State Consumer Disputes Redressal Commission
Mr Dilip Ganapat Kotere & Anr. vs M/S. Ruchita Constructions And Ors. on 17 September, 2014
Daily Order
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/11/383
(Arisen out
of Order Dated 23/03/2011 in Case No. 53/2011 of District Additional DCF,
Mumbai(Suburban))
1. MR DILIP GANAPAT
KOTERE
THROUGH HIS POWER OF
ATTORNEY HOLDER
SHRI. MADHUKAR BHIKAJI
GHAG
R/AT:- FLAT NO 703, B-WING
FLOOR 7TH,
HERITAGE HOLY
JAI AMBIKA NAGAR CHS LTD
JAWAHARLAL NEHRU ROAD
MULUND WEST, MUMBAI - 400
080.
2. MR MILIND M GHAG
THROUGH HIS POWER OF
ATTORNEY HOLDER
SHRI. MADHUKAR BHIKAJI
GHAG
R/AT:- FLAT NO 202,
A-WING
FLOOR 02ND,
HERITAGE HOLY
JAI AMBIKA NAGAR CHS LTD
JAWAHARLAL NEHRU ROAD
MULUND WEST, MUMBAI - 400
080.
...........Appellant(s)
Versus
1. M/S. RUCHITA
CONSTRUCTIONS,
THROUGH ITS PROPRIETOR
SHRI KIRAN H. HEMANI
OFFICE AT:- 5/6, GEETA
BUILDING
SHIVRAM SOCIETY
DEVIDAYAL ROAD
MULUND WEST, MUMBAI 400 080
2. MR. KARAMSHI KANJI
PATEL
PROPRIETOR MIREA SALES
AGENCY,
OFFICE AT:- FLAT NO.10
PLOT NO.80, DHARMA PRATAP
GARDIA NAGAR, GHATKOPAR
EAST
MUMBAI - 400 077.
3. CHIEF EXECUTIVE
OFFICER
SLUM REHABITATION
AUTHORITY,
5TH FLOOR, GRIHA
NIRMAN BHAVAN
BANDRA EAST
MUMBAI - 400 051.
4. DY. CHIEF ENGINEER
CITY & C C (SWD), B.M.C.
ENGINEERING SERVICES
& PROJECT BLDG
02ND FLOOR, N.
M. JOSHI MARG
BYCULLA, MUMBAI
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE
R.C.CHAVAN PRESIDENT
HON'BLE MR. Dhanraj
Khamatkar Member
For the Appellant:
Adv. Smt. Pratibha Gharat
instructed by Adv. Nagaraj Hoskeri
For the Respondent:
Adv. Dinesh Kumar Mishra
for the Respondents Nos.1 and
None present for the
Respondents Nos.3 and 4
ORDER
Per
- Hon'ble Mr. Dhanraj Khamatkar, Member This appeal filed by the Appellants/original Complainants (hereinafter referred to as 'the Complainants' for the sake of brevity) takes an exception to an order dated 23/03/2011 passed by the Additional Mumbai Suburban District Consumer Disputes Redressal Forum dismissing Consumer Complaint No.53 of 2011.
[2]Facts leading to this appeal can be summarized as under:-
Respondents/original Opponents Nos.1 and 2 (hereinafter referred to as 'the Opponents' for the sake of brevity) developed a plot of land belonging to Jai Ambika Nagar Sahakari Gruh Nirman Sanstha under the slum rehabilitation scheme, wherein the Opponents Nos.1 and 2 were to construct a building for the original members of the said Society and after handing over the possession to the original members, in the remaining FSI the Opponents Nos.1 and 2 were to construct a building for free sale. In the free sale building, the Complainants Nos.1 and 2 had booked flats bearing Nos.B-703 and A-202 on 28/02/2007 and 19/01/2005 respectively. It is the contention of the Complainants that in the construction there were many defects and they approached the Opponents Nos.1 and 2 for removing the defects. However, there was no response even after issuing legal notice. Hence, the Complainants appointed one Mr. Ashok Hukkeri, a Civil and Structural Engineer, to verify the defects in the construction and accordingly, Mr. Ashok Hukkeri submitted his report. It is contended by the Complainants that the Opponents Nos.1 and 2 have not removed the defects in construction despite of taking entire consideration. Complainants have further stated that there is no adequate water supply for the building as the Opponents Nos.1 and 2 have not constructed the water-tank taking into consideration the requirement of water. It is alleged that the Opponents have committed unfair trade practice and are deficient in rendering service. Alleging this as deficiency in service on the part of the Opponents Nos.1 and 2, the Complainants filed consumer complaint with a prayer that the Opponents Nos.1 and 2 may be directed to obtain Occupancy Certificate and to provide office for the housing society besides community hall, garden, parking area and further, these Opponents may be directed to furnish accounts in respect of the amounts collected from the flat-purchasers. Complainants also prayed that the Opponents may be directed to remove the defects in the construction as per the report submitted by a Civil & Structural Engineer on 18/06/2008 and sought compensation of Rs.1,00,000/- towards mental agony. A direction is sought as against the Opponents Nos.3 and 4 to cooperate with the Opponents Nos.1 and 2.
