Chandigarh

StateCommission

CC/56/2024

BALWINDER KAUR - Complainant(s)

Versus

MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD. - Opp.Party(s)

SUKHANDEEP SINGH

20 Dec 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	56 of 2024
Date of Institution	:	14.05.2024
Date of Decision	:	20.12.2024

 

1]       Balwinder Kaur W/o Sarabjit Singh R/o Unit No.632 (Top Floor), The Palm Residency, Manohar Infrastructure & Constructions, New Chandigarh (Mullanpur), SAS Nagar.

2]       Mukuldeep Singh Gulati S/o Sarabjit Singh R/o Unit No.632 (Top Floor), The Palm Residency, Manohar Infrastructure & Constructions, New Chandigarh (Mullanpur), SAS Nagar.

•  

Versus

1]       Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017 through its Director/Managing Director/Chairman/Authorized signatory.

2]       Manohar Infrastructure & Constructions Pvt. Ltd, Site Office:-Village Mullanpur Garibdas, PGI Road, District SAS Nagar, Mohali, Punjab through its Director/Managing Director/Chairman/Authorized signatory.

3]       Tarninder Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.

4]       Narinderbir Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.

5]       Dhanwant Singh Sidhu Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.

6]       Effective Facility Management Private Limited., Site Add; Sector 3, New Chandigarh, SAS Nagar, Mohali through its Director/Managing Director/Chairman/Authorized signatory.

…..Opposite Parties

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                      MR. RAJESH K. ARYA, MEMBER

 

Argued by:-   Sh. Sukhandeep Singh, Advocate for the complainants.

Ms. Samridhi Goyal, Advocate proxy for Sh. Anil Mehta, Advocate for opposite parties No.1 to 3, 5 & 6.

Opposite Party No.4 – Sh. Narinderbir Singh exparte vide order dated 02.07.2024.

 

PER RAJESH  K. ARYA, MEMBER.

 

Brief facts:-

                    It is the case of the complainants that on 16.03.2019, they booked an apartment with the opposite parties in their project “Palm Residency”, New Chandigarh, SAS Nagar and as such, the opposite parties allotted Floor No.632 (Top Floor) admeasuring 1560 Sq. Ft. Super Area (approx.) vide allotment letter dated 16.03.2019, Exhibit C-1, the total consideration whereof was ₹57,00,240/-. Palm Residency Agreement was executed between the complainant and the opposite parties on 16.03.2019, Exhibit C-2. The possession of the said unit was to be delivered within a period of 30 months plus 6 months grace period from the date of the said agreement. The opposite parties issued possession notice to the complainants on 31.08.2021, Exhibit C-3 i.e. before the date of completion/handing over the physical possession of the unit complete in all respects as stipulated in the agreement. It has been averred that as per the certificate of possession, the conveyance deed was liable to be executed within stipulated period of 180 days, falling which, the allottee’s possession was to be revoked/cancelled immediately. It has further been stated that the opposite parties failed to develop the project by the committed date and in order to evade their liability, paper possession was offered to the complainants and that too in the absence of basic amenities, which is not sustainable in the eyes of law  and the same was also not accompanied with occupation and completion certificates. It has been stated that even the terms and conditions contained in the respective agreements i.e. buyers agreement and maintenance agreement are wholly one sided and heavily loaded in favour of the opposite parties and nothing has been left for the complainants therein. However, under compelling circumstances, the complainants took over possession of the unit and got the Conveyance Deed executed on 10.09.2021, Exhibit C-4.  It has further been stated that the opposite parties are charging maintenance charges from the complainants in the absence of basic amenities and also occupation and completion certificates. It has further been stated that at the time of booking of the unit, number of shortcomings were in existence at the project site and certificate dated 25.03.2024 issued by Architect highlighting the deficiency in the unit in question and unfinished development in the project has been placed on record by the complainants as Exhibit C-5 alongwith the photographs of the unit and the project as Exhibit C-6. It has further been stated that at present, the complainants are suffering at the hands of the opposite parties, since due to multiple shortcomings including cracks in the wall, seepage from the roof, unsecured common areas and other major deficiencies in the unit has caused grave harassment to the complainants. By filing this complaint, the complainants have prayed for the following directions to the opposite parties :-

