Plea Before Kerala High Court Questions Constitutionality Of Section 2 Of Kerala Apartment Ownership Act

A plea has been filed before the Kerala High Court challenging the constitutional validity of Section 2 of the Kerala Apartment Ownership Act,1983.

Justice Devan Ramachandran admitted the writ petition and the matter has been posted on 11th October.

The petition moved through Advocate Johnson Gomez was preferred by the apartment owners associations under the Kent Mahal Complex and Kent Oakville, two multi-storeyed apartment buildings in the State.

Section 2 requires all owners to duly execute and register a declaration in order to make the Act applicable to the property.  

The plea assails the constitutionality of the provision contained in Section 2 so far as it stipulates the insistence of declaration and deeds of the apartment to be filed by all apartment owners. 

The case of the petitioners is that the sole owner of their apartments is the 4th respondent herein and that the apartments were thereafter transferred to individual apartment owners. 

As per Section 2, the sole owner should have filed the declaration to make the Act applicable to the property. However, since the statute was not operational at that point in time, the said declaration was not done.

The problem that has arisen consequently is that now each apartment owner has to execute and register the declaration to make the Act applicable to their property. 

Adding to the issues, it is inevitable to make the Act applicable to the property in order to gain exclusive ownership over their individual apartments. 

Therefore, now the provision under Section 2 has imposed an impossible condition for making the Act applicable for enjoying individual absolute ownership over the apartment violates the right to live with human dignity.

The petitioners have contended that such an insistence was against the intention of the statute. Relying on the Preamble of the Act, they have asserted that it envisages making an apartment heritable and transferable property of the owner while Section 2 restricts owners from enjoying full ownership. 

On the same note, it has been argued that the legislative intent was to promote the rights of individual purchasers, and not the promoter, i.e. the sole owner. 

Additionally, the Associations have argued that the impugned section is also in violation of Fundamental Rights enshrined in Articles 21 and 300A of the Constitution on the pretext that it interferes with the right of the petitioner with moderate-income to have a decent living in the city by purchasing an apartment.

"Evidently, if absolute ownership can not be obtained by individual apartment owners of flats in a single building, it would interfere with the fundamental rights of the apartment owners,"  they have added. 

Pointing out that an apartment owner is defined to be one who owns an apartment specified and established in the declaration, they have alleged that the formation of an association does not require all the owners to have registered the declaration and deed of apartments. 

The petitioners have thereby prayed for a declaration that Section 2 of the Act is ultra vires the provisions contained in Articles 21 and 300A of the Constitution of India.

A directive to the respondents compelling them to issue the certificates under the Act to the petitioners without insisting on declaration and deeds of apartment from the apartment owners has also been sought in the matter. 

Other counsels: Advocates S.Biju, Sanjay Johnson, John Gomez, Sreedevi Suresh, Sanjith Johnson, Dinoop P.D, Enlin Mary Rodrigus, Mohammed Sheharan

Case Title: Kent Mahal Welfare Association & Anr v. State of Kerala & Ors.