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2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 856 of 2017
Date of Institution : 29.09.2017
Date of Reserve : 30.04.2018
Date of Decision : 17.05.2018
Smt. Sheenu wife of Sh. Amit Kumar, resident of Flat No. 4, 3rd
Floor, Tower No. C, Motia Marvel Homes, Ludhiana.
....Complainant
Versus
1. M/s Marvel Homes Construction Private Limited, Barewal
Road, Backside Gurdev Hospital, Ludhiana through its Managing
Director/Director etc.
2. Sh. Vinod Kumar son of Bhim Sen, Director M/s Marvel
Homes Construction Private Limited, R/o A-6, 5th Floor, Motia
Marvel Homes, Backside Gurdev Hospital, Barewal Road,
Ludhiana.
3. Municipal Corporation, Ludhiana through its Commissioner.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 856 of 2017 2
Present:-
For the complainant : Sh. Munish Gupta, Advocate
For opposite parties No.1&2: Sh. Rajiv Abhi, Advocate
For opposite party No. 3: Ex.-parte.
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Op Nos. 1 & 2 advertised their project, namely, 'Motia Marvel Homes' on the land situated at Barewal Road, Backside Gurdev Hospital, Ludhiana. Brochure was issued reflecting the amenities to be provided and highlighted structural and proposed building plans. It provided 60% open space to be left in the project by mentioning that the same would be allowed to the allottees and residents to enjoy the nature. Against the 40% covered area, club house, swimming pool, lush playground, billiard table, health club and multipurpose recreational hall and round the clock security was promised. It was also highlighted of independent car parking, high speed elevators of Kone or OTIS Company having capacity of 10 passengers with automatic rescue device system. It comprised 48 flats and 8 towers i.e. 6 flats in each tower. Allured by the highlights of the project, the complainant agreed to purchase flat No. 4, 3rd floor in Tower C for a total price of Rs. 52 Lacs. Agreement to sell dated 29.1.2015 was entered into between the parties. After completion of formalities and payment of the Consumer Complaint No. 856 of 2017 3 expenses for stamp duty etc., sale deed Vasika No. 11245 dated 19.3.2015 was executed. It has been further mentioned that complainant and her sister are only two children of their parents married at Ludhiana. Her parents are living at Khanna, therefore, in the old age, they have nobody to depend upon except complainant and her sister. Looking at the future need, complainant's husband Amit Kumar also purchased a flat in the said project from original allottee Anoop Bansal for his personal needs. Number of amenities were not provided in the project. The complainant and her husband approached Ops but with no result, then complainant got served a legal notice dated 29.4.2016 calling upon Op Nos. 1 & 2 to provide all amenities alongwith completion certificate. When no reply was received, complainant referred consumer complaint No. 403 of 2016 before the District Forum, Ludhiana. Ops did not appear and were proceeded ex-parte. They challenged the proceedings before the Hon'ble State Commission and the said prayer was declined in F.A. No. 619 of 2016. The said order was further challenged before the Hon'ble National Commission in Revision Petition No. 2800 of 2016, which was also dismissed vide order dated 16.12.2016, however, the learned District Forum on surmises and conjectures dismissed the complaint filed by the complainant holding that the facilities mentioned in the brochure have since been superseded on account of sale deed and agreement to sell having been executed, therefore, the facilities not forming part of agreement to sell need not to be provided by Op Nos. 1 & 2. The order of the District Forum was challenged in F.A. No. 280 of 2017. In the Consumer Complaint No. 856 of 2017 4 meantime, judgment of the Hon'ble National Commission in case of 'Ambrish Kumar Shukla & Others Versus Ferros Infrastructure Pvt. Ltd.' had come into being, which had laid down that the issues with regard to facilities, the value of the subject matter is to be taken into consideration to decide the pecuniary jurisdiction. Accordingly, the State Commission allowed the complainant to withdraw the complaint as well as the appeal as the complaint was not maintainable before the District Forum and also granted a permission to file a fresh complaint on the same cause of action vide order dated 11.9.2017. The facilities as detailed in the brochure are not existing at the spot as Ops have installed lifts of Schindler Company with capacity of 8 persons whereas in the brochure they had promised to provide OTIS/KONE lifts with capacity of 10 persons with automatic rescue device, there would be 60% space kept open to enjoy nature and to inhale the bounty of natural surrounding but only a small ground has been left and the remaining has been covered under the construction, swimming pool has not been constructed and there is no provision of club house/ health club and billiards table alongwith multipurpose recreation hall. There is no fire fighting gas or water and only box of fire fighting cable have been installed. There would be green trees and beautiful surroundings adjoining to the wall. Ops had left no space for planting trees. In the brochure and sale deed, single separate parking space was proposed and for every flat owner but no parking lot has been made, they have failed to install fountain in the middle of the park, failed to install glass to cover the building, Consumer Complaint No. 856 of 2017 5 completion/occupation certificate of the project and apartment to the complainant has not been applied with the Competent Authorities. They have also failed to take approval from the Airport Authority of India. Ops have mis-utilized the FAR permitted by the Regulatory Authority by constructing 8 Pent Houses over and above 48 flats on the top of every tower. Therefore, the possession of the flat handed over to the complainant is in fact incomplete and illegal possession. There is violation of Municipal Corporation Act as well as PAPRA, 1995. Alleging unfair trade practice and deficiency in services on the part of Op, this complaint has been filed by the complainant against the Ops seeking following directions:-
(a) Allow the complaint and opposite party No. 1 and 2 be directed to handover legal possession to the complainant after obtaining requisite permissions/sanctions i.e. Occupation/Completion certificate from competent authority and after providing all facilities/amenities, as detailed in the brochure, which are non-existing even as no date, on the spot as also by obtaining NOC from Fire Officer, MC, Ludhiana to ensure fire safety in building.
