BEFORE TFIE

MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY

MUMBAI
COMPLAINT NO: CC005000000000025
Mahadeo Nalawade (1)

Popat Pati (2)

Sukhadeo Kamble (3)

Mahendra Bodade (4)

Atish Mahajan (5)

Pratiksha Waman (6)

Nishant Sharma (7)

Vijay Ghewari (8)

Dhiraj Mane (9)

Akash Malali (10)

Nirmala Bhatia (11)

Maj.Charu Kamoj (12)

Vilas Rane (13)

Datta Ghare (14)

Rahul I'}atil (15)

Nagesh Joshi (16)

Rajendra Sawant (17)

Raiesh Nair (18)

Sujit V.N. (19)

Yogesh Attal (20)

Atul Kelkar (21)

Baibhav Bajpai (22)

Sanjay Chavan (23) ... Complainants

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 Versus
APL Yashomanagal Devclopers
(Greenficlds Phase-.I) Respondents

MahaRERA Regrr: l'52100001020

Coram: Shri B.D. Kapadnis, I Iorr'ble Mcmber
& Adjudicating Officer.
Appearance;
Complainants: ln person.
Rcspondcnts: Ritesh Bellara.

Final Order
9th N1arch 2018
Factual Matrix.

Ti{,ent}-three comPlairants havc filecl this complaint to comPlain that

they booked flats in the resPondents' registcred project Alfa Greenfields
Iocated at Vadgaon, N'taval Village, ['une. lhe resPon!-lents failed to adhere to
sanctioned plans and Project sPecifications as thcv illegally constructed
balconies for one BHK flats. They also failcd to supply amenities like water,
solar water heating systcm etc. and thus violatetl Scction 14 of the Real Estate
(Regulation and Development) Act,20l6 (in short, RERA) The complainanLs
have alleged that thc respondcnts agreed to deliver the Possession oI their
flats by 31st December ?013 but respondcnts have failed to hand over the
possession of thei booked flats on agreecl date. They want to continue in the
project and therefore, they want the intcrcst on their investment for cach
month of default ancl compensation uncler Section 18 of RERA.
2. The plea of the responclen[s has heen recorded in which the
respondents have admittcd that balconles have lrecn constructed which were
not in sanctioned plan. They have denicd other allegations. The respondents
have filed rheir reply to contend that excePt Mr. I)atta Ghare, other
complainants have taken Possession of their flats and occupied them
Therefore, their case is not maintainable urder Section 18 of the Act They
further contend that Miss. Charu Kamboj wants to withdraw from the Project
and claims refund of hcr amount but she has not claimed it m lhe comPlaint
and thercfore, her complaint is not maintainable. In the ycar 2011 when they
started the construction, there was confusion whether the Environmental
Clearance was necessary for thcir Prqector not but in ordt'r to be on safer side
j
2
thcy applied for the same. Meanwhile on 22.07.2013, the Principal Secretary of
Environmental Department issued show cause notice to the Respondents for
carrying out construction without EN,honmental Clearancc. Thc respondcnls
pointed out that the construction made u,as less than 20,000 sq.mtrs. and they
submitted before the Authority that they shall not carry further construction
without Environmental Clearance. On 26.06.2011 the Authority directed the
respondents not to carry out construction exceecling without the
Environmental Clearance. On 01.03.2017, the Environmental Clearancc came
to be granted. 'l hus, the construction stopped from 22.07.2013 to 01.03.2017 for
Environmental Clearance. Thereafter, the respondenLs Look immediate stcps
for completion of the project. The C and D buildings were conskucled
completely as certilied by the Architect on 16.10.2014. Thc projcct is about 95%
completed and it would be completed by 3-1.72.2019. Ihey admrt that they
constructed terrace for 16 - one BHK flats and tley hope to get revised
sanction, as I,.SI is at their disposal. They are ready to put suitable barriers
between the two balconies for safety purposes. Therefore, they request to
dismiss the complaint.

