Applicability of Fungible Area under DCR Rules 33(7)

I stay in South Mumbai and have a property under development since July 2009. The builder claims that he has bought Fungible Area from BMC for sale by paying ₹72 lakhs as payment to BMC. He adds we are not entitled for 35% extra area under DCR 33(7) as he has not claimed our Fungible for old tenants under development. My discussion and findings say that any builder/developer is not entitled for sale of Fungible area unless he shows to BMC that he has given 35% area benefit to old tenants. The builder is admants and says my knowledge is wrong and should be taken second opinion. Hence writing in this forum for the confirmation