News Point: In a major blow to Paras Buildtech, the shopowners of Paras Downtown Square Zirakpur take over the management and administration of the entire Shopping Mall, while the High Court refused any interim relief to the builder.
Paras Buildtech has lost the maintenance and management of Paras Downtown Square, Zirakpur to the Association of the unit holders/shopowners, pursuant orders passed by Additional Chief Administrator, Greater Mohali Area Development Authority (GMADA). The Punjab and Haryana High Court has refused any interim relief to the builder against the order.
The order has been passed on a petition filed to that effect by the Association, namely, Shopowners’ Welfare Association, under the Punjab Apartment Ownership Act 1995.
It was claimed by the Association in its petition, that under the provisions of the Act, it is only the individual apartment/shop owners or their Association, which has the right to administer and manage the building, especially common areas.
It was around the year 2010 when the builder Paras Buildtech had sold approximately 90 shops various parties through registered sale deeds. Despite of having done so, the builder claimed its own right to manage the common areas of the building, either itself or through its maintenance agency.
The builder had relied upon a clause in the sale deed, claiming that the purchasers had agreed to further enter into an agreement with the maintenance agency, which they failed to do.
The builder also questioned the right of the Association to move such a petition before the Competent Authority, casting aspersions on its constitution. The builder had also claimed before the Competent Authority that the claims of the Association could only be settled through the medium of an Arbitrator, appointed solely at the discretion of the builder.
“We tried our level best to convince Paras Buildtech that their demands of so high maintenance charges are unreasonable, keeping in mind the market realities. When the builder refused to listen to us we had no option but to move to the legal remedy,” said Rajbir Garewal, a shopowner.
Rejecting all its contentions, it was held by the competent authority while quoting extensively from the provisions of the Act, that it was in fact the bounded duty of the builder itself to move the Competent Authority for registration of Association of unit holders and to transfer the control and management of the common areas to the aforesaid Association after its registration.
In the absence of such a move by the builder itself, the Association was well within its rights to move the Competent Authority, not only for registration of the Association, but also seeking transfer of rights to administer and manage the common areas of the building where they had purchased units through registered sale deeds.
It was in December 2017 that the Competent Authority finally directed the builder to comply with its orders forthwith, transferring the entire management and control of the building, along with its accounts, funds and infrastructure facilities, to the Association of unit holders.
The promoter preferred Revision Petition against orders of the Competent Authority, before the Secretary to Government of Punjab Department of Housing and Urban Development, but the same too was dismissed.
“The contention regarding Arbitration was rejected as well, in the absence of any valid agreement. During pendency of the revision petition before the concerned Secretary, the promoters filed a writ petition in the Punjab and Haryana High Court claiming that the execution petition filed by the Association against the promoter be stayed during pendency of the revision petition,” says Rajesh Garg, advocate of the petitioner.
The aforesaid writ petition was opposed by the Association through its Senior Counsel Rajesh Garg and Nimrata Shergill, and the High Court refused any interim orders, but directed the Revisional Authority to decide the Revision Petition itself.
Another writ petition filed by the promoter against final orders passed by the Secretary cum Revisional Authority was withdrawn, after the High Court expressed its disinclination to interfere, in what it observed was a reasonable order.
The Association of purchasers once again moved the Competent Authority for executing the aforesaid orders, since the promoter was yet not willing to hand over the building even after the matter having finally been concluded judicially.
The Association had to move the High Court for expediting its execution proceedings, and it was directed by the Division Bench of Chief Justice that execution proceedings be expeditiously decided by the Sub Divisional Magistrate.
It was on the directions of the Sub Divisional Magistrate Derabassi, that the concerned Executive Magistrate, with the police help, obtained possession and control of the building in question for the Association on 25thof July.
