AI Structured Summary
Not yet generated for this judgment
Judgment
JUSTICE A.P. SAHI, PRESIDENT
The present complaint has been instituted under Section 35(1)(c) of the Consumer Protection Act, 2019 urging that this is a class action on behalf of the residents of the complainant Apartment Owners Association along with four members alleging deficiency in service against the OPs, the OP-1 Builder Company in particular for having altered the “access passage” of the ingress / egress road to the Society by reducing the width of the said road by approximately 2 ½ meters which according to the complainants and their counsel Mr. Chandrachur Bhattacharyya is in violation of the sanctioned plan, breach of clause G read with clause 1.1.(iii) and schedule A description of the common passage and easementry rights as described therein, apart from violating the provisions of Section 7 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 as well as Section 14 of the RERA Act, 2016. Learned counsel for the complainant also urges that this is also a breach of the promise made in the brochure and therefore the following reliefs have been prayed for:
In view of the above-mentioned facts and circumstances this Hon'ble Commission may be graciously pleased to:
a)Pass orders and restrain the opposite parties from unilaterally altering the access ingress/egress road to the society/project "Republic of Whitefield" in Bangaluru;
b)Pass orders and direct the opposite parties to restore the access ingress/egress road to the original condition as per the sanctioned plan and as per the representations made to all the flat buyers in the project by the opposite parties in the agreement, brochure and other documents at its own cost and expense;
c)Pass orders and direct the opposite parties to pay compensation to all the owners of residential units in the project "Republic of Whitefield" by way of punitive damages to the tune of Rs.10 lacs per owner of residential unit for its illegal actions;
d)Pass orders and direct the opposite parties to immediately restore the OG gate to its exact original location as per the initial blueprint.
e)Pass orders and direct the opposite parties to pay a fixed monthly rental/license fee of Rs. 10 lac per month to the society/association for using the access ingress/egress road which will be used for the benefit of all the flat owners in the project "Republic of Whitefield" further direct that the opposite parties will be liable for the operational maintenance, upkeep and repair costs of the entire road i.e. the access ingress/egress; and
f)Pass orders and direct the opposite parties to pay Rs.1,00,000/- per buyer as litigation charges to all the flat owners in the project "Republic of Whitefield";
g)Pass any further order or orders which this Hon'ble Commission may deem fit and proper in the interest of justice.
Mr. Bhattacharyya has also invited the attention of the Bench to the sketch map of the scheduled property indicating the location of the passage about which the complaint has been made and has also referred to the sanctioned map / approved plan filed through Diary No. 18397 dated 10.08.2026. He has also referred to the photographs appended with the complaint and then pointed out the mail communication dated 30.04.2026 in particular apart from the other communications to urge that the aforesaid activities were objected to with particular reference to the obstruction of the passage and requesting to clear the said road of the impediments created to which a response was given by the OPs, which in the submission of Mr. Bhattacharyya amounts to an admission of the breach as alleged. In essence the allegation is about the narrowing down of the 19.5 meter broad passage as reflected in the map that has been described as a 19.5 meter wide "Drive Way" right at the entrance of the developed area in front of existing A1 Block as depicted in the approved plan referred to above. The said approved plan is dated 24.09.2013.
The complaint was entertained and on 30.07.2026 we passed the following order:
After we had perused the documents, Mr. Bhattacharyya, learned counsel for the complainants, may explain the correct status about the measurements referred to by him regarding the common passage as referred to in Schedule-A of the property and connect it with the alleged violations as stated in the complaint, coupled with the map reflecting the said contention.
List on 06.08.2026.
The affidavit was filed as desired under the said order and then we passed the following order on 06.08.2026 calling upon the learned counsel to clarify the position and liberty was given to file any appropriate documents in order to exactly identify the width of the road, the narrowing down whereof has been made the basis of the allegations in the present complaint:
An affidavit is stated to have been filed online. Let a physical copy of the same be filed on record by the next week.
We have perused the copy of the said affidavit and Mr. Bhattacharyya, learned Counsel for the Complainant has invited the attention of the Bench to Clause 'F' (Page No. – 74) of the Complaint to urge that a common passage forming part of the large property is the passage for egress and it is alleged that the width of the said passage is being reduced from 19.5 meters to 17 meters i.e. approximately by 2 ½ meters. His contention is that it cannot be permitted as it is a breach of the terms and conditions of the agreement as also the provisions of Section 14 of the RERA Act. Learned Counsel has also relied on a map at Page No. 105 but we are unable to decipher the exact measurements of the said ingress passage nor do we find any such measurement mentioned in Clause F of the construction agreement on record. Mr. Bhattacharyya may file appropriate documents in order to exactly identify the width of the road in order to appreciate the said argument. He prays that the matter be taken up next week.
List on 13.08.2026
Accordingly, Mr. Bhattacharyya today proceeded to advance his submissions with the help of the documents on record including the affidavit filed on 10.08.2026 urging that the action of the OPs as explained amounts to a clear defect and deficiency as defined under Section 2(10) and (11) of the Consumer Protection Act, 2019. He emphasises that the violations are that which amount to a breach of Section 7 of the Karnataka Ownership Act, 1972 and Section 14 of the RERA Act, 2016 that are defects and deficiencies under a law referred to therein and hence the present complaint deserves to be entertained.
