State Consumer Disputes Redressal Commission
Arunima Palace Residents Welfare ... vs M/S Tarunika Gaur Housing & ... on 10 December, 2025
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
JUDGMENT PRONOUNCED ON: 10/12/2025
CONSUMER CASE NO. 287 OF 2013
Arunima Palace Residents Welfare Association (Regd.), Through its Secretary, Shri
H. L. Bhandari, Plot No. GH-4, Sector-4, Vasundhara, Ghaziabad
......... Complainant
Versus
1. M/s Tarunika Gaur Housing & Constructions Ltd., Ground Floor, Block -A,
Arunima Palace, Plot No. GH-4, Sector-4, Vasundhara, Ghaziabad, U.P.
2. M/s. Tarunika Gaur Housing Construction Ltd., Flat No. A-409, Block-A,
Arunima Palace, Plot No. GH-4, Sector-4, Vasundhara, Ghaziabad, U.P.
.......... Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE A.P SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
For the Complainant Mr. Sunil Kumar, Advocate
For the Opposite Party Mr. Karunesh Tandon, Advocate
Mr. Abhishek Singh, Advocate
Mr. Atul Kumar Singh, Advocate
JUDGEMENT
PER HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
1. Heard Mr. Sunil Kumar, Advocate for the Complainant and Mr. Karunesh Tandon, Advocate, for Opposite Parties. The present consumer complaint arises out of alleged deficiency in service and unfair trade practices committed by M/s Tarunika Gaur Housing & Construction Ltd. (hereinafter "OP") in connection with the housing project Arunima Palace, situated at Plot No. GH-4, Sector-4, Vasundhara, Ghaziabad, U.P. The complainant, Arunima Palace Residents Welfare Association is a society registered under the Societies Registration Act, 1881, for safeguarding the interests of its members who are the residents and allottees of flats in the said project. Complainant has approximately 180 members, all of whom purchased flats in the project. Shri H.L. Bhandari, the Secretary of the Complainant Society, has been duly authorized under its bye-laws as well as through an Executive Body Resolution dated 10.08.2013 (Annexure P-1) to file this complaint. In 2007, OP builder widely advertised and launched the booking for its residential project, promising modern Page 1 of 32 amenities, recreational facilities, green open spaces, and a healthy living environment. During 2007-2008, the members of the Complainant-society, lured by the attractive brochure and layout plan, booked their flats under various payment plans. It was represented that the project would consist of well-developed infrastructure, including a community centre, swimming pool, poolside restaurant, guest houses, health club, library, sports facilities, jogging tracks, children's play area, and uninterrupted power and water supply. The OP got its layout plan sanctioned from U.P. Avas Vikas Parishad, and subsequently, on 25.02.2010, the compounded map was approved after payment of regularization charges. As per the sanctioned plan, the plot area measured 7,559.26 sq. mtrs. with an FAR of 1.5, and an additional 0.5 FAR was purchasable, bringing the total saleable area to 14,353.90 sq. mtrs. The building plan sanction as approved permitted construction of only 151 units, but the OP allegedly constructed 180 flats, thus breaching statutory norms. Despite handing over possession of flats during 2009-2010, OP failed to develop the promised amenities, did not complete statutory obligations such as obtaining completion certificate, and also engaged in unauthorized construction and encroachment on open areas, fire escape zones, and parking spaces.
2. Over the time, the residents and the complainant realized that the promises made in brochures and advertisements were not being fulfilled. The Complainant addressed multiple representations and grievances to the OP. A letter dated 21.12.2009 (Annexure P-6) was written to Mr. Sanjeev Gaur, the Managing Director of the OP, demanding completion of the community facilities. Similarly, a letter was sent to the District Magistrate, Ghaziabad, on 20.05.2011 (Annexure P-7), seeking intervention to ensure the completion of the pending works. In 2010, the residents formed the Arunima Palace Residents Welfare Association. On 06.08.2012, Complainant approached the Vice-Chairman of Ghaziabad Development Authority (GDA) under the U.P. Apartment Act, 2010, for enforcement of legal obligations of the OP. Consequently, on 21.11.2012, the Competent Authority directed the OP to hand over the community facilities, complete pending works, and submit a Deed of Declaration as per law. The authority also asked the Executive Engineer, Vasundhara Zone, U.P. Avas Vikas Parishad, to ensure the issuance of a completion certificate. However, OP failed to comply with these directions.
Page 2 of 322.1 Subsequently, a meeting was held between the Complainant and the OP on 10.12.2012, minutes were drawn up and signed by both parties (Annexure P-8).In this meeting, OP assured that necessary documents would be handed over and all pending facilities would be completed. A Memorandum of Understanding (MOU) dated 20.01.2013 (Annexure P-9) was executed between the parties, where OP builder committed to completing the pending works by 31.03.2013. However, despite repeated assurances, OP took no steps to complete the project or to fulfill its contractual and statutory obligations. Complainant was forced to engage one Jain & Associates, a Government-approved valuer, to assess the cost of the incomplete works. On 21.06.2013, the valuer estimated the cost of pending/incomplete works at Rs.4,67,10,000/-. Based on this valuation, a legal notice dated 29.07.2013 (Annexure P-11) was issued to the OP, demanding damages and compensation. OP neither replied to this notice nor undertook the completion of the works, demonstrating deliberate negligence and malafide conduct.
2.2 As pleaded in the complaint, OP failed to provide the promised community facilities such as a fully functional swimming pool, club house, sports courts, guest houses, jogging tracks, children's park, library, gym, fire safety measures, proper lighting, marble flooring in common areas, and adequate power backup despite having charged buyers for these amenities. Additionally, there are issues of safety and legality i.e. substandard lifts, exposed electrical cables, non-approval of basement and stilt constructions, and encroachment on common open spaces and fire-tender movement areas. OP's conduct amounts to clear deficiency in service and unfair trade practice under the Consumer Protection Act, 1986, as it has failed to provide what was promised and has caused immense mental agony, harassment, and financial loss to the residents. Complainant filed the present complaint on 09.09.2013 with the following prayer:
a) Direct the OP to pay a sum of Rs.4,67,10,000/- towards the cost of incomplete works and promised facilities, as assessed by the Government-approved valuer, which have already been included in the cost of the flats paid by the members of the Complainant;
b) Award Rs.50,00,000/- in aggregate as compensation for mental agony, harassment, and hardship suffered by about 180 members of the Complainant due to the negligence and unfair trade practices of the OP;
c) Award Rs.92,000/- towards legal costs and expenses of the proceedings.Page 3 of 32
3. OP Builder, M/s Tarunika Gaur Housing & Construction Ltd., filed their written statement on 15.07.2015, denying the allegations and challenging the maintainability of the consumer complaint on several grounds. At the outset, it is contended that the complaint is barred by limitation under Section 24A of the Consumer Protection Act, 1986, since the possession of flats in the "Arunima Palace"
project was handed over to the allottees during 2009 and 2010, and no defect or deficiency was pointed out at that time. It is alleged that the complainant society has been formed much later in 2011 and no privity of contract exists between the society and the OP. The builder emphasizes that none of the original buyers raised any grievances during the defect liability period of one year, and many residents are ready to affirm by affidavit that they were satisfied with the quality and delivery of the flats. OP further argues that the society is neither a "consumer" within the meaning of Section 2(1 )(d) of the Act nor does it have the legal locus standi to file this complaint because its registration and operations have been under dispute, with several complaints of fund misappropriation by its managing committee pending before the Deputy Registrar (Society & Chits), Meerut. According to the builder, the society has concealed these vital facts, and the present complaint is nothing but an attempt to extort money by misusing the consumer forum process.
