Oral Order
Per Justice Shri S.B. Mhase â Honble President:
The Complainant and his Advocate and Respondent and his Advocate are present. We heard both the parties at length.
(1) This complaint is filed for directing the Opposite Party Society to pay damages of Rs.61,80,000/- towards the Flat No.20 on the 4th Floor of the Opposite Party Society from 18.07.1983 to 17.09.2009 @ Rs.20,000/- per month (i.e. 25 years and 9 months) for the amounts of licence compensation. It has been further prayed that the Opposite Party Society to be directed to pay the amount of Rs.30,90,000/- towards damages caused to Flat No.21 on 4th Floor of the Opposite Party Society from 18.07.1983 to 17.09.2009 @ Rs.10,000/- per month (i.e. for 25 years and 9 months) for a loss of license compensation and also actual cost of the complaint including expenses incurred in the correspondence etc. Any other reliefs which is just and proper in the facts and circumstances of the case.
(2) The factual matrix which are not in dispute are as follows:
The Opposite Party Society was possessed of two buildings, viz. A Wing and B Wing, one was of ground plus three and other was of ground plus two. Thus there were 19 flats. This was position in 1981. It is also not in dispute that the Society was possessed of 1200 sq. ft. F.S.I. which was not consumed by the Society. The Complainants at that time were not members of the said Society. However, the Flat No.10 was in the name of mother of the Complainant, viz. Smt. Leelavati Madhavdas Talreja and she was a member of the said Society and the Complainants were residing with her in Flat No.10. Since the Complainants were aware that the Society possessed unconsumed 1200 sq.ft. F.S.I. and since the society also desired to sell out the said FSI, there was a transaction between the Complainants and Opposite Party. The Opposite Party had sold out the said 1200 sq.ft. F.S.I. for a consideration of Rs.14,000/- and accordingly the amount of Rs.14,000/- was paid by the Complainants to the Society on 06.05.1981. It also appears that at that time the building of the Society required repairs. The repairs were valued at Rs.1,10,000/-. However, the Complainants agreed that the said repair work of the Society would be carried out by the Complainants by way of additional consideration for the sale of F.S.I. Accordingly two flats were constructed by the Complainants and they are flat Nos. 20 and 21. These flats are the subject matter of the present complaint. Since it is alleged that these flats were not allowed to be occupied by Opponents, the compensation as prayed has been asked for and thus, it has claimed that the Opposite Parties have not provided the services and there is deficiency in service and therefore the complaint.
(3) However, before filing this complaint, there is chequered history of litigation between the parties. What we find is that there was series of litigations between the parties. It appears that the Long Cause Suit No.5116/1981 was filed by the society Opponents in the City Civil Court, Mumbai, seeking injunction as against Complainant that he shall not carry out any construction. The notice of motion was moved in the said suit on 8th September, 1981 by Opponents. It was decided on 19th October, 1981 was dismissed. By the said Notice of Motion it was prayed that pending the said suit the Complainants be restrained from entering the suit property for the purpose of carrying out repairs to the building or for the purpose of construction of flats on the terrace of the building etc. As against the decision of dismissal of this motion, Appeal No. 13/1981 was preferred before the Honble High Court and the said Appeal was dismissed. Said suit is pending even today before the City Civil Court. Thus in this suit there is no interim order operative against the present Complainant.
(4) Further in the year 1983, the Opposite Party Society had also filed another Long Cause Suit No. 4283/1983 in the City Civil Court seeking an injunction against the Complainant not to construct two flats and not to seek occupancy certificate. The B.M.C. was also party to the said Suit. The said suit was dismissed on 02.09.2009 and the appeal against dismissal decree in the said suit is pending before the Honble High Court. However, both parties are not in a position to tell the lodging number or the number of the said appeal. For our purpose, what is required to be noted is that, even though suit was filed seeking injunction not to obtain occupancy certificate and/or not to issue occupancy certificate, there was no prohibitory order as against the Complainant and/or against the Municipal Corporation during the pendency of said suit and filing suit simplicitor cannot operate as an injunction or prohibition for the defendants (Complainants) in the said Suit to obtain occupancy certificate. And even though appeal as against the dismissal of Suit No.4283/1983 is pending there is no prohibitory order against Complainant. This is a position of second suit.
