Ever since the lockdown was imposed and partially lifted, the first point of contact for most residents on what is permitted and what isn’t has been the resident welfare association (RWA). The list of instructions shared by various RWAs among their resident members have only been increasing, leading to confusion and many even refusing to toe the line, saying the RWAs are not legally empowered to pass such orders.
There have been reports that several residential societies have even threatened to ‘name and shame’ residents who ‘dare’ take a walk in the compound as rules did not permit. Some have issued advisories against newspaper and pizza deliveries. Others have put limits to walks, allowing only a 15-minute ‘walk’ for pets and banned the entry of maids and all house helps.
In short, RWAs throughout the lockdown period have tried to exercise an arbitrary role and, in some cases, powers far beyond what they are legally empowered to, which includes taking care of welfare and maintenance of residents.
But is it really the case?
The Ministry of Home Affairs’ detailed guidelines on May 5 allowed several persons to begin work. This has been interpreted to mean that domestic help, including maids and drivers, can return to work. While some media reports said that RWAs cannot stop domestic workers from reporting to work, others said the Delhi government had allowed services provided by domestic help. According to another report, the onus of allowing domestic help to enter had been placed on the RWAs by the respective administrations.
To put an end to the ‘weird and ambiguous’ rules being framed by several residential societies in COVID-19 times, the Gautam Buddh Nagar administration has come up with a set of coronavirus guidelines on May 6.
They clearly state that the residents are not allowed to take walks outside and have advised against inviting guests during the lockdown period. The guidelines have also clarified that RWAs can take a decision on the entry of maids into society after consulting and taking a consensus of residents. They make it clear that maids and house helps may only be allowed if they come from non-containment zones and after the RWA has made arrangements for their thermal screening.
The Gurugram Administration has also issued FAQs to RWAs, which clarify the guidelines on the access of staff. “Systematic process for domestic help such as maids, house helps, drivers, dhobis, tailors, car cleaners etc who do not stay within the RWA premises may be planned by respective RWAs as per need.”
"Maids, and other workers to strictly not be allowed if they are from containment zones.”
The FAQs also include information on delivery of goods. The summary states that “MHA has left certain decisions with respect to the discretion of legitimate RWAs of Societies and Colonies. Several RWAs of Gurugram unanimously agree that in the current situation, the entry of domestic help/cooks/daily cleaners may be deferred until the end of the extended lockdown period.”
On the issue of outdoor walks, the guidelines have clearly stated that residents may take walks if it is necessary i.e. for residents with health conditions, having to walk pets. After walks, residents must wash hands before entering the building premises.
As for the use of elevators and lifts, only two persons from the same family will be allowed at a time in a passenger lift. In case of an emergency, four may be allowed. They also make it clear that milk packets, newspapers can be delivered out of the building lobby and that the residents would need to collect it themselves. After collection, residents have to wash hands at the ground floor basins/use sanitisers before entering the lift.
Sanjay Bhasin, member Central Park 1 Condominium Association told Moneycontrol that the RWAs are guided by the orders issued by the district administration or any competent authority.
“We simply comply with those orders. Until last week before the second clampdown, residents in societies continued to take a walk despite there being orders stating not to. We cannot restrict them from moving around as we are not a law enforcing authority,” he said.
In Uttar Pradesh, reports suggested the District Magistrate of Ghaziabad had stated that domestic help, car cleaners, and mechanics are not allowed in Ghaziabad. “We have issued a detailed list of activities which have been allowed and anything that does not figure in the list obviously means that it has not been allowed,” the administrator was recently quoted as saying but no specific guidelines on the issue have been released.
This lack of guidelines on the issue has prompted RWAs to seek clarification from the district magistrate’s office. “We have written a letter to the district administration asking for clarity on these issues. After Noida, guidelines need to be issued in case of Ghaziabad too as the lack of it is leading to confusion among residents and AOAs all of which are following different rules,” Alok Kumar of Federation of Association of Apartment Owners (FedAOA) comprising over 100 societies in Ghaziabad told Moneycontrol.
The letter has sought clarification on whether entry of domestic workers such as maids and car cleaners and technicians for fridge and television repairs should be allowed by societies, whether residents can take walks inside the complex after social distancing norms are followed.
The question here is whether RWAs are legally empowered to draft arbitrary rules, no matter the unprecedented situation one finds oneself in today?
Rajiva Singh, Noida, president, NOFAA Noida Federation of Apartment Owners Association, made it clear that RWAs are not law-making authorities. They implement the guidelines issued by the district administration.
