Pashabai Patel Co-operative Society had a building constructed on its property at Vadodara through builders Bhagyodaya Commercial Complex Private Ltd. The new building was named Bhagyodaya Tower No. 1. Various persons had purchased flats in this tower. Each purchaser paid the builder Rs 5 towards membership fee and Rs 250 for issuance of share certificates in the Society.
The society failed to issue share certificates. Aggrieved, purchasers came together under the banner of Bhagyodaya Tower No. 1 Association. Mahendrabhai Shah was appointed legal committee member, who took the help of Jagrup Nagrik Grahak Mandal for filing a consumer complaint on behalf of the 72 purchasers.
After an earthquake in the area on January 26, 2001, the Vadodara Municipal Corporation instructed all multi-storied buildings to obtain a stability certificate from a structural engineer. It also directed them to provide for fire safety arrangements. Contrary to the assurance in the brochure, the builder failed to furnish these certificates or provide modern amenities like fire-fighting equipment on each floor, two lifts, good parking arrangements, common video programme facilities, generating set, etc. Even the completion certificate and the occupancy certificate had not been obtained. Due to the builder's lapses, the Association had to reply to the notices and make compliances. For providing common facilities, the Association had to spend around Rs 5 lakh, with a projected further expense of Rs 4 lakh. The Association claimed reimbursement for this amount.
The builder contested the complaint, pointing out that possession had been given in 1990. So, the complaint was time-barred. The builder also claimed it could not be held liable as they were only sub-developers, carrying out construction on behalf of the Society. All the documents were in the custody and possession of the Society for which the builder could not be held responsible.
The Gujarat State Commission directed the builder to hand over the Society membership fee and share application money to the Society. It also directed the Society to issue share certificates to all members. The builder was also liable to pay a compensation of Rs 10,000 and costs of Rs 2,000. All other demands for defective construction, failure to provide amenities, etc, were rejected as time-barred.
The builder appealed, and attempted to buy time by seeking repeated adjournments. The National Commission adjudicated the dispute on the basis of the documents on record. The Commission noted possession of the flats was given in 1990, while the complaint was filed in the year 2002. At the time possession was granted, there was no such rule requiring the builder to obtain a structural stability certificate. The Commission opined that the subsequent requirement of a certificate could not be retrospectively made applicable. The demand of the Association of the purchasers was not legal or justified.
The Commission also observed that a complaint alleging any defect ought to have been filed within two years. Since possession was taken in 1990 but the complaint was filed in 2002, the grievance regarding defective construction would be time-barred.
The only cause of action which remained continuous and alive was the failure to issue share certificates, for which the State Commission had given necessary directions.
The National Commission, by its order of April 16, 2015, delivered by the Bench of Justice V K Jain and Dr B C Gupta, concurred with the finding and reliefs granted by the State Commission and dismissed the appeal.
Thus, limitation would begin to run from the date of taking possession. The only exception would be in respect of failure to perform statutory obligations, for which the cause of action would continue throughout the breach.
The writer is a consumer activist