(5) In 1984, the suit No.2441/1984 was filed by the Society on the Original Side of the Honble High Court in respect of the dispute pertaining to the repairs of buildings. In the said suit the Society has claimed Rs.2,72,000/- by way of charges of the repairs which were carried out by the Society, as the Complainant who is Defendant in the said suit has failed to carry out the repairs as agreed at the time of sale of F.S.I. The Ld. Counsel for the Complainant states that, in fact 50% work was carried out and rest of the work was not allowed to be carried out. We need not go into pleadings of the parties in this case because matter is already subjudice before the Honble High Court. We have taken these facts on record to show in what manner the parties are fighting litigation since 1981. Ld. Counsel appearing for the Complainants states that after the sale of F.S.I. in favour of the Complainants, the Complainant had completed construction of Flat Nos. 20 and 21 in the year 1981 itself. It is also admitted on the part of the Complainants that, that in the year 1982 the application for completion and occupancy certificate was made. Ld. Counsel admits that to obtain completion certificate and occupation certificate in respect of Flat Nos. 20 and 21, was the obligation of the Complainant and the Society was not supposed to complete those formalities. From the notice which was issued by the Complainant on 22nd September, 2009, it is admitted that the flats were constructed in the year 1981 and Complainant was/is paying electricity charges since 1983 till date. In the said notice, it has been stated that the Complainants were/are in possession of the said flats. However, they cannot occupy them in view of the aforesaid suit. Thus, it is crystal clear by their notice itself that the flats were constructed in the year 1981 and they were/are in possession of the said flats and were/are paying the electricity charges. No interim injunctions were granted though there were suits against Complainants and admittedly no court has granted any interim relief in favour of the Society till today. Therefore, from all these admitted facts what we find is that that the Complainant could have pursued the application for the occupancy certificate with the Corporation. He could have also enjoyed the possession of the said flats which he possessed. We have recorded these facts to show that in what manner litigation was pending and claim or relief claimed is of 25 years after the cause of action. The above referred facts will show that there was dispute between the parties on F.S.I. started in 1981 as so called agreement of the sale for F.S.I. was dated 06.05.1981.
(6) It is further to be noted that, first dispute between the parties started by way of filing Long Cause Suit No. 5116/1981. Therefore, the dispute between the parties in respect of F.S.I. construction, occupation certificate etc. started in the year 1981, 1983 and 1984. What is to be noted is that Consumer Protection Act 1986 was passed as Act No. 68 of 1986 and it got Presidents assent on 24th December, 1986. The Section 1(3) of the said Act states that, it shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act. The notification U/sec. 1 Subsection (3) had been issued by the Central Government in respect of Provisions of Chapters I, II and IV of this Act which have come into force in the whole of India except the State of Jammu and Kashmir on 15.04.1987 vide Notification No. SO390(E) published in the Gazette of India 1987, Ext. Part II, Section 3(ii), The Provisions of Chapter III of this Act have come into force in the whole of India except the State of Jammu and Kashmir on 01.07.1987 vide Notification No. SO568(E) dated 10th June, 1987, published in the Gazette of India, 1987, Ext. Part II, Section 3(ii). On reading these two notifications, it is found that the Act has come into force in State of Maharashtra with effect from 15.04.1987 in respect of Chapter I, II and IV and in respect of Chapter III from 10th June, 1987. The composition and establishment of the Consumer Disputes Redressal Agency is provided in Chapter III and therefore, the filing of the complaint either with the District Forum and/or with the State Commission or National Commission is covered under Chapter III and the said Chapter III has come into force on 10th June, 1987. If these notifications are taken into consideration, it will be revealed that the cause of action which is reflected in the above paragraphs had commenced prior to the commencement of this Act. It is not only prior to passing of this Act by parliament, but it is equally prior to the coming into force the Chapter III. It is well settled principle of interpretation of statutes that every legislation is prospective in its application unless the legislature by express provision states that said legislation shall apply retrospectively and/or the provisions of any particular statute are retroactive in application. There is nothing in the Consumer Protection Act and in the notifications issued by the Central Government that Act is retrospective in its application and in the absence of such provision made by the parliament we cannot infer this Act as retrospective and/or retroactive and therefore, the present complaint cannot be entertained by us. No provision from this Act has been pointed out which is retroactive, though the Act may not be retrospective. In the absence of such a specific provision made by the legislature, every Act is presumed to be prospective in operation and therefore, the complaint which can be filed under Chapter III must have cause of action subsequent to commencement of the application of law as provided under Sub-section 3 of Section (1) of the said Act. Having found so we find that the present matter cannot be entertained by us, since we have noted that the Act is not retrospective or retroactive. Under these circumstances, the complaint is required to be returned and therefore, we are not entertaining the complaint.
