State Consumer Disputes Redressal Commission
Bramha Emerald County Sahakari Griha ... vs 1. Bramha Skyline Developers & Others on 8 February, 2018
A/15/1221 AND A/15/1301 1/13
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/1221
(Arisen out of order dtd.05/06/2015 in Complaint No.122 of 2012 of
Additional District Consumer Disputes Redressal Forum, Pune)
Pune Municipal Corporation
Formerly known as Bombay
Provincial Municipal Corporation Act, 1949
Through Municipal Commissioner,
Registered Address at,
Pune Municipal Corporation,
Main Building, Shivaji Nagar, ......Appellant
Pune:- 411005. (Org. Opposite Party No.5)
Versus
1. Bramha Emerald County Sahakari
Griha Rachana Sanstha Maryadit,
A Cooperative Society,
Registered Address at -
C.S. No: 714. 715. 712, 725, 726 to 731,
Survey No.11, Hissa Nos.6/1, 6/2,
119+14+1A/2, 9+14/1B, Survey No.12,
Hissa No.8, 10/1A,11,12, Survey No.30
Hissa No.1+2, Kondhawa Khurd,
Pune:- 411038
Through its Chairman
Mr.Habib R. Patel,
R/at- A-4/201, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd
Pune:- 411048
2. Mr. Mahesh Chaganlal Chauhan,
R/at- B-3/801, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd
Pune:- 411048.
3. Dr. Jasmine Ashfak Shaikh,
R/at- B-1/601, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd .....Respondents.
Pune:- 411048. (Org.Complainant Nos.1-3)
A/15/1221 AND A/15/1301 2/13
4. M/s. Bramha Skyline Developers,
A Joint Venture Concern,
Office at - 250/251, Mahatma Gandhi Road,
Camp, Pune:-411001,
Through its Chief Executive Officer,
Mr. Hasan Shaikh
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001.
5. M/s. Bramha Builders,
A registered Partnership Firm,
Registered Office at -
250/251, Mahatma Gandhi Road,
Camp, Pune:-411001,
Through its Authorized Signatory
Mr. Ramkumar B. Agarwal,
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001.
6. M/s. Skyline Developers,
A registered Partnership firm,
Office at - D-436, Clover Center,
7, Moledina Road, Camp,
Pune:- 411001
Through its Partner,
Mr. Ibrahim Gulamnabi Shaikh,
7. M/s. Bramhacorp Infrastructure Pvt. Ltd.,
Registered Office at -
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001
Through its Director, .....Respondents
Mr. Ajay R. Agarwal. (Org.Opp.Party Nos.1-4)
Appeal No.A/15/1301
(Arisen out of order dtd.05/06/2015 in Complaint No.122 of 2012 of
Additional District Consumer Disputes Redressal Forum, Pune)
1. Bramha Emerald County Sahakari
Griha Rachana Sanstha Maryadit,
A Cooperative Society,
Registered Address at -
A/15/1221 AND A/15/1301 3/13
C.S. No: 714. 715. 712, 725, 726 to 731,
Survey No.11, Hissa Nos.6/1, 6/2,
119+14+1A/2, 9+14/1B, Survey No.12,
Hissa No.8, 10/1A,11,12, Survey No.30
Hissa No.1+2, Kondhawa Khurd,
Pune:- 411038
Through its Chairman
Mr.Habib R. Patel,
R/at- A-4/201, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd
Pune:- 411048
2. Mr. Mahesh Chaganlal Chauhan,
R/at- B-3/801, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd
Pune:- 411048.
3. Dr. Jasmine Ashfak Shaikh,
R/at- B-1/601, Bramha Emerald County
Sahakari Griha Rachana Sanstha Maryadit,
Off NIBM Road, Kondhawa Khurd .....Appellants.
Pune:- 411048. (Org.Complainant Nos.1-3)
Versus
1. M/s. Bramha Skyline Developers,
A Joint Venture Concern,
Office at - 250/251, Mahatma Gandhi Road,
Camp, Pune:-411001,
Through its Chief Executive Officer,
Mr. Hasan Shaikh
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001.
