Saturday, 31 January 2015

Residential Illumination

 Residential Illumination
Subtle and unobtrusive lighting produce the best results. Whether it is the home or office or the business spot the lighting should neither be too bright nor too dim. It should be invisible.
Residential illumination is a special kind of its own. It demands personalization in social spaces like the living room as well as in private spaces like the bed room. A flick of a switch which turns darkness into light, can change a room from romantic to dramatic, to relaxing and even  more energizing.
If the lighting plan is effective, it helps integrate the entire visual environment by creating an appealing ambience for the persons residing, there and establishes guidelines to avoid visual chaos and fragmentation.
Illumination that is concealed and placed carefully can make quality lighting an integral part of aesthetics and an essential function of architecture.
The home lighting is not just the conventional placement of wall lights, pendant lights or chandeliers. The following points had to be borne in mind and be followed for an effective lighting plan.

The lighting illumination for the living room has to be in such a way that, it should provide a relaxing and inviting space, by blending general and accent lights, punctuated with task lights.
- An adequate general illumination level should be established
- Individual lighting arrangements should be made for highlighting art work, plants and bar counter.
- If an entire wall is illuminated with overhead fixtures, it will provide background for room furnishings.
- The decor can be enhanced and doubled up as accent lighting by using decorative fixtures.
- Architectural features like niches and mantels could be played up.

The lighting in the dining room should be such that it should create an atmosphere that elevates the mood of the diners and also flatters the food before them, simultaneously it should be conducive to pleasure and conversation.
- The visual emphasis has to be  kept off the ceilings and the wall. And it should be focused on the d├ęcor of food and guests, with the help of ceiling downlights.
- Any meal can be given a special touch by placing candles and a few lamps in decorative holders.
- Special lighting emphasis should be offered to the service areas and chinaware / silverware.

The kitchen illumination should be in such a way that it provides the right combination of beauty, safety and comfort for the user.
- The general lighting should be well distributed, uniform and as shadowless as possible.
- If fluorescent fixtures are used they reduce the energy consumption without sacrificing illumination.           
- For counter tops, under cabinet task lighting is ideal.
- Over the sink and cooking range, recess luminaries could be placed over.
- If low voltage, mini lights are placed over under and inside cabinets, the kitchen cabinets and be well accentuated.

Bed room being an area of gentle and tender emotions, it should have a subtle aura, helped by combination of general and task lighting with the overlay of accent sources.
- Downlights should be avoided over the bed for they are a direct source of glare.
- For reading at bedside, a table lamp or wall light may be placed on a swivel adjustable arm. 
- The closet, the room within a room should be lighted up.
- The uplighters always cut glare and wash the ceiling, providing soothing ambient lighting.
- Dimmers can be useful to play with the intensity of light as per the mood required to be created.

The best arrangement of lighting for the bath room will be a combination of general and task illuminance.
- If light sources are provided on either side of the mirror the shadow on the face will be minimized.
- Lighting in the bathing area can have a soft glow.
- The light fittings should be vapour proof and water tight.

- The light fitting in these areas should neither impede circulation nor cause a glare.
- As these are transition spaces,intermediate illuminance levels could be created.

- For these areas, a two-way switch on either ends should be installed.

