BHATU KASHIRAM WAGH vs ASHISH SHELTERS And DEVELOPERS (P) LTD.

WE are proceeding to dispose of all these appeals at the stage of their admission itself on consideration of the material made available before us and on hearing the learned Advocates of the parties.

IT is further to be stated that in view of diversion and variance between the parties with regard to the premises in question, we directed the District Forum, Nashik as per our order dated 10th January, 2002 to appoint an independent Commissioner to ascertain the position with regard to the possession in particular as also other aspects on the face of grievances made. The order we passed on that date which is reproduced below : "Mr. J.N. Pawar, Advocate for the builder, Mr. J.M. Baphna, Advocate and Mr. N.D. Jayawant, Advocate for the flat purchasers-original complainants. Parties are in variance with regard to the possession of the premises in question as also the existence of the structures in question and these facts were very much highlighted before the District Forum. In such situation District Forum should have the same issues asserted and resolved getting the same ascertained through an independent Commissioner. This was not done. We think it appropriate, in interest of justice that said fact be ascertained by the District Forum, Nashik by appointing an independent Commissioner. The Commissioner to be appointed by the District Forum shall inspect the premises and find out whether the structures of description in the respective complaints are in existence or not and submit his report. The Commissioner to be appointed by the District Forum shall do so after giving prior notices of the date of his visit for inspection to the concerned parties. The complainants shall approach the District Forum to seek further direction/order on the basis of order herein from the District Forum by moving appropriate application with notice to the builder and District Forum shall take steps as directed above expeditiously. IT is expected that the report shall be submitted within 8 weeks from receipt of the order herein. The complainant''s Advocates shall furnish the order herein to the District Forum. The complainant''s Advocate shall also furnish copies of the order herein as also copies of complaints to the Commissioner to facilitate identification of the premises in dispute. All the appeals stands adjourned to 1st April, 2002. Till then the status quo is directed to be maintained with regard to the impugned order."

IT is noticed that we have provided adequate guidelines, to be issued for the Commissioner. Accordingly, District Forum appointed one Mr. R.P. Patil, Sub-Engineer, Town Planning Department, Nashik, Mahanagarpalika, Nashik as Commissioner who has submitted his report being dated 16th March, 2002 which is before us. Copies thereof were also made available to the parties, will have brief advertence to the said report at later stage. Now to the factual matrix-The appeals herein have been filed by both the parties i.e., by the complainants as well as org. OPs. The org. complainants can be conveniently referred to as ''Flat Purchasers'' and OPs as ''Builders''. The flat purchasers had joined the scheme announced and undertaken by the builders in construction of houses in Nashik region and paid the various amounts for purchase of construction of houses by the builders for them. The respective flat purchasers have paid diverse amounts in that respect. It so transpired that the project did not proceed as expected and flat purchasers did not get possession and it is in these circumstances, they approached the District Forum against builders. As far as appeals herein are concerned A-388/01 to 395/01 have been filed by the flat purchasers and A-372/01 to 376/01 and 378/01, 379/01 and 381/01 mentioned in the cause title of the judgment have been filed by the builders. Therefore, these appeals are cross appeals.

District Forum has allowed the claims of the flat purchasers and passed separate awards in each of the complaints in favour of each of the flat purchasers. All awards have been passed on 3rd February, 2001. The District Forum has accepting the claim and case of the complainants-flat purchasers and same time rejecting the stand taken by the builders to the fact that he had carried out construction and handed over the possession, has ordered the builders to refund the respective amounts paid by the flat purchasers with interest at the rate of 18 per cent per annum with effect from date of institution of the complaints and Rs. 10,000/- compensation.

AGAINST the said findings, flat purchasers have approached in their respective appeals with a grievance that they should have been awarded interest on the amounts paid over from the dates of payments. The builders have questioned the legality and validity of the order saying that there was no grievance persisting as deficiency, the builders cannot be held liable and accountable as such. We have heard the learned Advocates at length as above. On careful consideration of the material and reading the impugned order as also what has been brought before us in the form of report of the Commissioner, we are by and large of the view that orders of the District Forum are reasonable and fair, needing no interference. As we stated earlier parties are at variance with regard to the possession, Builder took the stand before the District Forum having handed over the possession of the respective premises to the flat purchasers. This was not found acceptable to the District Forum. The grievance has been made in the appeals filed by the builders by referring to so-called possession letter/agreement purported to have been executed by the respective flat purchasers to show that the flat purchasers were put into possession. This position has strongly been disputed by the flat purchasers and, therefore, we appointed Commissioner. As far as report of the Commissioner is concerned, it clearly states in the above appeals herein, in eight matters, he found someone else in the respective flats than the concerned flat purchasers. Now something needs to be stated in the light of the submissions advanced by the builder''s through their Advocate. Mr. Pawar submitted that vide order dated 10th January, 2002, directions were given to the Commissioner as also the District Forum to give prior notices to the parties before the inspection and such notices were not issued to the builders.

CONSIDERING all the said contentions, we only reproduce relevant part from the report of the Commissioner which is as under : By reading the above, it would be clear that the directions given as above on 10th January, 2002 were duly followed and complied with and it is for the reasons best known to the builders that they choose not to remain present. We may add that the Commissioner appointed is a responsible employee of the Nashik Mahanagarpalika and, therefore, as such independent authority and there is no reason as to why he should make incorrect report as tried to be made out by the builders. Now, question about the possession of the flats and report of the Commissioner is the complete answer to the stand taken by and on behalf of the builders as above. It clearly emerges that possession of the flats were not given to the flat purchasers and that would constitute deficiency in services within the meaning of Section 2(1)(o) of Consumer Protection Act, 1986.

FOR all these reasons, we do not find any reason to interfere with the findings as rendered by the District FORum.

AS far as rate of interest is concerned as claimed by the flat purchasers-complainants for which District Forum has exercised its discretion and wisdom in awarding interest from particular date and we do not want to interfere therein. Appeals disposed of.