State Consumer Disputes Redressal Commission
1. Mr Dilip Anant Joshi vs M/S Vardhaman Homes on 21 February, 2012
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/10/153
1. MR DILIP ANANT JOSHI
2. MRS DEEPA DILIP JOSHI
R/AT 805 'B' WING
VENUS BLDG NO 10 GAWAND BAUG
POKHARAN
ROAD NO 2
THANE (W) - 400 610
...........Complainant(s)
Versus
M/S VARDHAMAN HOMES
THROUGH ITS PARTNER:-
MR. HIRACHAND S. VARDHAN,
O/AT 40/41 VISHAL SHOPPING
CENTER
SIR M V ROAD ANDHERI EAST
MUMBAI - 400 069.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mr. S.R. Khanzode Judicial Member
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Mr. Dilip
Anant Joshi, the Complainant No.1 in person
Mr.Mandar Divekar, Advocate for the Opponent
ORDER
Per - Hon'ble Mr. P. N. Kashalkar, Presiding Judicial
Member This is a consumer complaint filed by the Complainant, who is a pensioner and advocate by profession. His wife is also impleaded as Co-Complainant.
They have filed a consumer complaint jointly against the Opponent, namely - M/s. Vardhaman Homes, through its partner - Mr. Hirachand S. Vardhan (hereinafter referred to as the 'Builder/Developer' for the sake of brevity).
[2] According to the Complainants, they jointly purchased a flat bearing No.805, 'B' Wing, Venus Building No.10, situate at Gawand Baug, Pokhran Road No.2, Village Majiwade, Thane (West) from the Builder/Developer. According to the Complainants, their contractual relations are governed by the provisions of the Maharashtra Ownership Flats Act, 1963 and rules framed thereunder, so also, D. C. Regulations for ThaneCity, 1994 are also applicable. The Complainants pleaded that their family purchased only one flat in the building and the stilt and 09 meters open space on all four sides of the building is the common area of the building. According to the Complainants, it is settled legal position that the Builder/Developer cannot sell the stilt and open space of the building as parking space for consideration. The Complainants rely upon the ruling of the Hon'ble Bombay High Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. ~ 2008-(5)-AIR-Bombay-652 and also ruling of the Hon'ble Supreme Court in Civil Appeal No.2544 of 2010 dated 31/8/2010. According to the Complainants, in breach of provisions of the Maharashtra Ownership Flats Act, 1963 and Rules framed thereunder and D. C. Regulations for Thane, 1994 the Builder/Developer collected illegal consideration from the innocent flat-purchasers. The clause No.(36) of the agreement mentions the fact that allotment of stilt and open parking space is for consideration. This clause No.(36) of the agreement is in contravention of Section-16 of the Maharashtra Ownership Flats Act, 1963 and, therefore, it is void. According to the Complainants, the Builder/Developer is liable to pay compensation @ `500/- per day till this default continues. The Complainants pleaded that when they learnt about illegal sale of parking for consideration, immediately they called a meeting of the flat-purchasers and in the said meeting legal provisions were explained to each and every flat-purchaser who was present in the meeting and it was resolved in the meeting to request the Builder/Developer to withdraw the allotment of the parking and to seek refund of the illegal consideration which the Builder/Developer had collected. The Bombay High Court's ruling in Panchali Co-operative Housing Society's case (cited supra) was brought to the notice of the Builder/Developer.
Owner of Flat No.907-B, namely - Ms. Amina Afsar Shaikh and owner of the Flat No.604-A, namely - Mr. Tushar Madiwale were present in the meeting. They both signed the letter as well as minutes of the meeting.
According to the Complainants, wife of Mr. Tushar Madiwale is a practicing advocate. The Complainants state that the partners of the Builder/ Developer orally gave a very strange explanation to the gathering and told that such rulings go on changing every day and, therefore, they are to be ignored. The Builder/Developer categorically stated that they were not going to refund parking consideration amounts. The Complainants pleaded that on 27/4/2010 the Builder/Developer displayed a general notice and informed that a society would be soon formed and issues raised by the flat-purchasers regarding parking space would be considered after formation of the society. On 16/5/2010, the Complainant was physically obstructed by the employees of the Builder/Developer from parking his car in the stilt on the ground that that space was allotted to the owner of Flat No.907-B, though the said owner was not present and was not having a car.
The Complainant No.1 demanded allotment letter from the said employees of the Builder/Developer to show that the stilt parking was allotted to Ms. Amina Afsar Shaikh.
The employees then produced the said letter, which is at Exhibit-C. The Complainant No.1 tried to tender a protest letter but it was not taken by the employees of the Builder/Developer. Then, the Complainants had sent a protest letter by RPAD and Under Certificate of Posting. Exhibit-D is the said letter. According to the Complainants, the Builder/Developer committed legal wrong and, therefore, the Builder/Developer is liable to pay compensation @ `1,000/- per day for unlawful obstruction. According to the Complainants, as from 16/5/2010 till the date of filing the complaint, the Complainants are required to park their car outside the complex premises. The Complainants aver that except five flat-purchasers nobody is willing to speak against the Builder/Developer. As per the knowledge of the Complainants, the Builder/Developer collected an amount of `2,50,000/- stilt parking and `1,00,000/- for open parking. Thus, the Builder/Developer collected more than an amount of `47,00,000/- as illegal consideration for allotment of open and stilt parking. According to the Complainants, entire collection is illegal and void. The Complainants further pleaded that allotment of parking space in the common areas of the building is a matter exclusively in the jurisdiction of a co-operative housing society. The Builder/Developer has trespassed illegally on the legal rights of the proposed society. According to the Complainants, as soon as 60% flats are sold out, the Builder/Developer is supposed to form a co-operative housing society and for unsold flats, the Builder/Developer could become a member of such society till those flats are sold out.
