Area under walls can’t be included in carpet area

As per the agreement between the builder, and Shailendra Ghaste and his mother Suman as the joint purchaser, the flat, with a carpet area of 760 sq ft, was sold for Rs 25 lakh.

The state commission observed that the requirement to mention carpet area in the agreement was introduced in 2008 by an amendment to the Maharashtra Ownership of Flats Act. Since the agreement was executed earlier, the builder could not be faulted for mentioning the built-up area instead of the carpet area.

The commission posed the question: What should be accepted when there is a conflict between the typed clause of the agreement and the approved floor plan annexed to it?

Going by the plan approved by the municipal corporation, the flat had a built-up of 760 sq ft. Since this plan had been annexed to the agreement, the commission concluded the builder had not suppressed any fact, and dismissed the complaint.

Shailendra then approached the National Commission, which ordered the builder to get the carpet area re-measured. In his report, the architect included the area under the door jams and the walls.

The National commission observed that the area under the internal and external walls cannot be included in the carpet area. Similarly, the area under the door jams is already accounted for in the floor area and cannot be separately added to the floor space. It concluded that instead of 760 sq ft, the actual carpet area was only 713.39 sq ft, so the area was lesser by 46.61 sq ft. The commission held that the builder was liable for this deficiency and not the estate agent.

Accordingly, in an order delivered by Justice VK Jain on July 24, 2018, the National commission ordered Dailani Developers to refund the value of the deficient carpet area amounting to Rs 1,53,388. In addition, the builder was also directed to refund Rs 7,669 toward stamp duty on the deficit area of 46.61 sq ft. Both these amounts would also carry 9% interest from the date of the complaint till refund.

Conclusion: A builder can be held liable for manipulation in carpet area.

(The author is a consumer activist and has won the Govt.of India & the National Youth Award for Consumer Protection. His email is )

Times of India – 30 July 2018

NCDRC rules areas under walls internal or external cannot be included in Carpet area, orders refund of the value of deficient area and stamp duty.


How To Complain Against Builder Under RERA

By Dr Sanjay Chaturvedi, LLB, PhD

RERA – The Real Estate Regulatory and Development Act 2016 came into force on the 1st of May 2017. With the aim to regulate the sector and bring clarity in the real estate market and the act is a key reform measure in the vast real estate sector. The Act mainly enacted to protect real estate buyers and enhance transparency.

The first question before you plan a complaint with RERA authorities in India is weather it is registered with the state authorities or not. The question is which are the projects needs to qualify for registration.

