Shivbhakti Co Op. Hsg. Soc. Ltd vs Lodha Shah Builders

The present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986, against the Impugned Order dated 01.12.2015 passed by the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as State Commission) in Appeal No. RBT/A/15/181, whereby the State Commission has partly allowed the Appeal filed by the Complainant by enhancing the Compensation to ₹1 lakh from ₹10,000/- as awarded by the District Consumer Disputes Redressal Forum, Thane (for short “the District Forum”) in Complaint No. 379/2005 and rest of the Order passed by the District Forum was upheld.

Brief facts of the case are that Lodha Shah Builders, (hereinafter referred to as the Opposite Party Builder) had constructed F1 & F2 wings comprising of 112 Flats at Indraprastha Complex, behind S N College, Navghar Road, Bhayander (E) District Thane and these Flats were sold under different Agreements from May 1995 onwards to different Flat Purchasers. The Opposite Party builder failed to register the Cooperative Housing Society despite having collected amount from the Flat Purchasers.  The Flat purchasers themselves have registered the Society, i.e., Shiv Bhakti Co. Operative Housing Society Ltd. (hereinafter referred to as the Complainant Society) at their own expenses. It was also noted by the Complainant Society that additional amounts were collected by the Opposite Party Builder at its will and discretion, which is not mentioned in the Original Agreement. ₹15,000/- was collected instead of ₹5,000/- towards cost of Electricity Meter.  Opposite Party Builder neither provided any Municipal Water Connection nor provided any amount to the Society to get the water connections directly from Mira Bhayander Municipal Corporation.  It was also alleged that Opposite Party Builder did not stop the internal leakage of water from roof top during the rainy season.  It also neglected proper functioning of the lift and also neither provided Occupancy Certificate to the Society nor was any conveyance deed executed in the name of the Complainant Society.  Alleging deficiency in service a complaint was filed before the District Forum seeking direction for refund of ₹1,34,000/- and ₹37,600/- wrongly collected by Opposite Party Builder, refund of ₹1,11,000/- wrongly collected as Society Formation Charges, refund of ₹1,21,000/- wrongly collected as proportionate share of each flat approximately ₹1,100/- per head for ₹10,95,000/-, refund of ₹15,000/- per head collected towards the deposit of BSES electric meter, direction for payment of ₹1,65,000/- incurred by the Complainant Society for taking water through water tankers for 15 months, payment of ₹18,680/- spent for repairing the lift and ₹1,00,000/- compensation for mental agony.

The Opposite Party Builder contested the Complaint before the District Forum and took the preliminary objection that the society cannot be held as Consumer and that the complaint was time-barred. The Opposite Party Builder also submitted that the amounts were legally collected and proper receipts were issued.  It was further contended that the separate water connection was provided of the Municipal drinking water.

After hearing both the Parties and examining the evidence adduced by both the Parties, the District Forum partly allowed the Complaint and directed the Opposite Party to refund ₹37,660/- to the Complainant society collected towards share money, refund ₹1,11,000/- collected towards formation of society and to pay ₹18,680/- towards repairing charges of the lift.  The Opposite Party was also directed to pay compensation of ₹10,000/- towards mental agony and cost of ₹5,000/-.  The relevant part of the Order passed by the District Forum reads as under:-

“4. The additional amount of ₹00.75 np per sq. ft. per month for 12 months @ ₹1,100/- from each flat holder to the total tune of ₹11,22,100/- cannot be claimed back since the members of the society had themselves executed fresh additional agreement to substantiate these payments. Similarly the legal charges of ₹1,34,000/- collected at the rate of ₹1,000/- from 88 flats and other collected @2,000/- from 2004 onwards for 23 flats are not proved to have been paid by these members to the builder.