Friday, 30 January 2015

Court rules against Builder who sold house to two Buyers

 Court rules against Builder who sold house to two Buyers
A Panvel Resident, whose Pent House in Panvel was about to be attached by a Bank, has managed to retain the 1,687 sq.ft. accommodation, thanks to an order by the State Consumer Court. The Maharashtra State Consumer Commission has now, directed the Builder to repay the loan of around Rs.12 lakh which had been taken by the previous Owner of the house.
The Owner and Occupier of the Pent House, Makrand Bharambe bought the Pent House from the Builder, Jagannath Deshpande of Ashirwad Developers, in June 2008, for around Rs.19 lakh. About nine months later, he was in for a rude shock when officers of Central Bank of India told him that the Pent House was mortgaged to them. The Bank Officials told Bharambe that they wanted to seize the Pent House which had been purchased by a certain Ketan Shah, who had bought it in 2006 from Deshpande for Rs.12.5 lakh, for which he (Shah) had availed of a loan and defaulted on its repayment.
At this stage, while Shah occupied the Pent House, it was the Bank which was its rightful Owner.
With his inability to repay, Shah handed over possession of the house to the Builder, who in turn sold it to Bharambe without informing the new Buyer about the loan that Shah had availed of and defaulted on.
The Consumer body has held the Builder guilty of deficiency in services. So, besides repaying the loan amount to the Bank, the Builder has also been directed to pay an additional Rs.1 lakh for having caused mental harassment to Bharambe and Rs.50,000 towards litigation cost.
When the Bank Officials wanted to seize the Pent House, Bharambe had confronted the Builder who shifted the onus on the loan default on the previous Owner. The Builder told Bharambe that he had cancelled the previous Sale Agreement and had it surrendered from Shah by repaying him the initial amount that he had paid. The Builder’s defence was that Shah had not intimated the Bankers about the cancellation of the Sale Agreement.
However, the two-member bench of the commission comprising P.N. Kashalkar and Dhanraj Khamatkar directed the Builder to bear the loan burden. The Commission observed that, the Builder had cheated Bharambe by selling the same flat twice–first to Shah and then to Bharambe.

The Builder had remained absent during the proceedings before the Consumer commission inspite of being issued notices by the Consumer Court.

Thursday, 29 January 2015


There is every need to ensure that the documentation of the property proposed to be purchased, is legally valid and enforceable in Law. In case of a ready made flat or house, this process may be little bit easier, but in case of projects under construction there needs strict due diligence. 

The first thing one should do, in case of projects that are still under construction, is to make sure that the builder has all the necessary approvals in place, without which it would be considered illegal. The first of these, is the necessary permission to develop the land into a residential complex. For such development, the Builders need to get approval from the Competent Authority of the Government for conversion of agricultural land or land specially designated for industrial purposes into land for residential area.  In case, if the builder has gone ahead without obtaining this approval, the entire project is illegal and it is very risky.     
For obtaining conversion of land, it also need several clearance from  environment and other departments such as fire, safety, municipal administration, airport authority, telephone department, etc. In addition to these, the builder should ensure that his project does not interfere with the urban and town planning and that the entire project has unrestricted access to road and other public utility services
Secondly, the purchaser should find out, whether the builder has necessary authority to transfer the undivided share of land to each flat owner and the entire plot to the Society of Apartment, on completion of the Project. 
Lastly, the purchaser should never forget that  there may be many a slip between the ‘blue print’ and the actual ‘final product’. In general, the developers tend to charge a premium for additional features, such as ‘swimming pool’ or ‘designer furniture’ etc. However, unless you ask the builder to incorporate all the promised features in the Agreement and make provisions for penalty in case of non-fulfilment, you stand on shaky ground. Also, watch out for the fine print, because the builders may slip in a clause in the agreement and may claim that they reserve the right to alter any of the promised features.
As an adequate precaution, please take a look at the approved construction plans and ensure whether they match with things which were promised to you. You can ask the builder to show you the requisite permits/approvals obtained from the concerned authorities. While the approved construction plans have to be mandatorily displayed at the construction site at all times, all the important approvals should be made available at the builder’s office. As per the provisions contained in Transfer of Property Act and Maharashtra Ownership of Flats Act, a seller is required to disclose all facts relating to the property, which include various permissions secured by him. In case the builder refuses to do so, a prospective buyer has recourse under the same acts.    
In addition to these documents, you should also take a look at the Commencement Certificate for Projects in Mumbai. As the name itself suggests, this Certificate is given to the builder to begin construction, only after ensuring that the builder has obtained all the requisite clearances. 

