Ram Surat Ram Maurya, Presiding Member
1. Heard Mr. Uday B. Wavikar, Advocate, for the complainant.
2. M/s. Sankalp Siddhi Tower ‘A’ Wing Co-operative Housing Society Limited has filed above complaint, for directing the opposite party to (i) repair, rectify and complete the incomplete works as per Architect’s Report dated 28.02.2013 and comply with Fire Safety requirements as per notices issued by Mumbai Fire Brigade, Lift Licenses etc. or in alternative pay Rs.11336500/- to carry out necessary repairs; (ii) to arrange for Society Office, Security Cabin and Common Toilets; (iii) pay Rs.1000000/- as compensation for not providing the swimming pool and gymkhana as agreed in Special Meeting of General Body held on 23.10.2005; (iv) reimburse Rs.4264204/-with interest @18% per annum, being Property Tax paid by the complainant; (v) reimburse Rs.540200/- with interest @18% per annum, paid toward excess charge for water, levied due to non-availability of “occupation certificate”; (vi) pay Rs.612033/-, towards maintenance charges of four flats, in possession of the opposite party; (vii) provide 23 numbers of stilt parking spaces and remove commercial unit made by converting of stilt parking space; (viii) obtain and provide “full occupation certificate” and “completion certificate” and execute conveyance deed in respect of saleable area in the land bearing CTS No.682 area 433.53 mtrs. at Mazgaon Division, E.S. Patanwala Marg, Byculla (East), Mumbai, within stipulated period; (ix) handover all the original documents concerning the construction of the building such as set of approved/completion plans, “full occupation certificate” and “completion certificate” and all other certificates relating to the building; (x) pay Rs.1000000/-, as compensation for harassment and deficiency in service; (xi) pay Rs.750000/- as costs of the litigation; and (xii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
During hearing on 09.08.2018, before this Commission, the counsel for the complainant confined for the reliefs of (i) “occupation certificate” (ii) “completion certificate” (iii) parking spaces and (iv) conveyance deed in respect of saleable area in the land bearing CTS No.682 area 433.53 mtrs. over which, the building is constructed,.
3. The complainant stated that it was a Co-operative Housing Society of the flat buyers in the building “Sankalp Siddhi Tower ‘A’ Wing”, situated at Cadastral Survey No.682, Mazgaon Division, 20, E.S. Patanwala Marg (64/68-B Connaught Road), Byculla (East), Mumbai and registered under Maharashtra Co-operative Societies Act, 1960. The opposite party was a Partnership Firm and engaged in the business of development and construction of group housing project. Mr. Sadiq Sultan Ratansi was its partner and managing all the affairs of the opposite party. There was an old building situated at Cadastral Survey No.682, admeasuring 1037 sq. yard, Mazgaon Division, 20, E.S. Patanwala Marg (64/68-B Connaught Road), Rani Baug, Byculla (East), Mumbai, which was owned by Sankalp Siddhi Tenants Co-operative Housing Society (the said society), under deed of conveyance dated 12.11.2001 and occupied by 124 tenants. The said society decided for redevelopment of the old building. The plan for redevelopment as submitted by the opposite party was approved by the said society accordingly the opposite party got the building plan approved from Municipal Corporation Mumbai vide No. EBBPC/9151 /E/A dated 10.02.2003. The said society executed a Development Agreement dated 12.02.2004, authorising the opposite party for construction and development of new building in the name of “Sankalp Siddhi Tower”, which consisted two wings i.e. A-wing is sale tower, falling in the share of the opposite party and B-wing, for rehabilitating old tenants. The opposite party constructed total 53 flats in A-wing out of which, 49 flats have been sold during 2004-2005 and 4 flats was still with the opposite party. The purchasers of the flats in A-wing Tower formed M/s. Sankalp Siddhi Tower ‘A’-Wing Co-operative Housing Society Limited with the cooperation of the opposite party and got it registered under Maharashtra Co-operative Societies Act, 1960, bearing Registration No.MUM/W (E) HSG/(TC)/8604/2006 dated 31.06.2006. Although the opposite party constructed the flats and handed over possession to the members of the complainant society time to time but the opposite party was not completing construction of other amenities and facilities due to which the opposite party could not obtain “occupation certificate” and “completion certificate”. The opposite party committed deficiencies i.e. (i) “occupation