Table of Contents

Introduction

Section 2 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 determines when the UP Apartment Act applies. It operates as the jurisdictional trigger of the statute. The Act automatically governs every building or cluster containing four or more apartments, whether constructed on freehold or leasehold land, and extends to the land and common areas appurtenant to such apartments.

This article examines the scope, legislative intent, exclusions (shopping malls and multiplexes), application to mixed-use and leasehold projects, FAR-linked common areas such as golf courses, and the judicial principles laid down by the Supreme Court and the Allahabad High Court.

2. Bare Text of Section 2:

Application: The provisions of this Act shall apply to all buildings having four or more apartments in any building constructed or converted into apartment and land attached to the apartment, whether freehold or held on lease excluding shopping malls and multiplexes.

3. Scope and Legislative Intent

Section 2 defines the scope of applicability of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (“the Act”). It provides that “The provisions of this Act shall apply to all buildings having four or more apartments in any building constructed or converted into apartment and land attached to the apartment, whether freehold or held on lease excluding shopping malls and multiplexes.”

This provision is deliberately framed in expansive yet conditional language. The Act applies to every building (or group of buildings) that contains four or more apartments, irrespective of tenure of land — freehold or leasehold. The functional threshold of “four or more apartments” aligns the statute’s application with multi-owner developments, where co-ownership of common areas and collective maintenance necessarily arise. This design choice filters out detached bungalows, duplexes, and small-scale residential buildings where co-ownership complexities are absent.

The inclusion of land “attached to the apartment” is crucial. It ensures that the Act governs not only the physical building but also the appurtenant land, easements, and open areas forming part of the integrated property. This broad phrasing harmonises with Section 3(i)(i), which defines “common areas and facilities” to include the land on which the building stands and all rights and appurtenances belonging thereto.

The Designarch judgment by Hon’ble Allahabad High Court gives Section 2 doctrinal force and operational clarity. It establishes that the U.P. Apartment Act, 2010 applies automatically to any development meeting its factual threshold, regardless of tenure, building typology, or the promoter’s voluntary actions, and that development authorities carry a corresponding statutory duty to enforce it.

4. Relationship with “Building” and “Apartment”

To fully construe Section 2, it must be read with Section 3(g) and Section 3(b). Section 3(g) defines a “building” as one containing four or more apartments, or a cluster of two or more buildings in any area designated as a block, each containing two or more apartments with a total of four or more apartments. This definition expands the coverage to cluster developments and multi-block complexes, provided the cumulative number of apartments is four or more.

Section 3(b) defines an “apartment” as an independent space, whether residential, office, or professional, having a direct exit to a common area or public street, and includes garages or domestic staff quarters provided by the promoter. Importantly, it does not restrict use to residential purposes. Thus, the Act’s application extends to office units, service apartments, and mixed-use buildings where independent ownership of units exists. This feature mirrors the Maharashtra Apartment Ownership Act, 1970 and the Delhi Apartment Ownership Act, 1986, both of which expressly include non-residential units.

Consequently, even office buildings with separate ownership of floors or cabins are covered if they meet the threshold of four or more independently owned units with common facilities such as lifts, lobbies, or utilities.

5. Comparison with Other State Statutes

The Uttar Pradesh Apartment Act aligns broadly with similar enactments across India but differs in its formulation of applicability:

State	Statutory Threshold	Notable Distinction
Maharashtra (1970)	Applies to buildings where a declaration is made; no numerical threshold.	Coverage triggered by filing a declaration, not by number of units.
Delhi (1986)	Applies to “every apartment building” constructed after commencement; no exclusion for malls or multiplexes.	Broader scope but less refined in distinguishing commercial complexes.
Haryana (1983)	Applies to buildings with “more than four apartments”; excludes single-family houses.	Similar numeric filter.
Odisha (1982)	Applies to buildings with multiple apartments on freehold or leasehold land.	Similar to U.P. model.

