I. Preliminary

Section 3 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter ‘the Act’ or ‘the UP Apartment Act 2010’) constitutes the definitional foundation upon which the entire legislative structure rests. Being an ‘interpretation’ or ‘definition’ section, it supplies authoritative meanings to the key terms that appear throughout the body of the Act. As the Supreme Court of India observed in Grasim Industries Ltd. v. Collector of Customs, Bombay,¹ when words are clear and legislative intent is unambiguous, the definition given by a statute must be applied without interpolation or circumscription. The present commentary is therefore devoted to an exhaustive analysis of every sub-clause within Section 3, drawing upon:

(i) the textual and purposive content of the definitions themselves; (ii) comparative provisions in the apartment laws of other States; (iii) standard legal dictionaries and judicial lexicons; and (iv) reported decisions of the Supreme Court of India, Allahabad High Court, and other High Courts interpreting cognate expressions.

The landmark judgment in M/s. Designarch Infrastructure Pvt. Ltd. & Anr. v. Vice-Chairman, Ghaziabad Development Authority & Ors.,² decided by a Division Bench of the Allahabad High Court on 14 November 2013, constitutes the foremost judicial exposition of this Act and is referred to throughout this commentary. It held that the UP Apartment Act 2010, read with the UP Apartment Rules 2011, provides a complete code for regulating rights, duties, and liabilities of promoters and apartment owners in Uttar Pradesh.

On the question of statutory interpretation of definition clauses, the Supreme Court has consistently held that when a statute provides its own dictionary, the court must first look to that dictionary for the meaning of the terms used.³ The word ‘means’ in a definition clause makes it exhaustive, whereas the word ‘includes’ makes it extensive or enlarging.⁴ Many of the definitions in Section 3 use the word ‘means’ followed by ‘includes’, thereby creating a category that is first precisely defined and then extended to cover additional classes.

II. Text of Section 3

Section 3 of the UP Apartment Act 2010, stands as originally enacted and as in force after the repeal of the UP Apartment (Amendment) Act 2016 by the Uttar Pradesh Repealing Act 2020.⁵

Download UP Apartment Act 2010 Bare Act, Rules and Bye Laws

The drafting convention employed in Section 3 is that of the standard definitional section format employed across Indian State Apartment Acts – a practice traceable to the Delhi Apartment Ownership Act 1986, the Haryana Apartment Ownership Act 1983, and the Maharashtra Apartment Ownership Act 1970, all of which the Uttar Pradesh legislature consulted while drafting the 2010 Act.

III. Clause-by-Clause Commentary on the Definitions

A. Section 3(a) — ‘Allottee’

1. Statutory Text

“allottee” in relation to an apartment, means the person to whom such apartment has been allotted, sold or otherwise transferred by the promoter.

2. Dictionary and Lexical Meaning

The word ‘allottee’ is derived from ‘allot’ – to distribute, assign, or apportion. Blacks Law Dictionary (10th ed.) defines ‘allottee’ as ‘one to whom an allotment is made; a person to whom property is distributed or assigned’. P. Ramanatha Aiyar’s Advanced Law Lexicon (3rd ed., 2005) defines ‘allotment’ as ‘the appropriation of a share or portion to a particular person or purpose’. The Allahabad High Court, in a broad reading consistent with the Designarch judgment, interpreted ‘allottee’ to include a person in possession under an allotment letter, even without formal execution of the Deed of Apartment.⁶

3. Scope and Analysis

Three modes of transfer are recognized: (i) allotment, (ii) sale, and (iii) ‘otherwise transferred’. The expression ‘otherwise transferred’ is expansive and covers leases, gifts, exchanges, and any other legally recognized mode of transfer. The use of the residuary phrase ensures that technical legal distinctions in modes of conveyance do not defeat the protective purpose of the Act. The definition is, however, relational – the allottee is defined ‘in relation to an apartment’, thereby grounding the concept firmly within the particular apartment to which the transfer relates.

Under Section 3(a), the ‘allottee’ is distinct from an ‘apartment owner’ as defined in Section 3(d). An allottee is the person who books or receives the apartment from the promoter at first instance. Once the apartment is registered in the allottee’s name and the Deed of Apartment is executed under Section 14, the allottee becomes an ‘apartment owner’. The distinction matters because obligations and rights under various provisions of the Act apply differently to the two classes.

4. Comparative Law

Under Section 2(d) of the Real Estate (Regulation and Development) Act, 2016 (RERA), ‘allottee’ is defined as a person to whom a plot, apartment, or building has been allotted, sold, or otherwise transferred by a promoter, including a person who subsequently acquires the allotted property through sale, transfer, or otherwise, but excluding a person to whom such property is given on rent. The UP Apartment Act’s definition is narrower, restricting the allottee to persons receiving from the promoter directly, whereas RERA extends the definition to secondary transferees. The RERA mandates formation of allottees association.

5. Relevant Case Law

In Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna,⁷ the Supreme Court extensively examined the rights of allottees vis-à-vis promoters, holding that contractual terms in Apartment Buyer Agreements that are wholly one-sided and oppressive against allottees constitute ‘unfair trade practice’ under the Consumer Protection Act. Although this case arose under Haryana law and RERA, its principles on the substantive rights of allottees inform the interpretation of ‘allottee’ under the UP Apartment Act.

B. Section 3(b) — ‘Apartment’

1. Statutory Text

“apartment” means a part of any property, intended for any type of independent use, including enclosed spaces located on one or more floors or any part or parts thereof, in a building to be used for residential or official purposes or for the purpose of practicing any profession, or for carrying on any occupation, trade or business (excluding shopping malls and multiplexes) or for such other use as may be prescribed, and with a direct exit to a public street, road or to a common area leading to such street, road and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the promoter for use by the owner of such apartment for parking or, as the case may be, for the residence of any domestic aide employed in such apartment.

