State Consumer Disputes Redressal Commission
Odyssey A,B,C,D Chs Ltd. vs Lodha Developers Pvt. Ltd.& Anr on 15 June, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/09/90
1. ODYSSEY A,B,C,D CHS LTD.
LODHA PARADISE,
EASTERN EXPRESS HIGHWAY,
MAJIWADA, THANE (W),
400 601
Through its Secretary Mr.H.S.Powar
THANE
...........Complainant(s)
Versus
1. LODHA DEVELOPERS PVT. LTD.
216, SHAH AND NAHAR INDUSTRIAL ESTATE, DR. E.MOSES ROAD,
WORLI, MUMBAI 400 018
Through its Director Mr.Mangalprabhat Lodha
2. THANE MUNICIPAL CORPORATION
PANCHPAKHADI, THANE(W)
THROUGH ITS COMMISSIONER
............Opp.Party(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. S.R. Khanzode Judicial Member
PRESENT:
Mr.Shrikant Shinde-Advocate ......for the Complainant Ms.Sheetal Sampat-Advocate for opponent no.1 None for opponent no.2 (ex-parte) ORAL ORDER Per Honble Mr.S.R.Khanzode, Judicial Member This consumer complaint pertains to alleged deficiency in service on the part of developer and builder, namely, opponent no.1-M/s.Lodha Developers Pvt. Ltd. (herein after referred as builder) claiming compensation of `31,00,000/- for depriving the amenity of garden view to the members of the complainant society -Odyssey A,B,C,D Co-op. Housing Society Ltd. (herein after referred as complainant). Opponent no.2 which is subsequently added, is a local body, namely, Thane Municipal Corporation (herein after referred as TMC) against whom a relief is claimed in form of a mandatory direction to cancel revised layout plan dated 22/08/2007.
Undisputed facts are that the complainant society has total 112 members (as contained in the complainants notice dated 02/04/2009). The members whose flats are situated to the eastern side have a garden view and for that purpose they were charged at a higher rate while purchasing their respective flats.
It is contention of the complainant that their relevant members had taken into consideration the availability of a garden view (as shown in the layout plan, model of the scheme, brochure, etc.) and after paying premium for the same, purchased the flats. However, subsequently, the builder, without their knowledge, changed the layout plan and got it sanctioned from the TMC.
The builder even started construction of underground parking and podium for the benefit of the other front side building at the proposed site of garden. In effect, the garden area which would have been 881.88 sq.mtrs. as per the original layout plan as per earlier sanctioned plan is now reduced to 513.8 sq.mtrs. and, thus, claiming that the members of the complainant society since deprived of the garden view facility and the proposed garden of the requisite area, claimed compensation on that count of `30,00,000/-. In addition to it complainant also claimed compensation of `1,00,000/- since they were forced to move the court and has to file various proceeding and were also forced to give a legal notice to the builder and filed this consumer complaint. The consumer complaint is filed to recover such compensation along with costs of `50,000/-.
As earlier pointed out, relief against TMC is claimed in the form of mandatory direction to get cancelled the revised plan, supra, and also to remove the structure, which was constructed on the proposed garden area. Amount of `10,00,000/- is further claimed from the TMC by way of exemplary costs.
TMC remained absent and failed to file written version.
Builder resisted the consumer complaint as per its written version dated 16/02/2010. According to them consumer complaint is misconceived and the same is not tenable. It is further submitted that they were within their right to get changed and revise the plan, which was duly sanctioned by the TMC as per the Development Control Rules and provisions of Maharashtra Flat Ownership Act (In short MOFA). It is further denied that any particular area of garden was promised and agreed to the flat purchasers of complainant society. They further deny any assurance or written representation made to the members of the complainant society when they purchased the garden facing flats. According to them, the area shown by green colour in the proposed layout was an area left open as per the Development Control Rules as Recreation ground (in short RG). Garden was proposed to be constructed on some part of it. Said location comes to the North East of building Odyssey i.e. complainant societys building. They have not deprived the members of the eastern side of the complainant society, the garden view. The garden is to be constructed on completion of the project.
