Developer's failure to obtain occupancy certificate creates continuing wrong, refund complaint not time-barred under MOFA

SC held that appellant's complaint against developer for refund of excess municipal taxes due to lack of occupancy certificate was maintainable and not barred by limitation. The court ruled that developer's continuous failure to obtain occupancy certificate constituted a continuing wrong under MOFA obligations, making the cause of action ongoing rather than time-barred. SC found appellant society members were consumers entitled to compensation for deficiency in service, as developer was contractually obligated to provide occupancy certificate. NCDRC's dismissal was overturned, with directions to decide the complaint's merits within three months.

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Issues Involved:
1. Whether the complaint was barred by limitation.
2. Whether the complaint was maintainable under the Consumer Protection Act 1986.
3. Whether the respondent's failure to obtain an occupancy certificate constituted a continuing wrong.
4. Whether the appellant qualifies as a 'consumer' under the Consumer Protection Act 1986.
5. Whether there was a deficiency in service by the respondent.

Detailed Analysis:

1. Whether the complaint was barred by limitation:
The NCDRC held that the complaint was barred by limitation, reasoning that the cause of action arose when the municipal authorities first demanded higher charges, and thus, the complaint should have been filed within two years of this initial demand. However, the appellant argued that the cause of action was of a continuing nature due to the respondent's failure to provide the occupancy certificate, which led to ongoing higher charges. The Supreme Court agreed with the appellant, citing Section 22 of the Limitation Act 1963 and relevant case law, concluding that the continuous failure to obtain the occupancy certificate constituted a continuing wrong. Therefore, the complaint was not barred by limitation.

2. Whether the complaint was maintainable under the Consumer Protection Act 1986:
The NCDRC dismissed the complaint as not maintainable, stating that the appellant was not a 'consumer' under Section 2(1)(d) of the Consumer Protection Act 1986, as the respondent was not the service provider for water or electricity. The Supreme Court disagreed, noting that the failure to obtain an occupancy certificate constitutes a deficiency in service. The appellant, having suffered due to this deficiency, qualifies as a 'consumer' and the complaint is maintainable.

3. Whether the respondent's failure to obtain an occupancy certificate constituted a continuing wrong:
The Supreme Court observed that under Sections 3 and 6 of the MOFA, the promoter (respondent) had an obligation to provide the occupancy certificate and pay relevant charges until the certificate was provided. The respondent's continuous failure to obtain the certificate, resulting in higher taxes and water charges for the appellant, constituted a continuing wrong. This ongoing breach of obligation justified the appellant's claim for damages and negated the limitation argument.

4. Whether the appellant qualifies as a 'consumer' under the Consumer Protection Act 1986:
The Supreme Court referenced Section 2(1)(d) of the Consumer Protection Act, which defines a 'consumer' as a person who avails of any service for consideration. The Court cited precedents where failure to obtain an occupancy certificate was deemed a deficiency in service. The appellant, affected by this deficiency, qualifies as a 'consumer' and is entitled to seek compensation for the resultant higher charges.

5. Whether there was a deficiency in service by the respondent:
The Supreme Court held that the respondent's failure to obtain the occupancy certificate was a clear deficiency in service. This deficiency led to the appellant incurring higher taxes and water charges, which the respondent was liable to compensate. The Court emphasized that the respondent's obligations under the MOFA were not fulfilled, thereby constituting a breach of service.

Conclusion:
The Supreme Court allowed the appeal, overturning the NCDRC's order. It held that the complaint was not barred by limitation, was maintainable under the Consumer Protection Act 1986, and that the respondent's failure to obtain the occupancy certificate constituted a continuing wrong and a deficiency in service. The NCDRC was directed to decide the merits of the dispute within three months, considering the observations made in this judgment. Pending applications were dismissed.

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