State Consumer Disputes Redressal Commission
Ms Rukshana Millwalla vs M/S Shri Developers on 19 July, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/14/280
Ms.Rukshana Millwalla
R/o.3, Zaveri Building, 21
R.B.Chandorkar Marg
Agripada, Mumbai 400 011 .....Complainant
Versus
1.M/s.Shri Developers
Having office at 204, Omkar Prathana
Sahar Road, Andheri East
Mumbai 400 069
2. Mrs.Kalpana Rajesh Deshpande
3. Mr.Rajesh Madhukar Deshpande
Partners of the Developer
Both having their office at 204
Omkar Prathana, Sahar Road,
Andheri East .........Opponents
Mumbai 400 069
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
P.B.Joshi, Judicial Member
PRESENT:Mr.Rahul Singh-Advocate for complainant
None present for opponent
ORDER
Per Hon'ble Mr.P.B.Joshi, Judicial Member .
1. Complainant purchased the plot no.75 admeasuring 483.75 sq.meters out of land bearing Survey No.17, Hissa no.2, Survey no.18, Hissa no.1, Survey no.19, Hissa no.2, Survey no.19, Hissa no.3 situated at Village Bhinar, Taluka Vasai, District Thane (hereinafter referred as the 'plot') for consideration of Rs.9,50,000/- from the opponents. The consideration was paid and conveyance was executed by the opponents in favour of the complainant on 08/07/2011. It is the contention of the complainant that as per the said conveyance, it was necessary for the opponents to level the said plot, mark and fence the plot and provide the amenities, such as, water 1 connection, electricity connection and approach road to the said plot. As per complainant, opponents have not done those things and, thus, there is deficiency on the part of opponents in handing over possession of the plot along with necessary amenities and, hence, consumer complaint is filed by the complainant against the opponents with prayer that opponents be directed to put the complainant in vacant and peaceful possession of the said flat duly leveled, marked and fenced. It was further prayed that opponents be directed to hand over 7/12 extract of the said plot in the name of complainant. Opponents be directed to carry out necessary infrastructure. Complainant prayed that opponents be directed to pay interest on sum of Rs.9,50,000/- @ 18% p.a. from the date of payment amounting to Rs.5,50,000/-. Complainant also prayed that opponents be directed to pay Rs.15 lakhs as compensation on account of mental harassment suffered by the complainant because of the delay in handing over possession of the plot. Complainant claimed Rs.2 lakhs as legal charges.
2. Opponents resisted the complaint by filing written version. Opponents have not disputed about execution of conveyance in favour of the complainant, about payment, however, contended that there is no deficiency in service on the part of opponents. It was contended that possession is already handed over on 08/07/2011. It was also contended that all the amenities, such as, Tar roads, Street lights, water supply and overhead tank are already complied with. It was contended that as far as 3 feet compound wall of the said plot is concerned, that is to be constructed after completion of the construction of the bungalow on the said plot by the opponents, as it will facilitate entry of JCB, Lorries, etc. on the plot during the construction activity. The opponents contended that common garden is developed and Administrative and Security Unit is already in existence. Leveling of each sub divided plot is already done. The opponents have also sought approval for the layout from the Revenue authorities and also filed an application for issuing separate 7/12 extract and that is pending before the Revenue 2 Authorities. As stay order has been passed by the Civil Court, opponents have contended that there is no question of paying interest as claimed. Possession is already handed over. It was also contended that there was no question of paying compensation as claimed. There is no deficiency in service on the part of opponents. Opponents also denied liability of Rupees Two lakhs on account of legal expenses. The opponents have prayed for dismissal of complaint.
3. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
Whether there is deficiency in service on
1. the part of opponents as contended by Yes
complainant?
Whether complainant is entitled for
2. direction to the opponents as claimed Yes, as per final order for?
3. Whether complainant is entitled for No interest on the amount as claimed?
Whether complainant is entitled for Rs.15 lakhs as compensation towards
4. mental agony suffered by complainant No and costs of Rs.2 lakhs as legal expenses?
5. Complaint is partly What order?
allowed.
REASONS :-
As to point no.1 -Deficiency :-
4. Advocate for the complainant submitted that possession is not handed over of the said plot. However, the opponents have specifically mentioned in the written version that as per para 4 of Conveyance Deed dated 08/07/2011, possession is already handed over to the complainant.
Conveyance Deed is on record at page nos.23 to 34. Para 4 of the 3 Conveyance Deed specifically mentions about handing over of possession of plot. That is a registered document and, hence, contention of the opponents that possession is already handed over is to be accepted. Even in written notes of arguments, it is mentioned in para 24 that juridical possession has been given under the conveyance and physical possession of the plot duly leveled, marked and fenced has not been handed over till date. As it is possession of open plot, recital of the document is itself sufficient to accept the contention that the possession is already handed over. Hence, we find that there is no deficiency as far as handing over possession of the plot is concerned.
