2. Permissible Reasons for Delay in
Project
It
is a normal practice in the contracts to allow the delays under the reasons
generalised as `Force Majeure’ (French word meaning `Superior Force’), which
meant to be arising out of the events beyond control of the performer, making
performance impossible, impracticable, illegal or inadvisable. These provisions
cover the reasons such as, natural disasters (floods, earthquakes, storms,
hurricanes etc.) which were used to be referred as `act of God’, as well as
man-made disasters such as war, civil commotion, fire damage etc. But mentioning
of `Force Majeure’ as the permissible reason can attract claims under many
other reasons, since meaning of terms impracticable, inadvisable & even
impossible can be interpreted in multiple ways. Hence it is required to be more
specific by meticulously listing the reasons instead of mentioning word `Force
Majeure’.
The
reasons permitted for granting reasonable extension of time under the MahaRERA,
are the reasons, where completion of building shall be delayed on account of
(i)war, civil
commotion or act of God; (ii)any notice, order, rule, notification of the
Government and/or other public or competent authority.
The
redevelopment projects where saleable area exceeds 500sqmt or 8 apartments the
RERA (Real Estate (Regulation & Development) Act, in Maharashtra it is
called `MahaRERA’) shall be applicable, except where the Society plans
self-redevelopment & not intending to sale area exceeding 500sqmt or 8 apartments
or where the building for rehabilitation component is separated from saleable
component. The
project where RERA is applicable, the redevelopment agreement has to mention
same reasons, although provisions should be made that the exercise of
rescheduling the construction schedule & asking to deposit the post-dated
cheques for extended period at the time of granting extension shall be
performed as described in previous blog on `extension of time’. In my opinion
the same reasons should also be provided in the projects where RERA is not
applicable.
MahaRERA at draft stage had included
some more reasons i.e. non-availability of steel, other building material,
water or electric supply, but subsequently deleted them in final notification.
I remember, I did object to this draft provision then, because I thought that
these reasons should be well defined, else such ambiguity shall be the source
of corruption. Firstly, the essential part of these reasons has aptly been
covered under MahaRERA mentioned reasons (i) & (ii). Also, the reason of
non-availability of material needs to be defined within certain framework to which
the sanctioning authority can refer. This framework should consist of the terms
such as geographical area specified for procurement of material, acceptable
proofs/ documents supporting the efforts made at appropriate time to procure
the material, minimum number of suppliers who should have been approached for
material procurement, any other terms allowed for acceptance of such claim by
the authority. Even after such meticulous definition there is every chance that
the false claim can be made about non-availability of material & passed by
a corrupt official interpreting suitably by finding some loophole. The tenderer
is always supposed to make quotations foreseeing the normal escalations, plan
the procurement sufficiently in advance with due process & considering the
risk factors involved. Hence, the escalation in amount, if any, due to the
failure of the tenderer for the reasons not covered under MahaRERA mentioned
reasons (i) & (ii) has to be borne by the tenderer.
Interpretation of acceptable reason
for delay, even within the mentioned terms can always be frowned with doubt,
since it can be a source of corruption. I shall suggest that the sanctioning
authority particularly for accepting the reason for delay be mentioned shall be
formed by creating a committee of three members i.e. PMC, Representative of
Society & Architect of building & sanction shall be based on a majority
decision.
No comments:
Post a Comment