It belongs tosociety
if public utility is to bebuilt land belongs to society
projectfallsunderRERA
Amenity Space under MOFA and Municipal Corporation
Among multiple litigations with builder regarding Society vs. Deed of Apartments, perpetual right to construct, etc etc, one of the cases involves alienation of Amenity Space to a private 3rd party to build a Gym / Club for public use. Builder showed a plan in 2001, where he showed clubhouse and Swimming pool in "Amenity Space" in brochure for society. However, he then said it was part of the municipal Corporation rules to utilise it for public, and hence he sold area to a 3rd party to build a gym. In parallel, during the society formation, builder unilaterally filed a Deed of Declaration in 2006. While society was formed, and despite rejection by Jt. Registrar and Minister, the HC upheld Society in interim orders in 2014. Since then, Society has initiated cancellation deed for the Deed of Apartments under the amended MAOA Act. Interim order on Amenity space was against Society. For whatever reasons, the T.I. order wasn't challenged by Society, but the suit was stayed by HC while awaiting outcome of the Society vs. Deed of Declaration case. With cancellation deed, only Society remains. 1. Does the Amenity space belong to Society as per layout filed in 2001, 2004, 2017 (builder tried to build in 2017, civil court slapped it down as violation of MOFA Sec 7)? 2. Even if public utility is to be built, is the underlying land the society's? 3. Since project completion certificate not been issued, and builder got new commencement certificate in Nov-2017, do we fall under RERA? Existing units are 79 and new proposed units are 9. Land is more about 3000 sq meters.
Asked 4 years ago in Property Law
Religion: Hindu
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7 Answers
1. As the matter is sub judice, you may have to await court orders for the desired relief that you have already approached court for.
2. As per law, the society is the owner of all common areas, hence the society has fight along with that foot.
3. If the builder is RERA registered you may approach the authorities if you see light in tunnel.
It is doubtful that RERA may entertain any complaint during pendency of litigation in this regard.
Its with the builder if conveyance is not done
Yes it's society after conveyance
As per clause 3 yes
The order on T.I. (wasn't challenged by then Society MC) was based on Madhuvihar vs. Jayantilal judgment of Bombay HC in 2007. Supreme Court reversed the said HC judgment and remitted it to Bombay HC, which passed a revised order in 2010 (Madhuvihar vs Jayantilal) which was diametrically opposite the 2007 judgment. Can this be used to seek revision of order of T.I.? Or we have to compulsorily await main suit outcome? In a different case (1981/18), builder uses brochure to show intent to construct additional 14 flats upon availability of additional FSI/TDR. That claim in itself is a violation of MOFA as FSI/TFR exhausted in 2004. However, the same brochure does not show the amenity space segregated by a boundary wall, or alienated to a 3rd party (through an agreement of perpetual lease), or an additional structure in the space! In fact, the society thoroughfare shown in brochure is significantly reduced due to the Amenity space demarcated by builder to build a gym for "public at large". Can the brochure be used to show intent of 14 flats, but not to show intent of amenity space being congruous to Society? Chit bhi meri, pat bhi meri, anta mere baap ka? Bombay HC judgment, para 32/33, in Shriniwas West Side County vs. Darode Jog builders, says any change in Amenity space requiring a revised plan needs consent of purchasers. Builder tries to show a vaguely worded consent signed by some purchasers to take possession.. flies foul of informed consent. Is the builder estopped from using brochure to show intent in one case, and ignore it another?!
Asked 4 years ago
Vaguely worded consent is not sufficient
2) if builder wants to build additional flats specific consent of flat owners is necessary
3) brochure of builder is binding on builder
The brochure is not a legally valid document by which the builder can rely upon to build 14 additional flats without an approval from the competent authority besides not obtaining consent from society or majority purchasers.
You can file a fresh suit seeking permanent injunction against the builder to restrain him from going ahead with his proposed additional construction especially at the cost of curtailing the amenities meant for the purchasers.
Yes he is estopped
Dear Client,
Yes as. they shall not be demarcated in the common area handed over to or to be handed over to society. ... But in residential area, such shops/commercial activity not permissible Not count in common area. Shops will belong to land owner as per BDA between them.
The real estate projects which are “on-going” and where the completion certificate has not been issued on the date of commencement of the RERA Act, 2016. So, these are to be registered as real estate projects with the Regulatory Authority.
