State Consumer Disputes Redressal Commission
Uppal Agencies Private Ltd vs Faquir Chand Gulati on 23 March, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision : 23.03.2010 Appeal no. FA-09/454 (Appeal against the order dated 05.06.2009 passed by District Forum, II, in complaint case no 752/2008) M/s Uppal Agencies Private Ltd., (now merged with M/s Uppal Housing Ltd.) 5th floor, South Tower, NBCC Place, Bhishma Pitamah Marg, Pragati Vihar, Lodhi Road, New Delhi ..Appellant/O.P. VS Shri Faquir Chand Gulati, S/o Late Shri Sadhu Ram Gulati, R/o L-3, Ground floor, Kailash Colony, New Delhi. ..Respondent /complainant CORAM Justice Barkat Ali Zaidi, President. M.L. Sahni, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. SAHNI, MEMBER
1. This appeal by the Opposite party is directed against the order dated 5.6.2009 passed by the District Forum II, New Delhi in complaint case no. 752/2008 whereby the Appellants have been directed : -
a. to remove the non-compoundable additions made in the building contrary to the sanctioned plan at its own cost;
b. to get the building inspected by the MCD Engineers that the building has been rectified according to the sanctioned plan and all damages shall be paid by the OP and shall apply for C & D forms. Copy of completion certificate and C & D forms shall be delivered to the complainant;
c. the opposite party shall pay Rs. 11,750/- which was paid by the complainant as penalty to the MCD;
d. the opposite party shall also pay Rs. 7,50,000/- to the complainant as compensation inclusive of litigation costs.
2. The facts as alleged by the Respondent/ Complainant, precisely stated are, that the respondent /complainant filed original complaint no. 1866/94, alleging that he being owner-in-possession of free hold land bearing no. L-3, Kailash Colony, New Delhi entered into an agreement on 17.5.1991 with the OP/Appellant for the construction of a new building on the said plot. It was agreed that the OP/Appellant shall re-construct a three storeyed building on the said plot in accordance with the specification and permission from the MCD. After construction of the building the OP/Appellant would hand over possession of the ground floor comprising of three bedrooms , with attached bathrooms, one drawing-cum-dining hall, one store-room, one kitchen and one servant room under the overhead water tank on the rear side of the terrace. The complainant/ Respondent was out of India, therefore, the possession of the aforesaid ground floor was delivered to the son of the complainant on 21.3.1992. The OP was to hand over the original deed and other connected papers to the petitioner but inspite of personal request these had not been delivered. However, vide letter dated 21.4.1994, the OP/Appellant agreed to hand over the documents to the petitioner but the same had not been delivered. The complainant requested the OP to supply Forms C & D but same had not been supplied. The complainant also requested the OP to supply the electricity security deposit receipts for electric meters but to no response.
3. MCD partially demolished the non-compoundable additions made in the building and the complainant had been penalized for payment of the demolition charges amounting to Rs. 11,750/-. He also had to pay house tax to the tune of Rs. 42,864/- for the assessment year 1992-94 which was the liability of the OP for the deviation against the sanctioned building plan resulting into extra coverage on ground floor, first floor and extra coverage on Barsati floor, stair case coming in open area.
4. Non-compoundable portion of the building is given in para no. 12(b) (1),(2),(3), (4), (5) of the complaint.
5. Occupants of the first floor filed Writ petition in High Court. Vide order dated 7.3.2003 High Court directed the MCD to remove the non- compoundable additions/alteration within a period of eight weeks. The MCD demolished landing projection for the staircase leading to first floor, second floor and terrace partially.
6. It is alleged that building was also sealed during construction on 15.11.1991. It was de-sealed on the written assurance of the OP/Appellant to the MCD that non-compoundable additions would be removed but the same was not done. The complainant/respondent prayed for relief in the original complaint filed on 10.5.1996 for delivery of the original sale-deed, C & D forms, security deposit receipt of electricity meter and payment of Rs. 4,266/-.
