Land Shown As Common Area Belongs To Flat Owners, Builder Cannot Sell It: Madras High Court

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 (undivided share) 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.

Justice R Subramanian and Justice K Kumaresh Babu thus disposed of a petition by the flat owners' association by directing the Chennai Metropolitan Development Authority to handover the vacant non-FSI building to the flat owners.

The Chennai Metropolitan Development Authority will forthwith handover the vacant Non-FSI building to the flat owners' association. The execution of the rectification deeds shall be completed within a period of three months from today.(20.01.2023)

The flat owners had contented that the disputed area was shown as a common facility as a portion of non-FSI construction. Thus, it would belong to the flat owners. The builders had wrongfully tried to convey this area to third parties.

The builders however contended that since the ownership in the land was not conveyed in full to the purchasers of the apartments, the flat owners could not claim the ownership of the non-FSI structure.

The court however did not accept this contention. It held that the non-FSI was not salable. Thus any conveyance to the third parties was in violation of planning permission.

The conveyance of undivided share in the land along with Non-FSI block to the 2nd respondent by the 3rd respondent itself is highly irregular and against the sanctioned planning permission. 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.

The court added that the builder was not a novice and thus it was highly improbable to accept the contention of the builder that there had been a mistake in calculation of the undivided share of the land. Thus, the builders had tried to mislead the buyers by adopting a wrong formula.

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.

The court further held that when the builder itself in previous proceedings had stated that it would restore the building to its original position and ensure that it would be used for Non-FSI purposes, it could not go back and claim that they were entitled to use it for other purpose.

Thus, the court ordered accordingly and directed for handing over the non-FSI area to the flat owners.

Case Title: Abbotsbury Owners' Association v. The Member Secretary

Citation: 2023 LiveLaw (Mad) 43