BEFORE :

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE AVM J. RAJENDRA, AVSM VSM (RETD.), MEMBER

For the Complainant:           Ms. Poonam Makhijani, Advocate

For the Opposite Party:        Ex-parte vide order dated 07.02.2024

ORDER

1. The present Consumer Complaint has been filed under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short, “the Act”) by Vignesh Heights Co-Operative Housing Society Limited (hereinafter referred to as the “Complainant”) against M/s Vignesh Enterprises (hereinafter referred to as the “Opposite Party”) for in deficiency in service in not complying with the obligations within the meaning and definition of deficiency under Section 2(1) (g) of the Act.
2. The facts leading upto the present Complaint are that the Complainant, registered as a Society under the Maharashtra Co-operative Societies Act, 1960, on 13.05.2013, represents members who predominantly belong to lower-middle-class families and had purchased flats constructed by the Opposite Party. The Society alleges deficiency in service and unfair trade practices by the Opposite Party, invoking provisions of the Consumer Protection Act, 1986. The Opposite Party, a partnership firm engaged in construction and development, executed agreements with flat purchasers for ownership of flats on the property located at Nandivli, Kalyan, Thane. Despite receiving the full consideration, the Opposite Party failed to obtain the Occupation Certificate (OC) from the Kalyan Dombivli Municipal Corporation, violating the provisions of the Maharashtra Ownership Flats Act, 1963 (MOFA). Instead, a Building Completion Certificate from the Gram Panchayat was obtained, which is inadequate for proper occupancy. Complainant allege that though possession was handed over by the Opposite Party, the lack of OC has resulted in irregular water supply and higher water charges being borne by the Society.
3. It is also contended that the Opposite Party collected Rs.1,10,000/- from each flat purchaser under various heads, including society formation, maintenance, and various deposits for electric meter, development charges meter connection etc., aggregating Rs.69,30,000/-. Despite this, the Opposite Party failed to form the Co-operative Housing Society, forcing members to undertake the process themselves at an additional cost. The Opposite Party also failed to execute the Conveyance Deed to transfer the plot and accrued FSI to the Society, as mandated under MOFA. Several requests and reminders to this effect were ignored, reflecting deliberate neglect.
4. The construction quality of the building was alleged to be substandard, with complaints of water leakages, non-functional lifts, defective fire-fighting systems, and incomplete amenities such as solar water heaters, rainwater harvesting systems, and garden areas, all of which were promised in the Agreement. Additionally, the stilt parking area was converted into commercial shops, contravening sanctioned plans, and no proper security measures like an entrance gate or watchman’s cabin were provided. The Society also highlighted illegal construction, including the unauthorized use of the stilt area, resulting in violations of municipal norms. Furthermore, property tax liabilities and penalties due to the absence of OC were imposed on the Society. An amount of Rs.4,35,451/- had to be paid by the Complainant to avoid recovery proceedings, for which reimbursement is sought.
5. The Complainant claims that these acts by the Opposite Party constitute serious deficiencies in service and unfair trade practices, such as extortion of funds, failing to comply with statutory obligations, providing substandard construction, and engaging in illegal activities. Despite several assurances and follow-ups, the Opposite Party failed to remedy the grievances, forcing the Complainant to file this Complaint. Complainant prays for the following reliefs:-

1. To hold and declare the Opponent to be guilty of deficiency in service as per the provision of the Consumer Protection Act, 1986.

2. To direct the Opponent to obtain regular domestic water connection for 68 flats as per requirement of Municipal Corporation.

3. To direct the Opponent to obtain Occupation Certificate from Kalyan Dombivili Municipal Corporation in respect of building named Vignesh heights consisting of stilt floor + 7 upper floors constructed on plot of land bearing survey no. 15, Hissa no.IB of village Nandivali situated at Nandivali Road, Near Sarvodaya Park, Dombivili (east).

