- Dissanayake said that his officials had found out how the Developer has deceived the share parcel owners
- According to Arul, at the AGM some owners objected to higher payment being levied from owners
- Meanwhile Dissanayake told this newspaper on January 9 that Rudra Residencies Developer is not cooperating with the CMA’s inquiry
Residents of Rudra Residencies, Wellawatte claim that they have been deprived of the common facilities that were promised in their sales agreements by the developer. They also claim that the illegal and unconstitutional decisions taken by the Management Committee (MC) has affected the standard apartment owners financially.
As they failed to get the issues they were facing addressed from the Developer, they claim that they forwarded written complaints to the Condominium Management Authority (CMA)- the state institution that monitors the activities of all condominiums in the country, but to no avail.
It is the CMA that monitors all the condominiums in the country to check whether the respective management co-operations provide and maintain the common facilities and common amnesties systematically, for the benefit and welfare of occupants.
However, when these issues were brought to the notice of the Deputy General Manager (Regulatory) CMA, Civil Eng. J.N.D.C. Dissanayake by this newspaper on Thursday December 5, the DGM immediately had a meeting with his officials and found out that none of the written complaints have been filed in their complaint folder.
Accepting that it was part of the CMA’s fault, Dissanayake instructed his officials to attend to the complaint on the same day. Hence two officials were assigned to visit the apartment complex in question and to report back to him the outcome of the findings.
Following the inspection tour, Dissanayake told this newspaper, that he had instructed the legal division to send notice to the accused MC of Rudra Residencies to submit its response to the allegations levelled by residents. “Our officials who visited this apartment complex confirmed how part of the mezzanine floor has been rented out. They have found out that other than the gymnasium, none of the other facilities depicted in the condominium plan has been provided for the residents,” Dissanayake told the Dailymirror .
According to the residents, they have been deprived of a children’s indoor game area, the management corporation meeting room, the corporation council office and the lobby area in the mezzanine floor, although these facilities have been depicted in the condominium plan No: 2501 drawn by Charted Surveyor P. Pararasosegaram dated September 1, 2005 and approved by the CMA on July 27, 2006 (Ref No: CMA/CD/CP/ 082/06).
According to the residents, the property developer Jaya Rudra, who is one of the share parcel owners of the apartment, has claimed ownership to the mezzanine floor and allegedly obtaining the rental. He had wanted those who are against it, to get it resolved in courts.
The Western side of the mezzanine floor has been rented out to a private company while the Eastern side of the mezzanine floor had been re-designed to accommodate his driver’s rest room, his office boy’s rest room, cleaning staff’s room, a kitchenette and the gymnasium.
“Without the approval of the CMA, Rudra got the mezzanine floor redesigned for his personal benefit. As described in the CMA approved mezzanine floor plan, the part towards the land side (western side) should consist of the Management Corporation Meeting room, the Corporation Council Office, the lobby and the gymnasium while the other part towards the sea side (eastern side) as per the condominium plan No: 2501, should consist of the children’s indoor game area, the drivers’ rest room, the caretaker’s rest room, the main switch room, the metre room and two empty spaces where we can use for recreation facilities. Disregarding the original approved plan, the drivers’ rest room had been converted to a kitchenette and children’s indoor game room to Rudra’s office boy’s room, caretaker’s room into his driver’s room, one of the empty areas into the caretaker’s room and the other empty area as the gymnasium,” A. Arul of 14/1/3 of Rudra Residencies told the Dailymirror .
According to Arul, whenever this issue was taken up at committee meetings or AGM’s, the Developer J. Rudra had repeatedly told the mezzanine floor belongs to him and his brother. He claimed that there isn’t a common area on the mezzanine floor other than the area for the gymnasium and if any justification is needed for the residents to seek the assistance of the law.
“When this issue was raised at the AGM held on April 11, 2019, the MC Chairman informed the members that they cannot take up this case and for the relevant parcel owners who are against Rudra for holding the common area as his own property, to file litigations against the Developer (Rudra) at their own cost,” Arul said.
He further said that according to the Condominium Act, the maintenance fees should be levied on a proportionate basis depending on the share parcel percentage which is not being adopted at Rudra Residencies.
“At one of the Management Corporation meetings, they decided to levy management fees from the owners of the apartments on the basis that each owner should pay an equal amount regardless of the share parcel percentage. Hence the owners of the larger apartments- 6/1, 7/1 and 7/2 pay the same amount as that of the standard apartment maintenance fee of Rs.185, 000 per year which is illegal and unconstitutional as per Condominium Act,” Arul claimed.
