ORDER
D.P. Wadhwa, J. (President)
1. Complainant in this complaint has sought issue of occupancy certificate in respect of his house and for damages under various heads. Complainant was allotted a plot on lease hold in Navi Mumbai under an agreement dated 21.9.1979 when he paid lease premium of Rs. 48,000/-. Complainant could not complete the construction within the period of three years under the agreement. On his paying an additional premium of Rs. 7,200/- time of construction was extended for two years. Since complainant remained on duty on sea, he being a Seaman, he appointed his friend one Gunwantbhai Hirani as his attorney to make construction on the plot.
2. According to the complainant the construction was completed on the ground and first floor and the said attorney applied for occupancy certificate to City and Industrial Development Corporation (CIDCO) who had granted lease deed. Complainants attorney applied for occupancy certificate separately for the ground floor and the first floor. Complainant says though occupancy certificate was granted for the ground floor but was refused the same for the first floor stating that some work had yet remained to be completed. Then the complainant says his attorney illegally occupied the first floor and the process of litigation started with him, even his filing the criminal complaint against his attorney. Meanwhile a show cause notice was again issued by CIDCO as to why agreement of lease be not terminated under the provisions thereof. Complainant replied to the show cause notice informing the CIDCO of illegal occupation of the first floor by Gunwantbhai Hirani and his civil suit pending in the Thane District Court. It is not necessary to give further facts except to note that orders were passed by the CIDCO cancelling the agreement and also issuing eviction orders against both the complainant and Hirani. This order was challenged by the complainant in the Court of Joint District Judge Thane and by order dated 11.7.1997 the eviction order was set aside. Complainant says he continued to pursue with CIDCO for issuance of the occupancy certificate and even had to go to the High Court of Bombay for the purpose.
3. During the pendency of the proceedings in the High Court complainant says that Shri Ram Naik, M.P., intervened and he wrote to CIDCO to reconsider the case of the complainant by recovering charges and to regularise the whole thing. CIDCO, it is stated, informed the complainant to pay additional lease premium for one year from 20.9.84 to 20.9.85 amounting to Rs. 19,200/-, services charges from 20.9.82 to 31.3.96 amounting Rs. 26,274/-, D.P. Charges on service charges amounting to Rs. 42,071/- and lease ret Rs. 19/- totalling in all Rs. 87,564/-. Complainant says he was also informed that these amount would be accepted on his withdrawing the case pending in the High Court and other cases pending against the CIDCO. He was told that on his complying with these conditions further action would be taken as far as NOC was concerned to get occupancy certificate from the Town Planning Officer, Navi Mumbai Municipal Corporation. It is stated that during the proceedings which were pending the area had been transferred from CIDCO to Municipal Corporation. Complainant says he duly complied with the aforesaid conditions of CIDCO and withdrew his cases and sought no objection. Complainant then says as under:
“The Complainant submits that it is rather late in the day for either Opponent No. 2 (CIDCO) or opponent No. 3 (Navi Mumbai Municipal Corporation) to issue Occupancy Certificate to the Complainant in respect of the building constructed on the said plot. Opponents have realised that they would be committing a grave sin by issuing Occupancy Certificate to the Complainant for a building which has now been rendered unfit for occupation, lying all these 15 years, without any upkeep or maintenance. At the same time, the opponents are aware that failure on the part of opponent No. 2 to issue Occupancy Certificate within the prescribed time limit as per provisions of Regulation No. 11 contained in General Development Control Regulations for New Bombay, 1975, and dragging the matter by relying on technical pleases for a long period of fifteen years, as in an act of non-feasance, is staring on their faces. Although Opponent No. 2 may well feel relieved having passed the buck on to its successor, opponent No. 3, it is fully aware that unless the building constructed on the said plot is first rendered fit for occupation by infusing the required finance, issuance of Occupancy Certificate for it would serve no purpose. Further, opponent No. 3 is ill-equipped to deal with building completion certificates, occupancy certificates etc. and may even make a demand on the complainant to pull down the existing building on the said plot as being unfit for occupation, and to reconstruct the whole building, before the Occupancy Certificate can be issued.
4. Dispute however, did not end there as objection was raised regarding the building constructed on the leased land. This, it appears, led the complainant to file this complaint on 23.2.1999.
