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Flat breather for Gurgaon: Builder can’t sell common area,says HC

In a major relief for flat owners in Gurgaon and other areas of Haryana,the Punjab and Haryana High Court has asked the Director of Town and Country Planning...

Written by Tanushree Roy Chowdhury | Gurgaon |
September 23, 2009 12:38:46 am

In a major relief for flat owners in Gurgaon and other areas of Haryana,the Punjab and Haryana High Court has asked the Director of Town and Country Planning (DTCP) to look into objections filed by residents of Silver Oaks Society in Gurgaon against their builder.

The verdict defines the status of common areas or properties in group housing complexes in the state.

The residents contend that the builder,DLF,sold off convenience shops,community centre and club,parking places and nursery school in the apartment complex to private parties.

On September 9,the High Court Bench of Justices Adarsh Kumar Goel and Daya Chaudhary asked the DTCP to reexamine the declaration filed by DLF under the Haryana Apartment Ownership Act,1983,while transferring properties to buyers. “The competent authority (DTCP) is to be guided by provisions,objects and spirit of the Act,” the Bench observed.

Under the Act,an apartment owner acquires right of ‘undivided interest’ in common areas and facilities (including community centres,clubs,parking space and nursery etc) in the percentage specified as part of the declaration. The Act was first notified in 1986,and again in November 1997.

The DTCP has been given six months from the date of order — September 9 — to decide on the residents’ objections. The court also ordered that owners in Silver Oaks,which has 749 apartments,who were denied membership of the condominium association be permitted to join it. The verdict said fresh elections should be held in two months under the DTCP’s supervision.

Giving its verdict,the court pointed to the sale deed,which says,“The sale price is inclusive of common services,including land or common use in the said plot of land”. This is also defined as 14.75 acres — the total area of the housing complex.

The deed also defines in the terms of group housing scheme in which external development charges,among others,includes schools,community centre,swimming pool etc.

“The coloniser (builder) cannot classify common areas as ‘apartment’ and thereby claim ownership in such areas and deny statutory rights of apartment owners,” the court held. “These common areas and facilities are indivisible and cannot be sold/divorced from the apartments under the provisions of Section 3(b) and Section 6 of the Act.

“(The) builder has no discretion to retain any such area or any facility,which is for common use,for himself.” That,the court held,is “clear breach” of the provisions of the Act.

The Bench also said that provisions of the Act would apply to every apartment lawfully constructed for residential purposes,integrated commercial complexes,flatted factories,Information Technology industrial units,cyber park and Cyber City.

Col B K Dhawan,president of the Apartment Owners Association (Haryana),and Silver Oaks Society association president A N Mehta welcomed the order,saying it will help apartment owners in many other areas.

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