Developer failed to stick to bldg plan, gave residents possession without OC
Two separate cases of fraud and cheating have been registered in Navi Mumbai against a group of builders and government officials on the directions of the high court. The order came after Navi Mumbai residents Sunil Kumar Lahoriya and Pramod Mittal moved a writ petition in the court. In the first case, Lahoriya moved a criminal writ petition against builders and NMMC officials on the \’illegal construction\’ of VignaharCHS at sector 14, Nerul. The petition asked permission to file an FIR in the case and the court directed the local police station to register a complaint. According to the complainant, the builders of Vignahar CHS had two structural plans for the building of which one was approved by NMMC,but the building was constructed as per the other plan. Lahoriya bought a flat in the building and since no society had been formed, he was authorised by other members to sue the builder on their behalf. Lahoriya\’s advocate said his client obtained the original plan of the building using RTI and came to know that it was not what had been promised in the brochure.
In the Vignahar CHS matter, a case was registered with Nerul police station under sections 406, 420, 467,468, 471, 409 and 34 of the IPC against builders Vijay Gajra, Lada Ravariya, Dinesh Patel, Verasi Dama,Govind Varchand, Keshavji Gala, architect Anurag Garg and his wife from Dimensions Ltd, structural engineer AG Gokhale and NMMC officials Umesh Patil, Dilip Kulkarni, SanjayBanait and others. In all, 12 people were identified as accused.
In another case, Pramod Mittal moved a criminal writ against the builders of Green Heritage building at sector 20, Kharghar, and other government officials attached to Cidco,MSEDC and the crime branch, seeking permission to register a FIR. Kharghar police registered the complaint against 36 people in accordance with a direction from the court.According to the complainant, the builders of Green Heritage building gave possession to its residents without getting an occupancy certificate (OC). Cidco provided water to the building without verifying the documents and MSEDC provided an electricity connection. Even though Cidco and MSEDC sent the builder a notice to submit the OC in October, they failed to take action against him, the complainant said. \”When my client approached thecrime branch, the DCP tried to suppress the case. He held back the case and got involved with the builders of Green Heritage. So we have made the officer and other government officials co-accused in the case,\” Mittal\’s advocate said. The case has been registered against Vijay Gajra, Dinesh Patel, Gangaji Bhanushali, Sunil Gala, Sohail Gala, Karman Patel and other partners in the Green Heritage project including Vasant Bhanushali, TP Rana, Jumma Khumbhar, architect Anurag Garg and his wife, RCC consultant AG. Gokhale, NC Bhopi. The co-accused are Cidco chairman Pramod Hindurao, Cidco JMD Tanaji Satre, TC Benjamin (secretary, urban development department, Maharashtra), Manukumar Srivastava, L Radhakrushnan, SS Sandhu, Rahul Asthana, Bhaskar Wankhede (commissioner of NMMC), Namdeo Rama Bhagat, Vasant M Bhoir, MD Lele (chief planning officer, Cidco), V Venu Gopal (MTS), Vivek Marathe (MTS), Shivaji Jondhale (CCUC), DJ Chavan (executive engineer electrical), NS Patil, (executive engineer, water supply, Cidco), chief eng. Bhandup div. MSEDCL, SG Karpe (sup. eng. Vashi Circle), DR Sabu, DV Swanande (Dep. Eng. Kharghar Sub Div.), Subhash Rathod and 20 other besides DCP (crime branch) Dattatrey Shinde and officials from additional town planning departments of Cidco and NMMC.
In latest developments….All the builders involved in the Green Heritage case were remanded to judicial custody on the 16 th of May 2012 by the Belapur Court,but 2 of the accused,Mr.Gajara and Mr.Patel,fled from the Court premises and are currently absconding.The police have registered a case for absconding against them.
References:Times of India.May 12 Almost 5 years after the slum areas around Mumbai airport (Santa Cruz) were supposed to be cleared,almost nothing has changed on the ground.Almost 276 acres of land,supposed to have been cleared by the contractor HDIL,are still very much in possession of the slum dwellers.In the meanwhile,HDIL has already made a windfall profit of 2000 crores by selling the TDR it got in exchange for building tenements for the \’relocated\’ slumdwellers on its land in and around Kurla.
