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Judgment
Heard Mr. Bhushan M Oza, Advocate, for the complainant and Mr. Amit Kumar, Sr. Advocate assisted by Ms. Vandana Sehgal, Advocate, for the opposite party.
Maharaja Retreat Co-operative Housing Society Limited has filed above complaint, for directing the opposite party to (i) complete all incomplete work as per sanctioned layout plan, obtain ‘Occupation Certificate’ & ‘Building Completion Certificate’ in respect of the building constructed on Survey No.261, C.T.S. No.620 (Part) of village Malad, Taluka Borivali, Mumbai Suburban district; (ii) to OPs-2 and 3 to accord all necessary permission within one month from the date of submission of the requisite documents by OP-1; (iii) remove tin partition between sub-plots ‘A’ & ‘B’ and all encroachments, illegal constructions on sub-plots ‘B’ & ‘C’ in conformity with the approved layout plan and provide additional area to make good the shortfall before execution of Conveyance Deed in favour of the complainant; (iv) execute the Conveyance Deed in favour of the complainant of the land and building constructed on Survey No.261, C.T.S. No.620 (Part) admeasuring 5546.26 sq.mtrs. of village Malad, Taluka Borivali, Mumbai Suburban district and its appurtenant, after clearing partition and removing encroachments & illegal construction; (v) pay outstanding Property Tax of Rs.7798939/- with interest and penalty for the period up to 31.12.2007; (vi) obtain regular water supply connection from BMC and connect the sewerage line to the main drainage system of the BMC; (vii) reimburse Rs.2800000/- paid by the complainant to BMC and Rs.150000/- being Tax Consultant’s Fee with interest @21% per annum; (viii) reimburse Rs.3106197/- with interest @21% per annum, the amount of extra-sewerage charges levied by OP-3, for not obtaining ‘Occupation Certificate’ & ‘Building Completion Certificate’; (ix) pay Rs.160827/- on account of maintenance & property tax of Flat No.102; (x) refund Rs.1296750/- with interest @21% per annum from 21.06.2007 till the date of refund, the amount of the registration and legal charges of the complainant’s society; (xi) handover all original documents pertaining to the building and land viz. the updated property card with CTS plan, set of approved & completion plans, ‘Occupation Certificate’ & ‘Building Completion Certificate’ NA permission issued by the Collector, structural construction drawings, structural calculations, electrical layout & power distribution diagram, approved lift drawings along with lift licence for the third lift, approved drawings of fire fitting system, warranty/guarantee certificate and all other certificate in possession of OP-1; (x) handover duly audited Statement of Account in respect of all the charges, fee, society registration charges, share money, legal charges, parking charges, outstanding maintenance charges of the unsold flats and refund unspent surplus money lying with it; (xi) complete all incomplete work, more particularly mentioned under clause N of the complaint and replace the defective lifts etc. within time bound schedule of three months or such other time as may be specified or in alternative pay Rs.91332912/- for completing incomplete works; (xii) pay reasonable compensation for mental agony and harassment; (xiii) pay Rs.1000000/-, as litigation costs; and (xiv) any other relief which is deemed fit and proper in the facts of the case.
The complainant stated that M/s. Ashish Developers Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The OP purchased Survey No.261, C.T.S. No.620 (Part) area 36255.5 sq. mtrs. of village Malad, Taluka Borivali, Mumbai Suburban district from its previous owners namely M/s. F.E. Dinshaw Trust and Shri Nusli Neville Wadia the Administrator of the estate of Late E.F. Dinshaw, after obtaining necessary permissions from Charity Commissioner, Appropriate Authority under Income Tax Act, 1961 and Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976 through a conveyance deed dated 11.03.1991. The OP obtained approval of re-development from Slum Improvement Authority, Municipal Corporation of Greater Mumbai on 19.04.1993. Layout Plan was sanctioned on 12.05.1993. Municipal Corporation of Greater Mumbai issued IOD dated 09.05.1995 for development of above land. M/s. Ashish Developers Limited was renamed as M/s. Ravi Ashish Land Developers Limited on 31.03.1994 (approved by Registrar of the Companies on 25.04.1994). The OP thereafter started construction of multi-storied building in the name of “Gaurav Empire” and the towers were named in different names. On coming to know about the project, the members of the complainant’s society entered into an agreement for sale with the OP for their flats in “Maharaja Retreat Tower” of “Gaurav Empire” time to time in the year 2002. As the OP delayed construction unreasonably, in spite of realizing substantial amount from the flat buyers, the flat buyers formed Maharaja Retreat Co-operative Housing Society Limited (the complainant) on 31.10.2004 which was registered on 21.06.2007 under Maharashtra Cooperative Societies Act, 1960. The complainant started following up the OP, with respect to the grievances of the flat buyers. The OP handed over possession to the flat owners of “Maharaja Retreat Tower” in the year 2006, without completing the construction as per development rules and approved layout plan and abandoned the project, withdrawing all its staffs in September, 2006. The complainant started to demand