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[Cites 21, Cited by 0]

State Consumer Disputes Redressal Commission

M/S Foresquare Developers & Ors. vs Dahisar Saraswati Co-Op Hsg Soc Ltd. & ... on 17 November, 2011

  
 
 
 
 
 
 BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL 
  
 
 
 
 
 







 



 
   
   
   


   
     
     
     

BEFORE THE HON'BLE STATE CONSUMER
    DISPUTES REDRESSAL  
    
   
    
     
     

COMMISSION,  MAHARASHTRA,
    MUMBAI 
    
   
  
  
   

 
  
 
  
   
   
     
     
     
       
       
       

First Appeal No. A/09/1419 
      
     
      
       
       

(Arisen out of Order Dated 22/09/2009
      in Case No. CC/435/2004 of District Mumbai(Suburban)) 
      
     
    
     

 
    
   
    
     
     

  
    
   
    
     
     
       
       
       
         
         
         

1. M/S FORESQUARE DEVELOPERS 
        
       
        
         
         

Kantilal House, 14 Mama Paramanand Marg, Mumbai 400
        004. 
        
       
        
         
         

2. Smt. Nalini Himmatlal 
        
       
        
         
         

Kantilal House, 14 Mama Parmanand Marg, Mumbai 400
        004. 
        
       
        
         
         

3. Mukesh Himmatlal 
        
       
        
         
         

Kantilal House, 14 Mama Parmanand Marg, Mumbai 400
        004 
        
       
        
         
         

4. Smt. Hiral Rajesh 
        
       
        
         
         

Kantilal House, 14 Mama Parmanand Marg, Mumbai 400
        004 
        
       
        
         
         

5. Wonder Estate Developers Pvt. Ltd. 
        
       
        
         
         

Kantilal House, 14 Mama Parmanand Marg, Mumbai 400
        004 
        
       
      
       

 
      
       
       

...........Appellant(s) 
      
     
      
       
       

Versus 
      
     
      
       
       
         
         
         

1. DAHISAR SARASWATI CO-OP HSG SOC LTD 
        
       
        
         
         

  C.S.T.
          Road No. 4, Dahisar (West), Mumbai 400 068
        Through Member/Secretary Shri. Dixit P. Mehta  
        
       
        
         
         

2. Keshav Arjun Raut 
        
       
        
         
         

(Dahisar Wale), At & Post Waliv, Taluka Vasai
        (East), Dist. Thane 
        
       
        
         
         

3. Mayur Keshav Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

4. Smt. Malati Keshav Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

5. Smt. Prema Arjun Mhatre 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

6. Bharat Keshav Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

7. Miss Hema Keshav Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

8. Smt. Sushila Jagannath Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

9. Padmakar Jagannath Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

10.   Miss.
        Devayani Jagannath Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

11. Miss Hira Jagannath Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

12. Parshuram Arjun Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

13. Jayendra Parsuram Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

14. Miss Manda Parshuram Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

15. Miss Nandini Parshuram Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

16. Vijay Parshuram Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

17. Smt. Anusaya Parshuram Raut 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

18. Smt. Thumabai Atmaram Dhumal 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

19. Hiraji Atmaram Dhumal 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

20.   Miss.
        Hansa Atmaram Dhumal 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

21. Jayashri Bhalchandra Sutar 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

22.   Miss.
        Suman Atmaram Dhumal 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
        
         
         

23. Smt. Anandi Gajanan Bhoir 
        
       
        
         
         

Dahisar Gaothan,   Ramchandra Pawaskar Road, Raut
        Galli, Dahisar (West), Mumbai 400 058 
        
       
      
       

 
      
       
       

...........Respondent(s) 
      
     
    
     

 
    
   
  
   

 
  
 
  
   
   

 ...........Respondent(s) 
  
 
  
   
   
     
     
     

 BEFORE: 
    
     
     

  
    
   
    
     
     

  
    
     
     

Hon'ble Mr. P.N.
    Kashalkar PRESIDING MEMBER 
    
   
    
     
     

  
    
     
     

Hon'ble Mr.
    Dhanraj Khamatkar Member 
    
   
  
   

 
  
 
  
   
   

  
  
 
  
   
   
     
     
     

 PRESENT: 
    
     
     

S B PRABHAVALKAR
    , Advocate for the Appellants  
    
   
    
     
     

  
    
     
     

Mr.N.G. Gupta, Advocate for respondent No.1.  
    
