CHENNAI: Holding that the portion of land shown as a common area during the development of property belongs to the owners of such facility, a division bench of Madras High Court recently ordered handing over a building constructed on such land to the flat owners’ association.
Disposing of a writ petition filed by Abbotsbury Owners Association, Alwarpet in Chennai, regarding the non-FSI area, justices R Subramanian and K Kumaresh Babu, said, “Once the land is shown as common area and the common facility is developed, the land will belong to the owners of the such common facility.” They added that if there is a mistake in the calculation of the undivided share (UDS), it has to be rectified by the builder who cannot take advantage of the mistake and claim that the purchasers must be made to pay for the unsold portion of the UDS.
The case pertains to the ownership of a building constructed on a common area of developed property in Alwarpet by Ramaniyam Real Estate Limited. The firm constructed 77 flats in 2001 on a piece of land and had proposed to build a software technology park with a built-up area of about 2 lakh sq. ft. on the said land, but the project did not take shape.
A building was raised in the common area, which the builder contended would not be part of the common area and sold it to a party who let it out for non-residential purposes. The flat owners association filed the writ petition seeking handing over of the building.
Concurring with the petitioner, the bench held that the non-FSI area is not saleable and therefore, such sale by the builder is “clearly in violation of the planning permission granted.” The court said the builder “had hoodwinked the purchasers by adopting a wrong formula for calculating the undivided share in the land,” and noted that the undivided share in the land is normally calculated by dividing the land area by the total constructed area and multiplying by the size of the apartment.
The court directed the builder to ensure the execution of rectification deeds for UDS in favour of each individual flat owner, and any stamp duty payable on such rectification should be borne by the individual flat owners. CMDA was ordered to hand over, forthwith, the building to the flat owners’ association and execution of the rectification deeds shall be completed within three months.