2. Dictionary and Lexical Meaning

Black’s Law Dictionary defines apartment as a room or suite of rooms used as a dwelling. Stroud’s Judicial Dictionary (5th ed., Vol. 2) notes that the term originally referred to a separate set of rooms forming a part of a larger building. The Supreme Court, in the context of the Maharashtra Ownership Flats Act, observed in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.⁸ that the natural meaning of the word flat is a separate, self-contained set of rooms, structurally divided and separately owned for dwelling – a meaning that applies with equal force to the word apartment under the UP Act. P. Ramanatha Aiyar’s Advanced Law Lexicon (3rd ed., 2005) states that an apartment is a suite of rooms in a house appropriated to the use of a particular person or family.

3. Scope and Analysis

The definition in Section 3(b) is of the ‘means…includes’ variety — the principal clause (‘means…’) sets the primary scope, and the inclusive extension (‘includes any garage or room…’) expands the definition to cover ancillary spaces. Four elements emerge from the text:

(i) The apartment must be a ‘part of any property’ — not the whole property, thereby presupposing multi-unit buildings. (ii) It must be ‘intended for any type of independent use’, a phrase of wide import covering residential, professional, commercial (excluding malls and multiplexes), and prescribed uses. (iii) It must include ‘enclosed spaces’ — open platforms or terraces not enclosed would not qualify as apartments in their own right. (iv) It must have ‘a direct exit to a public street, road or to a common area leading to such street’ — the requirement of independent access distinguishes an apartment from a mere subdivision of a larger undivided unit.

The Designarch judgment construed the word ‘apartment’ to include a garage or room, whether or not adjacent to the building, provided by the promoter for use by the apartment owner for parking or for the residence of a domestic aide — but the Allahabad High Court clarified that such a garage or room does ‘not have any independent status as an apartment, to carry with it any rights of common areas and facilities’. This interpretive caveat is of great practical significance, confirming that ancillary garages and rooms follow the principal apartment and cannot be separately transacted under the Act.

The exclusion of ‘shopping malls and multiplexes’ from the definition was inserted to confine the Act’s protective regime to owner-occupier contexts. The 2016 amendment (since repealed) had proposed insertion of ‘commercial complexes which are maintained by an agency’, but this never came into force.

4. Comparative Law

The Maharashtra Apartment Ownership Act 1970 defines ‘apartment’ in similar terms to the UP Act but includes a specific provision that garages form part of the apartment only when described in the Deed of Apartment. The Delhi Apartment Ownership Act 1986, Section 3(b), defines apartment nearly identically. The Haryana Apartment Ownership Act 1983 uses ‘apartment’ and ‘flat’ interchangeably. The Karnataka Apartment Ownership Act 1972 contains a comparable definition that similarly requires independent access to a common area or street.

5. Relevant Case Law

In Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.,⁸ the Supreme Court, while interpreting the definition of ‘flat’ under MOFA (which includes a garage), held that a stilt parking space is not a ‘garage’ because a garage must have a roof and walls on at least three sides. The Court stated that ‘a roofless erection could not be described as a garage’. This principle applies with equal force to the definition of ‘apartment’ under Section 3(b) of the UP Apartment Act — the ‘garage or room’ mentioned in the inclusive portion must be an enclosed space.

The Allahabad High Court in Designarch Infrastructure Pvt. Ltd. v. Vice-Chairman, GDA² confirmed that the open park area of the project was within the definition of ‘common areas and facilities’ and could not be appropriated by the promoter for constructing additional buildings after allotment of apartments.

C. Section 3(c) — ‘Apartment Number’

“apartment number” means the number, letter or combination thereof, designating an apartment.

This is a purely administrative definition, serving to identify each discrete apartment within a building for registration, taxation, and governance purposes. ‘Apartment number’ functions as a unique identifier in the Deed of Apartment, in the Declaration under Section 12, and in the records of the Association of Apartment Owners. No significant litigation has arisen around this definition. The analogous provision appears in Section 3(c) of the Delhi Apartment Ownership Act 1986 in identical terms. Its significance lies in ensuring that the Deed of Apartment under Section 14 unambiguously identifies the particular unit conveyed.

D. Section 3(d) — ‘Apartment Owner’

1. Statutory Text

“apartment owner” means the person or persons owning an apartment or the promoter or his nominee in case of unsold apartments and an undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment and includes the lessee of the land on which the building containing such apartment has been constructed, where the lease of such land is for a period of thirty years or more.

2. Dictionary and Lexical Meaning

Ownership, in its classical legal sense, implies the largest possible bundle of rights over a thing, subject to restrictions imposed by law and by the rights of third parties. Salmond’s Jurisprudence (12th ed., PJ Fitzgerald) describes ownership as ‘the relation between a person and a right that is vested in him’. Black’s Law Dictionary (10th ed.) defines ‘owner’ as ‘one who has the right to possess, use, and convey something’. P. Ramanatha Aiyar defines ‘owner’ broadly as any person who has a proprietary interest in property, whether legal or equitable.

3. Scope and Analysis

The definition in Section 3(d) is composite. It has three limbs:

First Limb: ‘the person or persons owning an apartment…and an undivided interest in the common areas and facilities’. This creates the concept of dual ownership that is the architectural centrepiece of apartment law — private ownership of the individual unit and co-ownership of common areas. The percentage of undivided interest is fixed in the Deed of Apartment. As held by the Allahabad High Court in Designarch, this percentage is computed on the basis of the apartment area relative to the aggregate area of all apartments.

