CAUSE TITLE:
Debashis Sinha v/s M/S R.N.R Enterprise
DATE OF ORDER:
9th February 2023
JUDGE(S):
Honourable Justice S. Ravindra Bhat, Dipankar Datta
PARTIES:
Appellant: Debashis Sinha
Respondent: M/S R.N.R Enterprise.
SUBJECT:
The Hon’ble Supreme Court (hereinafter referred to as ‘Supreme Court’ or ‘the Court’), has ruled that apartment owners, who are frequently compelled by circumstance to take ownership of their homes even when the amenities guaranteed by the developer are not offered, do not lose their right to request such facilities from the developer.
IMPORTANT PROVISIONS:
The Consumer Protection Act 1986
- Section 23 – states that the Central Government may appoint any statutory authority or entity to carry out the duties of the Central Authority mentioned in section 10 if it deems it essential to do so.
Karnataka Municipal Corporations, Act, 1976
- Section 403 - Every individual providing notice under Section 393 or Section 394, along with each Owner of a Building or Collaborate to whom the Notice Corresponds would be required to issue or cause to be produced and then sent to the Municipal Commissioner a written notice of closure of construction of building or execution of work around one month of that completion of the project, along with a certificate in the manner mentioned in the regulations framed in this affair.
- Section 393 - It requires everyone planning to construct a building to submit an application for approval to the municipal commissioner in writing, using the specified form and details, along with the necessary paperwork and designs.
- Section 394 - It requires anyone planning to carry out any of the works listed in clauses (b) to clauses (m) of sub-section (1) of section 390 to apply for approval by notifying the Municipal Commissioner in writing of their purpose in the form and with the information provided.
BRIEF FACTS:
- A consumer complaint about the failure of providing the promised services to the NCDRC in 2008. They claimed that even though they had paid the full consideration sum at market value and deeds of conveyance had been executed and registered in their favour, the respondents had failed, among other things, to provide the "Completion Certificate," which is their statutory duty under the regulations of the Kolkata Municipal Corporation.
- Their occupancy of the different units has become risky in the absence of those documents. The appellants claim that the respondents were unable to supply them with common facilities and amenities such as a playground, community hall/office, 33-foot-wide concrete road, and KMC water supply and most importantly the ‘completion certificate’.
- It should be noted that the respondent was also involved in the unfair trade practices. Along with that there were constructional defects. Therefore the NCDRC gave the directions for compliance with the lodged complaint, along with the compensation amount of Rs. 1,80,00,000/- and the litigation cost Rs. 50,000/-
- The respondent in the written statement stated that the complaint was time barded. Also, the compensation amount cannot be paid off alone if there will be no contribution form the members of the complex. Regarding the completion certificate the owners of the flats were responsible to obtain that by KMC.
- NCDRC held the respondent liable for the unfair trade practices however the petitioner were unable to establish their claims properly. Initially the law was broke by both the parties according to the section 403 of KMC.
- The present appeal has been filed under section 23 of the Consumer Protection Act 1986 against the order National Consumer Disputes Redressal Commission, New Delhi
QUESTIONS RAISED:
- Whether the appellants received the services that the defendants had committed to deliver?
- Whether, upon taking ownership, a flat possessor forfeits his or her entitlement to obtain such services that were committed but were not given, resulting in deficit in services.
ARGUMENTS ADVANCED BY THE APPELLANT
- The council stated the absence of the respondent on the hearing dates. And the delay made by the NCDRC in passing the order for the same.
- The mentioned things in the advertisement were not provide along with the services relating to the house construction.
- The point mentioned by the NCDRC about project being huge was irrelevant, because any flaw discovered after the sale gives the disappointed customer a chance to seek redress outside of the consumer forums.
- The impugned judgement does not reflect the question of whether the appellants received the services that the defendants had committed to deliver.
- The disagreement or the disappointment was clearly stated before the NCDRC but still an unusual strategy was used, and the respondents were released from their responsibilities by an order that, in our opinion, was not warranted by the facts or the circumstances.
- The contested order mentions a number of amenities that respondents would provide in exchange for a fee. Unfortunately, there is no such specific definition of amenities whereby the respondents claimed would be given on receipt of additional money by the appellants. It would have been prudent for NCDRC to make this clear.
- The NCDRC's claim that the respondents had a valid defence for not being at blame for the project's inability to get a completion certificate is obviously in violation of the law.
ARGUMENTS ADVANCED BY THE RESPONDENT
- It was conducted that a combined interpretation of sections 403, 390, and 394 of the KMC Act makes it clear that anybody planning to construct a structure or carry out other work must apply for a completion certificate in accordance with the regulations established under those provisions.
- It has been made clear by the council that the unit owner has no obligation to request a completion certificate. The Calcutta Municipal Corporation Buildings Rules, 1990 were in effect at the time the respondents had asked for permission or approval to install. Evidently, the respondents respected the legislative restrictions in the breach.
- The council have no justification for violating section 403(1) read with rule 26 of the 1990 Rules based only on the KMC's assessment of the flat owners.
- Naturally, once the KMC issues a completion certificate after conducting the necessary inspections and tests on the building that has been constructed, it would follow that the same essentially serves as a certification that the building does not have any violations of the construction project approved for the reason under section 390 of the KMC Act or that its constructional reliability is not at the required level for which it is dangerous for human beings housing.
ANALYSIS BY THE COURT:
- We are reluctant to order the NCDRC to decide on the remuneration component because it has been determined that the appellants, in their request for a monetary compensation of Rs. 1,80,000,000.00, had already failed to provide specific details and certainly they have also broken the law by claiming ownership of their corresponding flats even without completion certificate, and the compulsion.
- The only purpose of the summons is to ensure that the defendants keep the promises they made in the pamphlet and/or marketing, as the case may be, and to do so in order to hide any service deficiencies and to ensure that the required legislative requirements are met.
- Therefore the appeal was disposed of and order was given to the NCDRC to give its final verdict as soon as possible as the said case is 15 years old.
CONCLUSION
The NCDRC was required to consider the appellants' complaint honestly and with the application of intellect after concluding that the defendants were careless in their methodology and had even turned to unfair trade practises. The NCDRC then had to provide its reasoned decision.
If the respondents were negligent in providing any of the services or benefits as promised in the brochure or marketing, it was the responsibility of the NCDRC to make things right even in the event that the appellants had not relinquished any rights by the filing of the sale deeds.
The NCDRC simply resorted to sub-section (2) of section 403 of the KMC Act to allow the respondents to avoid this requirement and came to the blatant illogical conclusion that there was no service defect attributable to the respondents because both they and the appellants had broken the law.
However accordingly, the appellants shouldn't have claimed ownership without such completion certificate, but it wasn't a good enough reason to tell the respondents to follow the law and apply for and get the completion certificate
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