3. Irollowing points arise for determination and findings thereon as under:

POINTS FINDINGS
1) Whether the complaint of Complainant Affirmativc
nos. 7, 16, .18 to 22 needs clismissal Ior
want of prosccution?
2) Whcthcr the complaint of Miss. Charu Kamboj Negatrve
who wants to withdraw from the project, can
be tried with othcrs who wants to

continue in the proicct?

3) Whether the respondents have failed to adhere Affirmativc
to sanctioned plan and proiect specifications by

constructing tcrrace for one BHK flah and

failed to supplv agrccd amenities?

4) Whether tlle respondents have lailed to deliver Only of

the possession of the respective flats of the complainant

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 complainants? Nos.3,10,11,13,
^14
& 77.

s) Whether the complainants are entitled to get Only of

interest for every month of dclay till handing comPlainant
over the possession of the flats u/s 1tt(1) of nos.3,10,11,13,

of RERA? 1_4 & 17.

6 Whether the complainants are entitled to 8et To complainant nos. 1,

compensation and suitable directions 2,4,5,6,8,9,75 and

for not providing agreed amenities & for 23 only.

non-adherence to sanctioned plan?

REASONS

Dismissal of complaint of complainant nos. Z 16,18lo 22.

4. lhc complaint has been filed by Mr. Mahadeo Dattu Nalawadc by
taking lead involving names of other 22 complainants. During the course of
the cnquiry it has kanspired that the comPlainant nos. 7, 16, 18 to 22 arc not
interested in prosecuting this matter. Sincc the comPlaints are filed online, the
signaturcs of the complainants on complaint are not taken. Therefore, some
self -proclaimecl leaders take the undut' advantage of this system to add the
names some comPlainants r.r,ithout their cousent. This is the matter of Breat
conccrn bcrause, if the complaint is liled due to mischief played by such self-
proclaimed activis ts/ leaders without the kno*'leclge of some allottees and it
gets dismissed, then they will be deprivcd of filing another complaint on the
same cause of action for the same relief without they being at fault. Therefore,
somcthing will have to be done in this contcxt by the Authority to Put the
proper check to ensure that only those coml.rlamants are named in the
complaint who really want lo file thc comPlaint. fherefore, it is for the
Secretary of the Authority to do the needful in this context.

5. Mr.N{ahadeo Dattu Nalawade has filerl p.rurshis marked Exh. l Ior the
purpose of identilication to show that tht' above named comPlainants' .ase

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may be treatcd as withdrawn. Hence, it is llecessary to dismiss the r:ase of the
aforesaid complainants as dismissed for wanL of prosccution. The practice of
involving the others as comPlainants without their consent, knowledge and
active participation, is hereb;' deprecaterl.

Misioinder of parties:
6. N{iss. Charu Kamboj u'ants rcfund of her amount bccause she wants to
withdra\a,from the project. The conterlts of the comPlaint do show that the
complainants want to continue in thc ProiBct and they claim intcrcst on their
investment for delayed possession. Nlaterial facts must bc Pleaded and dren
proved is the elementary rulc of law in civil matters. ln viert'of this, I find it
difficult to decide the case of Miss. Charu Kamboj with other comPlainants
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which is quite distinct ftom the casc of other coml.rlainants. c'chnically, it
amounts to misjoinder of parties ancl herlce, it is neccssdry to dismiss her case
by giving her liberty to file another case for getting refund of her amount.

Contravention of Section 14:

7. The rcspondents have not denied the fact that they constructed
balconies/terrace attached to one BHK units, though they wcre not in the
sanctioned plan. 'thc. respondents submit that thcy have submitted revised
plan for getting sanction but thc fact rcmains that those balconics have been
constructed without thc Prior sauction of the Competent Authority and
without the consent o[ fhe allottccs. lherefore, obviously the resPondents
have violated Section 14 of RERA.

