MANJULABEN R.GAJJAR vs PARSHWANATH ASSOCIATE

THE above are cross appeals against a common order of 16th June, 1992 made by the State Commission of Gujarat in Complaint No. 32 of 1991.

75 COMPLAINANTS and the Opposite Parties arrayed before the State Commission were the same in both the case. The appellants in First Appeal Nos. 357 to 431 of 1992 were the COMPLAINANTS in the Original Petitions before the State Commission. They are the respondents in the cross appeal No. 434 of 1992. In this order they will be referred to as COMPLAINANTS.

IN appeal Nos. 357 to 431 of 1992 the respondents were the opposite parties and they are also the appellants in appeal No. 434 of 1992. They will be referred to as opposite parties of respondents in these appeals.

THE complainants before the State Commission are members of the Laxminagar Noroda Co-operative Housing Society Ltd. which consists of 75 members. All these 75 have lodged the complaints. The opposite pary No. l M/s. Parshwanath Associates is the builder, organiser and constructor of the Housing Colony of the Cooperative Society. The facts as gathered from the order of the State Commission are briefly given below.

THE opposite party No. 2 Shantaben Chimanbhai and Chandrakant Jivabhai were the owners of the plot of land on which the Housing Colony was put up by the Opposite Party builder/ contractor.

THE construction work was undertaken by the contractor under two agreements. The first agreement, which is not dated, may be called the construction agreement (which has been called by the State Commission in its order as "first agreement"). The second agreement is of 11th July, 1988 and has been described as the "allotment agreement" by the State Commission. This original or construction agreement also provided that there would be "common drainage, gutter line for all the tenements......".

THREE types of, tenements described as A, B and C were constructed under this agreement. The prices of these tenements or houses as embolded in the agreement consisted of two components; (a) price for construction including the value of land as determined by the Competent Authority under the Urban Land Ceiling Act and (b) the price for the additions/alterations/excess construction and the material used which is claimed to be different in quality from that envisaged in the price fixed by the Competent Authority under the U.L.C. Act.

THE second agreement or the allotment agreement of 1988 provides for the construction of one sunk well for use of the three societies in that area. The State Commission found that there has been excess revovery of the price of the houses by the builder. According to the order of the State Commission, the land was sold to the society directly by the land owners and the Society had paid the price of the land to the land owners and that the price of the land has also been recovered by the builder in terms of the prices indicated in the construction contract. According to the State Commission, the complainants have paid the price of land twice: once to the owners when the society acquired the land from them and again to the builder as the cost of land is a component in the prices of the houses constructed. It, therefore, held that the complainants were entitled for the refund of the amount paid by them towards the cost of land with interest as indicated in their order.

THE State Commission also found that one sunk well was not adequate and, therefore, there were no proper arrangements for disposal of waste water which is discharged into the waste land and thus creates pollution and environmental problems. According to the State Commission the builders ought to have provided septic tanks for each tenement or some other facility for disposal of dirty water, especially, when they were charging extra amount for additions /alterations and extra work. According to the State Commission, only one sunk well was provided for the use of three societies. The original or the construction agreement only provides that there would be common drainage, gutter line for all the tenements; that there is no mention in the agreement that the drainage would be common with other tenements or other societies. The State Commission observed that the construction plan does not anywhere mention that one sunk well was meant for other societies also; the second or allotment agreement specifically mentions only one sunk well being provided for the use of three societies.

IN short, the case of the complainants was that the builder or organiser had recorded the price of the land along with cost of construction whereas the price of land had been paid by the society directly to the land owners and hence, the builder was bound to deduct the price of the land from the price fixed under the contract. Further the builder or organiser should have provided septic tanks for each tenement or some other facility for disposal of dirty water, the facility acutally provided, viz. one sunk well was not adequate. It was on this basis that the State Commission granted reliefs to the complainants: (a) refund of the amount alleged to have been recovered in excess for the land; and (b) Rs. 1,282/- as damages to each complainant for deficiency in service in regard to disposal of dirty water. In its appeal, the respondent builder has submitted that: ; (i) The possession of the house built under the scheme was given to the members of the society between 1986 to 1988-89; (ii) The construction was made as per the plan approved by the competent authority under the U.L.C. Act; (iii) When the members took possession of the tenements they did not raise any objections or make any complaints. The complaints were filed before the Consumer Forum in January, 1991 only; (iv) The prices of the houses as incorporated in the construction agreement had been accepted by the various members as per the agreement between the members of the housing society and the organiser (builder).

FURTHER , the respondent builder has submitted that though formally, as per the agreement, the cost of the land was paid to owners by the society but actually the funds for this payment were provided by the builders. As such there was no double payment by the members of the society for the land on which the houses were built. With its appeal the builder/respondent has annexed annexure-1 which is purported to show the details about the cost of the plots of land of the different tenements apportioned between the members; that this statement clearly establishes that a patent error has been committed by the State Commission in the order that there was double payment of the cost by the members. No paper marked as annexure-1 is seen in the paper book and presumably it is the Statement at page 38-A.

AS regards the disposal of waste water, the respondent contractor has stated that in 1985 the area in which the housing colonies were built was included within the municipal limits. Proper drainage lines have been laid by the Corporation who have to make adequate provision for disposal of waste water. The organiser builder has made additional provision in the form of a sunk well for all the tenements of all the colonies. From the narration of facts given above, the following points require consideration and which have not been dealt with by in the order of the State Commission: (1) The allotment and possession of houses was made between the period 1986 to 1988-89. In those cases where possession was given three years prior to the date of filing of the complaint, i.e., January, 1991 would the complaints be barred by limitation; (2) If the respondent builder had advanced a loan to the members of the society for paying the price of the land and has now recovered the loan in instalments, can it be said5 that the members of the society have paid the price of land twice? Once to the owner directly and second time to the builder respondent by way of the price of the tenements. It may be mentioned that form the written submission made by the complainant after the hearing was closed before this Commission, it appears that the complainants did receive a loan for purchase of land from the respondent builder. (3) Another way of looking at the problem would be whether the respondent builder had provided loan to the members of the society who have purchased land and if so, has the loan been repaid to the bank along with interest thereon if any, and whether the cost of the land is being recovered in addition as a part of the cost of the tenements by the builder. (4) As regards the proper drainage, the submissions made by the situated builder-respondent that the area in which the colonies were situated was included in the municipal limits in the year 1985, i.e., prior to the date of allotment of the tenements to the members and that thereafter it was the responsibility of the municipality to have made adequate arrangements for disposal of waste water; whatever he has provided by way of sunk well is an additional facilty.

CAN the respondent builder be held responsible for not providing adequate drainage facilities when he was provided a sunk well in terms of the agreement? It may be that this sunk well is not adequate for discharging the waste water but is it deficiency on the part of the respondent builder or on the part of the municipality?

AGAIN if the price fixed in the agreement is higher than the price fixed by the competent authority, have the society members taken the matter before the Competent Authority under the Urban Land Ceiling Act? In fact such an action would have resolved various doubts about the price of the tenements being higher than that fixed by the Competent Authority. In view of what has been stated above, we are of the view that the case requires reconsideration by the State Commission and is, therefore, remanded to it for fresh adjudication in accordance with law. The parties will bear their respective costs in these appeals.