Similarly despite the attempt to answer the query made by this Forum the stage of judgment by postponing the date of judgment the Complainant society had not been able to bring on record of deposit receipts to justify and to prove the payment of Rs15,000/- per head to the tune of ₹10,95,000/- as allegedly made towards the meter deposits as by these members of the society. Witness summons was served and the witness from Reliance Co. appeared and produced certain deposit receipts or payment of charges towards additional price of the wiring etc will go to represent and indicate that these payments were made by the builder and not by the Complainant Society. The claim of ₹10,95,000/- therefore cannot be sustained as fully established.

It is no doubt that the builder had provided one single water connection as per the agreement but water shortage experience from the Municipal tap water connection provided by Bhayander Municipal again cannot be annexed to the deficiency in service against the builder. The expenditure incurred in that behalf therefore to the tune of ₹1,65,000/- cannot be recovered from the builder Lift repairing charges of ₹18,680/- can be safely held on the basis of the documents produced by Complainant Society.

Then comes the question of compensation for the mental agony. We feel it just and proper to affix these amounts to the tune of ₹10,000/-. At the same time Opponent builder shall be directed to execute the deed of conveyance in favour of the society and to supply and provided the copy of occupancy certificate. We therefore hold that the Complainant Society has been able to prove the deficiency in service to the partial extent and we therefore pass the following final order:-

Complaint No.379/2005 is hereby partly allowed and disposed off and the Opponent builder shall pay ₹5,000/- (Five Thousand only) towards the cost of complaint to the Complainant Society and shall bear their own.

Opponent builder shall refund ₹37,660/- (Thirty Thousand Six Sixty only) to the Complainant Society collected towards share money and also refund ₹1,11,000/- (One Lac Eleven Thousand Only) collected towards formation of society the Opponent builder shall pay ₹18,680/- ( Eighteen thousand Six Hundred Eighty Only) to the Complainant Society towards repairing charges of the lift.

Opponent builder shall also pay ₹10,000/- (Ten thousand Only) as compensation for mental agony to the society.

Opponent builder is further directed to obtain Occupation Certificate from the Bhayander Municipal Corporation and give its copy to the Complainant Society.

The Opponent builder is further directed to execute the deed of conveyance of the land beneath the society builder in favour of the Complainant society.

The above order shall be Complied with by Opponent builder within 3 months from the date of payment failing which the above referred amounts shall carry interest @9% p.a from the date of complaint till its final recovery.”

Not satisfied with the relief granted by the District Forum, the Complainant Society filed an Appeal before the State Commission.

After hearing both the Parties and perusal of material on record, the State Commission observed that Opposite Party Builder had legally collected electricity charges as per the terms of the Agreement but found Opposite Party Builder guilty for deficiency in service for not registering the Cooperative Society and the flat purchasers themselves have registered the Cooperative Society and held that the compensation granted by the District Forum is not in proportionate to the deficiencies caused to the Complainant Society.  Registration of the society of the flat purchasers is the statutory obligation of the Opposite Party Builder as per MOFA.  The Opposite Party builder failed to register the Cooperative Housing Society despite having collected amount from the flat purchasers and the flat purchasers have to run from pillar to post for registration of the society and have to incur expenses.  Looking at the facts and circumstances of the case, the State Commission partly allowed the Appeal and modified the Order of the District Forum by observing as under:-

“Since these payments are made as per provisions in the agreement and the appellant-society has miserably failed to lead evidence to prove that in the original agreements, it was ₹5,000/- and respondent has collected Rs,15,000/-. Similarly, District Forum has given reasonable opportunity to the appellant society to lead evidence on this point However, appellant/society miserably failed. As the amount paid for electricity charges is as per agreement in our opinion, appellant society is not entitled to claim the same.

As regards water charges, the respondent has provided water connection to the building. However, water has insufficient. The appellant/Society has incurred some expenditure but the respondent/builder-developer cannot be held responsible for inadequate water supply by the Municipal Corporation. The District Forum has granted compensation of ₹10,000/-. Looking into the facts of the case, the compensation granted by the District Forum seems to be not in proportionate to the deficiencies caused to the appellant-complainant/society. Registration of the society of the flat purchasers is the statutory obligation of the respondent/builder-developer as per MOFA. Despite of taking the amount for registration of the society, the respondent/builder-developer has not registered the society and the flat purchasers have to run from pillar to post for registration of the society and have to incur expenses. Looking to the facts and circumstances of the case, granting of compensation of ₹1,00,000/-( Rupees One Lakh only) in favour of appellant/society will meet the ends of justice. We hold accordingly and pass the following order:-

ORDER

Appeal is partly allowed.

