Flawed layout plan change process, violation of HC guidelines, Sample objection letters to Notices, Occupancy Certificate and the way out!
As per U.P Apartment Act 2010, No Layout Plan revisions are allowed without the consent of home buyers. For years Noida / Greater Noida Authorities were not ready to accept this fact and were violating the Act in collusion with builders. However, after recent court judgments, they have been forced to take this matter seriously. Both High Court and Supreme Court have ruled that layout plans must not be changed without consent of home buyers.
Recently, both the authorities have started publishing notices in newspapers. Authority invites objections from home buyers for the layout plan changes carried out by builders in past or at present. Buyers are given 30 days notice to file their objections with authorities. On the other hand, builders are forcing home buyers to give consent of layout plan changes during offer of possession.
What does the Law says
As per Section 4(4) of Uttar Pradesh Apartment Act 2010
- After plans, specifications and other particulars are disclosed to the intending purchaser buyer the promoter may make minor additions or alterations as may be required by the owner or owners
- Or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by authorized Architect or Engineer after proper declaration and intimation to the owner.
- The promoter shall not make any alterations in the plans, specifications and other particulars without the previous consent of the intending purchaser.
Builder Buyer agreements can not set aside the state laws and it does not matter if builder have clause that empowers him to make layout plan changes.
Guidelines by Hon’ble Allahabad High Court
Following steps must be carried out in the order mentioned for the revision of layout plans.
- The purchase of additional FAR is not permissible to be appropriate by the promoter without any common benefits to the apartment owners.
- Builder must take consent of the home buyers.
- Builder should file a written application specifying reasons to the competent authority.
- On the receipt of such application a written notice will be given to the association of the apartment owners.
- Authority must publish a public notice in two daily newspapers circulating in that locality.
- The amendment shall be considered by the competent authority after hearing the objector, association of apartment owners and promoter.
- After passing such order, a copy should be sent by competent authority to the promoter, association or apartment owners or the objector as the case may be.
One must note that only those layout plan changes which benefits the home buyers are allowed and rest of them are simply NOT ALLOWED. So, whatever the case may be, in the eye of the court, all layout plan changes (new towers/floors) are illegal as they do not benefit the home buyers.
What is wrong in the current process adopted by Authority and Builders
Both Authorities and Builder lobby are trying to put the buyers in catch 22 situation. Builder says either agree to layout plan changes or forget the possession. Authorities says either don’t file objections or forget the OC, thus the registration. This entire process is flawed and violates the guidelines laid down by Hon’ble Allahabad High Court.
- Builder are asking for buyers consent at the time of possession formalities. This is completely illegal and a coerce technique. As mandated by Court, they should clearly highlight the amendments in plans, reasons for amendments, benefits to home buyers. This exercise must be completed separately and builder must take permission of 2/3rd majority. Taking phase wise consent is illegal. Forcing buyers to give this consent as part of registration process is also illegal.
- Authorities must only publish notices in newspapers and start the process when builder have already complied with the above conditions.
Most of the builders have already made layout plan changes and authorities have already stamped these plans. This is just a cover up exercise. Now the big question is, what should a home buyer do? The correct process is to take the consent first and then apply for layout plan changes. The process can’t be reversed and thus it is contempt of court and violation of Apartment Act.
Projects where layout plans have already been approved by authority shall never receive such notice. Home buyers must send their objections in advance and should not wait for such notices.
“Form A” submitted by builders are illegal and are furnished after layout plan changes are made. As per law, they should have been submitted within 90 days from approval of layout plans.
Options with Home Buyers and Associations
- If the notices have already been published by Authority and buyers approval has not been taken in advance, the individual buyers or the buyer’s associations must file an objection with authority right away. Send as many objections as you can. The Logical Buyer has prepared the replies in consultation with lawyers and home buyers association. Please choose the appropriate draft:
- If the notices are not yet out but builder have made layout plan changes, you should still write to authorities objecting to such layout plan changes in advance. Please refer to this document and change the language as per your project and details
Download draft: Letter to Authority for objection to increase in FAR (Courtsey ~ Zeta Law Chambers)
[Update] : One of our reader have informed us that letters should be marked to “The Chief Architect Planner “ and not the CEO.
Please make minor adjustments to above letters as per actual events and their occurrence in your project.
Can authority deny Occupancy Certificate for objections received
NO. As mentioned above, builder and authorities are playing a trick with home buyers. As per the U.P. Apartment Act, the Occupancy Certificate is not tied to layout plan violations. It is the Authorities who have been violating the rules and allowed the changes at first place. It is the duty of the builder to obtain the OC and not the buyers. A mere objection to layout plan changes can not be the reason to deny OC. Authority anyhow have to settle the objections and send the final decision to home buyers. Their written decision and reasons to deny OC or layout plan changes would strengthen your stand in court. Home Buyers can also seek compensation from builder for the delay in OC if it was at all stuck because of layout plan changes objections.
There shall be some issue with those builder who constructed towers without the approval of authorities. However, such cases are rare as all of the layout plan changes have bee stamped by authorities.
Update: Some of the projects where layout plan violations has happened in past received OC and Noida did not even ask for the objections through notices. In such cases, home buyers should still send objection as per the attached letters.
Courts are the only way out?
You already know authorities are trying their best to cover up the wrongs they have done. Layout plan changes and the process adopted by authorities and builders are flawed and illegal. Home buyers must speak to good lawyers and take up the matter.
There are two types of violations that has happened
- Where builder have already taken the approvals but yet to construct the new towers/commercials etc. This is the case with most of the Noida developers. It is easy to stop such violations and is very straight forward. Buyers should not worry about OC here. Authority can not stop OC because of paperwork.
- Where builder have already constructed the new towers. In this case he may or may not have approvals. This is the case with mostly Greater Noida West builders. In this scenario authority may delay the OC as matter is far more serious. However, home buyers must not give up their rights and must object to changes.
The Logical Buyer suggest that Home Buyers and their Association do not give in to the coerce techniques of builders and authority. Buyers must send their objections for layout plan changes. One should keep in mind that Supreme Court have already put its stamp on no layout plan changes without buyer’s consent. You can read more about it here: SC confirms no layout plan changes without consent
We understand that every project has a different story and buyer’s may have been subjected to different situation. Please share your thoughts so that we can update the article accordingly.