(b) Opposite party No. 1 and 2 be directed to pay 18% interest on the amounts paid by complainant, from the respective date of payment till providing of all facilities/amenities as detailed in para 18 above, as Consumer Complaint No. 856 of 2017 6 also till obtaining of requisite sanctions i.e. Completion/Occupation Certificate by Opposite Party No. 1 and 2.
(c) Opposite party no. 1 and 2 be directed to pay compensation to the tune of Rs. 10 Lacs on account of mental agony, harassment etc. caused to the complainant.
(d) Op No. 3 be burdened with costs of at least Rs. 2 lacs, as Op no. 3 has admittedly received fees/charges/stamp duty for execution of sale deed, which is an illegal act.
(e) Award litigation expenses to the tune of Rs. 2 lacs in favour of the complainant to be paid by the Opposite Parties.
(f) Ops be directed to pay sum of Rs. 1 lac to the complainant, obtained from her as maintenance charges, alongwith interest @ 18% per annum from the date of respective payment till realization.
(g) Any other relief to which the complainant may be entitled to under the facts and circumstances of the case, be passed in favour of the complainant and against the Ops.
(h) Cost of the complaint be awarded in favour of the complainant and against the OPs.
2. Upon notice, Ops appeared. Op Nos. 1 & 2 in their written reply took the preliminary objections that the complainant is Consumer Complaint No. 856 of 2017 7 not a consumer as defined under the CP Act as one flat has been purchased by the complainant, 2nd flat has been purchased by Ramesh Kumar, her father in law and 3rd flat has been purchased by the husband of the complainant Amit Kumar, therefore, the flat was booked just to earn the profit and for that reason, the complainant is not covered under the definition of the consumer as defined under the CP Act; Marvel Home Society, Barewal Road, Ludhiana has been constituted under the Societies Act and the said Society is now looking after the maintenance of the entire building and other common utility facilities. However, neither the complainant nor her husband has paid the maintenance charges of the entire building as Rs. 4,000/- per month w.e.f. October, 2016. Without paying the maintenance charges, the complainant is not entitled to common utility facilities; the buyer's agreement was executed between the parties and on the basis of terms of the agreement, sale deed has already been executed in favour of the complainant, therefore, the complainant cannot claim anything over and above the agreement to sell. The responsibilities of the seller for maintenance of building ceases from the date of possession of the apartment taken by the purchaser. The electricity connection charges are not included in the cost of the apartment and shall be borne by the purchaser. The seller shall have the first lien and charge on the said apartment for all its dues and other sums payable by the purchaser to the seller; the purchaser is not to use the flat /dwelling unit/parking for any purpose other than those intended to and shall not store any hazardous inflammable or Consumer Complaint No. 856 of 2017 8 obnoxious goods; the sale deed No. 11245 dated 11.3.2015 was executed between the parties on the basis of terms and conditions, which they agreed in which it has been clearly stated that the flat has been constructed as per the Byelaws of Municipal Corporation, Ludhiana. At the time of purchase, the purchaser has properly inspected the premises and confirmed that the entire work of the flat was complete in all respects; maintenance charges of the tower/building shall be paid by the complainant; electricity connection shall be installed by the complainant at her own costs. In case the complainant committed any breach of the aforesaid condition then Op shall be entitled to initiate any legal proceeding against the complainant. For all the occupants of the flat, parking of one car was provided; facility of club has been provided and the occupants shall bear the expenses according to their share and charges of water and sewerage shall be borne after execution of the sale deed. The complainant had never raised any objection with regard to the terms and conditions settled on the basis of agreement and apart from the terms and conditions as contained in the agreement to sell, no other promise was made by the Ops. The flat was not purchased by the complainant on the basis of any highlights in the brochure and the highlights in the brochure were not made part of the agreement. Further it was provided under the brochure "in the benefactor of the apartments any changes can be made without any notice but of equal or above specifications". The pictures of interiors as shown are just of sample purposes. The complainant and family members were knowing about the terms Consumer Complaint No. 856 of 2017 9 and conditions of the agreement before its purchase as flat No. 4, Tower-E, 3rd Floor was purchased by Ramesh Kumar, father-in-law of the complainant and then terms and conditions were laid down in the brochure cease to have an effect as and when agreement to sell and sale deed executed between the parties. It was denied that the amenities as referred in the complaint was not there. It