7. The case of the appellant before the District Forum was that as agreed , vide collaboration agreement dated 17.5.1991 (Annexure P-2) the Appellant had paid a sum of Rs. 8 lacs to the Respondent/ complainant and after reconstructing the building, possession of the ground floor comprising of 3 bed rooms with attached bath rooms, one drawing / dining room, one store , one kitchen and one servant room under over head water tank on the rear terrace with one car parking space for the respondent/complainant was handed over to the respondent / complainant through his son on 21.03.1992 ; that the remaining portions i.e. first floor and second floor each comprising of 3 bed rooms with attached bath rooms, one drawing/dining room, one store, one kitchen and one servant room under over head water tank on the rear terrace, parking space for first and second floors and the front half of the terrace, which fell to the share of the Appellant, as per the agreement had been sold to the buyers, by the Appellant/OP.
8. On 12.03.1993, on the request of the respondent/complainant, the Appellant had also made payment of Rs.
8,000/- vide Annexure-P-3 to the respondent/complainant in full and final settlement.
9. However, the respondent/complainant filed a complaint dated 16.6.1994 (Annexure P-4) before the District Forum praying for direction against the Appellant, inter-alia , to obtain completion certificate and C & D form. Vide order dated 10.5.1996 of the District Forum, the said complaint was dismissed on the ground that Agreement dated 17.5.1991 termed as Collaboration Agreement did not fall within the ambit of Section 2 (1)(d)
(ii) of Consumer Protection Act. The appeal bearing No. 508/1996 filed by the Respondent/complainant against the order of the District Forum was also dismissed on similar ground vide order dated 4.1.2000. After that, the respondent/complainant approached the Honble National Commission filing revision petition No. 1878 of 2000 which was also dismissed vide order dated 3.2.2004 (Annexure P-7). The respondent / complainant then filed Petition for Special Leave to Appeal in the Honble Supreme Court of India, which was converted into Civil Appeal no. 3302 of 2005. The respondent/complainant was held a consumer under the Consumer Protection Act by the Honble Supreme Court and the case was remanded back to the District Forum for deciding the case afresh.
10. Pursuant to the Supreme Court order , the District forum has now passed the impugned order, which is being challenged before us , in this appeal.
11. We have heard the Ld. Counsel appearing for the parties.
12. On behalf of the Appellants, it is contended that the impugned order has been passed in haste by the Ld. District Forum ignoring the fact that the respondent/ complainant had set-up entirly a new case with additional prayers after 16 years whereas only the reliefs asked for in original complaint could have been considered as per the direction of the Honble Supreme Court vide order dated 10.7.2008, whereby dispute require adjudication of surviving prayer relating to Completion Certificate and get construction conform to the sanctioned plan, whereas the amendments allowed in the original complaint regarding damages was impermissible and contrary to the letter & spirit of the directions by the Honble Supreme Court . Accordingly, it is submitted that the amended complaint deserved to have been dismissed.
13. It is also argued on behalf of the Appellant that the Respondent/ complainant failed to bring to the notice of the Ld. District Forum order, dated 8.2.2006 (Annexure P-12) of the Honble High Court to which the Respondent/ Complainant was a party, whereby the earlier order dated 7.3.2003 ( Annexure P - 4)passed by the said High Court had been clarified.
14. According to the Appellants, the First & Second floors of the said building already sold to other occupants had been regularized by the MCD,under the self assessment scheme on 12.10.2007 and again on 27.5.2009 (Annexure P-13). Keeping in view the amended Building Bye-Laws based on which the first and second floors of the same building havingbeen regularized by the MCD.The Appellant all along approached the Respondent/ Complainant to execute requisite documents so that his portion could also be got regularized / compounded for which the Appellant had undertaken to bear all the costs.
15. It is submitted on behalf of the Appellant that they are still willing to get the premises of the respondent/ complainant duly regularized and from the MCD in accordance with the new prevailing bye-laws. Such a situation had arisen in the case of the owners of the First and Second floors and the MCD in pursuance of the order of Honble High Court regularized/ compounded the alleged deviations.
16. According to the Appellants, there are no non compoundable deviations/additions in the building as the other portions/ floors in building in question stand fully regularized by the MCD under the prevailing bye-laws, rules and regulations.