   
  
   

 
  
 
  
   
   
     
     
     

 ORDER 

Per Shri Dhanraj Khamatkar, Honble Member This appeal takes an exception to an order dated 22/09/2009 passed by the Additional District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint No.435/2004.

 

2. Facts leading to this appeal can be summerised as under :-

The original complainant is a Co-operative Housing Society. Opponent No.1 is a developer and opponent No.2 is an original Landlord.
Opponent No.1 had taken development rights of Survey No.340 Hissa No.4, City Survey No.1515 admeasuring 8166.8 sq.mtrs. of which an area admeasuring 539.25 sq.mtrs. was situated in No Development Zone and remaining area admeasuring 7627.55 sq.mtrs. was situated in a Residential Zone and accordingly, the Corporation has sanctioned a plan taking into consideration an area in Residential Zone.
Accordingly, opponent No.1 has constructed 160 flats as per the sanctioned plan. The developer/opponent No.1 executed tripartite agreement with intending flat purchasers. The construction was completed in the year 1994. The builder/developer has registered the Housing Society of the flat purchasers on 08/09/2000. Despite of registration of Society, the opponent No.1 has not conveyed the land and building in the name of Housing Society and has not handed over the accounts to the Society, hence, the complainant-Co-operative Society has filed the consumer complaint praying following reliefs :-
a) To hold and declare both the opposite parties for the guilty of deficiency in service as per provisions of said Act.
b) The opposite parties, their servants, agents, assignees, representatives and all the persons claiming through them, jointly and severally be ordered and directed to convey the said land (as specified at Exhibit A) and the building/structure standing thereupon in favour of the complainant-Society by completing all necessary/requisite formalities on their own and also to do all such acts, deeds and things as are necessary for effectually conveying and vesting the said property (land and building) in favour of the complainant-Society, without demanding any remuneration from the complainant for the same.
c) In failure to comply with the prayer (b) above, the opposite parties be directed to pay penalty jointly and severally to the complainant for each day of delay from the date of passing of the order by this Honble Forum.

OR Some fit and proper person be appointed by this Honble Forum to execute the deed of conveyance and complete all the formalities on behalf of the opposite parties.

d) Opposite Party No.1 be directed to transfer `4.00,000/- (Rupees Four lakhs only) in favour of the complainant-Society which it has collected towards deposit of water meter, electric meter, etc.

e) Opposite Party No.1 be directed to render true, complete and faithful accounts of `10,000/- collected by them from each members of the complainant-Society as an interest free deposit and refund the balance amount along with interest if there is any.

f) Opposite Party No.1 be directed to give the account of `10,000/- collected in cash from each of the members of the complainant-Society towards the payment of the development charges and also produce the receipt of such payment, if made.

g) Opposite Parties be directed to demolish/remove all illegal and unauthorized structures constructed after receiving the building completion certificate and restore the premises to the original plan approved by BMC and shown to various purchasers of the complainant-Society.

h) Opposite Parties be directed jointly and severally to pay to the complainant compensation towards cost, expenses and professional charges towards filing of this complaint.

i) For such other and further reliefs this Honble Forum may deem fit and proper in the nature and circumstances of the case.

3. The opponent No.1 contested the complaint by filing written version.

Opponent No.1 contended that the complaint is not maintainable as complainant had filed a civil suit as well as dispute before the Co-operative Court for the similar and identical cause of action and hence the complaint is barred by the doctrine of res judicata.

 

4. The opponent No.1 further contended that the complaint filed is frivolous and vexatious, as the complainant has failed to prove the cause of action.

