Apartment owners cannot block separately sanctioned future construction, but builder cannot count sold land for FAR without consent: Karnataka HC

M/s. Pedigree Constructions Pvt. Ltd., the owner of 3 acres and 20.18 guntas in Sy.No.28, Kanakapura Road, Bengaluru, entered into a Joint Development Agreement for construction of a residential complex.

The BDA sanctioned a plan in 2003 and issued an Occupancy Certificate in 2006 for 241 apartments comprising four towers, known as “H.M. Tambourine” or “A Block”.

Sale deeds were executed in favour of the apartment purchasers, who formed the appellant Association and managed the complex under the Karnataka Apartment Ownership Act, 1972.

A portion of the original project land was shown as vacant/unused land for future development.

In 2016, the BDA sanctioned a modified plan permitting construction of a fifth tower, consisting of 120 apartments and referred to as “B Block” or “H.M. Crescendo”, on that portion.

The learned Single Judge dismissed the writ petition on the basis that the modified plan had been sanctioned in accordance with law. The Association preferred the present intra-court appeal.

During the appeal, the BDA admitted that the entire extent of 3 acres and 20.18 guntas had been considered while sanctioning the modified plan and calculating FAR for B Block.

Whether the landowner and developer retained any right, title or interest in the vacant/unused portion of the project land after executing sale deeds conveying apartments together with undivided interests in the land and common areas.

Whether the description of a portion of the land as “vacant/unused” in the original sanctioned plan established that the landowner or developer had retained that portion for exclusive and independent future development.

Whether the BDA could calculate FAR for B Block by taking into account the entire extent of 3 acres and 20.18 guntas, or whether FAR had to be calculated only with reference to the vacant/unused land reserved for future development.

Whether the clause in the sale deeds recording the purchasers’ agreement not to object to future construction by the developer operated as an estoppel against the apartment owners challenging B Block.

The Court applied the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, particularly Sections 2, 3, 4 and 7.

Section 3(f) treats the land on which the building is situated as part of the common areas and facilities where the statutory apartment-ownership regime applies, while Section 4 confers upon each apartment owner an undivided interest in such common areas and facilities.

Section 7 prohibits alterations or additions to the disclosed plans and specifications without the consent of the purchasers.

The Court also referred to Section 14 of the Real Estate (Regulation and Development) Act, 2016, which restricts structural alterations or additional construction without the previous consent of the apartment owners.

However, where the original sanctioned plan expressly identifies a portion as vacant land reserved for future development, and the purchasers expressly agree not to object to such development, the developer may develop that portion, subject to applicable FAR and planning regulations.

Supertech Ltd. v. Emerald Court Owner Resident Welfare Association, (2021) 10 SCC 1, was distinguished because the present construction was held not to be per se illegal.

The Court found that A Block was physically separated from B Block by a boundary wall and that B Block was being constructed outside the existing A Block complex, on land shown in the original sanctioned plan as vacant/unused and reserved for future development.

The sale deeds expressly informed purchasers that the developer could construct a residential or commercial building in the front portion and that the purchasers would not obstruct such construction. Consequently, the apartment owners could not object to construction on that specifically identified vacant portion.

However, the Court drew a distinction between the right to develop the vacant land and the method of calculating FAR.

It held that, absent express consent from the A Block apartment owners, the developer and BDA could not use the entire original parcel—including land already developed and sold with undivided interests—to calculate FAR for B Block.

BDA’s own affidavit showed that it had calculated FAR on the entire 3 acres and 20.18 guntas without deducting the area already sold and occupied as A Block.

The developer could therefore proceed only on the basis of FAR available for the vacant land, or by acquiring additional TDR to regularise any excess construction.

The Court further held that the common facilities of A Block could not be used by B Block residents and accepted the undertaking to provide separate facilities for B Block.

Nevertheless, the entire extent of 3 acres and 20.18 guntas could not be included for calculating FAR for B Block without the consent of the A Block apartment owners.

The developer was permitted to utilise the FAR available for the vacant land and was directed to purchase TDR for any excess construction, with the competent authority required to communicate the cost and the developer required to pay it within the prescribed periods.

B Block residents were prohibited from using A Block’s existing common facilities, and separate swimming pool, clubhouse/multipurpose hall and gymnasium facilities were to be provided for B Block.

The BDA, GBA and all other competent planning authorities were directed to strictly follow the Clarificatory Circular dated 15 July 2026.

The appeal was disposed of with these modifications to the Single Judge’s judgment; pending interlocutory applications were also disposed of.