the OP to complete incomplete works, obtain “Occupation Certificate” and execute the conveyance deed of the building and land in its favour but the OP throughout neglected on one or other excuse. Although sale deed of Survey No.261, C.T.S. No.620 (Part) area 36255.5 sq. mtrs. of village Malad, Taluka Borivali, Mumbai Suburban district was executed on 11.03.1991, it is still not transferred in the Property Card, which is necessary for assessment of Property Tax I.O.D. No. CHE/5960/BP(WS)/AP (i.e. BMC approval) was issued on 06.10.1993, Commencement Certificate was issued on 09.05.1995 up to 1st slab level. Final L.O.I. was issued on 28.03.2006. The OP has not completed construction as per rules and layout plan therefore it has not applied for issue of “Occupation Certificate” & “Building Completion Certificate”. Due to not obtaining “Occupation Certificate”, the OP did not apply for regular water connection from Municipal Corporation and sewage line of the project has not been connected with regular drainage system of Municipal Corporation. The flat owners formed the complainant society on 03.10.2004, which was registered on 21.06.2007 but the OP has not executed conveyance deed of the land and building of “Maharaja Retreat Tower” in favour of the complainant, which is mandatory under Maharashtra Ownership of Flat (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). The OP is required to demarcate the land of “Maharaja Retreat Tower” as per sanctioned layout plan and ensure its total area of 12360 sq. mtrs. (i.e. 2885 sq. mtrs of sub-plot A, 1090.24 sq. mtrs. of sub-plot B and 8384.76 sq. mtrs. of sub-plot C) but it has not been done. As per sanctioned plan area of sub-plot A is 5097 sq. mtrs. but on spot it is 2885 sq. mtrs. Due to which, the flat owners have no parking space. The OP abandoned the project in September, 2006, which resulted in encroachments and illegal occupation by raising un-authorised structure in collusion with the OP and entire area of sub-plot C is under encroachment. The OP is under obligation to remove all such encroachments and illegal occupation by raising un-authorised structure. As per the brochure and sanctioned plan, the OP is required to develop luxuriant landscaped garden with children park over an area of 1859 sq. mtrs, which has not been developed. The OP is trying to raise new construction over sub-plot B as against the approved layout plan. The OP has not handed over the documents viz. the updated property card with CTS plan, set of approved & completion plans, ‘Occupation Certificate’ & ‘Building Completion Certificate’ NA permission issued by the Collector, structural construction drawings, structural calculations, electrical layout & power distribution diagram, approved drawing of water tanks and internal water pipeline, approved lift drawings along with lift licence for the third lift, approved drawings of fire fitting system, warranty/guarantee certificate and all other certificate in possession of the OP. The OP has not paid Property Tax of the period prior up to 31.12.2007 of an amount of Rs.7798939/- although as per MOFA, the OP is liable to pay Property Tax till obtaining “Occupation Certificate” & “Building Completion Certificate” and execution of conveyance deed in favour of the complainant. The complainant paid Rs.28/- lacs as Property Tax for the period of 01.04.2008 to 31.03.2009 and incurred Rs.150000/- as consultant fee in respect of liability of Property Tax, which the OP is liable to reimbursement. Due to occupation without “Occupancy Certificate” Municipal Corporation is charging 39% extra amount as water and sewerage charges. The OP is liable to pay these extra charges till obtaining “Occupation Certificate”. Flat No. 0102 is still in possession of the OP and they are liable to pay its maintenance charges and property tax proportionately. The OP has collected advance maintenance charges but no account of it is handed over to the complainant. The complainant is entitled to society registration charges, share money, application fee, entrance fee and legal and incidental expenses in it. The OP has constructed “Heena Gaurav” building as marked No.-I-6, encroaching 40 ft. wide strip of land meant for main approach road as against the approved layout plan. Several shops were constructed. A slum and toilet block came up in sub-plot C. The OP has failed to remove unauthorised hutments and structures from the land of ‘Gaurav Empire”. The OP has not completed infrastructure as per brochure and layout plan. Internal roads, internal pave yards, Hawking zone, parking zone, signboards along with roads, drainage, water mains, street lighting, illumination, storm water drainage, footpath, ducts for electrical feeder, cables, telephone, internet cables, gas pipeline, recreational ground, compound walls have not been developed. Estimated costs for developing infrastructure is about Rs.16186750/-. The building is not completed as per approved layout plan and development rules. Three automatic hi-speed lifts/elevators of reputed make have to be installed in the building “Maharaja Retreat Tower”. As required by the OP, M/s. Thyssen Krupp ECE Elevators Pvt. Ltd gave quotation on 22.03.2002 for two passenger lifts of the capacity of 10 passengers and one passenger-cum-goods lift of the capacity of 16 passengers. The OP got installed only two lifts with enormous delay i.e. one in December, 2004 and other in October, 2008. Third passenger-cum-goods lift, which is necessary for