Builder liable to hand over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation)

 

Duty of  Builder :

To pay Interest and compensation for delayed possession;  builder liable to hand  over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

In CONSUMER CASE NO. 1479 OF 2015

DEVELOPERS TOWNSHIP PROPERTY OWNERS WELFARE SOCIETY
505, Hemkunt Chambers, 89 Nehru Place,
New Delhi – 110 019.                                                         ………..Complainant(s)

Versus

JAIPRAKASH ASSOCIATES LIMITED
Jaypee Greens, Sector -128, Noida – 201 304
Uttar Pradesh. …………………………………………………………….Opp.Party(s)

 

By its order dated 2 May 2016, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Decided the following issues.

 

Interest and compensation for delayed possession;  builder liable to hand  handing over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

“ 31. This Commission in the case of M/s G.G. Associates & Ors. Vs. Commodore Ravindra Kumar Narad & Anr. Revision Petition No. 1647 of 2014, decided on 16.10.2014, placed reliance on a Ruling reported in Kalpita Enclave Co-op. Housing Society Ltd. Vs. Kiran Builder of the Hon’ble Bombay High Cour t, it was observed that “if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation”.

 

“ FINAL ORDER :

i) It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016. There is already huge delay. We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the needful is done; -15

ii) For the delayed period, the OP is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective complainants w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the OP. All the necessary documents, common areas and facilities be also provided.

iii) The OP is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.

iv) As per law laid down in K.A. Nagamani (supra), we further impose costs in the sum of Rs.50,000/- payable to each of the flat allottee / allottees, total being Rs.5,00,000/-, for all the flat owners. The said amount be paid within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.

Link to the full decision:

file:///C:/Users/Eleena/Downloads/National%20Commission%20judgement2016-05-02%20(1).pdf

Execution Applications under Section 25 and 27 of the Consumer Protection Act


Execution Applications under Section 25 and 27 of the Consumer Protection Act

What to do if the Opposite Party does not obey the order of the various Consumer Forums / Commissions which have attained finality…..
You have to file Execution Applications under Section 25 and 27 of the Consumer Protection Act

 

In Maharashtra State Consumer Disputes Redressal Commission
Mr Amir Ali Tharani  vs  Mr Rajesh Sukhtnkar decided on 27 September, 2010, the Commission has detailed the difference between these two provisions and the procedure to be followed.

I am giving the gist below…….I am also giving the link to the full decision at the end of this article.


            (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

           (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

            It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 45 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

        The third party application may be permissible in a proceeding under Section 25(1) &(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

       (n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case;

 

Link to the full decision:
https://indiankanoon.org/doc/48891284/

 

New Passport Rules – Date of Birth and Only one Parents Name


New Passport Rules  –  
December 23, 2016

  1. In order to streamline, liberalize and ease the process of issue of passport, the Ministry of External Affairs has taken a number of steps in the realm of passport policy which is expected to benefit the citizens of India applying for a passport. The details of these steps are given below:-

    PROOF OF DATE OF BIRTH

  2. As per the extant statutory provisions of the Passport Rules, 1980, all the applicants born on or after 26/01/1989, in order to get a passport, had to, hitherto, mandatorily submit the Birth Certificate as the proof of Date of Birth (DOB). It has now been decided that all applicants of passports can submit any one of the following documents as the proof of DOB while submitting the passport application:

    (i) Birth Certificate (BC) issued by the Registrar of Births & Deaths or the Municipal Corporation or any other prescribed authority whosoever has been empowered under the Registration of Birth & Deaths Act, 1969 to register the birth of a child born in India;

    (ii) Transfer/School leaving/Matriculation Certificate issued by the school last attended/recognized educational board containing the DOB of the applicant;

    (iii) PAN Card issued by the Income Tax Department with the DOB of applicant;

    (iv) Aadhar Card/E-Aadhar having the DOB of applicant;

    (v) Copy of the extract of the service record of the applicant (only in respect of Government servants) or the Pay Pension Order (in respect of retired Government Servants), duly attested/certified by the officer/in-charge of the Administration of the concerned Ministry/Department of the applicant, having his DOB;

    (vi) Driving licence issued by the Transport Department of concerned State Government, having the DOB of applicant;

    (vii) Election Photo Identity Card (EPIC) issued by the Election Commission of India having the DOB of applicant;

    (viii) Policy Bond issued by the Public Life Insurance Corporations/Companies having the DOB of the holder of the insurance policy.

