State Consumer Disputes Redressal Commission
Mr. Hectar Naronlia vs M S Astron Projects on 2 November, 2015
A/14/226/227/228 1/10
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.A/14/226
In
(Complaint No.412 of 2008 (District Forum, Mumbai Suburban)
(Arisen out of common order dated 28/01/2014 in Case Nos.411/2008 To 415/2008
of District Mumbai Suburban)
MR.HECTOR NARONHA,
R/at Flat No.401, Silver Beliza Co.op. Hsg. Soc. (Proposed),
Plot No.48, St.Francis Avenue,
Santacruz West, Mumbai 400 054,
Maharashtra.
First Appeal No.A/14/227
In
(Complaint No.411 of 2008 (District Forum, Mumbai Suburban)
(Arisen out of common order dated 28/01/2014 in Case Nos.411/2008 To 415/2008
of District Mumbai Suburban)
MR.RALPH FERNANDES,,
R/at Flat No.202, Silver Beliza Co.op. Hsg. Soc. (Proposed),
Plot No.48, St.Francis Avenue,
Santacruz West, Mumbai 400 054,
Maharashtra.
First Appeal No.A/14/228
In
(Complaint No.414 of 2008 (District Forum, Mumbai Suburban)
(Arisen out of common order dated 28/01/2014 in Case Nos.411/2008 To 415/2008
of District Mumbai Suburban)
MR.REGINALD FERNANDES,,
R/at Flat No.403, Silver Beliza Co.op. Hsg. Soc. (Proposed),
Plot No.48, St.Francis Avenue, ..........Appellant(s
Santacruz West, Mumbai 400 054, )
Maharashtra.
All Versus
1. M/s. Astron Projects,
Office at 701, „The Niche‟,
45, St. Francis Avenue, Santactuz West,
Mumbai 400 054.
Now Office at:
AVN Infrastructure,
702, 7th Floor, Sapphire,
S.V. Road, Khar West, Mumbai 400 052.
2. Mr.Antony Henry Silva, ..........Respondent(s)
Office at 701, „The Niche‟,
A/14/226/227/228 2/10
45, St. Francis Avenue, Santactuz West,
Mumbai 400 054.
Now Office at:
AVN Infrastructure,
702, 7th Floor, Sapphire,
S.V. Road, Khar West, Mumbai 400 052.
3. Mrs.Nancy Silva,
Office at 701, „The Niche‟,
45, St. Francis Avenue, Santactuz West,
Mumbai 400 054.
Now Office at:
AVN Infrastructure,
702, 7th Floor, Sapphire,
S.V. Road, Khar West, Mumbai 400 052.
4. Executive Engineer,
Building Proposal Western Suburb,
Municipal Corporation for Greater Mumbai,
Office at Bandra (W), Mumbai 400 051.
5. Mr.Isaac Kotadiel, Flat No.101,
6. Mrs. Antoinette Fernandes, Flat No.201,
7. Mr. Alvito Vaz, Flat No.203,
8. Mr.Michael Carvalho, Flat No.103,
9. Mr. Noel Chaves, Flat No.501,
10. Mr.Gregory D. Almedia, Flat No.502,
11. Mrs. Lizetee Reynolds, Flat No.601,
12. Mr. Joachim Carvalho, Flat No.602,
13. Mrs. Maria Calista Fernandes, Flat No.701
All R/at Silver Beliza Co-op. Hsg. Soc. (Proposed),
Plot No.48, St. Francis Avenue, Santacruz West,
Mumbai 400 054.
BEFORE: P.B. Joshi, Presiding Judicial Member
Dhanraj Khamatkar - Member For the Advocate Mr.Subodh Gokhale a/w Advocate Complainant: Ms.Anita Marathe for the appellants.
For the None present for the respondents.
Opponent:
COMMON ORDER IN A/14/226, A/14/227 & A/14/228
Per Mr.Dhanraj Khamatkar - Member:
1) Since all these three appeals involve common question of law and
facts, we are disposing of these appeals by this common order.
A/14/226/227/228 3/102) These appeals have been filed by the original complainants in Consumer Complaint Nos.412/2008, 411/2008 and 414/2008, challenging the Common Order passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban in Consumer Complaint Nos.411/2008 To 415/2008 dated 28.01.2014.
3) Facts leading to these appeals can be summarized as under:
Mr. Ralf Fernandes, Hector Naronha, Arun Gomes, Reginold Fernandes and Roy Gomes had filed consumer complaints against the opponent nos.1 to 3 (Opponent No.1 is the partnership firm and opponent nos.2 and 3 are its partners), Opponent no.4, who is an Executive Engineer of the Municipal Corporation for Greater Mumbai, dealing with the building proposals and opponent nos.5 to 13 are the flat owners. The opponent no.1 builder developer had constructed the building in the year 2003 and handed over the possession to the flat holders. It is the allegation of the complainants that the opponent nos.1 to 3 had not taken any steps for forming the Co-operative Housing Society of the flat purchasers. The opponent no.3 had sent Memorandum of Understanding (MOU) on 08.04.2008 and stated that on putting the signatures by the flat purchasers agreeing with the conditions of the MOU, the opponent nos.1 to 3 will initiate the action for the formation of the Co-operative Housing Society. It is also alleged that the opponent nos.1 to 3 had sold the parking place to opponent no.12 and the opponent no.12 is planning to convert the said parking place into a commercial place. The Complainants contended that the parking place is a common property of the flat purchasers and selling some part of it for commercial purpose is unauthorized. It is also alleged that the terrace adjacent to flat nos.601 and 602 has been sold to the adjacent flat holders and they A/14/226/227/228 4/10 are using the same. Alleging the aforesaid deficiencies on the part of opponent no.1 to 3 amounts to deficiency in service they have filed consumer complaints with following prayers:
(a) It be declared that the terrace at 7th floor level above flat no.601 and flat no.602 is common terrace of the building silver Beliza.