The order passed by the District Forum dated 28.02.2008 is modified to the extent of payment of compensation.  Respondent/Opponent is directed to pay amount of ₹1,00,000/- (Rupees One Lakh only) towards compensation to the appellant/org. complainant-society instead of ₹10,000/- (Rupees Ten Thousand only).  Rest of the order passed by District Forum is hereby absolute..”

Still dissatisfied with this Order, the Complainant Society has filed the present Revision Petition before this Commission.

Mr. Dinesh Prakash Guchiya, learned Counsel appearing on behalf of the Petitioner/Complainant Society submitted that in the present Revision Petition there are two issues are involved – first is with regard to overcharging for electricity meter charges by the Opposite Party Builder and secondly, Opposite Party Builder has provided only one single water connection for F1 & F2 blocks which is causing continuous shortage of water.  It was further submitted that the impugned order dated 01.12.2015 passed by the State Commission is illegal, bad-in-law and it deserved to be set aside.

Per contra, Mr. Rahul Kripalani, learned Counsel for the Respondent/Opposite Party Builder, submitted that both the issues raised by the Petitioner have rightly been dealt with by the District Forum and State Commission.  The concurrent findings of fact are in favour of the Respondent and against the Petitioner on both the issues.  He further submitted that the revisional power is not and cannot be equated with the power of reconsideration of questions of facts as a court of first appeal.  He further submitted that they have collected money for electric meter charges as per terms of the Agreement and provided the electricity and water connection.  He submitted that the State Commission has rightly held that the adequacy of water received from the said water connection is not the liability of the Respondent Builder.  He further submitted thatas the needs of the member of the Petitioner Society have increased they have obtained further water connections.  The responsibility to ensure lifelong water supply to the petitioner society does not lie with them.  He further submitted that the impugned order passed by the State Commission is right and just and it should be upheld.

We have heard Mr. Dinesh Prakash Guchiya, learned Counsel appearing on behalf of the Petitioner, Mr. Rahul Kripalani, learned Counsel appearing on behalf of the Respondent.

From the perusal of the material available on record and having given thoughtful consideration to the various pleas raised by both the Parties, we are of the considered opinion that the State Commission vide its well-reasoned Order dated 01.12.2015 has rightly observed that the Opposite Party has charged the electricity charges as per terms of the Agreement. On the issue of water supply, it was rightly held by the State Commission that the Opposite Party has provided water connection to the Building and the Opposite Party cannot be held responsible for inadequate water supply by the Municipal Corporation.  However, finding the Deficiency in service on the part of the Opposite Party in not registering the Society and the Flat owners have to get Society registered themselves, the State Commission enhanced the compensation of ₹10,000/- granted by the District Forum to ₹1,00,000/-.  There is concurrent finding of the fact that the Opposite Party Builder has charged the Electricity Charges as per terms of the Agreement and the Opposite Party has provided water connection to the Building and the Opposite Party cannot be held responsible for inadequate water supply by the Municipal Corporation.  While passing the Impugned Order dated 01.12.2015, the State Commission had considered all the material evidence on record and we do not find any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.  It is well settled by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India &Anr.’ [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under section 21(b) of the Consumer Protection Act, 1986 is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.  For ready reference, relevant paragraph of the Judgment passed by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India &Anr.’ [supra]  is reproduced as under:-

“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

For the reasons stated hereinabove, we do not find any good ground to interfere with the well-reasoned Impugned Order dated 01.12.2015 passed by the State Commission which is based on proper and correct appreciation of the facts and evidence adduced by the Parties.  Consequently, the present Revision Petition fails and is hereby dismissed.  Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.