State Consumer Disputes Redressal Commission
Pankaj Prakash vs S.G. Estates Ltd on 23 February, 2024
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/111/2017 ( Date of Filing : 20 Mar 2017 ) 1. Pankaj Prakash Lucknow ...........Complainant(s) Versus 1. S.G. Estates Ltd New Delhi ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 23 Feb 2024 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.111 of 2017 Mr. Pankaj Prakash, aged about 51 years, S/o Sri Gyan Prakash, R/o C-79, Sector M, Aliganj, Lucknow. ...Complainant. Versus S.G. Estates Ltd. having its registered office at 105-106, Deep Shikha Tower, Rajendra Place, New Delhi-110008 through its Authorized Signatory. ...Opp. party. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Prasoon Kumar Rai , Advocate for complainant. Sri R.K. Gupta, Advocate for opposite party. Date: 14.03.2024 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainant against the opposite parties under Section 17 of The Consumer Protection Act 1986.
The brief facts of the complaint case are that, that on 26.02.2012 the complainant booked a three bedroom flat no.510 in Indigo Tower Property in S.G. impressions-58, Raj Nagar Extension, Ghaziabad. Total super area of the three bedroom flat was 1225 square ft. The total cost of the flat was ₹2,994,823/- inclusive of service tax, club membership charges and other charges as mentioned in the allotment letter. On 14 April 2012, the opposite party handed over allotment letter to the complainant for the allotment of the flat and on the same date, an agreement was signed between the complainant and the opposite party for the purchase of the aforesaid flat from the opposite party. As per agreement the complainant has to pay 10% of the total cost of the flat at the time of booking and remaining 85% of the total cost was to be paid within 30 days of the booking and remaining 5% was to be paid at the time of possession of the said flat. As per the said booklet of the opposite party they have promised to provide a swimming pool and a clubhouse with billiards, card room to the residents of Indigo Tower.
As per the agreement, the opposite party was to handover the possession of the aforesaid flat by 30.06.2013. By inserting one provision in the agreement, the opposite party took a grace period of six months for delayed possession on account of various reasons. Under the provision, the possession of the flat was to be given to the complainant by the opposite party by December 2013. The opposite party also made the provision in the agreement that if the possession is delayed, the opposite party will pay penalty of ₹ 5 per square ft per month on the super area of the flat for the delayed period up to the date of actual possession of the flat. In April 2014, the opposite party issued letter to the complainant to deposit the balance amount so that flat could be finally given finishing touch and made available for possession to the complainant. In the same letter the opposite party also mentioned that they will pay penalty for the period from 01.01.2014 to 31.03.2014 which comes to ₹ 18,325/-.
On receiving this letter in April 2014, the complainant requested the opposite party that penalty amount to be paid by opposite party builder for delayed possession is much/than the actual amount of penalty and the penalty should be counted from first July, 2013 till the date of actual possession. Moreover the penalty amount should be adjusted in the balance of 5% amount left with the complainant and only difference of amount should be asked to be paid by the complainant. All this was written through email to the opposite party which was also replied through email by the opposite party and the opposite party did not agree with the request of the complainant and constantly insisted to pay the 5% balance first to them and penalty amount for delayed possession would be paid separately by the opposite party. In April 2014 the complainant paid the balance of 5% amount to the opposite party and wrote an email again to them pointing out that the amount of ₹ 18,375/- which was to be paid to the complainant as a penalty due to delayed possession of the flat is much less than the amount that the complainant is likely to receive up to the date of actual possession which was not properly replied instead denied by the opposite party.
The opposite party without giving possession the complainant to deposit the maintenance charges of ₹ 111,413/- in April itself while demanding the balance 5% of the value of the flat even without giving finishing touch to the flat which was opposed by the complainant that this amount is payable at the time of giving possession which was not accepted by the opposite party. The complainant was finally asked by the opposite party to reach Ghaziabad on 25th September 2014 for the registry of the flat. When the complainant reached the office of the opposite party on 25.09.2014 he was asked to sign a letter which was prepared by the opposite party in advance on behalf of the complainant with malafide intention wherein it was mentioned that complainant was fully satisfied with penalty amount with the delayed possession. From first January 2014 to 31st March 2 014 for ₹ 18,325/-. The complainant refused to sign the letter prepared by the opposite party and asked them for the modification of the same but executives of opposite party pressurised the complainant to sign the letter unconditionally otherwise they would not get the flat registered in the name of the complainant. The complainant was not allowed even to sign the letter under protest.
