National Consumer Disputes Redressal
Sharma Properties Pvt. Ltd. vs Prerna Co-Operative Housing Society on 20 October, 2003
ORDER
B.K. Taimni, Member
1. Appellant was the Opposite Party before the State Commission where the Respondent, Prema Co-operative Housing Society had filed a complaint alleging deficiency in service on the part of the Appellant.
2. The brief facts of the case are that the parties had entered into an agreement dated 25.4.84 by virtue of which the appellant who was the developer was to construct the flats and handover the possession of the flat to a society formed by the flat owners. The construction was completed much later and occupation certificates were not obtained by the appellant on account of which the flat owners were getting deprived of certain basic facilities as also paying higher rates for facilities like water supply etc. Obtaining occupancy certificates is a mandatory requirement in Maharashtra. It is in these circumstances that a complaint came to be filed before the State Commission. The State Commission after hearing the parties directed the parties to seek relief before civil court, but on an appeal being filed before this Commission, the matter was remanded for fresh inquiry and passing order as per law. The State Commission after hearing the parties, passed the following order:-
"In all the complainant Society is entitled to Rs. 7,50,000/- plus cost of Rs. 10,000/- from the O.P. The said amount shall carry interest of 18% from the date of complaint till recovery. The OP shall obtain occupation certificate within 4 months from the date of this order, failing which the OP shall pay the penalty of Rs. 250/- per day after the period of 4 months, to the society."
3. Aggrieved by this order the appellant had filed this appeal before us:
The arguments advanced by the Learned Counsel for the Appellant are two-fold, one, as per direction given by this Commission vide its order dated 19.4.96 the disputes can be resolved after deputing an expert to get the building in question, inspected by him which will also help in determining the defects in the building. This direction has not been complied by the State Commission and secondly, the betterment charges which are payable by the Respondent / Complainants by virtue of the agreement have not been paid as a result of which only the appellants have not been able to obtain the occupancy certificates and there is large amounts of unauthorised constructions carried out by individual flat owners which are without the permission and not as per approved plans. It is on account of this that the Bombay Municipal Corporation (BMC) has withheld issuing the occupancy certificate. On the other hand, it is contention of the Learned Counsel for the Respondent that as per Clause 7 and Clause 23 of the agreement, the complainants shall be liable to pay the betterment charges if the appellant is able so that the BMC had levied the development / betterment charges. According to him no development / betterment charges have never been paid by the appellant to the BMC - hence there is no ground to collect this from the complainants.
4. We have heard the arguments and perused the material on record and find on record that based on the letter of M/s. Patel Associates, estimated cost of removing the defects and also providing water connection, has been worked out. In our view this meets sufficiently the direction given in our remand order passed earlier about the deputing an expert to inspect the defects and report on the issue. As far as grant of occupancy certificates is concerned, which is the core issue before, this was not issued by the BMC on account of the following 8 considerations:-
"1. There are 8 Nos. of shops on Ground floor against 7 Nos. approved.
2. The open spaces are not as per approved plans.
3. The part terrace at 1st floor is covered without permission.
4. The work beyond plinth level, i.e., Ground to 7th floor is carried out without obtaining commencement Cft.
5. The entire building, i.e., Ground to 7th floor is occupied without permission.
6. The shop owners on ground floor have extended these shops by 4'-o" on East side by reducing frond open space and part terrace above shops is being misused by 1st floor occupants.
7. The developer has not paid pro-rata charges towards cost of construction of bridges and not submitted N.O.C. from Federation of Co-op. Societies in S.S. Nagar regarding payment of pro-rata shares towards development of infrastructure in layout.
8. The Architect has not complied I.O.D. conditions nor submitted building completion Cft.
Under the circumstances unless the final plans along with B.c.C. are submitted by Architect, it is not possible to work out the payments, i.e., fees, deposits, penalties etc. to be paid to the M.C.G.M. by developer."
5. Mere perusal of this makes it very clear that there are certain fundamental and key violations by way of excess construction and not adherence to the approved plan which is at the root of BMC not granting the occupancy certificates and these fall within the domain of the appellant and it is for him to remove these defects. We appreciate the arguments advanced by the Learned Counsel for the Respondent / Complainant that if and as and when BMC raised the betterment charges, the society could consider this but till date there is no evidence that any betterment charges in terms of Clause 7 and Clause 23 of the agreement have been raised by the BMC, in the absence of which it will be futile to give any money to the appellant when no such demand has been raised by the BMC. Clause 7 and Clause 23 of the agreement reads as under:-
"7. the Purchaser/s hereby agree/agrees that in the event of any amount by way of premium or security deposit being payable to the Municipal Corporation of Greater Bombay or to the State Government or betterment charges or development tax or security deposit for the purpose of giving water and electricity connection or any other tax or payment of a similar nature becoming payable by the developers the same shall be paid by the purchaser/s to the developers in proportion to the area of the said premises and in determining such amount the decision of the developers shall be conclusive and binding upon the purchaser.
23. If at any time development and/or betterment charges or other levy is charged levied or sought to be recovered by the Municipal Corporation of Greater Bombay in respect of the said building and/or the said property the same shall be responsibility of all the purchasers of the several premises in the said building and the same shall be borne and paid by the purchasers in proportion to the respective areas of their respective premises."
6. A plain perusal will makes it very clear that when BMC levies the betterment charges, only then, the purchasers - in this case - members of the respondent society - shall be liable to pay this in proportion to the respective areas of their respective premises. Since no such demand has been made this cannot be made a ground. It appears the other point at the issue is about some violation by way of addition to the existing construction by some members of the society. It is for the Municipal Corporation to proceed against them as per law on the subject, i.e., either by compounding or by removing those structures which are in excess of the approved / sanctioned plans. There is little doubt in our mind that the basic problem is not much with the facilities but the violations or non adherence to the approved plans and other points mentioned in the letter dated 12.6.98 from BMC. In view of this it is for the appellant to meet his part of the obligation and remove deficiency as pointed by BMC vide its letter dated 12.6.98 and obtain the occupancy certificate as per terms of the agreement.
7. In view of this we find no merit in the arguments advanced by the Learned Counsel for the appellant. However, we feel that the rate of interest granted by the State Commission is on the high side on the awarded amount which we reduce to 12% pa. instead of 18% p.a. as granted by the State Commission. Only to this extent the Appeal is allowed.
8. Keeping in view the facts and circumstances of this Appeal, no order as to costs.