He submits that under the Karnataka Ownership Act, 1972, there is a clear stipulation that no alteration can be brought about in an approved plan without the consent of the flat owners, and in the instant case the OPs have attempted to encroach upon the common passage which is a promised facility provided under the brochure as well as in the Development / Construction Agreement and is therefore in breach of the provisions as referred to above. Such a violation being a clear deficiency, the present complaint be entertained and appropriate orders be passed to that effect. Section 7 of the 1972 Act and Section 14 of the 2016 Act are extracted hereinunder:
Section 7 of the 1972 Act:
7.After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within a year to be rectified.- (1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make,-
(i)any alterations in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person; or
(ii)any other alterations in the structure of the building, or construct any additional structures, without the previous consent of all the persons who have agreed to take the flats.
(2)Subject to the provisions of sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid.
(3)If any defect in the building or material used, or if any unauthorised change in the construction is brought to the notice of the promoter within a period of one year from the date of handing over possession, it shall wherever possible, be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change.
(4)Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction or as to whether it is reasonably possible for the promoter to rectify any such defect or change or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not, rectified by the promoter the matter shall, on payment of such fee as may be prescribed, be referred for decision to such officer not lower in rank than a Superintending Engineer as the State Government may by general or special order specify in this behalf, within a period of two years from the date of handing over possession. Such officer shall after such enquiry as he deems necessary, record his decision, which shall be final.
Section 14 of the 2016 Act:
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 15 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 allottee, 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.
(3)In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter’s failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.
He submits that the provisions of RERA Act, 2016 can be applied in consumer protection proceedings for which he has relied on paragraph 9 of the decision of the Apex Court in the case of Pioneer Urban Land and Infrastructure Ltd. vs. Govindan Raghavan, (2019) 5 SCC 725 and on paragraph 41 of the judgment of a learned single Judge of the Bombay High Court reported in 2010 SCC OnLine Bom 1519, Madhuvihar Cooperative Housing Society & Ors. vs. M/s. Jayantilal Investments & Ors. to urge that no alteration to the approved plan is permissible.
To substantiate his submissions, he has also read out the allegations made in the legal notice dated 09.05.2026 and the response by the OPs to the same dated 16.06.2026 to urge that these communications also establish that the OPs have practically admitted the said activity of narrowing down of the passage by approx. 2.5 meters.
We have considered the submissions raised and we find that the project was developed long back. The Construction Agreement is dated 09.01.2016. The relevant provisions of the Agreement relating to the common passage as pointed out by Mr. Bhattacharyya under clause F and G are as follows:
F. The Developer proposes to develop and construct residential apartments in the name and style of 'Republic of Whitefield' in a portion of the Larger Property measuring 11 acres 31.5 guntas, comprised in Survey Nos 49/1 (measuring 9.76 guntas), 49/2 (measuring 2.22 guntas), 57 (measuring 4 acres 26.81 guntas), 78(P) (measuring 2 acres 5.25 guntas) and 95 (measuring 4 acres 27.46 guntas), having access to the main road from a common passage forming a part of the Larger Property and over which Owners of the First Part, Owners of the Second Part and the Developer have agreed to provide permanent and irrevocable easementary right of way, morefully described in the Schedule A hereunder and hereinafter referred to as the "Schedule A Property". The Schedule A Property comprises a contiguous block and the said parcel is capable of being developed for residential purpose. The Schedule A Property, along with the common passage comprising the easementary right, is delineated in the colour green in the sketch annexed herewith as Annexure 2;
G. The residential apartment complex under the name and style of 'Republic of Whitefield' proposed to be developed by the Developer on the Schedule A Property comprises of 4 blocks, viz., Block R1, Block R2 and Block R3 consisting of 2BF+GF+14UF (inclusive of clubhouse in Block R3), and Block R4 consisting of 2BF+GF+19UF, along with car parking spaces, roads, internal driveways, Common Areas and Amenities and the Clubhouse (together the "ROW Project"). The Developer has obtained plan sanction from the Bruhat Bangalore Mahanagara Palike ("BBMP") vide Sanction Letter dated 20 January 2014 and plan No JDTP/LP/107/2010-11 dated 24 January 2014, for construction of 4 blocks in the ROW Project ("Approved Plan");
Clause F refers to "access to the main road from a common passage forming a part of the larger property". Clause G refers to the sanction letter and the approved plan that has already been referred to hereinabove. Clause 1.1.(iii) of the agreement reads as under:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In addition to the terms defined in the Recitals and Clauses of this Construction Agreement, the following words and expressions shall bear the meanings ascribed to them below:
...XX...
(iii)"Common Areas and Amenities" shall mean and refer to the areas and amenities in the ROW Project earmarked for the common use and enjoyment of all owners and occupants of the Project, including the Clubhouse to be constructed on the Schedule A Property by the Contractor, as set out in Annexure 5 hereto;
The details of the land forming part of the common passage, in respect of which easementry rights were acknowledged, are stated in schedule A, which is extracted hereinunder:
SCHEDULE
SCHEDULE A PROPERTY
Description of Property on which the residential Apartments are proposed to be constructed
All that piece and parcel of immovable properties comprised in Survey Nos. 49/1 (9.76 guntas), 49/2 (2.22 guntas), 57 (4 acres 26.81 guntas), 78P (2 acres 5.25 guntas) and 95 (4 acres 27.46 guntas) in all measuring 11 acres 31.5 guntas, all converted for non-agricultural residential purpose, situated at Kundalahalli Village, K R Puram Hobli, Bangalore East Taluk and forming part of the Larger Property and bounded in common as follows:
East by : Private property
West by : Remaining lands in the larger property and Private property
North by : Remaining lands in the larger property
South by : Private property
Details of lands forming part of common passage in respect of which easementary rights shall be granted
All that piece and parcel of immovable properties comprised in Survey Nos. 36/3 (measuring 18.05 guntas), 37 (measuring 22.33 guntas), 45/1 (measuring 15.45 guntas), 45/2 (measuring 19.44 guntas) and 137 (measuring 1 Acre 9.4 guntas) in all measuring 3 acres 4.67 guntas situated at Kundalahalli Village, K R Puram Hobli, Bangalore East Taluk and forming part of the Larger Property.
