State Consumer Disputes Redressal Commission
Anil Nandedkar vs B.U. Bhandari Raviraj Developers & Ors. on 10 November, 2025
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
AT NEW DELHI
NC/OP/33/2005
With
NC/IA/10874/2025 (Waiver of Cost)
Anil Nandedkar & Ors. ... Complainants
Versus
B.U. Bhandari Raviraj Developers & Ors. ... Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE A.P. SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
For the Complainant s : Mr. Anil Nandedkar, Complainant in person
Mr. Vijay Sagar (Akhil Bhartiya Grahak Panchayat)
For the Opposite Parties : Mr. Vaibhav Gaggar, Sr. Advocate
With Mr. Somev Tiwari, Advocate
Mr. Vansh Shrivastava, Advocate for OP-1
None for others
PRONOUNCED ON : 10.11.2025
ORDER
JUSTICE A.P. SAHI, PRESIDENT
1. This complaint is essentially a flat buyer - builder dispute, where the complaint has been filed by 14 members of the Planet Millennium Co-op. Housing Society, out of whom 4 have been named in the array of parties and the names of the rest of them appear at page 6 of the complaint. The complaint has also been initiated by including the name, as complainant no. B, of Mr. Vijay Ganpat Sagar of the Akhil Bhatiya Grahak Panchayat, that claims itself to be a voluntary consumer organization, joining in the complaint to protect the rights of the consumers. The grievance raised is about various deficiencies regarding
1|Page delay, constructions, absence of amenities as promised including non-execution of conveyance deeds.
2. The project complex has 576 flats and 40 row houses and with the passage of time according to the opposite parties most of the complainant members have either sold their flats or have not further pursued the complaint, except a couple of them and Mr. Vijay Ganpat Sagar, who is neither a flat buyer/ owner nor has any concern with the buildings pursuing the complaint without any cause.
3. According to the complainants, the possession of the flats was to be handed over by 30.04.2002, but in view of the dire need of the complainants and other flat buyers, the possession was taken in an incomplete status on different dates in the year 2002 and 2003 as indicated in the chart at page 6. The completion certificate according to the complainants was partial, and without the amenities having been completed, which was given by the municipal authorities, namely, Pimpri Chinchwad Municipal Corporation arrayed as the opposite party no. 3 in the present complaint.
4. The complainants allege that they corresponded with the builder/ developer, opposite party no. 1 and 2 from 25.07.2003 to 29.10.2004 and having failed to get their grievances redressed and deficiencies removed, the present complaint was instituted on 08.04.2025 through diary no. 756 of 2005.
5. On 09.05.2005, the Bench dealing with this matter called upon the complainants to file documents pertaining to the status of authorisation from the society of which the complainants claimed themselves to be the members.
2|Page
6. On 29.08.2005, notices were issued to the opposite parties, including the Municipal Corporation, the opposite party no. 3. They were granted time to file written statement, which was filed on 02.03.2007. The opposite party nos. 1 and 2 filed their response and the matter remained pending till 2014, when an application was moved on 05.03.2014 being IA/2918/2014 praying for appointment of a Local Commissioner. Another application IA/162/2016 was moved for deleting the opposite party no. 2, who is the Architect of the opposite party no. 1. These applications remained pending, when on 14.03.2016, the application filed for appointment of a Local Commissioner was dismissed and the application for deleting the opposite party no. 2 was directed to be considered at the time of final hearing.
7. The Commission once again felt the need of appointing a Local Commissioner and passed an order on 30.03.2016. Mr. V. K. Gossain, a retired Executive Engineer from Delhi was appointed as a Local Commissioner, who submitted his report on 07.06.2016, to which objections were filed by the complainants as also by the opposite parties. The report of the Local Commissioner and the objections are on record.
8. On 05.02.2021 the issue of maintainability of the complaint was once again raised and the objections were taken by Mr. Gaggar, learned senior counsel for the opposite parties that this is neither a complaint under Section 12 (1) (a),
(b) or (c). Other objections with regard to the maintainability of the complaint and filing of defective affidavits were also taken. The complaint was however dismissed in default on 07.08.2023, whereupon, MA/420/2023 was filed that was allowed on 10.11.2023 and the complaint was restored to its original
3|Page number. The complainants thereafter started appearing in person and then the arguments commenced which were recorded on 04.09.2025 that are extracted herein under:
"This Complaint was filed through Diary No.756 on 08.04.2005 awaiting removal of defects. It was then registered as Original Petition No. 33 of 2005. The Complaint alleges deficiency in service against the Opposite Parties Developer-cum-Builder on the ground of delay in possession, entitlement of compensation for delayed possession, delivery of less area of flats as against promised in the Agreement, compensation for the same, deficiency in the installation of the fire fighting system of the project and compensation in lieu thereof, insufficiency and inadequate drinking water supply system and compensation for the same, insufficient parking space and illegal selling of the side margin area and the parking area and compensation for the same, the absence of provision of septic tanks and compensation for the same, the absence of the provisions of convenience shopping Complex as per rules and compensation for the same, the deficiency in the storm water drainage system, non- compliance of promised amenities, illegal realization of maintenance charges and refund thereof, the illegal transfer of development rights towards the construction of a new internal road, the design of the project buildings being not earthquake resistant, the absence of amenities space at the entrance of the project and non-execution of the Conveyance Deed of the properties and compensation in lieu thereof. The separate heads have been claimed in a chart in the prayer clause with a prayer for direction to execute the Conveyance Deed, to take action against the Municipal Commissioner and direct him to issue Completion Certificate as well as take action for illegal works carried out by Opposite Party
4|Page No.1, with a further direction to demolish the illegal constructions and ultimately to pay compensation as demanded. It may be pointed out that the Complaint has been filed by four named individuals and ten other Members of the „Planet Millennium Co- operative Housing Society‟, Pimple Saudagar, Pune. In addition thereto, Mr. Vijay Ganpati Sagar of the Akhil Bhartiya Grahak Panchayat is an additional Complainant.
The Opposite Parties are the developers namely B.U. Bhandari Raviraj Developers arrayed as Opposite Party. No.1. OP No.2 Mr. Vikas Achalkar was the consulting Architect of the Project and the Opposite Party No.3 is the Commissioner of the Pimpri Chinchwad Municipal Corporation, Pune.
At the outset, it may be pointed out that Opposite Party No.2 stands already deleted as would be indicated herein after and therefore, there are only two Opposite Parties in the present Complaint. The Complaint was initially presented and seems to have been argued through lawyers but from the order-sheet dated 07.08.2023, it appears that the Petition had been dismissed for want of prosecution in the absence of learned counsel for both the parties. MA/420/2023 for restoration was filed and the same was allowed on 10.11.2023. While allowing the application for recall and restoring the Petition once again to be heard on merits, it was also noticed by this Commission that the Complainant No.1 and Mr. Vijay Ganpati Sagar, Complainant No.B of the Akhil Bhartiya Grahak Panchayat, appeared in person and submitted that they have discharged their counsel. The Complaint was restored and directed to come up for hearing. The written synopsis by both the parties were filed but the case could not be taken up thereafter when ultimately, the matter came up on 02.07.2025 before a learned single Member of this Commission it was directed to be listed before the Division Bench on 04.09.2025. Accordingly, the Complainants have once again been represented in
5|Page person by the Complainant No.1 and by Mr. Sagar who have appeared online and have advanced their submissions. The Complainants have urged that they have been waiting for the relief for the past 20 years and therefore, the matter may be heard and disposed of finally in respect of the alleged deficiencies as pointed out in the Complaint. It is also submitted that the Complainant Mr. Sagar is entitled to appear as he represents a Consumer Organization which is voluntary and not profit making, as such, the Complaint is being pursued by him on behalf of the Complainants and the society. As would be evident from the facts narrated hereinafter, this Commission appointed a Local Commissioner vide order dated 30.03.2016 by passing a detailed order and the said Local Commissioner, after making inspection, tendered a report dated 07.06.2016 that has been filed on record.
Learned counsel for both the parties have filed their objections to the said report, Complainant having filed it on 22.11.2018 vide Diary No.61802 and the Opposite Party having filed it on 08.10.2019 vide Diary No.54276. The said objections to the Local Commissioner‟s report are on record.
