YASH DEVELOPMENTS vs GAURAV DHROOV COOPERATIVE HOUSING SOCIETY LTD.

As many as thirty members of the complainant / respondent society entered into agreements with the petitioner for purchase of residential flats and paid the agreed consideration. Alleging several deficiencies on the part of the petitioner in rendering services to its members, including failure to convey the title of the property, the complainant society approached the concerned State Commission by way of a consumer complaint. The petitioner remained ex-parte before the State Commission which vide its order dated 03.5.2008, as modified vide order dated 01.8.2008 issued the following directions in respect of the each complainant / flat-buyer:

"1......

O.P. is directed to convey the property more particularly, described in second Schedule i.e. all that prices or parcels of land or ground situated at Poisar/Kandivali (Taji Malad) Taluka Borivali, Mumbai Suburban District bearing S. No. 120, Hissa No. 4, corresponding to CTS No. 25/3, admeasuring 135999.30 sq. yds. i.e. equivalent to 11374.9 sq. mts.

O.P. is directed to refund Rs.5,76,000/- for the refund of tanker water.

O.P. is directed to pay Rs.25,000/- for refund of expenses to each complainant.

O.P. is directed to pay Rs.5700/- towards society formation charges to each complainant".

An appeal preferred by the petitioner against the above referred orders of the State Commission came to be dismissed by this Commission vide its order dated 18.3.2009. While dismissing the appeal, with costs assessed at Rs.10,000/-, this Commission observed as under: "..... It is also pointed out before us that there is some practical / technical difficulty in complying with State Commission''s direction No.2 in regard to execution of the conveyance deeds as the municipal authorities of Greater Mumbai have yet to regularize the entire construction and issue the occupancy certificate. In our view, this issue can be raised by the appellant as and when execution of the said relief is sought by the respondent".

The petitioner preferred a Special Leave Petition before the Hon''ble Supreme Court against the order passed by this Commission on 18.3.2009. The said Special Leave Petition was permitted to be withdrawn vide order dated 09.11.2009 which reads as under: "Learned counsel for the petitioner seeks permission to withdraw the petition. Permission is granted. The Special Leave Petition is dismissed as withdrawn with a liberty to raise the issue regarding conveyance deed before the appropriate authority".

Thus, the only difficulty expressed by the petitioner in execution of the conveyance deed was that the Municipal Authorities were yet to regularize the entire construction and issue occupancy certificate. The petitioner was permitted to raise that issue during the execution proceedings.

When Execution Application No. EA/11/5A filed by the society came up for hearing before the State Commission on 20.9.2016, the State Commission again made it clear that the question of occupancy certificate and grant of permission by Municipal Corporation could be raised by the petitioner before it but the conveyance deed has to be executed in terms of the orders passed by it and the said deed cannot contain any term contrary to the directions contained in its earlier order. The State Commission made it clear that while executing the deed, the petitioner cannot retain the FSI or TDR in respect of the property subject matter of the conveyance. The State Commission also noted the written assurance given by a partner of the petitioner firms, expressing his readiness and willingness to convey the property as per the final order within 15-20 days. The petitioner was directed to execute the conveyance deed. Being aggrieved from the aforesaid order, the petitioner is before this Commission by way of this revision petition.

It is evident from a bare perusal of the impugned order that while executing the conveyance deed the petitioner wanted to retain the FSI / TDR in respect of the property to be conveyed to the complainant. I am in agreement with the State Commission that the said rights cannot be retained by the petitioner while executing the conveyance deed. Retention of the FSI / TDR by the petitioner would be contrary to the decision of the State Commission in the consumer complaint, which was upheld firstly by this Commission and thereafter by the Hon''ble Supreme Court. The petitioner has to transfer all the rights including the FSI and TDR in respect of the subject property to the buyers.

Though, the petitioner was permitted to raise the issue of the failure of the Municipal Authorities to regularize the construction and issue the occupancy certificate, this was not the case of the petitioner before the State Commission that the execution of the conveyance deed was not possible, without regularization of the construction and the issuance of the occupancy certificate by the Municipal Authorities. The only plea which the petitioner advanced by the petitioner before the State Commission was with respect to the FSI / TDR in respect of the subject property and the said right, in my view cannot be retained by the petitioner while executing the conveyance deed.

The revision petition is therefore dismissed being devoid of any merit. It is however, made clear that in view of the liberty already granted to the petitioner, the difficulty, if any, in executing the conveyance deed on account of the failure of the Municipal Authorities to regularize the construction and issue of occupancy certificate can still be raised before the State Commission and if such a difficulty is raised, the State Commission would pass an appropriate order in that regard after hearing the parties.