- Authored by Mr. Hitendra V.Hiremath, works as Legal Consultant with M/s. RERA Consultants LLP and has earlier worked as In-House Counsel at M/s. Shriram Properties Private Limited and thereafter with an investment banking firm Capaegis at Bengaluru, Karnataka, India
It is necessary to understand as what does a sanctioned plan means under the provisions of the Real Estate (Regulation and Development) Act, 2016 (“Act”), as per Section. 2(zq) of the Act, a 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, permission such as environment permission and such other permissions, which are approved by the competent authority prior to start of a real estate project; so the definition has included all plans not only limiting building plan but including all other requisite permissions required to be obtained from the competent authorities with respect to a real estate project.
As per Section.4(2)(d) of the Act, the promoter while filing an application for registration of a real estate project has to upload the sanctioned plan along with other documents as stipulated under Section.4(2) of Act and other documents as stipulated under the respective rules.
After commencement of development of real estate project, due to varied reasons if the promoter intends to modify the existing sanctioned plan of the real estate project, the promoter has to obtain the written consent by two-third allottees of the real estate project.
This post in brief details the requirements, in case the promoter intends to modify the existing sanctioned plan for the real estate project.
FUNCTIONS AND DUTIES OF PROMOTER WITH RESPECT TO SANCTIONED PLAN
It is necessary to know as to what are the functions and duties of the promoter with respect to sanctioned plan being uploaded whilst registering the project before knowing the process of modification of plan sanction, following are the functions and duties of the promoter under the provisions of the Act:
- As per Section. 11(3)(a) of the Act, the promoter at the time of booking and issue of allotment letter shall be responsible to make available the allottee the sanctioned plan, layout plans, along with specifications, approved by the competent authority by display at the site or such other place as specified by the regulations made by the Authority;
- As per Section. 14(1) of the Act, the promoter shall develop and complete the real estate project in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.
Similarly the allottee under Section. 19(1) and 19(5) of the Act is entitled to obtain the information pertaining to the sanctioned plan, layout plan by the Promoter for the real estate project. Failure on part of the promoter to provide the information and details of the sanctioned plan, then allottee shall have a right to withdraw from the project and promoter shall be liable to pay entire amount paid by the allottee with the applicable interest.
NECESSARY COMPLIANCES UNDER THE ACT IF PROMOTER INTENDS TO MODIFY THE SANCTIONED PLAN:
Section. 14 of the Act deals with the necessary compliances to be made, if promoter intends to modify the sanctioned plan:
Section.14: Adherence to sanctioned plans and project specifications by the promoter:
(1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.
(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make—
(i) 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.
Explanation.—For the purpose of this clause, “minor additions or alterations” excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.
(ii) any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.
Explanation.—For the purpose of this clause, the allottees, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.
So, Section. 14(2) of the Act stipulates that the promoter shall not make any additions or alterations to the sanctioned plans, layout plans, specifications and the nature of the fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, without the previous consent of the person, however the promoter make minor additions or alterations as required by allottee or for architectural or structural reasons duly recommended and verified by the an authorised Architect or Engineer after proper declaration and intimation to the allottee/s.
Section. 14(2) indirectly states that in case of major additions or alterations in specifications of the real estate project, the promoter will have to mandatorily take two-third written consent from the allottee/s of the real estate project.
Prior to obtaining the written consent, the promoter has to reveal such modifications to the allottee/s of the project and thereafter obtain the consent.
It is advised that the promoter discloses the proposed modifications and change in specifications of the project to the allottee/s and ask them to give consent by signing the said communication or the consent can be obtained through email with the same procedure.
PROCEDURE TO UPLOAD THE MODIFIED PLAN SANCTION AND OTHER NECESSARY COMPLIANCES TO BE CARRIED BY PROMOTER
After obtaining the modified plan sanction, the promoter shall immediately inform the Real Estate Regulatory Authority and obtain sanction from the Real Estate Regulatory Authority to upload the modified plan sanction and update the information of the project in the project account on the website and has to make available such modified plan sanction to all the allottee/s of the project.
Further, it is advised that the promoter shall make available the modified plan sanction along with such specifications in the advertisement, prospectus, brochure, website etc of the real estate project and shall immediately withdraw the earlier sanctioned plan from all such advertisement, prospectus, brochure, website etc after applying for modification of such sanctioned plan.
In Ferani Hotels Pvt Ltd v. State Information Commissioner Greater Mumbai & Ors, Civil Appeal Nos. 9064 – 9065 of 2018, Supreme Court on 27th September, 2018 ruled that developers has to display the sanction / layout plans at the site and also ruled that this aspect should be given appropriate publicity as part of enforcement of The Real Estate (Regulation and Development) Act, 2016. The direction is made with respect to Section. 11(3)(a) of The Real Estate (Regulation and Development) Act, 2016t to be fully complied with.
(Source: The full judgment is available at https://www.sci.gov.in/supremecourt/2015/38196/38196_2015_Judgement_27-Sep-2018.pdf, last visited on 19th of April, 2019 at 06:12 pm.)
- This post underlines the information as per the applicable provisions of the Real Estate (Regulation and Development) Act, 2016; and
- We recommend the Promoters to seek the assistance of the Professionals involved in the real estate practice in case of any queries, clarifications with respect to advertisement of the real estate project.
For any other details, clarifications, assistance, advise and other services, please visit www.reraconsultants.in; or can get in touch with us at 080 – 2223 3003 or email to firstname.lastname@example.org