MCGM and Municipal Commissioner, Mira Road have by filing affidavits in High Court matters confirmed facts that majority of the buildings of Ravi Group constructed found “unauthorised” or the builder has not completed majority of requisite mandatory compliances due to which authorities withheld Occupation Certificates of majority of his existing buildings in Mira Road & Mumbai.

Our laws believe in “Buyers Beware”. Laws put responsibility on buyers to prove their bonafide first i.e. to verify all requisite approvals, title, compliance of conditions, legality of work etc.

In such circumstances, how to protect yourself and your hard earned money? The answer is to know his modus operandi and take appropriate safeguards of prevention before your name is added in hundreds of victims of this builder. The modus operandi is as under:

1. Do not rely upon projects approvals given by the Banks. The reason is that even banks depend upon reports of Valuer, Architect, Advocate etc. Generally, the advocates are hired from approved panel. What is important to note that generally Advocates who do not get reasonable work do such work as part time. They hardly verify above stated things which require full attention and dedication. Even otherwise, if Bank has availed services of good professionals, they get satisfied and approve the project, if requisite CC and approved plans are received. This builder takes advantage of this BIGGEST loophole. These so called “professionals” of any bank, NEVER bother to verify that whether the builder has complied with the conditions stipulated in these approvals. Otherwise, the Banks would have never approved any project of this builder. These so called professionals never bothered to verify the track record of any builder in respect of his past projects in regard to compliances as stated herein. They do not verify that whether any notices are issued in the subject project by any authority. They do not verify whether there were/are any breaches. We have carried out huge correspondence in this regard with RBI officers, National Housing Bank, Leading Banks etc. But it appears that they thrown it in dustbin. So you do it by own! Ultimately, it is your money which will be at stake! Banks put a condition in the loan agreement that if there is any irregularity or breach by builder, the Bank will not be responsible but the customer will responsible!

2. This builder publishes huge advertisements and offers very competitive rates to lure innocent purchasers. People out of greed, get attracted by these advertisements and purchase flats.
 So do not get attracted blindly by advertisements howsoever it is big and published in any news paper. Do not rely on articles published in News Papers as the builders who gave huge advertisements, are allowed to print their own articles in name of any staff member of News Papers for which they charge separately some times. However, preserve all such advertisements & articles, brochures etc.

3. As per rule, Registration Authorities cannot register flat sale documents if the developer has not annexed the copy of Commencement Certificate (CC) or Bandhkam Parvana (CC) for the floor on which the flat is situated. Eg. However, the Ravi Group by giving huge bribes get registered the flat sale documents without requisite CC. Due to our complaints, Mumbai Authorities almost stopped this practice. Mira Road & Bhayender Authorities still continued this practice (we have proofs). However, recently Mira Road officers increased their demand so this builder now registering flat sale documents of Mira Road flats from Thane! (we have proofs)
 Therefore, personally verify the CC eg. If the flat no. 1401 on 14th floor, the CC should indicate clearly that permission is issued upto 14th floor or higher floors.
 You have right to demand inspection of IOD, CC, approved floor plan, NA order, layout approved plan, title documents etc. before payment of Token Money. So insist for these documents. Builder will definitely give inspection.

4. But this builder is more smart then you. He many times attaches CC of the other buildings as if that CC is of same building of which flat is registered or sold. The builder keeps the name of building and wings different in sale plans, brochure and flat agreements whereas he puts numbers in plans submitted for approvals! How any person can find out this fraud?
 First find out, the survey no. of the land where the proposed building will be constructed. Compare it in agreement and approved plans.
 You should ask for sale brochure and mark the exact building in which you intend to purchase flat. Then compare it with the approved layout plans & CC. Find out exact location of the building (not in area but on the land) in both these plans and you will come to know what number is given in approved plans. You now verify the latest CC of the project where it will be clearly stated that upto which floors the permissions for that particular building is given.
 Even the flat nos. given in sale plan/sale brochure/agreement is different then the flat nos. given in the approved plans. So verify every thing.
 Plans must be latest and not the old one. The only solution to verify the correctness is to spent Rs.10/- and apply for inspection and copy of all relevant plans, CC from Municipal Authority itself and obtain the certified copy. The real truth will come out. You also verify that the entire records does not that any type of notice is issued to the builder for any breach, irregularity, non-compliance etc. Keep in mind, the Municipal records will for entire project and not one building. So it is necessary that entire project records are verified as breach in one building of the project affects all buildings in the projects. This is important as recently, known architect has alleged that this builder has fabricated plans and put signature of the architect without his knowledge!
 One most important point is that plans shown in sale brochure/agreement and the actual approved plan of the flat are not comparable though identical. There are differences as concerned to overall drawing, location, size and numbers of internal rooms, measurement etc., balcony etc.

5. Still there are many hitches, so continue. What is the meaning if CC for your floor is received but upper floors above your flat is not issued?
 Ultimately, your building become “unauthorised” as it affects entire building when question of OC is arise. So, you need to verify and assure that the entire floors proposed by the builder is sale pamphlet are also shown in approved plan & CC eg. If the building is proposed for 21 storied and the builder has received CC for St+7 upper floors, then what is the meaning.
 Ultimately, you can use the flat only when entire building is got completed and not just not your floor.
 Do not believe in promises or representation of builder that he will purchase TDR or have already arranged TDR or further approvals are in process. As per track record, the builder completes construction whether approvals are received or not. In such circumstances, only best solution is that you do not purchase the flat or hold decision till you found that CC of entire floors of the building are received.

