'Common area' in flat compound belongs to flat owners, not builder: Madras High Court

Land marked as "common area" during development of residential flats belongs to flat owners and not the builder, the Madras High Court recently held [Abbotsbury Owners' Association v The Member Secretary]. .In a judgement passed on January 20, a bench of Justices R Subramanian and K Kumaresh Babu directed the Chennai Metropolitan Development Authority to handover a non-Floor Space Index (FSI) building to a flat owners' association of the apartment block on whose land such non-FSI building had been constructed.."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 (undivided share), 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," the high court said. The bench was here a petition filed by 'Abbotsbury Owners Association', a flat owners' association seeking directions from the High Court to the respondent-builder to handover to the association the possession of the portion of the above mentioned non-FSI building consisting of the basement and ground floor. The petitioner-association told the Court that as per the original construction plan, the disputed portion of the building was shown as a generator block, constituting a portion of non-FSI constructions. It was intended to be a common facility for the residents of the apartment. Therefore, the association is the rightful owner of the said portion of the building and land upon which it has been constructed, it was argued.However, the builder had subsequently developed the said plot into a building and handed it over to another private party. .Following such breach of the original construction plan, the Chennai civic body had intervened and ensured that this non-FSI building was kept vacant. The association, therefore, argued that civic body should transfer the possession of such building to them. The builder on the other hand contended that the original construction plan had inadvertently, by way of an "oversight" included the disputed portion of land. It further said that the non-FSI building had been handed over to the original owners of the plot of the land and, hence, the Association could not claim ownership of the non-FSI structure..The High Court, however, refused to accept the builder's arguments. The bench said that the non-FSI area was not saleable and therefore, such sale by the builder was "clearly in violation of the planning permission granted." "The Non-FSI was not salable area and therefore, the sale by the 3rd respondent (builder) to the 2nd respondent (private party) 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 square feet instead of 1,30,000 square feet by oversight, we are unable to buy that argument," the High Court said. The Court said the builder had been in business for years, and was clearly not a novice.It was likely that the builder had "hoodwinked the purchasers by adopting a wrong formula for calculating the undivided share in the land," the Court opined.."The 3rd respondent is not a novice, it is a prominent builder. The conduct of the 3rd respondent through out the proceedings and the earlier proceedings lead us to formally believe that the 3rd respondent had hoodwinked the purchasers by adopting a wrong formula for calculating the undivided share in the land. Normally, the undivided share in the land is calculated by dividing the land area by the total constructed are and multiplying it by the size of the apartment," the Court said. It, therefore, directed the builder to ensure execution of rectification deeds in favour of each individual flat owner and directed the Chennai Metropolitan Development Authority to "handover, forthwith, the vacant non-FSI building to the flat owners association," adding that the execution of the rectification deeds must be completed within the next three months. Advocate N Muralikumaran for appeared for the petitioner Association. Advocate P Veena Suresh appeared for the Chennai Metropolitan Development Authority.Advocate S Sundaresan appeared for the respondents, the private party and the builder. .[Read Judgment]