After the filing of the said report, requests were made for filing certain additional documents and the Complaint remained pending, including the issue of maintainability of the Complaint as raised by the Opposite Party. It is in this background that the matter has been heard today. The Complainants have, with the help of the pleadings in the Complaint, charted out the deficiencies and have urged that none of the deficiencies as alleged, have been rectified as a matter of fact till today. There is no Conveyance of the property to the Complainants or the other Members of the society. They also urged that pursuant to the orders of this Commission on 09.05.2005, appropriate documents have been brought on record pursuant to the registration of the Society namely „Planet Millennium Sahkari Grih Rachna Sanstha Co- operative Housing Society‟ and the documents were filed on
6|Page 02.08.2025 vide Diary No.1535 which is on record. The said application states that that the Complainants are the Members of the said Co-operative Housing Society that stands registered with effect from 05.04.2003 and consequently, the Complaint should also be entertained treating it to be on behalf of the society and its Members. The Complainants have advanced their submissions and have narrated the averments made in respect of the allegations regarding the deficiencies as noted above.
Mr. Gaggar, learned senior counsel appearing for the Opposite Party No.1, submits that this entire Complaint has been presented contrary to the procedure and the mandatory requirements of the Consumer Protection Act, 1986 and the rules and regulations framed thereunder and is therefore, not maintainable. He has urged that the Complainants themselves are unsure about the nature of the Complaint that they have proposed to file which could not have been entertained and even otherwise, there are various defects which are fundamental hence, the Complaint cannot be entertained. He has further submitted that out of the 14 Complainants, some of them have already sold their flats and have departed from the scene and as such, the Complaint on their behalf is not maintainable. He further points out that the applicant Mr. Sagar has no locus to join in this Complaint and pursue the same that too even without the society being a party to the proceedings. He submits that the Residents Co- operative Housing Society have neither been impleaded as a Complainant or as a Respondent and therefore, this Complaint cannot be treated to be one on behalf of the society. It is then pointed out that only a single verification has been made of the Complaint without supported by any affidavit as such, the Complaint is not in proper form. Apart from this, none of the Complainants have filed any affidavit in support of their allegations in the Complaint and there is only one evidence by way of affidavit on behalf of the Complainants which has been sworn by Mr. Rajesh Patil.
7|Page He alleges himself to be the Chairman of the Housing Society but he is neither a buyer nor a purchaser of any of the flats nor does he have any appropriate authority to maintain his affidavit without the society being a party to the Complaint. In essence, the Complaint itself is not supported by any evidence and there is no affidavit of either of the Complainants. Thus, the Complaint cannot be maintained either on behalf of the present Complainants or the society either as an individual Complaint or as a joint Complaint, or as a Complaint for a common purpose. He therefore, submits that this is not a Complaint competent to be entertained and tried as a Complaint either under Section 12(1)(a) or (b) or (c) of the 1986 Act.
He therefore, contends that the Complaint is neither in a proper format as required under the Act nor is represented on behalf of any bonafide litigants and hence, the Complaint cannot be entertained and deserves rejection.
He however, points out that this aspect also stands reflected in the order dated 09.05.2005 and inspite of the same, neither any application for amendment was moved nor any request has been made on behalf of the Complainants to rectify the errors and hence, a defective Complaint has to be rejected.
He has then invited the attention of the Bench that the date of completion of the project is 30.04.2002 for handing over possession but the delay if any is very slight, and according to the synopsis on the first page of the Complaint, the possession of the flats had commenced in 2002 and admittedly, the possession of the flats was taken thereafter, which continued till the month of December 2002. It is pointed out that almost 175 buyers took possession in December, 2002 and it is therefore, urged that this Petition, which now practically survives for three or four Complainants, who also do not seem to be interested in pursuing the Complaint, the present Complaint in essence does not raise any triable issue of delay in possession at all.
8|Page He points out that the calculation made by the Complainants to allege lesser area having been delivered to the Complainants as promised, is incorrect. The fire-fighting equipments had been handed over in working condition and were certified by the Chief Fire Officer and there was no deficiency at all for the Complainants to have come up before this Commission.
The Local Commissioner‟s report has also been challenged questioning its correctness and the findings recorded by it and it has been urged that the report is judgmental instead of being analytical. The Local Commissioner, according to the learned counsel for the Opposite Party, has travelled beyond the terms of reference of this Commission and has travelled beyond the task that was entrusted to him. It is urged that all the photographs that have been tendered, do not indicate any such deficiency as alleged. All the facilities and amenities are in place and the convenience shops have also been appropriately located hence, the same cannot be a ground for deficiency against Opposite Party no.1. We have also perused the report dated 07.06.2016 as well as the objections filed thereto.
However, Mr. Gaggar has urged that the issue of maintainability has first to be dealt with keeping in view the defective nature of the Complaint as pointed out above. Some of the Complainants, having sold the property and having departed from the scene, are no longer interested and he has vehemently urged that Mr. Sagar, in no capacity, can be heard in this Complaint or represent the Complainants in any form. He has invited the attention of the Bench to the Provisions of Section-12(1)(a)(b)&(c) to advance his submissions. The contention is that the Complainants do not fall in any of the categories and the Complaint cannot be treated to be a joint Complaint even under Section 12(1)(c) of the Act. He points out that the orders have been passed on maintainability on 05.03.2014 and once again on 23.09.2014, have not yet been
9|Page answered even though, this aspect had been noted by this Commission in the very first order dated 09.05.2005. The order dated 09.05.2005 is extracted herein under:
"Learned counsel submits that supposing in case we just grant relief as sought then the Grahak Panchayat is not supposed to undertake the construction nor we are supposed to give money to Grahak Panchayat. The money could be taken only by a registered and authorised body of the Residential Flat Owners Association. Learned counsel submits that he would be filing necessary document. It would further be a question whether apart from 4 or 5 persons mentioned, any other person has been given authority to pursue the matter on their behalf. Learned counsel would be filing necessary documents by next date.
List on 8.8.2005 for admission."
Thereafter, as noted above, the Complainants, through their counsel, filed the bye laws on 02.08.2005 vide Diary No.1535. The same is extracted herein under:
"1. That the aforesaid complaint is pending for admission before this Hon'ble Commission and is fixed for 08.08.2005
2. That on the previous date of the hearing on 09.05.2005, the Hon'ble Commission directed the Complainant to file the Memorandum of Association [MOA]/Bye Laws of the Society, if any, formed by the members/Complainants.
3. That the Complainants are the members of Planet Millennium Co-operative Housing Society Ltd., Pimple Saudagar, Pune which is Registered vide Registration No.PNA/PNA(3)/HSG/TC/6182/2003-04 dated 05.04.2003 by Govt. of Maharashtra 10 | P a g e
4. That two copies of the said Bye Laws are appended hereto in compliance to the directions issued by this Hon'ble Commission."
The contention therefore, regarding the maintainability of the Complaint has to be dealt with in view of the contentions that have been raised on behalf of the parties.
The second issue is with regard to the appointment of a Local Commissioner. In this regard, it deserves to be noticed that IA No.2918 of 2014 was filed by the Complainants requesting the Commissioner to appoint a Local Commissioner for carrying out an inspection and submitting his report. The said IA was rejected on 14.03.2016. Simultaneously, the orders were passed to delete the Opposite Party No.2 on the application IA/1162/2016 moved on behalf of the Complainants which was also entertained. The order passed on 14.03.2016 is extracted herein under:
"Counsel for the parties present. Arguments heard on application no. 1162 of 2016, seeking direction to strike off the name of Opposite Party No. 2- Architect. The case is at the final stage. It will be considered at the time of final arguments.
There is another application for appointment of Local Commissioner i.e. IA/2918/2014. There will be no use of appointing the Local Commissioner after a period of 10 years, therefore. I.A. 2918 of 2014 is hereby dismissed.
Case is fixed for final arguments on 29.03.2016."