Second Limb: ‘the promoter or his nominee in case of unsold apartments’. This ensures that the Act’s governance structure continues to function even during the initial period when some units remain unsold. The promoter steps into the shoes of an apartment owner for voting and contribution purposes for unsold units.

Third Limb (inclusive extension): ‘the lessee of the land on which the building…has been constructed, where the lease…is for a period of thirty years or more’. Most development authorities in Uttar Pradesh — NOIDA, Greater NOIDA, GDA — allot land on long-term lease, not freehold. This inclusive extension ensures that leasehold apartment owners enjoy full ownership rights under the Act.

4. Judicial Expansion of the Definition

The Designarch judgment⁹ significantly expanded the definition by holding that ‘apartment owner’ under Section 3(d) should be read to include: (i) the spouse and children of the registered owner; (ii) a lawful tenant of the allottee/owner, including an employee of a company that owns an apartment; (iii) any person holding a valid power of attorney from the owner. This judicial expansion was necessitated by practical realities of occupancy in group housing societies. However, the fundamental right of membership in the Association and the right to vote remain tethered to the formal Deed of Apartment and Share Certificate issued by the Association.

5. Relevant Case Law

In Manish Kansal v. State of U.P.,¹⁰ the Allahabad High Court held that the voting share of each apartment owner in the Association must be in accordance with the voting share assigned in the Deed of Declaration under Section 12, and that equal voting (one-apartment-one-vote) is impermissible.

In Dhruba Dasgupta & Ors. v. Surjendu Shekhar Ghosh & Ors.,¹¹ the Calcutta High Court, interpreting the cognate definition in the West Bengal Apartment Ownership Act 1972, held that ‘the Act certainly creates valuable rights in respect of the common areas and facilities in multi-storeyed buildings in favour of the apartment owners so that they may enjoy their portions comfortably’.

E. Section 3(e) — ‘Association of Apartment Owners’

1. Statutory Text

“association of apartment owners” means all the owners of the apartments therein, acting as a group in accordance with the bye-laws.

2. Scope and Analysis

This is a definition of remarkable concision. The Association is not created by a separate act of formation; it arises by operation of law when the statutory threshold (33% occupancy or the minimum number of apartments required, whichever is more) is reached. The phrase ‘all the owners of the apartments therein’ means that membership is mandatory and universal — every apartment owner is, by force of law, a member of the Association. There is no room for opting out. This is confirmed by Section 14(4) of the Act, which makes membership automatic.

The phrase ‘acting as a group’ signifies collective decision-making through the democratic mechanism of the Board of Management and General Body meetings governed by the bye-laws. The Act’s reference to ‘the bye-laws’ means the Model Bye-Laws notified under Section 14(6) — their adoption verbatim by every Association is mandatory.¹²

3. Relevant Case Law

In French Apartment Owners Association v. State of U.P. & 3 Others¹³ (Writ-C No. 17459 of 2024), the Allahabad High Court reiterated that the UP Apartment Act 2010 is a self-contained Act applicable to apartment owners, builders, and development authorities, with defined duties and responsibilities.

In Resident Welfare Association (Regd.) v. State of U.P.,¹⁴ the Allahabad High Court, relying on Designarch, affirmed that after the enactment of the Act, no builder or promoter can resist or delay the formation of an Association and that the provisions of the UP Apartment Act override the Societies Registration Act, 1860 on all matters specifically addressed by it.

F. Section 3(f) — ‘Board’

“board” means the Board of Management of an Association of Apartment Owners elected by its members under the bye-laws.

The Board is the executive organ of the Association. Two characteristics emerge from this definition: (i) the Board is elected — it derives its authority from a democratic mandate of the apartment owners; and (ii) the election and composition of the Board are governed by the bye-laws, which in turn must conform to the Model Bye-Laws. The Board, once elected, has the power to manage the common areas and facilities, collect maintenance charges, engage personnel, and exercise all executive functions of the Association.

The Allahabad High Court, in The Management Board, Windsor Park v. State of U.P. & 5 Others,¹⁵ held that both the members of the Board and its principal office-bearers (President, Vice-President, Treasurer, Secretary) must be elected directly by the members of the Association at the Annual General Body meeting. The Board is subject to the ultimate authority of the General Body of apartment owners.

G. Section 3(g) — ‘Building’

1. Statutory Text

“building” means a building constructed on any land, containing four or more apartments, or 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 in all such buildings; Provided that an independent house constructed in a row with independent entry and exit, whether or not adjoining to other independent houses, shall not constitute a building.

2. Dictionary and Lexical Meaning

Black’s Law Dictionary defines ‘building’ as ‘a structure designed for habitation, shelter, storage, trade, manufacture, religion, business, or other human activity’. Stroud’s Judicial Dictionary traces the term through many centuries of English law, establishing that ‘building’ denotes a permanent structure fixed to the earth. The Supreme Court in Bangalore City Municipal Corporation v. M. Papaiah¹⁶ observed that the word ‘building’ in the context of property law connotes a permanent and substantial structure.

3. Scope and Analysis

The definition of ‘building’ under Section 3(g) is the threshold criterion for the application of the entire Act under Section 2. Two alternative thresholds are set:

(i) A single building containing four or more apartments. (ii) A cluster of two or more buildings in a ‘block’, each containing two or more apartments, with the aggregate total reaching four or more.

The proviso carves out ‘independent houses’ constructed in rows — such as typical row-house developments — even if they are adjacent. The distinguishing factor is independent entry and exit, not physical adjacency. This proviso is critical in excluding duplex or row-house schemes from the operation of the Act, which would otherwise impose the entire apparatus of Association governance upon them.

