State Consumer Disputes Redressal Commission
Mr.Vinayak Naik & Ors vs M/S.Chaitanya Enterprise & Anr on 29 June, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/12/72
1.Mr.Vinayak
Naik
2.Mr.Suresh
Anchan
3.Mr.H.Wadikar
4.Mr.Hitesh
Caheda
5.Mr.Subhashchandra
Par
6.Mrs.Meena
Rana
7.Mrs.Asha
Saxena
8.Mr.Mohan
Poojary
9.Mr.A.T.Bile
10.Mrs.Daxa
Patel
11.Mr.Naresh
Nissar
12.Mr.Ketan
Patel
13.Mr.Jatin
Tejani
14.
Mr.B.S.Agarwal
15.Mr.Hitesh
Patel
16.Mr.J.Charan
17.Mr.T.Pophle
18.Mr.Gopal
Lengre
19.Mr.H.Vesukar
20.Mr.S.D.Bane
All
R/o.Sheetal Co-op.Hsg.Society
B
Wing, Saptarshi Sankul
Overi
Pada, Dahisar(East)
Mumbai
400 068
...........Complainants
Versus
1.M/s.Chaitanya
Enterprise
C.A. to
M/s.Uday Builders
102,
Radha Vilas Apartments
Waman
Rao Bhoir Road
Kandarpada,
Dahisar(West)
Mumbai
400 068
2.
S.T.Employees Sheetal Co-op.Hsg.Society
B
Wing, Saptarshi Sankul
Overi
Pada, Dahisar(East)
Mumbai
400 068
...........Opponents
BEFORE:
Justice R.C.Chavan President
Dhanraj Khamatkar Member
PRESENT:
Ms.Rumana Bagdadi
Advocate for the complainants. Ms.Kausar Banatwala-Advocate for
opponent no.1
Mr.Prashant Kudvalkar and
Mr.Surve-A.R. for
opponent no.2.
ORDER
Per Honble Mr.Justice R.C.Chavan, President Twenty complainants have filed this complaint for a direction to opponent no.1 to get occupation certificate, to make complainants members of opponent no.2 society, to convey the property to opponent no.2, to direct opponent no.1 to pay a sum of Rs.2,83,209/- towards excess property tax and water tax, a sum of Rs.8,88,090/- towards amounts collected under the agreement, Rs.13 lakhs towards cost of repairs of the flats along with interest @ 21% and compensation of Rs.1 lakh to each of the 20 complainants. It was further claimed that opponent no.1 should be directed to pay one fourth excess property tax and half water tax from the date of filing of the complaint till occupation certificate is issued.
2. It is not in dispute that the complainants have purchased 20 flats from opponent no.1. These flats were constructed on a piece of land on which opponent no.2s building consisting of 20 flats already exists. The agreements entered into between opponent no.1, builder and the complainants provided that the complainants would be made members of opponent no.2 society on payment of necessary membership charges, etc. Since all this was not done, the complainants have filed this consumer complaint.
3. Opponent no.1 filed written version alleging that the complainants have carried out various unauthorized additions, alterations in the premises and, therefore, opponent no.1 could not be blamed. It was also stated that Completion Certificate had been issued and application for obtaining occupation certificate had been made way back in the year 2007-2008. It was stated that opponent no.1 had taken all the steps to ensure that the complainants are enrolled as members of opponent no.2 society. It was also suggested that opponent no.1 was ready to form separate society of the complainants and execute separate conveyance in favour of the two societies, which suggestion was not acceptable to the complainants. It was stated that on 17/07/2010 complainants had taken over charge of B wing and opponent no.1 has not collected maintenance charges beyond the first period of 12 months i.e. not for the period for which complainants have taken over maintenance of the building. Opponent no.1 denied that there were any structural defects or that any repairs were required to be carried out.
4. Opponent no.2 filed written version stating that opponent no.2 was a society of State Transport employees formed in the year 1981. Members came to occupy the flats in the year 1987. On the remaining land opponent no.1had built the new building, wherein complainants had been accommodated. Agreements with the complainants were entered into without taking opponent no.2 society in confidence. Opponent no.2 also wanted conveyance to be executed and they suggested that occupants of both the buildings should have separate societies and separate conveyance. They therefore prayed for disposal of complaint accordingly.
5. Pending hearing of the complaint, it appears that full occupation certificate was issued on 02/08/2014 by the Municipal Corporation.
6. We have gone through the written submissions of the parties.
7. The contentions raised give rise to the following points and our findings thereon are recorded serially for the reasons that follow:-
Sr.No. Points Finding 1 Do the complainants prove that the opponent no.1 is guilty of deficiency in service in not getting occupation certificate promptly and thereby making the complainants pay higher property tax and water tax?
Yes 2 Do the complainants prove that opponent no.1 is guilty of deficiency in service in not opening a separate account in contravention of section 5 of MOFA and in furnishing account of the amounts collected from the complainants?
Yes 3 Do the complainants prove that opponent no.1 is deficient in service in not ensuring that the complainants were admitted to opponent no.2 society?
No 4 Do the complainants prove that opponent no.1 was deficient in service in not executing the conveyance?