However, we find that on 30.03.2016, the arguments regarding appointment of a Local Commissioner was once again entertained and a Local Commissioner Mr. V.K. Gossain, a Retired Superintendent Civil Engineer of the Delhi Development Authority was appointed to carry 11 | P a g e out an inspection and submit his report with regard to the 14 issues included therein. The order dated 30.03.2016 is extracted herein under:
"Part arguments heard. It has become necessary to appoint a Local Commissioner to visit the spot and find out all the 14 points mentioned below:
(1) Delay in possession, (2) Less Area (3) Fire fighting System (4) Insufficient and inadequate supply of drinking water (5) Insufficient parking space (6) Provision of Septic Tank (7) Convenience Shopping Center (8) Storm Water System (9) Non-compliance of promised amenities (10) Maintenance charges (11) Illegal transfer of development right (TDR) (12) Non-compliance of earthquake resistance design structure (13) Amenities space at the entrance
12 | P a g e (14) Conveyance Deed of Property Therefore, Shri V. K. Gossain, Retired Supt. Engineer (Civil) from D.D.A., resident of D-136, Suraj Mal Vihar. Delhi-110092 (Mobile No. 9911189910), is appointed as a Local Commissioner. He will also find out whether the complainants made unauthorised construction and if made, to what extent. The parties will also engage a photographer, who will take photos or make another arrangement whatever they want. It is made clear that this will be applicable only to 14 complainants. He will find out whether out of those 14 complainants, how many owners have sold the premises in dispute. Rs.2 lakh will be paid to Shri Gossain, local Commissioner, out of which, Rs.1 lakh as remuneration and Rs.1 lakh for travel to and fro, and other expenses like Hotel and taxi expenses. Both the parties will bear the cost of the Commissioner equally in equal shares. The Commissioner will visit the site on 29.4.2016 between 10.00 hrs. to 11.00 hrs. The amount be paid to Local Commissioner till 20.4.2016 The request of the complainant that the entire building should be inspected by the local commissioner is hereby rejected because they are not the parties to this case. It is made clear that the Commissioner will adhere to the site plan, which may affect those persons as well. It is also made clear that all the objections of the opposite parties are being kept open. Report be awaited for 30.08.2016.
A copy of this order be given to both the parties on 5.4.2016."
13 | P a g e The report was tendered on 07.06.2016 which is on record and thereafter, objections to the said report were filed by both the parties as referred to herein above.
Mr. Gaggar submits that the report also deserves to be rejected inasmuch as it fails to take notice of the relevant facts and the Complaint does not deserve to be entertained.
The arguments could not conclude today as no time was left and therefore, as agreed, let the matter be listed once again on 07.10.2025."
9. The matter was again resumed on 07.10.2025, when the following arguments were recorded:
"Mr. Gaggar, learned senior counsel resumed his arguments today and invited the attention of the Bench to the to the order dated 14.03.2016, to point out that IA/2918/2014 was filed on behalf of the complainants for appointment of a local commissioner that was dismissed. He further points out that IA/1162/2016 seeking directions to strike off the opposite party no. 2, Architect, was directed to be considered at the time of final arguments. He then pointed out to the order dated 30.03.2016, whereby once again this Commission directed the appointment of Mr. V. K. Gossain a retired Superintendent Engineer from Delhi Development Authority as a Local Commissioner to visit the spot and inspect the premises, including any unauthorised constructions made by the complainants. It was also clarified that the order was applicable only to the 14 complainants. The order further mandated the Local Commissioner to report as to how many of these 14 have sold the premises. Mr. Gaggar has emphasised that the said order categorically records that the request of the complainants for the inspection by the Local Commissioner of the entire building was rejected because the other occupants were not party to the case. The Local Commissioner was to 14 | P a g e adhere to the site plans which may affect those persons as well. Objections by the opposite party were left open. Mr. Gaggar urged that after this order the Local Commissioner visited the spot. This Commission had appointed him after 11 years of the filing of the complaint and as on date it is a 9 year old inspection dated 07.06.2016.
With this background learned senior counsel proceeded to point out that after the submission of this report, the opposite party had moved IA/1047/2019 with a prayer to accept certain documents on record, and he has read out the same to demonstrate the alleged illegal constructions made by the complainants that is accompanied by photographs.
The said application also brings on record the letter dated 17.12.2018 which is an opinion of Mr. Hansal Parikh and Associates, Structural Consultants, opining on the structures and the alleged unauthorised constructions raised by the complainants, which he has described as illegal and excessive in nature. Mr. Gaggar points out that the said opinion categorically states that the same deserves to be rectified as they may lead to some mishap or any accident and therefore the same has to be taken into account.
Supporting the aforesaid submissions regarding illegal constructions, he has also invited the attention of the Bench to the letter of Architect, the opposite party no. 2 dated 07.12.2018 that has been filed along with the said application and he has urged that the same may be read along with the affidavit of the Architect, which is dated 04.01.2019 and is on record.
Learned senior counsel then invited the attention of the Bench to IA/1046/2019 that was filed in view of the above mentioned report of the Structural Consultant dated 07.12.2018 for a direction to the opposite party no. 3, Pune City Municipal Corporation to inspect the said project and take appropriate action for 15 | P a g e removing and demolition of the unauthorised constructions as demonstrated and narrated hereinabove.
He has then urged that the report of the Local Commissioner is biased, illogical, inconsistent and beyond the scope of reference as contained in the order dated 30.03.2016. It is also urged that it is speculative and is adjudicatory in nature based on no cogent evidence, and apart from lacking in evidence it is against the evidence available on record. He has then taken us through each of the recitals in detail as contained in the report of the local commissioner dated 07.06.2016 and has invited the attention of the Bench to the objections taken to the said report and filed on record through diary no. 54276 dated 08.10.2019. He has advanced his submissions categorically on each of the issues and has urged that the Local Commissioner‟s report deserves outright rejection and there being no deficiency, much less an unfair trade practice established, the complaint deserves to be dismissed.
He has further pointed out that the complaint is not supported by any proper affidavit and the affidavit at page 171 of the paper book of the complaint is not an affidavit in accordance with law and the same cannot be read as an affidavit in terms of the law that has been laid down for supporting a consumer complaint in such matters particularly when the present complaint can neither be captioned under Section 12 (1) (a) (b) and (c) of the Consumer Protection Act, 1986. He further submits that the only affidavit on behalf of the society has been signed by one person Mr. Rajesh Patil, claiming himself to be the Chairman.
He submits that there is neither an authorisation by the society nor is there any resolution and the present complaint began with only 14 complainants, out of whom three have already sold their flats. He has reiterated his submissions made on 04.09.2025 and has urged that the complaint is neither competent nor it has been filed by the appropriate person. The complaint is bereft of 16 | P a g e any appropriate pleadings and this cannot be treated to be a complaint instituted in terms of the 1986 Act and the Rules framed thereunder. He has once again reiterated that the alleged Akhil Bhartiya Grahak Panchayat has no authority or legal existence so as to pursue this complaint through Mr. Vijay Ganpati Sagar. He has then urged that the present complaint and the arguments advanced travel beyond the pleadings and terms of the agreement demanding reliefs which were not even part of the agreement and it has been shaped as if it is a writ petition or a public interest litigation. He therefore submits that neither the complaint is maintainable nor entertainable in any form nor any reliefs prayed for can be granted in this jurisdiction. He has finally urged that the report of the Local Commissioner which has come after 11 years of the filing of the complaint amounts to a platform for the complainants to introduce certain facts which are not even part of the complaint.
Three of the complainants appeared online including Mr. Vijay Sagar, who refuted the contentions raised on behalf of the opposite party/ builder and pointed out towards the filing of the affidavit by all the complainants. It was further urged by Mr. Sagar that even if three of the flat owners have sold their flats, the allegations of amenities, deficiencies and unfair trade practice do not get diluted as the person who steps into the shoes of the seller is also entitled to the same benefits and the seller does not lose any of his subsisting rights which include any compensation, if awarded, in as much as, the said complainants were owners at the time of the filing of the complaint. They therefore do not lose their right simply by selling of their flats. He further points out that the builder had always been intimated through proper notices way back in 2003 about the deficiencies including problem of water, the non-existence of tank underground or overhead for each of the buildings that was contrary to the approved plans and it is further urged that the Pune City Municipal Corporation has acted contrary to law by giving a completion 17 | P a g e certificate/ occupancy certificate without the completion of the project. He further points out that the calculation of the carpet area made by the Local Commissioner is wrong and it was with the intervention of the Registrar Cooperative Housing Society that the complainants succeeded very recently in getting the deemed conveyance deeds. He points out that the maintenance receipt had been filed on record to indicate that the payments which have been made and which deserve to be refunded. He further urged that the firefighting system was incomplete right from the beginning and therefore the local commissioner was justified in making his comments to that extent.
