National Consumer Disputes Redressal
Neeraj Kumar Gupta & 2 Ors. vs Panchtatva Promoters (P) Ltd. & 6 Ors. on 16 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2004 OF 2016 1. NEERAJ KUMAR GUPTA & 2 ORS. 8-A, SECTOR-IIB, VAISHALI, GHAZIABAD-201019 ...........Complainant(s) Versus 1. PANCHTATVA PROMOTERS (P) LTD. & 6 ORS. H-175, SECTOR-63, NOIDA-201307 2. CHIRAGKUMAR SANGHAVI 401, PRAYAS APTS, OLD POLICE STATION LANE, OFF. BAJAJ ROAD, VILEPARLE(W), MUMBAI-400056 3. PRADEEP KUMAR AGRAWALLA H-175, SECTOR-63, NOIDA-201307 4. SHEETAL KUMAR AGRAWALLA H-175, SECTOR-63, NOIDA-201307 5. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY 169, CHITVAN ESTATE, SECTOR-GAMMA-II, GREATER NOIDA, GAUTAM BUDH NAGAR, UP-201308 6. THE CHIEF EXECUTIVE OFFICER GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY,
169, CHITVAN ESTATE, SECTOR-GAMMA-II, GREATER NOIDA, GAUTAM BUDH NAGAR, UP-201308 7. LEENU SAHGAL, GENERAL MANAGER (PLANNING & ARCHITECTURE)
GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY,
169, CHITVAN ESTATE, SECTOR-GAMMA-II, GREATER NOIDA, GAUTAM BUDH NAGAR, UP-201308 ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr.Vikas Tiwari, Advocate with
Mr. Neeraj Kumar Gupta, Advocate
Complainant in person For the Opp.Party : For the Opposite party Nos.1-4 Mr. Amit Goel, Advocate
For the Opposite party Nos.5-7 Mr. Ravindera Kumar, Advocate
Dated : 16 Apr 2018 ORDER
This consumer complaint has been filed by the complainants Neeraj Kumar Gupta and others under Section 22 (1) read with 12(1) (C) of the Consumer Protection Act, 1986 against the opposite parties Panchtatva Promoters (P) Ltd. & ors. It has been alleged in the complaint that the complainants are the flat owners in the project., Galaxy Vega of the opposite parties and that the opposite parties are going to expand their construction based on the additional FAR granted by the competent authority i.e. Greater Noida Authority. It has also been alleged that the Greater Noida Authority, without following the norms and without following due procedure has approved the revised plans. The following prayers have been made in the complaint:-
"a. Hold that the revised sanction of layout plan dated 02.07.2015 has been obtained by the opposite parties in violation of Section 4(4) of the UP Apartment (Promotion, of Construction, Ownership and Maintenance) Act, 2010 and as such the same is illegal and void;
b. Direct the Opposite parties no.1 to 4, to immediately discontinue the construction of the said project named "Galaxy Vega", in accordance with the revised plan sanctioned dated 02.07.2015 and carry out the same as per the original sanctioned plan dated 27.06.2013;
c. Direct the Opposite parties no.5 to 7, to cancel/revoke the revised sanction dated 02.07.2015 and to compel the opposite parties no.1 to 4, to carry out construction of the project "Galaxy Vega" strictly in accordance with the original sanctioned plan dated 27.06.2013;
d. Direct the opposite parties no.5 to 7, to demolish the illegally constructed towers "F" and "G", constructed in variation of the original sanctioned plan dated 27.06.2013;
e. Declare that the stilt car parking is a common area and the opposite party No.1/Developer is not entitled to sell the same or charge from the complainants for the same;
f. Direct the opposite party to refund the amount illegally collected by the opposite party no.1 from the complainant, towards the car parking; to the complainant or adjust the same along with interest thereon @18%, towards the existing or future demands which are due or may become due from the complainants;
g. Direct the opposite party no.5,6 and 7 to deny the issuance of Completion certificate or Occupancy Certificate to the opposite party No.1 in respect of Project "Galaxy Vega" by way of positive denial thereof unless entire construction including common facilities is complete in accordance with the original sanctioned plan dated 27.06.2013;
h. Direct the opposite party no.1/Developer to pay to the complainants, a compensation in the form of interest @ 18% per annum to be calculated from the date of payment till the actual possession of the subject flats (C-1406 & E-1107) is handed over to the complainants;
i. Direct the opposite party No.1/Developer to make offer of possession only after commissioning of all the common facilities as promised in the flat agreement dated 30.08.2013, as per the Original Sanctioned plan dated 27.06.2013;
j. Direct that the Opposite Party no.1/Developer to make offer of possession free from all encumbrances including any charge/encumbrances on the land beneath;
k. Direct the opposite parties no.1 to 7 to pay Rs.30,00,000/- towards compensation to the complainants for mental agony and harassment caused to their deliberate ignorance/dereliction of duty;
l. Award the cost of limitation of the complainants;
m. Such other or further order (s) as the Hon'ble Commission may deem fit and proper in the facts and circumstances of case."
