Nikhil Builders vs Swami Kumar Banvalikar , Pushpa Kumar Bathe , Chandrashekhar M.Pandit , Asmita A. Kale , Kamlakar Y. Patankar

M /s. Nikhil Builders have challenged the award of the Maharashtra State Consumer Disputes Redressal Commission in Consumer Complaint No.47 of 1996 filed by the present respondents. The complaint before the State Commission is filed by 11 purchasers of flats together with their society namely, Nav Indraprastha Co -op. Housing Soc. Ltd., Mumbai. Sixteen reliefs were sought by the appellant. The State Commission has granted the following: - "1. O.P./Builder/developer is directed to obtain Occupation Certificate from local authority concerned. 2. From the date of respective occupation of the flats by the complainants, the complainant are liable to pay municipal taxes in respect of their own flats and for all other flats, the builder is responsible to pay municipal taxes. 3. O.P. /Builder is directed to pay Rs.24,000/ - to the complainants towards reimbursement of additional levy sewage tax, which was paid by the complainants. 4. O.P/Builder is directed to pay the cost incurred, if any, by the complainants for formation of society. 5. O.P/Builder is directed to pay proportionate maintenance charges of Rs.120/ - per month in respect of those flats, which were retained by the builder for his own purpose or for resale. 6. O.P./Builder is directed to execute Deed of conveyance in favour of complainants or in favour of complainants society i.e. complainant no.12 within a period of two months from the date of this order. 7. O.P./Builder is directed to remove the unauthorized construction and to hand over that space to the society already formed by the complainants. 8. O.P./Builder is directed to transfer individual meters in the name of respective complainants at his own expenses. 9. O.P./Builder is directed to pay Rs.2000/ - each to all the complainants including complainant no.12 newly added Co -operative Housing Society and to bear its own cost. 10. Builder is also directed to pay Rs.10,000/ - each to all the complainants except complainant no.12 for the mental harassment suffered by complainants for so many years. "

DURING the course of consideration of the appeal filed by the OP/Nikhil Builders against the above order, this Commission gave a notice of hearing to the respondents/Complainants on relief no.7 i.e. the direction to the builder to execute the conveyance deed in two months. As for the other reliefs granted by the State Commission, the appellant was directed on 6.3.2009 to complete the compliance within two weeks. Therefore, consideration of the appeal has got limited only to the question of non execution of the conveyance deed. The two sides were also directed to file their written synopses/arguments. The same has been filed on behalf of the respondents/Complainants. Written synopsis/arguments had already been filed on behalf of the appellant/OP. The case of the appellant has been argued by Shri S.K.Sharma, Advocate assisted by Shri Uday B. Wavikar, Advocate. On behalf of respondents/Complainants Mr. Sahil Bhalaik and Mr. Rajeev Sharma Advocates have been heard.

THE case of the complainants before the State Commission was that they had entered into individual agreements in 1984 with the OP/builder for purchase of flats. As per approved plan, the building was to have five floors, with four shops on the ground floor and in all 12 residential flats on the remaining four floors. The plan, as shown to them had the approval of the BMC. The Builder/OP had assured delivery within one year from the date of the agreement. But, they were actually put in possession of their flats in 1989. Allegedly, after 1991 the builder started extending portions of the building, contrary to the approved plan. The builder ultimately constructed six floors as ''B '' wing of the building, in addition to the existing block, ''A '' wing. Due to this, despite getting possession of their flats six years ago (at the time of the complaint) the complainants were not able to get conveyance deed from the builder.

