(Delivered on 29/09/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Complainant No.- Riya Tushar Bachikwar  is the daughter  of complainant No. 2- Mr.  Mahesh Haridasrao Nagulwar. Complainant No. 2 retired from  the post of Chargeman from the  office of the Ordinance Factory, Ambazari, Nagpur after the long service of 37 years.  After  reiterment  the complainant Nos. 1&2 wanted to  own house and so they purchased  one flat No. 201 on second floor in Raj Palace-1 at Mouza Besa at Rewati Nagar having  area of 614.90 sq. fts. which  was constructed  by the O.P.Nos. 1 to 3 M/s. Raj Builders and Land Developers. Complainants  purchased  the flat for  total consideration  of Rs. 18,00,000/- vide Registered  Sale Deed  dated  27/03/2014. The complainants have  contended that  the O.P.No. 3 is the son of O.P.No. 1 namely Premraj Tulsiramji Badole and Premraj Tulsiramji Badole has signed the documents as a partner of the firm.  Premraj Tulsiramji Badole also accepted  the amount on behalf of the firm as partner.  Complainants  have  alleged that  though  the possession  of the flat No. 201  was  handed over to them the O.Ps did not obtain the building  completion  certificate  as well as occupation certificate  from Nagpur Improvement  Trust.  Complainant  had issued letter to the Nagpur Improvement Trust  on 02/07/2018 and  demanded  the occupation certificate  but Nagpur Improvement  Trust orally informed  that  the construction  carried out by the O.Ps was  not as per sanctioned map and so occupation  certificate  cannot be issued. On receipt  of letter of the complainant on 02/07/2018 the Head Office of  Nagpur Improvement  Trust directed its Hanuman Nagar Branch  vide letter dated 07/09/2018 to initiate the action  against  the  illegal construction  of the O.Ps and informed the complainant.  The  complainant  has  alleged that  vide letter dated 16/10/2018 it was brought to  his knowledge that  the additional  illegal construction  had been carried out by the O.P. No.1 in  violation  of the  sanctioned map. On going through  the drawing it  was found that   one  more extra bed room  was constructed  and  living  room was enlarged by additional construction.  The complainant  had contended that  1BHK flat has been  converted into 2BHK flat.  The complainant has contended  that  50% extra construction  is done as against the sanctioned map. According to the complainant  more than 50% of the construction  was against the  sanctioned map of the Nagpur Improvement  Trust and no action taken by the O.P. despite  notice  by Nagpur Metro Region Development Authority  (NMRDA). On 26/11/2018 the complainant  requested  the Nagpur Metro Region Development Authority  (NMRDA)  to take  necessary action  but no steps  were taken and  building  completion and occupation certificate  was also not obtained.  Complainant  had contended that   in this manner the O.P. has committed  deficiency in service and also unfair trade practice  by  carrying  out construction  in violation of sanctioned  map.  The complainant  has contended  that  they had already  paid  an amount of Rs. 31,16,000/- by way of  consideration  for flat No. 201 and also an amount of Rs. 2,76,620/- toward other expenses .  The complainant Nos. 1&2 therefore, contended that  they  no longer want to   retain  the possession of the flat without  having  the necessary  sanction.  Complainant Nos. 1&2 have therefore prayed  that they were  entitled  to refund  of  Rs. 33,92,620/- along with 24% interest  as well as  10,00,000/- towards  escalation  in the price of the flat. The complainant has also  claim  of Rs. 10,00,000/- by way of  punitive damages.