2. The notice was issued to the opposite parties and the opposite parties have filed reply to the application moved under Section 12(1)(C) of the Consumer Protection Act, 1986 and to the complaint. Opposite party Nos.1 to 4 filed common reply and opposite party Nos.5-7 filed separate reply, which have been taken on record. The matter was heard. Learned counsel for the complainants stated that though this complaint has been filed by three complainants, but there are more similarly placed persons, who are demanding the same relief that have been prayed in this complaint. It was further stated by the learned counsel that the opposite party Nos.5-7 have approved the revised plan with additional FAR. Based on this approval the opposite party Nos.1-4 are trying to construct additional spaces, which will adversely affect the existing flat buyer/owners as the open space per person will be reduced in the project and the population density will also increase creating adverse environmental effect on the existing allottees. It was argued that Uttar Pradesh Apartment (Promotion, of Construction, Ownership and Maintenance) Act, 2010 clearly states that any revised plan should be sanctioned only with the consent of the existing allottees, however, no consent has been sought from the existing allottees including the complainants. Thus, this is clearly violation of provision 4(4) of Uttar Pradesh Apartment (Promotion, of Construction, Ownership and Maintenance) Act, 2010 and therefore, the opposite parties be directed not to implement the revised plan. Opposite party Nos.5-7 may also be directed not to give any completion certificate or occupation certificate until the project is completed as per the original plan.
3. Learned counsel for the complainants referred to judgment of Hon'ble High Court of Allahabad, M/s. Designarch Infrastructure Pvt. Ltd. & Anr. Vs. Vice Chairman, Ghaziabad Development Authority & Ors., Civil Misc. Writ Petition No.33826 of 2012, decided on 14.11.2013 wherein the following has been held:
"(7). Under Section 5 (1) of the U.P. Apartment Act, 2010 every person to whom any apartment is sold or transferred by the promoter shall subject to other provisions of the Act be entitled to exclusive ownership and possession of the apartment so sold or otherwise transferred. He is under sub-section (2) entitled to the exclusive ownership and possession of apartment and shall be entitled to such percentage of undivided interest in the common areas and facilities as may be specified in the deed of apartment and such percentage shall be computed by taking, as a basis, the area of the apartment in relation to the aggregate area of all apartments of the building. Such percentage of undivided interest under sub-section (3) (a) in the common areas and facilities shall have a permanent character, and shall not be altered without the written consent of all the apartment owners and approval of the competent authority, and which shall not be separated from the apartment to which it pertains. It shall be deemed to be conveyed or encumbered with apartment, even though such interest is not expressly mentioned in the conveyance or other instrument. The common areas and facilities under sub-section (4) cannot be transferred and will remain undivided with the apartment. These cannot be partitioned or subject to any division and will be enjoyed by the apartment owner under sub-section (5), without hindrance or encroaching upon the lawful rights of the other apartment owners."
4. On the other hand learned counsel for opposite party Nos.1- 4 stated that the consent of the allottees was already in built in the allotment letters, which have been duly signed by allottees. Clause 4 of the allotment reads as follows: -
"4) That the allottee(s) is/are aware of and has/have knowledge that the building plans are tentative and agree to that the company may make such changes, modification, alternations and additions therein as may be deemed necessary or may be required to be done by the company, the Government/GNIDA or any other local authority or body having jurisdiction. As per the prevailing Building Byelaws of the GNIDA the F.A.R. (Floor Area Ratio) of the project presently is 2.75 of the Residential Plot area which comprises of fixed nos. of the apartments/flats in proportionate to the population density i.e. 1650 P.P.H., thereafter 1.25 FAR of the Residential Plot Area is under the consideration of GNIDA whenever it will be offer for purchase by the GNIDA. The company may purchase the said FAR, also as per the norms of the GNIDA 5% Additional FAR for the green building is Additionally permissible. Further more 10% of the total FAR is compoundable, accordingly the nos. of dwelling units and population density may be increased. Also that in the eventuality of change in extra FAR whatsoever the company shall have the right to explore the terrace to achiever the enhanced FAR. That the company can make any type of change in layout/elevation/design/alteration in open spaces area or parking spaces etc. as and when required and deemed fit by the company and by signing this allotment and terms & conditions it shall be presumed all time consent of the allottee (s) for all which has stated herein."