  • In accordance with the Section 3(1) the RERA Act aims at demanding  the promoters  to  register each of their real estate projects be it commercial or residential with the RERA authority and thus barring the developers from advertising  or offering for sale or inviting any such proposal for sale of  any project before such registration. With an exception that such builder shouldn’t have received the completion certificate of the project so advertised. If you think and have proof that your builder have advertised in Print, Digital, Social Media, Hoardings, out door media, calls, messages, email or any thing which you can prove on paper.
    Mind you, if the project is falling between Commencement Certificate and Occupation Certificate (OC) by whatever name called on 1st May 2017 then the project must be registered with State RERA concerned. By no means, the date was extended and it is statutory obligation of the builder to register the project.
  • Section4 (2)(c-f) has provisions for the promoters to provide all necessary and important information relating to the project- sanctioned plan, allotment letter, and the appropriate specifications of the proposed project along with the authenticated approvals and the commencement certificate thus imparting important information of the project to the consumers. Make sure you see that Plan he has uploaded matches with the plan you got in your agreement for sale. If there are deviations then you qualify for complain. Also, builder has to take NOC from 2/3rd buyers at whatever stage the project is.
  • With respect to the consumers interest the builder as mentioned in Section4 also has to provide the carpet area for each unit, the verandah or balconies if any, the garages or parking as to be provided to the consumers promoting transparency for the consumers and to gain access to all necessary information before investing their capital in the project. The carpet area must be as per the definition of RERA Act. It says inner surface of the wall to inner surface of the wall and space below internal wall. It varies from state to state as to the definition includes inner column. The Architect certificate uploaded must be seen.
  • The provisions as mentioned in Section11 (4) holds the promoter responsible for the obligations, and all the promises made to the allottees and thus assuring the consumers against unfair trade practices of the builders. Keep all the statement made by the builder to you either in written, expression and oral.
  • The Act in section 11 provides for the builders being responsible for the repair work of all the structural defects or any such defect that may arise in a period of 5 years from the date of conveyance of all flats in the particular project. Many developers have put conditions in agreement for sale that if without written permission you are not allowed to do any repair. Also a usual wear and tear conditions are imposed. But nothing will stand against this provisions. Builder has to obey the section and give repair to default in workmanship and for every successive occupant within five years.
  • Section 14(2)(i) of the Act prohibits the developers from making any alterations or modifications in the approved plans , fixtures, fittings or amenities of a proposed project without the mutual consent of the allottees, so as to safeguard the interest of the consumers unfamiliar to such alteration. It requires 2/3rd member NOC to do so.
  • The aim of the act is to ensure that the allottees are provided with their respective units according to the stipulated time as provided by the developer at the time of the registration, failure of which penalizes the promoter under Section 18 to compensate such allottee for the delay in possession of such property. Almost every developer took the liberty to raise possession date by four to five years. But if ou have entered into agreement and the date is given then you can always go to court for recourse irrespective of date filled by builder at the time of Registration.
  • Section 19 (4) entitles the consumer to claim refund of the amount of the property along with the interest from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act, thus securing the capital funds of the allottees who invested in the project.
  • The Act provides for establishment of an authority to be known as Real Estate Regulatory Authority under Section 20 for the effective functioning of the provisions of the act and also securing the interests of the buyers against the ill fitted plans and intentions of the project builders. The authority is having cosi judicial powers to make any arrangement to complete the project and charge penalties.
  • The provisions in S.29 empowers the aggrieved allottees to file a complaint against a developer to the authority, thus enabling the authority to deal with such a subject of protection of a consumer expeditiously and ensuring the disposal of such complaints within sixty days from the date of filing of the complaint with the appropriate authority. In Maharashtra, its online with a fees of Rs5000/- and in other states, the fees varies and sometime off line.
  • The Authority under the act has been vested with the functions of promoting consumer protection under Section 43 which enables the appropriate Government for the formation of a Real Estate Appellate Tribunal for the quick redressal of grievances of the consumers, which also provides of the disposal of cases within sixty days of such filing.
  • Section 59 & Section 60 of the Act provides for the penalty of the developers for contravening the provisions of the act, thus keeping in mind to create a consumer friendly real estate sector.
  • Section 59- Penalizes the promoter to pay up to 10% of the project cost for non-registration their project with the RERA Authority.
  • Section 60 – proscribes that the developer pays 5% for violating the provisions of the act and providing false information to the consumers.

In fact, the preamble of RERA says that the Act is enacted to established RERA Authority in every state and to enhance transparency in real estate transactions and development process.

5 tricks builders won’t be able to play on you

A building under construction
Homebuyers stand to benefit from the approval of the Real Estate Bill

With the Real Estate (Regulation and Development) Bill cleared by both houses of Parliament, it is only a matter of time before the regulatory mechanism is set up by all states.

Many malpractices within the sector, responsible for lack of consumer confidence and plummeting sales, are likely to get curbed with this Bill.

No profiting from information asymmetry: Earlier, developers took undue advantage of the fact that less information was available to the buyer than to them. Take one instance.

The builder would tell a customer that land acquisition had been completed for his project.

But not reveal that only 80 per cent had been completed, and he was embroiled in litigation over a patch of 20 per cent. Unfortunately, the apartment he sold to the buyer could have been slotted in the project plan on that very patch.

So even if the rest of the project got delivered on time, this customer’s possession got delayed.

Statutory permissions have been another major cause of delay.

At the time of selling, the developer would confidently tell buyers all permissions would come through in a few months. Later, the project would get delayed in the absence of some.

Now, registered projects must disclose a lot of accurate information — status of land acquisition, statutory approvals, layout plan, etc — to the regulator, which will put it up on its website.

No playing around with buyers’ money: A common practice among developers was to raise money from buyers for one project but not use it to complete that one.

They would use the money to buy land which would enable them to launch another project and raise more money from a new set of buyers.

This inevitably led to delays in delivery and hassles for buyers.

