Wednesday, 7 June 2017

Good News & Bad News for Redevelopment in RERA

7 June 2017, Mumbai: Good news no. 1: Individual flat-owners can complain to RERA against builder. If the rights of even one individual flat-owner (called "allottee" under RERA) are dishonoured by the builder ("promoter"), then that flat owner can just fill up some forms and pay Rs 5000/- as the fees, and seek compensation, interest, etc. and have the builder heavily penalized. Unlike court battles, this is a quick and effective solution. Until the advent of MahaRERA (Maharashtra Real Estate Regulatory Authority appointed as per Real Estate Regulation Act 2016), builders were herding flat-owners like flocks of sheep, because individually, they were voiceless. Only the cooperative housing society's office bearers had a voice, and individual flat owners were helpless. Even the doors of the police and High Court were closed for individuals or minority groups. Now, after RERA, the days of builders and office bearers herding society members like flocks of sheep to the slaughterhouse are over. 

Bad news no. 1: Paradoxically, many redevelopment projects will FAIL when economic exploitation stops! Many redevelopment projects worked only because flat-owners were like sheep. Without exploiting flat-owners, many builders cannot complete their project. Ongoing redevelopment projects may get stalled because of complaints.

Good news no. 2: RERA expects builders to compensate flat-owners for delay in possession. Builders will have to pay high rate of interest to those who booked flats based on a possession date commitment.

Bad news no. 2: Registered Redevelopment Agreements will have to be cancelled or amended. Some projects were planned on the assumption that if they were not completed in 24 or 36 months, then the builder would stop paying alternative accommodation rent to flat-owners. Builders never compensated the flat owners or buyers for any project delays! Now they will be forced to bear these costs and compensate flat owners, and therefore many builders may seek to dilute the terms of redevelopment. Instead of, say, 30% additional carpet area, the builders may offer only 15%.

Good news no. 3: Flat buyers will get an easy exit option if the builder fails to deliver possession in time. Flat buyers in redevelopment buildings will be able to exit from stuck redevelopment projects. The builder will have to refund the flat buyers with interest.

Bad news no. 3: Cost of RERA compliance and accounting is a substantial hidden cost. The effect of MahaRERA is like an earthquake for tens of thousands of ongoing redevelopment projects in Mumbai, Pune and other cities of Maharashtra. With its new regime of penalties and compensations, RERA entirely changes the project cost, and it adds one huge cost -- the cost of compliance. The duty of RERA compliance hangs like a sharp sword over the heads of the builders and estate agents, but the same sword will cut into the extra benefits that were promised to redevelopment flat-owners. RERA compliance and trouble-shooting will have to be accounted as a distinct cost-head, and if a builder fails to account for it, he will fall into a deep financial ditch! The builder will have to project all his cash flows, raw-material purchases and contractor costs accurately many years in advance, and implement them exactly as per projections -- a unprecedented, difficult and costly task requiring precision involving many highly-laid professionals working together. Money received will go into an escrow account, and withdrawals will be carefully monitored. There is no scope for fudging the accounts, because quarterly returns have to be filed. Documents once filed cannot be changed! The cost of a simple accounting mistakes and financial indiscipline can be the total failure of the building project. So accounting, which was only a side function in the building industry, will become a key function -- probably the most important function of all!

Good news no. 4: RERA's financial discipline will prevent builders from squandering funds on big cars, posh offices, huge advertisements, etc. or diverting funds into other projects. Many building projects fail due to financial indiscipline and accounting jugglery between the many companies belonging to each builder (or family of builders). Flat-buyers' hard-earned money goes for funding the extravagant lifestyle of the builder and his family members, and as a result, the projects fail. Now, that will stop! 

Bad news no. 4: Builders will not be able to reduce initial costs by entering into deals with financiers, land owners, suppliers, RCC contractors, etc. by promising them a certain number of flats. Builders often have deals with financiers or land owners for, say, 20 flats in return for finance or development rights. Now such deals will not be possible because MahaRERA deems land owners and financiers in such deals as co-promoters. Co-promoters will have to deposit the proceeds of sales of their share of flats into the escrow account, and so no financier or land owner will be interested in becoming a co-promoter. Hence, builders will have to properly buy the development rights, and enter into proper money deals with financiers without any barter arrangements. This may increase the cost of doing business, affecting the project viability. Ongoing projects where such deals are already in place may get stalled because RERA provisions for co-promoters.