2. M/s. Bramha Builders,
A registered Partnership Firm,
Registered Office at -
250/251, Mahatma Gandhi Road,
Camp, Pune:-411001,
Through its Authorized Signatory
Mr. Ramkumar B. Agarwal,
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001.
A/15/1221 AND A/15/1301 4/13
3. M/s. Skyline Developers,
A registered Partnership firm,
Office at - D-436, Clover Center,
7, Moledina Road, Camp,
Pune:- 411001
Through its Partner,
Mr. Ibrahim Gulamnabi Shaikh,
4. M/s. Bramhacorp Ltd.,
Registered Office at -
3, Queens Garden Road,
Residency Club, Camp,
Pune:- 411001
Through its Director,
Mr. Ajay R. Agarwal.
5. Pune Municipal Corporation
A Corporation established under Bombay
Provincial Municipal Corporation Act, 1949 .....Respondents.
Shivajinagar, Pune - 411004. (Org.Opp.Party Nos.1-5)
BEFORE: Usha S. Thakare, Presiding Judicial Member
D.R. Shirasao, Judicial Member
PRESENT: Mr.Vishwanath Patil, Advocate present for appellant in
A/15/1221 and for respondent No.5 in A/15/1301. Mr.Habib
Patel, Chairman of appellant/society in A/15/1301 and forr
respondent No.1 in A/15/1221. Mr.A.V.Patwardhan, Advocate
present for respondent Nos.4&7 in A/15/1221 and for respondent
Nos.1&4 in A/15/1301. None present for other respondents.
COMMON ORDER
Per Hon'ble D.R. Shirasao, Presiding Judicial Member:
1) Being aggrieved by judgment and order passed by the Ld.Additional Consumer Disputes Redressal Forum, Pune in Consumer Complaint No.122/2012 on 05/06/2005 directing Opponent Nos.1 & 4 to continue the water supply of the Complainant Society as per DC Rules and Deed of Guarantee given by them till 31/01/2016 and directing Opponent No.5- Pune Municipal Corporation to construct the tank for supplying water to the Complainant Society within period of one year from passing of order and thereafter to provide water supply to the Complainant Society A/15/1221 AND A/15/1301 5/13 regularly and on failure of the same to give water charges to Complainant Society as agreed by the Builder and also directing Opponent Nos.1 & 4 and Municipal Corporation to pay cost and compensation to Complainant Society. The Complainant Society has preferred Appeal No.1301/2015 and Pune Municipal Corporation has preferred Appeal No.1221/2015. As matter involved in both the appeals is the same, both the appeals are decided by the common judgment as under -
Brief facts of the case are as under -
Bramha Emerald County Sahakari Griha Rachana Sanstha Maryadit, Society filed complaint against builders Pune Municipal Corporation for getting direction that they should not stop supply of water to their society till there is regular water supply to the society by Pune Municipal Corporation. Complainant Society submitted that, Opponent No.1 in joint venture with Opponent Nos.2 & 3 constructed housing scheme on land bearing Survey No.714, 715, 712, 725, 726 to 731 at Kondhawa Khurd, Pune. Complainant submitted that Opponent No.4 had also acted on behalf of Opponent Nos.1 to 3 by giving different letters to the Complainants. Complainant submitted that as per agreement, Opponent Nos.1 to 3 had completed construction of 8 buildings consisting of 352 flats in those buildings. Complainant submitted that Opponent Nos.1 to 3 had legally bound to supply water to each flat owner of the scheme. They submitted that the land on which the buildings are constructed are at high level and above the water level of Pune Municipal Corporation. It is also at the far end of water supply zone of Pune Municipal Corporation. Complainant submitted that considering this aspect Opponent No.1 at the time of obtaining building commencement certificate had given written undertaking that Opponent No.1 will arrange for water supply to the residence of those buildings. The Complainant submitted that Opponent No.1 also by giving letter dtd.16/01/2012 had informed society that Pune A/15/1221 AND A/15/1301 6/13 Municipal Corporation will be solving the problem of the society within four months and till then Opponent No.1 will supply water to the residence of the society at their own cost. Complainant submitted that to resolve this problem General Body Meeting of the flat owners of the society was taken on 16/01/2012. In that meeting the issue of water supply by Municipal Corporation was to be discussed. Opponent No.1 was present in that meeting and the representative of Pune Municipal Corporation