LexThe Himachal Pradesh Apartment Ownership Act,1978
Himachal Pradesh · state statute
Open in Lexace · Ask the AI about this actTHE HIMACHAL PRADESH APARTMENT OWNERSHIP ACT, 1978
ARRANGEMENT OF SECTIONS
Sections:
1. Short title, extent and commencement.
2. Application of the Act.
3. Definitions.
4. A member of a co-operative society to be the ow ner of the
apartment for a limited purpose.
5. An apartment to be transferable and heritable p roperty.
6. Benamidar of an apartment to be deemed to be th e real owner
thereof.
7. Common areas and facilities.
8. Compliance with bye-laws, covenants etc.
9. Certain work prohibited.
10. Encumbrances against apartments.
11. Common profits and expenses.
12. Contents of declaration.
13. A declaration or an instrument to be submitted before the
competent authority and to be dealt with by him.
14. Withdrawal from the provisions of the Act.
15. Instrument of declaration etc. compulsorily re gisterable.
16. Bye-laws.
17. Separate assessment.
18. Charge for property of common expenses.
19. Liability for unpaid common expenses.
20. Penalty.
21. Power to make rules.
22. Rules and bye-laws to be laid before State Leg islature.
23. Power to remove difficulty.
24. Removal of doubts.
25. Severability.
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H.P. APARTMENT OWNERSHIP ACT, 1978 2
THE HIMACHAL PRADESH APARTMENT OWNERSHIP
ACT, 1978
(ACT NO. 41 OF 1978) 1
(Received the assent of the President of India on t he 18 th December,
1978 and was published in R.H.P. Extra., dated the 6 th January, 1979,
P.93-99).
An Act to provide for the ownership of an individua l apartment and to
make such apartment heritable and transferable prop erty, in
Himachal Pradesh.
BE it enacted by the Legislative Assembly of Himachal Pradesh in the
Twenty-ninth Year of the Republic of India, as follows:-
1. Short title, extent and commencement .-(1) This Act may be
called the Himachal Pradesh Apartment Ownership Act, 1978.
(2) It extends to the whole of Himachal Pradesh.
(3) This section shall come into force at once; and the remaining
provisions of this Act shall come into force in such areas, and on such dates as
the State Government may, by notification in the Of ficial Gazette, appoint;
and different dates may be appointed for different areas.
2. Application of the Act .- This Act applies only to property, the sole
owner or all the owners of which submit the same to the provisions of this Act
by duly executing and registering a declaration set ting out the particulars
referred to in section 12:
Provided that no property shall be submitted to the provisions of this
Act, unless it is mainly used or is proposed to be used, for residential
purposes.
3. Definitions .- In this Act, unless the context otherwise requires,-
(a) "apartment" means a part of the property havin g a direct exit to
a road, street or highway or to a common area leadi ng to such
road, street or highway which together with its un divided
interest in the common areas and facilities forms an
independent residential unit;
(b) "association of apartment owners" means the as sociation
formed in accordance with the provisions made in t he
bye-laws;
(c) "building" means a building containing two or more apartments
or more than one building each containing two or m ore
1. For the Statement of Objects and Reasons see R. H. P. Extra., dated 16-9-1978, P.
1206. For its Authoritative Hindi text see R.H.P. E xtra., dated 1.6.1998, p. 1993-
2001.
H.P. APARTMENT OWNERSHIP ACT, 1978 3
apartments comprised in the same property;
(d) "common areas and facilities" includes-
(1) the land on which the building is located and all
easements, rights and appurtenances belonging to t he
land and the building,
(2) the foundations, columns, girders, beams, supp orts, main
walls, roofs, halls, corridors, lobbies, stairs, s tair-ways,
fire-escapes and entrances and exits of the building,
(3) the easements, cellars, yards, gardens, parkin g areas,
shopping centres, schools, garages and storage spaces,
(4) the premises for the lodging of janitors or pe rsons
employed for the management of the property,
(5) installations of common services, such as powe r, light,
gas, hot and cold water, heating, refrigeration,
air-conditioning, sewerage, etc.,
(6) the elevators, tanks, pumps, motors, compresso rs, pipes
and ducts and in general all apparatus and install ations
existing for the common use,
(7) such other common facilities as may be special ly
provided for in the declaration,
(8) all other parts of the property necessary or c onvenient to
its existence, maintenance and safety, or normally in
common use;
(e) "common expenses" means expenses of administra tion,
maintenance, repair or replacement of the common a reas and
facilities and all other sums assessed against the apartment
owners by the association of apartment owners;
(f) "common profits" means the balance of all inco me, rents,
profits and revenues from the common areas and fac ilities
remaining after the deduction of the common expenses;
(g) "competent authority" means the estate manager as notified by
the Housing Department of the Government of Himach al
Pradesh;
(h) "declaration" means the instrument by which th e property is
submitted to the provisions of this Act as hereinafter provided;
(i) "limited common areas and facilities" means th ose common
areas and facilities which may be designated in th e declaration
as reserved for use of certain apartment or apartme nts to the
exclusion of other apartments;
H.P. APARTMENT OWNERSHIP ACT, 1978 4
(j) "owner" in relation to a property or part ther eof or an apartment,
includes, for the purposes of this Act excepting th e provisions
of sub-section (1) of section 5 thereof, a lessee of such property
or part or of such apartment, where the lease is f or a period of
twenty years or more;
(k) "prescribed" means prescribed by rules made un der this Act;
and
(l) "property" comprises the land, the building an d the common
areas and facilities.