unforeseen emergency, has not been installed. Essential gadgets and amenities in lifts were not provided. Lifts of slow speed were installed. Total costs for replacement of hi-speed two lifts is Rs.14000000/- and for installation of third lift is Rs.4312000/-. As per brochure, the OP has to provide “modern fire protection system”. The building was fully occupied till end of 2006. In August, 2006, fire broke out in Flat No.1901 but fire fighting system was not installed till then. Fire fighting system as installed was not up to mark. After discussions with the OP, the complainant got rectified the defect from M/s. Vaishali Fire Systems, incurring Rs.65900/-. The OP has not provided sufficient parking. Stilt & ground floor are poorly planned for parking. Parking space has inadequate width. Out of 62 numbers of parking spaces sold by the OP, 8 parking spaces are within 6 meter of building line, which is contrary to fire safety norms. Lightening conductors are required to be installed of Indian Standard IS 2309-1989 but the OP did not install lightening conductors of ISI mark. Estimated cost of its rectification is Rs.371852.60. Two water pumps for lifting water from suction tanks to overhead tanks are required. The OP has provided non-standard water pumps. On one occasion, both the pumps broke down. The complainant incurred Rs.13000/- in its repair but in vain. The complainant incurred Rs.130000/- in installing new pumps. As per sale agreement, ample water supply from tube-wells has to be made. Estimated cost for bore-well and submersible pump is Rs.710000/-. The rooms for starter panel of FS pump as provided in lower stilts are abandoned incomplete. Several flats are facing with the problem of leakage and seepage due to poor quality of construction. The OP asked to give details of such flats, which was given on 07.09.2007 and again on 19.08.2008 however, the OP has not taken any steps for repair. Estimated cost of repair is Rs.3300000/-. In lift machine room, the OP left plastering, finishing and painting, flooring, wiring, light points and provisions of light fitting part and natural light is not adequate. Windows are of very poor quality and rain water enters through it. One of lifting hook got uprooted while lifting in October, 2008, which has not yet refitted. The construction of basement was planned to provide Gym as per Brochure. But it was abandoned incomplete midway after doing basic RRC work in the year 2006. Plastering, finishing, painting, wiring, toilets and bath room plumbing, tiling, intercom etc. are incomplete. Construction of stair from Gym to first floor has been abandoned. Railing is not provided, tiling in passages are not done. The cabinet for the safety of the electrical equipment, electrical mains of the fire water pump has not been provided. Common toilet provided in the lower stilts for the drivers and the workers is poorly designed and constructed. Estimated cost of Rs.720000/- for completing above works. Society office on the ground floor has been abandoned in incomplete state. Out of complement of 3 rooms, two have not been provided flooring, plastering, painting, windows, grills, wire/lighting, doors etc. The only room, which has been provided with windows, flooring and wiring and its attached toilets is in terrible state because of the leakage through its roof and walls. Toilets have been designed badly and finished poorly, which require re-plastering and painting. The meter rooms have been done shoddily and abandoned in incomplete condition. The cables entering/existing rooms have been laid very badly violating safety norms. One of the rooms has inadequate ventilation/light. Fire fighting equipment required for electrical fire, have not been provided. The holes in the walls have not been closed. Ground floor spaces cannot be used for parking as it should be provided doors/windows/grills and plaster finished and painted properly. The garages have not been finished. As per brochure club house was to be provided on ground floor and handed over to the complainant. However, the opposite party withdrew its staff from the site. There is heavy leakage from the roof of the club house, water drips heavily. Fall ceiling, ceiling fans and paint have been damaged. Balconies of the club house are abandoned as incomplete and grills have not been provided. Club house should be included in SRA approved plan of the ground floor along with other deviations. Estimated cost for completion of club house is Rs.107440/-. Electrical, telephone and intercom working have been done most shoddily. When the complainant took over the facilities, the wiring was jumbled up and poorly laid without any conduits, clips and junction boxes etc. Breakdown in the intercom due to defect in wiring were very common and most of the times the intercom system was not functional. Some emergency repairs have been carried out incurring Rs.36000/-. In many flats, the intercom wiring and telephone wiring inside the flats does not have conduits and the wiring has been buried in plaster of the walls. As per D.C. Rule 11a the electrical wiring has to be segregated and laid in a separate duct for safety reason. In the complainant’s building it is mixed and jumbled up the intercom, telephone, TV wiring and internet wiring etc. Intercom instruments provided are of China made, inferior in quality and purchased from the grey market with no guarantee. Estimated cost for above work is Rs.119850/-. Plastering, finishing and painting has not been done