M/S ANSAL HOUSING & CONSTRUCTION LTD vs M/S HIGH POINTS EXPEDITIONS & TOURS

Appellant/Opposite Party being aggrieved by impugned order dated 09.09.2008 passed by the State Commission, Delhi (for short, ''State Commission'')has filed this appeal under Section 19(b)of the Consumer Protection Act, 1986(for short, ''Act'').

Respondent/Complainant''s case is, that appellant published an advertisement and issued brochures making an offer to the consumers that they are the promoter of "Golden Heights-an estate like none before". Respondent being lured by the advertisement brochure and personal representations made by the appellant, booked two adjacent Orchards designated as D-70 and D-72 in the proposed Golden Heights Scheme near Sohna, Gurgaon (Haryana) and accordingly made payment of Rs.10,01,610/- including stamp duty and other charges to the appellant. The appellant allotted aforesaid farm/orchard in respondent''s name and handed over the physical possession alongwith possession letter and allotment letter of the orchard NO.D-70 However, appellant did not execute the sale deed of orchard NO.D-70 .

It is alleged by the respondent that appellant supplied an average of 2,000 to 2,500 liters of water per orchard. However, at times for several weeks during the height of summer in May and June, 1998, 1999 and 2000, the water supply has been zero liter per day due to break down of pumps or due to erratic electricity supply of HSEB. Respondent requested the appellant to provide adequate supply of water to save the greenery of the orchard, but appellant failed to provide the same. Appellant had installed only one tube well of 2-inch bore for the water supply to 10 orchards, including those of respondent. The said tube well provides upto 12,000 liters of water per hour till January, 2001 and now said tube well is non-functional since long due to break down. Even till January 2001, if it ran for 24 hours continuously it could have barely provided the needs of 10 orchards at the rate of 32,000 liters per orchards per day. However, appellant has been sending bills at very high rates for water supply to the appellant and has arbitrarily increased the rate from Rs.250/- per acre per month to Rs.450/- per acre per month.

On 16.05.2001, appellant disconnected the water connection of the respondent, without being heard and without issuing any notice. This act of the appellant, is illegal, unlawful, arbitrary and against the law of land. In addition, appellant forcefully cut the electricity supply of the respondent over which they have no administrative control, since it is provided directly by HSEB and bills are being paid to HSEB directly by the respondent. The appellant is issuing bill to the respondent, in the name of maintenance and service charges, such as security cover, maintenance of road and maintenance of sidewalks etc.

Hence, respondent filed a consumer complaint praying that following orders/directions be passed in his favour and against the appellant; (i) t o immediate restoration of electricity connection of the complainant''s farm /orchard No.D-70 being the essential service;

(ii) to immediate restoration of water supply, being the essential services, otherwise, the shape of orchards will be converted into the desert;

(iii) to immediate execute the Sale Deed of the said farm No.D-70 in favour of the complainant;

(iv) to installation of enough tube-wells, pumps, pipe lines and diesel-run-generators to enable supply of 32,000 liters per day per orchard with or without HSEB electricity and further order to issue the bills at the at the rate of bills supplied by the Irrigation Department of Haryana State;

(v) to provide immediate adequate security services at all points around the estate with alarm and communication system to offer adequate resistance to intruders and quickly summoning the police from nearest police post;

(vi) to provide long overdue roads with further delay;

(vii) to compensate Rs.18,61,964/- to the complainant;

(viii) To provide interest pendentlite @ 24% per annum to the complainant;

(ix) to provide the cost of the proceedings to the complainant;