4. A member of a co-operative society to be the own er of the
apartment for a limited purpose .-Where a co-operative society is the owner
of a property or any part thereof, a member of such society in legal 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 t he provisions of this Act
excepting those of sub-section (1) of section 5.
5. An apartment to be transferable and heritable pr operty .-(1)
Each apartment owner shall be entitled to the exclu sive ownership and
possession of his apartment.
(2) An apartment, together with its undivided interests in the common
areas and facilities, shall constitute heritable an d transferable immovable
property within the meaning of any law for the time being in force:
Provided that no apartment and the percentage of undivided interest in
the common areas and facilities appurtenant to such apartment shall be
partitioned or sub-divided for any purpose whatsoever.
(3) Notwithstanding anything contained in the Trans fer of Property
Act, 1882 (4 of 1882), or in any other law for the time being in force, but
subject to the provisions of section 14 of this Act, any person,-
(a) acquiring by purchase, or
(b) taking lease of, for a period of twenty years or more, an
apartment comprised in property submitted to the provisions of
this Act, shall,-
(i) in respect of the said apartment, be subject t o the
provisions of this Act, and
(ii) execute and register the said apartment in su ch form, in
such manner and within such period as may be
prescribed, undertaking to comply, strictly with t he
bye-laws and with the covenants, conditions and
restrictions set forth in the declaration.
(4) Any transfer made in contravention of the provi sions of
sub-section (3) shall be void.
H.P. APARTMENT OWNERSHIP ACT, 1978 5
6. Benamidar of an apartment to be deemed to be the real owner
thereof .- Where an apartment is transferred to one person for a consideration
paid or provided by another person for his own bene fit, the transferee shall,
notwithstanding anything in the Transfer of Property Act, 1882 (4 of 1882), or
in the Indian Trusts Act, 1882 (2 of 1882), or in a ny other law for the time
being in force, be deemed to be the real owner of such apartment, and no court
shall entertain any claim of the person, paying or providing the consideration
for title in such apartment on the ground that he d id not intend to pay or
provide such consideration for the benefit of the t ransferee and that 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 are as and facilities in the
percentage expressed in the declaration.
(2) The percentage of the undivided interest of eac h apartment owner
in the common areas and facilities as expressed in the declaration shall not be
altered without the consent of all the apartment ow ners expressed in an
amended declaration duly executed and registered as provided in this Act. The
percentage of the undivided interest in the common areas and facilities shall
not be separated from the apartment to which it app ertains, and shall be
deemed to be conveyed or encumbered with the apartm ent even though such
interest is not expressly mentioned in the conveyance or other instrument.
(3) The common areas and facilities shall remain un divided, and no
apartment owner or other person shall bring any act ion for partition or
division of any part thereof, unless the property h as been withdrawn from the
provisions of this Act.
(4) Each apartment owner may use the common areas a nd facilities
for the purpose for which they are intended without hindering or encroaching
upon the lawful rights of the other apartment owners.
(5) The work relating to the maintenance, repair an d replacement of
the common areas and facilities and the making of a ny 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 shall have irrevocable right,
to be exercised by the manager or the board of mana gers on behalf of the
association, with such assistance as the manager or the board of managers, as
the case may be, considers necessary, to have acces s to each apartment from
time to time during reasonable hours, for the maint enance, repair and
replacement of any of the common areas and faciliti es therein, or accessible
therefrom, or for making emergency repairs therein to prevent any damage to
the common areas and facilities or to other apartments.
8. Compliance with bye-laws, covenants etc .- Each apartment
owner shall comply strictly with the bye-laws and w ith the covenants,
conditions and restrictions set forth in the declar ation. Failure to comply with
H.P. APARTMENT OWNERSHIP ACT, 1978 6
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 mana ger or the board of managers
on behalf of the association of apartment owners or , in a proper case, by an
aggrieved apartment owner.
