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Judgment
Heard Mr. Pawan Kumar Ray, Advocate, for the complainant, Mr. Nihangam Maurya, Advocate, for opposite party-1 and Mr. Sangram Singh, Advocate for opposite party-3. None appeared for OP-2.
Shiromani “A” Wing C.H.S. Ltd. has filed above complaint for directing the opposite parties to (a) form Housing Co-operative Society for the entire Shiromani Tower building as promised in the letter dated 13.03.2019; (b) amalgamate the complainant society and opposite party-3; (c) convey the land described in sanctioned plan to the complainant society; (d) remove the illegal constructions on society’s office, car parking space, terraces, club house, gym, community hall, recreation grounds, open areas and other common areas and handover possession to the complainant as per plan approved in 2005; (e) handover office room No.103 on the first floor to the complainant; (f) handover two storied club house on RG-1 to the complainant; (g) account for and handover the rents earned from Bharti Airtel Ltd. for letting out the terrace for mobile antenna to the complainant; (h) handover to the complainant all original sanctioned plans, amended plans, audited/unaudited books of account; (i) pay rent of Rs.75000/- per month from 2006 till the date of handing over to the complainant for use of the society office; (j) pay damages of Rs.50/- lacs for harassment and mental agony; (k) pay Rs.5/- lacs as cost of litigation; and (l) any other orders which deems fit in the facts and circumstances of the case.
The complainant stated that it is a co-operative housing society consisting of 47 flat owners in the building Shiromani Towers, Raj Kamal Lane, Parel, Mumbai. Opposite party-1 was the builder/developer of the project Shiromani Towers. Opposite party-2 was the owner of the land on which above project is located. Opposite party-3 is also a co-operative housing society consisting of 28 flat owners in the same building. Opposite parties-1 & 2 entered into a development agreement on 04.10.2003 and a supplementary agreement on 09.08.2004, whereby OP-1 was to demolish the existing building of OP-2 and construct a new building. As per agreement, OP-1 got ownership right to sell the flats to be constructed in the building, falling in his share. In the year 2004, OPs-1 & 2 invited applications from general public for booking flats in the project “Shiromani Tower”. The members of the complainant society booked the flats in the project in the year 2005. OP-1 started the construction of the project and completed the same in 2006. However, the completion certificate and occupancy certificate was obtained on 09.04.2010. Thereafter, OPs1 and 2 handed over possession of 47 flats to the members of the complainant society. OP-1 started construction of more flats on the same structure and foundation in 2008, in violation of the agreements with the members of the complainant society, to which the members of the complainant raised objection. OP-1, vide letter dated 13.03.2009 informed that he was constructing a new wing which was also a part of the same building, for which a single cooperative housing society will be formed. On completion of the new wing, the members of the complainant society requested OPs-1 and 2 to form a housing society, for which they also collected the forms from the flat owners in 2011 but did not apply with the Cooperative department for the same. OP-1 and 2 formed the complainant’s and OP-3’s cooperative housing society on 19.12.2014 i.e. two separate housing societies on the basis of forged and fabricated documents. The Assistant Registrar, Cooperative Housing Societies also allowed incorporation of two societies. Till formation of the society, OP-1 misused the project by renting out the terrace to Bharti Airtel, selling of common area, letting out of common area and also occupied Flat No.103. In the said manner, OP-1 illegally encroached the common area and misappropriated the same for its benefit. OP-1 converted several car parking spaces into offices and sold them out, some of which have been demolished by the Municipal Corporation. OP-1 illegally took physical possession of common club house. OP-1 did not handover the original sanctioned plans, amended plans, audited/unaudited books of accounts, bill and vouchers from 2005 till date to the complainant. The complaint has been filed on 29.06.2017.