6. Now come the title related verification. Ask inspection of all title documents referred in recital of the flat agreement, title certificate annexed to it. Since documents were not registered, the MCGM has rejected the proposal of the developer to handover the Roads though FSI credit is once given of Road land to developer by other department. Ultimately, the MCGM issued notice to developer that if these compliances is not made, all existing buildings will be declared as unauthorised!!! Thus, even if developer succeed to avoid compliance requiring registered documents at the time of sanction of project, he was ultimately again required to comply with it at other stage. The difference is that meantime, he sold out entire flats, constructed buildings, handed over possession. Now, he is not bothered if MCGM is declaring the buildings as “unauthorised”. This is fact. Further, the building will never get Conveyance. You will find a clause in end of every flat agreement of this developer stating that flat purchasers are liable to pay deficit stamp duty at the time of conveyance!!! As per law, unregistered documents cannot be allowed as evidence in case of litigation.
 First primary thing is to be verified is that whether all these documents are properly stamped and registered.
 See the Revenue records like property register card and 7/12 of the property. You will find that name of different persons appear and not of the developer. Therefore, ask for all the documents showing a chain/link that how the property was transferred by these persons to others and ultimately to the developer.
 It is necessary to check the internal conditions of each such documents putting any restriction on rights.
 It is necessary to check whether the developer got valid possession and entire consideration referred in all documents in chain are fully paid.

7. While negotiations, you will find that the representatives of developer will give many promises or representations. Ask whether the developer is ready to give these promises in writing?

8. Please read entire terms and conditions of the draft flat sale agreement before giving the token and verify the relevant things accordingly.

9. Most importantly verify the track record. If the developer has not complied with his promises and mandatory compliances in his past projects where he received entire consideration, how can you expect that he will in your project???

Ravi Group is expert in getting rejecting genuine consumer complaints. See 14 Consumer orders. The reason was the advocate of Complainants poorly represented the case and it dismissed on technical fault! See the 14 Consumer Court orders. Appeal pending. The Complainants have genuine complaints and facing hardships before 1995!!! Still their fight is on!!! Is it wise to add you name in victims of Ravi Group???

Lesson: Better do not buy flats from this builder !!!

BEFORE CONSUMER DISPUTE REDRESSAL FORUM

MUMBAI SUBURBAN DISTRICT

Admn.Bldg., 3rd Flr, Nr.Chetana College, Bandra (E), Mumbai 400 051.

Complaint No.DF/MSD/410/02

Date of Filing-23/12/2002

Date of Order-11/2/2009

Mrs.Nirupama R. Shah

Flat No.B 401

Gaurav Geet, A/B Wing

Gaurav Garden, Bunder Pakhadi Road

Kandivali (W), Mumbai 400 067. Complainant

v/s.

1.Ravi Real Estate Developer’s Pvt. Ltd.

Builder & Developers

Laxmi Palace, 76 Mathuradas Road

Kandivali (W), Mumbai 400 067.

2.Brihanmumbai Municipal Corporation

Thru: Executive Engineer

Building Proposals (Western Suburbs)

H & K West Wards

Patkar Marg, Bandra (W)

Mumbai 400 050. Opponents


Present- Shri.R.D.Gate, President

Smt.Deepa S.Bidnurkar, Member

Shri.V.G.Joshi, Member


Shri.Deshpande, Advocate for the Complainant

Shri.Imtiaz Raibakker, Advocate for Opponent No.1.

Opponent No.2 absent.


Judgment Per Shri.V.G.Joshi, Hon’ble Member-


The complainant’s contention in brief-

The complainant influenced by attractive advertisements and brochures issued by the opponent no.1. The complainant paid amount of Rs.12, 25, 000/- towards the cost of flat 401, B wing, 11th floor and amenities as well as other charges such as society charges, 10 years layout maintenance and other charges


2

towards parking, maintenance, betterment, legal and electric meter deposit to the Ravi Real Estate Developers Pvt. Ltd., Opponent No.1.

The complainant placed the grievances against the opponent no.1 which are enumerated below-

1. Although it was assured while entering an agreement, the occupation certificate has not been obtained for the building in which the complainant’s flat is located till the date of filing of this complaint.

2. As per section 10 of the MOFA the opponent no.1 is required to form the co-operative society within four months from the date on which minimum number of persons required to form the co-operative society, who have booked the flat. The opponent no.1 failed and neglected to form the co-operative society and as such the complainant and other members had to take initiative to form the society since the opponent no.1 failed and neglected to form the society, is liable to refund the amount collected from the complainant with 18% interest p.a. thereon from the date of payment till realization.

3. The opponent no.1 also failed/neglected to give conveyance of the property of the society despite repeated reminders. The opponent no.1 is liable under section 11 of the MOFA to give conveyance in favour of the society within four months of its formation.

The complainant alleged that the opponent no.1 did not provide the other amenities as promised and advertised such as club house, swimming pool, two lifts, adequate parking facility.

The complainant further states that the opponent no.1 has not mentioned about the charges payable by the flat purchaser towards the parking facility in the agreement. However, in reality the opponent no.1 collected garage charges from the flat purchaser. The flat owners were not allowed to enter the building complex in

3

their vehicle if they had not purchased the parking space either in stilts or open parking space. At the time of giving the possession the opponent no.1 has collected Rs.26, 250/- form the complainant towards 10 years layout maintenance charges. Here too, the agreement is silent about such payment by the flat purchaser. According to section 4 (iA) (iv) of the MOFA, the opponent no.1 is legally bound to mentioned in the agreement the price of the flat including the proportionate price of the common areas and facilities which should be shown separately. The opponent no.1 cannot collect a single rupee from any flat purchaser in connection with the flat unless the same is mentioned in the agreement. This amounts to unfair and deceptive trade practice. Moreover, the opponent no.1 has collected betterment and layout charges @ Rs.15% sq.ft., property tax, water charges, but did not pay to the respective authorities. Later on BMC slapped auction notice for collection of these dues and water is being provided on the humanitarian ground with twice the normal charges.

The complainant admits that Gaurav Geet CHS filed a Civil Suit no.3190/2003 in the High Court. However, according to him this complaint is sustainable for a variety of reasons mentioned herebelow.

a) The complaint filed by him before Hon’ble Forum precedes the Civil suit filed by the society in the High Court.

b) The reliefs claimed by him in the complaint are not identical to those claimed in the said civil suit.

c) The remedy provided under the Consumer Protection Act, as expressly provided under section 3 the parliament was well aware of the remedy available under section 9 of Code of Civil Procedure.

Thus parliament intends to provide the additional remedy to the consumer. It is also a settled position that the provisions under the


4

Consumer Protection Act supplement and not supplant the jurisdiction of Civil Court.

