1. Judgment passed by the Hon’ble National Consumer Disputes
Redressal in Yash
Bir Jaggi vs Unitech Ltd. on 3 February, 2006 reported as IV (2006) CPJ 123 NC can be
relied upon for subjected purpose. Relevant part for the subjected issue is as
follows :
“39. The
aforesaid clause specifically provides that the allottee is liable to pay
maintenance security 'as and when' and 'in the manner' demanded by the
maintenance agency. In case where possession is offered the allottees are
required to pay maintenance charges. Further, as these
maintenance charges are taken for common facilities provided to all the
allottees, any one
allottee cannot take a stand that till he takes the possession of the property,
he will not pay the maintenance charges. If that contention is accepted, it
would be difficult to engage a maintenance agency for maintaining the
apartments as a whole and provide common facilities.
40.
Considering the above analysis, it is apparent that the
stand taken by the complainant that he is not liable to pay the security
deposit and maintenance charges as he has not taken possession of the flat is
unjustified. We hold that the complainant is bound to pay the
maintenance charges as demanded as well as the interest free security deposit
amounting to Rs. 30,000. The above shall be paid with interest at the rate of
10% per annum from the date of demand till the date of payment.”
2. Whether
the colonizers/owners are prohibited from recovering the amounts spent towards
the maintenance charges from the plots/flats buyers was decided by the Hon’ble
Supreme Court on 19
November, 2010 in a bunch of appeals against the orders of Punjab and
Haryana High Court. Those appeals were filed by DLF UNIVERSAL LTD. & ANR., M/s. ANSAL PROPERTIES
& Industries LTD., M/s. Ajay ENTERPRISES LTD. & ORS. agents DIRECTOR,
T. &C. PLANNING HARYANA & ORS. AND STATE OF HARYANA & ORS.
The
Hon’ble Apex Court framed below questions at Para 20 of the said judgment:
1.
Whether the Director of Country and Town Planning is
empowered to issue any directions, directing the appellants to stop charging
maintenance fee from the plot/flat holders and also “delete the relevant
clauses from the agreement” and refund the amounts so far collected to the
Government immediately?
2.
Whether the Act imposes any obligation upon the colonizers or
owners to incur maintenance charges out of their own resources?
3.
Whether the colonizers/owners are prohibited from recovering
the amounts spent towards the maintenance charges from the plots/flats buyers?
4.
Whether the clause incorporated in the sale agreement
enabling the owners to collect the maintenance charges is void?
Section
3 (3) (a) (iii) of the Haryana Development and Regulation of Urban Areas Act,
1975 imposes responsibility for the maintenance and upkeep of all roads,
open spaces, public parks and public health services for a period of five years
from the date of issue of the completion certificate unless earlier relieved of
this responsibility and thereupon to transfer all such roads, open spaces,
public parks and public health services free of cost to the Government or the
authority, as the case may be.
The
Hon’ble Apex Court categorically said about aforesaid provision “That a bare reading of the
provisions does not suggest that the owner is required to provide the said
maintenance services free of cost.” At Para 22. The Hon’ble Apex
Court further considered categorically “whether providing services of the kind
by the owner/colonizer for which maintenance charges are imposed is a
"work" of "internal development" which has to be carried
out within the colony” at Para 23 and answering this question it categorically
said “In our considered
opinion the maintenance fee/charges levied and collected are clearly not in
respect of any of the internal development works defined under clause (i) to
(v) of Section 2 (i).” at Para 25.
The Hon’ble Court further considered “whether the amount
of maintenance service charges was already included in the sale price of the
plots/flats” at Para 28.
The
Hon’ble Court said “There is no price fixation formula devised under the
provisions of the Act, Rules and Regulations framed thereunder. The Statutory
Authorities have no role to play in the fixation of price and costs of land and
rate at which the plots/flats are to be sold. The price charged by the owner
for the plot is fixed and covered by clauses (1) and (2) of plot sale agreement
entered into by and between the parties. The agreed sale price of the plot
includes external development charges. The payment of maintenance charges by
the plot buyer is provided for in clause (14) of the said agreement. The sale
price charged by the owner from the plot buyers includes maintenance of service
charges at the most could be a bonafide contention between the
owners/colonizers and the purchasers of plots/flats. The Act, Rules
and the Regulations framed thereunder do not provide for any approval or
ratification of the agreements so entered into by and between the
owners/colonizers.” At Para 29 while at Para 30 it said “The sale price charged
by the owner from the buyers for the sale of the plots/flats is a market driven
sale price and is not based on any particular figure of cost. The provisions of
the Act or the Rules in no manner impose any price control directly or
indirectly in respect of plots/flats sold by the colonizer/owner. The sale and
purchase of the plots/flats is between a willing vendor and a willing vendee.”
3. National Commission on 29 Mar 2016
in PRAVEEN MEHTA v/s BENGAL UNITECH UNIVERSAL INFRASTRUCTURE PVT.
LTD at Para 10
“The
complainant (Consumer) is bound by the terms and conditions of the
builder- buyer’s agreement(allotment letter). As per this
agreement, if the complainant does not take the possession in spite of offer of
possession, he is bound to pay holding charges as per agreement to the opposite
party (builder) and in case of delay in possession there are certain charges @5
/- per sq.ft. per month that will be payable by the builder to the allottee.”
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