1. to provide all basic amenities and facilities as promised in the brochure and in the agreement including rectification and removal of the defects of seepage etc. as per Exhinit C-5 and obtain occupation and completion certificate from the competent authorities in a time bound manner;
2. to pay compensation by way of interest on the deposited amounts from the respective due dates of payment till the completion of the project;
3. to provide all facilities and maintenance services as promised and agreed as mentioned in the maintenance agreement.
4. to waive of fixed maintenance charges till the date of issuance of final completion certificate from  the competent authority.
5. to declare the terms and conditions of agreement as unfair, which are against the interest of the complainant(s) being null and void being unfair.
6. to pay compensation on account of mental agony, physical harassment, financial loss caused to the complainants due to deficiency in service and unfair trade practice on the part of opposite parties and also cost of litigation to the tune of ₹50,000/-.

Opposite Parties No.1 to 3, 5 & 6 debarred from filing reply:-

2]                 It may be stated here that upon service, Ms. Garima Pandey, Advocate appeared on behalf of opposite parties No.1 to 3, 5 & 6 and sought time to file reply and evidence, as such, this Commission directed them to file reply on or before 23.07.2024. However, the reply was not filed even up-to the said date or by 25.07.024, on which date, 45 days period for filing the reply had already elapsed. As such, right of the opposite parties to file reply stood extinguished vide order dated 21.08.2024 in view of judgment of Hon’ble Supreme Court of India in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013.

Opposite Party No.4 proceeded exparte:-

3]                Despite due service, when none put in appearance on behalf of opposite party No.4, he was proceeded against exparte vide order dated 02.07.2024.

Evidence by complainant:-

4]       The complainants led evidence in support of their case.

Written arguments filed by opposite parties No.1 to 3, 5 & 6:-

5]                Opposite Parties No.1 to 3, 5 & 6 filed written arguments, wherein, it has been submitted that they have developed the project by providing all the basic amenities such as electricity, water supply, sewage, metalled road connectivity etc. It has further been stated that the drafts of the agreements were duly approved by RERA Authorities and submitted alongwith an application for registration. It has further been stated that the complainants never raised any objection regarding the terms of the agreement. It has further been stated that their project is a mega project and has been granted extension of time for completion of the same by the competent authorities. It has further been stated that the complainants are being charged with maintenance expenses only for the services provided to them. It has further been stated that the complainants are enjoying the amenities/facilities since the possession has been taken over and hence, they are liable to pay the maintenance charges. It has further been stated that the answering opposite parties have already applied for the completion certificate. It has further been stated that since the project is a Mega project and has been exempted from certain provisions of PAPRA Act vide notification dated 25.01.2017, it is taking a quite considerable time to the competent authority to issue completion certificate. It has been further been stated that the application for sanction of the project was moved by the opposite parties on 12.09.2011 with the Competent Authorities; that the project was approved on 22.03.2013 and the formal agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given up-to 13.06.2018; that later on exemption from the applicability of provisions of the Punjab Apartment and Property Regulation Act, 1995, (PAPR Act) stood granted by the Government on 25.01.2017 and that the Competent Authority has  granted extension for completion of the project upto 31.12.2022. Remaining averments of the complaint have been denied being wrong and prayer for dismissal of the complaint has been made by these opposite parties.

Written arguments filed by the complainants:-

6]                 In their written arguments, the complainant reiterated the  averments contained in their complaint.

7]                 We have heard the contesting parties and have gone through the record of the cases, including the written arguments/submissions filed by them, very carefully.