certificate” was not obtained due to which conveyance deed for the flat and proportionate saleable area has not been executed in favour of the member of the complainant; (ii) Stilt Parking Space has to be provided to 23 buyers, whose carpet area is above 40 mtrs. but the opposite party has converted some Stilt Parking Space into commercial use due to which, 23 flat buyers did not have parking space; (iii) As per Rule 38(3)(b)(iii) of D.C .Rules, 1991, the opposite party was required to provide Refuge Chute for kitchen, which has not been provided; (iv) Rule 38(11) of D.C .Rules, 1991, requires for providing office space for the society, which has not been provided; (v) Fire Fighting System have many lacunae, for which, Mumbai Fire Brigade Office has issued notices; (vi) Entrance lobby was not proper; (vii) No separate lift has been provided for A-wing; (vii) No watchman cabin has been provided; (viii) Electrical meters are single phase meters; (ix) Auto lift did not contain auto rescue system, over load indicator etc.; and (x) Several deficiencies in construction i.e. cracks, leakages, poor terrace water proofing, plumbing & sanitary fittings not proper; (xi) “completion certificate” has not been obtained due to which the opposite party was not handing over all the papers to the complainant, although under the law the opposite party is required to handover all the papers within four months of formation of the society. The complainant gave a legal notice dated 19.11.2012, for removing above deficiencies. The opposite party, vide letter dated 05.01.2013, informed that due to litigation with some tenants of B-wing, “occupation certificate” could not be obtained and he assured to obtain it within six months. The complainant obtained a reports from an approved architect dated 28.02.2013, who gave an estimate of Rs.11336500/- for carrying out repair works. Due to unavailability of “occupation certificate”, the municipality is charging extra amount for water supply and the complainant has paid Rs.540200/- extra amount during 2006-2012. Four flats were owned by the opposite party but the opposite party was not paying its property tax and the complainant has paid Rs.4264204/- during 2006-2012. Then this complaint was filed on 08.08.2013, alleging deficiency in service.
4. The opposite party has filed its written reply on 21.05.2014, in which, material facts have not been disputed. The opposite party stated that “Sankalp Siddhi Tower” was a single composite building consisting A-wing and B-wing of ground floor+stitl+12 upper floors, as per approved layout plan. On each floor 10 tenants were rehabilitated and 4 tenements were sold to new buyers. For construction purpose, there were no two separate wings. For reference of saleable area and rehabilitation area, A-wing and B-wing have been denoted, which was known to all the purchasers before entering into agreement with them. Demand of division of wing-wise FSI is contrary to the approved Redevelopment Plan. Sankalp Siddhi Tenants Co-operative Housing Society was absolute owner of the land of the building “Sankalp Siddhi Tower” i.e. C.S. No.682 area 1037 sq.yards of Mazgaon Division. As per clause-11 of Development Agreement dated 12.02.2004, the flat buyers had to be admitted as the member in the said society, on payment of entrance fee. The complainant society is not a legally formed/recognised society and has no locus standi to file this complaint. It has been denied that the complainant society was formed with cooperation of the opposite party. As per Development Control Regulations, 1991 only single amenities i.e. one entrance, one lobby and one society office etc. have to be provided, which had been provided by the opposite party. The construction was completed and possession was handed over to the purchasers around May, 2006. At the time of taking possession, all the purchasers were fully satisfied with the construction in all respect and did not raise any objection. As per Maharashtra Housing and Area Development Act, 1976, “No Objection” is required from Mumbai Building Repairs and Reconstruction Board for “Occupation Certificate”, which was obtained on 30.12.20106, Licence for lift was obtained on 16.09.2006, “No Objection” from Chief Fire Officer was obtained on 19.04.2008 and the opposite party has applied for issue of “occupation certificate”. However, existing tenants have filed litigations i.e. (i) Dattatraya Daitkar has filed Arbitration Petition No.15 of 2006 and obtained order of status quo in it. (ii) Hagawane has filed SCC Suit No.1348 of 2006, which is pending. (iii) Some flat buyers have made illegal