ARIHANT CORPORATION vs UMED PARK GHATLODIA CO-OPERATIVE HOUSING SOCIETY LTD.

THIS is an appeal filed by the opposite party No. 1 against the order dated 31st May, 1993 passed by the State Consumer Disputes Redressal Commission, Gujarat at Ahmedabad by which it allowed the complaint and ordered the appellant herein to pay Rs. 48,528/- to the complainant for the damage suffered in discharging the filthy water and also to pay Rs. 2,000/- every month from the date of the complaint till two more soak wells are constructed. Feeling aggrieved against that order Shri J.C. Patel, erstwhile partner of opposite party No. 1 which has been dissolved w.e.f March 31,1991 has filed this appeal on behalf of the opposite party. No. 1. Opposite party No. 2 Chief Executive, Ahmedabad Urban Development Authority appears to be proforma party.

THE facts as gathered from the record are that the complainant (respondent herein) is a Housing Society registered under Gujarat Cooperative Societies Act, 1961. Opposite party No. 1 was a partnership-firm which was the organiser of several housing schemes. THE present scheme viz., Umed Park Ghatlodia Co-operative Housing Scheme was organised and was offered by the opposite party No. 1 to the members of the public. THE organiser enrolled members, recovered deposits and thereafter by instalment recovered full amount, organised Society, got it registered. All the houses constructed were delivered to the members who were also required to become members of the Co-operative Society. THE case of the complainant Society is that opposite party No. 1 had made representation to the members of the Society that houses would be constructed in accordance with the terms and conditions of Ahmedabad Urban Development Authority (for short AUDA) and all the essential amenities such as water supply, soak wells for discharge of drainage and electricity would be provided as per the regulations of AUDA and that the requisite permission from the concerned authorities would be obtained by the organisers for the purpose of constructing the houses for the members of the complainant-Society. It was the further case of the complainant that relying upon the representation made by the opposite party No. 1,164 persons had enrolled themselves as members of the said Society and they have been occupying the houses allotted to them from the date the possession was handed over to the respective member. The opposite party No. 1 had also made representation that AUDA had approved the plans and granted permission. A written agreement appears to have been entered into between the Society and opposite party No. 1 wherein the organisers had agreed to render the services to the members of the Society, till the management was taken over by the Society, for supply of water, discharge of drainage water and supply of electricity to the members of the Society. Opposite party No. 1 had agreed to provide such number of soak wells and common plot as may be prescribed by AUDA while granting permission for constructing the houses of the type proposed to be constructed by the organisers. These houses have been constructed on the land bearing No. S.N. 56 of Village Ghatlodia, Taluka City District Ahmedabad for the members of the Society which is situated outside the limits of Ahmedabad Municipal Corporation and therefore opposite party No. 2 AUDA is the authority competent to grant permission and regulate the construction of houses and other buildings in the area within its jurisdiction. Till June, 1991 the management of the Society was with the organisers who were providing the essential amenities of water supply, electricity etc. In that month the management of the Society was handed over to the Managing Committee of the Co-operative Society. Opposite party No. 1 had assured Managing Committee that construction of all the tenements was in accordance with the plans as approved by AUDA and all the amenities such as soak wells, tube wells, common plot etc. were provided as per the regulations of AUDA. The Organisers further undertook to remedy at their own costs any difficulty which might arises later on. Relying upon the above assurance the Managing Committee had taken over the management of the Co-opertive Society from the Organisers. After taking over the management by the Managing Committee it was found that the polluted water of the drainage was overflowing from the chambers constructed by the Organisers and there were only two soak wells for the discharge of drainage for all the 164 tenements and those were never cleaned during the course of these years. The grievance of the complainant is that the Organisers were bound to provide soak wells in the ratio of 1 : 10 i.e., one soak well for 10 tenements. As the organisers have committed breach of regulations of AUDA in providing only two soak wells for 164 tenements the members are suffering great hardship, health hazard, mental strain etc. as the discharged water goes to the open land creating several problems. The water of the soak wells has to be removed and discharged at a very high recurring costs and thus there is deficiency in service for which the Organisers are responsible.