alongwith the representative of Registrar of Cooperative Society were also present in that meeting. In that meeting Municipal Corporation had promised to make suitable arrangement of supply of water to the society. Complainant submitted that, in that meeting Opponent No.1 had agreed to provide water to the flat purchasers of the society till suitable arrangement is made by the Municipal Corporation. Accordingly, Opponent No.1 had also given letter in writing to the society. Complainant submitted that however, on 08/05/2012, Opponent No.4 had informed Complainant Society that from 31/05/2012 they are withdrawing responsibility of maintenance of the society. Complainant submitted that as such, they refused to fulfill their obligations to provide water supply to the society. Complainant submitted that thereafter, on 08/06/2012 also Opponent No.1 had given letter to the Complainant Society that they are going to stop all the services given to the society from 15/06/2012. Hence, Complainant filed this complaint against Opponent No.1 & 4 for getting direction against them that they should not stop the water supply to the society and should continue the same unless specific arrangement is made by the Municipal Corporation. It appears that subsequently Municipal Corporation was also added as party to the proceeding.
2) Opponent No.1 & 4 contested complaint by filing their written version on record. They submitted that the project of the society is constructed at higher level and there is no proper water supply at that place A/15/1221 AND A/15/1301 7/13 of Municipal Corporation. They submitted that they have constructed a water tank in Survey No.11, Knodhawa village by side road where Municipal Corporation can give water for the society and from that water tank water will be supplied to the society. They submitted that however, Municipal Corporation is not regularly supplying water to them and hence, they are not in a position to supply water to the Complainant Society. Hence, they submitted that, they cannot be held responsible for non-supply of water to the society. They also submitted that, they are the only developers of the property and Complainant is not the Consumer of the developers. Hence, Complainant Society cannot claim any relief in respect of supply of water from them. They also submitted that as society is already formed and society is collecting maintenance charges, it is the duty of the society to provide water to the flat owners of the society. They are also required to take suitable steps with Pune Municipal Corporation for getting water from them. They submitted that when Commencement Certificate was given by Municipal Corporation in that Commencement Certificate it has been mentioned that society will have to make their own water supply arrangement and in that respect no complaint will be entertained by them. They submitted that the position of water supply was known to all flat purchasers and irrespective of that they purchased the flats. They submitted that as they completed the construction of building now they are not responsible for providing water to the flat purchasers. Hence, they submitted that complaint filed against them be dismissed.
3) Opponent No.5 Pune Municipal Corporation had also contested complaint by filing their written version on record. They submitted that in respect of supply of water to the society there is no agreement in between flat purchasers and Municipal Corporation. They submitted that the society is situated at higher level and at the end of water supply zone of Municipal Corporation. They submitted that hence, they are not in position to provide A/15/1221 AND A/15/1301 8/13 adequate water to the society. They submitted that before granting Commencement Certificate to the Builder, the Builder/Opponent No.1 had given indemnity bond to Pune Municipal Corporation, giving undertaking that they are taking responsibility to supply the water to the society. Hence, they submitted that the responsibility of supplying water to the society is of the builder. They submitted that no consumer complaint can be filed against them in this respect. At the most, matter can be agitated before the Civil Court. Hence, they submitted they are not giving deficiency in service to the Complainant Society and the complaint filed by the Complainant Society against them be dismissed.
