PER DR. S.K. KAKADE, HON’BLE  PRESIDING MEMBER.

1. That   aggrieved by the impugned order dated 11/02/ 2020 passed by the Learned District Consumer Disputes Redressal Commission, Nagpur on interim application in Complaint Case No. CC/473/2019 (Uttam S/o. Uttam S/o Jagoji Chahande vs. Fire Arcor Infrastructure (Pvt.) Ltd) passed the present revision petition is filed by the petitioner u/s 17 (1) (b) of the Consumer Protection Act 2019. By this impugned order the District Consumer Commission, Nagpur has directed the Revisionist / builder/developer to restore the Electric Supply of common areas and Water Supply in the individual tanks by paying9 the outstanding bill of Concerned Electric Department,
2. Brief facts for deciding this Revision Petition are as follows….

The revision petitioner is M/S. FIRE ARCOR INFRASTRUCTURE PVT. LTD. who is a company incorporated under the Companies Act 1956 which is in the business of residential and commercial products of the integrated township spread over approximately 150 acres of land which is name and style as “The Empyrean”. The petitioner has under taken the development and construction of residential scheme on one of the piece of nonagricultural land admeasuring 60.59 acres situated at Village Kotewada in Tehsil Hingna, District Nagpur. The respondent/original complainant had purchased 2 residential units bearing No.II-6/11 in carnation mids in the Empyrean Vista township of appellant and the parties enter into an agreement to sell on Dt.18/10/2013.

3. The complainant / respondent n this petition filed a consumer complaint bearing No.CC/473/2019 against the O.P. / petitioner of this petition for the grievance with regard to maintenance charges being collected as well as facilities and amenities that were prevalent in the township. The MSEDCL disconnected the electric supply on 31.1.2020 on nonpayment of the electricity bills, as the petitioner / builder did not pay the bills.  During the pendency of the complaint, the original complainant filed an interim application praying for directing the O.P. to restore electricity supply in the common area of the building and also water supply in the individual tank. The petitioner resisted this application since as per the contention of the petitioner despite repeated demands to the flat purchasers they were not paying maintenance and on account of nonpayment of the dues the MSEDCL disconnected the electricity supply. On hearing both the parties, learned District Consumer Commission on 11/02/2020 passed interim order directing the original O.P./appellant to pay the electricity bills and restore the electric supply as well as water supply in the common area. Further the complainant filed another interim application in the consumer complaint before the District Consumer Commission Nagpur with prayer that the O.P. to pay electricity bills and water bills to restore the electricity as well as water supply to the common area along with builder and developer to provide maintenance and facilities of labor. Thereafter another interim order was passed by the District Consumer Commission on 17-02-2021 directing the appellant/builder/developer to provide facilities of lift and comply earlier order dated 11-02-2020. By this revision petition, the original opposite party, M/s Fire Arcor Infrastructure Pvt. Ltd. has challenged this interim order dated 11-02-2020 passed by District Consumer Disputes Redressal Commission, Nagpur.

4. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record. Learned Advocate for the appellant Shri. Shyam Dewani submitted that