8. So far as amenitics arc concetnecl, the resP()ndents admit that the

project is under construction ancl amcnitit's shall be provided Therefore,
during the course of argument certain issues have Lrccn discussecl, they are as
under:
1. Approach road frorn National Highway to the Project.

The respondents submit that the mattcr of land acquisition is under

litigation and they are trying to settlc it with the farmers which is causing
delay. lt is necessary to diroct the resPondents to provicle the approach road
as agreed before the projecl shall bc completed.

2. Internal roads:
Thc respondents agree fo comPlete the construction of internal roads
with BT Surlace Layer within 30 clays. Thc resPondents are directed to

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complete if, as agreed.

3. Amenities:
'I
he rcspondents agree to provide all the amenities like swimming pool,
club house, Childrcn plav area, tree plantation, street lights by August 2018. lf
they have not provided, the same be provided rvithin next 4 months.

4. Finishing works in the building.

The complainants contend that aluminium windon's, intemal painting,
sanitary fixing, three phase mete-r have not been provided. It has been
submitted on bchalf of the respondents that these amenities would be
provided. The responden[s have directed to comply to provide them by the
end of March 2018.

5. Drinking water auangement:

The cornplainants complain that water is supplied from Bore Well, RO
units are provided. l'hey expect that the water beatment plant must be
providcd by thc respondents as it is one of the conditions o[ sanction. The
respondents have submitted that ttLis is not in the agreements. Rcspondents
submit that water treatment plant from well-known brand will be provided
by sinking additional bore nells if necessary, Thev have provided RO units
individually for the time being and after setting of \a,ater treatment plant they
shall remove the RO units. The respondents are directed to do the needful.

6. Solar water heater:

the complainants complain that the solar water heater svstem is not
provided. The respondents agree that they agreed to provide solar h'ater
heater system approved by Covernment but Government has not approvcd
any system as such ancl therefore, water geysers have been installecl in the
units. The respondcnts to take steps for fitting of solar water heating system
approvecl by the Government within 2 months of according approval by Govt.
as agreed. Thereafter, they are entitled to remove the individual watcr
geysers.

7. Entrance gate and compound wall:

The compound wall is partially constructed. The respondents are ready

to complete it by the end of March 2018. Respondents are directed to do it as
admitted.

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 8. Electrical meters:

The electric meters have not been provided in some flats and common
area. The respondents agree to take three phase meter for comrnon area and to
provide electric meters to all the units. The respondents are directed to take
immediate steps for taking three phase supply and install the meter for
common area. They shall provide electric meters to the units before handing
over their possession. Respondents shall provide mete.rs lo the units
possessed by complainants within 15 days from dris order, if not provided
earlier.

9. Formation of housing society:

The respondents undertake to form it within one month. They shall do
it as early as possible.
10. Maintenance fund:

It is agreed by the respondents lhat the exPenses incurred on security

group etc. shall be bome by them till the project is completely constructed.
The society shall pay the maintenance only after receiPt of occuPancy
certificate.

11. Steps to take required sanctions.

The respondents have applied for checking the plinth and drerea{ter
they shall apply for occupation certificate. The respondents are directed to do
the needful at the earliest.

Complainants' entitlement ry's 14 of RERA.

9- The necessary information supplied by the complainants regarding
their flats and dre agreed date of possession is as under:
Sr. Name of No, of Fit out Date of Whether actual
No. appli(ant the flat possession Possession occupied.
given.
1 Mahadeo A-203 Yes 12/2073 Yes
Nalawade
2. Popat Patil G-304 12/2013
3 Sukhadeo A-406 01/20^t4 -No-
Kambel
4 Mahendra B-201, 09/201.4 -Ycs-
Bodade
5 Atish B-302 ^12/2013
Mahajan (301)

7
 -t2/2013
6 I'ratiksha A-101
Waman
8 Vijay F-302 72/201,3
Gheh,ari
9 Dhiraj A-105 12/201.3
Mane
.10
Akash F-103 12/ 2013 -No-
Mahali
.ll Ninral.r G-302 12/ 2O1i -No-
r