Observations/findings of this Commission:-

8]                No doubt, in the absence of any written version & evidence from the side of the opposite parties, the averments made in the complaint have gone unrebutted yet we would like to deal with the rival contentions of the parties as under. However, before doing that, it is apposite to mention here that identical issues/controversy relating to the same project i.e. “Palm Residency, New Chandigarh, SAS Nagar” has already been settled by this Commission in a bunch of consumer complaints, the lead case being “Satish Kumar Sahore Vs. Manohar Infrastructre & Constructions Pvt. Ltd. & Ors.”, Consumer Complaint No.28 of 2023, decided on 03.01.2024. Therefore, we would like to decide this complaint also in the same manner as under:-

 

Whether, the possession of unit offered and delivered by opposite parties no.1 to 5 was valid and legal possession or not?

 

9]                 In this regard, Counsel for the complainants has specifically contended with vehemence that though possession of the unit was taken over by the complainants, yet, the said possession was nothing but a paper possession because possession letters were neither accompanied by occupation and completion certificates nor the basic amenities as promised vide brochure and also at the time of booking of the said units were in existence at the project site but possession was taken over under disadvantageous position, as failure to take over the same was to entail penalty, holding charges etc.

10]              On the other hand, Counsel for these opposite parties contended with vehemence that possession of the unit was offered and delivered after providing all the basic amenities at the project site.

11]               It is significant to mention here that the opposite parties in Clause No.4.1 of the agreement have clearly promised to deliver possession and execute sale deed in respect of the unit in question, after obtaining occupation and completion certificates. Relevant part of the said clause is reproduced hereunder:-

“…The Company shall, before execution and registration of the Deed of the Said Independent Floor to the Allottee(s), obtain from the Competent Authority, the necessary occupation and/or completion certificates in respect of the Said Building in which the Said Independent Floor is situated towards Completion of Construction, as may be required under the Applicable Law……”

 

12]              However, at the time of arguments, when we put a query to Counsel for these opposite parties, as to where is occupation and completion certificate, she was having no valid answer to it. On the other hand, she tried to wriggle out of the situation by stating that though the company has applied for partial completion certificate, yet, the competent Authority is delaying the same. In other words, it has been candidly admitted by these opposite parties that till the date of argument even, no occupation and completion certificates have been obtained qua the unit and project in question.

13]              It is significant to mention here that an occupation certificate is a legal document that authorizes the construction of the building in the eyes of the law. It certifies that the building plan is in accordance with the construction laws approved by the concerned authorities and the place is fit to be occupied. Without an Occupancy Certificate, a builder cannot guarantee basic civil amenities. Thus, obtaining an Occupancy Certificate is important before moving into a place to eliminate the risk of lawful eviction and demolition, which the opposite parties have admittedly not obtained. Similarly, completion certificate is also a vital document issued by the Government Authorities to signify the successful completion of a building construction including the basic amenities. It also serves as formal proof that the building has been constructed according to approved plans, adhering to all building codes, 

14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

 

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."

 

It is significant to mention here that the candid admission of these opposite parties, in their written arguments, to the effect that they have applied for the said completion certificate for which the Competent Authorities are taking considerable time for issuance of the same is sufficient to hold that they are not in possession of occupation and completion certificates. Thus, under these circumstances, the mere fact that the complainants have been delivered possession of their unit, in the absence of occupation and completion certificates, in no way can be termed as genuine offer of possession. Our view is supported by the observations made by the Hon’ble National Commission in Shri Rajeev Nohwar & Anr. Versus M/s Sahajanand HI TECH Construction Pvt. Ltd., Consumer Case No. 346 of 2014, decided on 06 May 2016, wherein, it was held as under:-

“………The date by which the flat was to be offered for the purpose of fitouts cannot be said to be the date for handing over the possession to the purchaser since neither the builder is under an obligation to complete the construction in all respect by that date nor can the purchaser occupy the flat at the stage of offer of fitouts.  Section (2) (i) of MOFA mandates the promotor not to allow any persons to enter into possession until a completion certificate is duly given by the authorities.  It also mandates the purchaser not to take possession of a flat until such completion certificate has been duly given.  Therefore, the date on which the flat is made available for fitouts cannot be said to be the date for delivery of possession of the flat.  Such a date, by law, cannot be a date earlier than the date on which the completion certificate/occupancy certificate is issued by the concerned authority…..” 

