Whether additional FSI is belongs to the Society ?

By Legal Bureau

This is a common complaint of the flat owners that builders insist on keeping Additional FSI for themselves even after a society has been formed and the land conveyed. Sometimes flat owners do not read the agreement drafted by the builder while buying their flats. These agreements usually have clauses that the builder is entitle to all further FSI and other development rights that may occur on the land.

“when a purchaser is buying a flat; he is not only purchasing the flat but also
acquiring an undivided right title and interest in the property.” In one of the
judgment, the Maharashtra State Consumer Disputes Redressal Commission has
ruled that after the registration of a housing society any balance unutilised residual
floor space index (FSI) shall be available to the society and not to the builder. In
the said matter when the District Forum directed the builder to enjoy the unutilised
and future FSI. The housing Society aggrieved by the judgment went in appeal
before the State Commission it was held thet as per the MOFA provisions, after
registration of the society, the builder cannot claim residual FSI or further FSI in
the plot or layout. Any provision in the builders agreement for sale contrary to the
statutory provision will not be binding on any flat purchaser or the society.

The society had relied on various provisions of MOFA and in particular clause 4 of
the Model agreement which is mandatory in nature clause 4 of Model agreement
provides that the residual FSI in the plot or layout which has not been utilised will
be available to the promoter till the society is registered. After registration, the
residual FSI shall be available to the society. the State Commission upheld the
contention of the society that if the contractual provision conflicts with a statutory
provision that is mandatory in nature, it is the statutory provision that must prevail
over the contractual provision.

FSI violation by the Promoter:-

The Promoters/ Builders construct multi – storeyed building and use extra FSI
which is not in approved plan sanctioned by the BMC it is clear and flagrant
violations of the BMC Act, 1888, also violation of the D.C. Regulations. Where
the construction of the entire building is illegal, the building has to be demolished.
Where an extra floor has been put up illegally, the same should be demolished.
Necessary modifications/demolitions must be done for satisfying the norms for fire
safety and car parking facilities within the building premises. However, in some
cases the flat-purchasers are aware of the said violations.

FSI violation by the Society itself:-

The Registered Co-Operative Housing Society also sometime violate the BMC
Act. Society construct any additional structure in excess of the available FSI on the
property.

In PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD. -VS- STATE
OF MAHARASHTRA (1991) 3 SCC 341), the Court came down heavily on the
housing society which made construction in violation of the Floor Space Index.
The Court said that such unlawful construction was made by the Housing Board in
clear and flagrant violation and disregard of FSI and upheld the order of demolition
of all the eight floors as ordered by the Bombay Municipal Corporation. While
dismissing the special leave petition, the Court observed that -”Before parting
with the case, we would like to observe that this case should be a pointer to all the
builders that making of unauthorised constructions never pays and is against the
interest of the society at large. The rules, regulations and bye-laws are made by the
Corporations or development authorities taking in view the larger public interest of
the society and it is the bounden duty of the citizens to obey and follow such rules
which are made for their own benefits.”

The Brihanmumbai Municipal Corporation (BMC) has issued a notice against
the builder of Gaurang Apartment in Mahaveer Nagar at Kandivili for violating
floor space index (FSI) norms. The building has 12 extra floors without the BMC’s
permission.

As per the survey report most of buildings constructed have violated the FSI norms
by allegedly misusing the additional FSI. It points to corruption in the NMMC’s
administrative functioning since the concerned civic officials have been issuing
NOC to builders for construction of towers despite the builders misusing the
additional FSI.

Municipal commissioner Bhaskar Wankhede said that some of the violations of
the DC rules would be regularized as committed by the chief minister but towers
where gross violations are found will be demolished soon. Residents of the housing
societies are expected to cough up a sizeable amount for penalty and premium to
the NMMC to regularize the violations in their posh apartments. The civic body is
yet to decide on the penalty amount though.

As per the survey conducted by considering the technical aspects as the structural
plan of the buildings have been verified in order to ascertain whether the builders
have constructed them at the same place as per the architectural plan submitted to
the town planning department.

After considering the architectural plan, the concerned builders have been issued
the Occupation Certificate (OC). We have scrutinized whether the parking/open
space is misused for commercial purpose. It has also been checked whether the
builders have constructed the buildings as per the architectural plan submitted to
the town planning department upon which they have obtained the relevant and
mandatory documents.”

Consumer Action Group -vs- The State of Tamil Nadu & ors.dated 23.8.2006,
cited supra, the Supreme Court while upholding the validity of Section 113-A as
a one-time measure, has warned that before such pattern becomes cancerous and
spreads to all parts of the country, it is high time that remedial measures were
taken to check this pattern, as it retards development, jeopardises all purposeful
plans of any city and liquidates the expenditure incurred in such development
process.

Illegal construction and violation of Law:-

In DR.G.N.KHAJURIA -VS- DELHI DEVELOPMENT AUTHORITY (1995)
5 SCC 762), the Supreme Court observed that – “Before parting, we have an
observation to make. The same is that a feeling is gathering ground that where
unauthorised constructions are demolished on the force of the order of Courts,
the illegality is not taken care of fully inasmuch as the officer of the statutory
body who had allowed the unauthorised construction to be made or make illegal
allotments go scot-free. This should not, however, have happened for two reasons.
First, it is the illegal action/order of the officer which lies at the root of the
unlawful act of the citizen concerned, because of which the officer is more to be
blamed than the recipient of the illegal benefit. It is thus imperative, according
to us, that while undoing the mischief which would require the demolition of
the unauthorised construction, the delinquent officer has also to be punished in
accordance with law. This, however, seldom happens. Secondly, to take care of the
injustice completely, the officer who had misused his power has also to be properly
punished. Otherwise, what happens is that the officer, who made the hay when the
sun shined, retains the hay, which tempts others to do the same. This really gives
fillip to the commission of tainted acts, whereas the aim should be opposite.”