Bhatia
1t Vilas Rane E-305 Yes 06/2015 No
14 Datta E-301 No 09 / 2011 No
Ghare
15 Itahul Patil E-204 09 201.1 Ycs
17 Ralcndra D-202 Yos 72/ 2013 No
Sa!vant
23 Sanjav c-302 Yes 12/2013 Yes
Chavan

Complainant nos. 7, 2, 4, 5, 6,8,9, 15 anci 23 have actuallv been occupyirg

their flats after taking the fit out possession. Ihey have been deprived of their
ght to cnioy the amenities. The respondents have established that they could
not continue to construct the proiect as thc construction was stopped from
22.07.2013 to 01.03.2017 Ior Environmental Clearance. This is a mitigating
circunEtance in their favour which has to h('takcn into consideration \a.hile
deciding the quantum of compensation. Tl.re Act also imposes a duty on the
Real Estate Rcgulatorv Authoritv to sec that the proiects are also completed.
The respondents have given dre positive response and thev have agreed to
provide thc amenities as discussed ahovc. The number of the allottees in their
proiect are many. After keeping all thesc facts in mv mind, in the facts and
circumstances of the case I find that a token amount of Rs. 15,000/- to
Cornplainant nos. 1,2, 4, 5,9,12, 15, .lU and 23 will serve the ends of iustice.
Hencc, I hold that these complainants are entitled to get Rs. 15,000/- each on
account of the compensation as they have been deprived of the amenities
agreed to be provided for some time.

Delayed project:
.10. Thc above hformation discloses the lact that except complainant No.
14, Datta Ghare, all other complainants hav('received fit out possession of
their respcctive flats. It is fact t}Iat Section 3(2)(i) of the Maharashtra

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Ownership Flabs Act, 1963 provides that the promoter shall not allow persons
to enter into possession until the completion certificate is given. Similarly, it
provides that no persons shall take possession of the flat until the completion
certificate is duly given by dre legal authority. In view of this provision the fit
out possession cannot be treated as the legal possession. However, the
distinction has to be made in respect of complainanL nos. ^1,2, 1, 5, -12,78,9,1,5
and 23 because after taking the fit out possession, they have actually been
occupying theh flats. Therefore, I find thaL these persons are not entitled to get
any relief under Section 18 of RERA. So far as the complainant nos. 3,70,11,
13, -14, & 17 are concerned, they have not actually occupied their flats. They
have filed Affidavit to this effect. Hence, to this extend, I hold that the
respondents have failed to deliver possession of their flals on lhe agreed dates
and therefore, I record my finding to this effect.

Entitlement of complainants U/s 18 of RERA:

11. I have already observed that the complainants who have occupied their
flats are not entitled to claim any relief of interest under Section 18 because
they have been enjoying the fruits of their flats.
-12. The complainanhs who have not occupied their flaLs are entitled to get
interest for every month of delay of their investment till the possession of their
flats is legally handed over. They are entitled to get the interest fuom starting
point of delay namely the date of default. Moreover, if they have paid some
amount after the agreed date of possession then they are entitled to get
interest thereon only from the date of payment. So from this point of view, it
is necessary to look at ttre Affidavits and statements filed by the complainants.

13. The complainant no. 3 Mr. Kamble filed the Affidavit and produced the
statement oI payment marked Exh. 2 for the purpose of identi{ication along
with it. The agreed date for delivery of possession of his flat is 31st January
2014. He paid Rs. 22,85,900/ - towards the consideration of the flat before the
said date. Hence he is entitled to get the interest on his investment Irom
01.02.2014.