[3] The Complainants pleaded that the Builder/Developer is in management and in possession of the building illegally. In the eyes of law the Builder/Developer has no legal management and possession of the building as soon as 60% flats are sold out. It is the grievance of the Complainants that the Builder/Developer cannot take the job of policing in their hands by removing the vehicles from the stilt and open spaces by using force.
[4] The Complainants pleaded that the Builder/Developer can sell flats as per carpet area only. The Builder/Developer cannot include parking consideration in the cost of the flat. Parking space is an immovable property and any interests created in an immovable property must be by a registered deed and, therefore, inclusion of parking consideration in the cost of the flat is null and void.
[5] According to the Complainants, the flats were sold on ready possession basis. As per Urban Land Ceiling (ULC) permission granted to the scheme, the flats were required to be sold strictly as per the directions of the Hon'ble Supreme Court. Open market rate for such flats was determined @ `730/- per sq. ft. but, the actual rate charged is @ `5,493/- per sq. ft. Cost of the flat as per ULC comes to `3,54,050/- and actual price charged, as per above rate, is `26,64,000/-. Thus, an amount of `23,09,950/- per flat is charged excessively.
[6] The Complainants also pleaded that the Builder/Developer was also liable to disclose in the agreement that the Builder/Developer had withdrawn Civil Suit No.359 of 2007 as per condition of Occupancy Certificate marked as Exhibit-H. The Builder/Developer concealed these material facts from the flat-purchasers and thereby violated provisions of the Maharashtra Ownership Flats Act, 1963. According to the Complainants, the Builder/Developer is liable to pay compensation @ `500/- per day for this concealment.
[7] According to the Complainants, minimum open space around high rise building should be 09 meters at ground level but, the effective open space in some area around the building is 03 meters only and this area is also sold out as open parking space.
There is no sufficient space left for fire-brigade vehicle to move around the building.
[8] The Complainants pleaded that the refugee area is not as per prescribed norms and standards. The place directly below the refugee area is also sold out as parking. For this breach, the Builder/Developer is liable to pay compensation @ `500/- per day.
[9] The Complainants pleaded that there is no letter-box provided on the ground floor and as a result, the postman delivers mail to the attendants of the Builder/Developer who do not deliver the mail to the flat-purchasers and for this breach, the Builder/Developer is liable to pay compensation @ `500/- per day.
[10] The Complainants pleaded that the flats were sold on ready possession basis and, therefore, it is not simply sufficient to start process of formation of the society but it should be completed within a period of four months. Conveyance must be executed within a period of four months from the formation of the society. According to the Complainants, the Builder/Developer has failed to comply with the statutory provisions amounting to violation of Sections 10 & 11 of the Maharashtra Ownership Flats Act, 1963 and, therefore, the Builder/Developer is liable to pay compensation @ `500/- per day.
[11] The Complainants also pleaded that the Builder/Developer has illegally collected an amount of `25,000/- towards infrastructure cost and `37,000/-
towards electricity meter and cable charges. According to the Complainants, the carpet area cost of the flat must include these basic and essential amenities. The Builder/Developer is liable to refund these amounts with interest @ 21% from the date of payment till realization.
[12] According to the Complainants, the Builder/Developer is liable to furnish accounts of the amounts collected towards one year maintenance deposit.
[13] On these main grounds and various grounds, as set out in the complaint, the Complainants claimed various amounts as particularized in paragraph (24) of the complaint, which include an amount of `1,00,000/- as costs of proceeding, an amount of `1,00,000/- towards expenses incurred for postage, Xerox, typing, traveling, out of pocket expenses etc., an amount of `5,00,000/- as compensation for mental stress and trauma, an amount of `3,00,000/- as compensation for physical strain and agony. Thus, the Complainants claimed total compensation of `46,87,950/-. The Complainants have also prayed that allotment of common parking spaces by the Builder/Developer may be declared as null and void. The Complainants have also prayed that the Builder/Developer may be directed to remove the flat-numbers put on the stilt and every other place indicative of allotment and parking reservation. The Complainants also prayed that the Builder/Developer may be restrained permanently from obstructing the Complainants from parking their car in the premises of the building. The Complainants also sought direction as against the Builder/Developer to fix letter box on the ground floor. The Complainants also prayed that the Builder/Developer may be directed to provide society office room in the building. The Complainants further prayed that the Builder/Developer may be directed to give accounts of all the sums collected under the agreement to the Complainants.
[14] In the support of the complaint, the Complainants have filed their joint affidavit dated 4/10/2010.
The Complainants also filed various documents in support of the complaint.