    Report of the Inter Ministerial Committee

  3. A three-member Committee comprising of the officials of the Ministry of External Affairs and the Ministry of Women and Child Development was constituted to examine various issues pertaining to passport applications where mother/child has insisted that the name of the father should not be mentioned in the passport and also relating to passport issues to children with single parent and to adopted children. The Report of the Committee has been accepted by the Minister of External Affairs.

    The following policy changes have been made inter-alia on the basis of the recommendations of this Committee:

    (i) The online passport application form now requires the applicant to provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and to also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant.

    (ii) The total number of Annexes prescribed in the Passport Rule, 1980, has been brought down to 9 from the present 15. Annexes A, C, D, E, J, and K have been removed and certain Annexes have been merged.

    (iii) All the annexes that are required to be given by the applicants would be in the form of a self declaration on a plain paper. No attestation/swearing by/before any Notary/Executive Magistrate/First Class Judicial Magistrate would be henceforth necessary.

    (iv) Married applicants would not be required to provide Annexure K or any marriage certificate.

    (v) The Passport application form does not require the applicant to provide the name of her/his spouse in case of separated or divorced persons. Such applicants for passports would not be required to provide even the Divorce Decree.

    (vi) Orphaned children who do not have any proof of DOB such as Birth Certificate or the Matriculation Certificate or the declaratory Court order, may now submit a declaration given by the Head of the Orphanage/Child Care Home on their official letter head of the organization confirming the DOB of the applicant.

    (vii) In case of children not born out of wedlock, the applicant for the passport of such children should submit only Annexure G while submitting the passport application.

    (viii) In case of issue of passport to in-country domestically adopted children, submission of the registered adoption deed would no longer be required. In the absence of any deed to this effect, the passport applicant may give a declaration on a plain paper confirming the adoption.

    (ix) Government servants, who are not able to obtain the Identity Certificate (Annexure-B)/ No-Objection Certificate (Annexure-M) from their concerned employer and intend to get the passport on urgent basis can now get the passport by submitting a self-declaration in Annexure-‘N’ that he/she has given prior Intimation letter to his/her employer informing that he/she was applying for an ordinary passport to a Passport Issuing Authority.

    (x) Sadhus/ Sanyasis can apply for a passport with the name of their spiritual Guru mentioned in the passport application in lieu of their biological parent(s) name(s) subject to their providing of at least one public document such as Election Photo Identity Card (EPIC) issued by the Election Commission of India, PAN card, Adhar Card, etc wherein the name of the Guru has been recorded against the column(s) for parent(s) name(s).

  4. Necessary notifications would be soon published in the Official Gazette to give effect to these changes. Instructions are also being issued to the Passport Issuing Authorities in India and abroad on these revised regulations.

  5. The Ministry of External Affairs expects that the above changes in the Passport Rules would further ease the process for passport applicants in getting their Passport. At the same time, it would enable this Ministry to continue to deliver passport related services to the citizens in a timely, transparent, more accessible, reliable manner and in a comfortable environment through streamlined processes and committed, trained and motivated workforce.


New Delhi
December 23, 2016

 

Purchase of two flats does not indicate purchase for Commercial Purpose


Purchase of two flats does not indicate purchase for Commercial Purpose

 

Till recently, it was considered that a person can occupy only one flat. If he purchases
more than one 
 flat, it was presumed that the purchase was for the commercial purpose of investment, and complaints were dismissed. The National Commission has now clarified the law on the subject.

 

Rajesh and Deepa Malhotra along with their sons Rohan and Parvan, all belonging to Gurgaon, booked two villas in Goa which were being constructed by Acron Developers. The villas were booked under two agreements, the first in the name of the parents with one son, and the second in the name of the parents with the other son. The total cost of both the villas was about Rs1.38 crores. Possession was to be given in April 2007.