9. Certain work prohibited .- No apartment owner shall do any work
which would be prejudicial to the soundness or safe ty of the property or
would reduce the value thereof or impair any easeme nt or hereditament or
shall add any material structure or excavate any additional basement or cellar.
10. Encumbrances against apartments .- During the period the
property remains subject to this Act, no encumbranc e of any nature shall be
created against the property. During such period an encumbrance may,
however, be created only against each apartment and the percentage of
undivided interest in the common areas and faciliti es appurtenant to each
apartment, in the same manner as in relation to any other separate parcel of
property subject to individual ownership.
11. Common profits and expenses .- The common profits of the
property shall be distributed among, and the common expenses shall be
charged to, the apartment owners according to the percentage of the undivided
interest in the common areas and facilities.
12. Contents of declaration .- (1) The declaration referred to in
section 2 shall be submitted in such form and in su ch manner as may be
prescribed, and shall contain the following particulars, namely:-
(a) description of the property;
(b) nature of interest of the owner or owners in t he property;
(c) existing encumbrance, if any, affecting the pr operty;
(d) description of each apartment containing its l ocation,
approximate area, number of rooms, immediate common area to
which it has access, and any other data necessary for its proper
identification;
(e) description of the common areas and facilities ;
(f) description of the limited common areas and fa cilities, if any,
stating to which apartments their use is reserved;
(g) value of the property and of each apartment, a nd the percentage
of undivided interest in the common areas and facilities to each
apartment and its owner for all purposes, including voting; and
(h) such other particulars as may be prescribed.
(2) The declaration referred to in sub-section (1) may be amended
under such circumstances and in such manner as may be prescribed.
13. A declaration or an instrument to be submitted before the
competent authority and to be dealt with by him .- (1) Any declaration
H.P. APARTMENT OWNERSHIP ACT, 1978 7
referred to in section 2 or any amendment thereto o r any instrument referred
to in sub-section (3) of section 5, shall, in the f irst instance, be submitted, in
duplicate, within fifteen days from the date of its execution, to the competent
authority along with copies of site plans, building plans and relevant title
deeds.
(2) On receipt of a declaration or an amendment the reto or an
instrument referred to in sub-section (1), the competent authority shall,-
(a) after holding such inquiry, as it may consider necessary for the
purpose, examine the declaration, the amendment or the
instrument, as the case may be, to ascertain whether-
(i) the property concerned comes within the purvie w of this
Act, and
(ii) the declaration, the amendment or the instrum ent is in
order;
(b) by an order in writing, giving reasons therefo r, accept or reject
the declaration, the amendment or the instrument; and
(c) in case of acceptance, immediately return the declaration, the
amendment or the instrument along with all the enc losures to
the owner or owners, as the case may be, for regis tration,
within fifteen days of the date of return.
(3) Any person, being aggrieved by an order of reje ction, may, within
thirty days from the date of such order or within s uch further period as the
appellate authority may allow on sufficient ground being shown, appeal to the
State Government, whose order on the appeal shall be final.
(4) Any order referred to in clause (b) of sub-sect ion (2) or in
sub-section (3) shall not be called into question in any court of law.
14. Withdrawal from the provisions of the Act .- (1) All the
apartment owners may withdraw property from the pro visions of this Act by
an instrument executed to that effect.
(2) Upon the property being withdrawn from the prov isions of this
Act, it shall be deemed to be owned in common by th e apartment owners and
the share of each such owner in the property shall be the percentage of
undivided interest previously owned by such owner i n the common areas and
facilities.
(3) Any encumbrance affecting any of the apartment s shall be
deemed to be transferred in accordance with the exi sting priority to the
percentage of the undivided interest of the apartment owner in the property as
provided herein.
15. Instrument of declaration etc. compulsorily reg isterable .- (1)
All instruments relating to the declaration or any amendment thereto referred
to in section 12 of the withdrawal of a property from the provisions of this Act
H.P. APARTMENT OWNERSHIP ACT, 1978 8
referred to in section 14 or the instrument referre d to in sub-section (3) of
section 5 shall be deemed to be instruments compuls orily registerable within
the meaning of clause (d) of sub-section (1) of sec tion 17 of the Registration
Act, 1908 (16 of 1908).
(2) The withdrawal provided in section 14 shall in no way bar the
subsequent re-submission of the property to the provisions of this Act.
16. Bye-laws .-(1) Every property shall be administered in accor dance
with such bye-laws as may be framed by the competen t authority with the
prior approval of the State Government.
