• Delay in possession due to non-cooperation of Tenants

I have purchased a flat in July 2015 with a deal of getting possession in 3 months i.e. by end of Oct 2015 and I have to pay full amount within 1-2 months. I have completed my full payment by Oct 2015 and builder has completed construction in Dec 2015. But till now i.e. Oct 2016 I have not allotted possession of my flat. Builder is giving reason for delay is due to non co-operation from old tenants (not giving signed lease dead to apply OC). In this case can builder give possession to me i.e. saleable flat without giving possession to old tenants? Can I demand compensation from builder for delay in possession? Please advice.
Asked 1 month ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) if your agreement provides that possession would be delivered by December 2015 and builder has failed to deliver possession you can seek interest for delay in delivery of possession 

2) builder cannot offer you possession until OC is issued 
Ajay Sethi
Advocate, Mumbai
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Bombay HC: Illegal to move into property without occupation certificate
MUMBAI: It is against the law to move into flats in buildings without the mandatory municipal occupation certificate (OC), the Bombay high court has ruled. A division bench of Justice S C Dharmadhikari and Justice Gautam Patel sought action against 49 flat owners as well as a nursing home in two wings of a building with six wings in Sion East. 

"Occupying the building without occupation certificate and commencing the activity styled as Nursing Home cannot be countenanced and permitted in law. They will have to be proceeded against by the municipal corporation," said the judges. The BMC told the court it will issue notices to the 49 families, which moved into wings E and F as well as the nursing home on the first floor. 

The court's order could have an impact beyond this multi-storeyed Sion building. There could be as many as 6,000 buildings in Mumbai without OCs. Over one lakh families stay in such buildings. A few years ago, a state government amnesty scheme for such buildings received a tepid response—with just around 100 buildings seeking regularization.

he court was hearing a petition filed by the Sion Kamgar Cooperative Society that had leased the land in a central location in Sion for 999 years in the 1950s. A few years ago it went in for redevelopment. In its petition, the society claimed that while four wings were constructed as per plans, two additional wings were put up—which now house around 50 families and also has a nursing home on the first floor. The society asked the court to initiate action against the nursing home.

The court admonished the BMC for its conduct. "What we find is that there is complete silence maintained (in the corporation's affidavit) with regard to the construction of Wings E and F and whether they are unauthorized as claimed," said the judges. The BMC's counsel admitted before the court that both E and F wings did not have any occupation certificate. The court added that the nursing home might have been unaware of the disputes between the society and the developers, but the law did not permit occupying a building without OC. The BMC claimed that it had allowed the nursing home to be set up as it had all licences and the corporation had taken an undertaking from the hospital owners that the OC would be produced whenever it is issued. The HC said that this was not enough 
Ajay Sethi
Advocate, Mumbai
23328 Answers
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It is builder's headache to recover the possession from tenants and deliver the same to you. He cannot pass the buck to them. You have every right to sue the builder for compensation in the consumer forum along with delivery of possession.
Ashish Davessar
Advocate, Jaipur
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1. You have not yet purchased he said flat but entered in to an agreement with the builder for buying the flat.

2. You have complied with all the terms of the said agreement but the builder has not.

3. It is the builder's responsibility to get the lease deed signed by the tenant.

4. You can file a complaint case before  your local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice claiming refund of the entire amount paid with interest, damage and cost.
5. Alternatively you can also claim compensation equal to an amount which will be require to buy a flat of same area in similar type of locality since Consumer forum will not have jurisdiction to direct the builder to give possession without availing the required OC from the sanctioning authority.
Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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The delay in handing over the possession cannot be inordinate and the builder cannot keep giving reasons every time .
You have to initiate legal action against the builder until then he may be very serious about it.
First you issue him a legal notice demanding your relief immediately.
If there is no response or reply to the notice within the stipulated time period, you may initiate a case against the builder before consumer forum for deficiency of services and compensation.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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