1. The project was initially sanctioned by the State Government of Maharashtra on 17-02-2006 as Special Township Project. Subsequently, the words Special Township Project were replaced by an Integrated Township Project by an amendment made in M.R.T.P, Act vide Maharashtra Act No. 43 of 2014 with effect from 22/04/2015. The Urban Development Department of the Government of Maharashtra issued a Government Notification dated 20/11/2018, whereby the State Government had sanctioned the modifications to the Regional Plans under Sub-Section (4) of Section 20 of Maharashtra Regional and Town Planning Act, 1966, in respect of Regulations for Development of Integrated Township Projects vide Government Notification dated 20/02/2018 and replaced the same with a new set of regulations for Development of Integrated Township Projects.
2. That recently on 08/03/2019, the Urban Development Department of the Government of Maharashtra issued a Notification dated 08/03/2019 wherein it replaced the then-existing Special Town Planning Regulations with Revised Integrated Township Project Regulations. A bare perusal of Clause 10.3 therein provides that it is the duty of the Project Proponent to develop and maintain all the infrastructure in good condition till handing over to appropriate authority, for which the Project Proponent is allowed to collect periodical contributions or raise corpus funds for the maintenance of infrastructure from the purchasers of tenements or statutory bodies of the purchasers of tenements formed by the developer for this purpose. Thereafter, the Project Proponent is to hand over the infrastructure, for maintenance purposes, only after the completion of the project, to the Urban Local Body or appropriate authority, when constituted in the area comprised by the project along with the unutilized corpus fund collected for the maintenance of common infrastructure.
3. Shri. Shyam Dewani invited our attention to the notification issued by the State Government of Maharashtra on Dt.16/03/2006, Dt.20/11/2018, and Dt.08/03/2019. According to him in the notification, Dt.20/11/2018 as per para-No.10 and specifically para-No.10.3 shall the responsibility of the promoter of the project is to develop and maintain all the infrastructures in good condition till handed over to the appropriate authority, (Reference page No.126). In the same notification para, 14 spells out the transition policy. Further as per the latest notification Dt.08/03/2019 on para 10.3 and 14 the transition policy has been explained in detail. The learned advocate further submitted that the copy of the agreement to sell Dt.05/01/2013 reflects the schedule of payment. He submits that Non-payment of the Maintenance Charges by the respondent as per the schedule of payment is the point of dispute and in case the dispute arises it is specifically mentioned on page No.33 that the flat purchasers should pay for electricity, gas and water connection as applicable.
4. He submits that the revision petitioner /original O.P. had already filed a reply to the interim applications and original consumer complaint filed by the consumer before the District Consumer Commission. The petitioner had opposed this interim application as the parties have agreed that as per the Government notification that the flat purchasers will be liable to pay for the electricity and water charges. The petitioner /original O.P. while defending the contract has already taken the stand that the Consumer Commission cannot re-write the contract and hence the terms in the agreement between the parties are binding on both the parties. Further, learned advocate invited the attention of the commission that, this agreement was not challenged by the respondent in any court of law.
5. Shri Dewani has heavily relied on the “clause no:-16” of the “agreement to sale” made with the consumer. He submits that the said agreement to sale is a registered document as per the provisions of MOFA ACT 1963. The consumer has already agreed to make the payment of maintenance to the maintenance agency as per clause 16 and therefore the consumer is bound to make the payment of “maintenance charges” as and when demanded by the appellant/builder/developer.

Clause 16 says……

The Allottee(s)/Purchaser(s) hereby agrees to enter into a maintenance agreement with any association / agency or other body (hereinafter referred to as the Maintenance Agency)  as may be appointed nominated by the Vendor Company from time to time for the various common services or facilities including the upkeep, repairs, security and maintenanceetc. of the Said Project and its common areas, infrastructure and services/amenities therein and the Allottee(s)/ Purchaser(s) shall pay the maintenance charges as per bills raised by the Maintenance Agency, as and when and in the manner demanded by the Maintenance Agency,from the date of offer of possession, irrespective whether the Allottee(s) Purchaser(s) is inoccupation/possession of the Said Residential Unit or not.

     In order to secure due performance of the Allottees/ Purchaser(s) in payment promptly of the maintenance bills and other charges raised by the maintenance agency, the Allottee(s) / Purchaser(s) shall deposit, as per the Schedule of Payment and to always keep deposited with the Vendor Company or the Maintenance Agency as Interest Fee Maintenance Security (FMS).

     In case of failure of the Allottee(s) / Purchaser(s) to pay the maintenance bills and/or other such charges on or beforethe due date, the Allottee (s) Purchaser(s) in addition to permitting the Vendor Company Maintenance Agency to deny him/it the maintenance services, als0 authorizes the Vendor Company to adjust such arrears/dues against the IFMS deposited by the Allottee(s)/Purchaser(s) with the Vendor Company Maintenance Agency.

     This arrangement shall continue till the maintenance of the Said Project is handed over to the Municipal (S)Authorities or the association of the Allottee(s) Purchaser(s)/occupant(s)

6. Learned advocate for the petitioner submitted that the District Commission has wrongly relied upon Section 6 of the Maharashtra Ownership of Flats Act. According to which it is the liability of the builder/promoter/developer to pay all the necessary charges like electricity charges/ water charges, but learned Commission ignored the judgments that were cited in which there the clear-cut view that the agreement cannot be rewritten once is signed. In short, he submitted that the “agreement to sale” will prevail over the provisions of the MOFA ACT.
7. He submits that Learned District Commission has failed to understand that the liability of the flat purchasers according to the agreement cannot be written off and also ignored the application filed by the appellant/original O.P. for directing the complainant to pay maintenance during the pendency of the present complaint.
8. Shri. Dewani submitted further the revision petitioner is trying to comply with his duties, obligations, and responsibilities but since the appellant is developing a huge township, it is a huge task to complete the duties and liabilities in the scheduled time. He further invited the attention of this commission to the copy of the Society Registration Certificate and submitted that the “society is duly registered on 11-02-2021.” He submits that thus the petitioner is already trying to complete his liability and responsibility.
9. As per the submissions of the learned Advocate for the revision petitioner, the petitioner has already complied with the order of the District Commission according to which already, society was registered, and a compliance report also was filed by the present appellant before the District Consumer Commission of Nagpur. Further, the learned advocate referred to rulings from the Hon'ble National Commission, Hon'ble Supreme Court, and Hon'ble Bombay High Court as under.