The Allahabad High Court, in interpreting Section 2 read with Section 3(g), held in the Designarch case that the Act applies ‘automatically and mandatorily once the statutory threshold is met — the promoter cannot choose whether to apply it; it operates ipso jure (by force of law)’. This confirms that the definition of ‘building’ is the gateway to the entire Act.

4. Comparative Law

The Delhi Apartment Ownership Act 1986 sets a lower threshold of ‘two or more apartments’ for a building, reflecting Delhi’s higher density. The Maharashtra Apartment Ownership Act 1970 and the Haryana Apartment Ownership Act 1983 use thresholds similar to the UP Act. The Karnataka Apartment Ownership Act 1972 does not specify a minimum number, relying on the general definition of ‘apartment’. This variation across States reflects differing policy judgments about the minimum scale of development warranting the full apparatus of apartment law regulation.

H. Section 3(h) — ‘Bye-Laws’

“bye-laws” means the bye-laws made under this Act.

This is a short definitional term that refers to the subordinate regulatory instrument created under the Act. The Model Bye-Laws notified on 16 November 2011 under Section 14(6) constitute the operative bye-laws that every Association of Apartment Owners must adopt verbatim. As held in Designarch: ‘Bye-laws means the Model Bye-Laws as notified on 16.11.2011. Their adoption is mandatory. There can be no deviation or variation.’ Any purported bye-laws inconsistent with the Model Bye-Laws are without legal effect.

I. Section 3(i) — ‘Common Areas and Facilities’

1. Statutory Text

“common areas and facilities” means — (i) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building; (ii) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of the building; (iii) the basements, cellars, yards, parks, gardens, community centres and parking areas of common use; (iv) the premises for the lodging of janitors or persons employed for the management of the property; (v) installations of central services, such as, power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating and sewerage; (vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV, gas, electricity etc.) rain water harvesting system, compressors, ducts and in general all apparatus and installations existing for common use; (vii) such other community and commercial facilities as may be specified in the bye-laws; and (viii) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use.

2. Dictionary and Lexical Meaning

The expression ‘common areas and facilities’ is a term of art specific to apartment and condominium law. In Halsbury’s Laws of England, Vol. 39 (Landlord and Tenant), common parts of a building are described as those parts used in common by all tenants and not demised to any individual tenant. In Indian law, the expression has been given a wide and purposive interpretation, consistent with its protective legislative purpose.

3. Scope and Analysis

The definition employs eight sub-clauses, of which (vii) and (viii) serve as residuary catch-all provisions ensuring that no area necessary for the common enjoyment and safety of apartment owners escapes coverage. Clause (viii), which covers ‘all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use’, is of particular breadth and has been applied by courts to include rain-water harvesting systems, generator rooms, and community halls even if not explicitly listed in the Declaration.

The Designarch judgment is emphatic: ‘The undivided open park area comes under the definition of common areas and facilities.’ Any attempt by a promoter to encroach upon or appropriate common areas by constructing new buildings or structures upon them after allotment of apartments is illegal and subject to mandatory restoration orders by the competent authority.

The principle that the percentage of undivided interest in common areas (i) has a permanent character, (ii) cannot be altered without unanimous written consent of all apartment owners and approval of the competent authority, and (iii) cannot be separated from the apartment to which it pertains, is enshrined in Section 5(3) of the Act — complementing the definitional framework of Section 3(i).

4. Relevant Case Law

In Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.,⁸ the Supreme Court — while interpreting the cognate provision in MOFA — definitively held that stilt/open parking spaces form part of the ‘common areas and facilities’ and cannot be sold separately by a promoter. The Court applied the principle that a promoter who does not fully disclose common areas in the agreement ‘does so at his own peril’.

In M/S D.C.M. Ltd. v. M/S R.K. Towers (India) Pvt. Ltd.¹⁷ (Delhi High Court, 2008), the court held that ‘common areas and facilities’ including the land on which the building is constructed, stairways, lobbies, entrances, exits, common service areas, and elevators belong to all apartment owners collectively and the managing entity has no right to interfere with or convert them.

The Madras High Court has also ruled that common areas in a real estate project belong to the flat owners and not to the builders, and that any alteration to common areas cannot be done by the builder without consulting the property owners.¹⁸

J. Section 3(j) — ‘Common Expenses’

1. Statutory Text

“common expenses” means — (i) expenses of administration, maintenance, repair or replacement of the common areas and facilities, utilities, equipments and machineries and all other sums assessed against the owners of apartment by the Association of Apartment Owners; (ii) expenses declared as common expenses by the provisions of this Act or by the bye-laws, or agreed upon by the Association of Apartment Owners.

2. Scope and Analysis

The definition of ‘common expenses’ is again of the ‘means’ variety and has two limbs. The first limb covers all operational expenditure for the upkeep of common areas — maintenance, repair, replacement, administration, and any sums levied by the Association. The second limb is expansive and covers any amount that the Act, the bye-laws, or the Association itself characterises as common expenses, providing a flexible framework for collecting contributions for specific purposes such as capital reserves or sinking funds.

Every apartment owner is obligated to contribute to common expenses in proportion to their undivided interest (Section 20 of the Act). Section 20(2) further prohibits any apartment owner from exempting themselves from common expense liability by waiving use of common areas. In Smt. Hansa Yadav v. Housing and Urban Planning Deptt.,¹⁹ the Allahabad High Court held that the levy of electricity arrears by the Association against apartment owners is subject to the provisions of Section 20(2) and cannot be applied disproportionately.

K. Section 3(k) — ‘Common Profits’

“common profits” means the balance of all income, rents, profits, and revenues from the common areas and facilities remaining after the deduction of the common expenses.