was denied that the Ops had promised to provide lifts of OTIS / KONE Company with 10 persons capacity with automatic rescue system whereas Ops have provided lifts of M/s Schindler India Pvt. Ltd. and the lifts are working properly without any fault. According to Clause 5 of the agreement, super area is covered area, terrace area plus proportionate area covered by lifts, shelves, machine rooms, mumties, air handling unit, fire control security room, corridors etc. There is nothing in the agreement that 60% of the place is to be kept open to enjoy the nature and to inhale the bounty of the natural surrounding for tinny tots to play; there is no provision in the agreement to sell for providing swimming pool but Op Nos. 1 & 2 constructed the swimming pool alongwith the motor room and necessary machinery has already been installed. Similarly there is no provision in the agreement for providing club house, health club, billiard table and multi purpose recreation hall, yet multi purpose recreation hall/ club house has already been constructed with four 2 ton ACs installed in it alongwith other indoor decorative items and it is also to use as health club. Billiard were never agreed to be provided by the Ops. In case such facilities are to be availed then complainant has to contribute her share to Consumer Complaint No. 856 of 2017 10 contributory charges. Fire safety arrangements have been duly installed in the complex and are in functional condition. The certificate to that extent was issued by the office of Assistant Divisional Fire Officer, Ludhiana; there was no agreement for providing green trees and beautiful surroundings adjoining the wall or compound wall as alleged in the complaint. The walls have been painted. Grills and security fences have already been installed. One car parking has been provided to every flat owner of each tower separately and parking lot has been constructed. Proper hygienic condition exist at the spot. Maintenance of the building and common utility services are to be provided by the Marvel Home Society w.e.f. 24.2.2016. Ops have never agreed to install glass to cover the building, which is covered as per the terms of agreement to sell. There is no provision for providing the occupation/completion certificate of the apartment. After completing the building, NOC has been issued by the Municipal Corporation, Ludhiana vide its letter No. 1077/ATP-D dated 31.3.2011; there is no requirement for approval to be taken from Airport Authority of India as it has not crossed the height for which the approval is required. The height of the building is 70'6" and FAR was 1.2. Except for the apartment agreed to be sold, all other rights attached to the common area of the building shall continue to rest absolutely with the seller i.e. Op Nos. 1 & 2 unless and until the same or any part thereof is transferred in favour of any other individual or society. The construction of Pent Houses has been approved by Op No. 3 vide its letter No. 1077/ATP-D dated Consumer Complaint No. 856 of 2017 11 31.3.2011 issued by the Assistant Town Planner, Zone-D, after taking the composition fee of Rs. 11,77,630/-. The Op has also obtained the consent under Section 25/26 of Water (Prevention and Control of Pollution) Act, 1974 for discharge of effluent vide their letter dated 18.3.2014. The consent under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 for discharge of emission arising out of the premises has also been obtained from Punjab Pollution Control Board vide letter dated 18.3.2014 and that the complaint is bad for non-joinder of Marvel Home Constructions Pvt. Ltd. as a party. On merits, the objections stated in the preliminary objections were reiterated. With regard to the amenities as pointed out by the complainant in its complaint, the averments stated in the preliminary objections were reiterated. The amenities as provided under the agreement to sell has been provided. There is no unfair trade practice or deficiency in services on the part of Ops. With regard to the completion/occupation certificate, the plea taken in the preliminary objections were again reiterated. No unfair trade practice or deficiency in services on the part of Ops. Complaint is without merit, it be dismissed.
3. Mr. Jagdeep Singh, Draftsman has appeared on behalf of Op No. 3 in this Commission on 1.12.2017 but he was not having proper authority letter and he was directed to appear on the next date of hearing alongwith proper Authority letter but on the next date i.e. 8.1.018, none appeared on behalf of Op No. 3. Similarly, none appeared on behalf of Op No. 3 on 5.2.2018 and Op No. 3 was ordered to be proceeded ex-parte.
Consumer Complaint No. 856 of 2017 12
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Mrs. Sheenu as Ex. C-A and documents Exs. C-1 to C-36. On the other hand, Op Nos. 1 & 2 had tendered into evidence affidavit of Vinod Kumar, Director of Co. as Ex. OP1&2/A, affidavits of residents of the Society Ex. Op- 1&2/B to X and documents Exs. Op-1&2/1 to 90.
6. We have heard the counsel for the complainant, learned counsel for Op Nos. 1 & 2 and have carefully gone through the pleadings of the parties, evidence and documents on the record with their assistance.