1. Shree Ambica Medical Stores ….V/s……Surat People Co-operative Society, reported in 2020(13) SCC 564.
2.  Dr. Amitabha Sen…….V/s……Raj Singh Gehlot, reported in       2021 SCC online NCDRC 23.
3. Soni Babubhai ….V/s….State of Gujarat, reported in (1991) 4 SCC 298.
4. Jayesh Bhai Rana ……V/s……State of Gujarat, reported in 2014 SCC Online Guj 12424.
5. CIT ….V/s…….Vatika Township PVT.Ltd, reported in (2015) 1SCC 1.
6. Prachi Mathur ….V/s……TDI Infrastructure, delivered on 08/10/2020 by State Consumer Commission Delhi.
7. Madhusudhan Reddy……V/s….VDB Whitefield, reported in 2022 SCC online NCDRC 13.
8. GHCI Employees Stock Option Trust…….V/s……Indian Infoline Ltd, reported in (2013) 4 SCC 505.

10. So, in view of the arguments advanced by the learned Advocate for the petitioner and the ratios of judgment and rulings filed on record, the learned Advocate for the petitioner prayed for setting aside the impugned order passed by the learned District Consumer Commission on 11-02-2020.

5. Learned advocate for the respondent, Adv. Mandlekar, submitted that, there are five issues with the para 16 of the agreement to sale that was executed by the revision petitioner.

1. The allottee / purchasers hereby agrees to enter in to maintenance agreement with any association / agency as maintenance agency.
2. Purchasers shall pay the maintenance charges as per the bills raised by the Maintenance Agency.
3. The allottee / purchasers shall deposit as per the schedule of payment with the vendor company in order to secure due performance.
4. In case of failure of the allottee / purchasers to pay maintenance bills, the Vendor Company can deny maintenance services to him.
5. This arrangement shall continue till the maintenance of the said project is handed over to the Municipal authorities.

According to the learned advocate for the respondent, the question is, whether the consumer can be compelled to make the payment of “maintenance charges” against the clauses of the agreement and against the statutory provisions of MOFA ACT and RERA ACT?

6. While answering the submissions of the learned Advocate for the petitioner, advocate Dr. Tushar Mandlekar broadly argued and covered all the challenges. He submitted that….