Uttar Pradesh’s approach, therefore, blends Haryana’s numerical threshold with Maharashtra’s concept of ownership over both building and land, while introducing explicit exclusion clauses for shopping malls and multiplexes, a refinement absent in older statutes.

6. Shopping Malls and Multiplexes: Excluded

The exclusion of shopping malls and multiplexes reflects the Act’s residential, office and mixed-use governance focus. That is so apparently because, shopping malls and multiplexes mostly operate on a fundamentally different ownership and maintenance model.

A shopping mall is typically a large enclosed commercial complex comprising multiple retail outlets under a common management, often owned by a single entity or managed through a lease/licensing model rather than conveyance of undivided ownership shares.
A multiplex refers to a cinema complex with multiple screens integrated with entertainment, food, and retail areas, generally subject to commercial licensing norms and public safety regulations distinct from residential buildings.

Because such complexes involve licensees or tenants, not apartment owners, and require specialised operational and safety frameworks (e.g., under fire, cinema, and commercial building laws), the legislature prudently excluded them from the scope of this Act. Applying an apartment ownership regime, intended to vest heritable and transferable rights, would have been incongruent with the lease-and-management structure typical of malls and multiplexes.

7. Mixed-Use and Office Developments

Despite the exclusion of purely commercial complexes, Section 3(b) expressly includes apartments intended for “official purposes or practicing any profession or carrying on any trade or business”. Therefore, office buildings or mixed-use projects with individually owned office suites or professional chambers are clearly governed by this Act.

In such buildings, co-owners share access to common lobbies, elevators, mechanical systems, and parking, necessitating an association framework identical to residential condominiums. The Delhi Apartment Ownership Act, 1986 follows the same logic by including “any flat used for residential or commercial purpose” within its definition of apartment. The Maharashtra Act too defines “apartment” broadly to include both residential and non-residential premises. Uttar Pradesh thus mirrors this inclusive trend.

8. Integrated Townships and Multi-Building Projects

In practice, large township projects often contain multiple buildings, some with high-rise apartments and others with row housing or villas, all within a common gated development sharing utilities, security, landscaping, and recreational facilities. Where each building or block has four or more apartments, Section 2 triggers the application of the Act.

The common areas shared by such buildings—roads, clubhouses, community centres, sports amenities—fall within the definition under Section 3(i), which includes “all parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use.”

Hence, even if a project combines apartments, row houses, and villas, the Act governs the apartment portions and extends to common areas appurtenant to those apartments. The promoter’s declaration under Section 12 must reflect this integrated character and clearly demarcate which facilities are common to all owners and which are limited common areas.

9. Role and Timing of Deed of Declaration

Under Section 12, the promoter is required to submit a declaration to the Competent Authority containing full particulars of land, building, apartments, and common areas. Section 14 further mandates formation of an Association of Apartment Owners upon sale or possession of a prescribed number of units.

In integrated developments, the declaration assumes decisive significance: it determines whether amenities such as roads, parks, or recreational areas (e.g., a golf course) are treated as common areas or independent commercial facilities. If the promoter fails to declare them as common areas, disputes inevitably arise at the stage of transfer and maintenance.

Judicial precedent (see Designarch Infrastructure Pvt. Ltd. v. Vice-Chairman, GDA, Writ-C No. 33826/2012, All HC, 14 Nov 2013) has clarified that promoters cannot unilaterally alter or withhold common areas after sale, and that competent authorities must ensure compliance with approved layout plans and declarations.

10. A Golf Course Question — FAR Consumption and Common Area Logic

A recurring interpretive issue arises when a golf course or large landscaped area within a township has been developed on land whose Floor Area Ratio (FAR) or ground coverage has been utilised by apartment towers. In such cases, although the golf course might not have been declared as a common area in the promoter’s declaration, the logic of the Act implies shared ownership rights if:

The open land contributes to the FAR computation of apartment buildings;
The course forms part of the approved layout plan; and
The cost or maintenance is embedded in apartment pricing or common maintenance charges.