in any of the ducts. As per D.C. Rules and the Electrical Inspector instruction, a gap upto 3 inches width is provided between the floor slab and the walls enough to allow the cables and conduit wiring to pass through and is sealed at every alternate floor. In case of ducts in complainant’s building this cab width is 18 to 20 inches and hence is very dangerous to any person entering the duct as he can easily slip through it. The matter was taken up with the opposite party and it became clear, the opposite party was not interested in doing this job. The complainant closed the gap by providing floor grills incurring Rs.65000/-. Instead of entrance door of proper design, the opposite party has provided a glass door. The entrance windows need to be replaced by properly designed door of fire resistance of the fire brigade NOC. Similarly, the ducts also house, telephone and intercom wiring and violates condition No.9-I for which the special approval is necessary. Non-sealing of the shaft floor slabs at floor levels is violative of condition 9 (iv). Many of the requirements specified in appendix VIII of D.C. Rules have not been complied with. Light point, plug point and bulbs are essential inside the ducts for illuminating the working area inside the ducts which gets neither natural light nor ventilation even during day time. The estimated cost of repair of duct and re-wiring etc. is Rs.660970/-. The opposite party has not provided the design details and drawing of water tanks. The complainant is not aware whether BMC’s approval has been obtained or not as required. Under these circumstances, the complainant is not able to check whether the capacity and other design parameters are to be laid down as per BMC Rules. There is just one underground and one overhead water tank each for domestic water as well as for fire service water. Hence, cleaning of tank cannot be done properly without disrupting water supply to the residents and wastage. The bottom of the tanks have not been provided with any sump or slope for self-draining which is essential for emptying out the tank before and after cleaning and to ensure a thorough job and for minimizing non pump able dead stock. Estimated cost is Rs.2/- lacs. The opposite party has provided three rain water down take pipes on external wall which is very difficult, risky and also expensive to carry out their maintenance. Wall thickness of these and other pipes fittings used for these pipes are not of the required quality and their joining and clamping has been done poorly. The estimated cost is Rs.23500/-. The terrace waterproofing is normally guaranteed for at least 10 years. However, in the building it started deteriorating before expiry of the 10 years period. The ducts are for facilitating maintenance work. They are required to be provided proper excess and lacking arrangement from the upper floor flats at regular intervals. This has not been done. Ducts have not been plastered and finished at many places internally resulting in seepage into the flats through un-plastered patches. The working platform inside the ducts has not been done properly. The estimated cost is Rs.180000/-. The walls, columns, beams, ceilings etc. of the refuge areas have not been plastered, finished and painted fully. The proper flooring has not been done. Layout of refuge area does not meet condition No.13-A-viii & 13-A-ii of CFO’s NOC. Entrance doors of the refuge areas do not comply with condition 13-A-viii and 13-A-iv of CFO’s NOC. Adequate drinking water facility and emergency lighting facility have not been provided. Curtains made of pigeon nets are necessary to prevent pigeon nuisance. Large portion of the plot was concreted by the opposite party just two years ago. It disintegrated within six months, obviously due to deficient specs and poor quality of work. Opposite party started handing over possession of the flats in the year 2003 and by the year 2006 most of the flats have been handed over. In this process they never applied final finishing coat to the building surface and in the common areas. During these 4 years from 2003- 2006 the construction work that was being carried out simultaneously had spoiled the paint considerably and the building’s paint had started looking old. The doors of all the 28 servant toilets provided at the mid landing levels are commercial ply and the door frame of ordinary wood. The estimated cost of work is Rs.90000/-. The opposite party has not provided sufficient yard lights for illuminating the yard and those provided also have been poorly designed and not of proper quality. The obstacle lights also known as aviation light or beacon lights on the terrace of the building are not as per ICAO specifications. Kitchens in the flat are not provided with fire resistant. Geysers in bathrooms and exhaust fan in kitchens have not been provided in some of the flats. Generator set alongwith its accessories and a room which is mandatory as per fire brigade NOC has not been provided. Electrical mains of the Zopadpatti behind complainant’s building is located in the complainant’s compound. It should be shifted out of the compound to a place near the Zopadpatti. Refuse chute for high rise tower is mandatory as per DC Rule No.38-11. It has not been provided in the building resulting in society requiring to collect the refuse manually from all the 28 floors and has become a major activity recurring expenses of Rs.10000/- per month on it. On these allegations, the complaint has been filed.
