Developer Can't Claim Extra FSI For Building Plan Rejig

Government changes its policies and regulations from time to time. Shrewd developers are keen to pass on the unfavourable changes to the consumers, and chose to eat into the benefits, if any.

Additional Floor Space Index (FSI), also known as the Floor Area Ratio (FAR), is granted when there is a change in government policies. Clever builders cash in on this change by tweaking building plans as well. Such changes are usually made without informing flat buyers, let alone obtaining their consent. Though the Maharashtra Ownership of Flats Act prohibits such acts of the builder to incorporate any changes in the sanctioned plan after there is an agreement to sell the flat, proposed plans are altered to the extent of 50 per cent in many cases.

At times the approved layout plan faces technical and architectural glitches due to which the layout plan requires certain deviation, such unintentional deviation is permitted but it should not exceed 5 per cent of the proposed layout plan.

What is FSI?

The FSI concept was introduced in Mumbai in 1964 when it was set at 4.5. In 1991, it was drastically reduced to 1.33 because this would have put additional strain on populous areas of the city and hit civic amenities in many localities. This development has been unexpected as the FSI has only increased across the cities world over. Certain areas were excluded from the FSI such as parking, flower beds, balconies, terraces, etc.

Astute developers, who are always on the lookout for the gaping holes in the government policies, increase the effective FSI available to them by making certain temporary structures and extending slabs.

Regulatory framework

Once a developer has entered into an agreement to sell a flat as per the approved plan and started construction then any additional FSI rightfully belongs to the society and the flat owners.

The Real Estate (Regulation and Development) Act, 2016, has ensured that a developer is not able to misappropriate the rightful gain of the flat owners/society for himself. The new law says that any subsequent change in the building plan can only come into effect after the consent of the buyers. Not only the plan but even the design of the project cannot be altered without the flat buyers' consent.

The aggrieved flat buyers can approach the consumer court to file a complaint against the erring developer. Once the Real Estate Regulatory Authority (RERA) is set up, buyers will have the option to approach the agency to file a complaint.

The Bombay High Court has also through its various landmark judgments decided in favour of flat buyers and stated that the residents of the society are the rightful beneficiaries of additional FSI and it should not be usurped by builders.

Flat buyer at the receiving end

A developer may introduce changes into the proposed plan without even obtaining the required approvals. As a result of this, a flat buyer fails to get the occupancy certificate or conveyance deed executed in his favour.

As per the relevant provisions of the Mumbai Municipal Corporation Act, 1888, and the Maharashtra Regional and Town Planning (MRTP) Act, 1966, the civic authorities can serve notice to residents of a building when they find any anomaly in the building plan. The flat owner has to adhere to the legal plan, failing which the civic authority may initiate the restoration work itself and may even prosecute the violator.