ORDER

1.       This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 30.09.2011 of the State Commission in appeal no. 1128 of 2010 arising out of the Order dated 08.09.2010 of the District Commission in complaint no. 372 of 2003.

2.       We have heard the learned counsel for the complainant society (the petitioner herein) and for the builder (the respondent no. 3 herein). We have also perused the record including inter alia the Order dated 08.09.2010 of the District Commission, the impugned Order dated 30.09.2011 of the State Commission and the petition.  

3.       The matter relates to obtaining the occupancy certificate by the builder in respect of specific upper floors of particular wings of the subject building. 

The District Commission vide its Order dated 08.09.2010 dismissed the complaint. Extracts of its appraisal are reproduced below for reference:

(13) Thus, above-referred facts establish that competent Civil Court has recorded a finding to the effect that the members of the Complainant Society herein has made encroachments and unauthorized construction in the building and those illegalities are required to be removed and defects are required to be rectified. Thus, in respect of Occupation Certificate, in respect of upper floors of Building No. 3, a finding has been recorded by the City Civil Court to the effect that the members of the Complainant Society are responsible for non-issuance of Occupation Certificate by Municipal Corporation of Greater Mumbai in favour of the Opposite Party – Builder/Developer.  Naturally, therefore, in a consumer complaint, which is to be tried in a summary jurisdiction, separate finding cannot be recorded and this finding is binding on the parties to the present complaint proceeding, unless it is set aside.  It is possible that the Opposite Party – Builder/Developer, might have preferred an appeal before the Hon’ble Bombay High Couirt, but at the present stage, there is no material to show that an appeal has been preferred, admitted and a stay has been granted to the said finding.  Even otherwise, the matter is directly subjudice before the competent Civil Court.  From this stand point also, no finding on this issue can be recorded in favour of the Complainant Society. 

(14)  As a corollary of above findings, we hold that the Complainant Society is not entitled to any direction as against the Opposite Party – Builder/Developer, much-less compensation.

Appeal filed by the complainant society was dismissed by the State Commission vide its Order dated 30.09.2011. Extracts of its appraisal are reproduced below for reference:

(5)       Besides this the same issue was a subject matter of a civil suit filed by the Society before the City Civil Court, Mumbai.  The Forum has already referred to the relevant issue and finding recorded by the City Civil Court on the issue.  Therefore, on the same issue in respect of not obtaining Occupancy Certificate, the same cannot be raised again by seeking resort to an additional remedy under the Consumer Protection Act, 1986.  The Forum was justified in making observations accordingly and dismissing the consumer complaint.

For the reasons stated above, we find the appeal is devoid of any substance. 

4.       As such we see that the District Commission dismissed the complaint by noting that a finding has been recorded by the  competent civil court to the effect that members of the complainant society have made encroachments and unauthorized constructions in the building and those unlawful additions are required to be removed and the objectionable built-ups are required to be rectified; in respect of occupancy certificate a finding has been recorded by the civil court that members of the complainant society are responsible for non-issuance of occupancy certificate by the municipal authorities. It accordingly held that separate or contradictory findings cannot be recorded by the forum; the matter has been directly sub