Narendra Kawde, Member:
1. Complainant is a Co-operative Housing Society. Earlier the original Complaint was filed through Shri Kewal C. Jain, a duly authorized representative of the Complainant Societys Adhoc Committee, alleging deficiency in service against the Opponents Mr. Kiran H. Hemani and Mr.Harsukhlal A. Hemani, who are the builders and developers of the Complainants Housing Society building. Alleging deficiency in service against the Opponents for non-compliance of statutory obligations of executing deed of conveyance, obtaining occupation certificate, management of corpus fund and maintenance, not providing amenities as per the agreement, not attending leakages and seepages in the Complainants society building, the consumer complaint is filed praying for directions for redressal of the grievances and slapped with monetary claims on account of failure to fulfil the statutory obligations as laid down under the Provisions of Maharashtra Ownership of Flats Act, 1964 (hereinafter referred to as œMOFA? for the sake of brevity).
2. Complaint was admitted, notices were served by R.P.A.D to the Opponents, Opponents failed to remain present and could not file written version, therefore, the complaint case was ordered to be proceeded ex-parte and the Complainant was directed to file affidavit in lieu of evidence under the Provisions of Section 13(2) (b) (ii) and 13(4) of the Consumer Protection Act, 1986. Complaint was subsequently amended with the permission of this Commission to correct the cause title of the Complainant since Complainant is a Registered Co.operative Housing Society having legal entity under the Provisions of Section 2(1)(m) of the Consumer Protection Act.
3. Heard Mr.Ajay Pawar, Advocate for the Complainant. Perused the record placed before us.
4. The members of the Complainant Society had purchased individual flats by way of registered agreement and they were put into possession of their respective flats by the Opponents, without obtaining occupancy certificate from the competent authorities. It is alleged in the complaint that Opponents failed to provide office premises for the Society, cabin for the security staff, proper water connection and not taken the steps for forming the co-operative Housing Society, in addition to failure to execute conveyance deed and handover the entire open space in the compound of the Society etc. From time to time, the Complainants by forming adhoc committee prior to registration of the Co-operative Housing society taken up the matter with the Opponents pointing out the lapses as enumerated in this consumer complaint in writing. Having failed all the attempts of the Complainants Society to get redressal of their grievances they have obtained detailed information under the Right to Information Act (œRTI? in short) from the Slum Rehabilitation Authority (œSRA in short) to ensure whether the Opponents have complied with all the legal requirements for issue of occupancy certificate. To their dismay the SRA has replied stating that occupancy certificate was not issued as the Opponents have not filed certain required documents for the purpose of verification and issue of occupancy certificate.
5. The Ld.Advocate of Complainants pointed out that the possession of the flats was given without obtaining occupation certificate, even though the Complainants have fulfilled their obligations by making entire payment as required under the registered agreement. It is the failure of the Opponent builder developer that they have not discharged their statutory obligations by obtaining occupancy certificate. Additionally, the Opponents as pleaded by the Ld.Advocate for the Complainant failed to form and register co-operative Housing Society of the flat buyers though the Complainants have paid requisite amount for formation of the Society and not executed deed of conveyance to transfer rights, interest ad title in favour of the Complainant Society as provided under Rule 9 of the MOFA Rules 1964. Repeated requests of the Complainant to attend leakages/seepages were not heard by the Opponents.
6. The copy of the registered agreement provides for certain amenities as per the stipulation in paragraph no.7 for which the Opponent has already collected charges from the plot buyers of the Society. The separate list of amenities which form the part of agreement and appended to this agreement on record pertains to the interior amenities required to be in place. However, we find that the Complainant has not made out any grievance about the internal amenities save for leakages/seepages in the flats. However, we find that this deficiency is not quantified in terms of expenditure required to be incurred by the Complainant.
7. Perusal of the record, documents and affidavit evidence of Complainant, we find that the registered agreement executed by the individual flats purchasers with the Opponent builder developer. The last flat purchaser was put into possession in the year 1999. Though the charges were paid by all the flat purchasers for forming the Co-operative Housing Society, yet the Opponents have not taken any steps to form the co-operative Housing Society of the flat buyers. Therefore, later on the flat buyers themselves have come together and formed the co-operative Housing Society on 22.01.2013 at their own costs as the Opponent builder developer failed to fulfil the statutory obligation under the MOFA 1963. Further, as rightly pleaded by the Complainants, statutory obligation under section 11 of the MOFA to execute conveyance deed has not been discharged by the Opponents. As a matter of fact and law, Society was required to be formed by the Opponents as early as possible and thereafter within a period of four months from the date f formation of society, deed of conveyance was required to be executed to transfer of rights, title and interest of the property in favour of the Society by the Opponents. The Opponents miserably failed to discharge their obligations in not obtaining occupation certificate from competent authorities. As ruled by the Honble Supreme Court in Civil Application No.3302/2005, (Faqir Chand Gulati V/s. Uppal Agencies Pvt. Ltd. and Anr., MANU/SC/3133/2008; III (2008) CPJ 48 (SC), the duty of the Opponent builder to obtain occupancy certificate, building completion certificate from the competent authority and handover the same to the co-operative Housing society inter alia taking up the matter by complying the perquisite did not absolve the builder developer from discharging his statutory obligations. In the instant case, there is no proof to demonstrate that the Opponents builder have complied with the prerequisites for obtaining O.C. from the SRA in this case, as the SRA has already intimated non-compliance of the requirements for issue of the Occupation Certificate.
