Per Shri Narendra Kawde – Hon’ble Member:

1.         The Complainant No.1 – Shree Sadguru Nagar Millennium Tower Co-Operative Housing Society Ltd., is the registered Co-operative Housing Society under the Maharashtra Co-operative Societies Act, 1960 and Complainant Nos.2 to 60 are the flat purchasers and members of the Complainant No.1 Society.  The Opponent – Mr.Jagdish Waman Rane, is the proprietor of Shree Sadguru Enterprises, who has completed construction of eight buildings named as ‘Shree Sadguru Nagar’ (hereinafter called to as Opponent Builder Developer.  The complaint has been filed by the Complainants alleging deficiency in service against the Opponent Builder Developer amongst other things for not obtaining Occupation Certificate in respect of disputed building no.8 and executed Deed of Conveyance in favour of the Society. 

2.           Complainants further aver that the builder developer handed over the possession of the flats between 6^th July, 2004 to 14the April, 2005 without obtaining occupation certificate in respect of Society building and therefore, the Complainants are under obligation to pay additional maintenance and water/penal charges to the municipal authorities.  Though as per layout the Opponent Builder Developer was to construct nine buildings only constructed eight buildings and failed to construct 9^th building and also made certain illegalities/irregularities while the construction was going on and more specifically out of 25 shops, 13 such shops are constructed unauthorisedly and illegally converting the stilt parking areas into shops as alleged by the Complainants.  Complainants aggrieved with the grievances against the Opponent builder developer filed this consumer complaint praying for issue of occupancy certificate in respect of the Society building No.8 and for directions to execute conveyance deed in favour of the Complainant No.1 Society amongst other prayers.   Further, it has also prayed for directions for removal of the occupiers of the stilt parking area to enable the Complainant Society to allot the same to its members as per the provision under the Societies bye-laws.  Complainant also prayed for reimbursement of amount of `24,70,723.50 which includes costs, penal water charges and the assessment taxes paid to the B.M.C.  Further the Complainants have also claimed compensation of `50,000/- and costs of `25,000/-.

3.         The Opponent Builder Developer appeared and filed written version and affidavit in evidence denying the contentions of the Complainant stating that Building No.8 of the Complainant Society is a part of larger layout project granted under the Slum Rehabilitation Scheme by the SRA (Slum Rehabilitation Authority). There is separate earmarking of the piece of land exclusively for the Complainant’s building no.8.   The Opponent builder developer  also stated that they are willing and ready to execute the deed of conveyance, however, due to impediments and more particularly the suit filed by original Landlord pending before the Hon’ble High Court they could not take steps to execute the deed of conveyance.  Further  also stated that all the legal impediments have been cleared and occupation certificate in respect of building Nos.1 to 7 has already been obtained and process for obtaining occupation certificate in respect of Complainant’s Society Building No.8 and also process for commencement certificate in respect of Building No.9 is in progress.  Layout sanctioned in respect of complex of nine buildings, eight buildings have been constructed and the flat purchasers have already occupied.  There was obstruction from the flat occupiers of Building No.7 to execute the work of sever/drainage line as per the sanctioned plan and therefore forced to approach to file a Civil Suit before the Dindoshi Court.  Due to pendency of the suit before the Court it was not possible for them to obtain occupancy certificate for Building No.8.  Steps to constitute the co-operative Society in respect of occupants of the Building No.8 – Complainant Society were timely taken and due to situation beyond the control, particularly, due to legal impediments and obstructions to complete sewage/drainage line to connect Complainant’s Building No.8, the occupation certificate could not be obtained from the authorities.

4.         Heard Ld.Advocates of the parties and perused the record placed before us.  It is not in dispute that the layout for construction of complex of 9 buildings was approved by the municipal authorities and also construction of eight buildings has been completed.  Flat purchasers/occupants have occupied the flats.  Suit bearing No.2180/1997 filed by original Landlord from whom the land has been purchased was filed before Hon’ble High Court, Bombay.  By order dated 6^th July, 2009 the Hon’ble High Court, Bombay, issued the decree in favour of the Opponent Builder Developer by allowing prayers clause with a direction to the Defendant (Original Landlord) to execute Deed of Conveyance within a period of four weeks and on failure to do so the Court Receiver, High Court, Bombay was directed to execute the Deed of Conveyance in favour of the Plaintiff, i.e. Opponent Builder Developer.  Another suit filed by the Opponent Builder Developer in the Civil Court at Dindoshi bearing No.481/2010 for restraining members of the Building No.7 from obstructing to carry out the execution of approved drainage/sewage line connection to the septic tank of Complainant Building No.8.  Thus both these orders are in favour of Opponent Builder Developer. 

