ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE
(BEFORE :- PRESIDENT :- Smt. Pranali Sawant )
MEMBER :- Smt. Sujata Patankar )
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Complaint No. : APDF/34/2008
Date of filing :- 02/04/2008
Date of decision :- 25/11/ 2011
“Sai Krupa” Apartment Through its flat holders .. )
Authority Holder :- .. )
Mr. Lucas Michael Arokiyan, .. )
Saikrupa Apt, Pimple Gurav, Pune. .. )COMPLAINANT
: versus:
M/s. Vijay Constructions, .. )
Through its Proprietor, .. )
Mr. Chandrakant Sarjerao Shinde, .. )
R/at :- Akshay Building, 2nd Floor, .. )
Opp. Poona Motors, Pimpri, .. )
Pune – 18. .. )OPPONENT
For Complainant : In person
For Opponent : Ex-parte
Per : Smt. Sujata Patankar, Member
//JUDGMENT//
[1] The facts giving rise to the complaint briefly stated are as follows :-
The Complainant is the authority holder of the flat purchasers. The Opponent is promoter and builder, who has floated housing construction scheme at Survey No.52, Hissa No. 1/7, C.T.S. No. 1108, situated at Pimpale Gurav, Tal. Haveli Dist. Pune. The Opponent had agreed to sell to the Complainant a flat under the registered agreement. It is the contention of the Complainant that the Complainant has duly paid to the Opposite Party the entire consideration amount as per the agreement. It is further contended that the Opponent handed over the possession of the flat to the Complainant in the month of March 2005. On taking over the possession of the flat the Complainant noticed various defects in the construction work carried out by the Opponent, which are as follows :-
a) There is no access to the overhead water storage tank. Hence the cleaning and maintenance of the overhead water storage tank is impossible. And the water tax of the PMC is till yet in the name of the Opposite Party. And it is huge because such tax includes the tax before the possession of the Complainant. It is the duty of the Opposite Party to pay the tax till March 2005. And to transfer such tax in the name of the Complainant.
b) There are no tank covers to the underground and overhead water storage tanks as result, the potable drinking water get polluted and contaminated. When this defect was pointed out to the Opposite Party, he agreed to carry out the necessary repairs. However he has not yet carried out the work. Estimated costs of repairs for the same are of Rs.3000/-.
c) There is no plaster to compound wall to the entire building premises from both the sides. In the brochure published by the Opposite Party, at Survey No. 15 thereof he has specifically assured that he shall provide an attractive compound wall with M.S. Entrance gate. The Opposite Party is avoiding carrying out the said work. The estimated cots for carrying out this work is to the tune 40,000/-.
d) There of the Opposite Party assured to provide water through bore well facility. However the same is not yet made operational and as such, there is an acute shortage of water.
e) There is no safety grill for MSEB electric meters. Inspite of assurance the Opposite Party has failed to provide the same. The estimated cost for the same are of Rs.15,000/-.
f) There was no “Chhajja” to the entire garden. Inspite of the Complainant’s repeated request the Opposite Party did not carry out the said work hence, the Complainant carried out the said work at his own expenses for which, he had to spent an amount of Rs.500/-.
g) Inspite of repeated requests, the Opposite Party did not furnish the requisite documents such as, commencement certificate.
h) Till yet the Complainant did not execute the conveyance deed.
Hence the Complainant prays,
a) It may be declared that there is deficiency in service on the part of the Opposite Party.
b) The Opposite Party may be directed to remove the defects in the construction work as pointed out in para no. 4(a) to (h) in the complaint.
c) The Opposite Party may be directed to submit the property either to the provisions of the Mahrashtra Apartment Ownership Act, 1970, be executing and registering the requisite declaration, as provided in the said act and to convey the title etc.
d) The opposite Party may be directed to pay to the Complainant an amount of Rs.25,000/- on account of compensation towards physical and mental harassment. The Opposite Party may be directed to pay costs of Rs.5000/- to the Complainant.
e) Other just and proper order may be passed against the Opposite Party.
[2] The complaint itself is supported with affidavit. Alongwith the complaint application supported with the affidavit, the Complainant has also filed application for the interim relief. Alongwith other contentions mentioned therein the Complainant has prayed to direct the Opponent to pay the water tax or to give the temporary water supply to the flat holder i.e. all the Complainant. The Complainant has also filed documents, such as, authority letter, Agreement dtd.4/4/2005, Commencement Certificate etc..
