PRESENT
Complainant by Representative Adv.Jagruti Parashare present.
Opponent by Adv. Prakash Kadam.
ORDER
(Per Mr. S. D. MADAKE, Hon’ble President.)
1. The complainant has filed the complainant against Opponent for deficiency in service. The notice to Opp. was issued on admission of complaint on 15.06.2012.
2. According to complainant, he purchased flat bearing No.601 on 6th floor in the building named Krishna Tower, Dahisar (E) situated at Jaya Nagar, C.S. Road, Mumbai-68, from Opponent Jayashree Builder as per agreement dated 3rd March,2004.
3. The complainant stated that Opponent assured him saying that Bombay Muncipal Corporation has granted permission to construct additional 4 floor on existing ‘C’ wing of Krishna Tower building. The Opponent assured him that if any problem arises same will be solved by builder (Opponent). The Opponent sold all 23 flats on extended 4 to 7th floors to flat- purchasers.
4. The complainant further contended in para 10 of complaint that when flat-purchasers asked for “ Occupancy Certificate” Opponent convinced them that matter is pending before authorities and no need to worry.
5. The complainant in para 12 contended that he came to know recently that B.M.C. has refused to issue certificates i.e. Occupation and Completion Certificate due to failure of Opponent’s obligation as per agreement and Law.
6. The complainant contended in para 14 that Opponent collected charges towards formation of Society, Share certificate and execution of Conveyance, however no steps in that direction have been taken by Opponent. The existing Society also is not taking interest in the welfare and maintenance of additional four floors.
7. The complainant alleged that due to failure of opponent to perform statutory and contractual obligations, caused mental agony to claim and other flat purchasers, as they have poured all their life’s savings in purchase of flats.
8. The complainant stated in para 19 of complaint that they have formed society but they are unable to undertake steps without permission from B.M.C. and registrar of Society. It is further submitted in para 20 that B.M.C. has given water connection on humanitarian grounds and charged more than normal rates.
9. The complainant contended that, Opponent started harassing him by sending letters, demanding dues and making false allegation saying that complainant is doing unauthorized alterations and additions causing nuisance to neighbours.
10. The complainant prayed that opponent be directed to obtain Occupancy Certificate for additional 4 floor flats, enter the names of members of 4 floors flat owners in the existing society or form a new society for them, make payment of extra water bills and refund extra amount paid by members for water charges, immediate repair of leakages and other repair work. The Complainant further prayed that Opponent be directed to pay compensation of Rs.1,00.000/- (One Lakh) for mental agony, as well as cost.
11. The Opponent filed written statement and resisted the allegations made in the complaint and prayed for dismissed of complaint on various grounds.
12. The opponents alleged that, complainant is filed without any foundation to harass him and suppressed the fact that complainant purchased flat in 2004 and filed complaint in 2012 without filing application for Condonation of delay. The complaint involves disputed question of facts which should be dealt with by Civil Court. The complainant has not prayed for permission under S.12 (1) ( C ) to file complaint.
13. The opponent stated that, the four floors in wing “C” were constructed as per sanction and permission by appropriate authorities and possession of flat was given to complainant in 2005 and other flat purchasers. All the flat purchasers were well informed about pendency of occupation certificate and proper intimation was given to complainant and others.
14. The Opponent stated that opponent took up day to day maintenance of the building from 4th to 7th floors including lift. The bills were raised monthly after verification of total expenses including property taxes. The opponent stopped looking after day to day affairs as complainant and some other flat purchasers started defaulting in monthly payments. It is alleged that complainant made unauthorized construction in the form of alteration and he was asked to restore the flat to its original condition.
15. The Opponent contended that building is constructed as per B.M.C. norms and as per approved sanctioned plan. It is averred that complainant was appraised of the fact that since the Assessment tax is not paid by members of society and as such the NOC is not being granted by Assessment Department.
16. The opponent stated that complainant is also not responsible for not paying Assessment tax Neither the complainant, nor the society submitted any statement showing quantum of taxes paid by them. The intention of complainant is to harass opponent and avoid payment of dues the undertaking dated 27.11.2004 given by complainant says he is satisfied with construction.
17. The opponent stated that, Complainant and his wife are defaulter and liable to pay for outgoings, they both till date not shown courtesy to even pay up for common service such as water, security etc.
18. The opponent prayed that complaint be dismissed with cost.
19. We have heard both sides. Perused complaint, written statement, documents filed by both sides, evidence affidavits and written notes filed on record. We have perused the Litigation pending before various courts between the opponents and society which was formed by flat owners in the said building on first three floors.
20. Admittedly the possession of flat was given to all the 23 flat-purchaser residing on 4th to 7th floors. It is an admitted fact that Occupancy certificate is not issued till this date with respect to construction of additional 4 floor flats.
21. As per the provision of Law, the developer is under an obligation to obtain occupancy certificate within a reasonable time. The developer cannot take advantage of the undertaking given by complainant. The opponent is also liable to pay the extra-water bills till the issuance occupancy certificate.
22. The developer is entitle to take steps against complainant in respect of additional construction in violation of B.M.C. Rules by filing cases before appropriate authorities. However, he has to perform the statutory obligations as laid down by MOFA Act.
23. The complainant was subjected to lot of inconvenience due to absence of occupancy certificate, therefore he is entitle for the said relief. He is also entitle for reasonable compensation for mental agony to the amount of Rs.25,000/-
24. In the result , we pass the following order.
ORDER
1. RBT Complaint No. 235/2012 is partly allowed.
2. The opponent is directed to obtain occupancy certificate as prayed by complainant within 3 months.
3. The opponent is directed to pay “water bills” till obtaining occupancy certificate.
4. The opponent is directed to pay Rs.25,000/- to complainant as compensation for mental agony and cost of Rs.7,500/-
5. Copy of this order be sent to both parties.
