Builders generally tend to keep revising plans so that they can get the benefit of the additional FSI which may become available due to change in government policies and development control regulations. This is neither legal nor ethical. The Maharashtra Ownership Flats Act prohibits a builder from making any alterations to the sanctioned plans after executing an agreement to sell a flat. If any change is to be made, it would require the express consent of the flat purchasers. Even a blanket consent agreeing to any change in the plans is not valid, as it would not constitute "informed consent". Besides, when the builder sells flats, he includes the cost of the land, construction cost, and also his profits in the sale price; so any additional FSl which may subsequently become available rightfully belongs to the flat purchasers who would collectively form the society. If additional FSI is available, it would be beneficial to the society in future for redevelopment. Here is a case of a society which fought against a builder and succeeded.
Case Study: Raj Sahakari Gruhnirman Sanstha Maryadit, a co operative housing society at Uran, comprising 46 residential flats and 49 shops was constructed by Patil Associates. As there were various grievances to which no heed was paid, the society filed a complaint before the Raigad District Forum.
The complaint stated that the builder had recovered charges for conveyance in excess of what was stated in the agreement, but had failed to execute it, so as to try and retain the right to utilize the additional FSI. Other disputes were about creation of third party rights by leasing out the parking space meant for flat purchasers, and leakage problems. The builder had also omitted to get land usage changed from agricultural to non agricultural, had failed to obtain Occupation Certificate, and had not furnished the records and registers as required by law. Penalties imposed on the builder for various breaches by the local authorities had also not been paid.
The builder contested the complaint, denied the allegations, and questioned the society's right to file a consumer complaint.
The forum considered various judgments and legal provisions cited by Adv. Vinod Sampat who argued on behalf of the society. By its order dated October 31, 2015, the forum restrained the builder from creating any third party interest in the property. The forum observed that the builder had violated the statutory requirement to execute conveyance within four months of formation of the society. The area below the stilt was considered to be a part of the common amenities meant for car parking, and would have to be included in the conveyance. The forum directed the builder to execute and register the conveyance at his cost within 90 days.
The forum also ruled that in case any additional FSI was available, its benefit would be accrued to the society. It ordered the builder to ensure that construction was as per sanctioned plan, and to remove all illegal constructions within 30 days.
The forum also ordered the builder to remove defects in the construction and provide all promised amenities. The forum also held the builder and its partners Sunil Narayan Patil and Sagar Pramod Patil jointly and severally liable to pay a lumpsum compensation of Rs 2.5 lakh to the society.
Conclusion: A consumer forum can not only restrain a builder but also order him to remove illegal constructions.
SOURCE: ETRealty.com
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