Wednesday, 28 January 2015

Ventilation at Homes

 Ventilation at Homes

Though all the five Elements of Nature are essential for the life of all living being on earth, air is without dispute the prime among them. And within the house, we need proper ventilation for a salubrious atmosphere and healthy living. For getting the welcome cool breeze inside the house, it is imperative that the air should be able to flow around the house freely. It is a proven fact that on the windward side the air blows with some force or energy so that it not only enters the house but also absorbs and carries the heat to the outside on the leeward side of the building. To facilitate easy flow of air, we should have lots of open space in the way of its entry and some space on the other side for its easy exit as well. But the availability of more space in an urban context can be just about 10 feet and in a metropolitan city like Bangalore, even 5 feet will ensure quite a bit of natural ventilation.
A big house should mean that we have open space around the house, especially on the windward side. It will be better and beneficial to plan houses in such a way that the open space around the house becomes part of the house, and extend the house outward visually so that we can feel the house getting extended to the open space.
The sensible way to get this done is by taking the outside inside by bringing the open space inside and make it part and parcel of the house. If we build from one end of the site to the other, covering more or less completely, then we are sure to feel cramped and ultimately suffer from lack of light and air. As far as light is concerned, the natural light can be compensated to a certain extent, by artificial lighting, but not the natural ventilation. A fan just churns the same stale air. The air conditioners merely cool the air, recirculating a part of the used and exhaled air to reduce the load on the system.
It is the nature of air to blow from an area of higher pressure to that of lower pressure. On the windward side the air pressure is higher, on the leeward side the pressure is proportionately lower. Therefore to facilitate this we need to keep bigger windows on the windward side and even small windows will do on the leeward side to exhaust the warm and stale air.   
Wind will have positive pressure on the south and west during the summer monsoon months and similarly there will be negative air pressure on the north and east during this season. We feel the flow of air only when it passes by our body as a stream. But it flows rather slowly most of the time, even if we do not exactly feel it. The reason for this is the pressure differential between the two sides of a building, either adjacent or opposite sides. Even this slow movement of wind brings many air changes per hour and provide the much needed relief from heat.

Even when there is absolutely no air movement, or the condition which people normally call a 'still air ' conditioner, there certainly will be air exchanges happening. In this case there will be gaseous movement due to air diffusion, which is nothing but gaseous exchange from a higher level of concentration to lower level. Generally carbon monoxide, carbon dioxide, body odour, cigarette smoke etc., which is being generated inside the house will be exchanged to the fresh air from outside, carrying in the much needed oxygen to the inside. This exchange goes on in a passive way and even for this to happen we need sufficiently big windows to the outside.
Trees are always helpful in directing and cooling the breeze into the house. Trees with a large canopy not only cool the house, but also guide the breeze inside the house through the windows, likewise, shrubs and bushes could be strategically planted to guide useful breeze to the inside of the house and filter hot rays of sun.

Nowadays, it is a common occurrence to see the houses being constructed so close to each other that we cannot expect fresh air from our neighbour's site. One can depend only on the open space that is there around the house to allow fresh air to come inside. For this to happen, we need to keep more open space on the side from where we want the summer cool breeze to enter the house. This can be accomplished by keeping more open space on the south and west.  The south side open space is more useful because the sun will be at high angle on this side and it is easy to control the sun by providing minimum projections. Even though we get a good breeze from the west too, because of the low angle of the sun from this direction in the afternoon, it is comparatively difficult to control sunlight penetrating the house.
However, we can keep large projections like portico and pergola covered gardens in the open space on the west and filter the sun light to a maximum possible extent, while allowing easy access to summer freeze.
We have very little control over the open spaces around only site. For this specific reason, it is all the more important to leave sufficient open space around the building within our site since every inch of space cost multiples of hundreds of rupees in urban areas, we have to leave it where it really adds to the quality of living in the house and most importantly, open space has to be left taking into consideration the summer wind directions.

