Builder liable to hand over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation)

 

Duty of  Builder :

To pay Interest and compensation for delayed possession;  builder liable to hand  over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

In CONSUMER CASE NO. 1479 OF 2015

DEVELOPERS TOWNSHIP PROPERTY OWNERS WELFARE SOCIETY
505, Hemkunt Chambers, 89 Nehru Place,
New Delhi – 110 019.                                                         ………..Complainant(s)

Versus

JAIPRAKASH ASSOCIATES LIMITED
Jaypee Greens, Sector -128, Noida – 201 304
Uttar Pradesh. …………………………………………………………….Opp.Party(s)

 

By its order dated 2 May 2016, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Decided the following issues.

 

Interest and compensation for delayed possession;  builder liable to hand  handing over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

“ 31. This Commission in the case of M/s G.G. Associates & Ors. Vs. Commodore Ravindra Kumar Narad & Anr. Revision Petition No. 1647 of 2014, decided on 16.10.2014, placed reliance on a Ruling reported in Kalpita Enclave Co-op. Housing Society Ltd. Vs. Kiran Builder of the Hon’ble Bombay High Cour t, it was observed that “if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation”.

 

“ FINAL ORDER :

i) It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016. There is already huge delay. We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the needful is done; -15

ii) For the delayed period, the OP is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective complainants w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the OP. All the necessary documents, common areas and facilities be also provided.

iii) The OP is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.

iv) As per law laid down in K.A. Nagamani (supra), we further impose costs in the sum of Rs.50,000/- payable to each of the flat allottee / allottees, total being Rs.5,00,000/-, for all the flat owners. The said amount be paid within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.

Link to the full decision:

file:///C:/Users/Eleena/Downloads/National%20Commission%20judgement2016-05-02%20(1).pdf

Execution Applications under Section 25 and 27 of the Consumer Protection Act


Execution Applications under Section 25 and 27 of the Consumer Protection Act

What to do if the Opposite Party does not obey the order of the various Consumer Forums / Commissions which have attained finality…..
You have to file Execution Applications under Section 25 and 27 of the Consumer Protection Act

 

In Maharashtra State Consumer Disputes Redressal Commission
Mr Amir Ali Tharani  vs  Mr Rajesh Sukhtnkar decided on 27 September, 2010, the Commission has detailed the difference between these two provisions and the procedure to be followed.

I am giving the gist below…….I am also giving the link to the full decision at the end of this article.


            (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

           (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

            It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 45 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

        The third party application may be permissible in a proceeding under Section 25(1) &(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

       (n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case;

 

Link to the full decision:
https://indiankanoon.org/doc/48891284/

 

Separate conveyance must for each housing society on one plot

 

Separate conveyance must for each housing society on a plot

Jehangir B Gai | TNN | Mar 22, 2010, 05.17 AM IST

Builder held liable to execute separate conveyance for each society building

 

BACKDROP: It is common to come across builders failing to execute conveyance to retain their hold over the land. This is not permissible, as per a recent ruling of the Consumer Forum for Mumbai Suburban District, in the case of Mamta-D Co-operative Housing Society v/s Gundecha Builders.

 

Case Study: Gundecha Builder had constructed four buildings at Prabhadevi. These were named Mamta-A, B, C and D Co-operative Housing Society. Of these, Mamta-D CHS raised a grievance against the builder, stating that its members had purchased flats by paying the entire consideration and taking possession in December 1984, and thereafter the society was formed and registered in December 1989, yet the conveyance was not executed as required by law. The society also wrote to the builder and demanded that he construct independent boundary walls for their building and execute conveyance. Since the builder failed to pay heed, in May 2001, the society filed a consumer complaint against the builder.

 

The builder contested the complaint. He claimed that that since the four buildings were constructed on one plot of land, it was not possible to get the mutation done in the land records for sub-division of the plots. Consequently, it would not be possible to execute separate conveyance for Mamta-D Society. He claimed that when the construction work on the plot is completed, he would execute the conveyance for all the buildings, and the society should bear with the delay. The builder stated that the complaint was devoid of any merit and should be dismissed. The society claimed that the builder’s stand was incorrect because the four buildings were not joined, each had a separate entrance and it was possible to construct independent boundary walls around each building.