The total families residing in the slums numbers approx 85,000 families (or 3.5 lakh people).HDIL has so far made only (claims by the company) 10,000 tenements.Of this the Slum rehabilitation Authority has has handed over only 2000 tenements to MMRDA for allotment to the slum dwellers.But on the ground,only 500 tenements have been actually allotted.These 500 families were shifted as they were coming in the way of the sahar elevated road from WE highway to International airport.
The confusion about who is eligible and who is not is only set to intensify as more than 50% of the slumdwellers are ineligible for the houses.The govt has set the year 2000 as the cut-off date for the houses.Which means that only those slum dwellers residing there before the year 2000 will get the benefits.
HDIL has marked 5 locations for building 33,000 tenements eventually.
These are:- Premier automobile land,Kurla Popular car bazaar land,Andheri Bhandari metallurgical estate,Kurla Bombay oxygen land,LBS Marg Kilburn Engineering,Nahur
The max tenements will be built at Premier automobiles land,Kurla -17523 tenements.
Where the rest of the 52,000 slum dwellers will go is anybody\’s guess.
The collector is still busy verifying who is eligible and who is not. Currently the FSI for SRA projects stands at 4. The first time this FSI was allowed was for HDIL.Now everyone gets it. The total size of the Mumbai airport is 1800 acres. The total encroached area is 276 acres.
The new property tax calculating formula has been passed by the BMC.This calculation will now be based on the value of the property rather than the rent which it can earn in a year (which was the earlier formula).The result of this change will mean no change for flats less than 500 sq ft but for newer properties it can mean double the property tax than before. These proposals were passed by the BMC standing commitee on Thursday,10 May,2012. According to the new formula,the property tax rate will be multiplied by the Capital value of the property to arrive at the property tax. According to the BMC,the new method will cause an increase in 19% percent of properties.Rest will remain unaffected according to them.Earlier even the ward officer could increase or decrease the property tax if he saw it necessary,but this will not be possible anymore.
According to them,the new tax will fetch 32,000 crores against 3200 crore at present.
The new rates of property tax will be the following :- Residences (with metered water connection):0.41% of capital value Offices:1.95% of capital value. Banks:3.91% of capital value. Illegal buildings (without OC or water connection):8.44% of capital value.
The capital value of a property will be determined by four factors : price, area, age, and the type of property.
The proposal is yet to be passed by the General body of BMC.However,the first hurdle has been cleared.
Sourced from newspapers like DNA,Times of India and online resources.
Mumbai earned the sobriquets Maximum City, City of Gold, even the rather unflattering Slumbay because of its one quality — an ability to attract people from all over the country looking for work. As these immigrants arrive in Mumbai, accommodation problems loom large. Here, housing expert, Ameet Mehta points out the laws and flaws about living on lease and Leave & License agreements.
An interview:
Q: Ideally, if I rent a flat and live on lease does the lease have to be for 11 months? A: Earlier, Leave and License agreements were signed in multiples of 11 or 12 months. However after ‘The Maharashtra Rent Control Act, 1999’ came into force from 1.3.2000 there is no stipulation as to whether Leave and License agreement should be in multiples of 11 or 12 months, and there is no stipulation as to total time period. However Leave and Licence agreement generally does not exceed three years. But the new rule effective from May 7, 2005 states that you can do a Leave & License agreement now for a period up to five years and in multiples of 12 months each. An instrument creating a lease of immovable property for a term of one year and above was required compulsorily to be registered by virtue of provisions of Section 17(d) of the Indian Registration Act. Therefore, such Leave & License Agreements were being executed for a period of 11 months with the dual intention, namely, to avoid the stamping of such an agreement and its registration and secondly to avoid interpreting such Leave & License Agreement as a lease of the immovable property to avoid protection against vacation of the occupier, as per the provisions of the said Bombay Rent Act.
