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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Manoj P. Mhatre, Advocate, for the appellants and Mr. M.K. Tiwari, Advocate, for the respondent-2.
Narasinha Manjanath Naik (the complainant) has filed above appeal from the order of State Consumer Disputes Redressal Commission, Maharashtra, dated 03.06.2011, passed in CC/93/2009, partly allowing the complaint and directing opposite party-2/ respondent-2 to give possession of Flat No.701 or 709, admeasuring 453 sq.ft. in Oudumber Co-operative Housing Society Ltd. at Shastri Nagar, Goregaon (W), to the complainant, within one month, as permanent alternate accommodation, with Completion Certificate/ Occupation Certificate, duly issued by competent authority or alternatively to pay Rs.47/- lacs with interest @6% per annum, from the date of filing of the complaint till the date of payment and pay compensation of Rs.25000/- and cost of Rs.5000/-.
Narasinha Manjanath Naik (the appellant) filed CC/93/2009, for directing M/s. Shastri Nagar Namrata Co-operative Housing Society Ltd. and Shri Sunil R. Shah, Proprietor of M/s. Ayyappa Construction Company (the respondents) (i) to provide a flat of carpet area 443 sq.ft., in the locality as covenanted under the agreement dated 17.04.2006 or to pay Rs.47/- lacs, with price escalating thereof @5% per month, (ii) to pay Rs.25000/-, as compensation for mental agony and harassment, (iii) to pay cost of the litigation; and (iv) any other relief which is deemed fit and proper be awarded to the complainant.
The complainant stated that the complainant owned Flat No.469, admeasuring 230 sq.ft., in Building No.15 admeasuring 918.11 sq. meters leasehold land, CTS No.222 (pt), Shastri Nagar, Goregaon (West), Mumbai-400104. Building No.15 consisted total 32 flats. The flat owners of Building No.15 formed M/s. Shastri Nagar Namrata Co-operative Housing Society Ltd. (opposite party-1) (the society) and get it registered under Maharashtra Co-operative Societies Act, 1960, on 12.06.2000. The flat owners transferred their rights in their flats to the society. Thereafter, the complainant became share-holder of 5 shares in the society. Building No.15 had become an old and inhabitable. In the meeting of general body the society held on 17.04.2005, the society decided for demolition of old building and its redevelopment. The proposal of redevelopment as submitted by M/s. Ayyappa Construction Company (opposite party-2) (the developer) for construction of ground floor + eight floors (ground floor consists of shop) was accepted by the society and a registered Memorandum of Understanding was executed on 06.05.2005, which was approved in meeting of general body dated 16.05.2005. In the memorandum of understanding, the developer agreed to complete the construction within 15 months from the date of handing over of the vacant possession of the building to the developer, to give rent of 16 months @Rs.6000/- per month and shifting charges of Rs.2500/- and Rs.60000/- as compensation. After 15 months delayed penalty as 25% per month of the rent. An agreement for redevelopment was executed between the society and the developer on 05.12.2005, in which, the complainant was allotted Flat No.604 carpet area 443 sq.ft. An agreement dated 17.04.2006 was executed between the complainant, the society and the developer for allotment of Flat No.604 carpet area 443 sq.ft. and other terms and conditions. The complainant vacated his flat and handed over possession to the developer on 18.04.2006. However, the developer could get possession on entire building in January, 2008 as period of 15 months was completed in April, 2009. But permanent alternate accommodation was not allotted to the complainant, then he gave a notice dated 02.05.2009 to the opposite parties to give him Rs.47/- lacs as cost of alternate accommodation of same size in the locality. In spite of service of notice, the opposite parties did not give any reply then the complaint was filed on 19.05.2009, complaining deficiency in service.