 

After hearing advocates Uday Wavikar and Mr Wankhade for the society and advocate Bhandari for the builder, the forum observed that the builder was bound by the terms and conditions of the agreement and was also required to abide by the provisions of the Maharashtra Ownership Flats Act (MOFA). The law casts a duty on a builder to execute conveyance within four months of formation of the society. As this has not been done, the builder is guilty of violating the law and there is a deficiency in the service rendered by him.

 

The Forum noted that in the present case, when the complaint was argued out in the year 2010, the builder had not yet executed conveyance even though more than 20 years had elapsed from the date of formation of the society. The forum also observed that builders try to delay or withhold conveyance to take advantage of any subsequent increase in FSI, which is not legally permissible. Conveyance has to be executed within four months of formation of the society, and in case any additional FSI is available, its benefit accrues to the society which is the real owner of the land.

 

G L Chavan, delivering the judgment on behalf of the Bench comprising himself and President Suman Mahajan, upheld the complaint. By an order dated February 26, 2010, the builder was directed to construct an independent boundary wall for the society and also execute conveyance. Six months’ time was given for compliance of this order. In case of non-compliance within this period, the builder was liable to pay a compensation of Rs 50 to the society for each day’s delay. In addition, Rs 5,000 was awarded as costs.

 

Impact: The compensation of Rs 50 per day for each day of default and delay in executing conveyance should send a strong signal to other builders to desist from adopting similar unfair practices.

 

The latest update:

Gundecha Builders filed appeal against this order. The following is the latest status:

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI 
APPEAL NO. A/10/369
 
M/S.GUNDECHA BUILDERS Vs. MAMTA D CO-OP. HSG. SOC.LTD.
 
BEFORE: Justice R. C. Chavan, President Dhanraj Khamatkar, Member
 
   
Dated : 22nd  June 2015
ORDER: Advocate Mr.Mohit Bhansali is present for the appellant.  Advocate Mr.Uday Wavikar is present for the respondent.  Both the Ld.Counsel state that they are trying to settle the matter amicable and therefore, seek time. Time is granted.  Matter is adjourned to 26/08/2015.

 

MOFA is applicable to all old projects


MOFA is applicable to all old projects

Ahmed Ali| TNN | Feb 5, 2017, 06.30 AM IST


Some Advocates and Police Officers try to avoid filing FIRs under MPFA on the pretext that MOFA has been replaced by RERA. This is not a fact.
As today’s news item shows, MOFA is still alive and applicable.

 

MUMBAI: There is more trouble in the offing for the Jain brothers of Kamla Landmarc, a construction company, who have been arrested for duping investors. The EOW of Mumbai police has written to the ED about possible money laundering involving proceeds from the fraud that they suspect has touched Rs 200 crore.

Jitendra Jain, his brother Jinendra and brother-in-law Ketan Shah were arrested last November for duping investors by accepting bookings but not handing over flats or godowns, and forging property documents like commencement certificate and other development documents from BMC. So far, 16 FIRs have been registered against them. “As our investigation is on, more and more complaints are pouring in. Till now, there are around 150 victims who have been duped. We expect around six-seven more offences to be registered,” said a police officer.


The trio will find it difficult to obtain bail, claimed cops, because the police have invoked stringent sections of the 
Maharashtra Ownership of Flats Act (MOFA) in almost all the cases. Now, if ED begins a probe into money laundering, their woes will continue.


The police have frozen 200 bank accounts with Rs 8 crore linked to the builder brothers, FDs worth Rs 6 crore in various banks, 23 properties across the city and seven high-end cars.


Giving examples of the fraud, cops said the Jains accepted bookings for two industrial godowns at Hindustan Naka in Kandivli from two garment traders, but did not give them possession even after the deadline. During inquiries, it transpired that the builder brothers had sold 448 galas in the building, but only 107 agreements were registered, and only 96 were issued allotment letters. It also emerged that BMC had given permission for five floors, but the builders added two more. The BMC has served a demolition notice. In all, 200 were duped of Rs 21 crore.

 

In another case, the builder accepted bookings from 25 buyers and constructed a 17-floor highrise — Shimmer society in Santacruz (west) — though he had CC permission for only five floors. The buyers approached the Bombay high court, which directed the police to book the Jains. “In most of these offences, the modus operandi is almost same,” said police inspector Rajendra Pardeshi, who is heading the probe team that includes police officers Vishal Padir and Vikrant Shirshaat.