Per Smt.S.P.Lale, Hon’ble Member
This complaint has been filed by the society namely Shiv Shakti Co-op. Housing Society Ltd., Shankar Wadi, Jogeshwari (East), Mumbai 400 060 alleging deficiency in service on the part of opponent/Builder M/s.Akruti Nirman Pvt.Ltd. Sion (West), Mumbai 400 022. Complainant is represented by the members of the Society and the complainant states that members of the complainant society are the owners of the piece of land situated at C.T.S.no.330 (Part) in Registration District and sub-District of Mumbai, Mogra village, Jogeshwari (East), Taluka Andheri admeasuring approximately 814 sq.mtrs. The said property is covered under the Slum Rehabilitation Authority.
According to complainants, they entered into an agreement with opponent in the month of December 1993. As per clause no.28 of the said agreement, it is clearly stated that the developers estimate the time of completion of 24 months for the whole project after the date of receipt of commencement certificate from the Municipal Corporation of Greater Bombay. Said clause clearly states that the said project will be completed within two years. Complainants have alleged that opponent has constructed the building very late with total 76 flats out of which 30 flats were given to the society and rest of 46 flats were owned by the opponent The members of the complainant society had personally visited the said property to see the progress of the project, but they were surprised to see no sign of construction work carried out on the said property for remaining flats.
Complainants further state that there was no obstruction of whatsoever nature in starting the project, then also opponent took nearly three years to get sanctioned and approved the requisite plans of the development of the said property. According to complainants, opponent informed the complainants in January 1997 that since they will be starting the construction work of the society building, the members of the complainant society should vacate their respective tenements with immediate effect. The opponent specifically agreed that possession of the respective flats would be handed over within 12 months from the date of members of the society shifting to transit camp.
The complainants further state that all the members have handed over quiet, vacant and peaceful possession of the said property to the opponent for development under the Slum Redevelopment scheme in May 1997. The members of the complainant society had shifted to the transit camp on the assurance that the opponent will complete the work within 12 months. However, when the members of the complainant society started living in the transit camp, they had faced various difficulties. Basic amenities like water, electricity, drainage system were not provided in the said transit camp by O.P. The opponent wrote letter dated 30/9/1998 to the complainant stating that possession of the building will be ready by 31/3/1999, which was exceeding the period mentioned in the Agreement.
Thereafter, complainant also wrote letter dated 22/07/1999 to opponent requesting them to complete the balance work inside the building. Complainant also received a letter dated 04/10/1999 from the opponent regarding allotment of the rooms to the members of the said building. In their reply complainant wrote a letter dated 12/10/1999 to opponent pointing out that still 40% of the construction work is not completed and, therefore, allotment of the said flats is not possible. Complainant asked for certain other details regarding electricity and water connection and other necessary things, but opponent failed and neglected to complete all the defects pointed out by the members of the society before taking possession vide its letter dated 22/7/1999, 04/10/1999 and 12/10/1999. Finally, complainant received a letter dated 26/5/2000 from the opponent regarding allotment of the flat to the members of the society as said building is ready for occupation. Opponent handed over possession of the flat to the complainant in the year 2000 without obtaining Occupation Certificate and without having water facility. According to complainant, this is a clear cut deficiency of service on the part of opponent.
The complainant took possession of the said flat as they were in great inconvenience in the said transit camp for almost 40 months. To get rid of the transit camp and as they were left with no option, they occupied their new flats without proper water facility thinking that it will be more comfortable than the life in the said transit camp. Complainants allege that the opponent harassed the members of the complainant society. The members of the complainant society have suffered and underwent stress for all the time as they had to live in transit camp without proper amenities and shortage of water and electricity. Therefore, complainants are left with no option but to file present consumer complaint before this Commission with following prayers:-
“a) To hold and declare the opposite party to be guilty of deficiency in service and engaged in unfair trade practice.
b) To direct the opposite party to pay `50,000/- to each member (i.e.27 members) of the society towards compensation for mental agony and harassment as they have to live in the transit camp for 40 months without having the basic amenities of life to give in the name of the society.
c) To direct the opposite party to pay the complainant `10,000/- towards the cost of this complaint.”
Opponent through its C.A. Ms.Rasika Bagkar filed written statement and pleaded that complainant has not resorted to the remedy of the arbitration as provided in Clause 44 of the Agreement dated 03/12/1993 and pleaded that complainant has miserably failed to keep their promises and put obstacles in smooth development of the construction work. Though Agreement was executed on 03/12/1993, the actual work was started with the consent of the complainant on 04/3/1997, when the Commencement Certificate was issued by the Slum Rehabilitation Authority. Opponent from time to time kept informing about the progress in the work and had submitted relevant documents to the complainant.
