Will RWAs in Ut­tar Pradesh gain from the Supreme Court’s re­fusal to stay the Al­la­habad High Court rul­ing?

HT Estates - - NEWS - Jee­van Prakash Sharma

It’s ‘ad­van­tage home­buy­ers’ in Ut­tar Pradesh where their rights over com­mon ar­eas in hous­ing so­ci­eties are con­cerned. The Supreme Court ( SC) has re­fused to stay the Al­la­habad High Court ( HC) judg­ment in a case in­volv­ing eHomes, a Ghazi­abad project by the de­vel­oper Des­ig­narch and its res­i­dent wel­fare as­so­ci­a­tion. The HC judg­ment had not only ironed out the creases in the Ut­tar Pradesh Apart­ment (Pro­mo­tion of Con­struc­tion, Own­er­ship and Main­te­nance) Act 2010 but also in­ter­preted i t sig­nif­i­cantly t o pro­tect home­buy­ers’ in­ter­ests, say­ing the apart­ment own­ers would share the ben­e­fits of any floor area ra­tio (FAR) bought by the de­vel­oper after com­ple­tion of the project.

What is im­por­tant is that the dis­pute over rights to com­mon prop­erty, fes­ter­ing for years be­tween de­vel­op­ers and home­buy­ers, has fi­nally reached the apex court for a so­lu­tion.

Real es­tate de­vel­op­ers have al­ways main­tained that the apart­ments sold do not give the home­buy­ers any rights over the rest of the as­sets or land in their hous­ing so­ci­eties. Var­i­ous dis­putes have arisen with home­buy­ers dis­agree­ing with the de­vel­op­ers. The most sig­nif­i­cant is­sues re­late to own­er­ship over com­mon area and ad­di­tional floor area ra­tio or FAR (What’s it? See box on page 06).

Dur­ing the hear­ing, when the SC Bench en­quired if the apart­ment own­ers could claim a share in the com­mon prop­erty of eHomes by Des­ig­narch, se­nior coun­sel Mukul Ro­hatgi, ap­pear­ing for the de­vel­oper, in­sisted that they (apart­ment own­ers) could claim rights over the land be­neath the build­ings but not over the re­main­ing land. Own­ers also did not have any say in the al­lot­ment of FAR to the de­vel­oper for the hous­ing so­ci­ety, he said.

The SC has re­fused to stay the HC or­der and di­rected the re­spon­dent Ghazi­abad De­vel­op­ment Au­thor­ity and RWA to file counter af­fi­davits along with other doc­u­ments to en­able RWA mem­bers to claim rights over the apart­ments as well as the land, shops and other prop­er­ties in ques­tion.

So the good news is that the home­buy­ers will con­tinue to get the ben­e­fits of the Al­la­habad High Court ver­dict.

In the 2010 case be­tween Des­ig­narch In­fra­struc­ture Pvt Ltd ver­sus the res­i­dents of eHomes, the res­i­dents had de­manded con­trol and rights over the com­mon ar­eas and fa­cil­i­ties. The GDA had, on June 12, 2012, asked Des­ig­narch to hand over the com­mon area and fa­cil­i­ties to the RWA, fail­ing which these would be trans­ferred.

Des­ig­narch had claimed that the act was not ap­pli­ca­ble to the eHomes project as it had been com­pleted be­fore the Ut­tar Pradesh Apart­ment (Pro­mo­tion of Con­struc­tion, Own­er­ship and Main­te­nance) Act had come into force on March 19, 2010.

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The res­i­dents of Des­ig­narch will con­tinue to en­joy the ben­e­fits of the Al­la­habad High Court judg­ment fol­low­ing the Supreme Court’s re­fusal to stay the same

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