Tripura

StateCommission

A/46/2022

Shri Anup Roy - Complainant(s)

Versus

Tripura Urban Planning And Development Authority (TUDA) - Opp.Party(s)

Mr. S. Choudhury

31 Mar 2023

ORDER

J U D G M E N T [ORAL]

 

Heard Mr. Sampad Choudhury, learned counsel appearing for the appellant. None appears on behalf of the respondent. Despite repeated adjournments, Mr. D. Bhattacharya, learned Government Advocate has not appeared before this Commission. As such, this Commission has taken up the hearing in his absentia for the interest of the consumer.

1. This is an appeal filed by the complainant, the appellant herein, against the impugned judgment dated 16.11.2022 passed by the learned District Commission, West Tripura, Agartala in connection with Case No.CC.405 of 2022.
2. Briefly stated, it is the appellant-complainant’s case that he had entered into an agreement with the Tripura Urban Development Authority (in short TUDA) to purchase a flat being developed and constructed by it. The construction has not been completed. It is the grievance of the complainant that the respondent-TUDA had charged one year maintenance and on account of occupancy of the flat to the tune of Rs.35,200/- + Rs.6,336/- as GST @ 18%, in total Rs.41,536/- in advance from the appellant-complainant.
3. Being aggrieved of such charge against the maintenance and occupancy, the appellant-complainant had filed an application before the leaned District Commission, but the learned District Commission rejected the claim of the complainant on the ground that the complainant is not a consumer as defined under Section 2 (7) (i) of the Consumer Protection Act, 2019. According to this Commission, this finding is totally erroneous and not tenable in law. The complainant is purely a consumer which comes within the purview of the definition ‘consumer’ under Section 2 (7) (i) of the Consumer Protection Act, 2019. Even if, the respondent-TUDA is not a mercantile organization, but it is an organisation which is developing, promoting and selling flats at the rate which is fixed considering the market price. So, it is becomes commercial organisation and falls within the ambit of Consumer Protection Act, 2019.  
4. Now question comes, as to whether one year maintenance and occupancy charge can be demanded by the respondent-TUDA from its consumers/purchasers in advance at the time of entering into agreement, that is, even before completion of the building.
5. The building is still under construction. The purchaser i.e. the appellant-complainant had never occupied the premise allotted to him. The complainant can occupy the flat only after completion of the building. As such, when the flat is not in occupation by a purchaser, then, how the respondent-TUDA can demand maintenance and occupancy charge.
6. A similar and identical question came up for consideration before the Hon’ble National Consumer Disputes Redressal Commission in Consumer Complaint No.736 of 2020 titled as one Madhusudhan Reddy R and J. Shanthamma & Ors. Vs. VDB Whitefield Development Pvt. Ltd. and two others wherein it is directed “..............Not to collect any maintenance charge till the receipt of Occupancy Certificate. The advance maintenance charge as given in clause 14.5 of the Construction Agreement and any other maintenance charges so far collected should be adjusted towards the maintenance charge to be paid by the Complainants post receipt of Occupancy Certificate.”   
7. Following the above principle, we direct the respondent-TUDA not to make any demand for one year maintenance and occupancy charge since the possession of the flat is not handed over to the appellant-complainant there may be situation that building is completed and the owner of the flat has taken over symbolical possession, but, having occupancy certificate, in that case, even without physical possession, the TUDA may charge for maintenance and on account of occupancy of the flat.
8. Therefore we hereby hold that maintenance and occupancy charges can be demanded only after taking over the symbolical or physical possession of the flat by the purchasers or from the date, the building will be developed fully and it is made operational and befitting for occupation by the purchasers.
9. Accordingly, the maintenance and occupancy charge that was already taken by the respondent-TUDA from the complainant is illegal and arbitrary and TUDA is liable to refund the money to the complainant. The amount which has already been paid to be adjusted after occupation of the flat by the appellant-complainant. Accordingly, in view of the aforesaid order, necessary rectification has to be made in the online application.      

          With the above directions, the instant appeal stands allowed and the impugned judgment dated 16.11.2022, passed by learned District Commission, West Tripura, Agarala stands set aside and quashed.