Land Marked As Common Area During Development Of Residential Flats Belonged To Flat Owners & Not Builder- Madras HC

The Madras High Court held that land marked as ‘common area’ during development of residential flats belonged to the flat owners and not the builder and further directed the Chennai Metropolitan Development Authority to handover a non-Floor Space Index (FSI) building to Flat Owner’s Association of the apartment block on whose land such non- FSI building had been constructed.

The Bench of Justice R. Subramanian and Justice K Kumaresh Babu observed that “Once the land is shown as a common area and common facility is developed, the land will belong to the owners of such common facility. If there is a mistake in the calculation of the UDS, it has got to be rectified by the builder. The builder cannot take advantage of the mistake and claim that the purchasers must be made to pay for the unsold portion of the UDS.”

Advocate N. Muralikumaran appeared for the petitioner/ association and Advocate P. Veena Suresh appeared for the respondent.

In this case, the Writ Petition was preferred before the High Court by Abbotsbury Owners Association i.e., a flat owner’s association wherein directions were sought against the respondent no. 3-builder to handover the possession of the portion of the non-FSI building consisting of the basement and ground floor.

It was contended by the petitioners that according to the sanctioned construction plan, the disputed portion of the building was shown as a generator block which constituted as portion of Non-FSI constructions. It was intended to be a common facility for the residents of the apartment and therefore, the association was the rightful owner of the said portion.

On the other hand, the builder argued that ownership of the land was not conveyed in full to the purchasers, and that all the owners had confirmed in the handing over agreements that the Non-FSI building was not part of the common area and the builder retained the same.

Consequently, the builder claimed the ownership over the land and the Non-FSI building and sold the same to the 2nd respondent (private purchaser) and this lead to the Chennai civic body intervening and ensuring that this non-FSI building was kept vacant.

It was argued that the conveyance of undivided share in the land along with Non-FSI block to the private purchaser by the builder itself was highly irregular and against the sanctioned planning permission.

The Court said that “The Non-FSI was not salable area and therefore, the sale by the 3rd respondent to the 2nd respondent is clearly in violation of the planning permission granted. Though it is contended that there was a genuine mistake in calculation of the undivided share of the land and the total construction area was taken as 2,00,000 sq.ft instead of 1,30,000 sq.ft, by oversight, we are unable to buy that argument."

The Court noted that the builder was not a novice but was a prominent builder and further, seeing the conduct of the builder throughout the proceedings, the Court believed that the builder had hoodwinked the purchasers by adopting a wrong formula for calculating the undivided share in the land.

Therefore, the Court directed, the builder respondent to ensure that the rectification deeds were executed in favour of each individual flat owners and the Chennai Metropolitan Development Authority to forthwith handover the vacant non-FSI building to the Flat owners.

Accordingly, the Writ Petition was disposed of.

Cause Title- Abbotsbury Owner’s Association v. The Member Secretary

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