How to file a complaint against a builder under MOFA?

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Readers, welcome back! MOFA Act has provisions by which criminal action can be initiated against the builder. These provisions are absent in the RERA Act. So, the MOFA becomes a more efficient and useful tool than that of the RERA. If the builder has ever cheated or made fraudulent action against you then the legal system is in your favour in the form of MOFA. Every flat holder shall be aware of his rights and laws which are there in the favour of the flat holder.

MOFA has various provisions which casts different liabilities on the builder. Section 3 prescribes general responsibilities of the builder. As per section 5, flat holders can ask and compel builders to disclose their accounts. Section 10 casts liability on the builder for the society formation and as per section 11 the builder is liable to complete the procedure of Conveyance. Even without aid of the builder the flat holders can form their society and can obtain a deemed conveyance.

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Breach liabilities prescribed under sections 3, 4, 5, 10, 11 is a non-bailable offence under section 13 of the MOFA. The offender under abovementioned sections can be punished with imprisonment upto 3 – 5 years which also may be extend upto life imprisonment.

The builders, often, do not comply with the provisions of MOFA but no flat holders initiate a criminal action against them. Whenever anyone gets cheated by the builder then flat holders shall immediately register a criminal offence against the builder.

• Do your society have these documents: Which documents should the builder handover to society?

THe Police Authorities cannot make any excuses to register a criminal offence. You can mention section 166-A of IPC and section 154 of CrPC. Also, you have an option to approach the Police Complaint Redressal Authority. After mentioning all these, the police authorities will definitely register an FIR against the builder.

Also, as per section 156(3) of CrPC, you can obtain an order to register an FIR from a Criminal Court.

Key provisions of MOFA as follows:
Section 3: General liabilities of builder:

• make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;
• give inspection on seven days’ notice or demand, of the plans and specifications of the building built or to be built on the land
• disclose the nature of fixtures, fittings and amenities (including the provision for one or more lifts) provided or to be provided
• specify in writing the date by which possession of the flat is to be handed over (and he shall hand over such possession accordingly);
• prepare and maintain a list of flats with their numbers already taken or agreed to be taken, and the names and addresses of the parties and the price charged or agreed to be charged therefor, and the terms and conditions if any on which the flats are taken or agreed to be taken
• state in writing, the precise nature of the organisation of persons to be constituted and to which title is to be passed
• not allow persons to enter into possession until a completion certificate where such certificate is required to be given under any law, is duly given by the local authority
  make a full and true disclosure of all outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges and electricity charges, revenue assessment, interest on any mortgage or other encumbrances,
• display or keep all the documents, plans or specifications
  sell flat on the basis of the carpet area only

Section 4: Builder shall register an agreement before accepting advance payment or deposit

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Section 5: Builder shall maintain separate account of sums taken as advance or deposit and to be trustee therefor; and disburse them for purposes for which given

Section 6: Builder has sole responsibility for payment of outgoings till property is transferred to the flat holders.

Section 7: After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats.
If the builder has obtained your consent by making additions in the clauses in the sale deed then the Bombay High Court has observed those consent as a “blanket consent” and expressly held them as “illegal and unethical practice” stating that those are not binding on the flat holders.

But unfortunately, breach of section 7 does not attract criminal liability as per MOFA Act. But, action can be initiated in the Civil Court to stay the illegal construction and even demolition of it.

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Section 10: Formation of cooperative housing society or company.

At times, builders register apartments and exploit the flat holders. But the flat holders can still get out of the apartment by cancellation of deed. There are many flat holders who are still unaware of these provisions and which proves detrimental in the future.

Section 11: The builder shall convey the title and ownership to the society by registering the agreement.
All the flat holders shall be united and raise the voice against unethical and illegal practices by the builders. The law is in favour of flat holders but it will become useless if not used wisely.

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