The complainant without signing the above said letter prepared by the opposite party, left their office on 25.09.2014 because the opposite party was in the dominant position against the complainant. On the very next day i.e. 26.09.2014 the complainant wrote an email to Competition Commission of India, a government body to register the complaint against the exploitative and oppressive attitude of builder M/s SG Estates Ltd for misuse of dominant position after receiving full payment of the flat. After taking the legal advice and talking to his family members, the complainant decided to sign the letter prepared by the opposite party on 26.09.2014 in order to get the flat registered in his name first and then take legal action against the opposite party. After that, registry formalities were completed by the opposite party in registrar office on 26.09.2014 and possession given to the complainant. The complainant had to pay additional ₹ 12,500/- towards the stamp duty because of the revision of the value of the stamp duty registry of the flat with effect from 01.08.2014. If the possession the said flat would have been given on time, this additional amount of ₹ 12,500/- of the complainant would have been saved.
As the time of agreement, opposite party promised to provide a clubhouse for the residents of Indigo Tower and one swimming pool which has not been provided till date. Later on the opposite party illegally constructed and other Tower with the premises of the property (in addition to 3 towers mentioned in the agreement) without any proper approval from government authority and consent of the residents of the flat owners of three towers. It is also not approved by the Ghaziabad Development Authority. All the flat owners opposed the action of the opposite party. At the time of possession, the complainant found that opposite party failed to fulfil their promise made to the complainant and other flat owners of the Indigo Tower by not providing the swimming pool and clubhouse in the tower. Though the flat owners of the two Towers were also promised a clubhouse in the respective towers but flat owners of the all the three towers were adjusted and given membership in the clubhouse already existing for the first tower constructed and possession given in 2009. The opposite party cheated flat owners of all the three towers and collected ₹35,000/- from the flat owner of all the three towers. The opposite party charged rupees two lakh plus service tax of ₹6180/- for covered parking from the complainant. As per rules of the Hon'ble Supreme Court in one matter, the Hon'ble Court has clearly directed that separate parking charges cannot be charged from the procedures of the flats as providing parking is the integral part of the flat and for that builder cannot charge any additional amount. The service tax charged on car parking space sold is also illegally charged in violation of the Hon'ble court's order. On 20.03.2015 complainant sent a legal notice to the opposite party through his counsel for the fraud and cheating committed by them with the complainant. The complainant requested the opposite party to compensate the complainant by paying compensation of rupees four lacs approximately which was denied by the party by their letter dated 22.04.2015. The opposite party has charged service tax of ₹120,535/- on the value of the flat which was under construction. As per the latest ruling of the Hon'ble Delhi High Court, service tax cannot be charged by the Union of India from the procedures. Therefore, the amount of service tax charged to be refunded to the complainant along with the interest decided by the Hon'ble court.
The complainant prays for the following reliefs:
the opposite party be directed to refund the amount of service tax of ₹120, 535/- to the complainant with interest.
The opposite party be directed to pay ₹83,000/- to the complainant on account of penalty for delayed possession of the flat from 01.07.2013 to 26.09.2014 and ₹ 2 lakhs and ₹ 6180/- service tax on parking charges and ₹ 12,500/- for excess of the stamp duty paid with interest at a rate of 18% per annum.
The opposite party be directed to pay compensation of ₹ 5 lakhs with interest at a rate of 18% from the date of taking possession till the actual delivery of swimming pool and separate clubhouse to the complainant.
The opposite party be directed to construct a swimming pool for the residents of the Indigo Tower immediately as they have promised in the agreement as the complainant should be compensated by the opposite party by paying a sum of ₹ 10 lakhs.
The opposite party be directed to construct a clubhouse for the residents of the tower Indigo immediately as they have promised in the agreement as the complainant should be compensated by the opposite party to tune of ₹ 10 lakhs.
Any other relief and the court made in fit and proper.
The opposite party has filed his written statement stating that the complainant through application form dated 26.02.2012 agreed to purchase a three BHK flat no.510 in Indigo Tower in the opposite party's project known as SG Impression 58 comprising of three towers on all that piece and parcel of freehold land in Raj Nagar Extension, Ghaziabad and opted to pay the basic price and other charges as per payment plan B. The buyer agreement was executed between the parties on 14.04.2012. The respondent issued the offer of possession letter on 01.04.2014 and payment demanded on possession to be paid by 30.04.2014. The complainant paid the demanded amount with delay of 117 days. The complainant sent an email on 29.05 .2014 regarding the clarification on club membership charges, labour cess, legal charges, service tax on others, service tax on car parking et cetera. The respondent sent a detailed reply to the complainant, "reference your email dated 29 May 2014, we advice as under:-the club in the project is already operational and it is common for all the three towers. No separate club for the tower has been envisaged at any point of time. About cess, it is a government levy which has already been deposited with the government accordingly it is being levied. Legal charges: legal charges is the professional fee which will be paid to the advocate for rendering help in preparation and execution of sale deed and other papers/documents and are charged uniformly. Service tax: service tax on the car parking is applicable. The same has already been deposited by the company with the concerned department. Regarding delay in handing over possession of the flat is concerned; penalty at a rate of ₹ 5 per square fit is payable to the offer of possession was made which shall be payable to you as per terms of booking and not as demanded by you. The builder buyer agreement was mutually accepted by both the parties. The question of any arbitrary decision does not arise/we may reiterate that our company has one of the best record of offering possession on time. You are therefore advised to complete the process of taking over possession of the flat at the earliest. For service tax and labour/information it can be taken from labour cess; Labor Department, service tax: Central Board of Excise and Customs.