2.         O.P.Nos. 1 to 3 have  appeared  and resisted  the complaint  by filing their  written version  on record.  At  the outset  the O.P.Nos. 1 to 3 have  pointed  that  the present  complaint is not tenable  in law as the complainant  had received the possession  of the flat as per sale deed  on 27/03/2014 and present  complaint  came to be filed  in the year 2019 after lapsed  of 5 years and so complaint  is barred by limitation. O.P. has denied that  the complainant  had purchased  only flat No. 201. On the contrary complainant had purchased  two flats for total cost of Rs. 25,00,000/- and it was agreed that  the expenses  regarding  Vat, sale tax, stamp duty and registration charges shall be in addition  to Rs. 25,00,000/-. The O.P.Nos. 1 to 3 have also denied  that  despite  repeated demand  the  building  completion and occupation certificate  was not obtained  from Nagpur Improvement  Trust or that  many defects of flat  were not rectified  by the O.P. On the contrary the complainant No. 2 was in habit of lodging  false complaints  to various  authorities . O.P.Nos. 1 to 3 have contended that  after  completion of scheme flats were  handed over to the flat owners and society  was also formed  by  them under deed of declaration  to  the satisfaction  of all the  owners. No objection  of any nature  was raised  by any owner regarding the construction . The O.P.Nos. 1 to 3 have contended that  the complainant No. 2 had filed on record forged documents  as well as forged  receipts  and O.P.No. 1 had already  refunded an amount of Rs. 2.50,000/-. The O.P.Nos. 1 to 3 have also contended that  the complainants  have suppressed  the agreement  of sale  dated 16/01/2013 wherein  all the conditions are mentioned.  The O.P.Nos. 1 to 3 have contended  that the possession  of the said flat  was delivered  way back in the year 2014 and scheme was handed over to the flat owners.  The complainant Nos. 1 and 2 have not approached  with clean hands and so complaint  is not tenable  in law and deserves to be  dismissed.   

3.         I have heard  Mr. Mishrikotkar, learned advocate for the  complainants and Mr. H.S. Puranik, learned advocate for the O.Ps.  I have also gone through  the evidence affidavit  as well as documents placed on record by the complainants  and the O.Ps and also  written notes of argument  filed by both the parties.

4.         At the outset  it is submitted by  Mr. Mishrikotkar, learned advocate for the complainants  that  the  complainants had purchased  flat  No. 201, admeasuring 614.90 sq. fts.  for total consideration   of Rs. 18,00,000/- on 27/03/2014 but after taking over  the possession  it was noticed by the complainant that the O.P. No. 1 had not obtained  building  completion  and occupation  certificate  from Nagpur Improvement Trust to show that  construction  of the  flat was duly sanctioned  by the Competent  Authority. Secondly, it is submitted  by Mr. Mishrikotkar, learned advocate for the complainants   that after  handing over  the possession  of the flat the O.P.Nos. 1 to 3 had carried  out illegal  construction  in violation  of the sanctioned map. It is submitted  by Mr. Mishrikotkar, learned advocate for the complainants   that  alteration  and illegal  construction  was carried out in the flat of the complainants  and the same was contrary to the sanctioned plan. Complainants therefore brought this fact to the notice of Competent Aauthority  namely Nagpur Improvement Trust as well as   Nagpur Metro Region Development Authority  (NMRDA) as per letter dated 02/07/2018. Mr. Mishrikotkar, learned advocate for the complainants  has drawn  my attention to the said letter dated 02/07/2018, copy of which is placed  on record.  By this letter complainant – Mahesh Nagulwar informed  the Nagpur Improvement Trust that  he purchased  the flat No. 201 on 27/03/2014 but construction  of the  flat was not as per  sanctioned  map. Complainant has also placed on record one copy of letter dated 07/09/2018 by which Executive Engineer, NMRDA directed  the competent authority  to take necessary action  regarding  illegal  construction. It appears from the documents filed by the complainant  that after receipt  of letters from the  complainant  inspection  was carried out and it was found that  construction  was not as per  sanctioned map and construction  was much more than the sanctioned map. Assistant Engineer, NMRDA then issued  a letter  to the present  complainant  that  illegal  construction  will have to be removed and occupation  certificate  can be issued  only after removal  and rectification  of illegal construction. Mr. Mishrikotkar, learned advocate for the complainants has drawn  my attention  to the copy  of sanctioned map which  clearly  shows the alleged  illegal construction  carried out by the O.P.No. 1 after handing over the possession of the flat to the complainant.  It is vehemently submitted by Mr. Mishrikotkar, learned advocate for the complainants  that  despite  the letters issued  by  the Nagpur Improvement Trust and NMRDA no action was taken  by the O.P. No. 1- Builders and illegal  construction  carried out  in the flat was neither  removed nor regularized. At this stage it is submitted  by  Mr. Mishrikotkar, learned advocate for the  complainants  that  as per the regulation framed  by the Nagpur Improvement Trust no building  or  part of thereof shall  be occupied or used unless occupation  certificate  has been obtained  from Chairman, NIT in prescribed format ”K” and  any person  who contravences any of the  provisions  of the regulations is liable  for prosecution. Copy of such notice was duly  received  from NIT  by one  Vijaya Gupta and same is also placed  on record.

