• Can re-development builder stop possession of tenant

Subject: Possession Denied by Re-developer to tenant of Pagdi System
Respected Sir /Madam, 

           I was tenant in pagdi system living in a chawl in western Mumbai for last 63 years. Our chawl was taken for redevelopment by a builder in 2011.

In the early stages of our finalization of the redevelopment proposal in the year 2011, the members were demanding an area of 350 sq.ft in the new redevelopment  project against our existing area. At that time the developer of had clearly and sternly stated that they cannot give a single sq.ft extra against the proposed 290 sq.ft as it was not possible to accommodate anything beyond  290 sq.ft. Unwilling we were compelled to agree to their terms of  290 sq.ft.  area at that point of time. They had also promised to pay monthly rent for the alternate accommodation till the possession of the new flat. They had made an agreement regarding the same & registered it.

Around 3.5 years later in the month of January 2015 the builder suddenly came up saying that the tenants would be getting 350 sq.ft. area and not 290 sq.ft. as decided earlier and also mentioned in the agreement.  For 3.5 years not a word was said or communicated about the increased 60 sq.ft. area. This decision was taken without giving any information to the tenants and without their consent. At this point of time we reminded them that our initial demand was of 350 sq.ft. itself which they had sternly denied. Now they are demanding an exorbitant amount of Rs.4 lakhs for the increased 60 sq.ft. This is completely unprofessional, unethical and illegal. I am a lower middle class people and cannot even imagine of arranging such a huge amount. The builder knows this very well. His main cunning intention was to pressurize the tenants and compel them to sell the flat to the builder at throw away rates so that he can sell it at a huge price and earn money. Owing to this pressure of the builder few of the tenants have sold their flats to the builder at throw away rates and left. 
I would also like to inform you that he has blocked the rent from last 6 months since June, 2015 which is unacceptable and not legal. Legally every redevelopment builder is liable & bonded to pay the rent to the tenant till the possession date and it is also mentioned in the agreement. 

He also uses filthy abusive language while talking to us. He has been threatening, abusing and resorting to hooliganism which is unprofessional, unacceptable and also criminal. To threaten us they are also taking names of well known politicians of our locality and country.  He has been taking the names of high profile politicians while threatening me about their high profile contacts and discouraging me to take any legal action against them.      
I would like to inform you that our financial condition is very weak and our monthly income is not even enough to fulfill our basic necessities. Even at this point of time, since the builder has stopped giving rent we are facing a very difficult situation for survival. We requested the builder to consider our financial condition and pay us the pending rent and give us peaceful possession of our owned flat. But he has completely denied to pay the pending rent and also stated that we will not get possession unless and until we pay him the money demanded by him (i.e. Rs 4 lakhs) at any cost.

I, aged 63 yrs. am suffering from high blood pressure and going through tremendous mental trauma and stress. I feel my self-owned flat, which is my only shelter for last so many decades has been fraudulently snatched from me. The builder is also threatening me of dire consequences if we initiate any legal action against him. According to him, I’ll never be able to get the possession of my flat at any cost. All the other tenants have paid the money & got the possession but I am denied possession by the builder. The builder has built a tower of 18 floors on our land apart from a building for the tenants & selling the flats in crores of rupees.
Also I would like to inform that the extra 60 sq.feet is mentioned as Fungible FSI as in the possession letter given to the other tenants. It is mentioned in the possession letter as follows- the carpet area is 350sq,feet( including Fungible FSI).

Shall I lose my ancestral residence or is there any way out?

 We hope you understand the seriousness of the situation and guide me the way to get peaceful possession of our owned flat at the earliest.

Thanking you,
Yours Truly,
Asked 2 years ago in Property Law from Greater Mumbai, Maharashtra
Religion: Hindu
1) file complaint against builder before consumer forum for unfair trade practices and seek delivery of possession of flat , rentals , compensation for mental torture undergone by you 

2) builder is bound by terms of agreement signed with tenants 

3) if as per agreement builder was required to give flat of 290 square feet he cannot increase the area without the consent of tenants and demand extra Rs 4 lakhs . further he is bound to pay rentals till flat is delivered to you 

4) record all threats received from builder and file complaint of criminal intimidation under section 506 of IPC 
Ajay Sethi
Advocate, Mumbai
45415 Answers
2667 Consultations

5.0 on 5.0

1)in your case agreement provided for 290 square feet  flat area  . the increase in flat area is without consent of the tenants. complaints before consumer forum take 2 years to be disposed of 

