PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service on the part of Opposite Parties as they did not convey the property to the Complainant and complied with the agreements between the flat purchasers also they did not comply with the provisions of MOFA Act as alleged by the Complainant.
2) The facts of this case, as stated by the Complainant are that the Complainant is the Co-op. Housing Society, formed by the flat purchasers and allottees of the flats built up by the Opposite Parties and Opposite Parties are the builder and developers of the property situated at Potia City, Survey No.222, Part 9A/222, at Mumbai Central Byculla Dn. The property was developed with FSI 2.5. They constructed a building known as “Dudhwala Complex”. However, the building is not constructed as per the approval plan.
3) It is the allegation of the Complainant that the Opposite Parties did not provide the requisite information to the flat purchasers as per MOFA Act, 1963. Rule3 & 4, & Sec.4.
4) It is further stated by the Complainant that, as agreed between the old tenants and the developer, the Opposite Parties allotted the residential premises to the tenants and sold remaining flats to the purchasers. The original tenants and the flat purchasers are members of the housing society i.e. the Complainant is formed in May, 2007, without the knowledge of the flat purchasers and the tenants.
5) It is further alleged by the Complainant that the Opposite Parties did not execute a conveyance of the property in favour of the Complainant as per the clause 27 of the agreement as well as the provisions of MOFA Act, 1963.
6) The Provisional Occupation Certificate was issued by the Authority (B.M.C.) subject to compliance of certain conditions but the Opposite Parties failed to comply with those conditions and hence, could not obtain a final Unconditional Occupation Certificate. As per the Commencement Certificate and Provisional (conditional) Occupation Certificate, the Opposite Parties were supposed to carryout various jobs such as, removal of unauthorized structure, building a compound wall, pavement work, development of recreation ground, etc. but the Opposite Parties have failed to do these jobs.
7) It is further alleged by the Complainant that during the last 2 years, the encroachment on the society’s land have increased due to the deficiency in service on the part of Opposite Parties.
8) It is also alleged that the Opposite Parties have constructed a huge office in B & C Wing for which the BMC has given 6 months permission but still the Opposite Parties are using the said office as temporary transit accommodation. The Opposite Parties have also carried out illegal construction in the society compound.
9) The Complainant has finally prayed for the following reliefs –
a)Direct the Opposite Parties to build compound wall; to demolish unauthorized structures & remove encroachments and complete the other jobs.
b)to execute conveyance of the property in favour of the Complainant.
c)to obtain Unconditional Occupation Certificate.
d)to hand over the vacant possession of transit accommodations to the Complainant.
e)to submit building Completion Certificate.
f)to submit the original documents of title to the property, etc.
g)to hand over the audited statement of account of promoter’s account & refund any excess money to the Complainant.
h)The Complainant has also prayed for compensation of Rs.19,50,000/- and cost of Rs.25,000/- towards the legal expenses.
10) The Complainant has also averred that, the Complainant has not filed any complaint before any authority or any court in respect of the aforesaid matter other than this complaint. No other proceedings in respect of the subjection matter is pending before any other Dist. Forum or State Commission and or before the Civil Court.
11) The Complainant has attached the xerox copies of the following documents in support of his complaint -
Society’s Registration Certificate, Sale Agreement, Commencement & Occupation Certificate, Certificate for temporary transit accommodation, A letter & reply from Fire Department, Reply of Opposite Parties, etc.
12) The complaint was admitted and notices were served on the Opposite Parties. The Ld.Advocate of the Opposite Parties filed preliminary objections to the maintainability of the complaint wherein it is stated that the complaint is barred by limitation as the legal notice was issued by the Complainant on 19/09/2008 and the complaint was filed on 01/01/2011. Therefore, it is clearly barred by law of limitation as per Sec.24(A) of the Consumer Protection Act, 1986.
13) It is further pointed out by the Ld.Advocate of the Opposite Party that the affidavit of the Complainant dtd.13/10/2010 does not bear the registration member.
14) It is also pointed out that the office of the Opposite Party is not in the jurisdiction of this Forum but it is situated in the jurisdiction of Central Mumbai District Consumer Dispute Redressal Forum. Therefore, this Forum has no jurisdiction to adjudicate entertain this complaint.
15) It is also pointed out that the Complainant has also filed a suit before the Hon’ble City Civil Court, Mumbai vide Suit No.1762/08 which is subjudice. Therefore, this Forum does not have the jurisdiction to entertain this complaint.
