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Allahabad High Court · body

2018 DIGILAW 2245 (ALL)

POONAM TANDON v. STATE OF U. P.

2018-10-30

A.P.SAHI, AJIT KUMAR

body2018
JUDGMENT By the Court.—Heard Sri Rahul Choudhary, learned counsel for the petitioners, learned standing counsel for first respondent, Sri B.B. Johri for the respondent No. 2 to 4 and Sri Anurag Khanna learned senior counsel alongwith Sri Syed Faheem Ahmad, for the fifth respondent. 2. The dispute centers around the utilization of an “additional parking area” which is part of the “independent area” of the sanctioned plan of the apartment, for which a permission has been granted by the respondent No. 3 on behalf of the authority allowing the additional parking area of 19330 sq. meters (inclusive of stores) for being settled by the promoter. 3. In order to understand the controversy, we may usefully extract the definition of the word “independent areas” contained in Section 3(p) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010. The same is reproduced hereinunder-: 3(p) “independent areas” means the areas, which have been declared, but not included as common areas for joint use of apartments, and may be sold by the promoter, without the interference of other apartment owners;” 4. The promoter has to furnish a deed of declaration in terms of Section 12, of the 2010 Act read with Rules 3 and 4 U.P. Apartment Promotion and Maintenance Rules 2011. Section 12, Rules 3 and 4 aforesaid are extracted hereinunder-: “CHAPTER—V DECLARATION OF BUILDING AND DEED OF APARTMENT Section 12. The promoter has to furnish a deed of declaration in terms of Section 12, of the 2010 Act read with Rules 3 and 4 U.P. Apartment Promotion and Maintenance Rules 2011. Section 12, Rules 3 and 4 aforesaid are extracted hereinunder-: “CHAPTER—V DECLARATION OF BUILDING AND DEED OF APARTMENT Section 12. Contents of declaration—(I) The declaration shall be submitted by a promoter in the office of the Competent Authority in respect of a building constructed, after the commencement of this Act, in such form, within such period and, in such manner, as may be prescribed, and shall contain full and true particulars of the following, namely: (a) description or the land, on which the building and improvements are, or are to be located, and whether the land is freehold, or leasehold; (b) description of the building, stating the number of stories and basements, the number of apartments and principal materials or which, it is, or, is to be constructed; (c) the number of each apartment and a statement of its location, approximate area, number of rooms and the immediate common area to which it has access and any’ other data necessary for its proper identification; (d) description of the common areas and facilities; (e) description of the common areas and facilities if any, stating to which apartment’s, their use’ is reserved; (f) value of the property and of each apartment, and the percentage of undivided interest in the common areas and the facilities appertaining to each apartment and its owner, for all purposes, including voting; (g) particulars of encumbrances. if any, on the property of apartment and its undivided interest at the date of the declaration; (h) such other particulars as may be prescribed. (2) The declaration referred to in sub-section (I) may be amended under such circumstances and in ouch manner’ as may be prescribed. Rule 3. Form of Declaration (sub-section-1 of Section 12)—The declaration shall be submitted by a promoter under sub-section (1) of Section 12 in Form “A”, which shall be submitted by the promoter, within a period of 12 months, from the date of approval of the plans. Where the building has been constructed, or is under construction, prior to the commencment of these Rules, the Declaration shall be submitted within 90 days, from the date of such commencement. Rule 4. Where the building has been constructed, or is under construction, prior to the commencment of these Rules, the Declaration shall be submitted within 90 days, from the date of such commencement. Rule 4. Amendment of Declaration (sub-section 2 of Section 12)—(1) The Declaration, submitted by a promoter, under Rule 3 may be amended, at any time, by the promoter, if, - (a) the Declaration suffers from any clerical, or arithmetical mistake or error, arising therein, from any accidental slip, or omission; or (b) the amendment is necessitated by reason of any revision in the sanctioned plan of the building; or (c) the proposed amendment is just and reasonable; Provided that the amendment made by the promoter shall not violate the building Bye-laws,sanctioned building plan or the contractual obligations of the promoter. (2) For making amendment in the declaration, referred to, in sub-rule (1), the promoter shall move a written application to the Competent Authority, with such fees, as may be determined, by the Competent Authority, specifying therein the circumstances and reasons for amending it and such application shall be supported, by an Affidavit of the promoter, or of a person, authorized, on his behalf, alongwith the necessary documents. (3) The Competent Authority, on receipt of the application under sub-rule 2, shall issue a written notice to the Association of the apartment owners of the building, and shall also cause the publication of a public notice, in two daily newspapers, circulating in that locality. (4) On receipt of the objections, if any, received within 30 days, from the date of publication of notice under sub-rule (3), the Competent Authority shall, after giving an opportunity of being heard, to the objector, Association of apartment owners, and promoter, pass such order thereon, as it deems fit, as expeditiously, as possible. (5) A true copy of the order passed under sub-rule (4) shall be sent by the Competent Authority to the promoter, Association of the apartment owners, or to the objector, as the case may be. 5. A supplementary-affidavit has been filed by the petitioner and an affidavit of compliance has been filed by the respondent No. 5. We are referring to these two affidavits in order to further clarify the status of the independent area as declared by the promoter in the form which is annexure F to the declaration. 