Gujarat High Court
Veer Savarkar Heights (G H B) vs Gujarat Housing Board on 1 April, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/15132/2020 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15132 of 2020
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VEER SAVARKAR HEIGHTS (G H B)
Versus
GUJARAT HOUSING BOARD & ORS.
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1
MR JT TRIVEDI(931) for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 7
MR SALIL M THAKORE(5821) for the Respondent(s) No. 8
NOTICE SERVED BY DS for the Respondent(s) No. 4,5,6
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/04/2024
ORAL ORDER
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"5. The petitioner prays that in the above premises, this Hon'ble Court may be pleased:
[a] to allow this petition with costs and to issue a writ of mandamus or any other writ, direction or order, enjoining upon the respondents to immediately carry out the essential repairs to the satisfaction of the petitioner, in consultation with the petitioner and to forthwith pay up all the legitimate dues payable to the petitioner;
(a-1) to allow this petition and direct the respondent No.1 to pay Rs.16,43,260/- against 900 flats for the period from April, 2018 till 31 st March, 2019, as per the audit report which become Rs.30,78,450/- against approx. 700 flats, as per the audit report together with interest on such late payment;
(a-2) to allow this petition and direct the respondent No.1 to pay common electricity charges for all those flats, which remained in their Page 1 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined possession and ownership, till the same were sold by way of conveyance deed in favour of respective members and till the date the members contribution was deposited in the respective account of the petitioner Association;"
(a-3) to allow this petition and direct the respondents to raise the ground level of the entire complex, in consonance with the GDCR Rules and also in terms of the Broucher and the permission sought for the project forthwith, so that water logging issue can be resolved. (a-4) to allow this petition and direct the respondent No.1 to construct under ground water tank of at least 5 lakh Kilo liter storage tank, so that the deficit in daily requirement of water can be resolved. (a-5) to allow this petition and direct the respondent No.1 to pay the interest on belated payment of the One Time Maintenance amount, collected by it at the time of conveyance deed. (a-6) to allow this petition and direct the respondent No.1 to construct common amenities for the Office bearers of the Association and the staff, employed by the Association for maintaining cleanliness in the society and for it's security.
(a-7) to allow this petition and direct the respondents to arrange for all fire safety measures be installed, as per permission. [b] to kindly grant appropriate interim relief, by ordering expeditious disposal of this petition;
and [c] to grant such further and other reliefs, as may be deemed to be just and proper."
2. Heard Mr. B.J. Trivedi, learned advocate appearing for the petitioner and Mr. Rituraj M. Meena, learned advocate appearing for the respondent No.1.
3. The petitioner herein is an Association of flat holders in a registered scheme of Gujarat Housing Board bearing registration No.004 dated 14.04.2018, created under Section 75 of the Gujarat Housing Board Act, 1961 and has adopted the byelaws of the Gujarat Housing Board. The present petition Page 2 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined is preferred through its Chairman to challenge the unlawful and continuing omissions to provide the essential basic amenities to the members i.e. the flat holders, for them to live a hassle free life and in a dignified manner.
4. Mr. B.J. Trivedi, learned advocate appearing for the petitioner, mainly harped on the grievances of the members of the Association and submitted that, the respondent authority has failed in providing the basic amenities to the petitioner herein and has raised various grounds with respect to the same. It was submitted that the petitioner approached the respondent authority by preferring a detailed representation dated 03.12.2018 pointing out the grievances of the petitioner, which is duly produced at page 74, however, the said representation is not considered by the respondent authority and in light of the aforesaid, the present petition is filed. 4.1 Mr. B.J. Trivedi, learned advocate, submitted that the respondent authority be directed to pay Rs.16,43,260/- against 900 flats for the period between April, 2018 to 31 st March, 2019 as per the Audit report which became Rs.30,78,450/- against approximately 700 flats as per the Audit report together with interest and late payment. Mr. Trivedi, learned Page 3 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined advocate, further submitted that the respondent No.1 be directed to pay the common electricity charges for all those flats which were in possession and ownership, till the same were sold by way of conveyance deed in favour of the respective members and till the date, the members contribution was deposited in the respective account of the petitioner Association. It was submitted that the respondents be directed to raise ground level of the entire complex in consonance with the GDCR Rules and also in terms of the Broucher and permission be sought for project forthwith to resolve the water logging issue. It was submitted that the respondent No.1 be directed to construct under ground water tank of at least 5 lakh kilo liter storage so that the deficit in daily requirement of water is resolved.