The developer filed its written reply and contested the complaint. The material facts as stated in the complaint, have been disputed. It has been stated that the developer submitted layout plan for approval of MHADA. Narasinha Manjanath Naik and one S.V. Nalamwar lodged a complaint to Sr. Architect MHADA on 04.04.2005 and also gave fabricated letter dated 30.05.2005 allegedly issued by Dy. Registrar, MHADA, due to which, sanction of layout plan was delayed. S.V. Nalamwar, who was owner of Flat No.453, refused to vacate his flat, due to which, existing old building could not be demolished. The developer filed SCC Suit No.3238 of 2007 against S.V. Nalamwar, which was decreed on 19.12.2007 and S.V. Nalamwar was directed to vacate Flat No.453 forthwith. S.V. Nalamwar filed an appeal i.e. A.O. No.45 of 2008, in the High Court, which was dismissed on 21.01.2008. Then S.V. Nalamwar vacated Flat No.453. Due to pendency of SCC Suit No.3238 of 2007, BMC vide letter dated 11.07.2007, declined to commencement certificate to the developer. The developer had to bear expenses of other flat owners from 17.04.2006 to February, 2008, as during this period, he could not start development work on the spot. During this period, Development and Construction Regulations was amended. The developer therefore applied for amended layout plan according to amended rules. After approval of amended layout plan, commencement certificate was issued to the developer, then development work was started. The developer through letter dated 02.11.2009, informed all the flat owners that construction would be completed within one year. Due to illegal and coercive acts of the complainant and S.V. Nalamwar, the developer sustained heavy loss. Prevalent market price in the locality was from Rs.4500/- to Rs.5500/- per sq.ft. and price of alternate accommodation in the locality would be maximum Rs.25/- lacs.
The complainant filed his Rejoinder Reply, in which, the facts stated in the complaint were re-iterated. The complainant stated that the opposite party has admitted delay of construction and such the complaint be allowed for the cost of alternate accommodation. The complainant filed Affidavit of Evidence of Narasinha Manjanath Naik, Additional Affidavit of Evidence of Narasinha Manjanath Naik and documentary evidence. The developer filed Affidavit of Evidence of Gopal Agarwal and documentary evidence. The developer gave a Pursis on 30.06.2011, offering to give possession of Flat No.701 or 709, admeasuring 453 sq.ft. in Oudumber Co-operative Housing Society Ltd. at Shastri Nagar, Goregaon (W), to the complainant. State Commission, after hearing the parties, by judgment dated 30.06.2011 held that as admittedly the builder could not give possession of the flat to the complainant in terms of agreement 17.06.2006 in time. On these findings the complaint was partly allowed and order as stated above has been passed. Hence this appeal has been filed.
Only ground that has been raised in the appeal is that the appellant estimated the cost of alternate accommodation in the locality of the same size of the flat as on 19.05.2009. The appellant claimed escalation of price @5% per month. State Commission by impugned order on 30.06.2011 accepted that cost but failed to award, escalation in price. As such the order is liable to be modified to that extent.
I have considered the arguments of the counsel for the parties and examined the record. The appellant in paragraph-4 of the complaint has stated that he had estimated the cost of alternate accommodation of the same size, in the locality as Rs.47/- lakhs. The developer in paragraph-7 of the written statement has disputed this fact and stated that in the locality of the building, prevalent market price was ranging between Rs.4500/- to Rs.5500/- per sq.ft. and maximum Rs.25/- lakhs. The price of alternate accommodation was not admitted. The appellant filed his affidavit on 28.12.2010, for allowing the complaint on admission. Later on, he realized that opposite party-2 has not admitted the cost and the escalation. Then in Additional Affidavit of Evidence, Narasinha Manjanath Naik stated that he had consulted numerous Estate Agents/ Consultants and personally made inquiry at various places in the locality and found that residential premises of 443 sq.ft. was not less than Rs.7000000/- and price escalation was between 2% to 5% per month. The complainant did not file copy of Ready Reckoner of the locality or any other evidence i.e. copy of any sale deed etc. to prove his allegations, either before State Commission or before this Commission. In such circumstances, State Commission has not committed any illegality in fixing the price of alternate accommodation as originally claimed by the complainant, in the light of reply of opposite party, on 30.06.2011. All the other relief claimed by the appellant has been granted by the State Commission.
ORDER
In view of the aforesaid discussions, the appeal is dismissed.