State Consumer Disputes Redressal Commission
Green Lawns Apartments Chs Ltd vs 1. Green Developers Pvt Ltd & Ors. on 9 April, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/09/44
1. GREEN LAWNS APARTMENTS CHS LTD
OPP ST
PIOUS COLLEGE AARYEY ROAD
GOREGAON (E) MUMBAI 400063
...........Complainant(s)
Versus
1. GREEN DEVELOPERS PVT LTD
BHAGYODAYA BLDG 4 TH FLOOR 79 FORT MUMBAI 400023
2. HARSH SHAH
79, BHAGYODAYA
BUILDING, 4TH
FLOOR, NAGINDAS MASTER RD.,
FORT MUMBAI-23
3. JABBAR A. TANWAR
79, BHAGYODAYA
BUILDING, 4TH
FLOOR, NAGINDAS MASTER RD.,
FORT MUMBAI-23
4. VIRENDRA B. TIWARI
79, BHAGYODAYA
BUILDING, 4TH
FLOOR, NAGINDAS MASTER RD.,
FORT MUMBAI-23
5. SMITA JAYESH SHAH
79, BHAGYODAYA
BUILDING, 4TH
FLOOR, NAGINDAS MASTER RD.,
FORT MUMBAI-23
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
None
......for the Complainant
Adv.S.B.Prabhawalkar
......for the Opp. Party
ORDER
(Per Shri S.R.Khanzode, Honble Presiding Judicial Member ) (1) This consumer complaint refers to alleged deficiency in services on the part of Green Developers Pvt. Ltd. (hereinafter referred as the builder) in respect of Wings B, C, D in which flat purchasers who are members of the complainant - Green Lawns Apartments CHS Ltd. (hereinafter referred as the Society), have purchased their respective flats from the builder in a complex known as Green Lawn Apartments situated at Goregaon (East), Mumbai 400 063. It is alleged on behalf of the society that possessions of the flats were given to the respective purchasers from these Wings B, C, D during the period July 2003 to April 2005. Their society was registered on 16/10/2007. Occupation certificate in respect of Wing C & D is already obtained. However, Occupation certificate in respect of Wing B is yet to be obtained by the builder. In absence of such Occupation certificate, no water connection on regular basis could be obtained, and the society is required to depend upon tanker water. Water supplied by the builder through a tap taken for construction is inadequate as well as bore well provided is not in operation and, therefore, through M/s.Pooja Transport, the society was required to ensure additional supply of water through tanker and, thus, alleging deficiency in service on the part of the builder for not obtaining Occupation certificate for Wing B, a compensation is claimed as per the prayer clauses, infra. It is also alleged that though 20,000/- were collected from each flat purchaser towards the formation of the society, the builder failed to form the society. The flat purchasers were required to form the society on their own. It is also alleged that for want of Occupation certificate for Wing B, charges of assessment were levied 39% more for residential to the tune of `5,17,762.79 and 78% more to commercial to the tune of `8,51,094.73 for the period of 01/04/2005 to 31/03/2009 as per the certificate obtained by the society, a compensation is claimed accordingly.
(2) It is also alleged on behalf of the society that though the builder had collected payments for maintenance charges, the builder failed to pay assessment charges and the account of expenditure made on that count is also not submitted. The society also refers to not providing second lift and the lift which is provided is not functioning properly as well as no providing under ground water tank, as agreed.
(3) The society, ultimately, claimed reliefs as per prayer clause which reads as under:-
a) To direct the OP to obtain the Occupation Certificate for B wing within one month from the date of the order failing which the OP be directed to pay a penalty of `500/- per day to the complainant society till obtaining the Occupation Certificate.
b) To direct the OP to disburse the expense of Tanker water charges of M/s.Pooja Transport as per averment mentioned above and bills annexed to the complaint amounting to `2,70,450/- as on Jan 2009 and to direct OP to pay future expenses as per bills of tanker water submitted from time to time on the same till occupation certificate and regular water tap obtained.
c) To direct OP to provide separate water connections to B, C & D wing for commercial shops.
d) To install and commission the second lift and ensure smooth functioning of the same.
e) To carry out satisfactory repairs of the existing lift within one month from the order of this Forum.
f) To remove the leakages from the flats to the satisfaction of the concerned members.
g) To refund the amount of `20,000/- each (collected for formation and registration of the Society) to 78 members amounting to `15,60,000/- along with 18% interest per annum thereon from the date of collection of this amount till the date of actual repayment.
h) To complete designer entrance lobbies with spartex/granite flooring.
i) To construct underground water tank, drainage and compound wall within one month from the date of the order.
j) To provide adequate car
parking area for each wing.
k) To provide office
premises for the society within one month from the date of the order.
