Maharashtra Real Estate Regulatory Authority (MahaRERA)

 

Maharashtra Real Estate Regulatory Authority (Maha RERA)

RERA has effectively started functioning in Maharashtra.

Maharashtra Government had established Maha RERA on March 8, 2017 for regulation and promotion of real estate sector in the state, with its headquarters in Mumbai.

The RERA act, lays rules and regulation for the real estate sector. It is aimed to bring in much needed transparency, efficiency, and professionalism that will further strengthen home buyers’ confidence.
 

Gautam Chatterjee appointed first Chairman of MahaRERA 

RERA-Real Estate Regulatory Authority came into effect from May 1, 2017.

Gautam Chaterjee, an IAS Officer, has been appointed the first Chairman of the Maharashtra Real Estate Regulatory Authority (Maha RERA).


First Case to be decided under RERA

In its  first case,  taken up suo moto, the RERA authority imposed penalty of Rs. 1.2 lakhs on Sai real estate consultant firm

In its first decision in a case taken up suo moto,  the Real Estate Regulatory Authority (RERA) norms that have given a big boost to home buyers, a Chembur-based real estate consultant firm has been asked to pay Rs 1.2 lakh as fine for a misleading advertisement of an ongoing construction project.

Penalised under Maharashtra Real Estate Regulatory Authority (MahaRERA) act, Sai Estate Consultant became the first firm to be fined under the act. The Authority’s order, issued on Monday,  stated that the consultant was guilty of advertising a project which wasn’t registered with it at the time of advertising.

Under the new rules, advertising for sale of flats in projects that are not registered with the Authority is considered as a violation under the rules of the regulatory body. The firm, which advertised a project of Haware builders in Thane, has also been asked to withdraw the advertisement and restrain from promoting it in absence of the Authority’s registration.

In addition to the fine, the firm has also been asked to tender an apology. The action comes as result of a complaint, filed in this regard from consumer activist outfit, the Mumbai Grahak Panchayat. “We welcome this bold order, and hope builders and real estate agents learn lessons from it,” the activist outfit was quoted as saying by Indian Express.

The entire decision is available at the following site:

https://maharera.mahaonline.gov.in/Site/Upload/pdf/Legal-Advisor-MahaRERA-Vs-Sai-Estate-Consultant-Chembur-Pvt-Ltd-Suo-Motu-Case-No-1-of-2017-dated-5-06-2017.pdf


Important Links

The MAHARERA site states that even if you have filed a complaint in the Consumer Forum, you can with draw the same, and file the Complaint or application in RERA.

https://maharerait.mahaonline.gov.in/PDF/FAQMergedPDF.pdf

  1. If the buyer wants to file a complaint in Consumer Court, is there any bar under the Act?

Ans: No. As per section 79 of the Act, civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which Real Estate Regulatory Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

Web Site of MahaRERA

Link to the Web site of RERA where you can download the Act, Rules and  other documents.

https://maharera.mahaonline.gov.in/Home/Index

 

 

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

Probe cases on builders in 90 days, says Bombay High Court


Probe cases on builders in 90 days, says Bombay High Court

THE ASIAN AGE. | KALPESH MHAMUNKAR

Published  Nov 20, 2016, 1:09 am IST

Updated  Nov 20, 2016, 7:20 am IST

The Bombay High Court expressed surprise that two years has been completed but a charge sheet had not been filed yet.

 

Mumbai: If the police officer investigating any case against a builder fails to finish the investigation within 90 days and files the charge sheet, he will be answerable to the commissioner of police directly. The Bombay high court has directed the Mumbai police commissioner to evolve a mechanism to ensure that investigation of offences against builders and developers is completed within 90 days.

On failing to do so, the commissioner shall seek an explanation from the investigating officer (IO) on why he failed to complete the investigation.

The court also directed that if the commissioner feels the answer by the IO isn’t satisfactory then adverse remark should be made in the records of such officer which will be confidential.

This direction has been given by the division bench of Justice V.M. Kanade and Justice Nutan Sardesai who were hearing a criminal writ petition under which Shekhar Puranik, a builder, had approached the court for quashing of a criminal proceeding against him which was initiated by the Tardeo police station for duping a woman.

According to the petition, a woman had registered a complaint with the Tardeo police against Puranik alleging he had sold her flat to another person. For that he had duplicated signatures on the documents.

On October 14, the complainant and the builder had settled the matter between them and the builder had paid Rs 16 lakh to the woman.

On cross verification with the complainant, she stated that if she continues with the matter, she and her husband will have to go the court every month and there was no guarantee that the matter would be disposed of within a reasonable period of time.