The latter would have to bear the burden of monthly instalments and rent simultaneously, and in case of a delay beyond three years, lose the tax benefit on their home loan.

With the Bill making it mandatory that 70 per cent of money raised from sales in a project will have to be put in an escrow account (states have the freedom to reduce this figure to 50 per cent), developers will find it difficult to divert money from one project to another.

“This clause will prevent shortage of funds and ensure timely delivery,” says Ashutosh Limaye, head of research at JLL India.

No discrepancy in penalties: In the past, if the buyer delayed payments, he had to pay a high rate of interest.

But, if the developer delayed on delivery, he paid a pittance. “Even this money would at times not be paid but be adjusted against final payment from the buyer,” says Pradeep Mishra, research head,

Suppose a person purchased a 2-BHK flat of 1,100 sq ft for Rs 50 lakh. If he delayed payment, the interest would be as high as 18-24 per cent per year.

At 18 per cent, this translated into Rs 75,000 per month.

If the developer delayed payment, he would pay Rs 5-10 per sq ft per month. On an apartment of 1,100 sq ft, this would translate into barely Rs 5,500 per month.

This practice will  end because the Bill specifies that penalties for both parties will be at par.

No changes in project plan at late stage: Developers would sell a project to buyers by painting an attractive picture but later change the building plans and specifications. For instance, the builder might have sold an apartment block with the proposition that it offers a view of the sea.

Later, a new set of apartments would come up, blocking this view.

Similarly, new apartment blocks would come up in what was earmarked as a green area. Another practice was to come up with an affordable housing component in what had been promoted as a luxury project.

Such shenanigans will have to end, with the Bill making it mandatory for the developer to get the permission of two-third of buyers to make changes to project plan.

“Developers will have to be very careful at the time of planning, as it will become difficult to change at a later stage.

They will also have to stick to their commitments to buyers,” says Sanjay Dutt, managing director, India, Cushman & Wakefield.

On the flip side, the need to get two-third consensus could also mean delays.

No delay in handing over charge to RWA: Developers would at times try to delay handing over charge of the project because they stood to benefit from this.

“If the FSI (floor space index) norm was increased in that area, the developer would be the beneficiary, as he could construct and sell more,” says Limaye.

Delaying the hand over would also allow errant developers to charge high rates for services and maintenance. The Bill makes it compulsory to form a resident welfare association after three months of handing over of a majority of units in the project.

Experts are hailing the Bill as a landmark event.

“It will bring transparency and accountability, offer protection to customers and give them the confidence to invest in real estate,” says Anshuman Magazine, chairman and managing director, CBRE South Asia. Nonetheless, buyers should not lower their guard right away.


  • Pay cost of apartment based on carpet area, easier to measure
  • Pay lower interest charges on delayed payment to developer
  • No need to bear burden of EMI and rent simultaneously
  • Earn rent from your apartment and use it to part-pay EMI
  • Pay lower maintenance charges if resident welfare association formed on time

The image is used for representational purpose only. Photograph: Reuters

Sanjay Kumar Singh in Mumbai


How to make the right choice when buying a house

Buying a house is a big financial commitment. Don’t let an investment of Rs 50-60 lakh be influenced by freebies worth a few thousands.

When Arun Kumar Pathak booked a flat in Noida four years ago, the builder had promised to hand over possession within 18 months. He had even offered a hefty 9% discount if Pathak paid the entire amount up front. Not convinced, Pathak opted for a smaller 2% early bird discount and paid only 30% of the price at the time of booking.

“The rest 70% is payable only when I get possession,” he says with a sense of relief. That is because the project is still not finished and there is no saying when the project will be handed over.

Pathak was lucky, but thousands of other buyers are not. Delay in projects has become a common thing across the country. The best option of buyers is to opt for a construction linked payment plan under which they pay as work on the project progresses. This way you don’t lock up your money in a project that is not moving ahead.

This week’s story examines the arithmetic behind each payment option and explains which of these suits you best.