l) To convey the land and building thereon in the name of the Society within two months from the date of the Order, failing which penalty of `1,000/- per day be made payable by OP to the complainant society till the actual date of conveyance.
m) To direct OP to remove all hurdles to avoid losses, physical hardship and mental torture.
n) To reimburse to the complainant society 5,17,762.79 (towards residential) and 8,51,894.73 (towards commercial) respectively total amounting to 13,69,657.52 paid to BMC by way of extra assessment charges in the absence of Occupation Certificate and also future levied taxes by BMC as mentioned above.
o) To obtain regular water
connection for B Wing.
p) To make bore well
operational within one month.
q) To furnish steps
properly in the staircase and grilling should be done properly.
r) To pay adequate cost to the complainant society bases on the number of hearings.
s) To direct OP to submit details of expenses as mentioned above and reimburse the balance if any, to the complainant society.
t) Any other relief as the
Honble Commission may deem fit and proper.
(4) The builder opposed the
consumer complaint denying all adverse allegations as per its written version presented on 06/03/2010.
Formation of the society by the flat purchasers of Wing B, C, D (as related to those wings) is not disputed by the builder. Certificate of registration shows that the society is registered on 16/02/2007.
The society by its resolution dated 15/12/2008 decided to file the consumer complaint and accordingly consumer complaint was filed on 20/02/2009. Wing B consists of ground and 7 floors and it is not disputed that Occupation certificate in respect of said wing is yet to be obtained.
The complainant society already took in its hands the management of Wing B, C & D and looking after the same. It is the submission of the builder that after the society assured the management, the condition of wing B, C and D got deteriorated. The builder has already incurred expenses of `22,31,524/-
as detailed in the annexure of the written version and `8,37,272/- are yet to be received from the members of the society.
Secondly, though not agreed, the lifts installed are maintained properly and no deficiency in service on the part of the builder in that respect could be alleged. It is the members of the society who are mishandling the equipments fitted in the lifts. However, since the maintenance of lifts is taken over by the society, the builder is not responsible for the same. As far as providing under ground water tank is concerned, since the project is still incomplete and other wings are yet to be constructed as per phase-wise construction plan. The builder, therefore, arranged for 4 tanks each with 20,000 litres capacity and water can be stored therein for each wing, by way of alternate arrangement till the entire project is complete. The compound wall and drainage will be constructed only upon completion of the project. It also refers to getting affected and stoppage of construction entire activity due to the public interest litigation/writ petition filed at Bombay High Court and which prohibited utilization of TDR for the corridors.
Since the entire property falls within the prohibited corridors, viz. in between the Western Railway and Western Express Highway at the relevant time, pursuant to the order passed by the Honble High Court, a general stay was granted and, therefore, the development of the said entire property by utilizing the TDR was forbidden. Said ban was got vacated before filing the consumer complaint. The cost of TDR has shot up since then and at the time of filing written version; it fetched the market rate of `4,000/-
whereas the flats sold to the members of the complainant society are within the range of `1,200/-
to `2,000/-
per sq.ft. saleable area. The cost of the TDR at `4,000/-
per sq.ft. plus other expenses will aggregate to a total cost to `6,000/- per sq.ft. and therefore, it is not commercially or otherwise viable unless and until the hutment-dwellers settle for an alternate accommodation. However, the builder in its written version assured the society that it will provide water tank, proper drainage system and compound wall as permitted by the Municipal Corporation of Greater Mumbai.
(5) The builder also further submitted that negotiations with the tenants are still going on and unless some of the tenants are shifted to the transit accommodation, it is only then it would be possible to obtain the occupation certificate (for Wing B) and it was assured that such occupation certificate would be obtained shortly. It also committed to bear the difference of extra charges levied for commercial premises for want of occupation certificate and asserted that the builder has no intention either to penalize the members of the complainant society or to the complainant society for any delay caused on its part either in discharging its obligations or in complying with the requirements of the Municipal Authorities and it would pay and bear the burden of extra or alleged penal charges required to be paid by the society. Further, re-asserting that since the society is formed and taken its management, it is entirely responsible for management of B, C, D Wings and problems related to it.
(6) On behalf of the complainant society, affidavit of its Honourary Secretary, Anant Ramchandra Kadav dated 02/02/2011 is filed. The builder filed affidavit of Jayesh Shah dated 20/07/2011. Both the parties have tendered and filed the copies of documents, but they are not strictly proved and tendered evidence and therefore, we take into consideration only those which are either referred by both the parties and emerges as undisputed one.
(7) Admittedly, conveyance of the property which as per the Maharashtra Flats Ownership Act, (MOFA in short) is yet to be executed. Considering the fact that the society was registered on 16/02/2007 and since the builder is well aware of this fact since from the beginning of formation and registration of the society, the deficiency in service on the part of the builder for not executing the conveyance is well established. It may be pointed that the entire project consist of several wings but still a conveyance in respect of Wings B, C, D which falls within the operation area of the society, could be executed in terms of the agreements with each one of flat purchasers.
