At, Maharashtra State Consumer Disputes Redressal Commission Mumbai
By, THE HONOURABLE MR. JUSTICE A.P. BHANGALE
By, PRESIDENT & THE HONOURABLE MR. A.K. ZADE
For the Complainant: Sajira Jondhale i/b Mr. Uday B. Wavikar, Advocates. For the Opposite Parties: N.B. Desaia i/b D.M. Pandey, Poonam Makhijani, Advocates.
A.P. Bhangale, President
Mr. Sajira Jondhale, Advocate i/b. Mr. Uday B. Wavikar, Advocate present for complainant. Mr. N.B. Desai, Advocate i/b. Mr. D.M. Pandey, Advocate for present opponent Nos.1&2 with authority letter. Ms. Poonam Makhijani, Advocate present for opponent No.3-Society. Heard submissions of both parties at the Bar.
2. Complainant has preferred this complaint on the ground that opponent Nos.1&2 have indulged into deficiency in service and unfair trade practice on the pretext that while complainant had booked a flat bearing No.A-006 on ground floor, admeasuring 340 sq.ft. carpet area, in Shreerama Residency at Survey No.165, Hissa No.2, Village Titwala, Taluka-Kalyan, Dist. Thane for his residence in the year 2011-2012. Physical possession of the flat was handed over to the complainant by the developer/promoter/builder. However, developer/promoter/builder has failed to construct the building in accordance with the law and to obtain Occupancy Certificate though physical possession was handed over to the complainant. According to complainant there is Co-op. Housing Society which is impleaded as opponent No.3-Shreerama Residency Co-op. Hsg. Soc. Ltd. which is looking after management and administration of four wings i.e. A, B, C & D wings. However, Society also has grievances against developer/promoter/builder regarding non-completion of the building and not obtaining Occupancy Certificate and the litigation initiated by the Society is now pending before Hon'ble National Commission and the grievances are against the developer/promoter/builder.
3. In the present case, since complainant is already in physical occupation of the flat and is enjoying possession though unlawfully, the developer/promoter/builder in our view is under lawful obligation as contemplated under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 to construct the building in accordance with the law and to obtain Occupancy Certificate from the local authority concerned, so that if any unauthorised work is carried out, the same may be if capable of being regularised need to be regularised or if it is tolerable may be tolerated subject to prevalent rules and regulations of the Local Municipal Authority. It is necessary in such cases that the developer/promoter/builder need to take steps to form a Co-op. Housing Society and to convey the land and the building in favour of the said Society which can look after management and control of the administration of the buildings to ensure that buildings are kept in just and habitable condition. Since, the Society is already in litigation against the developer/promoter/builder, we direct the complainant to apply for regularisation, if any, in respect of flat in his occupation with co-operation of the developer/promoter/builder to the Local Authority, who can consider as to whether unauthorised work, if any, inside the flat occupied by the complainant is capable of being regularised or tolerable. If the unauthorised work if any is incapable of being tolerated or incapable of being regularised, necessary legal steps can be taken by the Local Planning Authority concerned against unauthorised work carried out in the buildings, so that proper arrangement is made to ensure that the lawful occupancy permission be issued which may be conditional or unconditional as the case may be at the discretion of the Local Authority.
4. Since complainant is in physical possession of the flat which he had agreed to purchase, he may continue to enjoy physical occupation subject to above observations and may apply for Membership of the Co-op. Housing Society which is impleaded as opponent No.3. In case such an application is made by and on behalf of the complainant, Co-op. Housing Society shall consider the same subject to payment of regular maintenance from the date of occupation. For non-obtaining occupancy permi
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ssion, we grant compensation payable by the opponent Nos.1&2-developer/promoter/builder in the sum of Rs.5,000/- and impose litigation costs in the sum of Rs.5,000/- payable by opponent Nos.1&2-developer/promoter/builder to the complainant. No order as to costs as against opponent No.3-Co-op. Housing Society. Complaint is partly allowed accordingly. Copies of the order be furnished to the parties. Complaint partly allowed.