3.1 OP builder also disputes the factual allegations of deficiency and non-provision of facilities. It denies constructing 180 flats and clarifies that the total number of constructed flats is 160, which is within the approved limit and as per approved plan. It claims that the complainant has selectively relied on promotional brochure, which were tentative in nature and not binding, as the binding terms are contained in the Allotment Letter and related agreements. The builder cites clauses from the Allotment Letter which, as per him, allowed modifications in layout plans, reserved the builder's rights over club, open spaces, and amenities, and clearly mentioned that drawings displayed were provisional and subject to changes by the builder or sanctioning authorities. It is asserted that community facilities of health club, swimming pool, silent DG sets, CCTV cameras, elevators (six in number from ECE brand), and landscaping were duly provided, but the complainant society, after taking over maintenance from 2011 failed to maintain these facilities, causing their present state. OP claims that the centralized RO plant was not part of the "standard"Page 4 of 32
flats, and, individual RO systems were already installed in "luxury" flats as promised, and all necessary civil and waterproofing works were also completed. OP-builder further states that it applied for the completion certificate immediately after project completion and as per applicable rules, the certificate is deemed granted if no objection is raised within two months. Thus, any allegation regarding absence of completion certificate is false and intended to mislead this Commission. 3.2 Additionally, OP denies the complainant's claim for compensation of Rs.467+50 lacs, terming it exorbitant, baseless, and unsupported by evidence, particularly when the complaint is filed after much delay after taking possession. It contends that no legal notice as alleged was served on them seeking any defect removal or completion of any incomplete work or for provisioning of any amenity promised but not provided. No cause of action has been shown in the complaint. It further alleges that only less than one third of the allottees are are members of the complainant society, executive committee members have engaged in misappropriation and mis-management and therefore the society does not represent the collective interests of all the allottees so as to represent them. OP maintains that it has delivered the project as per the agreed terms, and any deficiencies or disputes raised now are concocted to harass and extort money from the builder. OP prays for dismissal of the complaint with exemplary costs for being false, frivolous, time-barred, and devoid of any legal basis.
4. The complainant, through rejoinder filed on 22.08.2016, submits that the Association, being a registered RWA, under the U.P. Apartment Act, 2010, becomes legally entitled and authorised recipient and custodian of the common facilities giving it independent standing as consumer. Further, it is contended that possession of flats taken in 2009 and 2010 by the allottees does not extinguish the builder's obligation to provide amenities like the club, swimming pool, and community hall, as unambiguously promised in the brochure. The builder's plea that promises in brochure are, subject to the stipulations in the allotment letter, is in contrast and is defeated by Clause 5 of the MOU dated 20.01.2013, wherein the builder expressly undertook to supply all equipment (lifts, generators, fire-fighting systems, etc), upgrade any brochure-promised shortfalls within three months, and rectify wear and tear within 30 days. This fresh acknowledgment keeps obligations alive and negates Page 5 of 32 the plea of limitation and objection of absence of privity of contract, particularly so, when no statutorily required completion certificate exists, and, common facilities and amenities have not been provided in reasonably enjoyable state as planned and promised. The complainant further contends that the OP builder is guilty of concealing vital facts of (i) the DG set's capacity which is stated to be only 125 KVA, and therefore insufficient and perfunctory, (ii) the fact of funds collected for power backup, while its own facility chart in the reply reveals that essential infrastructure such as the Sewage Treatment Plant (STP) / water recycling system was "Not Provided," amounting to an admitted deficiency. The limitation plea is strongly disputed as there is a continuing cause of action arising from non-provision of essential promised amenities and failure to obtain completion certificate, and also the builder's renewed commitments made through Moll dated 20.01.2013 which remain unfulfilled. Emphasizing the broader pattern of developers' actions of forcing premature possession and thereafter relying on allotment conditions and possession letters for denying brochure promises, it is contended that the complaint, already found maintainable, duly demonstrates clear deficiency in service and unfair trade practices of the OP-builder, entitling the complainant to the compensation as prayed.
5. The Evidence Affidavit of Mr. Mahesh Sharma, secretary, was filed on behalf of the complainant on 22.08.2016. Subsequently, the evidence by way of affidavit of Mr. Sanjeev Gaur was filed on behalf of the opposite party on 05.02.2019. An Additional Affidavit in compliance to this Commission's order dated 17.03.2025 was filed by the Complainant Association on 15.04.2025, by its current Secretary, Mr. Rajiv Ranjan Singh, along with the minutes of the General Body Meeting held on 09.03.2025. While the evidence affidavits by parties reiterate their respective contentions in the pleadings, the affidavit of the complainant dated 09.03.2025 provides details of the project, highlighting that while possession of flats was given in 2009-2010, OP builder, M/s Tarunika Gaur Housing & Construction Ltd., has failed to develop several promised community facilities such as the club, swimming pool, gym, community hall, guest house, playgrounds, and power backup systems as advertised and promised in its brochure. Complainant further states that the OP has not obtained the mandatory completion certificate, has encroached on fire safety areas and open spaces, and diverted common facilities for its own use. It outlines multiple deficiencies, including Page 6 of 32 incomplete fire safety systems, inadequate generator capacity despite charging Rs. 15,000 per KVA (amounting to nearly Rs.4 crores), and failure to provide essential amenities like STP/recycling systems, jogging tracks, and landscaped green areas. It also accuses the builder of unfair trade practices, misrepresentation in brochures, and overloading the infrastructure by constructing 180 units instead of the sanctioned 151, reducing the residents' share of common facilities. The affidavit annexes key documents such as the Executive Body Resolution dated 10.08.2013 (authorizing legal proceedings), brochure, letters to authorities (2009 & 2011), minutes of meeting dated 10.12.2012, and the MOU dated 20.01.2013 where the builder committed to completing the facilities by 31.03.2013 but failed to do so. A government-approved valuer has assessed the cost of incomplete works at Rs.4,67,10,000/-, for which compensation is sought along with Rs.50,00,000/- for mental agony, harassment, and inconvenience caused to all members of the society.
6. We have heard learned counsel for the parties at length and have carefully perused the entire material placed on record. OP's defences broadly are: (a) complaint barred by limitation (Sec. 24A, CPA 1986) because flat possession was obtained in 2009-10 without objection; (b) Complainant not a "consumer" and lacks privity of contract as the complainant society is a stranger to the agreements with the allottees; (c) Society's own registration/locus questioned-alleged seizure of records by the Registrar of Co-operative Societies owing to internal fund disputes; (d) brochures are only "tentative," and Allotment Letter finally governs the contractual relationship which provides for reserving Builder's rights to change FAR, modify plans, retain control over club/amenities; (e) number of units only 160, not 180; (f) most facilities provided; deterioration, if any, stated to be due to poor maintenance by the society; (g) completion certificate applied and hence deemed granted; (h) valuation of the cost of alleged incomplete works is inflated; (i) no legal notice received. The Complainant counters that (1) under the U.P. Apartment Act, 2010, the Association of Apartment Owners is a statutory custodian of common areas/facilities and therefore the locus arises by statute, not merely by contract, (2) the brochure promises were foundational inducements to obtain the services which were repeatedly acknowledged post possession and were crystallized in Clause 5 of the MOU dated 20.01.2013, under which the OP Builder agreed to provide / upgrade all Page 7 of 32 brochure promised items within 3 months (i.e., by 31.03.2013) and provide equipments and documentation within 15 days; (3) community facilities are admittedly incomplete; (4) no completion certificate yet obtained or produced; (5) Builder collected substantial sums (Rs. 15,000 per kVA; Rs.4 crores aggregate) for power backup but has neither disclosed installed generator capacity nor provided corresponding benefit; (6) OP's own facility chart in its Written Statement concedes "STR Not Provided"; (7) The negotiations culminating into MOD dated 20.01.2013, which remained unfulfilled, makes complaint filed on 09.09.2013 within limitation and there is continuous cause of action (8) the GBM of 09.03.2025 unanimously resolved to pursue the litigation thus nullifying any technical objection about competence of the society to file and pursue the complaint.
