JAGRUT NAGRIK Vs. C K SHAH

JUDGEMENT

(1.) This first appeal has been filed against the impugned order dated 30.06.2009, passed by the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Consumer Complaint No. 13/2002, "Jagrut Nagrik Grahak Mandal & Anr. vs. C.K. Shah & Ors.", vide which, the said complaint was partly allowed.

(2.) Briefly stated, the facts of the case are that consumer complaint No. 13/2002 was filed by appellant No. 2, Bhagyodaya Tower No. 1 Association, alleging that OP No. 1/respondent No. 1, Bhagyodaya Commercial Complexes Private Limited and OP No. 2/respondent No. 2, Pashabhai Patel Co-op. Housing Society Limited had constructed a building known as Bhagyodaya Tower No. 1 and sold flats in the same to members of the complainant association. Each member of the Association had paid a sum of Rs. 5/- as membership fee and Rs. 250/- towards issue of share certificate to the OP No. 2 Society, through OP No. 1. However, the said share certificates had not been issued so far by OP No. 2, Co-op. Housing Society. The complaint has been filed on behalf of 72 persons who purchased flats from OP No.1. The building had been constructed on the land purchased by OP No. 2 Society from M/s. H. Desai & Company. The Vadodara Municipal Corporation has also been impleaded as OP No. 3 in the complaint. It appears that appellant No. 1, Jagrut Nagrik Grahak Mandal which is a volunteer consumer association was later impleaded as complainant, as they are reflected as such in the impugned order. It has been alleged in the consumer complaint that there was earthquake in the area on 26.01.2001, following which OP No. 3 Vadodara Municipal Corporation demanded structural stability certificate for the multi-storeyed building from a structural engineer. OP No. 3 also issued notices dated 05.05.2001, ordering the Association to make necessary arrangements for fire safety, but OP No. 1 had not made the necessary provisions in spite of promises given in the brochure at the time of purchase of the flats. OP No. 1 & 2 were, therefore, responsible for deficiency in service and other several deficiencies, including the consequences of the notice issued by OP No. 3 Municipal Corporation. OP No. 1 had collected Rs. 5/- per sq. ft. from all 72 flat purchasers as common fund for providing common services such as security, paying common electric charges, but they failed to honour their commitments. They were also supposed to provide modern amenities like fire-fighting equipment on each floor, two lifts, good parking arrangements, common video programme facilities, generating set etc. but they had failed to provide such amenities. In response to the notices issued by OP No. 3, the complainant had incurred an expenditure of Rs. 95,000/- and they may have to incur further expenditure of Rs. 3 lakh, although it was the responsibility of the OP No. 1 to take those steps. The OP No. 1 had also not provided the completion certificate, occupancy certificate and approved maps for the flats. The complainant association had also spent a sum of Rs.5,32,853/- for creation of common facilities. It was prayed through the complaint that OP No. 1 should be directed to provide modern amenities, make security arrangements, instal fire-fighting safety system and provide building clearance certificate, occupancy certificate etc. It was also stated that OP No. 2 should also be asked to issue the share certificates for which the necessary amount had already been paid to OP No. 1. It was also stated that OP No. 1 should be asked to reimburse the expenditure made by the complainants for creation of common facilities.

(3.) The complaint was resisted by OP No. 1 by filing reply before the State Commission in which they stated that all the members of the Association were handed over possession of the property in question in the year 1990. In case, the defects stated in the complaint are taken into account, demanding any relief against the same was beyond time limit and hence, the complaint was liable to be dismissed. Moreover, there was no direct contract between OP No. 1 and the complainants and hence, there was no direct liability on the part of the OP No. 1. OP No. 1 also stated that they were only sub-developers and all the documents, land records, approvals etc. were the responsibility of OP No. 2 Society. The State Commission, vide impugned order, partly allowed the complaint against OP No. 1 & 2 and dismissed the complaint against OP No. 3 Municipal Corporation. They directed the OP No. 2 to issue share certificates in the name of members of the Society for which OP No. 1 shall pay the amount of Rs. 5/- to them, which had already been paid by the members of the Association to OP No. 1. OP No. 1 & 2 were also directed to pay a sum of Rs. 10,000/- for mental agony and Rs. 2,000/- as litigation cost to the complainants. It is against this order that the present appeal has been made.