5.         I have also heard Mr. H.S. Puranik, learned advocate for the O.P.Nos. 1 to 3 and he was  categorically  denied  that  any illegal  or any additional  construction  was carried  out  in the flat No. 201 of the complainant  as well as building.  However, copy of the sanctioned map placed on record by the complainants not only shows the illegal additional construction but also falsify  the  contention of the O.Ps.  It was easily open to the O.P. Nos. 1 to 3- builders to place on record the documents  to show that  necessary  sanction was obtained  for alleged illegal  construction and also building completion and  occupation  certificate  was obtained for  flat  No. 201  but no such  documents  have been placed  on record.  The O.Ps. have placed on record  one copy  of agreement  of sale and also  one copy  of complaint made  to Police Station  by the flat owners  to show that  the  complainant  was in habit of lodging  false complaint but O.Ps.  have only filed one complaint  dated 10/11/2018 from which  no such  inference can be drawn  against the complainant. On the other hand,  the documents  placed on record  by the complainants  only go to show that  additional  illegal construction  was carried out beyond  the sanctioned map and therefore, complainants were compelled to   reside  in the flat which  was not duly sanctioned.

6.         It is vehemently  submitted by  Mr. Mishrikotkar, learned advocate for the complainants  that  the O.P.Nos. 1 to 3 who were  partner of M/s. Raj  Builders and Land Developers  were under  obligation to  obtain   not only  necessary  sanction for construction  carried out but also  obliged  to obtain  occupancy  certificate as per guide lines laid down by the Nagpur Improvement Trust  which was statutory organization  and also to comply  with the regulation of RERA, Act which  is in force. Obviously, it was necessary  for the O.P. Nos. 1 to 3 to place on record the  occupation  and building  certificate  which was duly  supplied  to the complainants who was the flat owner  but no such  document are  placed on record nor supplied to the complainants.

7.         Here in the present case, complainants have  placed on record copy of  receipts  regarding  payment of entire  consideration   for flat as well as  other  expenses  but  no occupation  certificate  was obtained by the builders and on the  other hand , illegal construction  was carried out for which  complainants  were  not responsible or liable.

8.         It is submitted by  Mr. Mishrikotkar, learned advocate for the  complainants that the complainants   no longer come to reside  in the flat and they were entitled  for refund of amount as the O.P. Nos. 1 to 3 had indulged  in deficiency in service. On this aspect, Mr. Mishrikotkar, learned advocate for the complainants has relied  upon one  judgment  of Hon’ble National Commission in the case  of  Kiran Joshi Vs. S.M.V. Agencies Pvt. Ltd.  In that case  also there was  no delivery  of possession  of flat. It was observed  by the Hon’ble National Commission  that  in the absence  of  completion certificate  the  complainant was  not obliged to accept  the possession of the flat but  because  of dire necessity of roof over her head she had no option but to accept  the possession  on almost as is where is basis. In the present  case also no doubt the complainants  had taken delivery  of possession  of flat No. 201 but had no anticipated   any additional  illegal  construction subsequently contrary to sanction. In my view the observation made in the aforesaid  case of Kiran Joshi Vs. S.M.V. Agencies Pvt. Ltd (cited supra) squarely  applies  to the fact of the present  case.  Further  Mr. Mishrikotkar, learned advocate for the complainants  has also  relied upon  case of Rajhand Towers (P) Limited Vs. Anuradha Mishra and  M/s Rajpur Sahkari Avas Samiti Vs. Smt. Kusum Agarwal. In both these cases it is observed that the complainants were not only entitled  for an amount paid  as consideration  but were  also  entitled for registration  and miscellaneous charges.

9.         Mr. H.S Puranik, learned advocate for the O.Ps. has also taken a plea  that the present  compliant  is clearly  barred  by limitation  as the  complainant  had purchased the flat by  registered sale deed  on 27/03/2014 but  has filed the present  complaint  in the year 2019 after lapsed   of 5 years  as   provided  under section 25 A of the Consumer Protection Act, 1986.  Mr. Mishrikotkar, learned advocate for the complainants has rebutted  this contention   and has contended that  though the sale deed was executed  in the year 2014, no  Completion Certificate  was handed over and so for want of completion  certificate  cause of action  will continue. In other  word there was  continuous  cause of action  for filing of complaint.  I have also gone through  the judgment of Kiran Joshi Vs. S.M.V. Agencies Pvt. Ltd (cited supra) on which  reliance  has been placed  by the learned advocate for the complainants and so I feel that  the complaint was not  barred  by limitation.

