AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Ms. Meenakshi Midha, Advocate for the Complainant and Mr. Ashutosh Marathe for the Opposite Parties. By the order dated 24.03.2021, notices were issued to the Opposite Parties inviting objection for admission of the Complaint. After service of notice, the Opposite Parties have filed their objection on 25.02.2022 regarding maintainability of the Complaint. This Complaint has been filed seeking following reliefs: -
“a. That Opposite Parties, jointly and severally, be directed to pay to the Complainant-Society, as representing all the apartment owners, a sum of Rs.2,24,00,000/- on account of car parking charges, an amount of Rs.3,92,00,000/- on account of amounts collected vide supplementary agreement towards additional consideration ranging from Rs.5,25,000/- to Rs.10,50,000/-and average taken as Rs.7,00,000/- an amount of Rs.33,60,000/- towards refund of security deposit, a sum of Rs.1,21,24,458.62 towards shortfall of land area, an amount of Rs.4,28,12,000/- paid towards the conveyance/undivided interest in the land, a sum of Rs.5,60,000/- on account of damages for delay in executing the conveyance deed till date, an amount of Rs.57,93,103.44 on account of proposed repair and maintenance expenditure and sum of Rs.50,00,000/- for damages on account of lack of provisions of sewage treatment plant which amounts to a total claim of Rs.18,66,89,562.06 alongwith interest thereon as per particulars of claim annexed as exhibit A hereto, as and by way of compensation on account of not being able to enjoy common amenities due to several deficiencies in construction, being demanded charges qua car parking, delay in executing a deed of conveyance, being demanded additional amounts due to increase in carpet area, decreasing the total area to the project, non refund of Rs.60,000/- towards security deposit, execution of supplementary agreement, non refund of DCR non providing of additional facilities and for nuisance and harassment;
b. That Opposite Parties, jointly and severally, be directed to render true and faithful accounts, on wilful default basis, of all the monies and deposits collected by the Opposite Parties from the apartment purchasers prior to handing over possession as also up to the date of formation of the society, and they be further directed to pay to the complainant society, on behalf of all the apartment purchasers, the money that is found due and payable upon the rendering of such accounts, alongwith interest thereon at the rate of 24% per annum till payment and/or realization thereof;
c. That Opposite Parties, jointly and severally, be directed to forthwith transfer and convey to the Complainant Society the entire land and building as described in the agreements with each of the apartment owners and/or which form part of the Runwal Greens Annexe property, free of encumbrances or encroachments, and to execution and perform such acts, deeds, matters and things as may be found necessary for this purpose, or in the alternative, pay to the Complainant Society on behalf of all apartment owners for the extent of land not handed over to the Consumers/Apartment Purchasers by way of compensation;
d. That Opposite Parties, jointly and severally, be directed to forthwith rectify and/or complete all the deficiencies in the construction of the complex, including those listed in Exhibit B hereto.
e. That, in alternative to prayer d above, and without prejudice to the same, the Opposite Parties, jointly and severally, be directed to pay to the Complainant Society, for and on behalf of all the apartment purchasers, the full cost of completing the incomplete works and/or rectifying the deficiencies, as and by way of compensation for the deficiencies in the construction or costs of rectifying/completing the same;
f. That the Opposite Parties, jointly and severally, be directed to forthwith hand over and deliver to the Complainant Society all the plans, including layout/sanctioned plans, in respect of Runwal Greens Annexe project, and, upon such delivery, if it is found to be necessary, it be further directed to carry out such modifications in the construction so as to being it in line with the sanctioned plans.
g. Direct the Opposite Parties to pay compensation of Rs.5,0,000/- (Rupees Five Lakh Only) to every Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainants as a result of the above acts and omission on the part of the Opposite Parties;
h. Direct the Opposite Parties to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) to every Complainant, towards litigation costs;
i. For the costs of and incidental to the present Complaint;
j. For such further and other reliefs as the nature and circumstances of the case may required.
k. Any other relief this Hon’ble Commission may deem fit.”
