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“NCDRC” “MOFA”  PART A 3 On 8 July 1998, the appellant instituted a consumer complaint before the State Consumer Disputes Redressal Commission Mumbai 3 seeking a direction to the respondent to obtain the occupation certificate. On 7 April 2014, the respondent made an offer of a one-time settlement to the appellant, which the appellant refused by a letter dated 18 April 2014 as it was allegedly lower than the amount owed by the respondent. By its judgment and order dated 20 August 2014, the SCDRC directed the respondent to obtain an occupancy certificate within four months. The SCDRC also directed the respondent to pay, inter alia Rs. 1,00,000/- towards reimbursement of extra water charges paid. 4 On 28 December 2015, the appellant sent a legal notice to the respondent demanding the payment of outstanding dues in an amount of Rs. 3,56,42,257/- . The respondent failed to comply with the demand. Thereafter, the appellant filed an application for execution of the order of the SCDRC dated 20 August 2014. The appellant also filed a complaint 4 before the NCDRC seeking payment of Rs. 2,60,73,475/- as reimbursement of excess charges and tax paid by the members of the appellant due to the deficiency in service of the respondent and Rs. 20,00,000/- towards the mental agony and inconvenience caused to the members of the appellant.

7 On the merits of the dispute, the NCDRC observed that the complaint was filed for refund of the excess amount paid by the appellant to the authorities. In essence, the complaint was filed for recovery of this excess amount from the respondent. The NCDRC held that the respondent was not the service provider of the services for which the property tax or water charges were levied. Since these services were provided by the municipal authorities, the NCDRC held that the appellant would not fall under the definition of ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act 1986. Thus, the NCDRC dismissed the complaint as being barred by limitation and as being not maintainable under the Consumer Protection Act 1986.

17 Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property .  PART C 18 Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. 19 The NCDRC in its impugned order has held that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further, the impugned order also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of the NCDRC on both counts. Undoubtedly, the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent, the appellant society has taken appropriate action by filing a complaint before the consumer forum. The appellant  PART C is currently pursuing the execution of the order of the SCDRC arising from that complaint. However, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant society repeatedly by the municipal authorities. Despite the order of 20 August 2014, the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant, despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate, will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986.

20 We shall now briefly advert to the finding of the NCDRC on the merits of the dispute. The NCDRC has held that the appellant is not a ‘consumer’ under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further, the NCDRC has observed that the respondent is not the service provider for water or electricity and thus, the complaint is not maintainable.

21 Section 2(1)(d) of the Consumer Protection Act defines a ‘consumer’ as a person that avails of any service for a consideration. A ‘deficiency’ is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service  PART D that is required to be maintained by law. In its decisions in Wing Commander Arifur Rahman Khan & Others v. DLF Southern Homes Private Limited & Others 9 and Pioneer Urban Land Infrastructure Limited v. Govindan Raghavan 10, this Court has held that the failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service. In Treaty Construction v. Ruby Tower Cooperative Housing Society Ltd. 11, the Court also considered the question of awarding compensation for not obtaining the certificate. In that case, the Court declined to award damages as there was no cogent basis for holding the appellant liable for compensation, and assessing the quantum of compensation or assessing the loss to the members of the respondent society.