Karnataka High Court on Sharing of Common Amenities between Adjacent Real Estate Projects under RERA


– RERA Appeal No. 74 of 2025

Citation: Shailesh B. Charati & Anr. v. M/s Arya Gruha Private Limited & Ors., RERA Appeal No. 74 of 2025, High Court of Karnataka at Bengaluru, decided on 9 July 2026 (Coram: Jayant Banerji, J. and Tara Vitasta Ganju, J.).

Facts

The appellants were allottees (flat owners) of an apartment in the project “Arya Hamsa”, constructed on Survey No. 28/1, Kothnur Village, Uttarahalli Hobli, Bangalore South Taluk. The project received BBMP approval and occupancy certificate in 2015, prior to the commencement of the Real Estate (Regulation and Development) Act, 2016 (“RERA Act”).

Respondent No. 1 (developer) thereafter developed an adjacent project, “Arya Hamsa Grande”, on Survey No. 28/2. This was an ongoing project at the time of the RERA Act’s commencement and was registered with the Karnataka Real Estate Regulatory Authority (K-RERA) under Registration No. PRM/KA/RERA/1251/310/PR/171015/000479. Occupancy certificate for Arya Hamsa Grande was obtained on 31 January 2019.

The two projects were developed under separate Joint Development Agreements with different sets of landowners and under independent sanction plans. They shared common amenities such as club house, roads, pathways, entrance and exit gates, etc.

The allottees filed a complaint under Section 31 of the RERA Act before the Authority seeking revocation of the registration of the developer’s project and imposition of penalty under Sections 60 and 61 for alleged contravention of Sections 4 and 14. Their grievance was that sharing of common amenities (designed for limited use) affected their right to peaceful enjoyment of their property.

The Authority, by order dated 6 May 2022 (amended on 24 January 2023), dismissed the complaint. It held that the registered Sale Deed dated 3 November 2015 executed in favour of the allottees contained no provision for exclusive use of the common amenities and that the recitals of the Sale Deed were contrary to the allottees’ claim.

The Karnataka Real Estate Appellate Tribunal, by judgment dated 1 August 2025 in Appeal No. (K-REAT) 61/2022, dismissed the allottees’ appeal and confirmed the Authority’s order. The Tribunal held that the Sale Deed clauses were clear and that the flat owners of both projects had consented to sharing of amenities; the allottees were therefore estopped from contending otherwise.

The allottees preferred the present appeal under Section 58 of the RERA Act before the High Court. An application for condonation of 25 days’ delay was allowed on the ground that the delay was not inordinate and sufficient cause had been shown.

Issues

  1. Whether the clauses in the registered Sale Deed dated 3 November 2015 permitting sharing of common amenities (club house, roads, entertainment facilities, etc.) between the two adjacent projects were void under Section 11 of the Transfer of Property Act, 1882 as being restrictions repugnant to the interest created.
  2. Whether the said clauses were void for uncertainty under Section 29 of the Indian Contract Act, 1872.
  3. Whether any substantial question of law arose warranting interference with the concurrent findings of the Authority and the Appellate Tribunal dismissing the complaint under the RERA Act.

Case Law Discussed

The High Court examined Section 11 of the Transfer of Property Act, 1882, which provides that where an interest in property is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed in a particular manner, the transferee is entitled to receive and dispose of the interest as if there were no such direction. The second paragraph carves out an exception where the direction is for the purpose of securing the beneficial enjoyment of another piece of property retained by the transferor.

Reliance was placed on the Supreme Court decision in Indu Kakkar v. Haryana State Industrial Development Corpn. Ltd., (1999) 2 SCC 37. The Court quoted the relevant observations:

“For a transferee to deal with interest in the property transferred ‘as if there were no such direction’ regarding the particular manner of enjoyment of the property, the instrument of transfer should evidence that an absolute interest in favour of the transferee has been created. This is clearly discernible from Section 11 of the TP Act. The section rests on a principle that any condition which is repugnant to the interest created is void and when property is transferred absolutely, it must be done with all its legal incidents.”

Applying the above principle, the High Court held that Section 11 was inapplicable. The allottees had no exclusive or absolute interest in the common areas. The interest claimed related only to facilities in the common areas (roads, club house, entertainment facilities, etc.), which were not absolute interests created in the flats themselves. Hence, the restriction/sharing arrangement did not attract the prohibition under Section 11.

The Court further examined Section 29 of the Indian Contract Act, 1872 (agreements void for uncertainty) and its illustrations. It held that the provision had no application where a registered Sale Deed clearly set out the sale consideration and the terms of transfer. The Sale Deed had not been challenged by the allottees in any civil court.

The High Court also reproduced and relied upon the specific recitals in the Sale Deed (Clauses 1.11 to 1.13), which expressly recorded the purchasers’ consent to the use of common amenities (including those located within or outside the schedule property and in different phases) by owners of units in the project.

Conclusion

The High Court held that no substantial question of law arose. The allottees themselves had, by a validly executed and registered Sale Deed, consented to the sharing of common amenities between the two projects. They were estopped from contending to the contrary. Section 11 of the Transfer of Property Act did not apply because no absolute interest in the common facilities had been created in their favour. Section 29 of the Contract Act was equally inapplicable as the Sale Deed was not uncertain.

Accordingly, the appeal was dismissed and all pending applications were closed. The concurrent findings of the Authority and the Appellate Tribunal were affirmed.

Key Takeaway: Where a registered sale deed expressly records the allottee’s consent to sharing of common amenities with owners of units in adjacent or phased projects developed by the same promoter, such consent is binding. Challenges based on Section 11 of the Transfer of Property Act or Section 29 of the Contract Act will not succeed in the absence of an absolute interest or genuine uncertainty, and the allottee remains estopped from resiling from the contractual terms.


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