PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant/Society under section 12 of the Consumer Protection Act, 1986.  According to the complainant, the complainant is the registered society.  The O.P.No.1 is the registered partnership firm.  The O.P.No.1 & 2 are engaged in the business of builders and developers. The O.P.No.3 is the Architect appointed by the O.P.No.1 & 2 for preparation of structural design and drawing of the building.  The O.P.No.1 & 2 started project of Atlanta Heights in the year 2000-2001.  Initial permission for construction was granted upto 10^th Floor and thereafter permission was extended upto 15^th Floor.  There was negligence on the part of the opponents in construction work.  The building was partially completed till April-2005.  There was no fire fighting system installed by the opponents. The installation of lifts was also not proper. The O.P.No.1 & 2 sold the flats for valuable consideration with assurance to get the Occupation Certificate. The complainant/society was registered on 31^st May, 2006. The O.P.No.1 & 2 failed to execute conveyance deed in favour of the complainant as per the provision under section 11 of M.O.F.A. The O.P.No.1 & 2 is avoiding to execute the Conveyance Deed thereby the members of the society are suffering.  In spite of several requests, the opponents are giving false assurance to comply with their contractual and statutory obligation.  The following work in respect of the building is still incomplete.

1. Finishing in front of the building as per architectural plans and lighting
2. Windows of utility ducts to be closed with proper materials
3. There are leakages from the drainage system in the basement area and whole basement stinks
4. Handrails for stairs at ground, podium and first floor level not done at all posing serious safety hazard
5. Finishing of walls in all passengers at each floor, which are chased for concealed conduits and finished near the lifts not done
6. No ventilation at staircase landing windows posing health hazards
7. Finished of the doors and fixing of door handles and latches for shaft closing doors and emergency exit doors on all floors
8. Finished works on the ground floor and podium lobbies
9. Due to poor quality of workmanship, the pipes keep leaking at several places now and then.  One of the major problems is in the utility shafts, where owing to water hammer arrestor and pressure reducing valves are malfunctioning which require immediate rectification
10. Number plates for all the flats
11. Fire fighting work and fire alarm system with necessary pumps

The estimated expenses for the above work is about Rs.13,50,000/-.  In spite of several requests, the opponents failed to complete the work and to obtain the Occupation and building Completion Certificate and to execute Conveyance Deed in favour of the complainant/Society.  There is some difference of opinion and disputes between the O.P.No.1 and 2 with the O.P.No.3.  The O.P.No.3 is not cooperating and creating obstacles.  The O.P.No.3 is also shirking his responsibility. As the opponents failed to comply with their contractual and statutory obligation there is deficiency in service therefore the complainant has filed this complaint to direct the opponents to pay a sum of Rs.13,50,000/- to rectify the unfinished work.  The opponents be directed to obtain the Occupancy Certificate and Building Construction Certificate. The O.P.No.1 & 2 be directed to execute Conveyance Deed in favour of the complainant/Society.  The opponents be directed to handover the original documents to the complainant/Society and to pay compensation of Rs.5 Lakhs towards mental agony and hardship suffered by the members of the society.  The complainant has also claimed cost of Rs.1 Lakh.

2)                The O.P.No.1 and 2 appeared and filed their written statement.  It is submitted that the complainant is not the consumer and this complaint is not maintainable. There is no resolution in favour of the complainant. The construction of the building work was completed in the year-2005. The opponents rehabilitated old tenants in the building and sold the free sell flats. The flat purchasers accepted possession without any demur. The flat purchasers confirmed that they are satisfied with the construction work while taking possession of their flats. These opponents have complied with all obligations under agreement. The flat purchasers have not made any demand against these opponents. The defect in the building was not brought to the notice of these opponents.  The complainant and it members have waived their right to make any claim or demand.  These opponents complied with all formalities for Occupation Certificate and applied for the same to M.C.G.M. The M.C.G.M. has scrutinized all individual flats and found some irregularities in certain flats. Therefore, Occupation Certificate is not issued.  Unless such irregularities are removed by defaulting flat purchasers the M.C.G.M. will not issue Occupation Certificate.  In spite of requests by these opponents, the respective flat purchasers did not remove the irregularities. Therefore, there is delay in obtaining Occupation Certificate. These opponents have paid charges for amenities and water.  The complainant and its members are responsible for the present situation.  All the other allegations are denied.  Though the construction of the building is complete in all respect, Occupation Certificate is delayed due to non cooperation of some of the members of the complainant/Society.  It is denied these opponents are avoiding to comply with the statutory obligation. There is no deficiency in service on the part of these opponents therefore the complaint is liable to be dismissed with cost.

3)                The O.P.No.3 appeared and filed his written statement.  It is submitted that this O.P. was appointed as Architect by the O.P.No.1. The O.P.No.1 sought resignation of this opponent therefore he tendered his resignation vide letter dated 8^th February, 2006.  The claim is for the negligence of the developer and not of this opponent.  Therefore, the complaint is liable to be dismissed against this O.P.