4) Considering rival contentions of parties, evidence adduced by them on record and documents filed by them on record, the Ld. District Forum had come to conclusion that the Opponents had given deficiency in service to the complainant society by not properly providing water supply to the society. Hence, the Ld. District Forum had directed Builder/Opponent Nos.1 & 4 to continue the water supply of the Complainant Society for a period of one year from passing of this order. The Ld.District Forum directed Opponent No.5- Pune Municipal Corporation to construct water tank within period of one year for supply of water to the Complainant Society. The Ld.District Forum had directed Pune Municipal Corporation that, if they fail to construct water tank within period of one year from passing of order, then they will have to bear the charges for supply of water to the Complainant Society as borne by Opponent Nos.1 & 4. Being aggrieved by this order society has preferred appeal bearing No.1301 of 2015 and Pune Municipal Corporation had preferred Appeal No.1221 of 2015.
5) Heard Ld. Advocate appearing for Appellant/Complainant Society. He submitted that it is the responsibility of the Builder/Opponent Nos.1 & 4 to provide water supply to the society. They had also undertaken this A/15/1221 AND A/15/1301 9/13 liability. In that respect, they had given written undertaking to the Pune Municipal Corporation at the time of obtaining Commencement Certificate of the building. Hence, he submitted that till Municipal Corporation will make arrangement for water supply to the society till then Opponent Nos.1 & 4 should provide water supply to the society. Hence, he submitted that the condition imposed on Opponent Nos.1 & 4 to supply water to the society only for a period of one year is not proper and Opponent Nos.1 & 4 be directed to supply water to the society till adequate arrangement is made by Municipal Corporation. Hence, he submitted in that respect the order passed by the Ld. District Forum be modified.
6) The Ld.Advocate appearing for Appellant-Municipal Corporation submitted that in respect of supply of water to the society, there is no agreement in between Society and Municipal Corporation. Hence, in that respect Complainant Society cannot file consumer complaint against Municipal Corporation in Consumer Court. He submitted that for that purpose they should approach to the Civil Court. He submitted that the construction of the buildings of the society is at higher level and it is also at the fag end of water supply zone of Municipal Corporation. They also submitted that for giving water supply to the society pipeline will have to be led through the land of defence. For that purpose permission will have to be obtained from Central Government. Considerable time will be required for the same. Hence, they submitted that the condition of one year imposed on them for construction of water tank and providing water supply to the society is to be removed. They submitted that as and when they will be in a position to provide water supply to the society and they will provide the same. For that purpose no time limit should be imposed on them. He also submitted that there is no provision in Municipal Corporation for making payment of water charges for supply of water to the society and Corporation will be not able to comply the same. Hence, A/15/1221 AND A/15/1301 10/13 that condition imposed on Municipal Corporation is to be removed. Hence, they submitted that the order passed by the Ld. District Forum in that respect is to be modified.
7) Heard Ld. Advocate appearing for Opponent/Builder. He submitted that there are eight buildings constructed in the society. They are constructed at top of the earth level. They are also at the fag end of water supply zone of the Corporation. They submitted that for getting regular water supply from Municipal Corporation they have already constructed a tank in Kondhawa Khurd village by the side of road. They submitted that Municipal Corporation is responsible for supplying adequate water to the society as Municipal Corporation is recovering water charges from the flat owners. He submitted that the builder had already constructed building and has made necessary arrangement for supply of water to the society. Builder has also provided water to the society up till now. However, as now society has been formed society is collecting maintenance charges and Municipal Corporation is accepting water charges from the society, Corporation is to provide water supply to the society. Hence, he submitted that the Ld. District Forum has rightly directed Municipal Corporation to make infrastructure in respect of supply of water within one year and thereafter regularly supply water to the society, else they will have to pay the charges for the same to the society. He submitted that now the dispute is in between Complainant Society and Municipal Corporation and they have to resolve the same. The builder has no concern about the same. Hence, they submitted that order passed by the Ld. District Forum is legal and both the appeals preferred by the Society and Municipal Corporation be dismissed.
