State Consumer Disputes Redressal Commission
Tilak Nagar Royal Co.Operative Housing ... vs . M/S.Vinayak Constructions & Ors. on 11 April, 2014
C-123-2008
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
MAHARASHTRA, MUMBAI
Complaint
Case No. CC/08/123
TILAK NAGAR ROYAL CO.OPERATIVE HOUSING SOCIETY LTD.,
Building No.74, Riddhi Siddhi Apartments,
Tilak Nagar, Chembur 400 089.
...........Complainant(s)
Versus
1. M/s.VINAYAK CONSTRUCTIONS,
15 & 16, Jai Laxmi, 4th Floor,
M.G. Road, Ghatkopar (W),
Mumbai 400 086.
2.MR.KISHORE MEHTA,
PARTNER VINAYAK CONSTRUCTIONS,
Traffic Light Building, 4th Floor,
M.G. Road, Ghatkopar (W),
Mumbai 400 086.
3.MR. JAYESH MEHTA,
PARTNER VINAYAK CONSTRUCTIONS,
Traffic Light Building, 4th Floor,
M.G. Road, Ghatkopar (W),
Mumbai 400 086.
4.MR.RAJESH MEHTA,
PARTNER VINAYAK CONSTRUCTIONS,
Traffic Light Building, 4th Floor,
M.G. Road, Ghatkopar (W),
Mumbai 400 086.
............Opp.Party(s)
BEFORE:
HON'BLE MR. P.B. Joshi, PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER
PRESENT:
Advocate Uday Wavikar for the Complainant.
Advocate D.K. Mishra for the Opponents.
ORDER
Per Honble Mr.P.B. Joshi Judicial Member:
1. Complainant is a co-operative housing Society having registration No.MUM/MHADB/W-HSG(TC)/10434/1999-2000, situated at Tilak Nagar, Chembur, Mumbai 400 089.
The Society consists of total 91 members including 36 old members and 65 new members and also 10 shops on the ground floor. The Society has four wings, A, B, C Aand D of which A and D wing has 28 flats each (total 56 flats) while B Wing has 14 flats and C Wing has 21 flats. The Opponent No.1 is a partnership firm in the business of builders and developers. The Opponents Nos.2, 3 and 4 are the partners of the said firm. On 10.05.2002 a Development Agreement was entered into between the Complainant and the Opponents. Rectification Deed was executed on 26.06.2002. Deed of Confirmation was executed on 07.08.2003. After reconstruction, the possession was given to different flat holders in the year 2005-2006 but legal possession was not given. No occupancy certificate was obtained and no completion certificate was obtained.
There were defects in construction of flats i.e. plaster, leakage, seepage of water during monsoon. As per Complainant, in absence of occupation certificate the Complainant was to pay extra water charges at double rate.
Complainant paid `1,27,040/-
as excess water charges. As per Complainant, property tax was also paid at a double rate and the amount of `10,43,973/- was paid extra on account of tax because of non-obtaining occupancy certificate by the Opponents. As per Complainant, an amount of `8,500/- was collected by Opponents from each new member for membership of Maharashtra Housing and Area Development Authority (hereinafter referred to as MHADA in short for the sake of brevity) but said amount was not paid to MHADA. Total amount of `5,52,500/- (`8,500/- x 65 members) was collected by the Opponent from new members but was not given to MHADA for membership of new members.
2. The Complainant issued legal notice to Opponent but there was no reply.
Complainant appointed structural consultant and as per report of said Consultant an amount of `18,62,865/-
is required for repairs.
3. As per Complainant, Opponent is in possession of two flats and one shop but maintenance charges for those flats and shop were not given by Opponent and Complainant is entitled for said amount.
4. As per Complainant, less carpet area than agreed was given to new flat purchasers.
A report was filed on record showing cost of `33,65,723/- in respect of less carpet area.
5. Complainant filed a complaint with prayer that the Opponent be declared as guilty of deficiency in service and unfair trade practice and gross negligence as per the provisions of Consumer protection Act, 1986. Complainant prayed that the Opponents be directed to pay to the Complainant an amount of `18,62,865/- being the estimated cost of repairs to be carried out for the building as on the date of complaint.
6. Complainant prayed that the Opponent be directed to pay to the Complainant an amount of `1,27,040/- being excess water charges paid by the Complainant as on the date of filing of the complaint due to deficiency on the part of the Opponents.
7. Complainant prayed that the Opponents be directed to pay to the Complainant an amount of `10,43,973/- being excess property taxes paid by the Complainant on the date of filing of the complaint due to deficiency of Opponents.
8. The Complainant prayed that Opponents be directed to pay to the Complainant an amount of `12,00,000/- being `3,00,000/- per lift for four lifts as per redevelopment agreement.