Under Section 5(2) read with Section 3(i)(i), apartment owners are entitled to an undivided interest in all common areas and facilities appurtenant to their apartments, the percentage of which is specified in the Deed of Apartment. Thus, where the promoter has capitalised the land value or used its FAR, it cannot subsequently claim exclusive ownership of the golf course.

The Supreme Court’s reasoning in Supertech Ltd. v. Emerald Court Owner Resident Welfare Association (C.A. No. 5041 of 2021, SC, 31 Aug 2021) reinforces this principle: common areas, once part of the sanctioned layout, cannot be appropriated for exclusive commercial use or additional construction. The Court held that any change in plan or common area allocation without the consent of owners and sanctioning authority is illegal. Applying that logic, a golf course serving as the lung space and visual amenity for apartment buildings—and included in the project’s FAR calculus—qualifies as a common area notwithstanding its omission in the declaration.

The Competent Authority or civil courts, in such circumstances, may read the omission as constructive non-disclosure or suppression of a common facility by the promoter, thus bringing it within the regulatory purview of the Act.

11. Co-operative Housing Societies

The U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 does not exclude cooperative housing societies from its scope; rather, it expressly recognises them within the definition of “promoter” under Section 3(w), which includes “a person, company, firm, association or co-operative society, as the case may be, by which, or by whom, the building has been constructed.” This means that when a cooperative society undertakes construction of an apartment building for its members, it assumes the same legal responsibilities as any other promoter, such as disclosure, conveyance, and transfer of common areas. However, the cooperative’s role is developmental and transitional, it is limited to constructing and conveying the apartments to members. Once ownership of 30% or more units has been transferred and possession delivered, the apartment owners has to form an Association of Apartment Owners (AOA) under Section 14, which then assumes responsibility for maintenance and governance of the property. The reasoning is clear: the cooperative’s purpose under the Cooperative Societies Act, 1965 is to facilitate development, while the 2010 Act creates a statutory self-governance framework post-possession. Thus, the law envisions a functional shift – from the cooperative as promoter during construction to the AOA as the manager thereafter, ensuring that ownership, maintenance, and community governance are regulated under the 2010 Act once apartments are individually conveyed.

12. Application to Leasehold Projects and Sub-Lease Structure

The phrase “whether freehold or held on lease” in Section 2 expands coverage to projects built on leasehold land—a prevalent model in Uttar Pradesh’s development authorities such as Noida and Greater Noida. Section 9 of the Act complements this by requiring lessee-developers to execute separate sub-leases of land in favour of each apartment owner. This ensures that every apartment is accompanied by a transferable leasehold interest in the underlying land proportionate to the owner’s undivided share.

The Hon’ble Supreme Court in DDA v. Skipper Construction Co. (P) Ltd. (1996 4 SCC 622) highlighted that developers on leasehold land cannot convey better title than they possess and must operate strictly within statutory and lease conditions. The Court’s readiness to pierce corporate veils and enforce restitution for defrauded buyers underscores that ownership and consumer protection obligations flow from statutory and lease terms, not from private contracts alone. Section 2’s tenure-neutral application thus ensures that lessee-promoters remain fully accountable under the Act once the apartment threshold is met.

Accordingly, the Act governs both freehold and leasehold condominiums, harmonising tenure systems across the State.

13. Application Limits:

In DLF Universal Ltd. v. Director, Town and Country Planning Department, Haryana (2010 14 SCC 1), the Supreme Court held that while private developer–allottee contracts define commercial terms, they cannot override or dilute statutory obligations, and conversely, administrative authorities cannot alter contractual terms except within statutory bounds. Transposed to Section 2, the decision clarifies two complementary points:

Mandatory Application: Once a project meets the “four or more apartments” threshold, the Act applies automatically; developers cannot contract out by creative labelling or restrictive covenants.
Authority Discipline: Government or development authorities may supervise compliance only to the extent the Act and rules empower them, avoiding ad-hoc interference in private bargains.

