LE­GAL REMEDIES

Com­pen­sa­tion for de­lay

Hindustan Times (Chandigarh) - Estates - - FRONT PAGE - Su­nil Tyagi ht­es­tates@hin­dus­tan­times.com ■

Buy­ing a home of their own is still a dream that eludes many In­di­ans. Book­ing an apart­ment with a builder is the first step to­wards the ful­fil­ment of this dream. De­lays in de­liv­ery of apart­ments even af­ter con­sumers have been pay­ing EMIs reg­u­larly greatly in­con­ve­niences them as they have to also pay rent for their tem­po­rary shel­ter. Many peo­ple have been forced to seek le gal re­course against builders who make false promises and mis­rep­re­sen­ta­tions to them when the prop­erty is be­ing booked and by ex­e­cut­ing builder-buyer agree­ment on terms and con­di­tions that are not com­plied with. Of late, the courts of law have adopted a strict ap­proach for such de­lays in han­dover of pos­ses­sion, terming them ‘de­fi­ciency in ser­vices’ by the builders. As in the re­cent case of Sangeeta Jain and two oth­ers (com­plainants) ver­sus (i) Ya­muna Ex­press­way In­dus­trial Development Au­thor­ity (YEIDA) and two oth­ers; and (ii) Depart­ment of Stamp and Reg­is­tra­tion (op­po­site par­ties), the Na­tional Con­sumer Dis­putes Re­dres­sal Com­mis­sion (NCDRC) or­dered one of the op­po­site par­ties to pay com­pen­sa­tion and granted var­i­ous other re­liefs to the com­plainants be­cause of de­lay in han­dover of the pos­ses­sion of booked res­i­den­tial prop­erty to the buy­ers.

The case is about al­lot­tees of res­i­den­tial plots in the pre-launched res­i­den­tial plot scheme by YEIDA called Ya­muna Ex­press­way In­dus­trial Development Au­thor­ity Res­i­den­tial Plot Scheme 2009. The al­lot­tees or com­plainants, un­der the opted plan, were ob­li­gated to pay 30% of to­tal premium up­front and the re­main­der in 16 half-yearly in­stal­ments, with in­ter­est at the rate of 12% pa. It was stated that the scheme pro­vided for pos­ses­sion of the plots to be handed over to the al­lot­tees, upon pay­ment of 75% of premium or af­ter four years from date of is­sue of al­lot­ment let­ter, whichever ws later. The stamp charges, reg­is­tra­tion charges, etc, were to be borne by the al­lot­tees at the time of ex­e­cu­tion of the lease deed.

The com­plainants al­leged that YEIDA sent ‘de­faulter no­tices’ with threat­en­ing con­se­quences to al­lot­tees de­spite them duly re­mit­ting the in­stal­ment amount. Ag­grieved by such no­tices, a com­plainant filed an RTI ap­pli­ca­tion to which YEIDA re­sponded stat­ing that the lease plan was not re­ceived from the Plan­ning Depart­ment and hence YEIDA was not in a po­si­tion to give pos­ses­sion.

The Com­plainants fur­ther con­tended that YEIDA had the duty to ap­proach the Plan­ning Depart­ment for lease plan and get their ap­proval which it failed per­form. More­over, YEIDA had not even ini­ti­ated development ac­tiv­i­ties and the sta­tus of the land re­mained what it was prior to al­lot­ment of plots. The Com­plainants had al­ready made 75% of the pay­ment and failed to get any re­sponse to sub­se­quent let­ters from YEIDA.

YEIDA called upon one of the com­plainants to ex­e­cute an agree­ment to lease (ATL) and in­formed them that the said agree­ment would men­tion al­lot­ment rates and not cir­cle rates. YEIDA went on to make the ex­e­cu­tion of fresh ATL com­pul­sory for the pur­pose of trans­fer of plots in favour of the com­plainants from the pre­vi­ous al­lot­tee. It was al­leged that that YEIDA did so in ab­sence of own­er­ship, pos­ses­sion and with­out de­mar­ca­tion of plots and for the ben­e­fit of the Depart­ment of Stamp and Reg­is­tra­tion and Reg­istry Of­fice. Fur­ther, the stamp duty on the pre­vi­ous ATL was not ad­justed and was charged at 5% of the cir­cle rate and not on the orig­i­nal al­lot­ment rate.

NCDRC held YEIDA guilty of un­fair trade prac­tice stat­ing that it should not have an­nounced the scheme with­out hav­ing a clean ti­tle of the ac­quired land as it was com­mon knowl­edge that farm­ers move to High Court and then to Supreme Court for en­hanced com­pen­sa­tion af­ter ap­proach­ing district/ad­di­tional district judge.

YEIDA was di­rected to han­dover pos­ses­sion of the prop­erty to the com­plainants, within one year. In case that was not pos­si­ble YEIDA had to pro­vide al­ter­na­tive prop­erty to the al­lot­tees as per their choice. If nei­ther of the given op­tions were pos­si­ble, then YEIDA was to pay back the amount to the com­plainants, along with stamp duty and in­ter­est at the rate of 12% per an­num if de­sired by the com­plainants from the date of de­posit till re­al­i­sa­tion.

YEIDA was also di­rected not to take in­ter­est for the re­main­der pay­ments to­wards al­lot­ment of prop­erty to al­lot­tees ex­cept for four years till the com­plainants were in pos­ses­sion of their re­spec­tive prop­erty. Fur­ther, YEIDA was de­barred from send­ing any “de­faulter no­tice” or forc­ing al­lot­tees to ex­e­cute lease deeds with­out pos­ses­sion of land.

The au­thor is a se­nior part­ner at Zeus Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­i­sa­tions is real es­tate trans­ac­tional and lit­i­ga­tion work. If you have any queries, email us at ht@zeus.firm.in and ht­es­tates@hin­dus­tan­times.com.

MANY PEO­PLE HAVE BEEN FORCED TO SEEK LE­GAL RE­COURSE AGAINST BUILDERS WHO MAKE FALSE PROMISES AND REP­RE­SEN­TA­TIONS

ISTOCK

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