The complainant has also alleged that the scheme of the Organisers was got sanctioned under Section 21 of the Urban Land (Ceiling and Regulations) Act, 1976 which was meant for the members of the weaker sections of the society. The value of the land fixed by the Competent Authority was Rs. 10/- per sq. mt. while the Organisers have charged from the members the value of the land at the rate of Rs. 250/- per sq. mt. The complainant therefore demanded refund of the money over-charged by the Organisers. Other grievance of the complainant Society was that the opposite party No. 1 had not obtained Building Use Permission from AUDA and on that account the complainant have suffered loss.

ON being noticed the opposite party contested the complaint. Preliminary objection was taken to the effect that the opposite party No. 1 was neither supplying the goods nor rendering any service to the consumers. The complainants have not defined in their complaint any specific grievance but have stated general grievances. The Society was formed under Section 21 of the above referred Act in respect of the land in question in favour of the persons named in the counter (herein referred to as land owners) who had given power of attorney to opposite party No. 1 for the purpose of developing the land. While giving possession of the dwelling units the members of the complainant Society signed an agreement. The terms and conditions of the said agreement were agreed upon by the members of the complainant Society. While constructing the tenements, opposite party No. 1 had submitted a plan to AUDA for sanction as per Rules. The AUDA approved these plans and thereafter the opposite party No. 1 invited applications for becoming members of the Society. Unfortunately that scheme was not successful and therefore opposite party No. 1 submitted a revised plan. In the revised plan there were about 89 tenements and 144 flats which were approved by the AUDA. Subsequently the members desired to select their tenements as per original plans and therefore opposite party No. 1 constructed the tenements as originally planned. The total number of tenements constructed was 164 and the possession of the said tenements was handed over to the respective member in 1985. There were two soak wells for the members of the Society. While sanctioning the plan there were no Rules and Regulations for construction of soak wells and water drainage facilities and therefore opposite party No. 1 relied upon the Rules and Regulations of the National Building Code and as per the Code two soak wells were constructed for the benefit of the Society. These two soak wells are sufficient as per report of Parshwanath Consultancy Services (which report was annexed with the counter). Another report prepared by Mr. V.P. Thatadar, Consulting Civil Engineer & Structural Designer and Government Registered Valuer also stated that the total absorbing area of soak pits is more than the total absorptive area of soak pit required (This Report was also filed before the State Commission). The opposite party No. 1 has filed an application to AUDA requiring completion certification and Building Use Permission but the same is pending since long. However, as AUDA has already approved the plan as per its byelaws, therefore the complaint regarding approval of plan and Building Rules Permission does not survive. The State Commission vide impugned order held that as far as the value of the land is concerned the Organisers appear to have recovered more amount than the amount fixed by the Competent Authority but such type of grievance can be heard only by the Competent Authority appointed under the above referred Act. The State Commission also remarked that the Organisers had not obtained permission from AUDA for construction of 164 tenements but during the pendency of the complaint the opposite party No. 1 had applied for such permission and the permission has since been granted by AUDA and therefore that grievance of the complainant did not survive. (It may be mentioned here that during the pandency of the complaint the complainant amended the complaint and contended that six soak wells are necessary to cater to the needs of the occupants and that on account of not obtaining the permission of AUDA and other permissions the complainants suffered mental torture and are entitled to damages for the same). The State Commission came to the conclusion that the Organisers had constructed these 164 tenements without prior permission of AUDA and that they have also not obtained Building Rules Permission and recovered more money than permitted under the scheme and that two soak wells constructed by the organisers are not sufficient to discharge the filthy water and to take the filthy water into the land of other persons is also illegal. The construction of two soak wells has created anguish and trouble and the complainants have to spent huge amount for discharging the water from the soak wells every month. In the opinion of the State Commission there should be at least four soak wells. The State Commission felt helpless under the provisions of the Act in directing the Organisers to construct new soak wells. It, therefore, thought fit to award damages for deficiency in service. It opined as follows : "We are, therefore, of the opinion that the complainants are entitled both for, (1) expenses incurred for discharge of water, and (2) for continuous damages till two more soak wells are constructed. They must have suffered mental stress and torture for which adequate compensation should be awarded. That the complainants have spent an amount of Rs. 48,528.50 as per the balance sheet for the year ended 30.6.92 for cleaning the soak wells and discharging the water. The opposite party will, there-fore, pay this amount and will also pay @ Rs. 2,000/- per month from the date of the complaint till the soak wells are constructed."

