Illegal alterations don't justify absence of occupancy certificate

A builder cannot escape his liability to obtain the OC by blaming the buyer for illegal changes

Santosh Nanabhau Doke had booked a flat in Shreerama Residency, which was being constructed by Shreerama Shree Constructions at Titwala. Possession of the flat was given without obtaining the Occupancy Certificate (OC).

Doke lodged a complaint before the Maharashtra State Commission against the builder, its director Anilkumar Singh and the society. He alleged that the building had not been constructed in accordance with the sanctioned plan due to which the OC had been held up by the competent authority.

The builder contested the complaint stating the Doke had made unauthorised alterations in his flat, and due to these changes, the OC could not be obtained. The society responded that it had also had filed a separate complaint against the builder in respect of non-completion of the building, and this was still pending before the National Commission.

The State Commission observed out that a builder had a legal obligation to obtain the OC, form a cooperative society, and convey the land as well as the building in favour of the society. It noted that Doke had been unlawfully given physical possession of the flat even though the OC had not been obtained.

It held this to be a violation of the provision of the Maharashtra Ownership Flats Act (MOFA). The Commission pointed out that it might be possible to get certain unauthorised alterations regularised. 

The State Commissionordered Doke to apply to the local authority for regularisation of the unauthorised changes, if permissible by law and directed the builder to extend cooperation.

If such regularisation was not possible, the Commission ordered suitable steps to be taken to get the alterations removed with the help of the authorities. Meanwhile, it allowed Doke to continue residing in the flat, subject to applying for membership to the society and regular payment of maintenance dues and clearing the arrears right from the time of occupation.

As possession was handed over in contravention of the provisions of MOFA, by its order of June 14, 2019, delivered by Justice Bhangale for the Bench along with A K  Zade, the Maharashtra State Commission held the builder and its director jointly and severally liable to pay Rs 5,000 towards compensation and Rs 5,000 towards litigation cost.

A builder cannot escape his liability to obtain the OC by blaming a flat purchaser for illegal alterations. 

However, the flat purchaser would be entitled only to token compensation as there is contributory negligence on his part.

The writer is a consumer activist