In its written statement appellant averred, that respondent has also filed a civil suit before the Civil Court at Gurgaon, on the same cause of action against the appellant and Haryana State Electricity Board. The complainant as an executive member of the Association of the allottees of Golden Height Project, has also filed a complaint before the State Commission, being Case No.C-329/ 2001, titled as Golden Heights Farm Owners Association Versus M/s Ansal Housing & Construction Ltd . M/s High Point Expeditions & Tours also joined as one of the complainants in the said complaint before the State Commission. Therefore, the members of alleged association are not similarly placed and not having similar interest which can be adjudicated by way of present complaint. The allottees of Golden Height Project applied for allotment of Farmland in the project developed by the appellant. The appellant accepted the application and made allotment of land on the terms and conditions contained in the allotment letter, which was duly signed and executed by the allottee of the said project. The terms and conditions envisaged, that the maintenance, upkeep and operation of the common services facilities would be entrusted to M/s.Sunrise Management Pvt. Ltd. which include the maintenance of road, water supply, provision of electricity, including road and security. These services were agreed to be provided subject to the condition, that each and every allottees shall pay the maintenance charges as demanded and fixed by the said maintenance agency. As per statement of account as on 11.03.2003, the allottees have to pay a sum of Rs.8,18,0225/- towards the maintenance charges. The respondent has not impleaded the said maintenance company as a party to the present complaint with malafide intention and to take undue advantage by concealing the material facts. The allottees are neither paying the maintenance charges nor have paid arrears. Therefore, in the absence of sufficient membership of the club and finances, the services like swimming pool, health center with steam and sauna bath badminton and tennis courts, golf greens, gymnasium and library could not be provided at present. The appellant has provided club land and building at the Golden Height Project, which could not be made functional due to the aforesaid reasons.

It is further stated, that the appellant has provided mettled road at the Golden Height Project with access to each and every farm and electricity. The appellant has made provision for adequate water, ground leveling, and fencing at the Golden Height Project with access to each and every farm.

It is further stated, that water shall be provided from Tube wells/overhead tanks or both or from any other means the company may deem fit. The area covered by the aforementioned

schemes is a hilly terrain. The charges for the water used will have to be paid by the buyer in accordance with the rate fixed by the Developers or its nominees. But in case, the buyer needs more water supply and finds the developers supply inadequate, then arrangements for augmenting the increased supply has to be made by the buyer individually or jointly at their own cost. In the later event, no claims of any kind shall be made by the buyer against the developers or its nominees.

It is denied, that appellant has undertaken to provide adequate quantity of water. The maintaining agency besides supplying of 5,000 litre of water per day through tube well, has also made supply through tankers to each allottee in case of need. However, there has been shortage of water supply which was due to breakdown of electricity supply by Haryana State Electricity supply Board and sometime due to breakdown of water pumps. It was due to the reasons, which are beyond the control of the appellant. The maintenance agency has increased rates from Rs.250/- per acre per month for supply of water to Rs.450/- per acre per month, due to the increase in electricity tariff wages and maintenance cost. The appellant is supplying agreed quantity of water from one tube well and tankers.

It is further stated, that in accordance with the terms and condition contained in the agreement, the allottees are required to make timely payments of the maintenance charges and in default thereof, the maintenance agency has every right to disconnect the water supply. The supply is disconnected by the maintaining agency as a last resort only, where the allottee failed to clear the arrears of maintenance charges, inspite of demand notice issued to them. The appellant is not issuing any bill in respect of maintenance and service charges to the respondent. It is M/s Sunrise Estate & Management P.Ltd, the maintenance agency nominated under the agreement, which is issuing the bills to the respondent. The maintenance agency is providing adequate securities at all the security points inspite of financial difficulties. If the arrears of maintenance are cleared by the respondent, the maintaining agency shall be instructed by the appellant to carry out repairs of the roads. The respondent has not suffered any loss either pecuniary or non-pecuniary on account of any acts and deed of the appellant. Hence, respondent is not entitled to any of the said relief.

The state Commission vide impugned order, allowed the complaint and awarded a compensation of Rs.25,000/- besides Rs.5,000/- cost of litigation to the respondent. In addition, appellant was directed to execute the Sale Deed of Farm/Orchard No.D-70 in the name of respondent and also to connect tube-wells, pump lines through diesel run generators, so that adequate water supply is maintained.

Being aggrieved, appellant has filed this appeal.