16) The Opposite Parties have also filed their written statement and affidavit wherein they repeated the points mentioned above in the preliminary objections. Further it is strongly pointed out by the Opposite Party that M/s. Dudhwala Residents Welfare Association filed a Writ Petition No.1838/07 on 27/07/2007 before the Hon’ble Bombay High Court against Opposite Party No.1 & Municipal Corporation of Greater Mumbai, for restraining Opposite Party No.1 from carrying out illegal construction and other acts in violation of safety norms, etc. in Dudhwala Complex. The present Complainant and its office bearers are the members of society were the members of the said Association. The Association withdrew the Petition to file a representation before the High Power Committee constituted under the full bench judgment of the Hon’ble High Court dtd.01/11/2007 in Writ Petition No.1838/07 with liberty as prayed by the Dudhwala Residents Welfare Association. This fact was suppressed by the Complainant form this Forum.
17) It is further pointed out by the Opposite Parties that, subsequently, the Complainant and its office bearers also filed a suit bearing No.1762/08 in City Civil Court, Bombay, on the same grounds seeking same reliefs and making similar allegations against Opposite Party No.1 as made in Writ Petition No.1838/07. This amounts to Forum shopping suppressing the facts about the earlier petition.
18) The Complainant again made an unsuccessful attempt to withdraw the defective Suit No.1762/08. By a reasoned order dtd.29/11/2010, the Hon’ble City Civil Court rejected the application for withdrawal of the suit and granted only liberty to withdraw a suit simplicitor. Complainant did not file any appeal against the said order. In fact, on 15/01/2011, the Complainant submitted that, it intends to withdraw the said suit without disclosing the fact that it has filed the present consumer complaint before the South Mumbai District Consumer Forum on 01/01/2011. Again the Complainant changed its view and applied for withdrawal of application for withdrawal of suit. The Opposite Party filed its reply. And the matter is pending before the Hon’ble City Civil Court. Therefore, it is the contention of the Opposite Party that the Complainant is taking chances before various Forums. It is an attempt to overcome the defective suit filed by the Complainant. It is also barred by law of limitation.
19) The Opposite Parties have also pointed out that the reliefs sought by the Complainant are beyond the scope of this Forum. The reliefs such as, a) to direct the Opposite Party to demolish the existing unauthorized structure, remove the encroachment, etc. b) to direct the Opposite Party to handover the peaceful and vacant possession of the temporary transit accommodation, c) to direct the Opposite Party to give the details of flats that has been transferred by the Opposite Parties during the tenure, d) to direct the Opposite Party to submit original documents of title to the property as well as i) ledger abstract of property i.e. 7/12 extract, ii) order issued by the competent authority as per the provisions of the Urban Land Ceiling Act, iii) Development Agreement executed by the Developer with the land owners, iv) Copies of Power of Attorney given by the owners in favour of developers alongwith copy of Registration Certificate, v) Intimation of disapproval from B.M.C., vi) Occupation Certificate, vii) Building Completion Certificate, viii) Approved Plan of building, ix) Chain of documents through which the vendor acquired the right, title & interest in the property, x) Non-agricultural Assessment Certificate, xi) Non-Agri tax paid receipt, xii) Clearance Certificate from Vendor’s advocate, xiii) Search Report for the last 30 years with the search fess paid receipts, xiv) To direct the Opposite Parties to hand over the audited statement of account of the promoter’s account and to refund any excess money lying with them. The Opposite Party has submitted that the above said prayers does not fall within the meaning of the complaint under Sec.2(c) of the C.P.A.
20) The Opposite Parties have further stated that the plan has been approved by the B.M.C. vide approval dtd.01/08/03. They have also commencement certificate for Wing A1 & Wing A. Occupation Certificate is also granted by the B.M.C. Authority for Wing-B to F (dtd.25/06/04). The Opposite Parties have further clarified that MHADA had given permission to the Opposite Parties for redevelopment of the property under Rule 33(7) of the Development of the Regulations, 1991 (dtd.09/07/99 & 10/11/98 & 07/01/2000). Opposite Party No.1 undertook the work as layout development phase wise programme. Originally 3 buildings were proposed to be constructed on the aid property (C.S.No.222) Bellasis Road, Mumbai Central). Building No.3, is the subject of this complaint. The building No.3 is having Wing A, A1, B to F. The Wings B, C, D, E & F have been duly constructed & completed. 267 flats have been completed by the Opposite Party No.1 out of 7 Wings. 5 Wings have been completed and for which occupation certificates have been received on 27/10/04 for Wing B & F. Occupation Certificate for Wing D & F have been received on 16/08/05. The Opposite Parties have annexed the copies of these certificates. This Building No.3 comprises of stilt + Podum + 15 upper floors. Wing A & A1, of Building 3 are proposed to be constructed & abutting Bellasis Road. Wing A & A1 of Building 3 are under construction.