[15] The Opponent (Builder/Developer) filed its written version and contested the complaint.
According to the Builder/Developer, considering the entire tone and tenor of the complaint, it is clear that the Complainants have their main dispute with respect to the parking spaces in the building. According to the Builder/Developer, it is not the case of the Complainants that they had ever applied to the Builder/Developer for allotment of car parking space, either open or stilt. The Builder/Developer admitted that agreement produced at Exhibit-A is the agreement of sale of a residential flat bearing No.805, 'B' Wing, VenusBuilding sans any parking space. It is the contention of the Builder/Developer that nowhere in the complaint, the Complainants have made any complaint regarding premises purchased by the Complainants nor with the quality of the construction of the premises or buildings nor as regards the amenities provided nor as regards delay in delivery of possession of the premises and as such, the Complainants are simply trying to take shelter of the provisions of the Maharashtra Ownership Flats Act, 1963 for Redressal of their grievances as regards their dispute over the parking space with Ms. Amina Shaikh and thus, according to the Builder/Developer, the case of the Complainants does not fall within the ambit of the Consumer Protection Act, 1986 and the Complainants may be directed to invoke the jurisdiction of the Civil Courts. The Builder/Developer pleaded that considering the relief claimed by the Complainants, if they are granted in favour of the Complainants, it would not only cause great prejudice and irreparable loss to the Builder/Developer but would also directly put the rights, privileges and interests of other purchasers and occupiers in Venus Building in jeopardy.
It is pleaded that in such circumstances, the other purchasers and occupiers of the premises of the said Building are necessary party for effective adjudication of the matters-in-issue. Thus, according to the Builder/Developer, impugned complaint is bad in law and the Complainants may be directed to join other purchasers and occupiers of the premises of the said VenusBuilding as the party Opponents in the present complaint and till then, no effective orders can be passed in favour of the Complainants.
[16] The Builder/Developer pleaded that in the month of August-2009, the Complainants had visited the construction site with a view to purchase a residential premises for themselves. The Complainants expressed their willingness to purchase a flat bearing No.805 on the eighth floor of Building No.10, named - 'Venus' which was constructed by the Builder/Developer. The Complainants then visited the office of the Builder/Developer and disclosed at that time that the Complainant No.1 is a retired judge. The Complainants made various enquiries about the entire construction project undertaken by the Builder/Developer. The Complainants inspected the documents viz.
Title Deeds, Construction Plans duly approved by the Thane Municipal Corporation, Occupation Certificate issued by the Thane Municipal Corporation with reference to the said VenusBuilding.
Thereafter, after detailed deliberations and negotiations, the Complainants decided to apply for the flat.
Accordingly, the Complainants filed an application on 2/9/2009 with the Builder/Developer for sale of the said flat. Thereafter, after examining thoroughly the transaction in all respects, the Complainants entered into an agreement of sale dated 3/9/2009 which was duly registered with the Sub-Registrar of Assurances at Thane on 4/9/2009 and thus, the Complainants purchased a residential premises bearing Flat No.805, on the eighth floor of Building No.10, named - 'Venus', Pokhran Road No.2, Revenue Village Majiwade, District Thane from the Builder/Developer for consideration mentioned therein. It is pleaded that the Builder/Developer had never agreed to sell or allot any parking space either closed or open or stilt to the Complainants. According to the Builder/Developer, the Complainants were put into possession of the flat on 2/10/2009 and since then, the Complainants have been occupying the said premises peacefully. It is pleaded that the dispute arose over an open parking space between the Complainants and other residents of the said Building to whom the Builder/Developer had provisionally allotted the parking spaces.
The Complainants then approached the Builder/Developer and started pressurizing the Builder/Developer for providing a parking space in the said building. The Builder/Developer disclosed to the Complainants the fact that the Builder/Developer had already commenced the process of formation and registration of a co-operative housing society of the flat-purchasers of the said building and the Builder/Developer would be handing over the entire affairs of the society to such newly formed society and suggested the Complainants to take up this matter of parking space with the society after it was formed but, the Complainants issued threats of dire consequences of teaching a lesson to the Builder/Developer by using their contacts or influence, the Complainant No.1 being a retired judge.
According to the Builder/Developer, the Complainant No.1 unnecessarily made an issue of ego despite knowing the fact that there was already scarcity of the parking space in the said building and the Builder/Developer would not be in a position to accede to the request of the Complainants. The Builder/Developer further pleaded that the claims raised by the Complainants in the present complaint are not only malafide but are also baseless and illogical. The claims are exaggerated and ill-founded one.
[17] The Builder/Developer denied its liability to pay compensation claim of `46,87,950/-, as raised by the Complainants, being baseless and ill-founded. The Builder/Developer denied that there was any misleading statement made in the agreement of sale, which the Complainant No.1 had meticulously read before signing and executing the same on his own volition. The Builder/Developer denied that it has in any manner acted in breach of provisions of the Maharashtra Ownership Flats Act, 1963 or D. C. Regulations, as alleged, to extract illegal consideration from the innocent flat-purchasers. According to the Builder/Developer, the Complainants are trying to misinterpret clause No.(36) of the agreement of sale for their own convenience. It is the contention of the Builder/Developer that they have not sold any parking space for consideration. The Builder/Developer had denied that they are liable to pay compensation @ `500/- per day till parking space is made available to the Complainants.