Opponent admitted that the construction commenced in the year 1991 and the building was completed in the year 1994. The flat purchasers agreed to pay an amount of `10,000/- to be paid to BMC towards the Development Charges.

 

5. The opponent No.1 further contended that in the meeting called on 23/04/1995, the accounts for the deposits/payments made were handed over to the Society.

The first General Body meeting of the society was held on 03/12/2000 and the accounts were placed before the General Body and the General Body accepted the accounts vide Resolution No.7.

 

6. The opponent No.1 contended that there were two plots i.e. 1515 and 1516 and both the plots were amalgamated. However, some area was declared as No Development Zone, by the BMC, as per the orders of the Honble Supreme Court under the Coastal Regulation Zone and, hence, opponent No.1 has done construction of existing building by using available FSI. Thereafter, opponent No.1 had converted stilt portion of the building into 8 residential flats, two under each wing of the building and said construction has been approved by the complainant-Society vide letter dated 20/09/1999 and hence the complainant-Society is estopped from opposing the said construction.

 

7. The opponent No.1 further contended that since the CRZ and the surrounding mangroves, came under the scrutiny of the Environmentalist and the Committee appointed by the Honble Supreme Court, the BMC has raised an objection about the compliance of the DC rules on the issue of the height of the flat, in the said stilt portion and, therefore, not granted Occupancy Certificate to the said 8 new flats. The opponent No.1 further contended that the matter is therefore being contested with regard to applicability and interpretation of the scope of DC Rules and the appeal is pending before the Honble Minister, Government of Maharashtra under the Regional and Town Planning Act, Maharashtra Region and, therefore, until such time there would remain a statutory bar to the conveyance.

 

8. In a written version, opponent No.1 had admitted that the land is transferred in their name by opponent No.2. They further contended that in clause No.14 of the Agreement dated 17/12/1990, it is made clear that the conveyance inter-alia will be executed by the opponent No.2. It is also mentioned in clause 36 of the Agreement which reads as under :-

After the said building is complete, ready and fit for occupation and after the said society is formed and registered and only after all the flat/garage/parking place in the said building have been duly sold and disposed of by the Developers and after the Developers have received in full and all dues payable to the developers under the terms of this Agreement with various flat/garage/parking place, the Developers shall get executed the Conveyance in favour of and at the costs of the said society in the manner herein above provided.
 

9. The opponent No.1 further stated that this clause has to be read and conjured with the undertaking-cum-declaration executed by each individual purchaser with regard to the permission given for the development and construction on the balance FSI or by TDR. Said undertaking has been taken separately because it was well and sufficiently understood and agreed to by the purchasers that the construction project was not complete and hence the purchasers cannot demand the conveyance.

 

10. It is further contended that the original documents cannot be handed over until the disposal of the civil suit pending before the Honble City Civil Court against the BMC.

 

11. It is further contended that unless the complainant pays the consideration for getting conveyance of the flats, they cannot be said to be consumers.

It is contended that the issue of conveyance has been stuck due to statutory impediment, since the suit is pending before the Honble City Civil Court and also one appeal is pending before the Honble Minister of Housing and most importantly in view of clause 36 of the Agreement which the complainant-Society is relying upon in support of their complaint.

 

12. The opponent No.2 had filed their written version. They contended that the opponent No.1 cheated them by giving less amount than agreed and they are not directly connected with the complainants. They have only entered into agreement with opponent No.1 and, therefore, conveyance can be made only in favour of opponent No.1 as per contract.

Opponent No.2 states that it is an obligation and liability of opponent No.1 to transfer their rights in favour of the complainant-Society.

 

13. District Consumer Disputes Redressal Forum after hearing both the parties, considering their pleadings and the evidence adduced before it, partly allowed the complaint directing opponent No.1 to transfer the land and building in the name of complainant-Society by executing proper conveyance within a period of six months, failing which, the opponent No.1 will have to pay `50/-

per day. The opponent No.1 shall hand over the receipts of the payments of `10,000/- collected from each member of the complainant-Society towards the payment on account of Development Charges to be paid to the Corporation, within a period of one month. Opponent Nos.1&2 shall pay cost of `5,000/-

jointly or severally within a period of one month to the complainant-Society. Aggrieved by this order, the appellant has filed the present appeal.