7. After hearing the counsels and minutely perusing the records, we firstly deal with the preliminary objections raised by the OP. It has vehemently been urged by learned counsel for the OP builder that the complaint is not maintainable for multiple reasons. The first is that there is no consideration which has moved from the complainant society to the OP builder, and there is no privacy of contract between them. It has been further urged that many of the original allottees have sold the respective units allotted to them and therefore the alleged authorization granted to the society by its executive committee in 2013 no longer survives and the complaint is not maintainable on that count as well. Otherwise also, it has been held by Supreme Court in Shobha Hibiscus Condominium Vs. Managing Director, Sobha Developers Ltd. (2020) 11 SCC 328 that the society formed under statutory requirement of Karnataka Apartments Act or such other corresponding statutes, being "non-voluntary", do not qualify to be "complainant" under Section 2(1 )(d) of the CP Act. On the other hand, it has been urged that a fresh affidavit by the Secretary of the complainant society along with the authorization for maintaining and agitating the complaint has been placed on record. Apart from this, it has been urged on behalf of the society that the complainant society is formed under the Cooperative Societies Act and has an independent statutory existence and has competence to file and defend suits, and the inclusive definition of "person" under section 2(1 )(b) of the Act specifically mentions a co-operative society. The complainant society, on account of the consideration paid by the allottees, have earned statutory entitlement to receive Page 8 of 32 the possession of common areas and facilities under Section 4(6) of the UP Apartment Owners' Act and is thus also recipient, custodian and thus beneficiary of the services rendered by the OP builder within the meaning of section 2(1 )(d) of the CP Act. Relying on Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. (2022) 4 SCC 103 and NCDRC decision in C.C. No. 1 of 2022 Adriatica Cooperative Housing Society Ltd. Vs. Macrotech Developers Ltd. & Anr. dated 30.01.2024, it is urged that the Supreme Court and this Commission have, after considering Shobha Hibiscus (supra) and after relying on other decisions quoted in para 7 and 8 of the decision in Adriatica, have held that the cooperative societies who have entitlement for conveyance of common facilities and obligation of maintenance of such facilities under the provisions of the respective Apartment Ownership Act, are entitled to lodge a complaint before an appropriate forum to litigate with respect to the deficiency in its own right as a beneficiary qua such common facilities and conveyance and related services thereof. On facts, it is urged that the OP-builder has been engaging with the complainant with regard to issues faced by the allottees, have handed over the documents and common facilities to the complainant and have also entered into MoU dated 20.01.2023 also with the complainant society, and therefore also the competence of the complainant to approach the Commission cannot be questioned now by the builder. At the outset, we may observe that we find no merit in any of the contentions raised by the OP-builder. Firstly, the competence of the complainant society to file, maintain and pursue the present complaint, after the affidavit of the secretary dated 15.04.2025 having been brought on record bringing thereby the GBM resolution dated 09.03.2025 also on record, cannot be validly questioned in law. After considering the decisions cited at the bar, more particularly the following para in Adriatica, we agree with the learned counsel for the complainant that the complainant society is competent and eligible in its own right in its capacity of a cooperative society of allottees to be a complainant within the meaning of CP Act regardless of the fact why or how it came into being. Most of the grievances raised are relating to common areas and facilities which, in our opinion, due to statutory relationship between the parties as provided under section 4 of the UP Act, rightly makes the society effective "beneficiary" within the meaning of section 2(1 )(d). As rightly urged, on facts also, the OP is demonstrated to Page 9 of 32 have engaged and signed Moll with the society qua common facilities and common interest of the allottees and have also handed over the common amenities to the society and have made promises to the society as a custodian of the common amenities, and therefore also we find no reason to non-suit the society on technical ground as raised by the OP. Part of the consideration paid by the allottees, including that for common amenities having been received by the OP, the complainant cannot be deemed to have effectively received no consideration from the OP society who rightfully is custodian of such common amenities. The contention that few of the original allottees have sold the flats, even if established to be so, would not alter the situation with regard to common amenities when taken up by the society representing collective interest and responsibility for custody and maintenance of such amenities. Of course there is evidence placed on record by the OP to substantiate that there are or there were grievances of some of the allottees against the office-bearers/ managing committee of the society. However, that aspect in our opinion, does not disentitle or disqualify the society from being a consumer under the CP Act, particularly when there is general body resolution in GBM held on 09.03.2025 authorising the society to pursue this litigation. The Adriatica observations may be reproduced while observing that though the decision is with respect to C P Act, 2019 and with respect to society under MOFA, the principle therein would be applicable in the present case with full force:
7. Under Section 35 of the Act, consumer grievance can be agitated by the consumer itself, by any recognised consumer association, by one or more consumer, for numerous consumers, who have same interest, by Central Government, Central Authority and State Government. The Act, is a beneficent legislation and in order to ensure effective administration and settlement of consumer dispute, apart from the consumer and government authorities, "any recognised consumer association" has been authorised to raise the consumer grievance. Under Section 35 (1) (b) of the Act a stranger recognised consumer association is permitted to agitate the grievance of a consumer. It does not appear to be logical that the association formed by the consumer is not permitted to agitate its grievance only for the reason that the association was formed in compliance of a statutory requirement. The statutory requirements compel formation of the association. By such formation it cannot be held that it is not a voluntary consumer association. With the help of definition of "complainant" and explanation of "recognised consumer association", if the arguments of the counsel for opposite party-1, is accepted the phrase "any recognised consumer association" will be altered as "only voluntary consumer association" which will amounts to rewriting the legislation by the judiciary, while interpreting statutory provision. An Explanation cannot override main Page 10 of 32 provision as held by Supreme Court in M.K. Salpekar (Dr.) Vs. Sunil Kumar Shamunder Chaudhary, (1988) 4 SCC 21, S. Sundaram Pillai Vs. Pattabiraman (1985) 1 SCC 591 and M.P. Cement Manufacturer's Association Vs. State of M.P. (2004) 2 SCC 249.
8. The word "person" has been defined under Section 2(30) of the Act, which includes a co-operative society. Although the complainant has not availed the services of 'house construction' from opposite party-1 but is beneficiary of such service with the approval of the home buyers, who had availed the service of 'house construction' from opposite party-1. A Full Bench of this Commission in CC/6/2022 Landscape Heights Co-operative Housing Society Limited Vs. M/s. Landscape Realty (decided on 28.03.2023) and Supreme Court in Samruddhi Co-operative Society Ltd.
Vs. Mumbai Mahalaxmi Construction Private Limited, AIR 2022 SC 428, held that co-operative housing society, incorporated by opposite party-1 due to mandate of Section-10 of the MOFA, is itself a consumer and the complaint filed by it, is maintainable under Section 35(1)(a) of the Act.
8. The objection of limitation has equally no merit. It is an admitted position that both the parties were in consultation and negotiations which resulted into an Moll dated 20.01.2013 signed by both the. parties. The grievances thereafter raised in this complaint filed on 09.09.2013 are well within the limitation period of two years, particularly also in view of the fact that the absence of completion certificate is a continuing wrong and continuing cause of action as held in Samruddhi, supra.
9. Turning to the merits, the complainant has primarily relied on the brochure of the OP and the Moll dated 20.01.2013, and a "valuation" of deficiencies, deficient work or deficient equipments, by one Jain & Associates dated 21.06.2013. The prayer clause reveals that the compensation claimed is based exclusively on the "estimates or valuation" of M/s Jain & Associates apart from claim for mental agony and interest. Denying the allegations, OP has put reliance on the allotment letters issued to the allottees wherein, as per OP, lot many promises in the brochure have allegedly been diluted and lot of leeway to the OP has been allegedly agreed to by the allottees. It is the contention on behalf of the OP that the allotment letter, and not the brochure, is the foundational agreement between the OP and the allottees, though most of the promises in the brochure have also been fulfilled by the OP. It is also contended that the individual conveyance deeds have also been executed before filing of the complaint by the society and hence no grievances as raised in the complaint can be raised. Let us begin by extracting the orders of this commission, Page 11 of 32 the respective paras of pleadings and the Moll dated 20.01.2013 and the report of M/s Jain & Associates, which together throw substantial light on the controversy:
The complaint:
16. That the Respondent at the time of booking of the apartments has promised through its brochure certain items which have not been provided till date. The Respondent has been promising of providing those items before completion of the project and handing over of the facilities and maintenance to the Complainant, the Arunima Palace Resident Welfare Association. The complainant and the Respondent before entering into formal Memorandum of Understanding engaged into meetings and they have agreed for supply of certain documents and completion of the promised facilities in fixed time frame. A copy of the Minutes of Meeting dated 10.12.2012 along with list documents required for handing over of the common facilities is annexed herewith as Annexure P-8 . But even after handing over of the community facilities in January 2013 through an MOU dated 20.01.2013 and categorically promising to complete the facilities by 31.03.2013 in the aforesaid MOU it has miserably failed to honour its commitment and the Respondent has not even got a comprehensive survey done for the left over works, no work order issued, no initiative taken to develop the facilities. The MOU dated 20.01.2013 is annexed herewith as Annexure P-9. The promised facilities and the actual status of those promised facilities have been detailed as follows;____________________________________ ________________________ _ No. Facility Promised as per Brochure Actual Status____________ 1__ CCTV_____________________________ Partly provided____________ 2 Panic Button Alarm__________________ Not provided_____________ 3__ Censor Operated Locking system_______ Not provided_____________ 4 Greenery: Only 20% covered area & 80% Only 67% open area provided open for greenery___________________ 5__ State of the Art Club_________________ Not provided_________________ 5(a) Swimming Pool Only pool provided; no pump, piping, filter; many tiles in pool broken______________________ 5(b) Lawn Tennis Court__________________ Not provided_________________ 5(c) Badminton Court___________________ Not provided_________________ 5(d) Jogging Track_____________________ Not provided_________________ 5(e) Children Park______________________ Not provided_________________ 5(f) Community Hall____________________ Not provided_________________ 5(g) Library___________________________ Not provided_________________ 5(h) Gym_____________________________ Not provided_________________ 5(i) Steam & Sauna Bath, Jacuzzi, Massage Not provided Room____________________________ 5(j) Billiards, Table Tennis, Card Room_____ Not provided_________________ 5(k) Large Playground__________________ Not provided_________________ 5(1) Two Guest Houses on booking basis Not provided_________________ 5(m) Poolside Restaurant________________ Not provided_________________ 5(n) Community Hall____________________ Not provided_________________ 5(o) CCTV____________________________ Partly provided_______________ 5(P) Panic Button Alarm__________________ Not provided_________________ 5(q) Censor operated locking sys___________ Not provided_________________ 6 Fire Fighting System Partly completed; no monitors, fewer fire extinguishers, no flexible hoses or nozzles_______ 7 Roof cover by sheets on support structure Not provided at entrance of basement car parking Page 12 of 32 8 Marble flooring of all steps of stairs Not provided (ground floor to basement)____________ 9 Kota Stone flooring of part of Stilt (C Not provided Block) and basement car parking_______ 10 10 ft. height of boundary wall and barbed Height inadequate; barbed wire wire fencing on top___________________ not provided_________________ 11 Yard light fittings and common area light Inadequate fittings____________________________ 12 Both basement approach roads_________ Damaged_____________ 13 Construction of approach road from rear Incomplete and unfinished side of apartment____________________ 14 Electrical cables passing through the Uncovered floors_____________________________ 15 Lifts: (OTIS as committed) Substandard quality (ECE make) provided____________________ 16 Land falling under High Tension Electricity on enquiry from the builder it has Transmission Lines. This land was shown been informed that the said land as a part of Arunima Palace land area in would be taken on lease from the the brochure and within its boundary wall authority and shall be maintained and it was promised that development of as green area.