21) It is also submitted by the Opposite Parties that Wing A & A1, are part of scheme under DC Rules 33(7) sanctioned by MHADA and Complainant has no right to challenge the same. It is also submitted by the Opposite Parties that a transit accommodation NOC dtd.16/06/07 was issued by the authorities allowing the use of stilt area at Podium level for transit accommodation of tenants. Accordingly stilt area at Podium level of Wing B & C of building 3 is being used as transit accommodation for tenants of structure M.
22) It is further contended by the Opposite Parties that, though the Complainants are in their possession the information, plans, permissions; NOC of MHADA, and correspondence with the Fire brigade. They suppressed such information with intention to snatch away favourable order from the Forum. Thus, the Complainants have come before this Forum with an uncleaned hands and hence, the complaint deserves to be dismissed.
23) The Opposite Parties have further clarified that the documents mentioned in Sec.3 of MOFA and Rule 3 & 4, have been furnished & made available to the members of the Complainant. The Opposite Parties have complied with all their obligations. On the contrary, the Complainant is attempting to cause hurdle in complying with the obligations of the Opposite Parties. But the Opposite Parties will construct & develop, the property as per the sanctioned plan. It is vehemently stated by the Opposite Parties that Opposite Party No.1 constructed Dudhwala Complex as per the sanctioned plans by the Municipal Corporation of Greater Mumbai. The Opposite Party No.1 has also handed over the possession of the flats to the respective old tenants and flat purchasers as per the agreements. The Society of these members was formed in 2007 and 1st Annual General Meeting was held on 14/06/08.
24) Regarding the conveyance, it is the contention of the Opposite Parties that, conveyance of the property was to be executed in favour of Co-operative Housing Society only after completion of the development of entire property and upon receiving the entire purchase price. The Opposite Parties have admitted & confirmed that the purchasers have paid the price of the flats to Opposite Party No.1 and they have not denied to execute the conveyance of the property in favour of the Complainant Society. It is further assured by the Opposite Parties that “the conveyance will be executed in favour of the Complainant only after completion of the entire development”. So far as the entire development of the entire property is not completed, the question of conveyance does not arise.
25) It is further averred by the Opposite Parties that they have complied with all the conditions contained in the part occupation Certificate. It is denied that the encroachment has increased. It is also denied that huge office is constructed by Opposite Parties on the car parking Podium in B & C Wing. It is stated that, Transit accommodation was granted for commercial tenants on Podium of ‘B’ Wing by the M.C.G.B. vide letter dtd.06/06/07 & vide letter dtd.10/02/2011 till 16/06/2011. It is also denied that they have carried out illegal construction in the compound of the Society. They also denied that they have contravened the provisions of MOFA & SCS Act.
26) It is specifically submitted by the Opposite Parties that the Complainant has suppressed the fact from the Forum that the Suit No.1762/08 has been filed by the Complainant in Bombay City Civil Court in respect of the allegations mentioned in this instant complaint in the year 2008 and it is still pending before the said Court. The Complainant has made a false statement in the complaint that the Complainant has not filed any applications before any authority Court in respect of the above said matters & no other proceeding in respect of the subject matter is pending before this Forum and/or Civil Court.
27) The Opposite Parties have further stated that the Complainant is not entitled to the details & documents sought by it in the complaint as the Complainant is having copies of the documents sought by them from the Opposite Parties. Finally, the Opposite Parties have prayed that the complaint be dismissed with cost.
28) The Opposite Parties have attached xerox copies of the following documents in support its reply –
Order of the Consumer Dispute Redressal Forum Central Mumbai, Agreement, Writ Petition No.1838/07 in Hon. Bombay High Court an application under order XXIII Rules 3 of CPC in Suit No.1762/08 in the Bombay City Civil Court. Application by one Shri. Nisar Patel in the same suit, Oral Order below Exh.8, dtd.29/11/2010, Letter dtd.01/08/2003 addressed to Hiren Thakkar, Plan Commencement Certificate dtd.15/12/2000, Letter from M.C.G.M. addressed to Hiren Thakkar, Letter dtd.16/06/07 Tenant’s lists, Cess Certificate, Minutes of the meeting held on 14/06/08 in 1st General Meeting.
29) The Complainant has filed reply to these preliminary objections wherein the points mentioned in the complaint are reiterated by the Complainant. The Opposite Parties have then filed the written submission wherein they have reiterated the facts mentioned in their affidavit in reply and preliminary objections. The Complainant then filed affidavit of evidence, rejoinder to the written statement of the Opposite Party, and written argument wherein all the facts mentioned in the complaint are reiterated. The Opposite Party has also filed the compilation of documents as mentioned in the affidavit of evidence filed earlier.