Notice of appeal was issued to the respondent. However, respondent did not appear despite being duly served by Speed Post. Therefore, vide order dated 27.10.2014, respondent was proceeded exparte.

We have heard the learned counsel for the appellant and gone through the record.

It is submitted by learned counsel for the appellant, that respondent had also filed civil suit on the same cause of action before Civil Court besides another consumer complaint filed by group of complainants including the present respondent, bearing Complaint No.C-329 of 2001 before the State Commission. As such, present complaint is not maintainable.

It is further submitted, that as per the allotment letter, charges for water uses are to be paid by the buyer in accordance with the rates fixed by the developer. In case, buyer needed more water supply then he has to pay for the same. It is the respondent who has failed to make the payment as per the agreed terms towards the maintenance charges, water supply etc. It is also submitted, that it was the duty of M/s.Sunrise Management Pvt.Ltd.to provide necessary facilities and this Company was a necessary party. Since, respondent has not impleaded this Company as a party, consumer complaint is liable to be dismissed on this short ground alone.

The State Commission, while allowing the complaint in its impugned order observed; " 9. The tenor of the OP for non-supply of water and not restoring the electricity connection is that it was M/s Sunrise Management Pvt. Ltd. who was engaged for maintenance, upkeep and operation of the common services facilities which include maintenance of road, water supply, provision of electricity, and security, who was not arrayed as a necessary party.

In our view this plea is not available as the direct contract of the complainant was with the OP. But in the process the OP had availed services of some private maintenance agency and the complainant should have been made to enter into that agreement. OP is, therefore, liable for any acts of omission or commission and deficiency on the part of the said maintenance agency. According to the complainant besides supplying 5000 litres of water per day through tube well has also made supply through tankers to each allottee in case of need. However, the OP admitted shortage of supply of water which due to break down of electricity supply and some times due to break down of water pumps which were beyond the control of OP.

We do not agree with this as the maintenance agency appointed by the OP has been increasing rate for water supply from Rs.250/- to Rs.450/- per acre per month without supplying adequate quantity of water. If there was shortage of water supply due to some break down of electricity or water pump it was incumbent upon the OP to make up the shortage. It appears that there was acute shortage of water supply due to break down of electricity and also due to inadequate number of tube wells and bore wells etc. OP was required to make requisite arrangement for electricity through generators.

Complainant also alleged that it made payment of Rs.10,01,610/-including stamp duty and other charges to the OP and allotted the farm/orchard in the name of the complainant and also handed over physical possession but did not execute the sale deed. The OP has not provided any reason as to why sale deed has not been executed.

The word ''deficiency'' as defined by section 2(1) (g) of the Consumer Protection Act 1986, means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

For the aforesaid deficiencies on the part of the OP we deem that compensation of Rs.25,000/- besides Rs.5,000/- as cost of litigation shall meet the ends of justice and also with the direction to the OP to execute the Sale Deed of Farm/ Orchard No. D-70 in the name of the complainant and also connect tube wells, pump pipe lines through diesel run generators so that adequate water supply is maintained ."

It is an admitted fact, that Orchard in question was allotted by the appellant to the respondent. There is nothing on record to show that respondent had made any maintenance agreement with M/s.Sunrise Management Pvt.Ltd. Thus, admittedly there was no privity of contract between the respondent and M/s. Sunrise Management Pvt. Ltd.

It is the duty of the appellant, to provide all the necessary maintenance to the respondent. The State Commission in this regard has rightly observed, that it is the appellant who is liable for any act of omission or commission and deficiency on the part of the said maintenance agency. Thus, deficiency on the part of the appellant, is writ large in this case.

Hence, we do not find any infirmity or illegality in the well-reasoned order passed by the State Commission. The State Commission has not committed any jurisdictional error in allowing the complaint of the respondent. The present appeal being without any legal merit, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).

Appellant is directed to deposit the cost by way of demand draft in the name of "Consumer Legal Aid Account" of this Commission within four weeks from today.

In case, appellant fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.

List on 28 August, 2015 for compliance. th