this land shall be done after suitable permission from the competent authority:
Present Status: This land has been encroached by slum dwellers and a big security threat, the builder has not even applied for taking this land on lease.
Unauthorised Construction:
1. Stilt area of A Block: Instead of developing the area for common use of the residents viz. Community Hall, Recreation Hall, car parking etc. The builder has made residential premises on it without any legal approval and hence require dismantling.
2. common open area:
I. Car Parking allotted in common area without any legal approval, hardly any common open area is left for playing of children.
II. Part of open area has been usurped by the builder for parking of his and his associates vehicles encroaching upon the space for movement of Fire-Tenders. III. Non development of the open area between A' Block and 'B'& C Blocks :
presently full of dust
3. Construction of rooms in basement area and on stilt of C block: without any approval. Risky for security point of view.
17. The Respondent has cheated the innocent buyers on many counts. At the time of booking the ratio of covered area and proportionate share in the common facilities was much bigger but when extra purchasable FAR of about 4000 sq mtrs were added , number of floors added, extra units raised, then the proportionate share in the community facilities got substantially reduced. The Respondent has got the agreements drafted and signed heavily weighing in its favour which reflects the guilty mind of the builder. The population density has been arbitrarily increased, common infrastructure has been over burdened, community facilities not raised, even promised community facilities have not been provided, parking space encroached, open green space has been encroached and again the builder is not providing the community facilities as promised in the brochure disregarding the statutory provisions of law, a Page 13 of 32 clear unfair trade practice and in complete disregard to the Building Bye-Laws and Master Plan / Zonal Plan .
18. That the Respondent had promised 24 hour power Supply with generator back up of the required capacity. The Respondent had charged Rs. 15,000/- per Kva and had collected about 4 crores at the time of booking of the Apartments. The capacity and infrastructures as developed by the Respondent have been insufficient.
19. That the complainant engaged a Govt, approved valuer to assess the cost of the left over works of the Respondent and the valuer has assessed the cost to be Rs.
4,67,10,000 ( Four Crore Sixty Seven Lakhs and Ten Thousand only /- The report of the valuer is Annexed herewith as Annexure No. P-10.
The written statement:
16. With regard to contents of para 16 it is submitted that although the contents of the relied upon brochures are denied, however it is submitted that all the items which were within the scope of answering defendant was provided. It is wrong and specifically denied that answering respondent did not provide the item as per the allotment letter. It is stated that following items has been provided and still existing within the society and are under the control of the respondent Detail Status on behalf of Tarunika Gaur Housing and Construction Limited______________________ Centralized R.O. Plant for 181 families Provided and functional in each flat Inbuilt System for recycling used water Not provided STP___________________________ CCTV Systems__________________ Already installed and functional Cost of equipment for extra power Already installed and functional backup_________________________ Silent DG Sets___________________ Already functional in the society Cost of extra panels and additional Already installed linking__________________________ Cost to be incurred on existing Fire Already in workable condition and Fighting System to make it workable working satisfactorily till handing over________________________ Civil Works ____________________ All done_____________________ Water Proofing Works____________ All done_____________________ Swimming Pool__________________ Already built_________________ External Landscaping & Development All completed________________ Elevators (6 in number) Company has installed required number of elevators of world-class brand "ECE", which is among India's top-selling elevator companies___________________ Club____________________________ Already functional_____________ Boundary Wall____________________ Completed___________________ Fiber Roofing of Basement Entry Completed Approach Road___________________ Repair/Reconstruction of both Entry and Completed Exit Basement Parking Anything contrary to the submissions and the issues which has not been dealt with specifically are denied in toto.Page 14 of 32
17. That the contents of para 17 are wrong and specifically denied. It is denied that answering respondent has encroached parking space, open green space and further not provided the community facility as promised in the brochure. It is stated that the submissions are reputable nature hence the contents of preceding paras may be read as reply of the instant paras as the contents of the same are not being repeated here further sake of brevity.
18. With regard to contents of para 18 it is submitted that Silent DG Set is installed in the society to provide electricity round the clock to the resident of the society. Rest of the contents are wrong and specifically denied. It is denied that the capacity and infrastructure as developed by respondent have been insufficient.
19. That the contents of para 19 are wrong and specifically denied. It is denied that any work as provided in the allotment letter has been left out by the answering respondent.
It is further submitted that the present complaint has been filed to extract money by giving frivolous valuer report to achieve ill motive of complainant to extract the alleged cost on account of the work which has already been done by answering respondent. It is stated that no amount whatsoever is payable by the answering respondent in as much as answering respondent performed its part strictly in terms of the allotment letter. Even otherwise the allegations alleged by the complainant are wrong as all the facilities are/were existing within the society. Hence the submissions are bad devoid on merit and against the correct facts.
The rejoinder:
15. The averments made in para 16 of the reply to are partly true as much as the O.R has admitted, but the rest are wrong and denied. The averments made in corresponding para 16 of the complaint are reiterated.
16. The averments made in para 17 of the reply to are partly true as much as the O.R has admitted, but the rest are wrong and denied. The averments made in corresponding para 17 of the complaint are reiterated.
17. The averments made in para 18 of the reply to are partly true as much as the O.R has admitted, but the rest are wrong and denied. The averments made in corresponding para 18 of the complaint are reiterated. The O.R has deliberately concealed the facts from the Hon'ble Commission as it has not mentioned the capacity of the DG Set and also has not explained as to how much payments it has collected from the Apartment owners. The O.R has not provided the DG Set to the Apartment owners. The averment of the O.R is wrong and misleading.
18. The averments made in para 19 of the reply are wrong and denied. The averments made in corresponding para 19 of the complaint are reiterated."
Orders of this Commission:
Dated : 07 December 2023 ORDER Heard learned Counsel for the Complainant.
The complaint has been filed contending that there are serious deficiencies in service on the part of the Opposite Party as the promised facilities and the amenities as were indicated in the brochure, the agreement and further on has not been provided. It is then submitted that apart from this, the issue was raised with the opposite party and in a meeting held on 10.12.2012 a memorandum was drawn up where, which according to the learned Counsel for the Complainant the Opposite Party promised to complete all the deficiencies by 31.03.2013. It was on failure to honour the said understanding, that brought the Complainant forward to file this complaint.Page 15 of 32
Prima facie there are allegations of the alleged deficiency in service in paragraphs 16, 17, 18 and 19 of the complaint to which denials have been made in paragraph 16, 17,18 and 19 of the written version. The Opposite Party has come up with a contention that such complaints cannot be entertained after the conveyance deeds have been executed.
Learned Counsel for the complainant however submits that keeping in view the recent judgement of the Apex Court in the case of Wing Commander Arifur Rehman Khan & Ors. Vs.DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512. the question of raising a dispute of deficiency in service and unfair trade practice is available to the Complainants even after the execution of the conveyance deeds.
Learned Counsel for the Opposite Party seeks an adjournment in order to answer the said proposition.
As Agreed , list on 07.03.2024.