7. An objection has been taken by the counsel for the Ops that the complainant is not a consumer because she had booked the flat to earn the profit, which comes under the commercial aspect and is not covered under Section 2(1)(d) of the Act. According to them, complainant booked one flat and the 2nd flat was purchased by her father-in-law Ramesh Kumar which was sold by him to Smt. Amandeep Kaur w/o Ajitpal Singh of Ludhiana. Ramesh Kumar is a separate family unit, therefore, in case father in law of the complainant purchased any flat and sold it, it cannot be said to be purchased by the same family. So far as purchasing another flat by Amit Kumar husband of the complainant, it has been alleged that it has been rented out. No direct evidence with regard to renting out the premises/flat by Amit Kumar but they had made a reference to the FIR Ex. Op-1&2/13 in which there is reference of Consumer Complaint No. 856 of 2017 13 flat No. F-4, Marvel Home where tenant had committed suicide. Even if a flat is on rent in that eventuality both the flats are with complainant and her husband. The complainant in her complaint in para No. 5 has stated that they are two sisters and they are the only children of their parents, who are residing at Khanna. Her parents are in the old age and there is nobody else to lookafter them except the complainant and her sister, therefore, to look after them a flat was booked by her so that her parents could be properly looked-after. The counsel for the Ops have not brought any evidence on the record that earlier the complainant and her husband had purchased any other flat at Ludhiana and then sold it at premium. No evidence that they are trading in real estate. In case such an evidence is not produced on the record then it cannot be said that they are not the consumer. In this regard, counsel for the Ops has made a reference to the judgment of Andhra Pradesh State Consumer Disputes Redressal Commission reported as 2014 (1) CLT 78 "GYSN Murthy versus M/s Suchir India Infratech (P) Ltd. & Ors." wherein it was held that purchaser of more than one flat cannot invoke jurisdiction of the Consumer Fora. He has referred to another judgment of the Hon'ble National Commission II (2008) CPJ 329 (NC) "Travel India Bureau Pvt. Ltd. versus HUDA & Ors." wherein it was observed that the purchase of dwelling unit not for earning livelihood by means of self employment. The transaction is for commercial purposes. He has also referred to another judgment of the Hon'ble National Commission reported as III (2017) CPJ 202 (NC) "Ravinder Kaur Consumer Complaint No. 856 of 2017 14 Sethi versus DLF Universal Ltd. & Ors." that letting out of shop is a commercial purpose. So far as the judgment "GYSN Murthy versus M/s Suchir India Infratech (P) Ltd. & Ors." and "Travel India Bureau Pvt. Ltd. versus HUDA & Ors." cannot be relied upon in view of the latest judgments of the Hon'ble National Commission that till the Ops proves that the allottee/complainant had been trading in real estate then booking/purchasing more than one flat cannot be straight away stated that it was for commercial purposes and that he is not a consumer. In this regard, counsel for the complainant has made a reference to the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Further in "Kavita Ahuja versus Shipra Real Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd.", 2016 (1) CPJ 31 it was held by the Hon'ble National Commission that buyers of the residential unit would be termed as consumer unless it is proved that he/she had booked the same for commercial purposes. So far the judgment "Ravinder Kaur Sethi versus DLF Universal Ltd. & Ors."(supra), it relates to the commercial property for which it is the basic requirement to come under the CP Act that it was purchased to earn livelihood by way of self employment, which Consumer Complaint No. 856 of 2017 15 cannot be make applicable to the residential unit for which there is no such requirement. Therefore, keeping in view the pleadings, evidence and the judgments referred by the counsel for the parties and the fact that the Ops have not been able to bring on the record any evidence that the complainant had been trading in real estate, therefore, merely on the fact that the complainant and her husband had two flats and in view of the explanation given by the complainant in the complaint that it was booked to lookafter her parents as they are two sisters residing at Ludhiana whereas her parents are at Khanna and to properly lookafter them a flat was purchased by her at Ludhiana, therefore, in no such circumstances, it can be said that it was purchased for commercial purposes or that the complainant is not a consumer.
8. A plea has been taken that the complaint filed by the complainant is barred by limitation. The possession of the flat was delivered on 19.3.2015 vide which sale deed was also executed in favour of the complainant whereas this complaint was filed by the complainant on 6.10.2017, not within the period of limitation but it is pertinent to mention here that earlier the complainant had filed a complaint No. 403 of 2016, which was dismissed and then an appeal was filed before this Commission and in the meantime the judgment 'Ambrish Kumar Shukla & Others Versus Ferros Infrastructure Pvt. Ltd.' 2017(1) CPJ 1 was delivered by the larger Bench of the Hon'ble National Commission and it was held that pecuniary jurisdiction is to be counted on the basis of total sale consideration and not on the basis of deficiency, therefore, the Consumer Complaint No. 856 of 2017 16 complaint was not maintainable before the District Forum and on the request of the complainant, the complaint and the appeal was allowed to be withdrawn and then the fresh complaint has been filed by the complainant on the same cause of action and an application to condone the delay in filing the complaint was filed, which was allowed vide order dated 8.1.2018. Therefore, now this point cannot be raised by the counsel for the Ops that the complaint is barred by limitation.
9. An objection has been taken that Marvel Home Society, Barewal Road, Ludhiana is a necessary party because after the possession of the flat, the maintenance work is to be looked-after by Marvel Home Society. It has further been stated that the complainant is required to pay Rs. 4,000/- per month as maintenance charges, the complainant is not paying these charges. In this background, it was argued by the counsel for the Ops that Marvel Home Society is a necessary party but it is pertinent to mention here that the complainant has filed this complaint with regard to not providing the facilities/amenities as detailed in the brochure and no occupation/completion certificate, which does not have any concern with Marvel Home Society. In case the complainant has not paid the maintenance allowance then any action as required under the Byelaws of the Marvel Home Society can be taken by the Society. Therefore, we do not find any force in the arguments raised by the counsel for the Ops that Marvel Home Society is a necessary party.
Consumer Complaint No. 856 of 2017 17
10. As stated above, in this complaint, the complainant has contended that occupation/completion certificate was not taken by the Ops from the Competent Authority before delivery of the possession and that the facilities/amenities as detailed in the brochure were not provided.
