Per Mr.S.R. Khanzode – Hon’ble Presiding Judicial Member:
1. This appeal takes an exception to an order dated 13.07.2012 passed in Consumer Complaint No.617/2010, Consumer Welfare Association and Ors. V/s. M/s.Falsa Construction through its Proprietor Mr.Prakash T. Tanna, by the District Consumer Disputes Redressal Forum, Mumbai Suburban District.
2. It is a consumer complaint against the builder by one of the flat purchasers. It is the case of the Respondents/Complainants ‘Vithal Vishram Dhoke and Vanjali Vithal Dhoke’ that they agreed to purchase a flat bearing no.303, situated on the third floor admeasuring 345 sq.ft. for a total consideration of `6,52,940/- as per registered agreement dated 26.08.2005. It is further contended on behalf of the Complainants that they have paid `1,01,100/- towards the part consideration. The possession was agreed to be given on 31.12.2008. But, since the builder failed to stand by his promise, the Consumer complaint was filed. The Forum upholding the case of the Complainants directed the builder to complete the construction within six months and handover the possession of the agreed flat to the Complainants or alternatively to make available to the Complainants similar area flat in the said locality. In addition to it, the builder was directed to pay compensation for delayed possession at the rate of `7,000/- per month. Complainants were directed to pay (at the time of taking the possession of the flat) the balance of consideration `10,000/- were awarded as costs. Feeling aggrieved thereby the builder preferred this appeal.
3. Heard both sides at length. The agreement dated 29th August, 2005, whereby the flat purchasers/Complainants ‘Vithal Vishram Dhoke and Vanjali Vithal Dhoke’ agreed to purchase the flat, supra, from the builder is not in dispute. Copy of the said agreement is also placed on record. The only point that put forward by the builder is that while sanctioning the plan he had handed over a portion of the property which was acquired for D.P. Road to the Brihanmumbai Municipal Corporation (B.M.C.) and in lieu thereof he got additional T.D.R. It is submitted that there were some hutments which the B.M.C. failed to remove and construct D.P. Road. As a result of which if he constructs ‘A’ Wing in which the flat of the Complainants is situated, it would encroach upon the service road known as ‘Shramdan Road’ which is an approach road for the other wings from the Madhuban complex and therefore, the construction of ‘A’ Wing could not be completed. It is further submitted on behalf of the builder that therefore, holding him guilty for deficiency in service and giving direction as per the impugned order was per se erroneous and appeal should be allowed.
4. Much stress is placed on behalf of the Appellant builder on the Doctrine of Impossibilities embedded in section 56 of the Indian Contract Act and with reference to the fact that in case he proceeds with the construction of ‘A’ Wing, it would obstruct and close the approach road to other Wings. We are afraid, this submission, on the basis of material placed on record, cannot be accepted.
5. Referring to the agreement itself which in detail referred to the land acquired for the road and handing over possession to B.M.C. by the builder, admittedly, before obtaining sanction to a plan to construct all the Wings including ‘A’ Wing. Builder is benefitted by such acquisition by getting the additional T.D.R. Only thereafter he had submitted the plans to construct the buildings referring to ‘A’ to ‘F’ Wings and plan thereof was sanctioned by the B.M.C. and commencement certificate was issued. It is not disputed that the ‘B’ to ‘F’ Wings were already constructed. However, in respect of ‘A’ Wing construction was carried out only to the plinth level. Had there been the fact that any approach road for ‘B’ to ‘F’ Wings would be disturbed by construction of ‘A’ Wing, then the plan would not have been sanctioned by the B.M.C. There is one plan placed on record which clearly shows that proposed D.P. Road is situated much beyond the construction area (of ‘A’ to ‘F’ Wings) and situated beyond the boundary of the site in which the construction of wings ‘A’ to ‘F’ is being carried as per the sanctioned plan. Therefore, failure of the B.M.C. to get constructed D.P. Road cannot come in a way to proceed with constructions of the buildings including ‘A’ Wing.
6. Complainant tried to refer the Shramdan Road. Looking to the copy of the plan of the layout (page 213 of the appeal compilation) the existing road is shown much beyond the actual area marked for construction of Wing ‘A’ to Wing ‘F’. Nowhere any road is shown which would come under construction of ‘A’ Wing. Furthermore, the case of the builder cannot be believed to hold that, if he carry out the construction of ‘A’ Wing it would obstruct the Shramdan Road, i.e. Approach road to the other Wings, since, otherwise the builder would not have carried the construction of ‘A’ Wing to the Plinth level. Some reference tried to be made to the earlier litigation between one Mr.Kamruddin Nasruddin Shaikh V/s. Municipal Corporation of Greater Mumbai & Ors., in an appeal against the order passed in the High Court as well as the suit filed before the City Civil Court bearing No.2547 of 2010. However, we find that the Complainant erroneously made reference to those proceedings to justify that undertaking given by parties in the said suit was obstructing him to carry out the construction of ‘A’ Wing. As earlier pointed out, there is no obstruction even if ‘A’ Wing is constructed, to any approach road of ‘B’ to ‘F’ Wings.