14. Complainant no. 10 Akash Mohali was entitled to get the possession of
his flat by 31.12.2013. But he paid some amount even thereafter as it reflected
in the statement marked Exh.3. He paid Rs. 18,45,635/- before the agreed date
of possession. He is entitled to get the interest on it ftom lst January 2014 and
remaining amount shown in Exh.3 paid lowards the consideration shall carry
the interest ftom the respective dates of their payment.

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15. Complainant no. 11, Nirmala Bhatia was entitled to get the possession
of her flat by 31,.12.2013. FIer statement of payment Exh.4 shows that before
the agreed date of possession, she paid Rs. 16,53,96O/-. This amount shall
carry the interest from 1st lanuary 2014 and the remaining amount shown in
Exh,4 shall carry the interest lrom the date of their respective payments.

16. Complainant no.13, Vilas Rane was enritled to get possession of his flat
by 30th June 2015. The statement of payment submitted by him marked Exh.5
shows that he paid Rs. 21,05,835/- towards consideration of the Ilat before the
agreed date of possession. He is entitled to get interest of it from 0'1.07.2075
onwards.
1,7. The complainant no. 14, Datta Ghare was entitled to get possession of
his flat by 13th September 2014. He has submitted statement of payment
marked Exh.5 showing that he paid Rs. "17,62,203 / - before the said date.
Hence, he is entitled to get the interest on this amount from 01.07.2014. He
paid Rs. 01,70,536/- on '11.."12.2014, hence, he will get the interest on this
amount from the said date.

18. Complainant no. 17, Rajendra Sawant was entitled to get possession by
30th June 2015. His statement of payment marked Exh.7 shows that he paid
Rs.79,73,347 / - before the said date. Hence, he is entitled to get the interest on
this amount from 1.7.2015.
19. Complainant nos.3,10,11,13,14,17 are entided to get simple interest on
their investment at prescribed rate. Prescribed rate is 2% above the current
highest marginal cost of lending rate of SBI which 'is 8.05% Irom the above
mentioned dates till Ltre legal possession of their flats are handed over. Hence
the order.

Order
1. The respondents shall do as directed in para number 8 of this order.

z. The respondent shall pav Rs. 15,000/ towards comperxation to the

complainant numbers 1,2,4,5,6,8,9, 15 and 23.
3. The respondents shall pay the simple interest @ 10.05% of every month
of default to the complainant numbers 3,'L0, 1-1, 13, 14, 17 on their
investments contained in para13 to 19 of this order from the dates
mentioned therein till the possession of the flats oI the complainants are
delivered. Exh. 3,4,6 shall form the part of this order.

10
 4. Respondents shall pay the complainants Rs.20,000/ towards the cost of
the complaint.

5. Respondents shall remove the balconies of one BHK flats which are not
in sanctioned plan. If plan is revised, they be properly covered to have
privacy of the allottees.
6. The complaint of the complainant no. 12 Charu Kamboj is dismissed,
however, she is permitted to file another complaint on the same cause
of action under section 18 oI RERA.

z. The complaint of the complainant nos. 7, -1.6, 18 to 22 is dismissed for

want of prosecution.

(B,D
9\ r
s)
Mumbai. Member & Adjudicating Officer
Date:09.03.2018 MahaRERA, Mumbai.

11
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the respondent aSrees to return the principalamount along with the interest mentioned
above tilldate and wishes to cancelthe agreement I hereby declare that we willatreeto do 50.

ln case the respondent do€sn't aSree to aancel the aSreerE€nt and wishes to hMdover th€ complcte
ffat we wlsh to recelve comp€nsatlon of Rr. t,79,{5, as lnlerest amount tlll 3F Oct 2017 3nd
thereafter monthlv interest a mount o{ R3. 21,325 till such timc flat construction ls complet€ e nd
the Occupancy certifrcate is received and flat rs handed overto us le8ally.

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l-tL Plece: Hyderabad
\O, oate:16rh oct 2017

Datta Ghar€
E On 8€half of

oatta MahipatiGhare

a i7ts.! o
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,t'At4OfrA.R PEDDY