11. Firstly, dealing with the preposition whether the Ops are under legal obligation to provide all the facilities/amenities as detailed in the brochure or they are to act only in accordance with the terms and conditions of the agreement. In case we go through the brochure, the same has been brought on the record as Ex. C-1 in which it has been stated magnificence and splendor play in 40% of our covered area, 60% space is kept open to enjoy nature. Provision of swimming pool, club house and play ground, emergency call switch, security room, fire hose reels for fire protection & intercom facility, KONE or OTIS 10 passengers lift which will cover that in case of power failure, the lift does not stuck up on the way and comes on the next station. 100% rain harvesting etc. Whereas under the agreement to sell Ex. C-2, total cost of the flat is Rs. 52 Lacs, Flat No. 4, Tower C, Third Floor. Definition of super area, date of possession, parking area for two cars, its maintenance etc. has been referred. There is no reference of any amenities in the agreement as promised in the brochure. When any brochure/advertisement is issued by the Ops, it has some meaning because ordinary people apply in the project of the Ops seeing all the facilities/amenities, which are going to be provided to them in the project as highlighted in the brochure. To counter this Consumer Complaint No. 856 of 2017 18 preposition, counsel for the Op has relied upon II (2006) CPJ 83 "Subhash Kumar Jain versus Chandigarh Housing Board & Anr." in which it was observed by the Hon'ble State Commission that only tentative price is fixed under the brochure and pricing policy cannot be challenged after allottee has taken the possession. He has further referred on the same point judgment of the Hon'ble Supreme Court reported in II (2006) CPJ 1 (SC) "PUDA (Chief Administrator) and Another versus Mrs. Shabnam Virk" that advertisement showing tentative price of flat issued. Allottee consented and entered into an agreement regarding payment of price determined by the Board and possession was taken by adding the demanded amount. Additional amount was demanded by the builder regarding increase in the plinth area, ground area and payment of enhanced compensation to land owners. Whereas in our case, there is no dispute with regard to the price of the flat, which stand settled and it is same as same mentioned in the agreement to sell to which the complainant has challenged. The challenge is with regard to the facilities/amenities as proposed in the brochure. Whereas counsel for the complainant referred to the judgment of the Hon'ble National Commission reported in 2009(1) CPJ 217 "Madan Builders versus R.K. Saxena". In the housing advertisement, a false representation was made in that glass capsule lift will be provided. It was observed by the Hon'ble National Commission that there was deficiencies as they failed to provide facilities as promised in the advertisement/brochure, which amounts to deficiency in service Consumer Complaint No. 856 of 2017 19 as well as unfair trade practice. A reference has been made to another judgment 2010 (1) CPR 132 "The General Secretary, (Shri Amol Mahapatra), Royal Garden Residents Welfare Association versus The Managing Director, (Shri Girish Batra), M/s Padmini Infrastructure (I) Ltd.". In that case, Op developer failed to provide necessary facilities according to the terms of the agreement given in the brochure. It was observed with regard to water supply system was defective and fire safety measures were inadequate. It was observed as a gross deficiency in service for non-provision of necessary facilities. In another judgment by the Chandigarh State Consumer Disputes Redressal Commission reported as 2015 (1) CLT 160 "Ansal Lotus Melange Projects Pvt. Ltd. and others versus Ibensreet Singh Bajwa", Car parking was not provided as per the brochure. It was observed that it is a deficiency in service. Apart from that there is another judgment of the Hon'ble National Commission reported as "IV (2014) CPJ 172 (NC) "Sahara India Commercial Corporation Ltd. & Ors. Versus Mukamala Nataraja Rao & Anr." In that case, infrastructure facilities expressly assured in brochure not provided. Complaint was allowed by the State Commission. It was observed by the Hon'ble National Commission that several facilities and services assured to purchasers of residential unit in Sahara States Township has not been provided. Hospital a major facility promised was yet to start. Defects in the construction and long delays in provision of services like potable water, external electrification, parks and gardens amounts to deficiency in service in which there Consumer Complaint No. 856 of 2017 20 is a reference of the distinction made by the Hon'ble Supreme Court with regard to common areas and facilities and community and other facilities like schools, hospitals, community centres, shops etc. and it has been held as under:-
"There is a marked difference between 'common areas and facilities' and 'community and commercial facilities'. A colonizer is duty bound to provide all the common areas and facilities as per Section 3(f), except community and commercial facilities referred to in Section 3(f)(7). "Common areas and facilities" referred to in Section 3(f)(7) of the Apartment Act has a co- relation with the 'Community and Commercial Facilities' referred to in Section 3(3)(a)(iv) of the Development Act. It is for that reason that a discretion has been given to the colonizer to either provide the same or not to provide the same in the declaration referred to in Section 3(f) of the Apartment Act. The expression 'may' used in Section 3(f)(7) of the Apartment Act clearly indicates that no duty is cast on the colonizer to give an undivided interest over those community and commercial facilities exclusively to the apartment owners of a particular colony, since the same have to be enjoyed by other apartment owners of DLF City, Phase I, II and III as well. Even otherwise, the colonizer could not have parted with his ownership rights exclusively to one Colony alone."Consumer Complaint No. 856 of 2017 21
Some observations of the order passed by the Hon'ble National Commission were upheld by the Hon'ble Supreme Court has been referred as under:-
"This is a case where we need to consider the impact of the conduct of OP on the buyers of Pushpanjali Farms. No special expertise is required to appreciate that the OP would have realized significantly lower price from these farms, had the project been marketed without the country club. Therefore, the element of loss suffered by individual farm purchasers cannot be ignored. Simultaneously, we also need to consider the future impact on consumers at large. If the Consumer Fora were to allow the service providers to benefit from such conduct, the latter will be encouraged to renege on their commitments, without any fear of the law. As already observed, in this case, failure of the Op to provide the country club tantamounts to a deficiency of service as well as an unfair trade practice."
