Case Note & Summary
The petitioner, Keerthi Harmony Apartment Owners Association, challenged a building licence granted by the Bruhat Bengaluru Mahanagara Palike (BBMP) in favour of certain land owners for the construction of an apartment building. The dispute concerned a 5 acre 16 guntas property which was the subject of a Joint Development Agreement between the builder (M/s Keerthi Estates Pvt. Ltd.) and the land owners. The builder obtained a building plan approval from the Bangalore Development Authority (BDA) on 29.03.2007, which showed a 15 meter road widening area bisecting the property, with a portion of 1104.40 sq.m. reserved for Rain Water Harvesting Unit and Sewage Treatment Plant. The builder sold apartments to individual purchasers, executing sale deeds that conveyed an undivided share in the entire property (Schedule A) along with the constructed flat. The sale deeds stated that the purchasers acquired rights, title and interest in the entire property. Subsequently, the land owners, without informing the apartment purchasers, applied for and obtained a separate building licence from the BBMP to construct another apartment on the land reserved for RWHU and STP. The petitioner's association, representing the owners of flats in the original apartment, filed a complaint with the BBMP on 25.09.2019, requesting action against the illegal construction, but no action was taken. The petitioner thus approached the High Court under Articles 226 and 227 of the Constitution seeking a direction to the BBMP to consider its complaint. The court, after hearing the parties, noted that the sale deeds conveyed undivided share in the entire property, including the land marked for common amenities. It observed that the BBMP's grant of a building licence over that land was in violation of the earlier sanctioned plan and the rights of the apartment owners. The court consequently directed the BBMP to consider the petitioner's complaint and pass an appropriate order in accordance with law, thereby protecting the common amenities and the interest of the apartment purchasers.
Headnote
A) Property Law - Conveyance of Undivided Share - A sale deed conveying a specified percentage of undivided share, right, title and interest in the entire schedule property (measuring 5 acres 16 guntas) along with the right to construct and own an apartment in the building constructed thereon transfers an interest in the entirety of the land, including any portion shown in the approved plan as remaining area reserved for common amenities - Karnataka Apartments Ownership Act, 1972 - The sale deeds executed in favour of the apartment purchasers described the entire property as Schedule A, and the undivided share was computed as a percentage of that total extent; the court observed that this conferred upon the purchasers rights over the land reserved for Rain Water Harvesting Unit and Sewage Treatment Plant as per the sanctioned building plan dated 29.03.2007 (Paras 2(i), 2(k), 2(l)). B) Building Regulation - Sanction of Building Plan and Grant of Licence - Once a planning authority approves a building plan showing a specific area as reserved for common utilities, it is not open to the builder or land owners to obtain a fresh building licence from the municipal corporation for construction on that reserved area; the earlier sanctioned plan creates rights in favour of the apartment owners that must be respected - Bruhat Bengaluru Mahanagara Palike Act / Karnataka Municipal Corporations Act, 1976 - The building plan approved by BDA on 29.03.2007 clearly earmarked 1104.40 sq.m. as remaining area for RWHU and STP; the BBMP subsequently granted a licence to the land owners for construction of another apartment building on that land disregarding the earlier plan; the court noted that such licence was contrary to the interests of the apartment purchasers who had been assured common amenities (Paras 2(e), 2(f), 2(g), 1). C) Administrative Law - Writ of Mandamus - When a statutory authority fails to consider a complaint alleging illegal construction in violation of an earlier sanctioned plan, a writ petition under Article 226 can be entertained to direct the authority to discharge its statutory duty and pass an appropriate order - Constitution of India, Article 226 - The petitioner's complaint dated 25.09.2019 against the building licence granted by BBMP was not acted upon; the court directed the BBMP to consider the complaint and take necessary action as per law (Prayer and Para 1).
Issue of Consideration
Whether the Bruhat Bengaluru Mahanagara Palike (BBMP) could grant a building licence for construction of an apartment building on a portion of land that was reserved for common amenities (Rain Water Harvesting Unit and Sewage Treatment Plant) in a previously approved building plan, when the purchasers of apartments in the main building had been conveyed undivided share in the entire property.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Conveyance of undivided share in entire property includes rights over common amenity areas
- approved building plan reserving land for RWHU and STP cannot be unilaterally altered
- BBMP must consider complaint regarding illegal construction on reserved land
