At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. PREM NARAIN
By, PRESIDING MEMBER
For the Appellant: Nikita Pandey, Advocate. For the Respondents: ---------
This appeal has been filed by the appellant Shri Manoranjan Singh Kanak against the order dated 23.12.2016 of the State Consumer Disputes Redressal Commission, Rajasthan, (in short ‘the State Commission’) passed in complaint No.129/2016, wherein the consumer complaint filed by the appellant has been dismissed mainly on the ground of limitation.
2. Heard the learned counsel for the appellant at the admission stage. Learned counsel for the appellant stated that the State Commission has dismissed the complaint filed by the complainant on the ground of lim
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itation. Learned counsel stated that the agreement was signed on 28.3.2013 and registry of the said flat was effected on 04.6.2013 and the possession was also taken. The complaint has been filed in the year 2016. The State Commission has observed that the complaint has been filed beyond the period of limitation of two years and therefore, the complaint was not maintainable.
3. Learned counsel for the appellant stated that the State Commission has erroneously dismissed the complaint of the appellant at the very outset on the basis of lack of cause of action and on the ground of limitation.
4. Learned counsel for the appellant submitted that the relevant documents such as possession letter, map of apartment, building layout, Occupancy Certificate, Completion Certificate etc. have not been provided to the complainant. Learned counsel stated that the State Commission also failed to appreciate that the appellant had also averred in para 5 of the complaint that the construction of the building was illegal and in violation of the existing building bye-laws and other laws and in fact, the respondent No.2 had issued various notices to respondent No.1 for precluding it from constructing the said building as showcased in terms of the various documents which came to the appellant’s knowledge upon enquiry. Such illegalities not only effected the rights of the appellant to have a comfortable residence in the apartment but also could result in the demolition of the building itself if it was illegally constructed. Therefore, the State Commission completely failed to appreciate the patent illegality showcased by the appellant which would be continuing in nature.
5. Learned counsel further stated that the State Commission erroneously held that the complaint was time barred. It was submitted that the appellant sufficiently showcased various deficiencies which relate to the year 2016. Furthermore, certain deficiencies, like illegal construction without adhering to the extant laws, non-grant of occupancy certificate, building plans and other certificates etc. tantamount to a continuing cause of action as is the settled position of law. Therefore, the complaint could not have been held to be barred by limitation. In fact, the complaint was held to be barred by limitation since the Hon’ble Commission incorrectly considered that all defects had arisen at the time of taking possession itself.
6. The learned counsel further argued that all these points were raised in the complaint. They have not been considered by the State Commission. It was argued that if the complainant/appellant has not been provided with the completion certificate and the map etc. of the building as well as flat, this is a continuing cause of action as held by this Commission in Mopar Builders and Developers Pvt. Ltd. thro’ Mr. Abdul Kadir Parkar, Director Vs. Unity Co-op Housing Society Ltd. thro’ Chairman and Secretary Shelu Railway Station (E), I (2011) CPJ 71 (NC) wherein the following has been held:-
'6. The RP/OP has also raised the plea that the complaint is time barred, on the ground that the possession had been handed over to the purchasers during 1993-95 period, while the complaint to the District Forum was made in 2007. This argument cannot be accepted as the completion certificates and occupancy certificates, as observed by the State Commission, have not been made available to the purchasers/occupants. In fact, the RP/OP himself states in his petition to this Commission that 'conveyance of the said plot cannot be given at this time as the project approved on the said plot is not yet completed and work of the remaining buildings are under progress It is therefore a clear case of continuing cause of action.'
7. I have examined the material on record and have considered the arguments of the learned counsel for the appellant. I agree with the observations of the learned State Commission that any deficiency in respect of construction etc. has to be raised within two years of taking over the possession. However, in the present case, even if the deficiency in construction as alleged is not considered, it is seen that the completion and occupancy certificates have not been provided to the complainant. If the occupancy certificate has not been obtained by the opposite parties then the cause of action continues in the light of the decision of this Commission in Mopar Builders and Developers Pvt. Ltd. thro’ Mr. Abdul Kadir Parkar, Director Vs. Unity Co-op Housing Society Ltd. thro’ Chairman and Secretary Shelu Railway Station (E) (supra) and occupancy certificate has not been obtained and provided to the complainant then his/her right to make complaint in respect of illegal construction also survives and continues.
8. Based on the above discussion, the First Appeal no.691 of 2017 is allowed and the order dated 23.12.2016 of the State Commission is set aside. The State Commission is directed to restore the complaint at its original number and decide the issues in the light of the observations made by this Commission in the body of this judgement/order. Appellant/complainant to appear before the State Commission on 29.11.2018.