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Land Shown As Common Area Belongs To Flat Owners, Builder Cannot Sell It: Madras High Court

The Madras HC on 20.01.2023 has observed that when a land is shown as a common area and is developed as a common amenity, it belongs to the flat owners of the building. This was seen in the Case Title: Abbotsbury Owners’ Association v. The Member Secretary W.P.No.5765 of 2020, the matter was presided over by the Coram of The Honourable Mr. Justice R.Subramanian and The Honourable Mr.Justice K.Kumaresh Babu.

FACTS OF THE CASE

Once the land is shown as a common area & common amenity is developed, the land will belong to the owners of such common amenity. If there is a error in the calculation of the (undivided share) UDS, it has got to be corrected by the builder. The builder cannot take upper hand advantage of the error & claim that the purchasers must be liable to pay for the unsold portion of the UDS.

Justice R Subramanian & Justice K Kumaresh Babu therefore disposed of a petition by the flat owners’ resident association by directing the Chennai Metropolitan Development Authority (MDA) to transfer the vacant non-FSI building to the flat owners.

The Chennai Metropolitan Development Authority will forthwith handover the vacant Non-FSI building to the flat owners’ association. The execution of the rectification deeds shall be finished within a period of 3 months from today. (20.01.2023)

The flat owners had pacified that the quarrelled area was shown as a common amenity as a portion of non-FSI construction. Thus, it would belong to the flat owners. The builders had unjustly tried to convey this area to third parties.

The builders nevertheless pacified that since the ownership in the land was not carried in full to the purchasers of the apartments, the flat owners could not claim the ownership of the non-FSI structure.

The court however did not accept this contention. It held that the non- FSI was not salable. Therefore any portage to the third parties was in contravention of planning permission.

The portage of undivided share in the land accompanying Non- FSI block to the respondent no.2 by the respondent no. 3 itself is really irregular & against the sanctioned arrangement permission. The Non-FSI was not salable area and consequently, the sale by the respondent No. 3 to the respondent No. 2 is clearly in contravention of the arrangement permission granted.

The court added that the builder was not a learner and therefore it was highly unlikely to accept the contention of the builder that there had been an inaccuracy in calculation of the undivided share of the land. Therefore, the builders had tried to deceive the buyers by embracing an unjust formula.

The respondent No. 3 is not a novice, it is a prominent builder. The act of the respondent No. 3 throughout the proceedings and the earlier proceedings lead us to conventionally believe that the respondent No .3 had duped the purchasers by embracing an unjust formula for calculating the undivided share in the land.

JUDGEMENT

The court further clench that when the builder itself in previous proceedings had stated that it would reinstate the building to its primary position & make certain that it would be used for Non-FSI uses, it could not go back & claim that they were enabled to use it for other purpose. Thus, the court ordered appropriately and directed for handing over the non-FSI area to the flat owners.

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JUDGEMENT REVIEWED BY YAKSHU JINDAL.

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