Not happy with changes in your build­ing?

A builder has to take an NoC from res­i­dents in an apart­ment block if he in­tends mod­i­fy­ing sanc­tioned build­ing plans

HT Estates - - HTESTATES - Sunil Tyagi

The judg­ment pro­nounced by the Al­la­habad High Court in the Des­ig­narch In­fra­struc­ture Pri­vate Limited case ver­sus the vice chair­man of the Ghazi­abad De­vel­op­ment Author­ity ( GDA) and oth­ers dated Novem­ber 14, 2013 (Des­ig­narch case) has gar­nered much at­ten­tion.

I n one of t he petit i ons clubbed in the mat­ter, the de­vel­oper had been al­lot­ted pur­chasable floor area ra­tio (FAR) by the sanc­tion­ing author­ity to un­der­take additional con­struc­tion in the apart­ment com­plex. The de­vel­oper ap­plied for an amend­ment of the orig­i­nal sanc­tioned build­ing plans for con­struct­ing additional floors, additional build­ings and park­ing area which al­tered the en­ti­tle­ments of ex­ist­ing pur­chasers/ al­lot­tees to the open and com­mon ar­eas of the com­plex. The re­vised build­ing plans had been ap­proved by Ghazi­abad D e v e l o p m e n t Au t h o r i t y. How­ever, it sub­se­quently came to light that the de­vel­oper had not ob­tained prior writ­ten con­sent of pur­chasers/ al­lot­tees, be­fore sub­mis­sion of such re­vised build­ing plans. Hence, the al­lot­tees prayed for quash­ing of the re­vised build­ing plans as well as quash­ing of al­lot­ment of pur­chasable FAR to the de­vel­oper.

Al­though the ap­peal against the or­der is now pend­ing be­fore the Supreme Court, it is im­por­tant to high­light pro­vi­sions of the Ut­tar Pradesh Apart­ment ( Pro­mo­tion of Con­struc­tion, Own­er­ship and Main­te­nance) Act, 2010 ( UP Act) and cor­re­spond­ing Ut­tar Pradesh Apart­ment Rules, 2011 (Rules) re­gard­ing du­ties of the pro­mot­ers to­wards home­buy­ers on the is­sue of de­scrip­tion or change in any de­scrip­tion of build­ing plans of projects in Ut­tar Pradesh. First, a pro­moter is re­quired to fur­nish de­tails of all project ap­provals and per­mis­sions to buy­ers at the ini­tial stage of book­ing. Sec­tion 4 of the UP Act, per­tain­ing to the du­ties of pro­mot­ers, clearly stip­u­lates that any pro­moter who in­tends to sell an apart­ment has to make a full and true dis­clo­sure about var­i­ous facts re­gard­ing the project, in writ­ing, to an in­tend­ing pur­chaser such as rights and ti­tle of pro­moter in the project land, plans and project ap­provals that have been granted or sub­mit­ted for ap­proval, etc.

A pro­moter is also re­quired to sub­mit a le­gal doc­u­ment called ‘ Dec­la­ra­tion’ t o t he com­pe­tent author­ity within a pe­riod of 12 months from the date of ap­proval of sanc­tioned build­ing plans. This es­sen­tially con­tains im­por­tant de­tails of the project, such as to­tal num­ber of floors and apart­ments to be con­structed, de­scrip­tion of com­mon ar­eas and fa­cil­i­ties and limited com­mon ar­eas and fa­cil­i­ties, per­cent­age of un­di­vided in­ter­est in com­mon ar­eas and fa­cil­i­ties re­lated to each apart­ment, to name a few.

The UP Act clearly states that it is in­cum­bent upon a pro­moter to en­close a true copy of the dec­la­ra­tion with the deed of trans­fer ex­e­cuted in favour of the buyer.

In the Des­ig­narch case the court fur­ther went on to hold that fail­ure to sub­mit the dec­la­ra­tion or fail­ure to en­close its true copy with the deed of trans­fer would dis­en­ti­tle the pro­moter from claim­ing rights in com­mon ar­eas and fa­cil­i­ties, limited com­mon ar­eas or in­de­pen­dent ar­eas in the project.

Where any changes to the dec­la­ra­tion filed is ne­ces­si­tated by rea­son of any re­vi­sion in the sanc­tioned build­ing plans, a pro­moter is re­quired to fol­low the spe­cific pro­ce­dure that has been out­lined un­der the UP Act. In­tend­ing buy­ers/own­ers who find them­selves in the sit­u­a­tion where the project plans have been sig­nif­i­cantly al­tered or mod­i­fied, should bear in mind that as per the UP Act, prior to un­der­tak­ing mod­i­fi­ca­tions of sanc­tioned build­ing plans, a pro­moter is re­quired to first ob­tain the ap­proval of as­so­ci­a­tion of apart­ment own­ers of the project, as any such change would al­ter an apart­ment owner’s rights and en­ti­tle­ments in com­mon ar­eas and fa­cil­i­ties of the project.

This is be­cause un­der this Act, pro­por­tion­ate un­di­vided in­ter­est in com­mon ar­eas and fa­cil­i­ties of the project is deemed to be con­veyed to an apart­ment owner along with con­veyance of the apart­ment. The rel­e­vant de­vel­op­ment author­ity may de­mand an NOC from apart­ment own­ers/al­lot­tees to be fur­nished be­fore al­low­ing any al­ter­ation in sanc­tioned build­ing plans be­fore grant­ing ap­proval.

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