Tuesday, 27 January 2015

Ownership of Immovable Property

 Ownership of Immovable Property
Before understanding the terminology of 'Ownership of Immovable Property' it is necessary to understand what an immovable property is in common parlance immovable property means land, buildings and  things which are  permanently attached to the land.
According to Section 2(gg) of the Karnataka Stamp Act,1957 “immovable property” includes land, buildings, right to ways, air rights, development rights, whether transferable or not, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. The Transfer of Property Act, 1882, does not define the word 'immovable property' in detail, but only mentions that immovable property does not include standing timber, growing crops or grass. According to the Karnataka General Clauses Act, 1899 immovable property shall include land, benefits to arise out of the land and things attached to the earth or permanently fastened to anything attached to the earth. The words “attached to the earth” has been elaborately described in Sec.3 of the Transfer of Property Act. According to this section, attached to the earth means --

1.    Rooted in the earth as in case of trees and shrubs;

2.    Imbedded in the earth as in case of walls or buildings or

3.   Attached to what is so imbedded for permanent beneficial enjoyment of that to which it is attached.

Let us now understand something about ownership. Ownership can be broadly classified into two absolute ownership and restrictive ownership. The ownership is an amalgam of rights, interest and title which is recognised under law. The word absolute ownership is a bundle of rights connected to some specified property. The word right has a wide meaning. It gives powers to the person said to have rights to do something or act, or not to do such thing or act, in relation to his property. Rights are of different types such as Right in Rem, Right in Personam etc. “Right in Rem” is available against the whole world while the “Right in Personam”, is available against a specified person, or group or group of persons. The owner of any property has a legal right which is recognised under the laws of the land. It consists of following rights which are only illustrative and not exhaustive:

2.      Right to use and enjoy his property without undue interference of outsiders.

3.      Right of alienation of his property as provided under law in favour of any person/s without any restrictions  by way of sale, gift, transfer by Will, and by creation of trust.

4.     Right to make alteration to the property/structure, consume, destroy, repair, reconstruct, hypothecate, mortgage, lease and to use the property as security to borrow funds.

These rights are rights in rem available against the whole world subject to the restrictions imposed under various laws like Land Reforms Act, Land Revenue Act, Town Planning Act etc.

Apart from absolute ownership, there are other types of ownerships which are restrictive in nature. In restrictive ownership, certain rights detailed under absolute ownership are restricted or not available for certain specified period.

Under co-ownership, there will be more than one person who jointly own the same property.  Both the persons have equal or certain percentage of rights to possess and enjoy the property as agreed to between them. In the case of co-ownership, the owners own the whole property jointly and thereby their respective shares are not physically ascertainable with definite measurement and boundaries. The shares are undivided. For example, in case four persons own a property of 1200 sft, each of them would be entitled to 300 sft.of undivided share in this property. This 300 sft of undivided share of property could be any part of the building/property and cannot be confined to a specific part. Share of the co-owners in the property need not necessarily be equal. It depends on their investment in the property as detailed in the purchase document. In the absence of any such details as to the share of investment made for acquisition of property it is presumed in law, that all the co-owners have equal undivided share of interest, right and title in the property as per section 45 of Transfer of Property Act. It is always advisable to clearly mention the share of investment of each co-owner in the property and their undivided share in right, interest, title in the property for the purpose of alienation, inheritance and taxation.The Co-owners share in the property is inheritable and  transferable. The concept of this co-ownership is often termed as “Tenants in common” in legal parlance. Practically, it is not possible to identify or divide a property held jointly by metes and bounds. Thus, the co-owners possess and enjoy the property in unison.

Many owners of land, lease the property to others on long lease. The terms of lease also gives right to the lessee to construct buildings and enjoy the benefits of such buildings on leased lands. This practice has led to dual ownership of land and building. The land is owned by one person and the structures thereon is owned by another person. The terms of lease also stipulate whether the ownership of the building will get transferred to the lessor or the owner of the land free of cost on expiration of the lease period or has to pay for acquisition of such structures. The Income Tax Act recognises the dual ownership concept and the owner of the building is taxed for the income received from the property.