She further stated that moreover if she had deposited this amount in the bank, in five years the same amount would have doubled.

The court also expressed surprise that two years has been completed but a chargesheet had not been filed yet. The police had informed the court that hand-writing expert’s opinion was not obtained in time and therefore, the chargesheet had not been filed. The court was not satisfied with the answer and directed the commissioner of police to inquire into the matter.

Brief Description of the Decision:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.   1268    OF  2016

Shri Shekhar P. Puranik & Others.  …    Applicants.        
V/s.
The State of Maharashtra & Anr.   … Respondents.       

­­­ Mr. S. Sathyanarayanan, Advocate for the Applicants. 
Mr.     Rupesh   Zade  a/w.   Shailesh   Chavan,   Advocate   for   the Respondent No.2.

Shri  Patel S. Y., A.S.I. to Tardeo Police Station is present.        ­­­   

CORAM :  V. M. KANADE   AND   Ms. NUTAN D. SARDESSAI,JJ.                          
DATE   :  16th NOVEMBER, 2016

Representative Complaint on behalf of a large number of Consumers

 

In their order dt. 7 October 2016, The NCDRC has passed a detailed order  interpreting Section 12(1)(C) of the Consumer Protection Act, allowing home buyers who have invested in a project to be automatically made party to any case filed against a builder.

Referred to as a representative lawsuit, this can only be done if their interest, complaint or grievance is common to that of the person who has filed the complaint. The order applies to all new cases as well as old ones.

 

                    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
                                                                     NEW DELHI
 

 

 
                                             FIRST APPEAL NO. 166 OF 2016
           
(Against the Order dated 27/01/2016 in Complaint No. 586/2015 of the State Commission Maharastra)          

 

BEFORE:  
  HON’BLE MR. JUSTICE D.K. JAIN,PRESIDENT
  HON’BLE MR. JUSTICE V.K. JAIN,MEMBER
  HON’BLE DR. B.C. GUPTA,MEMBER

 

For the Appellant :  
Mr. S.K. Sharma, Advocate
Dr. Abhishek Atrey, Advocate

 

For the Respondent :
Mr. Nikhil Jain, Advocate Mr. Anshuman Nandi, Advocate


Dated : 07 Oct 2016

 ORDER
JUSTICE V.K. JAIN, MEMBER
         

 

 Link to the full order:

 http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F504%2F2016&dtofhearing=2016-10-07

25 flat buyers kept hanging by builder for 22 yrs – get justice in two years

 

The Consumer Forums are taking a much needed tough stand against erring builders who think they are above the law and are resorting to all kinds of unfair and illegal practices…

 

Swati Deshpande| TNN | Updated: Sep 23, 2016, 08.08 AM IST

 

 

MUMBAI: The Maharashtra  State Consumer Commission has come to the rescue of 25 flat buyers who put their service class life savings in booking small homes 22 years ago, only to be asked to cough up Rs 41.5 lakhs each, almost ten times the original price, to get possession. The commission said the escalated demand was nothing but “pressure tactics” and “unfair trade practice” by the builder to get the buyers to accept his offer of Rs 14 lakh and cancel the bookings in “Rajendra Kunj’ a project in Borivli (east).

The commission directed the builder, Truly Creative Developer Pvt Ltd, to hand over possession of flats in two months at the original price and with all agreed amenities. The order is to also pay damages of Rs 50,000 each to 25 buyers for the mental agony that the unprecedented delay has caused them.

The flats were booked between 1994 and 1998 by 112 persons, mostly employees of Excel Industries, at prices that ranged between Rs 4 lakh and Rs 6 lakh. Most had paid over 50% of the flat’s cost. In 2011, the developer demanded Rs 41 lakh more from each buyer and said the market rate in the vicinity was around Rs 80 lakh for similar-sized flats. The developers, Rajendra Barde and Dattatray Barde, directors of the firm, also initially offered them an 8% return on the money they had already paid. The lawyer for the buyers, Dilip Kulkarni, argued that it was not money, but flats they wanted, as entitled in law. The builder wants the buyers out so that he can sell the flats at the current market rate which would attract a price of around Rs 1 crore, they argued.

The commission panel presided over by judicial member Usha Thakare and Dhanraj Khamatkar observed that in some cases, “flats were booked in 1994, agreements executed in 2005. And no possession handed over till date”. The buyers had approached the commission in 2013. The work was stopped for a year in 1998 and three years since 2005 after disputes landed in the city civil court. But there was no stay on construction between 1999 and 2005 and since 2008. Yet the building is far from complete.