The Builder/Developer has also denied that they had sold illegally parking space for consideration and the Complainants had taken an initiative to call for a meeting of the flat-purchasers and the Complainants had explained correct legal position to each and every flat-purchaser who was present in the meeting. The Builder/Developer pleaded that they had not received any consideration from the Complainants with respect to allotment of parking space and, therefore, there was no question of allotting any parking space to the Complainants or to refund any amount to the Complainants on that count for not providing parking space. The Builder/Developer denied that they had commented upon the ruling of the Supreme Court, as alleged by the Complainants. According to the Builder/Developer, said allegation in paragraph (05) of the complaint was nothing but figment of imagination on the part of the Complainants and it was concoction made to suit their contentions. The Builder/Developer also denied that they resorted to arm-twisting tactics through their security attendants, engineers, sweepers etc. The Builder/Developer had denied that on 16/5/2010 or on any other day, the Complainants were physically obstructed by the employees of the Builder/Developer from parking their car in the stilt on the assertion that said stilt parking was allotted to the owner of Flat No.905-B, though the said flat-owner was not having a car as alleged by the Complainants. The Builder/Developer has also denied that they had shown a copy of allotment letter issued to Ms. Amina Shaikh of Flat No.905-B, as alleged. According to the Builder/Developer, the Complainant No.1 had a quarrel with Ms. Amina Shaikh over parking of the vehicle. The Builder/Developer denied that the Complainants had tendered any protest letter to the Builder/Developer through its employees.
It is denied by the Builder/Developer that Mr. Heerabhai had instructed his employees not to accept any letter given by the Complainants. The Builder/Developer has admitted that the Complainants had issued a rejoinder dated 16/5/2010 thereby issuing threats of vexing and dragging the Builder/Developer into an unwarranted litigation and to settle their score with Ms. Amina Shaikh. It is denied by the Builder/Developer that from 16/5/2010 till date the Complainants are required to park their car outside the complex premises as alleged. The Builder/Developer denied that they had told the flat-purchasers, who purchased parking space, that they would tell all authorities or even to the Court that they had not sold parking space to anybody and this created panic amongst the flat-purchasers who had bought parking spaces from the Builder/Developer. According to the Builder/Developer, it is false to say that they had collected illegal amount of `2,50,000/- towards stilt parking and `1,00,000/- for open parking from the flat-purchasers and totally collected more than `47,00,000/- illegally, as alleged by the Complainants. It is denied by the Builder/Developer that they have trespassed over the legal rights of the proposed society. It is denied by the Builder/Developer that they were using site-cum-sales office against the provisions of the Shops & Establishments Act. The Builder/Developer has also denied that three flats on the second floor of 'A' Wing are used as store-rooms, as alleged by the Complainants. It is denied by the Builder/Developer that they are creating any nuisance to the Complainant. According to the Builder/Developer, construction of the building was completed in the year 2008 and Thane Municipal Corporation has also issued Occupation Certificate and as such, no flat is being used as a store-room.
In fact, the Builder/Developer has kept seven ready premises under lock & key in view of a writ petition pending before the Hon'ble Bombay High Court as regards allotment of premises under Section-20 of the UrbanLand (Ceiling & Regulation) Act, 1976. The Builder/Developer has denied that they are in management of the building illegally or the Builder/Developer is removing the vehicles from the stilt and open spaces by using force as alleged. According to the Builder/Developer they have already filed a Writ Petition No.2201 of 2009 before the Hon'ble Bombay High Court as regards allotment of specified flat as per the scheme sanctioned under Section-20 of the ULC Act. In view of pendency of the said writ petition and the order issued by the Hon'ble Bombay High Court of status-quo, the Builder/Developer has kept seven flats under its lock and key. According to the Builder/Developer, the UrbanLand (Ceiling & Regulation) Act has been repealed since the year 2007 and the Complainants entered into transaction with the Builder/Developer only in the year 2009 and so, the Complainants cannot stake any claims under the said Act, which has been repealed way back in the year 2007. Admittedly, no right, privileges or obligations accrued in favour of the Complainants under the said repealed Act. So, whole paragraph in the complaint with reference to Section-20 of the Urban Land Ceiling Act is rendered illogical and redundant. The Builder/Developer pleaded that with a view to extract monies on trifle issues, the Complainants have filed this false complaint. The Builder/Developer pleaded that the Complainants were throughout non-cooperative and have tendency to indulge into quarrels and disputes. The Complainants have refused to put their signatures on the bye-laws of proposed society. The Complainants are consistent defaulters in payment of monthly maintenance and they are in arrears of sum of `13,000/- as on December-2010. The Complainants have been acting absolutely hostile against the Builder/Developer as well as the other residents of the building. The adamant and aggressive conduct of the Complainants has been causing great inconvenience not only to the Builder/Developer but also to other flat-purchasers and occupier of the building complex. The Complainants have protracted and delayed the completion of formalities of formation and registration of the society. The Builder/Developer has denied that the society's office room is not provided in the building. The Builder/Developer denied that they are liable to pay so many claims made by the Complainants together with interest thereon @ 21% p.a. The Builder/Developer has denied that they are liable to pay alleged compensation of `46,87,950/- as claimed by the Complainants. According to the Builder/Developer, prayers of the Complainants in clauses (25)(a) to (25)(y) are absolutely illegal and illogical and, therefore, the Builder/Developer pleaded that the Complainants are not entitled to get any relief of injunction, either mandatory or prohibitory and prayed that the complaint may be dismissed with costs. The Builder/Developer has also filed certain documents in support of the contentions raised in the written version.
