National Consumer Disputes Redressal
Khandelwal Friends Co-Operative ... vs Orra Realtors Pvt. Ltd. on 3 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1385 OF 2015 1. KHANDELWAL FRIENDS CO-OPERATIVE HOUSING SOCIETY LTD. (THRU ITS CHAIRMAN AND SECRETARY)
PLOT NO. 485-485, 17TH ROAD, KHAR(W), MUMBAI-400052 ...........Complainant(s) Versus 1. ORRA REALTORS PVT. LTD. (THRU ITS DIRECTORS)
KAMALA HOUSE, KAMALA CITY, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI-400013 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Anand Patwardhan, Advocate with
Mr. B.S. Sharma, Advocate For the Opp.Party : Mr. Anand Srivastava, Advocate with
Ms. Shweta S. Parihar, Advocate
Dated : 03 Jan 2017 ORDER
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
1.The complainant which is a cooperative society registered under the Maharashtra State Co-operative Societies Act, 1960, was possessed of land alongwith two buildings consisting of two plots bearing nos.485 and 486 admeasuring at 17th Road, Khar (West) in Mumbai, corresponding to CTS No. E/67 & E/68 of Village Bandra admeasuring 1714 sq. metres. The said building consisting of 20 flats and 4 garages occupied by 20 members of the complainant society. Since the said buildings were in a dilapidated condition, the complainant entered into a development agreement with the OP whereunder the said buildings were to be re-constructed thereon, as per the plans to be approved by Municipal Corporation of Greater Mumbai (MCGM). Under the said agreement, the OP was to offer to each member of the society free of cost, 35% additional carpet area on the existing carpet area, inclusive of balconies but excluding flower beds and dry balcony area inside the developed flat, subject to approval of MCGM. In case the area of the new flat was to exceed more than 35% of the existing area, the concerned member was to pay for the additional area. If the area of the new flat was to be less than 35% in excess of the existing area, the developer was to pay to such a member @ 21,000/- per sq. ft. of the carpet area to the extent it was less than 35% of the additional carpet area. The developer also agreed to pay to each member a sum calculated @ Rs.100 per month per sq. ft. of the existing carpet area towards compensation which the members would have been required to pay for acquiring alternative accommodation pending completion of construction and handing over of the flat in the new building to them after obtaining commencement certificate from MCGM. The construction of the building was expected to be completed within 24 months from the developer obtaining the commencement certificate from BMC. In the event of the construction not being completed within 24 months from the said date, and the developer not obtaining the occupancy certificate, he was to pay compensation @ Rs.125 per sq. ft. of the carpet area per month of the existing floor for a further period of three months. The said liability was to continue till possession of the new flat was handed over after obtaining the occupancy certificate. The developer in addition to the monthly compensation, was also required to pay the service tax and other Government taxes which the members of the society could be required to pay to acquire temporary accommodation. The grievance of the complainant is that neither the construction was completed within 24 months of the receipt of the commencement certificate by the OP nor has it obtained the requisite occupancy certificate. This is also the grievance of the complainant that the OP started coercing its members to take possession of their respective flats without obtaining the requisite occupancy certificate by threatening to stop the payment of rent for the alternative accommodation. The complainant is therefore, before this Commission by way of this consumer complaint seeking the following reliefs:
(a) The opponents jointly and severally be held guilty of deficiency of service and of indulging in unfair trade practices and be ordered and directed to procure the occupation certificate;
(b) The opponents be jointly and severally ordered and directed to complete the building and construction complete with all the promised amenities as stated in para 5n, above:
(c) The opponents be jointly and severally ordered and directed to pay to the members the rent as per the schedule annexed herewith and to continue to pay the rent till procuring the OC and putting the members in possession of their respective flats and pay all the statutory dues and charges payable to the Government and or Municipality;
(d) The opponents be jointly and severally ordered and directed to pay the Rs.19,23,58,096.00 being the amount for utilization of the fungible FSI, and also pay interest @ 12% per annum for the delay in payment from 01.06.2015 till its realization;
(e) The opponents be jointly and severally ordered and directed to pay a compensation of Rs.10,000/- per month from 30.04.2012, for every month of delay in procuring the OC and completing the construction with the amenities, to each of the member of the complainant society, for the anxiety and physical and mental harassment that they have been suffering for all these years;
(f) The opponents be jointly and severally ordered and directed to pay towards the cost of this complaint quantified at Rs.5,00,000/-.
2. The complaint has been resisted by the OP primarily on the ground that the complainant is not a consumer since the relationship between the parties is that of principal to principal.