On 25.09.2014 after physical verification the flat, car parking space and signing the inspection report and also confirming and satisfying following:
accepting penalty payment of ₹18,325/- for delay in possession of flat.
Regarding club and; operation and equipment's fitted.
Letter dated 25.09.2014 regarding having paid full and final payment to their satisfaction also satisfied regarding payments made to service tax department and labour cess and and club swimming pool.
Also confirming in possession letter dated 25.09.2014 inter alia that "after his/her/physical inspection of allotted apartment with the facilities in the complex on 25.09.2014 with the entire satisfaction and confirmation about the quality of construction, specifications, final settlement of cost/dues, super/built up area, design as per terms and conditions of buyer's agreement. On completion of satisfaction performance by the company, the buyer's agreement dated 14.04.2012 hereby concluded and in future none of the parties to the aforesaid agreement will raise any claim of any nature against each and companies liability extinguishes. Now onwards, terms and conditions of sale date shall only be binding upon the allottee/vendee.
The same fact has also been confirmed in sale deed executed and registered on 26.09.2014 before Sub- Registrar Ghaziabad in para-(2) of sale deed reading as under:-that the said apartment hereby sold conveyed and assured this deed is free from all sorts of encumbrances on charges (except those created at request of the vendee to obtain housing loan for purchase of the said apartment) transfers, easements, lines attachments of any nature whatsoever and the vendor has an unencumbered, good, subsisting and transferable rights in the same. The vacant and peaceful possession of the said apartment hereby sold has been handed over delivered by the vendor to the vendee at his request only after physical inspection of the allotted apartment as well as facilities and along with right to use of car parking space and a knowledge of the fact that vendor has applied to appropriate authorities for completion certificate, with the entire satisfaction as per aforesaid inspection checklist report. The vendee is also fully satisfied regarding quality of construction and specification final settlement of cost/dues, acknowledges the built up area and upper area revision and facilities viz. club green areas et cetera agreed as per terms of buyer's agreement. The vendee satisfied about the completion of satisfactory performance by the vendors as such when they undertake not to raise any dispute/claim against the vendor/company either individually/jointly as member of association and vendors liability on this account is now extinguishes. Vender & vendee have also agreed that buyers agreement is now finally concluded and term of sale deed will only be binding upon vendor. Thus the buyer's agreement dated 26.02.12 was finally concluded on completion of satisfactory performance by the company and now cannot be made basis of any dispute.
After getting the registry and taking the peaceful possession of the flat, the complainant sent a legal notice to the respondent on 20.03.2015 . The respondent sent a reply of the legal notice and clearly mentioned "that we deny all the charges levelled against company or its officers in the above said notice in respect of flat no.510 Indigo Tower, SG Impression-58, phase-II, Raj Nagar Extension, Ghaziabad, sale deed of which has been executed on 26.09.2014 and registered with sub registrar, Ghaziabad on 26.09.2014 only after he was fully satisfied regarding final settlement of cost/dues. After execution of sale deed buyer's agreement (which has been referred to in the notice) has already been finally concluded and has become void and will not be binding on the developer. The complainant cannot invoke the jurisdiction of this Hon'ble Commission as the complaint is time barred. As per clause 4.1 (i) of the agreement it is clearly mentioned, "developers shall endeavour to handover the possession of the said apartment, upon completion of the construction of the same by 30 June to 2014. The developer shall offer in writing to the allottee/s to take over possession of the said apartment in terms of this agreement and within 30 days from the date of issue of such offer the developer will hand over possession of the said apartment provided that the allottee(s) has paid (i) full and final payment in respect of the said apartment, (ii) as charges as envisaged in this agreement, (iii) maintenance security, (iv) maintenance charges expenses incidental thereto to be paid directly in the name of treasury officer et cetera. It is however, understood between the parties that the possession of apartment comprised in the project shall be ready and complete in phases and after the completion of the particular apartment/Block the possession of the same shall be offered to the allottee (s). In case dues are not cleared within stipulated period and possession not taken over the date of offer of possession will be taken as deemed date of possession and maintenance charges and other charges will also payable from the said date with all other dues.