In reply, it has been submitted that the Complainant consists of 56 members only while the relief has been sought for 116 members. Therefore, the Complainant Association cannot be regarded as “Voluntary Consumer Association” within the meaning of explanation to Section 35(1) (b) of the Consumer Protection Act, 1986. It has been further stated that that the Association must be formed by the builder in discharge of statutory duty as provided under Maharashtra Ownership of Flats Act, 1983. It cannot be regarded a “Voluntary Consumer Association” and the Complaint for the reliefs claimed is not maintainable.
We have considered the arguments of the Counsel for the Parties and examined the record. Explanation to Section 35 (1) (b) reads as follows: -
“Explanation.—For the purposes of this sub-section, "recognised consumer association" means any voluntary consumer association registered under any law for the time being in force.”
A copy of the bye-laws of the Complainant Association has been filed alongwith the Complaint. The objects have been given under clause 5 of the bye-laws which read as follows:-
(a) To obtain conveyance from the owner/Promoter (Builder), in accordance with the provisions of the Ownership Flats Act and the Rules made there under, or the right, title and interest, in the land with building/buildings thereon, the details of which are as hereunder: -
The building/buildings known/numbered as Runwal Chestnut constructed on the plot/plots Nos./Survey No./OTS No.68/A/12 & 681A/13/admeasuring 4199 sq. meters more particularly described in the application for registration of the Society.
(b) To manage, maintain and administer the property of the Society.
(c) To raise funds for achieving the objects of the Society.
(d) To undertake and provide for on its own account or jointly with a co operative or other institution social cultural or recreative activities.
(e) To provide Co operative Education and Training to develop Co-operative skills to its Members, Committee Members, Officers and employees of the Society.
(f) To do all things, necessary or expedient for the attainment of the objects of the Society, specified in these Bye-laws.”
The members have been defined under clause 3 (xxiv). A perusal of the Bye-laws shows that this Society was not registered by the builder in discharge of statutory duty under Maharashtra Ownership of Flats Act, 1983 rather it was a voluntarily association registered by a group of flat buyers. A perusal of definition of members shows that even a person who obtains membership subsequent to the registration of the society can also be regarded as voluntary member of the society.
So far as the argument that society formed and registered by the builder cannot be regarded as voluntary consumer association registered within the meaning of explanation to Section 35 of the Act is concerned, similar provisions is contained under Section 12 (b) of the Consumer Protection Act, 1986. A 5 Members Bench of this Commission in Engineers Limited vs. Ghaziabad Development Authority & Anr. 1986-2002 Consumer 5282 (NS) held as under: -
“Any voluntary Consumer Association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force.” It could not be intention of the legislature that the group coming into existence before any specific cause alone are eligible under Section 2 (b) (ii) to file a complaint. That would be a too narrow depiction to read. There are any number of examples where welfare associations are normally formed after taking possession of the flats to protect and promote the common interest of the users. The Complainants are completely covered by the definition given under Section 2 (b) (ii) of the Act, hence this objection of the Opp. Party No.1 is not tenable.”
Under Section 35 (1) (b) of the Act, the term has been used as “any recognized consumer association where the consumer to whom goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided, is a member of such association or not.” From the main part of Section it is clear that the only requirement is that association must be a recognized consumer association i.e. a registered consumer association according to the statutory provisions. If the word “voluntarily” as occurring in the explanation is given more weight, then the last part of Section 35 (1) (b) where it is mentioned that “is member of such association or not” will become redundant. As such, in view of the explanation limited meaning cannot be given to the main provision of the Act as held by Supreme Court in M.K. Salpekar (Dr.) vs. Sunil Kumar Shamunder Chaudhari, AIR (1988) SC 1841 and S. Sundaram Pillai vs. Pattabiraman (1985) 1 SCC 581 and M.P. Cement Manufacturers’ Association vs. State of M.P. (2004) 2 SCC 249.
For the foregoing discussion and the law laid down by this Commission, we are of the pinion that the Complainant Society is a “voluntary consumer association” and the Complaint filed on behalf of members of the Complainant Society is maintainable. Complaint is accordingly admitted. Issue notice to the Opposite Parties returnable on 30.05.2022 directing them to file written statement within 30 days from the date of receipt of the notice.