8) Perused record of the case, evidence of parties filed on record and documents produced by them on record. On perusal of the same it has become clear that Opponent Nos.1 & 4 had already constructed 8 buildings A/15/1221 AND A/15/1301 11/13 consisting of 352 flats. It has also become clear that society of all flats purchasers has been formed and the society is looking after day to day affairs of the society. On perusal of record it has become clear that, all the buildings of the society is at higher level and it is also at the fag end of water supply zone of Municipal Corporation. It has also become clear that the Municipal Corporation will have to lay down pipe line for supplying water to the society through the land of defence. For that purpose they will have to obtain permission form Central Government. We are of the opinion that when Municipal Corporation is recovering water taxes from Society they are legally bound to provide water supply to the society. We are also of the opinion that when Municipal Corporation is recovering water taxes from Complainant Society, Complainant Society has become consumer of Municipal Corporation and can file consumer complaint against Corporation in Consumer Court. Although, as per Bombay Municipal Act, a civil proceeding is to be filed against corporation in Civil Court as per Consumer Protection Act, as per Section 3, for getting other afficous remedy consumer complaint can be filed against the Corporation by the Society. Hence, we are of the opinion that complaint filed against Municipal Corporation by society is tenable and they can get relief in respect of supply of water against Municipal Corporation.
9) In this case it is particular to note that looking to the situation of the buildings where they are constructed at the time of granting commencement certificate to the builder, Corporation had taken written undertaking from builder that they will provide water supply to the society till regular arrangement in that respect is made by Municipal Corporation. In view of the same till regular arrangement is made by Municipal Corporation, Builder/Opponent Nos.1 & 4 is liable and responsible for providing water supply to the society. The Builder-Opponent Nos.1 & 4 has also provided water supply to the society in view of the same undertaking up till now.
A/15/1221 AND A/15/1301 12/1310) Looking to this fact of the case it has become clear that, Opponent Nos.1 & 4 in view of undertaking given by them have accepted their liability to provide water supply to the society. Pune Municipal Corporation who are recovering water charges from the society have also accepted their responsibility to provide water supply to the society. However, it appears that, as the building of the society is situated at higher level behind the area of defence and at the fag end of water supply zone of the Municipal Corporation, it will not be possible for Municipal Corporation to make regular arrangement of supply of water to the society within a period of one year as directed by the Ld. District Forum. Hence, we are of the opinion that the condition imposed by the Ld. District Forum on Municipal Corporation to provide regular supply of water to the society within a period of one year is required to be removed. Municipal Corporation will have to be given their own time to make arrangement for supply of water to the society. However, we are of the opinion that in view of written undertaking given by builder at the time of obtaining commencement certificate from Corporation till then Opponent Nos.1 & 4 should be held responsible for supplying water to the society. Hence, we are of the opinion that in that respect order passed by the Ld. District Forum is to be modified. Hence, we proceed to pass the following order -
ORDER
(i) Both the appeals are partly allowed.
(ii) The order passed by the Ld.District Forum in Complaint No.122/2012 on 05/06/2015 directing Opponent Nos.1 & 4 to provide water supply to the society till the period of one year from passing of order and directing Opponent No.5 Municipal Corporation to make infrastructure for supply of water to the society within that one year and thereafter supply water to the society regularly or to give water charges to the society is hereby set aside.
A/15/1221 AND A/15/1301 13/13(iii) Opponent Nos.1 & 4 is hereby directed to provide regular water supply to the society as per undertaking given by them to the Municipal Corporation at the time of obtaining commencement certificate till regular water supply is given to the society by the Pune Municipal Corporation.
(iv) Pune Municipal Corporation is hereby directed to take necessary steps for preparing necessary infrastructure for providing water supply to society regularly.
(v) The order passed by the Ld. District Forum in respect of granting cost and compensation to the society is hereby confirmed.
(vi) Parties to bear their own costs.
(vii) Copies of this order be furnished to the parties free of cost.
Pronounced on 08th February, 2018.
[Usha S. Thakare] Presiding Judicial Member [D.R. Shirasao] Judicial Member aj