[3] Opponents Nos.1 and 2 had contested the complaint by filing written version inter-alia contending that allegations made by the Complainants in the complaint are baseless. However, these Opponents admitted that they have constructed the building under the slum rehabilitation scheme. They also admitted that the Complainants have booked flats bearing Nos.B-703 and A-202, respectively and these Opponents had entered into agreements for the same and as per the agreement, the Complainants have paid the amount of consideration and these Opponents have accepted the same. It is further contended that they have obtained Part-Occupancy Certificate. It is also contended that the construction was completed in the year 2003-04 and the Occupancy Certificate up to the fifth floor has been obtained on 10/09/2004. Complainants have booked their flats after construction was over. These Opponents have provided the amenities as per the agreements entered between parties. Complainants have accepted the possession of the flats after verifying that construction was caused as per the sanctioned plan. Opponents Nos.1 and 2 have denied the report of Mr. Ashok Hukkeri, a Civil & Structural Engineer, as it is not as per the terms and conditions of the agreement and hence, it is contended that said report is not binding upon them. While handing over the possession, Opponents Nos.1 and 2 had taken the amount towards property tax, service tax and it is spent for that purpose only. Complainants were requested to come to the office of the Opponents Nos.1 and 2 and see the expenditure statement. Complainants were supposed to become the members of the existing society i.e. Jai Ambika Nagar Sahakari Gruh Nirman Sanstha and a new society was not supposed to be registered as per the agreement. It is contended that the Complainants have not produced any evidence for the financial loss. On these grounds, the Opponents Nos.1 and 2 prayed that the complaint may please be dismissed.
[4] The District Forum, after going through the complaint, written version filed by the Opponents Nos.1 and 2, evidence filed by the parties on affidavits and pleadings of the advocates, came to the conclusion that there is no deficiency in service on the part of the Opponents and dismissed the complaint. Being aggrieved by the said order, the Complainants have filed present appeal.
[5] On 21/08/2014, we heard Adv.
Smt. Pratibha Gharat instructed by Adv. Nagaraj Hoskeri on behalf of the Appellants/original Complainants. None appeared for the Respondents. The case was reserved for orders on 02/09/2014. On 02/09/2014, Adv. Dinesh Kumar Mishra appeared on behalf of the Respondents Nos.1 and 2 and prayed that before pronouncement of order by the Commission, he may be permitted to file on record an affidavit of the Respondent No.1 in compliance with earlier order dated 07/08/2014. He also stated that he could not attend the Commission on 21/08/2014, when the appeal was heard as inadvertently while recording the date in his diary, he had not recorded the same properly. Accordingly, in the interest of justice, he was permitted to file on record the affidavit of Respondent No.1. Thereafter, the appeal was again reserved for orders.
[6] Admittedly, the Appellants/original Complainants had booked two flats on 28/02/2007 and 19/01/2005, respectively in the construction carried out by the Respondents/Opponents Nos.1 and 2 under the slum rehabilitation scheme. For the flats, the Complainants had entered into agreements with these Opponents and the agreements executed between the parties are produced on record in appeal compilation. As per Clause (43) of the agreement, the Complainants have paid the consideration to the Opponents Nos.1 and
2. At page (67) of the appeal compilation, Opponents Nos.1 and 2 had undertaken that flat-purchasers shall have pro-rata undivided share in the common areas and facilities in the above plot and also in limited common area as facilities, as under:-
i.
Paving around the building as per the Rules of Municipal Corporation of Greater Mumbai;
ii.
Compound lights;
iii.
Common Garden;
iv.
Roads with the whole of the said property.
[7] As regards payments made by the Complainants in respect of the property tax, water-charges, electricity charges and other outgoings, the Opponents Nos.1 and 2 contended in their written version that they have paid the amounts for the purpose they have collected and have written a letter dated 07/05/2007 to all the flat-purchasers and they were invited to discuss and resolve all the issues in respect of payments spent for the flat-purchasers/owners, including the Complainants, for BMC taxes, water-charges, electricity charges and other outgoings. However, nobody turned up for the same.
[8] In the entire complaint, the Complainants have not disclosed when they were put in possession of their respective flats by the Opponents Nos.1 and 2. On the contrary, the Opponents Nos.1 and 2 categorically contended that construction of the building was completed in the year 2004-05 and they have obtained Part-Occupancy Certificate up to the fifth floor of the said building on 10/09/2004 and they have applied for the Occupancy Certificate in respect of remaining floors.