8. The Ld.Advocate for the Complainant has drawn our attention to the Provisions of Section 6 of the MOFA which casts duty on the Opponent to pay for property taxes and other outgoings (including ground rent monthly or other taxes, taxes on income, water taxes, electricity charges, revenue assessment, interest or any mortgage with encumbrances, if any) until the property is transferred to the Co-operative Housing Society including amounts collected from the flat buyers. In the case on hand the Opponents have miserably failed to obtain occupancy certificate and to execute deed of conveyance for transfer of property (right, title and interest) in favour of the Complainant Society. As rightly pleaded by the Complainants, provisions of Section 6 of the MOFA are squarely applicable in this case for the neglect and failure of the Opponents to discharge their duty to transfer rights, title and interest in the property by executing deed of conveyance. Section 6 of the MOFA provides for liability of the Opponent builder developer to pay charges from the collected amounts and thereafter on account of outgoing since the property remained to be transferred in favour of the Complainant Society.
9. On going through the monetary claims of Complainant Society, we find that each flat purchaser has paid an amount of Rs.80,000/- as deposit towards property charges, taxes and other outgoings and additionally Rs.30,000/- also paid per head by the flat purchaser towards installation of electric meter, substation, water meter and making deposits to municipal corporation for getting permanent water connection as incorporated in registered agreement. It is the grievance of the Society that the Opponent Builder has not paid maintenance charges to the concerned municipal authorities through collected from individual flat purchaser. The claim for refund of an amount of Rs.7,80,000/- on account of maintenance and refund thereof is duly supported by documentary evidence available on record. In addition, the prayer of the Complainant for payment of maintenance charges on account of unsold flats of the Opponent builder is also supported by documentary evidence. Obviously, the Opponent builder developer failed to form the co-operative housing Society though they have collected requisite amount and the Complainants were compelled to form the society and to bear the society formation charges of Rs.63,120/-. In our opinion, these amounts claimed by the Complainant Society are due for refund by the Opponents as failure of the Opponent to transfer the property gives rise to take into account these claims. The building is pretty old and the last possession was taken over in the year 1999.
10. Amenities as provided in the agreement as stated across the Bar by the Ld.Advocate for the Complainant are by and large in possession except the proper common garden. Rest of the amenities i.e. internal roads as pleaded though in place but are not in proper condition. Therefore, amenities craved for except garden need not be taken into account in view of the submission made by the Ld. Advocate for the Complainant. Failure of Opponents to obtain occupancy certificate, execution of conveyance deed, is a deliberate act and amounts to perpetual negligence to discharge statutory obligation. Therefore, not fulfilling the statutory obligation under MOFA, liability against the Opponent builder is required to be fastened. Though the Complainants have fulfilled their obligations by making entire payment as per the registered agreement, yet the Opponent builder failed to discharge their obligations. The Opponent neither attended the grievances of the Complainants nor filed any reply and they preferred to remain absent though duly served.
11. Considering this case in totality we are of the opinion that the Complainant has made out a case of deficiency in service against the Opponent builder developer for their failure to discharge the statutory obligations under section 6 and 11 of the MOFA 1963 r/w rules 8 and 9 of the MOFA 1964. The monetary claims of the Complainant for compensation as described in the body of the judgement are supported with documentary evidence except the prayer for Rs.12,00,000/- for mental agony and hardships suffered by the Complainant Society. We are, therefore, inclined to hold that there is perpetual ad willful negligence on the part of the Opponents to discharge their statutory obligations and, thus, they have invited deficiency in service against them. Therefore, we are of the opinion that the Complainant needs to be suitable compensated by partly allowing the complaint with the directions of execution of O.C. and conveyance deed from the competent authority within time limit. We hold accordingly and pass the following order:
ORDER
(i) Complaint is partly allowed.
(ii) The Opponent builder developers are directed to obtain completion/occupation certificate and to execute conveyance deed by transferring the title, rights and interest in the land and building of the Society in favour of the Society within a period of four months from the date of this order, failing which the Opponents shall be liable to pay Rs.500/- per day to the Complainant Society till the compliance.
(iii) Opponent builder developers are directed to pay to the Complainant the following amounts with interest @9% per annum effective from 02.09.2011, within a period of four months from the date of this order, failing which enhanced interest @12% per annum would be payable till realization:
a) To pay an amount of Rs.7,80,000/- by way of refund of outgoing charges.
b) To pay an amount of Rs.4,71,899/- on account of maintenance charges against the unsold flat of the Opponent Builder Developer.
c) To Pay an amount of Rs.63,120/- towards refund of society formation charges from the date of formation.
(iv) The Opponents are directed to hand over day-to-day certified accounts and original sanctioned layout plans to the Complainant Society.
(v) Opponents to bear their own costs and pay costs of Rs.50,000/- to the Complainant Society.
(vi) Rest of the prayers of the Complainant are rejected as not specifically granted.