The constructions were to be completed as per clause 6 and the completion date was defined in Annexure-1(13) as 30.06.2016 and the overall project completion date was indicated as 31.12.2017.
There does not seem to be any other substantial dispute except the allegation of creating an obstruction of about 2.5 meters to the passage of the said 19.5 meter road, and the relief prayed is in respect thereof. In effect, as we find from the allegations the dispute seems to have arisen due to some ongoing construction activities at the OG Gate specifically near the A-7 building. The grievances therefore narrated in the mail dated 30.04.2026 are extracted hereinunder:
7/7/26, 8:59 PM
Gmail - Urgent Safety Concerns and Required Mitigation: Construction at OG Gate (Building A7)
Gmail
Annexure - G
Vivek T T [email protected]/[email protected]
Urgent Safety Concerns and Required Mitigation: Construction at OG Gate (Building A7)
vivek tt [email protected]/[email protected]
To: George Samson S [email protected], "[email protected]" [email protected] [email protected] [email protected], ROW Property Manager/[email protected]/[email protected]/[email protected]
Dear George,
I am writing to you on behalf of the Management Committee to formally address several critical safety concerns raised by residents regarding the ongoing construction activities at the OG Gate, specifically near the A7 building.
Recent observations and resident feedback have highlighted significant risks that require your immediate intervention:
- Obstruction of Public Passage: The preparation of iron materials is currently taking place on the pedestrian passage and road. This has narrowed the road significantly and forced pedestrians to navigate around rusted metal products, creating a high risk of injury.
- Crane Operations: It has been noted that crane manoeuvres sometimes extend over the active roadway. Operating heavy machinery over areas occupied by moving vehicles and pedestrians without adequate clearance or shielding is a major safety violation.
- Traffic and Pedestrian Safety: The lack of designated safety zones and traffic management is causing congestion and posing a direct threat to the free passage of apartment vehicles and residents on foot.
To ensure the safety of our community and maintain site compliance, we request that you implement the following measures immediately:
1.Clear the Roadway: Relocate all material preparation and storage away from the pedestrian passage and main road to restore full access.
2.Traffic Management: Deploy dedicated safety marshals and security personnel to manage vehicle flow and ensure pedestrians are guided safely away from construction zones.
3.Crane Safety Protocols: Ensure all lifting operations are strictly contained within the site boundary. If a crane must reach near the road, the area must be cordoned off, and "spotters" must be present to halt traffic during the maneuver.
4.Safety Signage: Install clear warning signs and physical barriers to demarcate the construction zone from resident access areas.
We view these safety lapses with the utmost seriousness. Please provide an update on the corrective actions taken
We look forward to your urgent cooperation in ensuring a hazard-free environment for all residents.
Regards, VIVEK TT ROWAGA 9947945434
A response to the same has been given by the OPs on 07.05.2026 through a mail which is extracted hereinunder:
M Gmail Annexure - H Vivek T T [email protected]
Re: Urgent Safety Concerns and Required Mitigation: Construction at OG Gate (Building A7)
1 message
George [email protected] To: vivek tt [email protected] Cc: Wilson Lourd Raj A [email protected], "Ms. Shaifali Singh" [email protected], rowaoa [email protected], ROW Property Manager [email protected]
Hi Vivek,
Thank you for following up. Let me give you a full picture.
On the safety points you raised — our Projects team's response:
1.Crane Operations – All tower crane movements are strictly within the site premises. A dedicated flagman with a walkie-talkie is deployed at all times to guide crane operations.
2.Traffic Management – We acknowledge the gaps and are actively taking steps to strengthen traffic and pedestrian management at the identified locations.
3.Material Storage – Steel storage is within the A-07 boundary limits due to site logistics. Barricading is planned and will be erected to secure this area, currently on hold at ROWAOA's request, pending their legal team's advice.
On the barricading and tanker line — the full background: (Linked to Point 3)
- We first shared the detailed barricading plan and RESI pathway layout with ROWAOA MC as far back as January 2026, followed by a formal briefing note on 12 February 2026 (copy attached for your reference).
- The plan included two stages of barricading, shifting the tanker water inlet point further down the ramp — entirely at our cost & erect barricading at the A7 project entrance — and restoring a 1.5m wide pedestrian footpath along the A07 boundary for residents on a later stage.
- We have been holding back the barricading work in the entrance of A7 Building solely on ROWAOA's request, pending your legal team's advice.
- On 28 April 2026, Mr. Mayank Shukla confirmed that a legal opinion has been obtained and that ROWAOA will act on their lawyer's advice. However, no revert has come to us till date.
We have given more than adequate time. We will now proceed with barricading within the A-07 boundary limits within one week from today, unless we receive ROWAOA's council's specific objection or counter-proposal in writing before that.
We also want to flag — the reference to calling police in internal communications is not something we expect when we have been engaging openly, offering solutions, and giving time at every stage. We'd request that this matter be handled professionally between us.
We remain open to a quick meeting if that helps close this faster.
Warm regards, George AGM - PMT 7847843232.