OP-1 and OP-3 by filing their written statements and contested the complaint. OP-1 filed its written statement on 23.04.2018 and stated that OP-1 had entered into an agreement on 04.10.2003 with OP-2 for development of land and not for redevelopment of the property as alleged by the complainant. As such there is no question of demolition of any existing structure. Layout plan was approved on 10.04.2004. OP-1 obtained IOD on 19.04.2004 and commencement certificate on 16.06.2004 (amended on 25.06.2004). OP-1 did not invite any application for sale of the flats. In Clause-6(i) of every agreement for sale, there is specific mention for use of additional floor space index (FSI) and OP-1 also informed the individual flat owner about it and took their consent for use of additional FSI. If any flat buyer is not satisfied with the terms & conditions of the agreement, OP-1 is ready to terminate the agreement and refund the principal amount with interest @8% per annum. After completion of construction of “A” wing (consisting 48 flats), OP-1 obtained ‘part occupation certificate’ on 29.01.2007 and handed over possession to the allottees of the flats. OP-1 started construction of “B” wing (consisting 27 flats) in the year 2008 and after completion of the construction, ‘full occupation certificate’ was obtained on 09.04.2010. Thereafter possession has been handed over to the allottees. OP-1 arranged many meetings of the flat owners for formation of a single group housing society but the flat owners of “A”-Wing and “B”-Wing did not agree for formation of one housing society. Then OP-1 took written opinion of the flat owners, in which, 23 flat owners gave consent for formation of one society and 38 flat owners gave consent for formation of two societies. 11 flat owners did not reply and 3 flat owners were neutral. In view of the majority opinion, OP-1 formed two separate group housing societies, as such Shiromani “B” Wing C.H.S. Ltd. was formed/registered on 14.08.2014 and Shiromani “A” Wing C.H.S. Ltd. was formed and registered on 19.12.2014. OP-1 and 2 executed conveyance deed in favour of OP-3 on 05.12.2017 (registered on 23.03.2018). OP-1 handed over all the relevant documents of the building “A” wing to the complainant’s society on 26.03.2015. After formation of societies, OP-1 sent letters to both societies for conveyance of the land in their names but the complainant’s society did not show its interest. OP-1 demarcated buildings “A” wing and “B” wing on 06.01.2017. The complainant, vide letter dated 26.02.2018, disputed demarcation. Then OP-1 also requested the complainant to appoint joint surveyor for demarcation of land but the complainant had not given any reply. In the approved plans of 2005, Flat No.103 was not shown as society office but it was shown as a residential premises. OP-1 has also instructed the complainant society to take possession of Flat No.103 for the society office. Many members of the complainant have done unauthorised construction and alteration in the flats for which OP-1 requested the complainant to send the details of illegal work but the complainant has not given clear reply. The allegation regarding construction of more flats on the same structure and foundation is denied. Club house is not in the possession of OP-1 nor is it meant for the complainant. It is for use of entire members of both the societies inside Rajkamal Studio. Mr. Gupta, one of the member of the complainant’s society has filed writ petition in this respect. As the complainant disputed for the demarcation area, the conveyance deed has not been done for A-Wing of the society. Complainant has filed many cases against the OPs-1 and 2 i.e. Appeal in Society Registration Case No.30 of 2015, City Civil Case No.274 of 2018, Writ Petition No.594 (L) of 2016, Criminal Case No.489/SS/2017 and complaints CC/219/2016, RBT/CC/118/2016 and RBT/119/2016 in Central District Forum at Parel Mumbai. OP-1 also took the preliminary objection stating that the complainant is not a consumer as they availed the services of OP-1 for commercial purpose. In the year 2008-09 OP-1 sent letters to the members of the complainant that if OP-1 has anything illegal, it is ready to cancel the agreement and refund their amount with interest. After expiry of about nine years the complainant has filed the complaint which is barred by limitation. Complainant had not taken approval in the general body meeting for filing of the complaint. Thus, the complaint is not maintainable. There is no deficiency in service on the part of OP-1 and the complaint is liable be dismissed.
OP-2 filed its separate reply on 04.05.2018 stating that there is no privity of contract between the complainant and OP-2. Construction of additional floors, new building or wing was as per agreement executed with the flat purchasers. Clause-14 of the agreement says about use and disposal of terrace building by OP-1. Clause-18 authorised OP-1 to create any other organization in addition and separately. Thus, whatever has been done by OP-1, it has been done with the consent of the members of the complainant society. OP-2 did not enter into an agreement with OP-1 to demolish the existing structure and construct a building. OP-2 never published any advertisement for sale of the flats. Clauses 13 and 22 of the agreement empower OP-1 to construct additional floors/buildings and wings on the subject property. It is denied that there is no mention in the agreement to sale about the second wing. OP-2 did not rent out the terrace to Airtel Bharti nor let out or sold out the common area. The office of complainant society has been handed over to the complainant. It is denied that OP-1 surreptitiously incorporated two separate housing societies by fabricating and forging several documents and giving false statement before the Assistant Registrar, Cooperative Societies. Parking area has not been converted into commercial area nor sold out to any outsider. Complainant has falsely alleged that OP-1 has taken control over two storeys club house on RGI. OP-2 also raised preliminary objection that a cooperative group housing society is not a consumer and the complaint is not maintainable. Non-formation of a cooperative society does not lie within the ambit and scope of deficiency in service in view of judgment in Sunil J. Verma vs. The Citiy and Industrial Development Corporation (2014) 13 SCC 663 and such relief can be claimed in the Civil Court. Cause of action accrued in the year 2012 and the complaint filed in the year 2017 is barred by limitation.