1. Construction-linked plan: Cushion buyers against delay in projects

2. 30:70 subvention plan – Requires a small 3 down payment

3. Subvention without loan: Rigorous due diligence required

4. Interest waiver on home loan: Cuts EMI burden

5. Assured rentals: Reduces cost of borrowing

Read the detailed analysis at:


Narendra Nathan

Download Registered Property transactions

You can now download Registered Property documents by visiting  Please click on eSearch facility on the left. (Be sure to use Internet Explorer and not Chrome or Mozilla for best results.) This will provide a unique Document id. You can then go to download document, enter that id and then click on Download. The time taken to download the document will be less than 30 minutes.

This new facility has been initiated for 14 of the 23 registrar’s offices in Mumbai. This is a free service for about a week – after that it will be chargeable. The data is available from 2002 to 2011

Stamp Duty in Maharashtra


The Bombay Stamp Act applies to the entire State of Maharashtra. Only the instruments specified in the Schedule I to the Act are covered by this Act. All other instruments are either chargeable under the Indian Stamp Act (e.g., transfer of shares) or are not chargeable at all (i.e., if they are not specified under the Act as well as under the Indian Stamp Act).


2.1 It is very important to note that stamp duty is on an instrument and not on a transaction.

2.2 S. 3 of the Act levies stamp duty at the rate provided in Schedule I on any instrument executed in the State. Even instruments executed outside the state are liable to duty only on their receipt in the state, provided it relates to a property situated in the state or a matter or thing to be done in the state.

2.3 An instrument covering or relating to several distinct matters is chargeable with the aggregate amount of duty with which each separate instrument would have been chargeable.

2.4 In case an instrument is so drafted that it is covered within the ambit of more than one Article under Schedule I, then it shall be taxed by that Article which levies the highest amount of stamp duty.

2.5 The term “Instrument” has been defined to include every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded.

However, it does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt.”

Click Here for the full article and Stamp Duty Rates


The Practising Engineers, Architects and Town Planners Association of India (PEATA) has made a detailed analysis of IMPACT OF MODIFICATION TO DCR JULY 2011

Municipal Commissioner Vide Letter MGC/A/8279 Dated 13th July 2011 requested  Govt. and Vide Letter dated  21/7/2011 requested to Invoke  Provisions under 37 (1AA).

UDD. NOTICE U/ No. CMS/4311/CR-58/2011 /UD-11 Dated 25th July 2011

MC Letter dated 13th July 2011  emphasizes on Uniformity and  Prevent Misuse. He Proposed the Compensatory FSI as Fungible so as to give Flexibility to Architects for Designing the Buildings.


DCR -29 – Open Space Requirement

DCR -30 – Features Permitted in Open Space

DCR – 35 – FSI Computation

DCR -36-  Parking Spaces

DCR -38-  Requirements of Parts of Buildings

DCR – 43 – Fire Protection Requirements

DCR – 44 – Requirements of Individual Exits /Floor APPENDIX VIII(19) – Added.

Click Here for the full document

Vinod Sampat on Redevelopment Projects, Landmark Judgements and Common Mistakes

Advocate and property expert Mr Vinod C Sampat while speaking at a seminar organised by Moneylife Foundation in Mumbai on 12 November 2011.

Tips on selecting builder for redevelopment projects. He insisted that the process should be transparent, and advised that housing society members should have legal and technical consultants to interact with the builder. Also, it is important to check the builder’s credentials and financial conditions, he said.

Landmark judgments related to cooperative societies and explained new rules which have been framed and laws which have been struck down. He also talked about several laws by virtue of which officers concerned can be made accountable for delays and even be penalized.

He said not many people are familiar with the workings of the cooperative housing societies, and are left confused while dealing with a variety of civic and legal compliances. He pointed out that most cooperative housing society members do not check the several financial aspects related to cooperative housing societies; and end up paying extra charges for several things, and at times, defaulting on necessary payments.


Amended DCR doesn’t benefit suburbs, says MSWA

Amended DCR doesn’t benefit suburbs, says MSWA

The amended development control rules had no significant benefit of FSI or open space concessions extepded to Mumbai suburbs.

The Maharashtra Societies Welfare Association (MSWA) and suburban resident welfare associations of Mumbai have sought the withdrawal of new amended Development Control Rules (DCR). They said the changed rules had no significant benefit of FSI (floor space index) or open space concessions extended to the island city for the suburbs.
The DCR amendment came in January this year. The civic body hopes to garner approximately Rs 1,000 crore in premium collection. The square foot rate in of built-up space in the city varies from Rs 72,000 to Rs 20,000, while in suburbs it is between Rs 42,000 and Rs 7,500.