Hyperlink:// Email Disclaimer which is an integral part of this Email
On 05-May-2026, at 8:24 PM, vivek tt [email protected] wrote:
Hello George [email protected]/mail/u/0/?k=fe8c7eea7f&view=pt&search=all&permthid=thread-a-r158540523795135638?%7Cmsg-f:1864517136055897... 1/3/[email protected]/[email protected]/[email protected]/[email protected]/[email protected]/[email protected]
It appears that the said activities were being objected to by the complainants and therefore a legal notice was sent on 09.05.2026 which is extracted hereinunder:
Annexure-K Chandrachur Bhattacharyya Advocate Supreme Court of India
Chamber : 601, Lawyers Chambers, block -III, Delhi High Court, Sher Shah Suri Road , New Delhi - 110003. Mobile : 9810878919; E mail ID : - [email protected]
LEGAL NOTICE DATED 09.05.2026
To,
M/s. SHYAMARAJU & Company (INDIA) Pt. Ltd. Divya Shree Chambers, A Wing #11 O' Shaugnessy Road Bangalore East BANGALORE Karnataka – 560025
... Noticee
Acting under instructions from and on behalf of my client, the Managing Committee of the Resident Welfare Association of the project “Republic of Whitefield”, I serve upon yourself this legal notice for your kind perusal and immediate compliance.
1.That on 07.05.2026 you have sent an email to my client stating therein that you had earlier shared a detailed barricading plan and RESI Pathway layout as far back as January 2026 followed by your formal briefing on 12.02.2026.
2.That as per the proposed plan shared, to expand your land for the ongoing construction site, you will acquire the already existing compound wall, footpath and some part of the road which forms part of the access ingress / egress to the society and which has been handed over the residents as easement rights.
3.In the said email you have further stated that the plan included two stages of barricading, shifting the tanker water inlet point further down the ramp and erect barricading at the A-7 Project entrance.
4.That the said construction by you has already started to create obstructions to the passage including to pedestrians and to vehicles because of the steel structure works and you are planning to barricade
Residence cum office : H-1559, Chittaranjan Park, New Delhi -110019. further on the existing path. This is causing a great amount of inconvenience to my clients and to the residents of the society.
Photographic evidence of the sade are hereby enclosed as ANNEXURE – A.
5.In the said email you have further stated that you will proceed with barricading within one week.
6.That in furtherance of the said email communication from your client to my client the present legal notice is being served on you to bring to your notice that the said action on your part in unilaterally reducing the width of the road without taking express written consent of (66%) of the allottees of the Project Republic of Whitefield, violates Section 14 of the Real Estate Regulation & Development Act, 2016.
7.That you are also further required to take the express written consent of the managing committee of the Resident Welfare Association of Republic of Whitefield in terms of the byelaws of the said society which you have not done.
8.A bare perusal of section 14 of the Real Estate Regulation & Development Act, 2016 will show that consent of (2/3rd) of the allottees is required for all alterations which are not minor additions or alterations and which include a change to or closing of any required access ingress or ingress.
9.The act which you purport to unilaterally undertake will have the effect of changing the access ingress and access egress to the society/project of which my clients are residents. Therefore, taking the express written consent of (2/3rd) of the allottees of the project is a mandatory preconditioned.
10.That in the present case you have not taken the express written consent of (2/3rd) of the allottees and therefore your act of attempting to unilaterally change the access ingress and egress is in violation of Section 14 of the Real Estate Regulation & Development Act, 2016.
11.That in addition to the above, Clause 3.9.8 of the byelaws states that the common areas and facilities means and includes all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use. The wide words of this clause therefore include the access ingress/egress also within the definition of common area.
12.Further clause 52.14 of the byelaws mandates that no member/resident shall occupy any portion of the common areas of the building except with the written permission of the management committee.
13.That in the present case the express written permission of the management committee has not been obtained by you. Further, express written consent of 2/3rd of the allottees of the Project Republic of Whitefield has not been obtained by you thereby making the above unilateral action on your part of altering the access ingress or egress illegal and arbitrary and violative of Section 14 of the Real Estate Regulation & Development Act, 2016. The same is also violative of the byelaws of the society to which you are also a signatory as the express written permission of the management committee of the society has also not been taken by you.
14.That said unilateral action on your part is also violative of the easement rights vested in the residents of the society.
15.That in view of the above provisions of law you are called upon to cease and desist from undertaking any unilateral action which will have the effect of changing or altering or modifying the access ingress or egress without taking the consent of 2/3rd of the allottees and without taking the express written permission of the management committee of the Resident Welfare Association of the said society.
16.That you are further called upon to restore to the original condition the access ingress / egress which you have altered due to the ongoing construction activity.
17.Take further notice that on failure on your part to comply with the above, my clients will be constrained to initiate appropriate civil and criminal proceedings against yourself which may be permissible under the law.
18.Copy of the legal notice is being retained in this office.
CHANDRACHUR BHATTACHARYYA ADVOCATE CHANDRACHUR BHATTACHARYYA En. No. D/1501/2008 ADVOCATE H-1559, CHITTARANJAN PARK NEW DELHI-110019 MOBILE : 9810878919 [email protected]
To this, a reply was given on 16.06.2026 by the OPs which is extracted hereinunder:
Annexure - 4
Raghuram Cadambi Advocate Address: No. 519 - 520, Prestige Centre Point, Level 5, No. 7, Cunningham Road, Bangalore 560 052. Telephone: (080) 42110158 • Cell: +91 9900039859 • Email: [email protected]
Date: 16.06.2026
By Speed Post and Email
To: Mr. Chandrachur Bhattacharyya Advocate Chamber: 601, Lawyers Chambers, Block III, Delhi High Court, Sher Shah Suri Road, New Delhi – 110 003 Email: [email protected]
Dear Sir,
Subject: Reply to legal notice dated 09.05.2026
Under instructions from our client, Shyamaraju and Company (India) Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at Divyasree Chambers, A Wing, #11, O' Shaughnessy Road, Bengaluru – 560 025, we state as follows:
1.Our client is in receipt of the legal notice dated 09.05.2026 (the Notice) issued by you, and are surprised to note the contents thereof. The Notice is misconceived, and proceeds on the basis of incorrect assumptions. It appears that your clients have not appropriately instructed you about the full facts of the case. Unless specifically admitted herein, the contents of your Notice are denied in their entirety. The true facts are set out hereinbelow for the record.