[3] The notice sent to the Opponent R/on 10/9/2008 is returned unserved with the postal remarks “Incomplete Address R to Sender”. Therefore, on 14/10/2008, the Complainant filed application praying for permitting to publish Public Notice. Accordingly, the Public Notice was published in the newspaper “Rashtratej” on 24/10/2008. Therefore, this Forum has passed ex-parte order as against the Opponent on 2/2/2009.
[4] On 16/2/2009, the Complainant has filed amendment application supported with the affidavit, in which it is stated that the Complainant want to make the amendment or want to add in the prayer para no. (a) that the Opponent till yet not transfer the water tax in the name of the Complainant and also didn’t done any action to do the water tax as the residential hence order may be passed against the Opponent to clear the water tax till yet and transfer the water tax in the name of the Complainant residential. The Complainant also filed list of documents, such as, notice dtd. 1/9/2008, water tax receipt dtd.27/10/2008, cheque dtd.27/10/2008.
[5] On 22/4/2009, the Advocate for the Opponent filed application stating therein that in R.P. No. 54/09 Hon’ble State Consumer Disputes Redressal Commission, Mumbai granted ad-interim stay by order dtd.21/4/2009 to the further proceedings in complaint No. 34/08. However, by order dtd.7/4/2010, Hon’ble State Consumer Disputes Redressal Commission, Mumbai dismissed the R.P. No. 54/09.
[6] The Complainant filed application dtd.16/11/2011, stating therein that the Complainant has no complaints regarding incomplete construction. Now the Complainant is interested in obtaining Completion Certificate, Conveyance Deed and other relevant legal documents which are necessary to obtain from the Builder to Flat Purchaser.
[7] Taking into consideration, the complaint, affidavit and purshis on the record, the following points arose for our consideration :
Points Answers
1) Whether the Opponent has rendered deficiency
in service to the Complainant? … Yes.
2) What order? … As per final order.
[8] Point No.1 :- On perusal of the complaint application as also on perusal of the entire record it is crystal clear that the ex-parte orders are passed against the Opponent on 2/2/2009. It is evident that the Opponent instead of appearing before this Forum approached before the Hon’ble State Consumer Disputes Redressal Commission, Mumbai and filed R.P. bearing No. 54/09. The Hon’ble State Consumer Disputes Redressal Commission, Mumbai has dismissed the Revision Petition on 7/4/2010. Even thereafter neither the Opponent remained present in the Forum nor filed application for setting aside ex-parte orders passed as against them alongwith W.S., affidavit. Therefore sum and substance in the present case is that the matter is without written version of the Opponent. As the Opponent did not file the written statement, the uncontroverted statements made by the Complainant on affidavit are required to be relied and acted upon.
[9] The contentions made by the Complainant in the application dtd.16/11/2011 that the Complainant has no complaints regarding incomplete construction therefore without going into merit part of the complaint as regards incomplete construction, we are only considering the points such as, Completion Certificate, Conveyance Deed and other relevant legal documents which are necessary to obtain from the Builder to Flat Purchaser.
[10] In this respect we opined that under the provisions of Mahrashtra Ownership Flats Act, it is the duty of the builder to handover the necessary legal documents to the Society within the stipulated period after possession. It appears that the Opponent handed over the possession of the flats long back in the month of March 2005, however till today the Opponent failed to handover the Completion Certificate and conveyance deed. Thus the Opponent has not handed over the Completion Certificate as also not executed conveyance deed, the Opponent has failed to render deficiency in service. Therefore, we answer the point No.1 accordingly. In support of this, we are relied upon the provisions of relevant Sections of Maharashtra Ownership Flats Act, 1963, which is as follows :-
The provisions of Section 10 of The Maharashtra Ownership Flats Act, 1963 “Promoter to take steps for formation of co-operative society or company” quotes as follows :-
“ As soon as a minimum number of persons required to form a co-operative society or a company society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who taken the flats as a co-operative society, or as the case may be, as a company ………………………….
The Section makes it obligatory for the Promoter to submit an application to the Registrar for registration of a Co-operative society or a Company as the case may be, as soon as a minimum number of persons required by law to form a Co-operative Society or a Company have taken flats from the Promoter. The liability of the Promoter under the section comes into existence as soon as the minimum number of persons have taken flats from the Promoter. Rule 8 of the Maharashtra Ownership Flats Rules, 1964, prescribes a period of four months within which the Promoter is required to make an application to the Registrar for registration of the organization of persons who take the flats a s a Co-operative Society, or a Company, as the case may be, from the date on which the minimum number of persons required to form such organization have taken flats”.