5. A supplementary-affidavit has been filed by the petitioner and an affidavit of compliance has been filed by the respondent No. 5. We are referring to these two affidavits in order to further clarify the status of the independent area as declared by the promoter in the form which is annexure F to the declaration. The same is extracted hereinunder : Annexure F Details of the “independent areas” of the building to which the present declaration relates “independent areas” as defined in S (P) of the Act (i) Additional Parking 19330 Sq. mtrs. (ii) Servant quarter NA (iii) Club with independent access NA (iv) Convenient shops (GF, FF & SF) 1708.29 sq. mtrs. (v) Convenient shops open lawn area 1322.208 sq. mtrs. (vi) Nursery School 109.466 sq. mtrs. (vii) Terrace attached to an apartment. (If applicable) *Area of (v) not part of covered area NA TOTAL 21447.76 6. The said area about which the dispute has arisen forms part of the basement floor area of the sanctioned plan. The bye laws which have been published that govern the maintenance and sanction of respective areas, contains a prescription of the manner of utilization of basement parking which is extracted herinunder : Basement Parking - (i) In plots larger than 12000 sq. mtrs., the basement shall be allowed upto minimum setback, 60 mtrs. There will be no restriction on the number of levels of basement subject to mechanical - as per provisions in National Building Code-2005, water proofing and structural safety. Green trees shall have to be planted in setback as per landseaping norms of the regulation. (ii) Height of first basement above ground level will be 1.5 mtrs. Below the roof slab. Where still on podium parking is permitted, the first basement roof will be leveled with the ground and the roof slab of the extended basement up to envelop line shall be designed for the fire tender load. (iii) The height of basements from floor o ceiling shall be maximum up to 4.5 mtrs. iv) the ramp within setbacks shall be permissible subject to free and convenient movement of fire tender. (v) Adequate fire safety, light and ventilation and air change through mechanical means as provided as per provisions in National Building Code 2005. (iv) The basements may be used only for parking, services like fire rooms and storage of non hazardous materials. 7. iv) the ramp within setbacks shall be permissible subject to free and convenient movement of fire tender. (v) Adequate fire safety, light and ventilation and air change through mechanical means as provided as per provisions in National Building Code 2005. (iv) The basements may be used only for parking, services like fire rooms and storage of non hazardous materials. 7. A perusal thereof would indicate that according to the bye laws basement parking may by used only for parking services like fire rooms and storage of non hazardous material. The affidavit filed on behalf of the fifth respondent categorically recites that they are to utilize a very small area of 1793 sq. meter for the purpose presently involved and that it would be utilized only for the aforesaid purpose as prescribed in the bye laws. 8. Learned counsel for the petitioners contends that utilization for a storage would involve construction that would require an amendment in the declaration which can be carried out only by complying Rule 4 of the 2011 Rules extracted hereinabove. 9. A perusal of Rule 4 indicates that if the declaration is sought to be amended, then the contingencies indicated therein have to exist and the amendment made by the promoter shall not violate the building bye laws, sanctioned building plan or any contractural obligation of the promoter. The contention of the petitioner is that the sanctioned plan on the basis where of the apartment has been constructed nowhere specifies the utilization of that part of the disputed area of the basement floor as a store or any other purpose except additional parking. Learned counsel submits that this has been specifically indicated in the declaration form that the area would be utilized only as additional parking but the impugned permission which has been granted would now allow the promoter to utilize it as an independent area in whatever form subject to the definition of Section 3(p). Learned counsel submits that even if that is permissible, an amendment has to be sought in terms of Rule 4 and that also cannot be achieved unless the sanctioned plan is revised for which the promoter/builder will have to apply for a revised sanction. Subject to that, a declaration can be amended in accordance with procedure prescribed under Rule 4. 10. Subject to that, a declaration can be amended in accordance with procedure prescribed under Rule 4. 10. Having considered the aforesaid provisions and the submissions raised what we find is that the original sanctioned plan and declaration do not register any part of the basement floor as storage area or other construction or utilization within the additional parking area. The respondent No. 5 therefore has to comply with the aforesaid terms and conditions of the Act and Rules and consequently if the utilization of the independent area involves construction or alteration in the sanctioned plan, then in that event a revised plan will have to be sanctioned by the authority and the same would also be subject to the procedure for amendment of the declaration under Rule 4. Consequently, in the background aforesaid, the permission which has been granted under the impugned order dated 23.4.2018 has to be subject to the aforesaid conditions. 11. In the above back ground, Sri Anurag Khanna learned senior counsel upon instructions from the respondent No. 5 has stated that the respondent No. 5 will not proceed to utilize the permission dated 23.4.2018 unless the plan is revised or the declaration is amended as referred to hereinabove. He submits that the respondent No. 5 will apply for a revised plan and then seek an amendment in the declaration under Rule 4 for the said purpose. 12. Consequently, the writ petition is disposed off with a direction that the respondent No. 5 shall proceed to avail the order/permission dated 23.4.2018 for utilization of the independent area only subject to the aforesaid conditions. The constructions shall not proceed without complying with the aforesaid conditions. 13. The writ petition stands disposed off accordingly.