 

The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. &Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

         

It is, therefore, held that by offering and delivering possession of the   unit, in the absence of occupation and completion certificates, opposite parties no.1 to 5 are deficient in providing service and also adopted unfair trade practice, out of which, they cannot claim any immunity. It is, therefore, held that the possession so offered and delivered to the complainants is not a valid and legal possession.  

Whether the amenities mentioned in the brochure have been provided or not?

 

14]               Before adjudicating this controversy, it is apposite to mention here that though the brochure has not been placed on record in this case by either parties yet it is not out of place to mention here that this issue, as stated above, with regard to the amenities/facilities, promised to be provided by the opposite parties, has already been dealt with in case Satish Kumar Sahore (Supra), wherein this Commission discussed about the importance of brochure relating to this very project, by observing in Para 15 of the judgment as under:-

“15.   Before adjudicating the controversy as to whether the amenities mentioned in the brochure have been provided or not, it is necessary to discuss about the importance of brochure. It may be stated here that it is settled law that brochure is part of the promise, on which the contract is based and therefore, promises made therein could not be override or prevailed by any subsequent contract because it is based on such alluring promises given by the builder vide the brochure only that the buyers enters into the contract for purchasing units/plots in the project. Our this view is supported by the observations made by the Hon’ble National Commission in Brig. (Retd.) Kamal Sood vs M/s. DLF Universal Ltd. on 20 April, 2007, FA No.557 of 2003. Importance of brochure was also discussed by the Hon’ble National Commission in Yash Pal Marwaha vs Pushpa Builders Ltd. and anr. on 5 September, 2005, wherein despite the fact that possession had been offered and sale deed was also executed, even then, because the amenities promised in the brochure were not provided to the buyer, the builder was ordered to refund the amount paid alongwith interest to the complainant. InWg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors Versus DLF Southern Homes Pvt. Ltd. Civil Appeal No. 6239 of 2019, decided on 24.08.2020 also, the Hon’ble Supreme Court of India held that since the amenities as provided in the brochure have not been made available at the project site, as such, the  complainant therein is entitled to compensation by way of interest and also the penalty clause as provided in the agreement.

                   In order to move ahead, it is necessary to reproduce the relevant contents of the brochure Annexure C-18 which reveals that the opposite  partiesno.1 to 5 had promised following basic amenities and facilities to be provided at the project site:-

1. Sports and recreational facilities
2. 24 x 7 security
3. Modern medical facilities
4. Dedicated and ample parking;
5. Playway school
6. High school
7. Dispensary/healthcare
8. Temple
9. Gurudwara
10. Police post
11. Commercial centre/shopping malls
12. Utility market
13. Club house (A Ten Acre Paradise)
14. Swimming Pool
15. Banquet Hall
16. Football Ground
17. Fully Equipped Gym
18. Kitty Party Hall
19. Lawn Tennis Court
20. Cricket Pitch
21. Badminton Courts
22. Carom/Billards Room
23. Bar and Restaurant
24. Basket Ball Court
25. Table Tennis  Room
26. Library
27. Running Track
28. Card Room

                   Though to justify the stand of the opposite parties that all the amenities and facilities have been provided at the project site, counsel for the opposite parties no.1 to 5 while placing reliance on the photographs, Annexure R-1 and also Annexure A-4 colly. contended with vehemence that all the basic amenities as promised at the time of booking of the respective units,  stood provided at the project site, yet, in our considered opinion this contention is of no help for the reasons recorded hereinafter.