The complaint has been filed with the sole object to harass and blackmail the opposite party. The opposite party submit that the present complaint is wholly misconceived and untenable in law and is liable to be dismissed with heavy cost. The present complaint is false and baseless and frivolous and based on whims and surmises of the complainant. Hence it is most respectfully prayed that this Hon'ble forum may graciously be pleased enough to dismiss the present complaint being false, frivolous and devoid of any merits along with heavy and exemplary costs again the complainant.
We have heard the learned counsel for the complainant Mr. Prasoon Rai and learned counsel for the opposite party Mr. R.K. Gupta. We have perused the pleadings evidence is and documents on record.
First we have seen the builder buyer's agreement dated 14.04.2012. In clause 4.1 of the agreement it has been written that the developer shall ensure to handover the possession of the said apartment, upon completion of the construction of the same, by 30.06.2013. The developer shall offer in writing to the allottee (s) to take over possession of the said apartment in terms of this agreement and within 30 days from the date of issue of such offer, the developer will hand over possession of the said apartment, subject to the condition that the allottee (s) has paid full and final payment in respect of the said apartment, all charges as envisaged in the agreement, maintenance security, maintenance charges to the company and stamp duty, registration fee and other expenses incidental thereto to be paid directly in the name of the treasury officer. So by this agreement it has been promised to deliver the possession of the flat by 30.06.2013. We have seen the letter of taking possession of the apartment which was sent on 03.04.2014, after about nine months as promised by the builder. In this letter nothing has been written regarding NOC's Of Fire Department, Pollution Control Department, Civil Aviation Department, lifts et cetera et cetera. Regarding completion certificate and occupancy certificate nothing has been mentioned in this offer of possession letter. It is very important to know about the completion and occupancy certificate. The following article and thereafter the ruling of the only Supreme Court are of worth reading.
COMPLETION / OCCUPANCY CERTIFICATE When buying a home, it is vital to obtain documents, such as the Occupancy Certificate (OC) and Completion Certificate (CC). These are essential documents that allow you to mortgage or sell your home. Hence, homebuyers are advised to take possession of their flat or property only after these documents have been issued.
According to Vikas Bhasin, CMD, Saya Group, "Completion Certificate and Occupancy Certificate are some of the most important documents for a home buyer. Civic authorities can evict the occupants in case of non-availability of the necessary approvals. Before investing in a property, people must be doubly assured that all the certificates and approvals are in place."
Let us dive a little deeper into the details of these documents and their importance before you make a move to buy your dream home.
Owning a home is the culmination of years of savings, research, and paperwork. After patiently waiting for the construction to be complete, you finally register the property and take possession of your flat. But what if your dream home is declared unauthorised, and you are evicted by the authorities? This is not as far-fetched as it sounds. This nightmare could turn into reality without a crucial link in the property sale process - the Occupancy Certificate (OC).
The majority of apartments in different Indian cities have been occupied by owners without any occupancy certificate. This oversight can turn into a costly mistake, jeopardising the legal status of your dream home. The importance of the occupancy certificate cannot be overstated as it seals the legal status of your property and protects your ownership rights.
Decoding legal documents To understand the importance of an occupancy certificate and other legal documents, let's decode the legal jargon and understand their meaning in simple terms. Here's a ready reckoner of the most important legal documents related to your property:
Occupancy Certificate An OC certifies that the construction of the building has complied with the approved plans. It is issued by local municipal authorities or the building proposal department once the building has been completed and is ready to be occupied. Simply put, without an OC, your building has not been awarded a 'pass certificate'.
Completion Certificate A Completion Certificate (CC) is issued only after the construction meets other building standards like distance from the road, the height of the building, and rainwater harvesting system. A CC alone cannot legalise occupation; the OC is a must.
Commencement Certificate If you are buying an under construction property, make sure you check the Commencement Certificate before signing the agreement. Many builders do not wait for a Commencement Certificate. This is illegal and can create serious problems in obtaining an OC at a subsequent stage.
Why is it unsafe to buy a flat without OC?
In the absence of a valid OC, the local municipal body can initiate serious action against flat owners. In 2014, residents of a well-known building complex in Mumbai's upscale Worli area were hit with a bolt from the blue after their complex was declared unauthorised. At the time of possession, buyers overlooked the issuance of an OC from the builder. It was only after that they were forced to evacuate their flats that the writing on the wall became clear to them.
