State Consumer Disputes Redressal Commission
M/S Swathi Constructions, vs Smt Suguna Devi Bhandari on 24 July, 2013
BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VIJAYAWADA F.A.No.930 OF 2012 AGAINST CC No.198 OF 2011 DISTRICT FORUM GUNTUR Between: M/s Swathi Constructions, rep. by its prop. Padatri Badrinath, S/o Venkateshwarlu R/o 7-1-616/136, Ameerpet, Hyderabad Appellant/opposite party A N D Smt Suguna Devi Bhandari W/o Mahaveer Kumar Bhandari Kidambi Residency, D.No.24-4-18(New) SLN Swamy Temple Street, R-Agraharam, Guntur-003 Respondent/complainant Counsel for the Appellant Ms T.Radha Kishan Rao Counsel for the Respondent M/s Ch.Ashok Kumar QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE TWENTY FOURTH DAY OF JULY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party is the appellant. The appeal is challenge to the order of the District Forum whereby the appellant was directed to obtain occupancy certificate from the Municipal Commissioner Guntur and to pay an amount of `50,000/- towards compensation and a sum of `5,000/-towards costs.
2. The respondent filed complaint before the District Forum seeking direction to the appellant to obtain occupancy certificate and hand over possession of Flat bearing number 305 as also to pay an amount of `55,000/- towards damages and expenses. The respondent submitted that the appellant entered into Development Agreement with the land owners, Kidambi Srinivasacharyulu for development of the land and raising building thereon under the name and style Kidamby Residency. The respondent purchased Flat bearing Door Number 305 from the appellant and at the time of sale of the Flat, the appellant promised the respondent that it had not furnished occupancy certificate to any of other purchasers and it would supply the occupancy certificate at some time later. The respondent joined the Flat Owners Association and requested the appellant to furnish the occupancy certificate which was not supplied by the appellant compelling her to get issued notice dated 11.10.2011 and thereafter filed the complaint.
3. The appellant resisted the claim contending that the land owners obtained approved plan on 5.08.2006 from the Municipal Corporation, Guntur. During construction of the building, the respondent and other flat owners requested the appellant to make deviations from the approved plan in order to meet the requirement of vastu. The appellant made application for regularisation and penalisation of the apartments which includes parking area and other common area and paid an amount of `84,672/- to Municipal Corporation, Guntur towards charges for regularisation of Flat No.305 of the respondent. The Municipal Corporation had withdrawn the proceedings of action initiated against the appellant. It is contended that it is not the obligation of the appellant to obtain occupancy certificate and there is no need to get the occupancy certificate as the appellant handed over the proceedings dated 8.12.2009 of the Municipal Corporation, Guntur and necessary documents. The appellant applied for issuance of occupancy certificate and undertakes to handover it to the respondent as and when received from the Municipal Corporation. It is contended that the respondent is still due an amount of 4% on cost of the Flat towards service tax which was paid by the appellant.
4. The respondent filed her affidavit and the documents, ExA1 to A9. On behalf of the appellant, its proprietor filed his affidavit and the documents, B1 to B4.
5. The District Forum allowed the complaint on the premise that the appellant is a wrong doer and it cannot allege that the respondent is a wrong doer. The District Forum observed that the appellant failed to keep its promise to furnish occupancy certificate to the respondent. The District Forum held that Municipal Corporation Guntur, ought to have been made party to the complaint and yet the complaint is maintainable in view of Sec.13(4) of the C.P.Act.
6. Aggrieved by the order of the District Forum the opposite party has filed appeal contending that the District Forum failed to see that the respondent has not made Municipal Corporation Guntur as party to the proceedings and it had carried out construction with some minor deviations at the instance of the respondent to suit vastu. It is contended that the appellant paid an amount of `84,672/- under Building Regularisation Scheme and it was approved by the Municipal Corporation. It is contended that it is obligatory on the part of the Municipal Corporation u/s 455 AA of HMC Act to issue occupancy certificate once application for penalisation is approved and that as the BRS plan was approved, there is no need for obtaining occupancy certificate.
7. The point for consideration is whether the order of the District Forum suffers from misappreciation of fact or law?
8. Many of the facts are not disputed such as development of land and construction thereon, the building under the name and style Kidambi Residency in terms of Memorandum of Agreement entered into, between the appellant and the land owners, Kidambi Sreenivasacharyulu and others, the sale of flat bearing No.305 by the appellant to the respondent on 9.4.2010 and deviation of the approved plan to suit vastu, by the appellant as also the building regularisation scheme proceedings issued by the municipal corporation Guntur etc.