5. The possession as per Conveyance Deed is given but it is necessary to level the said plot. As per complainant the said plot is not leveled. As it is in hilly area, leveling is must. Opponents have contended that leveling is already done. Documents are filed on record about the process of leveling of the said area. Copy of the application given by opponents to Sub- Divisional officer, Bhiwandi division, Thane on 22/05/2009 seeking permission for leveling the said area is on record. Then copy of order of Sub Divisional officer dated 08/10/2009 giving permission to the opponents for leveling the area is on record. In the said order it is mentioned that opponent -Smt.Kalpana Rajesh Deshpande had deposited an amount of Rs.50,000/- and Rs.25/- in Government Treasury at Bhiwandi vide challan. Copy of challan is on record. These documents show that the opponents have taken all the necessary steps for leveling the said area including the plot purchased by the complainant.
6. The complainant has claimed that the compound wall of 3 feet around the plot is not constructed. The opponents have admitted that it is not constructed and contended that it is to be constructed after construction of the bungalow is completed by the complainant as that will facilitate for approaching the trucks and other machinery to the plot for construction. However, we find that it is for the complainant to construct the bungalow on 4 the plot and as he has not constructed and asking for the compound wall, opponents should construct the said compound wall. Complainant claimed for common garden. Opponents contended that no common garden is in existence and administrative and securities are also not in existence. However some photographs are filed on record showing gardens. However, in absence of the documents to show that the said garden is common garden as contended by opponents, we have to direct the opponents to give common garden and administration/security unit.
7. It is contention of the complainant that internal roads, street lights, water supply to the each plots and common garden, administration and security unit are to be set up and opponents contended that all these things are done by the opponents. The complainant is contending that opponents have not done those things and opponents submit that they have done all these things. Parties have filed affidavits in support of their contention. It is material to note that some photographs are filed by the complainant showing that those things are not done by the opponents, whereas opponents have filed photographs showing the roads and other facilities and other construction in the said area. However, from those photos it cannot be ascertained whether those are in the area where the plot of the complainant is situated and we are mainly concerned with the plot of the complainant and approach road and electricity and water connection. Opponents have filed on record certificate issued by the Grampanchayat Adne-Bhinar about permission for proposed construction. That also supports the contention of the opponents that they have taken steps for supplying other infrastructure in the said area. However, the fact remains that there is no document on record to show that there is approach road upto the plot purchased by the complainant, that water connection is upto the plot purchased by the complainant and the electricity line is upto the plot purchased by the complainant. From the documents submitted by the opponents as discussed above, we find that opponents have filed on record the documents, which 5 support the contention of the opponents about the efforts taken by the opponents for infrastructure in the said area. However, we find that unless there is specific document on record showing all those amenities are provided as far as plot purchased by the complainant is concerned, we have to say that those amenities are yet to be supplied or complied with and, hence, we find that there is no deficiency in service on the part of the opponents as far as possession is concerned, however, there is deficiency in service as far as other amenities are concerned. Hence, we answer point no.1 accordingly.
As to point no.2:-Direction regarding amenities
8. Complainant has claimed that opponents be directed to hand over possession of the plot. However, as discussed above in point no.1 and we have concluded that the possession is already handed over and hence there cannot be direction for handing over possession of the plot. As far as other directions sought by the complainant, we find that though there are some documents supporting contention of the opponents that opponents have taken steps for supplying the infrastructure and amenities, as there is no specific document to show that those amenities are supplied, we find that it is necessary to direct the opponents to level the plot purchased by the complainant, to construct the approach road upto the said plot, provide water connection to the said plot and provide electricity connection upto the said plot. Hence we answer point no.2 accordingly. As to point nos.3 & 4 :- Interest, Compensation & Costs
9. Complainant claimed Rs.15 lakhs for the mental agony suffered by the complainant and Rs.2 lakhs as legal expenses. We find that the conveyance is already executed. Possession is already handed over. As the opponents have filed some documents on record as discussed above, which show the steps towards supply of amenities, however, as there is no specific evidence about actually supplying this, we have directed to supply all those amenities. However, in view of circumstances of the case, we find that it is 6 not the case where a claim of compensation and costs can be granted. Hence, we find that complainant is not entitled for any amount as claimed. Hence, we answer these points in negative.
ORDER
1. Consumer complaint no.CC/14/280 is partly allowed.
2. Opponents are directed to level the plot purchased by the complainant, construct compound wall around it as mentioned in the Conveyance Deed, construct approach road upto the said plot, supply electricity connection and water connection upto the said plot.
3. Opponents are directed to give common garden and administrative/ security unit.
4. Opponents are directed to comply the above order within a period of 90 days from the date of this order.
5. In the circumstances of the case, no order as to costs.
6. Copies of the order be furnished to the parties.
Pronounced on 19th July, 2018.
[Usha S.Thakare] Presiding Judicial Member [P.B.Joshi] Judicial Member Ms 7