This is just one instance, and if buyers are not careful about getting the OC, they may face the following repercussions:
• In the absence of a valid OC, your building can be demolished as it can be classified as an unauthorised structure.
• The OC is crucial while applying for a home loan or loan to purchase a resale flat. If you wish to sell or hypothecate the property after a lapse of time, you will not be able to do so without a valid OC.
• The water connection, sanitary connection or electricity supply can be disconnected in the absence of an OC.
How to obtain an OC The OC is obtained from local municipal bodies by submitting an OC application form along with the following documents:
• Commencement Certificate • Completion Certificate • Built and Section plan • NOC for fire and pollution • Area calculation sheet of floor signed by an authorised architect • Photographs of the completed building • Tax assessment with tax paid receipt • Photographs of rain harvesting and solar panels • Copy of the sanctioned plan After submitting the form, authorities inspect the complex and confirm if it has conformed to the approved plan before issuing an OC. Legally and ideally, a builder should submit an application with the municipal commissioner for the OC within 30 days of completion of the property.
How you can apply for an OC As a flat owner, you can also apply for an OC by approaching the local corporation or municipality, and if all approvals are in place, an OC is issued within 30 days of application. You will have to submit the same documents as the builder to procure an OC.
Know your rights If the builder refuses to provide an OC, you should consider exercising your legal rights. You can issue a notice against the builder asking him to apply and hand over the copy of the OC within a month. You can also approach consumer forums and file a writ petition demanding the OC.
Some canny builders simply present the receipt of the OC and dupe gullible customers. But you shouldn't accept anything less than the actual OC as the receipt may be dated.
Landmark legislations like the Real Estate Regulatory Act (RERA) have been passed to regulate the sector, promote transparency and protect consumer rights. However, consumers must be vigilant and understand their rights and responsibilities towards owning a property. Documents like OC are essential and ensure the security of your investment.
Going forward, real estate experts believe that the OC should be made mandatory for the registration of flats and essential services. Until then, buyers must ensure builders get all the necessary approvals before handing over a property.
A Completion Certificate (CC) is an important legal document that certifies that a building is constructed according to the laid down norms and master plan of the city. This document has all the information related to the project, such as the building materials used, building height, and building plan, among other things like provision for green belt.
In a nutshell, this document certifies that the building adheres to all the prevailing rules and has not violated any norms. In fact, this document is to be shown compulsorily to the authorities to obtain electricity and water connection.
Builders are allowed to obtain a provisional Completion Certificate when there are minor works left in the project. Authorities then provide a provisional certificate valid for six months. After the expiry of the six months, the developer is bound to get a final CC.
Who issues a Completion Certificate?
Local authorities issue the Completion Certificate after a thorough inspection of the premises. If the developer violates no rules, authority issues a Completion Certificate.
Why is Completion Certificate important?
Buyers must be aware of the fact that if they are buying or moving into a property that does not have a Completion Certificate, they might be making a risky investment choice. The civic authorities hold the power to slap heavy penalties on the developer, leading to stalling or cancellation of the registered layout of the project. In case the building is already occupied, residents may also have to face eviction in extreme cases.
Difference between Occupancy Certificate and Completion Certificate Occupancy Certificate examines and certifies a property for adherence to bye-laws, civic amenities, electricity, sanitation and other clearances. On the other hand, a Completion Certificate is a document that certifies that a property is fit for possession by the buyers.
Clarifying the difference, Deepak Kapoor, Director, Gulshan Homz, says, "Completion Certificate is just a reaffirmation that the building has been constructed as per the building byelaws and the layout plan has been approved by various concerned authorities. Occupation Certificate signals that there is no violation of building construction norms, and thus, the structure is safe for occupants.
Generally, these documents are not required at the time of registry, and hence, buyers tend to overlook or ignore these. But for their own benefit and peace of mind, it is warranted that buyers of both ready-to-move-in as well as under-construction properties check these documents before taking possession. This would help avoid any unnecessary dispute or confrontation in the future."
Hon'ble Supreme Court on occupancy certificate by the builders.
Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.
Factual Background The appellant is a co-operative housing society. The respondent constructed Wings 'A' and 'B' and entered into agreements to sell flats with individual purchasers in accordance with the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (MOFA). The members of the appellant booked the flats in 1993 and were granted possession in 1997. According to the appellant, the respondent failed to take steps to obtain the occupation certificate from the municipal authorities.
There was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided, however, the respondent time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent failed to provide the occupancy certificate.
In the absence of the occupation certificate, individual flat owners were not eligible for electricity and water connections. Due to the efforts of the appellant, temporary water and electricity connections were granted by the authorities. However, the members of the appellant had to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the normal charge.
