Per – Hon’ble Mr. Justice S. B. Mhase, President
Heard Adv. Bharati Laskar on behalf of the Appellant.
[2] This appeal filed by the Appellant/original Opponent No.1 takes an exception to an order dated 2/5/2012 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.245 of 2009. By this order the District Forum directed the Appellant/original Opponent No.1 together with the Respondent No.2/original Opponent No.2 to execute conveyance in favour of the Society of the property possessed by the Complainant/Respondent No.1 Society within a period of three months from the receipt of the order. The Appellant/original Opponent No.1 and the Respondent No.2/original Opponent No.2 were further directed jointly and severally to pay to the Respondent No.1/Complainant Society an amount of `50,000/- by way of compensation inclusive of costs. In case of failure on the part of the original Opponents to execute the conveyance in favour of the Respondent/Complainant Society within the stipulated period, the District Forum directed the original Opponents jointly and severally to pay to the Respondent No.1/Complainant Society an amount of `500/- per day by way of penalty till execution of the conveyance.
[3] This order is under challenge.
[4] Original consumer complaint has been filed by the Respondent No.1, namely – Shree Vallabh Anand Co-operative Housing Society Ltd. In the said consumer complaint Appellant, namely – M/s. Patel Construction Company was impleaded as the Opponent No.1 while the Respondent No.2, namely – M/s. Bliss Constructions was impleaded as the Opponent No.2. Out of these two Opponents it is to be noted that directions which have been passed by the District Forum are operative as against both the Opponents and those directions are not solely operative as against the Appellant/original Opponent No.1. It is an admitted position that the Respondent No.2/Opponent No.2 is the owner of the land and the Respondent No.2/Opponent No.2 had given the said land for development to the Appellant/Opponent No.1. However, it is to be noted that as per the provisions of the Maharashtra Ownership Flats Act, 1963 an owner of the land who has given the said land for development and the developer of the land, both are ‘promoters’ of the same scheme and their obligations towards the flat-purchasers are equal one, namely – both are under an obligation to execute the requisite documents in favour of the flat-purchasers and the society of the flat-purchasers.
[5] In the present case, the members of the Respondent No.1/Complainant Society have purchased the flats and they have been put into possession of their respective flats. They have fully paid the consideration to the Opponents (Builders/Developers). However, both the Opponents in the complaint (Appellant and Respondent No.2 in this appeal) have not executed the conveyance deed in favour of the Respondent No.1/Complainant Society and, therefore, the Respondent No.1/Complainant Society was constrained to file a consumer complaint seeking conveyance from both the Opponents. District Forum has passed an award as against both the Opponents and, therefore, both the Opponents are under an obligation to comply with the directions of the District Forum.
[6] Learned Counsel appearing on behalf of the Appellant submitted that the Appellant/Opponent No.1 is well-aware of the fact that the Appellant/Opponent No.1 will have to execute the conveyance deed in favour of the Respondent No.1/Complainant Society since it is a statutory obligation as well as contractual obligation on the part of the Appellant/Opponent No.1. However, Learned Counsel for the Appellant submitted that the Respondent No.2/original Opponent No.2 is not cooperating with the Appellant/Opponent No.1 to execute the Conveyance Deed in favour of the Respondent No.1/Complainant Society and, therefore, unless the Respondent No.2/Opponent No.2 is a party to the conveyance, as the land-owner, conveyance cannot be executed and for non-cooperation on the part of the Respondent No.2/Opponent No.2 conveyance is not yet executed and, therefore, Learned Counsel for the Appellant tried to submit before us that even though the Appellant/Opponent No.1 is ready and willing to execute the conveyance deed for non-cooperation on the part of the Respondent No.2/Opponent No.2 why the Appellant/Opponent No.1 shall suffer a penalty of `500/- per day for non-execution of the conveyance deed in favour the Respondent No.1/Complainant Society. We are not impressed by such submissions made by the Learned Counsel for the Appellant/Opponent No.1. If such submissions are accepted and acted upon then in no case can conveyance be executed in favour of a society of flat-purchasers because every developer will argue that the owner of the land is not cooperating to execute the conveyance and the owner of the land will get an excuse not to cooperate with the Builder/Developer. In fact, now it is an established fact that after completion of a project the Builders/Promoters are avoiding to hand-over Completion Certificate and execution of conveyance because they hope that in future there will be an additional F.S.I., available and exploit availability of such additional F.S.I., for their business purposes, the Builders/Promoters are not interested in transferring the ownership right in respect of the flats and common amenities and facilities in favour of the society of the flat-purchasers. In order to justify their allegations that the land-owners are not co-operating even artificial disputes between the developers and the land-owners are also possible and if, such disputes are encouraged by the Consumer Fora then, in such a case, Consumer Fora will not be in a position to give a relief in favour of consumers (flat-purchasers). Apart from that whether it is the Builder/Developer or the land owner, both are covered under the definition of ‘promoter’ under the Maharashtra Ownership Flats Act, 1963 and they are under a statutory obligation to execute the conveyance in favour of the society of the flat-purchasers. District Forum has not passed an order only as against the Appellant/Opponent No.1 (Builder/Developer) but order is passed as against both the promoters i.e. the Builder/Developer as well as the land-owner (Respondent No.2/Opponent No.2). Therefore, the order of the District Forum is to be obeyed and complied with by both the Opponents together and if they fail to do so, both the Opponents shall be liable for punishment under Section-27 of the Consumer Protection Act, 1986 if such execution is filed by the Respondent No.1/Complainant Society. In the present case, there is no appeal filed by the Respondent No.2/Opponent No.2 against the order passed by the District Forum. The Respondent No.2/Opponent No.2 has acquiesced to the order and the said order is binding upon the Respondent No.2/Opponent No.2. In fact, it the Appellant/Opponent No.1, as the Builder/Developer, who is interested in the additional F.S.I., that may be available in the future because will be available to the Builder/Developer and not to the land owner and, therefore, the Respondent No.2/Opponent No.2 has not come forward before us to protract the execution of the conveyance deed. Even assuming for a moment that there is a genuine dispute between the Appellant and the Respondent No.2, yet that dispute will not stop the Consumer Forum from passing an order against the promoters to execute the conveyance as per statutory obligation. It is an internal dispute between the promoters which they have to solve and they cannot be allowed to protract the proceeding before the Consumer Forum and, therefore, we do not find any fault in the order which has been passed by the District Forum which is impugned before us. It is further to be noted that penalty is levied against both the promoters. It is a joint and several order passed by the Consumer Forum and, therefore, both the Opponents are liable under the Consumer Protection Act, 1986 to comply with the order. However, an impression is tried to be created that the said order is binding only as against the Appellant/Opponent No.1 and the Respondent No.2/Opponent No.2 has been left free by the Consumer Forum. That is not the case in the present case. What we find that unnecessarily this appeal has been filed. In fact, a Builder/Developer who knows law and who knows his statutory obligation to execute the conveyance deed ought to have persuaded the Respondent No.2/Opponent No.2, as the land-owner, to come forward to execute the conveyance deed in favour of the Respondent No.1/Complainant Society. Instead of doing so with an intention to make the Respondent No.1/Complainant Society to run from pillar to post present appeal has been filed by the Appellant/Opponent No.1 and, therefore, we while dismissing this appeal we impose costs of `10,000/- on the Appellant which shall be recovered in addition to the directions given by the District Forum. With these directions appeal stands dismissed in limine.
Pronounced and dictated on 06th July, 2012
