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Judgment
APPELLANT /Opposite Party No.1 being aggrieved by order dated 18.06.2014, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ''State Commission'') in Consumer Complaint No. CC/00/219 has filed this appeal.
INITIALLY , Respondent had impleaded M/s. R.W. Gudal and Associates before the State Commission as (Opposite Party No.2) and Executive Engineer of Municipal Corporation of Greater Bombay as (Opposite Party No.3). However, complaint was proceeded against only Appellant No.1, since (Opposite Parties No.2 and 3) were deleted by order dated 18.07.2002 of the State Commission.
BRIEF facts are that Complainant/Respondent is Co -Operative Housing Society. It filed consumer complaint against the appellant alleging various lapses on its part. The failure has been attributed to the appellant for not obtaining occupation certificate and execution of deed of conveyance, not forming co -operative society though required amount was collected from the individual members of the Complainant''s Society. Failure of appellant -builder to obtain occupation certificate resulted into hardship to pay extra water charges and sewerage charges. Since, water supply is made by the authorities on humanitarian ground in the absence of occupation certificate, charges twice the normal water rate are being paid together with forfeitable charges of Rs.2,500/ - paid every six months to continue supply of water. In spite of having put in concerted efforts and constant correspondence, appellant did not pay any heed to the requests of the respondent. It is also alleged, that statutory obligations u/s. 4 of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act,1963 (for short, "MOFA") have not been discharged by the appellant. Even the legal notice dated 23.02.1998 to the appellant and its directors, did not meet any response. Thus, respondent society has claimed; i) Refund of Rs.70,000/ - collected from the members for formation of Co -operative Housing Society,
ii) Rs.1,98,180/ -being refund of tanker water charges,
iii) Rs.1,16,346/ - on account of extra water charges paid to the BMC,
iv) Rs.35,375/ - paid towards forfeitable water charges to the BMC and
v) Rs.1,28,046/ - paid towards extra sewerage charges to the BMC as these payments were made to the authorities.
APPELLANT in its written statement took the plea that issues raised by Respondent involves question of law and fact, which needs detailed adjudication and to be proved by producing documentary evidence on record. One Major Vishwanath R. Mishra was the original owner of the piece and parcel of the land on which building of the society has been constructed, He has failed to pass on the title of the land. Therefore, appellant filed a suit before the Bombay High Court, which is pending for decision. Except this point, all other averments made in the written version are simple denial.
THE State Commission, vide impugned order partly allowed the complaint and passed the following directions; (2) Opponent no.1 is directed to obtain occupation certificate and execute deed of conveyance in favour of the complainant society within a period of four months from the date of this order, failing which opponent no.1 is directed to pay Rs.1,000/ - per day to the complainant society till compliance of this order.
(3) (3) Opponent no.1 is directed to refund an amount of Rs.5,47,947/ - (as detailed below) to the complainant society along with interest @ 9% p.a. from the date of complaint i.e.16.05.2000 within 60 days from the date of this order. On failure, rate of interest will be payable @ 12% p.a. till realization.
i. Refund of Rs.70,000/ - towards charges for formation of society.
ii. Refund of Rs.1,98,180/ -towards tanker water charges.
iii. Refund of Rs.1,16,346/ - towards extra water charges.
iv. Refund of Rs.35,375/ - towards forfeitable water deposit.
v. Refund of Rs.1,28,046/ - towards extra sewerage taxes.
(4) Opponent no.1 shall bear their own costs and pay Rs.50,000/ - as cost of litigation to the complainant society.
(5) Non -compliance of this order in given time will invite action u/s.27 of the Consumer Protection Act, 1986 against the opponent builder/developer. Complainant is at liberty to bring to the notice of this Commission non -compliance, if any".
IT has been submitted by learned counsel that Occupation Certificate/Completion certificate could not be obtained on account of circumstances beyond the control of the appellant namely; i). That a shed has been erected in the open space;
ii) That the Flat purchasers after taking the possession of the flat, have in their respective flats, carried out unauthorized work of the additions, alterations and most of the flat purchasers have permanently enclosed the balcony of the flat.
iii) The BMC declined to give the completion certificate till and until the aforesaid defects were cured.
iv) The flat purchasers were called up and to disclose as to in which flats the balcony is annexed and under what circumstances the shed referred to in the open space was erected.
v) The flat purchaser did not co -operate and became very cantankerous and refused to co -operate with the appellant, as a result whereof it was impossible for appellant, to obtain the Occupation Certificate/Completion Certificate from the BMC.