                   We have gone through the said photographs and found that most of the said photographs pertain to  green parks only and from none of these photographs it is coming out that all the basic amenities as promised vide brochure Annexure C-18 i.e. playway school, High school Dispensary/healthcare, Temple, Gurudwara, Club house (A Ten Acre Paradise), Swimming Pool, Banquet Hall,  Fully Equipped Gym, Kitty Party Hall, Cricket Pitch, Badminton Courts, Carom/Billiards Room, Bar and Restaurant, Basket Ball Court, Table Tennis  Room, Library, Card Room have still been provided at the project site. 

                   At the same time, we have also gone through the photographs of the units and the surrounding areas, placed on record by the complainant(s) i.e. Annexures C-13 colly. and C-14 colly.  which show that lot of  development work is still pending within the building where the units in question are located and also its surrounding. Seepage in walls of the building, loose wirings, paint patches, poor workmanship of sewerage pipes, open sewerage portholes, unfinished roads,  no lifts/elevators, mud rocks etc. are clearly  visible and in no manner the project/building could be said to be habitable.

                   However, during pendency of this complaint, report was sought  by this Commission from  Environmental Engineer, Punjab Pollution Control Board to clarify as to whether, the Sewerage Treatment Plant  in the project in question is  functional or not and whether the supply of drinking water is fit for human consumption or not. In compliance to the said order, Er.Gulshan Kumar, Asst. Environmental Engineer, Punjab Pollution Control Board, SAS Nagar submitted its report dated 19.10.2023, and opined that the STP is being operated regularly and efficiently. However, no report as to whether the drinking water is fit for human consumption or not at the project site was given by the said Officer.

                   Be that as it may, it is coming out from Annexure C-14 i.e. photographs of the record of STP i.e. in the register maintaining per day meter reading (which have not been disputed by the opposite parties) the entries were made therein starting from 23.08.2023 i.e. after the period of more than 3 ½ years from the date of offering and delivering possession of the units in question. Under these circumstances, no benefit can be given to the opposite parties in the matter, especially, when it is a proved case that they have failed to obtain occupation and completion certificates even till the date of final arguments in these complaints. Thus, by not providing all the basic amenities as promised vide brochure and agreements, referred to above, and on the other hand, forcing the complainants to take over possession and pay huge maintenance charges, the opposite parties no.1 to 5 indulged into unfair trade practice and are also deficient and negligent in providing service.”

15]              However, in the instant case, opposite parties No.1 to 5, have failed to prove on record, by leading any cogent and convincing evidence, that all basic amenities promised at the time of booking, as outlined in the brochure, as discussed above, had been provided at the project site. Therefore, we find the argument raised by the Counsel to be unconvincing. On the other hand, the photographs of the units and surrounding areas, submitted by the complainants [Annexure C-6 Colly. running from Page No.126 to 132 of the file), reveal significant unfinished development work. Issues such as seepage in walls, loose wiring, paint patches, poor workmanship in sewerage pipes, open sewerage portholes, unfinished roads, absence of lifts, and general poor construction quality make it clear that the project is far from habitable. Not only this, though hoardings of dispensary, club park etc. have been installed but there is no sign of these facilities and empty plots with bushes and grass are there in place of these facilities, promised to be provided by the opposite parties at the very initial stage of allotting the unit to the complainants. To corroborate the averments made in the complaint with regard to the non-provision basic amenities/facilities and non-development of the project by the opposite parties, the complainants herein have also placed on record report/certificate issued by Kamti Archiects + Designers dated 25.03.2024, Annexure C-5. Under these circumstances, the opposite parties are not entitled to any benefit in this matter, particularly given that it has been conclusively established that they have failed to obtain the necessary occupation and completion certificates, even as of the date of the final arguments in this complaint. This failure, coupled with their inability to provide the basic amenities as explicitly promised in the brochure and agreement, highlights their neglect of contractual obligations. Instead of fulfilling their commitments to deliver a fully developed and habitable project, they have proceeded to pressure the complainants into taking possession of the unit, while simultaneously demanding the payment of substantial maintenance charges. This conduct constitutes an unequivocal case of unfair trade practice as the opposite parties have not only failed to provide the services and amenities that were promised but have also acted negligently in ensuring the basic safety, habitability and completion of the project. Their actions demonstrate a clear deficiency in service violating both consumer rights and contractual agreements.