9. The Complainant prayed that Opponents be directed to provide to the Complainant total detailed account with supporting vouchers and bills for expenses incurred by Opponents during the construction period. Complainant prayed that Opponents be directed to handover to the Complainant and to its individual member proper and legal possession after getting approvals and permissions from the various authorities.
10. Complainant prayed that the Opponents be directed to get occupation certificate from concerned authorities after settling all the outstanding amounts including `36,85,340/- due to MHADA within a period of two months from the date of complaint, failing which the penalty of `5,000/- per day to be paid to the Complainant till default continues.
11. Complainant prayed that Opponents be directed to refund an amount of `5,52,500/- obtained from new members towards MHADA membership and not paid to MHADA.
12. Complainant prayed that Opponents be directed to pay to the Complainant `31,290/- being the outstanding maintenance charges for the flat members C-103, C-603 and shop no.1, being the flats and shops occupied by the Opponents.
13. The Complainant prayed that Opponent be directed to pay to the Complainant on behalf of the new flat purchasers an amount of `33,65,723/-
being compensation for less carpet area given to all 65 new flat purchasers.
14. The Opponents resisted the claim by filing written version, which is at page 172 of complaint compilation. Opponents have not disputed about the development agreement and agreements with the Complainants about the total flat purchasers including old occupants.
However, they denied that there was any deficiency on the part of the Opponents. It was contended by Opponents that the building is in good condition and hence, there is no question of payment of any amount on account of estimate for repairing the building. It was contended that possession of the flats was given to flat purchasers for limited purpose. However, the flat purchasers continued with the possession without waiting for occupation certificate and hence, Opponents are not liable to pay excess water charges and property taxes. It was contended that amount of `18,00,000/- was given to 36 old members (`50,000/- x 36 members) on account of lift maintenance charges and the said amount is more than `12,00,000/-as claimed by Complainant. Opponents prayed for dismissal of the complaint.
15. Considering the rival contentions of the parties and from the record it is clear that the parties entered into Development Agreement, then Rectification Deed and Confirmation Deed.
Possession of the flats was given in possession of respective members of the Society in the year 2005-06.
However, occupation certificate and completion certificate were not obtained by the Opponents. It is also not disputed that amount of `5,52,500/-
was collected by the Opponents from new 65 members, i.e. `8,500/- from each member for MHADA membership.
16. It is disputed by the Opponents that there is necessity of repairs to the building.
The Complainant claimed an amount of `18,62,865/- as estimated cost of repairs to be carried out. A report of one surveyor appointed by Complainant about the condition of the building is on record at page no.88 of the complaint compilation. After perusing the said report, we find that overall condition of the down take drainage lines is bad, water supply lines are in good condition, drainage lines are in good condition, water proofing work is good. There is no leakage. However, somewhere few cracks in protective topping on parapet wall. Brickwork is in good condition. It is material to note that the said surveyor was appointed by the Complainant. The conclusions of the said surveyor as mentioned in said report are to the effect that overall condition of building is satisfactory, however, few cracks are observed on external plaster of the building. The Society is advised to take up minor repairs of the building for regular maintenance as soon as possible. In view of the said report of the surveyor appointed by the Complainant, we find that the claim of the Complainant of `18,62,865/-
on account of estimated cost of repairs of the building cannot be accepted.
17. The Complainant claimed an amount of `1,27,040/- on account of excess water charges paid by Complainant and an amount of `10,43,973/- as excess property taxes paid by Complainant due to deficiency on the part of the Opponents in not obtaining occupation certificate. Complainant is claiming said amounts. The contention of the Opponents is that possession was given to the flat purchasers for limited purpose, however, they continued in possession without waiting for occupation certificate and hence, Opponents are not liable to pay the said amount. We find that it is the statutory duty of the Opponents (builder and developer) to obtain occupation certificate. It is material to note that possession was given in the year 2005-2006 and the complaint was filed in the year 2008. Even till that time no occupation certificate was obtained and hence, the Opponents cannot be relieved of the liability of paying the amount which the Complainant was forced to pay as excess water charges, excess property tax because of deficiency on the part of the opponents in not obtaining occupancy certificate even till filing of the complaint in the year 2008 and even thereafter and hence, the Complainant is entitled for the said amounts which were paid on account of excess water charges and excess property taxes.
18. The Complainant claimed `5,52,500/- collected by the Opponents from 65 new members for MHADA membership, however, not paid to MHADA. The Opponents have not filed on record any document to show that said amount was paid to MHADA and hence, the Complainant is entitled to this amount.
19. The Complainant claimed an amount of `33,65,723/- on account of less carpet area to new 65 flat purchasers. To support the said contention a report of expert was filed on record giving the details about the area as per agreement and about the actual area. The report is at page Nos.258 to 263 and calculation of the compensation for the said less area. There is no counter to it from the side of Opponents. Thus, the said contention of the Complainant is accepted about less area to new 65 flat purchasers. Hence, the Complainant is entitled for the said amount of `33,65,723/-
on the said count.