No 5 Do the complainants prove that they are entitled to recover Rs.13lakhs from opponent no.1 towards cost of repairs?
No 6 What order?
As per final order.
Reasons for findings :-
Point no.1:-
Since the occupation certificate is issued by the Municipal Corporation on 02/08/2014, obviously, the issue about occupation certificate is now over. But, even according to the opponent no.1 complainants had been inducted in the premises prior to 17/07/2010.
Thus, for the four years since 17/07/2010 till 02/08/2014 complainants must have been required to pay higher property tax as well as water tax since occupation certificate was not provided. Therefore, the claim of the complainants that they should be reimbursed the excess charges paid by them is justified. Details of water bills and property tax paid by the society have been annexed to the complaint as Exhibit B & C and are duly supported by affidavit of the complainants.
There is no reason to disbelieve these details furnished, though it would have been ideal for the complainants to produce the bills whereby these payments have been made. Hence, we hold the complainants are entitled to Rs.65,032.50 towards excess water charges being 50% water tax, and Rs.2,18,177.50 towards one fourth of the property tax paid by the complainants. Opponent no.1 would therefore have to pay a sum of Rs.2,83,209/- towards these items to the complainants and we hold opponent no.1 to be deficient accordingly. We answer point no.1 accordingly.
Point no.2 :-
Opponent no.2 has not shown that a separate account has been opened or the amounts collected from the complainants have been credited from such account. A sum of Rs.48,000/- appears to be collected from each of the members. As far as a sum of Rs.22,200/- towards first years maintenance is concerned, this may be justifiably retained by the opponent no.1 as also Rs.12,950/- towards development charges, as also Rs.2,500/-towards legal charges, which was not to be accounted. However, other charges namely Rs.350/- towards share money of the society, which is not yet formed, Rs.7,500/- about proportionate share of municipal and water tax, Rs.2,500/- towards society formation would have to be accounted for and refunded to the complainants. We therefore hold that opponent no.1 was deficient in service in this regard and hold opponent no.1 liable to pay Rs.2,07,000/- (Rs.10,350/- x 20 ) to the complainants.
Point no.3 :- Learned counsel for the complainants seeks to rely on the agreements entered into by opponent no.1 with the complainants. Part of clause (v) of the agreement reads as under:-
and get the purchasers of the flats admitted as member of The Sheetal Co-operative Society Ltd. on payment of membership charges, share money and other charges due to the said society.
Therefore, complainants want that opponent no.1 should ensure that they are admitted to the membership of opponent no.2 society. Now, if opponent no.1 agrees to do something without the consent of opponent no.2, complainants cannot insist on forcing themselves to be members of opponent no.2 society. In fact, opponent no.2 society already existed and it is on the balance of land of opponent no.1 societys building, the flats of complainants were constructed. As opponent no.2 society also has 20 members and complainants are 20 in number, dynamics of society would change, if these 20 complainants foist themselves on opponent no.2 society.
Therefore, irrespective of what opponent no.1 might have agreed, complainants cannot claim that they should be made members of opponent no.2 society. This term of the agreement itself was misconceived and incapable of performance without the consent of opponent no.2 society and, therefore, on this ground we hold against the complainants.
Point no.4 :- There can be no doubt conveyance is not yet executed but this is because of the problem which arose on account of insistence of complainants to become members of opponent no.2 society and conveyance of the entire property to such society. Opponent no.2 is agreeable to a division according to footprints on the buildings concerned on the land and conveyance of property separately to the two societies. There could be a notional demarcation as suggested by opponent no.1 to the complainants by letter dated 29/06/2012 with which map was annexed and the conveyance could be accordingly executed. We therefore hold that the opponent no.1 was not deficient in failing to execute conveyance, but he may now do so in accordance with letter dated 29/06/2012, since opponent no.2 society does not want to admit complainants to its membership and would rather want conveyance of separated pieces of land to the two societies, which is reasonable. This point is therefore answered accordingly.
Point no.5 :- Complainants have claimed a sum of Rs.13 lakhs as having been spent on repairs. What is filed on record is just estimated cost of repairs and not any vouchers of repairs actually carried out. Therefore, we hold complainants are not entitled to this amount.
Though the complainants have claimed compensation of Rs.1 lakh each, considering the facts and circumstances enumerated above, we would saddle compensation of Rs.1,00,000/- in all to be paid by opponent no.1 to all the complainants together and not Rs.1 lakh to each of them.
In the result following order is passed:-
ORDER
1. Complaint is partly allowed as against opponent no.1. Opponent no.1 shall pay to the complainants a sum of Rs.2,07,000/- within 4 weeks from the date of the order, failing which, amount shall carry interest @ 12% p.a. from the date of order.
2. Opponent no.1 shall also pay to all the complainants together a global compensation quantified at Rs.1 lakh.
3. Opponent no.1 shall convey property notionally sub-divided as per his letter dated 29/06/2012 within 45 days of this order.
4. Opponent no.1 shall pay to the complainants costs quantified at Rs.10,000/- and shall bear its own.
Pronounced on 29th June, 2015.
[JUSTICE R.C.Chavan] PRESIDENT [Dhanraj Khamatkar] Member Ms.