4. The Hon'ble Forum may please to direct the Opponent to comply with their statutory and contractual obligation of executing peaceful conveyance of the property admeasuring 2270 sq.mtrs, situated on survey no. 15, Hissa no.IB of village Nandivali situated at Nandivali Road, Near Sarvodaya Park, Dombivili (east), by executing stamped and registered conveyance deed within the specified period and to pay property taxes along with penalty that may have accrue without burdening the flat owners and to perform obligation as per agreement under law.

5. To direct the Opponent to reimburse sum of Rs.4,35,451/- towards property tax paid by the Complainant along with interest @ 18% from 11-03-2017 till realization of same, amount of interest from 11-03-2017 till 11-11-2017 is sum of Rs.52,254/-.

6. To direct the Opponent to pay ail arrears of property tax till the date of executing conveyance deed, the amount of arrears till the period of 2017 is sum of Rs.4,84,580/-

7. To direct the Opponent to provide account for sum of Rs.69,30,000/-(Rupees Sixty nine lakhs thirty thousand only) i.e. Rs.1,10,000/- collected from each of member of society towards society formation charges, legal charges advance maintenance charges, taxes and others.

8. Or, in alternative, to prayer clause g, that if Opponent fails to provide the account as mentioned in prayer clause g, the Opponent be directed to refund sum of Rs.69,30,000/- along with 18% interest from 13-05-2013 till the realization of same. Interest amount is Rs. 15,13,300/- from 13-05-2013 till November 2017.

1. To direct the Opponent to provide open and stilt parking as per sanction plans.

10. To direct the Opponent to provide entrance and exit for the building.

11.  To direct the Opponent to provide water proofing for terrace.

•  To direct the Opponent to rectify the defects from Solar water Heater system and make it functional for the use of members of society.

13. To direct the Opponent to provide borewell water supply for the building.

• To direct the Opponent to provide two Lifts of reputed company with 181 mark along with invertors back up as per Agreement.

•  To direct the Opponent to remove defects from Fire Fighting Equipment and make it functional with proper demonstration for the members of Society.

16. To direct the Opponent to reimburse sum of Rs.60,000/- incurred by members of society towards the repairs and maintenance of lifts along with 18% interest from 18-07-2015 till the realization of same. The interest amount is to the tune of Rs.25,200/- from 18-07-2015 to November 2017.

17. To direct the Opponent to reimburse the expenses incurred for water tanker to the tune of Rs.2,85,000/- as per statement and bills filed on record.

18. To direct the Opponent to pay sum of Rs.15,000/- per month for provision of water from September 2017 till date the regular water connection is provided by Opponent.

19. To direct the Opponent to rectify the defects of leakages by carrying out proper repair work to the satisfaction of Complainant,

20. To direct the Opponent to pay compensation of Rs.1000/- per day from the 13-05-2013 till the actual date of executing conveyance deed with the registered society. The amount calculated from 13-05-2013 till 30-11-2017 is sumof Rs.12,90,000/-

21. That the Hon'ble Commission may be pleased to direct the Opponent to pay an amount of Rs.10.00.000/-towards compensation, mental agony and cost of the above numbered Complaint and further an amount of Rs.2,00,000/- towards incidental expenses incurred by the Complainant.