The opposite party filed written reply and stated that the opposite party was owner of Survey No.261, C.T.S. No.620 (Part) area 36255.5 sq. mtrs. of village Malad through conveyance deed dated 11.03.1991. The mutation of the sale deed has been done vide Mutation Entry No.1728 dated 06.05.1994. The project was sanctioned under Slum Area Rehabilitation Scheme. In terms of Intimation of Approval dated 06.10.1993, as revised from time to time, the proposal of the OP was approved in accordance with Regulation 33(10) of Development Control Regulation. Out of total FSI, half of it has to be consumed in the slum building and half of it for sale building. Additional FSI to be generated under Regulation 33(14) D had to be consumed for construction in vacant portion of the layout. The OP has to fulfil the further condition of handing over 108 regular tenements to the SRA/MCGM for project affected persons each of carpet area of 20.90 sq.mtrs at free of costs and 473 Permanent Transit Camps (PTC), tenements under Regulation 33(14)D free of cost to the SRA. On construction of PTC tenements, additional FSI was generated which was allotted to the OP for construction of sale building in non-slum portion of the layout. The OP has built 8 rehabilitation buildings as the houses of slum dwellers and 4 building as PTC. The OP has to build 41 commercial tenements, 9 Balwadis, 9 welfare centres, 9 society offices etc. free of cost. In order to meet out the expenses of all these developments, the OP is allowed to develop and sell other building. “Maharaja Retreat” building which is building No.’G’ is one of such building. The layout plan of this building was sanctioned in 2001 for ground + stilt + 28 upper floors. Urban Land (Ceiling and Regulation) Act, 1976 was applicable to non-slum area of the land. Under the order of ULC dated 03.12.2003, the OP had to handover buildings H1 and H2. As the OP had no resource to construct building H1 and H2 at that time, it had mentioned that the buildings ‘H1’ and ‘H2’ had been abandoned in the application given before Municipal Corporation. But Layout plan, which was sanctioned in the year 2001 was not revised on 10.11.2004. Urban Land (Ceiling and Regulation) Act, 1976 was repealed in the year 2007 and the order of ULC dated 03.12.2003 has abated; therefore, the OP has right to construct buildings ‘H1’ and ‘H2’, which are now sale buildings. The building ‘G’ was completed in the year 2005 and the possession was handed over to the flat owners till 2006. The opposite party has paid Property Tax upto 31.12.2007. Since the flat owners are residing in their flats, therefore, they are liable to pay the property tax. The opposite party has applied for issue of ‘occupation certificate’ on 13.04.2013 for building ‘G’. As required by Slum Rehabilitation Authorities, the documents have been provided on 05.12.2013 but the ‘occupation certificate’ has not been issued. After handing over possession, the defect liability of the opposite party was for a period of 3 years as per MOFA which has already been expired. The complainant is liable to maintain the building. Flat No.0102 has been sold to M/s Hena Cements on 06.11.2003, and due information in this respect has been given to the complainant in April, 2009, who has also sold it to one Mr. Surendra Pratap Singh on 20.03.2013 and does not belong to the OP. The opposite party has utilised the maintenance amount collected from the flat owners in maintaining the building till the registration of the complainant society. The opposite party through letter dated 13.06.2019 demanded the details of the amount deposited by the flat owners in the head of the maintenance from the complainant, which has not been given. Initially the opposite party has installed two lifts which were operating well. Subsequently third lift has also been installed. All these lifts were of standard company. It is denied that the opposite party was required to install hi-speed lift. The fire fighting equipment has been installed in the building as per requirement of the regulation for which “no objection certificate” has already been issued. The parking spaces have also been allotted to the flat owners as per agreement. Stilt parking, lower parking as well as open space was given for parking and it is the complainant who has collected the money from the flat owners. It has been denied that the parking is of inadequate width. Lightening conductor has been installed of standard mark. The water pumps of standard make have been installed. After taking possession several flat owners have raised unauthorised construction which resulted in leakage and seepage in the building for which the opposite party is not liable. Lift machine room is fully complete and furnished. The opposite party was not liable to provide gym in the basement. So far as club house is concerned, there was some infighting therefore the construction of the club house could not be completed. The opposite party has provided intercom facility in good working condition. It is required to be maintained by the complainant. The opposite party has provided ducts of electrical intercom and TV in good condition. The water tanks have been constructed as per regulation. Rain water down take pipes have been installed as per DC Regulations. It has been denied that the terrace was not properly constructed or there was any problem of water proofing in it. The opposite party has constructed duct for water drainage which is fully safe. The flat owners have carried out extensive renovation of their individual flats as a result of which the ducts have become faulty. The refuge area has been provided as per regulation. The refuge area is separate from the flats or other community hall. The flooring of the refuge area cannot be done in the same manner as it has been done for a flat floor or for the floors of the community hall. Painting and exterior has been done of standard quality. However, the society has failed to maintain it. It has been denied that doors of the servant toilets were of poor quality of materials. It has been denied that there is inadequate and sub-standard yard light. Obstacle light has been provided in terrace. The opposite party has provided the geyser and kitchens installation as per the agreement to the flat owners. Exorbitant claim has been made without any basis. Admittedly, the possession has been delivered till 2006. Therefore, the complaint is time barred.