“Problem arises when certain (minute) things are not defined in the rules and regulations. It’s in those cases that the administration leaves it to the wisdom of RWAs to take a decision. The authorities often simply lay down the broad guidelines and then leave it to the RWAs, democratically elected by residents themselves, to decide what is best for the society. While the intent of the RWAs in most cases is to ensure the welfare of residents, in many cases they often cross the line,” he said.
Are RWAs legally empowered?
Do RWAs have the power to restrict entry and exit of certain persons from a society?
Amit Kumar Baliyan, advocate and expert on matters relating to registration of societies, said legally, the entry of persons cannot be stopped by RWAs citing coronavirus as the reason unless and until the district magistrate has delegated powers to the RWAs. “If the DM has issued an order, the RWA will have to implement it,” he said.
Mukesh Kumar, KNM & Partners concurred. “RWAs are constituted by the owners themselves that work for the welfare for the society as a whole. Legally they are not empowered and their orders not enforceable.”
Another lawyer pointed out that since residents agree to pay a fixed amount as maintenance, they have in any case agreed to abide by the rules set by their elected representatives. “You may have to abide by the rules since you are paying for the services rendered but there is no legal authority rested on them,” said advocate Varun Chopra.
Advocate Kumar Mihir agreed that while some societies are acting as a law unto themselves, some actually derive the power from the rights of admission under the terms and conditions of maintenance as laid down under the contract agreed to between the RWA and the builder.
“The sale deed agreed to between the buyer and the builder allows the builder to retain the right to grant admission to people and when builder hands over the maintenance to the RWA, he hands over this right to the RWA,” he said.
In Noida, on the other hand, since there is no sale deed, these rules are governed by the will of the majority without any legal basis for it.
There’s more to it
Every colony is, under various development laws, meant to have RWA, by whatever name called. The law that governs these will vary from state to state, such as the Haryana Apartment Ownership Act, 1983; the Delhi Apartment Ownership Act, 1983, or the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010.
All these acts mandate the creation of an RWA, which is to form its own by-laws in keeping with model by-laws prescribed by these various acts. The acts allow the RWAs to frame by-laws to ensure the smooth functioning of these colonies.
Other colonies, such as those which were created as a result of the handover of land to cooperative societies, will also typically have RWAs, registered under the Societies Registration Act, or the Cooperative Societies Act (as applicable in a particular state), explained Vaibhav Gaggar, Managing Partner, Gaggar & Partners.
The RWAs are meant to ensure a process of representative democracy, i.e. elections from among the homeowners, in keeping with the various acts, and their own by-laws. Therefore, most decisions would be taken keeping in mind the opinions of the residents, as well as inputs from law and order agencies, such as the police and the district administration. The by-laws may empower the RWAs to take such decisions as they deem fit, he said.
It is pertinent to note that under regulations issued under the Epidemic Diseases Act, 1897, such as the Delhi Epidemic Diseases, COVID -19 Regulations, “authorised persons” are “Secretary (Health & FW), Director General Health Services (DGHS), at State Level and District Magistrate, Chief District Medical Officer (CDMO), Sub Divisional Magistrate (SDM) and District Surveillance Officer in the districts and officers as authorised by Department of Health & Family Welfare, Govt. of NCT of Delhi.”
“It would appear that if there is any specific instruction from the concerned government then the RWAs would be obliged to implement the same. However, in the case of there being a vacuum in that regard or absent any communication from the district administration or the police, RWAs would have to turn to their own by-laws, which in turn derive legitimacy from the respective apartment acts,” explains Gaggar.
Often the bylaws may not have a specific provision for this kind of a situation. Largely, one would find the RWAs resorting to the following clause that’s found across many societies:
To provide for and to do all and/or any of the following matters:
Such restrictions on the requirements respecting the use and maintenance of the apartments and the use of the common areas and facilities not set forth in the declaration, as are designed to prevent unreasonable interference with the use of their respective apartments and of the common areas and facilities by the apartment owners.
This provision does not, in fact, give total powers to the RWA to enforce such a condition which would prohibit help from outside the complex to come to peoples’ homes.
“The government itself has permitted commercial activities to commence and not provided any specific conditions on help and daily wagers, then the RWA cannot be a law-making body, and certainly not that could impinge upon the fundamental rights enshrined under Articles 14, 19 and 21 of the Constitution, whether with regard to the labour or with respect to the rights of the apartment owners themselves," Gaggar said.
Having said that, if the government itself is delegating the power down to the RWAs in certain situations, in that case, the RWA could make such rules, subject off course to the same not being arbitrary or discriminatory, Gaggar said.
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