Finally the complainant prayed for the following reliefs-

The Opponent be directed –

1. To obtain the occupation certificate form BMC within 2 months failing which fine of Rs.100/- be made payable to the complainant per month till obtaining said occupation certificate.

2. To refund amount of Rs.3260/-collected on account of society formation share money and entrance fees alongwith 18% interest p.a. from the date of collection till realization.

3. To give conveyance in favour of the society within 3 months from the date of order.

4. To provide swimming pool within two months from the date of order and also to pay compensation of Rs.10, 000/- for deprivation of the facility.

5. To install two more lifts within two months and also to pay compensation of Rs.15, 000/- for hardship.

6. To refund layout maintenance charges of Rs.26, 250/- with 18% interest p.a. from the date of collection till realization.

7. To give account of betterment charges collected.

8. To refund property tax of Rs.21, 000/- paid by the society to BMC with 18% interest p.a.

9. To obtain normal and full water supply from BMC within 2 months from the date of order.

10. To pay compensation of Rs.500/- per sq.ft for not providing amenities/facilities shown in the sale brochure and in the agreement.


5

11. To pay compensation of Rs.50, 000/- for all the hardship and losses suffered by the complainant.

12. To refund Club House Deposit of Rs.25, 000/- collected from the complainant alongwith 18% interest p.a. for not providing the Club House.

13. To refund garage charges of Rs.31, 000/- with 18% p.a. interest from the date of collection till realization.

In reply of opponent no.1-

The opponent no.1 contended that the complaint filed is not maintainable, bad in law and as such deserves to be dismissed. The complainant has made several false and misleading statements and has also suppressed several vital and relevant facts from the Hon’ble Forum.

At the further outset, opponent no.1 submits that the complainant alongwith other flat purchasers being the members of Gaurav Geet C.H.S.L. have already filed civil suit being suit no.3190 of 2003 filed in the High Court of judicature at Bombay on the same subject matter and on the ground of complaining of the same grievances. The present complaint therefore is not maintainable and deserves to be dismissed on this ground also.

With reference to grievances in respect of occupation certificate opponent no.1 says that the complainant and other flat purchasers and their society themselves are responsible for delay in obtaining occupation certificate. Besides since November 2002 a public interest litigation being writ petition no.379 of 2003 regarding 154 buildings in the city of Mumbai has been filed in the Hon’ble High Court by some third persons and Hon’ble High Court has stayed the regularization of any further building.


6

As regards the refund in respect of the amount collected towards formation of co-operative society opponent no.1 is willing to refund the amount collected from the complainant without any interest thereon.

In respect of conveyance of the property in favour of society, the opponent no.1 states that as the complainants’ building is a part of a big layout which is still under construction development, and the layout comprises several properties amalgamation together. The conveyance of the one portion or the building cannot be executed under prevalent law. Accordingly the opponent is not liable to convey the property at this juncture in as much as the conveyance will be required to be executed by opponent no.1 in favour of the Apex society of all the societies. There are about 13 buildings in the entire layout already constructed and further 3 to 4 buildings with more wings are likely to be constructed in view of the available FSI/TDR and as per entitlement of opponent no.1, and as per agreement opponent no.1 is required to execute the conveyance after having consumed total FSI as also floating FSI on the said property. Opponent no.1 further says that the layout being a very big layout, it was expected to be constructed over a period of 10 years and more, and therefore there was no malafide intention in collecting the amount towards maintenance charges for ten years.

Opponent no.1 finally concluded with the statement that the allegations made by the complainant are baseless, false, premature and malafide. The complainant has miserably failed to make out any case for grant of any relief or for refund of any amount or compensation from the Hon’ble Court hence deserves to be dismissed with compensatory cost.

The opponent no.2 has not filed its say and even complainant did not press for the same.


7

Read complaint, written reply of the opponent no.1 and written argument of both parties. Perused the exhibits and other documents produced in support of the complaint.

The following points arise for my consideration.-

Points Findings

1.Is the complainant consumer? Yes

2.Is the complaint barred by law of limitation No

3.Is the complaint tenable? No

4.What order? As per final order.

Reasons-

Points No.1 to 3 together-

As regards the points mentioned herein my findings are as follows-

The complaint is not barred by law of limitation as the cause of action is continuous since statutory.

The Gaurav Geet CHSL has filed a Civil Suit bearing no.3190 of 2003 in the Bombay High Court wherein the same reliefs were claimed by the society and the complainant is also a member of the same society. No doubt the registered housing society is having separate legal entity and represents all its members to voice their grievances. But the grievances against the developer/promoter raised either by the members individually or society as a whole cannot be different.

Although it is true that the provisions under the Consumer Protection Act supplements and not supplant the jurisdiction of the Civil Court and the provisions of this Act shall be in addition and not in derogation of any other law, it is an option given to an individual to chose either Consumer Forum or Civil Court but not both at a time even though the remedies available at both the Court are more or less similar. The provisions of Code of Civil Procedure order II Rule II are also quite clear about it. In this context section 3 – syp.6(b) on page 561 of Commentary of the Law of Consumer Protection in India, Fifth edition is very specific and reads as

8

follows- “Matter pending in Civil Court between the same parties for the same cause of action – If the matter is pending before the Civil Court between the same parties for the same cause of action, the District Forum will not entertain the complaint, because under section 3 of Consumer Protection Act, the consumer agencies are in addition to and not in derogation of the provisions of any other law and that complaint before Redressal Forum is an additional remedy.”

Hence, complainant is not liable to approach Consumer Forum and Civil Court simultaneously for similar reliefs. There is no provision either in the C.P.C. or Consumer Protection Act, 1986 to grant reliefs in part basis. On the contrary the reliefs which are not prayed for are treated as relinquished and no further claim can be entertained once the case is finally decided. Taking into consideration above findings, this complaint is not maintainable, therefore liable to be dismissed. Hence, the following order is passed.

ORDER

1.The complaint is not tenable hence is dismissed.

2.No order in respect of Opponent no.2.

3.No order as to cost.

4.Copy of order be supplied to both the parties free of cost.


Mumbai

/2/2009

(V.G.Joshi)

Member

We agree,


(Smt.Deepa S.Bidnurkar) (R.D.Gate)

Member President


rsc


BEFORE CONSUMER DISPUTE REDRESSAL FORUM

MUMBAI SUBURBAN DISTRICT

Admn.Bldg., 3rd Flr, Nr.Chetana College, Bandra (E), Mumbai 400 051.

