BEFORE

HON'BLE MR SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR SADHNA SHANKER, MEMBER

For the Complainants           Mr Jatin Dhawan, Advocate with

                                        Mr Shubham Kumar, Advocate

For the Opposite parties       Mr Joseph Vaz, Advocate and

                                        Mr Daleep Dhyani, Advocate for OP 1 to 3

ORDER

PER MR SUBHASH CHANDRA

1.     This Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in services, unfair trade practices and unethical conduct by the opposite parties in respect of flat nos. G 401 and G 402 booked by the complainants with the opposite parties in their project named “Martins Palm Fringe”, at Taleigao, Tiswadi, Goa. This order will also dispose of CC no.529 of 2018 filed through General Power of Attorney. As the grievances raised and relief sought are fairly similar and pertain to the same project, it is proposed to dispose both the Consumer Complainants by a common order. For the sake of convenience CC no. 811 of 2020 is taken as the lead case.

2.     Opposite party contested the complaint by way of rejoinder/ written version. Parties led their evidence and filed their affidavits in support. Both the sides filed brief synopsis of their respective arguments. We have heard the learned counsel for both the parties and have given our thoughtful consideration to the material on record.

3.     The relevant facts of the case, in brief, are that the complainants booked two flats along with parking slots along with terrace on top of Flat no. G 401 with the opposite parties in the project mentioned above with the intention to combine the same for personal use for a total sale consideration of Rs.2,43,639/- comprising of basic sale price of Rs.67,07,480/- (Rs.64,67,520/- in respect of G 402) with Rs.1,75,000/- each towards parking slots apart from other dues towards taxes, maintenance, legal fees etc. Following the booking on 11.01.2012, an Agreement for Sale was issued separately for two flats as per which possession was projected to be delivered on 31.07.2013.

4.     Despite the complainants making payments as per the demands raised, complainants allege that opposite parties failed to deliver the flats as undertaken. In October 2013, the opposite party handed over the flats in which internal works continued till April 2014. Complainants occupied the flat on 25.04.2014. As per the complainants, the flats suffered from various civil and electrical deficiencies and the entire project, including common amenities, such as pavements in internal roads, drive ways, badminton court, boundary wall, swimming pool, etc., suffered from various deficiencies. Certain other amenities promised such as swimming pool, children’s play area, rain water harvesting, water tanks, recycled grey water and sewerage plant etc., were not provided. Complainants allege that the Goa State Pollution Control Board as per its inspection report dated 25.10.2018 had pointed out various deficiencies and notices were issued to opposite parties on 30.04.2019 and the State Electricity Department and Village Panchayat withheld various approvals.

5.     Complainants allege that the opposite parties did not disclose that it had obtained a fresh approval of building plans in December 2012 after the booking had been done in January 2012. As per this revised approval, an internal road was converted into a public road which divided the project into two sections entailing various security issues and costs. It is alleged that this revised approval was obtained on the basis of false affidavits by OP no.2 declaring that no flats had been sold which was contrary to reality. Complainants allege that the Sale Deeds had not been executed and incorporation of a Housing Society had also not been done/ registered. It was contended that this was due to lack of proper and legal documentation relating to the succession deeds and land disputes between the Opposite parties.

6.     The Electricity Department had threatened legal action on account of misuse of electrical connections by OP no.2 and issued notices dated 22.11.2015 which had not been addressed and hence, fresh electricity connections had been prohibited by the Village Panchayat (which had also filed a complaint with the Department on 15.10.2018). Water supply had been provided to only 16 of the 52 flats resulting in high costs of procuring water through tankers. The Village Panchayat, vide letter dated 17.09.2018, disallowed the mutation of flats for house tax in view of violation on the part of the opposite parties. Various complaints with the local authorities including SDM, Police, including regarding issues relating to conflicts between the representatives of the flat owners and OPs have also been alleged.

7.     On the basis of a report from an independent Valuer and Surveyor appointed by the complainants at their cost, it was alleged that the flats handed over were 227.14 sq mts as against the promised 240.48 sq mts. The sale of the terrace, for which consideration was paid to the opposite party, was alleged by the complainants to be contrary to the laws which prohibited the sale of terrace. As per the Completion Certificate dated 12.05.2015 and 28.04.2016 issued by the North Goa Planning and Development Authority, enclosing of balconies and open terrace was not permitted vide paragraph 7 (a) and therefore, the terrace was included in the super area calculations was a common facility which constitutes an unfair trade practice on the part of the opposite parties. It was also alleged that OP no.2 was preventing an independent Residential Welfare Association to be formed and had had himself appointed as its Secretary on the basis of the number of flats in his name. The Secretary appointed by the residents was assaulted and a police complaint filed.

8.     It was alleged that there had been a large scale violation and deviations from the revised plan dated 17.12.2012 in terms of additional structures and alterations without prior permission as required under the Town and Country Planning Act, 1974. Failure of the opposite party to register the property also amounted to complainants having been misled into buying the flat on the assurance that it would have a warranty for 24 months in respect of construction defects.

