In a significant ruling, the Karnataka High Court has held that once a sale deed is executed covering the entire land meant for the construction of an apartment complex, the original landowners cannot retain any portion of that land. The court quashed the building licence granted by the Bruhat Bengaluru Mahanagara Palike (BBMP) for new construction on such a portion, stating it to be illegal.
Justice N S Sanjay Gowda, presiding over the case, allowed the petition filed by Keerthi Harmony Apartment Owners Association. The petition challenged the BBMP’s approval granted to Hanumantha Reddy, a developer, for constructing an apartment building on a portion of land that had already been conveyed under a joint development agreement.
"The grant of approval by the BBMP to build a new apartment complex would be wholly illegal and as such, Annexures 'A' and 'B' are accordingly quashed," the court declared.
The origin of the dispute traces back to January 28, 2005, when M/s Keerthi Estates Pvt. Ltd entered into a Joint Development Agreement with several landowners for the development of an apartment complex on a total area of 5 acres and 16 guntas (equivalent to 2,35,224 sq. ft.). Under this agreement, both parties were to share the built-up area in accordance with the terms agreed upon.
The Bangalore Development Authority (BDA) approved the building plan with a condition that the builder would relinquish portions of the land reserved for road development. The land was thus divided, with the majority portion designated for apartment buildings, and a smaller plot of 1104.40 sq. meters set aside for essential infrastructure — namely, a Rain Water Harvesting Unit (RWHU) and a Sewage Treatment Plant (STP).
However, the builder eventually constructed the RWHU and STP within the apartment complex, deviating from the original approved plan. Despite this, the landowners submitted a fresh application on April 3, 2018, to the BBMP seeking permission to construct a new apartment building on the same 990.54 sq. meter area, originally marked for RWHU and STP.
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BBMP treated this area as independently retained by the landowners and sanctioned the building plan. The petitioners opposed this move, stating that they had purchased undivided interests in the entire property of 2,35,224 sq. ft., and hence, the landowners had no claim to any separate part of the land.
According to the petitioner, even if the RWHU and STP were not placed as per the original plan, the entire land had already been conveyed, and the title no longer remained with the landowners.
The landowners argued that the 1104.40 sq. meter portion had been reserved for future development and was never transferred to the apartment owners. They contended that only the built-up area was sold, not the entire land.
They further claimed that BBMP had imposed a compounding fine for the deviations from the original plan and, as a result, the portion set aside for the RWHU and STP was released for independent use. It was also argued that the land was physically separated from the main complex by a 15-meter road, rendering it unusable for the apartment owners. According to the landowners, the petition was an attempt to harass and extract money from them and the builder.
The High Court referred to Section 7 of the Karnataka Ownership Flats Act, 1972, which mandates the consent of purchasers for any changes in the approved structure.
"On the plan being approved by the BDA on 29.03.2007 which stipulated that the RWHU & STP would have to be established in the bit of property abutting the road, the Builder could not have changed this location," the court said.
Even if the Planning Authority agreed for this change of location, the requirement of securing the consent of the persons who had agreed to purchase the flat would still be needed, it added.
The court also relied on Section 3(f)(1) of the Karnataka Apartment Ownership Act, 1972, which defines common areas to include the land on which the building stands. Based on this provision, the court noted that once a declaration was made and accepted, the entire land became common property.
In light of the clear stipulation that an undivided interest in respect of the entire land had been conveyed to all the apartment owners; merely because a lesser extent was stipulated as a built-up area, that would never lead to the inference that the owners had retained the remaining portion, the court held.
Consequently, the court ruled that BBMP was wrong in granting construction permission based on the claim that the landowners retained ownership of the 1104.40 sq. meter portion.
"The BBMP could not have entertained the plea of the erstwhile landowners who put forth the representation that they had retained an extent of 1104.40 sq. meter and were entitled to put up a new apartment building on that extent," the bench concluded.
The court’s verdict reinforces the principle that once land is conveyed through sale deeds for joint development, no portion remains available for independent use by the original owners unless explicitly excluded and documented.
Case Title: Keerthi Harmony Apartment Owners Association vs. M/S Keerthi Estates Pvt. Ltd & Others
Case No.: Writ Petition No. 19151 of 2021
Appearance: Advocate Beena P K for Petitioners; Advocate Sammith S for Respondent No. 1; Advocate K.S. Mallikarjuna Reddy for Respondents 2 to 4; Advocate M. Ramachandra Reddy for Respondents 5 to 7, 9 to 12; Advocate K. Krishne for Respondent No. 13.