2.Your client, i.e., the Republic of Whitefield Apartment Owners Association (the ROWAOA) is an association of apartment owners in the Republic of Whitefield project (the ROW). The ROW is a project comprising 4 blocks and 1448 units of residential apartments spread across 11 acres and 31.5 guntas of land. Your clients are aware that the construction of ROW was undertaken as a part of the larger development of an integrated complex of residential and commercial buildings on the larger extent of the property admeasuring about 72 acres and 28 guntas (the Larger Property). Therefore, the ROW project is a small part of the developments in the Larger Property.
3.The Notice states that your client's grievance pertains to a common access road that is said to have been obstructed by our client, in purported violation of Section 14 of the Real Estate (Regulation and Development) Act, 2016 (the RERA Act), and in contravention of the bye-laws of the ROWAOA. At the outset, our clients clarify that this allegation is misconceived and untenable. The allegation that the nature of the common access road and the effects of ongoing construction are in contravention of the RERA Act and the bye-laws, is also incorrect. The facts pertaining to the ongoing construction and development, which have previously been duly explained to officials of your client are set out herein below for the record.
4.Our clients have been engaged in the business of construction and development of real estate projects for decades. Being desirous of construction and mixed development of residential and commercial complex, all having shared common areas and exclusive reservation of occupation, our client had entered into development agreements and sale deeds with various individuals for acquiring the lands in the area of Kundalahali Village, K. R. Puram Hobli, Bengaluru East Taluk, Bengaluru in pursuance of the aforementioned intention. By way of such agreements, our clients acquired right and interest in the Larger Property for the aforesaid purpose. As a part of construction of integrated complex, our client had carved out a part of land admeasuring about 11 acres and 31.5 guntas for the construction of residential apartment units. The agreements for sale and construction agreements executed with the buyers of residential units have expressly dealt with the areas demarcated for the ROW project and the same has been reiterated in the sale deeds executed in favour of the members of ROWAOA. In addition to the sale deeds, the members of ROWAOA have executed special power of attorney in favour of our client, wherein they have, inter alia, expressly acknowledged the existence and the extent of rights and interest in the ROW project and the Larger Property.
5.It is pertinent to state that along with the sale deeds executed between the members of the ROWAOA and our client, there are other registered instruments that have dealt with the rights and interest in the Larger Property as well as in the areas comprising the ROW project. These instruments, inter alia – Development Agreement dated 21.03.2005 and 25.03.2005, Deed of Declaration dated 29.11.2023 and the bye-laws of the ROWAOA have recognised the common areas and other facilities that belong to the apartment owners / residents. However, it is clear from the perusal of the aforesaid documents, especially – a) clause 1.1(iii) and Annexure 5 of construction agreement; and b) clauses 1.7, 1.8, 1.9 and details of Schedule A Property in the absolute sale deed, clearly specify the list of common areas and facilities, whereas excludes the common access road, which is the only means of passage available to all parts of the development across the Larger Property, and common to all users within the Larger Property. These documents clearly delineate the scope of right of the members of ROWAOA – which is an easementary right.
6.Your clients are aware that our client has retained every right and interest in the common road as well as the Larger Property for its development and use. In fact, your client's members have each duly acknowledged our client's right to develop and put up constructions in the Larger Property. Not only this, members of the ROWAOA have also undertaken to not cause any obstruction or hindrance towards the same.
7.The members of the ROWAOA are protected with the right of easement for using the common road, specifically for the purpose of passage alone. Without any intention of being adversarial, and with a view to reassure the ROWAOA and its members, our client expressly states that this easementary right is not being diluted in any manner whatsoever.
8.In fact, as a responsible developer, and with a view to be transparent, our client's officials have provided some preliminary details of the plan for development of the "A-07 Project". To this end, officials of our client have briefed the ROWAOA, having met them in person. Our client and its officials have continued to work on the development in a manner to ensure that the safety of all persons within the Larger Property is not compromised in any manner.
9.Our client reiterates that the construction is undertaken by our client in the Larger Property and does not in any way impinge upon any of the common areas / facilities that are for exclusive use and enjoyment of the members of ROWAOA.
10.Further, our client hereby once again clarifies the following in express terms:
(a)Your client's easementary rights to ROW as per the definitive documents are in no fashion affected by the proposed development of the A-07 Project. Your clients continue to have the ability to access the ROW complex.
(b)The common access road leading to the ROW Complex and serving other users of the Larger Property, which is intended for the common use and benefit of all users of the Larger Property, shall not be obstructed, adversely affected, or otherwise impaired in any manner that hinders or restricts access, in contravention of applicable rights and obligations.
(c)In any event, for avoidance of doubt, it is clarified that our client has not covenanted with you to retain the exact same road width for the common road within the Larger Property. Your client will appreciate, in fact, that the common road is wider than the access road to the Larger Property – which is a public road, maintained by the GBA.
(d)The proposed development, which is some distance away from ROW does not, in any manner, affect the ingress and egress of members of ROWAOA into and out of their complex.
