SHARDA CO-OPERATIVE HSG. SOCIETY vs ASHISH SHELTERS And DEVELOPERS PVT. LTD.

IN Complaint No. 390/1998, filed before the District Forum, Nasik, the complainant contended that M/s. Ashish Shelters and Developers floated a number of construction schemes at Nasik. One of the schemes was in Survey No. 251/1/1 for which an advertisement was given. As the complainant was in need of a house for his residenial purposes, he gave the purchase price from time-to-time. It was pointed out that for allotting the constructed houses, agreement was also executed on 1.1.1992, which was notorized and registered. It was pointed out that the complainant had paid, in all, a sum of Rs. 63,500 and as per the agreement the Builder was required to deliver possession within 18 months. The Builder neither constructed the house nor handed over the possession. INstead of delivering the possession of the house to the complainant, it was contended that the Builder gave possession of all the constructed houses to the members of Sharda Co-operative Housing Society. When the complainant came to know about it notice was given to the Builder as well as to the Society. Hence, complaint No. 390 of 1998 was filed before the District Forum, Nasik.

AFTER hearing the parties the District Forum allowed the complaint partly and directed the Builder to refund the amount of Rs. 63,500 with interest at the rate of 15% from 30.3.1995 till its payment and Rs. 10,000 as compensation. No order was passed against the Society to whom the Builder has handed over possession. Against that Order Appeal No. 195 of 2001 was filed by the complainant before the State Commission.

The developer, Ashish Shelters and Developers Pvt. Ltd., also preferred Appeal No. 382/2001 before the State Commission.

BOTH the Appeals were heard together and the State Commission appointed Mr. R.P. Patil, Junior Engineer, Town Planning Department, Nasik Municipal Corporation, as Court Commissioner, who reported that the plot in question i.e., Plot No. 41, was in possession of Sharda Co-operative Housing Society, Laxmi Nagar, Panchvati. At that stage, learned Counsel for the complainant stated that they were ready and willing to take possession of the said plot and on behalf of the Builder it was stated that they have no objection if the possession of the said plot is handed over to the complainant. At that time, nobody appeared on behalf of the Society and the order was passed accordingly. On that basis the order passed by the District Forum was modified and a direction was given to the Society to hand over possession of the plot to the complainant. The State Commission also reduced the compensation from 10,000 to Rs. 3,000. Against that order, Sharda Co-operative Housing Society filed a Review Application. It is to be stated that prior to that possession of the plot was delivered to the complainant on 24.2.2004. Registered Sale Deed was also executed on 31.1.2004 as per the direction given by the State Commission.

IN the Review Application, the State Commission observed that the order passed by the State Commission has achieved finally and nothing was required to be done at that stage. Hence, the Review Application was rejected by order dated 29.3.2005. Against that Order, the Society has preferred this Revision Petition. In our view, the impugned Order passed by the State Commission cannot be said to be in any way illegal or erroneous. It is established on record that the Builder has agreed to transfer the plot in question in favour of the complainant by executing a Deed on 1.1.1992. As per the agreement, the cost of construction was contemplated at Rs. 1,50,000. The complainant has paid Rs. 11,000 to the Builder against the development of the land. In the agreement, there is a specific clause to the effect that after completing the construction work the Builder shall register the Housing Society of members as per Section 10 of the Maharashtra Co-operative Housing Societies Act and that after registration of the Society, the Builder shall transfer the property in the name of the Society. There is a further communication dated 6.4.1998 written by the Managing Director of the Builder to Chief Promoter of the proposed Society that rights of reserved members and Government Terms and Conditions were not to be infringed. Further by letter dated 26.5.1998, the Chief Promoter was informed that the Society was required to give membership to those who have entered into an agreement with them before 2.12.1997. It was specifically mentioned that complainant should be given membership. In pursuance to that letter, the Chief Promoter informed that the agreement entered into by the Builder with anybody after 2.12.1997 will not be binding and that its entire responsibility rests on the Builder. It is also mentioned that prior to 2.12.1997, they sat together and decided the members of the Society. Considering the fact that an agreement was executed in favour of the complainant on 1.1.1992, it is clear that as per the agreement between the Builder and the Society the complainant would be the member of the said Society or the Society was required to deliver the possession of Plot No. 41 and that has been done by the State Commission and the Order passed by the State Commission is finally implemented. Subsequent notorized and registered agreement between the Builder and the Society would not defeat the rights of the complainant because in his favour the agreement was in existence since 1992 and was known to the Society before it entered into an agreement with the Builder.

HENCE, if there is any further dispute between the Society and the Builder it would be open to them to approach the Civil Court.

HENCE, there is no substance in this Revision Petition and it is dismissed accordingly. There shall be no order as to costs. Revision Petition dismissed.