In sale and purchase of immovable property, the parties generally enter into a sale agreement detailing the terms of contract and registration of the sale deed is done later, on performance of duties by the parties as detailed in sale agreement. At times the seller receives major portion of consideration and hands over vacant possession of the property to the purchaser pending registration of sale deed. This is called part performance. The purchaser / transferee who is in possession of property gets equitable title over the property. This is recognised under section 53 A of the Transfer of Property Act. Even in the absence of registered sale deed and though legal title is not conferred on the purchaser / transferee, the rights of the purchaser / transferee is secured against the seller or any person claiming through the seller. The only remedy available to the seller is to file a suit for payment of balance of sale consideration. The requirements of part performance as detailed in Section 53A are as follows;

1. There must be a contract like sale agreement, etc., in writing containing details of the contract including handing over of the vacant possession of the property to the purchaser.

2.  The contract shall be for transfer of immovable property for consideration.

3. After the contract is entered into the seller has put the purchaser in possession of the property and the purchaser has taken the possession of the property in part performance as per the terms of contract.

4. The purchaser has done something in pursuance of the contract like payment of consideration or has performed or is willing to perform his part of contract.

However, this equitable right derived from part performance is available only against seller or anybody claiming under or through the seller. But the provisions of this section do not affect the rights of a person who has purchased the property for valuable consideration and who has no notice of prior contract or part performance. Equitable rights of transfer under part performance are  recognized under the Income Tax Act 1961.

The other most frequently used word in property transaction is “interest”. It is a right available against the entire world, when it is related to some property, land, building, immovable and movable. The interest may be vested, contingent or absolute.
Vested interest is an interest in property enforceable by a person at present or on a future date linked to happening of certain specified event whereas the contingent interest is an interest available only on a future date and not at present, which is subject to happening of some uncertain event. In vested interest the happening of the event is certain, whereas in contingent interest it is uncertain. Hence it is contingent. As the interest is contingent, it is not transferable or inheritable. But on the happening of such uncertain event, the contingent interest becomes vested interest, when it is transferable and inheritable.

The word title which an owner has over the property is a legal right. The title has to be established with documentary evidence. The title is transferable and inheritable. From the documents of title you will come to know who is the owner of the property and if the documents of title are defective even the financial institutions will not advance for purchase or construction.  

This is different from Tenants in Common or Co-ownership. In Co-ownership, the legal heirs succeed to the right and title of the deceased co-owner. In Joint tenancy, the other Joint owner succeeds to the right of the deceased joint owner and not his legal heirs. This concept is not in practice in India, unless specifically made in certain documents. In the absence of any such specific reference, the court presumes the ownership as 'Tenants in common' and legal heirs succeed to the share of the deceased joint owner.
Knowledge of the type of ownership of the property you own would help you immensely in your possession and enjoyment of the property.

Saturday, 24 January 2015


If you are purchasing an independent pre-owned property or a flat in a housing society, initially ask for the original share certificate. One way of ensuring right ownership for property, is to verify the house agreement. To double check, you can also peruse the telephone and/or electricity bills, as they are issued only in the name of the lawful owner of property. Alternatively, you can check the housing society’s maintenance bill which contains the owner’s name and property tax details. This document will also highlight any pending charges that are due payable by the owner of the house or flat which you propose to buy. This is crucial because, if the owner sell the flat without paying his entire outstanding dues, the society may recover the same from the new owner. In order to avoid such hassles, better to ask the Housing Society to issue a No-Due Certificate or a No Objection Certificate.

Please note that any pending litigation on the property should also be a warning signal because the purchaser is legally bound by the result of the suit, and in case the Court establishes that the seller was not the rightful owner, you will have to hand over the property to the true owner who obtains a Judgment and Decree to that effect issued by the Court of Law

To check for pending litigations on the property, the lis-pendens registry available at Sub Registrar’s Office need to be verified, as it will contain the owner’s name in case any litigation is pending.

Mortgaged properties are the other lemons, you need to watch out for. In such cases, the original documents of the property are invariably held by the concerned lending Institution. As such, in case the Seller fails to show you the original documents of the property, there is every reason for you to be more alert. In case the Seller claims that he has cleared the entire outstanding dues, then insist for Bank’s full satisfaction letter or original discharge letter.