Under the amended regulations, areas such as terraces and swimming pools or individual apartment balconies and ornamental projections that were not part of the FSI would be included in FSI to prevent manipulations by developers. These areas come under a concept of compensatory FSI, in lieu of a premium levied on developers. The areas under.compensatory FSI called ‘fungible FSI` should not be more than 35 per cent of the total area of the apartment. Also, no premium will be charged for fungible FSI while redeveloping dilapidated buildings and in suburbs; the fungible FSI on the FSI already consumed in the existing buildings will be available free of premium. Some other changes include an option of 25 per cent more parking over the DCR limit without premium, which is also exempted in the FSI calculation.

The Maharashtra Chamber of Housing Industry had welcomed the amendments, and said only 20 per cent reservation for affordable housing in more than 2000 square metres plot redevelopment was detrimental to them. According to Mr Boman R Irani, Chairman, Rustomjee Group, there is no advantage for a developer in terms of the amendments, but it had done away with the discretionary power of the authorities, which makes sure that one and all know how much they can build on a plot of land. –


Suburbs are qualified for one FSI plus loading by way of transfer of developmene rights of one FSI, which they should purchase (total two). This is in addition to fungible FSI and a premium FSI of 0.35 (Grand total of 2.7). BAI has questioned the rationale behind the amendments.

While developers in the island city limit get 1.33 FSI, there are no open plots, and they benefit by the incentives given for redevelopment. There are more than 16,000 old buildings which are eligible for three FSI for redevelopment individually, and four, if developed as a cluster (if projects are amalgamated as one), they contend. Most of the old buildings are cessed tenements. With rents frozen for decades, owners of these buildings have either deserted them or are unable to maintain them. The government brought in a cess collection for these buildings from tenants for maintaining them in the seventies.

BAI said the existing provisions for the city allow three to four FSI in addition to compensatory FSI for the rehabilitation portion. Suburbs get one FSI in addition to TDR (transfer of development right) of one, and compensatory FSI of 35 per cent (calculated on one FSI). But these were capped by the open space regulations.



On open space requirement, in suburbs, it is six to nine metres on all sides of the building. For the city, it is six, and concessions can be extended to bring it down to 1.5 metres depending on the plot size.

Further, open space for suburbs is linked with the height of the building and individual sanction from the Brihanmurrbai Municipal Corporation Commissioner.

Mr Anand Gupta of the Builders Association of India said the open space requirement was primarily for fire safety and questioned how it could be relaxed for the city and retained for the suburbs. It was impossible to comply with the open space requirements in suburbs, especially in smaller plots.
Moreover, the Municipal Corporation has defined a special category of plots of less than 600 square metres in the city and made them eligible for reduced open space norms, he charged. More importantly, there were very few dilapidated tenanted buildings in the suburbs, and hence
redevelopment was by the residents themselves. So, there was no justice in denying suburbs the concessions doled out to old buildings in city. Moreover, the plot size in suburbs was far smaller with buildings of two to seven storeys.
Mr Ramesh Prabhu, Chairman of the Maharashtra Society Welfare Association, said a majority of the plots in the town planning schemes under WPD (juhu Vile Pane Development Scheme) were less than 600 square metres. These don’t qualify for any benefits under the open space regulation or rehabilitation component of the amended DCR rules as their counterparts in the city do.

MSWA’s Housing Society Review – 20 April 2012

Deemed Conveyance

About Conveyance Its Advantages And Disadvantages

Meaning of Conveyance:

Conveyance Deed is a document executed to transfer the title of land and building in favour of Society.

Importance and provision of law on Conveyance:

As per the Housing Society bye-laws, the main objective of formation of the Society is to obtain the Conveyance; and if Conveyance is not given by the Builder within four months from the date of registration of the Society, a case can be filed against the Builder to obtain the Conveyance. As per Section 13 of Maharashtra Ownership Flats Act, 1963, failure to give Conveyance is an offence and the Builder can be imprisoned upto 3 years or fined or both.

Click Here for the full story including Checklist, Procedure and FAQs