The bench comprising Justice Arun Kumar considered a writ petition filed by the Great Value Sharanam Apartment Owners Association challenging the sanction of additional floor area ratio (FAR) granted to a builder for a residential project in Noida. The association contended that the consent obtained from individual flat owners for the purchase of additional FAR could be overridden by a collective resolution passed by the association opposing the same.
Justice Kumar observed that a representative body, merely by passing a resolution, cannot nullify contractual declarations and consents furnished by hundreds of individual apartment owners who continue to abide by them. He emphasized that the association cannot be permitted to substitute its opinion for the autonomous decisions of individual purchasers. Even assuming the association validly resolved to oppose the project, a collective resolution cannot retrospectively revoke individual declarations executed by separate owners. The association, therefore, lacks any power of rescission on behalf of non‑objecting owners.
The factual matrix, as outlined by the court, shows that the builder initially obtained a lease for an area measuring 72,957.60 square metres and secured sanction for Phase‑I of the project, which excluded the central portion of the land earmarked as future blocks. Subsequently, Phase‑II development for the disputed area was approved. The developer later leased additional land, thereby increasing the total FAR. In 2017, a fresh brochure was issued to prospective buyers indicating the possibility of future construction or development.
While litigation was pending with certain allottees, the builder sought consent from the allottees for the purchase of additional FAR. Out of a total of 1,440 home buyers, 1,165 granted their consent while 275 declined. The initial FAR grant had been made, but due to a stall in the project the builder applied for a fresh issuance of FAR. The Noida Authority verified the list of objections and consents. Approximately sixty‑eight percent of all flat owners and eighty‑one percent of the participating allottees supported the grant of additional FAR, leading to its sanction.
After the revised map was sanctioned, the petitioner association filed a revision before the State challenging the grant of additional FAR. The revision was dismissed, and that dismissal was challenged before the High Court.
One of the principal issues before the court was whether the permission for purchase of additional area granted by individual flat owners could be overridden by objections raised by office bearers of the apartment owners’ association. The court held that it cannot be done.
On the association’s argument that the consent of flat owners was obtained through coercion, Justice Kumar noted that even if consent were procured by coercion, it would not be void ab initio; at best it would be voidable. He further observed that none of the parties who had given consent had subsequently retracted it, and withdrawal of consent cannot be presumed without evidence.
The court also addressed allegations of fraud, systematic coercion and historical duress, describing them as intensely disputed questions of fact. It held that the burden of proving fraud lies squarely on the party alleging it, citing the precedent of Anil Rishi (Supra). Such matters cannot be resolved on summary pleadings under the extraordinary jurisdiction of Article 226 of the Constitution; they require a full trial and cross‑examination of witnesses before a competent civil court, as affirmed by the Supreme Court in Ram Sakal Singh (Supra) and Lakshmi Singh Chauhan (Supra).
Justice Kumar observed that the allottees were aware at the time of purchase that future development could be carried out by the developer. He held that once they entered into the transaction with the knowledge that the disputed area was not marked for open common spaces, they could not later raise objections to future development.
The court further noted that apartment purchasers acquire rights recognised by statute and contract, but they do not acquire a vested right that the density of a township shall remain frozen forever. What the law itself permits cannot be treated as an invasion of a vested right merely because population density subsequently increases. At best, the petitioner’s complaint pertains to greater sharing of existing facilities, not to the extinction or diminution of those facilities.
Finding no evidence of any violation of the approved building plans, the court concluded that unanimous permission or consent of all flat owners was not required for the development and for obtaining additional FAR by the developer. Accordingly, the writ petition filed by the Great Value Sharanam Apartment Owners Association was dismissed.