 

When Malhotras inquired about the progress of the construction, the builder did not furnish this information, and instead threatened to terminate the agreements for non-payment of instalments. The builder also collected various additional amounts. Malhotras filed a complaint before the Goa State Commission against the developer and its directors for a refund of the wrongly collected amounts. The builder contested the complaint.

 

The State Commission concluded that the villas were meant that they were purchased for commercial purpose. It also observed that there were two agreements in different names, so one combined complaint could not be filed for two separate transactions. It dismissed the complaint, and ordered Malhotras to pay Rs.10,000 for misusing the provisions of the Consumer Protection Act.


Malhotras challenged this order in appeal. The National Commission observed that commercial purpose would have to be determined on the basis of the primary motive of trading or business activity for the purpose of making profit. Mere assertion by the builder that the properties have been purchased for commercial purpose is not sufficient. The National Commission also observed that two villas were purchased by the parents, one for each son. Even if a residential house, flat, or villa is let out, it would not amount to commercial purpose. Accordingly, by order dated 5.11.2015 delivered by the Bench of Justice D.K. Jain and M. Shreesha, the National Commission allowed Malhotra’s appeal, held them to be consumers, and remanded the matter back to the State Commission.

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F1287%2F2014&dtofhearing=2015-11-05

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

 

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

Fri, 25 Nov 2016-09:10am , PTI

 

In one of the biggest bribe cases of bribery, after the demonetisation, the Anti-Corruption

Bureau (ACB), Thane  arrested three persons including the Sub Divisional Officer (SDO) of

Palghar on Thursday for allegedly accepting a bribe of Rs 50 lakhs for giving favourable

ruling in land-related cases.

 

ACB Thane unit arrested SDO Palghar, Shivaji Davbhat (46), Nayab Tehsildar

Satish Manivade (57) and Jayesh Patil (25). Jayesh worked as Davbhat’s driver, an ACB

official said.

 

 

Builder directed to pay interest at the same rate he levied on delayed payment


BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

                                                   Consumer Complaint No.CC/13/198

Mrs. Shruti Kirti Laddha,

Mr.Kirti Shivchandra Laddha,

Both R/at: 15, Staff Quarters, 2nd Floor, Institute of Chemical Technology, Matunga (E), Mumbai 400 019. …..                                                                                               Complainant(s)

                                         Versus

M/s. G.A. Builders (RNA Corpn. Group Company),

Through its Group Chairman,

Mr.Anil Aggarwal

            and

Managing Director Mr. Anubhav Aggarwal,

Having their office at: RNA Corporation Park, Next to Collector’s Office, Kalanagar, Bandra (E), Mumbai 400 051. ………………….Opponent(s)

 

BEFORE: Hon’ble Mr. Justice A.P. Bhangale, President Hon’ble Mr. Narendra Kawde, Member

For the Complainant: Advocate Mr.Vinay Rathi.

For the Opponent: None.

 

ORDER Per Hon’ble Mr.Narendra Kawde – Member:

(1) Allegations levelled by filing this consumer complaint against the opponent builder developer for failure to deliver vacant and peaceful possession of flat no.1102 on 11th floor, in the project named RNA Sagar, situated at Plot No.57, behind Apna Bazar, Pantnagar, Ghatkopar (East), Mumbai, agreed to have been sold to the complainants for total consideration of Rs.47,15,880/- even though complainants have paid substantial mount of Rs.38,04,488.15. Aggrieved thereby consumer complaint has been filed praying for directions to CC/13/198 2/7 handover legal possession of the Flat and also claimed compensation of Rs.10,00,000/- for mental and physical harassment with costs of Rs.1,00,000/-.

 

(2) It is not in dispute that the complainants have booked flat bearing no.1102 in the project developed by opponent by paying booking amount of Rs.5,00,000/- on 24/12/2009 by cheque bearing no.605889. Subsequently the complainants have paid amount of Rs.17,84,488/- by way of cheque payments which is not in dispute. Thus, the total amount paid by cheque is Rs.22,84,488/- as against the agreed consideration of Rs.47,15,880/-. It is the contention of complainants that amount of Rs.15,20,000/- was paid in cash on 24/12/2009 at the time of issuing the allotment letter. However, opponent did not issue receipt for cash payment alleged to have been paid. According to the complainants even though substantive amount against the agreed consideration is paid and they are willing to pay the balance consideration, yet, for the reasons best known to them, opponents have failed to deliver the possession.