He has further urged that the complainants have some reservations on some of the issues particularly relating to the built up area and the compensation relating thereto for which they have filed their objections through diary no. 61802 dated 22.11.2018.
They have also urged that the complaint is very much maintainable and all the documents pertaining to the registration of the society had been filed along with the complaint itself and consequently there is no legal infirmity in the presentation of the complaint and the same being entertained. It is urged that the Commission itself appointed the local commissioner in order to satisfy itself and collect material in exercise of powers conferred on it and the appointment of Local Commissioner was neither at the behest of the complainants or the opposite parties. The arguments concluded today.
Orders reserved.
Put up for orders on 10.11.2025."
10. The arguments concluded and the matter was reserved for orders.
11. It is in this background that the submissions that have been raised by the learned counsel need to be considered. Mr. Gaggar, learned senior counsel has filed a written synopsis on behalf of the opposite party nos. 1 and 2 that is on 18 | P a g e record and he has cited 7 decisions in support of his contentions. He has also invited the attention of the Bench to the objections raised to the report of the Local Commissioner that has already been recorded in the orders noted above.
12. Mr. Gaggar has however urged that apart from the reports on record the letter of the Structural Consultant dated 07.12.2018 clearly indicates that there have been unauthorised constructions raised as a result whereof the complainants themselves are responsible for the deficiencies which they allege. He has also relied on the affidavit of the opposite party no. 2, the Architect dated 04.01.2019 to substantiate his submissions.
13. Mr. Gaggar has also invited the attention of the Bench to the additional documents that were filed on 08.11.2013 through diary no. 22562 in support of his contentions and urging that there is neither any deficiency nor any defect so as to warrant any relief in favour of the complainants.
14. Relying on the submissions already raised and the written submissions as also the judgments cited at the bar, Mr. Gaggar has urged that the complaint has no legs to stand and is neither maintainable nor entertainable.
15. The complainants urged that all their deficiencies continue to persist, the complaint is very much maintainable and even though they have partially objected to the Local Commissioner‟s report, all the deficiencies continue to persist and are clearly available.
16. The complainants have invited the attention of the Bench to the rejoinder filed on 25.08.2007 to substantiate their submissions.
17. Learned counsel for the opposite party no. 3, Municipal Corporation has invited the attention of the Bench to the written statement dated 02.03.2007 filed 19 | P a g e through diary no. 407 to urge that there is no deficiency on the part of the opposite party no. 3 and that the complaint deserves to be dismissed.
18. Having heard learned counsel for the parties, we may point out that the documents pertaining to the registration of society have already been brought on record and we find that the society is a registered society. Coming to the issue of the complainants being members of the said society, there is no dispute on the said count except that the complainant no. B, Mr. Vijay Ganpat Sagar is neither a member of the society nor has he come up in that capacity. He has joined the complaint as a voluntary consumer organisation to protect the interest of the flat buyers, even though the Housing Society does not seem to have formally authorised him to represent the case.
19. The issue with regard to his joining the complaint pales into insignificance, in as much as, the flat buyers who are the complainants are already on record. The issue raised by the opposite parties regarding the maintainability of the complaint need not detain us, in as much as, this complaint can be treated to be a joint complaint on behalf of those complainants, who have been arrayed herein. We are of the opinion that even if some of the complainants have sold their flats and are not pursuing this complaint, yet the complaint would be maintainable on behalf of those complainants, who still continue to join this complaint and consequently we do not find any defect in the framing of the complaint on behalf of few of the complainants. This complaint may therefore not be in strict compliance of Section 12 (1) (c) of the Consumer Protection Act, 1986 as a class action, yet it can be treated as a joint complaint under Section 12 (1) (b) of the Act.
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20. The second aspect is regarding the allegation of individual affidavits having not been filed by the complainants in support of their respective grievances. We find that there is an affidavit jointly filed at page 171 of the paperbook which is on record. The evidence by way of affidavit has been filed by Mr. V. M. Patil of the Housing Society. In such circumstances it cannot be said that the complaint is not supported by the valid affidavit. The affidavit dated 25.01.2005 (at page 171 of the complaint) is on record and has been signed by 11 of the complainants along with Mr. Vijay Ganpat Sagar, the complainant no. B. Thus, the contention on behalf of the opposite parties that the complaint is not supported by a proper affidavit does not hold water. Even otherwise a complaint filed way back in 2005, two decades ago, is in a summary jurisdiction and cannot be now thrown out on technicalities.
21. We may point out that it is true that the provisions of the Consumer Protection Act, 1986 provide that a complaint has to be supported by an affidavit and evidence has to be received on affidavit as per Section 13 (4) (3) of the Act. The procedure provided however is summary in nature and therefore the arguments raised on behalf of the opposite parties relating to any defect on that score does not deserve to be entertained as substantial compliance of the provisions seem to have been made. The evidence affidavits have also been filed on behalf of the complainants. In the given circumstances there is no occasion to non-suit the complaint either on the ground of maintainability or on the ground of any defect in the form or contents of its affidavit.
22. We therefore treat this complaint to be a joint complaint on behalf of the complainants who have pursued this complaint and we also find no reason to 21 | P a g e reject the complaint on the ground of any formal defect as urged on behalf of the opposite parties.
23. Proceeding with the case and the contentions raised, it would be appropriate to mention the fact that on the one hand this Commission had rejected the application for appointment of a Local Commissioner on 14.03.2016 and on the other hand shortly thereafter passed an order on 30.03.2016 for appointment of the Local Commissioner which order has already been extracted hereinabove. Parties have taken objection to the said report of the Local Commissioner, which deserves to be extracted. The report dated 07.06.2016 is gainfully reproduced herein under:
22 | P a g e 23 | P a g e 24 | P a g e 25 | P a g e 26 | P a g e 27 | P a g e 28 | P a g e 29 | P a g e 30 | P a g e 31 | P a g e 32 | P a g e 33 | P a g e 34 | P a g e 35 | P a g e 36 | P a g e 37 | P a g e 38 | P a g e 39 | P a g e 40 | P a g e 41 | P a g e 42 | P a g e 43 | P a g e 44 | P a g e 45 | P a g e
24. The complainants have filed objection to the report of the Local Commissioner vide diary no. 61802 on 22.11.2018, paragraph 8, 9 and 10 thereof are extracted herein under:
46 | P a g e "8. That The Ld. Local Commissioner while dealing under the heading "LESS BUILTUP AREA THAN PROMISED IN THE AGREEMENT" gave his findings thereby defining Carpet Area, Built-Up Area and Super Built-Up Area.
The Ld. Local Commissioner further gave misconceived findings qua the carpet area of the flat thereby including common areas up to the extent of 22%.
It is respectfully submitted that Commissioner has no authority to substitute himself in place of this Hon'ble Court and adjudicate upon a fact or issue upon which he was asked to assist the court by giving his fact-finding report.
9. Objection qua para 12 of the Report: NON COMPLIANCE EARTHQUAKE RESISTANT DESIGN OF STRUCTURE The Complainants herein partially dispute the report submitted by the Ld. LC as he has overlooked that most of the top slabs are leaking due to bad workmanship and due to this reason the builder himself has erected temporary shades.
10. That these findings of the Ld. Local Commissioner are highly perverse beyond his scope of investigation, also against the terms of the contract between the parties and Ld. LC has exceeds his powers and hence these findings are liable to be ignored and cognizance of the report be taken only on the factual matrix / finding of the report and the opinion expressed by the Ld. LC be ignored for the reason mentioned above."