The complainant filed Rejoinder reply, Affidavit of Evidence of Vikrant Sakhalkar, General Secretary, Affidavit of Evidence of Prabhakar Shankar Ambike and Affidavit of Shrikant Baburao Hadke. The opposite party filed the Affidavit of Evidence of K.R. Gupta. Both the parties have filed their short synopsis of arguments.
It may be mentioned that this Commission by order dated 09.04.2015 deleted OPs-2 & 3 although OP-2 has also filed its written reply and Affidavit of Evidence. The complainant filed IA/1334/2023 and IA/1335/2023 for filing some additional evidence in respect of dispute between the parties of payment of property tax. Through IA/1421/2024, the complainant has filed the letter of Municipal Corporation dated 08.11.2023 in respect of the property tax.
We have considered the arguments of the counsel for the parties and examined the record. The first issue is raised by the opposite party that the complaint is time barred, inasmuch as admittedly possession has been handed over to all the flat owners till 2006, the complainant society was registered on 21.06.2007 and the complaint has been filed in the year 2010. Section 24-A of the Consumer Protection Act, 1986 provides two years limitation for filing the complaint. As cause of action arose on the date of possession as such, the complaint is liable to be dismissed as time barred.
In the complaint various reliefs have been claimed, for which, cause of action is continuing of the nature. Therefore, the reliefs, for which, cause of action is of the nature of continuing are not time bared. However, the relief in respect of deficiency in construction as well as the alleged incomplete work are concerned, the possession has already been taken by the flat owners till December, 2006, while this complaint was filed in April, 2010, therefore, the part of the relieves are time barred.
Constitution Bench of Supreme Court in S M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, held that a continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, where positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. If a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong.”
Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may ensure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.
Supreme Court in the cases of Lata Construction Vs. Ramesh Chandra Ramaniklal Shah, (2000) 1 SCC 586, Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) C.P.J. 12 (SC) and Samruddhi Co-operative House Society Limited Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., AIR 2022 SC428, held that if the developer fails to perform its obligation as per agreement, then it is a continuing cause of action.
The complainant has claimed relief of direction to the opposite party to obtain “occupation and completion certificate” and execute conveyance deed in favour of the complainant. So far as “occupation certificate” is concerned, according to the opposite party they have applied for occupation certificate on 30.04.2013. The documents as demanded by Slum Rehabilitation Authorities have also been supplied on 05.12.2013 but the occupation certificate has not been issued by the slum rehabilitation authorities. The developers filed Writ Petition No.1326 of 2007 which was disposed of by Bombay High Court, vide the order dated 01.11.2007, constituting a Committee to monitor with the issues relating to development and ‘occupation certificate’ of the slum rehabilitation schemes. Still ‘occupation certificate’ has not been issued.
So far as the order dated 01.11.2007 passed in Writ Petition No.1326 of 2007 and the Committee constituted by the High Court is concerned, it is looking after the slum rehabilitation schemes, while admittedly the building “Maharaja Retreat” is not under the slum rehabilitation schemes. According to the own allegation of the opposite party has applied for issue of occupation certificate on 30.04.2013 before Slum Rehabilitation Authority. If the building is outside of the slum rehabilitation schemes, then the application for issue of ‘occupation certificate’ has to be filed before Municipal Corporation. The opposite party is statutorily obligated to obtain ‘occupation certificate’. It is their duty of to bring this matter in the notice of the Committee or High Court. Building “G” has been completed and possession has been handed over in 2006 although ‘occupation certificate’ was compulsory before handing over possession, therefore, the opposite party is under legal obligation to obtain the ‘occupation certificate’ within a reasonable time. In the affidavit of Mr. S. S. Zopnde, Chief Executive Officer of Slum Rehabilitation Authority dated 24.08.2012 it is stated that the total 14 buildings had been approved out of which 9 buildings were rehabilitation buildings and 5 buildings were sale buildings. Out of 9 rehabilitation buildings, the ‘occupation certificates’ of 8 rehabilitation buildings have been issued. From this affidavit, it does not appear that the Slum Rehabilitation Authority is withholding the occupation certificate. About 18 years have expired after delivery of possession, the opposite party cannot avoid its responsibility to obtain ‘occupation certificate’ which is necessary for handing over possession as per MOFA. If any requirement is not complete then it is for the opposite party to complete it.