(2) The bye-laws shall provide for the following am ongst other
matters, namely:-
(a) the manner in which the association of apartme nt owners is to
be formed, the election of a board of managers from amongst
the apartment owners, the number of persons consti tuting the
board, the number of members of such board; to ret ire
annually, the powers and duties of the board; the honorarium, if
any, of the members of the board, the method of re moval from
office of members of the board; the powers of the board to
engage the services of a secretary or manager, del egation of
powers and duties to such secretary or manger;
(b) method of calling meeting of the apartment own ers and the
number to constitute a quorum;
(c) election of a president who shall preside over the meetings of
the board and of the association of apartment owners;
(d) maintenance, repair and replacement of the com mon areas and
facilities and payments therefor;
(e) manner of collecting share of the common expen ses from the
apartment owners;
(f) any other matter considered to be necessary fo r the
administration of the property.
17. Separate assessment .- Notwithstanding anything to the contrary
in any other law for the time being in force, each apartment (of a property
including its percentage of undivided interest in t he common areas and
facilities thereof) the owner of which does not own any other apartment in
such property, shall be deemed to be a separate uni t for the purpose of
assessment of municipal rates and taxes.
18. Charge for property of common expenses .- All sums assessed
by the association of apartment owners for the shar e of the common expenses
chargeable to any apartment shall constitute a char ge on such apartment prior
to all other charges, except charge, if any, on the apartment for payment of
municipal rates and taxes.
H.P. APARTMENT OWNERSHIP ACT, 1978 9
19. Liability for unpaid common expenses .- Upon the sale of an
apartment the purchaser of the apartment shall be j ointly and severally liable
with the vendor for all unpaid assessments, against the latter for his share of
the common expenses upto the time of the sale.
20. Penalty .-(1) If the owner of any apartment subject to the
provisions of this Act, contravenes-
(a) any of the provisions of section 9 or section 10,
(b) any bye-law, that may be framed by the compete nt authority, or
(c) any covenant, condition or restriction set for th in the
declaration to which he is subject or a party, he s hall, at the
instance of the manager, or the board of managers o n behalf of
the association of the apartment owners, an aggrieved apartment
owner or in a proper case, the competent authority, on
conviction before a magistrate, be liable to a fine which may
extend to rupees one thousand, or to a term of impr isonment
which may extend to six months, or to both, and in case of
continuing contravention, to additional fine which may extend
to rupees fifty for every day during which such con travention
continues after conviction for the first such contravention.
(2) Any contravention punishable under sub-section (1) may, where
prosecution lies or is instituted at the instance o f or by the manager or the
board of managers on behalf of the association of t he apartment owners, be
compounded by such association, either before or af ter the institution of the
prosecution, on payment of, for credit to its fund, such sum as it may think fit.
(3) The provisions of this section shall apply with out prejudice to
those of sections 8, 18, and 19.
21. Power to make rules .- The State Government may, by
notification in the Official Gazette, make 1 rules for carrying out the purposes
of this Act.
22. Rules and bye-laws to be laid before State Legi slature .-Every
rule or bye-laws made under this Act shall be laid, as soon as may be after it is
made, before the Legislative Assembly, while it is in session for a total period
of not less than fourteen days which may be compris ed in one session or in
two or more successive sessions, and if, before the expiry of the session in
which it is so laid or the session immediately foll owing, the Assembly makes
any modification in the rules or bye-laws, as the c ase may be, or decides that
the rules or bye-laws should not be made, the rule or bye-laws shall thereafter,
have effect only in such modified form or be of no effect, as the case may be,
so, however, that any such modification or an annul ment shall be without
1. Rules framed vide notification No. Avas-1-A(3) 5 79 dated 18 th April, 1980
published in RHP dated 12-7-1980 P. 741-742.
H.P. APARTMENT OWNERSHIP ACT, 1978 10
prejudice to the validity of anything previously do ne under that rule or
bye-laws.
23. Power to remove difficulty .- If any difficulty arises in giving
effect to the provisions of this Act the Government may, by order published in
the Official Gazette, make such provisions or give such directions not
inconsistent with the provisions of this Act as may appear to it to be necessary
or expedient for the removal of such difficulty.
24. Removal of doubts .- For the removal of doubts, it is hereby
declared that the provisions of the Transfer of Property Act, 1882 (4 of 1882),
shall in so far as they are not inconsistent with t he provisions of this Act,
apply to every apartment together with its undivide d interest in the common
areas and facilities as those provisions apply in r elation to any other
immovable property.
25. Severability .- If any provision of this Act or any section,
sentence, clause, phrase or word, or application th ereof in any circumstances
is held invalid, the validity of the remainder of t his Act and of the application
of any such provision, section, sentence, clause, p hrase or word, in any other
circumstances shall not be affected thereby.
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