The provisions of Section 11 of The Maharashtra Ownership Flats Act, 1963 “Promoter to convey title, etc., and execute documents according to agreement” quotes as follows :-
“ A promoter shall take all necessary steps to complete his title and convey, to the organization of persons who take flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat-takers [or apartments owners], his right, title and the interest in the land and building, and execute all relevant documents therefore in accordance with he agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.
On the registration of Co-operative Society or a Company, as the case may be, being effected as provided by section 10, the promoter is under a further obligation to take all necessary steps to complete his title to the said property and to convey his right, title and interest in the land and the building to a Co-Operative or a Company, as the case may be, within the prescribed time. The Promoter is further under an obligation to execute all the relevant documents to complete the conveyance within the period stipulated in the agreement, and in cases where no period is provided for by the agreements, within the period prescribed by rules framed by the Government of Maharashtra. The Government has prescribed four months period within which the Promoter shall convey the property to a Co-Operative Society or a Company, as the case may be, and to execute a conveyance in favour of such a Co-Operative Society or a Company from the date on which such Co-operative Society or the Company is registered……………………..”
[11] The Complainant filed amendment application for inserting in the prayer para no.(a) stating therein that the Opponent till yet not transfer the water tax in the name of the Complainant and also didn’t done any action to do the water tax as the residential hence order may be passed against the Opponent to clear the water tax till yet and transfer the water tax in the name of the Complainant as a residential. In this context, the Complainant has filed water tax bill dtd.27/10/2008 alongwith the notice dtd.1/9/2008. It is evident that in the notice dtd.1/9/2008 of Pimpri Chinchwad Municipal Corporation reveals that the water connection for the Complainant is in the non-residential capacity. However the Complainant had not taken any steps regarding amendment application. Therefore, the prayers in the amendment application is not taken into consideration.
[12] The Opponent handed over the possession to the Complainant in the year March 2005 but failed to convey the property in favour of the Society till today. After filing of this complaint also the Opponent has not taken any steps regarding conveyance deed and Completion Certificate. The Complainant as per their receipt dtd.27/10/2008 deposited the amount of Rs.41,615/- for non-residential water tax, it is the prayer of the Complainant that because of the non residential water connection taken by the Opponent, the Complainant has to bear huge amount and therefore the Complainant wants to change in the record of PCMC as a residential water connection and also to charge the water tax as a residential. The Complainant wants to change the name of the Opponent and to insert the name of the Complainant in the water tax bill, which is shown in the water tax receipt as per record. In this respect though the amendment application is not considered as discussed earlier para, it is evident that the Complainant in the complaint application itself has sought the relief of (3) (a) page 2, which is justifiable in the eyes of law. For that purpose also the Opponent has not taken steps after demand from the Complainant, which amounts to deficiency in service. Therefore it is obligatory on the part of the Opponent to transfer the water connection as a residential and to remove the name of the Opponent from PCMC record as regards water tax.
[13] The Complainant filed this complaint in the year 2008 for defects in the construction, about water tax and also for the conveyance deed and Completion Certificate. Now at present, the Complainant has relinquished their prayers regarding defective work. But for rest of the prayers till date, the Complainant appeared before the Forum and persuade the matter long back for seeking reliefs for which the Complainant has filed this complaint against the Opponent. Moreover, the Complainant has to sustain cost of proceedings and also suffered mental and physical harassment due to the non execution of documents by the Opponent. Hence the Complainant is entitled to recover compensation of Rs. 25,000/- alongwith cost of Rs.5,000/-.
It is noticed earlier by this Forum that the application for production of document and also list of documents were not signed by the Complainant. Today i.e. on 25/11/2011, the Complainant has filed application for permission to sign the documents and the order is passed on the application today itself. The Complainant is permitted to sign the application and list of documents. In view of the order, the Complainant has complied the same today only.
With the aforesaid discussion, we proceed to pass the following order
// ORDER //
(1) The complaint is partly allowed.
(2) The Opponent is directed to handover Completion Certificate in the name of Complainant.
(3) The Opponent is directed to execute Conveyance Deed in the name of Complainant.
(4) The Opponent is directed to change the water connection as a residential and insert the name of the Complainant in the PCMC record.
(5) The Opponent is directed to pay Rs.25,000/- towards compensation and cost of Rs. 5,000/- of the proceedings to the Complainant.
(4) The Opponent is directed to comply the aforesaid order within a period of (40) days from the date of receipt of this order.
(5) Certified copies of this order be furnished to the Complainant and the Opponents free of costs.
(Smt. Sujata Patankar) (Smt. Pranali Sawant)
MEMEBR PRESIDE NT
ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE.
Place : Pune
Date : 25/11/2011