If you have been cheated by builders, first thing you must do is ACCEPT the fact that you got cheated, because you did not do your homework of gathering complete information about the project and the builder.
Once you have accepted, only way you can get out of this situation is by gathering complete information NOW. And the homework is also more now. You have to be aware of not only the builder and the project but also the legal ecosystem of country.
First thing, gather all your documents and read them carefully. You should go through the Builder Buyer Agreement (BBA), Payment Receipts, Allotment letter, all communication with Builder (letters/emails/telephonic).
There are two ways to settle your grievance against any builder a) Talking to Builder b) Creating Legal Pressure.
“Talking to Builder” means visiting Builder’s office and requesting him to settle your grievance, trying to find some middleman who can influence the builder, taking out protest march in front of builder’s office etc. This approach works but very rarely. If this approach doesn’t work for you in 10 days, believe me it never will.
What generally works is the Legal Pressure.
Legal pressure can be created at multiple forums like Civil Court, Criminal Court, Consumer Court, RTIs. Question is how to decide, which forum/s can get you relief. This totally depends upon your case. It has to be seen if there is actually a case of cheating (Section 420) or the nature of offence is civil in nature.
Criminal Court
When do you have a solid case against a builder in a criminal court? It is a tough question to answer. To understand this you have to understand how builders commit frauds. Usually you will find them (a) Cheating the Government (b) Cheating the Buyers.
If the builder is collecting money without licence, starting construction without environmental licence, collecting EDC (external development charges) from buyers and not depositing it with the Government, then this is bucket of “Cheating the Government”. Now that RERA is coming but the Government has enough laws in place since a long time (Haryana Urban Development Authority Act (HUDA) is since 1977) to regulate builders. If there is any violation, then it is duty of Government Department (Town and Country Planning Department in Haryana) to write a letter to local police and register a FIR. But usually the Government Department will not act, unless you write a letter to them about violation of Act.
What is meaning of “Cheating with Buyers”. If a builder is collecting money from buyers without licence, it also means that the builders did not disclose the license information to buyers, probably with intention of cheating. Another example is funds diversion. Usually builders will collect money from buyers and divert this money into other projects, which is nothing but cheating with buyers. Delay in construction is tricky one. Sometimes it will come under criminal offence sometimes it will not. It has to be seen if the delay is because of some frauds or because of economic conditions of the builder. Similarly if builder made you sign one sided pre-printed Builder Buyers Agreement (BBA), the criminal court might refuse to admit your case. Grievances like Deficiency in service, improper amenities, ceiling leakage, improper drainage system, incomplete fire safety system, low quality of electrical wiring, improper water provisions, not providing the occupation certificate etc are to be analyzed on case basis if they can be Criminal Court or not.
Some of the sections in which builders are usually booked are, 420/406/409/120B, IPC. Google and see if your case fits in any of these sections. So, first point action item is, do some homework and find out how can you build up a case for Criminal Court?
So how to take your case to Criminal Court. For this, you need an FIR to be registered against the builder.
FIR is very powerful step as it sets the process of investigation. It is only after the FIR is registered that the police take up investigation of the case. Rather police is bound to take up investigation. It is important to note here that the contents of the FIR cannot be changed except by High Court or Supreme Court. So even if police has some understanding with the builder, they have to act against him after FIR.
The Criminal Court is not going to ask Builder to refund you money. Then why FIR? Will FIR get us our money back from the Builder? YES and NO. The purpose of FIR is to create pressure on builder. If builder is guilty, he would prefer to refund your money back then spending some time in jail. Please remember that the builder is used to a comfortable lifecycle, courtesy your hard earned money. Even thought of jail is going to scare him big time. FIR creates legal pressure and is an arm-twisting measure. Chances are high that once FIR is registered, the Builder will come forward to settle you.
First step, write a detailed complaint to local police station (preferably where builder office is) and ask police to register FIR. You do not need lawyers for this. Just state all facts, attach all documents (BBA, Receipts, Letters from builders) and write how you got cheated. It might happen that police will not lodge your FIR. Do not get sad. It is really OK. Just make sure that you have receipt of submission of your complaint.
Second step (if FIR is not lodged), write a complaint to head of district police (SP or DCP or Police Commissioner). Chances of getting FIR done is higher. But still if it does not happen, it is OK. Just keep receipt or some proof of submission of your complaint.
Third step is going to local court to get your FIR lodged. For this you will need a lawyer. There is a provision in our legal system (called section 156(3)), according to which, if police does not register FIR, you may approach court, who will direct police to register FIR. There is no need to go for a celebrity/hi-fi/glorified lawyer. You just need someone in black coat who can speak well and tell the Judge, what you will teach him. Yes, teaching has to be done by you. You will definitely get your FIR done by this stage.
Chances are very high that you will hear from the Builder after FIR is done. But if you don’t, please don’t get dis-heartened. Let the trail begin. Submit all your evidences and witnesses and you will get justice. What is equally important that you build pressure on the Builder through parallel channels like Complaints, RTIs, Consumer Court.
Complaints and RTI
The approach of Complaints and RTIs is faster than Criminal Court but is research intensive. This is equally effective approach to create legal pressure on the Builder. You may read Using RTI against Builder to draw your strategy under this approach.
Consumer Courts
Consumer Courts have three tiered structure: District Consumer Court, State Consumer Court and National Consumer Court. Cases where the value of property is below 20 Lakhs can be filed in District Consumer Court, between 20 to 100 Lakhs can be filed in State Consumer Court and greater than 100 Lakh can be filed in National Consumer Court. If you are unsatisfied at any level, you can move to higher level.
The complaint can be made on plain paper and you do not need a lawyer for this. Once your case is admitted, the notice will be served to the other party and case hearings begin.
Are Consumer Courts effective in getting relief? YES and NO.
While on the one hand, Consumer Courts have fined bog builders hundred on crores, on the other hand, there have been instances where Builders did not appear in court even after getting notices.
Another problem with Consumer Courts is that they are flooded with cases and it might take 2-3 Years in case disposal. It is not uncommon to get hearing dates at interval of 6-8 months.
Nevertheless one should definitely send a complaint to Consumer Court. It creates legal pressure on the Builder. Further there are some violations, for which relief can be sought ONLY in Consumer Courts.
Some of cases where a strong case can be made against a Builder are:
- Accepting advance amount but not signing agreement
- Charging higher than the agreed amount
- Poor quality construction
- Delivering of a house not complying to agreed specifications
- Charging for Parking Space (should be free)
- Deficiency in basic services like water storage tank, proper ventilation and light
- Delay in possession
- Not obtaining completion certificate from Government
- Everything else where you are not happy.
The best strategy is to take on Builder on multiple forums and Consumer Courts is one of them.
Summary of this discussion is
(1) Study you case and identify how a case can be made in Criminal Court
(2) Register FIR for Criminal case
(3) Build you case with RTI and Complaints
(4) File a case in Consumer Court.
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