Per – Hon’ble Mr. S. R. Khanzode, Judicial Member This appeal is against the dismissal order of the consumer complaint filed by the original Complainant Society. The impugned order is dated 08/09/2010 passed by Mumbai Suburban District Consumer Disputes Redressal Forum at Bandra (‘the Forum’ in short) in Consumer Complaint No.372 of 2003, Sumer Nagar No.3 Co-operative Housing Society Ltd. Vs. Mr. Bipin S. Barot & Others. [2] Referring to the complaint, a grievance is tried to be placed by the Appellant/original Complainant, namely – Sumer Nagar No.3 Co-operative Housing Society Ltd. (hereinafter referred to as ‘the Society’) to the effect that services of the Respondent No.1/original Opponent No.1, namely – Mr. Bipin S. Barot and the Respondent No.2/original Opponent No.2, namely – M/s. Manoj Paresh Consultants, as an architect and surveyor, were engaged by the Respondent No.3/original Opponent No.3, namely – M/s. Sumer Developments, who is a builder and developer (hereinafter referred to as ‘the Builder’) to obtain Occupancy Certificate in respect of Building No.3 in which members of the Complainant Society are the flat-purchasers and residing. It is contended that Occupancy Certificate in respect of fifth, sixth and seventh floors of Wings ‘B’, ‘C’, ‘D’ and ‘E’ of the building is yet to be obtained and as a result of which, the Municipal Corporation of Greater Mumbai (hereinafter referred to as the ‘Corporation’) is levying water charged at a double rate and thus, estimated excess water charges of `4,00,000/- was required to be paid by the Society. Society claimed compensation to that extent alongwith an amount of `20,000/- by way of compensation for each flat for mental, physical and social agony, total amounting to `9,60,000/- in the consumer complaint. [3] In the instant case, a grievance is tried to be placed by the Complainant Society in the form of a consumer dispute by the Complainant Society alleging deficiency in service against the Builder for not obtaining Occupancy Certificate in respect of floors fifth, sixth and seventh of Wings ‘B’, ‘C’, ‘D’ and ‘E’ of Building No.3 and as a result of which, the Society is levied water charges at a double rate by the Corporation. Admittedly, services of the architect viz. Respondent No.1/original Opponent No.1, namely – Mr. Bipin S. Barot and Respondent No.2/original Opponent No.2, namely – M/s. Manoj Paresh Consultants, were not hired by the Society for any purpose and therefore, they being not ‘service providers’ in relation to the subject matter, dismissal of the consumer complaint against them cannot be faulted with. [4] As far as the Builder is concerned, it is revealed that partial Occupancy Certificate is already obtained and Occupancy Certificate in respect of fifth, sixth and seventh floors of Wings ‘B’, ‘C’, ‘D’ and ‘E’ of Building No.3 could not be obtained since the occupants/flat-purchasers had enclosed the balconies by an unauthorized construction. The Builder has already requested these flat-purchasers as well as the Society to do the needful so that Occupancy Certificate can be obtained but, the Society as well as the flat-purchasers perhaps failed to do the needful. In this background no deficiency in service on the part of the Builder for not obtaining the Occupancy Certificate in respect of fifth, sixth and seventh floors of Wings ‘B’, ‘C’, ‘D’ and ‘E’ of Building No.3 can be alleged. [5] Besides this the same issue was a subject matter of a civil suit filed by the Society before the City Civil Court, Mumbai. The Forum has already referred to the relevant issue and finding recorded by the City Civil Court on the issue. Therefore, on the same issue in respect of not obtaining Occupancy Certificate, the same cannot be raised again by seeking resort to an additional remedy under the Consumer Protection Act, 1986. The Forum was justified in making observations accordingly and dismissing the consumer complaint. For the reasons stated above, we find the appeal is devoid of any substance. Holding accordingly, we pass the following order:- ORDER The appeal is not admitted and stands rejected accordingly. In the given circumstances, parties to bear their own costs. Pronounced on 30th September, 2011 |