This definition provides the legal framework for distribution of surpluses generated from common areas — for example, revenue from the rental of common facilities, revenue from advertisement hoardings on common walls, or income from parking fee collections from visitors. Common profits, once determined, are distributed among apartment owners in proportion to their undivided interest in the common areas as specified in the Deed of Apartment. The concept balances the ownership interest of apartment owners in common areas with the collective obligation to maintain them.

L. Section 3(l) — ‘Competent Authority’

“competent authority” means any person or authority authorised by the government by notification to perform the functions of the competent authority under this Act for such areas as may be specified in the notification.

The competent authority is the administrative and quasi-judicial body vested with enforcement and dispute-resolution powers under the Act. For NOIDA, Greater NOIDA, GDA, and LNDA jurisdictions, the respective Chief Executive Officers (CEOs) have been notified as competent authorities. The Designarch judgment emphasised that disputes between promoters and apartment owners must first be decided by the competent authority, and only thereafter may parties approach the civil court. This is a mandatory procedural requirement. The competent authority’s powers include verifying the contents of declarations under Section 12, directing handing over of common areas, and resolving disputes on common area classification.

M. Section 3(m) — ‘Declaration’

“declaration” means declaration referred to in section 12.

The Declaration is the foundational public instrument in apartment law. Filed by the promoter under Section 12, it must be in the prescribed Form A under Rule 3 of the UP Apartment Rules 2011 and must contain: (i) a description of the land; (ii) the building plans; (iii) a description of all apartments and their apartment numbers; (iv) a description and percentage of common areas; (v) a description of limited common areas; and (vi) a description of independent areas. The Designarch judgment held that enclosure of a true copy of the Declaration with every deed of transfer is mandatory and a condition precedent for registration of the transfer deed.

N. Section 3(n) — ‘Deed of Apartment’

“deed of apartment” means the Deed of Apartment referred to in section 14.

The Deed of Apartment under Section 14 is the instrument that both creates and evidences the individual apartment owner’s right in the apartment and their undivided interest in the common areas. It corresponds to what is known in common law condominium regimes as the ‘unit deed’. The Deed of Apartment must specify the voting share and undivided percentage interest of each apartment owner — as held in Manish Kansal v. State of U.P.,¹⁰ without this specification the voting system within the Association cannot function lawfully.

O. Section 3(o) — ‘Government’

“government” means the Government of Uttar Pradesh.

This is a standard constitutional reference. The Act is a State legislation enacted by the UP State Legislature under Entry 18 (Land), Entry 6 (Public Health), and Entry 13 (Communications) of List II of the Seventh Schedule to the Constitution. The State Government has rule-making power under Section 30 of the Act. The Government exercises oversight through the competent authority, notification of Model Bye-Laws, and approval of amendments to declarations.

P. Section 3(p) — ‘Independent Areas’

“independent areas” means the areas which have been declared but not included as common areas for joint use of apartments and may be sold by the promoter without the interference of other apartment owners.

‘Independent areas’ is a concept peculiar to the UP Apartment Act and distinguishes this Act from the simpler binary model (individual unit + common areas) of many other State apartment laws. Independent areas occupy a third category: they are declared in the promoter’s Declaration under Section 12 as neither individual apartments nor common areas. Classic examples include club facilities developed by the promoter for subsequent sale, commercial spaces retained for the promoter’s own use or sale, or additional open areas that the promoter wishes to commercialise.

However, the Designarch judgment sets a critical condition: ‘The independent areas, which have been declared but not included as common areas for joint use of apartments and which may be sold by the promoter without the interference of other apartment owners… must be clearly defined and delineated in the declaration under Section 12, failing which the promoter will not be entitled to claim these common areas and facilities to be limited or independent.’ In the absence of a specific declaration, all areas default to common areas. This is a powerful consumer-protective presumption.

Q. Section 3(q) — ‘Joint Family’

“joint family” means a Hindu undivided family, and in the case of other persons, a group or unit, the members of which are by custom, joint in possession or residence.

This definition bridges the gap between Hindu personal law concepts and apartment ownership. The Mitakshara Hindu Undivided Family (HUF) is the primary referent, but the second limb extends to non-Hindu families (Muslim families in joint possession, for instance) and other customarily joint groups. The definition matters for determining co-ownership rights in apartments held by a family unit — particularly for voting rights, as discussed under Section 3(d) above.

R. Section 3(r) — ‘Local Authority’

“local authority” means the Development Authority established under the Uttar Pradesh Urban Planning and Development Act, 1973 or Controlling Authority established under the Uttar Pradesh (Regulation of Building Operations) Act, 1958… [and others]… having jurisdiction over the site of property.

The definition enumerates seven categories of public authorities as ‘local authorities’, covering the full spectrum of regulatory bodies in UP with planning and building jurisdiction. The enumeration is exhaustive and jurisdiction-specific — the local authority is the one having ‘jurisdiction over the site of property’, not any generically chosen authority. Local authorities play a critical role in the Act as the bodies that sanction building plans, issue completion certificates, and act as ‘competent authorities’ where notified.

S. Section 3(s) — ‘Limited Common Areas and Facilities’

“limited common areas and facilities” means those common areas and facilities which are designated in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments.

Limited common areas occupy the intermediate position between exclusive individual ownership and universal common ownership. Classic examples are a terrace reserved for the exclusive use of a top-floor apartment, or a courtyard designated for use of ground-floor units. The definition imposes two requirements for a valid ‘limited’ designation: (i) the designation must be ‘in writing’ by the promoter, and (ii) it must be made ‘before the allotment, sale or other transfer of any apartment’. A post-allotment designation is invalid. As the Designarch judgment confirms, the promoter must clearly define and delineate limited common areas in the Section 12 Declaration; failing which they default to general common areas.

T. Section 3(t) — ‘Manager’

“manager” means the Manager of an Association of Apartment Owners appointed under the bye-laws.