3. It is not in dispute that the parties to the complaint had entered into an agreement dated 11.09.2009. Under the said agreement, the OP was to demolish the existing buildings of the complainant society and construct residential flats for allotment to its members. The OP was entitled to utilize the permitted FSI originating from the plot subject matter of the agreement and the FSI acquired by it at its own cost by way of TDR on the said property. The OP was also entitled to use and consume all FSI incidentally allowed, including free of charge or by way of payment of premium for constructing the new building of maximum permissible area. It is thus, evident that the OP was to render services of housing construction to the complainant society for consideration in the form of utilization of the permitted and acquired FSI. It is immaterial that the flats to be constructed by the OP were to be allotted to the members of the society, the material aspect being the engagement of the OP by the society for demolishing the existing building and construction of a new building consisting of residential flats for the members of the society. Though it was stated in the agreement that the agreement between the parties shall be on principal to principal basis, the aforesaid clause does not take the complainant society out of the purview of the term consumer as defined in Section 2(1)(d) of the Consumer Protection Act. Therefore, I have no hesitation in holding that the complainant society was a consumer of the OP which was to provide the service of housing construction to the said society for the benefit of its members. Therefore, this Commission does possess the requisite jurisdiction to entertain this complaint.
4. Admittedly, in terms of the agreement dated 11.09.2009, the OP was expected to complete the construction, obtain the occupancy certificate and then deliver possession of the flats to the members of the society within a period of 24 months starting from the date on which the commencement certificate was obtained by it. The said certificate admittedly was obtained on 09.04.2010. The OP therefore, should have completed the construction, obtained the occupancy certificate and then delivered physical possession of the flats to the members of the society by 30.04.2012. It is not in dispute that the OP has not obtained the requisite occupancy certificate even till date. Therefore, the OP is clearly deficient in rendering services to the complainant society.
5. It transpired during the course of arguments that several members of the complainant society have already occupied their respective flats even without the OP having obtained the requisite occupancy certificate. This was done on account of the OP taking the stand that it will not be paying the rent for acquiring alternative accommodation to them w.e.f. 01.02.2015. Vide letter dated 20.02.2015, the OP informed the society that it will pay the rent till payment towards fungible was made by them to MCGM. Thus, the OP agreed, by way of the aforesaid letter, to pay rent till the payment towards fungible was made by it to MCGM. It is an admitted position that payment towards fungible has not been made by the OP to MCGM.
6. I am in agreement with the learned counsel for the OP that those members who have already occupied their respective flats even without the OP having obtained the requisite occupancy certificate would not be entitled to any rent with effect from the date the flats were occupied by them, since the payment of rent was envisaged in order to enable the members to acquire alternative accommodation and once they had taken possession of their respective flats in the new building, they did not any more need to acquire alternative accommodation. However, such members, if any, of the society, who have not occupied their respective flats in the new building, would be entitled to payment @ Rs.125 per sq. ft. of the carpet area per month till the time the OP obtains the requisite occupancy certificate and then delivers possession of the flats to them. 7. The learned counsel for the OP submits on instructions that the construction of the building was completed long ago. The complainant also does not dispute that the construction of the building is complete and the only hurdle in the utilization of the flats is the want of the occupancy certificate from MCGM. The complaint is therefore, disposed of with the following directions:
(1) The OP shall obtain the requisite occupancy certificate in respect of building(s) in question at its own cost and responsibility, within six months from today. The OP shall do all such acts and deeds and pay all such charges as may be required for the purpose of obtaining the requisite occupancy certificate.
(2) The OP, immediately on obtaining the occupancy certificate in terms of this order, shall offer physical possession of the flats to such of the members of the society who have already not occupied their respective flats in the new building.
(3) The members of the society who have already occupied their respective flats in the new building shall be paid compensation in the form of rent @ Rs.125/- per sq. ft. of carpet area per month w.e.f. 01.07.2015 till the date on which the flats were occupied by them.
(4) Those members of the complainant society who have as yet not occupied their respective flats in the new building shall be paid compensation in the form of rent @ Rs.125/- per sq. ft. of carpet area per month w.e.f. 01.07.2015 till the date on which possession in terms of this order is offered to them after obtaining the requisite occupancy certificate.
(5) The OP shall pay Rs.5 crores to the complainant against utilization of fungible FSI as per DC rules, in terms of its letter dated 20.02.2015 within three months from today alongwith interest on that amount @ 8% per annum w.e.f. 01.06.2015.
(6) The OP shall pay a sum of Rs.25,000/- to the complainant, towards the cost of litigation.
......................J V.K. JAIN PRESIDING MEMBER