Dated : 07 March 2024 ORDER Heard learned counsel for the complainant. Orders were passed on 07.12.2023 noting certain facts with regard to the deficiencies as against the promised facilities. The conveyance deed has been executed in this case and the issue as to whether the deficiencies can be complained of even thereafter, was explained with the aid of the judgment of the Apex Court in the case of "Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512".
Even though on the previous occasion there were counsel who were present on behalf of the opposite party and had sought adjournment to answer the said proposition, today no one is present on behalf of the opposite party.
Pleadings have been exchanged and therefore in the absence of the learned counsel for the opposite party, it is directed that keeping in view the submissions that have been raised, this complaint shall proceed ex parte against the opposite party on the next date.
List on 04.07.2024.
A copy of this order may be dispatched to the opposite party by the registry.
Dated : 04 July 2024 ORDER Heard learned Counsel for the Complainant.
From the Order dated 07.03.2024 it appears that a direction was issued to proceed ex-parte against the Opposite Party on account of their non-appearance.
The arguments proceeded today and the learned Counsel for the Complainant was called upon to explain as to the rights of the Parties as per the conveyance deed which is stated to have been executed and was also noted in the Order dated 07.03.2024. It is pointed out by Mr. Tandon learned Counsel for the Opposite Party that the said document is not on record.
In order to appreciate the argument on behalf of the Complainant with regard to the alleged deficiencies, the conveyance deed will have to be appraised and therefore learned Counsel for the Complainant is directed to file a sample of the conveyance deed by way of an affidavit.
Learned Counsel for the Opposite Party also informs that some of the flat buyers have already sold off their flats. Let the learned Counsel for the Opposite Party obtain instructions and file an affidavit in that regard. A copy thereof be served on the Complainant who may verify the same and respond to it. Let the formalities be completed within six weeks.
List on 12.11.2024.
The Order to proceed ex-parte is recalled as Mr. Karunesh Tandon has appeared and he undertakes to argue the matter finally.
Learned Counsel for the Complainant urged that vide order dated 03.08.2023 a sum of Rs.10,000/- was enhanced over and above the cost of Rs.50,000/- imposed Page 16 of 32 earlier and the said enhanced amount has not been paid. The learned Counsel for the Opposite Party states that it appears that the Order of 03.08.2023 was passed without taking notice of the fact that the amount of Rs.50,000/- had already been paid even though its proof had not been filed. This fact of having already received Rs.50,000/- is not disputed by the learned Counsel for the Complainant. In view of this the order dated 03.08.2023 imposing the enhanced amount of Rs. 10,000/- is recalled.
Dated : 24 December 2024 ORDER Learned Counsel for both the Parties have filed their respective affidavits however the compilation filed by the learned Counsel for the Opposite Party has been served on the learned Counsel for the Complainant but the physical copy of the same has not been filed on record. Let it be filed within one week.
After having considered the submissions raised the affidavits filed by the Complainant indicates that the earlier Secretary is no longer the Secretary of the Association and one Mr. Rajiv Ranjan Singh is the Secretary of the Association. The said reconstitution of the body therefore may also be brought on record by way of an Affidavit along with the correct statement of facts with regard to the details of members of the Complainant's Association reflecting their membership who continue to authorise the pursuit of the present Complaint on their behalf by the Association.
Learned Counsel for the Opposite Party also states that apart from this 6 out the 7 of the persons mentioned in the Memorandum of Association have already sold off the property and have parted with it finally and as such there no surviving interest in, the Complaint. It is also urged that the 7th person has also leased it out and in fact there are a substantial number of other flat buyers who have also sold off their property and are therefore no longer pursuing this litigation. Let those facts be also filed by way of an Affidavit. Learned Counsel for both the Parties shall exchange their affidavits within four weeks.
Let the matter again come up on 25.04.2025 Dated : 25.04.2025 ORDER The documents as desired by the previous order has been filed on 15.04.2025, a copy whereof has been supplied to the learned counsel for the opposite party, who may file a response to the same within a week. Rejoinder, if any, be filed within one week thereafter.
Let the matter be listed on 11,07.2025.
MOD dated 20.01.2013 This memorandum of Understanding for transfer (MOUT) is being entered on 20/01/2013 Between M/S Tarunika Gaur Housing And Constructions Ltd, office at Gaur Shoppers Empire,ML-2, Sector 11, Vasutidhara, Ghaziabad (U.P., a company incorporated Under the Companies Act, 1956 herein after called "company" through Mr. SANJEEV GOUR MD/Chairman, M/S Tarunika Gaur Housing and Constructions Pvt. Ltd, office at aforesaid address of the First Part.
AND "Arunima Palace Residents Welfare Association, Plot. No.GH 4, Sector 4, Vasundhara, Ghaziabad, Uttar Pradesh" a registered society vide Registration No.1054/2010 dated 07.12.2010 under Society Registration Act 1860 hereinafter called "Residents Welfare Association" through its Secretary Shri H.L.Bhandari of the Second Part.
Page 17 of 32This memorandum of understanding is subjected to certain minor changes as per requirements of R.W.A. or builder. Since electricity meter is still in the name of M/s Tarunika Gaur Housing and Construction Ltd so an indemnity Bond shall be signed by the Resident Welfare Association for timely deposition of electricity Bill and henceforth Builder or M/s Tarunika Gaur Housing and Construction Ltd shall not be held responsible for deposition of bills or any other act related to electricity.
Sd. By Sanjeev Gaur Sd. By. H.L.Bhandari, secretary Tarunika Housing& Construction Ltd.
Whereas the Company has built/the project called "Arunima Palace" at Plot No.GH. 4, Sector 4, Vasundhara, Ghaziabad, Uttar Pradesh and sold the same to various flat owners (total 181 flats) who are the members of the Arunima Palace Resident Welfare Association.
AND Whereas the Arunima Palace Residents Welfare Association is a society formed and constituted with the aims and objective of working for the welfare of its members and have declared to adopt the bye laws of U.P. Apartment Act and has sought the maintenance services to be transferred to the RWA.
AND Whereas the Arunima Palace Resident Welfare Association has filed a petition before the Competent Authority under the U.P. Apartment Act, and the Competent Authority vide its order dated 21.11.2012 has declared deemed handover of the maintenance services to the RWA, however 15 days time was given to complete the required formalities but restrained from collecting maintenance charges.
AND Whereas completion of the required formalities could not be completed within 15 days and it was mutually agreed to seek some more time and the same was orally allowed by the competent authority for up gradation of the infrastructure as per the promises made at the time of purchase of flats by the members of the RWA.
Now this memorandum of transfer witnesseth and recites as follows:-
1. That the effective date of transfer will be 01/02/ 2013.
2. That the company ensure that the said multi- storied building since constructed is free from all encumbrances, no any statutory payment is due till 01/02/2013 and all statutory provisions have been duly complied with
3.
4. nd permissions have been obtained and handed over to Arunima Palace, Residents Welfare Association. Its understood that the zerox copy of master plan/drawings as furnished by M/s Tarunika Gaur Housing and Constructions Ltd on duly signed by Avas Vikas Parisad official vide reference no dt is in line with same as physically existing charms solitaire, no violation has been done against above said approved drawing as per the present site condition. If any violation of the same will be the sole responsibility of M/s Tarunika Gaur Housing and Constructions Ltd.
5. That all equipment and machineries like lifts, generator, fire fighting equipment, electrical bills of every items as provided in the Complex of Arunima Place along with AMCs and warranty if any shall be supplied to the Second Party within 15 days from today. Any short coming as per the promises made in the brochure at the time of booking shall be upgraded within three months, wear and tear shall be rectified within 30 days.
6. That authorized representatives of the company can visit to any part of the building after obtaining the duly signed permission from Arunima Palace Residents Welfare Association.Page 18 of 32
7. That any violation to the rules and regulations of Avas Vikas, GDA or any other authority after 1st FEBRUARY, 2013 shall be the sole responsibility of Arunima Palace Residents Welfare Association and before 01s' FEBRURY, 2013 all responsibilities with M/s Tarunika Gaur Housing and Constructions Ltd. including any compliance / requirement of any statute.
8. That all statutory dues related to existing present physical construction will be the sole responsibility of M/S Tarunika Gaur Housing and Constructions Ltd, office at Gaur Shoppers Empire,ML-2,Sector 11,Vasundhara, Ghaziabad, U.P, and to pay any liabilities in this regard. In
9. In case any new tax or duty is levied by any authority, Arunima Palace Residents Welfare Association will be solely responsible for the same w.e.f 01st february 2013.