11.The concerns, inter alia, the infringement of easementary right, risk of safety of general public and obstruction of the common road, and the consequent issue of this Notice seeking cease and desist of construction, is unwarranted. Our client has previously assured, and is hereby reiterating that there will be no infringement of the easementary right of passage of the members of ROWAOA.
12.Our clients has also taken all necessary safety precautions in order to ensure the safety and security of people in and around the vicinity of the construction site. Our client has deployed men and resources for preventing unauthorised access to the construction site, clear demarcation of the work area and ensuring to guide the traffic as well as pedestrian movement safely around the site, etc. In fact, the work of barricading is a key safety and security measure undertaken by our client in the construction site, which serves all individuals within the Larger Property.
13.In addition to the safety and security measures in the new development, our client has also been constantly monitoring the traffic movement. The claim that the construction associated activities has caused obstruction for the movement on the common road and basing such claim on the photographic evidence is without merit. Based on the information retained by our client, which can be produced as required, there has been no major traffic congestion in the Larger property over the past month, except for two minor congestions that are part and parcel of the traffic movement in the vicinity of any construction site.
14.Thereafter, the Notice alleges violation of the bye-laws of the ROWAOA – which in any event, are limited to ROW. It is clarified that no such violation in fact exists. While undertaking the work, our client is ensuring to implement all the necessary safety and security measures in the best interests of the general public. Our client has not, in any way acted contrary to the covenants in the sale deeds, or the construction and agreement for sale, and have not infringed the right of easement of the members of ROWAOA. Members of the ROWAOA are continuing to freely access the ROW complex, which is itself conclusive evidence of the fact that their easementary right has been respected.
15.In view of the above, we submit with particular reference to the various allegations in your notice:
16.Re para 1: The averment in this paragraph does not warrant traversal as an email was addressed to the ROWAOA on 12.02.2026, wherein the detailed plan of barricading and RESI Pathway layout was shared with the members of ROWAOA. Subsequently, another email was issued on 07.05.2026 in furtherance of the aforesaid email, informing of the commencement of work.
17.Re para 2: The averment in this paragraph is true to the extent of the plan shared with ROWAOA and the briefing on the construction of the A-07 project. Anything contrary in the materials provided to the members of ROWAOA is denied as false and misleading.
18.Re para 3: The averment in this paragraph is true to the extent of the plan shared with ROWAOA and the communication between our client and your client association through exchange of emails.
19.Re para 4: The averment in this paragraph is denied. The construction put up in the site earmarked for development of A-07 project has not created any obstruction to the passage of either pedestrians or to the vehicles, as our client has ensured to put up the barricading to the extent possible, ensuring to provide free ingress and egress to the residents of ROW. The photographic evidence at Annexure A has been incorrectly stated to be the daily state of affairs – however, the same was a one-time event of traffic congestion, unrelated to and not caused by the construction activity. There has been free flow of traffic even after the commencement of construction and in any event, given the distance between the ROW complex and the proposed A-07 Project, there is no question of any obstruction to the ingress and egress to the pedestrians or the movement of vehicles into and out of the ROW complex.
20.Re paras 5 – 10: The averments in these paragraphs are denied and are traversed together, having regard to the common question involved i.e., the alleged violation of section 14 of the RERA Act. The averment made in relation to the alleged violation of RERA Act is incorrect. At the outset, there is no necessity for our client to take the consent of the members of the ROWAOA as there is no alternation / material change, (indeed, for that matter, even a minor change) in the sanction plan of the ROW project. Secondly, the construction of the A-07 Project is in compliance with applicable law, and in any event need not concern your client. It is an independent development by our clients that is, in no way, affecting the rights and interests of the apartment owners in the common areas / facilities of the ROW project. Further, it is in furtherance of our client's rights which your client's members have each duly acknowledged.
21.Re para 11 and 12: The averments in these paragraphs are traversed together as they involve the clauses in bye-laws of the ROWAOA. The averment related to clause 3.9.8 and 52.14 are not relevant to the present dispute. Ex facie, clause 3.9.8 pertains to "common areas and facilities" of the ROW project. This clause cannot be said to apply to an access road outside of the ROW project, over which the ROWAOA and its members only have any easementary right. Similarly, clause 52.14 pertains to the pre-requisite of written consent by the Management Committee of the ROWAOA for the occupation of the common area of the building. Once again, this does not apply to either our client, or the proposed development and its effect on the common access road.
22.Re para 13 and 14: The averments in these paragraphs are traversed together and denied as false. At the cost of reiteration, the matter of obtaining written consent of the allottees under section 14 of the RERA Act is not applicable in the instant case as there is no change in the sanction plan of the ROW Project. The construction is being rightfully undertaken in accordance with the sanction plan. The averment that our client is in violation of section 14 of the RERA Act is baseless, since there is no modification as alleged. Similarly, the averment that the act of construction by our client being in violation of bye-laws of the ROWAOA is incorrect for the reasons set out above. The averment that the unilateral action of our client is also violative of the easementary right of the residents of the ROW project is false. Our client had agreed to grant perpetual irrevocable easementary right of access and usage of the common road, which is being upheld. The free ingress and egress being enjoyed by the members of your client is clear evidence of no infringement of the easementary right. Our client has not restricted the access or put a blockade making it impossible for the residents of ROW project to access and use of the common road.
23.Re para 15: The averment in this paragraph is denied as false and the conduct of your client in calling upon our client to cease and desist is without merit. Our client has every right to develop the Larger Property and has commenced construction without affecting any right or interest vesting with the members of ROWAOA in the common areas and facilities of ROW project.