30) We heard the Ld.Advocate of both the parties. The Ld.Advocate for the Complainant has filed a pursis, stating that the written argument be treated as its oral argument. The Ld. Counsel for the Opposite Party argued the mater at length. We also perused all the papers filed by both the parties and our findings are as follows.
31) The Complainant is the Co-operative Society formed under Societies Act, in the year 2007. Opposite Party No.1 is the Developer Company. Opposite Party No.2 & 3 are its Director. Opposite Party No.1 constructed the building complex known as Doodhwala Complex on C.T.S. No.222 on Belasis Road, Byculla/Mumbai Central. The original tenants and new flat purchasers are the members of the Complainant. The main allegation of deficiency in this complaint is that the construction is not as per the sanctioned plan of the building. In this respect the Complainant has miserably failed to establish this allegation and did not produce any evidence to show that the Doodhwala Complex building is not as per the sanctioned plan. On the other hand, the Opposite Parties have produced the sanctioned plan, commencement certificate, etc. and they have vehemently stated that the building and its construction is as per the sanctioned plan and the flats are allotted to the original tenants and new flat purchases after its completion.
32) The other allegation is regarding the non supply of information as per MOFA Act. In this respect even the Complainant has not mentioned as the nature of information sought by the Complainant.
33) It is further alleged that the Co-operative Society is formed without the knowledge of the flat purchasers and the original tenants. This cannot be the allegation. The main point is the formation of the Co-operative Society of the allottees of the flat and from the contention of the Complainant only it is seen that the Co-operative Society has been formed in May, 2007. It cannot be formed without the knowledge of the members. Formation of Co-operative Society of the members is done as per Co-operative Society Act and it is formed by the members only as per law enacted in Societies Act, 1960. The Complainant has failed to mention that any breach of this law was there in Formation of this Society. This issue specially pertains to the Registrar of the Societies and there is nothing on record to show that any complaint in this respect is made with the concerned Registrar.
34) The most important allegation in this complaint is regarding non conveying the property in the name of the Complainant as per MOFA and individual agreements. In this respect the whole plot bearing No.222, was being developed by the Opposite Party No.1 and it constructed B to F buildings on the said plot. Building No. A & A1 are under construction. It is the contention of the Opposite Party that the conveyance would be executed after the completion of the development of the entire property i.e. entire Plot No.222. So far as the entire development has not been completed construction of A & A1 is incomplete. Therefore, the Opposite Parties have assured that, the conveyance would be executed after the completion of development of entire property (Plot No.222 CTS). The Complainant has also not clarified in its complaint regarding the specific portion of land of the plot No.222 CTS. on which their residential building is situated and how much portion of the entire plot is occupied by the buildings of the Complainant and how much portion of the land of the Plot No.222 would be conveyed in the name of the Complainant. Therefore, the complaint is short of the details regarding details of this allegation. There is no doubt that it is the contractual as well as the statutory obligation of the Opposite Parties to convey the property to the Complainant as per the Individual Agreement as well as M.O.F.A., 1960. However, the Complainant needs to clarify the specific piece of land on Plot No.222 on which the buildings of the Complainant are situated.
35) Regarding the rest of the allegations, such as unauthorized encroachment/structure, and removal of unauthorized structures on the plot, the Complainant has already filed the Civil Suit No.1762/08 in the Bombay City Civil Court, in respect of the property on Plot No.222, Bellasis Road, Mumbai Central, Byculla.
36) From the careful scrutiny of the papers, it is seen that, the Complainant has filed a Civil Suit vide No.1762/08 in respect of these allegations before Bombay City Civil Court. The Complainant and other members of the Complainant Society are one of the plaintiffs in this case. This Suit No.1762/08 is still pending before the Bombay City Civil Court. However, the Complainant has made a false statement in complaint vide para 17 that “the Complainant has not filed any application/complaint before any statutory or non-statutory authority or any Court in respect of the aforesaid matter other than this complaint and no other proceedings in respect of the subject matter is pending before any other district Forum or State Commission and or before the Civil Court/High Court and/or Supreme Court.” This is a false statement made by the Complainant and also amounts to suppression of material facts from this Forum. Hence, the Complainant is not entitled to the reliefs sought by it.
37) In our candid opinion, this matter has been seized of by, the Bombay City Civil Court since 2008. During the pendency, the Complainant has also took the recourse to this Forum on the same subject matter. Therefore, it will not be proper to adjudicate this mater under the above said circumstances. Therefore, we pass the order as follows –
O R D E R
i.Complaint No.01/2011 is hereby dismissed with no order as to cost.
ii Certified copies of this order be furnished to the parties.
