State Consumer Disputes Redressal Commission
Redstone Realtors & Ors vs Mr.Augustine Francis Gabriel on 21 September, 2018
1 (A/17/511)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/17/511
(Arisen out of Judgment and order dated 16/12/2016 passed by Ld. Addl.
Mumbai Suburban District Forum in complaint No.01 of 2012)
1.Redstone Realtors
5th floor, Everest C.H.S.Ltd.
164, Hill Road,
Bandra (W),
Mumbai 400 050.
Through its partner
Mr.Afzal Ladak
2.Mr.Afzal Ladak
Partner
5th floor, Everest C.H.S.Ltd.
164, Hill Road,
Bandra (W),
Mumbai 400 050.
3.Mr.Iqbal Makani
Partner
5th floor, Everest C.H.S.Ltd.
164, Hill Road,
Bandra (W),
Mumbai 400 050. Appellant(s)
versus
Mr.Augustine Francis Gabriel
Flat No.402, 4th floor,
Bldg.No.1,
C Wing, Saifee Park,
Dr.Mascarenhas Road,
Mazgaon,
Mumbai 400 010. Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, President
Hon'ble Mr.A.K.Zade, Member
PRESENT:
For the Advocate Shri.Vikas Saindane
2 (A/17/511)
Appellant(s):
For the
Respondent(s): Advocate Smt.Arifa Sayed
ORDER
Per: Hon'ble Mr.Justice A.P.Bhangale, President
[1] By this appeal, appellant have questioned validity and legality of the impugned Judgment and Award dated 16/12/2016 passed in consumer complaint No.1 of 2012 by learned Addl.Consumer Disputes Redressal Forum, Addl.Mumbai Suburban District, Bandra (E), Mumbai 400 051 whereby the complaint was allowed partly and opponents were directed jointly and severally to execute conveyance for permanent alternate accommodation on ownership basis in respect of flat No.402, 4th floor, 'C' Wing, admeasuring 300 sq.ft. in favour of complainant within three months. Opponents were also directed to obtain occupation certificate, building completion certificate and also to form association or society and execute the conveyance so as to convey the legal right, title and interest in favour of the said association or society within three months after registration. Opponents were also directed to pay compensation in the sum of Rs.50,000/- for mental agony and financial loss caused due to payment of taxes at higher rates for delay of occupation certificate. Complainant was also directed to pay arrears of maintenance to the opponents and costs of complaint in the sum of Rs.10,000/- to be paid by the opponents to the complainant.
[2] Brief facts are that the complainant is original tenant residing in the old building situated on the land bearing C.S.No.412, 1/412, 2/412, 3/412, 4/412 and 4A/412 of Mazagaon Division, Dr.Mascarenhas Road, E Ward, Byculla, Mumbai. The owner of the land M/s.Gunnebo India Limited had assigned right, title and interest in favour of the developer M/s.Redstone Realtors, registered Partnership Firm of which opponent Nos.2 and 3 are partners. According to the complainant opponent as developer/builder in 3 (A/17/511) respect of new multistoried building had agreed to give alternative accommodation in the form of flat admeasuring about 400 sq.ft. on ownership and therefore flat bearing No.402 admeasuring about 300 sq.ft. area only was to be conveyed or transferred to the complainant. According to the complainant it was legal obligation on the part of opponents in view of the provisions of the Maharashtra ownership of Flats Act, 1963 to construct the new building in accordance with duly sanctioned plan and to complete the construction of building, obtain occupancy certificate in respect of the building and then to transfer flat No.402, 4th floor, 'C' Wing admeasuring 300 sq.ft. in favour of the complainant. However, builder/ developer failed to obtain the completion certificate as well as occupancy certificate in respect of the new building and tried to deprive the complainant of lawful delivery of possession in his favour. [3] Learned Advocate for the appellant contended that the allotment letter (dated Nil) was given to Mr.Augustine Francis Gabriel (Complainant) to allot him on ownership basis alternate accommodation in the newly constructed building 'Saifee Park', building No.1, 'C' wing, i.e. flat No.402 situated on the 4th floor of the said building with area of 27.87 sq.mtr. (carpet area) in the said new building at Mazgaon Division, Mumbai. Flat was offered in lieu of the vacated premises by the complainant i.e. room No.55, 3rd floor in 'Meher Mension', situated at C.S.No.412, 2/412, 3/412, 4/412 and 4A/412 of Mazgaon Division, Mumbai 400 010. According to the learned Advocate for the appellant part occupancy certificate was issued by the Municipal Corporation of Greater Mumbai without prejudice of their letter dated 19/11/2010 for the rehab building and therefore complainant was requested to take vacant and peaceful possession of the flat pursuant to the lottery for the flat allotted. Our attention is also invited to the Order in Writ Petition No.2930 of 2011 dated 06/07/2011 whereby Writ Petition filed by the complainant as petitioner challenging his order of eviction u/s 95A of the Maharashtra Housing and Area Development Act, 1976 was dismissed while Writ Petition No.963 of 2011 filed by the developer against MHADA 4 (A/17/511) and ors. seeking enforcement of the order of eviction passed under section 95A was disposed of in terms of direction that the occupant/complainant (respondent No.5 to the writ petition) was given period of four weeks to hand over vacant and peaceful possession of his erstwhile premises. Thus, it is contended that due to the pendency of Writ Petition as well as correspondence between the parties delay had occurred to complete the building and to hand over possession to the complainant. It is submitted that complainant had in fact taken a facto possession of permanent alternate accommodation and therefore is not entitled for compensation as there is no deficiency in service on the part of the developer/builder. According to the learned Advocate for the Municipal Corporation of Greater Mumbai by their letter bearing No.EB/2476/E/A dated 19/11/2010 had permitted it's no objection to occupy the part ground floor plus 14 upper floors of wing A,B,C and D and 15th floor of Wing C and D of Rehab Building No.1 constructed under supervision of Architect M/s.Bhalwankar & Associates and structural engineer M/s.CSE Consultants subject to the terms and conditions that (1) certificate under section 270A of M.M.C. Act from H.E.Department shall be submitted (2) that the fresh P.R.Card in the name of present owner shall be submitted (3) that the final S.W.D.completion certificate for entire plot shall be submitted (4) substation completion certificate from BEST before O.C.C. to building No.2 (5) that the final N.O.C. from Tree Authority shall be submitted (6) that the completion for Sewerage Treatment Plant shall be submitted (7) Rain Water Harvesting system completion shall be submitted. Thus, without prejudice of Municipal Corporation to take action u/s 353A of M.M.M.Act, conditional occupancy certificate was granted.