There is another judgment of the Hon'ble National Commission reported as II (2011) CPJ 158 (NC) "GDA versus Alok Chandra Sharma" that the contention of the Op that possession cannot be delivered due to High Court's stay order not acceptable as no stay in respect of particular land by the Court. Brochure clearly states possession within two years. Deficiency in house and lack of civil facilities proved. Op liable for deficiency in service. On the basis of all these judgments, the plea taken by the Ops that once there was Consumer Complaint No. 856 of 2017 22 an agreement to sell between the parties then the parties cannot go beyond the agreement to sell and facilities/amenities as referred in the brochure were never agreed and cannot be provided but the counsel for the Ops was unable to refer judgments contrary to the judgments of the Hon'ble National Commission and the State Commission referred above in which it has been held that in case any amenities/facilities has been referred in the advertisement/brochure then the builder/developer is under legal obligation to provide these facilities, otherwise, it will amount to unfair trade practice as well as deficiency in services. Therefore we do not agree with the plea raised by the counsel for the Ops that the amenities/facilities as referred by the Ops cannot be provided to him as there was no reference in the agreement to sell.
12. It has been further contended that after agreement to sell, the sale deed has also been executed between the parties, the same has been referred on the record as Ex. C-3 wherein the complainant had expressed his satisfaction with regard to the flat and had taken the possession and now she cannot move around to say so that the amenities/facilities are not provided. The sale deed has been executed in consonance of agreement to sell between the parties and the amenities were to be provided as per the features highlighted in the brochure because these were not highlighted in the agreement to sell and there is no recital in the sale deed that the complainant is satisfied to the facilities / amenities provided in the flat and in the project as highlighted in the brochure. Moreover, at the time of taking the possession, Consumer Complaint No. 856 of 2017 23 everything can be checked as and when any allottee uses the flat then he comes to the conclusion whether the construction is upto mark or the amenities/facilities advertised at the time of launching the scheme or so provided in the brochure have been given/provided or not that is why under Section 11(2) of the PAPRA, 1995, it has been provided that the building shall be constructed and completed in accordance with the plans and specifications aforesaid and if any defect in the building or material or if any unauthorized change in the construction is brought to the notice of the Promoter within a period of 2 years from the date of handing over the possession, it shall whatsoever will be rectified by the Promoter without further charge to the persons, who have agreed to take the apartments and in other cases, such persons shall be entitled to receive reasonable compensation for such defects. Therefore, we do not agree with the plea raised by the counsel for the Ops that in case sale deed has been executed by the Ops in favour of the complainant, the complainant does not have any right to point out the defects, if any, which is contrary to Section 11(2) of the PAPRA referred above.
13. What are the deficiencies on the part of the Ops with regard to the facilities/amenities to be provided to the complainant? It has been so detailed by the complainant in Para No. 18 of the complaint. It has been stated that the lifts of Schindler Company with capacity of 8 persons with no automatic rescue device system in case of power failure has been installed whereas in the brochure the lifts of OTIS/KONE with capacity of 10 persons with automatic Consumer Complaint No. 856 of 2017 24 rescue device, in case of power failure were promised. Counsel for the complainant has drawn the attention of this Commission towards the brochure Ex. C-1 where in the page of specifications, it has been mentioned as under:-
"Lift shall be of KONE or OTIS of 10 passengers with automatic rescue device system will be provided ARDS ensures that even in case of power failure, the lift does not get stuck up on the way and comes on the next station."
It has been reiterated by the Ops that brochure is not a contract of sale. After the execution of the agreement to sell between the parties Ex. C-2 about which they have already given the findings above about the enforceability of the features as highlighted in the brochure. It has been admitted that the lift of Schindler Company has been provided. It was denied that lift of OTIS/KONE with capacity of 10 persons with automatic rescue device system were promised. The lifts are properly working and no deficiency in services on the part of Op. Once the lifts have been provided, it will not be equity and justice in case directions are given to the Ops to remove these lifts and in that place of lifts of KONE/OTIS be provided because apparently no defect has been pointed out by the complainant in its service during his evidence. The only point is that it does not have power back up for that some damages can be awarded to the complainant.
14. It has been stated that in the prospectus/brochure it was mentioned that there would be 60% space kept open to enjoy Consumer Complaint No. 856 of 2017 25 nature whereas the said 60% area has been made concrete and only small ground has been left by the Ops. However, in the pleadings and evidence, it has not been stated by the counsel for the complainant, how much open area has been left by the Ops in the site plan Ex. Op-1&2/68. The area in front of the tower has been kept open to the extent of 15%. However, in case we go through the notes approved by the Competent Authority, who has approved the layout plan, total plot area has been mentioned as 42747.33 sq. ft. Ground floor plan 21373.67 sq. ft. and actual covered area 12739.64 sq. ft. In case this area is taken to the total plot area of 22747.33 sq. ft., it will be more than 60% of the total plot area because apart from the area left in front of the plots, the open area has been covered under the roads etc. Therefore, in the absence of any specific evidence brought on the record by the complainant that open area has not been left by the Ops according to the highlights in the brochure, therefore, we do not agree with this plea raised by the counsel for the complainant that 60% open area has not been left as promised in the brochure.