Analysis Obligations of Promoter under MOFA Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.
Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property.
Limitation In the instant case, the appellant submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.
Section 24A of the Consumer Protection Act 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen.
Section 22 of the Limitation Act 1963 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. The continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong.
The appellants, therefore, were entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.
"Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986."
Consumer Section 2(1)(d) of the Consumer Protection Act defines a 'consumer' as a person that avails of any service for a consideration. A 'deficiency' is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service that is required to be maintained by law.
In the present case, the NCDRC had held that the appellant is not a 'consumer' under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further, the NCDRC observed that the respondent is not the service provider for water or electricity and thus, the complaint is not maintainable.
The respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as 'consumers' to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate.
[Samruddhi Co-operative Housing Society Ltd v. Mumbai Mahalaxmi Construction Pvt. Ltd, 2022 SCC OnLine SC 35, decided on 11.01.2022] So it is clear that in the absence of occupancy certificate the delivery of possession is no possession in the eye of law. In this case the opposite party did not file the copy of the completion certificate and occupancy certificate in addition to NOC's of different department.
What are the main objectives of consumer protection act?
The Consumer Protection Act, came into existence and implemented in 1986, provides Consumer Rights to prevent consumers from fraud or specified unfair practices. It safeguards and encourages and gives an opportunity to consumers to speak against insufficiency and flaws in goods and services. If traders, manufacturers and distributors follow any foul trade, this act protects their rights as a consumer.
On which products are these right applicable?
This Protection Act covers entire goods and services of all sectors that are public, private, or cooperative sectors, except those exempted by the central government. The act provides a floor for a consumer where one can file their complaint against the product and the forum takes an action against the concerned supplier and compensation is granted to the consumer for the inconvenience he/she has encountered.
Objectives of consumer protection act To Provide better and all round protection to consumer.
To Provide machinery for the speedy redressal of the grievances.
To Create framework for consumers to seek redressal.
To Provide rights to consumers.
To Safeguarde rights of Consumers.
Let us know more about the rights and responsiblities of consumer Consumer Rights Listed below are the Rights of the Consumer Right to Safety- Before buying, a consumer can examine on the quality and guarantee of the goods and opt for ISI or AGMARK products.
Right to Choose- Consumer must have the right to choose from a variety and number of goods and in a competitive price Right to be informed- The buyers must be provided with complete information with all the necessary and adequate details of the product, make her/him act wise, and change the buying decision.
Right to Consumer Education- The consumer must be aware of his/her rights and avoid exploitation.
Right to be heard- The consumer will get due attention to express their grievances at a suitable platform.
Right to seek compensation- The consumer has the right to seek or ask for redressal against unfair and inhumane practices or exploitation of the consumer.
Consumer Responsibilities Responsibility to be aware - A consumer has to be careful of the safety and quality of products and services before purchasing.
Responsibility to think independently- Consumer should be well bothered about what they want and need and hence make independent choices.
Responsibility to speak out- The buyer should be fearless to speak out their problems and tell to traders what they exactly want Responsibility to complain- It becomes the consumer's responsibility to express and file a complaint about their dissatisfaction with goods or services in a sincere and fair manner.
Responsibility to be an Ethical Consumer- Consumer must be fair and not engage themselves with any deceptive practice.
The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumers Councils and other authorities for the settlement of consumers' disputes and for matters connected therewith (Preamble).
The Act Inter alia, seeks to promote and protect the rights of consumers such as --
(1) right to be protected against marketing of goods which are hazardous to life and property;
(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) right to be assured, wherever possible, access to variety of goods at competitive prices;
(4) right to be heard and to assured that customers' interests will receive due consideration at appropriate forums.
(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and (6) Right to consumer education The objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels.
The Act applies to all goods and services, except if otherwise provided by the Central Government by Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe the principle of natural justice and are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi judicial bodies have also been provided.
Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and redressal of consumers' grievances are the two aspects of the Act. It makes good the loss a consumer suffers and increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and not contrary to attempted objective of the enactment.
Extent of Consumer Protection:
While other legislations may be either punitive or preventive, the Consumer Protection Act compensates the consumer. The provisions of the Act are in addition to and not in derogation of the provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt Ltd v Go Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act, 1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those which may be available under other existing laws. Existence of an arbitration clause in the agreement is no bar to the entertainment of complaint by the Redressal Agency as the remedy under the Act is in addition to the provisions of any other law. However, the Consumer Forums under the Act have not taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is voluminous or complicated the parties will be referred to the appropriate Civil Court.
Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality, quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.