 

14. We have heard Learned Counsel Mr.S.B. Prabhawalkar, Advocate for the appellants and Learned Counsel Mr.N.G. Gupta, Advocate for respondent No.1-Society.

 

15. We have gone through the order passed by the District Consumer Disputes Redressal Forum, written version filed by appellant No.1 before the District Consumer Disputes Redressal Forum, rejoinder filed by respondent/Society and the evidence lead by both the parties on affidavits.

 

16. Admittedly, the land originally belonged to respondent No.2 and respondent No.2 transferred the development rights in favour of appellants by agreement dated 15/09/1988. On the basis of that the erstwhile individual members of the Society entered into tripartite agreement for the flats. The appellants had constructed four wings having 160 tenements. Learned Counsel for the appellants mainly challenged the order on the following grounds :-

1.    

Respondent Nos.1 is not a consumer under Section 2(1)(d), 2(1)(m) and 2(1)(o) of Consumer Protection Act, 1986.

2.     Complaint is not in limitation as per Section 24-A of Consumer Protection Act, 1986. As per provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 after registration of the Society, land is to be conveyed within a period of four months and cause of action in the instant case starts from the registration of the Society after four months. However, complaint is filed on 30/10/2004. Hence, the complaint is not within limitation.

3.     All the accounts are provided to the Society and hence the prayer regarding accounts is not maintainable.

4.     Reliefs given by the District Consumer Disputes Redressal Forum are not as per provisions of Section 14 of Consumer Protection Act, 1986.

 

17. As regards contention that respondent No.1 is not a consumer under Section 2(1)(d) and 2(1)(m) and 2(1)(o) of Consumer Protection Act, 1986, Section 2(1)(d) defines a consumer, Section 2(1)(m) defines a person and Section 2(1)(o) defines service. The appellants are the developers in the present case and the project is governed by Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Formation of society is the legal responsibility of the appellants and the respondent No.1/Society has filed present complaint. For filing present complaint, Managing Committee of the Society has passed Resolution authorising Secretary to file complaint.

If the provisions of Section 2(1)(d), 2(1)(m) and 2(1)(o) are read together, it is patently clear that the respondent No.1/Society is a consumer and the appellants are the service providers. Learned Counsel tried to argue that there is no privity of contract between the appellants and the Society. However, appellants entered into tripartite agreement along with land owners with the intending purchasers and the intending purchasers in turn had formed the co-operative Society. Once a person becomes a member of the co-operative Society, he looses his individuality with the Society and he has no independent right except those which are given to him by the Statute and the bye-laws. A member has to speak through the Society or rather Society alone can act and speak for him for the rights and duties of the members as a statutory body. Hence, the contention of the Learned Counsel for the appellants is not maintainable.

 

18. As regards point of limitation, Learned Counsel for the appellants vehemently argued that as per Rule 9 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964, the conveyance is to be executed within a period of four months from the date of formation of the society. In the present case, Society is registered on 08/09/2000. According to Learned Counsel for the appellants, the cause of action starts from 07/01/2001. However, complaint is filed on 30/10/2004. It is the argument of the Learned Counsel for the appellants that as per provisions of Consumer Protection Act, 1986, complaint should have been filed on or before 07/01/2003. Learned Counsel contended that in Appeal No.786/2004 the Single Judge of the Bombay High Court had observed that conveying property to the Society is a statutory obligation of the builder-developer.

However, this order is set aside by the Apex Court in Civil Appeal No.3233/2006 and hence, observations made by the Single Judge of the Bombay High Court does not hold good. No doubt in a Civil Appeal No.3233/2006 the Apex Court has set aside the order of the Single Judge of the Bombay High Court and remitted the matter back to the High Court for a decision. The Learned Counsel has filed a copy of the order of Bombay High Court in the case of Madhuvihar Co-operative Housing Society V/s. M/s.Jayantilal Investments dated 07/10/2010.