10. That the connections and infrastructures in the name of M/s Tarunika Gaur Housing and Constructions Ltd. such as electricity, power backup, sewerage, water etc shall be transferred to Arunima Palace Resident Welfare Association. The security deposit if any shall also be transferred in the name of RWA.
11. That the renewed NOC dated ; in respect of fire fighting equipment has been handed over to Arunima Palace Residents Welfare Association on and next/further renewal based on renewed NOC Dated of the same shall be sole responsibility of Arunima Palace Residents Welfare Association.
12. That the unsold FAR shall be sole property of the Company. The company will pay maintenance charges as per rules of Arunima Palace Residents Welfare Association.
13. That the company will not be responsible for any dispute between members and Arunima Palace Residents Welfare Association or between their members.
14. That facilities like sewerage water, drainage, fire fighting, rain water harvesting, GYM, and Community Centre, temple pujari room are common and for the benefit of all member of Arunima Palace Residents Welfare Association.
15. That the list of present office bearers, certified true copy of registration certificate and bye - laws of the Arunima Palace Resident Welfare Association has been handed over to M/s Tarunika Gaur Housing and Constructions Ltd.
M/s Tarunika Gaur Housing and Construction Ltd. Has agreed to supply all necessary documents as per Annexure A.
16. Duly signed DECLARATION on FORM -A as submitted to the Competent Authority as per the U.P Apartment Act hereby enclosed for future requirement to Arunima Palace Resident Welfare Association.
In witness thereof both the parties have signed the Memorandum of Understanding for transfer in cordial environment with an understanding to have enduring relationship on this 01st day of January, 2013.
JAIN & ASSOCIATES (Govt. Approved Valuers, Architects, Engineers & Interior Decorators) Daled.21.06.2013 (To whomsoever it may Concern) Approximate cost of completion of the leftover works Arunimu Palace,Plot No.GH-4, Sector-4, Vasundliara.Ghaziabad (U.P.) MEP/Mechanical. electrical and plumbing) services 1 .Centralized R.O.plant for 181 families:
Capacity 2000lph L.S. Rs 12,00,000/-
including storage tank,overhead tanks for purifier Page 19 of 32 water piping,purified water lifting pump,taps,suction pump etc
2.Inbuilt system for recycling of used water(STP) L.S. Rs 35,00,000/-
3.CCTV System 16 CAMERAS + DVR wiring L.S. Rs 3,00,000/-
4.Electrical power backup:
Total no.of apartments 181 Nos.
Lumpsum load of apartment flats L.S. =700 kva Loading of common areas + 6 nos. lifts L.S. =100 kva Total = 800 kva approx. Power backup provided by builder 250 kva Cost of equipment for extra power backup: 1 nos. 500 kva silent d.g. L.S. Rs 32,00,000/- 1 nos. 50 kva silent d.g. sets L.S. Rs 5,00,000/- Cost of extra panels and additional linking L.S. Rs 10,00,000/-
5.Cost to be incurred on existing fire fighting system to make it workable L.S. Rs 3,00,000/-
Civil works:
6. Premix concrete to be done in proper slope and specifications in Basement & stilt parking area kota stone flooring L.S. Rs 7,50,000/- Water proofing works:
7. Rewaterproofing of central green area L.S. Rs 6,00,000/-
S.Swimmina pool:
Pool outfitting with equipment's/nozzles/lights As well as relaying the tiles in pool bed & sides as well as relaying of stone in deck area with proper slope for drainage as well as change rooms L.S. Rs.15,00,000/- External Landscaping & development:
O.Existing site breakup of areas:
Built up Area =33% approx. Open Area =67% approx.
Green area is only approx.33% of the total site area i.e. 2450 sqm Area on which tennis courts etc. were proposed which at present is left out = 3485 sq if that area is also included then the area break up is as follows Built up area = 23% Open area = 77% Approx, cost of landscaping of left over area @ 10,00,000/- per acre (1 acre = 4046.80 Sqm) L.S. Rs.8,60,000/-
10.Elevators:
Presently installed elevators are not maintained properly and lacks in proper safety measures.
They also have frequent breakdowns.and hence need replacement Approximate cost of replacing existing elevators by OTIS elevators 4Nos@19,00,000/- = Rs 76,00,000/-
2Nos@25,00,000/-=Rs50,00,000- Rs. 1,26,00,000/- Other facilities;
Costing of the following should also be taken into consideration :
11.Provision of two guest houses and a pool side Page 20 of 32 Restaurant as mentioned in brochure L.S. Rs 1,50,00,000/-
12.Equipments and finishing and furnishing of health Club with facilities as mentioned in brochure L.S. Rs 45,00,000/-
including of Gym, spa & sona bath, badminton, library etc.
13.Boundary wall (400 Rft-9" th & 9' high) with plastered L.S. Rs 5,00,000/-
14.Fiber roofing of basement entry approach road L.S. Rs 1,00,000/-
15.Repair/Reconstruction of both entry & exit basement parking L.S. Rs 3,00,000/-
Total approx.cost of completion of left over work Rs 4,67,10,000/ Please note that all the above cost are indicative and based on approximation only and actual costs maybe worked out once the detailed drawing and space are provided. The actual cost may vary accordingly.
SD/-
S.K.JAIN B.E.(CIVIL),A,M.I.E.,C.E. (India),F.I.V, Chartered Engineer & Govt. Regd. Valuer (Govt, of India)
10. It has been urged on behalf of the OP that once the allotment has been duly accepted by the allottee and the allotment letter with detailed stipulations about the specific entitlements of the parties, including the facilities and amenities as mentioned therein, stand issued and accepted by the allottee, the brochure promises only to the extent and subject to such stipulations only as get crystallised therein finally stand binding on the parties and the allottee can not insist in law on any alleged promise or depiction in the brochure. Brochures are mere broadly indicative intentions which are subject to final and specific stipulations in the allotment letter duly signed and accepted by the allottee. As reproduced above, the OP in para 16 of the reply insists that the allotment letter categorically mentions that the building plans are tentative, likely to change, and the OP has specifically denied that the "answering OP did not provide items as per allotment letter" thus fully meeting its obligations under the allotment letter. We are not impressed by this contention. Supreme Court in Wg. Commr. Arifur Rehman Khan supra has ruled, as rightly submitted on behalf of the complainant, that the the representation as held out by the builder in the brochure is a promise which forms the initial but foundational enticement and expectation for the prospective buyers of units, and the non-fulfilment thereof is an imperfection and continuing deficiency in service which can be agitated even after the conveyance deeds have been executed. Though while issuing the allotment letter or through ABA, the builder may therein attempt to restrict or narrow down the scope of such Page 21 of 32 promises, which also may have some weight in the given facts and circumstances, but the specific promises about the common facilities and amenities in the project as held out in the brochure, if remaining unfulfilled, is doubtlessly a deficiency in service, and a continuing one, on the part of the builder, and therefore, the society shall be eligible and entitled to raise the same, and if found to be so, for due compensation. We may refer to para 53 in Arifur Rahman Khan v. DLF Southern Homes (P) Ltd., (2020) 16 SCO 512
53. In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the "existing population cannot sustain these facilities" -- a school, commercial complex and healthcare facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to homebuyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff".
11. At the same time, however, in our considered opinion, the alleged deficiencies, if any, relatable to individual and particular flats cannot be taken up by the society unless the complaint is held maintainable and allowed u/s 12(1 )(c), which is not the case here, and for which different legal considerations and yardstick shall apply. For identifying such real deficiencies qua common amenities validly maintainable by the society, if any, the rival contentions in the pleadings and as urged during the hearing, would need to be weighed in light of the evidence brought on record. Admittedly, the possession has been offered and accepted by the allottees by 2009 and individual conveyances have been executed much before the filing of the complaint by the societies. Para 16 of the complaint categorically tabulates items as either "not provided" or as "provided" and the "report" of Jain & Associates supra, along with letter to the builder dated 26.07 2009 and 21.12.2009, the Moll dated Page 22 of 32 20.01.2013 and representation to the District Magistrate dated 20.05.2011 are the fundamental evidence which have been relied upon by the society for urging and establishing the deficiencies and the quantum of compensation based thereon with regard to common facilities and amenities. The items of deficiencies with regard to which the compensation has been claimed, are however, based exclusively on Jain-report though deficiencies tabulated in para 16 of the complaint are more in number. The relevant portions of the brochure specifying the amenities may firstly be reproduced:
f'. \-;4citeherf ' Granite Top, Wall Tile
II TH-.
'■ Modular,Granite Top. Wall Tile, Electric Chimney, Wood Cup'bds, R.O. System
Designer Flooring
Ofis/Egulvaient
Corrirnon Passa^^-'^ ■Designer Flooring
Designer Flooring
'I!
