Per Shri Dhanraj Khamatkar – Hon’ble Member:

(1)          This appeal takes an exception to an order dated 05.08.2010 passed by Consumer Disputes Redressal Forum, Mumbai Suburban District (in short ‘Forum below’) in consumer Complaint No.25/2004, Evergreen Co.op.Hsg. Society Ltd. V/s.Ms.Bhavna Vyas (Proprietor), M/s.Vinayak Enterprises.

(2)          Facts in brief leading to this appeal can be summarized as under:

The members of Appellant/Complainant Society had booked the flats to be constructed by the Respondent/Original Opposite Party in C.T.S. No.678, Survey No.130 and  Hissa No.13 at Village Eksar, Taluka - Borivali, Mumbai Suburban District.  Accordingly flats were constructed and the members of Appellant Society had taken the possession of the flats in the year 1992.  In the year 1993-94 the housing society was registered.  However, the Respondent/original Opposite Party had not conveyed the properties in the name of the Appellant Society.  The Appellant Society vide letter dated 22.11.2003 had sent draft of conveyance to the Respondents, however, the Respondents have not conveyed the property in the name of the Society.  Conveying the property in the name of the Appellant is the legal responsibility of the Respondent.  However, they have not discharged their legal responsibility.  Hence, the Appellant had filed consumer complaint praying for conveyance directing the Respondents to pay the legal charges of the High Court and Civil Court matters and the costs.  The Forum below after hearing both the parties have partially allowed the complaint, directing Respondent/original Opposite Party to convey the property in the name of the Appellant/original Complainant, keeping the right on the 20 ft. road for the plot no.678-C and the Respondent to pay cost of Rs.3,000/- vide order dated 05.08.2010.  It is against this order that the present appeal is filed by the original Complainant.

Ld.Advocate for the Appellant contended that the Respondent had not even filed the written statement before the Forum below for six years.  However, the Forum below had not granted the reliefs as prayed by the Appellant.  The Society is formed in the year 1994 and as per the provisions of Maharashtra Ownership Flats Act, the Respondent should have conveyed the property within a period of four months.  At the time of formation of the Society there was no reservation in the plot.  The Ld.Counsel further contended that there is no sanctioned plan showing reservation of 20 ft. wide road.  However, the Forum below had erred in directing conveyance with a approach of 20 ft. wide road.  In earlier proceedings before the Consumer Commission the Respondents have shown willingness to convey the property in the name of the Appellant.  Building plan annexed by the Respondent with Application dated 27.05.2010 does not show any sub-division of the original C.T.S. No.678.  However, the Forum below had passed the order considering that there is a sub-division of the original plot no.678.  The observation of the Forum below that Appellants were aware of the reservation is erroneous.  The Forum below failed to take into consideration that in earlier proceedings before the consumer Commission that the Respondent had to pay compensation of Rs.8,00,000/- still the Respondent had continued the present deficiency.  The Counsel further argued that the Forum below had made observations relying on architect’s certificate which cannot be read in the absence of supporting documents  issued by  the  sanctioning authority. Therefore, the
Advocate  prayed  that the appeal may please be allowed and the Respondent be directed to execute conveyance in the name of the Appellant Society.

(3)          The Ld.Counsel on behalf of Respondent had supported the order and requested to dismiss the appeal. 

(4)          Admittedly, the members of Appellant/original Complainant had booked the flats in C.T.S. No.678 and they have taken the possession of the flats in the year 1992.  It is not disputed that the Appellant Society is formed in the year 1993-94.  From the order of the Forum below, it is seen that there was Civil litigation between the parties and initially the civil suit filed by the Appellant has been dismissed and on the dismissal of the suit the Appellant had filed an appeal and the same is pending before the High Court.  The Appellant Society had also filed consumer Complaint No.106/2004 and the matter went upto the National Commission and the Appeal filed by the Respondents/original Opposite Party has been dismissed.  In the complaint filed before the Forum below the prayer is only the conveyance of the property in the name of the Society.  No doubt, there are other prayers, however, the Forum below had not given any relief on the other prayers.  The Respondent/original Opposite Party had filed a copy of an agreement executed with the owner of Plot No.302.  Paragraph 7of the said agreement says that:

“The said larger Property is affected under the provisions of the Town Planning Act and a portion of the said larger property – admeasuring approximately 1081.75 square meters is in residential zone and an area admeasuring 1196.50 sq.meters is under reservation for school and the balance area of 276.75 sq.meters is reserved for recreation.”

From the said paragraph it is clear that, at the time of execution of agreement it is specifically mentioned that the property is affected by the Town Planning Scheme and the portion of the said larger property admeasuring approximately 1081.75 sq. meter is shown under residential and area admeasuring 1196.50 is shown under reservation for school and balance area of 276.75 sq.meters is reserved for the recreation.  The Respondent had filed architect’s certificate to confirm this factual position. From the plans filed by the Respondent this fact is confirmed. 

(5)          Forum below after taking into consideration all these material facts have passed an order.  We do not find any infirmity in the order passed by the Forum below.  However, the Forum below had not given time limit for executing the order.  Therefore, we are of the view that time limit is required to be given to the Respondent for executing conveyance deed.  We hold accordingly and pass the following order:

O  R  D  E  R

       (i)     Appeal is partially allowed. 

     (ii)     The impugned order is modified as under:

The Respondents are directed to execute conveyance deed within a period of two months from the receipt of this order.

   (iii)        Except for this modification impugned order stands confirmed.

   (iv)        In the given circumstances, parties to bear their own costs.