Looking to the importance of the matter, the Apex Court appointed Mr.G.E. Vahanvati, Learned Solicitor General of India as Amicus Curiae. In Para 13 of the said judgement, the Apex Court observed that Looking to the importance of the matter in which we were required to harmoniously construe the provisions of Sections 3 and 4 on one hand with Sections 7 and 7-A on the other hand as also Sections 10 and 11 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and keeping in mind the question of public importance, we requested Mr.G.E. Vahanvati, Learned Solicitor General of India to assist the Court, keeping in mind the externalities existing in such cases coming from Mumbai. Learned Solicitor General of India has given us written submissions.

He has reproduced the various judgements of the Bombay High Court under Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.

It is submitted that, it is not open to the builders to insert clauses in the agreement with the flat takers stating that conveyances will be executed only after the entire property is developed. Learned amicus curiae submitted that the contention of the promoter in the present case is that its obligation to form Society and execute a conveyance only after completion of the scheme is misconceived because under Sections 10 and 11 when the builder enters into an agreement with the flat takers he is required to form a co-operative society as soon as the minimum number of flat takers is reached and, thereafter, the conveyance has to be executed in favour of the society within four months after the formation thereof in terms of Section

11. He submitted that Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 has been enacted to regulate the activities of the builders and not to confer benefits on them.

 

19. Similarly, the Apex Court has held that clause (4) of the model agreement prescribed under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and Rules made thereunder incorporates the statutory obligations and the promoter is required to declare to the flat takers the floor space index (FSI) available in respect of the land in square metres and the FSI which the promoter has utilized. In case the promoter has utilized FSI of any other land or property as floating FSI, he is required to disclose the same to the flat takers. Thus, conveyance is a statutory obligation of the builder-developer and cause of action is a continuous one and as such the complaint filed by the respondent/Society is in limitation.

 

20. As regards accounts, the appellants has collected `3,251/- for membership fees and share money, legal costs, water meter and electric meter deposit, `10,000/-

in terms of clause (8) of the agreement and `10,000/- for development charges. As regards development charges, the appellants informed to the flat purchasers that as per amendment in the MRTP Act by the Government, `10,000/- is to be paid as development charges and the amount will be paid to the Corporation under protest as the Writ Petition challenging the said amendment is pending in the High Court. If said amount is returned by the Municipal Corporation, then it will be refunded. It is the contention of the appellants that accounts of the aforesaid payments have been submitted to the General Body Meeting of the respondent/Society on 23/04/1995. It is pertinent to note that on 23/04/1995 the Society was not registered and perusal of the minutes does not show that accounts were submitted to the respondent/Society. The District Consumer Disputes Redressal Forum had only directed the opponents to hand over the receipts of payments to the individual members. Looking into the nature of payment, we find the direction given by the District Consumer Disputes Redressal Forum is just and proper.

 

21. As regards reliefs granted by the District Consumer Disputes Redressal Forum, Learned Counsel for the appellants had not explained how the reliefs granted are not in consonance with the provisions of Section 14 of the Consumer Protection Act, 1986.

 

22. The case has chequered history. This matter is a best example how the process of law can be abused. The construction of building started in the year 1988 and the possession of the flats were handed over in the year 1994.

The land admeasures 8166.80 sq.mtrs.

However, at the relevant time, land admeasuring 7627.55 sq.mtrs. was in residential zone and remaining land of 539.25 sq.mtrs. was in no development zone. Hence, the Development Authority sanctioned the building plan on 7627.55 sq.mtrs and as per the sanctioned plan, four wings i.e. A, B, C & D consisting of six floors were constructed.

