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