Complaint No.DF/MSD/410/02

Date of Filing-23/12/2002

Date of Order-11/2/2009

Mrs.Nirupama R. Shah

Flat No.B 401

Gaurav Geet, A/B Wing

Gaurav Garden, Bunder Pakhadi Road

Kandivali (W), Mumbai 400 067. Complainant

v/s.

1.Ravi Real Estate Developer’s Pvt. Ltd.

Builder & Developers

Laxmi Palace, 76 Mathuradas Road

Kandivali (W), Mumbai 400 067.

2.Brihanmumbai Municipal Corporation

Thru: Executive Engineer

Building Proposals (Western Suburbs)

H & K West Wards

Patkar Marg, Bandra (W)

Mumbai 400 050. Opponents


Present- Shri.R.D.Gate, President

Smt.Deepa S.Bidnurkar, Member

Shri.V.G.Joshi, Member


Shri.Deshpande, Advocate for the Complainant

Shri.Imtiaz Raibakker, Advocate for Opponent No.1.

Opponent No.2 absent.


Judgment Per Shri.V.G.Joshi, Hon’ble Member-


The complainant’s contention in brief-

The complainant influenced by attractive advertisements and brochures issued by the opponent no.1. The complainant paid amount of Rs.12, 25, 000/- towards the cost of flat 401, B wing, 11th floor and amenities as well as other charges such as society charges, 10 years layout maintenance and other charges


2

towards parking, maintenance, betterment, legal and electric meter deposit to the Ravi Real Estate Developers Pvt. Ltd., Opponent No.1.

The complainant placed the grievances against the opponent no.1 which are enumerated below-

4. Although it was assured while entering an agreement, the occupation certificate has not been obtained for the building in which the complainant’s flat is located till the date of filing of this complaint.

5. As per section 10 of the MOFA the opponent no.1 is required to form the co-operative society within four months from the date on which minimum number of persons required to form the co-operative society, who have booked the flat. The opponent no.1 failed and neglected to form the co-operative society and as such the complainant and other members had to take initiative to form the society since the opponent no.1 failed and neglected to form the society, is liable to refund the amount collected from the complainant with 18% interest p.a. thereon from the date of payment till realization.

6. The opponent no.1 also failed/neglected to give conveyance of the property of the society despite repeated reminders. The opponent no.1 is liable under section 11 of the MOFA to give conveyance in favour of the society within four months of its formation.

The complainant alleged that the opponent no.1 did not provide the other amenities as promised and advertised such as club house, swimming pool, two lifts, adequate parking facility.

The complainant further states that the opponent no.1 has not mentioned about the charges payable by the flat purchaser towards the parking facility in the agreement. However, in reality the opponent no.1 collected garage charges from the flat purchaser. The flat owners were not allowed to enter the building complex in

3

their vehicle if they had not purchased the parking space either in stilts or open parking space. At the time of giving the possession the opponent no.1 has collected Rs.26, 250/- form the complainant towards 10 years layout maintenance charges. Here too, the agreement is silent about such payment by the flat purchaser. According to section 4 (iA) (iv) of the MOFA, the opponent no.1 is legally bound to mentioned in the agreement the price of the flat including the proportionate price of the common areas and facilities which should be shown separately. The opponent no.1 cannot collect a single rupee from any flat purchaser in connection with the flat unless the same is mentioned in the agreement. This amounts to unfair and deceptive trade practice. Moreover, the opponent no.1 has collected betterment and layout charges @ Rs.15% sq.ft., property tax, water charges, but did not pay to the respective authorities. Later on BMC slapped auction notice for collection of these dues and water is being provided on the humanitarian ground with twice the normal charges.

The complainant admits that Gaurav Geet CHS filed a Civil Suit no.3190/2003 in the High Court. However, according to him this complaint is sustainable for a variety of reasons mentioned herebelow.

d) The complaint filed by him before Hon’ble Forum precedes the Civil suit filed by the society in the High Court.

e) The reliefs claimed by him in the complaint are not identical to those claimed in the said civil suit.

f) The remedy provided under the Consumer Protection Act, as expressly provided under section 3 the parliament was well aware of the remedy available under section 9 of Code of Civil Procedure.

Thus parliament intends to provide the additional remedy to the consumer. It is also a settled position that the provisions under the


4

Consumer Protection Act supplement and not supplant the jurisdiction of Civil Court.

Finally the complainant prayed for the following reliefs-

The Opponent be directed –

14. To obtain the occupation certificate form BMC within 2 months failing which fine of Rs.100/- be made payable to the complainant per month till obtaining said occupation certificate.

15. To refund amount of Rs.3260/-collected on account of society formation share money and entrance fees alongwith 18% interest p.a. from the date of collection till realization.

16. To give conveyance in favour of the society within 3 months from the date of order.

17. To provide swimming pool within two months from the date of order and also to pay compensation of Rs.10, 000/- for deprivation of the facility.

18. To install two more lifts within two months and also to pay compensation of Rs.15, 000/- for hardship.

19. To refund layout maintenance charges of Rs.26, 250/- with 18% interest p.a. from the date of collection till realization.

20. To give account of betterment charges collected.

21. To refund property tax of Rs.21, 000/- paid by the society to BMC with 18% interest p.a.

22. To obtain normal and full water supply from BMC within 2 months from the date of order.

23. To pay compensation of Rs.500/- per sq.ft for not providing amenities/facilities shown in the sale brochure and in the agreement.


5

24. To pay compensation of Rs.50, 000/- for all the hardship and losses suffered by the complainant.

25. To refund Club House Deposit of Rs.25, 000/- collected from the complainant alongwith 18% interest p.a. for not providing the Club House.

26. To refund garage charges of Rs.31, 000/- with 18% p.a. interest from the date of collection till realization.

In reply of opponent no.1-

The opponent no.1 contended that the complaint filed is not maintainable, bad in law and as such deserves to be dismissed. The complainant has made several false and misleading statements and has also suppressed several vital and relevant facts from the Hon’ble Forum.

