Per Shri S. R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This consumer complaint, as per direction while admitting the complaint on 24.08.2010 (since the Complainant limited the complaint to the issues accordingly), confines to alleged deficiency in service relating to not obtaining occupancy certificate and failure to execute the conveyance in favour of the Complainant Society.
(2) It is the case of the Complainant M/s. Milestone CHS Ltd. (hereinafter referred to as ‘the Society’) that Opponent M/s.Somesh Builder and Developers Pvt. Ltd. (hereinafter referred to as ‘the builder’) developed plot and constructed 65 flats and 4 shops thereon. Said development was subject to the provisions of Urban Land Ceiling Act and as per the conditions imposed by ULC authority, the builder was to surrender certain area to the ULC authority which as stated would cover 12 constructed flats. The builder could surrender the area to the extent and as covered by three flats and the area equivalent to the 9 flats is yet to be surrenderred.
(3) In the meantime the builder sold the flats and the shops to various purchasers to form the society i.e. Complainant’s Society which was registered in the year 1999-2000. It is submitted that since the entire area supposed to be transferred to ULC authority, since not transferred by the builder, ULC authorities did not issue requisite certificate and since such certificate is not issued, Brihanmumbai Municipal Corporation could issue only the part occupation certificate. As a result of which the Society had to bear burden of enhanced rate for property tax as well as for the water consumption charges. Original complaint did cover issues on account of payment of property taxes and the water charges at higher rate offered. The same stood abandoned. As earlier pointed out the Complainant Society confined their reliefs claimed to the issue of non-execution of the conveyance by the builder as well as failure of the builder to obtain full occupancy certificate.
(4) The builder in spite of notice preferred to remain absent and proceeded ex-parte on 29.06.2011. The Complainant adduced evidence and also filed the documents by filing affidavit of its Officer beare K.O. Patel. Perused the record.
(5) It can be seen from the correspondence on record, particularly, statement made on behalf the Complainant Society that some of the flat purchasers against whom the U.L.C. authorities issued notice to take back the possession of their respective flats, presumably covered under the U.L.C. Act and of which the possession is to be delivered by the Builder; filed a Civil Suit which was decided on 07.10.2005 in favour of those flat purchasers. However, the copies of said Civil Suit or the decree passed therein are not on record. It is further revealed that, subsequent to passing of such decree on 26.10.2005, the U.L.C. Authorities had written letter to the Collector, Mumbai, the copy of which is on record. It is revealed that since 9 flats or the built area of 391.28 sq.mtrs. was not handed over to the U.L.C. authorities, they assessed loss to the Government to the extent of `59,73,280/- and asked the Collector to recover the same from the builder. Therefore, per se, since the loss was quantified, the issue of actually handing over the 9 flats to the U.L.C. authority may not survive and it may not further stand in a way to obtain the full occupancy certificate by the builder once he complied with those directions.
(6) Admittedly, the Builder failed to execute the conveyance in favour of the Complainant’s Society and therefore, deficiency in service on its part is well established. Similarly, it is for the builder to obtain the full occupancy certificate. Therefore, on both these counts since the deficiency in service on the part of the builder is established, we hold accordingly and pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) The Opponent Builder do execute the conveyance in favour of the Complainant Society within a period of 6 months from receiving the copy of this order after obtaining full occupancy certificate from the Brihanmumbai Municipal Corporation (B.M.C.)/concerned local authority.
(iii) The conveyance be executed in favour of the Complainant Society at the costs of Complainant Society.
(iv) Opponent builder to bear its own costs and pay `25,000/- as costs to the Society.
Pronounced on 24th February, 2012.