additions/alterations, in the existing construction, due to which FSI has been increased and the opposite party has made complaint before Municipal Corporation, Mumbai. Due to these reasons issuance of “occupation certificate” is being delayed. Proposed parking space has been altered to accommodate gymnasium, office space and a lavish entrance lobby of 1200 sq.ft. area, with Ganesh Idol, with consent of all the flat owners and not for commercial use. Security cabin has been provided and is under the use of the said society. Refuge chute was obligatory and not mandatory. As per policy of BEST only single phase meter has to be provided for 1BHK flats. All the flat owners are given carpet area, common area, common facilities and amenities as mentioned in their agreement for sale and there is no deficiency at all. It has been denied that the shops are not connected with plumbing system. Some of the shop owners have additional toilet ad connected with the existing drainage. Some of the shop owners lowered the plinth and constructed mezzanines floor illegally increasing FSI. The Architect reports is about maintenance of normal wear & tear and up-gradation of the existing amenities and systems, which have to be borne out by the occupants and the society and not by the opposite party. The Architect has illegally ignored the fact that the building was constructed as per Redevelopment Agreement. Cause of action for alleged deficiencies arose on 31.05.2006 and the complaint was highly time barred. Waterproofing of the terrace was damaged by Mr. Khazier Shamsuddin Haidery, owner of Flat No.1203 and 1204, in the year 2011, in spite of warning given by the opposite party vide letter dated 14.04.2011. Original documents have to be handed over to the said society, who is absolute owner of the land and not to the complainant. Some of the flat buyers have purchased 2 flats and total number of flat buyers is 36 and total number of flats for sale is 46. It has been denied that the complainant had paid extra charge for water or property tax of four flats. The opposite party has neither committed deficiency in service or unfair trade practice. The complaint has been filed on false allegations and is liable to be dismissed.
5. The complainant has Affidavit of Evidence of A. Rathankumar and documentary evidence. The opposite party has filed Affidavit of Evidence of Sadiq S. Ratansi and documentary evidence. This Commission appointed a Local Commissioner, who has submitted Commission Report dated 18.01.2016. The opposite party cross-examined the Local Commissioner by serving interrogatories, which has been answered by Local Commissioner, along with his Affidavit filed on 28.10.2016. The complainant has filed their written synopsis.
6. I have considered the arguments of the counsel for the complainant and examined the record. A preliminary objection has been raised by the opposite party relating to locus standi of the complainant to file this complaint. The opposite party stated that Sankalp Siddhi Tenants Co-operative Housing Society was absolute owner of the land of C.S. No.682 area 1037 sq.yards of Mazgaon Division, on which of the building “Sankalp Siddhi Tower” has been reconstructed. As per clause-11 of Development Agreement dated 12.02.2004, the flat buyers had to be admitted as the member in the said society, on payment of entrance fee. The complainant society is not a legally formed/recognised society and has no locus standi to file this complaint. Along with agreement for sale of the flat purchasers, they were provided Certificate dated 02.09.2003 of Mahesh Jani & Company, Advocates, Solicitors & Notary, Mumbai, under which they were informed that Sankalp Siddhi Tenants Co-operative Housing Society was absolute owner of the land C.S. No.682 area 1037 sq.yards of Mazgaon Division, through registered sale deed dated 12.11.2001 executed by its previous owners. The opposite party was developing and constructing “Sankalp Siddhi Tower” under Development Agreement dated 12.02.2004. These facts are also mentioned in the agreement for sale to all the flat buyers. Under Maharashtra Co-operative Societies Act, 1960 ownership of the land is vested in Sankalp Siddhi Tenants Co-operative Housing Society. After reconstruction of the building formation of new parallel society is not proper and the complaint filed by new society is not maintainable.
ORDER
In view of aforesaid discussions, the complaint is dismissed as not maintainable, giving liberty to the flat buyers to take membership of Sankalp Siddhi Tenants Co-operative Housing Society, who can claim required reliefs as claimed in the present complaint.
