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Judgment
This Revision Petition has been filed by the Petitioner/Opposite Party No.3 against the order dated 09.03.2021 in First Appeal No.225/2021.
Petitioner is Opposite Party No.3. Respondents are the Complainants. Opposite Party No.3 entered into a Development Agreement with Opposite Parties Nos.1 & 2 (the owners of the land) for construction of a multi-storied apartment having four floors, known as “Agasatya Residency” Urwastore Cross Road, Ashoknagar Post, Mangaluru. Each floor consisted of four apartments and in the ground floor there were two apartments and shops. Complainants also purchased one apartment in the building. Opposite Party No.3, vide letter dated 02.04.2015 intimated the Complainant that construction of the building was complete in all respect and the apartment is ready for occupation. Opposite Party No.3 also asked the Complainants to take possession of the apartment. Since Opposite Party No.3 also intimated that issuance of completion certificate by the Mangaluru City Corporation would take some time, the Complainants took possession of the apartment but they found that construction of the building was defective and as per specifications mentioned in the brochure. In absence of completion certificate, Opposite Party No.3 obtained temporary water and electricity connection. There was seepage in the walls of bathrooms. Rainwater entered into respective passage causing leakage. Switchboards, doors, locks and main door and other doors were of sub-standard quality. Opposite Party No.3 provided separate electricity meter to the lift, as no generator set was provided. Opposite Party No.3 also failed to make full payment to the company which installed the lift due to which the company refused to give the services. The Complainants were compelled to clear the dues of Rs.40,000/-. Opposite Party No.3 did not clear the water tax of Rs.2,03,774/- due to which the Municipal Corporation disconnected the water connection on 15.11.2016. Complainants also filed police complaint against Opposite Party No.3. It was only after intervention of the Police, Opposite Party No.3 cleared the dues and the water connections of the Complainants were restored. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed Consumer Complaint in the District Forum, Mangalore with following prayer:
“a) To form an Owners Association of Agastya Apartment as per the rules and handover the original documents pertaining to the apartment building to the Association
(This relief valued at) … Rs.1,000/-
b) To set right the free flow of rain water without causing any nuisance to the public.
(This relief valued at) … Rs.1,000/-
c) To provide structural plan in respect of electrical and plumbing to the new appointed Association.
(This relief valued at) … Rs.1000/-
d) To transfer the electricity meters of respective apartments in favour of respective owners
(This relief valued at) … Rs.1,000/-
e) Set right the leakage of water on the top floor and set right the damages caused due to such leakage inside the rooms of all my clients
(This relief is valued at) … Rs.1,000/-
f) To replace the damaged locks, switch boards, doors and other material which is caused damaged due to low quality material.
(This relief valued at) … Rs.1,000/-
g) Remove the obstruction kept in the common area
(This relief valued at) … Rs.1,000/-
h) To provide free excess to the car parking slots
(This relief valued at) … Rs.1,000
To set right the flow of water and drainage in the ground floor of the building
(This relief valued at)…Rs.1,000
j) To hand over the original invoice, warrantee details of generator and lift and also reimburse a sum of Rs.40,000/- paid by my clients towards outstanding bill
(This relief valued at) … Rs.1,000
k) To provide approved blue print of the building to the Association.
(This relief valued at) … Rs.1,000
l) Provide a separate well or bore well as promised.
(This relief valued at) … Rs.1,000
m) To settle the claim of the corporation towards water bill claimed by them for using the water for the construction of the building.
(This relief valued at) … Rs.1,000
n) To settle the claim of the corporation towards water bill claimed by them for using the water for the construction of the building
(This relief valued at) … Rs.1,000
o) To get the completion certificate and also the door number to the complainant apartment, occupancy certificate.
(This relief valued at) … Rs.1,000
p) To refund the money collected from complainants by misrepresentation towards service tax along with 18% interest.
(This relief valued at) … Rs.1,000
q) To pay damages and compensation … Rs.7,00,000/-
r) To pay the cost of the notice … Rs.5,000/-
s) To pay the cost of this proceedings … Rs.
t.) Direct to refund a sum of Rs.1,40,577/-
Payment made towards water charges … Rs.1,40,577/-
u) Direct to pay interest @ 18% for Rs.1,40,577/-
from the d ate of payment till realization …
___________
Total Rs.8,52,884/-
___________
The District Forum after hearing the Learned Counsel for the Parties and perusing the record partly allowed the Complaint and directed the Opposite Parties as follows: -
a) To provide completion certificate from MCC and also door numbers of all the complainants apartments.
b) To form an owners Association of Agastya Apartment as per rules and hand over original documents to association.
c) Set right free flow rain water.
d) To provide structural plan of electrical and plumbing.
e) Provide separate electricity meters of all complainants apartments.
f) Set right the leakage of water on the top floor and set right the damages caused due to leakage inside the rooms.
g) To replace damaged locks, switch boards, door and other materials which are damaged.
h) To remove the obstructions kept in the common area.
i) To provide free excess to the car parking slots.
j) To set right the flow of water and drainage in the ground floor of the building, and
k) To provide approved blue print of the building to the association.
Opposite Party No.1 to 3 are jointly and severally further directed to pay a sum of Rs.1,53,084/- (one lakh fifty three thousand and eighty four only) together with accrued interest @ 10% p.a. from respective dates of Ex. C-15 to Ex. C-19s respectively till realization and also to pay a sum of Rs.5,00,000/- (Five lakhs only) towards compensation and also to pay a sum of Rs.35,000/- (Thirty five thousand only) towards cost and litigation charges including legal notice and Court Commissioner fee incurred by the Complainants.”