OP-3 filed its written version on 27.04.2013 stating that it is also a registered cooperative group housing society like the complainant. There is no relationship of consumer and service provider between them. Further, the complainant has not disclosed any cause of action against OP-3. The complaint qua OP-3 is not maintainable. Rest of the pleas are as taken by OPs-1 & 2. OP-3 also raised preliminary objection stating that the complainant society not be a “person” is not a consumer and the complaint is not maintainable. The complaint is also barred by limitation as the cause of action arose in May, 2012 and the complaint has been filed after expiry of five years. The complaint has been filed on false allegations and deserves to be dismissed.
The complainant filed separate Rejoinders to the replies filed by OPs-1 to 3 and Affidavit of Evidence of Nimesh Shah. OP-1 filed Affidavit of Evidence of Ramniklal Kanji Veera. OP-2 did not file the Affidavit of Evidence. OP-3 filed Affidavit of Evidence of Pritesh Anand Shejwal. The complainant also filed short synopsis of arguments.
We have considered the arguments of the counsel for the parties and examined the record. OP-1 has filed Annexure-5 showing that all original sanctioned plans, amended plans, audited/unaudited books of account and various other documents (14 documents) were handed over to the complainant on 26.03.2015, which was received by the chairman under his signature of and seal of the society. So far as the prayer for removing the illegal constructions on society’s office, car parking space, terraces, club house, gym, community hall, recreation grounds, open areas and other common areas and handover possession to the complainant as per plan approved in 2005 are concerned, the Architect Report dated 18.05.2018, (Annexure-A-9) did not show and illegal construction. The complainant has not filed any document to prove that Flat No.103 on the first floor was ever allotted to the complainant for their office. No evidence has been adduced to prove that OP-1 and 2 have ever permitted Bharti Airtel Ltd. for installing mobile antenna. The complainant has stated that all these allegations have not been denied by OP-1 and 2, which is incorrect.
Supreme Court in M/s. Jayantilal Investments Vs. Madhuvihar Co-operative Housing Society (2007) 9 SCC 220, held that Section-7-A was added in Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, with retrospective effect, in the year 1986, which basically allows a builder to construct additional building provided the construction forms part of a scheme or a project. However, Section 7-A does not absolve the builder from its obligation to make true and full discloser to the flat purchaser.
OP-1 has stated that “B” wing of the building formed part of the sanctioned layout plan. In Clause-6(i) of every agreement for sale, there is specific mention for use of additional floor space index (FSI) and OP-1 also informed the individual flat owner about it and took their consent for use of additional FSI. Architect Report dated 18.05.2018 (Annexure-A-9) noticed that total permissible built up area 31934.87 sq.mt. while total built area was 31920.74 sq.mt. As such construction of “B” wing cannot be said to be illegal.
OP-1 stated that after completion of construction of “A” wing (consisting 48 flats), OP-1 obtained ‘part occupation certificate’ on 29.01.2007 (Annexure-R-1) and handed over possession to the allottees of the flats. OP-1 started construction of “B” wing (consisting 27 flats) in the year 2008 and after completion of the construction, ‘full occupation certificate’ was obtained on 09.04.2010. Thereafter possession has been handed over to the allottees of “B’ wing. OP-1 arranged many meetings of the flat owners for formation of a single group housing society but the flat owners of “A”-Wing and “B”-Wing did not agree for formation of one housing society. Then OP-1 took written opinion of the flat owners, in which, 23 flat owners gave consent for formation of one society and 38 flat owners gave consent for formation of two societies. 11 flat owners did not reply and 3 flat owners were neutral. In view of the majority opinion, OP-1 formed two separate group housing societies, as such Shiromani “B” Wing C.H.S. Ltd. was formed/registered on 14.08.2014 and Shiromani “A” Wing C.H.S. Ltd. was formed and registered on 19.12.2014. OP-1 and 2 executed conveyance deed in favour of OP-3 on 05.12.2017 (registered on 23.03.2018). OP-1 handed over all the relevant documents of the building “A” wing to the complainant’s society on 26.03.2015. After formation of societies, OP-1 sent letters to the complainant society for conveyance but it did not show its interest. OP-1 demarcated buildings “A” wing and “B” wing on 06.01.2017.
Section-7-A of MOFA permits the builder to raise additional construction. Section 10 does not prohibit formation of two societies as such formation and registration of Shiromani “B” Wing C.H.S. Ltd. nor conveyance deed dated 05.12.2017 (registered on 23.03.2018) in its favour can be said to be illegal. No direction can be issued for amalgamation of OP-3 in the complainant. OPs-1 and 2 are ready to execute conveyance deed in favour of the complainant.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The complainant may give their intension for execution of conveyance deed of “A” wing building and proportionate common recreational area and amenities and facilities within one month from this judgment and complete the formalities for execution of the conveyance deed. On giving intension and completing formalities, if any, OP-1 and 2 will execute conveyance deed in favour of the complainant of “A” wing building and proportionate common recreational area and amenities and facilities within one month thereafter.