NOTES
Flats on ownership basis when to be
constructed makes it obligatory for the promoter to give information to
intending owners on matters as set out therein. It is to be noted that
non-obstinate clause makes this obligation overriding. Sub-section (2) sets out
particular matters required to be informed to the intending owners.
It must also be noted that intending owners were
already occupants of premises may also enter into transactions with a person
who undertakes to develop the property for constructing flats and/or blocks.
Further, intending owners also may want to get title to their properties. It is
for this reason that it is obligatory to inform to the intending owners the
title, etc. as certified as set out. Revenue record pertaining to the
land/building in question have also to be informed as required under
sub-section (a). Further, full and true disclosure of all burdens on the land
or building shall have to be informed as set out in sub-section (b) to the
intending owner.
Details of construction, etc. as set out in
sub-sections (c), (d) and (e) require to be furnished to the intending owner.
Intending owners are also required to be informed
as to terms and conditions as well as other particulars pertaining to the flat
and/or block and the date of possession to be given to the intending owner.
Sub-section (h) of section 3 (2)
requires a promoter to state the precise nature of the society to be formed and
to which the title is to be given as more particularly stated therein. In this,
it is pertinent to note that rule 10 of The Co-operative Societies Act requires
sub-classification of housing societies which may have relevance for these
provisions.
Sub-section (i) requires completion
certificate under municipal law duly allowing occupants to occupy the premises.
Sub-section (j) and (k) requires
disclosures of outgoings as also of other documents and other matters as set
out therein.
Sub-section (l) requires display of the
documents, plans, specifications, etc. as set out therein.
Sub-section (m) prescribes that when
flats are advertised for sale, the extent of the carpet area inclusive of
balconies, etc. as set out and the price including the proportions for common
areas, etc. and the nature extent and description of the common area and
facilities and to common areas.
It has been found that while undertaking
development projects, the promoter and/or the builder incur violations of the
rules pertaining to development as set out by local authorities. These
violations get many a time reflected and are visited upon the intending purchasers
after they occupy the premises. Such malpractices at times used to result in
shrinking of common facilities as also of usable areas as also of facilities.
Further, the conditions imposed by the local authorities, if ignored can also
visit consequences on the premises affecting the occupants. With a view to
obviate such difficulties, the obligations such as are mentioned in section 3
are enacted. The obligations per se make violations actionable when they affect
the occupants. This, therefore, is a deterrent factor which makes it prevalent
that violations do not take place.
Agreement for sale of flat – payment of
earnest money by plaintiff – No payment of installments as documents of title
of defendant not shown to plaintiff – Sale
of flat to defendant No. 5 – Challenged – objection by defendant that oral
agreement regarding production of certificate of title was after thought –
Held, evidence of plaintiffs has gone unchallenged. It is but natural for
plaintiffs to withhold payment till defendants satisfied him their title to
plot and entitlement to make construction on said plot. Showing existence of
certificate of title or marketable title in favour of defendants was statutory
requirement under provisions of section 3 of Ownership Flats Act. Jeetmal Mangalchand
Sakhlecha & others v/s Neelkanth Building Corporation & others 2004(6)
Bom.C.R. 303; 2004 (3) All.M.R. 288
Charges under---Validity---Promoters of
building agreeing to construct building and thereafter hand over flat to
petitioner---Wilful refusal to deliver possession of said flat to
petitioner---Promoters selling said flat to other party---Agreement not
registered---Held, it could not be said promoters could not be prosecuted on
ground that agreement was not registered. Promoters could be charged with
offences of criminal breach of trust or cheating or any of offences under
Ownership Flats Act.
Where the promoters of the building who
agreed to construct the building and thereafter hand over the flat to ‘A’, had
refused to deliver possession of the said flat to ‘A’ and they could not be
prosecuted for the offences under sections 406, 409. 420 read with section 34
of I.P.C. and sections, 3,4,5,9, read with sections, 13,14 of Ownership Flats
Act on the ground that the agreement between promoters ‘A’ was not registered
under the Registration Act and since the
agreement was not registered, the agreement had become void and therefore, no
party could claim any right therein. It may be that certain civil rights of the
parties under the agreement which has become void may come to an end. The
criminal liability of a party, however, will not be extinguished. A from the
entire transaction between the parties. The oral representations made by one
party to another or written documents besides the Agreement may amount to an
offence. In a specific case the charge of cheating may depend upon the
transaction apart from the Agreement which remained to be registered.
Therefore, it could not be said tat the promoters could not be charged with the
offences of criminal breach of trust or cheating or any of the offences under
the Ownership Flats Act. Pradeep Bhupatrai Vasa v/s Bombay Builder Pvt. Ltd.
& others 1987(1) Bom C.R.327
Building permission and sanction plan –
Permission granted only for ground floor – Construction carried out upto 7
floor, agreement executed with all flat purchasers and possession handed over –
Held, Act enacted for executing an agreement for sale of flat. Law provides
inspection of section plan before execution. No leniency required to show to
professional builder/appellant who has handedly proceeded with illegal
construction of seven floor. Leela Enterprises v/s Bombay Municipal Corporation
& others 2006(2) Bom.C.R. 368; 2006 (6) AIR(BomR) 142
**********
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