Aggrieved by the order of the District Forum, the Opposite Parties preferred First Appeal No.225 of 2011 before the State Commission. The State Commission, vide impugned order dated 09.03.2021, modified the order of the District Forum and observed as follows:
“In this regard, it would be appropriate to observe here that OP Nos. 1 & 2 being the land owners are nothing to do with providing service sought by the complainants, since, OP No.3 being the developer alone has to take the active participation in providing necessary basic amenities and to sort out deficiencies raised by complainants which of course Commission below provided, but, held liability of OP Nos. 1 to 3 namely appellants herein jointly and severally which require to be modified.
Further to observe here under Section 310 (2) (b) of Karnataka Municipal Corporation Act there is a deemed permission. As such it is for the occupants namely complainants as well as OP No.3/the builder joining together to move the Corporation for issuance of completion certificate. In so far as the reliefs granted by Commission below could be maintained with modification. This has to be worked out within three months by appellant No.3/OP No.3. Thus, in such conclusion impugned order stands modified. Ordered accordingly.”
Not satisfied with the order of the State Commission, Opposite Party No.3/Petitioner has filed the instant Revision Petition with the following prayer:
“a) Set aside the order dated 09-03-2021 passed by the Hon’ble Karnataka State Consumer Dispute Redressal Commission in Appeal No.225/2021 and consequently dismiss the complaint filed by the Respondents.
b) Grant such other and further reliefs as this Hon’ble Commission deems fit under the circumstances of the case, in the interest of justice and equity.”
Heard the Learned Counsel for the Petitioner and carefully perused the record. Learned Counsel for the Petitioner submitted that levying of developer charges towards parking, electricity and tax does not constitute deficiency in service. The delay in handing over possession was due to the Complainants, which cannot be attributed to the Petitioner. It was also submitted that delay was caused due to legal impediments such as orders of National Green Tribunal. The Petitioner received the completion certificate in April, 2016. As the Complainants did not appoint office bearers of the Association, the Petitioner was not able to hand over the necessary documents. It was further submitted that for payment of Rs.40,000/- made by the Complainants towards annual maintenance, the Petitioner was not responsible as the Petitioner had handed over the possession of the lift to the apartment owners. Learned Counsel further submitted that for transfer of electricity meter in the names of the apartment owners, it was clearly stated in the sale deed that it shall be the responsibility of the respective flat owners. The Petitioner had already paid the water bill. Learned Counsel also submitted that they, vide application dated 09.08.2016, had already applied for issuance of completion certificate.
Brief facts of the case are that Opposite Party No.3 entered into a Development Agreement with Opposite Parties Nos.1 & 2 (the owners of the land) for construction of a multi-storied apartment having four floors, known as “Agasatya Residency” Urwastore Cross Road, Ashoknagar Post, Mangaluru. Each floor consisted of four apartments and in the ground floor there were two apartments and shops. Complainants also purchased one apartment in the building. Opposite Party No.3, vide letter dated 02.04.2015 intimated the Complainant that construction of the building was complete in all respect and the apartment was ready for occupation. Opposite Party No.3 also asked the Complainant to take delivery of possession of the apartment. In absence of completion certificate, Opposite Party No.3 obtained temporary water and electricity connection. There was seepage in the walls of bathrooms. Rainwater entered into respective passage causing leakage. Switchboards, doors, locks and main door and other doors were of sub-standard quality. Opposite Party No.3 provided separate electricity meter to the lift, as no generator set was provided. Opposite Party No.3 also failed to make full payment to the company which installed the lift due to which the company refused to provide services. The Complainants were compelled to clear the dues of Rs.40,000/-. Opposite Party No.3 had not cleared water tax of Rs.2,03,774/- due to which the Municipal Corporation disconnected the water connection on 15.11.2016. Complainants also filed police complaint against Opposite Party No.3. It was only after intervention of the Police, Opposite Party No.3 cleared the dues and the water connections of the Complainants were restored.
As per clause 17 of the agreement dated 30.06.2014, Opposite Party No.3/Petitioner was required to form an Association and maintain the apartments, which he failed to do in spite of issuance of legal notice dated 24.11.2016 by the Complainants. It is not the case of the Petitioner that he had received the completion certificate. It was only submitted that he had applied for completion certificate, vide application dated 09.08.2016. In the absence of completion certificate, handing over of possession of the apartments to the Complainants in itself constitutes deficiency in service on the part of the Petitioner. In this regard, the District Forum observed: -
“Later, the complainants approached Urva Police against them as per Ex. C-8, during the time also Opposite Party No.1 and 2 made statement as per Ex. C-9 on 20.05.2017 to the said Police wherein they have put their hands on Opposite Party No.3. On 21.05.2017 Opposite Party No.3 also made statement before Police as per Ex-C-10 wherein he admitted that the defects and also ready to rectify the problems.”
From the above, it is clear that the Petitioner himself admitted that there were defects in the apartments and a statement was made before the Police that the defects would be removed. The District Forum also observed that the “Police issued an endorsement as Ex.C-11 to the Complainants and Ex.C-12 of MCC dated 07.06.2017 which clearly mentioned that the Opposite Parties have still due of Rs.1,01,8884/-. But in the case on hand, the said amount was paid by the Complainants as per Ex.C-19 on 09.06.2017. Therefore, that amount required to be refunded by the Opposite Parties to the Complainants.” Alongwith the Complaint, the Complainants also filed the bills for the amount incurred for repair of the lift etc. as Ex.C-15 to C-18, which is not denied by the Petitioner.
Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon’ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 has held as under: -
“13. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”
Same principle has been reiterated by Hon’ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon’ble Supreme Court has held as under:-
“23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
11 Both the Fora below allowed the Consumer Complaint against the Petitioner/Opposite Party No.3. We find no reason to interfere with the concurrent findings of both the Fora below. Petitioner failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in the exercise of revisional jurisdiction. Revision Petition is accordingly dismissed.