 

(3) Opponents by filing written version tried to defend themselves on the ground that this being a redevelopment project with the co-operative society, the dispute cropped up pertaining to the use of Floor Space Index (‘F.S.I.’ in short) at the behest of co-operative housing society the matter was referred to arbitration and it was decided by the Arbitrator to restrict use of F.S.I. to 2.4 instead of 2.5 as was originally planned. Since it is redevelopment project first preference is for those old occupiers and only surplus flats constructed would have been available for sale. In view of the restrictions for use of F.S.I., construction was limited only to 11th floor instead of 16th floor as originally planned. In view of this CC/13/198 3/7 changed condition opponents are unable to accommodate the complainants to allot flat no.1102 as it was not available for sale. Opponents have always shown their willingness to refund the amount of Rs.22,84,488.15 together with interest @9% per annum under the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (45 of 1963) (hereinafter referred to as ‘MOFA’ in short). However, the complainants have refused to accept the refund and continued to litigate. According to Opponents cost of flat was agreed to Rs.31,95,880/- and not Rs.47,15,880/- as presumed by the complainants. Opponents stoutly denied receipt of cash amount of Rs.15,20,000/- as alleged by the complainants. In view of the developments narrated above the allotment was cancelled and accordingly, complainants were repeatedly informed by e-mails, by letters to take refund of the amount paid as narrated supra.

 

(4) Heard Advocate Mr.Vinay Rathi for the complainant. None appeared for the opponent. We have perused the record and documents relied upon by the parties

 

(5) It is not in dispute that amount of Rs.22,84,488.15 has been received by the opponents. Complainants did not demonstrate the proof of cash payment of Rs.15,20,000/-. The booking form duly signed by the complainants and opponents on 24/12/2009 indicates allotment of flat 1102 with 610 sq.ft. area on 11th floor, RNA Sagar, and also it shows payment schedule attached thereto. However, total agreed consideration is not mentioned therein. It is the contention of the opponents that the total consideration was Rs.31,95,880/-. Even if it is presumed to be correct, in that CC/13/198 4/7 case even substantial amount of Rs.22,84,488.15 was accepted by the opponent in a staggering mode after booking of the flat on 24/12/2009, knowing fully that there are restrictions for use of FSI and the flat in question cannot be allotted to the complainants after accommodating the original flat owners in the redeveloped project. According to the opponents themselves, arbitration Petition 326 of 2011 before the Hon’ble Bombay High Court and the order passed therein on 05/05/2011, restricted use of the F.S.I. Even thereafter also the opposite party continued to accept the balance payment by cheques. Even though complainants have paid substantial amount, opponent failed to execute registered agreement under the provisions of Section 4 of MOFA. Non-compliance of statutory obligation to execute registered Sale Deed, per se, amounts to deficiency of service on the part of the opponents. Since it was within the knowledge of the opponent that issue pertaining to use of F.S.I. was raised and referred to arbitration, at this point of time opponents ought to have made known these developments and their inability to fulfil the obligation to allot flat to the complainants.

 

(6) According to the opponents construction upto 11th floor was permitted with certain modifications. However, there is no approved modified development plan available on record. By their own admission construction could be done upto 11th floors, it would have been possible to accommodate allotment of flat bearing no.1102 as per booking since it was located on 11th floor. There is no reason to cancel the allotment without following the due procedure and moreover, after having accepted substantial amount of more than 80% of the agreed consideration of Rs.31,95,880/-. In case the CC/13/198 5/7 said flat was not available alternate flat ought to have been made available by accepting the balance consideration for which the complainants were ready and willing. Despite submissions on various counts disputing the claim we do not find opponents have made alternative offer of availability of flat of same size to the complainants.