5. For such other and further reliefs as the nature and circumstances of the case may deem fit and proper.

6. We have heard the learned counsel for the Complainant. Despite being served by way of publication on 11.08.2023, the opposite party remained un-represented. Opposite Party was placed ex-parte on 07.02.2024 as he remained unrepresented despite notices and several opportunities to argue, and carefully considered the material on the record. In light of the fact that the Opposite Party failed to file its evidence or written version apart from short synopsis of arguments, the allegations of the Complainant are taken as admitted. 
7. The learned Counsel of the Complainant has argued that the opposite Party constructed a building comprising 68 flats, with individual agreements executed between the Opposite Party and each flat owner. Possession of the flats was handed over to the owners following the completion of construction, as evidenced by possession letters issued on 07.08.2013. However, the Opposite Party did not fulfill its statutory obligation of obtaining an Occupation Certificate before handing over possession, as required by applicable laws and the construction permission. Due to the absence of an Occupation Certificate, the building has not been provided with a regular domestic water supply by the local authority. The residents currently rely on limited water from outdated connections and water tankers, with costs incurred amounting to Rs.2,85,000/- up to the date of filing the complaint.
8. The Complainant further alleged that the opposite Party had collected Rs.1,10,000/- from each flat owner, amounting to a total of Rs.69,30,000/, allegedly for society registration, legal charges, taxes, and advance maintenance. Despite this, the Opposite Party failed to register the Cooperative Housing Society as required. Left with no other recourse, the flat owners formed the Society at their own expense. As per Section 6 of the Maharashtra Ownership Flats Act (MOFA), the Opposite Party was required to bear all property-related outgoings, including taxes, until the conveyance deed was executed. However, due to the Opposite Party’s failure, the society has been compelled to pay property taxes under protest, along with penalties called "Shasti," which could have been avoided had the Occupation Certificate been secured.
9. As per Complainant the Opposite Party failed to execute a conveyance deed in favor of the Society for the plot on which the building stands. Section 11 of MOFA mandates that a promoter must execute a conveyance deed to transfer ownership to the cooperative society. The Opposite Party’s inaction in this regard constitutes a significant breach of statutory and contractual obligations, depriving the society of its legal rights over the property.
10. The Complainant has also highlighted deficiencies in the provision of common amenities promised in the agreements. Essential facilities such as the solar water heating system, firefighting equipment, and elevators are either defective or entirely non-functional, resulting in frequent repair expenses for the society. Bills and inspection reports substantiate these claims. The lack of functional amenities has caused considerable inconvenience to the residents and financial strain on the society, which has been forced to bear repair and maintenance costs due to the Opposite Party’s negligence.
11. As per the evidence brought on record by the complainants, which has not been countered by the opposite party, it is apparent that the building plan in respect of the building in question has not been sanctioned by any statutory body or municipal authority. There is no document on record to indicate that the building plans were approved by the local authority. A Completion Certificate has been filed by the complainant which was issued by the Gram Panchayat, Nandivali Panchanand, Taluka Kalyan, District Thane dated 21.01.2013 purported to be the Building Completion Certificate issued to the opposite party as per the affidavit dated 10.01.2013 with regard to the building permission no. GAD/ Vashi/ 45/ 3007 dated 19.03.2008 on survey no. 15, Hissa No. 1B in the limit of Gram Panchayat Mouje Nandivali Panchanand. This document is subject to certain terms and conditions. It is not clear from this document whether the Gram Panchayat was the local planning authority authorized to issue a building completion certificate.
12. Be that as it may be, in view of the fact that a building Completion Certificate has been issued by the Gram Panchayat wherein it was for the opposite party to obtain the drinking water connection for the flat constructed. The completion certificate also mentions that water connection would be subject to payment of necessary taxes. In any case, it is the responsibility of the builder to provide the essential amenities required for occupation, including electricity, drinking water, sanitation etc. He is also liable to provide amenities provided for in the agreement entered into between the parties. It is apparent that this has not been done. Opposite party’s staying away from proceedings or filing any evidence or affidavit amounts to its admission of these alleged deficiencies.
13. In view of the discussion above, the present compliant is allowed with the following directions:-

(a)    The opposite party is directed to secure the Occupation Certificate from the Kalyan-Dombivli Municipal Corporation to execute the conveyance deed in favor of the flat owners, within three months from the date of this order.

(b)    The Opposite Party is further directed to refund the amounts collected from each member towards the formation of the society. Additionally, the Opposite Party shall refund the amounts paid by the Complainant Society for maintenance, property taxes, and expenses incurred for water tanker services. These amounts shall be refunded with interest at the rate of 6% per annum, calculated from the date of possession (07.08.2013) till the date of transfer of ownership through the conveyance deed.

(c)    The Opposite Party will also be liable for compliance with other amenities as promised in the agreement.

(d)    Opposite Party will also pay litigation cost of Rs.50,000/- to the Complainant.

Pending IAs, if any, stand disposed of with this order.