A builder in NCR recently decided to use part of the increased floor area ratio (FAR) to make changes in the sanctioned plans of his project. However, he did not directly seek the approval of people invested in his project as mandated under Section 4(4) of the UP Apartment Act 2010. Instead, the city authority issued an advertisement in the local newspaper inviting objections of buyers on behalf of the developer. If no objections were received by buyers within the stipulated period, it would mean that homebuyers had consented to the changes.
What the authority did was against the law as a written consent from each home allottee is mandatory to make any changes in the plan. “All changes to the original plan (of the project) have been made by ignoring the constitutional and statutory rights of the buyers, thereby violating the provisions of the Act. The authority also has no role in obtaining a no-objection from each and every allottee to effect any change in the plan. By issuing an advertisement to seek ‘consent’ from allottees, the authority is trying to circumvent Section 4 (4) of the UP Apartment Act,” say residents in the said project.
Section 4(4) of the UP Apartment Act clearly lays down that “After plans, specifications and other particulars specified in this section as sanctioned by the prescribed sanctioning authority are disclosed to the intending purchaser and a written agreement of sale is entered into and registered with the office of concerned registering authority, the promoter may make such minor additions or alterations as may be required by the owner or owners, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by authorised Architect or Engineer after proper declaration and intimation to the owner: Provided that the promoter shall not make any alterations in the plans, specifications and other particulars without the previous consent of the intending purchaser, project Architect, project Engineer and obtaining the required permission of the prescribed sanctioning authority, and in no case he shall make such alterations as are not permissible in the building bye-laws”.
Under the law, if a developer decides to make changes to the original plan of his project when the homebuyers are still awaiting possession, he is required to get 100% consent of the homebuyers.
But in case an association of owners has already been formed by the buyers who have taken possession of their premises, procedure calls for getting an amendment made in the deed of declaration. The builder will have to make a proposal to the authority and the authority will then have to send the proposal to the apartment owners association and notify the matter in a newspaper explaining the kind of changes the builder is planning. The association then calls for a general body meeting to pass or reject the said proposal through a majority vote and subsequently send it to the authority. The authority is bound by the resolution, explains S K Pal, a Supreme Court lawyer.