The Manager is the professional operational head of the Association, distinct from the Board (which is the democratically elected governing body). The Manager is appointed by the Board under the bye-laws to handle day-to-day administration, maintenance contracts, account-keeping, and communications. The separation of the governance function (Board) from the administrative function (Manager) reflects the corporate governance model adopted in the Model Bye-Laws.

U. Section 3(u) — ‘Person’

“person” includes a firm and a joint family, and also includes a group housing co-operative society.

This is an expanding definition that supplements the general definitions in the Uttar Pradesh General Clauses Act 1904 and the Central General Clauses Act 1897 (which include companies and corporations within ‘person’). By specifically including ‘a firm’, ‘a joint family’, and ‘a group housing co-operative society’, the definition ensures that the full range of collective entities prevalent in the Indian real estate market — partnership firms, HUFs, and cooperative societies — can hold apartments and exercise ownership rights under the Act. The definition has been further judicially expanded (see Section 3(d) commentary) to include authorised representatives of company-owned apartments.

V. Section 3(v) — ‘Prescribed’

“Prescribed” means prescribed by rules made under this Act.

This is a standard enabling definition. ‘Prescribed’ refers to anything specified in the UP Apartment Rules 2011 framed by the State Government under Section 30 of the Act. The Rules prescribe forms (Forms A through H), procedures for filing declarations, and procedural requirements for formation and registration of the Association. The statutory prescription of forms is mandatory — as held in Designarch, the Declaration must be in prescribed Form A with all annexures.

W. Section 3(w) — ‘Promoter’

1. Statutory Text

“promoter” means a person, company, firm, Association or co-operative society, as the case may be, by which, or by whom the building has been constructed.

2. Dictionary and Lexical Meaning

The word ‘promoter’ in company law traditionally refers to a person who conceives or sets in motion a project or company. In real estate law, the Supreme Court has construed it to cover any person who causes the construction of a building for the purpose of selling apartments. Black’s Law Dictionary defines ‘promoter’ as ‘a person who acts on behalf of a corporation before it is incorporated’. In the real estate context, P. Ramanatha Aiyar’s Advanced Law Lexicon defines ‘promoter’ as ‘one who promotes a venture, specifically, one who undertakes to form a company’.

3. Scope and Analysis

The definition in Section 3(w) is deliberately simple and functional — the promoter is whoever constructed the building. This captures the entity or person who has the obligation to file the Declaration under Section 12, to hand over common areas and facilities to the Association under Section 14, and to answer for obligations under the Act. The definition covers individuals, companies, firms, associations (including development authorities), and cooperative societies.

Compared to the RERA definition of ‘promoter’ in Section 2(zk), the UP Apartment Act’s definition is narrower — RERA extends coverage to persons who cause construction or convert existing buildings, and to power-of-attorney holders. However, the UP Apartment Act’s definition is to be applied in the context of the entire Act, and courts have generally adopted a purposive approach to ensure that the person bearing real responsibility for construction and sale is treated as the promoter.

4. Relevant Case Law

The Rajasthan RERA in its Order No. F.1(152)RJ/RERA/LAND/2020 dated 20.06.2020,²⁰ in the context of an analogous RERA definition, held that when a landowner has a role in construction, development, marketing, or sales of a project, by virtue of a development agreement, they can be treated as a promoter jointly liable with the developer. This principle of joint and several liability of promoter-class entities has been adopted by consumer courts in UP as well.

In Nishant Jain & 38 Others v. Greater Noida Industrial Dev. Authority & 3 Others²¹ (Allahabad HC), the court held that respondents who had not completed the project violated the mandatory provisions of the UP Apartment Act — confirming that the Act creates enforceable obligations against promoters in their capacity as defined under Section 3(w).

X. Section 3(x) — ‘Property’

1. Statutory Text

“property” means the land, the building, and all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be submitted to the provisions of this Act.

2. Dictionary and Lexical Meaning

Black’s Law Dictionary (10th ed.) defines ‘property’ broadly as ‘the right to possess, use, and enjoy a determinate thing’. Stroud’s Judicial Dictionary (5th ed.) traces ‘property’ as comprehending ‘every possible interest which a person can have’. P. Ramanatha Aiyar’s Advanced Law Lexicon includes in ‘property’ all tangible and intangible interests, legal or equitable.

3. Scope and Analysis

The definition of ‘property’ under Section 3(x) is the widest definitional concept in the Act. It is the totality within which the Act operates — encompassing the land, the building, all improvements, all structures, all easements, appurtenances, and even personal property (such as furniture and equipment in common areas) ‘intended to be submitted to the provisions of this Act’. The phrase ‘submitted to the provisions of this Act’ refers to the act of the promoter filing the Declaration under Section 12, thereby formally bringing the property under the Act’s governance regime.

The comprehensive sweep of this definition ensures that no part of the physical and legal bundle of rights associated with a group housing project escapes the Act’s coverage once the Declaration is filed. The FAR/FSI attached to the property is also, by virtue of this definition and the Designarch ruling, ‘a property in which the apartment owners have an interest by virtue of the provisions of the UP Apartment Act, 2010’. This prevents promoters from appropriating additional FAR for construction of new buildings on land that is ‘property’ under the Act without the consent of existing apartment owners.

IV. General Principles for Interpreting Section 3

Several principles of statutory interpretation have been applied or are applicable to Section 3 of the UP Apartment Act:

A. The Literal Rule

The primary rule of construction requires giving words their plain, ordinary, and natural meaning. As the Supreme Court held in Tata Consultancy Services v. State of A.P.,²² ‘a literal construction would not be denied only because the consequences to comply with the same may lead to penalty’ and ‘courts should not be over-zealous in searching for ambiguities or obscurities in words which are plain’. The definitions in Section 3 that use ‘means’ are to be applied in their textual completeness without judicial supplementation.