The builder’s lawyer, Ajay Karwath, resorted to every legal arsenal to have the buyers’ complaint dismissed. He questioned their status as consumers, calling them investors, and even challenged the jurisdiction of the commission which can hear claims above Rs 20 lakh. The commission said the buyers had claimed damages of Rs 60 lakh with interest. Hence, the jurisdiction was not flawed, and they were all employees who purchased small flats for their residence with a valid agreement and continued to pay amounts which the builder demanded over the years, hoping for completion and possession, hence they were consumers. “They would not have waited for 16 years to get possession if they were investors.”

 

Link to the full news:

http://timesofindia.indiatimes.com/city/mumbai/25-flat-buyers-kept-hanging-by-builder-for-22-yrs-get-justice/articleshow/54471423.cms

MOFA Act 1963 – FIR

 

 

MOFA Act, 1963 is a powerful Act with stringent provisions against erring builders.
The various provisions contain imprisonment of 3 years, and fine, etc.
In certain circumstances involving breach of trust, the sentence of imprisonment can go upto five years..

The offences are both cognizable as well as non bailable.
For the first time, the Maharashtra Police has issued Circular on 1 July 2016 directing its police to file FIRs under the provisions of MOFA.

The victim Flat Purchasers can take advantage of these new provisions.

There is a Supreme Court Judgement Re: Lalita Devi that all FIRs must be registered within 7 days of receiving the Complaint (later increased to 15 days). Otherwise, the Police have to intimate to the Complainant in writing giving reasons for not registering the FIR.

 

 

 

 

 

NHRC – a toothless tiger

 

Jun 2, 2016

 

Justice H L Dattu, Chairman of National Human Rights Commission (NHRC) said:
“NHRC is a toothless tiger. We painstakingly investigate human rights violation cases, sometimes in remote areas, with our limited resources. The evidence collected is put to forensic judicial adjudication by its chairman and members, who are former judges. But at the end, when NHRC arrives at a finding, it can only recommend remedial measures or direct the state concerned to pay compensation.


“We keep writing letters to the authorities concerned to implement our recommendations. But it is the sweet will of the authorities whether or not to implement NHRC recommendations. It is for Parliament to decide whether to confer NHRC with some kind of contempt powers to make authorities implement its recommendations.

 

“The National Human Rights Commission watchdog needs some teeth to enforce its orders on remedial measures in cases relating to violations.

 


“Moreover, the Act does not categorically empower the NHRC to act when human rights violations through private parties take place. A private company had acquired large tracts of land in Odisha but had not taken steps to rehabilitate or compensate the erstwhile land owners. NHRC had stepped in and directed the private company to do the needful. But the company moved the HC and NHRC’s directions were stayed by the HC on the ground that NHRC could not have taken up the case as there was no involvement of official machinery in the alleged human rights violation,” .

 

A really sorry state of affairs………….the tiger needs tooth implants.

Gundecha Builders fined Rs. 1 crore by Bombay High Court

Christmas eve has brought bad news for Gundecha Builders….one of the top builders of Mumbai.

On 23rd December 2015, Justice Mridula Bhatkar of the Bombay High Court settled a 36-year-old litigation initiated by one Shivram Shinde (since deceases) who claimed he was in “adverse possession” of the land since 1944. Gundecha Builders joined the litigation later, saying it had bought the land in 1979 from one Shivram Shinde and sought the ouster from the property of MHADA, which is proposing an affordable housing project on it.

In her order Justice Mridula Bhatkar has observed:

“It is to be noted that this is a huge government land which the government has handed over to MHADA for construction of houses for lower and middle-income groups. A judicial note is taken that in case of government land for which some scheme is launched for a public cause, it is stalled immediately either by slumlords or by encroachers by approaching the court and manipulating the facts and documents,”  adding, “These attempts are required to be defeated, otherwise public cause gets frustrated and the land is grabbed by encroachers illegally only on the basis of muscle power.”

Justice Mridula Bhatkar said it was the duty of the court to uphold the rule of law to ensure that government land is preserved especially when it is reserved for a public cause.  Justice Mridula Bhatkar has observed: “I am of the view that the suit filed by (Shinde and the builders) is entirely bogus, malafide and false with the intention to grab the land with the help of some government employees, which ought not to be allowed. It is only possible by imposing exemplary costs on the builder, considering the damage to the public cause and state wealth.”

The court directed the developer to pay Rs 1 crore as costs to MHADA within four weeks and allowed the agency to initiate action against the slum dwellers who have encroached on the property. The court extended an earlier stay on the agency till January 29, 2016, to allow time for the developer to file an appeal.

History of the Litigation

 

The sprawling piece of land is located in Goregaon West. The  case goes back to 1979, when Shivram Shinde laid claim on the land on the principle of “adverse possession” since 1944 – which means he had right over the government property as he had uninterruptedly occupied it for over 30 years. He claimed to have sold a part of it to Gundecha Builders, the builder in 1950 and the remaining portion in 1978.