(7) Failure of opponent builder to execute registered agreement and handover vacant and peaceful possession of the flat by accepting balance consideration amounts not only to glaring deficiency of service but it is unfair trade practice as well on their part and therefore, they are liable for their failure as such. At the time of arguments neither Advocate nor opponent were present and therefore, Commission could not obtain present status of the project, i.e. as to how many floors are constructed, how many flats are available etc. There is no record to substantiate that the project has been completed upto 11th floor or otherwise. Accepting the huge sum and mis-utilizing for the long period without appropriating such receipted amount for the project for which it was meant is also a serious issue nothing short of unfair trade practice. Non-fulfillment of contractual and statutory obligations on the part of the opponent is undoubtedly deficiency of service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of Consumer Protection Act, 1986.

 

(8) In view of the observations aforesaid, the contractual relations still subsists between the complainants and opponent builder as consumer and service provider under the provisions of Consumer Protection Act, 1986. It is only belatedly, that the opponents tried to refund the amount with interest @9% per annum without valid and justifiable CC/13/198 6/7 reason as the documents do not demonstrate as to how the flat booked on 11th floor and use of F.S.I. was permitted upto 11th floor could not be allotted to the complainants. There is no justification on the part of the opponent for their failure to fulfil the contractual and statutory obligation under the provisions of MOFA by handing over vacant and peaceful possession of the flat in question by accepting the balance consideration of Rs.9,11,391.85/- or to offer alternative flat of the same size in the vicinity in case it is imfeasible to fulfil the obligations.

(9) On perusal of the demand notice dated 21st April, 2010 the opponents have claimed interest @21% per annum for default payment. Therefore, the refund of amount, if any, as claimed shall carry the same rate of default interest as demanded by the opponents with a view to maintain balance of equity.

 

(10) In view of the above, we hold the opponents have resorted to unfair trade practice and indulged in deficiency of service and therefore, complaint is allowed against the opponents with following directions:

 

ORDER

 

(I ) Consumer complaint is allowed with costs quantified to Rs.30,000/- (Rupees Thirty Thousand only) payable jointly and severally by the opponents to the complainants.

 

(ii) The opponents are directed to handover jointly and severally vacant and peaceful possession of Flat bearing No.1102 on 11th floor, in the building RNA Sagar, Building No.1 at Ghatkopar East, Mumbai or CC/13/198 7/7 alternative flat of same size of 610 sq.ft in the same project or in the vicinity by accepting balance consideration of Rs.9,11,391.85/- (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and Paise Eighty Five Only) from the complainants within a period of 45 days from the date of this order.

(iii) Complainants to pay Rs.9,11,391.85 (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and paise Eighty Five only) to the opponents within 60 days from today. In case Opponents refuse to accept the amount, the complainants are at liberty to deposit the amount with State Commission within eight days from refusal, if any. OR Alternatively at the option of the complainants to refund the amount of Rs.22,84,488/- (Rupees Twenty Two Lacs Eighty Four Thousand Four Hundred Eighty Eight only) together with default interest @21% per annum from the date of each such deposit within a period of 45 days from the date of this order. Non-compliance shall enhance the rate of interest @24% per annum on the amount to be paid till realization.

(iv) One set of complaint compilation be retained for our record and rest of the sets be returned to the complainant.

 Pronounced on 26th September, 2016.
[Justice A.P.Bhangale] President                          [Narendra Kawde] Member

Revisionary Powers of the National Consumer Commission – Section 21 (b) of the Consumer protection Act

 

Builders often drag flat purchasers through a series of litigation to discourage them from approaching courts. National Consumer Commission is discouraging such practice.

 

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

     NEW DELHI

 

REVISION PETITION NO.   1566    OF 2010
(From the order dated  30.10.2009   in Appeal No. 728/2009

of the State Commission,  Maharashtra)

 

M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

fort, Mumbai-400023.                                                          … Petitioner (s)

Versus

Shri Kalikant Mishra

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 

For the Petitioner      :        Mohd. Wasay Khan, Advocate      

For the Respondent  :        Mr. Nagaraj V. Hoskeri, Advocate

 

REVISION PETITION NO.   1567    OF 2010
(From the order dated  30.10.2009   in Appeal No. 729/2009

of the State Commission,  Maharashtra)


M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

Fort, Mumbai-400023.