15. It has been further stated that it was promised that there would be swimming pool for refreshment and beautification but swimming pool has not been constructed and the alleged swimming pool is used for washing of the utensils. It was also promised in the brochure that there would be club house/health club and billiard table alongwith multi purpose recreation hall. It has been stated that swimming pool has already been constructed and some work of swimming pool/ Jim is under construction. The delay Consumer Complaint No. 856 of 2017 26 has been caused as the residents of the Society wanted the swimming pool/Jim to be constructed of high quality and the Promoter Company is taking the advice of the residents of the Society. In this regard, affidavit has been filed by Nishi Garg, owner of Flat No. H-1, Marvel House that work of the swimming pool is still under construction and delay has been caused as it is to be constructed of high quality and that the Promoter Company is taking the advice of residents of the Society. Similar is the affidavit Ex. Op-1&2/B owner of Flat No. F-1, therefore, there is no denial with regard to provision of the swimming pool. It is under construction and apart from the affidavit filed by the residents of the said Society, some photographs Exs. Op-1&2/35, Op-1&2/36, Op- 1&2/37 alongwith room for the motor Ex. Op-1&2/38. With regard to health club/billiard table and multipurpose recreation hall, it has been stated in the written reply, although it has not been agreed but Ops have agreed to construct club house/multipurpose recreation hall and billiard table and has already been provided with lights and 4 to 10 ACs have been installed alongwith interior decorative items and it has been handed over to the Marvel Home Society w.e.f. 24.2.2016. In case the complainant is to use those facilities then he has to pay the continuance/maintenance charges as fixed by Marvel Home Society. In this regard, some photographs have also been placed on the record as Exs. Op-1&2/39, Op- 1&2/40, Op-1&2/42, Op-1&2/43 and Marvel Home Society is there. The obligation of the Op was upto the construction. So far as operation of the amenities is concerned, in case the residents are Consumer Complaint No. 856 of 2017 27 to use those facilities in case some user/maintenance charges have been fixed by the Society then the complainant is required to pay the charges. Therefore, we are of the opinion that the swimming pool is under construction and major work is complete and some directions can be given to the Ops to complete it within a specific period and so far as club house/health club, billiard table and multipurpose recreation hall, it is already complete and handed over to Marvel Home Society, therefore, no such relief with regard to this aspect can be granted to the complainant.
16. It has been stated that no fire fighting gas or water and only box and fire fighting cable has been installed. Whereas in the reply, it has been denied that only box has been placed with no fire fighting system. The safety arrangements have been totally installed in the complex and in this regard certificate was issued by Assistant Divisional Fire Officer, Ludhiana vide its letter No. 1741/FR/2 dated 19.12.2017, it has been placed on the record as Ex. Op-1&2/44 wherein the fire fighting system installed by the Op was found to be correct. On the other side there is no report of any expert tendered on the record by the complainant that the fire fighting system installed is only an instrument and that it is not in a working condition, therefore, when there is a certificate of Competent Authority that cannot be disbelieved and in the absence of any specific evidence by the complainant on the record, no such relief can be granted to the complainant.
17. It has been stated that on the last page in the Map, it has been provided that on the compound there would be green Consumer Complaint No. 856 of 2017 28 trees and beautiful surroundings adjoining to the walls, whereas this fact has been denied by the Ops. Space has been left for planting the trees and complete concrete walls and pass ways have been made and that there was no provision to provide any trees alongside the walls in the brochure Ex. C-1. Nothing has been pointed out by the counsel for the complainant that such a facility was promised. The walls are there, open space is there. In case such a facility is required, the trees can be planted with the passage of time but when no specific highlight was there in the brochure or in the agreement to sell then no such direction can be passed in favour of the complainant and against the Ops.
18. It has been further stated that in the brochure as well as in the sale deed, single separate parking space has been provided for every flat owner/consumer but no parking lot has been made. The counsel for the complainant has referred to the brochure Ex. C-1. Counsel for the complainant has referred to the agreement to sell Ex. C-2, para No. 21 wherein it has been stated that the purchaser shall be only authorized resident and shall be allowed to use common parking area for two cars. In the sale deed Ex. C-3 it has been mentioned that each flat owner will be entitled to use one car parking. This recital in the sale deed is even against the recitals in the agreement. It was argued by the counsel for the Ops that once in the sale deed, it has been admitted by the complainant to get one car parking then he is estopped by his act and conduct to ask for two car parkings. The rights are to be determined on the basis of agreement or the amenities they have promised in their Consumer Complaint No. 856 of 2017 29 brochure. Sale deed is a step further to provide these facilities. Therefore, the sale deed is not a contract between the parties. In case in the brochure or agreement to sell, it has been provided that each flat owner will be entitled to use common space for two car parking then he will be entitled to two car parking instead of one car parking and to that extent the direction can be given to the Ops.
19. With regard to the poor hygienic condition, once the complex is complete and Marvel Home Society is there, maintenance work is looked after by Marvel Home Society and plea has been taken by the Ops that each flat owner has to pay Rs. 4,000/- per month for maintenance and it has also been pleaded that the complainant has not paid his due share for the last one year. Once the flats are complete and Marvel Home Society is there then maintenance of the common spaces is to be lookedafter by the said Society, therefore, no such direction can be given to the Ops in this regard.
