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Developers cannot add Floors without Buyers’ Consent- MahaRERA

August 12, 2020

By Nihit Nagpal and Anuj Jhawar

In a recent development, as reported by the Hindustan Times, the Maharashtra Real Estate Regulatory Authority (MahaRERA) vide its order dated July 30, 2020 in the case of Mr. Deepesh S Singh and ors vs. M/s. Neelkanth Constructions, has directed the Respondent i.e., M/s Neelkanth Constructions to not carry out any construction of extra floors on the project titled ‘Neelkanth Vihar Phase I’, in the absence of prior approval from the existing buyers.[1]

Brief background

The Complainants are allottees in the present case. The sale agreement was executed between allottees and builder in the year 2017-2018. As per the agreement, possession of the flats had to be given by March 31, 2019 but due to absence of occupancy certificate, the same got delayed. Hence, the possession was granted in the December, 2019 to the Complainants. Thereby, Complainants invoked Section 18 of the Real Estate (Regulation and Development) Act, 2016 asking for interest payment due to delayed possession. Along with the above mentioned contention, space for car parking, formation of society [under Section 11(4)(e)], execution of conveyance deed were also prayed.

Further it was contended by the Complainants that, despite Clauses 24 and 25 of the sale agreement with respect to construction of extra floors (modifications to the sanctioned plan) to utilize the FSI of the whole project land, provisions (Section 14) of RERA would supersede as the project is registered with Maharashtra RERA.

MahaRERA Order

The MahaRERA vide its order dated July 30, 2020 directed the Respondent builder, under Section 18 of RERA (Real Estate Regulation and Development Act, 2016)[2] (“the Act”) to pay interest amount for the time period April 1, 2019 to November 27, 2019 i.e., till the date on which occupancy certificate was obtained with respect to the project, to the Complainants. Along with the directions to pay interest, adjudicating body also ordered the benefit of ‘moratorium period’ to the Respondents.

Keeping in view the application of Section 11(4)(e) of the Act, MahaRERA ordered the Respondent to form a society along with execution of conveyance deed with respect to the said society, within the stipulated time of 3 months from the date of order.

Can a builder add floors or make alterations in the sanctioned layout?

According to Section 14 of the Act, any building project shall adhere to the requirements, conditions and terms present in the sanctioned plan for the respective project. The project must be in consonance with the layout plan and other specifications. The statutory provision under Section 14 further states that irrespective of any agreement, contract or legislation, the builder/promoter shall not make any changes or modifications/alterations to the sanctioned plan, except:

  • when due to architectural or structural reasons, with due recommendation from an Engineer or Architect and intimation to the allottees, certain minor modifications can be made to the structural plan.
  • with written consent of 2/3rd of the allottees (buyers) agreeing to make alterations or additions to the layout plan under sanctioned project.

Moreover, Section 14 (3) of the Act says that, in case buyer finds any defect or issue in the quality, services provided by the builder/promoter, non- compliance of the agreement etc, within the time of 5 years from the date of delivery of possession of flat to the buyer, the aggrieved home buyer is entitled to proper redressal of his complaints within 30 days of making the complaint. Failing which, such aggrieved buyer shall be entitled to appropriate compensation.

On similar grounds, a judgment was pronounced in the case of Shri Vitthal Laxman Patil v. Kores (India) Ltd. Real Estate Division Mumbai & ors., observing that Section 7 of Maharashtra Ownership Flats Act (“MOFA”)[1] akin to Section 14 of RERA, restricts a promoter/builder from making any further alterations and modifications to the sanctioned project plan, after the scope and extent of modification over a project has been disclosed. Further, Section 7A of MOFA necessitates prior consent of buyers in case of  structural modifications to the respective building (it does not include every other building of the project, but the concerned structure).

In view of the aforesaid, it is abundantly clear that the statutory provisions mandate that the promoter shall disclose all the specifications of the project, area, amenities, scope of development, possible additions and modifications etc. to the buyers/purchasers in the sanctioned plan. Despite the plan, if modifications are required, express approval and written consent shall be taken from the buyers for the same.

Even in the present case, the MahaRERA while interpreting while interpreting Section 14 of the Act, restricted Respondent builder/ developer from commencing any construction activity or make any modifications in the sanctioned plan without the 2/3rd consent and approval of the existing (allottees) buyers i.e., those who already have bought the flat.

[1]https://www.indiacode.nic.in/bitstream/123456789/8802/1/the_maharashtra_ownership_flats_act%2C1963_%2845_of_1963%29pdfcompressor-2856906.pdf

[1] https://www.hindustantimes.com/mumbai-news/developer-can-t-add-extra-floor-without-nod-of-buyers-maharashtra-real-estate-regulator/story-UUiwdRUYGzpeUkIphqooVN.html

[2] https://www.up-rera.in/pdf/reraact.pdf

[3]https://www.indiacode.nic.in/bitstream/123456789/8802/1/the_maharashtra_ownership_flats_act%2C1963_%2845_of_1963%29pdfcompressor-2856906.pdf

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