10.       During the course of argument Mr. H.S. Puranik, learned advocate for the O.P.Nos. 1 to 3 had contended  that  the documents  namely receipts  placed  on  record  were not only  forged but  has further  contended that  the complainants  had taken  over  the possession  of flat  No.  201 in the year 2014 at the time of execution of sale deed and since then was peacefully  enjoying  the possession and occupation of the flat and so the complainants cannot claim refund of consideration  by surrendering the flat . No doubt, it is true that the complainant Nos. 1 and 2 had also  taken  possession  of the flat after making payment  of consideration  and were in peaceful possession of flat but as stated  earlier  by  me the complainants  cannot  anticipate  the illegal  construction  carried out by the O.P. Nos. 1 to 3. However,  they could no longer  retain the possession of flat  any further in the absence of sanction. In such situation  I do find force in the contention  of  Mr. Mishrikotkar, learned advocate for the complainants that  the complainants is now entitled  for refund of entire  amount of consideration  and  is also  not liable   to  retain   possession of the flat which  was without  mandatory sanction as per law.

11.       Lastly  it is submitted  by the learned  advocate  for the complainant Nos. 1&2 that  in spite of the fact that  the consideration  of the flat No. 201 of  Rs. 18,00,000/-  was paid as per sale  deed   on 27/03/2014, the O.Ps. had  from time to time received the total  sum of Rs. 31,16,000/- by way of consideration. The  complainant has also submitted the chart  of payments made by him from time to time along with  copy of receipts which only support the case of the complainants. Learned  advocate  for the complainants  has submitted  that  apart from the amount of  consideration  the  O.Ps. had also  spent  huge amount  of Rs. 2,76,620/-  by way of service tax, registration  charges, electricity  and maintenance. Mr. Mishrikotkar, learned  advocate for the complainant  has submitted that  though  the  complainant  has received  the possession  of the flat No. 201 it was  without  necessary sanction  and so the complainant  is not desirous  to retain  the possession  of the flat No. 201. I do find considerable  force in this contention. It is now well settled  by catena of decisions  that  the  complainant who was  the Consumer and  flat owner cannot be compelled   to reside  in the flat in the absence of  necessary  sanction  or occupation  certificate  in contravention  of the regulation and had an option  to seek refund.

12.       During  the course of argument  Mr. H.S. Puranik, learned  advocate for the O.Ps.  has submitted that  after taking  the possession  of the flat  the person  does not remain  the Consumer. I find myself  unable to accept  this contention. It is submitted by the learned advocate for the  complainant  that  the  complainant is  also  entitled  for Rs. 10,00,000/- towards escalation  in the price of the flat and Rs. 10,00,000/- as punitive damages for causing  physical  and mental  torture.  Here,  it needs to be pointed out that  the complainant  is very much  in possession  of the flat No. 201 since  the year 2014 and also in peace full enjoyment  thereof and so there is  no question  of grant  of compensation  towards escalation  of cost but  complainant  is  entitled  for Compensation   towards  mental  agony and harassment. It is also clear that the  O.Ps. had committed  deficiency  in service  by not obtaining  the occupation   and building  certificate  from the Competent Authority  in respect of the  alleged illegal  construction  carried out. At this stage  it is necessary  to  point out that the complainant  will have to surrender  the possession of  flat No. 201 on receipt  of refund of entire  consideration amount. In the light of the aforesaid discussion I proceed to pass the following order.

ORDER

i.          Consumer Complaint  No. CC/19/79 is partly allowed.

ii.          It is hereby  declared that  the O.Ps. have indulged in unfair  trade practice.

iii.         O.Ps. are  directed  to refund  to  the complainant an amount of Rs. 33,92,620/- along  with interest  at the rate of  15% p.a.  within one month from the date of receipt of order.   

iv.        O.Ps. are also directed to pay to  the  complainant an amount  of Rs. 75,000/-   by way of compensation towards physical and mental harassment  and  Rs. 50,000/- towards  the cost  of litigation.

v.         Complainant is directed to hand over the physical possession of the flat No. 201 to the O.Ps.  within  two weeks after receipt  of entire  decretal amount.

vi.        Copy of order be furnished to both the parties, free of cost.