B. The Beneficial / Purposive Rule

The Supreme Court has consistently held that welfare or beneficial legislation is to be interpreted liberally in favour of the persons for whose benefit it was enacted. In CIT v. Hindustan Bulk Carriers,²³ it was observed that courts must avoid interpretations that defeat the remedial purpose of protective legislation. The UP Apartment Act is beneficial legislation for apartment buyers. Therefore, ambiguities in definitional clauses — such as the scope of ‘common areas’ — should be resolved in favour of apartment owners.

C. ‘Means’ vs. ‘Includes’

As articulated in South Gujarat Roofing Tile Manufacturers Association v. State of Gujarat,²⁴ the word ‘means’ in a definition clause makes the definition exhaustive (confined to what is stated), while ‘includes’ makes it inclusive (open to extension). In Section 3, definitions such as ‘government’ (means) and ‘apartment number’ (means) are exhaustive, whereas definitions like ‘apartment’ (means…includes) and ‘common areas and facilities’ (means — and an exhaustive enumeration covering (i) to (viii)) occupy different positions.

D. The Mischief Rule

Originating in Heydon’s Case (1584), the mischief rule directs courts to identify: (i) the pre-existing common law; (ii) the mischief the statute was designed to remedy; (iii) the remedy provided; and (iv) the true reason for the remedy. The mischief that the UP Apartment Act addresses is the unregulated sale of apartments without corresponding protection of common areas and governance rights. Definitional provisions must be construed so as to effectuate this remedial purpose.

E. Contextual Reading with the Act as a Whole

As affirmed by the Supreme Court in numerous cases, a definition section must be read in the context of the entire Act. The expression ‘unless the context otherwise requires’ in the preamble to Section 3 preserves the judicial power to deviate from a statutory definition when the context demands — for instance, where a definition, if applied literally, would produce an absurd or unconstitutional result.

V. Comparative Analysis: Section 3 and Cognate Definitions in Other State Apartment Laws

The definitions in Section 3 of the UP Apartment Act 2010 share significant commonality with the definitional frameworks of apartment legislation across India, while also exhibiting State-specific variations:

Maharashtra Apartment Ownership Act 1970 (MAOA): Sections 2 and 3 of MAOA contain definitions of ‘apartment’, ‘apartment owner’, ‘association of apartment owners’, ‘building’, ‘common areas and facilities’, ‘common expenses’, ‘common profits’, ‘declaration’, ‘deed of apartment’, ‘limited common areas and facilities’, and ‘property’ that closely parallel the UP Act. Maharashtra courts have construed these definitions in ways that inform interpretation of the UP Act.

Delhi Apartment Ownership Act 1986 (DAOA): The Delhi Act’s definitions mirror the UP Act substantially, with the key distinction that the ‘building’ threshold is set at two or more apartments (vs. four or more in UP). The DAOA has been applied by the Delhi High Court in several decisions on common area rights.

Haryana Apartment Ownership Act 1983: This Act served as the template for the UP Act. Its definitions of ‘apartment owner’, ‘common areas and facilities’, and ‘promoter’ are closely analogous. Haryana courts, including decisions arising from the Gurugram real estate market, have elaborated on these definitions in the context of RERA as well.

Karnataka Apartment Ownership Act 1972: One of the earliest State apartment laws, the Karnataka Act has an expansive definition of ‘common areas and facilities’. The Karnataka High Court decision in M/S D.C.M. Ltd. v. M/S R.K. Towers (India) Pvt. Ltd.¹⁷ articulated that common areas include all areas necessary for adequate use and enjoyment of apartments.

West Bengal Apartment Ownership Act 1972: The Calcutta High Court’s interpretation in Dhruba Dasgupta v. Surjendu Shekhar Ghosh¹¹ that the Act ‘certainly creates valuable rights in respect of common areas and facilities in multi-storeyed buildings’ represents the judicial consensus across all State apartment laws.

VI. Conclusion

Section 3 of the UP Apartment Act 2010 is not merely a technical lexical appendage to the Act — it is the conceptual foundation upon which the entire edifice of apartment ownership law in Uttar Pradesh rests. The definitions of ‘apartment’, ‘apartment owner’, ‘common areas and facilities’, ‘association of apartment owners’, ‘promoter’, and ‘property’ collectively create the legal universe within which rights of apartment owners are recognised and enforced. Judicial interpretation — particularly from the landmark Designarch judgment of the Allahabad High Court and the Supreme Court’s pronouncements on parking, common areas, and the rights of allottees — has given these definitions their practical operational content.

The paramount principle that emerges from this commentary is that every definition in Section 3 must be read purposively, in the light of the protective legislative intent of the UP Apartment Act, so as to advance the rights of apartment owners, restrain the misuse of power by promoters, and ensure the orderly governance of apartment communities through democratically accountable Associations. The interplay between the definitional provisions and substantive rights-conferring sections of the Act, as illuminated by judicial decisions, constitutes a robust legal framework for apartment ownership in Uttar Pradesh — one of the most progressive in the country.

ENDNOTES

1. Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297 (Supreme Court of India).

2. M/s. Designarch Infrastructure Pvt. Ltd. & Anr. v. Vice-Chairman, Ghaziabad Development Authority & Ors., Civil Misc. Writ Petition No. 33826 of 2012, decided on 14 November 2013, reported as 2013 (9) ADJ 594 (Division Bench, Allahabad High Court, Per Justice Sunil Ambwani). Available at indiankanoon.org/doc/183272974.

