- (1.) This appeal is against the order dated 3.2.2004 passed by the National Consumer Disputes Redressal Commission ( Commission for short) in Revision Petition No. 1878 of 2000. It relates to the question whether a land owner, who enters into an agreement with a builder, for construction of an Apartment Building and for sharing of the constructed area, is a consumer entitled to maintain a complaint against the builder as a service-provider under the Consumer Protection Act, 1986. The agreement
(2.) The appellant is the owner of premises No. L-3, Kailash Colony, New Delhi. He entered into a collaboration agreement dated 17.5.1991 with the first respondent, the terms of which are, in brief, as follows: (i) The owner shall place at the disposal of the builder, vacant possession of the premises and authorize the builder to secure necessary sanctions, permissions and approvals for demolition of the existing building and construction and completion of a new building. (iii) The builder shall demolish the existing structure and construct a residential building consisting of ground, first and second floors, at its cost and expense. (iv) The builder will have the right to appoint Architects, contractors, sub-contractors etc. (v) The new building to be constructed by the builder shall be of good quality as per the detailed specifications contained in Annexure-A to the agreement. (vi) On completion of construction, the land-owner will be entitled to the entire ground floor (consisting of three bedrooms with attached bathrooms, one drawing-cum-dining, one store room, one kitchen) with one servant room under the overhead water tank on rear terrace and one parking space, as his share in consideration of his having made available the land. The builder shall also pay a sum of Rs. 8 lakhs as non-refundable consideration to the owner. (vii) The remaining part of the building (the entire first and second floors and two servant rooms and two car parking spaces) shall belong to the builder as its share of the building in consideration of having spent the cost of construction of the entire building and all other services rendered by him under the agreement. (viii) The owner and the builder shall be entitled to undivided and indivisible share in the land, proportionate to their right in the building, that is, an undivided one-third share in the land shall belong to the owner and two-third share shall belong to the developer. (ix) The builder shall be entitled to either retain or sell its share of the building. The owner shall execute necessary documents for transferring the share corresponding to the builder s portion of the building. The owner shall give an irrevocable power of attorney enabling the builder to execute the deed of conveyance in regard to the builder s share in the land. The builder will however, have the option to require the owner to personally execute the sale deed in regard to the builder s share in the land instead of using such power of attorney. (x) On completion of the building, the builder shall apply for completion certificate to the concerned authority and shall be liable to pay any penalty that may be imposed or levied in regard to the deviations, if any, made in the construction of the building. (xi) The owner shall not interfere or obstruct the construction and completion of the work in any manner, but will have access to the construction to point out any defect in construction or workmanship or use of inferior material, so as to require the builder to rectify such defects. (xii) Title deeds handed over by the owner to the builder for completing the formalities relating to the agreement shall thereafter be returned to the owner, who shall however make available the same for reference by the owners of the other floors. (xiii) The agreement and the power of attorney executed by the owner in favour of the builder are irrevocable. In the event of neglect, failure, default on the part of the owner or the builder, the affected party shall have the right to specific performance of the said agreement at the cost and risk of the defaulting party who shall also be liable to pay damages. (xiv) The agreement is not a partnership and shall not be deemed to be a partnership between the owner and the builder. The dispute and the decision.
(3.) The appellant (also referred to as land-owner ) alleges that the first respondent (also referred to as the builder ) secured sanction of the plan for construction from the Municipal Corporation of Delhi [for short MCD ) but made several unauthorized deviations during construction, resulting in several deviation notices from MCD. In fact, MCD passed an order dated 16.1.1991 to seal the premises, but subsequently, the premises was de- sealed to enable the builder to rectify the deviations. The builder delivered possession of the ground floor on 2.4.1992. The builder sold the first and second floors to four persons under sale deeds dated 18.3.1992, 18.3.1992, 2.6.1995 and 2.6.1995.;