So it is clear that in this case the builder is on default for not providing the possession of the flat in the promised period. Here the allottees are not defaulter. As far as it is duty of the builder to provide all the facilities which has been expressly provided in the brochure and if it has been provided it will be continuous cause of action. So the present case is within time. It is also clear that the possession was to be given by30.06.2013 but the offer of possession was given later on and registry executed on 26.09.2014. Now we have to see as to what the reliefs complainant is entitled to get from the opposite party. For this aspect we have to see the following judgment of the Hon'ble Supreme Court and Hon'ble NCDRC.
Hon'ble Supreme Court has held in Ghaziabad Development Authority Vs. Balbir Singh (2004) 4 SCC 65-"The Supreme Court, at the outset, reiterated the position taken in the case of Lucknow Development Authority v. M.K. Gupta, and held that "the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities". It further held that the power of the NCDRC extends to awarding compensation to consumers for misfeasance in the public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. Therefore, it upheld the appeals filed before it to the extent that it confirmed the jurisdiction of the NCDRC to award compensation in cases of service rendered by statutory & public authorities (the land development authorities in the present case).
As to the issue of whether the grant of interest at the rate of 18% per annum by the NCDRC in all cases is justifiable, the Supreme Court held in the negative. It stated that "the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum." It held it to be unsustainable. The Court further stated that the "Award of compensation must be under different separate heads and must vary from case to case depending on the facts of each case." The purpose of awarding compensation is to recompense for a loss or injury suffered and such compensation would therefore be proportional to the amount of loss and injury.
While considering the compensation to be awarded to the consumers in cases of deficiency of service by Development Authorities, the Court laid down a range of principles for the determination of the amount of compensation, summarised below:
To award compensation, the Forum or the Commission must determine that service has been deficient and/or misfeasance in public office which has resulted in loss or injury. While no hard and fast rule can be laid down, the Court gave a few instances where the award of compensation would be justifiable, including where possession is not handed over within the intimated period even though allotment is made and the price is paid. In such cases, the loss could be determined based on loss of rent which could have been earned if possession was given. Compensation could also be the scheme has been canceled without any justifiable cause, after the allotment.
Compensation cannot be uniform and to illustrate this, the Court lays down the principle to be followed for the determination of compensation in two cases- (a) where the delivery of possession is being directed, and (b) where only the monies are directed to be returned or refunded by the Court. In case (a), the compensation for harassment will necessarily have to be less since in a way the aggrieved party is being compensated by an increase in the value of the property he is getting. In case (b) however, the party is suffering a greater loss since he has been deprived of the flat/plot, and his expectation of delivery of possession. He would also be denied the benefit of an increase in the value of land and the compensation thereof. Therefore, the compensation to be awarded in such cases would have to be higher than in case (a).
The Court held that "such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which has been caused to the consumer."
Compensation would include compensation for physical, mental, or even emotional suffering, insult, or injury or loss."
"The consumer protection laws have a wide reach and the consumers are entitled to receive compensation for deficiency in services rendered by statutory and public authorities. The Consumer Commissions have been vested with the jurisdiction to award the value of goods or services and compensation. On being satisfied that a complainant is entitled to compensation for loss or injury or harassment or mental agony or oppression, it must direct the authority to pay compensation. A wide discretion has been given to determine the quantum of compensation for any loss or damage suffered by a consumer, to redress any injustice. However, it is a well-established principle that the computation of compensation has to be fair, reasonable, and must reconcile with the loss or injury suffered. The Consumer Forum is cast with the duty to take into account all relevant factors for arriving at the compensation to be paid.
This landmark decision has set a precedent on the matter of compensation to be awarded in matters relating to allotment of land by development authorities and has been relied upon in many subsequent cases of the Supreme Court. In the case of H. P. Housing Board v. Varinder Kumar Garg[(2005) 9 SCC 430] and Haryana Urban Development Authority vs. Darsh Kumar[(2005) 9 SCC 449], the Supreme Court directed the Commission to follow the principles laid down in the case of Ghaziabad Development Authority vs. Balbir Singh in future cases."
Hon'ble Supreme Court in the case of Haryana Urban Development ..... vs. Darsh Kumar, Etc., Civil Appeal no 5796 of 2002 decided on 28 July, 2004 has held ;
"This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases.
We are informed that in spite of there being no stay, to payment of interest beyond 12% and in spite of clarification given by this Court's order (reported in (2004) 5 SCC 65), the amounts have still not been paid. We feel that for the lapse Appellants must pay interest at the rate of 15% from 17th March, 2004 till payment. Appellants shall also pay costs fixed at Rs.500/- in each case to the Legal Aid Society of the Supreme Court. The Appellants must recover the amount paid towards costs personally from the officer/s, who were responsible for not paying even after clarification by this Court. We clarify that this Order shall not be taken as a precedent in any other matter as the order has been passed taking special features of the case into account. The Forum/Commission will follow the principles laid down by this Court in the case of Ghaziabad Development Authority vs. Balbir Singh (supra) in future cases. The Appeals are disposed off in above terms. There will be no order as to costs."
