Flat owners’ consent must for new buildings within housing societies, rules Bombay high court

If the developer is going to construct anything and take away the open space, it is imperative he disclose the proposal in the layout plan shown at the time of executing agreements for sale of flats

The Bombay high court (HC) on Saturday ruled that a developer cannot start additional construction on open spaces of housing complexes without the consent of flat owners.

“A developer cannot disclose one or the other buildings or areas for additional construction and then construct it somewhere else. He must keep to his disclosure,” ruled the HC.

Justice SC Gupte said a recreation ground (RG) is an important facility offered to buyers collectively. If the developer is going to construct anything and take away the open space, it is imperative he disclose the proposal in the layout plan shown at the time of executing agreements for sale of flats.

“Any recreation area within the complex is for the benefit of all flat purchasers, irrespective of their flat’s location and it does not matter if such an area is compulsory RG or additional RG,” justice SC Gupte said.

The court was hearing an appeal filed by Thane resident Vitthal Patil, questioning the judgements of lower courts rejecting his plea against the additional construction sought by his developer, Real Estate Division of Kores (India) Ltd.

In January 2007, Patil purchased a flat in Kores Nakshatra, Thane. In the brochures given to him, it was shown that the layout consists of 15 buildings and various open spaces and amenities.

In 2009, the purchasers were given possession of their flats. But in October, residents noticed some construction activity in the complex. After they objected to it, the Thane Municipal Corporation (TMC) rejected the developer’s proposal for additional construction.

Patil said the developer amended the plans and proposed construction of an additional building on the space earmarked as recreation ground in the original layout.

After the TMC approved the developer’s revised plans for additional construction in March 2010, Patil approached the civil court in Thane. On December 20, 2014, the civil judge (senior division) rejected his suit.

Patil then approached the high court after the district judge at Thane, on March 14, 2016, rejected his appeal against the civil judge’s order.

The high court on January 25 struck down both the lower court orders and said the lower courts misled themselves by taking into consideration irrelevant aspects like Patil’s flat was not facing the RG, nor had he paid any premium for the frontage. Besides, they also took into consideration that the RG was additional RG and was about 30 metres away from his flat.

Referring to various rulings of the Supreme Court, justice Gupte said Section 7 and Section 7A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (MOFA), permits a developer to carry out construction only in accordance with the layout plan disclosed at the time of entering into contracts for sale of flats. The developer cannot put up additional construction without express consent of the flat purchasers.

Gupte said if the building site contains future development potential, the developer must disclose the same to flat buyers at the time of executing agreements and specify position of additional construction within the layout.

“A developer cannot disclose one or the other buildings or areas for additional construction and then construct it somewhere else. He must keep to his disclosure,” Gupte said. The court has now remanded the matter back to the civil judge (senior division) at Thane for fresh adjudication.