1. The bare perusal of Environment Clearance dated 12/07/2010, more particularly clause pertaining to "Environment Management Plan", it would be clear that the said Environment Clearance was granted to the builder on the condition that he had agreed to manage the project for at least ten years after completion of all phases, thereafter, it will be managed by a federation of societies to whom suitable corpus of the fund will be handed over by the respondent no:-01. In short, even as per the conditions of the Environment Clearance, the builder is bound to manage the project for at least ten years after completion of all phases, however, the same is not done and the builder is trying to squeeze the funds from the purchasers, who have agreed to purchase a unit in the Township.
2.  The builder has unilaterally entered a maintenance clause in Agreement vide Clause No. 16 by which it is mandatory for a buyer to make the payment of “maintenance” to the agency appointed by the builder and sign an “agreement with the maintenance agency so appointed by the builder”. He invited our attention to the “clause 16” of the “agreement to sale” and said that the said clause is illegal, oppressive, unilateral, and heavily in favor of the builder by which the builder can forcefully recover the amount of maintenance irrespective, of whether the possession is given or not. The unilateral and arbitrary clauses 16, and 17 are detrimental to the interest of home buyers and violate of section 6 of MOFA ACT and section 11 of RERA ACT and thus can be struck down by the consumer commissions as such unilateral, arbitrary, and oppressive agreement is nothing but “unfair trade practice”
3. It is the settled position of law that “consumer courts” have powers to direct the “service providers”/ “builder/developers” to correct the “unfair trade practice”
4. According to the counsel for the respondent said clause 16 even if it is taken as it is, cannot be said to be violated by the consumer as the builder has failed to appoint any “maintenance agency” yet. The consumer was made to agree to “sign a maintenance agreement” with the “maintenance agency” appointed by the builder. Neither the builder has appointed any maintenance agency, nor have the parties signed any “maintenance agreement” hence a violation of such a clause cannot be attributed to the consumer.
5. Moreover, the appellant/builder/developer has already collected an amount of Rs.66/ per square foot from every consumer including the original complainant, and hence it is not the case that the consumer has not paid any maintenance.
6. It was necessary for the “builder/developer” to complete the project in ten years from the date of sanction which is 17-02-2006. It is not in dispute that the consumer has made the payment of “external maintenance” at the time of signing the agreement. The appellant has already admitted in his reply filed before the District Consumer Commission in para 24 and 33 that he has accepted such an amount @ Rs.66/ per square foot and the appellant was duty-bound to maintain the project till 20/06/2019 and even after that till the same is handed over to the “appropriate government authority”
7. Admittedly all phases of the Project are yet not completed and therefore even as per the conditions of the Environment Clearance, the builder is bound to manage the project, even if the Societies are formed to look after the day-to-day affairs of the respective Buildings for ten years. The builder is bound to maintain the project “after completion of all phases” for ten years but the builder is seeking the amount of maintenance from home buyers and all other allottee illegally even when the project is not yet completed, and all the facilities are also not given.
8. It is necessary to point out that the builder/developer has failed to form the “co-operative society” of the home buyers even after ten years and intends to extort a huge amount towards “maintenance of common facilities” till perpetuity in violation of section 6 of MOFA ACT 1963 and section 11 {e} of RERA ACT 2016.
9. Admittedly the Empyrean Vista 1 BHK Owners Co-operative Housing Society is registered on 11-02-2021 in the office of Assistant Registrar Hingna that is after 15 years of the launch of the project, is yet not completed. The builder/developer has also failed to provide all the amenities and facilities as promised.
10. The petitioner /builder/developer cannot seek maintenance on the basis of “clause no:-16, 17” of the “agreement to sale” as the builder/developer has admitted in its reply argument that he has not nominated any maintenance agency and admittedly there is “no maintenance contract” as signed/agreed by the parties in clause no:-16 of the “agreement to sale”
11. He further submitted that the District Consumer Commission Nagpur passed the first order on the interim application on 11/02/2020 in which the interim application was allowed, and the present appellants were directed to pay electricity bills for reconnection of the electricity and water connection supplied to the common area in the building. By second order Dt.17/02/2021 learned District Consumer Commission allowed the application filed by the original complainant in relation to Annex. 16 and directed the appellant/builder/developer to comply with the first order Dt.11/02/2020 and additionally give facilities like the lift service to be restarted within 10 days.
12. He further submitted that the provisions of the contract will always be subservient to the statutory provisions of MOFA ACT as well as RERA ACT. The statutory provisions always prevail over clauses in the agreement and consumer forums are competent to even strike down any of the clauses in the “builder buyer agreement” when such are found to be arbitrary, unfair, oppressive, unilateral, illegal.
13. In response to the submission of the appellant that "there was a specific clause in the agreement," that gives the right to the builder/promoter/developer to collect maintenance charges and other charges for any other expenses from the flat purchasers, learned advocate for the respondent further submitted that the legal provisions under the MOFA Act will supersede any clause in the agreement and hence till the “legal possession” along with all permissions and facilities and amenities is handed over to the flat purchasers it is the responsibility and liability of the builder, developer, and promoter to pay all the charges in relation with the building constructed and hence according to him the order passed by learned District Consumer Commission Nagpur is as per the legal provisions in the MOFA Act.
14. According to the learned Advocate for the respondent, the original complaint is still to be decided by the District Consumer Commission and the orders already passed by the learned District Consumer Commission are just legal and proper, hence he prayed for dismissal of the revision petition. He also relies on following case laws:-

1. Godson Housing Development Co. and another V/s.... Sukhdeo Ganbaji Poratkar, reported in 2019 SCC Online NCDRC 1047
2. Ram Chandra Varshney....V/s.... Murarilal Sharma and others, decided by Hon'ble National Consumer Commission on 12/09/2007
3. Ravi Kant... V/s..... National Consumer Disputes Commission, reported in 1997 (40) FRJ (DB) Delhi High Court
4. Mr.Tonse.N.M.Rai....VIs...AlI Goa Manipal Finance Group, iv) Reported in 2012 SCC OnLine NCDRC 225.
5. Sanjay Malviya....VIs.... Siddharth Enterprises and another reported in (2008) CPJ 74 (NC).
6. Ashish Ramchandra Birla and Rajdhar Patil others....V/s....Muralidhar and others, reported in l(2009) CPJ CPJ 200 (NC).
7. Brig. (Retd.) Rakesh Dhir and another....Vs..M/sParsvanath Developers Ltd, decided by Execution Hon'ble National Consumer Commission on 15/01/20021 in application NO.269 of 2019 in CC/107/2015.
8. Sanjay Chandra and others ...V/a..... State Govt. Of NCT of Delhi and others, reported in 2018 SCC Online SC 368
9. Avinash Gopal Sharan Sinha....V/s.....Unitech Ltd. New Delhi, Decided by State Consumer Commission Punjab,(Chandigarh on 14/06/2017