At the further outset, opponent no.1 submits that the complainant alongwith other flat purchasers being the members of Gaurav Geet C.H.S.L. have already filed civil suit being suit no.3190 of 2003 filed in the High Court of judicature at Bombay on the same subject matter and on the ground of complaining of the same grievances. The present complaint therefore is not maintainable and deserves to be dismissed on this ground also.

With reference to grievances in respect of occupation certificate opponent no.1 says that the complainant and other flat purchasers and their society themselves are responsible for delay in obtaining occupation certificate. Besides since November 2002 a public interest litigation being writ petition no.379 of 2003 regarding 154 buildings in the city of Mumbai has been filed in the Hon’ble High Court by some third persons and Hon’ble High Court has stayed the regularization of any further building.


6

As regards the refund in respect of the amount collected towards formation of co-operative society opponent no.1 is willing to refund the amount collected from the complainant without any interest thereon.

In respect of conveyance of the property in favour of society, the opponent no.1 states that as the complainants’ building is a part of a big layout which is still under construction development, and the layout comprises several properties amalgamation together. The conveyance of the one portion or the building cannot be executed under prevalent law. Accordingly the opponent is not liable to convey the property at this juncture in as much as the conveyance will be required to be executed by opponent no.1 in favour of the Apex society of all the societies. There are about 13 buildings in the entire layout already constructed and further 3 to 4 buildings with more wings are likely to be constructed in view of the available FSI/TDR and as per entitlement of opponent no.1, and as per agreement opponent no.1 is required to execute the conveyance after having consumed total FSI as also floating FSI on the said property. Opponent no.1 further says that the layout being a very big layout, it was expected to be constructed over a period of 10 years and more, and therefore there was no malafide intention in collecting the amount towards maintenance charges for ten years.

Opponent no.1 finally concluded with the statement that the allegations made by the complainant are baseless, false, premature and malafide. The complainant has miserably failed to make out any case for grant of any relief or for refund of any amount or compensation from the Hon’ble Court hence deserves to be dismissed with compensatory cost.

The opponent no.2 has not filed its say and even complainant did not press for the same.


7

Read complaint, written reply of the opponent no.1 and written argument of both parties. Perused the exhibits and other documents produced in support of the complaint.

The following points arise for my consideration.-

Points Findings

1.Is the complainant consumer? Yes

2.Is the complaint barred by law of limitation No

3.Is the complaint tenable? No

4.What order? As per final order.

Reasons-

Points No.1 to 3 together-

As regards the points mentioned herein my findings are as follows-

The complaint is not barred by law of limitation as the cause of action is continuous since statutory.

The Gaurav Geet CHSL has filed a Civil Suit bearing no.3190 of 2003 in the Bombay High Court wherein the same reliefs were claimed by the society and the complainant is also a member of the same society. No doubt the registered housing society is having separate legal entity and represents all its members to voice their grievances. But the grievances against the developer/promoter raised either by the members individually or society as a whole cannot be different.

Although it is true that the provisions under the Consumer Protection Act supplements and not supplant the jurisdiction of the Civil Court and the provisions of this Act shall be in addition and not in derogation of any other law, it is an option given to an individual to chose either Consumer Forum or Civil Court but not both at a time even though the remedies available at both the Court are more or less similar. The provisions of Code of Civil Procedure order II Rule II are also quite clear about it. In this context section 3 – syp.6(b) on page 561 of Commentary of the Law of Consumer Protection in India, Fifth edition is very specific and reads as

8

follows- “Matter pending in Civil Court between the same parties for the same cause of action – If the matter is pending before the Civil Court between the same parties for the same cause of action, the District Forum will not entertain the complaint, because under section 3 of Consumer Protection Act, the consumer agencies are in addition to and not in derogation of the provisions of any other law and that complaint before Redressal Forum is an additional remedy.”

Hence, complainant is not liable to approach Consumer Forum and Civil Court simultaneously for similar reliefs. There is no provision either in the C.P.C. or Consumer Protection Act, 1986 to grant reliefs in part basis. On the contrary the reliefs which are not prayed for are treated as relinquished and no further claim can be entertained once the case is finally decided. Taking into consideration above findings, this complaint is not maintainable, therefore liable to be dismissed. Hence, the following order is passed.

ORDER

1.The complaint is not tenable hence is dismissed.

2.No order in respect of Opponent no.2.

3.No order as to cost.

4.Copy of order be supplied to both the parties free of cost.


Mumbai

/2/2009

(V.G.Joshi)
Member

We agree,

(Smt.Deepa S.Bidnurkar) (R.D.Gate)

Member President

State Consumer Commissioned slapped fined of Rs.6.50 Lacs to Ravi Group
The State Commission has slapped heavy fine of Rs.6.50 Lacs to Ravi Group for false promises to flat purchasers at time of booking and not obtaining Occupancy Certificate of building. The project name is "Gaurav Empire" CTS No. 620 Village Malad. Address:Kannyapada, Ahead of Gokuldham, Filmcity Road, Goregaon (E).

However, what is regrettable is that the Complaint have to wait for Ten Long years for this justice! Better you do not purchase the flat from Ravi Group!!!
The entire State Commission order is as under:

CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA STATE, MUMBAI
Date of filing : 08/01/2000
CONSUMER COMPLAINT NO. 07 OF 2000 Date of order : 27/12/2010

1. Pradip Kumar Roy
2. Anirban Roy
Both r/at Flat No.502, “Gaurav Arpan”
Gokuldham, Goregaon (E),
Mumbai – 400 063. … Complainants

V/s.

1. M/s.Ravi Ashish Land Developers Ltd.
Regd. Office at Laxmi Palace,
76-Mathuradas Road, Kandivali (W),
Mumbai – 400 067.
2. The Directors of
M/s.Ravi Ashish Land Developers Ltd. …Opponents

Quorum : Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
Mrs.S.P. Lale, Hon’ble Member

Appearance : Ms.Ratnarani Roy, Advocate for the complainants.
Ms.Payal Agrawal, Advocate for the O.Ps.