(b) Opponent No.1 to 3 and 4 be directed to restore the terrace on the 7th floor above flat no.601 and flat no.602 to its original position by removing all the illegal wall and grills, in accordance with the approved plan of the building at the time of sale of the flat to the complainant.
(c) Opponent no.1 to 3 be directed to register the co-operative housing society of the building Silver Beliza without any excuses.
(d) Declaration that stilt parking in the Silver Beliza building cannot be sold by opponent no.1 to 3, same being common amenity.
(e) Opponent no.1 to 3 and 4 be directed to restore the stilt parking, in Silver Beliza building, to its original position as per the approved plan shown to complainant before sale of the flat, by removing the walls built to cover the stilt parking.
(f) Direction be given to opponent no.4 to ensure the safety measures, of Silver Beliza Building, are adhered to by opponent no.1 to 3.
(g) Opponent no.1 to 3 and 4 be directed to demolish additional garage as same poses an obstruction to free passage and movement of the fire brigade engine.A/14/226/227/228 5/10
(h) The opponent no.4 should be directed to get the compliance of restoration of silver Beliza building in terms of the original plan approved by MCGM in the year 2001, till such complete compliance by the opponent no.1 to 3, opponent no.4 be directed to stop the ongoing project of the opponent no.1 to 3 by issuing stop work notice.
(i) The opponent no. 1 to 3 have created rift amongst the flat purchasers thus damaged the social and cultural life in the Silver Beliza Building therefore a compensation of Rs.1,50,000/- (one lac fifty thousand only), inclusive of the charges collected for registration and legal fees, be awarded against the opponent no.1 to 3.
(j) Any other order in the nature of the circumstances of the case to which complainant is entitled.
4) The opponents had filed their written version on 23.10.2008.
However, the opponent nos.5 to 13 had clarified that their Advocate was common and hence, they have filed common written version and now they have engaged different advocate for pleading their case. In their written version the opponent nos.1 to 3 had given details of the steps taken by them for forming the co-operative housing society. According to them they have initiated process of forming society in the year 2003 itself. However, as there were differences between the flat purchasers they could not register the housing society. They further stated that the complaint is filed in the year 2008 and hence, the complaint itself is time barred. As regards the parking place, they have stated that they have not changed the use of the parking place and they have denied the contention of the complainant regarding the change of user of A/14/226/227/228 6/10 parking place. As regards the unauthorized use of the terrace they have stated that the terrace of 7th floor is part of the flats on 7th floor and the terrace above the 7th floor is open to all the flat purchasers.
5) The opponent no.4 remained absent though duly served and hence, proceeded without written version. The complainants have filed their evidence on affidavit. The opponent nos. 1 to 3 have also filed their evidence on affidavit and opponent nos.5 to 13 have filed their evidence on affidavit. The District Forum after going through the complaint, written version filed by the opponents, evidence filed on affidavits by both the parties and the pleadings of the advocates came to the conclusion that there is deficiency in service on the part of the opponent nos.1 to 3 and partly allowed the complaints directing the opponent nos.1 to 3 to form the Co-operative Housing Society or Limited Company within a period of three months with costs of Rs.10,000/- to be paid by the opponent nos.1 to 3 to the complainants in each complaint. Aggrieved by the said order the original complainants in consumer complaint nos.412/2008, 411/2008 and 414/2008 only have preferred these appeals challenging the order in respect of their other prayers.
6) On 20th August, 2015 Advocate Mr.Suboth Gokhale i/b Advocate Mr.Ashutosh Marathe was present for the appellants. One Mr.Nichlos D‟souza instructed by advocate Mr.Vivekanand Gupta on behalf of respondents appeared and prayed for adjournment as Advocate on record for the respondents was before the Bombay High Court. Advocate being busy professionally elsewhere is not a ground for adjournment, the matter was adjourned in the interest of justice with costs of Rs.8,000/- to be paid to the appellant in each appeal. However, said costs have not been paid by the respondents. The matter was argued finally. We have heard Advocate Ms.Anita A/14/226/227/228 7/10 Marathe for the appellants along with Advocate Mr.Subodh Gokhale. Respondents as well as their advocates remained absent.