7. We have heard the submissions made by the learned advocate for both parties. We have carefully perused the order passed by learned District Consumer Commission Nagpur Dated 11-02-2020 and all the documents and judgments provided by the respective parties.
8. FINDINGS AND OBSERVATIONS:-

1. The legal position in the present dispute over the order passed is quite clear. The revision petitioner / builder is seeking the maintenance from the consumer in a “consumer complaint case” on the basis of “clause 16” of the “agreement to sale” {cited supra}

As per Section 6 of MOFA, A promoter shall, while he is in possession and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter, pay all outgoings (including ground) rent, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any, until he transfers property to the persons taking over the flat, or to the organization of any such persons, where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organization of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefore by such authority or personal.”

The builder, developer and promoter are liable for payment of all taxes,electricity charges, water charges till he is in possession and meaning that the legal possession of the flat is handed over to the flat purchaser.

2. In the present dispute the appellant wants the implementation of clause 16 in the agreement which according to him empowers to collect the expenditure like electricity, water charges, and other taxes as previously discussed.

In our view, the provisions in MOFA ACT supersede any clause in the agreement to sale, rather we feel that no builder/ developer/ promoter can include a clause in the agreement which is contrary to the provisions in MOFA.

3. We also find force in the submissions made by the learned counsel for the respondent that the builder/developer has not appointed any maintenance agency as per clause 16 and there is no “maintenance agreement” signed by the parties, hence even if the said clause is considered as it is we do not see any violation made by the consumer. We find that clause 16 of the agreement unfairly demands the “maintenance charges” from the home buyer irrespective of whether he received possession or not and the same is heavily in favor of the builder/developer.
4. We here refer to the Hon’ble Supreme Court’s Judgment in Civil Appeal no. 6239 of 2019 Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors versus DLF Southern Homes Pvt. Ltd, as mentioned in the Judgment and order passed by State Consumer Commission of Punjab, Chandigarh in Mrs. Hardesh Mehta versus Parkwood Developers Pvt. Ltd. and Anr. Order dated 17 May 2021 in Consumer Complaint No. 07 of 2021. The Consumer commissions have been assigned power to declare any contractual term as “unfair” as per the following para.

“We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement."

5. Further we find that the revision petitioner /builder/developer has already received an amount of Rs.66/ per square foot from consumer in the huge housing scheme hence he is duty-bound to maintain the project. It is not the case that the consumer has not paid any maintenance charges in the scheme, and he is residing and enjoying the facilities free of cost. The builder has himself admitted that he has not completed the project yet and he is not in a position to hand over the project to the appropriate authority as contemplated in state government notifications.
6. We also find that the revision petitioner /builder/developer has given an undertaking to the Maharashtra Pollution Control Board to maintain the project after completion of all phases for a period of ten years, at the time of getting Environmental Clearance on 12-07-2010 hence he is duty bound to maintain the project. The various state government circulars/ notifications relied by the appellant no doubt permit the revision petitioner /builder/developer to collect the money from the home buyers for external maintenance, but the same cannot override the statutory provisions of MOFA ACT AND RERA ACT.
7. In this case the revision petitioner /builder has already collected the maintenance charges from every consumer @ Rs.66/ per square foot and failed to deliver and maintain the common facilities. The non-payment of electricity bills and water bills by the project proponent/builder/developer has resulted in the disconnection of the power supply on 28-01-2020.On perusal of the order passed by learned District Consumer Commission Nagpur, it has considered the same legal provision.
8. In our view the interim order passed by the Learned District Consumer Commission Nagpur on 11/02/2020 in CC/ 468/ 2019 by which the District Consumer Commission, Nagpur has directed the Revisionist / builder/developer to restore the Electric Supply of common areas and Water Supply in the individual tanks by paying the outstanding bill of Concerned Electric Department is just legal and proper and requires no interference and that the execution petition is also maintainable against the director of the appellant company against the interim orders passed on 11-02-2020 by the District Consumer Commission in CC / 468/2019 for non-compliance of the orders in stipulated time. In view of the above discussions, we pass the following order:-

ORDER

1. Revision Petition is hereby dismissed with costs quantified to Rs. 1,00,000/- to be paid by the appellant to the respondent within period of two weeks from the date of receipt of copy of this order.
2. Copy of this order to be given to all the parties free of cost.