CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO. 620 OF 2008 Date of filing : 28/04/2008

@ MISC. APPL. NO. 900 OF 2008 Date of order : 04/03/2009

IN CONSUMER COMPLAINT NO. 201 OF 2004

ADDL. DISTRICT CONSUMER FORUM : THANE



Mr.Yasin Abdul Hamid Mukadam

R/at D/403, Shiv Parvati CHS Ltd.

Plot No.106-110, Sector-21,

Nerul (E), Navi Mumbai – 400 706. … Appellant/org. complainant

V/s.

Mr.Bharat Dutt

Prop. M/s.Lakshmi Constructions

205-B, Bigaplash, Sector-17,

Vashi, Navi Mumbai-400 705. … Respondent/org. O.P.


Corum : Justice Mr.B.B. Vagyani, Hon’ble President
Shri S.R. Khanzode, Hon’ble Judicial Member

Present: Mr.U.B. Wavikar, Advocate for the appellant.

Mr.P.V. Damodaran, Advocate for the respondent.

- : ORAL ORDER :-
Per Justice Mr. B.B. Vagyani, Hon’ble President

We heard Mr.U.B. Wavikar, Advocate for the appellant/org. complainant and Mr.P.V. Damodaran, Advocate for the respondent/org. O.P.

The District Consumer Forum passed an award against the builder on 18/12/2004 and gave certain directions. The org. complainant after having accepted the award filed Execution Application in 2005. The District Consumer Forum disposed of Execution Application by order dated 29/02/2008. By present appeal, org. complainant has challenged correctness of the original award dated 18/12/2004 as well as the order dated 29/02/2008 passed by District Consumer Forum in Execution Application.

There is delay of 39 months for filing appeal against original award dated 18/12/2004. The builder had also filed appeal, which was dismissed on the ground of limitation. Delay of 39 months is inordinate delay against the original award. Moreover, it cannot be forgotten that the org. complainant after having accepted the award filed Execution Application. Inordinate delay is not at all satisfactorily explained. We are therefore not inclined to condone the inordinate delay of 39 months. Prayer for condonation of delay therefore stands rejected. Consequently, appeal as against original award dated 18/12/2004 stands dismissed.

However, we entertained the appeal only as against order passed in Execution Application. The District Consumer Forum should have entertained the Execution Application and should have taken appropriate steps under Section 27 of Consumer Protection Act, 1986. The order passed by the District Consumer Forum dated 29/02/2008 in Execution Application No.101 is erroneous. The builder was directed to provide Occupancy Certificate within period of six months from the date of receipt of the order dated 18/12/2004. There is penal clause in the original award. In spite of direction, the builder has failed to give Occupancy Certificate. The complainant is in possession of Row-house since 2002. For want of Occupancy Certificate, complainant has to pay higher electricity charges. Similarly, he has to pay higher water charges for want of Occupancy Certificate. The builder is directed to pay Rs.1,000/- per year. This is the penal clause. But, this penal clause does not work. Because of negligible amount, the builder is not serious to obtain Occupancy Certificate. Approach of the District Consumer Forum is not only erroneous but perverse. In the result, we pass the following order :-

-: ORDER :-

1. Appeal filed by the complainant challenging order dated 29/02/2008 passed in Execution Application is allowed. The order dated 29/02/2008 is quashed and set aside.

2. Matter is remitted back to the District Consumer Forum for reconsideration on merits.

3. We hereby direct the District Consumer Forum to proceed with the Execution Application as per law.

4. Respondent herein is directed to pay Rs.10,000/- to the appellant by way of cost of this appeal.

5. Copies of the order be furnished to the parties.







(S. R. Khanzode) (B.B. Vagyani)

Judicial Member President