25. The opposite party no. 1 has filed objections to the report of the Local Commissioner through their objections filed on 08.10.2019 through diary no. 54276. The said objections are extracted herein under:
47 | P a g e 48 | P a g e 49 | P a g e 50 | P a g e 51 | P a g e 52 | P a g e 53 | P a g e 54 | P a g e 55 | P a g e 56 | P a g e
26. In support of the said objections certain documents were filed by the opposite party no. 1 through IA/1047/2019, which was accompanied by recordable DVDs and photographs, as well as the opinion of the Consultant dated 07.12.2018 and the letter of the Architect, the opposite party no. 2, Mr. Vikas Achalkar dated 07.12.2018, who had also filed his affidavit. The contents of IA/1047/2019 are extracted herein under:
"1. That the present consumer complaint bearing CC No. 33 of 2005 was filed by the Complainants under Consumer Protection Act, 1986 against the above named Opposite Parties which is pending adjudication before this Hon'ble Commission.
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2. That the Hon'ble Commission vide its order dated 19.12.2018 granted four weeks to the Opposite Party No. 1 to place on record certain documents in support of their objections dated 08.10.2018, filed by the Opposite Party No. 1 against the Local Commissioner's report dated 07.06.2016.
3. That the following documents are therefore being filed in the interest of justice:
a) Electronic Evidence in form of two CDs which contain a video recording and the photos showing the illegal constructions of structures which are neither structurally nor architecturally stable, at the site of said project "Planet Millennium". The said CDs are attached herewith and marked as "Annexure A",
b) Photographs (Coloured) of the said project clearly exhibiting the illegal and unauthorized constructions at the site of the said project. The said photographs have been attached herewith and marked as "Annexure B (Colly)".
c) Letter dated 07.12.2018 of the structural consultant of the said project, namely; Hansal Parekh and Associates, stating that the illegal and unauthorised constructions are both, architecturally and structurally unstable, and may collapse, even due to mild seismic movements or heavy rains and gusty winds. The said letter of the structural consultant has been marked herewith and attached as "Annexure C".
d) Letter of the Opposite Party No. 2 dated 07.12.2018, stating that the temporary constructions are not in compliance with the sanctioned and approved layout plan and are prone to accidents due to 58 | P a g e them being structurally unstable. The said letter of the architect has been attached herewith and marked as "Annexure D".
4. That in case the present application is not allowed, it would cause grave injustice to the Opposite Party 1.
PRAYER In view of the above facts and circumstances, it is therefore humbly prayed before this Hon'ble Commission to:
a) Allow the Opposite Party No. 1 to place on record the abovementioned documents before this Hon'ble Commission: and
b) Pass any other order as this Hon'ble Commission may deem fit in the interest of justice, equity and good conscience."
27. It may be pointed out that Mr. Gaggar apart from these objections has also pointed out to the order of this Commission dated 30.03.2016, whereby the Local Commissioner was appointed recording that the request of the complainants, that the entire building should be inspected, was rejected. Mr. Gaggar therefore pointed out that the inspection was only in respect of the flats of those complainants, who were pursuing the complaint, but the Local Commissioner has travelled beyond the terms of reference and has proceeded to render opinion and adjudicate upon the issues raised by the complainants.
28. In order to examine the correctness or the status of the report tendered by the Local Commissioner dated 07.06.2016 it would be apt to reiterate that the application IA/2918/2014 requesting for appointing a Local Commissioner was dismissed on 14.03.2016. We do not know as to what prompted the 59 | P a g e appointment of a Local Commissioner once again but the fact remains that orders were passed afresh on 30.03.2016 that has also been extracted hereinabove. As noted above, the application had been rejected on the ground that there would be no use for appointing a Local Commissioner after 10 years but at the same time fresh arguments were entertained and on 30.03.2016 one Mr. V.K. Gossain, retired Superintendent Civil Engineer of the Delhi Development Authority was appointed to carry out an inspection and submit his report on 14 issues enlisted in the order dated 30.03.2016. However, the report as directed was confined only to 14 complainants and not for all the occupants. Further the complainants‟ request for inspection of the entire building was specifically rejected. It is therefore evident that this Commission did not permit any inspection of any other flats because the other flat owners were not parties to the case.
29. We may point out that we have already held hereinabove that this is not a class action under Section 12 (1) (c) of the 1986 Act and the complaint is only a joint complaint on behalf of the surviving complainants. However, the items that have been enlisted in the order dated 30.03.2016 refer to some common amenities and common interests relating to the entire project.
30. The report has also been extracted hereinabove and the inspection was carried out in the presence of some of the complainants including the present ones. It was carried out in the absence of the Architect. It specifies that measurements were taken only of 6 flats. However, documents were demanded by the Local Commissioner from the Architect regarding the original approved layout plan and other drawings that have been referred to 60 | P a g e at internal page 3 & 4 of the said report. The Local Commissioner has indicated that during his second visit most of the details were not provided by the Architect but he did provide the 11 informations referred to at internal page 5 of the report.
31. Under the order dated 30.03.2016, the Local Commissioner was also required to report as to how many owners have sold their premises. This fact has been categorically recorded by the Local Commissioner that 3 persons out of the 14 complainants, namely allottees of flat No.A-2/304, A-4/103 & A-7/106 have sold their premises.
32. He has categorically recorded that as regards unauthorized constructions, it was found that some of the owners have covered their open terraces by erecting temporary sheds but he has observed that these temporary coverings do not have any structural effect.
33. He has then observed that the balconies of all the flats are covered and made part of the room to which the balconies are attached. He has further observed that covering of such balconies is permissible and is stated that it was done by the developer at the time of construction itself as indicated in the revised approval.
34. He has then given details of his observations itemwise. Regarding delay of possession, it is stated that the delay varies between 1- 6 months in some cases and in some others, possession was given prior to the date agreed in the agreement. He has therefore justified the demand of delay compensation. Taking up the issue of less built up area having been delivered as against 61 | P a g e promised in the agreement, he records that the dimensions and areas as per the plan attached in the agreement are the same at the site. He has however observed that as a layman the individual purchaser would have understood that the purchaser should be provided the built up area mentioned in the agreement. For this, it has been observed, that had the builder while drawing the agreement bifurcated the total built up area into carpet area and proportionate common area, the confusion could have been avoided. However, he has categorically recorded that the demand of compensation for less area by the complainants is not justified. It has been observed that the issue of levy of tax on the actual flat areas may be directed to be dealt with by the Municipal Corporation.
35. The firefighting system was observed by the Local Commissioner to be not working when the inspections were made in 2016.
36. He has then observed that there was only one common underground reservoir and one overhead water tank for the entire society. The overhead tank supplies water by gravity for drinking and domestic purposes into each flat. According to him, the technical requirement is that there should be a static water storage overhead tank exclusively for firefighting requirement but no such separate provision has been made. He has however observed even though overhead tanks have been constructed on the terrace of 4 buildings "building A-1 to A-4"
but there is no arrangement for filling these overhead tanks.
37. The report notices the stand taken by the developer that automatic sensor system for water being pumped automatically to the overhead tanks was 62 | P a g e provided in working order when the system was handed over to the society in 2003 and therefore the developer had intimated that it was the duty of the society to maintain it. He further noted that the fire hydrants were open but none of them had water and therefore the building was requested to rectify the firefighting system immediately to which the builder agreed.
38. It is also noted that the President of the Society had not permitted the builder to carry out the work due to shortage of water for drinking and domestic work. He has further noted on discussion that when the builder was ready to rectify the same without any cost, the Society should not object, but later on upon insistence, the society agreed to allow the rectification of the complete firefighting system. It was also observed that the Commission may direct the Firefighting Department to inspect the site again for any steps to be taken up by the developer, even though the fire department had issued a No Objection Certificate say back 24.02.2003.
39. Regarding insufficient and inadequate drinking water, the Local Commissioner observed that there was one common underground reservoir of the capacity of 6,50,000 Lts. and one overhead tank of 5,00,000 Lts. for the use of 1616 flats in the entire society. He has also observed that though 4 overhead tanks had been constructed but they were not in use as there was no arrangement for filling up these tanks.
40. He has then observed that as per the original approved plan, one underground tank and one overhead tank for each of the 16 building and row houses was 63 | P a g e planned. Only one underground tank reservoir existed and only 4 overhead tanks were constructed.