Good news no. 5: Honest builders will find it easier to procure building permissions. A lot of redevelopment projects are stuck because of builder's inability to "manage" the permissions from MGCM's infamous Building Proposal Department, State Govt's Urban Development Department, etc. where bribery is rampant. MahaRERA will call the government officials from those departments to attend hearings and justify why the permissions were delayed. Quicker clearances would enable builders to complete their building more efficiently, thereby incurring less interest costs and delivering possession on time.

Bad news no. 5: Redevelopment projects with indisciplined builders will collapse. A majority of builders currently doing redevelopment projects have succeeded by doing jugaad all these years. Now, after RERA, jugaadu builders will crash, and their projects will have to be taken over by MahaRERA and the association of flat-owners and flat-purchasers. Incomplete projects may have to be auctioned. Finishing these projects will become a huge systemic challenge.

To complete their redevelopment projects and get back their homes, flat owners and flat buyers may have to sacrifice the additional carpet area and corpus funds promised, shell out lakhs of rupees and appoint good professionals and systematic builders. Flat owners used to the idea of getting money and additional carpet area in redevelopment may face psychological and financial difficulties in shelling out lakhs of rupees!

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CONCLUSION: The building industry is entering into intensive course-correction. There will be growing pains for the next few years. Many surprises are lurking in the hazy future. About 95% of builders will be forced to quit the building industry within the next five years. The 5% who survive will be the cleanest and most professional.

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com



Wednesday, 31 May 2017

Complain to RERA against builders, and not to Civil Court, Police, Magistrate or High Court -- Citizens Guide Part 3

Mumbai, 31st May, 2017: One month has passed since Maharashtra's Real Estate Regulatory Authority (MahaRERA) came into force, but its significance hasn't yet been understood by the legal community. Wrongly advised by lawyers, aggrieved flat-buyers continue to go to the police, magistrate, civil court, etc, instead of approaching MahaRERA and/or its Adjudicating Officer. For example, today's newspaper carried this story about builder Yusuf Lakdawala getting an FIR filed about a penthouse that he purchased from Dhiraj builders. The FIR was reportedly registered after Yusuf Lakdawala approached Bombay High Court. However, this FIR will eventually be quashed, or police will not file chargesheet, as the matter belongs to the jurisdiction of Real Estate Regulatory Authority. Yes, Lakdawala's clever lawyers may have managed to procure a high-court order for the FIR to be filed, but this FIR will not stand the test of law as the case progresses.

But this is a serious matter, as flat buyers and investors are continuing to bark up the wrong tree. A close friend called me to share his joy that Economic Offences Wing (EOW) of Mumbai Police had registered a complaint against a very prominent builder today for cheating, breach of trust, and other IPC sections (besides MOFA) because the builder did not give timely possession, wasn't refunding money and hadn't even entered into a registered agreement with flat buyers. Some flat-owners in the rehab component of a redevelopment project got FIR registered against a builder a couple of years back, but the magistrate recently dismissed the case saying that it is a "civil matter", and so, now the aggrieved flat-owners want to appeal before Bombay High Court. And I am saying to all of them, sorry, no, all this will not work now! Your only fruitful option now is to seek reliefs from MahaRERA. Otherwise, the cops will waste your time with diversionary tactics, and get bribes from the builders for trying to "settle" the matter. Watch and see if this isn't true!

Some other flat-buyers and investors have been telling me that they are thinking that remedies from Civil Court under Specific Relief Act 1963 are still available to them for enforcement of the builder's agreement, e.g. to give possession by a certain date, etc. And I am saying, sorry, no, that's a bad idea! Under the RERA Act, they should file a complaint ("Form A") against the builder before Real Estate Regulatory Authority OR a claim for compensation ("Form B") before the Adjudicating Officer. Because civil court does not have specific jurisdiction in this matter.


Thousands of buyers, investors and flat-owners whose cases are pending at various stages in the judiciary, are thinking that their cases will continue and they will get ultimately get justice from these judicial forums. And I am saying, no, please get the matter remanded to RERA and/or adjudicating officer, or withdraw your case and file a fresh case before MahaRERA. Because, even if the judicial forum where their case is currently pending passes a judgment and disposes off their case, the matter will definitely be remanded to RERA authority if either party goes in appeal.

Why am I repeatedly saying this? The reason is: RERA is a special statute made for adjudicating and deciding disputes specifically between builders and their allottees, whereas Indian Penal Code, Specific Reliefs Act, Indian Contract Act, and other applicable laws, are general statutes.  which are only broadly and generally applicable to builders, allottees and and the properties under dispute.

It is well established principle that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle is summarized in the Latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject.

While the rule that the specific governs the general is not an absolute rule but is a strong indication of statutory meaning that must be overcome by textual indications that point in the other direction, if the general legislation is to be applied.