17. Conversely, it is argued on behalf of the Respondent / complainant that the Honble Supreme Court has dealt with all the contentions of the appellants/ Respondents raised before the District Forum and being sought to be raised now. The Honble Supeme Court has referred in para-9 of the judgment, section 14 of the Consumer Protection Act under which Consumer Fora have powers to grant all reliefs to the complainant including directions to the Appellants to remove the deficiencies and to pay compensation for all the loss and damage with penal damages. The Honble Supreme Courts judgment in this case is dated 10.7.2008 and notification of the amendments of the Bye-laws are dated November, 22, 2001, hence the Supreme Courts judgment is binding in this case. As per Notification dated 22nd September, 2006 (Annexure-A) the minimum setbacks has to be minimum 3 meters on each side, construction on which is non-compoundable . The Appellant/Respondent raised construction on all these setbacks to provide for more covered area on the first and second floor which are non-compoundable as per the Appendix Q (Annexure B) which entails violation of provisions of Master Plan/ Zonal Plan, regulations/ Bye-Laws.
18. Ld. Counsel for the Respondent/Complainant further submitted that the deviations which are permissible with penalties are in connection with compoundable items only excluding the Non-compoundable items specified in (A) in Appendix Q that side setbacks are not compoundable and cannot be regularized by MCD as is clear from the letter dated 21.5.2009 of MCD. MCD had demanded further charges only regarding regularization of compoundable deviations. There is no order of MCD in which they have regularized the non-compoundable deviations in the construction of the building which is shown as Yellow in the site plan filed before Honble Mr. Justice Sanjay Kishan Kaul in the High Court of Delhi, which was undertaken to be demolished by Shri R.M. Raheja one of the occupants of upper floors. He was the petitioner in that writ petition, who also had given undertaking before the MCD Tribunal but violated both the undertakings.
19. It is submitted on behalf of the Respondent/ Complainant that the builder is duty bound to obtain C & D Form and completion certificate from MCD; that the builder can-not be allowed to say that having constructed the building and delivered the possession, he fulfilled his obligation. Nor can he say that he is only bound to apply for completion certificate.
20. Further, it has been vehemently argued on behalf of the Respondent / complainant that the amendment referred to in Rule 7.2.2. of the Bye-laws clearly puts obligations on the Architect/ Engineer, Supervisor to apply to MCD in performa B-1 to ensure that work is carried out according to sanctioned plan and building bye-laws; that non-compoundable deviations have to be removed by the Appellant as per judgment of Honble Mr. Justice Sanjay Kishan Kaul dated 7.3.2003 (Annexure 4 at Page-174) The deviations of the sanctioned plan which are not compoundable are to be demolished by the Appellant to bring the building to conform to the plan sanctioned, while the complainant is also entitled to all damages as claimed. MCD as per directions of Justice Sanjay Kishan Kaul of High Court vide (Annexure 4 at Page-174)has demarcated the non compoundable additions and alterations made in the building shown in Yellow colour and compoundable additions in red ink ; that it was directed by Mr. Justice Sanjay Kishan Kaul that the petitioner would demolish the non-compoundable , additions/ alterations themselves within 8 weeks as per undertaking given by R.M. Raheja failing which the MCD after re-inspection of the building would demolish the non-compoundable portions if not demolished by the Petitioner themselves. It is submitted that the non-compoundable portions as per notices of MCD are still there and the order of Justice Sanjay Kishan Kaul has to be complied with. Since the builder- Appellant/ Respondents made all these additions/ alterations during construction, they are bound to remove the same so as to bring the building within the parameter of the sanctioned plan and apply for inspection of building by MCD to obtain completion certificate, C & D form etc.
21. It is also argued on behalf of the Respondent/ Complainant that the judgment of Justice Nandrajog dated 8.2.2006 (Annexure P-12) stood Over-Ruled in view of the judgment of the Supreme Court dated 10.7.2008, which is the law of the land and is binding on all the parties and all Courts, Tribunals and Forums all over India ; that the judgment of the Supreme Court clearly lays down the responsibility of the Builder i.e Uppal Agencies Pvt. Ltd.-the Appellant herein to remove the deficiencies and obtain C & D forms and completion certificate while the judgment of Justice Nandrajog dated 8.2.2006 (Annexure P-12) had tried to completely exonerated the Builder from his responsibility of obtaining the C & D form and completion certificate after removing the Non-compoundable unauthorized construction by shifting the responsibility on MCD to provide stair case for excess to First and Second floors which is non-compoundable deviation.