5. First order in the complaint is dated 15.2.2001 which we reproduce as under:
“Our attention has been drawn to a letter dated 13.2.1998 issued by the Asst. Estate Officer, CIDCO to the Complainant stating that since he has paid all the dues and has withdrawn the case filed against the Corporation, it had no objection to the Complainant in getting the Occupancy Certificate from the Town Planning Officer, NMMC, as per the terms and conditions of the agreement, General Development Regulations and New Bombay Disposal of Lands Regulations, 1975. The case of the Complainant is that in spite of this letter, the Complainant has been unable to get no objection to the Occupancy Certificate from the Town Planning Officer, NMMC. He has referred to a letter dated 26.11.1999 which has not been annexed and has drawn our attention to the harassment to which he was subjected to.
Issue notice in this case to the NMMC who particularly deals with the complaint about the non-issuance of Occupancy Certificate to the Complainant.
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…..J
(SUHAS C. SEN)
PRESIDENT
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…..J
(C.L. CHAUDHRY)
MEMBER
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…..J
(J.K. MEHRA)
MEMBER
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(RAJYALAKSHMI RAO)
MEMBER”
6. Thereafter, matter was taken up on 11th December, 2001 when the Commission passed the following order:
“We have heard the parties to some extent. Counsel for the NMMC have filed the written statement. With that, a letter of the NMMC has been filed requiring the Complainant to meet certain requirements. This letter is in Marathi and English translation may be filed. Before we proceed to hear the matter further let the complainant submit to NMMC the revalidated plan of the building and plan of the structure as-built. This shall be done within two weeks. Immediately after the plans are submitted, inspection may be carried out by NMMC by its own Officers. Mr. Bhate, Counsel states that there are certain charges which the Complainant is required to pay. He will indicate the amount and reasons for that. To be listed again on 7.1.2002.
7. On 7.1.2002 we noted that occupancy certificate has since been granted to the complainant. This is how we recorded:
“Mr. A.T. Nihalani, who appears in person states that occupancy certificate has been granted to him. One chapter is therefore, over. As far as his claim is concerned, he states that he is entitled to damages for delay of 17 years in granting the occupancy certificate. He states that he is claiming damages of Rs. 1 crore. He will file a brief resume as to how he is claiming this amount and what is the evidence on record, which he says, on the basis of which he is claiming this amount as compensation. He will also file affidavit in support of his claim within four weeks. He also states he has some claim against the Respondent No. 3 as well. Let the matter be listed again on 2nd May, 2002 for directions and further proceedings. Liberty to the Respondent to file its affidavit in rebuttal before the next date of hearing”.
8. In furtherance of this order complainant filed his calculation of damages claimed by him which are as under:
"A) Towards repairs of the building : Rs. 6,00,000.00
B) Loss of enjoyment of property : Rs. 35,60,000.00
C) Loss of employment : Rs. 48,28,513.00
D) Towards legal expenses : Rs. 2,20,000.00
E) Towards mental torture, sufferings etc. : Rs. 50,00,000.00
Total Rs. 1,42,08,713.00"
9. A bare look at the amounts towards damages claimed by the complainant would show that these will require a great deal of evidence both oral and documentary. Our record of the case already runs into about 350 pages. It will not be possible for this Commission to decide such a dispute in its summary jurisdiction. Local Commissioner may have to be appointed to go Mumbai for recording of evidence of witnesses and even to seek report of the building engineer. It will be more appropriate if the claim regarding damages is decided by the Civil Court at Mumbai. As recorded in our order dated 7.1.2002 occupancy certificate has been granted which was one of his prayer before us. It will be in the interest of justice of all the parties that the dispute regarding damages is adjudicated by a Civil Court at Mumbai. We would, therefore after having granted relief to the complainant of occupancy certificate, would reject the complaint for consideration of his claim regarding damages. Complainant may go to Civil Court or any other forum for the remaining reliefs. His attention is drawn to the judgment of the Supreme Court in the case of Laxmi Engineering Works v. PSG Industrial Institute – (1995) 3 SCC 583 to seek exclusion of time under Section 14 of the Limitation Act for the period the matter was pending before this Commission.