So far as the conveyance deed in favour of the complainant is concerned, the opposite party has taken defence that after completion of the project and formation of the societies for different building and formation of the Apex society of the project, they would execute conveyance deed in favour of the Apex society. This is a non-ending process inasmuch as about 23 years have expired after sanction of layout plan. Under MOFA, conveyance deed can be executed in favour of society for an independent building in the project. The building “Maharaja Retreat” i.e. building “G” consists 106 independent flats, therefore conveyance deed in respect of the land and building “G” is liable to be executed in favour of the complainant as there is no dispute in respect of formation of the complainant society.
There is dispute in respect of the area of the land. According to the complainant, as per sanctioned plan dated 10.11.2004, FSI ratio is 1:1 and floor area of the building “G” is 9818.13 sq. mtrs, which consists blocks-A, B & C. The opposite party, however, stated that this area of 9818.13 sq. mtrs. consists 3 buildings, namely, building “G”, “H1” & “H2”. The complainant is entitled for “G” building only, therefore, this area of 9818.13 sq. mtrs. can not to be transferred to the complainant. Relevant part the affidavit of Kanhaiya Lal Gupta filed in IA/01/2011 is reproduced as under: -
“4. I say that by and under letter dated 29th August, 2001 bearing Reference No.: CHE/875/LOP, the Original Layout dated 12th May, 1993 and 1st June, 1994 was amended by Executive Engineer (SRA) III in respect of the aforesaid property i.e., land bearing C.T.S. No. 620 (Part) situated at Village -Malad (East), KayachaPada, P/South Ward. The said amended Layout Plan shows proposed construction of Cora various Buildings including Building "G" (Maharaja Retreat) and Building "H1 & H2". A copy of the said Layout Plan is annexed hereto and marked as Exhibit "1". The entire development was commenced and carried out, in accordance with the said Layout Plan. By and under letter dated 10th November, 2004 bearing Reference No. SRA/Eng/CHE/5960/BP/WS, the Executive Engineer-III of SRA, sanctioned amended Plan for Sale Building No. "G" i.e., (Maharaja Retreat). I shall rely upon the said Plan, when produced.
I say that on the basis aforesaid sanction, the construction of Building "G" i.e., (Maharaja Retreat) was commenced and flats were sold on ownership basis. The Layout Plan annexed to the Flat Sale Agreement at Page No. 94 clearly shows the suit building as well as various other buildings, proposed in the Layout, including Building No. H1 and H2. The entire Housing Scheme was intended to be known as "Gaurav Empire". The Agreement very clearly records that after completion of the Building Maharaja Retreat, the balance FSI of the aforesaid property will vest with the Promoter i.e., Opposite Party No. 1. The Agreement also records in Clause 14 that after consumption / utilisation of total FSI of the said property including TDR and flats being sold and consideration being received, the building Maharaja Retreat shall be transferred to the Association of flat purchasers. Since it is a big Layout, the conveyance was intended to be given to Apex Society formed by several societies in the said Layout after the completion of the said Project.
I say that originally, the entire property bearing C.T.S. No. 620 (Part) belonging to the Opposite Party No. 1 was a "Slum Area" therefore, ULC Provisions were not applicable. However, as per Order dated 14th October, 1999 passed by Maharashtra Slum Areas Tribunal, the entire property bearing C.T.S. No. 620 (Part) belonging to Opposite Party No. 1 then known as M/s. Ashish Land Developers Limited, came to be divided into two parts namely, area under slum i.e., 14396.22 sq. mtrs. and the balance area i.e., 21859.28 sq. mtrs. became non-slum area. Building Nos. 11, 12, 14, 15, 17, 18 and G are the Sale Buildings constructed on the site, which are constructed on non- slum portion consuming the FSI of 1.00. All the Buildings on the non-slum portion were constructed and sold prior to ULC Order dated 3rd December, 2003. Since handing over of flats to the ULC was immediately not possible, the Opposite Party No.1 requested the ULC Authority to take monetary compensation in lieu of the flats and at that stage, intended to delete Building No. H1 and H2 and replace it by certain other Building. Therefore, the letter dated 20th February, 2004 was addressed to the ULC Authorities. However, H1 and H2 were never deleted from the sanctioned Layout. The Complainant is trying to mislead this Hon'ble Court by quoting certain portions of the Letter out of context with the sole intention to obtain interim Order and pressurise Opposite Party No.1.”
