ROHAN BUILDERS & DEVELOPERS PVT. LTD. & 3 ORS. Vs ROHAN GARDEN COOPERATIVE HOUSING SOCIETY LTD

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 06.08.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ''the State Commission'') in First Appeal no. FA/13/161, "Rohan Builders & Developers Pvt. Ltd. and ors. Vs. Rohan Garden Cooperative Housing Society Ltd.", vide which while dismissing the said appeal, the order passed by the District Forum, Pune, allowing the consumer complaint no. PDF/103/2009, filed by the complainant/respondent was upheld.

Briefly stated, the facts of the case are that the complainant/respondent is a cooperative housing society, registered under the Maharashtra Cooperative Societies Act, 1960. The Society has 132 members who are purchasers of residential flats/premises, situated in the buildings B,C,D,E,F & G, developed and constructed by the petitioner builders, who are a registered partnership firm (subsequently made into a private limited company). The said residential flats were constructed on land bearing survey No. 54/2/1 and 54/2/2 at Kothrud, Pune, situated within the limits of Pune Municipal Corporation. The property in question originally belonged to one Mr. Pandurang Ganpati Borate and others, the total area bearing 6900 sq. mtr. Under the Urban Land (Ceiling and Regulation) Act, 1976, the competent authority declared 3900 sq. mtr. as excess land, leaving three units of 1000 sq. mtr. each, as retainable or exempted land. The retainable land, bearing survey No. 54/2/2 measuring about 3000 sq. mt. was sold to the Directors of the builder company. In respect of the excess landed area 3900 sq. mtr. of survey No. 54/2/1, a scheme was made by the owner and permission obtained from the Government on 10.06.96, after which they entered into agreement with the petitioner developer, for carrying out the development of the said property. The builder obtained sanction for the building plans from the Pune Municipal Corporation for the construction of buildings A,B,C,D & E on the excess land, i.e., survey No. 54/2/1 and for constructing buildings F,G & H on retainable land with survey No. 54/2/2. It has been stated in the complaint that the builder completed the construction of buildings B,C,D,E,F&G using total FSI (flat space index) of the said landed properties, but did not complete the construction of buildings A&H, as per the sanctioned plan. The construction of building A was sanctioned upto stilt floor and the ground coverage area was about 247.463 sq. mtr. The construction of building ''H'' was sanctioned upto stilt floor (proposed to be constructed as covered parking) and the ground coverage area was 324.860 sq. mtr., but the said construction had not been completed by the builder. It has been alleged in the complaint that the OP developer submitted revised plans for construction of buildings A & H and tried to construct a boundary wall, dividing the property. The complainants filed the consumer complaint in question with a prayer to finalise the sale-deed of the entire property including constructed buildings B to G, and under construction buildings A & H, alongwith remaining FSI in their favour. A prayer was also made for direction to the Builder to complete the construction of A & H buildings as per the approved plan of the municipal corporation and also to pay compensation for the delay in executing the conveyance deed.

The complaint was resisted by the OPs by filing written statement before the District Forum saying that they had obtained sanction to the building lay-out for survey no. 54/2/1 from the Municipal Corporation Pune vide commencement survey No. DPO/945/NEW/D-722 dated 20/5/98 showing 5 different buildings A, B, C, D & E and further obtained sanction for building plans for buildings B, C, D & E by using major portion of the FSI at survey No. 54/2/1. The balance FSI as well as TDR which will be permitted , has to be used to construct building A. They further obtained sanction for building layout for survey No. 54/2/2 for buildings F, G & H and obtained sanctions to the building plans for buildings F & G using major portion of FSI of survey No. 54/2/2. The balance FSI as well as TDR, which will be permitted shall be used for construction of building H. The OP submitted that it was the right of the promoter to use the balance FSI and permissible TDR for construction of buildings as provided under "The Maharashtra Housing (Regulation and Development) Act, 2012 and the Maharashtra Ownership of Flats Act, 1963". The consent of the complainant was not required under law for construction of buildings A & H by using balance FSI & TDR. The OP stated that they had executed registered agreements with the buyers of tenements in buildings B, C, D, E, F & G on ownership basis and handed over the vacant, physical possession to them. The OPs also stated that they had prepared drafts of the conveyance deed which was approved in the General Body meeting of the complainant society. The said deeds were also executed on 21.08.2002 and the petitioners were ready to have them registered. The conveyance deeds were for area measuring 2856 sq. mtr. alongwith building standing thereon, being buildings B, C, D & E out of survey No. 54/2/1 measuring 3900 sq. mtr. and further area measuring 1816.73 sq. mtr. alongwith buildings F & G in survey No. 54/2/2 measuring 3000 sq. mtr. The OPs had a right to make construction in the remaining portion of the land and construct buildings A & H by using balance FSI and permissible TDR. The conveyance deeds were presented for registration in the office of Sub-Registrar by the Chairman and members of the society but they could not be registered because the proof of payment of stamp duty was not furnished. The OPs demanded that the complaint should be dismissed with costs.

The District Forum after taking into account the evidence of the parties partly allowed the complaint vide order dated 31.05.2013 and directed the OPs to complete the construction of buildings A & H as per the plans sanctioned within four weeks from the date of the order and thereafter, to execute the conveyance deed of entire property including the buildings A & H, alongwith remaining FSI in favour of the complainant society within a period of 3 months. The OPs were also directed to pay a sum of 25,000/- as compensation and 3,000/- as cost of litigation to the complainant society. Being aggrieved against this order, the petitioner/OP challenged the same by way of first appeal before the State Commission. The State Commission dismissed the appeal as per the impugned order. Being aggrieved against the said order, the petitioners/OPs are before us by way of the present revision petition.