4.2 In the course of hearing, Mr. Trivedi, learned advocate, submitted that the said issue stands resolved the water storage tank having been constructed. It was further submitted that the respondent No.1 be directed to pay the interest on belated payment of One Time Maintenance Amount, collected by it at the time of conveyance deed. It was submitted that the respondent No.1 be directed to construct common amenities Page 4 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined for all the office bearers of the Association and the staff, employed by the Association for maintaining cleanliness in the society and for the security of the society. It was submitted that the respondents be directed to arrange for all the fire safety measures; to be installed as per the permission. 4.3 Placing reliance on the aforesaid submissions, Mr. B.J. Trivedi, learned advocate, submitted that the present petition is mainly filed to ensure that the interest of the members of the petitioner Association is taken care of in terms of the provisions of the byelaws of the Gujarat Housing Board and the Gujarat Housing Board Act, 1961.
5. Mr. Rituraj M. Meena, learned advocate appearing for the respondent No.1 - Board, submitted that the contentions raised in the present petition by the petitioner Association and the grievances raised by the petitioner, are redressable by approaching the Real Estate Regulatory Authority (RERA) with respect to the deficiency/defects in the flats constructed by the respondent Board. It was submitted that the question with respect to the defective construction and deficiency in services, can be adjudicated under the Consumer Protection Act, 1986.
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NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined 5.1 Mr. Meena, learned advocate, submitted that for the recovery of one-time maintenance given by the members to the Board at the time of allotment and the reimbursement of expenses which is sought for by the society as maintenance on the unsold units, a writ would not be maintainable. It was submitted that no fundamental right of the petitioner is violated by any of the exercise undertaken by the respondent No.1 - Board. It was submitted that the respondent - Board floated a scheme-in-question which is registered under the RERA Act and the certificate has been issued by the RERA Authority on 24.09.2018. It was submitted that as on today, 1904 flats have been allotted as per the scheme/rules and regulations of the respondent - Board. The possession of all the flats have been taken over by the respective owners, except for 27 flats, for which, notices are issued by the respondent Board in accordance with the policy. In the event, the said 27 members do not take possession of the flats-in- question, the same would be re-allotted in accordance with the policy/rules and regulations of the Board. It was submitted that the maintenance that has been collected by the respondent - Board, has been transferred to the petitioner Association. Page 6 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024
NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined Reliance was placed on the chart which is duly produced at Annexure - R2.
5.2 Mr. Meena, learned advocate, submitted that the total area of the project is approximately 46,438.00 sq. mtrs. and not 83,586.97 sq. mtrs.. It was submitted that advertisement was published and all the terms and conditions of the scheme were made known to the public at the relevant point of time. It was submitted that the allotees signed the allotment forms after reading and accepting all the terms and conditions of the scheme and therefore, the petitioner and its members are now estopped from submitting with respect to non-awareness of the terms and conditions of the forms and documents. It was further submitted that maintenance of only 27 flats out of total 1904 flats, are yet to be received from the respective allotees and the same shall be paid as soon as the allotees take possession of the flats and that, there is no violation of the provisions of the RERA Act. It was submitted that as per Clause
- D of Section 11 of the RERA Act, the promoters are responsible for providing and maintaining the essential services on reasonable charges till taking over of the maintenance of the project by the petitioner association of the Page 7 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined allottees. It was submitted that in the facts of the present case, the allottees have already taken over the possession and the association has already been formed. It is no longer responsibility of the respondent - Board to maintain the essential services. It was submitted that even otherwise, as stated earlier, it is open for the petitioner to approach the RERA Authority, if aggrieved by any action on part of the respondent - Board.
5.3 Mr. Meena, learned advocate, denied that the respondent
-Board is responsible to maintain the amenities such as lift, street light, securities which are enjoyed by only those persons who are staying in the society and it is they who have to maintain the common amenities of the society. As per condition Nos.13 and 14, once the association is formed, such common amenities are required to be maintained by the members who are using it. As far as bulk maintenance and one time maintenance is concerned, the same has already been transferred to the petitioner association as per the RERA Act, 2016. It was submitted that the contention with respect to recovery of Rs.30,78,450/- is concerned, the same is not recoverable from the respondent - Board towards the Page 8 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined maintenance amount. The penalty is being collected as per condition no.1 of the Circular dated 05.12.2019 whereby, the penalty is collected only from those members who have failed to execute the conveyance deed pursuant to the deposit of the entire amount of flat including maintenance. So far as the members, who have failed to pay the amount of the flat are concerned, the Board is recovering only 8% interest and no penalty is recovered. The said interest is being collected in light of the fact that the Board is deprived of money and the fact that the cost of the construction has already been paid in the year 2018.
