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no.1 has been obtained the sole and exclusive development rights of the properties situated at village Kothrud, bearing survey no. 54, Hissa No. 2/1 totally admeasuring area about 00 Hector 30 Ares, the total area admeasuring 00 Hector 69 Ares i.e. 6900 sq. mtrs. The above mentioned properties originally owned and possessed by Shri. Pandurang Ganpati Borate and others on the basis of partition took place on or about 4/12/1952. Threafter Shri. Pandurang Ganpati Borate has filed returns in respect of the said property before the competent authority of the Urban Land (Ceiling and Regulation) Act, 1976 and the said Authority decided 3900 sq. mtrs land as excess land leaving three units of 1000 sq. mtrs. Each as retainable or exempted land. The total land first is retainable admeasuring 3000 sq. mtrs and other land is excess admeasuring 3900 sq. mtrs. The land owners sold the retainable land bearing survey no. 54/2/2 admeasuring about 3000 sq. mtrs to opponent no. 2 to 4 vide three registered Sale Deeds and after obtaining permission under section 26 of ULC Act from the competent authority, the names of opponent no. 2 to 4 were entered and recorded as owners of the said property. Thereafter Shri. Pandurang Ganpati Borate had submitted a scheme under section 20 of ULC Act in respect of excess landed area of 3900 sq. mtrs of Sr. no. 54/2/1 and the Government has given permission.   Thereafter   said Shri. Pandurang Ganpati Borate and

 

 

other owners of the said property entered into an agreement with partnership firm i.e. opponent no.1 for carrying out the development of said property and also made and executed Power of Attorney in favour of the partner of the opponent no.1. It is contended by the complainant society that, the opponent no.1 had obtained sanction plans from the PMC, for the excess land at survey no. 54/2/1 vide commencement certificate dtd. 27/11/1997 and further obtained revised sanctioned plan by commencement certificate dtd. 31/8/1998 for land S. No. 54/2/2. The buildings namely A, B, C, D, E were to be constructed on the excess land i.e. S. No. 54/2/1 and the buildings namely F, G & H were to be constructed on the retainable land, i.e. S. No. 54/2/2. According to the complainant, thereafter the opponent got revised sanctioned plan from PMC under commencement certificate no. 2115 dtd. 1/4/1999 and commencement certificate no. 0741 dtd. 26/5/2004 in respect of construction of building no. A to E. But thereafter opponents have commenced and completed the construction of the buildings B, C, D, E, F and G on the landed properties and construction of building no. A and H not completed as per the sanctioned plan. The opponents being Chief Promoters have formed Co-operative Housing Society styled as “Rohan Garden Co-operative Housing Society Ltd.”. All the flat holders in the building B, C, D, E, F and G are the members   of the said society, the

 

construction work of proposed buildings A & H was not started and completed by the opponents before the formation of society. According to the complainant society, the opponents have not started the construction work of building A and H with an intention to obtain permissible TDR and using the part of FSI of the said land. The opponents have not obtained or taken prior permission or consent of the complainant society while submitting the revised plan of building A & H and made attempt to construct boundary wall by dividing the said properties illegally. It is contended by the complainant society that, they have made correspondence in writing to the opponents to execute conveyance of the said properties in favour of society within the stipulated period, but in spite of demands in oral and writing, the opponents intentionally avoided and failed to convey the landed properties in favour of the society and therefore the complainant society has absolute right to claim the remaining FSI with conveyance deed of the properties. On 5/10/2007 the opponents have started the work of compound wall in the premises of H building and tried to erect permanent structure thereon illegally, at that time the working committee members of the society unanimously resolved to oppose the illegal construction of compound wall, but the opponent no.4 arrogantly behaved and threatened to the members of the society and used abused language. Hence the society members approached the Pune Municipal Corporation for necessary action against the opponents in respect of conveyance of property and illegal construction of compound wall. On 6/10/2007 the officers of the PMC visited the spot and intimated the opponents to stop further construction of compound wall. Thereafter on 13/10/2007 the opponents sent legal notice to the members of managing committee of the society for defamation, the society strongly replied the said notice by giving reply dtd 3/11/2007. According to the complainant society, the first General Body Meeting was held on 1/5/2002 and in that meeting the resolution has been passed by the members of the society in respect of making conveyance deed of the said property, transfer of bank account in the name of society, assessment fees for flat transfer etc. Thereafter the society has made correspondence in writing in respect of conveyance deed and final completion certificate. Meanwhile in the year 2003 the opponents have handed over the proceeding book to the society. It is mentioned by the society that the opponents have committed fraud while adding and scratching some sentences in the contents of the proceeding book and also making overwriting by different hand writing and ink in the minutes of resolution no. 3, 6 and 7 AGM dtd. 1/5/2002. Therefore the complainant society has rejected to confirm the said minutes. The opponents have not submitted the draft of conveyance deed in the said AGM dtd. 1/5/2002. After second AGM dtd. 27/7/2003, the Chairman and Secretary received the copy of draft of Deed of Conveyance dtd. 19/7/2002 from the opponents, but the said draft is incomplete and silent about the final completion of the scheme and conveyance of the

 

entire land and building including A & H. According to the complainant, the signature of these Chairman and Secretary on the draft of conveyance deed in good faith but after perusing the wording of said resolutions, the office bearers of the society refused to register the said conveyance deed. But thereafter the opponents have failed to construct work of building A and H and make conveyance deed of the property and building in favour of the society and committed deficiency in service. Hence on 2/12/2008 the complainant society sent legal notice through Adv. Y.G. Pawar. The opponents have replied the said notice on 18/12/2008 and refused to make and execute and register the final sale deed in favour of the society. Hence the complainant filed present complaint in the Forum asking final conveyance deed of entire property including constructed building Nos. B to G and under construction Building Nos. A & H along with remaining FSI in favour of the complainant society, on failure by the opponents to execute the conveyance deed, the Commissioner be appointed to execute the conveyance deed, to complete the construction of Building A & H as per approved plan of PMC, compensation to the tune of Rs. 1,00,000/- for delay in executing deed of conveyance and non completion of construction of building Nos. A & H, an amount of Rs. 10,000/- towards cost of the complaint and other relief.      

 

 

2/12/2008, minutes of meetings, 7/12 extracts, notices under ULC Act, Order of Competent Authority, Demand letters of Tahshildar, report of Government Auditor, copy of resolution, complainant’s letters, commencement certificates, sanctioned plans, revised plans etc. 

 

said land and the balance FSI as well as TDR thereon will be permitted has to be used to construct the building H. It is asserted by the opponents that, the right of the Promoter to use the balance FSI as well as permissible TDR to construct the building is protected under the provisions of Maharashtra Ownership Flats (Regulation of The Promotion of Construction, Sale, Management and Transfer) Act, 1963 and hence to obtain sanction from Pune Municipal Corporation to the building A & H by using the balance FSI as well as TDR will be permitted, the consent of complainant or its members is not required by law. According to the opponents, by executing registered agreements with the buyers of the tenements in the building B, C, D, E, F & G had agreed to sell the tenements therein to the respective buyers on ownership basis and handed over the vacant and peaceful physical possession of the tenements to them. Some buyers have sold there flats to third party, who are the member of the complainant society and hence not a ‘consumer’ as per Consumer Protection Act, 1986. The opponents have stated that the complainant is misinterpreting the plan sanctioned by the PMC and they are entitled to carry out the construction as per the building plan sanctioned by PMC and has right to construct the building No. A & H by consuming balance FSI of the said land and by using

 

permissible TDR as and when permitted by the Local Authority and due to that the construction is still incomplete. It is contended by the opponents that they have prepared draft of conveyance deed, which was approved by the General Body meeting of the Complainant society, further by Working Committee and thereafter authorized Chairman to get executed and registered the Conveyance Deed and accordingly the Deed of Conveyance was executed on 21/8/2002, in which admeasuring area 1816.73 Sq. Mtrs along with the building standing thereon building no. F and G out of Survey No. 54/2/2 admeasuring 3000 sq. mtrs and area admeasuring 2856 sq. mtrs. along with building standing thereon No. B, C, D and E of Survey No. 54/2/1 admeasuring 3900 sq. mtrs. only subject matter of conveyance and remaining portion of the said land along with right to construct buildings A and H by using balance FSI as well as permissible TDR remained with the opponents. After execution of the conveyance deed, the Chairman of the complainant society and representatives of the opponents had presented the same for registration in the office of the Sub Registrar, but they had demanded proof of the payment of stamp duty of each tenement stated in the annexure to the conveyance deed, i.e. copies of Index-II and which was not collected by the Chairman of the complainant society from its members and due to that, the conveyance deed remained unregistered. According to the opponents, the complainant and its members have no right to obstruct

 

them from using the remaining FSI from the said land and use permissible TDR of the said land for construction of building A and H. The opponents further submitted that, the draft of conveyance was approved by the members of the complainant society and hence now the society are estopped from making allegations in this behalf. The opponents have denied that they have made changes in the resolution dtd. 1/5/2002. With these contentions the opponents asked for the dismissal of the complaint with maximum compensatory cost. The opponents are relied on various citations.  

 

 3]     After scrutinizing the documents, which are filed on record the following points arise for my determination. The points, findings and the reasons thereon are as follows-

 

 

1.                 The complaint is partly allowed.

 

2.       The opponents are directed to complete

the construction of building No. A & H

within four weeks from the date of receipt

of copy of the order and thereafter within

three months execute conveyance deed

of entire property of building No. A to H

along with remaining FSI in favour of society

 

If the Opponents failed to execute the

Conveyance deed within stipulated period

The complainant society may apply to the

concerned department for Deemed Conveyance

Deed in their favour.

 

 

3.       The opponents are directed to pay jointly

and severally an amount of Rs. 25,000/-

(Rs. Twenty Five Thousand only) towards

Compensation and an amount of Rs. 3,000/-

(Rs. Three Thousand only) towards cost of the

Complaint to the Complainant society within

four weeks from the date of receipt of copy of

the order

 

The parties free of cost.