It is further pleaded by O.P. that from starting of the work on 04/3/1997, there was obstruction from the members of the complainant society members, as also there was obstruction from neighboring plot occupiers who did not allow construction/development work. Due to all these reasons there was waste of about 4 years and construction could not be proceeded /started by the opponent. Ultimately, in the year 1997, complainant handed over possession of 27 tenements to the opponent. The opponent further pleaded that the work of the construction was beyond the control of the opponent Prior to 1998 or even upto 1999 there was no separate PR card for property of complainants society. The opponent has made strenuous efforts to get separate PR card in the name of society. Therefore, all allegations made by complainant about delay is incorrect and hence, it is denied by the opponent.
It further pleaded that part Occupation Certificate was issued by Slum Rehabilitation Authority (S.R.A.) dated 01/6/2000 and the full occupation certificate is not received yet from SRA. Separate PR card is still not issued in the name of the society. It was the responsibility of the complainant society to procure separate property card and, therefore, opponent finally prayed for dismissal of complaint.
Heard Ms.Rashmi Manne-Advocate @ Mr.U.B.Wavikar-Advocate for the complainant and none for the opponent.
On the basis of these pleadings following points would arise for our determination. Points for our determination and our findings thereon are as under:-
1. Whether complainant can file consumer complaint before this Commission, despite the fact that there is arbitration clause in the agreement executed between the parties?
Answer : YES.
2. Whether complainant proves that opponent is guilty of deficiency of service by giving delayed possession/possession given without obtaining full Occupation Certificate?
Answer : YES.
3. Whether complainant is entitled to compensation for mental agony, harassment?
Answer : YES.
4. What order?
Answer: As per final order.
Complainant can file a consumer complaint before the Consumer Fora/Commission despite the fact that there is an arbitration clause in the agreement executed between the parties. Hon’ble Supreme Court in the case of Secretary, Thirumurugan Co-op. Agricultural Credit Society v/s. M.Lalitha (Dead) through L.Rs & others I (2004) CPJ 1(SC) held “complaints made before District Fora are maintainable and District Fora has jurisdiction to deal with the dispute and arbitration clause is no bar.” for filing consumer complaint.
Hon’ble National Commission in the case of National Seeds Corporation Ltd. v/s. PV Krishna Reddy I (2009) CPJ 99 (NC) also held that existence of arbitration clause in agreement, is no bar for adjudication of complaint by Fora. Therefore the present complaint is maintainable before this Commission.
Opponent/Builder had entered into a development agreement dated 03/12/1993 with the complainant society. As per Clause no.28 opponent promised to complete the construction work and hand over possession of the individual premises to the complainant within 24 months from receipt of the commencement certificate. From 1993-1996 there was no progress in the construction work. Opponent also failed to take necessary steps as per the development agreement dated 03/12/1993. In the month of May 1997, complainant shifted to the transit camp. In the said transit camp no proper basic amenities like water, electricity, etc. were provided by the opponent. Opponent on 30/09/1998 informed to the complainant that the subject premises would be ready for possession by 31/3/1999 but failed to give possession as promised. However, opponent gave possession of the flats to all the members on 17/7/2000 without obtaining full Occupation Certificate. Opponent obtained part Occupation Certificate on 01/6/2000. After taking possession of the premises, complainant noticed that there is no water facility and electricity provided by the opponent to the complainant. This is a clear cut case of deficiency of service on the part of the opponent As per provisions of the Maharahstra Flat Ownership Act 1963, opponent is under mandatory and statutory obligation to obtain full Occupation Certificate from the concerned authority before giving possession of the flat. opponent painted rosy pictures and induced the complainants to vacate their premises and occupy the transit camp. Said transit camp was hazardous, unsafe and not habitable. Opponent handed over possession to the complainants without providing water supply, electricity and without obtaining full Occupation Certificate. The above deficiencies were committed by O.P. which is gross deficiency in service on the part of opponent However, the complainants have not prayed in the complaint for Occupation Certificate. Still we direct opponent to obtain Occupation Certificate within two months since it is a statutory liability of the builder to obtain Occupation Certificate before giving possession of the flat to the complainants. Without Occupation Certificate there is no legal possession. Under the circumstances, we are inclined to award `50,000/- to all the members of the society towards compensation for mental agony and harassment. We, therefore, record our finding on the point nos.1, 2, 3 & 4 in the affirmative and proceed to pass the following order:-
ORDER
1. Complaint is allowed.
2. Opponent is directed to pay `50,000/- as compensation for mental agony and harassment to each of the complainant.
3. Opponent is further directed to pay to each of the complainant `10,000/- towards cost and opponent to bear their own cost.
- Opponent is further directed to obtain Occupation Certificate within two months after receipt of this order.
- The above order shall be complied with within 30 days from the date of receipt of the order.
- Copies of the order be furnished to the parties.
Pronounced
Dated 25th November 2010.