[18] Both the parties have filed their respective affidavits, brief notes of arguments. We heard submissions advanced by Mr. Dilip Anant Joshi, the Complainant No.1 in person, on behalf of the Complainants and Adv. Mandar Divekar on behalf of the Builder/Developer.
[19] Initially, on 3/9/2010, permission was sought by the Complainants to file this complaint under Section-12(1)(c) of the Consumer Protection Act, 1986 since interests of other flat-purchasers were also being affected by the acts and omissions on the part of the Builder/Developer. We had directed the Builder/Developer to make an arrangement for parking space only on ad-hoc basis and the Builder/Developer was also further directed to send letters to all the allottees of parking spaces that the allotment is deemed to be an ad-hoc allotment till the Builder/Developer handed over possession to the newly formed co-operative housing society of the flat-purchasers in the building.
[20] In the course of argument, the Complainant No.1 was aware of the fact that the claims of the Complainants for various relief, as contained in the complaint, were not tenable and, therefore, the Complainant No.1 had raised only four points before us - Firstly about allotment of parking space in terms of clause No.(36) of the agreement, secondly about the ULC Compliances, thirdly about D.C. Regulations applicable to the Thane Municipal Corporation area and fourthly about compliances under the Maharashtra Ownership Flats Act, 1963. It appears that the Complainants have very much grievance about the allotment of parking space made to the other flat-purchasers excluding the Complainants.
[21] We have already mentioned above that we had permitted the Complainants to file a representative complaint under Section-12(1)(c) of the Consumer Protection Act, 1986 but, on 11/7/2011, the Complainant No.1 filed a pursis in writing under his signature and informed this Commission that the Complainants would be proceeding with their individual grievances only and not for any representative grievances of the other flat-purchasers of his building.
[22] Main grievance of the Complainants in this complaint is regarding non-allotment of the parking space, open or stilt, by the Builder/Developer. We have perused the agreement of sale executed between the Complainants and the Builder/Developer. Under the said agreement, only a flat is sold to the Complainants. Total agreed consideration for the said flat was an amount of `26,64,000/- and the possession was to be handed over on or before 30/9/2009. There is no dispute between the parties that the Complainants had paid full consideration besides the charges mentioned in clause No.(26) of the agreement. The clause No.(36) of the agreement inter-alia provides that the flat-purchaser shall not take any objection or raise any dispute if the Developers allot one open car parking space in the compound of the building or in the stilt area for consideration to the flat-purchaser hereby and the flat-purchasers hereby agree not to violate the car parking spaces allotted to the other flat purchasers for parking his own car. Clause No.(36) further provides that this car parking space allotted to the flat-purchaser is not transferable or saleable by the allottee under any circumstance. In clause No.(38) of the agreement, it has been mentioned that the flat-purchaser shall have no claim save and except in respect of the flat hereby agreed to be sold to the flat-purchaser and all open spaces, parking space, lobbies, staircase, terraces, recreation spaces etc. will remain the property of the Developers until the said land and building is transferred and conveyed to the federation of societies hereinbefore mentioned.
According to the Complainants, clause No.(36) of the agreement mentioned above, is against the provisions of the Maharashtra Ownership Flats Act, 1963 and the Builder/Developer cannot allot open or stilt car parking spaces to some few other flat-purchasers by taking some consideration extra from the flat-purchasers to allot the same and further condition in this clause that the other flat-purchasers shall not violate car parking space so allotted to the flat-purchaser who is allotted car parking space by the Builder. This clause, in our view, is contrary to the provisions of the Maharashtra Ownership Flats Act, 1963 and also contrary to the interests of the society of the flat-purchasers as and when it is formed. The Complainants have rightly relied upon the decision of the Hon'ble Supreme Court in Nahal Chand Laloo Chand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. ~ (2010)-(9)-SCC-536, whereunder it is observed as follows:-
"As a matter of fact, insofar as the promoter is concerned, he is not put to any prejudice financially by treating open space as part of 'common areas' since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. MOFA mandates the promoter to describe 'common areas and facilities' in the advertisement as well as the 'agreement' with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the 'common area and facilities'. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser...............But we have already held that 'stilt parking space' is not covered by the term 'garage' much less a 'flat' and that is part of 'common areas'. As a necessary corollary to the answers given by us to questions Nos.(i) to
(iii), it must be held that stilt parking space/s being part of 'common areas' of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither 'flat' under Section 2(a-I) nor 'garage' within the meaning of that provision is not sellable at all........In our opinion, MOFA does not restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not 'flat' within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organization; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell 'stilt parking spaces' as these are neither 'flat' nor appurtenant or attachment to a 'flat'."