The State Commission accordingly passed the impugned order. Feeling aggrieved opposite party No. 1 filed this appeal before this Commission.

WE have heard the learned Counsel for the parties and gone through the record. The contention of the appellant is that the 164 tenements were constructed as per the plan approved by the AUDA and there is no deviation in it. The possession of the tenements was handed over to the members in the year 1985-86 and at the time of handing over the possession tripartite agreement was signed between the Society, members and developer. Each member signed possession receipt for the tenement allotted after satisfying himself that there was no defect and work of development and construction was complete in every respect. The partnership-firm of Arihant Corporation was dissolved on and with effect from 31st March, 1991 and all accounts and necessary documents and papers were handed over by the said firm to the office bearers of the Society. No complaint was ever made by the Society or any of its members regarding any deficiency or defect in construction or otherwise. It was further urged that the drainage requirement was made as per the requirements of the AUDA and there were no Rules or Regulations providing any ratio of soak wells. Admittedly two soak wells were made and they were functioning satisfactorily. It is further urged in the written arguments that the maintenance of soak wells has to be done by the occupants and it is not the perpetual duty of the Organisers to maintain the soak wells for indefinite period. Till 31st March, 1991 when all the papers and accounts etc. were handed over to the Society no complaint was made about any deficiency in drainage system or that any amount was required to be spent on cleaning the soak wells. WE are of opinion that the above contention of the appellant has force. The members of the Society occupied the tenements in 1985-86 and it is not the case of the Society that any amount was spent till 31st March, 1991. According to the State Commission only in the balance-sheet ending 30th June, 1992 Rs. 48,528.50 appears to have been spent for cleaning the soak wells and discharging the water. In case the two soak wells are not sufficient for the 164 tenements then it becomes the duty of the occupants to get the soak wells cleaned at regular intervals till those are connected with the sewer. Thus it is difficult to hold that the opposite party No. 1 is guilty of any deficiency. Moreover, vide order dated 20th September, 1995 this Commission asked the AUDA to file a detailed affidavit stating the stand of AUDA on the question as to whether two soak wells that had been constructed by the appellant in the Housing Society''s Colony were adequate for serving 164 houses existing in the colony and also as to whether the two soak wells had been constructed according to the standard requirements of AUDA which was in force at the relevant time and AUDA should furnish inforamation as to whether sewerage lines have now . been laid in the locality and whether there is still a necessity for the soak wells or whether the need stands eliminated by reason of the additional facilities that now have been provided. Shri M.M. Bhaumik, Senior Town Planner, AUDA has filed his affidavit. The relevant portion of his affidavit is as follows : "I say in 1985-86, there were no guidelines regarding number of soak wells for a group of tenements. However, in the above mentioned Society there were two soak wells for drainage and according to the authority, they were sufficient so far as 164 tenements are concerned. I say that the authority has already provided sewer lines from 8.7.95 to the said Society and it is using by the said Society, and now there is no need for any additional soak wells for the said 164 tenements."

Thus according to Mr. Bhaumik the two soak wells constructed by the organisers i.e., opposite party No. 1 were sufficient so far as 164 tenements are concerned. Moreover, now sewer line has been laid which is being utilised by the Society and there is no need for any additional soak well. In the light of the above discussion we hold that the two soak wells provided by the organisers to 164 tenements were sufficient for their needs. Thus there was no deficiency in service on the part of the Organisers.

MOREOVER, as noticed above, the organisers are not under a perpetual duty to have soak wells cleaned. The management was handed over to the Co-operative Society in March, 1991 and now they are responsible for cleaning the soak well if any need arises.

IN view of the above findings, we accept the present appeal, set aside the impugned order of this State Commission and dismiss the complaint with no order as to costs. Appeal allowed.