7) Admittedly, the opponent no.1 is a builder developer and opponent nos.2 and 3 are its partners. Admittedly, they have constructed the building wherein the complainants are having the flats and the possession of the flats was handed over in the year 2003. At page 90 of the appeal compilation there is a copy of the letter addressed to the Assistant/Deputy Registrar, Co-operative Societies, „H‟ West Ward, Mumbai 400 050, requesting the registrar for reservation of name for proposed "SILVER BELIZA CO-OPERATIVE HOUSING SOCIETY". The letter is under the signature of Chief Promoter. At page 92 of the appeal compilation, there is copy of resolution for electing a Chief Promoter. There are signatures of 10 (ten) flat purchasers on the resolution. At page 96, there is letter from Deputy Registrar, Co-operative Societies, H/West Ward, Mumbai to the Chief Promoter dated 10.06.2008. At page 98, there is list of promoters, wherein there are signatures of only 8 (eight) members. At page 101, there is an application for Registration of Society. There is no date on the application. Thus, it will be clear from the said papers that, though the opponent nos.1 to 3 are claiming that they have initiated the process of registration of the society in the year 2003, it is not supported by documents on the record. As against this, the complainants have produced a copy of MOU, which is at page 68 of appeal compilation, wherein it is stated that:
"AND WHEREAS, there are various disputes between the parties of the First Part and the parties of the Second Part, which the parties of the First Part and the parties of the Second Part desire to resolve;A/14/226/227/228 8/10
AND WHEREAS, the parties hereby agree that until this date, there are various disputes in forming a Co-Operative Housing society of the Flat Purchasers and the parties of the First Part have requested the parties of the Second Part several times to form a Co-operative Housing Society as early as possible;
AND WHEREAS, the parties hereto have held several meetings to discuss and trash out the differences between the parties of the First Part and the parties of the Second Part as well as the parties of the First Part interest in forming a Co-operative Housing Society;
AND WHEREAS, as a result of the said meetings, since there were some allegations of minor extensions in the building and which are condonable and therefore, the parties hereto agree to appoint an Architect at the cost of the parties of the First Part and prepare a plan of the entire building as it exists today which is marked as Annexure 'A'. "
It further states that:
AND WHEREAS, the parties of the First Part have agreed to take all steps and expedite within three months of signing this MOU to form a Co-operative Housing Society at their cost and complete all other preliminary formalities as well as registering agreements etc. if any to be registered so as to form a registered Co-operative Housing Society."
8) From the said MOU it is crystal clear that after obtaining occupation certificate of the said building, the opponent nos.1 to 3 have carried out modifications and as the appellants are not ready A/14/226/227/228 9/10 and willing to admit the modifications the opponent nos.1 to 3 have not formed the Co-operative Housing Society.
9) Further, in the said MOU the opponent nos.1 to 3 had agreed to pay a total sum of Rs.34,000/- per month viz. Rs.2,000/- per flat purchaser per month before the end of the calendar month after 31st May, 2008. Even, the opponent nos. 1 to 3 had agreed that, if the formation of the Co-operative Housing Society is delayed they have agreed to pay Rs.4,000/- per month per flat purchaser before the end of every month and till the society is formed. The Ld.District Forum relying on the pleadings of the opponent nos.1 to 3 have arrived at the conclusion that the remaining prayers of the appellants are time barred. In our view, after getting the occupation certificate from the Municipal Corporation the opponent nos.1 to 3 have carried out the alterations in the construction. Hence, we come to the conclusion that prayers of the appellants are within time limit.
10) The appellants have added the Executive Engineer, Building Proposal, Western Suburb, Municipal Corporation of Greater Mumbai as a necessary party. However, Executive Engineer, i.e. original Opponent no.4 has not appeared before the District Forum as well as before Commission. Additions or alterations in the building after the occupation certificate can lead to the serious problems. Recently there was a fire because of the additions and alterations in the Mumbai City causing havoc. Thus there is deficiency on the part of the respondent nos.1 to 3. In the public interest and to avoid the untoward incidence the inspection of additions and alterations carried out by the respondents is must by respondent no.4. The MOU prepared by the respondent nos.1 to 3 is an admission of the deficiency in service on their part. Not only A/14/226/227/228 10/10 that the respondent nos.1 to 3 have tried to favour some flat purchasers by giving them favour, but, also tried to pressurize the other flat purchasers to sign the MOU. The District Forum has failed to take the cognizance of the basic facts and admission of the respondent nos.1 to 3. We hold accordingly and pass the following order:
ORDER
(i) The appeals are allowed and the order passed by the District Forum is set aside against these appellants only.
(ii) The respondent nos.1 to 3 are directed to form a Housing Society of the flat purchasers within a period of three months from the order and execute the conveyance deed transferring the land and building in the name of the society, failing which the respondent nos.1 to 3 shall pay Rs.2,000/- per month to the appellant in each appeal.
(iii) The Respondent no.4, i.e. Executive Engineer, Building Proposal, Western Suburb, shall carry out the inspection of the building and initiate action for the additions and alterations in the building carried out by the respondent nos.1 to 3 after issuing an occupancy certificate.
(iv) No order as to costs` .
Pronounced on 2nd day of November, 2015.
[P.B.Joshi]
Presiding Judicial Member
[Dhanraj Khamatkar]
Member
ep