Before conclusion, it is generally opined that a clear title is not assurance enough and as such one should even consider to contact previous owners, to rule out any fraudulent transaction. As a prudent purchaser, it is better to publish a ‘public notice’ in the newspaper inviting objections if any against your proposed purchase of said property

Friday, 23 January 2015


One of the most flourishing industries in India today is the real estate industry. The number of builders and developers who offer special features to attract prospective buyers as the demand for residential and commercial property is increasing day by day. The Builders/Developers’ role in this industry is very important. Naturally there is mismatch between the promises made and what actually delivered, which is the rising cause for the consumers, i.e., buyers, dissatisfaction and grievances.
The Consumer Courts plays an important role in redressing the grievances of the Buyers / Consumers who have suffered in the hands of the Builders/Developers.  
In cases where the builders make false promises to the flat purchasers and do not comply with their statutory obligations, the allottee has an option to file a criminal case in a criminal Court for cheating, breach of contract, not responding the grievance and delivery of poor quality construction against the builder along with the consumer complaint to be filed in consumer forum.,. The allottee can issue a statutory notice to the builder. In case the builder does not respond to the notice, parties have a right to approach the Criminal Court. A police complaint can be filed after the issue of notice and then a criminal complaint can be filed before the Metropolitan Magistrate. The complainant should bring out irregularities committed by the builders while executing the constructions of the building. 
Following are the general complaints/grievances of the buyers, apart from some specific complaints:

The Builders/Developers, in the competitive market, throw number of promises, discounts and lucrative description of the property at the time of booking for a property by a prospective buyer.
  • In one of its judgment the Supreme Court of India has held that if a builder uses sub-standard material in construction of a building or makes false and misleading representations about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value.
  • In cases where the end product delivered to the buyer is of substandard in quality, the buyer has the remedy to file a consumer complaint in the Consumer forum against the Builder/Developer for deficiency in services. In such cases the consumer forums have ordered the builders to remove the defects and also pay compensation to the allottee. The allottee also has an option to file a civil suit against the builder claiming damages for breach of obligations.

  • The consumer forums have held that where the plot has been sold by the authorities/Builders without taking proper approval of the layout plans and as a result of which the possession could not be delivered to the prospective allottee, such an act on the part of the builder amounts to deficiency in service.
  • In case where the builder constructed the property without the required approvals from the authorities, the allottee/buyer can file a consumer complaint against the builder for deficiency in service. He can also file a civil suit against the builder for refund of the amount. In such cases the allottee can also approach the regulatory authority that was to issue the required approval which can statutorily force the builder to obtain the approval.
  • In such case, subsequent to allotment of the plots, the Supreme Court had banned the construction activity in five km radius of Badkhal Lake and since the complainants’ plot fell within the said Supreme Court directions and the Commission directed the builder/developer to refund the amount along with interest, holding that the complainants/ allottees were entitled to compensation.

  • In cases where the construction has been made on illegally acquired land, the buyer/allottee can approach the consumer forum or the civil court for his grievance redressal. In such cases the allottee can either claim the refund of the amount invested by him in the property or he can ask for an alternate accommodation by the same builder.
  • The Supreme Court has held that even the advertisements inviting applications for allotment without having title to the land was deceptive and unfair trade practice of the builders.

  • In cases of fraud in booking, the buyer/allottee can file a complaint against the builder in the consumer forum or file a civil suit in civil court. In case of fraud, the allottee can also file a criminal complaint before the police.
  • Note:
  • The Supreme Court has held that the name of the applicant not being considered at the time of the draw notwithstanding that the applicant had fulfilled all the requirements of the advertisement was held to be a deficiency in service,  as such, an applicant had a right for consideration of his application along with similarly situated persons and if at the appropriate time his name had been considered and allotted a plot, he would have been able to raise construction thereon with the resources at his disposal.
  • It was held that by unduly and unlawfully denying him the opportunity of allotment, a reasonable and just compensation was required to be fixed and paid.
  • It was also held that a period of 9 months to a year is justifiable period to return the application fee without any interest, but if it can be demonstrated that the delay on the part of the Authorities in refunding the application fee was unreasonable, the courts have awarded interest notwithstanding that the brochure inviting the applications clearly provided that no interest would be paid by the Development Authorities.