5.4 In light of the aforesaid, the contention of the petitioner to recover the penalty amount is denied. It was reiterated that in absence of any violation of Section 11 of the RERA Act, 2016 or any other section, the respondent - Board is not liable to pay any maintenance charges. It was denied that the petitioner association was put to any kind of difficulty to meet the expenses for running and maintaining the society and its common amenities along with paying electricity bills, housekeeping bill, security bills and other day to day expenses. It was denied that the Board has not paid one time Page 9 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined maintenance to the society even after collecting the money from the beneficiaries. It was submitted that the Board has paid the maintenance amount to the association once it received from the allotee. In light of the aforesaid, it was submitted that the prayers as prayed for by the petitioner are such that they can be addressed before the RERA Authority however, the Board takes up its responsibility as much as it can. With respect to the issue of water connection, it was submitted that the Board has applied for supply of water for all the units and accordingly, the 6-inch connection has been given by the respondent No.5 - SMC for water supply. It is the respondent No.5 who is unable to provide required water quantity with appropriate pressure/force. It is submitted that the Board also agreed to the demand raised by the petitioner association to contribute 50% amount for new pipeline as requested.
5.5 In light of the aforesaid, it was further reiterated that the representation, which is pending before the Board, would be considered by the Board in accordance with law and the grievance raised by the petitioner would be redressed as much as possible. It was further submitted that pursuant to the Page 10 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined complaint received from the petitioner society, the respondent
- Board approached the Sardar Vallabhbhai Patel National Institute of Technology (SVNIT) and the report dated 21.06.2021 qua the same is also duly produced at Annexure - R12. Placing reliance on the said report, it was submitted that the overflow was due to reverse water flow from Surat Municipal Corporation's storm line during heavy rain as it runs full in the connected discharge pipe to the campus. The report suggests that remedies lie as such in installation of flood gates and storm drains near Tapi building and the main gate entrance and pumping water from the shopping basement. It was submitted that the petitioner association is asking for amenities after two years of handing over the entire society to the petitioner association. It was submitted that even otherwise, it is always open for the petitioner society to use common plots for such activities rather than asking the Board to provide shops meant for commercial use which has nothing to do with the society and are outside the periphery of the society.
5.6 Mr. Meena, learned advocate, submitted that if, the petitioner society is interested in acquiring one of the shops Page 11 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined owned by the respondent - Board, it is always open for the petitioner society to bid in the auction when the auctions of such commercial shop begins. In light of the aforesaid, it was submitted that if the allotees are unable to take possession within reasonable time, the respondent - Board shall take necessary action to cancel the allotment and initiate the process of fresh allotment in accordance with law.
6. Having heard the learned advocates appearing for the respective parties, this Court deems it fit to answer to the reliefs as sought for by the petitioner, which read thus:
6.1 The direction with respect to the deposition of the amount of Rs.30,78,450/- qua approximately 700 flats as per the Audit report together with the interest accrued thereon on late payment, the same is answered at page 128 whereby, it is stated that the penalty is collected as per the specific conditions outlined in the Circular dated 05.12.2019. The penalty is imposed only on those who have failed to execute the conveyance deed.
6.1.1 So far as the interest is concerned, the Board is recovering the interest at the rate of 8% only. The interest is Page 12 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined levied considering the cost of construction which was already put up in the year 2018. The funds from penalty and interest charges are integral part of the financial and operational management of the Board and the same cannot be said to be surplus or compensatory that can be re-directed to the petitioner or any other third party. The primary reason for imposing the penalty is to ensure compliance and is not intended compensatory funds for the other parties. 6.1.2 So far as the reimbursement of the expenses is concerned, the amount of general maintenance and amenities such as lift, street lights and securities are utilized by only the residents of the society. The one time maintenance charges collected by the respondent - Board has already been transferred to the petitioner association as per the conditions of the scheme and the provisions of the RERA Act. 6.2 So far as the direction with respect to the enhancing the capacity of water storage tanks is concerned, as submitted by Mr. Meena, learned advocate, that the same has been undertaken by the respondent - Board and is under process.
