‘After possession, flat owners don’t forfeit right to claim amenities promised by builder’

New Delhi: The Supreme Court has observed that flat owners, who are often forced by the circumstances to take possession of apartments even if the amenities promised by the builder are not provided, do not forfeit their right to claim such services from the builder, reported LiveLaw.in on Friday.

A bench comprising Justices S Ravindra Bhat and Dipankar Datta criticised the National Consumer Disputes Redressal Commission (NCDRC) for refusing the claim of compensation raised by the aggrieved flat owners on the ground that they had taken possession.

“We have failed to comprehend as to what the NCDRC meant when it observed that the appellants “ought to have known what they were purchasing”, the bench observed in the judgment.

The bench was hearing an appeal filed by the homebuyers against the NCDRC dismissing their complaints filed against Kolkata-based builder RNR Enterprise. Their grievances ranged from the builder not providing ‘completion certificates’ and also not fulfilling the promises of common amenities and facilities such as playground, community hall-cum-office room, 33-feet wide concrete road, water supply, landscape gardening, generator, multi-gymnasium, water filtration plant, and gas pipeline. Though the NCDRC found that the builder was guilty of unfair trade practice, it did not grant relief to the buyers by saying that they have not established their claims.

Taking a critical view of the NCDRC’s “casual approach”, the Supreme Court observed that the NCDRC’s reasoning that the flat buyers can’t complain after knowingly purchased the flats with the deficiencies, “defies logic”.

The court noted that in most cases, the jurisdiction of NCDRC is invoked “post-purchase”.

“If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora. The reasoning of the NCDRC is, thus, indefensible,” the bench said.

The court further criticised the NCDRC’s “perfunctory approach” in not considering the appellants’ grievance regarding builder not obtaining completion certificate. After examining the provisions of the Kolkata Municipal Corporation Act, the court noted that “it is the obligation of the person intending to erect a building or to execute works to apply for completion certificate in terms of the rules”.

The court also criticised the NCDRC for taking over 10 months to deliver the judgment after completing the hearings in the complaint filed in 2008. With the above observations, the court remanded the matter to the NCDRC for fresh consideration. The court clarifying that it is not opening the claim for Rs.1,80,00,000.00 compensation raised by the buyers, as they have failed to give particulars and the basis for the claim. “The remand is directed only with a view to secure adherence to the promises that the respondents had made in the brochure and/or advertisement, as the case may be, and thereby cover up deficiency in service, if any, as well as the mandatory statutory provisions”.