Non-completion of entire project would not in such circumstances, will give any excuse to the builder.
Of course, the builder is required to obtain occupation certificate in respect of B Wing, before executing the conveyance.
(8) As revealed from the correspondence and submissions made, it could be seen that the main hurdle in obtaining occupation certificate of B Wing is in respect of use of TDR and a hurdle which was created due to litigation pending in High Court. However, as submitted by builder himself, said obstacle is no more existed and would come in the way to procure occupation certificate in respect of B Wing. Occupation Certificates in respect of Wing A and C is already obtained.
Occupation certificate in respect of B Wing is yet to be obtained, perhaps, due to unauthorized construction of 7th floor and use of TDR for corridors (which could not be used earlier). As submitted by the builder himself for some economic consideration, now though available he does not want to purchase required TDR to remove the obstacle to obtain the occupation certificate in respect of C Wing.
This approach, perhaps, is not permissible to the builder. In fact, once he decides to sell the flats and sold the flats including flats situated on 7th floor of B Wing the members of the society and even put them in possession, he is under obligation to ensure that completion certificate vis--vis occupation certificate in respect of wings including B Wing is obtained. In this respect, it will be useful to quote here the observations of the Apex Court in the matter of Faquir Chand Gulati Vs. Uppal Agencies Pvt.Ltd. & anr. MANU/SC/3133/2008 and evquivalent citation III (2008) CPJ 48 (SC) and will read as under:-
26. The surviving prayer is no doubt only for a direction to the builder to furnish the completion certificate and C & D forms. It is not disputed that the building of this nature requires a completion certificate and building assessment (C&D forms).
The completion certificate and C&D forms will not be issued if the building constructed is contrary to the bye-laws and sanctioned plan or if the deviations are beyond the permissible compoundable limits. The agreement clearly contemplates the builder completing the construction and securing completion certificate. The agreement, in fact, refers to the possibility of deviations and provides that if there are deviations, the builder will have to pay the penalties, that is do whatever is necessary to get the same regularized.
Even if such a provision for providing completion certificate or payment of penalties is not found in the agreement, the builder cannot escape the liability for securing the completion certificate and providing a copy thereof to the owner if the law requires the builder to obtain completion certificate for such a building.
27. A prayer for completion certificate and C&D forms cannot be brushed aside by stating that the builder has already applied for the completion certificate or C&D Forms. If it is not issued, the builder owes a duty to make necessary application and obtain it. If it is wrongly withheld, he may have to approach the appropriate court or other forum to secure it. If it is justifiably withheld or refused, necessarily the builder will have to do whatever that is required to be done to bring the building in consonance with the sanctioned plan so that the municipal authorities can inspect and issue the completion certificate and also assess the property to tax.
If the builder fails to do so, he will be liable to compensate the complainant for all loss/damage.
Therefore, the assumption of the State Commission and National Commission that the obligation of the builder was discharged when he merely applied for a completion certificate is incorrect.
(9) While considering the issue as to quantum of compensation, it is submitted on behalf of the builder that since the quantification of the damages or compensation on proof of actual loss suffered is not furnished by the society, compensation awarded particularly on account of expenses incurred for water providing through tanker should not be considered. The learned counsel placed reliance on the decision of The National Consumer Disputes Redressal Commission, New Delhi in the matter of - Bank of Baroda Vs. Arvinde Modern Dal & Rice Mill I (1996) CPJ 271 (NC). The proposition advanced, in the background of the present case, is not applicable. On the contrary, the decision of the Apex Court in the matter of - (Gaziabad Development Authority Vs. Balbir Singh, AIR 2004 SC 2141 - would be of some help while fixing the parameters to grant the compensation.
(10) Since the builder failed to obtain occupation certificate before handing over the compensation of the flats as required U/s.3 of Maharashtra Flat Ownership Act, 1963 (MOFA) is guilty of deficiency in service on that count and therefore need to compensate the society.
In this respect, the society claimed compensation for reimbursement of `2,70,450/-
for the expenses of water tanker charges as on January 2009 i.e. till before filing consumer complaint. We find that the copies of bills filed by the society as well as by the builder indicates an expenditure on that count falling in between `10,000 and `15,000/- per month. Considering the period next to the filing of the complaint and considering the lower side amount `10,000/- per month, we find compensation of `2,70,450/-
on this count would be reasonable and just compensation which could be awarded in favour of society.