Through Mr. Narender Gupta                                … Petitioner (s)

Versus

Shri Sujit Kumar Mishra 

Through his Attorney holder

Kalikant Mishra,

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 For the Petitioner                :        Mohd. Wasay Khan, Advocate 

 

BEFORE:

 

HON’BLE MR.JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER
                                                                                                                  

Dated 05th July, 2011

 

ORDER

 

PER JUSTICE MR. V.B. GUPTA, PRESIDING MEMBER

 

          Consumer Disputes Redressal Commission, Mumbai, Maharashtra (For short ‘State Commission’) vide common order dated 30th October, 2009 disposed of two appeals (No. 728 & 729/2009) filed by respondents Kalikant Mishra and Sujit Kumar Mishra as issues involved in these appeals were common and the builder (i.e. petitioner) is also common.

  1. Respondent/Complainant (Kalikant Mishra) filed complaint (No. 390/2007) whereas respondent/complainant (Sujit Kumar Mishra) filed complaint (No. 398/2007) before District Consumer Forum, Thane, for not giving possession of two flats to them.  According to their complainants they had purchased flat no. 401 & 402 on 4th floor in “A” Wing in the building known as ‘NG VIKAS’ and each flat is measuring 379.88 sq. ft. in area.  Cost of flat no. 401 was Rs.8,24,600/-.  Accordingly, agreement for sale was registered on 25-04-2006.  As per complainant, he paid Rs. 5,50,000/- out of Rs.8,24,600/- to the O.P. as part consideration.  Complainant further submits that he approached O.P. and requested for possession of the flat after receipt of balance consideration amount.  However, O.P. failed to hand over the flat to the complainant.

  2. In case of flat no. 402, complainant paid entire amount of Rs.8,24,600/- to the O.P. in full and final settlement of the price.  In spite of having accepted full consideration amount, O.P. failed to hand over possession of flat no. 402 to the complainant. 
  3. Therefore, separate consumer complaints were filed by both
    respondents/complainants alleging deficiency in service on the part of the builder.

  4. O.P./petitioner filed its written statement and denied allegations of the complainants.  It pleaded that cost of flat no. 401 was fixed at Rs.8,24,600/- and cost of flat no. 402 was Rs.7,38,600/- and Rs.86,000/- was fixed by O.P. for providing extra amenities.  Out of Rs.86,000/-, complainant paid only Rs.46,403/- for the extra amenities and failed to pay the balance amount of Rs.46,403/- to the O.P.  it is further pleaded that complainant has not paid entire amount of the flat.  Therefore, possession of the flat was not handed over to the complainant since complainant was facing financial crises and had not paid balance amount to the O.P.  Therefore, there was no deficiency in service on the part of O.P.

  5. After considering documents and affidavits placed before it, District consumer Forum partly allowed the complaints and directed O.P. to refund amount of Rs.5,50,000/- together with interest @ 10% p.a. from 25-04-2006.  It further directed O.P. to pay Rs.7,000/- towards cost and Rs.25,000/- for mental agony in case of flat no. 401, in complaint (no. 398 of 2007).

  6. In case of flat no. 402, in complaint (No. 390 of 2007) District forum directed the O.P. to refund amount of Rs.8,24,600/- together with interest @ 10% p.a. from 05-05-2006.  It further directed O.P. to pay Rs.10,000/- towards cost and Rs.25,000/- for mental agony.

  7. Aggrieved by the order of District Forum, respondents /complainants filed appeals before the State Commission, which vide impugned order, allowed both appeals and ordered that Clause 2 & 3 of the operative part of complaint (No.390/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant.”

  1. Similarly, clause Nos. 2 & 3 of the operative part of complaint (No. 398/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 401 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant after accepting balance amount of consideration.

Rest of the order stands confirmed.”

 

  1. It has been argued by learned counsel for the petitioner that respondents have not paid the entire consideration of the flats in question and as such possession cannot be handed over.  Accordingly, there is no deficiency on the part of the petitioner.

  2. It is further argued that Respondents have made alternative prayer in their complaint seeking damages and as such possession of the flats cannot be handed over to them.