THE reply of the appellant/OP before the State Commission was that the plan for ''A '' Wing of the building was approved by the BMC in 1986. It was for 500 square meters out of total land of 943.2 square meters. The remaining 443.2 square meters had been declared surplus under the Urban Land Ceiling Act. After the Competent Authority ULC exempted an area of 216.50 square meters, out of the total surplus of 443.20 square meters, the builder found it necessary to utilize the additional FSI by amending the earlier plan. Hence, the revise proposal was made for constructing the additional ''B '' wing of the building. As per OP/builders, the revised plan was submitted in 1988 without proposing any alteration or modifications in the flat in ''A '' wing. Allegedly, the modification of the plan was approved by BMC in 1989, permitting construction of the ''B '' wing. On the question of execution of conveyance deed, the submission of the OP/builders before the State Commission was that since the Cooperative Housing Society of the flat owners had already been formed, it was willing to execute the same in favour of the Society. However, the State Commission has observed that it was also pleaded on behalf of the OP that the amended plan for the sixth floor of the ''A '' wing had already been submitted to BMC for approval. In this context, the Commission has observed that - "Coming now to the important prayer about conveyance, we are finding that till today builder has not executed Deed of conveyance in favour of society. It is the bounden duty of the builder/developer even under Maharashtra Ownership Flats Act that he should execute conveyance deed in favour of society once society of flat purchasers is formed. It is the tendency of unscrupulous builders not to execute Deed of Conveyance in favour of society and not to form and get registered Co -operative society with the ill motive of exploiting TDR rights and additional FSI, if any available on the plot. For this purpose, most of the builders and developers are very shy of executing Deed of conveyance in favour of society and with this aim only, often they avoid to get registered Co -operative society of flat purchasers. As per Agreement executed between builder and flat purchasers in this case and also under Maharashtra Ownership Flats Act, builder and developer has to execute Deed of Conveyance in favour of society at the earliest. This has not been done till today and therefore, there is obvious deficiency in service on the part of the builder, statutory as well as contractual in not executing Deed of conveyance in favour of the society. So direction will have to be given in this regard to the opponent/builder to execute Deed of conveyance in favour of complainants or in favour of complainants society i.e. complainant no.12. "

AS per the records, the original plan, in so far as Wing ''A '' of flats concerning the Complainants is concerned, was approved way back in 1984. The flats were constructed and admittedly, the Complainants were put in possession of their respective flats in 1989. As per the written statement before the State Commission filed in March 1997, on behalf of the OP, construction of ''A '' wing was completed in 1988. In the same year, revised plan was submitted. Admittedly, it was approved by the BMC in 1989, permitting the OP to put up the ''B '' wing. Here, the WS clearly states that the revised plan did not propose any change, alteration or modification in the flats agreed to be sold to the purchasers of the first building. If this is to be believed, the OP could not have put up 5th and the 6 floors in Block -A, subsequent to sale of flats in the first four floors to the Complainants. This gap is sought to be covered in a very vague statement, at the end of para 4 of the WS. It reads: - "It is false to say that we have constructed two flats in ''A '' wing during the year 1993. A wing was completed in the year 1988 and no construction was undertaken after 1992 in ''A '' wing as alleged. "

Significantly, in the affidavit of Shri Sudhakar Amare, Architect of the appellant, filed before the State Commission on 11.11.2008, it is stated that: "I say that we have already obtained part occupation certificate for phase -I, A wing for 1st to part 4th floor on 7/12/1991 from the office of the building proposal department of Mumbai Municipal Corporation. "

FROM a joint reading of these two averments it becomes clear that in so far as flats of the complainants in ''A '' Wing are concerned, the occupation certificate for the first four floors was admittedly obtained in 1991 itself and addition of the 5th and the 6th floors in this Block was made by the Opposite party between 1988 and 1992. It is therefore, amply clear that, with or without addition of the 5th and 6th floors to ''A '' wing, there was nothing to prevent the OP from executing the conveyance deed for the flats of the Complainants on 1st to the 4th floors of the same building. Strangely enough, the WS filed before the State Commission, years later on 12th March 1997, offers no clear explanation for failure of the OP to do the same. Even in arguments advanced on behalf of the appellant/OP before this Commission, there is no attempt to explain the failure to act on the occupation certificate obtained from BMC in 1991. The case made out is that even now the BMC has not issued completion certificate for the modified project. It is argued that: - "The Appellant was under statutory inability to obtain the building completion certificates in view of the delay in taking over possession of the remaining portion of the land acquired by the Special Land Acquisition Officer for 60 ft. D.P. road. The procedure of taking over possession of the said land by the Special Land Acquisition Officer and BMC is not under the control of the Appellants and therefore, they cannot be blamed with the tag of deficiency in service. "

IN our view, this argument is nothing more than an attempt to enlarge the scope of the present proceedings. It goes well beyond the pleadings of the OP before the State Commission. It was not the case of the appellant/OP that any dispute existed in this regard. The WS filed before the State Commission had clearly stated that a portion of the land for this road had already been handed over to BMC and the BMC had already developed 44 ft. wide road thereon. We therefore, have no hesitation in rejecting this contention.

IN conclusion, it is held that the impugned order passed by the Maharashtra State Consumer Disputes Redressal Commission in CC No.47 of 1996 is based on correct appreciation of the evidence on record. No case is made out for interference with the same. The Appeal is therefore, dismissed. Further, considering the conduct of the appellant/OP and its consequence for the respondents/complainants, further cost of Rs.5000/ - (Rupees Five Thousand) is awarded in favour of each and every Complainant. This shall be in addition to the cost awarded by the State Commission and shall be paid within a period of three months from the date of this order.