Q: Why is the lease for 11 months and not 12 months? A: The basic reason for making it on an 11-month basis by the property owner is to shy away from the law of giving six months notice. If the owner makes it for one year i.e. 12 months, then he has to give notice of six months at the end of those 12 months. If he makes the agreement for 11 months then there is no compulsion of giving notice, he can give him a minimum period of notice which he may think fit, say, seven days notice. The 11-month Leave & License agreement pre-empts the Rent Control Laws, which apply after 12 months. However, the execution of agreement is done on the basis of mutually agreed terms. Also, an agreement for less than 12 months need not be registered. This saved the stamp duty and registration money for the lessor and the lessee.
Q: Can the lease for a flat be renewed after 11 months? A: The lease of the flat can be renewed after 11 months if both parties mutually agree.
Q: If so, how many times can lease be legally renewed? A: There is no such provision on how many times lease can be legally renewed. The general practice is that the lease is renewed at least thrice consecutively.
Q: What is the basic difference between possession and occupation? A: As per law, there is a distinction between possession and mere occupation. ‘Possession’ implies control of the property. It could be actual or possession in law. On the other hand, the term, ‘occupation’ is understood in the sense of a physical presence in the premises concerned, usually for a period of time. At times, occupation may amount to possession also; but possession need not always be accompanied by occupation of the premises concerned.
Q: Often, we see owners of the flat removing the person living on lease after 11 months and refusing to renew the lease agreement because they are scared the person might claim ownership rights. Does this happen? A: Yes, this has happened quite often. However, an owner cannot be forced to agree upon renewing the agreement. There is no such compulsion and provisions in the law. Owners may refuse to renew for various reasons since they may be uncomfortable with their lessee.
Q: Can an owner/landlord terminate a lease agreement mid-way? Are there certain grounds on which he can do this? A: We need to separate the words owner and landlord. A lease can be terminated midway by the owner, if there are violations related to agreement. These could be exit clauses. However, the grounds of termination by a landlord can be challenged in court since a tenant is occupying the premise for a longer period. It is not easy to terminate midway. The landlord can go for eviction if and only if the grounds are serious and violate the terms of agreement, which have to be proved in court. In Mumbai, the provisions contained under the then Bombay Rents Hotel and Lodging House Rates Control Act, 1947, popularly known as the ‘Bombay Rent Act’ was considerably in favour of the tenants and protected their rights.
Q: Do they have to give the person some notice if they want to terminate the lease? If so, how much notice does an owner have to give a person? A: Normally, the notice has to be given for at least 30 days. It also depends upon the terms in the Leave and License agreement. The terms of notice clause may vary from agreement to agreement since a Licensee may have shifted with lot of furniture and would have also spend on some part of renovating the flat with permission of the Lessor. In such cases the notice period may be longer than one month.
Q: Are there any kind of guidelines/rules about how much a person can charge as rent? A: A person can derive the rate of rent based on the Ready Reckoner. However it can sometimes be higher or lower than the Ready Reckoner depending upon furnishings and amenities provided. The common words used while providing furnishings are ‘Hard Furnishings’ and ‘Soft Furnishings’. The Lessor provides these and the rates may hence vary depending upon this factor.
Q: What should one inspect in premises before taking it on rent? A: Before hiring premises one should get detail information about its condition. The following should be investigated:
>> Foundation, basement and visible structures.
>> Water supply, plumbing systems, drainage condition, sanitary and CP fittings.
>> Walls, ceilings, paintwork, flooring, type of roofing, etc.
>> Continuous electricity supply, electrical systems, functioning of light fittings etc.
>> Quality of doors and windows, latches, locks etc.
>> Furniture, fixtures and fittings.
>> Whether any security systems such as CCTV have been installed for safety.
Q: How often can an owner increase the rent? Can he increase it mid-way or only once in a year? A: This depends on the terms of agreement. Ideally, the rent is fixed for a period of at least one year. However, in the absence of this clause (increase in rent), it is understood that rent is fixed for a period of one year.
Q: An owner has power over the person who rents his flat. If there is a problem in the flat — maybe there is leakage. Who has to pay for it — the owner or the person renting the flat? A: Generally, the owner has to pay for the leakages if the leakage is from outside the flat. It is understood that possession has to be given in ‘Vacant and Peaceful condition’. However if the terms of agreement between the Lessee and Lessor state otherwise, then the problem in the flat is to be executed on the basis of these terms and conditions.