FURTHER , it is submitted that appellant has diligently adopted due and legal process of law, in order to comply with the provisions of the Maharashtra Ownership Flats Act, as far as back as 1990, much prior to the incorporation of the Complainant.
THE State Commission in its impugned order observed; "(6) Members of the complainant society who have individually purchased the flats by executing separate registered agreements with the opponent builder, copies of which are available on the record. Opponents builder was under obligation to form/ constitute the co -operative housing society of flat purchasers under the provisions of Sec.10 of the MOFA with the prescribed minimum number of members. However, though amount of Rs.70,000/ - was collected from member, opponent builder did not take steps since 1983 as rightly pleaded by the learned advocate of the complainant. Therefore, the members of the complainant society were compelled to form their own co -operative housing society on 04.04.1998. There is no justification whatsoever available for these latches on the part of the opponent builder. No convincing argument has come forward for such an unexplained and abnormal delay in initiating the action by opponent builder. Opponent builder have collected society formation charges from the individual members totaling to Rs.70,000/ -. This amount paid for formation of society by the complainant society is supported by the receipts. There is no denial by the opponent builder.
(7) Suit pending before the Hon''ble High Court bearing no.3943/90 is between the opponent builder and one Shri Iqbal Ibrahim Patel and ors. The grievance made in the suit is in respect of non -transfer of the title of the land by the original landlord, namely, Major Vishwanath R.Mishra. It is stated that the deed of conveyance dated 20.03.1980 was made between Major Vishwanath R.Mishra with confirming party as Mr.Iqbal Patil and anr. However, said deed of conveyance was not registered and, therefore, title of the land did not flow from the original landlord to the opponent builder. In view of this difficulty, opponent builder, as submitted are unable to execute deed of conveyance in favour of complainant society. The suit was filed somewhere in the year 1990.
There is nothing on record as to show present status. It is interesting to note that the agreements with the members of the complainant society have been executed in the year 1983 by opponent builder. Respondents in the suit pending before the High Court are not parties to this agreement. While executing the individual agreements, it was bounden duty of the opponent builder to ensure that there was no defective title of the land in their favour. During all these years (more than two decades) it was for opponents to take necessary steps to sort out entitlement of land problem and execute the conveyance deed which is statutory obligation u/s. 11 of the MOFA r/w. regulations thereof. No other ground put forth by the opponent builder for his failure. Non -execution of conveyance deed in favour of complainant society amounts to breach of the provisions of Sec.11 of the MOFA. 1963.
(8) Construction of the building has been completed somewhere in the year 1983. Individual agreements executed between the opponent builder and individual members of the society. Warrants with legal position are transferred by obtaining occupation certificate to the individual members of the complainant society and deed of conveyance ought to have been executed. Learned advocate of the opponent builder did not make any convincing arguments about the unexplained delay of more than two decades in obtaining occupation certificate. Record does not demonstrate as to what steps have been taken by the opponent to obtain occupation certificate. However, it was argued that un -authorised changes have been carried out by the occupants and therefore occupation certificate was not issued. This contention is not substantiated by any documentary evidence whatsoever. During the course of arguments, complainant society pointed out that closing of balconies by some of the members was carried out with the permission of authorities and there is no hitch whatsoever to obtain occupation certificate all these years. Failure to do so has not been convincingly expressed by the opponents except in the mode of denial and passing back to the complainant society.
(9). For want of occupation certificate, admittedly municipal authorities supplied water connection on humanitarian ground at the rates payable twice the normal charges. This situation could have been averted by the opponent builder by obtaining occupation certificate in time when building was ready. Occupants were forced to avail water supply on humanitarian ground by paying additional charges. Society has estimated extra water charges to Rs.1,16,346/ - supported by receipts of payment made to the authorities. Builder/developers have also failed to provide water connection though on humanitarian ground in absence of occupation certificate when the flat owners occupied possession and therefore, individual members were compelled to procure water by tanker on payment of certain charges prior to water supply connection. This expenditure is estimated to Rs.1,98,180/ - duly supported by receipts of payments made to the water suppliers through the bank account of individual members prior to formation of society. Similarly, additional Rs.1,28,046/ - paid on account of sewerage charges for want of occupation certificate has been claimed by the complainant on the basis of supporting receipts available on the record.