Together, DLF Universal and Skipper Construction establish that statutory housing codes override contractual arrangements where public interest and consumer protection demand, yet the State’s regulatory power must stay anchored in the statute itself. Section 2 therefore functions as a non–derogable, jurisdiction-conferring clause: once the conditions it specifies exist, every participant – developer, purchaser, authority, operates under the statutory regime, not outside it.

14. Conclusion:

Section 2 is the jurisdictional trigger of the Uttar Pradesh Apartment Act. Its wide yet carefully delimited phrasing ensures that the Act:

Applies to every multi-apartment development (residential, commercial, or mixed use);
Excludes complexes whose structure is inherently non-ownership based (malls and multiplexes);
Covers integrated projects combining apartments and row houses sharing common amenities; and
Safeguards the rights of apartment owners in undeclared or misdeclared common areas.

Through its intersection with definitions of building, apartment, and common areas, Section 2 operates as the gateway clause, ensuring that wherever collective ownership exists, the statutory framework of transparency, declaration, and association governance under the 2010 Act must follow.

Key Judicial and Statutory References:

Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622
DLF Universal Ltd. v. Director, Town and Country Planning Department, Haryana, (2010) 14 SCC 1
Supertech Ltd v. Emerald Court Owner Resident Welfare Association, C.A. No. 5041 of 2021, Supreme Court of India (31 Aug 2021).
Designarch Infrastructure Pvt. Ltd. v. Vice-Chairman, GDA & Ors., Writ-C No. 33826 of 2012, Allahabad High Court (14 Nov 2013).
K.K. Bhaskaran v. State of Tamil Nadu, (2011) 3 SCC 793.
Maharashtra Apartment Ownership Act, 1970; Delhi Apartment Ownership Act, 1986; Haryana Apartment Ownership Act, 1983.
Sections 3(b), 3(g), 3(i), 5(2), 9, 12, 14 of the U.P. Apartment Act, 2010.

FAQ on Application of UP Apartment Act.

General Scope and Threshold

Q1. What is the threshold for the Uttar Pradesh Apartment Act, 2010 to apply?
A. The Act applies automatically when a building, or a group of buildings within a layout, contains four or more apartments, whether constructed or converted into apartment use, along with the land attached to them.

Q2. Does the Act apply to individual houses or duplex units?
A. No. Buildings with fewer than four apartments fall outside Section 2’s scope since they do not require collective ownership or maintenance structures.

Q3. Is the application of the Act voluntary or automatic?
A. It is automatic and mandatory once the statutory threshold is met. The promoter cannot choose whether to apply it; it operates ipso jure (by force of law). (Designarch Infrastructure Pvt. Ltd. v. Vice-Chairman, GDA)

Q4. What is meant by “constructed or converted into apartment”?
A. It covers both newly built apartment complexes and existing buildings later divided into four or more independent units. For instance, if an old building on a single plot is split into four residential portions and ownership is shared through a family settlement or transfer, the Act applies automatically, since the property now functions as a multi-owner apartment with shared common areas.

Land Tenure and Ownership

Q5. Does it make any difference if the land is leasehold rather than freehold?
A. No. Section 2 expressly extends the Act to land “whether freehold or held on lease.” Developers on leasehold authority land (e.g., Noida, Greater Noida, Lucknow Development Authority) are equally bound to comply.

Q6. In a leasehold project, who owns the underlying land?
A. The developer retains leasehold rights until sub-leases are executed. Under Section 9, every apartment purchaser must receive a proportionate sub-lease of the underlying FAR utilised land for building from the lessee-developer.

Nature of Building and Mixed-Use Projects

Q7. Does the Act apply to office towers and commercial complexes?
A. Yes. Section 3(b) defines “apartment” to include premises for “official, professional or business” use. Office buildings with separately owned units are covered.

Q8. Why are shopping malls and multiplexes excluded from the Act?
A. Apparently, because these are centrally managed commercial facilities where occupants usually hold licences or leases rather than heritable ownership. They require unified operational control, not co-ownership governance.

