The UP Apartment Act, 2010, dictates that the number of votes be based on the flat sizes, which, in the absence of a DOD, is impossible to determine.
Residents of several societies have not been able to form their resident bodies (AOA/RWA) owing to the absence of a Deed of Declaration (DOD).
The clauses of UP Apartment Act, 2010, and its model bye-laws, 2011, have made matters worse. The Act demands that during AOA elections, the number of voters from each flat will depend on the size of the size of the flat. Simply put, the number of voters from the larger flats will be more than the number of voters from the smaller flats.
However, in the absence of a DOD, the actual size of a flat is not possible to be determined. As a result, the number of voters from each flat cannot be determined, thereby making it impossible for the society to hold elections without flouting the rules of the UP Apartment Act. The builder often withholds the DOD in order to conceal the changes made to the authority-approved layout plan of the society without the permission of residents.
This further led to AOA members illegally holding office beyond their term period citing the inability to hold fresh elections due to the absence of the vote share of residents. Such issues are generally fought over in society general body meetings without ever reaching a proper conclusion.
In case of Societies such as Niho Scottish Gardens, the builder and Ghaziabad Development Authority (GDA) had to file the documents following a legal battle and a high court order. In case of Express Gardens, another society, GDA managed to publish a DOD of sorts — an incomplete list of the flats — which has created even more confusion.
Some societies, such as Indirapuram’s SPS Residency, the society’s managing committee has decided to follow the older Societies Registration Act 1860 instead of the UP Apartment Act.
In a situation like this, societies like Jaipuria Sunrise Greens have devised a rather reasonable way to hold elections. Speaking to City Spidey, Shripal Singh, the society’s general secretary said that although the society received its DOD from the builder, they challenged it in court since it was lacking several details. “The reasonable way is to consider the area of the smallest flat of the society as a single unit vote, and dividing the area of the larger flat with the area of the smallest flat would give the number of votes in the larger flat,” explained Singh. “If the smallest flat of 1,000 sqft holds 1 vote, the larger flat of 2,000 sqft holds 2 votes.”
The recent amendments to the UP Apartment Act, 2010, have added further confusion. According to the amended law, builders who have constructed societies before 2016 will no longer have to file the DOD documents.
Apartments owners are now wondering how to challenge the absence of a DOD, how to proceed with the already existing cases and most importantly, how to hold the society elections.