(10) It was argued on behalf of the complainant that during last two decades, opponent builder has miserably failed to lend ear to the various complaints continuously made on account of grievances listed in the consumer complaint. Opponents have not come out with convincing arguments as to how the redressal of the complaints of the complainants and their member remained unattended.
(11) In view of aforesaid observations, we are of the opinion that the opponent builder has miserably failed to discharge the statutory obligations for obtaining occupation certificate and executing conveyance deed to transfer interest, title and rights of property which per -se is deficiency in service and no additional documentary evidence to prove the same is required. For want of occupation certificate, complainants have been compelled to obtain water on humanitarian ground and had to pay extra water and sewerage taxes. Even opponent builder failed to provide water connection after having put into possession and faulted to form co -operative society. Complainant society has, therefore, made out case of deficiency in service against the opponent builder as the opponent builder failed to discharge statutory obligations. Therefore, the complainant society is entitled to the reliefs claimed in the consumer complaint".
AS per application for additional documents filed before this Commission, the appellant now wants to place on record copy of letter dated 29.9.1987 issued by the Municipal Corporation of Greater Bombay to the Appellant''s Architect and the same read as under; "Sir,
The site under reference was inspected by Chief Engineer (Development Plan) on 17.09.1987 when Secretary, Nadia Apartment along with some member were present.
By direction of Chief Engineer(Development Plan), I have to inform you to carryout following works, on compliance of which the occupation permission to building under reference can be considered.
The raise the ground level of the plot on North and South side of building by 1''3" filling with sic thick 1:2:4 C.C. surface for the maneuvering of the cars in stilt portion.
To provide adequate size of S.W. Drain along compound wall to avoid flooding in the compound.
To raise the drainage chambers accordingly.
Your''s faithfully
Executive Engineer
Building Proposals (Western Suburb)
H and K/West"
THERE is nothing on record to show that Appellant''s Architect complied with the directions as mentioned in the above letter, till date.
BE that as it may, thereafter Municipal Corporation of Greater Mumbai wrote another letter dated 21.9.2000 to the Respondent''s Society and copy of the same was also endorsed to the Appellant''s Architect. This letter states; "1. That as per the recent Govt. direction stating that the D.P. Road/ reservations F.S.I./T.D.R. can be granted to the extent of 80%. Hence, you are requested to purchase the admissible slum T.D.R. so that the work carried out beyond approval plant can be regularised by charging necessary penalty.
That submit final completion plans with plinth dimension available on site by consider the plot area as 848.10Sq. Mts.
That the structure in R.G. plot shall be demolished.
That height of stilt shall be made 8'',6" by providing the ramp in the stilted portion.
That upto date revalidations fees shall be paid.
On compliance of above, your proposal can be proceed further on its merits for the grant of occupation.
Yours faithfully,
CE/7053/BSII AH
21 SEP 2000 Sd/ -
Executive Engineer,
Bldg. Prop.(W.S.) H. and K/East
Copy to : Architect
M/s R.W. Gudal and Associates,
Esplainde High School Bldg,
160, Dr. D. N. Road, Fort,
Mumbai -400001.
For information and necessary action please,
21/9/2000
E.E. (B.P.) W.S. H.& K/E"
THERE is nothing on record to show, that appellant till date has complied with the aforesaid directions of the Municipal Corporation, Greater Mumbai, which were issued as early as in the year 1987 and in the year 2000. Further, it is an admitted fact, that appellant has not obtained the occupation/completion certificate till date.
THUS , deficiency on the part of the appellant is writ large in the present case.
THE State Commission had categorically observed in its impugned order that; "the appellant has miserably failed to discharge the statutory obligation for obtaining occupation certificate and executing conveyance deed which per se is deficiency in service''.
UNDER these circumstances, I do not find any reason to disagree with the findings of the State Commission. Thus, there is no infirmity or illegality in the impugned order. The present appeal being without any legal merit, is not maintainable at all and the same is hereby dismissed with cost of Rs.10,000/ -(Rupees Ten Thousand only)
APPELLANT is directed to deposit the cost by way of demand draft, in the name of "Consumer Legal Aid Account" of this Commission, within four weeks from today.
IN case, appellant fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a., till realization.
LIST for compliance on 13th February, 2015.