9. The appellant has contended that the appellant executed sale deed on 9.4.2010 in favour of the respondent and supplied necessary documents as also approved plan to the respondent and that the respondent obtained loan from City Union Bank Limited, Guntur the documents. It is contended that the respondent is due service tax to the tune of 4% on the cost of the flat and the appellant has no obligation to furinish the copy of occupancy certificate to the respondent as also that at the request of the respondent the appellant applied for issuance of occupancy certificate and the application is pending with the Municipal Corporation, Guntur.
10. The learned counsel for the respondent has contended that the Commissioner Guntur Municipal Corporation issued notice published in newspaper to the effect that the property tax would be increased three times in regard to penal charges for the property for which no occupancy certificate has been obtained and that the appellant has not made any application for the purpose of issuance of occupancy certificate to the respondent. He has relied upon the decision of this commission in Syed Hassan and others Vs M/s Tirumala Homes Pvt Ltd., and another E.A.No.14 of 2009 in C.D.No.25 of 2006 decided on 8.2.2012 and the decision of Honble High Court in Khamruddin Khan Vs Mahabubnagar Municipal Council, rep. by its Chairman and another 2007 (1) ALT
324.
11. Admittedly, the respondent has paid entire sale consideration and the appellant delivered possession of the flat to her. The appellant applied for building penalisation and regularisation for the flats including the flat sold to the respondent. Municipal Corporation, Guntur issued proceedings approving BRS.
The appellant has raised contradictory pleas, disowning any obligation on its part to obtain occupancy certificate for the flat bearing No.305 sold to the respondent and contending on the other hand that the Municipal Corporation had not imposed any condition on it to obtain occupancy certificate.
12. In Syed Hasans case (supra), this Commission held that the builders therein applied for obtaining occupancy certificate from GHMC and for certain flats they had obtained occupancy certificates. It was held:
it is conspicuous from the memos filed by the opposite parties from time to time that they are taking steps for obtaining occupancy certificate from the GHMC and on 2.2.2012 they also copy of occupancy certificate pertinaing to flat nos. 601 and 602 and for obtaining such occupancy certificate for remaining part of the building sometimes required and therefore the very same two months time is given for compliance of the same
13. In Kamruddin Khans case (supra), the Municipality refused building permission to construct two rooms and compound wall on the site in front of the petitioners house on the premise that the proposed construction affects 50ft wide road mentioned in the approved master plan.
The petitioner earlier filed suit for injunction against the Municipality stating that it attempted to occupy the land on the premise that the land found part of proposed expansion road and the suit was decreed as also the decree became final.
14. The High Court held that rejection of building permission again on the same ground is not legal and directed the Municipality to grant building permission in accordance with building byelaws.
15. The appellant in its written version before the District Forum has admitted that it applied for issuance of occupancy certificate to the respondents and the delay has been caused on account of the delay in issuing the occupancy certificate by Municipal Corporation of Guntur. In para 15 of the written version that the appellant had admitted its obligation to obtain occupancy certificate form the municipal corporation Guntur and handover the certificate to the respondent in the following words:
It is further submitted that under the circumstances and on t in preceding paras of this version, the delay in handing over the occupancy certificate to the complainant was on account of the delay caused by the Guntur Municipal Corporation in spite of the approval and issuance of proceedings under BPS applications. The delay was not on the part of the opposite party, but the Guntur Municipal Corporation was instrumental to the delay.
16. The appellant, thus estopped from contending that there is no obligation on its part to obtain occupancy certificate from Municipal Corporation, Guntur. The District Forum committed an error in observing that Municipal Corporation ought to have been made party to the complaint.
The appellant cannot take advantage of unsustainable finding of the District Forum, to contend that it is the duty of Municipal Corporation to issue occupancy certificate and the appellant had no role whatsoever in this regard. We do not find any error in the order of the District Forum directing the appellant to obtain authorisation certificate in respect of flat bearing no.305 and furnish the certificate to the respondent.
17. In the result, the appeal is dismissed confirming the order of the District forum. There shall be no separate order as to costs. Time for compliance four weeks.
Sd/-
MEMBER Sd/-
MEMBER Dt. 24.07.2013 కె.ఎం.కె*