-: ORDER :-

Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

This consumer complaint has been filed under Section 17 of Consumer Protection Act, 1986 by father and son. It is the case of the complainants against O.Ps. who are builders/developers that they are consumers of O.P.No.1 who is builder/developer of which O.P.No.2 as per list are Directors. According to the complainants, complainant No.1 was serving in Indian Oil Corporation in 1982 and throughout his tenure he was in Mumbai. Till his retirement in 1995 he was provided accommodation by the Company in best locality of the city. He did not have any place of residence of his own in Mumbai. He therefore wanted to book a flat through Estate Agency. In 1997 he learnt that O.P.No.1/M/s.Ravi Ashish Land Developers Ltd. were inviting applications for housing complex in Goregaon (East), Mumbai. Said housing complex is styled as “Gaurav Empire” and advertised as ‘Exclusive Home for Exclusives’. Brochure of the O.P.No.1 mentioned that the entire housing complex would be completed and possession of the flats would be delivered in June 1997. Complainant No.1 was assured that he would be getting real value of his money, if he purchase a flat in the said Gaurav Empire. On inquiring with O.P.No.1 he was satisfied that the flat in Gaurav Empire Housing Complex will be best suited flat for the person like him, who wanted house in Mumbai. So, they applied for purchase of flat in Gaurav Empire building. The saleable area of the flat was 825 sq.ft. and carpet area was 612 sq.ft. Consideration fixed was `16, 50, 000/-. Out of which `12, 37, 500/- was payable in cheque and balance amount of `4, 12, 500/- was payable in cash before issuance of allotment letter. By letter dated 05/03/1997 O.P.No.1 agreed to allot flat No.502 in “Gaurav Arpan” in the “Gaurav Empire Housing Complex” to the complainants. Complainant No.1 took housing loan to pay the consideration of this flat. He mortgaged said flat to the Lok Group Housing Finance Company. He is paying EMIs on the said loan amount. After issuance of allotment letter by O.P.No.1, complainants paid `4, 12, 500/- in cash. They also paid further payment as per particulars given in Para 11 of the complaint. These payments were made by the cheques. They claimed that the entire consideration of `16, 50, 000/- was paid by complainant No.1 to O.P.No.1 within five months from the date of issuance of allotment letter. According to the complainants, O.Ps./builder had assured that there would be seven storey building with three wings, Arpan, Darpan and Samarpan and three towers, namely, Deep, Darshan and Maharaja Retreat and 12 Row-houses in the Gaurav Empire Housing Complex and there would be amenities of road and sufficient street lights, flower decked landscaped garden, Club House & Community Hall, Paygrounds and kinder-garden, Jogging tracks, Gymnasium, Swimming Pool, Library and would be surrounded by compound wall and there would be security gate at main entrance of the lay out. With these assurances, complainants entered into an agreement of sale of the said flat with O.P.No.1 on 29/03/1998 (Exhibit-C of complaint). Representative of the O.P.No.1 had initially assured that Gaurav Empire Housing Complex will be completed and possession would be given very soon. According to the complainants, even before execution of agreement of sale, they were assured that flat would be ready by June 1997 and would be delivered to the flat purchasers. But, they went on changing the dates and even on the date of execution of agreement they were unable to give possession of the flat to them. Complainants found that at the site, progress of developing Gaurav Empire Housing Complex was not going on with full swing because the area was occupied by slum dwellers and the builder/developer had simply started construction of only one 7 storey building having two wings. There was no access to the Gaurav Arpan building by way of any approach road. The entry to the site as depicted in the plan did not exist. There was only one pathway leading to the building from the adjacent road. Complainants found that the flat booked by them in Gaurav Arpan was not complete and ready for possession. There was no regular water connection and water was supplied to the building by Tanker. Lift of the building was not in operation. According to the complainants on 17/01/1998 O.P.No.1 wrote to the complainants referring to their letter dated 26/10/1997 that said letter was threatening one and complainants were asked to take physical possession by completing payment within 7 days. Said letter is at Exhibit-J dated 17/01/1998. Complainants then undertook another inspection of said flat on 23/01/1998 and as expected there is no iota of change in the situation as in October 1997. They told O.P./builder that said flat and building were not habitable in any respect and once again asked the Director of O.P.No.1 to inspect the site and decide if they can ask him to take possession of the flat in the conditions in which it stood. There was no approach road and there was no BMC water connection even when the joint inspection was made at their request by the complainants themselves and representative of O.P./builder. Complainants enclosed copy of Joint Inspection report dated 02/02/1998. However, on the assurance given about completion of remaining work, complainants reposed faith in O.P.No.1 and accordingly entered into the agreement of sale with O.P.No.1 on 29/03/1998. Said agreement is at Exhibit-C. In the said agreement, it was conveyed by O.P.No.1 that possession would be handed over on 30/04/1998. Thereafter, complainants made final payment of `64, 500/- and after that payment, complainant No.1 agreed to take temporary possession for furnishing the flat. He also paid certain other charges as demanded by the O.P. vide Exhibit-M and receipts issued by O.P.No.1 evidencing receipt of payments with regard to electricity charges, etc. is at Exhibit-M1. Complainants pleaded that thus on 14/07/1998 total payment of flat was completed in every respect and on the same day, complainants wrote O.P.No.1 and asked them to issue final possession letter. However, O.P.No.1 failed to produce Occupation Certificate of BMC and consequently failed to hand over possession as promised and they merely issued a letter handing over temporary possession dated 17/07/1998. Even on that date water connection of BMC was not obtained nor there was any approach road. Construction of flat on site had come to standstill. According to the complainants, flat in their possession is certainly not habitable in any manner and was not certainly in a state for which they had bargained. O.P.No.1 has failed to give official legal possession to them even after 13 months of the originally promised date. Since previous landlord asked the complainants to move out of his licence premises in July 1998, complainants had not option, but to shift to the flat under the guise of temporary possession of flat in July 1998, on which date, according to the complainants flat was neither habitable nor it was as per the agreement. But, they were required to shift to the said flat since otherwise they would have to take resort of BMC roads. Complainants have pleaded in the complaint that following are the deficiencies in the said complex :–
a) Absence of approach road
b) Non-availability of regular water supply from BMC.
c) Absence of Occupation Certificate of BMC
d) Poor quality of construction and poor building maintenance.