3. South Gujarat Roofing Tile Manufacturers Association v. State of Gujarat, (1976) 4 SCC 601; Tata Consultancy Services v. State of A.P., (2005) 1 SCC 308 (Supreme Court of India).

4. State of Maharashtra v. Labour Law Practitioners’ Association, (1998) 2 SCC 688; South Gujarat Roofing Tile Manufacturers Association v. State of Gujarat, (1976) 4 SCC 601 (Supreme Court of India).

5. Uttar Pradesh Repealing Act, 2020 (U.P. Act 31 of 2020), published in U.P. Gazette dated 31.08.2020, repealing U.P. Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act 2016 at item No. 62.

6. M/s. Designarch Infrastructure Pvt. Ltd. & Anr. v. Vice-Chairman, GDA (supra), para 65(3) and (4);

7. Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Others, Civil Appeal No. 5785 of 2019, decided on 11 January 2021, reported as AIR 2021 SC 437 (Supreme Court of India, Bench: Indu Malhotra, Dhananjaya Y. Chandrachud, Indira Banerjee JJ.).

8. Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., Civil Appeal No. 2544 of 2010, decided on 31 August 2010, reported as AIR 2010 SC 3607 (Supreme Court of India, Bench: A.K. Patnaik and R.M. Lodha JJ.).

9. Designarch case (supra), para 65(5): ‘The apartment owner…includes the spouse and children of the apartment owner and a lawful tenant of the allottee/owner…It will also include a person holding valid power of attorney of the allottee/owner of the apartment.’ See also: Frequently Asked Questions by Apartment Owners on U.P. Apartment Act, redlaw.in.

10. Manish Kansal v. State of U.P., Writ-C No. 17986 of 2015 (Allahabad High Court). Also see Anurag Chaudhary & Another v. Deputy Registrar, Writ-C No. 29992 of 2018 (Allahabad High Court).

11. Dhruba Dasgupta & Ors. v. Surjendu Shekhar Ghosh & Ors. (Calcutta High Court) — reported judgment on common areas and facilities in apartment buildings; referred to in casemine.com search on common areas of apartment buildings.

12. Designarch case (supra), conclusion para: ‘The model bye-laws as notified on 16.11.2011… will be registered by the Registrar. Bye-laws by operation of law have to be the prescribed Model Bye-laws; there can be no deviation or variation.’

13. French Apartment Owners Association v. State of U.P. & 3 Others, Writ-C No. 17459 of 2024 (Allahabad High Court, Court No. 40). Un-Reportable Order. Available at casemine.com.

14. Resident Welfare Association (Regd.) through its Secretary v. State of U.P. & 5 Others (Allahabad High Court), available at casemine.com/judgement/in/5ac5e37b4a93261a1a75fc6d.

15. The Management Board, Windsor Park Residents Welfare Association, Indirapuram v. State of U.P. & Others, decided on 11 March 2019 (Division Bench, Allahabad High Court).

16. Bangalore City Municipal Corporation v. M. Papaiah — Supreme Court of India; cited in municipal and property law contexts for definition of ‘building’.

17. M/S D.C.M. Ltd. v. M/S R.K. Towers (India) Pvt. Ltd., decided on 22 August 2008 (Delhi High Court, Per R.S. Endlaw J.). Available at indiankanoon.org — cited by Karnataka HC and others on common areas definition.

18. Apartment Owners’ Association (Chennai) v. Developer (Madras High Court) — ruling that common areas belong to flat owners and alterations cannot be made without owner consent; referred to in: nyaaya.org/property-rights-common-areas.

19. Smt. Hansa Yadav v. Housing and Urban Planning Deptt. through Prin. Secy. Lko. & 3 Others (Allahabad High Court) — Un-Reportable; interpreting Section 20(2) of the UP Apartment Act 2010 on electricity dues and common expense levy.

20. Rajasthan RERA, Order No. F.1(152)RJ/RERA/LAND/2020/1202, dated 20.06.2020

21. Nishant Jain & 38 Others v. Greater Noida Industrial Development Authority & 3 Others (Allahabad High Court)

22. Tata Consultancy Services v. State of A.P., (2005) 1 SCC 308 (Supreme Court of India)

23. CIT v. Hindustan Bulk Carriers, AIR 2002 SC 3941 (Supreme Court of India)

24. South Gujarat Roofing Tile Manufacturers Association v. State of Gujarat, (1976) 4 SCC 601 (Supreme Court of India)

BIBLIOGRAPHY AND SOURCES

Primary Legislation:

The Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 [U.P. Act No. 16 of 2010].

The U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Rules, 2011.

Model Bye-Laws for Apartment Owners’ Associations, Uttar Pradesh, notified on 16.11.2011 under Section 14(6) of the Act.

Maharashtra Apartment Ownership Act, 1970; Maharashtra Ownership Flats Act, 1963.

Delhi Apartment Ownership Act, 1986.

Haryana Apartment Ownership Act, 1983.

Karnataka Apartment Ownership Act, 1972.

Real Estate (Regulation and Development) Act, 2016 [Central Act 16 of 2016].

Uttar Pradesh Repealing Act, 2020 (U.P. Act 31 of 2020).

Legal Dictionaries and Treatises:

P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed., 2005).

Black’s Law Dictionary (10th ed., Bryan A. Garner ed.).

Stroud’s Judicial Dictionary (5th ed.).

G.P. Singh, Principles of Statutory Interpretation (15th ed., LexisNexis).

Maxwell on Interpretation of Statutes (12th ed.).

Salmond’s Jurisprudence (12th ed., PJ Fitzgerald).

Other Sources:

Redlaw Legal Services — redlaw.in (FAQs on UP Apartment Act).

India Code (indiacode.nic.in) — official text and rules.