Some people argue that MOFA (Maharashtra Ownership Flats Act) is a "special statute" concerning the duties of builders. True, but MOFA confers jurisdiction on District Deputy Registrar of Cooperative Societies, and MOFA is a State Act, while RERA is a central Act and it confers jurisdiction on Real Estate Regulatory Authority. Since MOFA comes into conflict with RERA in the matter of jurisdiction for the same matter (i.e. builder-buyer disputes), RERA will prevail. Where the provisions of a Central Act and a State Act in the Concurrent List are inconsistent and irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.  

RELEVANT RERA SECTIONS AND THEIR SIGNIFICANCE:


Bar of Jurisdiction: 
79. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

This section rules out jurisdiction of Civil Court under any other Act such as Specific Reliefs Act. 

Cognizance of offences:  
80. (1) No court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder save on a complaint in writing made by the Authority or by any officer of the Authority duly authorised by it for this purpose.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

This section effectively says that police cannot entertain such cases, nor can Magistrate entertain a "private complaint". In cases revealing cheating and breach of trust by builders, Real Estate Regulatory Authority will file a complaint before a Magistrate of the first class, and only then the Magistrate will entertain this matter.  

Application of other laws not barred.
88. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

This means that provisions of other Acts such as Indian Penal Code and possibly MOFA also may be cited in complaints, arguments and hearings of MahaRERA, for seeking appropriate reliefs under the RERA Act. 

Act to have overriding effect.
89. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

This means that provisions of other Acts such as Indian Penal Code or MOFA cannot be used for diluting the interpretation of MOFA. 

IN A NUTSHELL: 

Maharashtra Real Estate Regulatory Authority (called MahaRERA) and also the Adjudicating Officer appointed under MahaRERA, are quasi-judicial authorities i.e. they are not a court, but an administrative body or competent authority for implementing the Real Estate Regulation and Development Act, 2016. It is relatively easy for a common man to approach a quasi-judicial authority and to represent his point of view before it in writing, and also in the form of oral arguments. The primary intent of this Act is to protect the interests of the flat-purchaser or investor (termed as "allottee" in the Act) from the developer and others responsible for building and selling a flat (termed as "promoter"), and also estate agents acting on behalf of the builders.

RERA makes it makes it explicit in multiple sections that allottees of flats have the power to get the builder penalized by the Authority to the extent of 10 or 15% or even more of the total value of the project, and get interest and compensation passed by the adjudicating authority.  No other existing law is so specific about penalties and compensations due to allottees! This is a specific law made for providing quick and direct justice against builders in particular!

So, summing up, please stop wasting your precious time and money seeking remedies against your builder from other general laws and general forums. Go to RERA, your one-stop shop for justice vis-a-vis real estate projects! Take my advice, and you will be thanking your lucky stars before 2017 is over!

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Wednesday, 24 May 2017

Where to complain? Real Estate Regulatory Authority OR Adjudicating Authority? Part 2 of Citizens' Guide to MahaRERA

25th May, 2017, Mumbai: Aggrieved investors and flat-buyers generally want compensation, repayment with interest, and penalites imposed on builder. Under the RERA Act, they can file a complaint ("Form A") against the builder before Real Estate Regulatory Authority OR a claim for compensation ("Form B") before the Adjudicating Officer.

What kind of offences of the builder will attract only penalty, and for which offences can you seek compensation? Below, we will colour-code the sections for your guidance. Blue highlight is for matters related to only penalty, and yellow highlight is for matters where you can seek compensation. If you have suffered a loss due to the faults of the builder, for which you want him to compensate you and/or pay you interest, then the matter will go before the Adjudicating Authority who will decide the amount of compensation and interest. 

Form A ("Complaint") is as per Section 31 of the Real Estate Regulation Act. "31 (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer... for any violation... of the provisions of this Act or the rules and regulations... against any promoter... Explanation.— For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law... (2) The form, manner and fees for filing complaint... shall be such as may be specified by regulations."

Form B ("Claim for Compensation") is as per Section 31 read with Section 71. According to Section 71, Section 12, 14, 18 and 19 fall within the domain of the Adjudicating Authority. "71. (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint... one or more judicial officer... who is or has been a District Judge to be an adjudicating officer for holding an inquiry... after giving any person concerned a reasonable opportunity of being heard... (2) The application for adjudging compensation under sub-section (1), shall be dealt with by the adjudicating officer as expeditiously as possible... within a period of sixty days..."