5.         The Ld.Advocate of the Opponent Builder Developer pleaded that the delay in obtaining occupation certificate was for the bonafide reasons as explained in written notes of arguments and it was not intentional delay on the part of the Opponent Builder Developer.  Further Ld.Advocate of Opponent Builder Developer pleaded that against the order of the Civil Court, the flat occupiers of Building No.7 have filed appeal before the Hon’ble High Court, Bombay and therefore, the drainage work could not be carried out as per the plan.  Furthermore, it was submitted by the Ld.Advocate  for the Opponent Builder Developer that the original Landlord failed to execute conveyance in their favour as yet.  However, as directed by Hon’ble High Court, Bombay to execute such conveyance by Court Receiver is in progress.  The Ld.Advocate further made a statement across the Bar that the encroachment of shops has been removed and the parking lot has already been handed over to the Complainant Society.

6.         On perusal of the record the facts remains that though the orders of the Hon’ble High Court, Bombay in Suit bearing No.2180/1997and the orders of Dindoshi Civil, Court in Suit No.481/2010 were in favour of the Opponent Builder Developer, yet no concrete steps have been taken to initiate action as required to execute Deed of Conveyance and also to complete incomplete drainage/sever line approved work to connect to the Complainants’ Building No.8 septic tank.  Ld.Advocate of Complainant pleaded that Opponent Builder Developer is under statutory obligation to execute the title of conveyance i.e. Deed of Conveyance as provided under Section 11 of the Maharashtra Ownership of Flats Act 1963 (MOFA).  Hon’ble Apex Court in the case of Faqir Chand Gulati V/s.Uppal Agencies Pvt. Ltd. & Anr., reported in III (2002) CPJ 48 (SC), held that obligation of the Builder Developer is not discharged on merely applying for completion certificate.  Builder if fails to fulfil his obligation to secure completion certificate he is liable to compensate Complainants for all losses/damages.  In the case on hand, the Opponent Builder Developer obtained completion certificate in respect of Building Nos.1 to 7, however, the approved sever/drainage work is not completed to connect Complainants’ Building No.8.  On completion of this incomplete approved work such a certificate has already been obtained for Building Nos.1 to 7 from the Municipal Authorities.  Moreover, commencement of the construction to complete Building No.9 in the approved plan is yet to take place for the best reasons known to the Opponent Builder Developer.  It was also stated across the Bar that though it is a complex of all 9 buildings but each building has a separate entity with their own Co-operative Society.  Opponent Builder Developer therefore can proceed to take steps to convey the title deed in respect of the Complainants Society, especially when no order of Hon’ble High Court restraining the execution of works are issued as stated across the Bar.

7.        As regards the prayer of the Complainant in respect of removal of unauthorized work of garage, handing over vacant place of garage and accounts as prayed for have already been handed over to the Complainants’ Society as stated by Ld.Advocate of Opponent across the Bar and also stated about withdrawal of prayer for money claim by Complainants.  This statement goes undisputed as such pursis is filed by the Complainant is available on record.

8.         From the foregoing observations and pleadings of the parties, we find that the Opponent Builder Developer has incurred deficiency in service to the Complainant by not executing Deed of Conveyance and obtaining Occupation Certificate.  We hold accordingly and pass the following order:

ORDER

1.     Complaint is partly allowed.

2.     Opponent Builder Developer is directed to execute conveyance deed and obtain occupancy certificate in respect of Building No.8 of the Complainant Society within a period of six month, failing which the Opponent Builder Developer will have to pay `1,000/- per day as penalty charges to the Complainant No.1 Society.

3.     Opponent builder is directed to bear his own costs and directed to pay `20,000/- as costs to the Complainant No.1 Society.

4.     Rest of the claims of the Complainants stand rejected as not specifically admitted.

Pronounced on 18^th January, 2013.