
Citation | 2022 SCC OnLine SC 35 |
Date of Judgment | January 11, 2022 |
Court | Supreme Court of India |
Case Type | Regulation of the Promotion of Construction, Sale, Management and Transfer Act ,1963, Consumer Protection Act ,1986 |
Appellant | SAMRUDDHI CO-OPERATIVE HOUSING SOCIETY LTD. |
Respondent | MUMBAI MAHALAXMI CONSTRUCTION PVT. LTD. |
Bench | Hon’ble Dr. Chandrachud , Surya Kant |
Referred | “Failure To Provide Occupancy Certificate A Deficiency In Service Under The Consumer Protection Act And Also A Continuing Wrong” |
FACTS OF THE CASE
Samruddhi Co-operative Housing Society Ltd. (appellant) is a co-operative housing society. The dispute emerges when Mumbai Mahalaxmi Construction Pvt. Ltd. constructed ‘A’ & ‘B’ Wings and made an agreement to sell the flats to individual purchasers in accordance with Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act , 1963 (MOFA). The flats were booked by the appellant’s members in 1993 and they were granted possession of the same in 1997. Following that, the appellant alleged that the respondent failed in obtaining the Occupation Certificate from the local municipal authorities. Consequently, the members of the appellant were ineligible to obtain electricity services and water supply because of the absence of Occupation Certificate. Due to the constant efforts of the appellant, the electricity and water supply services were granted temporarily by the authorities. But the members of the appellant had to pay property tax at a 25% higher than the normal rate and water charges at 50% higher than the normal
It was the obligation of the respondent to provide the occupation certificate and pay for the charges till the time the occupation certificate is not provided. A complaint was filed by the Appellant against the respondent before the National Consumer Disputes Redressal Commission (NCDRC) in 1998, for a refund of the excess charges which had to paid by the appellant’s members due to the failure of the respondent to provide with the Occupation Certificate. On 20th August 2014 the NCDRC directed the respondent to obtain the Occupation Certificate within the period of four months that were granted by the NCDRC. A penalty was imposed on the respondent if there was any delay in obtaining the certificate beyond the four months. However , the respondent failed to provide the Occupation Certificate till date.
ISSUES
- Whether the Complaint filed by the Appellant was barred by limitation?
ARGUMENTS
Appellant’s arguments: Mr. Sunil Fernandes , the counsel of the appellant argued that under section 6 of MOFA it is the obligation of the respondent to provide the Occupation Certificate to the society. There is a continuing cause of action in the present case as till date the Occupation Certificate has not been obtained by the respondent even twenty four years after possession and has not complied with the order of NCDRC dated 20th August 2014. Since the resident’s have started residing in the premises that have had to pay 25% property tax higher than the normal rate and water charges 50% extra than the normal charges and all this had to be faced by the residents just because of the failure of the respondent to provide the Occupational certificate. According to the Appellant the respondent’s conduct has been improper and non-bailable warrants have been issued against respondent. Due to the deficiency in service, the appellant’s members have had to pay extra charges on annual basis, which continued to be raised. Therefore, the appellant is a ‘consumer’ under the Consumer Protection Act , 1986.
Respondent’s arguments: On behalf of the respondent Mr. Atul Babasaheb Dakh submitted that the construction was completed in 1997 but the possession was not offered to the flat-purchasers. The respondent contended that the purchasers took possession to make suitable changes in the interiors and make arrangements till the Occupation Certificate was obtained. But however, they started residing in the property and made arrangements of water and electricity supply by paying extra charges. Some unauthorized constructions were done by the members of the appellant because of which a delay occurred in obtaining the Occupational Certificate. According to the respondent side, the complaint was barred by limitation as the cause of action occurred in 1997 and the complaint for the same was filed 18 years later. Under section 6 of MOFA the builder is entitled to bear all the expenses only till the possession is granted. Section 12 of MOFA states that it is liability of the flat-purchasers to pay all the electricity, water charges and municipal taxes. The complaint is not maintainable as the respondent is not a water or electricity supplier and the hence the appellant is not a consumer under the Consumer Protection Act , 1986 .
JUDGEMENT
The judgement of the Supreme Court ruled that the builder was liable to pay all the damages in case of Occupation Certificate is not provided even after 25 years after the completion of the construction project. The court held that based on the provisions it was the duty of the respondent to provide the Occupation Certificate and pay all the expenses till the certificate is not obtained . The complaint was registered in 1998 against the respondent and since then there has been a failure to obtain the Occupation Certificate time and again. On 20th August 2014 NCDRC directed the builder to obtain the certificate within the period of four months provided and any delay after the given period to obtain the Occupation Certificate will impose a penalty. Till date no Occupation Certificate has been obtained. The continuous failure to provide the Occupation Certificate leads to a continuous cause of action and hence the complaint is not barred by limitation. The bench of judges said that the respondent would be liable to refund all the excess amount to avail services which the appellant had to pay, due to the failure of the respondent to provide the Occupation Certificate. The members of the appellant society are well within their rights to be called a ‘consumer’ under the Consumer Protection Act , 1986 and can pray for the compensation for liability which emerged from the absence of Occupation Certificate.
REFERENCES
https://facelesscompliance.com/tag/samruddhi-co-operative-housing-society-ltd
https://induslaw.com/publications/pdf/alerts-2022/SC_Judgement_Samrudhhi_CHS.pdf
This article is published by Khushraj Singh Suri of Lloyd School of Law , Intern at Legal Vidhiya.
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1 Comment
Trichur Viswanath Shivram · December 24, 2024 at 7:23 am
Did the society finally got OC and compensation ?
by what date and year