  3. On the other hand, it has been argued by learned counsel for respondents that there is no infirmity or legality in the impugned order passed by the State Commission.  Petitioner is bound to hand over the possession of flats to the respondents and respondent in complaint (No. 398/2010) is willing to pay the balance amount of consideration as agreed earlier.

  4. In paras (No. 4 to 7) of both complaints, respondents /complainants have taken specific pleas with regard to the payments made by them during different periods.

  5. In written statement filed by the petitioner, there is no specific denial with regard to the payments made by the respondents /complainants as mentioned in their respective complaint. 
  6. Under these circumstances, as there is no specific denial made by the petitioner, the payments as stated in the complaints shall be deemed to be admitted as correct, except that in complaint (No. 398/2007) respondent in categorical terms has stated that he is always ready and willing to pay the final consideration amount of Rs.2,74,100/- towards the purchase of the flat.  Moreover, there is nothing on record to show that except for the balance consideration amount as admitted by respondent in complaint (No. 398/2007) any other amount is due towards any of the respondents.

  7. State Commission in its impugned order observed:–

          “Perused the record and memo of appeal and we are finding that the order passed by the Forum below in each complaint is erroneous.  Appellant has purchased two flats from Respondent and paid total amount of consideration of Rs.8,24,600/- for flat no. 402 and agreed to pay balance amount of consideration in case of Flat No. 401.  However, O.P. failed to hand over possession of the flat to the complainant.  Forum below awarded refund of consideration amount along with interest @ 10% p.a.  However, appellant has filed present appeals for possession of both the flats as Forum below has awarded only refund of the amount.

 

            We perused copy of complaint, wherein appellant has prayed for possession of both the flats namely flat nos 401 & 402 ‘A’ Wing and ready to pay balance amount of consideration of the flat no. 401.  The real estate prices have been increased tremendously and the complainant/appellant herein will not be able to purchase flat at the same rate, what was prevailing in the year 2006.  Therefore, by allowing both the appeals, we direct the Respondent /org. O.P. to hand over possession of both the flats to the appellants after accepting the balance amount in case of flat no. 401.”

 

  1. Since, it is a case, where purchaser of flat in complaints (No. 390/2007) has paid the entire consideration and purchaser of flat in complaint (No. 398/2007) is ready and willing to pay the balance amount, the petitioner/builder cannot deprive them of their legal right to have possession of both flats.

  2. Petitioner/builder, in the present case “wants to have the cake and eat it too” as in one case, admittedly it has received the entire consideration whereas in other case, certain amount is due, which the purchaser is willing to pay.

  3. Thus, petitioner being the builder, is enjoying possession of both flats as well as substantial amount of considerations paid by the respondents.  On the other hand, both respondents after having paid full amount of consideration in one case and in the other case after having paid substantial amount of consideration, are still without any roof.

  4. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601.  Delhi High Court observed;

          “It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence.  Under Article 227, this Court does not correct the mistakes of law or mistakes of facts.  The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.”

 

  1. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”

 

  1. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

 

  1. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands who after grabbing the money from the purchasers enjoy and utilize their money but does not hand over the flats, on one pretext or the other.  Petitioner has made respondents run from one Fora to other Fora during last four years so that respondents cannot have any roof over their head and he (petitioner) can go on enjoying respondent’s money without any hindrance. 

 

  1. Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 1 Lakh (One Lakh).  Accordingly, we dismiss these petitions with cost of Rs. 1 lakh.

  2. Out of this cost, Rs.25,000/- each shall be paid to each of the respondent’s in these two petitions.

  3. Petitioner is directed to deposit the cost by way of cross cheque for a sum of Rs.50,000/- in the name of “Consumer Legal Aid Account” and two cheques in the sum of Rs.25,000/- each in the name of each of the respondents’ within four weeks from today.

  4. In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization. 
  5. The cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.

  6. Accordingly, both the revision petitions stand disposed of.

  7. List for compliance on 12-08-2011.

  Sd/-

……………………………J.