 

Whether, opposite parties No.1 to 5 can charge maintenance charges in the absence of occupation and completion certificates and also basic amenities, referred to above or not, irrespective of the fact that the complainants are in possession of their respective units?                 

 

16]              In this regard, it may be stated here that a similar question fell before the Hon’ble National Commission in the case titled as Madhusudhan Reddy R &Ors. Vs VDB Whitefield Development Private Limited & 2 Ors., Consumer Case No. 763 of 2020, decided on 25 Jan 2022, which has been decided in favour of the buyer/complainant while holding as under:-

“…Regarding the issue of maintenance charges, it is fact that, the Complainants have taken physical possession of their respective units. It would be logical that, there would be expense on the maintenance of certain common services. It is also a fact that, the Occupancy Certificate has not been obtained yet. It means that the project is not yet fully complete and that not all services promised are being provided. As per the Order of this Commission in Kamal Kishore &Anr. Versus M/s. Supertech Limited (Supra), No maintenance charge should be levied before obtaining the Occupancy Certificate. In this case, even of some of the allottees including the Complainants, have taken possession of their respective Units, it would be considered as paper possession only. So, the question of charging maintenance charge is in our considered view not proper and therefore should not have been collected and should not be collected till receipt of the Occupancy Certificate. The Complainants will be liable to pay maintenance charge only after the Occupancy Certificate is received.   

In view of the discussion above, the Consumer Complaint is partly allowed.  The Opposite Parties are directed to:

(1) Complete the construction of the flats allotted to the Complainants in all respects, duly obtaining the requisite Occupancy certificate at its own cost and responsibility and offer and give legal possession of the respective Flats to the Complainants within 3 months of the receipt of this Order.

(2) Pay delay Compensation to the Complainants @ 9 % per annum from proposed date of possession, which would include grace period as per their respective agreement on the amount deposited, till obtaining Occupancy Certificate within a period of six weeks. In case of delay beyond this period, the delay compensation will be @ 12% per annum.

(3) Not to collect any maintenance charge till the receipt of Occupancy Certificate. The advance maintenance charge as given in clause 14.5 of the Construction Agreement and any other maintenance charges so far collected should be adjusted towards the maintenance charge to be paid by the Complainants post receipt of Occupancy Certificate.…”

Similar view was taken by the Hon’ble National Commission in Kamal Kishore &Anr. Versus M/s. Supertech Limited, Consumer Case No. 1009 of 2016, decided on 14 March, 2017

“….. As stated earlier, the possession in my view could not have been offered to the allottee without completing the construction of the villa in all respects and obtaining the requisite occupancy certificate. Offering possession without obtaining the occupancy certificate is meaningless since the allottee is not permitted in law to occupy the house which does not have the requisite occupancy certificate. Therefore, the maintenance charges, in my opinion, would be payable only from the date on which the possession is offered to the complainants, after obtaining the requisite occupancy certificate and provided the construction of the villa complete in all respects at that time…”

In Cdr. Rajgopalan and ors Vs Vatika Limited, IV (2023) CPJ 127 (NC) also, similar view was reiterated by the Hon’ble National Commission, relevant part of which is reproduced hereunder:-

“…..14.   It is manifest that the opposite party has delayed the completion of the project. The flats were promised to be handed over after three years. However, the offer of possession was made between 2014 to 2016/2017 on which date admittedly there was neither an OC nor an NOC of the Fire Department. The possession offered was also linked to further financial penalty in case of refusal and hence the complainants were left with no option but to accept the possession. However, in the absence of the OC and the NOC, the possession can only be construed to be a paper possession which constitutes  deficiency in service. In view of the admitted fact that the OC and NOC from the Town and Country Planning Department and the Fire Services Department respectively were obtained only on 26.03.2015, the opposite party is liable to compensate the complainants in terms of the FBA for the delay and for the possession that was without the necessary legal clearances. Possession taken by the complainants was merely a paper possession in view of Kamal Kishore (supra) and therefore such alottees are not liable to pay any holding or maintenance charges till 26.03.2015….”