41. The Executive Engineer, Water Supply Department had issued two certificates for two underground tanks and two overhead tanks. Another certificate was issued for one underground tank and one overhead tank the capacity whereof has been mentioned therein in order to cater to the buildings A-5 to A-16 and row houses from 1-16 and then 17-40. In spite of this sanction there is only one underground reservoir and one overhead water tank in use for all purposes including amenities to which the reply of the developer was noted that since the existing operational water tanks were sufficient for the entire society as per rules, and since the Additional Commissioner of the Municipal Corporation in his written statement had stated that the capacity of the said tanks is sufficient, nothing further was required to be done. As on the date of inspection there was acute shortage of water and water was being procured through tankers. The society had incurred expenditure for obtaining a second connection from the Corporation laying of water lines, boring of tube well and purchasing water through tankers. Thus, the complainants were demanding compensation for short supply and the expenditure so incurred for making arrangements for supply of water.
42. Concluding, the Local Commissioner has stated that it appears that the Executive Engineer gave the certificates probably on wrong intimation given by the Builder and the Architect without verifying at site. He has however observed that considering the requirement of water @ 135 Ltrs. per head per 64 | P a g e day with an average of 5 persons per flat, the capacity of the underground reservoir of 6,50,000 Ltrs and the overhead tank of 4,55,000 Ltrs. was sufficient for the society. He however observed that due to large size of the society and spread over, water distribution to individual flats in 16 buildings through one tank and to flats at the upper floor was not uniform since extra water was being consumed by the ground floor allottees due to high pressure.
43. Coming to the issue of insufficient parking and illegal sale of side margins, it was observed that the parking space was being provided as per sanctioned plan and was actually provided and available for 244 cars. There was no dispute with regard to the parking of scooters or cycles but no space was available for additional car parking.
44. For this an observation has been made that areas have been utilized for gardens that has been sold to the owners of the ground floor thereby resulting in reduction of parking space and further there is no emergency access for movement of vehicles such as during a fire. It has been observed that the Municipal Corporation and the Fire Department do not seem to have objected to this while granting the NOC and occupancy certificate. The parking has been sold only to those owners who have opted for the same. He has therefore raised a question regarding the sale of parking space by the builder.
45. Regarding the provision of septic tanks the builder did not provide individual septic tanks and rather constructed one sewage treatment plant for the entire society as approved by the Municipal Corporation. The grievance of the complainants was that the builder by this deviation saved money and 65 | P a g e additionally burdened the society for running and maintaining the STP. The allegation was that the maintenance cost of septic tanks is simple whereas that of an STP is extremely high. It is also alleged that there is a lot of foul smell near the building where the STP has been installed in a side lane and even otherwise the movement of fire tenders around the building stands blocked.
46. The Local Commissioner however observed that even though there was a plan to construct a septic tank for each building but it was more beneficial to have an STP which does consume electricity and an additional burden of permanently operating it and maintaining it. It was also observed that the STP was not operational since the society had connected its drainage with the corporation sewage without obtaining any approval from the department and therefore it was suggested that the builder may obtain an approval from the drainage department for allowing direct connection and the existing STP be demolished.
47. He has then commented upon the convenience shopping centre that has 13 shops at the ground floor. The grievance of the complainants was that the builder has sold all the shops to one person or his relatives as a result they are not opening the shops as per the actual requirement of the residents and there were only 4 shops that were functioning. The other shops were either closed or the business had not commenced in those shops. He has also indicated that the types of shops which are permissible have been mentioned in the DC Rules of the Municipal Corporation.
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48. Regarding storm water drainage it has been observed that the rain water from the terraces are not connected to the storm water drainage system and the water is left open near the ground level causing stagnation as such this deserves to be connected with the drainage system through a pipe to avoid any mosquito breeding or any unhygienic condition.
49. He has then commented that there were 6 amenities as promised in the brochure which are not available and the other amenities including the size of the swimming pool and other items was inadequate keeping in view the number of persons residing in the society.
50. He has then commented upon maintenance charges stating that if the developer has collected any additional charge, the same needs to be remitted to the society.
51. Reference has then be made to the transfer of development rights in respect of construction of a new internal road. After noting the observations he has stated that the Commission can issue directions to the Municipal Corporation for declaring this road as an internal road. The objection of the builder has also been noted by him.
52. He has also commented regarding the earthquake resistance design where he has referred to the Structural Engineer‟s report but at the same time has also referred to the extra constructions and extra load which might lead to collapse of part of the structure.
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53. Regarding an amenity space at the entrance it is pointed out that the same has been utilized by the developer for a school and therefore the said area should be taken back so as to develop the entrance gate of the project. The school is causing obstructions as all those visiting the school are parking their vehicles in the society area and therefore the society has closed the entry by constructing a wall.
54. He has concluded his report by commenting on the fact that the transfer of conveyance deed to the society has not been done by the builder. This fact does not seem to be disputed even as on date.
55. Objections have been filed by the complainants only on two issues on the report of the Local Commissioner namely the less built up area and non- compliance of earthquake resistance by urging that misconceived findings have been given and part of it is also perverse and against the terms of reference and therefore the same should be ignored.
56. On the other hand the opposite party has filed objections parawise refuting the report item-wise that have already been observed herein above. Certain documents have also been filed by the opposite parties in support of the objections through IA/1047 including 2 CDs and photographs as well as the report of the Structural Consultant dated 07.12.2018. We therefore now proceed to consider the said objections to the report of the Local Commissioner.
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57. The contentions raised through the objections filed on 08.10.2018 and as also advanced in the submissions by Mr. Gaggar are that the Local Commissioner has exceeded his authority in terms of the order under which he was called upon to give his report. The contention is that the report is incomplete, insufficient, biased and misleading without objectively assessing the allegations, which according to the learned counsel are repetitions of the version of the complainants. It is therefore urged that the report deserves to be rejected outright.
58. On merits it is submitted that the delay in possession was due to the default on the part of the purchasers by not making timely payments of installments, even though possession was handed over to the complainants. The complainants have not filed any document indicating any quantification or its basis to compute the losses. The Commission has nowhere indicated this but primarily the delay is only between 1 - 6 months which cannot be a ground to claim delay compensation as it is not only negligible but is also not justiciable in the background of the default of the complainants.
59. Coming to the allegation of less built up area, it has been urged that the Local Commissioner has incorrectly indicated his opinion without there being any cogent calculation to support the conclusion. Nonetheless, the Commissioner has arrived at the conclusion that the claim by the complainants is not justified and accordingly the complainants cannot get any benefit of the report on this count. It is for this reason that the complainants in their objections have raised objection to the Commissioner‟s report which are misconceived and without 69 | P a g e any basis. It has been urged that 22% of the carpet area is allowed to be loaded.
60. Coming to the issue of firefighting equipments, the submission is that the entire firefighting system in working condition had been handed over to the society in the year 2003 whereas the Commissioner has made an inspection 13 years thereafter in 2016. In spite of this a bonafide attempt had been made to help the society in getting it rectified but the same was resisted which fact has also been noted by the Local Commissioner. Thus, no deficiency on this count can be inferred against the opposite party and any lack of maintenance by the society for 13 years cannot be imposed as a deficiency once it had been handed over with all equipments wayback in 2003. Apart from this, openings have been provided for the elevated water tank as well as in the side wall for providing appropriate functioning fire hydrants. Over and above this, the firefighting system had been handed over with a clear No Objection Certificate from the Fire Brigade Department which aspect has been completely overlooked as such the contention raised behalf of the complainants is neither bonafide nor genuine. In the absence of any evidence of incompleteness in the firefighting system at the time when it was handed over in the year 2003, the contention raised by the complainants on the strength of the report of the Local Commissioner is untenable. The details with regard to the equipment of fire hydrant installation issued by M/s Jayesh Fire Engineers as suggested by the Fire Brigade Department has also not been taken into account. If the firefighting system was not working during inspection for 2016, this was 11 years after filing of the complaint.
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61. While responding to the insufficiency of the water requirements it has been stated by the opposite party that they have provided with adequate water storage and supply facilities which is sufficient as per the standards and is adequate keeping in view the need of the society. The shortage in water supply is on account of low supply by the Municipal Corporation which provides water only for 2 hrs. in the morning and 2 hrs. in the evening. The insufficiency is therefore on account of the aforesaid shortage but so far as the capacity is concerned the same fulfills the needs of the society. It is alleged in the objections that the opposite party No.1 had never promised to provide separate overhead water tanks for all 16 towers or underground tanks as demanded. The claim of 16 overhead water tanks is not commensurate to the need and even otherwise it will be highly expensive for the society to maintain it with 32 pumps to be installed in all the 16 towers and therefore the construction pattern was developed keeping in mind the requirement of the allottees as well as the effectiveness of the system. The Local Commissioner failed to take into account all these aspects.
