Real Estate Basics: Sanctioned Plan & Alterations

 

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To build or renovate, a land owner or a developer has to approach the civic authority concerned and get an approval for the plan. After an approval is granted, this building plan becomes a sanctioned plan and the owner has the right to go ahead with the construction.

It is mandatory for the land owner or developer to strictly follow the sanctioned plan. In case of any non-compliance, the authorities have the right to penalise the owner, including by demolishing the building. According to the Real Estate (Regulation and Development) Act, 2016, a sanctioned plan covers approval to structural designs and may also include environment clearances by a competent authority.

Definition of Sanction Plan as per 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.

Alteration in Sanction Plan

According to Real Estate (Regulation & Development) Act,2016, it is mandatory on the part of developers to abide by the sanctioned plans and specifications as originally approved by the RERA authority. Also, developers are supposed to follow to the specified nature of fixtures, fittings and amenities agreed between the buyers and the developers. However, the provisions of RERA act allow the developers to make minor changes/alterations in the layout which may be necessary.[1]

The act clearly specifies that any structural changes including the following does not come within the explanation of minor changes:

  • Addition to the area
  • Change in height
  • Removal of part of a building
  • Construction or removal or cutting into of any wall or a part of wall, partition, column, beam, joist, floor including a mezzanine floor or other support.
  • Change to or closing of any required means of access
  • Change to the fixtures or equipment.

However, any structural changes including the aforementioned changes may be done in sanctioned plans and layout by the developers with the prior consent of at least two-third of the allottees who have agreed to take a unit in that apartment.

Also, with the enactment of the RERA Act, the allottees are now entitled to claim compensation against any structural defect in the unit which is brought to the notice of the developers within the period of 5 years from the date of handling of possession. Any violation of the provisions of the act can be complained to the RERA authority.

What is unintentional deviation?

When builder seek approval on project sanctioned plan are normally prepared by very qualified architects/ engineer. There will always be deviation from approved sanctioned plan. Keeping this in mind, govt. Authorities allow deviation of +/- 5% from approved plan. This can term it as an unintentional deviation.

What is the punishment for developer/builder if he deviates from sanction plan (without due process)?

If promoter/builder/developer not adhere to the sanction plan/ layout plan, he shall be liable to pay 5% of the cost of project.[2]

Alteration in sanctioned plan with “Informed Consent”

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.

Remedies available to home buyers:

Buyer can seek remedy under RERA Act as well as under other laws also, Section 88 of RERA Act 2016 clarifies that application of other laws are not barred on account of this Act.[3] The buyer can anytime approach the Civil Court for breach of contract under sec. 73 of Indian Contracts Act, 1872[4] because there is agreement for sale and purchase of home between builder and home-buyer.

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[1] Sec 14(2)(i) RERA Act: any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person: Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee.

[2] Sec. 61 RERA Act, 2018: If any promoter contravenes any other provisions of this Act, other than that provided under section 3 or section 4, or the rules or regulations made thereunder, he shall be liable to a penalty which may extend up to five per cent. of the estimated cost of the real estate project as determined by the Authority.

[3] Sec. 88 RERA Act, 2016: The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

[4] Sec 73 Indian Contracts Act, 1872: When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.


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