The residents further said that all their complaints to the CMA fell on deaf ears although they handed over two letters to the Authority in May and July respectively this year.
“As we didn’t get any response we sought media attention to take up this issue,” they said. Meanwhile after the inspection tour carried out by the CMA officials, DGM, Dissanayake told the Dailymirror , that his officials had found out how the Developer has deceived the share parcel owners and that he has not complied with the CMA orders which is illegal. He further said that he instructed the Legal Division and the Custom Care Unit to call explanation from the Developer.
“I instructed AGM Legal Nisansala Illeperuma and the Custom Care Unit to call for explanation from the Developer giving him a stipulated time period to file answers. As a Government institution we have to take quick action against all complaints we receive. But for certain reasons we have misplaced the written complaints the complainant has handed over to our office. Since your paper brought this to our notice, the CMA commenced an impartial inquiry,” Dissanayake said.
According to Dissanayake, under the Apartment Ownership Law No: 45 of 1982 as amended, neither the Developer nor the MC can deprive the residents of the common area. “Whatever the facilities that are depicted in the approved condominium plan have to be provided,” the DGM affirmed.
Meanwhile Dissanayake told this newspaper on January 9 that Rudra Residency Developer is not cooperating with the CMA’s inquiry as the security at Rudra Residency had refused to accept any of the CMA letters that was dispatched.
The written complaints dated May 30 and July 31, 2019, have not only requested the CMA to intervene on the unauthorised occupancy of the mezzanine floor, but also on the wrong calculation of the electricity bill for the mezzanine floor and the roof top which has to be borne by the residents and how the maintenance fee has been calculated erroneously in favour of the Developer and two other parcel owners who own larger apartments than the rest of the residents. “Part of the electricity bill is paid by the tenant. The other share has to be borne by the share parcel owners in equal shares. The Developer’s office peon and personal driver are living in the mezzanine floor and the electricity they are consuming has to be paid for by the Developer, but we are forced to pay for it as well,” the residents alleged.
According to the official documents related to these allegations, copies of which this newspapers is in possession of, Parcel 7/1 of the Rudra Residencies which is occupied by Jay Rudra is 3870 sq. ft. in extent which is 8.72% of the share value, Parcel 7/2 who is alleged to be Rudra’s brother 3352 sq. ft. in extent which is 7.58% of the share value and parcel 6/1, 2970 sq. ft. in extent which is 6.70% of the share value while other 22 residents occupy in 1556 sq. ft. in extent each which is 3.50% of the share value.
According to the documents, although Jay Rudra, his brother and the owner of 6/1 have to pay double or more, than the maintenance fee the other 22 residents pay, he and his associates in the committee had got a resolution passed at an AGM to allow Rudra and the other two parcel owners to pay the annual maintenance fee for a single unit without considering the square feet area bypassing the regulations in the Condominium Act.
According to these residents, these three parcel owners though occupying a larger arear in extent, pay the same fee as that of those who reside in a 1556 sq. ft. extent houses which is Rs.185, 000 annually for the sinking, maintenance and pint fund.
“We have to pay this money in two installments. Rs. 40,000 for the Sinking fund, Rs.120, 000 for maintenance fund and Rs.25, 000 as the paint fund, totaling Rs.185, 000. All cheques have to be drawn in favour of Rudra Residencies Management Corporation. If we have to pay Rs. 185, 000 the Developer, his brother who occupies parcel7/2 and the other owner who owns unit 6/1 should pay double or more than that,” Arul claimed.
Failure to obtain an opinion
Meanwhile, this paper is in possession of a copy of the letter sent by R. Niles, owner of share parcel 1/ 2, to the MC of Rudra Residencies for its failure to obtain an opinion from a competent lawyer on how much each parcel owner should contribute as the maintenance fee considering the square feet area of each residents. Due to the MC’s failure to obtain an opinion, Niles and another owner had obtained an opinion from an expert in Apartment Ownership Law, President’s Counsel A.R. Surendran. Surendran’s Report dated March 30, 2012 says, ‘Section 20 C (2) of the Apartment Ownership Law (AOL), sets out the powers of the Management Corporation (MC). Section 20 C (2)(bb) confers on the Management Corporation the power to levy a monthly contribution on the owners of all the condominium parcels in proportion to the share parcels of their respective condominium parcels for the purpose mentioned in Section 20 H and to recover such contribution from the owners of all the condominium parcels. In terms of Sec. 20 A (1) of the Apartment Ownership Law, the share value of each parcel shown in the plan should be taken as the share parcel.