20. The Complainant claimed an amount of `5,52,000/- as collected from new members on account of membership of MHADA. However, the Opponents did not pay the said amount to MHADA. Hence, Complainant claimed that amount back. Opponents contended that the amount was paid to MHADA and hence, the Opponent is not liable to pay the said amount of `5,52,000/-
to the Complainant. The Opponent has referred to a letter addressed by partner of the Opponent and Architect addressed to Chief Accounts Officer of MHADA.
Said document is about payment of `86,12,006/- by Architect/Partner to MHADA. Ld.Advocate for the Complainant has contended that the said amount is not in respect of membership of MHADA to those new flat purchasers but it is in respect of use of balance B.U.A., the additional tit-bit land, layout R.G. etc. After going through said document at page no.297 it is clear that the said amount was for proposed reconstruction of existing building no.74 of Tilankangar MHADA Colony, Chembur on land bearing CTS No.508(pt) of Village Ghatkopar Kirol, Mumbai - 89. Thus, it is clear that the said contention of the Opponent about the amount collected from new flat purchasers total amounting to `5,52,000/-
for membership of MHADA was not paid to MHADA by Opponent. But, the Opponent is trying to show the said payment by referring to letter dated 04.10.2004, which is at page 297 of complaint compilation. Thus, it is clear that the Complainant is entitled for refund of said amount of `5,52,000/-. It was collected by Opponent from new flat purchasers.
21. The Complainant claimed an amount of `12,00,000/- on account of maintenance of four lifts `3,00,000/- for each lift. The Opponent has contended that an amount of `50,000/- was given to each of 36 original members, total `18,00,000/-
for maintenance charges of four lifts and hence, the Complainant is not entitled for `12,00,000/-
on account of maintenance charges of four lifts. Considering the submissions made and the evidence available on record, it is clear that amount collected on account of maintenance of four lifts was already paid to original 36 members. Hence, the Complainant is not entitled to this amount of `12,00,000/-.
22. The Complainant has contended that two flats and one shop are with the Opponent.
However, they have not paid the maintenance charges for those flats and shop and claimed an amount of `31,290/- on that count. The Advocate for the Opponent has argued that this Commission has no jurisdiction to pass any order in respect of maintenance charges of unsold flats or shop. We find that the said argument cannot be accepted for the reason that the Opponents have taken the old building for reconstruction and gave flats to old members in new building and sold remaining flats to new purchasers except two flats and one shop. If the Opponents would have sold those flats and shop to anybody then they would have paid the maintenance charges of those flats and shop to Society. As those flats were not sold by Opponent, it is for the Opponent to pay the maintenance charges of those flats and shop. It is in continuation of the transaction between the Complainant and the Opponents.
Thus, the Complainant is entitled for the amount of `31,290/- on account of maintenance charges of two flats and one shop.
23. The Complainant has contended that Opponents should give a legal and proper possession to the Complainant and its members. It is submitted that the possession is with the members of the Complainant. However, no occupation or completion certificate was given by the Opponent to the Complainant or its members. It is the statutory duty of the Opponent to obtain the completion certificate and occupation certificate from the concerned authority by doing all the necessary things and by paying all its dues to concerned authorities, if any and should handover the occupation certificate and completion certificate and other relevant documents to the Complainant or its members and hence, the Complainant is entitled for the relief of legal and proper possession of the flats. In view of the above discussion the complaint deserves to be allowed. Hence, we pass the following order:
ORDER
(i) The complaint is partly allowed to the effect that the Opponents are guilty of deficiency in service and unfair trade practice.
(ii) The Complainant is entitled for an amount of `1,27,040/- from the Opponents on account of excess water charges paid by the Complainant.
(iii) The Complainant is entitled for `10,43,973/- from the Opponent as excess property taxes paid by the Complainant.
(iv) The Opponents should handover the proper and legal possession of the respective flats together with necessary documents such as completion certificate and occupation certificate within a period of four months from the date of this order. In default, the Opponents are liable to pay `2,000/- per day as penalty to the Complainant.
(v) The Opponents are directed to refund an amount of `5,52,500/- to the Complainant as amount collected from new 65 flat purchasers towards the membership of MHADA.
(vi) The Opponents are directed to pay an amount of `31,290/- as outstanding maintenance charges for the Flat Nos.C-103 and C-603 and one Shop to the Complainant.
(vii) Opponents are directed to pay to the Complainant `33,65,723/- being compensation for less carpet area given to new 65 flat purchasers.
(viii) The Complainant is entitled for `50,000/- as the costs of the proceedings.
(ix) Rest of the prayers stand rejected.
Pronounced on 11th April, 2014.
[Honble Mr. P.B.Joshi] PRESIDING MEMBER [Honble Mr.Narendra Kawde] MEMBER ep