bondage’. Seema Parimoo, another apartment owner, says that a new building, which has been constructed on land that was part of their complex, has completely blocked the sunlight from their flat. “No one in this City seems interested to check irregularities and implement the rule of law,” alleges Parimoo. The RWA is also critical of the way the Department of Town and Country Planning has allowed the builder to change plans and build new apartments, but never even once checked or paid any heed to the shortcomings in the original project. One of the residents alleges that the government officials (in cahoots with the builders) prefer to ignore such matters, and allow the residents to go to court, knowing well that a decision would not come for years.
The Federation of Apartment Owners Association (FAOA), an umbrella body of RWAs, has opined that there have been serious violations by the builder. Lt Gen SK Bahri, Chairman, Core Council of FOAA, in a letter has clearly said that it is wrong to compel the residents to accept an illegal association (LRACA), which has been formed in violation of Sections 3 (d) and 13 (6). However, the builder, Raj Singh Gehlot, maintains that he will transfer the maintenance to LRACA only, as this is the body that has been registered in the Deed of Declaration. In a letter written to the residents, the first after 5 years, the builder says: ‘You may please recall that ALARWA was formed by some residents on 26th May, 2002 as an informal Association…Thus ALARWA was not the statutory association under the provisions of Haryana Apartments Ownership Act…. We kept on requesting the then office bearers of ALARWA to give me the name of the apartment owners to enable us to form the statutory association…Then we have to take the initiative and somehow gathered the required no. of apartment owners to form the statutory association and filed the Deed of Declaration. However, after that office bearers of ALARWA started leveling false and baseless allegations against us and filed complaints and court cases against us at multiple levels….However, in view of the fact that various authorities have not found any merit in the complaints/contentions of ALARWA, I think it is right time to hand over the maintenance of the common facilities, services and spaces within the Lagoon Apartment Complex to the rightful body of residents i.e. Lagoon Residential Apartments Complex Association (LRACA)…and accordingly we have decided to hand over the maintenance of the Lagoon Apartment Complex to LRACA w.e.f. 1st January, 2015. You may recall that I have called for the meeting of all the residents irrespective of their affiliation to ALARWA or LRACA in Leela Hotel on 11.06.2014 in terms of the order of DGTCP, Haryana, Chandigarh. … After due deliberation, it was decided to continue with the existing office bearers of the LRACA. In the meantime, DGTCP, Haryana, Chandigarh and Lokayukta Haryana, Chandigarh discussed the petition/complaint filed by ALARWA…It will also be relevant to mention that the contention of ALARWA that they are in majority is neither correct nor feasible in any manner because the maintenance of the Lagoon Apartment Complex can be handed over only to the association formed and mentioned in the Deed of Declaration filed by us in the capacity of developer’.The residents, however, are not ready to accept LRACA. They know that only the name has changed….the face remains the same. And they have had enough of that. They want the new government to help them finally get ‘achhe din’. Meanwhile, these determined residents stoically stand, through day and chilly nights, to protect their complex from being trespassed. The builder sees their action as a mutiny; they call it a ‘satyagraha’.