4)                The complainant filed affidavit of evidence and produced the documents in support of his claim.  The opponents filed their written statement but failed to file their affidavit of evidence in support of their defense.  They have also not produced any document on record. After filing their written statement, the opponents remained absent therefore the matter was proceeded in their absence without their affidavit of evidence.  After hearing the learned advocate for the complainant and after going through the record, following pints arise for our consideration.

POINTS

REASONS

5) As to Point No.1 & 2 :- The complainant has produced the copies of resolution for filing this complaint. Therefore, the objection taken by the complainant is not tenable. It is not disputed that the O.P.No.1 &2 are the builders and developers and the O.P.no.3 is the Architect.  There is no dispute that the O.P.No.1 & 2 constructed the building and handed over the possession to the flat purchasers. The flat purchasers formed the society which is registered. Under the provisions of M.O.F.A., the O.P.No.1 &2 are bound to comply with the statutory obligations including obtaining Occupation Certificate, Building Completion Certificate and Execution of Conveyance Deed in favour of the society and to handover original relevant documents to the complainant/Society.  Admittedly, there is no Occupation Certificate, Building Completion Certificate obtained by the opponents and they have not executed Conveyance Deed in favour of the complainant/Society.  According to the O.P.No.1 & 2 these Certificates could not be obtained as some of the flat purchasers committed irregularities in their flats.  The O.P.No.1 and 2 have not lead any evidence to support their contention.  Being the Builder/Developer, it is statutory obligation to obtain these certificates.  They can not avoid their liability by saying that some of the flat purchasers committed irregularities.  Moreover, the opponents have not lead any evidence to that effect.

6)                According to the complainant, following work is incomplete.

1. Finishing in front of the building as per architectural plans and lighting
2. Windows of utility ducts to be closed with proper materials
3. There are leakages from the drainage system in the basement area and whole basement stinks
4. Handrails for stairs at ground, podium and first floor level not done at all posing serious safety hazard
5. Finishing of walls in all passengers at each floor, which are chased for concealed conduits and finished near the lifts not done
6. No ventilation at staircase landing windows posing health hazards
7. Finished of the doors and fixing of door handles and latches for shaft closing doors and emergency exit doors on all floors
8. Finished works on the ground floor and podium lobbies
9. Due to poor quality of workmanship, the pipes keep leaking at several places now and then.  One of the major problems is in the utility shafts, where owing to water hammer arrestor and pressure reducing valves are malfunctioning which require immediate rectification
10. Number plates for all the flats
11. Fire fighting work and fire alarm system with necessary pumps

7)                The opponents have not lead any evidence to show that the above work is completed. It is the responsibility of the opponents to complete the abovesaid work.  As they failed, they are bound to complete the incomplete construction.  The complainant has claimed compensation of Rs.13,50,000/- to complete the incomplete work.  It is the responsibility of the O.P.No.1 & 2 to complete the incomplete work therefore direction can be given to the O.P.No.1 & 2 to complete the work.  Hence, it is not necessary to give direction to the O.P.No.1 & 2 to pay compensation to complete the work. 

8)                As discussed above, it is the statutory and contractual liability of the O.P.No.1 & 2 to complete the construction work and to obtain Occupation Certificate, Building Completion Certificate and to execute Conveyance Deed in favour of the complainant and also to handover the original relevant documents to the complainant/Society.  According to the O.P.No.3, he has already resigned and his resignation was accepted by the O.P.No.1 & 2 therefore responsibility can not be fixed on him.  As the O.P.No.3 is no more Architect, it is not necessary to give any direction against the O.P.No.3. Besides this, the complainant/Society is entitled for the compensation for mental agony as the O.P.No.1 & 2 failed to comply with the statutory and contractual obligation in spite of several requests by the complainant/Society.  The complainant has claimed compensation of Rs.5 Lakhs which is excessive. We think compensation of Rs.50,000/- will be the reasonable compensation. The complainant/Society is also entitled for the cost of this proceeding Rs.10,000/-.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed.
2. The O.P.No.1 & 2 are directed to obtain Occupation Certificate and Building Completion Certificate within a period of six months from today and execute the Conveyance Deed in favour of the complainant/Society within a period of two months.
3. The opponents are directed to handover all the relevant documents to the complainant/Society within a period of two months from today.
4. The O.P.No.1 & 2 are further directed to pay Rs.50,000/- (Rs.Fifty Thousand Only) to the complainant/Society as compensation for mental agony and Rs.10,000/- (Rs.Ten Thousand Only) as cost of this proceeding within a period of two month from today.
5. Copies of this order be sent to the parties free of cost. 

Pronounced on 10^th September, 2014