YOUR BUILDER CANNOT TAKE YOU FOR A RIDE (Link :
http://paper.hindustantimes.com/epaper/viewer.aspx).
RESIDENTS' CONSENT IS MANDATORY TO MODIFY BUILDING PLANS, SAYS THE ALLAHABAD HIGH COURT IN A LANDMARK JUDGMENT THAT IRONS OUT THE CREASES IN THE UP APARTMENT ACT. BUILDERS CAN GO TO JAIL FOR NOT GETTING COMPLETION CERTIFICATES.
30 Nov 2013.
Hindustan Times (Delhi).
Jeevan Prakash Sharma. jeevan.sharma@hindustantimes.com.
The recent Allahabad High Court ruling on the Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) Act, 2010, has made Abhinav Jain a happy man. Peeved at the delay in delivery of his sixth floor apartment in a group housing project, Meadows Vista, in Raj Nagar Extension, Ghaziabad, Jain had carried out his own investigations to discover that the builder had made amendments in the original building plans. Outraged by the fact that he was not getting what he had been promised by the builder, Jain filed a plea with the HC, seeking more clarity on the Apartment Act.
Jain had bought his apartment in 2007. Though delivery was promised on April 2010, the developer, Value Infracom India P Ltd, had applied for amendments in the building plans of 2007 approved by GDA in 2010.
"The amended plan was approved by the GDA after the UP Apartment Act came into force. It's important to note that the Act prohibits amendments in original building plans after the original plans have been released and construction permissions have been granted," says Jain.
The HC clarity on the Apartment Act has come as a huge relief for Jain and a number of petitioners fighting cases on matters related to floor area ratio (FAR - regulation controlling building size and the ratio of the plot and the total floor area of the building which stands on it) violations, resident welfare association-developer disputes and completion certificates.
"With thousands of buildings under construction in the state of UP, specially in the National Capital Region falling within the areas of the state of UP, it is expedient to clarify the provisions of the Act and to iron out the grey areas for the enforcement of the Act," the court has said.
BENEFITS OF PURCHASABLE FAR FOR FLAT OWNERS.
The judgment comes as a big blow to both the development authorities and the builders. There have been more than 20 group housing projects with hundreds of apartments in Noida and Ghaziabad embroiled in various court cases. Highlighting his case, Jain says, "First the developer gets the original building plan sanctioned from a development authority and then sells apartments, promising buyers parks and open green views from balconies. When the project is almost complete, the developer gets the building plan amended with approvals for construction of additional apartments and areas. So, not only does possession get delayed, even the open green areas give way to concrete towers," he adds.
Agreeing to Jain's petition against the developer's project plan changes, the HC has held that the FAR or any additional FAR is a property, appended to rights in the property on which the building is constructed. It is thus a property in which the apartment owners have interest by virtue of the provisions of the UP Apartment Act, 2010.
"The purchase of additional FAR is not permissible to be appropriated by the promoter without any common benefits to the apartment owners. The consent of the apartment owners obtained by resolution in the meeting of the apartment owners by majority will be necessary for purchasing additional FAR. Its utilisation will also be subject to the consent of the apartment owners," the HC has said
Elaborating on this, Supreme Court lawyer SK Pal, who appeared for Jain and other RWAs in court, says, "The judgment has made two things very clear. First, if a builder has allotted flats in an under-construction group housing project, he must take the consent of all the allottees before he alters the original plan.
Second, if the developer has already given possession in the project, let's say he has completed 60% of the project and given flat ownership to the allottees, he has to take the consent of the majority of flat owners. Benefits from the new FAR also have to be divided among all the flat owners."
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