Though the ratio of law laid down by the Hon’ble National Commission in Kamal Kishore &Anr., Madhusudhan Reddy R &Ors. and Cdr. Rajgopalan and orscases (supra) is squarely applicable to the present case also, yet, this Commission also cannot lose sight of the fact that opposite parties No.1 to 5 have made some parks, roads  and STP has also been made functional at the project site [as observed in case Satish Kumar Sahore (Supra)], which is being used by the complainants/other occupants of the project and the same will definitely need regular maintenance etc. in order to maintain the same, which could be done only if some charges are borne by the complainants/other occupants. Under these circumstances, considering the principles of natural justice and fair play & equity, if we direct the complainants to make payment of maintenance charges to the extent of 30% only to opposite party no.6 that will meet the ends of justice. At the same time, the complainants shall also be liable to pay for the electricity charges and also water charges-(if water charges are applicable as per agreement), to the extent the same is being used by them at the project site. However, it is also made clear that the entire maintenance charges, if any, stood received by the opposite parties, shall be adjusted (without any deduction) towards the maintenance charges to be paid by the complainants post receipt of occupancy and completion certificates.

 

What compensation should be granted to the complainants in this case?

17]              Now coming to this question it may be stated here that Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, ‘defects in goods’ and ‘deficiencies in services’ and it works and protects consumers even in situations where they do not know their rights.

18]              In the present case, failure of opposite parties No.1 to 5 to provide complete/effective possession of the unit i.e. in the absence of occupation and completion certificates and also basic amenities referred to above, amounts to deficiency in service and in no manner it can be said that the possession so offered and delivered to the complainants is valid and legal and on the other hand, it can easily be said to be a paper possession. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered.  As such, in the present case also, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them against their unit, after expiry of period of possession date, that will meet the ends of justice.

 

Relief granted by this Commission:-

19]               For the reasons recorded above, this complaint is partly accepted, with costs as under:-

1. Opposite parties No.1 to 5  shall provide all the basic amenities and facilities as promised in the brochure and the agreement including rectification/removal of defects of seepage etc., as discussed above and also obtain occupation and completion certificates from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
2. Opposite parties No.1 to 5 shall pay to the complainants compensation by way of interest @9% p.a. from 16.03.2022 (36 months from the date of execution of agreement i.e. 16.03.2019) till 31.12.2024 on the entire deposited sale consideration, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 16.03.2022 to 31.12.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
3. Opposite parties No.1 to 5 shall pay to the complainants, compensation by way of  interest @9% p.a. on the entire deposited sale consideration, w.e.f. 01.01.2025, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above qua providing all the basic amenities and facilities including rectification/removal of defects of seepage etc., and obtaining occupation and completion certificates from the competent Authorities. 
4. Opposite party No.6 shall charge maintenance charges from the complainants only to the extent of 30% of the total charges, till compliance of directions given in para no.(i) above from January 2025 onwards. However, it is also made clear that the opposite parties shall give regular power supply/back up and also water supply to the complainants.
5. Opposite party No.6 shall adjust the advance maintenance charges payable by the complainants post receipt of occupation and completion certificates, out of the maintenance charges so far collected by it till December 2024 from the complainants, without any deduction therefrom.
6. Opposite parties No.1 to 5 shall pay to the complainants compensation to the tune of Rs.75,000/- for causing them mental agony & harassment, deficiency in providing and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.35,000/- to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.

20]               Pending application(s), if any, in this complaint stands disposed of accordingly.

21]              Certified copies of this order be sent to the parties free of charge forthwith.

22]               File be consigned to Record Room after completion.

Pronounced

20.12.2024

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

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