20. It has been stated that Ops failed to install fountain in the middle of the park and glass cover. No doubt that in front of the towers in the brochure Ex. C-1, one fountain has been shown i.e. just a photograph and in the highlights in the brochure, there is no reference with regard to provision of any fountain and glass cover in front of the towers, therefore, mere on the basis of photographs, the complainant is not entitled to such facility, therefore, no such direction in this regard can be given to the Ops.
21. Ops have failed to take approval from Airport Authority of India. Whereas in the written reply, Ops have taken the plea that Consumer Complaint No. 856 of 2017 30 the height of the building was 70'6" and FAR was 1.2. Counsel for the complainant has not stated the height for which any certificate from Airport Authority of India is required. It is not required in every building, it is required only in case the height of the building is more than the prescribed limit. In the pleadings, it has not been referred what is the prescribed limit or whether the height of the building is more than that, therefore, in the absence of any specific pleading or evidence on the record, no such direction with regard to taking any certificate from the Airport Authority of India can be asked to the Ops.
22. It has been stated that completion/occupation certificate of the apartment has not been obtained by the Ops. In reply to that, it was denied that they have not provided the completion/occupation certificate of the apartment to the complainant nor it was applied with the Competent Authorities. Basically there is no provision for providing completion/occupation certificate of the apartment to the complainant, it has been so held by District Consumer Disputes Redressal Forum, Ludhiana. The judgment so passed by District Consumer Disputes Redressal Forum, Ludhiana stand withdrawn because the complaint filed by the complainant was withdrawn when it was observed that the pecuniary jurisdiction was more than that of the District Forum, therefore, the District Forum had no jurisdiction to entertain the complaint. It has been further stated that the building was completed for taking sanction from the Municipal Corporation. No doubt that layout plan is required to be approved either by the Consumer Complaint No. 856 of 2017 31 Municipal Corporation or by the GLADA. They have referred that NOC has been given by Municipal Corporation, Ludhiana to which they are referring as a completion certificate. Referring to letter No. 1077/ATP-D dated 31.3.2011, which shows that the Ops raised construction more than the sanctioned plan and it was compounded a sum of Rs. 11,77,603/- and after that they have given the NOC to get Bank loan, water, sewerage and sale purchase etc. but technically it is not a completion/occupation certificate as pleaded by the counsel for the Ops. The Ops is a developer and has taken a licence to develop it as a Colony under the PAPRA, therefore, the provision of the PAPRA will be applicable. A reference has been given to Clause 3(2)(j), which reads as under:-
"(j) not allow persons to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;"
Section 14.(1) relates to responsibility of the promoter, which reads as under:-
"(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the Consumer Complaint No. 856 of 2017 32 allottee of an apartment may apply for an occupation certificate from the said authority;"
Therefore, according to these provisions, occupancy/completion certificate is required to be obtained by the Ops. The counsel for the complainant has also referred to Section 272 of Punjab Municipal Corporation Act, 1976, which reads as under:-
"272. Completion certificate - (1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by bye-laws made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work.
(2) No person shall occupy or permit to be occupied any such building or use of permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act;
Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal to grant such Consumer Complaint No. 856 of 2017 33 permission, such permission shall be deemed to have been granted."
Therefore, Ops were under legal obligation to get the completion certificate. Even if the sale deed has been executed in favour of the complainant even that is not a bar to get the completion certificate. In this regard, the counsel for the complainant has referred to the judgment of the Hon'ble National Commission 2017(3) CPJ 569 "Dr. Pradeep B. Pawar versus Dilip Varyamal Virmani Kamal Nagar". In that case, completion certificate issued by Gram Panchayat. It was mentioned that it is not a valid certificate taken without consulting District Town Planner. It was further observed that sale deed is also defective if it is taken without Completion Certificate in accordance with law. No contrary judgment has been cited by the counsel for the complainant. Therefore, the plea taken by the counsel for the Ops that sale deed has been executed, therefore, completion certificate is not required, is no ground. Even if the sale deed has been executed, the completion/occupation certificate as required under the PAPRA or Municipal Corporation Act, 1976 be obtained by the Ops.
23. No other point was argued.
24. Sequel to the above, we partly accept the complaint and direct Ops No. 1 & 2 as under:-
(i) Complete the swimming pool within a period of 2 months from the date of receipt of the copy of the order, failing which the Ops will pay to the complainant Consumer Complaint No. 856 of 2017 34 compensation @ Rs. 2500/- per month till the date of completion of the swimming pool.
(ii) Instead of one car parking, the complainant will be entitled to two car parkings.
(iii) for installing lifts of Schindler Company that too without automatic rescue device system as agreed in the brochure, the Ops will pay Rs. 25,000/- as compensation to the complainant.
(iv) Ops are directed to get the completion certificate from the Competent Authority appointed under the PAPRA or under the Municipal Corporation Act, 1976 within a period of two months from the date of receipt of the order; failing which it shall pay Rs. 5,000/- per month to the complainant till they get the completion certificate from the Competent Authority.
(v) Ops are further directed to pay Rs. 30,000/- as compensation for mental agony and harassment.(vi) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by the Ops within a period of two days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
25. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. Consumer Complaint No. 856 of 2017 35
26. Copy of the order be supplied to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 17, 2018.
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