9.     Complainants allege that the opposite party over charged them for the flats compared to the amount charged for similar sized flats booked in the names of others. It was also contended that various sums of money were incurred by them in the repair of the house and common areas. Complainant contends that there is a continuing cause of action and that despite having taken possession in October 2013, cause of action continued to date. The complainants were therefore, before this Commission with the prayer to:

1. Direct OP’s to take back the flats and refund the entire sale consideration of Rs.1,46,96,231/-;
2. Direct OP’s to pay accrued, pendent lite and future interest of 18% on Rs.1,46,96,231/- with effect from the date of making payment till date of payment to inter alia compensate the complainants for losses occasioned due to their deficiency services, for practising unfair and restrictive trade practices, for causing wilful loss to complainant;

OR IN ALTERNATE

3. Director OP’s to refund Rs.65,51,196/- plus taxes extracted on Rs.38,51,196/- as elaborated in paragraph 7 above if complainants agree and if OP’s manage to obtain a succession certificate, are able to justify the super area calculations along with complete conveyance of ownership rights to complainants for the terrace, the project is not divided due to sector roads and further construction is stopped, formation of cooperative housing society is finished without OP as part and rectify all the irregularities/ defects in flat/ project etc.;
4. Direct OP’s to pay accrued, pendent elite and future interest of 18% on Rs.65,51,196/- plus taxes extracted on Rs.38,51,196/- with effect from date of possession;
5. Direct Ops to pay Rs.50,00,000/- towards mental agony and harassment suffered by complainants and their family for the past five years;
6. Direct the OP’s to pay a sum of Rs.5,00,000/- towards surveyors fee, Registrar expenses for sale deeds and litigation expenses etc.,
7. Pass any other order(s) as may be deemed fit and proper in the facts and circumstances in favour of the complainants and against the OP.

10.   Opposite party has contested the averments of the complainants and argued that the averments were malafide and mischievous and without basis. It was denied that the terrace area was sold in contravention of the laws. All allegations that there were violations of the building and layout plans or of poor quality of constructions were also denied.

11.   In view of the fact that the possession has been taken over and no documents have been brought on record to indicate that possession was taken under duress and or in any manner qualified, the contention of the complainants that the flats were not handed over in a habitable condition or they suffered from any construction defects cannot be agitated at this point. Admittedly, there is no dispute with regard to the payment made or receipt in respect of the said flats.

12.   In so far as the Agreement for Sale dated 11.01.2012 is concerned, possession was stipulated to be delivered on or before 31.07.2013. Admittedly, the possession has been provided in October 2013 although the complainant’s allegation is that the internal construction works in the flats continued beyond October 2013 and the flats were actually occupied on 25.04.2014. As regards facilities such as children’s play areas, swimming pool, rain water harvesting and water tank, etc., the contention is that these are not yet provided.

13.   The opposite party admits that change of building plan/ lay out plan was effected. The contention of the complainant is that the same was done without notice or consent of the allottees. The opposite party has not brought on record any document to establish whether this change was obtained per consent or on the basis of its declaration to the authorities that there were no sales as alleged. However admittedly, the entire project has been divided into two parts which entails various consideration of security and associated expenditure which the complainants cannot be faulted in raising.

14.   After considering the submissions made by the opposite parties and the material brought on record by them, it is seen that the complainant urges issues relating to:

(a)    Deficiencies in service with regard to the agreement with the opposite party with regard to building not being done as per the sanctioned plan, quality issues of constructions, differences in area allotted and handed over, sale of terrace over flat no. G 401 against the consideration charged which as per the building bye laws and local regulation could not have been sold and modification of building layout plan indicated, internal roads has no thoroughfare without the knowledge of the complainants, non-supply of drinking water and non-provision of promised amenities.

2. Allegation relating to over charging for the flats in question compared to the amount charged for similar flats by the respondent;
3. Issues relating to violation by opposite party pertaining to misuse of theft of electricity, violation of State Pollution Control Rules with regard to sewerage and grey water usage.
4. Issues relating to inability to register sale deeds and mutate properties through Village Panchayat;
5. Issue relating to Residential Welfare Association not being constituted and associated incidents involving alleged assaults and FIR.

15.   In view of the wide ranging issues raised by the complainant it is necessary that the concerned authorities be also arrayed as parties in the main petitions and their evidence be brought on record with regard to the allegations being made, i.e., Goa State Pollution Control Board, North Goa Planning and Development Authority and Electricity Department.

16.   It is manifest that only issues pertaining to deficiency in service and unfair trade practice are the remit under the Act. Therefore, only such issues which were part of the Agreement of Sale executed between the parties on 11.01.2012 are covered. As regards the other issues, the complainant may approach an appropriate civil/ criminal authorities/ fora for suitable relief.

17.   It is evident that the issues being raised need verification of facts on the ground which is possible only by appointing Local Commissioner, so on an independent assessment of the same can be done. It is also essential, in view of the various allegations and counter allegations that the same be supported by an affidavit to that effect supported by relevant documents. Needless to say that the issues to be considered would only pertain to matters relating to consumer dispute as established under Section 2 (1) (d ) of the Act. The matters relating to either criminal or civil nature would need to necessarily be excluded from the ambit of the proceedings under the Act.

18.   In the light of the foregoing, we consider it appropriate to remand the matter to the State Commission, Goa, with the directions to provide an opportunity to the complainants herein to file a complaint limited to the issues under the Agreement to Sale dated 11.01.2012 and to lead evidence on affidavit pertaining to those allegations/ grievances only. The State Commission may also consider appointing a Local Commissioner to verify the facts on the grounds to evaluate the contention of both the parties. The cost of the Commissioner shall be borne equally by the Complainant and the Opposite parties.

19.   Both the parties are directed to appear before the State Commission, Goa on  17/12/2024. The State Commission is requested to decide the matter expeditiously preferably within a period of four months, after giving due notice to both the parties. It is made clear that at this stage, we do not wish to express any opinion on the merits of the case.

20.   CC no.529 of 2018 is also decided in the above terms and remanded to the State Commission, Goa in terms of the above order.