  • If the builder wants to undertake additional construction, which is not part of the layout plan shown to flat buyer at the time of executing the purchase agreement he must obtain the consent of the buyer. In cases of the builder/developer makes changes in the use of land or in the layout plan and the structures with respect to the one given in the agreement, the buyer must send a legal notice to the builder and if he does not respond to the same the allottee can file a complaint against the builder in the consumer forum or file a civil suit in a civil court.
  • The buyer can also file a complaint before the Competition Commission of India if he is able to show that the builder is a dominant entity in the market and is misusing his position to the detriment of the allottee by unilaterally altering the layout plan or structures of the building.

  • If the allottee is overburdened by the excessive hidden charges in the Buyer Builder agreement, the buyer can file a civil suit in a civil court.
  • The allottee can also file a complaint before the Competition Commission of India if he is able to show that the builder is a dominant entity in the market and is misusing his position to the detriment of the allottee by unilaterally imposing exorbitant hidden charges.

  • If the builder demands enhanced development charges from the allottees, the allottee can file a civil suit in a civil court.

  • After receiving the booking amount, if the builder cancels the booking, the allottee can send him a legal notice regarding the same and in case the no solution comes out or the builder does not respond to the notice, then the allottee can file a consumer complaint against him for refund for his booking amount.
  • The allottee can also file a civil/Criminal case against the builder.

Insertion of a penalty clause which is biased in favour of builder/developer is also one of the unfair practices committed by the builders. In most of the cases, the agreement contains a penalty clause in which the buyer is charged a penalty @ 18% for delayed payments in the purchase of a flat, when the builder delays the delivery of the same flat, the rate at which the builder pays is only about @ 1 to 2 % showing an unfairly loaded contract. Precautions to be taken by a prospective buyer
  • The terms and conditions of the agreement entered into between the builder and the allottee determines the refund of the booking amount. If the agreement contains an expert clause that the builder has right to forfeit certain percent of the booking amount, then there is no legal recourse. But if the agreement does not contain any such clause then the allottee can issue a legal notice to the builder.
  • The allottee can also approach a consumer forum in case the cancellation is on account of the delay caused by the builder in the completion of the project. The National Commission has held that if the request for refund is made by the allottee on the ground that there has been a considerable long delay in development or handing over of the possession of the plots, then the allottee can approach the consumer along with 18 per cent interest.

Non-delivery of possession on time is one of the major areas of conflict between the developers and the buyers. There are numerous cases where builders have taken more than the required time to finish projects while leaving home buyers to suffer financial loss. Whatsoever be the reason, the delay in completion of the project has a direct impact on the buyer. The buyer has to pay the EMIs of the bank and also the rent for his current residence. The financial loss and mental agony that the buyer has to face cannot be compensated except by giving him the physical possession of his house. The Supreme Court has held that when possession of the property is not given within the stipulated period, the delay is denial of service. Such disputes or claims are not with respect to immovable property but 'deficiency in rendering of service' of a particular standard, quality or grade.
In case of delay in delivery of possession by the builder, the legal options that are available to the allottee / buyer is:
  • to file a consumer complaint or file a civil suit against the builder for the refund of amount paid to the builder and the interest thereon.
  • file a complaint before the Competition commission of India if the builder is a dominant entity in the market and using his dominant position to the detriment of the buyer.
  • Note:
  • A person who applies for allotment of a building site, or flat constructed by the development authority or entered into an agreement with a builder or contractor is a potential user and the nature of construction is covered in the expression service of any description.
  • The Court also held that the compensation awarded by the consumer courts in such cases should serve the dual purpose of recompensing the individual while simultaneously bringing about a qualitative change in the attitude of service providers towards consumers.
  • In another case the Supreme Court has held that in a specific case, where it is found that the delay was culpable and there is no contributory negligence by the allottee resulting in harassment/injury, both mental and physical, the forum/commission would not be precluded from making an award in excess of 12% per annum.
  • National Consumer Commission has also held that the buyer is entitled to a refund of the entire money with reasonable interest, and any deduction by the builder is unjustified.