Q9. If a project contains both residential towers and row houses, does the Act apply?
A. Yes. Section 3(g) defines “building” to include multiple blocks within a common layout. Once any block has four or more apartments, the entire integrated project falls under the Act for regulating common areas and facilities.

Q10. Are amenities like roads, parks, and clubhouses treated as common areas?
A. Yes. Under Section 3(i), all land, amenities, and installations necessary for the building’s maintenance and safety are common areas, unless specifically demarcated as “independent areas” before sale.

Q11. What happens if a golf course or open land within a township is omitted from the Declaration?
A. If the FAR (Floor Area Ratio) of apartment buildings has been derived from that land, it becomes a common area by implication. Excluding it violates the Act and approved layout.

Q12. Can a promoter later sell parts of common land to third parties?
A. No. Once covered by an approved layout, common areas cannot be alienated or repurposed without owners’ consent and statutory approval. Such transfers are void.

Q13. Does the Act apply only after the Competent Authority issues directions?
A. No. Section 2 is self-executing. The Act applies automatically when its factual conditions are met, even if authorities have not yet taken administrative steps.

Q14. Who ensures that the Act is implemented once it applies?
A. The Competent Authority i.e. local Development Authority (DA) (e.g., NOIDA, GNIDA, GDA, Lucknow DA, ADA, VDA, MVDA, KBDA, BDA etc. ) and where DA are not established the District Collector must monitor compliance, ensure conflict reolution, ensure registration of the Association of Apartment Owners, and oversee transfer of common areas.

Q15. Can developers rely on contractual clauses to escape the Act’s application?
A. No. Statutory obligations override private contracts, and authorities may disregard clauses inconsistent with law.

Q16. When does the promoter’s obligation to comply with the Act begin?
A. From the moment the project falls within Section 2’s parameters—i.e., when plans for four or more apartments are sanctioned.

Q17. What are the implications of non-compliance with the Act after it applies?
A. Non-compliance constitutes a breach of statutory duty, inviting civil action, regulatory intervention, and in some cases, penal consequences under Section 25.

Q18. If an authority delays enforcement, can apartment owners still claim protection?
A. Yes. The Act’s application is by law, not by administrative discretion. Owners can seek mandamus to compel enforcement of their statutory rights.

Q19. Are cooperative housing societies governed by this Act too?
A. The 2010 Act applies concurrently to ownership and maintenance issues.

Q20. Does the repeal of the U.P. Ownership of Flats Act, 1975 affect ongoing projects?
A. No. Section 34 of the 2010 Act repeals the 1975 law but transitions all ongoing projects into the new framework, ensuring continuity of rights and obligations.

Comparative and Conceptual Clarifications

Q21. How does Section 2 differ from application clauses in other states’ laws?
A. Unlike Maharashtra and Delhi, which apply their Acts to any apartment building, U.P. sets a numeric trigger (four units) and expressly excludes malls and multiplexes. This balances consumer protection with regulatory efficiency.

Q22. Why did the legislature include both “constructed” and “converted” apartments?
A. To cover redevelopment and adaptive reuse—e.g., where existing bungalows or office buildings are converted into independently owned apartments.

Q23. Does the Act apply to builder floors or low-rise units on one plot?
A. If there are four or more independently owned floors (each qualifying as an apartment) in the same building or block, Section 2 applies fully.

Q24. What happens when a promoter builds a mixed-use project with a mall, hotel, and residential tower?
A. The residential or office components fall under the Act; the mall or hotel components remain excluded. However, common infrastructure (eg: water, electricity, sewage, STP, internal roads etc.) shared between them may still require regulatory delineation by the Deed of Declaration to prevent ownership disputes with proportional shared maintenance charges as per coomon area and facilities handover/ takeover agreements.

Q25. Can a development authority exempt a project from the Act’s application?
A. Not ordinarily. Only the State Government, under Section 32, may issue a general or special order exempting classes of persons or areas for undue hardship, but such exemption must be by formal notification.

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