7. Complainants want to rely upon one letter of Nitin Doshi dated 30th April, 2011 and its inspection report to show that if the Wing ‘A’ is constructed the Shramdan Road would be partially cut off. We are afraid, in view of the circumstance referred earlier, said submission cannot be accepted.
8. Furthermore, on 28.03.2010 the Builder had written to the Grahak Panchayat i.e. Complainant No.1 who is fighting the case for flat purchasers/Complainants ‘Vithal Vishram Dhoke and Vanjali Vithal Dhoke’ that all necessary permissions were received and they would start construction work of ‘A’ Wing. Said statement reads as under:
“I have received necessary permission from all the Authorities like Mumbai Municipal Corporation, Regional Town Planning Department, etc. and there is no hurdle to start the construction work of “A’ Wing in Madhuban Building which is long pending.”
Had there been any obstacle coming in a way to construct ‘A’ Wing, the statement referred above would not have been made.
9. Under the circumstances, we find that deficiency in service on the part of the Appellant is well established by not handing over the possession as agreed and further on account of delay in handing over the possession.
10. However, we find that direction given by the Forum as per paragraph 4 of the operative part of the impugned order to give alternate accommodation if it is not possible for the builder to give the agreed flat, is perhaps the one which is given beyond the scope of empowerment under section 14 of the Consumer Protection Act, 1986 and therefore, not sustainable. Therefore, we modify the impugned order to that extent. Furthermore, compensation was awarded @ `7,000/- per month but said direction is vague because duration is not specified therein. In the totality of the circumstances what we find is that, it would be appropriate to give direction to the Appellant to handover the possession of the agreed flat to the Complainants, i.e. flat purchasers Vithal Vishram Dhoke and Vanjali Vithal Dhoke, in a specified period and further to grant by way of alternate relief a compensation to the extent at the market rate by which flats are available in the Dahisar (East) area where the property is situated. There is no evidence as such about the prevailing market rate of the flats as on today. However, a due notice can be taken of the prevailing market value at Dahisar (East), Mumbai, which is falling within the range of `7,350/- to `9,600/- per sq.ft. as published in the property supplement of a news paper “Times of India” issue dated February 16, 2013. A mean of said range would come to `8,475/- and considering the area of the flat agreed to be purchased by the Complainants Vithal Vishram Dhoke and Vanjali Vithal Dhoke i.e. 345 sq.ft., its value would come to `29,23,875/-. Out of total agreed consideration of `6,52,940/-, the Complainants have paid `1,01,100/-. We find no reason to believe the Complainants about the amount paid. Thus balance consideration payable would be `5,51,840/-. Therefore, adjusting this balance payment from the amount of compensation payable by way of alternate relief, it would come to `23,72,035/-. We propose to award such compensation by way of alternate relief modifying the impugned order as per final order below.
11. As far as awarding compensation of `7,000/- per month by the Forum is concerned, in view of the modification of the same as per the final order, and since the Complainants would get benefited by the escalation of the prices of property, there is no need to separately award such compensation.
12. For the reasons stated above, we partly allow the appeal and pass the following order:
ORDER
(i) Appeal is partly allowed.
(ii) In place of the impugned order dated 13.07.2012 following order be substituted:
Complaint is partly allowed.
Opponent builder M/s.Falsa Construction, whose proprietor is Prakash T. Tanna, to handover possession duly completed in every respect including obtaining occupancy certificate of Flat No.303 situated on 3rd Floor in Á’Wing of Madhuban Complex, Dahisar East, Mumbai, i.e. the flat agreed to be purchased as per agreement dated 26.08.2005, to the Complainant No.2 - Vithal Vishram Dhoke and Complainant No.3 - Vanjali Vithal Dhoke, within a period of twelve months from today i.e. the date of order in appeal, i.e. 27.02.2013. At the time of taking the possession Complainants Vithal Vishram Dhoke and Vanjali Vithal Dhoke, shall pay balance consideration of `5,51,840/- (Five Lac Fifty One Thousand Eight Hundred Forty only) to the builder.
OR
Alternatively, the Builder M/s. Falsa Construction through its Proprietor Mr.Prakash T. Tanna to pay compensation of `23,72,035/- (Twenty Three Lac Seventy Two Thousand Thirty Five only) to the Complainants. This compensation be paid within a period of 60 days, failing which it shall carry interest @21% per annum (i.e. the rate of interest mentioned by the builder in case of default as per Clause 17 of the agreement) till its realization.
(iii) Opponent/builder do pay `1,00,000/- (Rupees One Lac only) as compensation to Complainant No.2 Vithal Vishram Dhoke and Complainant No.3 Vanjali Vithal Dhoke for the inconvenience suffered, mental torture etc. This amount shall also be paid within the period of 60 days and failing which it shall carry interest @21% per annum.
(iv) Appellant to bear its own costs and pay `25,000/- (Rupees Twenty Five Thousand Only) as costs to the Complainants Mr.Vithal Vishram Dhoke and Vanjali Vithal Dhoke and `10,000/- (Rupees Ten Thousand only) as costs to the Respondent No.1 – Consumer Welfare Association
(v) Appeal stands disposed of accordingly.
Pronounced on 27th February, 2013.
