Karnataka Ownership flat (Regulation of the promotion of Construction, sale, management and transfer) Rules 1972

1)VIOLATION OF RULES & AN IMPLIED OBLIGATION

The existing laws [page 60 (7) & 61 Karnataka Ownership flat (Regulation of the promotion of Construction, sale, management and transfer) Rules 1972] are very clear. After plans and specifications are approved by the local authority, no alterations or additions with out consent of persons who have agreed to take the flats can be done.

"…unauthorized changes in the construction is brought to the notice of the promoter within a period of one year from the date of handing over the possession, it shall wherever possible, be rectified by the promoter with out further charges to the persons who have agreed to take the flats, In other cases where rectification is not possible, flat owners shall be entitled to receive reasonable compensation for such defects or change." With this law there is no scope for Akrama sakrama bailout Scheme for the builders.<</b>/p>

(On page 36 of the judgment: Apeksha Residents v/s Ganesh Shetty) "The obligation on the part of the builder to secure a sanctioned plan and construct a building, carries with it an implied obligation to comply with the requirements of municipal and building laws and secure the mandatory permissions / certificates. In this case builder totally failed on his obligation which amounts to deficiency in service and flat buyers were put to inconvenience and hardship was proved."

[On page 25 & 26 of the judgment: Apeksha Residents v/s Ganesh Shetty ]"in the given case, the opposite Party failed to obtain approved plan before making any deviation or variation on the already approved plan issued by the MCC by obtaining permission/intimation from the Complainants are put to hardship. Due to these violations, the Opposite Party has failed to get the completion certificate, occupancy certificate and the door numbers to the apartments. In other words, we can say that the Opposite Party constructed the building by violating the license issued by the MCC with out the knowledge of the owners of the apartment / with out obtaining consent which amounts to deficiency of service." Builder argued in the lower court in Mangalore that the agreement permits him to make changes.<</u>/p>

It is very clearly established that the only reason for failure to obtain the MCC's completion / occupancy certificate and door number is due to the deviation from the approved plan and license. Can this be called any thing other than deviation of Plan?

Had the builder completed the building as per the approved license, we would have got all the required documents like door no, completion certificate and occupancy certificate with out any delay. The reason of failure to obtain these document is due to deviation from the approved plan and license by the builder. This is proved by the 3 MCC orders to the builder (Ex-C25 TO Ex-C27).

[On page 25 & 26 of the judgment: Apeksha Residents v/s Ganesh Shetty]"in the given case, the opposite Party failed to obtain approved plan before making any deviation or variation on the already approved plan issued by the MCC by obtaining permission/intimation from the Complainants are put to hardship. Due to these violations, the Opposite Party has failed to get the completion certificate, occupancy certificate and the door numbers to the apartments. In other words, we can say that the Opposite Party constructed the building by violating the license issued by the MCC with out the knowledge of the owners of the apartment / with out obtaining consent which amounts to deficiency of service."

2)AKRAMA SAKRAMA BAILOUT SCHEME FOR THE BUILDERS.

Since all the flat owners are the stake holders in the Land, builder should have taken their consent before filing the application for the Sakrama Scheme. Moreover the Builder has not produced the copy his application for regularization under Sakrama Scheme at DK-CDR- FORUM. Builder has applied for regularization under Sakrama Scheme with out the consent (signature) of the flat owners, therefore the application is not valid in law. Judgment has asked the builder to withdraw the Sakrama Application immediately. This is not complied by the builder so far.

[On page 41(h) of the judgment: Apeksha Residents v/s Ganesh Shetty] DK-CDR- FORUM directed the builder that he is not allowed to put up any construction on 10th floor and on ground floor and cellar, car parking area to any other use, it should be as per approved plan and the Sakrama application filed by the builder should be withdrawn immediately.

The existing laws [page 60 (7) & 61 Karnataka Ownership flat (Regulation of the promotion of Construction, sale, management and transfer) Rules 1972] are very clear. After plans and specifications are approved by the local authority, no alterations or additions with out consent of persons who have agreed to take the flats can be done.

"…unauthorized changes in the construction is brought to the notice of the promoter within a period of one year from the date of handing over the possession, it shall wherever possible, be rectified by the promoter with out further charges to the persons who have agreed to take the flats, In other cases where rectification is not possible, flat owners shall be entitled to receive reasonable compensation for such defects or change." With this law there is no scope for Akrama sakrama bailout Scheme for the builders.

3)UNFAIR TRADE PRACTICE AND DEFICIENCY OF SERVICE

Unfair Trade Practice and deficiency of service has been proved in the DK-CDR- FORUM. Amenities and facilities provided of substandard quality. List of features has been listed on page17 of the judgment.

(On page 27 of the judgment: Apeksha Residents v/s Ganesh Shetty) "….the brochure (Ex-C31) is purely a conceptual and promoter reserved the right to add/delete / alter any details mentioned herein. The above contention can not be accepted ………… It is a settled position that that the broacher also plays an important role while purchasing the apartment by the public."

(On page 28 of the judgment: Apeksha Residents v/s Ganesh Shetty) "The advertisement given by way of brochure to the public and later on turning down with the features which amounts to unfair trade practice. In the given case, the opposite party advertised certain features in his proposed apartment and later on turned down with the amenities and facilities."

4)FORMATION OF FLAT OWNERS ASSOCIATION.

We (flat buyers) started occupying flat from April 2007. Now in 2010 i.e after 3 years he has not sold all the flats. Some thing is wrong with his entrepreneurial abilities of this builder.

We drew his attention to the Karnataka Ownership flats (Regulation of the promotion of Construction, sale, management and transfer) Rules 1972 clause 10. Promoter to take steps for formation of co-operative society / company. {page 62 (10)}

"(1) As soon as a +minimum number of persons (+Not less than 5 ) required to form a co-operative society or a company have taken flats, the promoter shall (*with in the 4 months ) prescribed period submit an application to the registrar for registration of the organization of persons who take the flats as a co-operative society or as a company; and the promoter shall join, in respect of the flats which have not been sold, in such application for membership of a co-operative society or of a company."

"(2) Nothing in sub-section (1) shall affect the right of the promoter to dispose off the remaining flats in according with the provisions of this act."

+Minimum number of persons =Not less than 5 [page 70 (9) Karnataka Ownership flat (Regulation of the promotion of Construction, sale, management and transfer) Rules 1975] & *prescribed period = with in 4 months from the date on which the minimum number of persons required to form such organization have taken the flats. [page 70 (9) Karnataka Ownership flat (Regulation of the promotion of Construction, sale, management and transfer) Rules 1975]

Builder wrongly believes that no limitation period is prescribed in the agreement to submit apartment building with land under Karnataka Ownership flats Act.