Q: Does the person renting a flat have the right to park his car in the building? A: If the Lessor owns a parking space, then the said parking space can be given to Lessee because that could be part of agreement. However if the open parkings are less, in such scenario the permanent residents have the first right.
Q: Are there certain restrictions an owner can put on a person renting his flat — like no pets, no non-vegetarian food etc? A: No. There is no such provision in law. This is matter of personal choice whom to lease and whom not to.
Q: Often, we see that people who rent homes abuse the trust of the owner too… how can one stop this from happening? A: This can be avoided by proper screening before one shortlist’s a Lessee. The Lessor should check the background of a Lessee such as marital status, previous track record, verification of professional status, details about permanent address etc.
Q: If an owner wishes to re-claim his flat mid-way, can he do so? A: Ideally no, unless the Lessee has violated terms of Leave and License agreement. The common violations that could lead to re-claim are (a) Renovating flat without permission of Licensor (b) Sub-letting (c) Illegal or immoral activities in flat (d) Some anti-national activities carried out in flat and so on.
Q: Does a person renting a flat have to pay monthly rent or the entire sum at one time? A: This would depend on the terms of the Leave and License agreement. Many Lessors prefer post-dated cheques in advance for the whole year.
Q: The person who is staying on rent, in a building, which has a housing society, is not really the member of the housing society. Does he have any say in housing society matters? A: The person who is staying on rent in a building, which has a housing society, has no say in the affairs of the society. However, the Lessee can place suggestions in the housing society, which may or may not be accepted by the Managing Committee. It is ideal to keep the owner of the flat informed.
Q: Would you say that a person renting out the flat is a kind of second-class citizen? Without the rights of maybe an owner — even though temporarily at least he occupies the flat? A: No, but a Lessee is on temporary accommodation. Their suggestions can be considered but not necessary accepted. They are at par with other members of a society, for peaceful use of all services available in society unless it’s a membership of a club in a society, which may not be transferable.
Q: Lots of people who live on rent, do share a happy relationship with the owner… A: Before signing any Leave and License agreement, a potential Lessee should read the terms and conditions thoroughly. If there are any clauses or sections he or she does not understand, it is important to seek clarification before entering into the agreement. This will help prevent the possibility of misunderstanding regarding the responsibilities and privileges assumed by both parties for the duration of the agreement and help keep the relationship cordial. Like somebody has said, “Having someone wonder where you are when you don’t turn up at your accommodation at night, is a good sign of happy relationship”.
How does \’Lease\’ differ from \’Leave and License?\’ U/s 105 of \’The Transfer of Property Act, 1882,\’ Lease is defined as a transfer of the right to enjoy the concerned property for a pre-defined time period or in perpetuity. The Lessor (owner of the property) gives the Lessee (the one leasing the property) such consideration periodically, usually at the beginning or end of a lease agreement. U/s 52 of \’The Indian Easements Act, 1882\’, Licensee does not allow any interest in the premises on the licensee\’s part. It merely gives the licensee the right to use and occupy the premises for a limited duration. A lease deed needs to be stamped and registered. The amount payable as stamp duty towards the lease deeds is generall y more than that payable towards the Leave and License\’s. For a period exceeding three years, the stamp duty is same for both agreements. A Leave and License arrangement ensures a regular periodic renewal of the terms, which as a rule effectively safeguards the interest of most homeowners as opposed to leasing out a property.