[23] In this view of the matter, it is apparent that the Builder/Developer has no right to sell stilt parking or open parking which are falling under the term - 'Common Amenities of the Occupiers of the flats or Building'. The Builder/Developer simply has no right to sell any portion of common areas to the detriment of the flat-purchasers or occupiers of the flats. Stilt parking or open parking of any building has to be regulated by a co-operative housing society when formed and under its bye-laws. General Body of a co-operative housing society has got every right to dispose of or to make an arrangement of parking of the vehicles of the members/flat-occupiers by laying a policy to that effect in its general body meeting and the Managing Committee of such co-operative housing society has to carry out the directions given in this behalf by the general body of the society. The Builder/Developer, we reiterate, has no right to sell stilt parking or open parking space exclusively to the flat-purchasers of his choice to the detriment of interests of other flat-purchasers. This is the law obtainable today if we consider the Apex Court ruling, provisions of the Maharashtra Ownership Flats Act, 1963 and Rules framed thereunder and bye-laws of a co-operative housing society. So, if the Builder/Developer has chosen to alienate or dispose of or to allot stilt parking or open parking from the common amenities of the building he does so at his own peril and risk and he cannot be heard to say that he has got every right to dispose of the car parking or open/stilt parking to any flat-purchaser of his choice thereby jeopardizing adversely the interests of other flat-purchasers.
[24] In this case, grievance of the Complainants is that they have not been allotted upon or stilt parking space by the Builder/Developer and when they put their car in one stilt parking it was found to have been allotted to Ms. Amina Afsar Shaikh, who is the owner of Flat No.907-B. This is where the dispute between the Complainants and the Builder/Developer started. This is the genesis of the dispute between the parties. However, allotment of parking space is a matter that has got to be decided by the co-operative housing society of the flat-purchasers. In the course of arguments or during the pendency of the complaint, the Complainants nowhere stated that the society of the flat-purchasers has been formed.
But then, in the compilation, we came across one statement dated 3/8/2011 of the Complainant No.1 recorded by the Police Station Officer, Vartak Nagar Police Station, Thane.
In that statement, the Complainant No.1 mentioned that he had made a complaint with Police Commissioner, Thane and thereafter, an Inquiry Officer was appointed and in the inquiry with regard to breach of public peace, he was giving a statement that as per the statement of Shri Hirachand Vardhan (who is Builder/Developer in our case) parking made by him was temporary and after formation of the society, the society will take a decision of allotting parking space and that decision would be acceptable to him. We have been told in the course of arguments by the Builder/Developer that the society has been formed but, it is very pertinent to note that the society so formed has not been impleaded in the present complaint as a Co-Opponent and once the society is formed, the Builder/Developer cannot interfere or inter-meddle with the affairs of the society or of flat-purchasers. When this is the position, since the society is formed, it is for the society to cancel all the allotments of parking spaces temporarily made by the Builder/Developer to some of the flat-purchasers to the exclusion of other flat-purchasers and to re-allot stilt and open parking space as per the decision taken in its general body meeting and the Managing Committee of the society is supposed to implement said decision accordingly. Had the society being made a party to the present complaint, we would have given directions to the society in this behalf but, the Society of flat-purchasers of the Complainants' building is not impleaded as Co-Opponent and, therefore, we cannot do so but we hope that the society would in the right earnest take decision to re-allot stilt and open parking spaces and in the process, the society shall safeguard the interests of all the flat-purchasers irrespective of black and white payments some of the flat-purchasers may have made to the Builder/Developer to seek favour from the Building/Developer in respect of allotment of parking space. In the circumstances, we are of the view that the Complainants should approach the society in this behalf to seek Redressal of their grievances in respect of non-allotment of parking space. Builder/Developer has no right to interfere in the affairs of the society and the society and its general body is the supreme authority to decide all the issues faced by the Complainants pertaining to open parking space and stilt parking space. We are, therefore, no inclined to declare the allotment made by the Builder/Developer in favour of some of the flat-purchasers as null and void.
When the Apex Court ruling is applicable and binding on all citizens of our country, no such declaratory relief could be granted by us while deciding a consumer complaint. This will take care of issue of parking space raised by the Complainants in this complaint.
[25] It is the contention of the Complainants that parking space allotted to some of the flat-purchasers by the Builder/Developer as per the choice of the Builder/Developer (for consideration) may be declared as null & void and that allotment of parking may be quashed. This sort of prayer cannot be allowed in this consumer complaint for the simple reason that the Complainants had not impleaded those allottees of parking spaces (stilt or open) the Co-Opponents in the present complaint alongwith the Builder/Developer. It is the cardinal principle of natural justice that nobody should be condemned unheard. If, the Complainants wanted this sort of relief, the Complainants should have taken care to implead all those allottees of parking spaces in this consumer complaint but, in absence of those allottees this plea of the Complainants cannot be acted upon. Moreover, we have already mentioned above that it is the prerogative of the society to allot open and stilt parking to the member/flat-purchasers as per the policy decision that may be taken by the general body meeting of the society.