2) you need not engage a lawyer and can file complaint on your own and seek reliefs mentioned in my earlier reply 

3) you need possession letter from builder to enter the flat . the balconies and flower beds were very much part of  agreements and tenants cannot be charged at this belated stage.by the builder 
Ajay Sethi
Advocate, Mumbai
45415 Answers
2667 Consultations

5.0 on 5.0

You can file an injunction suit against the builder restraining him from demanding the excess amount which is in excess to the agreement already made and also seek the relief of arrears of rent alternately you can approach the consumer forum seeking to redress the grievances caused by the builder by forcing you to pay the excess amount as well as causing mental agony and also for recovery of arrears of rent.
Builder cannot breach the terms of contract, he is liable to perform his part of contract.
If his threat persists or beyond tolerance, you may even approach police station with a criminal complaint for intimidation.
T Kalaiselvan
Advocate, Vellore
35575 Answers
385 Consultations

5.0 on 5.0

 If I file a complaint with the consumer forum as advised by you how much time will it take for me to get possession
The consumer courts speed up the legal process and it can be expected to be decided in a matter of a year's time.
The advocate's fee will depend on the advocate you may like to engage.

Paying rent from my pocket without possession is immensely difficult for me. Is there Any way by which I can get early possession & survival becomes easy for me?
A case before consumer forum shall be decided expeditiously. 

 Please advise in detail. Can I enter the flat allotted to me in the agreement without possession letter from the builder?
No, that will be considered as illegal. You are to get a possession letter and besides it, you may also have to get an occupancy certificate.

Under the new DCR, areas for balcony, flower beds, terraces, void niches would be counted in the FSI.  To compensate for the loss in FSI, the government has allowed  compensatory fungible FSI of upto 35% of residential developments.  This can be used for bigger habitable area or for  balcony or for flower beds, terraces, voids, nichers etc. 

Simply put, FSI is the ratio that determines how much can be built on a plot. It is clear from the above definition of FSI that certain areas are specifically excluded from the computation of FSI, which means these are "Free of FSI" areas. Prior to the said Notification, areas covered by balconies, flower beds, individual terraces, ducts, voids, niches, refuge area, new or additional lifts, staircases, swimming pools, fitness centres in Cooperative Housing Societies, sun decks, clubhouse, ornamental projections etc., were not included while computing FSI. Thus, these areas were known as "Free of FSI".

In order to compensate for the loss of "Free of FSI" areas, Builders/Developers may now avail of Fungible Compensatory FSI, which may be used like regular FSI. Fungible 
Thus, the said Notification is a step towards curtailing malpractices propagated by Builders/ Developers by envisaging a compact plan where all areas are included for the computation of FSI and a cap of 35% is fixed (in case of residential projects) so that there is no room for the Builders /Developers to manipulate the rules by creating excess non-habitable areas and overcharging consumers. Fungible Compensatory FSI may also be used to construct larger dwelling units and/or to construct additional dwelling units. Hence, it may be used in the same manner as regular FSI. However, it should be noted that projects that are already approved would not be affected by the said Notification issued by the Government of Maharashtra.
T Kalaiselvan
Advocate, Vellore
35575 Answers
385 Consultations

5.0 on 5.0

1. You are a tenant as per pagdi system and not the owner of your premises,

2. However, you have the right to occupy a flat of area of 290 Sq.Ft. from the redeveloped property as per the agreement signed by the developer,

3. File a specific performance case against the developer claiming possession of a flat of 290 sq. ft area in the developed property with rent till possession is given including payment of arrears, damage and cost,

4. You can avail the services of free legal aid provided by the state govt. in this regard,

5. As regards the threats given by the developer, lodge a police complaint against the developer after collecting evidence in the form of audio/video recording under copy to the D.C.,

6. If police fails to take any action against the developer, file a Writ Petition before the High Court against police inaction and praying for relief.
Krishna Kishore Ganguly
Advocate, Kolkata
18401 Answers
447 Consultations

5.0 on 5.0

The builder is bound by the agreement. He cannot force the additional 60 sq.ft area down your throat if you have not agreed to it. You can move the consumer forum to obligate the builder to honour the original agreement and also claim compensation for the delay. Unless the possession letter is handed over you cannot enter the flat. It may take up to a year for the case to be decided by the consumer forum. The cost will be told by the lawyer you inquire it from. 
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

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