  • Where a builder creates a third party interest in the flat allotted to a person, the allottee /buyer can serve a legal notice to the builder and in case there is no response from the builder the allottee /buyer  can file a consumer complaint against the builder or can file a civil case. The allottee / buyer can also file a criminal complaint against the builder for cheating and fraud.

  • In case the builder has not received the completion certificate from the concerned authority, the allottee/buyer can file a RTI application with the SPIO of the local Municipality demanding the copies of all the documents submitted for seeking approval of the concerned authorities and can file the required NOCs with the concerned authority and can obtain the completion certificate himself.
  • If the builder has obtained the completion certificate and not willing to give it to the allottee, then he can file a consumer complaint or file a civil suit against the builder.

Thursday, 22 January 2015

Planning a new locality

 planning a new locality 
People spend most of the time in their houses. The locality in which they live requires to be comfortable satisfying their daily civic requirements. Such localities were planned earlier in Delhi and then in Chandigarh.

The site to be selected for a new locality should be convenient to reach the city center. The site should not lead to urban sprawl but enable to provide compactness in the city form for reducing the cost of services including the length of roads. The site should be suitable according to topographical features for providing water supply, storm water flow, and underground drainage (UGD). The site should not be low lying to avoid flooding during rainy season like; HSR Layout Viveknagar, part of Shivajinagar, etc.

The population to be accommodated may be about 50,000, i.e., about 10,000 families. Lesser population than this will not support the services including market. The policy of forming BDA extensions with only independent sites requires to be reviewed. The development should be for low rise apartments in a major portion, high rise apartments facing the main roads along the peripheries of the locality, and  about 20% of the locality area with sites of 12mx18m ( 40'x60') and 15mx 24m( 50'x80') facing the interior roads. Minimum number of independent sites is suggested in view of the high land values in Bangalore and the trend for high rise buildings converting the old bungalow sites in Malleswaram, Basavangudi, Indiranagar, cantonment areas, and other areas with big sites.
Main roads 24 m(80') or 30m(100') wide, according to the connectivity on either side of the locality, should be only along the boundary to see that through traffic does not pass through the locality. This will avoid risk to pedestrians by speeding vehicles, nuisance by unauthorized commercial uses, etc.  Minor roads 18m (60') wide one each from each side of the locality to reach the central part where the community center is suggested. Access roads to be of minimum 12m (40') wide to allow two traffic lanes, service lines, and tree planting.

Community Center is suggested in the center of the locality for convenience to the residents in all parts of the locality. The facilities suggested in the community are as follows : 
· Shopping complex with a departmental store, restaurants, shops, and market for vegetables and fruits, mutton, chicken and fish stalls.
· An office complex with branch offices of BBMP, BESCOM, BWSSB, Telecom Department., post office, banks, advocates offices, consulting doctor's clinics, smaller private sector offices. etc.
· A public sector health centre with maternity facilities.
· Main park for elders walking and jogging, play ground for youngsters, and a club. Number of trees may be planted in the parks.
· Smaller parks and play grounds in various parts of the locality as lung spaces and play spaces for children. If a natural valley passes through the area, valley margins as per zoning regulations is to be provided with tree planting and walking tracks.
· Schools for nursery, primary, and secondary classes by public or private sector.
· A bus terminus for BMTC buses, with auto / taxi stand, and parking of vehicles. No bus stop is necessary along the roads as the bus terminus is within walking distance in the center of the locality.

As all the civic amenities and services including shopping is provided in the locality within walking distance, no change in land use may be permitted allowing commercial activities that disturb the residents. If they require major shopping, convents, and recreational facilities, the residents may go the city center and other places. We have seen the agitations and public interest litigations by the Residents Welfare Association of Koramangala and other localities where commercial activities every where is disturbing the residents.

BBMP and BDA may enforce the provisions as suggested in the locality plan strictly to see that peaceful localities are available to the residents in future for better quality of life.