(11) As far as bearing extra burden over payment of corporation taxes, we find there is hardly any evidence led by the society to show that they have actually incurred additional expenses to the tune of `5,17,762.79 towards residential and `8,51,094.73 towards commercial premises. There is no evidence led to show that on account of lack of occupation certificate in respect of B Wing, they had to shoulder such extra burden of the taxes. There are no particulars made available on this count. These additional expenditure are not admitted by the builder. It was stated, supra, that the extra burden in respect of commercial premises would be shouldered by them. But to claim compensation on this count, it is the society which has to establish, firstly, that they are charged excessively or was required to be shouldered extra burden while paying corporation taxes. They failed to do so and therefore, no compensation on this count for failure to obtaining occupation certificate could be assessed and awarded.
(12) As far as the amount of `20,000/-
collected from some of the members for formation and registration of the society, one has to referred to agreement between the flat purchasers and the builder. One of such agreement dated 30/12/2003 in respect of flat purchaser, Namdeo Tukaram Pednekar who purchased flat No.401 in B Wing, is on record. The builder along with its written version at Exh.2 has given a list of flat purchasers from Wing A, B, C, D and shopkeepers, who had contributed the said amount. Referring to clause 12 & 13 of the agreement, supra, they read as under:-
12. The flat purchaser/s shall on execution of this agreement and prior to taking possession of the flat/shop/unit/office/premises/apartment, deposit with the Promoters following sums of money in addition to any other amounts mentioned in this agreement:
(i) `261/- (`Two Hundred Sixty One only) for share money towards entrance fee of the proposed co-operative housing society or limited company.
(ii) `5,000/- (`Five Thousand only) towards the deposit to meet the legal expenses and other out of pocket expenses for formation and registration of the society.
(iii) `15,000/- (`Fifteen Thousand only) towards the deposit to meet the legal expenses and other out of pocket expenses for formation and registration or the society.
13. The Promoters shall utilize the sum of `20,000/- (` Twenty Thousand only) as mentioned in Clause 11 paid by flat purchaser/s for meeting all legal costs, charges and expenses including professional costs of the attorneys at law/advocate of the Promoters in connection with formation of the said society or limited company as the case may be preparing rules, regulations and bye-laws and the cost of preparing and engrossing this agreement, and the conveyance or deed of assignment of lease.
(13) Mere perusal of these clauses would show that the claim of the society that `20,000/- were collected towards formation of the society charges is not correct. What is collected as deposit as per amounts referred above, covers so many expenses and the society certainly could settle the account in respect thereof with the builder. Needless to mention that the settlement would cover the arrears to be payable to the builder on relevant counts. Therefore, no relief as prayed covering the issue of deposit of `20,000/- (alleged to have been collected for charges of formation of society) could be granted, since deficiency in service on that count is not established. As far as the relief pertaining to the providing designer entrance lobbies with spartex/granite flooring, to provide adequate car parking area for each wing is concerned, a vague direction is sought.
Relating to physical hardship and mental torture, obtaining regular water connection for B wing, making bore well operational within one month, furnishing steps properly in the staircase and grilling should be done properly. To provide separate water connection for commercial shops and remove the leakages pertains to alleged deficiency in service. The cause of action for which arose when the possession of respective flats were taken by the flat purchasers which was admittedly in between July 2003 to April 2005 and, therefore, at the first instance, those claims being time barred, cannot be considered. Furthermore, to consider alleged deficiency in serve on above referred count, it must be established that those amenities were agreed to be provided by the builder, but the society failed to do so.
(14) As earlier observed, second lift was not agreed to be provided by the builder and in any case after providing it, no deficiency in service could be alleged. After formation of the society, it is the society who looks after proper maintenance of the lifts.
(15) As far as car parking area is concerned, it is a domain of the society to make utilize the area of car parking from the open space as per bye-laws of the society. Therefore, no deficiency in service on the part of the builder could be alleged.
It is not the case that as per development rules while sanctioning the project and particularly wings B, C, D, the local authorities ignored this fact. In fact grant of commencement certificate ensures that the builder has made adequate provision for each wing. Therefore, deficiency in service on par to the builder cannot be alleged and it is also, simultaneously, not established by the society.
(16) The office premises to the society are already provided and, hence, grievance in that respect does not survive, (17) For the reasons stated above, we hold accordingly and partly allow the complaint as per the final order below.
ORDER The complaint is partly allowed.
Opponent/builder do execute conveyance of Wing B, C, D which is a subject matter of this complaint and falls within the area of the operation of the complainant society as per the by-laws of the complainant society, at the cost of the complainant society, after completing the building i.e. Wings B, C and D in all respect as per the sanctioned plan inter-alia including obtaining the occupation certificate; in favour of the complainant society at an early date but in any case before 6 months from today.
Opponent/builder do pay `2,70,450/- to the complainant society as compensation towards sufferance faced by it for want of occupation certificate and related problem on account thereof.
Opponent to bear its own costs and pay `25,000/- as costs to the complainant society.
Pronounced on 9th April, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER pgg