[4] Question before us is whether appellant led adequate and sufficient evidence regarding compliance of conditional part occupancy certificate was led.
[5] According to the learned Advocate for the respondent/complainant no such evidence was led by the developer regarding completion of the 5 (A/17/511) building in accordance with duly sanctioned plan with certificate of the architect and structural engineer and other authorities subject to which part occupancy certificate was permitted. Learned Advocate for the respondent therefore contended that the impugned order is consistent with the provisions of the Maharashtra Ownership of Flats Act, 1963 whereby it is necessary for any builder/developer /promoter to construct the building in accordance with sanctioned plan, obtain certificate from the architect/ structural engineer concerned regarding completion of the building project according to law and then obtain occupancy certificate. In the present case part occupancy certificate which appellant's want to rely upon was conditional and there is no evidence as to whether appellant's obtain certificate of completion of the building from the Architect and Structural Engineer which appellant's had engaged to construct and complete building in accordance with sanctioned plan. It is therefore submitted that the ruling of Hon'ble Bombay High Court relates to the earlier stage which required the complainant to vacate the premises in erstwhile building and to enable the builder/developer to construct the building. Further it is submitted on behalf of the respondent/complainant that statutory obligation on the part of the builder/developer is to complete the building project in accordance with the sanctioned plan and to take steps for formation of the Co-operative Housing Society of the flat purchasers/occupants in the newly constructed building and to transfer legal right, title and interest in respect of the land and building to the said Co-operative Housing Society or Association of Flat purchasers. The obligation included transfer of ownership of flat by the builder/developer to the complainant as agreed in favour of the complainant. It is submitted that this was not at all done by the opponents. [6] Our attention is also invited to the common order passed in Writ Petition No.1339 of 2014 and Writ Petition No.2572 of 2013 both by developer, in which Hon'ble Bombay High Court by order dated 14/07/2014 had disposed of the petition by directing the Municipal Corporation to commence the process of approving plans already submitted and plans that 6 (A/17/511) shall be submitted thereafter, in accordance with the Development Control Regulation 1991 without insisting the NOC from IMD while all the parties were directed to support and co-operate and facilitate, an appropriate site for the installation of additional DWR, without further delay. In our view, it may be true that in Writ Petition some delay did occur for the developer to complete the construction of the building in question in respect of the present consumer dispute. However, merely because of delay or because of past pendency of these petitions the builder/developer cannot deprive the complainant of his legal right to claim lawful possession in respect of the flat concerned on the basis of lawful transfer from the builder/developer / promoter as contemplated under the provisions of Maharashtra Ownership of Flats Act, 1963. The contention that provisions of MOFA 1963 are not applicable to the consumer dispute in the present case is not acceptable as according to us when any promoter undertakes to construct multistoried building project for the benefit of many flat purchasers or occupants the rights and corresponding statutory obligation as contemplated under the MOFA 1963 are attracted and it is the duty of the builder/promoter/ developer to complete the building in accordance with the sanctioned plan, to take steps statutorily required to put the flat purchaser in actual physical possession after obtaining occupancy certificate in respect of the building and to take further steps to form society/association consisting of flat purchasers as members so that it can take over the maintenance of the building. Bearing in mind the legal position therefore in our view the impugned order whereby opponents were directed jointly and severally to execute conveyance in respect of flat No.402, 4th floor, 'C' Wing, admeasuring 300 sq.ft. in favour of the complainant upon obtaining occupancy certificate in respect of the building and to take steps for conveyance of the land and building to the society or association of flat purchasers is sustainable and legal in the facts and circumstances of the case. In our view, complainant is certainly liable to pay maintenance charges to the opponent (appellant herein) w.e.f. the date on which he was 7 (A/17/511) put into physical occupation of the flat as correspondingly payable by other flat purchasers in the said building. Since for want of lawful occupancy certificate complainant is required to pay higher amount of payment of maintenance he was compensated in the sum of Rs.50,000/- for his mental agony and financial loss, in our view, therefore, the entire Award passed by the learned Forum below inclusive of costs of litigation is legal and sustainable for the reasons stated above. We, therefore, dismiss the appeal with costs quantified in the sum of Rs.10,000/- (Rupees Ten Thousand only) in addition which shall be payable by the appellant to the complainant/respondent. Appeal is disposed of as dismissed with costs accordingly.
Certified copy of this order be supplied to both the parties. Pronounced on 21st September, 2018.
[JUSTICE A.P.BHANGALE] PRESIDENT [A.K.ZADE] MEMBER rsc