StalrCase
r Doorbell, Eyeglass, Manned Security, Intercom
:>j
Power Bacioip ___ On Demand
cBroacLBand On Demand
I
Security Greenery Parking ! State-of-the Art Club
Round the clock three Only 20% covered area Forsighting the future / Swimming pool, Lawn
i , tier Security, Doorbell, & 80% open for ahead ample parking Tennis, Badminton
^^eglass, Manned greenery. Courts, Jogging Track,
tre^^m^Htu.lntercom, Children Park,
•» Community Hall,
Library, Gym, Steam &
< Sauna Bath, Jacuzzi,
* Massage Room,
* Billiards,Table Tennis,
v't T 1' . Card Room, Large
Playground,Two Guest
I Houses available on
t ' * booking basis & Pool
as • *i f
■V._______ J
.
* side Restaurant.
Firstly, the society's Moll dated 26.07.2009 and representation to the DM by letter dated 21.12.2009 demanding various amenities, may be reproduced, noting that such demands/deficiencies further declined in the MOU dated 20.01.2013:
Page 23 of 326>. It was agreed that C.C.T.V cameras, development of greenery in the society area and the adjoining vacant area (under high tension wire), Badminton court, swimming pool, club, car parking, installation of the appliances in the flats as per the entitlement of the flat owner, repair work in the flats and cleanness of the total premises shall be completed with in two months.
---- <-21
lishabh Arora Mr. Sanjeev Gaur Sh. S.K. Sarin^ltfly^s
(TGHCL) h.H.L. Bhandari
(MD. TGHCL) President/kcx r Secretary
(RWA)/ (.RWA)
The letter to DM particularly referred to the following "deficiencies, which as per Moll and in the "report" of Jain & Associates further declined:
-<■' --....... - r--...... . M'n-iwHic n wiijui tiir ivufry.
2. AMgNTIpS;- The builder has not met with his commitment to provide CCTV Cameras, Swimming Pool, Club, Z.ym, Community Hall, R O Drinking Water Plant mLe hv Adme"i,eS 3S Pei tHe C°/S Broacher fo'' whkh payment has ah ready made by the residents. } Sir, You are requested to kindly direct the builder to get the needful done on priority to make the life of the resident secure and safe.
12. However, in the Moll dated 20.01.2013, as can be seen, few of the amenities are referred to as already provided while others were demanded or stated to be not adequate or proper. For example, para 5, 10 and 14 of the Moll specify the I outstanding work/deficiencies. The perusal of the "report" of Jain & Associates on the face of it indicates that the same is a gross and non-self-explanatory estimate, and the expert Jain & Associates, has not supported the report or estimate with any cogent supporting evidence or other cogent material. He has admittedly not visited the project site and the complainant has not filed any affidavit of Mr. S.K Jain, and hence, the "report" has only limited, if at all any, evidentiary value. On the other hand, the survey of the series of correspondence and meetings between the parties before the date of the report of Mr. Jain more succinctly bring out the outstanding Page 24 of 32 issues. As per Annexure P-6 at page 41, society/Residents' letter dated 21.12.2009, the listed issues are A to U plus 8 totalling 29. However, by 10.12.2012, as per the document on page 52 of the file, being "hand over check list", many of the equipments like generator set, fire equipment and lifts were not only stated to be installed, regulatory approvals were stated to be obtained and Annual Maintenance Contracts were also entered into and handed over to the society. The MOU dated 20.01.2013 has recorded in para 5 that all machinery and equipments like lifts, generators, fire-fighting equipments and other items running on electricity are provided in the complex. As per para 14, the facilities like sewerage water facility, drainage, fire fighting equipments, rain water harvesting, GYM, and Community Centre, temple and pujari room "are" common and for the benefit of all the members of Arunima Palace Residents Welfare Association, implying thereby that these facilities stand conclusively provided on the said date. The MOU, at the same time, however, stipulates that the OP shall duly provide before transfer of amenities by 31.03.2013, the fitness certificate for lifts, NOC from fire department, operationalisation of swimming pool and club, and, "any short coming as per the promises made in the brochure at the time of booking shall be upgraded within three months, wear and tear shall be rectified within 30 days". The document of "handing over" dated 10.12.2012 (pg. 53) duly signed by parties records the handing over/ position as under:
Operations Drawings of the Electrical Wiring including Earthing Points ^x0'2. Drawings of the Water Piping MO3. STP Drawing & certification by Architect/Pollution Control Board ^>o4^Waste Disposal system with approval from Pollution Control Board >05. AMC Documents - Lift, Generator, Transfm er, etc. 1 Q<tflnvoices and Warranties for alt Assets - Pumps, Lift, Generator, Tran: former, Pool Equipments, Gym Equipments . Maintenance Sched&le for all Assets ^-dS^Work Schedule of all Staff maintaining the complex
13. With this background, we will take up the issues as tabulated in para 16 read with the "report" of Mr. Jain on the basis of which the compensation is claimed Page 25 of 32 in the complaint and wherein the number of items for compensation stands reduced to 15. We may mention that because the compensation is claimed only on the basis of the Jain-report, we would deal only with the items enumerated therein.
1. First major quantification in Mr. Jain's report is regarding the provision of "two guest houses". The brochure does mention provisioning of "two guest houses available on payment basis", and it looks certain that this "facility" has not been provided. However, the absence of this facility has not been taken up specifically or seriously by the Society either in any communication or in Moll dated 20.01.2013. Further, the availability of facility on payment basis would indicate that the same, if made available, would obviously firstly consume the common area of the society and secondly shall continue to belong to the OP builder as stipulated in the allotment letter, and the allottees would be entitled only to the privilege of availing the benefit, that too on "payment basis" which payment also is unspecified in the brochure. The builder on the one hand has saved on the investment and on the other hand has lost the likely revenue from society's common area. After considering the averments and insistence as recorded in the MOU, we are of the view that though such non-provisioning of the promised "amenity" of Guest Houses does amount to deficiency, the absence of the same in the facts and circumstances, has neither been seriously agitated before filing of the complaint nor has it been specifically mentioned in the allotment letter. Recognising the gravity and criticality of the representations in the brochure, however, we are not inclined to overlook the unfair trade practice of the OP-builder in this behalf, though we would restrict the compensation only to a nominal lumpsum of Rs. 5 lacs while declining to grant astronomical and arbitrary amount of Rs. 1.5 crores as claimed by the society.
2. The next major claim of Rs. 1.26 crores is with regard to the provisioning of lifts. As reproduced supra, the promise in the brochure was for providing "OTIS or equivalent" lift. The OP has provided ECE brand lifts, which before filing the complaint, have been enjoyed by the occupants for more than minimum of 4 years. There is no evidence on record to support the allegation that the builder was obliged to necessarily provide OTIS lifts. The Jain-report has estimated baselessly the "replacement cost" at Rs. 1.26 crores. The lifts are Page 26 of 32 stated in the report to be "not properly maintained" in the report prepared after nearly 4 years of the occupants having started the use of the same. There is no mention what-so-ever of any grievance or deficiency qua the lifts or the brand of the lifts in the Moll. There is no credible allegation or evidence even to establish that the ECE lifts are not "OTIS Equivalent" or that they are anyway inferior to OTIS. On the other hand, it is the contention of the OP that proper lifts were provided, and AMC documents were handed over to the society. Page 52 of the file evidences the same. After considering the totality of the evidence on record, we are constrained to observe that the claim in the complaint is wholly ill-conceived, exaggerated and wholly unsubstantiated. We find no merit in the same. The lifts are provided as promised in the brochure, duly maintained and duly handed over. Hence the claim deserves to be rejected.
3. With regard to the claims of RO system and the STP, the Jain report "approximately estimates" the cost at Rs. 47 lakhs, though the complainant has not shown as to on what basis the entitlement to both is claimed. The OP has contended that no promise for any of them is made in the brochure or in the allotment letter. The brochure refers not to the centralised RO system as claimed but providing of RO system only in the "luxury" flats, and not in the "elegant" flats, and the same is duly provided. Similarly, the brochure doesn't promise or provide for STP but for sewerage disposal system, which stood duly handed over as recorded at point 4 on page 53. Apart from the "estimate" by Mr. Jain, we find no other credible evidence on record to establish the entitlement for the STP or the centralised RO as claimed. The handing over of the waste disposal system is recorded on point 4 as rightly contended by the OP. The claim has remained wholly unsubstantiated and hence we find no merit in the same.