[26] Second issue raised in this complaint which was also very much harped upon by the Complainants in the course of arguments is about charging of price at the rate far in excess than permissible when land is being developed by the Builder/Developer which is made available to the owner under the Urban Land (Ceiling & Regulation) Act. The Complainant No.1 invited our attention to the order passed by the competent authority under the ULC Act and while permitting the owner, the competent authority in its order (Exhibit-G) clearly laid down that open market price rate for flats was determined @ `730/- per sq. ft., but the Builder/Developer charged actual rate of `5,493/- per sq. ft.
According to the Complainants, cost of their flat as per ULC sanction comes to an amount of `3,54,050/- and actual price charged is of `26,64,000/- and, therefore, the Builder/Developer is liable to refund excess amount collected from the Complainants. The Builder/Developer, in the written version supported by an affidavit, clearly stated that the Urban Land (Ceiling & Regulation) Act stood repealed in the year 2007 and the Complainants purchased this flat from the Builder/Developer in the month of September-2009 and, therefore, the Complainants should not be permitted to fall back on the rate stipulated in the ULC order when the ULC Act itself stood repealed in the year 2007.
Moreover, the Complainants on their own volition seeing that the Builder/Developer was giving ready possession of the flat already constructed in all respects entered into an agreement of sale in the month of September-2009 and within a few days thereafter, in the month of October-2009 the Complainants took possession of the flat from the Builder/Developer. Before entering into an agreement of sale with the Builder/Developer, the Complainants had seen all the relevant documents. The Complainants had inspected the documents and then agreed to purchase the flat in question which was ready for delivery of possession and the Complainants purchased the said flat on making payment of agreed consideration amount of `26,64,000/-. When this is so, the Complainants cannot be heard to say that they should have been allotted the flat at the cost as stipulated in the ULC order granted in favour of the owner of the land by the competent authority under the UrbanLand (Ceiling & Regulation) Act. So this contention of the Complainants is appearing to be devoid of any merit.
[27] The Complainant No.1, during the course of his arguments, also submitted that the Builder/Developer had flouted Development Control Rules as applicable to the Thane Municipal Corporation area. According to him, the Builder/Developer has not kept proper space open around the building for fire fighting operations. The Complainants contended that fire-tenders cannot move around the building since the space left is far less than permissible under the Development Control Rules. However, this argument of the Complainants also cannot be addressed by us in this consumer complaint because this not a deficiency in service qua the Complainants themselves. Moreover, it should not be forgotten that Thane Municipal Corporation has already granted Occupation Certificate for this building and this fact is mentioned by the Building/Developer while allotting the flat and handing over possession of the flat to the Complainants.
Builder/Developer has mentioned the specific date as to when the Builder/Developer was granted Occupation Certificate by the Thane Municipal Corporation. On 29/3/2008, the Builder/Developer had obtained the Occupation Certificate from Thane Municipal Corporation. This fact was clearly told to the Complainants when they were issued letter of giving possession of the flat on 2/10/2009.
So when the local municipal corporation has given Occupation Certificate to the building in question occupied by the Complainants, the Complainants cannot be permitted to argue that the Builder/Developer has flouted Development Control Rules or some provisions of the Maharashtra Town Planning Act. The very fact that Thane Municipal Corporation was pleased to grant Occupation Certificate in respect of this particular building would mean that the Builder/Developer had adhered to all the statutory requirements of the Development Control Regulations as applicable to the Thane Municipal Corporation Area and the provisions of the Maharashtra Town Planning Act. So, again we find that there is no substance in the argument made by the Complainants in this behalf. Of course, if at all the Complainants feel that the Builder/Developer has flouted or contravened the Development Control Regulations or any provision of the Maharashtra Town Planning Act, the Complainants are always free to approach the concerned competent authorities for redressal of their grievances but, under the Consumer Protection Act, 1986 this cannot be said to be a 'deficiency in service' on the part of the Builder/Developer qua the Complainants.
[28] The Complainants have also preferred monetary claims in respect of various non-disclosures allegedly made by the Builder/Developer. However, we are not finding that there is any merit in the various claims made by the Complainants for the simple reason that the Complainants took ready possession of the flat. The Complainants entered into an agreement for sale with the Builder/Developer for purchase of a flat on 3/9/2010 and took possession of the flat on 2/10/2010. So, after inspecting the building and the flat in particular and after examining all the relevant documents in the office of the Builder/Developer, the Complainants paid the entire consideration amount of `26,64,000/- and took possession of the flat. So, there was no concealment of any fact from the Complainants on the part of the Builder/Developer. The Complainants have lodged a claim for recovery of an amount of `46,97,950/- under various heads but, we are finding that this is nothing but an exercise in futility on the part of the Complainants. When the Complainants had paid agreed consideration amount of `26,64,000/-, the Complainants are claiming compensation of `46,87,950/- particularly, when within less than one month after execution of the agreement of sale, the Complainants were put in possession of the flat and as has been rightly argued by the Learned Counsel for the Builder/Developer, the Complainants have no grievance about the area of the flat and about the quality of construction. The Complainants are not finding any fault in the flat of which they had taken possession of from the Builder/Developer by paying agreed consideration amount of `26,64,000/- but, the Complainants have invented all these grievances when they were offended by the fact that they were not getting parking space from the Builder/Developer to park their vehicle. So, all the monetary claims mentioned by the Complainants, in their complaint, are nothing but imaginary and no monetary relief what-so-ever can be granted to the Complainants under various heads, as claimed by the Complainants.