Chief minister Prithviraj Chavan admitted in the state assembly on Tuesday that 21 of the 23 Palm Beach Road high-rises under probe have violated construction norms, putting the heat on Navi Mumbai builders. A three-bedroom apartment on Palm Beach Road, often called the ‘Queen’s Necklace of Navi Mumbai’, can cost upwards of Rs 1 crore. The chief minister’s admission threatens to expose the web of malfeasance that besets the real estate sector in the satellite city. Earlier this year, the Navi Mumbai Municipal Corporation (NMMC) had found 23 high-rises on Palm Beach Road in violation of floor space index (FSI) norms. It ordered their developers to either regularize the illegal additions, such as extra floors, or demolish them. Heeding the warning, a few builders made a handful of corrections; the rest did not. The NMMC, however, is yet to raze the remaining unauthorized extensions. NAVI MUM BUILDERS UNFAZED BY PROBE Developers Claim ‘Minor Alterations’ Are Not ‘Gross Illegalities’, Feel Singled Out By Authorities The NMMC passed on the names of 23 towers in violation of FSI norms to the chief minister. TOI has a copy of the list. Among the buildings found in the wrong are Venus (under scrutiny for three extra illegal floors), Shagoofa and Vanashree in Nerul’s sector 58A. In Sanpada’s sector 18, the errant builders include Bhumiraj Constructions, Sai Homes, Paradise Makers and Sea Queen.
Palm beach residency
Maharashtra Navnirman Sena members Prakash Bhoir, Nitin Bhosale, Harshvardhan Jadhav and Ram Kadam recently filed a query on the issue, which came up for discussion on Tuesday during zero hour. Replying to the query, Chavan admitted that 21 high-rises had violated FSI rules and that a notice for demolition of the illegal floors was served on March 18 this year. When prodded on why no demolition action had been initiated since, Chavan assured the House that strict action would be taken against the guilty. He however added that in five cases developers had submitted proposals for regularization of the illegalities. “They will be regularized if legally permissible,” he said. When MNS members demanded action against officials who allowed the illegal constructions, Chavan said that a CID probe was already going on. During the discussion, the BJP’s Girish Bapat demanded criminal action under provisions of the Bombay Provincial Municipal Corporation Act. He contended that action under the Maharashtra Region and Town Planning Act had failed to deter culprits. Navi Mumbai’s Congress corporator Dashrath Bhagat criticized the government’s action. “Why is there a CID probe into just 21 towers on Palm Beach Road? I am sure there are many buildings in the city which need to be scrutinized by the NMMC and Cidco for blatant FSI violations.” NMMC commissioner Bhaskar Wankhede said: “I am aware of the (CID) probe. The NMMC had submitted its report regarding Palm Beach Road towers to the CM.” TOWERING VIOLATIONS The NMMC this year found 23 buildings on Palm Beach Road in violation of FSI norms.
Buildings constructed on Palm beach road
Here are their addresses and the names of their developers:-
Constructed toilets or servant rooms on mid-landing using additional FSI
Covered the lobby without permission
Put up doors or gates that did not exist in original plans
Placed generators in the parking space
Illegally built additional balconies or terraces
In the past the issue of FSI norm violations was raised in the Navi Mumbai Municipal Corporation (NMMC) in 2010. Standing committee members Shivram Patil and Dashrath Bhagat claimed that illegal extensions had been made in almost 350 towers
In Nov 2010, Navi Mumbai municipal chief Bhaskar Wankhede asked the town planning department to submit a report within two months on violations of FSI norms laid out by the state urban development department
Three teams were formed under the town planning department’s assistant director Sanjay Banait, each consisting of two engineers. The teams found 23 builders defying regulations
In February this year, the NMMC issued show-cause notices under clause 53(1) of the Mumbai Town Planning Act 1966 to 23 builders.
On March 18, 2011, the anti-encroachment department served them a one-month notice. The NMMC ordered the builders to regularize the unauthorized constructions or demolish them
A few builders made some corrections. The NMMC is yet to raze the other illegal extensions.
Advisory For Flat Buyers
Ensure the property has a clear title
Study the property thoroughly
Inspect the builder’s track record and talk to owners of flats in his prior projects
Avail a token loan from a nationalized bank
Ensure the project has all permissions
Ask for a bar chart of the various stages of construction
Ensure there are negative covenants
Get the building architect to certify the flat’s carpet area and consult a professional to check the building plan
A builder cannot sell open/stilt car parking space or pocket terrace.
Vijay Singh,Falguni Banerjee & Sandeep Ashar TNN (Times of India).NaviMumbai/Mumbai:
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