Modification in the Sanctioned Plan of the project
- Thursday 18th July 2019
- Author: Shreya Uppal
Before the implementation of the RERA Act, 2016 there were concerns regarding the imposition of terms which allowed developers to alter, revise, amend the original layout/plans as per their own conveniences.
In cases like these, the helpless homebuyers who had their funds blocked were left with the no option but to adhere such one-sided pro-developers terms and conditions.
With the enforcement of RERA Act, 2016, it is incumbent on the part of developers to abide by the sanctioned plans, layout plans.
Before the implementation of the RERA Act, 2016 there were concerns regarding the imposition of terms which allowed developers to alter, revise, amend the original layout/plans as per their own conveniences. In cases like these, the helpless homebuyers who had their funds blocked were left with the no option but to adhere such one-sided pro-developers terms and conditions. However, after the introduction of the RERA Act, 2016 the homebuyers finally took a breath of relief and were feeling more safe with its provisions.
With the enforcement of RERA Act, 2016, it is incumbent on the part of developers to abide by the sanctioned plans, layout plans, and specifications as originally approved by the RERA Authority.
Initially, it is important to understand what does a sanctioned plan means under the provisions of the RERA Act, 2016.
As per Section 2 (zq) of the RERA Act, 2016, "Sanctioned plan" means the site plan, building plan, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if applicable, permissions such as environment permission and such other permissions, which are approved by the competent authority prior to start of a real estate project.
As per Section 2 (d) of the RERA Act, 2016, "allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent.
Provisions regarding Sanctioned Plan:
1. As per Section 14 (1) of the RERA Act, 2016, the proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.
2. According to Section 14 (2) of the RERA Act, 2016, any clause contained in any agreement, the contract shall not prevail regarding the alteration of the sanctioned plan approved by the competent authority. Therefore the promoter has no right to make any additions and alterations in the sanctioned plans without the prior written consent of the person owning that apartment.
An instance of the “prior written consent” has been observed in a recent case of Madhuvihar Cooperative Housing Society and others V/S Jayantilal Investments and others, 2010 (6) Bom CR 517, where the Bombay High Court held that the consent of a home buyer must be an ‘informed consent’, i.e., one which is freely given after the flat purchaser is placed on notice by complete and full disclosure of the project or scheme that the builder plans to implement. Further, the consent must be specific and relatable to a particular project or scheme of the developer which is intended.
3. Further, Section 14 (2) (ii) of the RERA Act, 2016 clarifies that any alterations in the layout of the entire project and the common areas of the building, cannot be effected unless the developer obtains the prior written consent of two-thirds of all the home buyers (or allottees) in the project. Thus, the developer is duly bound to adhere to the approved plans during the construction and cannot deviate from the same.
Note: Any Forced Consent obtained by the developer from the homebuyer to approve the alterations to the sanctioned plan could be held as Void under Section 19 of the Indian Contract Act, 1872. Therefore, if a home buyer has given consent under pressure from a developer, he can easily challenge the same and get it declared null and void under Section 19 of the Indian Contract Act, 1872.
4. According to Section 11(3) of the RERA Act, 2016, the promoter at the time of booking and issue of allotment letter shall be responsible to make available the allottee the sanctioned plan, layout plans, along with specifications, approved by the competent authority by display at the site or such other place as specified by the regulations made by the Authority.
5. Similarly the allottee under Section 19(1) and 19(5) of the RERA Act, 2016 is entitled to obtain the information pertaining to the sanctioned plan, layout plan by the Promoter for the real estate project. Failure on part of the promoter to provide the information and details of the sanctioned plan, then allottee shall have a right to withdraw from the project and promoter shall be liable to pay the entire amount paid by the allottee with the applicable interest
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