(V.B. GUPTA)

PRESIDING MEMBER

                                                                                                                                                                                        Sd/-

………………………………

(SURESH CHANDRA)

MEMBER

aj

 

Associate Member of Housing Society can be member of Managing Committee

Kalpit Mankikar

| TNN | Feb 2, 2015, 04.44 AM IST

 

MUMBAI:

In many old societies, senior citizens owned flats but would not show interest, and associate members were barred from participating in managing committee proceedings.


Section 2 (19) of the Maharashtra Cooperative Societies Act says an associate member jointly holds a share of the society with others, but whose name is not first in the share certificate. Rule 56M of the Maharashtra Cooperative Societies Rules, 1961, and Section 2 (19) (b) of the Maharashtra Cooperative Societies Act, 1960, state an associate member can vote and participate in elections but cannot become an office-bearer of the society where his name appears as an associate member in the society register. 

 

The state cooperative election authority (SCEA) has clarified that a housing society’s associate members can be part of the managing committee. This will be a shot in the arm for old cooperative housing societies as more residents can participate in their housing complex’s affairs.

 

http://timesofindia.indiatimes.com/city/mumbai/Associate-member-can-be-part-of-managing-panel/articleshow/46090740.cms

Representative Complaint on behalf of a large number of Consumers

 

In their order dt. 7 October 2016, The NCDRC has passed a detailed order  interpreting Section 12(1)(C) of the Consumer Protection Act, allowing home buyers who have invested in a project to be automatically made party to any case filed against a builder.

Referred to as a representative lawsuit, this can only be done if their interest, complaint or grievance is common to that of the person who has filed the complaint. The order applies to all new cases as well as old ones.

 

                    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
                                                                     NEW DELHI
 

 

 
                                             FIRST APPEAL NO. 166 OF 2016
           
(Against the Order dated 27/01/2016 in Complaint No. 586/2015 of the State Commission Maharastra)          

 

BEFORE:  
  HON’BLE MR. JUSTICE D.K. JAIN,PRESIDENT
  HON’BLE MR. JUSTICE V.K. JAIN,MEMBER
  HON’BLE DR. B.C. GUPTA,MEMBER

 

For the Appellant :  
Mr. S.K. Sharma, Advocate
Dr. Abhishek Atrey, Advocate

 

For the Respondent :
Mr. Nikhil Jain, Advocate Mr. Anshuman Nandi, Advocate


Dated : 07 Oct 2016

 ORDER
JUSTICE V.K. JAIN, MEMBER
         

 

 Link to the full order:

 http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F504%2F2016&dtofhearing=2016-10-07

Builder constructs illegal flat on car parking area and sells it


Builder constructs illegal flat on car parking area and sells it

 

The Maharashtra State Consumer Commission has ordered Shreekrishna Developers – a builder to pay to a buyer –  the complainant Rs 26 lakh, the 2012 (year of filing the complaint) value of a 525 sq feet flat in the vicinity. The buyer who had taken possession of the flat in 2005 after buying it for Rs 4.95 lakh, realized that anomaly after the society refused to induct him as a member.

“From perusal of the occupancy certificate, it is seen that after getting the occupancy certificate from the corporation, the opponent (Shreekrishna Developers) has constructed the flat without the sanction of the municipal corporation. Thus, there is a clear-cut deficiency in service on the part of the opponent who also adopted unfair trade practice by carrying out the unauthorized construction and allotting the same to the complainant,“ the Maharashtra State Consumer Disputes Redressal Commission said.

The spot where the flat was constructed was to be used for parking. The space will now be handed back to the society .

The complaint was filed by flat purchaser Sunil Gade in 2012. Gade told the commission that after receiving a negative response from the society about his membership, he approached the builder. When he got no response from the builder, he issued a notice through an advocate in November 2011and requested the builder to regularise the flat from the Navi Mumbai Municipal Corporation (NMMC) at its costs. Gade however, received a reply with the remark “not claimed“. In the commission, the builder submitted that Gade himself had chosen to stay on the ground floor. It contended that as the flat was constructed on Gade’s request and the possession had already been handed over, there was no deficiency in service.

The builder further stated that if Gade did not want to continue living in the flat, he could take back his entire payment along with interest and surrender the flat.

The full decision dt. 4 October 2016 is available at the following link:

file:///C:/Users/Eleena/Downloads/judgement2016-10-04.pdf