The builder joined the litigation in 1998. They relied on notices issued by local authorities to claim possession of the land. This was opposed by MHADA, which pointed out that the land was part of the larger parcel of land of 241 acres which was given to it by the government in the 1960s. The state had acquired the land from the original owners between 1948 and 1950 and had paid Rs 14 lakh as compensation to the various owners. Shinde had not lodged any proceedings for the land during this time. Senior advocate P D Anklesaria, counsel for MHADA, told the HC, “It was a case of land grabbing by the builder, and he was claiming the land illegally in the name of Shivram Shinde, who was illiterate, poor and was never in possession of a single guntha of the property.”

Justice Mridula Bhatkar held that Shivram Shinde (who died during the pendency of the litigation) and the builder “have miserably failed for want of cogent, credible evidence to establish 12 or 30 years continuous, peaceful open possession of the land”. The judge said except for sale agreements between private parties, no document prior to 1970 of possession of the land was submitted before the court. “In the present case, the government was throughout in the possession. (Shinde and the builders) of and on might have been in possession of some portion of land by way of encroachment, but the Government did not lose its possession of the land,” the court said.

Juvenile Justice Act –

 

Supreme Court – last minute effort to stop the release the juvenile offender

In what looks likes a scene drawn from the Indian Cinema, on the late night of Saturday 20th December 2015, Swati Maliwal, Chief of the Delhi Commission for Women (DCW), moved the Supreme Court, seeking the court’s intervention against the release of the juvenile convict, the lone juvenile offender among the attackers in the December 16, 2012 gang-rape case.

The juvenile offender, who had just turned 20 was due to be released on Sunday 21 December 2015 after spending three years in a correctional home in Delhi under the Juvenile Justice Act. The Supreme Court agreed to hear the matter on Monday 22nd December 2015.

On Monday 22nd December 2015, the Supreme Court did hear the matter. A bench of Justices Adarsh K Goel and Uday U Lalit refused to order any further detention. They observed: 

“We also share your concerns but we have to go by the law as it stands today. Any further detention would need a legislative sanction. The law is very clear that a juvenile cannot be detained beyond three years… so what kind of interim orders can be passed by us? ”

The parents of the victim blamed every one for not passing the Amendment to the Juvenile Justice Act which they felt would have prevented the release of the juvenile offender. Surprisingly, no one told them that even an amendment in a criminal legislation can not be done retrospectively.

Did not Swati Maliwal, Chief of the Delhi Commission for Women (DCW) know this basic principal of criminal jurisprudence? Why did she raise false hopes?


Proposed Amendment to the Juvenile Justice Act

Under the proposed new law, anyone charged with a “heinous crime” —for which the minimum punishment for an adult is seven years —who is aged between 16 years old and 18 years old can be tried as an adult.

But first, a juvenile justice board, consisting of a magistrate and two social workers, would have to assess the mental and physical capacity of the person to commit such an offence as well as that person’s ability to understand the consequences of the crime.

The board can ask for the advice of psychologists and other experts.

The decision to try a person as an adult would then need to be ratified by the Children’s Court, which would also draw up a plan for rehabilitation.

If found guilty, a child who is tried as an adult must then be “sent to a place of safety” until turning 21, when he or she would be transferred to jail.


United Nations Convention on the Rights of the Child

The Proposed amendment also contravenes the United Nations Convention on the Rights of the Child, which India has ratified. The convention says all people under the age of 18 must be treated equally. Then there are Commission to safe guard the interests of children too.


Amendment Bill passed in a hurry

The law which has gathered dust for so many years has been passed in a day without any real discussion.

 

Maggie – Govt. of India files class suit in National Consumer Commission, New Delhi


On 17 August 2015, the National Consumer Disputes Redressal Commission, New Delhi admitted the Govt. of India’s class action suit against Nestle India claiming Rs. 640 crores for unfair trade practice relating to Maggie noodles and allowed the Govt. of send samples of Maggie to accredited laboratories.

The next date of hearing is 30 September.

The Complaint appears to be a little premature as the matter is already pending in the Bombay High Court (but not for compensation).
But the case is historical, because this is the first time, the Govt. has filed a class action suit in the Consumer Commission.

This shows the importance of the Consumer Protection Act 1986.

 

Update  ……. 17 December 2015

Nestle have filed appeal in the Supreme  Court of India against the admission of the class action suit by the National Consumer Disputes Redressal Commission …. and the Supreme Court has stayed the proceedings before the National Consumer Disputes Redressal Commission.