The respondent - Board has given storage capacity of 1604 KLD( Kilo Liters per Day) which is on higher side than what was Page 13 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined required for the actual constructed area. The grievance with respect to underground storage tank stands resolved. 6.3 The prayer with respect to refund of 50% of amount given by the society for additional connection of water,is concerned, considering the submissions advanced by Mr. Meena, learned advocate appearing for the respondent - Board, the Board has been co-operating and supporting the petitioner association and has agreed to contribute 50% of the amount for laying down of the new pipeline as requested by the petitioner association.
6.4 The prayer with respect to faulty construction as well as to take steps for tackling the rain water accumulation is concerned, this Court deems it fit to refer to the report submitted by the Sardar Vallabhbhai Patel National Institute of Technology (SVNIT). The said report states that the issue with respect to overflow during heavy rain fall was primarily due to reverse water flow from the respondent No.5 - Surat Municipal Corporation's storm line which overflows during such condition. As a remedy, the SVNIT suggested installation of flood gates and storm drains near specific location within the project to effectively redirect the water flow.
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NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined 6.4.1 Mr. Meena, learned advocate appearing for the respondent - Board, submitted that the action has been taken for installing the flood gates and storm drains as suggested by the Sardar Vallabhbhai Patel National Institute of Technology (SVNIT).
6.5 The directions as prayed for against the officers of the Board for not taking action against the allotees who have rented out the property in contravention of the covenants of the deed is concerned, the same can be redressed by the Board in accordance with law. As submitted by Mr. Meena, learned advocate appearing for the respondent - Board, notices have been issued to the allotees who have allegedly violated the recital of the lease deed by renting out their property. The said notices are duly produced from page 170 to
178. 6.6 With respect to the prayer wherein, necessary directions to the Board for providing an office for the association in the commercial shops adjacent to the society belonging to Board is sought for, if the petitioner were to approach the respondent - Board, the same be considered by the Board in accordance Page 15 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined with law. If there are any representations that are pending, the same be considered by the respondent - Board. Further, if the petitioner society is interested in acquiring the shops, it is always open for the petitioner society to bid in auctions of the said shops.
7. This Court has considered the submissions advanced by the learned advocates appearing for the respective parties. This Court has dealt with all the prayers as prayed for by the petitioner herein. The dispute-in-question is with respect to the Mega Scheme of flat type High Rise Buildings cum Commercial units, including all infrastructure services at Block Nos.40, 41, 43, 45, 48/p, 49, Jahangirabad, Surat under "Mukhya Mantri Gruh Yojana" in the year 2014 under the flagship program "Housing for All" admeasuring plot area approximately 83,586.97 sq. mtr.. The flats came to be allotted in the year 2018. The Association duly came to be formed in April, 2018. After two years of the construction having erected, the same is handed over to the association.
8. Having considered the issue-in-question, the respondent
- Board has undertaken and complied with the request made by the petitioner association in accordance with law. The Board Page 16 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined is also registered with the RERA Authority and for the defects in the amenities, it is open for the petitioner association to approach the RERA Authority; which is a statutory authority who can take care of the grievances raised by the petitioner. For the grievance of the petitioner with respect to the construction, if any, the same has to be taken up with the developer and also approach the consumer forum.
9. Section 31 of the Real Estate Regulatory Authority Act, 2016, provides for filing of complaints with the Authority or the Adjudicating Officer on any grievance that may occur for violation or contravention of any of the provisions the Act or the rules and regulations made thereunder, against any promoter, allottee or real estate agent, as the case may be.
10. Mr. Meena, learned advocate appearing for the respondent - Board, submitted that the respondent - Board is also amenable to the RERA regulations and the same is fortified having been registered with the RERA Authority.
11. In the opinion of this Court, considering the issue raised in the present petition is with respect to the basic amenities of the petitioner association, the representation dated Page 17 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024 NEUTRAL CITATION C/SCA/15132/2020 ORDER DATED: 01/04/2024 undefined 03.12.2018, which is duly produced at page 74, if not decided, be decided in accordance with law and in the interest of justice; as expeditiously as possible.
12. With the aforesaid, the present petition stands disposed of.
(VAIBHAVI D. NANAVATI,J) NEHA Page 18 of 18 Downloaded on : Fri Apr 19 21:04:06 IST 2024