22. According to the complainant/ Respondent this is not the job of the MCD but of the Builder who has constructed the building contrary to the sanctioned plan. The MCD has filed its affidavit before Justice Nandrajog in the writ petition of Shri R.M. Raheja & Ors., copy of which is annexed as Annexure-C.
23. After considering rival submission of both the parties , we find that the plea of the Appellant against the amendments allowed by the District Forum in original complaint is untenable in law, for the simple reason that the order dated 5.2.2009 of the District Forum allowing the amendments was upheld by this Commission vide order dated 19.2.2009 and there being no appeal/revision preferred against said order, it had become final and cannot be re-assailed in the present appeal.
24. So far as the final order passed by the District Forum being the subject matter of present appeal is concerned, we find that the dispute survives with regard only to completion certificate to be given by MCD and obtaining of C & D forms by the Appellant to supply the same to the Respondent/ complainant .
25. According to the Appellant, under the amended by-laws notified on 22.11.2001, the MCD can regularize the compoundable deviations by imposing penalty. The contention of the Respondent/ Complainant is that deviations which are permissible do not include non-compoundable deviations , as is the case in respect of present construction existing at site, with regard to which observations made by the Honble Supreme Court and of the Honble High Court have been referred to at length , as stated in the fore-going paras.
26. There can be no denying the fact that the Appellant cannot escape their liability to bring the construction in conformity with the building bye-laws applicable at a given time. If the deviations in the building are not in consonance with the bye-laws as are applicable at present , the Appellants are duty bound to carry out rectification, so that building bye-laws are complied with. There is also no denying the fact that building bye-laws have undergone a sea-change during these days and what those bye-laws are prevailing at present can best be in the knowledge of the Municipal authorities, that is why ,the Honble High Court in its order passed on 8.2.2006 (Annexure P-12- appended to the appeal) had observed that, power to relax rules regarding minimum set- backs , is vested in the MCD and to do so in special circumstances ; that MCD would decide whether no special circumstance is made out to relax the setbacks and additionally find that the layout of the colony prescribed minimum setbacks to be followed it would then be ensured by the MCD that a staircase is provided to the petitioner to access their first and second floor. If this would require a modification in the existing construction on the ground floor, MCD would direct necessary changes to be effected on the ground floor.
27. Further the direction given in the order are that Till MCD re-decides on the issues, no demolition would be effected on the first floor and second floor of property bearing no. L-3, Kailash Colony, New Delhi It is not known whether these directions are still in force. Nor it has been clarified by either of the parties, who went on harping on the applicability of one or the other decisions of the Honble High Court, while the Honble Supreme Court, simply decided the issue that Consumer Fora have jurisdiction to entertain such complaints. If the directions given vide order dated 8.2.2006( Annexure P-12) are still in force , then impugned order directing to remove non-compoundable additions/deviations made in the building contrary to the sanctioned plan will be in contradiction of the order dated 8.2.2006 (Annexure P-12) passed in the writ petition (civil appeal. No. 1883 18-21/2004) by the Honble High Court of Delhi.
28. It shall, therefore, be expedient that the impugned order is modified to the extent that the MCD Engineers shall inspect the existing construction in the building in dispute within 30 days of the receipt of copy of this order to find out, if there are non-compoundable deviations as per the prevailing building bye-laws, which cannot be regularized / compounded even by imposing penalty, they shall remove the same to bring the building in conformity with the building bye-laws at the cost and responsibility of the Appellant, provided there is no restraint order in force against such demolition by any court of law. Remaining order of the Ld. District Forum shall remain un-altered because we find no fault with any other directions given in the impugned order.
29. The appeal is partly allowed, to above extent.
30. Copy of this order be provided to the parties free of cost. One copy of this order be also sent to the concerned District Forum , and thereafter, file be consigned to record room.
(JUSTICE B.A. ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER sk