Advocate Abhijit M. Hartalkar for the complainant

Advocate Chavan Z.S. for Opponent Nos. 3 (a) and (b)

Per Hon’ble Shri. V.P. Utpat, President

                                     JUDGMENT

                                Dated 9^thJune 2014

                This complaint is filed by consumer against builder and developer for deficiency in service u/s 12 of the Consumer Protection Act, 1986.  Brief facts are as follows-

[1]            Complainant is resident of Dangatpatil Nagar, Tal. Haveli, District Pune.  Opponent Nos. 1 to 3 are dealing in the business of construction. It is the case of complainants that the husband of complainant Shri. Rajendra Dagdu Dangat was the owner and possessor of the land bearing S.No.82/4 of village Shivne, Tal. Haveli, District Pune. He had executed an agreement dated 11/12/2007 with Opponent Nos. 1 and 2 for the development of the said property.  It was agreed between the parties that the Opponent Nos. 1 and 2 shall give four flats admeasuring 500 sq.ft and one shop on the ground floor admeasuring 350 sq.ft.  in the building to be developed thereon as consideration for transfer of development right of the said property within 15 months i.e on or before 11/3/2009. Shri. Rajendra died on 14/2/2009. Opponent Nos. 1 and 2 failed to complete the development of the said property. Hence, their development rights were assigned to the Opponent No.3. The new development agreement was executed by the complainant through the power of attorney. Opponent No. 3 had constructed ground plus four floors on the said property. He had handed over four flats to the complainant but the area of the flats was less than 500 sq.ft. The shop which was allotted to the complainant is also admeasuring 140 sq.ft. instead of 350 sq.ft. There was delay of one and half year for delivery of the said property to the complainant. Hence, complainant had sustained loss and rental income for 18 months. Opponents have failed to provide independent electricity meter to the said flats and shop, compound wall is not constructed, adequate water supply is not given, lift is not installed, copy of sanction plan is not provided, occupation certificate is not obtained, society is not formed, conveyance deed is not executed, compound wall is not constructed and there is inadequate water supply. There is leakage problem in flat No.101. It is the case of complainant that these facts are deficiency in service. Hence, complainant has filed present complaint and demanded Rs.3,50,000/- towards loss of rental income. They have prayed for compensation towards lesser area as agreed in the development agreement. They have prayed for direction to the Opponents to obtain occupation certificate, form and register co-operative housing society or condominium of apartments and to execute conveyance deed/apartment deed. They have prayed for direction to the Opponents to remove the  deficiencies as mentioned above. They have further prayed for Rs.50,000/- towards compensation for mental agony and inconvenience caused and cost of Rs.25,000/-.

[2]            Opponents resisted the claim by filing written version. They have denied the contents of the complaint. It is the case of Opponents that they have provided four flats and one shop admeasuring 2350 sq.ft. They have also provided electricity supply and water supply and removed leakage problem.  Complainant has not co-operated with the Opponents for completion certificate, sanction of plan and formation of society. They have ot given signature on transfer form. The adequate water facility is provided by constructing water tank. Complainant has not paid taxes and water charges. Opponents have prayed for dismissal of the complaint.

[3]            After scrutinizing the documentary evidence, pleadings, written argument and affidavits which are produced by the parties and hearing the argument following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-

Reasons

As to the Point Nos. 1 to 4-

[4]            It is significant to note that eventhough complainant has claimed that Opponents have provided the flats and shop having less area, no expert evidence such case measurement of flats and shop is produced by the complainant. It is the case of Opponents that they have provided the construction of 2350 sq.ft to the complainant which is equivalent with the terms and conditions in the agreement. This fact is not seriously disputed by the complainant by filing rejoinder or expert evidence. Hence, it is the opinion of the Forum that the complainant has failed to prove that the area which is supplied by the Opponents, is less area.

[5]            It is not much disputed by the Opponent that delay is caused for the delivery of possession of flats and shop. It reveals from the agreement that the entire construction was to be completed within 15 months. But it is alleged by the complainant that there is delay of 18 months. This fact is not seriously disputed by the Opponents. Hence, Complainant has claimed compensation of Rs.3,50,000/- as loss of rental income. Complainant has not produced any documentary evidence in order to establish that she might have received such rent. After considering the economy and rates of rent at present, it is the opinion of this Forum that, complainant is entitled to receive Rs.1,80,000/- as compensation for loss of rent income.    

[6]            It is the case of complainant that the Opponents have not provided separate electricity meter to the flats as well as shop. According to the Opponent the complainant themselves are guilty for not giving signature on transfer form. Hence, it is the opinion of the Forum that, the complainant is entitled to get this relief, if the complainant herself co-operates with the Opponents. It reveals from the pleadings of the Opponents that, the water tank of 20,000 ltrs is constructed for water supply. This fact is not denied by the complainant by filing rejoinder affidavit. Hence, it is held that this facility is provided and deficiency is removed.

[7]            As regards leakage, the complainant has not provided any expert evidence hence, complainant is not entitled for the relief as regards removal of leakage.

[8]            As per the provisions of Maharashtra Flat Owners Association Act, the builder is under obligation to constitute society or apartment as well as to execute conveyance deed. Opponents have not produced any evidence to that extent. Hence, this Forum held that, the Opponents have caused deficiency in service by not giving completion certificate, formation of society and execution of conveyance deed.

                In the result this Forum answers points accordingly and pass following order-

                                        :- ORDER :-

1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not providing completion certificate, forming co-operative housing society and executing conveyance deed as well as by not handing over possession of the property within the stipulated period.
3.  All the Opponents are jointly and severally directed to obtain completion certificate and hand over to the complainant, to form co-operative housing society and to execute conveyance deed within six weeks from the date of receipt of copy of order.
4. All the Opponents are jointly and severally directed to pay Rs.1,80,000/- [Rupees One Lakh Eighty Thousand only] to the complainant within six weeks from the date of receipt of copy of order.
5. All the Opponents are jointly and severally directed to pay Rs.10,000/- [Rupees Ten Thousand only] to the complainant within six weeks from the date of receipt of copy of order.
6. All the Opponents are jointly and severally directed to pay Rs.5,000/- [Rupees Five Thousand only] to the complainant within six weeks from the date of receipt of copy of order.
7. All the Opponents are jointly and severally directed to construct compound wall,  lift,  and supply copy of sanction plan to the complainant within six weeks from the date of receipt of copy of order.
8. Both parties are directed to collect the sets which are provided for the Hon’ble Members.

Copy of order be supplied to both the parties free of cost.