Listing these grievances, complainants have prayed that they should be refunded the amount of `12, 37, 500/- the purchase price paid to the O.P.No.1 by the complainants on 29/03/1998. They also prayed `4, 12, 500/- be refunded to them which O.P.No.1 collected by way of additional cash component. They also prayed that `1, 32, 000/- be reimbursed towards stamp duty, registration charges and brokerage paid by the complainants. They also prayed for `55, 835/- being reimbursement of the Society maintenance charges paid by the complainants. Further, amount of `1, 58, 450/- being financial burden incurred by the complainants in terms of licensed flat rents and interest @ 18% p.a. on the entire amount of consideration paid by the complainants and suitable compensation.
O.P. filed affidavit in reply. In the affidavit, Constituted Attorney of O.P.No.1 mentioned that complaint as filed is not maintainable as the complaint filed by the complainants did not constitute any service and therefore, it should be dismissed with cost. He further stated in his affidavit in reply that complaint is pre-mature and in as much as, Housing Complex in which Gaurav Arpan is situated is a vast complex under construction as admitted by the complainants themselves and therefore, complaint of the complainants is false and imaginary and O.Ps. are in the process of completing the Housing Complex and providing all the amenities. They have admittedly not abandoned the project and therefore, the complaint is pre-mature and should be dismissed. O.Ps. in their affidavit stated that complainants had suppressed material fact from this Commission that they themselves had requested for temporary possession of the flat for furniture and as per their request, possession of the flat was handed over to them to carry out furniture work as per their letter under Exhibit-1. Complainants also suppressed the fact that O.Ps. agreed to complete the building Gaurav Arpan by 30/04/1998 as clearly mentioned in Para 10 of the agreement annexed at Exhibit-C to the complaint. Complainants are clearly molding the facts to suit their convenience. Complainants have filed this complaint just to pressurize them to refund the purchase price and other amounts and for this purpose the complaint has been filed. But, it is nothing but the abuse of process of law and should be dismissed. O.Ps. pleaded that they never promised the complainants that the entire Housing Complex would be completed by June 1997. As per allotment letter and agreement annexed to the complaint, rate charged to the complainants was not fixed at 2, 000/- per sq.ft. as alleged by the complainants. O.Ps. pleaded that date of possession was mutually extended by talking to complainants and in the agreement, it was specifically stated that expected date of possession was 30/04/1998. However, on 30/04/1998 no possession was given, but at the request of complainants as per Exhibit-1, O.Ps. handed over temporary possession of the flat to the complainants in July 1998 and consequently, complainants were not entitled in law for making any grievance in that regard. They pleaded that O.Ps. are in the process of completing the entire complex but construction has been delayed on account of various factors, namely, sudden and continuous slump in the Estate Market and dealing with about 900 slum dwellers with several litigations, order of injunctions, etc. O.Ps. pleaded that grievances of the complainants about the approach road is absolutely false. Approach road of Gaurav Arpan building is already completed and street lights have been installed and they are functional. O.Ps. pleaded that because of non-availability of water from BMC, it was pleaded that though regular supply is not given, MCGM is already supply water on humanitarian ground and therefore, grievance of non-availability of water made by the complainants is false. O.Ps. pleaded that Occupation Certificate has been held up by the BMC on account of default in payment of property taxes committed by the complainants and other flat purchaser for the building. Liability of the flat purchasers in the building is at present to the tune of `27 Lakhs and only upon payment of said tax amount together with current property tax, if any, MCGM would issue Occupation Certificate. Complainants are suppressing this relevant fact from this Commission. They are taking advantages of their own wrong. O.Ps. pleaded that when payment of entire property tax is made by complainants and other flat purchasers, then only they would procure Occupation Certificate from MCGM and consequently, MCGM would also grant bigger water connection for the said building. O.Ps. pleaded that poor building maintenance is because of flat purchasers not paying maintenance charges. There was no builder’s liability to maintain the building. It is flat purchasers’ liability who are occupying their own flats. In the circumstances, O.Ps. pleaded that grievance of the complainants regarding deficiencies in services are absolutely false and imaginary and even pre-mature since entire lay out is yet to be completed and after buildings are completed layout amenities would be provided by the O.Ps. Therefore, it pleaded that complaint should be dismissed with costs.
Parties filed their own affidavits in support of their respective pleadings.
We heard submissions of both the parties. Written arguments have been placed on record by Counsel for the complainants. We also perused the same. Following issues arise for our consideration and our findings thereon are as under :-
Issues Findings
1. Do the complainants prove that O.Ps. have Yes
not been procured Occupation Certificate
from MCGM?
2. Do the complainants prove that they have not Yes
given dream flat as promised by O.Ps?

3. Whether complainants are entitled to get Yes
Compensation on two counts – 1) non-
supply of municipal water and 2) non-
procurement of Occupation Certificate?
4. What order? As per final order.
REASONS

Issue No.1 :- It is not in dispute that complainants took possession of the flat in July 1998 in terms of agreement executed between the parties on 29/03/1998. It is not in dispute that the full consideration was paid by the complainants. However, it is the grievance of the complainants that O.Ps. have not procured Occupation Certificate. Now, it is common knowledge that Occupation Certificate is an essential pre-requisite for giving legal possession of the flat to the person booking flat. Unless Occupation Certificate is there, legally flat purchaser is not permitted to occupy the said flat. So, it is therefore sine-quo-non on the part of the builder/developer to procure completion certificate immediately after completion of the construction of the building. In this case, building was completed somewhere in June-July 1998. Possession was given in on 31/07/1998 and though the complainants are occupying said flat their occupation is illegal because builder has not procured Occupation Certificate from the BMC. This is per se a deficiency in service. Builder’s case is that property tax of the said building has not been paid by the occupants of the flats, but he did not adduce any evidence in that behalf. What is important to note is the fact that it is statutory as well as contractual obligation on the part of the builder to procure Occupation Certificate. Then only, the flat purchasers can be put in possession of their respective flats. So, there is contractual as well as statutory deficiency in service on the part of builder/M/s.Ravi Ashish Land Developers Ltd. in not procuring Occupation Certificate till this date since more than 10 years has lapsed from filing of the complaint. We therefore record our finding on issue No.1 in the affirmative.