4. The further claims of deficient provisioning, with regard to power back-up, asking compensation of Rs. 47 lacs is based on the premise that each of the allottee has been charged Rs. 60000/- for 4KVA electricity installation charges, as seen from pg 39 of the file. The power backup as is promised in the brochure should be equivalent, and, what in fact has been provided is insufficient and inadequate. The OP has submitted that the silent DG sets have been provided, Page 27 of 32 handed over and AMCs have also been provided. The Jain-report admits that power back up of 250 KVA is provided but is "insufficient" because requirement is "800 KVA Approximately" and estimates the cost of fresh provisioning at Rs. 47 lacs. After hearing the parties, we are of the opinion that no deficiency in service can be alleged or is in fact established by the complainant. Firstly, the charging of Rs. 15000/- per KVA by the OP cannot be questioned because the same is the agreed part of the price of the unit, and there is neither any logic nor any factual basis to co-relate the charges with the alleged promise of providing of power back up "equivalent to 4KVA per allottee". Also, no basis is provided by the complainant for estimating the cost of "enhancing" the related infrastructure.
Further, once a promised facility or amenity is in fact provided by the developer and has been taken over by the society and used by the allottees, the adequacy or sufficiency thereof cannot normally be vaguely, and without any categorical and precise basis, alleged as deficiency of service unless such deficiency in substance amounts to the complete absence of the amenity or provision of the same is a mere lip-service and is palpably so evident on record and is so established. We therefore find no deficiency on this count.
5. The allegations of deficient provisioning with regard to the size, fittings and upkeep of the Swimming pool claiming Rs. 15 lacs, CCTV cameras at Rs. 3 lacs and incompleteness of the fire-fighting system claiming Rs. 3 lacs have been raised by the complainant and denied by the OPs. As such, the swimming pool, fire-fighting system and the CCTV cameras are admittedly provided but are stated to be inadequate or incomplete or needing upkeep. The swimming pool and the fire-fighting system also figure in the pre-complaint correspondence between the parties. In the MOU dated 20.01.2013, both the items find mention. The OP has maintained that the items were duly provided and were functional when handed over, however, under the MOU, the OP-builder undertook to complete any deficiency therein. The OP has brought on record the fire approval/NOC and AMC for fire equipment at pg 86-99 of the reply. Similarly, the swimming-pool equipments, eg pump and other accessories were handed over to the society and the repairing bills dated August and September 2012 have also been brought on record at page 109-111 of the reply. The CCTV cameras Page 28 of 32 are admittedly provided and only the adequacy thereof has been questioned, which, in our opinion, cannot be decided or gone into by us. We are satisfied that the items were handed over in working condition and there is no evidence of any deficiency as claimed in the complaint.
6. The allegations of deficient provisioning with regard to the boundary wall at Rs. 5 lacs, fibre roofing of basement entry approach at Rs. 1 lac, and repair and reconstruction of entry and exit basement parking at Rs. 3 lacs, totalling to Rs. 9 lacs, all are neither shown to be emanating from the representation in the brochure nor have been shown by the complainant to be part of any other representation. On the other hand, the OP has denied any deficiency in this behalf and insisted that no whisper about such deficiency was raised by the allottees or the society till filing of the complaint and that the amenities duly stand provided. The estimates for each item provided by Mr. Jain are also arbitrary. There is no evidence on record to establish the stated "insufficiency" or inadequacy of the amenities or as to how the claims are valid based on promise in the brochure or otherwise. Yes, the provision of boundary wall may be read as an inherent requirement, but there is nothing even in the Moll to substantiate that the same was not initially provided or that the concern or grievance was earlier raised in MOU or is validly now made. We are therefore constrained to agree with the OP that such vague and unsubstantiated claims raised after nearly 4 years of having obtained the possession by allottees and which were not even forming part of the MoU or letter dated 21:12.2009, are baseless and are not bona fide. No serious attempt to establish these alleged deficiencies have at all been made by the complainant.
The claim of deficiency with regard to improper construction and maintenance requiring expenses on civil construction for stilt parking area and rewaterproofing quantified at total of Rs. 13.50 lacs (item 6 and 7 in Jain report) are simply maintenance issues and can neither form part of the complaint filed after nearly 4 years of community living and use thereof and after the society has started maintaining the common areas, and nor can be adjudicated merely on the basis of a claim based on a report of estimate prepared after lapse of such a time. Hence the same is rejected.
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8. The claim of deficient provisioning with regard to external development of the green area, open space and the provisioning of Tennis and Badminton courts, quantified at Rs. 8.6 lacs, however, appears to be established on record. There is no doubt that 80% green area and the Tennis and Badminton courts were promised in the brochure and the Jain-report appears to reasonably estimate the land-scaping and provisioning cost. The OP in the reply has simply avoided specifically responding to the alleged absence of facility. There is neither any averment in the reply nor any reference to or evidence of any expense relatable to such provisioning filed by the OP. This is an important and specific part of the project-related promise in the brochure which has remained unfulfilled. We therefore hold that the absence of these amenities amount to deficiency in the service and the OP accountable for this violation of the promise in the brochure. The Society is entitled for the compensation of Rs. 8.6 lacs as claimed.
9. The claim for unprovided promised facilities of and in the Club-house, quantified at Rs. 45 lacs by Mr. Jain and by the complainant also appears valid though the quantum of compensation claimed is not sufficiently established on record. The complaint duly tabulates the unprovided amenities and facilities in para 16, though the claim that the club-house or Gym is not provided at all is patently false as both the facilities of community centre and Gym are mentioned as received and "to be for common enjoyment" in para 14 of MOD. At the same time, the reply of the OP is completely evasive, vague and non-committal reiterating that the amenities as per allotment letter are duly provided. There is no categorical mention also that the facilities like Table Tennis and Billiards, Steam, Sauna and Jacuzzi, Card Room and Library, as promised in the brochure are in fact provided. The stand of the OP is that they are not at all obliged to honour the representation in the brochure with which we, in light of Supreme Court in Arifur Rehman, do not agree. No developer is entitled to entice the prospective buyers by making false representations in the brochure which it does not intend to provide and thereby take the allottees for a ride. Of course, the allotment letters do not specifically enumerate these common amenities as obligations of the builder and there is indeed agreed understanding Page 30 of 32 between the parties that the fresh approval of building plans can be obtained by the Developer, but that by itself, cannot entitle the builder not to honour the enticing promises in the brochure without any explanation or justification either in the allotment letter or in the reply to the complaint when filed. There is no averment in the reply and no evidence brought on record by the OP that the said items were in fact provided or were not required to be provided. Therefore it is amply clear that these were not provided. We therefore, after noticing that the quantum of claim is not objectively based on proper valuation and there is no reliable basis for the same, deem it just and proper to award compensation to the society at of Rs. 25 lacs for such deficient provisioning of promised amenities, and further amount of Rs. 20 lacs for the long period of deprivation suffered by the allottees, totalling to Rs. 45 lacs.
10. Because we would award interest at 8% on the compensation amounts, we do not consider it necessary or expedient to award any further compensation for alleged mental agony or distress as claimed by the Society.
14. Completion Certificate:The complainant in para 15 of the complaint has alleged that the completion certificate has not been obtained and provided to the society till date. The OP in reply and in evidence affidavit has stated in para 15 that the application for completion certificate has been made to the DTCP and that under the statutory provisions if no objection has been raised, the completion certificate shall be deemed to have been granted. Though the copy of such application is stated to have been filed as annexure C or as annexure 0PW1/C, the same in fact has not been annexed or filed. We note that despite there being averment and allegation in the complaint, there is no specific prayer for direction to the OP for obtaining and providing completion certificate. However, we still do not want to overlook the fact that obtaining and providing of the occupation certificate and the completion certificate is one of the fundamental obligations of the developer. Therefore, we would, under the umbrella prayer in the complaint, nevertheless, deem it just and proper to direct the OP to obtain the completion certificate, if already not done, and hand over the same to the complainant society, within six months from the date of this order and furnish the same to the complainant society.
Page 31 of 3215. Complaint is thus partly allowed. In view of the discussion as above, the' OP is directed (A) to pay to the complainant society compensation of an amount of Rs. 58.6 lakhs in terms of para 13(1), (8) and (9), rounded off to Rs.60 lakhs inclusive of the litigation cost as claimed, with simple interest thereon at the.rate of , 8% per annum for the period from the date of filing of the complaint till date, within two months from the date of this order, and (B) to obtain, if not already done, and to provide Completion Certificate for the project within six months from the date of this order.
Sd/-
( A.P. SAHI, J-) PRESIDENT Sd/-
i bharatkumar pandya )
' MEMBER
Pawan/aj
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