If you are stuck in such a situation, here is what to do.

About a year ago, Mr. Alok Sharma purchased a flat in a new multi-storey building, “Royal Heights,” in the city of Aravalli Nagar, directly from the builder, Apex Developers. The project, which featured 48 apartments, had only 33 parking spots approved under the Real Estate Regulatory Authority (RERA). Despite the shortfall, the builder managed to create and allocate 48 parking spaces by squeezing them into unapproved areas.

The parking spot initially assigned to Mr. Sharma was so constricted that his sedan could not fit. After numerous complaints, the builder offered a solution. He swapped Mr. Sharma’s spot with one belonging to a vacant flat owned by an investor, Mr. Vikram Singh, assuring Mr. Sharma that the investor would likely never reside there and the arrangement was secure.

Recently, the situation took a turn for the worse. The investor, Mr. Singh, was informed by someone in the building that his parking space was being used by Mr. Sharma. Mr. Singh contacted the builder, who then demanded that Mr. Sharma vacate the spot immediately and move to a cramped open parking area. This new spot was highly impractical, as parking by a neighbour would completely block Mr. Sharma’s car.

Mr. Sharma refused to move, insisting on a fair resolution. Now, both Apex Developers and Mr. Singh are threatening him with legal action to force him out of the currently occupied parking space. Mr. Sharma had paid for a covered parking spot as part of his flat purchase, a fact confirmed in WhatsApp conversations with the builder. However, during the property registration, the builder advised against explicitly mentioning “covered parking” in the sale deed, claiming it would incur an additional cost of ₹3 lakhs. As a first-time homebuyer, Mr. Sharma trusted the builder’s advice. He still possesses all the WhatsApp chats, including messages about the parking reassignment, as evidence.

After a year of futile arguments and requests, Mr. Sharma is concerned about the builder’s significant financial resources and local influence, fearing a prolonged and expensive legal battle. He is now weighing his options, unsure whether to concede to the builder’s demands or pursue legal recourse through RERA.

Advice in such cases

• Gather and Organize All Evidence: Systematically compile all documents and communications. This includes the sale agreement, payment receipts, and especially the WhatsApp chats where the covered parking was promised and later reassigned. Digital evidence is admissible in court.
• Do Not Vacate the Parking: Do not give up your possession of the parking spot under pressure or threats. Vacating the spot could weaken your legal position and imply acceptance of the builder’s new, unfair terms.
• Send a Legal Notice: Through a lawyer, send a formal legal notice to the builder. The notice should detail the entire sequence of events, the promise of covered parking, the deficiency in service, and the subsequent threats. Demand the formal and legal allotment of a suitable covered parking space as per the original agreement.
• File a Complaint with RERA: The Real Estate (Regulation and Development) Act, 2016, was enacted to protect homebuyers from such malpractices. You can file a complaint against the builder for making false promises and not adhering to the sanctioned plan.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

• The Real Estate (Regulation and Development) Act, 2016 (RERA): This is the primary law governing such disputes. Key provisions include Section 11 (Functions and duties of promoter), which obligates the builder to provide services as per the agreement, and Section 18 (Return of amount and compensation), which holds the builder liable for false or incorrect statements in the advertisement or prospectus. The builder’s failure to provide the promised amenities and deviation from the sanctioned plan are clear violations under RERA.
• Consumer Protection Act, 2019: The builder’s failure to provide the promised covered parking amounts to a “deficiency in service” and “unfair trade practice.” You can file a complaint in the appropriate Consumer Disputes Redressal Commission for compensation and relief.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If the builder’s actions involve intentional deception from the outset to induce you to buy the property, it may constitute cheating under Section 318 of the BNS.
• The Indian Contract Act, 1872: The promise made by the builder, even if on WhatsApp, can be considered a part of the agreement. The builder’s failure to honour this promise is a breach of contract, for which you can seek legal remedy.

If you are the complainant

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Document Everything: Your case will be built on the strength of your evidence. Preserve the WhatsApp chats by taking screenshots, backing them up, and also getting a certificate under Section 65B of the Indian Evidence Act if required for court proceedings.
• Choose the Right Forum: Your lawyer can advise on the best legal strategy, which could involve approaching RERA, the Consumer Court, or a Civil Court simultaneously or sequentially. RERA is often the most effective and speediest forum for such matters.
• Be Prepared for the Process: Legal proceedings can be time-consuming. Do not be disheartened by the builder’s threats or influence. The law provides strong protection for homebuyers against such fraudulent practices.

If you are the victim

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Stand Your Ground: Do not give in to pressure tactics. The law is on your side if you have evidence of the builder’s promises. The fact that the parking space is not mentioned in the sale deed does not invalidate the promise made through other means.
• Understand Your Rights: As a homebuyer, you have the right to receive all the amenities and facilities that were promised to you at the time of purchase. Any deviation from this is a legal violation by the builder.
• Focus on the Legal Path: Avoid getting into direct confrontations with the builder or the investor. Let all communication be handled through your lawyer to ensure your rights are protected.

How the police behave in such cases

This dispute is primarily civil in nature. The police will likely not intervene or file a First Information Report (FIR) for issues related to breach of contract or non-provision of amenities. They will typically advise the parties to approach a civil court or the appropriate authority like RERA. However, if the threats from the builder or investor escalate to criminal intimidation (threats to cause harm to you, your family, or your property), you can file a police complaint. The police may then take preventive action under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or register a case for criminal intimidation under the BNS.

FAQs people normally have

• Can a builder legally sell covered parking?
  
  As per Supreme Court judgments, builders cannot sell “common areas,” which includes stilt or open parking spaces. However, if a “garage” is constructed and sold as a separate unit with its own defined boundaries, it can be sold. In most cases, parking is considered a part of the common amenities to be provided with the flat.
• Are WhatsApp chats considered valid evidence in India?
  
  Yes, WhatsApp chats are considered electronic records and are admissible as evidence under the Indian Evidence Act, 1872. They can be crucial in proving the builder’s promises and your side of the story.
• What if the parking is not mentioned in my Sale Deed?
  
  While the Sale Deed is the primary document, other forms of agreement, including written promises on WhatsApp, can be used to establish a builder’s liability. This falls under the principle of promissory estoppel, where a party cannot go back on a promise that the other party acted upon. It is also strong evidence of a “deficiency in service” for a consumer complaint.

What evidence is required?

• The registered Sale Deed or Agreement for Sale for your flat.
• Complete and clear screenshots of all WhatsApp conversations with the builder regarding the parking promise and subsequent issues.
• Any payment receipts or bank statements showing the transaction for the flat.
• Photographs or videos of the originally allotted unusable parking spot and the current spot.
• The project brochure or any advertisement material where covered parking was mentioned.
• A copy of the RERA-approved sanctioned plan for the project, if obtainable, to show the discrepancy in the number of approved parking spots.

How long will the investigation take?

• RERA: The authority is mandated to resolve complaints within 60 days, but in practice, it can take anywhere from 3 to 9 months, depending on the complexity of the case and the authority’s workload.
• Consumer Court: The timeline can vary significantly based on the level of the commission (District, State, or National). It can take from 6 months to a couple of years.
• Civil Court: This is generally the longest route and can take several years to reach a final decision.

Advocate Sudhir Rao, Supreme Court of India