Subsequently, the area under no development zone was converted into residential zone. The structure of the building was not in a position to bear the load of additional flats and hence, the appellants submitted a plan to the BMC for converting the stilt parking area into flats. However, BMC had not sanctioned the plan. The appellants at Page-4 Para 3g of the written version, had admitted that since the CRZ and the surrounding mangroves came under the scrutiny of the environmentalist and the committee appointed by Honble Supreme Court, the BMC has raised an objection about the compliance of the DC rules, on the issue of height of the flat in the said stilt portion and therefore, not granted occupancy to the said eights new flats. For this unauthorized construction, Learned Counsel tried to argue that the appellants had taken undertaking from the members of the respondent/Society and the Society had given permission for this unauthorized construction. The Learned Counsel for the appellants relied on letter dated 20/09/1999 at page-174 on the letterhead of the Society. The letter reads as under:-

This has reference to your letter Ref. Nodt we have no objection for construction of the flats in the stilt area of wing A,B,C&D of Saraswati Apartment bearing flat No.CTS 1515 of Village Dahisar, Talukar Borivali, Mumbai Suburban District as per BMC Rules & Procedures. Reference No. and date is blank.

23. The Society was not registered on 20/09/1999. It is the contention of the Learned Counsel for the respondent that one of the appellants was a promoter. Thereafter, the BMC had issued a notice under Section 354A of the BMC Act.

The appellants filed a Civil Suit bearing No.5964 of 1999 for declaration of notice under Section 354A as illegal and bad in law. When the BMC noticed that the appellants had already converted the stilt area into flats, they have issued a notice under Section 488 of the BMC Act.

Hence, the appellants had withdrawn Civil Suit No.5964 of 1999 and filed a Suit No.7004 of 2000.

Subsequently, the appellants filed appeal under Section 47 of MRTP Act, 1966 before the Minister of State for Urban Development, Government of Maharashtra, Mantralaya and filed a Notice of Motion No.5859/2000 and the Learned Judge of City Civil Court observed that It appears clearly that Appeal is pending with the Government and in such a situation, it is not correct to take action. Since the regularization is still pending and no order is passed by the Urban Development Minister, it would be too early to say that the structure is unauthorized and deserves to be demolished and therefore, Notice of Motion was made absolute. In fact, there is no stay given by the Minister in the appeal filed by the appellants and the matter is still pending.

 

24. Again, it is interesting to note that the respondent filed Criminal Complaint C.C. No.429/SS/2004 for issuing a process under Section 4, 5, 6 & 11 read with Section 13 & 14 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 in the Metropolitan Magistrate, 26th Court, Borivali, wherein the Learned Magistrate Court passed issue process order dated 16/12/2004. Against this order, the appellants had filed Revision Application No.484 of 2005 in the Sessions Court, Greater Mumbai.

Learned Sessions Court dismissed the Revision Application vide order dated 28/03/2006. Against the said order, the appellants filed Writ Petition No.982/2006 in the High Court, Bombay and the same is also dismissed. Thus, this matter is best example of abuse of process of law.

 

25. The Learned Counsel had argued that as per the agreement clause 14, the conveyance is to be executed by the org. opponent No.2 and present respondent No.2.

However, District Consumer Disputes Redressal Forum had ordered that appellants should execute conveyance.

In the written version, there is a specific admission by the appellants that property is transferred in the name of appellant No.1 and now appellants being the land owners and developers, it is their legal responsibility to convey the land and building in the name of respondent-Society. We do not find any substance in the appeal filed by the appellants. Looking to the facts and circumstances of the case and the conduct of the appellants, we hold that the order passed by the District Consumer Disputes Redressal Forum is just and proper. Hence, we pass the following order:-

-: ORDER :-
1.    

Appeal is dismissed.

2.     The order passed by the District Consumer Disputes Redressal Forum is hereby confirmed.

3.     Appellants to pay `25,000/-

as costs to respondent No.1/Society and to bear their own costs.

4.     Copies of the order be furnished to the parties.

 

Pronounced Dated 17th November 2011. 

[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER       [Hon'ble Mr. Dhanraj Khamatkar] Member dd