Relief To Flat-Owners: Jharkhand High Court Rejects Appeal By Builder, Landowners Attempting To "Grab" Area Earmarked For Common Facilities

Holding that flat-owners are "entitled" to enjoy common facilities, the Jharkhand High Court has dismissed an appeal preferred by builder VKS Realty against quashing of new building plan which permitted construction over 46 kathas common area of Ratan Heights, a residential complex in Morabadi.

The division bench of Acting Chief Justice S Chandrashekhar and Justice Arun Kumar Rai said the original map sanctioned for the property was over 86 kathas, with flat-owners entitled to common facilities built around 46 kathas.

“We are in complete agreement with the writ Court's opinion that the original map for the Ratan Heights was sanctioned over 86 kathas of land, and the flat-owners are entitled to enjoy common facilities built around 46 kathas of land. We hold that the new builder and the land-owners were illegally trying to grab 46 kathas of land which was earmarked for common facilities for the residents of the Ratan Heights. ”

Ratan Heights, originally developed by M/s Vinayaka & Associates, came up on a total area measuring 86 Kathas. However, flat-owners and Society claimed that the 46 Kathas area intended to be put to common use was separated by a wall and a banquet was constructed therein.

In 2018, the Society filed a complaint with the Municipal Commissioner for demolition of the banquet hall which came to be rejected. Their appeal met a similar fate. Meanwhile, the Municipal Corporation processed a revised map of the building as requested by the landowners and builder, leading the residents to file to a writ petition before the High Court. The society and flat owners claimed the new building plan compromised the common area.

In July 2023, the High Court canceled the revised map and ordered the realtor (VKS Realty) and the landowners to remove any construction on common area and hand over the land to the Society within a month.

It is challenging this order that the present appeal was preferred.

At the outset, the division bench noted the Jharkhand Apartment (Flat) Ownership Act, 2011 prescribes that the percentage of the undivided interest of each Apartment (Flat) owner in the common areas and facilities shall have a permanent character and shall not be altered without the written consent of all the Apartment (Flat) owners.

It then pointed that there was substantial evidence on record indicating provisions for common areas, a swimming pool, and other amenities in the original plan, and these facilities were promised to prospective buyers within the premises of Ratan Heights, spanning 86 kathas of land.

Thus, Court said that granting permission to the landowners to apply for a building plan over 46 kathas, part of the original building plan, would seriously prejudice and deprive the flat owners of necessary amenities. It said,

"The writ Court recorded a clear finding that the rights of the flatowners were infringed due to violations in law. There was an imminent threat to the life and safety of the residents in the building and deep cracks had developed on the road jeopardizing the resident's access to critical utilities such as electricity, sewage and water supply lines. The writ Court referred to the evaluation report submitted by the Director (Technical), MECON which pointed out that (i) the under-construction retaining wall was not safe in sliding and over-turning criteria as per design calculation (ii) the base raft was not safe in cantilever condition and (iii) the wall may collapse leading to undue secondary stress to the column supporting the slab over the ramp of the adjoining building."

The single bench had consequently directed the landowners and the new builder to demolish the wall and other constructions over 46 kathas of land, Court held and dismissed the appeal.

Case Title: V.K.S. Realty vs Rinki Yadav and Ors

LL Citation: 2024 LiveLaw (Jha) 81

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