5. On the basis of the above provision in the allotment letter, learned counsel for opposite party Nos.1-4 argued that the complainants knew from the very beginning that the building plans were tentative and revised building plan may be approved by the Authority. Therefore, nothing new has been done by the opposite party Nos.1-4. The opposite party Developer is not doing any illegal activity as the revised plan has been duly approved by the competent Authority. Thus, the basis of whole complaint is misconceived and complainants should have no ground to file any complaint in this regard. He further stated that there are only three complainants, who have come here to complain and no other allottees are interested in this type of the complaint. He further stated that roughly 5000 registrations have already been done.
6. Learned counsel for the opposite party Nos.5-7 stated that the Authority is governed by its own Act and after following due procedure inviting objection etc., the Authority has given approval to the revised plan. The Authority has no interest in the opposite party builder and under the duty cast upon the Authority under the Act, the revised plan has been approved. Though the objections were invited, but still if any objection over the revised plan is there, the objector can proceed under the provisions of the Act. The complainants herein are not the consumer of the opposite party Nos.5-7 and therefore, this Commission cannot decide over the legality or illegality of the revised plan on the complaint filed by the complainants herein. Learned counsel stated that on the approval of the revised plan by the Authority, complainants can file their complaint only in the writ jurisdiction exercised by the Hon'ble High Court and Hon'ble Supreme Court. This Commission cannot exercise any jurisdiction in this regard. Basically this aspect of the complaint cannot be looked into by this Commission. Hence, the complaint needs to be out rightly rejected.
7. I have given a thoughtful consideration to the arguments advanced by the learned counsel for all the parties and have examined the material on record. It is seen from the complaint that the pecuniary jurisdiction of this Commission has been sought on the basis of the following table:-
SR. NO.
PARTICULARS
AMOUNT
1.
Agreed Sale Consideration of Flat (Unit No.E-1107) jointly booked by complainant No.1 & 2.
44,19,468/-
2. Agreed Sale Consideration of Flat (Unit No.C-1406) booked by Complainant No.3 32,69,060/-
3. Damages sought jointly by complainant No.1 @ 2 on account of mental agony, harassment, deficiency in services 20,00,000/-
4. Damages sought jointly by Complainant No.3 on account of mental agony, harassment, deficiency in services 10,00,000/-
5. Refund of amount illegally recovered under the head of car parking, which is not permissible in law; paid by complainant No.1 & 2 1,85,616/-
6. Refund of amount illegally recovered under the head of car parking, which is not permissible in law; paid by Complainant No.3 1,95,925/-
7. Litigation Expenses by Complaint No.1 & 2 2,00,000/-
8. Litigation Expenses by Complaint No.3 2,00,000/-
TOTAL 1,14,70,069/-
8. The decision of the larger Bench of this Commission in the matter of Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), clearly states that the pecuniary jurisdiction shall be decided by the consideration amount and the compensation sought. In the present case, the total consideration of the two flats of the complainants is Rs.76,88,528/-. The item Nos.5 & 6 of the above table cannot be considered as compensation as these are the amounts, which have already been paid to the opposite parties and have been requested for refund. Item Nos.7 & 8 are litigation expenses, which cannot be considered as part of the compensation. Therefore, amounts mentioned against item Nos.5,6,7 & 8 cannot be considered for deciding the pecuniary jurisdiction. Amounts against item Nos.3 & 4 of the table have been claimed as damages for mental agony and harassment. No basis has been given for claiming such high damages. Fora dwelling unit of Rs.44,19,468/-, the damages worth Rs.20,00,000/- has been demanded. Similarly, for another unit of Rs.32,69,060/- the compensation for mental agony has been claimed for Rs.10,00,000/-. It seems that the inflated compensation has been demanded to claim and justify the pecuniary jurisdiction of this Commission.
9. Based on the above discussion, I find that this Commission does not have the pecuniary jurisdiction to decide the present complaint. Accordingly, the Consumer Complaint No.2004 of 2016 is dismissed for want of pecuniary jurisdiction. However, liberty is granted to the complainants to file individual complaints before the appropriate forum having pecuniary and territorial jurisdiction.
...................... PREM NARAIN PRESIDING MEMBER