24.Re para 16: The averment in this paragraph is denied as false as there is no necessity to restore the original condition of the ingress / egress which has been altered due to ongoing construction. It is made clear that the construction has not altered the nature of ingress / egress and free access to the ROW complex remains as on date through the common road.
25.Re para 17 and 18: The averment does not warrant traversal as it conveys the intention of your client association to pursue appropriate legal proceedings. However, there is no cause of action or legal basis for your client association to proceed with initiation of any legal proceeding.
26.Accordingly, we hereby call upon you to advise your clients to immediately withdraw the captioned Notice dated 09.05.2026 under reply. Despite this reply, should your client choose to cause hinderance to the construction of the A-07 project or initiate any proceedings, our clients would be at liberty to defend themselves, at your client's sole risk as to costs and consequences.
27.All other averments in the captioned notice which are not specifically addressed herein, are hereby denied. This notice is issued without prejudice to the rights and contentions available to our client in law thereto.
Yours faithfully, Raghuram Cadambi Advocate
On a further examination of the documents on record, we find that the issue relating to construction was communicated by the Secretary of the Association on 26.06.2026 and the said mail also reflected a photograph indicating the stated activities of the OPs on the said passage which is adjacent to another area where some construction work seems to be going on. In order to appreciate the said contention, we reproduce the mail dated 26.06.2026 and the response thereto by the OPs:
Annexure - M
332 Vivek T T [email protected]
Re: issues related to Construction at OG Gate (Building A7)
vivek tt [email protected]
Fri, Jun 26, 2026 at 5:47 PM
Dr. George [email protected]
Dr. Shyamaraju P [email protected], Shaifali Singh [email protected], rowaoa [email protected]>, ROW Property Manager [email protected], Wilson Lourd Raj A [email protected]>, "rowaoa.estatemanager" [email protected]
Dear George,
Thank you for considering the residents' requests.
Relocation of the Tanker Unloading Zone Please note that Divyashree originally implemented the current unloading zone as the only feasible option to protect the apartment complex's structural integrity. Since no alternative location is available, and this space has proven to be the most viable and convenient solution, we see no reason or challenge to relocate it at this moment. We trust you agree with maintaining this arrangement.
Road Damage and Required Rectification Regarding the road damage, we want to clarify that while tanker unloading happens at the black-highlighted section, our primary concern is the deep cracks and structural damage along the residential road. This damage was directly caused by the prolonged storage (2-3 months) of heavy construction materials, which were cleared only after the Association issued a legal notice/opinio, as well as the continuous movement and parking of heavy project logistics.
Divyashree's contractor's recent attempt to fix this by merely applying a cosmetic cement paste is unacceptable. This is a structural issue that requires a comprehensive, professional repair rather than a temporary surface patch. We expect a serious and lasting rectification plan for this stretch.
Regards VIVEK T T Secretary-ROWAOA 9947940434
On Fri, Jun 26, 2026 at 2:59 PM George [email protected] wrote:
Dear Vivek,
Thank you for raising these concerns. Please find our response below:
1. Night-Time Construction Activity
Your concerns are noted. We will take appropriate measures to control noise levels during night activities. We are actively monitoring sound levels using a decibel meter and will maintain a strict focus on ensuring work winds down by a reasonable hour to minimise disturbance to residents.
2. Road Damage & the Recent Accident
We have reviewed this carefully. There are no obstructions from the A07 construction team along the East Driveway. No materials are stocked on the residential driveway, except the DG set, which is scheduled to be moved inside the campus in August. This driveway is used only for A07 project vehicle movement, and we have a dedicated team cleaning it at regular intervals.
Our assessment indicates the accident occurred due to cracks in the driveway near the tanker unloading point. Continuous water unloading at this exact spot has caused the road to crack on either side of the underlying trench — this is visible in the current condition of the driveway (photo appended for reference).
As an additional safety measure, we have already stopped staff two-wheeler parking in this area to keep the driveway clear for smooth, unobstructed movement.
3. Tanker Loading Location – Request for Relocation
We also want to flag something important here. This location was never officially allotted for tanker loading. A line was laid unfinished at this spot as a provision for the future BWSSB Cauvery water connection. We understand that it has been used only as a temporary tanker loading point, and in the future, this same stretch is meant to become a walking pathway alongside the A7 building.
Now that the Cauvery line has been laid on the other side of the road, we request that this spot no longer be used for tanker loading. Continuing to use it will block the future pathway and also poses the same safety risk that led to the recent accident.
We request you to take some time to arrange an alternate location for tanker loading at the earliest, so we can also begin restoring this stretch as a safe walking path.
We remain committed to resolving these issues quickly and ensuring the safety of all residents. Please let us know if a quick call or meeting would help take this forward.
Warm regards,
George
From: vivek tt [email protected] Sent: 26 June 2026 00:05 To: George [email protected]; [email protected]; Ms. Shaifali Singh [email protected] Cc: rowaoa [email protected]; ROW Property Manager [email protected]; Wilson Lourd Raj A [email protected]; rowaoa.estatemanager [email protected]; Chandrachur Bhattacharyya [email protected] Subject: Re: issues related to Construction at OG Gate (Building A7)
Dear George, Shaifali, Shyamaraju,
We have received two complaints from residents regarding ongoing construction activity near the residential entrance (ROW) by Divyashree Developers. The concerns are outlined below:
1.Continuous Night-Time Construction Activity: Residents have reported that construction work is continuing throughout the night, often until as late as 4:00 AM. Activities such as truck loading and unloading, along with the constant noise from equipment, machines, and motors, are causing severe disturbance. This has significantly impacted residents especially children—finding it difficult to rest. We kindly request to inform the contractor/Project team to restrict construction activities and ensure that all work causing the noise is stopped by 11:30 PM 12:00AM to minimise disturbance during night hours.