So it is clear that the compensation and rate of interest shall depend on the facts and circumstances of each case and no hard and fast rule can be framed. In this connection some of the judgment of the Supreme Court and Hon'ble NCDRC should be taken into account.
In the case of PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. (NCDRC).These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed against the order dated 25.2.2015 in Complaint Nos. 18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr.; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr.; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr. which complaints were partly allowed.
The Hon'ble NCDRC held that:
"Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses.
The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for therecovery of their dues. Alleging deficiency on the part of opposite parties/ respondents, complainants filed separate complaints before State Commission. Aggrieved by the order of Hon'ble State Commission, these appeals preferred before Hon'ble National Consumer Disputes Redressal Commission.
Hon'ble NCDRC discussed various case laws and after hearing the parties held, "Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under Section 2 (nnn) of Consumer Protection Act and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Section 2(nnn) of Consumer Protection Act."
"Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10(c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause 10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession."
Against this judgment, parties went to Hon'ble Supreme Court. The judgment of Hon'ble Supreme Court is:-
In Nalin Bhargava vs. Parsvnath Developers Ltd. CA 6662/2018 @ SLP(C) 7596/2016 etc and other related civil appeals on 13 July, 2018, Hon'ble Supreme Court held:-
"Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc. It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therefore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition of costs as compensation.
Mr. Sachin Datta, learned senior counsel appearing for the developer has raised objections with regard to imposition of costs.
Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs. When we say "cost", we mean costs alone and nothing else."
In the case of Meerut Development Authority Vs. Suresh Chandra Garg, Special Leave to Appeal (C) No(s). 24059/2022, Judgment dated 05.01.2023 Hon'ble Supreme Court has held, "consequently, the present petition is disposed of with a direction, to sum up of the litigation which is pending for a long time. Let the order of the District Consumer Commission 06.09.2019 shall be complied with and the respondent be refunded the entire deposited amount with simple interest at the rate of 12% per annum within a further period of 60 days from today failing which it shall carry interest at the rate of 15% per annum until actual payment."
Therefore it is clear that the amount shall be refunded with simple interest at the rate of 12% within 60 days from the date of judgment otherwise the rate of interest shall be 15% simple interest per annum till the date of actual payment. In this case we take the cut-off date as October 2014 , and the interest shall be computed from November 1, 2014 till the date of actual payment.
These builders are just earning money from the consumers to whom they issued allotment letters and got a huge amount. They keep this amount for a long time and earn interest on it. Property dealing is that part of business where they never pay a penny to the consumers on their amounts deposited for a long-term or if they pay, they pay a meagre interest of about 5% or so but they charge 18 to 24% or more if the consumers default in depositing any instalment. It reminds us the story of "The Merchant of Venice" The Merchant of Venice is the story of a Jewish money lender Shylock who demands that an antisemitic Christian offer "a pound of flesh" as collateral against a loan. These acts of builders also remind us the age of Sahukari during ancient India and also during British Raj. Whether these builders have power to frame their own law? They put their terms and conditions in such a way that the sufferer will always be the consumer. The Consumer Protection Act 1986 has been enacted for the benefits of consumers, so the courts dealing with Consumer Protection Act 1986 should come forward for their rescue. The courts are not governed by the builders but they are governed by the law, Custom and Usages. Now in the background of all the facts and also the facts of the present case, we will also discuss something more. We should also see the objects of the Consumer Protection Act 1986.
So considering all these judgments, we are of the opinion that the complainant is entitled for the following reliefs.
The complainant is entitled to get ₹ 10 lakhs towards all the mental torture, harassment, delay in giving possession of the flat within promised period, and not providing the amenities in the promised time with interest at a rate of 12% per annum from 01.0713 if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% from 01.0713 till the date of actual payment and till the date of providing all the NOC'c and completion and occupancy certificates.
ORDER The opposite party is directed to pay to the complainant₹ 10 lakhs towards all the mental torture, harassment, delay in giving possession of the flat within promised period not providing the amenities in the promised time with interest at a rate of 12% per annum from 01.0713 if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% from 01.0713 till the date of actual payment and till the date of providing all the NOC'c and completion and occupancy certificates.
If the judgment is not complied with, within 30 days from the date of judgment of this complaint case, the complainant may file execution proceeding against the opposite party at his cost.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record-room. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated 14.3.2024 JafRi, PA I C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER