JAGRUT NAGRIK vs C K Shah

THIS first appeal has been filed against the impugned order dated 30.06.2009, passed by the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Consumer Complaint No. 13/2002, "Jagrut Nagrik Grahak Mandal and Anr. vs. C.K. Shah and Ors.", vide which, the said complaint was partly allowed.

BRIEFLY stated, the facts of the case are that consumer complaint No. 13/2002 was filed by appellant No. 2, Bhagyodaya Tower No. 1 Association, alleging that OP No. 1/respondent No. 1, Bhagyodaya Commercial Complexes Private Limited and OP No. 2/respondent No. 2, Pashabhai Patel Co -op. Housing Society Limited had constructed a building known as Bhagyodaya Tower No. 1 and sold flats in the same to members of the complainant association. Each member of the Association had paid a sum of Rs. 5/ - as membership fee and Rs. 250/ - towards issue of share certificate to the OP No. 2 Society, through OP No. 1. However, the said share certificates had not been issued so far by OP No. 2, Co -op. Housing Society. The complaint has been filed on behalf of 72 persons who purchased flats from OP No.1. The building had been constructed on the land purchased by OP No. 2 Society from M/s. H. Desai and Company. The Vadodara Municipal Corporation has also been impleaded as OP No. 3 in the complaint. It appears that appellant No. 1, Jagrut Nagrik Grahak Mandal which is a volunteer consumer association was later impleaded as complainant, as they are reflected as such in the impugned order. It has been alleged in the consumer complaint that there was earthquake in the area on 26.01.2001, following which OP No. 3 Vadodara Municipal Corporation demanded structural stability certificate for the multi -storeyed building from a structural engineer. OP No. 3 also issued notices dated 05.05.2001, ordering the Association to make necessary arrangements for fire safety, but OP No. 1 had not made the necessary provisions in spite of promises given in the brochure at the time of purchase of the flats. OP No. 1 and 2 were, therefore, responsible for deficiency in service and other several deficiencies, including the consequences of the notice issued by OP No. 3 Municipal Corporation. OP No. 1 had collected Rs. 5/ - per sq. ft. from all 72 flat purchasers as common fund for providing common services such as security, paying common electric charges, but they failed to honour their commitments. They were also supposed to provide modern amenities like fire -fighting equipment on each floor, two lifts, good parking arrangements, common video programme facilities, generating set etc. but they had failed to provide such amenities. In response to the notices issued by OP No. 3, the complainant had incurred an expenditure of Rs. 95,000/ - and they may have to incur further expenditure of Rs. 3 lakh, although it was the responsibility of the OP No. 1 to take those steps. The OP No. 1 had also not provided the completion certificate, occupancy certificate and approved maps for the flats. The complainant association had also spent a sum of Rs.5,32,853/ - for creation of common facilities. It was prayed through the complaint that OP No. 1 should be directed to provide modern amenities, make security arrangements, instal fire -fighting safety system and provide building clearance certificate, occupancy certificate etc. It was also stated that OP No. 2 should also be asked to issue the share certificates for which the necessary amount had already been paid to OP No. 1. It was also stated that OP No. 1 should be asked to reimburse the expenditure made by the complainants for creation of common facilities.

THE complaint was resisted by OP No. 1 by filing reply before the State Commission in which they stated that all the members of the Association were handed over possession of the property in question in the year 1990. In case, the defects stated in the complaint are taken into account, demanding any relief against the same was beyond time limit and hence, the complaint was liable to be dismissed. Moreover, there was no direct contract between OP No. 1 and the complainants and hence, there was no direct liability on the part of the OP No. 1. OP No. 1 also stated that they were only sub -developers and all the documents, land records, approvals etc. were the responsibility of OP No. 2 Society. The State Commission, vide impugned order, partly allowed the complaint against OP No. 1 and 2 and dismissed the complaint against OP No. 3 Municipal Corporation. They directed the OP No. 2 to issue share certificates in the name of members of the Society for which OP No. 1 shall pay the amount of Rs. 5/ - to them, which had already been paid by the members of the Association to OP No. 1. OP No. 1 and 2 were also directed to pay a sum of Rs. 10,000/ - for mental agony and Rs. 2,000/ - as litigation cost to the complainants. It is against this order that the present appeal has been made. During hearing before this Commission, Shri P.V. Moorjani appeared as authorised representative of the appellants. The respondents no. 1 and 2/OP No. 1 and 2 also appeared through their respective counsel. It is made out from record, however, that an Advocate appeared on behalf of respondent No. 1 on 19.07.2011. On that date, a notice was issued to the respondent no. 2 again although a counsel had appeared on behalf of respondent no. 2 on previous dates. The respondent no. 2 refused to accept the notice sent in pursuance of the order dated 19.07.2011. On 22.11.2011, it was ordered that the matter be listed for arguments in due course after due notice to the parties. Later, when the matter was taken -up for hearing on 21.08.2013, the learned counsel for respondent no. 1 was present, but a request was received from learned counsel for appellant no. 2 for adjournment of the case. On the next date of hearing, i.e., 07.01.2014, the proxy counsel was present on behalf of appellant, but none was present on behalf of the respondents. A letter of request had been received from appellant No. 2 for adjournment for out of court settlement. On all subsequent dates, i.e., on 12.03.2014, 07.07.2014, 20.08.2014, 27.10.2014, 18.12.2014 and 25.02.2015, none appeared for either of the two parties. However, a letter of request was received on all these hearings from appellant No. 2, saying that the matter was likely to be settled with the respondents and hence adjournment may be given. These letters were received from appellant No.2 Mahendrabhai Shah, Legal Committee Member, Bhagyodaya Tower No. 1 Association, and are dated 04.01.2014, 11.03.2014, 26.06.2014, 13.08.2014, 26.08.2014, 15.12.2014 and 16.02.2015, seeking adjournment. The wording of all these letters is similar and it has been stated as under: - "The petitioner No. 2 herein Shri Mahendrabhai Shah respectfully states as under: - That the matter is likely to be settled with the Respondents and we are awaiting for the challans for payment to be made as "Impact Fees" from Vadodara Maha Seva Sadan for regularisation of flats for Bhagyodaya Tower 1. Therefore, kindly adjourn the matter to any other convenient date after 2 months, in the interest of justice. Sd/ - Shri Mahendrabhai Shah Legal Committee Member Bhagyodaya Tower -1 Association (Petitioner No. 2 herein)"

FROM the facts stated above, it is clear that the appellants have been seeking adjournments by sending same letter for each date of hearing and they have not put in appearance even once, during the past more than one year. None has put in appearance on behalf of the respondents as well during the said period. It appears, therefore, that the appellants are not interested to pursue the matter further.

ON merits also, it is made out from the material on record that the possession of the flats in question was delivered by the OPs in the year 1990. The present complaint has been moved in the year 2002 when notices were issued by the Vadodara Municipal Corporation, demanding structural Stability certificate, following the earthquake in January 2001. It is, however, very clear that if there was defects in the building, the complainants should have taken appropriate legal steps against the OPs immediately after the delivery of the possession. In any case, consumer complaints can be entertained only within 2 years of the occurrence of cause of action as per section 24(A) of the Consumer Protection Act, 1986. The State Commission have, therefore, rightly concluded that the complaint in the present forum is barred by limitation and the cause of action had continued only for the non -issuance of the share certificates. The State Commission, therefore, ordered that OP No. 2 should issue the necessary share certificates to the members of the society after receiving the necessary amount from OP No.1 who had already received the same from the complainants. The OP No. 1 and 2 were also directed to pay a sum of Rs. 10,000/ - for mental agony and ?2,000/ - for cost of litigation, jointly and severally.

AS regards the unauthorised construction in the building, the possession having been taken in the year 1990, the complaint received in the year 2002, was clearly barred by limitation. As regards the structural stability certificate, the same having been demanded by OP No. 3, in the wake of the 2001 earthquake and there being no evidence of any legal requirement of submitting such a certificate at the time possession was delivered to the members of the complainant, the view taken by the State Commission cannot be faulted with. As regards the fire -fighting equipment, there is no evidence that any agreed equipment was not provided in the building. There is no evidence of any statutory requirement, applicable at the relevant time, with respect to fire -fighting equipment having not been provided in the building.

IN any case, the claim for the expenses alleged to have been incurred on the deficiencies found in the building, is time barred since the said deficiencies ought to have been addressed soon after taking possession of the flats.

BASED on the overall facts and circumstances of the case, we do not find any reason for any interference at appellate stage in the order passed by the State Commission. The appeal is, therefore, ordered to be dismissed and the order of the State Commission upheld with no order as costs.