Adherence to sanctioned plans and project specifications by the promoters under RERA: No change without the consent of the buyer

Adherence to sanctioned plans and project specifications by the promoters under RERA. Rights of the Buyers & Obligation of the Promoter.

The RERA Act provides that a 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.

Also, if otherwise due to any change in law, contract or agreement, once the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter cannot make-

(i)          any additions and alterations in the sanctioned plans, layout plans and         specifications and the nature of fixtures, fittings, and amenities described therein in          respect of the apartment plot or building as the case may be which are agreed to be taken without the previous consent of that person:

Provided that the promoter my make such minor alterations or additions as may be required by the allottee or any such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorized Architect or Engineer after proper declaration and intimation to the allottee.

(ii)        any other alteration or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees other than the Promoter, who have agreed to take an apartment in such building.

Further, In case any structural defect or any defect in the workmanship, quality or provision of services or any other obligations of the promoter as per the agreement of sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over of possession , it shall be the duty of the promoter to rectify such defects without further charges within thirty days and in event of promoter’s failure to rectify such defects within such time, the aggrieved allottee shall be entitled to receive appropriate compensation in the manner as provided under this Act. 

Thus section 14 is an elaborate section which tells more about the power and obligations of the promoter with respect to making alteration in the construction of the project. The term ‘prior consent’ shall be interpreted as that the home buyers should be well aware in advance to the proposed changes that the promoter is desiring to make such alterations and he must have given previous approval for same. The consent of allottees needs to be in writing and that it should be freely given. On this point Hon’ble Bombay High Court has discussed the term informed consent in the Madhuvihar Co-op. Hsg. Soc and others Vs. Jayatilal Investments and others, 2010(6) Bom CR 517,  section 7 of Maharashtra Ownership of Flat Act (MOFA),1963 which is similar to section 14 of RERA Act, it held that the consent must be one which is freely given after the flat purchaser is placed on notice by complete and full disclosure of the project or scheme that the builder plans to implement. Further, the consent must be specific and relatable to a project or scheme of the developer which is intended.

As per section 14, the promoter is answerable and duty bound for the structural defects or any other defect in workmanship, quality or provision of services as so laid down in the agreement of sale executed between parties for the period of 5 years from the date of handing over the possession, therefore the promoter is required to rectify the defects within 30 days.  This provision is the most important and beneficial provision for the home-buyer, as the issues regarding the quality of construction arises after passage of time and earlier the home buyers were not able to question the accountability of the promoter after handing over of the possession. But after enforcement of RERA Act, the promoters are answerable for all his acts deeds and actions.[1] 

The Authority while investigating the matter under section 35 of the RERA Act and found that the Promoters is guilty of violating the provisions of section 14, then penalty will be imposed on the promoter amounting to 5% of the cost of project. If the Authority finds that the promoter is indulging in the fraudulent practices, then they can cancel the registration of the project.  Thus, the main intention of the legislation is that no promoter should take the undue advantage of the home-buyers, for benefiting from the same.

The lawmakers have brought the law for the people and now the enforcement of the same lies in the hands of the home-buyers. Any home-buyer who is confronted with these malpractices, are at liberty to file the complaint before Authority under section 31 of RERA Act, thereafter the Authority will investigate into the matter and pass such penalty orders against the builder for exercising fraudulent act. 

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[1] Suresh V Swamy vs. Larsen and Turbo Ltd. Decided by MahaRERA in Complaint No: CC006000000057656 decided on 22.04.2019