Hi, I have bought one flat From DS-MAX near Varthur, Bangalore. SBI has sanctioned loan against that property. Just few days before I came to know that builder is not going to give me the Occupancy Certificate (OC). However they will transfer Khata in my name (that too "A" Khata). I asked them why you can't give me OC , have you constructed something illegal ? Then they showed me the BBMP approval for the plan. I am confused now if everything is as per BBMP approval then why BBMP is not giving OC ? Also I heard about Akrama Sakrama. As per this scheme, my flat will get OC after paying some betterment charge. Is it true ? How likely is that BBMP will demolish the flat if we dont have OC ? Thanks.
Asked in Property Law from Bangalore, Karnataka
1) OC takes time . if building has been constructed as per sanctioned plans builder will get OC .
2) if builder fails to obtain OC move consumer forum against builder for deficiency in sevice . Consumer forum will direct builder to obtain OC within period of 4 months or so . and penalise builder for each day of delay if he fails to comply with order . also award you compensation for failure on part of builder in obtaining OC
Now, owners of flats and bungalows do not have to depend on the builder for the OC as they individually can apply for it to the municipality. However, if the flat or house has not been built as per the norms laid down by the municipality the owner will have to either tell the builder to fulfill the requirements or do it himself before seeking the certificate.
Advocate, New Delhi
If the same is constructed as per the plan and according to their rules without any illegal construction builder will get. OC. File a RTI application to know about why not getting OC. Then issue a legal notice for deficiency of services and claim damages.
A. In my opinion, BBMP has approved your project which you bought from the same, usually OC would be rejected if the builder has committed mistake more than 5% deviation in this task. It has an exception under the bye law 6 of the BBMP that within 5% deviation can be permitted by to issue OC by paying a penalty as per the slab of the BBMP. Hence, OC cannot issue by paying betterment Charges.
B. The Hon’ble Supreme Court has given a judgement in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10 July, 2008 that “Even if such a provision for providing completion certificate is not found in the agreement, the builder cannot escape the liability for securing the Completion Certificate and providing a copy thereof to the owner. The law requires the builder to obtain completion certificate of such a building.”
C. File an application before the BBMP under RTI to know the proper reason to reject to OC?. You will not have right occupy the premises as per legal norms unless obtained OC from the BBMP. But the BBMP has the right to demolish the building when the rules and regulation and approval plan violated by the builder.
D. The Karnataka High Court has given a stay with respect to land regularization under Akrama and Sakrama. The notification under Akrama and Sakrama proposes to regularise deviations up to 50% in residential buildings and upto 25% in commercial structures.
G. Issue legal notice to the builder to apply or provide OC. Thereafter, you can approach the Consumer Forum to obtain relief under deficiency in Service. Don't think about the demolish go exercise your right before the court of law.
1. You should have carried due diligence prior to the purchase of the property. Whether or not the construction is in consonance with the approved municipal plan should be ascertained prior to the purchase of the property and not thereafter.
2. Unless and until occupancy certificate is obtained from the municipality the owner cannot occupy the premises. It is the occupancy certificate which confers on an individual the right to enter and occupy the premises.
3. If occupancy certificate has not been issued by BBMP the cause has to be deviation from the approved plan beyond the permissible limit. The sword of damocles is always hanging over the head of the inhabitants of the building which has been erected in defiance of the approved municipal plan. If the BBMP plan is violated then the building constructed in violation of the plan can be demolished by the municipality on its own or under a binding order issued by a court of law. Campa Cola Society case in Mumbai is an apt illustration of the action which the residents of an illegal building may face.
4. It is the inescapable duty of the builder to obtain the OC and then deliver it to the owner. If he has violated this duty then the owner may move to court and seek the OC and also compensation for the delay in obtaining the OC. However, if the building has illegally been constructed then OC will be refused by BBMP.
a. send legal notice to builder to give you OC asap.
b. if builder does not respond to legal notice then file complaint in CF and claim damages for the said delay for issue of OC to you.
c. by applying through RTI you can know status of OC ,if applied by builder.
Advocate, New Delhi
As you are apprehending 'Akrama'(not followed rules & regulations-illegal) in the construction and when once the Bruhat Bangalore Mahanagara Palike(BBMP) collects betterment fee followed by 'Sakrama'(regularising deviations by the builder) and Since the Karnataka High Court has stayed the Karnataka Govt's notification for regularisation of lands in the form of 'Akrama-Sakrama', you may have to wait for some more time to get Occupancy Certificate from BBMP.
Hi, it is duty of the builder to get OC if not issue legal notice and move to the consumer court that Builder has not obtained OC.
It looks like from your description that although the BBMP has approved the plan the builder has certaily deviated from the approved plan and hence is unable to obtain the OC.
You ought to get the OC to legally occupy and use the flat and stands the danger of possible demolition of the structure at any given period in the future.
Therefore since you have already bought the flat ensure that you demand for occupance certificate from the builder and if he fails to do so serve him a notice and move Consumer Forum with a complaint for deficiency in service.
As there would be other aggrieved parties do mobilise their support and encourage them to follow through with you in pursuing the same course of action.
1. Find out from BBMP why your builder is not getting the OC by visiting BBMP in person,
2. If you find that the builder has deviated from the plan sanctioned by the BBMP, ask the builder to pay the penalty to get the deviation regularised and get the OC,
3. If he fails, file a complaint case before the local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice praying for a direction upon the builder to handover the OC within next 3 months failing which he has to pay penalty on daily basis amount for which will be fixed by the said forum,
4. You can also pray for damage and cost,
5. The builder will act now.
Thank you all for your valuable suggestions. My flat construction is still going on. It will be completed only by next year end. However my builder is not going to apply for OC. They were saying if they apply for OC then per flat cost will increase by 10 to 15 lakh. I am still trying to understand this mathematical calculation. Having said all these, I have one query
1. Is it possible to transfer Khaata in owner's name even without having OC (in case of newly constructed flat and in case of old house sale) ? I am asking this because my builder is saying that he will transfer Khaata in my name but he won't give OC.
Asked 2 years ago
1) in case of new flats builder can enter into registered agreement for sale with buyer at stage of construction . even without OC said agreement can be registered .
2) however after completion of construction builder has to obtain OC . you wont be able to have your resale agreement regd in absence of OC
1. Please note that you are not the owner till the time the sale deed is not registered. Even without OC you can enter into an agreement for sale and register it, but ownership will flow only out of the sale deed.
2. Without OC you will not be able to obtain the possession of the property. If builder does not apply for OC then move to consumer forum and bring the required proceedings against him.
1. yes, it is possible to transfer Khaata in owner's name even without having OC both in case of newly constructed flat and in case of old house sale.
2.without OC u cannot take possession of flat and thus builder will have to give OC to u.
3. u can file consumer complaint in CF against builder for deficiency in services.
Advocate, New Delhi
1. Do not go by the Khata transfer procedure,
2. You can only be the rightful owner of your flat when the sale deed pertaining to the flat is registered for which OC will be required,
3. Contact BBMP office to learn why is he actually avoiding to file OC,
4. Send him a legal notice asking him to register the sale deed after collecting the OC from BBPM office eithin 30 days,
5. If he fails, file a complaint case before the local District Consumer Dispute Redressal Forum alleging defficiency in service and unfair business practice claiming immediate registration of sale deed alongwith OC, damage and cost.
You can buy even if OC is not given but enquire in revenue office and BBMP why it is not given