The amount of compensation will be determined as per Section 72. "72. While adjudging the quantum of compensation or interest..., the adjudicating officer shall have due regard to... :— (a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default; (b) the amount of loss caused as a result of the default; (c) the repetitive nature of the default; (d) such other factors which the adjudicating officer considers necessary..."

COMMON GRIEVANCES & RELEVANT SECTIONS

1. Registered Agreement not made even after substantial payment. 
In case of failure of the builder to register a flat even though you (the allottee or flat-buyer) have paid more than 10% of the total consideration of the flat, you may file a acomplaint in Form A to Regulatory Authority. For this offence, the builder will be given appropriate directions to make a registered agreement and he will also attract penalty of 5% of the total project cost as per section 13 read with section 61, but you will not get compensation. "Section 61. If any promoter contravenes any other provisions of this Act, other than that provided under section 3 or section 4... he shall be liable to a penalty which may extend up to five per cent of the estimated cost of the real estate project..." Section 13. (1) A promoter shall not accept a sum more than ten per cent of the cost of the apartment, plot, or building... without first entering into a written agreement for sale... and register the said agreement..."  In this case, you should file a complaint in Form A.

2. Breach of promise, defective workmanship, etc. 
In case of failure of the builder to deliver to you (the allottee) the exact thing that he has promised in his communications, for which you have paid the booking amount, section 12 and section 14 are applicable, and you are eligible to get compensation. If your actual flat and building, fixtures and common amenities are not as per agreement and/or as per advertisement claims, prospectus, brochure and other pictorial and verbal representations, then you can make a complaint in Form B under section 12 and/or section 14. Section 12: Where any person makes an advance or a deposit on the basis of the information contained in the notice advertisement or prospectus, or on the basis of any model apartment, plot or building... and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be compensated by the promoter...: Provided that if the person affected... intends to withdraw from the proposed project, he shall be returned his entire investment along with interest... and the compensation..." Section 14. (1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities. (2) ... after the sanctioned plans, layout plans and specifications... are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building ... the promoter shall not make — (i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein... without the previous consent of that person... (3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter... is brought to the notice of the promoter within a period of five years... from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure..., the aggrieved allottees shall be entitled to receive appropriate compensation... File a claim for compensation in Form B.

3. Not giving Conveyance, not handing over Common Amenities like clubhouse, garden etc., and not handing over documents and plans of the building. 
Even after giving posession of the flat, many builders don't give timely delivery of promised common amenities such as clubhouse and garden, with the result that the allottee and his family members are deprived of the promised facilities that are part and parcel of the project. Also, builder actively avoid giving conveyance of the building and the land plot to the cooperative housing society and/or federation of societies for decades. Quite often, builder also don't hand over the necessary documents of the building to the cooperative society. All this attracts provisions of section 17, which means that the builder will be penalized and will be also given strict directions by the authority to do the needful, but you and your society will not get compensationSection 17. (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment or building... and the other title documents pertaining thereto... within three months from date of issue of occupancy certificate.
(2) After obtaining the occupancy certificate and handing over physical possession to the allottees... it shall be the responsibility of the promoter to handover the necessary documents and plans, including common areas... within thirty days after obtaining the occupancy certificate. File a complaint in Form A.

4. Delay in possession OR Giving possession of incomplete project.
In case of failure of the builder to complete the project and give possession of the flat on the agreed date with all the common amenities such as clubhouse, etc. (or failure to give possession within a reasonable period after booking the flat -- say 36 months), you will get compensation, because section 18 is applicable. If the builder has given possession of the flat without getting Occupation Certificate, it amounts to the building project being incomplete, and possession is NOT as per the terms of the agreement. Section 18: (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,— (a) in accordance with the terms of the agreement for sale or... duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable... in case the allottee wishes to withdraw from the project... to return the amount received by him... with interest... including compensation: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession... File a claim for compensation in Form B.


Friends, there are many other powerful provisions in RERA, which can become headaches for crooked builders and a source of empowerment for flat owners and investors seeking justice. We will discuss more details in Part 3 of this series.


ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Also read: How to Use Maharashtra RERA for Remedy Against Builders: Detailed Guide - Part 1

Saturday, 20 May 2017

How to Use Maharashtra RERA for Remedy Against Builders: Detailed Guide - Part 1

19th May, 2017: There appears to be a widespread campaign to malign Maharashtra's Real Estate Regulatory Authority as being biased in favour of builders, and not in accordance with the central Real Estate Regulation Act, 2016. This is a false story cunningly planted by the builder lobby, intended to deter citizens and flat-buyers from filing complaints against builders. The truth is that MahaRERA, as Maharashtra's Real Estate Regulatory Authority is known, is going to be the most strict taskmaster that builders have ever faced in Independent India!

A fun way to understand what I am saying is to watch these two Marathi videos:

It is as if a tsunami has reached the Mumbai coastline, and is about to hit the builders who have been taking not only flat-buyers and investors, but also the whole country for a ride. After this tsunami, when the water clears, we will find 90 percent the current builders gone. Only a small minority -- the most disciplined and law-abiding builders -- will be left in the industry after a couple of years.

Glance at some penalties prescribed by RERA for builders (termed as "promoters" under the Act). Here's Rule 5 of MahaRERA Rules for Penalties, Fines Payable, Compensation, etc.



Section 59 and 64 are applicable to promoters i.e. builders. If an errant builder wishes to avoid costly proceedings, litigation and subsequent imprisonment, he will pay fines 5 to 20 percent of the entire real estate project cost! He can be fined a whopping five percent for an offence as simple as failure to register himself with the Real Estate Regulatory Authority before 31st July, 2017, or selling a flat without first registration!

RERA's "Ten Commandments" for Builders:

As the 31st July deadline approaches, builders are scrambling to take numerous actions to avoid penalities u/s 59, 60, 61, 63 and 64. This includes all necessary actions for compliance with the below mentioned "Ten Commandments" mentioned in the below sections of Real Estate Regulatory & Development Act 2016:

Section 3 - Do not advertize or sell without registration.

Section 4 - Apply for registration before 31st July, with full details.

Section 5 - If Registration not granted, file appeal to Appellate Tribunal promptly within 60 days, otherwise you will lose your chance to appeal.

Section 7 -
(a)  Don't violate the terms of permissions & approvals given by competent authorities.
(b) Don't trigger your customers to complain to RERA.
(c) Appear at RERA hearings, fully prepared.
(d) Train your employees and estate agents to avoid making misleading statements, and never to promise what your project cannot deliver.
(e) Promptly amend your advertisements to avoid promising sun, moon and stars to buyers.

Section 11 - 
(a) Prepare website properly
(b) File quarterly updates
(c) Mention website address and registration no. on your adverts
(d) Make documents available to customers at the time of booking, and create evidence thereof (video, audio, signatures of customers, etc.)
(f) Keep customers (termed as "allottees" under the Act) updated with progress reports

Section 12 - Remove all vague & misleading content from all your literature, brochures, allotment letter; otherwise, if the allottee (i.e. flat buyer or investor) convinces the RERA Authority or Adjudicating Officer that he has been put to a loss because of your misleading content, you may have to return his entire investment with 10% interest, in addition to compensation. 

Section 13 - Register the agreement promptly in the proper RERA format after taking not more than 10% advance. In your agreement, mention every possible charge, and also the correct delivery date which you have declared before RERA. (Be careful in deciding the purchase price, construction cost & delivery date before declaring it to RERA and customer; RERA is very strict that no modifications will be allowed later.)

Section 14 -
(a) Immediately report to allottees any changes and deviations from approved plans,  and fixtures, fittings, amenities etc. mentioned in the agreement. If such changes are unavoidable, take consent of two-thirds of allotees before making changes.
(b) Rectify structural defects, defect in workmanship, quality of service, etc. within 30 days after they are it is pointed out by allottee. Such work must be done free-of-charge.
(c) Rectify any defects in the entire building that are reported for a period of five years after giving possession to each flat-holder.

Section 15 - Do not transfer or assign your majority rights to others. if you must do so, you need the approval of two-third of the allottees and also of the Real Estate Regulatory Authority. 

Section 16 - Insure the construction work, and insure the title of the land and building.

Section 17 - Give Conveyance in time, within 30 days after getting Occupation Certificate, or as per the time limits in any other existing law.

Section 18 - 
(a) If you (builder) are unable to give possession in time (as per the registered agreement) for any reason, then the allottee may withdraw from the project, and the entire amount paid by him should be returned with 10 percent interest. 
(b) However, even if the allottee wishes to continue with the delayed project, and does not want his money back, 10 percent per annum must be paid to the allottee for every month of delay until the date that flat possession is given (with occupation certificate).
(c) If allottees suffer any loss due to defects in the property title, they must be given compensation whenever such loss happens, in perpetuity. The statute of limitations does not apply.
(d) If you (the builder) fail to discharge any obligations under the RERA Act, Rules and Regulations, and also the terms and conditions of the Sale Agreement, you will have to compensate the Allottees. 

Breach of any of the above sections by a builder can lead to severe penalties. Flat-buyers and flat-owners should register themselves as "Citizen" here on the MahaRERA web portal, so that they will be able to file online complaints against their builder.

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Monday, 8 May 2017

Analysis of Ekta Builder's Civil Suit Against Me

8th May, 2017: Last week, I was served with notice of a Civil Suit filed against myself and one more person (Mr Vineet Malik) by Ekta Parksville Homes Pvt. Ltd, ("Plaintiff"). This civil suit filed in Vasai Civil Court attempts to gain the court's sympathy by mixing up several unrelated matters, and wrongly invokes the court's territorial jurisdiction to pass temporary injunction against Mr Malik ("Defendent no. 1") and myself ("Defendant no. 2"), in order to suppress certain truths about Ekta's way of doing business from becoming known to a wider public. 

In this present article, I intend to analyze the infirmities of (a) the civil suit no 36 of 2017 in Vasai Civil Court, (b) the temporary injunction passed by this court against me, and (c) the gag order sought against me under "Order 39 Rule 2A of CPC". I sincerely believe that no law prevents me -- as a journalist, a citizen and a defendant -- from publicly analyzing the legal merits of a suit filed against me, and the legal merits of a temporary injunction that seeks to muzzle me without giving me notice and an opportunity to be heard. Not only is my Right To Freedom of Speech protected by the Constitution, but also, my Fundamental Duties urge me "to develop the scientific temper, humanism and the spirit of inquiry and reform". I consider it my duty as a journalist and a citizen to be rigid and unyielding on such points of principle.

Click here to read the CIVIL SUIT NOTICE sent to me by Ekta builders and later, the court bailiff.

One may ask why I am named as defendant no. 2 in this suit which is primarily between a builder and a flat purchaser. The short answer is: because I wrote the below articles about this particular flat-purchase deal, published them on my blog and also issued them as press releases:
(a) Ekta Builder: Broken Promises & Bhai-giri
(b) Delayed Ekta Parksville: Builder offers full refund plus 9% interest but...   

In the words of the plaintiff, according to paragraph no. 54 (page 25) of the civil suit, "the cause of action to file this suit arose for the first time when Plaintiff on 3rd December, 2016 accepted the offer of Defendant No. 1 to terminate the Agreement dated 30/05/2016..., secondly it arose when the Defendant No. 1 failed to accept the refund amount and to execute and register a Deed of cancelation of Agreement... It arose thirdly on _________ when the Defendants published defamatory article for the first time, and lastly on _________ when the Defendants again published 2nd defamatory article. It is continuous cause of action..."
DETAILED ANALYSIS OF THIS SUIT & ORDER:
  1. As you can see from this Causelist, this civil suit is filed under Specific Relief Act 1963, Section 34 and 38. A plain reading of this Act and the relevant sections shows that the only purpose of this Act is the enforcement of contractual obligations. As a journalist writing articles, I have no contractual obligations to the builder ("plaintiff") who has filed this suit. The plaintiff has a contractual dispute with Mr Vineet Malik, and the subject of the dispute is the "suit flat". On page 3 of the civil suit , under the head, "Description of suit property", what is mentioned is "Flat bearing No. 1104 admeasuring approximately 35.60 square metres... in the phase known as Brooklyn Park in the complex known as Ekta Parksville... hereinafter referred to as the "suit flat")". Hence, there is no justification for my inclusion in this suit under the Specific Relief Act, as I have nothing to do with the suit flat, which is the subject of the said suit. I am wrongly and malafidely named in this civil suit. My inclusion is a misjoinder.

  2. Ekta builder ("The Plaintiff") states in paragraph no. 43 that he is "entitled to claim compensation and damages from the Defendants... The plaintiff has suffered monetary loss to the extent of Rs One Hundred Crore... as a result of false and negative public campaign undertaken by the Defendant No. 2 at the behest and in connivance with the Defendant no. 1". If this is so, then Ekta builder is required to provide some proof as to why my writings are "false" and also how he has calculated this grand figure of Rs 100 crore. However, the builder provides no coherent arguments or proofs to substantiate his claims, but he prays for the sweeping reliefs that the court should "Hold and declare that the Defendants have defamed the Plaintiff" (paragraph e on page 27), and seeks a permanent injunction restraining me from publishing anything about any of the Ekta concerns (paragraph h on page 28), besides of course, my paying him damages of Rs 100 crore jointly and collectively with Mr Malik.

  3. Nearly two months BEFORE this notice was served to me, the plaintiff's advocate Avinash Vidwans informed me by email that "Sir, The Hon'ble Civil Judge (S.D.) at Vasai was pleased to pass following Order in Special Civil Suit No. 36 of 2017 , wherein you are Defendant No. 2.: ORDER Heard Ld. Adv. Mr. Vidwans for Plaintiff.  Ld. Adv. Ms. Sheetal Pandya appears for Def.No.1 in pursuance of email notice sent to her by the Plaintiff.  She has placed on record an undertaking at Exh.10 to not to publish any defamatory material against the Plaintiff till next date. Ld. Advocate for Plaintiff has relied upon certain e-mails sent by Defendant No.2 in reply to Plaintiff’s mail thereby indicating that the Defendant No.2 will regardless of any matter sub-judice proceed to publish two alleged stories against the Plaintiff.  It is argued that the Defendant No.2 has made up his mind against the Plaintiff in a prejudiced and biased manner.  The e-mails are self-speaking.  Hence, it is deemed fit to temporarily restrain the Defendant No.2 from making any such publication which may contain any defamatory material against  the Plaintiff till next date or till he appears on the next regular scheduled date.  The Plaintiff has made out an urgency and hence it is desirable that the triable issue be set at rest through the intervention of the Court. Plaintiff to communicate the Order to Defendant No.2 and also to effect service of suit summons upon him, if not done earlier."
    Here are my views regarding the legality of the above quoted order: 
    (a) Freedom of Speech and the freedom of Press cannot be so lightly trampled by a mere Civil Judge. My legal commonsense says that every Civil Court cannot enjoy the necessary jurisdiction to pass such such a weighty order, which is a blanket gag nullifying a fundamental right. Only the High Court can have such a jurisdiction.
    (b) Even assuming Vasai Civil Court has the necessary territorial jurisdiction, such an order cannot be passed so lightly, without serving proper notice and without giving defendants an opportunity to be heard. Such a weighty order cannot be passed based on printouts of emails produced by the plaintiff, without even seeking to verify from me whether it is true or not!
    (c) The suit has been filed, but it has not yet been admitted by the court. It cannot be automatically admitted, without seeking answers to crucial questions about where exactly the dispute and the cause of action arose, determining the territorial jurisdiction of the court, etc. Not even a single proper hearing has happened for establishing the jurisdiction of this court, and whether the parties named in it are correctly impleaded. If a gag order can be passed at such a preliminary stage by a Civil Judge, then the mass media and social media throughout the country can be brought to a grinding halt by every Tom, Dick and Harry seeking such temporary injunctions.
    (d) If journalists start getting muzzled so lightly with so little due process, then it will cause grievous injury to our nation, as all kinds of blanket muzzling orders will be sought by wrongdoers. For me, journalism is a calling, a way of life, and not just a way of earning my daily bread. I cannot, in good conscience, bring myself to obey such an badly-formed judicial order. 

  4. This suit that Ekta has filed is not a defamation suit; it is a mixed-up and confused suit. This suit is under the "Specific Relief Act" for performance of contractual duties, and it does not argue even one point as to why my writings are defamatory; it only relies on the bland assertion that whatever I have written is defamatory and derogatory. I would invite the builder to file a proper defamation suit against me, wherein the exact material that I have published would have to be closely examined in court. Let us stop being vague and get into the particulars of my so-called defamation. In a civil defamation suit, I would be given ample opportunity to prove that each and every one of my statements is true and based on facts and documents, and also that my writings are intended to warn and protect the public against exploitation by a builder. I want to be given that opportunity.

  5. Non-applicability of Plaintiff's Application under Order 39 Rule 2A of CPC to my case:Let us understand what is this Order 39 Rule 2A of Civil Procedure Code. Cases in which temporary injunction may be granted.
    "1.Where in any suit it is proved by affidavit or otherwise-
    (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
    (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
    [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]
    the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."
    In short, temporary Injunction under Order 39 Rule 2A of CPC is for protecting contractual obligations or interests in a suit relating to a disputed property. Can this rule be invoked for muzzling a journalist who has no contractual ties with the plaintiff? I seriously doubt it.

    WHY THIS SUIT IS MALA-FIDE:
  • This civil suit is a hotchpotch of three distinct kinds of civil suits that cannot be mixed.  This civil suit attempts to blur the clear lines between a suit for: (a) enforcement of a contract between two parties (b) resolving a dispute (c) seeking damages for defamation  and resultant loss of business, and seeking legal protection from further defamation. 
  • This civil suit creates a false narrative that a huge complicated contractual relationship exists between Mr Malik and Ekta. The fact of the matter is, their contractual relationship is simple -- that of a flat-purchaser with a builder who failed to honour his contractual obligation to give timely possession of a flat in Virar, complete with Occupation Certificate.  Everything else is just hot air.
  • The suit seeks to divert attention from the fact that the terms of cancellation offered by the builder were rejected by Mr Malik, and, as the original Flat Purchase Agreement has yet not been cancelled, this agreement is the only one that is enforceable by law, and the builder is in breach of it. This civil suit tries to abuse the court mechanism to force Mr Malik, virtually at gun-point, to accept the builder's terms for cancellation of the flat-purchase agreement, by which he is currently bound. 
  • Although this is a suit filed under Specific Relief Act, the plaintiff (Ekta) does not specifically name any existing contract that he wants enforced through the court. Ekta implies several obligations of the defendants to himself, without actually specifying which contract confers such obligationss. The current civil suit is therefore, in a nutshell, malafide, frivolous, vexatious and deserving of being dismissed at the admission stage itself, with costs if possible.
Can writing and publishing this present article be considered as Contempt of Court – whether Civil or Criminal? Can it be considered defamatory? Can it be considered a violation of the temporary injunction of the Civil Court? I would very much like the builder to present this before the Hon'ble Civil Judge, and I would invite the learned Judge to apply his judicial mind to every word of this article. If the Hon'ble Civil Court, in its great wisdom, feels that this constitutes Defamation, Contempt etc., I will be quite happy to stand trial for it.

DISCLAIMER: I am writing this as an independent journalist and blogger, on my own behalf. I am NOT upholding Mr Vineet Malik's case, and I don't care what stand he or his defense lawyers choose to take. I haven't earned a paisa from Mr Malik, and I have no personal interest in his business dealings with Ekta or anyone else. Nor do I have any personal enmity and ill-will towards Ekta builders. At the core of this present article is my burning curiosity to find out whether freedom of speech is really protected in our beloved country, or whether such protection is lightly cast aside by frivolous civil suits and temporary injunctions without so much as a notice, let alone a hearing.

ISSUED IN PUBLIC INTEREST
Krishnaraj Rao
9821588114

krish.kkphoto@gmail.com

Friday, 7 April 2017

Hurry! Only 6 Days for Responding to MCGM's Property Tax Valuation

Mumbai, 7th April 2017: The deadline date for housing societies of Mumbai to correct BMC capital valuation of their properties is fast approaching, and society managers and office-bearers have clearly been caught unawares. With less than one week left, property owners should act quickly in the next six days, or risk having to struggle with unduly high property tax rates for years to come.

Unknown to most Mumbaikars, MCGM issued a circular last month giving notice that the Capital Valuation for the forthcoming years has been completed for fixing up property tax applicable to property owners and that "they will be available for inspection at the office of the Asstt. Assessor and Collector in the respective wards… between 23rd March 2017 to 13th April 2017." It added that "complaints against the Capital Values... must be made in writing by the property owners themselves or by the persons duly authorized by them under a power of attorney."

BMC’s notice may be downloaded from this link: http://bit.ly/MCGM-Notice-23-3-2017

Sometimes, the assessment department makes mistakes in fixing the capital value, which results in huge disputed dues. If the window of opportunity given under the circular is not promptly availed, then property owners such as housing societies are left with the costly option of going to small causes court against excessive billing.

It is quite easy to verify the capital valuation from BMC’s website. Go to https://prcvs.mcgm.gov.in/ . There, enter the Property Tax Account Number and other details. 

Alternatively, go to your ward office with your last property tax bill, and verify whether the capital valuation has been made.
As it is difficult for Cooperative Housing Societies office-bearers to draft a proper complaint (in case mistakes in capital valuation are discovered), Andheri-based NGO Maharashtra Societies Welfare Association (MSWA) has created a downloadable format with the help of Property Tax Department insiders. Download this complaint format from http://bit.ly/BMC-Complaint-Form

In case, the capital valuation of their property is excessive, office-bearers of housing societies may download this useful format, fill it up and submit it before 13th April 2017. 

CA Ramesh Prabhu, chairman of MSWA, remarked, "It is unfair that only three weeks time is given to citizens for verifying the new capital valuations, on the basis of which lakhs of rupees are charged to more than 30,000 cooperative housing societies and other property owners. But we will do whatever we can to facilitate citizens of Mumbai to respond to this circular," he said. Mr  Prabhu appealed to office-bearers of housing societies to take the circular seriously, as the impact of wrong valuation be lakhs of rupees.
For further assistance in verification of capital valuation and filing of complaint, housing societies may contact MSWA's helpline number 022-42551414 and also Whatsapp no. 70455 99702.

ISSUED BY
Krishnaraj Rao
9821588114
krishr.mswa@gmail.com