New RG area is 513.08 sq.mtrs. as per the revised layout plan and on that they intend to construct the garden.
This is what they explained in writing even in answer to the query made by the complainant and said reply dated 19/05/2007 of the builder is relied by both the parties.
We heard both the parties. Considering the material placed on record. The documents inter-alia includes copies of the correspondence, copies of the sanctioned layout plans, as well as documents pertaining to the injunction suit brought by the complainant against the builder bearing regular civil suit no.324/2008 and the proceeding relating to the temporary injunction application made in the said suit and Misc. Civil Appeal filed in the District Court bearing no.105/2008. These documents are not in dispute. Complainant relied upon affidavit of Mr.Harshwardhan S. Powar, its Secretary, whose affidavit is nothing but the reproduction in verbatim of the complaint. The coloured sanction layout plan is at page 158 of the compilation. The photographs of the construction are also on record.
It can be seen that on the similar cause of action and referring to the alleged actionable claim (in favour of the society) against the builder, some of the members of the complainant society had filed Civil Suit in the Thane Civil Court for injunction to prevent the builder from carrying out construction on the proposed site of garden. Builder showed that much before filing of the suit, construction of underground parking and the podium as per revised sanction layout plan was started and was at the advanced stage of construction when the civil suit was filed.
Till then no objection was raised by anybody including the complainant society. They also submitted their right as per the terms of the agreement with the flat purchasers as well as under the provisions of MOFA, particularly, section 7-A of the Act, to get revised the layout plan. They also express their commitment to protect the interests of the flat purchasers by providing them a garden view by constructing the garden on the completion of the project, supra.
Civil Court uphold the case of the builder, rejected application for temporary injunction filed by some of the members of complainant society. The plaintiffs in the said suit tried unsuccessfully to challenge the said dismissal of the temporary injunction application, in the District Court, supra.
Thereafter complainant society filed this consumer complaint on the same cause of action and raising the same issues and further alleging that by reducing the area of proposed garden, they are entitled to compensation and, accordingly, compensation is claimed as earlier narrated. Therefore, it is not a case to remove the deficiency of service but claiming civil damages or compensation for alleged breach of contract. Such cannot be a consumer dispute.
Besides, that when we specifically asked Ld.counsel for the complainant to show us any agreement whereby the garden of area 881.88 sq.mtrs was promised and agreed to be given to the flat purchasers, they conceded that there is no such agreement. Further, they failed to show any document which would show that this particular area of garden was carved out in a layout. The contention of the builder that the green colour portion shown in the layout is a recreation ground area, which is left as per the Development Control Rules, finds no rebutal. They have a right to change the location or reduce area of recreation ground at a particular place, of course, within limits and to stand by their statutory obligation to provide minimum area RG as prescribed under the Development Control Rules. Obviously, since they were adhering to the norms, even their revised layout plan was sanctioned by TMC, as rightly pointed out by the builder. Right to change layout plan was reserved in the respective agreements with the flat purchasers who are the members of the complainant society and there is no dispute about it.
Section 7-A of MOFA does not require any consent of the flat purchasers from the complainant society to get changed revised plan, once such request is made fulfilling their norms for the change. Under the circumstances, the complainant society failed to show any actionable wrong committed against them by the builder, much less, any deficiency in service towards them at the hands of the builder.
TMC cannot be faulted with since they were discharging their sovereign duty while sanctioning revised plan. No malafides, capriciousness or arbitrariness either alleged or proved against TMC or its officials while sanctioning the revised layout plan. Therefore, action against TMC is misconceived and, certainly, the complaint is liable to be dismissed against it.
For the reasons stated above, we find, the complaint is devoid of any substance and holding accordingly, we pass the following order:-
ORDER Consumer complaint stands dismissed.
Parties are left to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 15th June, 2012.
[Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. S.R. Khanzode] Judicial Member Ms.