Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This consumer complaint filed by Saidham Enclave Co-operative Housing Society (hereinafter referred to as ‘Society’ for brevity) against its developer-builder-opponent-Thakkar Builders & Developers (hereinafter referred to as ‘builder-developer’) refers to deficiencies in services on the part of the builder-developer pertains to failure to execute Conveyance and obtaining Occupation Certificate. Complaint also refers to others reliefs claimed to which we made a reference, infra, which according to us are not relevant and cannot be entertained in this consumer complaint.
2. The undisputed facts are that the complainant-Society is a Society of flat purchasers which was registered on 08/02/2005. A Conveyance, admittedly, is yet to be executed and so also the Occupation Certificate for whatsoever reasons, remained to be obtained. It is also not disputed that some of the flats which are subject to allotment by the State of Maharashtra i.e. its Urban Land Ceiling Department are still with the builder-developer.
3. According to the builder-developer, he had already taken steps to obtain Occupation Certificate, but same could not be obtained since allotment by the State of Maharashtra (through its ULC department) of the flats under their control is yet not completed.
4. It is the contention of the Society that Society and its members namely, flat purchasers were not aware about the consumption of total F.S.I. by the builder-developer. There is one semi square plot bearing CTS No.318 admeasuring 517.3 sq.mtrs. beyond the proposed building pump-room and it is a part of the Society plot. However, the builder-developer has usurped said plot and included in the adjoining plot which was owned by the builder-developer. It is also alleged that for want of Occupation Certificate, water charges are levied at higher rate by the Municipal Corporation and bills were raised accordingly. Claim of taxes of `11,05,913/- which is required to be paid for the period prior to April 2005 is also made a subject matter of this consumer complaint. Other reliefs claimed in the consumer complaint pertains to claim of `1,85,375/- as outgoing charges in respect of flat No.B-701 with interest @ 18% p.a. from 01/04/2005 till payment. Said flat is stated to be in possession of the builder-developer. Certain documents as listed in Para 10 of the complaint are also claimed from the builder-developer. Information and details of the flat under control of State of Maharashtra and particularly, its ULC Department were also demanded. Complainant-Society claimed that there are expected structural repairs with estimated cost of `12,55,037.50. Apart from this, `5 Lakhs are claimed as towards liquefied damages to enable the Society for depreciation in the market value of the flats in the Society building for want of Occupation Certificate as well as for causing mental torture and inconvenience and further `1 Lakh are claimed as costs.
5. The builder-developer showed his willingness to execute Conveyance and tried to explain the circumstances which are coming in a way to obtain Occupation Certificate. All other allegations and claims are specifically denied.
6. The complainant filed affidavit of Anilraj Vaidya in evidence which is nothing but reproduction of the complaint. It does not answer to the case made out by the opponent-builder-developer as per their written version which the complainant ought to have answered. There is absolutely no evidence lead on behalf of complainant-Society as to whether they were required to pay the taxes which according to them 50% were agreed to be shared by the builder-developer for the period till Occupation Certificate is obtained. Such agreement on the part of builder-developer is not at all established and even if we find that builder-developer had to share 50% of the taxes as alleged by the complainant-Society, still charging such taxes for assessment thereof at double rate for want of Occupation Certificate and actual payment of such taxes is not at all established. Therefore, considering the provisions of Section 69 of the Indian Contract Act, 1872, no such reimbursement could be claimed by the Society. Besides that the monetary claim since unrelated with the housing construction activity for which services of builder-developer were hired cannot be a consumer dispute.
7. Same is the case in respect of claim of enhanced water charges. As far as claim of `1,85,375/- made towards outgoing charges in respect of flat No.701 undivided is concerned, it will fall in distinct category unrelated with the consumer dispute. Such charges for maintenance or otherwise if could be levied by the Society and could be charged, the builder-developer since occupation of the said flat after formation of the Society, then since it is not related with the element of hiring and services of housing construction, but covering the right of the Society holding such charges, its recovery is further governed by provisions of bye-laws of the Society and such amount can be recovered as per the remedy provided under the Maharashtra Co-operative Societies Act. Therefore, such claim cannot be made in this consumer complaint.
8. The complainant-Society had claimed lucrative damages of `5 Lakhs in the consumer complaint. On establishing deficiencies in service quantum of compensation is to be considered in that light as per affected by the circumstances established in each case. Lucrative damages on the alleged ground of depreciation of the market value of the flats, etc. cannot be claimed as a consumer dispute since the complainant is a Society is a juridical person and not a living person and, thus, any question of mental torture is out of question.
9. The Society was already formed in the month of February 2005. It is not made clear by the complainant-Society as to when first meeting of the Society thereafter was held in which the Ad-hoc Managing Committee which supposed to govern the Society for one year was formed and the business conducted in the said meeting. In the said meeting the promoter was expected to hand over the record pertaining to the Society to the Society. It is alleged by the builder-developer that he had already handed over the necessary papers to the Society when it was in a process of formation and registration. So that, those papers could be submitted to the authority. The law is well settled about transfer of F.S.I., etc. in favour of the Society once it was registered and any declaration to that effect as claimed particularly in clause 13 (c) of the complaint being out of scope of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for brevity), cannot be granted. Once conveyance is executed, automatically the mutation would take place as per the provisions of Maharashtra Land Revenue Code. Therefore, reliefs claimed accordingly cannot be granted as consumer dispute relating to deficiencies in service.
10. As per the averments made in his written version as well as further communicated in his communication dated 18/01/2008 to the Society by the builder-developer, he showed his willingness to execute conveyance/lease deed as the case may be as per the terms of agreement of sale executed between shop and flat purchasers. Since, it is yet to be executed, the relief to that extent need to be granted in favour of the Society as deficiency in service on this count on the part of builder-developer can be inferred as well established. As far as Occupation Certificate is concerned, considering the letter dated 26/10/2007 of Additional Collector and Competent Authority (ULC), Greater Mumbai which was addressed to the Executive Engineer, Construction of Building Proposal Department, P & R Wards, Kandivali (West) of Mumbai-400 067, the department has already conveyed its No Objection to grant Occupation Certificate. Therefore, it is for the builder-developer to take further necessary steps to ensure that Occupation Certificate is obtained. We propose to grant considering the practical circumstances of the day, some time to obtain Occupation Certificate as per the final order below.
11. As far as structural repair costs are concerned, it relates to wear and tear of the building and has nothing to do with hiring of services of the builder-developer for housing construction. If such expenditure is incurred actually, and if the Society wants to fasten liability thereof on the builder-developer, that would be a case of separate civil action and not of consumer dispute.
12. The complainant-Society also claimed cost of `1 Lakh of this proceeding, we find such is an arbitrary demand on the part of complainant-Society.
13. For the reasons stated above, we hold accordingly and settle the consumer dispute between the parties as per the order below :-
-: ORDER :-
1. The complaint is partly allowed.
2. The opponent-builder-developer is directed to execute the conveyance in favour of the complainant-Society at the costs of the complainant-Society.
3. The opponent-builder-developer shall also take necessary steps and obtain Occupation/Completion Certificate and handover the same to the complainant-Society.
4. Both these directions be complied with as early as possible but within the six months from this order.
5. The opponent-builder-developer to bear its own costs and to pay `25,000/- as costs to the complainant-Society.
6. Copies of the order be furnished to the parties.
Pronounced
Dated 29th September 2011.