Issue No.2 :- It is the grievance of the complainants that they had booked flat in Gaurav Empire Housing Complex being developed by O.P.No.1. Complex necessarily means a group of buildings with facility of Swimming Pool, Gardens, Gymnasium, Club House, School, etc. and it is the complainants’ grievance that no such amenities have been provided by the builder though 13 years have elapsed since they took possession of the flat on 31/07/1998. Builder’s case is that it is the Housing Complex of very large scale and about 900 hutments are required to be removed and therefore, he constructed only two buildings. Gaurav Arpan is one in which complainants had occupied the flat. He has not denied his liability to raise Housing Complex styled as ‘Gaurav Empire Housing Complex’ as Exclusive Home for Exclusives. But, fact remains even after 13 years he could hardly construct two buildings and there is only one road leading to these buildings from the nearby municipal road which is having streetlight. Nothing else is developed. Therefore, grievance of the complainants that ‘a dream house in dream project’ which was catch word of O.Ps./builder is nowhere seen and they are leaving in a very sorry state of affairs. Housing Complex is not fully developed by the builder. Complainants mentioned that they are ashamed of their house given by the O.P. and their dream of a good house as per their advertisement published in the brochure has been shattered. In any view of the matter, we are finding that the state of affairs of the present building of the complainants which is seen from the photographs and which is admittedly surrounded by the hutments and slum dwellers, cannot be said to be a dream house which was advertised by the builder and therefore, there is deficiency in service on the part of builder in not building Housing Complex styled as ‘Gaurav Empire – Exclusive Home for the Exclusives’ as per their advertisement and brochure. We therefore record our finding on issue No.2 in the affirmative.

Issue No.3 :- It is no doubt true that Occupation Certificate is not procured by the builder and once Occupation Certificate is not there, the Municipal Corporation of Greater Mumbai is not releasing legal water connection to such Society or to such building. When Occupation Certificate is not there, we have to presume that (leaving apart the affidavit of complainants) the building is not having legal water connection. No doubt, O.P./builder in his affidavit in reply stated that on humanitarian ground, Municipal Corporation was supplying water. But, such water supply can be withdrawn at any point of time because it was not legally given water connection. Moreover, when water is being supplied on humanitarian ground, full supply of water per person of the family member is not released by the Municipal Corporation. So, the flat purchaser in such a situation gets reduced water supply than otherwise entitled to if they would have had legal water connection taken from the Municipal Corporation. So, on this count, complainants are entitled to get compensation for the deficiency in service on the part of O.P./builder.
Complainants have also claimed in their revised prayers that O.P. be directed to take back the flat from the complainants and complainants should be given compensation as per market value obtainable for such flat in that locality or builder should be directed to give any other flat of same carpet area in the same locality at his expenses or alternatively, complainants have claimed `70 Lakhs being market value of the subject flat. Complainants also asked compensation for mental harassment they suffered because of deficiency in service on the part of builder relating to the home of the complainants when they have spent entire lifetime income for procuring flat in Housing Complex. Moreover, they have been given a flat of ordinary construction with no proper environment. We are finding that there has been deficiency in service on the part of O.P./builder in not developing whole of the Housing Complex as per brochure. Builder has also not constructed Swimming Pool, Garden, etc. Building is surrounded by hutments and slum dwellers and it is an ordeal for persons like complainants to stay in such surrounding in their flat which is not having Occupation Certificate and legal water connection. Despite the fact, that since July 1998 till 30th October 2010 nothing has been done to improve the situation of Gaurav Empire Housing Complex. In the circumstances, we are inclined to allow the complaint partly to give some reliefs to the complainants though we do not agree with the complainants that their agreement should be cancelled and they should be given back refund of moneys together with difference between the price of said flat and the market value of the flat which they would be required to purchase in 2010. What is important to note is the fact that the complainants had taken possession of the flat despite the fact that the building was not having Occupation Certificate and water connection. From the undated letter produced on record attached to the affidavit in reply, it is clear that the complainants were hard pressed to vacate their then existing leave and licence premises. Landlord was after them and therefore, ultimately they approached the O.P./builder and took possession of the flat on emergency basis by end of July 1998. Under these circumstances, they had taken possession of the flat and they have resided in the said flat for more than 12 years and now, they cannot be permitted to surrender this flat in favour of O.P. and to claim from O.P. refund of consideration paid plus difference in the current market value of the flat which they would be required to purchase. So, this prayer cannot be allowed, but some compensation will have to be granted to the complainants for the situation they are put in by the builder and for the obvious deficiency in service, builder is guilty. Hence, we are of the view that amount of `5 Lakhs should be granted as compensation for the mental harassment suffered by the complainants in requiring to take possession of such flat in their undeveloped ‘Gaurav Empire Housing Complex’. Complainants are also required to be duly compensated for non-giving of Occupation Certificate of their flat though more than 12 years have elapsed. We are of the view that we should direct O.P./builder to pay `1, 000/- per month as compensation from 31/07/1998 till the builder actually procures Occupation Certificate from the Municipal Corporation of Greater Mumbai. This sort of penalty is required to be imposed so as to induce the builder to immediately procure Occupation Certificate for the said flat from the Municipal Corporation of Greater Mumbai, so that the complainants could live peacefully in the said flat and can have legal water connection from the Municipal Corporation. The builder will have to be directed to pay cost of `25, 000/- to the complainants since complainants are required to prosecute this complaint for last 10 years. In the circumstances, we pass the following order :-
-: ORDER :-
1. Complaint is partly allowed.
2. O.P./builders are directed to pay a sum of `5 Lakhs as compensation for mental harassment to the complainants for various deficiencies in service discussed above.
3. O.P/builders are further directed to pay `1, 000/- per month to the complainants right from 01/08/1998 till actual procurement of Occupation Certificate from the Municipal Corporate of Greater Mumbai.
4. O.P. /builders are further directed to pay `25, 000/- as cost of the complaint o the complainants and bear their own costs.
5. Copies of the order be furnished to the parties.


(S.P. Lale) (P.N. Kashalkar)
Member Presiding Judicial Member