[29] It is also a grievance of the Complainants that the Conveyance Deed as yet has not been executed in favour of the Society and, therefore, there is serious violation as per Sections 10 & 11 of the Maharashtra Ownership Flats Act, 1963 on the part of the Builder/Developer and, therefore, the Builder/Developer is liable to pay compensation @ `500/- per day. In the course of arguments, we have been told that the society has been already formed and even the Learned Counsel for the Builder/Developer submitted during the course of his arguments that the Complainant No.1 was also on the Managing Committee of the society though this fact was conveniently suppressed by the Complainants before us. That apart, when this complaint was reserved for delivery of judgment and order, one day the Complainant No.1 appeared before our Bench and told us that he wanted to sell the flat but the society was not giving permission to sell the flat by issuing 'No Objection Certificate' since the society was saying that let this consumer complaint be decided first. This statement of the Complainant No.1 himself leaves us in no doubt that the society has been formed by the Builder/Developer and once the society is formed, the Builder/Developer is supposed to execute the Conveyance Deed in favour of the society within a period of four months as per Sections 10 & 11 of the Maharashtra Ownership Flats Act, 1963. What is significant to note here is the fact that the Complainants have not filed a complaint in the representative capacity.
We had permitted the Complainants to file a consumer complaint in the representative capacity. We had given permission to the Complainants to prosecute this complaint under Section-12(1)(c) of the Consumer Protection Act, 1986. But then, the Complainants filed a pursis and informed us that they wanted to restrict their complaint for their own personal grievances and the Complainants were not prosecuting this complaint on behalf of all the flat-purchasers though the Complainants had been permitted to do so under Section-12(1)(c) of the Consumer Protection Act, 1986. When this is so, one thing is crystal clear that this complaint has got to be decided so far the Complainants' personal grievances are concerned. Conveyance Deed has got to be executed by the Builder/Developer after formation of a co-operative housing society in favour of such society. The Complainants alone cannot be given Deed of Conveyance in respect of their own flat and so, the Complainants will have to wait till the society which has been formed insists upon the Builder/Developer to execute the Conveyance Deed in terms of Sections 10 & 11 of the Maharashtra Ownership Flats Act, 1963. Till then, the Complainants will have to wait in the circumstances obtainable.
[30] The Complainants have complained in this complaint that no society's office-room has been provided in the building. Now, when the Complainants have prosecuted this complaint in their individual capacity, they cannot be permitted to argue on behalf of the society as a whole. Society, once formed, will take-up this issue with the Builder/Developer and the Builder/Developer will have to make provision for the room to be allotted to the society but, this prayer cannot be granted in favour of the Complainants because the Complainants have filed a consumer complaint in their personal capacity and not a representative complaint. So, there is no question of granting any relief in this behalf in favour of the Complainants.
[31] The Complainants have also prayed in their complaint that the Builder/Developer may be directed to give accounts of all the sums collected from the Complainants under the agreement. As per clause No.(26) of the agreement of sale executed between the Complainants, on one side and the Builder/Developer, on the other certain sums have been recovered from the Complainants, totaling an amount of `85,450/- besides an amount of `5,000/- towards Federation of Societies Charges. Thus, in all, an amount of `90,450/-
has been collected from the Complainants under various heads like legal charges for the agreement, share money, application entrance fee of the society, formation and registration of the society, proportionate share of taxes and other charges, infrastructure cost, electricity meter and cable charges and society office contribution.
These charges were collected from the Complainants besides maintenance charges but the Builder/Developer has not given accounts of these charges to the Complainants.
So, we can hold that there is deficiency in service so far as non-furnishing of accounts to the flat-purchasers in respect of these charges. The Complainants are right in claiming accounts in respect of these charges since the Builder/Developer had collected those charges from the Complainants and the Builder/Developer has not furnished any account in respect of those charges. Price of the flat and receipt thereof is already mentioned in the agreement itself. So, by allowing this complaint partly, we would direct the Builder/Developer to furnish to the Complainants, the details of expenses incurred from the amount of `90,450/- collected from the Complainants plus the account of maintenance charges collected from the Complainants. Non-furnishing of the accounts to the flat-purchaser is per-se deficiency in service on the part of the Builder/Developer. In the result, we hold that the complaint is liable to be partly allowed only in respect of relief of seeking accounts in respect of an amount of `90,450/- and maintenance charges paid by the Complainants to the Builder/Developer. Rests of the claims of the Complainants are liable to be rejected.
Hence, we pass the following order:-
ORDER The complaint is partly allowed.
The Opponent is hereby directed to furnish to the Complainants jointly, the accounts of expenses in respect of an amount of `90,450/- collected from the Complainants under various heads plus maintenance charges within a period of one month from the date of receipt of this order.
The Opponent is also directed to pay to the Complainants jointly an amount of `5,000/- towards costs of the complaint.
Rest of the claims of the Complainants stands rejected.
Inform the parties accordingly.
Pronounced on 21st February, 2012.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. S.R. Khanzode] Judicial Member [Hon'ble Mr. Narendra Kawde] MEMBER kvs