(7) The Ld. Counsel for the Complainants at this stage submitted that, since the Suit No.4283/1983 has been dismissed on 02.09.2009, there is a cause of action in his favour and therefore the complaint can be entertained. We are not in agreement with the Ld. Counsel. Dismissal of the suit is not the cause of action. Cause of action is the bundle of facts which are necessary for the adjudication and equally necessary for grant of reliefs claimed and thus, the bundle of facts which constitutes cause of action for no occupancy of flats and claiming compensation or damages as alleged had taken place in 1981, 1983 and 1984 as reflected in the above referred litigation. Dismissal of the said suits will not be a cause of action for the purpose of filing the complaint.
(8) Viewed from any angle, firstly we are of the opinion that since cause of action is prior to commencement of the Act and the Act cannot be retrospective, we cannot entertain the complaint. Assuming that we can entertain the complaint, still in view of the facts which are of the year 1981 to 1983, the complaint is hopelessly barred. Section 24(A) was not on statute book in the year 1986 when Act was made. It was also not part of Act when Act was brought into force in 1987. It was amended in 1993 and said Section was inserted. Prior to said Section general provisions of Indian Limitation Act would have been applicable as the Consumer Protection Act has not provided for limitation and as the Act is additional remedy available to party as stated in Section 3 of Consumer Protection Act. In the absence of specific provision prescribing limitation the provision of limitation Act would apply. Therefore, from the date of cause of action as analysed above the Complainant ought to have filed complaint or suit within period of three years. Thus, the complaint is hopelessly time barred.
(9) What is important to be noted is that the Ld. Counsel states that there is a continuous cause of action and therefore, the cause of action is subsisting. We do not agree with the contention of the Ld. Counsel. Basically, as per the Agreement, the Complainant has constructed the flats. The flats, as we have stated in the earlier portion of order are in the possession of the Complainant. Complainant is paying the electricity charges of the same. The obligation to obtain the occupancy certificate from the Corporation is admittedly of the Complainant and therefore, we do not see that it is the responsibility of the Society to provide service. Because of the pendency of the suits wherein there was no stay orders operating in favour of the Society, the Complainants were not prevented from obtaining occupancy certificate and completion certificate. As regards the corporation there cannot be a continuous cause of action of completion of building. The person is supposed to make an application for getting occupancy certificate. Counsel for the Complainant states that, he made application in the year 1982. The submission of continuous cause of action is an after thought put forth at eleventh hour and is without merit. We reject the same. In the absence of injunction or stay order from appropriate Court, the Complainant could have pursued that application for getting occupancy certificate and it was possible for him in case Corporation refuses the application and/or not allowed to pursue the application to approach appropriate authority seeking direction to Corporation to consider application of the Complainant for grant of occupancy certificate. However, he cannot take benefit of his lethargy and lapses on his part and come before this State Commission for the purpose of reliefs as claimed in the complaint. The Counsel for Complainant is harping upon the order passed by this Commission in First Appeal No.617/2004 dated 22.03.2006 in the matter of Rajan Alimchandani V/s. Venus Co-operative Housing Society Ltd. and AIR 2004 Supreme Court 448 in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha. We have perused and gone through the orders and judgements. We are of view that in the facts and circumstances of present case these orders and judgements are not applicable. Thereby, we do not find any substance in admitting the complaint. Complaint is hereby rejected.