I have battle with builder filed in consumer court due to injustice with me on number of issues specially by charging extra money for my flat and the extra amount is also not mentioned in the agreement, sell of stilt parking spaces, changes in original plan without our consent and erecting of additional floor on terrace, delay in work, demanding illegal money for society formation and conveyance of the property.
Please note that this is redevelopment project, in old property we were the tenant and collectively agreed for redevelopment of the property and given the work to builder on clear terms and conditions in our agreement such as clear time limit set for completion of construction, occupancy certificates, formation of housing society and conveyance of the land. Agreement also has extension of 2 MONTHS ONLY to the said time limit only if there are any Natural Calamities or if any tenant creates stoppage in construction work without legal reason. Secondly Builder is not the land owner but he is having only the power of attorney (POA) from land owners with scope to demolish the existing structure, erecting new structure and selling rights of unsold flats to new customers, he also have secure the rights on behalf of the land owner to complete the government related works like obtaining permissions from various departments, attend and entertain any legal problems of the said land and if require can go to court on behalf of owner. My points are as follows.
1. Builder had taken extra money from me for the work which was already part of the purchase flat as per sanctioned plan of property, also charging unrealistic money under the name of extra work for which amount was never decided in agreement to sell.
2. The sanctioned plan of our building on which we had enter and agree to purchase flat had provision for 1 car park and 51 two wheeler parking for 26 flats as per D.C.Rules of municipal corporation. Now builder change the parking and created 8 illegal car parking by reducing two wheeler parking without sanction from municipal corporation and sold it to some of flat owners, who are now supporting builder for fulfilling his ill intentions as these flat owners wanted to protect their car parking, these flat owners created fabricated cages for their parking and not allowing others to use that area. As per MOFA, D.C Rules and latest judgment from Mumbai High Court sell of stilt parking spaces is illegal. Also this sell is contrary to our agreement to sell as our agreement to sell do not have provision for four wheeler parking facility and that too will be on independent basis, builder also sold the car parking overnight without licking the information to other flat members.
3. without our consent builder have constructed additional floor on terrace which is still not approved by Municipal Corporation. Please note that building is only single building and it's not a phase wise project, hence it cannot have benefit of section 7-A of MOFA, also our agreement with builder have clear clause of time limit to complete the construction, provide Occupancy certificate from municipal corporation, forming housing society, and conveyance deed. Time limit is already expired but still builder did not convey the property. Also builder intentionally delayed the formation of society to rob the unutilized FSI against the area gone for road widening. As per MOFA section 10, as soon as minimum number of flat owners get the flats builder should start the society formation process, and once society formed the unutilized FSI will be property of society but to rob this unutilized FSI, builder delayed housing society and conveyance with the help of his pets (few flat owners in building)
When we took this matter in consumer court, firstly builder did not appear in the court, took time for filing his affidavit, remain absent etc. But when honorable judge made the case ex-parte, builder have formed the society in hurry and filed his affidavit with other documents along with certificate for housing society. Now we seen that builder is appointing his pets on the body of society without election. This group is having solid influence on other flat buyers hence no one is opposing to this pet group who are helping builder to rob the unutilized FSI as well as permit him to legalize the additional floor which builder constructed on terrace which is not the part of original plan.
4. To form the society and convey the property to society name, builder is demanding illegal money, but at the fact we have already paid stamp duty and registration fee of our individual flats and we are ready to pay Rs.750 the official charge for society formation, the “Grahak Panchayat” also publish that builders are charging illegal money under the name of society formation and also directed to pay only Rs.750 which is actual charge for per member. As per our information, “The stamp duty payable on the conveyance of building and the land there under in favor of a co-operative society by the builder and/or the owner of the land shall be paid on the true market value of each unit. All non-resident units will attract stamp duty at 10 percent of the true market value and each resident unit will be require to pay stamp duty at the concessional rate as provided under Article 25(d) of Schedule –I to the Bombay Stamp Act, 1958. The Stamp Duty already paid on purchase of units by the members will be adjusted towards total stamp duty leviable on the conveyance as per explanation – 1 to the Article 25 of Bombay Stamp Act, 1958. Provided further that, where subsequently a conveyance, shall be adjusted towards the total duty leviable on the conveyance.” Hence to avoid paying stamp duty of the land builder from his pocket builder charging us more money, this is illegal.