62. The objections raised also indicate that the shortage of water was observed on account of extra water being consumed at the ground floor level by the allottees. It has also been pointed out that Local Commissioner has found the parking facilities to be sufficiently available and that there was no space for additional car parking. It is therefore submitted that there is no shortage or deficiency on this count.
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63. It is also urged that there is no obstruction for the movement of vehicles nor was there any reduction in the parking space. The No Objection Certificate by the Municipal Corporation and the Fire Department has already been granted.
64. Regarding septic tanks, it has been urged that the OP had installed an STP and if the Society failed to utilise the same, the same cannot be a deficiency alleged against the OP inspite of having made the most modern equipment available. On this ground, the Local Commissioner has indicated that the STP was a more beneficial facility, but the Society failed to take advantage of it. Nonetheless, the Society itself has obtained a direct connection from the Drainage Department of the Municipal Corporation and as such, this cannot be alleged as an alleged deficiency.
65. Pointing out towards the shopping centre facility, it is urged that the persons to whom the shops had been sold, if they had failed to utilise the same, it is open to the Society to take appropriate steps in this regard, but this cannot be a deficiency against the OP if the shopkeepers had failed to utilise the same. The spread of the storm water drainage is not on account of any deficiency and the allegations are incorrect. As such the conclusion of the Local Commissioner does not stand to reason.
66. Having considered all the submissions raised regarding the report of the Local Commissioner, we do find that the Local Commissioner has commented upon by referring to his own opinion in respect of some of the allegations regarding deficiency for which he was called upon by this Commission to give his report. We therefore find that there are some repetitions of the versions of the complainants.
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67. On the issue of delay in possession, the complainants have displayed a chart as "Table no. 1" to the complaint. In the said chart, they have calculated the delay in possession which is based on the fact that the lay out plant was approved on 09.11.2000 and 15.11.2000 by the Municipal Corporation. As per the agreement, the flats were supposed to be delivered on 31.03.2002 or by 01.04.2002. The completion certificate was obtained on 22.11.2002 and 31.03.2003. Some of the flat owners took possession even before the issuance of the completion certificate, but even that was delayed, which is evident from the chart appended as Table no. 1. It is the case of the OPs that at least three of the complainants had sold their flats to third parties. Still there are 11 of the complainants, who along with the other three had received the delayed possession as per the chart appended along with the complaint. The defence taken was that there is only a delay of 1 to 6 months and even the Local Commissioner has indicated that there was no substantial delay, but the fact remains that the possession was delayed between 1 to 6 months respectively in giving possession to the complainants. The issue of delay compensation has been dealt with in detail by the Apex Court in the case of Wing Commander Arifur Rehman Khan & Ors. vs. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC 512, paragraphs 20 to 37.5, where the delay was between a period of two years to four years. Nonetheless, delay has occurred and consequently applying the ratio of the said decision of the Apex Court, 11 of the complainants are entitled to delay compensation other than those 3 who have already sold their flats. They shall be entitled to delay compensation for the respective periods as indicated in Table no. 1 of the complaint, but the rate 73 | P a g e of interest on the total amount paid at the time of possession shall be calculated at 6% for the period of delay only. The calculated amount would become payable on the date of the filing of the complaint i.e. 08.04.2005. In addition thereto, the total amount so calculated shall further carry 6% interest from the date of the filing of the complaint till the date of actual payment under the orders of this Commission within a period of three months.
68. Coming to the issue of less area, the complainants in their objection have also raised this issue alleging that the report of the Local Commissioner is incorrect. From the report of the Local Commissioner, we find his observations to be justified to that extent that the bifurcation of the total built-up area x carpet area in the agreement and the proportionate common area did create a confusion, but this did not justify any demand for compensation. We entirely agree to that extent and we do not find any deficiency with regard to the reduction of area.
69. Coming to the third issue regarding the Fire Fighting system, the OP has brought on record its version that the Fire Fighting Department had issued its certificate and the Municipal Corporation had also not taken any objection in this regard. It is correct that the Local Commissioner was appointed almost 13 years after the possession and 11 years of the filing of the complaint and it is then that the Fire Fighting system was observed to be not working. The Fire Fighting system had been handed over to the Society long back. There is no evident to indicate that the Fire Fighting system was deficient right from inception. Apart from this as is evident from the narration in the Local Commissioner‟s report, even though the OP Builder had no obligation to 74 | P a g e continue the Fire Fighting system or provide any further assistance, yet during the said inspections, it has been noted by the Local Commissioner that the Builder had offered to get the system rectified at its own cost, but it was the Society which refused to allow the same. We therefore do not find the deficiency on the part of the Builder on this score as well.
70. Coming to the issue of parking space, we find that the grievance is regarding the additional parking area whereas the Local Commissioner has found the parking area to be sufficient with space for 244 vehicles as well as two wheelers and bicycles. This does not seem to be a deficiency to be established on the basis of the evidence on record.
71. Coming to the issue of the provision of septic tanks, it is evident that the sewage treatment plant was set up by the Builder in order to provide safe and hygienic provisions for sewerage instead of providing separate septic tanks. It seems to be correct that the plan did provide for separate septic tanks and the Builder, on its own, proceeded to provide an STP facility, which ultimately could not be run by the Society or maintained by it. The contention is that the same was a costly affair and therefore the Society on its own proceeded to get the sewer line connected with the sewerage line of the Municipal Corporation. In our considered opinion, this was a deviation by the Builder and therefore if the Society has got the drainage connected with the Corporation sewage, the same deserves to be regularised by obtaining an approval from the Department. We therefore find this to be a deficiency on the part of the Builder, who failed to provide the requisite facility as promised of a separate septic tanks and consequently, the OP Builder will be obliged to undertake this exercise for 75 | P a g e obtaining the approval from the Department. The claim of the complainants is for compensation of Rs. 1,12,50,000/- for not constructing the septic tanks and the basis of this calculation is a sum of Rs. 2,25,000/- per annum for 50 years being the operational cost of the STP plant. This compensation claimed does not seem to be in tune with the nature of the facility, but the fact remains that the builder set up an STP plant, but having failed to operate the same successfully, the Society itself has got the drainage system connected with that of the Corporation drainage system. It has been done without permission. Accordingly, as indicated above, the Builder shall be obliged to get the permission regularise and expenses to be borne on this count shall be the responsibility of the Builder for which appropriate steps will be taken within three months.
72. The issue of convenience shopping centre being not run appropriately after the allotment is within the management of the Society. If the convenience shopping centre is not functioning as per the need of the Society and promised by the Builder which is also evident from the perusal of the evidence, the Society will be at liberty to take appropriate steps for allocation of the shops in order to provide respective amenities as is desirable. Regarding the convenience shopping centre, the rules of the Municipal Corporation provide for 23 shopping activities as detailed below:
a) Food grain shops (Rashan Shop and Groceries and General Provisions)
b) Pan Shops
c) Tobacoconsit
d) Shops for collection and distribution of closthes for cleaning and dyeing.
e) Darner
f) Tailors 76 | P a g e
g) Hair dressing sallon and Beauty Parlour
h) By cycle hire and repair
i) Vegetable and fruits stalls
j) Milk shop
k) Floweriest
l) Bangles and other articles needed by women
m) Small bakeries
n) Newspaper stalls
o) Book and stationary etc.
p) Medicine and chemist shop
q) Plumbers, electrician, radio, television and video equipments repair shops and video library
r) Floor mills upto 10 HP.
s) Sports shops
t) Personal services establishments, travel agencies etc u) Gold Smiths, photo studio, optician, watches shop
v) PCOS, STDs other equipment based communication facilities w) Tea Shops
73. The Local Commissioner, in his report, found that one beauty parlour, a laundry, a digitech automation and a telephone exchange was functioning. Apart from this no other shop was functioning in spite of the fact that there are 13 shops in existence at the ground floor. According to the Builder, all the shops were sold without specifying the specific use of the shops and they have been settled. With the passage of time, the shops either may have exchanged hands or may not be functioning. In such circumstances, since there are rules governing the same, the Society as indicated above will itself take steps and appropriate measures as per the specifications of the OP-3 Municipal Corporation for the allotment and running of the convenience shopping centre under the rules of the Municipal Corporation. It may be pointed out that the rules of the Municipal Corporation also include essential services like a medical / chemist shop, a cycle / motorcycle repair shop, book and stationary shop, 77 | P a g e grocery, a photo studio and some other services like a watch / mobile repairer etc. Thus, essentials have to be provided and shopkeepers except for the said purposes after making entry should not be ordinarily permitted to convert their business which may not be in tune with the requirement of the Society. We therefore permit the Society to take such steps after bringing it to the notice of the Municipal Corporation for necessary arrangements as per the rules.