‘Section 20A (2) (c) specifically states that the share parcel determine the proportion payable by each owner of contributions levied by the MC pursuant to Sec. 20 of the AOL. Thus the MC has been vested with the power to levy contributions from owners of apartment on proportionate basis depending on the share value of each apartment given in the condominium plan. Thus it is crystal clear that the levying of the monthly contribution from owners could be done by the MC only on a proportionate basis.
‘In terms of Sec. 20 B of the AOL, the MC comes into existence by operating of law upon the registration of the condominium plan. Thus the MC is a creature of the Statute. A body which is created, by an Act cannot act outside the powers expressly conferred on it by such statute or exercise such powers in a manner not authorised by such an Act. The AOL which created the MC stipulates its powers as regards levying of contributions from owners. The statute expressly vests the power in the MC to levy contributions and specifically directs that it shall be on a proportionate basis. Hence the MC is not entitled to travel outside the scope of the powers vested in it by the Statute or exercise such powers in a manner not authorized by statute. ‘If for whatever reason the MC decided to levy management fees from owners of apartments on the basis that each owner should pay an equal amount regardless of the share value then such a decision even if adopted by the majority of the owners would clearly fall outside the powers of the MC and would be ultra vires the statute. It is one of the cardinal principals of our law that ultra vires decision/ actions by a body created by an Act are void and of no force or avail in law. Hence the purported decision taken by the MC to levy contributions on an equal basis is manifestly ultra vires and of no force’. According to Arul, at the AGM held on February 28, 2009, some of the owners objected to higher payment being levied from the owners of the three larger apartments and that a ruling should be obtained from the CMA.
“A letter in this regard was sent to the CMA on March 30, 2009. While the matter was pending before the CMA, at a monthly meeting held on May 30, 2009, it was agreed that from April 1, 2009 contributions shall be proportionate to the share parcel and that letters should be sent out to the owners of 6/1, 7/1 and 7/2. Meanwhile, by letter dated December 4, 2009 the CMA informed the MC that maintenance fees should be levied on a proportionate basis and instructed the MC to get a resolution passed at an Extra Ordinary General Meeting and charge the maintenance fee in future from the unit owners on a proportionate basis which is yet to be implemented,” Arul alleged.
When contacted Jay Rudra on Thursday December 5, for a comment on the allegations leveled against him and the MC, he said that he was at a meeting and will call back.
Later he said that his lawyer has instructed him not to make any comments over the phone, but to have a meeting to discuss the issues pertaining to the apartment complex and that he will be not available till Thursday December 12. Thereafter couple of text messages were sent on December 12, 13 and 19 requesting for a time and place to meet him. When Rudra was informed on January 14, that the article will be published without his side of the story if he further fails to present his side of the story, Rudra replied that the newspaper could carry the article to tarnish his image and reputation, but will have to face a suit of defamation.
His message read, ‘You could do this at your own risk and face a suit of defamation as you are clearly motivated by ill-will and going all out to tarnish my image and reputation. You are also driven by other extraneous considerations. You are now threatening me as well abusing your position as a journalist. This is a private matter between residents and not of a public importance that needs to be put into newspapers. The matter is pending before the Condominium Management Authority and is sub-judice’.
Although Jay Rudra says since this matter is pending before the CMA and is sub-judice we wish to state that the Condominium Management Authority is a Government institution, but not a court house.
As a responsible news outlet, the Dailymirror does not publish personal matters of any individual that do not cost the tax payer but have always highlighted paramount issues in the country fearlessly. Hence we feel that this story is of public interest as Rudra-the Developer of Rudra Residency- has not only failed to comply the laws stipulated in the CMA Act, but also the Apartment Ownership Law and has deceived the helpless residents.
‘Inquiry postponed for February 25’-Dissanayake
Attorney-at-Law U.L.G. Bandara the independent lawyer who conducted the inquiry on January 28 has postponed further probe into the issue to Tuesday, February 25 as the complainant has failed to appear at the inquiry.
According to Deputy General Manager CMC, J.N.D.C. Dissanayake, the Developer of Rudra Residencies had been present at the inquiry, but the complainant’s failure to attend the meeting has led the inquiring officer to postpone the inquiry.
“After visiting Rudra Residencies, our legal team informed the Developer and the Complainant to attend an inquiry. When they were asked to be present at a previous occasion, the Developer requested for time till he got his file prepared, to which request we consented. The complainant should be present at the next date and at the inquiry, the inquiring officer will check all the legal documents to check whether the Developer has violated the Apartment Ownership Law and the Condominium Act or whether the complainant has lodged a baseless allegation. After reviewing the documents the decision will be announced,” Dissanayake said.