Our case is having 99 % matching to the case of Khatri builder’s v/s Mohd.Farid Khan, 1991. So my dear friends can you advise me, weather I have enough ground to file the suit in civil court or not, to start process for filing suit in civil court or not, I have already made some applications to competent authorities under RTI act and waiting for their reply. Can you also refer me good lawyer too.
Sorry, I forgot to mention here that our agreement made by builder which have blanket permissions to change the plans which is contrary to MOFA as well as agreement is having many clauses contrary to model agreement of state govt known as form V.
File complaint before a magistrate under MOFA. Besides consumer remedy. MOFA has clearly provided for remedies against the malpractices mentioned by you. Please note there is period of limitation. if you do not act within the period of limitation this remedy will not be available to you.
Besides what you have mentioned it may be noted that punishment provided under the act is maximum 3 years excepting for one contravention for which punishment is 5 years. In cases of offences punishable upto 3 years under Cr.P.C. the period of limitation is 3 years. In case of the offence punishable under the act with imprisonment of 1 years the period of limitation under Cr.p.c. is 1 year.
Sessions Judge HH D U Mulla of the Bombay Sessions Court on 5th October 2009 directed issuance of process against Godrej & Boyce a promoter for the contravention of the provisions of MOFA and in particular for the sale of parking space to a flat purchaser. Earlier the Magistrate court had dismissed the complaint filed by the flat purchaser on the ground that the flat purchaser had not made out a prima facie case and that the agreement entered into by the flat purchaser had provided for sale of the parking space. The flat purchaser had challenged the same earlier in revision before the Hon'ble Sessions Judge who was pleased to quash and set aside the dismissal of the complaint. Godrej & Boyce went to the High Court on the technical ground that the hon Sessions Judge did not grant them a hearing before quashing and setting aside the dismissal order. Before the High Court the flat purchaser consented for remanding back the matter to the Hon'ble Sessions Court for a giving the promoter an opportunity of hearing. His Honour Judge D.U.Mulla has after giving an opportunity to the promoter of an hearing has quashed and set aside the dismissal of the complaint and has directed issuance of process against the Godrej & Boyce Mfg Co. Ltd. & its Chairman & Managing Director.
In our case there were three old properties amalgmated for redevelopment whose areas in sq mt as per city survey record is 272 + 183 + 194. This was disclose in our agreement and on the same basis we had enter in to the time bounding agreement, construction of building is completed and we have been put in the flats.
Builder did not take completion certificate,took only part occupancy certificates from municipal corporation.And without our consent builder erected additional flats on the top of building which is shown as terrace in the sanctioned plan.
Now to legalise the illeaglly erected flats, the builder is short of FSI and to achieve additional FSI we come to know that builder is trying to make correction in land by changing 272 to 288 sq mt of one of the amalgameted property by purchasing / managing neighbour plot owner so he can get additional FSI and can legalise his additional flats.
In connection to this builder had also applied for correction in land area to the collector after land area measurement from city survey office.
So once land is corrected he can claim additional FSI from corporation plus use the FSI for road widening he can easily legalise all his malpractises. Now due to our case pressure builder have formed society with few flat owners who are helping him in his ill intentions by appointing them as committe members of society, so as result society will not object builder for continuing his malpractise.
Our agreement to sell executed with builder is time bounding and it is already expired as the said time in agreement is already over.
How can builder change the land area after he done the agreement with us, completed the construction of building, took the part occupancy certificate, agreement time is expired.
How society which is formed by builder (with his suppoters) allow builder to continue his malpractise and drag out everything from the land.