74. The storm water system has to be connected appropriately and the fact that the water is spreading after its discharge has therefore to be rectified. This deficiency also deserves to be made good by the Builder. The same shall be done by laying down any pipeline or any such other arrangements that may be necessary to drain out the water and prevent stagnation. This arrangement shall also be carried out by the OP-1 within a period of three months or in the alternative pay a sum of Rs. 5 lakhs to the Society in lieu of the same.
75. Regarding insufficient and inadequate supply of drinking water, it is evident that all flat buyers have installed additional water tanks. The plan did indicate separate reservoirs for all the 16 buildings. The Builder has come up with the plea that the existing provisions of the underground water reservoir and the overhead tanks is sufficient for the requirement of the inhabitants of the flat owners in the Society and for that the Executive Engineer‟s report has been relied on. The Local Commissioner, in his report, has indicated the grievance of shortage of supply of water and the same has been supplemented by the installation of additional tanks by the flat buyers. We find that this additional burden is on account of the shortage of the overhead tanks and underground reservoirs as promised in the original plan. The shortage in supply may be also 78 | P a g e on account of an extra discharge of the water at the ground level, but the fact remains that the provisions as promised by the Builder has to be constructed even if the supply of water is alleged to be sufficient for the occupiers of the Society. The absence of the construction of the reservoirs underground and the overhead tanks as per the plan is therefore a deficiency on the part of the Builder, who ought to have made the provisions leaving it to the Society to utilise the same in the manner as the residents chose to have them utilized. The Builder is therefore deficient on this count as well. In this regard, it will be appropriate to point out that with regard to the construction of reservoirs, two certificates had been issued by the Executive Engineer of the Water Supply Department of the Municipal Corporation. The first certificate dated 31.10.2002 was regarding the completion and construction of one underground tank and one overhead water tank for the buildings A1 to A4 and the row houses 1 to
16. Later on, another certificate dated 27.01.2003 was issued with regard to the completion of a construction of another underground tank and one overhead tank for the buildings A5 to A16 and row houses 17 to 40, club house and other amenities. The complainant had clearly stated that this was an absolutely incorrect depiction and the Local Commissioner found that four overhead water tanks had been constructed over building no. A1 to A4, but only one was being utilised. The report further indicates that one underground reservoir had been constructed which the Builder alleges was sufficient to provide water to the entire occupants consisting of 616 flats in the 16 buildings and the row houses from 1 to 40. On further investigation, it was found that the second certificate given by the Executive Engineer on 27.01.2003 in respect 79 | P a g e of the facilities for buildings A5 to A16 and row houses 17 to 40 was based on incorrect information. In sum and substance, only one underground reservoir was working with one overhead tank and the certificate issued in 2003 was based on an incorrect intimation given by the Contractor.
76. We find this to be something which requires to be probed into by the Municipal Corporation itself. We therefore direct the OP-3 Municipal Corporation to inspect the premises through the competent officer of the Water Supply Department to locate the number of overhead tanks and underground reservoirs as well as the sanctioned map for the said purpose. We find that the issue is not of an adequacy of the storage capacity area, but the issue is regarding the facilities promised, and sanctioned by the authorities which do not seem to be in existence. This has led to the installation of private tanks which the Builder is contending to be an unauthorised construction. On the one hand, the number of water tanks as promised and sanctioned does not seem to be existing and on the other hand, a complaint is being made about additional storage facility being installed by the complainants that has been termed as encroachments. We cannot appreciate these arguments, in as much as, the first thing is that if there is a provision for a separate underground reservoir and overhead tank for the building, then the builder was obliged to carry out the constructions. The issue of any supply of water by the Municipal Corporation or any extra need is obvious if the flat buyers have installed additional tanks at their own costs for storing water supply. The Municipal Corporation may have a regulated water supply, but at the same time, the Builder cannot take any advantage of any regulated supply of the Municipal 80 | P a g e Corporation and not provide the reservoirs and the overhead tanks as designed. The reservoir and the overhead tanks may not run to their full capacity all the time, but the fact is regarding their existence and not mere operation. The very existence of additional arrangements having been made by the complainants is itself indicative of the fact that there is shortage of water supply. Consequently, as held above, the OP Builder has been deficient on this count.
77. To rectify this, we direct that the OP-3 Municipal Corporation will conduct an inspection and verify as to whether the tanks and reservoirs as envisaged under the plan, have been installed or not. The OPs - 1 & 2 Builder will be obliged to carry out the construction of any such water tanks which are needed for the purpose of maintaining a continuous water supply to the residents of the Society. This may be also carried out by the Municipal Corporation within three months and appropriate directions may be issued. In the event of any failure on the part of the Builder and the OP-2 to ensure the said shortage and deficiency, the OP-1 Builder shall compensate the complainants by making a lump-sum payment of Rs. 15 lakhs and the said amount shall become payable with 6% interest from the date of the complaint till the date of actual payment in the event of default as indicated above.
78. There is an allegation of illegal transfer of development rights in respect of the roads, the same has not been established and therefore this allegation does not amount to be a deficiency as the road has been provided in accordance with law and is no in transfer as alleged.
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79. The allegation of non-compliance of an earthquake resistance design defect has also not been made out on the basis of any cogent and convincing evidence and is also therefore not a deficiency.
80. With regard to the absence of amenities, the brochure as filed on record also provides for a club house along with a swimming pool. One of the major contentions is regarding the absence of the club house and that the size of the swimming pool is less than what had been promised. The landscape garden is also not in accordance with the expectation of the complainants and the skating and jogging track as mentioned in the brochure has also not been provided. This absence of the club house has not been rectified and there does not seem to be anything to indicate that this facility has been provided as per the sanctioned plan, however the Builder has disputed this proposition and we therefore direct the OP-3 to survey the same and to instruct the OP-1 Builder accordingly.
81. The allegation of the amenity space at the entrance of the project having been allotted to the School has been questioned by the Builder contending that the Municipal Corporation in its letter has indicated that the said area could have been utilised for development and be also sold. This has not been looked into by the Local Commissioner. We therefore direct the OP-3 the Municipal Corporation to examine as to whether the sale of the land to the School is in accordance with any sanction or approval and to accordingly take steps in this regard within the same period.
82. We find that the conveyance deed was not executed and the complainants had to approach the competent authority under MOFA, 1963 for deemed 82 | P a g e conveyance deed. This is a clear deficiency on the part of the OP, who has resisted the Execution of the conveyance deed for no valid reasons for all these years. This deficiency is therefore clearly established. The execution of the conveyance deed was withheld without there being any default on the part of the complainants. Non-execution of the said deed has therefore prejudiced the complainants and therefore we direct that all other formalities that may be required for execution of any documents for perfecting the ownership of the flat buyers and making them capable to be transferrable properties free from all encumbrances shall also be executed within three months.
83. The complaint is therefore accordingly allowed partly to the aforesaid extent with the directions as mentioned above for making the payments to the complainants together with interest as to be calculated in terms of the said directions. The facilities, which are deficit and have been indicated above, shall also be provided in terms of the directions above within the time period prescribed.
84. The interim application I.A. No. 10874/2025 has been filed praying for waiver of costs imposed. The said application is allowed and the costs imposed on 11.03.2025 is waived.
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(A.P. SAHI, J) PRESIDENT ............................................. (BHARATKUMAR PANDYA) MEMBER Brahm/Raj/Pramod/VM/Court-1/CAV 83 | P a g e