At the time of hearing before us, the learned counsel for the petitioners reiterated the arguments taken in the written submissions filed before the District Forum saying that they had already got the conveyance deed executed. The tenements in question had already been constructed and handed over to the members of the complainant society. The learned counsel mentioned that they had a right to construct the buildings A & H by using the balance FSI and permissible TDR after getting the building plans approved from the Pune Municipal Corporation and the complainants had no right to interfere with the same.

The learned counsel for the respondent has filed written submissions on record. He stated in his oral arguments as well as written submissions that in buildings A & H, parking space was to be provided as per the plans already sanctioned. In fact, the entire FSI for the land in question had already been consumed. The complainants/respondents had sought information from the Municipal Authorities under the Right to Information Act, according to which the petitioners had not obtained sanction for any new building plan. The learned counsel also stated that there was no evidence to show that another area was made available by the OPs for DP road. The buildings A & H form part of the entire project and it was not possible to raise any further construction on the plot of land in question as buildings A & H are stilt areas. The orders passed by the consumer fora below were, therefore, in accordance with law and should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The basic issue that needs our consideration is whether the OP builders have a right to raise construction on buildings A & H and for that purpose, whether they have any balance FSI and permissible TDR available and whether they have got the building plans sanctioned from the competent municipal authority. The State Commission and the District Forum have given a categorical finding that as per the plans already sanctioned, the buildings A & H were only to be stilt with ground coverage of 247.63 sq. mtr. and 324.860 sq. mtr. respectively and were to be used only for parking. The State Commission and District Forum have also stated that there was no balance of FAR left, according to the plans already got approved by the petitioners. The complainant/respondents also obtained information under the Right to Information Act from the municipal authorities, showing that the petitioners had not obtained any plans sanctioned by adding TDR. There was therefore no question of carrying out any construction on buildings A & H, except for stilt parking.

The version given by the petitioners in the revision petition filed by them shows that according to them, the balance FSI measuring 10 sq. mtr. and permissible TDR admeasuring 1923 sq. mtr. remain to be sanctioned in property survey no. 54/2/1 and FSI measuring 30 sq. mtr. and permissible TDR admeasuring 1384.2 sq. mtr. remain to be sanctioned in plot No. 54/2/2. However, the petitioners have not provided any proof whether they have obtained sanction from the Pune Municipal Corporation for the said construction. The builders have used the words "yet to be received" and "remain to be sanctioned" at a number of places in the body of the revision petition. In the absence of any concrete proof or assertion to the contrary, we have no reason to disagree with the conclusion arrived at by the consumer Fora below that the petitioners are required to complete the construction of buildings A & H as per the plans sanctioned already and also to execute the conveyance deed in favour of the complainants.

The learned counsel for the petitioners has drawn our attention to an order passed in "Zircon Venture Co-operative Housing Society Ltd., Lohagaon, Pune Vs. Zircon Ventures, Pune and others" W.P. No. 3483 of 2014 decided on 08.05.2014 by the Bombay High Court as reported [(2014) Mh. L.J. 481], saying that the facts of the case in question were similar to the facts of the present case. A perusal of the said judgment reveals that as per the sanctioned lay-out, 12 buildings were proposed, out of which the construction on 9 buildings had been completed. When the builder intended to start construction of 10 th building, it was resisted by the Society by obstructing the entry of the vehicles of the builder. It was held by the Hon''ble Court that it was not necessary for the builder to take prior consent of the flat purchasers for the construction of the 10 th building. A perusal of the decision would show that in the case referred by the learned counsel, the building in question was a part of the sanctioned layout plan dated 31.01.2005, which was duly disclosed to the flat buyers. The developer had made it clear to the flat buyers from the very beginning that he intended to construct building no. 4 i.e. Aurum Building there. It was also disclosed to them that the developer was developing the property in a phased manner. It was after obtaining TDR, that building no. 4 which had always been a part of the scheme of development was sought to be constructed. Since the entire project including plan to construct building in question had already been disclosed to the flat buyers and their consent had already been taken to such development, no merit in the case of the flat buyers was found. The factual position in the case before us however is different. There is no material before us to show that the petitioner had disclosed to the flat buyers that it would construct stilt parking on the land underneath buildings A&H and the said stilt parking will be sold or allotted by the petitioner to the buyers of the flats which it would construct in a later phase, whenever TDI becomes available to it. Therefore, reliance on the aforesaid decision is wholly misplaced.

The land underneath building A&H became available for construction of stilt parking only because the height of buildings B to G was raised thereby constructing, in 6 buildings, the same number of flats which were initially planned to be constructed in 8 buildings. The petitioner, therefore, has no legal right in the said land or the stilt parking constructed thereon.

In the approved layout plan, there was no indication that the stilt parking in building A&H will not be meant for the flat owners of buildings B to G. There was no indication in the said plan that the builder would construct more flats in buildings A&H, above the stilt parking and sell or allot the said stilt parking to the purchasers of those flats. The inevitable and logical inference therefore would be that the stilt parkings in buildings A&H, were meant for the flat owners of buildings B to G and not only they but the Municipal Corporation had understood and approved the plans accordingly.

As held by the Hon''ble Supreme Court in (2010) 9 SC-536, the stilt parking are part of common areas and facilities of the apartments and the builder has no legal right to sell them. Therefore, the petitioner cannot sell the said stilt parking to any one nor can it raise any construction on it. Of course, it can charge the cost of construction of the stilt parking in building A &H from the flat owners of buildings B to G, in proportion to the carpet area of the flats, unless already charged from them.

As per the discussion above, we hold that there is no illegality, infirmity, irregularity or jurisdictional error in the orders passed by the fora below and there is no valid ground to interfere with the said orders in the exercise of revisional jurisdiction. The revision petition is, therefore, ordered to be dismissed and the orders passed by the Fora below are upheld.