Mr. S.S. Zende, Chief Executive Officer of Slum Rehabilitation Authority in his additional affidavit sworn on 14.09.2012 has stated that the building plan was initially approved on 29.08.2001, which was in respect of buildings “G”, “H1” & “H2”. The building plan was not revised in the year 2004. It was only a modified plan submitted by the developer showing required parking spaces of the building of the complainant society.
According to the opposite party, earlier entire area of 36255.5 sq. mtrs. was under slum rehabilitation scheme and the building plan as initially sanctioned on 12.05.1993 covered the entire area. However, under the order Slum Rehabilitation Tribunal dated…. certain area was exempted from slum rehabilitation scheme. As this land came in exclusive ownership of the opposite party, the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 became applicable on it. Under the order of ULC dated 03.12.2003, the opposite party had to handover buildings H1 and H2. As the opposite party had no resource to construct building H1 and H2 at that time, it had mentioned that the buildings ‘H1’ and ‘H2’ had been abandoned in the application given before Municipal Corporation. Urban Land (Ceiling and Regulation) Act, 1976 was repealed in the year 2007 and the order of ULC dated 03.12.2003 has been abated; therefore, the opposite party is now owner of this land and has right to construct buildings ‘H1’ and ‘H2’, under Section-7-A of MOFA. The building ‘G’ was completed and the possession was handed over to the flat owners till 2006. Layout plan was further revised and LOI was issued on 28.03.2006.
The case of the opposite party in this respect appears to be convincing and liable to be accepted. However, as per building plan, as sanctioned in the year 2006 and relied by the opposite party also requires demarcating the land of each building and make a boundary wall as per clause 10 of the letter dated 28.03.2016. The opposite party is liable to construct the boundary wall of building “G” and after demarcating it and transfer to the complainant.
The dispute with respect to the property tax is concerned although after taking possession, the flat owners are liable to pay property tax but as the opposite party had undertaken to pay the property tax upto 31.12.2007. As such if any amount of property tax for the period prior to 31.12.2007 is due and is being demanded by the municipal authorities then the opposite party shall pay it within a period of two months. If no amount of property tax prior to the period of 31.12.2007 is due, the opposite party will obtain “No Dues Certificate” from the appropriate authority and handover to the complainant. According to the opposite party Flat No.0102 has been sold to M/s Heena Cements on 06.11.2003, and due information in this respect has been given to the complainant in April, 2009, M/s Heena Cements has also sold it to one Mr. Surendra Pratap Singh on 20.03.2013 and it does not belong to the OP.
The complainant has stated that due to not obtaining “occupation certificate”, the flat owners have to pay extra amount of 39% on water and sewerage charges. But no reliable evidence has been filed in this respect. On the other hand some flat owner has obtained an order from Bombay High Court, restraining Municipal Corporation from charging extra charges.
The complainant has alleged that the opposite party had collected maintenance charges from the flat buyers but it has not handed over audited accounts relating to the maintenance charges. The opposite party has utilised the maintenance amount collected from the flat owners in maintaining the building till the registration of the complainant society. The opposite party through letter dated 13.06.2019 demanded the details of the amount deposited by the flat owners in the head of the maintenance from the complainant, which has not been given. The opposite party has realized maintenance amount from the flat owners, then it is liable to give its account.
Various allegations in respect of facilities and amenities have been made in the complaint but have been denied in the written reply as well as Affidavit of Evidence of the opposite party but the complainant has not got any commission issued to verify upon the correctness of the allegations, as such no finding can be recorded in this respect.
ORDER
In the result, the complaint is partly allowed. The opposite party is directed to obtain “occupation certificate” of building “G” within a period of 3 months from the date of the judgment. The opposite party shall demarcate and raise boundary wall of building “G” in the meantime. Since, there is no fixed period for formation of the apex cooperative society, the opposite party shall execute conveyance deed in respect of the land and building “G” in favour of the complainant after obtaining occupation certificate within a period of one month. The opposite party shall apply to the municipal corporation and enquire in respect of the difference relating to the property tax of the period prior to 31.12.2007 and if there is any due, then the opposite party shall clear it within a period of two months. If there is no dues of property tax prior to 31.12.2007 then the opposite party will obtain a “no dues certificate” of that period and handover to the complainant. The opposite party shall give details of collection of maintenance charges from the flat buyers and details of expenses in maintenance. If any surplus amount is lying with the opposite party, it shall be refunded along with interest @9% per annum from July, 2007 till the date of payment to the complainant within a period of two months. If the opposite party fails to execute conveyance deed within 4 months from the date of this judgment, it shall be liable to pay penalty of Rs.one lac per month.