[9] Learned counsel for the Appellants/Complainants had drawn our attention to a letter dated 22/01/2014 issued by Slum Rehabilitation Authority to the Respondent/Opponent No.1 and its architect, wherein the Slum Rehabilitation Authority has stated that the construction of the composite building has been completed and Part-Occupancy Certificate is granted. Further, it is observed that balance portion of the composite building is occupied unauthorizedly. However, the Respondents/Opponents No.1 and 2 have not applied for obtaining Part-Occupancy Certificate for the composite building and thus, there is a serious lapse on the part of the Respondents/Opponents Nos.1 and 2. Further, if any untoward incident happened, Respondents/Opponents Nos.1 and 2 will be held solely responsible. As such, the Respondents/Opponents Nos.1 and 2 were directed to obtain Occupancy Certificate and Completion Certificate in respect of balance portion of the composite building by applying BCC as per SOP format immediately, failing which necessary action will be initiated.
[10] Learned counsel for the Appellants/Complainants also drawn our attention to a letter dated 29/04/2013 written by the Respondent No.1 to the Chief Engineer, SWD wherein it was stated by the Opponent No.1 that the Municipal Corporation of Greater Mumbai has granted permission for covering of 'Nalla' under reference and same was revalidated up to 28/10/2006 under No.Dy.Ch.E/SWD/City & CC/2047 dated 03/12/2005. Further, the Respondent No.1 has stated that it is to submit that the construction work for covering 'Nalla' had commenced then but due to some inevitable circumstances the work had to be discontinued. Now, there is demand and pressure exerted by the slum society and the occupants of the composite building to immediately start the nalla covering work without any further delay. But in the absence of revalidation permission, Respondents were not in a position to undertake the same. Therefore, the Respondent No.1 requested that the covering permission so as to enable the Respondents to undertake the construction work of the said nalla.
[11] In response to both these arguments advanced by the learned counsel for the Appellants, learned counsel for the Respondents Nos.1 and 2 stated that the Respondents Nos.1 and 2 were ready to cover the 'Nalla' as well as to construct wall but, there are obstructions and that his clients would apply for revalidation to the municipal corporation and as soon as municipal corporation permits, the Respondents Nos.1 and 2 would commence the work and would file an affidavit of time bound programme in compliance of the order. In response to the aforesaid undertaking the learned counsel for the Respondents Nos.1 and 2 has filed an affidavit of the Respondent No.1. However, the Respondent No1, in his affidavit, has not given time bound programme as earlier undertaken and the Respondent No.1 only assured that he will try to comply with the terms and conditions of the Slum Rehabilitation Authority as per their letter dated 03/09/2011 to make fresh application for Occupancy Certificate in respect of sixth and seventh floors of the said building and on receipt of revalidation of the permission to cover the nalla, the Respondent No.1 will cover the nalla and construct compound wall. However, the Respondent No.1 has not given time limit for completing these tasks. Thus, for getting the Occupancy Certificate for the sixth and seventh floors, covering of nalla is a condition precedent and this amounts to deficiency in service on the part of the Respondents Nos.1 and 2 and for doing said work and obtaining Occupancy Certificate for the composite building time limit of six months would be reasonable and adequate. Thus, the order passed by the District Forum deserves to be set aside and appeal deserves to be partly allowed. We hold accordingly and pass the following order:-
ORDER Appeal is partly allowed.
Impugned order dated 23rd March, 2011 passed by the Additional Mumbai Suburban District Consumer Disputes Redressal Forum dismissing Consumer Complaint No.53 of 2011 is hereby set aside. Consequently, the consumer complaint is partly allowed.
Respondents/original Opponents Nos.1 and 2 jointly and severally are directed to cover Nanepada Nalla passing along the property bearing CTS No.1475 (pt) of village Mulund at J. N. Road, Mulund (W), Mumbai - 400080 for Jai Ambika Nagar CHS Ltd., under SR Scheme within a period of three months from the date of this order and on completion of said work, within a period of three months thereafter, Respondents/Opponents Nos.1 and 2 shall obtain Occupancy Certificate in respect of the composite building. It is hereby made clear that in case of failure on the part of the Respondents Nos.1 and 2 to comply with this order within the stipulated period, they shall also be liable to pay to each of the Complainants, an amount of Rs.500/- per day by way of penalty from the date of expiry of stipulated period till compliance of the order in entirety.
Rest of the claims of the Appellants/Complainants stands rejected.
In the circumstances of the case, parties shall bear their own costs.
Pronounced on 17th September, 2014 [HON'BLE MR.
JUSTICE R.C.CHAVAN] PRESIDENT [HON'BLE MR. DHANRAJ KHAMATKAR] MEMBER KVS