2.Damage to Residential Roads and Safety Concerns: Due to the storage of construction materials on residential pathways and continuous movement of heavy vehicles, the condition of the internal roads has deteriorated significantly. Cracks have developed, making the roads unsafe. Unfortunately, an incident occurred recently where a resident met with an accident and sustained injuries due to the poor road condition. Attached CCTV footage for the same.
We request urgent intervention to address these issues—both to restore road conditions and to ensure the safety of all residents, we urge you to treat this matter with priority and take necessary action at the earliest.
Thank you for your attention to this matter.
Regards,
cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: [email protected] cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc: rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s cc:rowaoa.e.s
A perusal of this communication therefore reflects on the real dispute that is sought to be raised through this complaint which includes night time construction activity and some cracks in the road due to continuous water unloading through a tanker as well as the proposed barricading. The explanation given by the OPs item-wise therefore does not indicate any form of permanent or otherwise deviated construction so as to permanently reduce the width of the passage from 19.5 meters to 17 meters. In effect, it appears that some building material had been stored by the side for some time and a water tanker had also been parked which the complainant alleges to be an obstruction to the passage. The reply given by the OPs indicate the relocation of the tanker and that the pedestrian passage to be a walking pathway along side the A-7 building. It is also alleged by the complainant that some accident had allegedly taken place where a resident suffered some injuries.
The real issue of the disturbance alleged is due to the construction activity. We have not been able to identify any permanent reduction in the width of the road which has been projected by the complainant and has been urged by Mr. Bhattacharyya to be some sort of a permanent encroachment by reducing the width of the road by 2.5 meters.
As noted by us hereinabove, the nature of the complaint seems to be arising out of some construction activity being carried out by the OPs nearby and some temporary storage of material or a tanker that had taken place which became the source of the grievance of the complainants.
The OPs in their replies have given their explanation and if any alleged private nuisance is being caused, the complainants can approach the administrative authorities, but what we find is from the reliefs claimed is that the complainants are claiming punitive damages to the tune of Rs. 10 lakhs per owner of the Residential Unit for the illegal action and also a claim of Rs. 10 lakhs per month to the Association for having utilised the said access area of the road, to be utilised for the benefit of all flat owners. Relief clause no. (c) and (d) are to that effect. There is another relief prayed for restoring the OG gate to its exact original location which can also be raised before the RERA Authority, if at all. The nature of the allegations and the reliefs prayed for combined together therefore in our considered opinion are in the nature of seeking an injunction or demanding a rent for the alleged utilisation of the road side area as stated in the complaint.
In our considered opinion, if the complainants are alleging any violation of the approved plan according to Section 14 of the RERA Act, they ought to have moved a complaint before the RERA Authority if permissible under law given the aforesaid circumstances and the factual situation as discussed by us hereinabove. We also find our view to be in consonance with the settled law enunciated by the Apex Court in the case of Mansi Brar Fernandes vs. Shubha Sharma & Anr., 2025 SCC OnLine SC 1972, paragraph 15.2, which is extracted hereinunder:
15.2.In this necessary in this backdrop to reiterate certain settled principles :
- The RERA, remains the primary forum for redressal of homebuyers' grievances;
- The Insolvency and Bankruptcy Code is a forum of last resort, intended to secure revival and completion of viable projects, not to serve as a debt recovery mechanism; and
- Consumer forums should confine themselves to adjudicating individual service deficiencies, thereby avoiding conflicting or overlapping orders across multiple fora.
The question of deviation of any plan or violation of the approved plan therefore is not the real issue and it is rather the alleged breach of easementry rights over the passage due to a temporary barricading as proposed appears to be a contest between the parties. This is clearly evident from the exchange of communications and also the detailed reply of the OP to the legal notice on 16.06.2026.
Paragraphs 5 to 13 of the said reply have been perused by us which indicate the real nature of the dispute raised by the complainants which is obviously with regard to the traffic movement. A para-wise reply was also given through the said notice and once again the issues were explained in the mails exchanged on 26.06.2026 quoted hereinabove. It is therefore not a builder-buyer dispute pertaining to either possession, refund or deficiency and defect in constructions or delays that may give rise to any claim of compensation. This being not the dispute, the project having been completed long back and the residents living there, the grievances about the utilisation of the passage which the OPs explain that it pertains to the easementry rights claimed by the complainants that stand preserved. We find this to be the real nature of the dispute which is purely civil in nature involving complicated facts that may require leading of evidence. This is also coupled with the fact that the relief prayed for is substantially that each of the flat owners should be paid an amount for such utilisation and more particularly, the complainant association should be paid Rs. 10 lakhs per month, so long as the roads continues to be utilised for the construction purposes by the OP. This also, in our opinion, may require an assessment as a civil wrong before a Court of a competent jurisdiction.
As observed above, if there are statutory violations, they can be raised before the appropriate forums and we therefore do no find this to be a consumer complaint to be entertained under the 2019 Act.
In the given circumstances and the exchange of the aforesaid material and the replies between the parties, we do not find it feasible to entertain this complaint without prejudice to the rights of the complainants to approach the RERA Authorities or such administrative authorities or the civil court for such relief as may be permissible in law. The complaint is accordingly consigned with the said observations. Any observations made hereinabove are prima facie on the basis of the documents on record and the same shall not prejudice the cause of the complainants if they approach the appropriate authorities or forum for the redressal of their grievances.