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Judgment
Subhash Chandra, Member
This complaint under Section 12 & 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) has been filed alleging deficiency in service in providing the promised amenities and facilities in the complex constructed by the opposite parties on Plot Nos. 2, 3, 4 & 5, Kanchipuram, Near Basant Vihar, Bhilwara, Rajasthan known as Navkar Residency – I (Tower-I) and Navkar Residency – II (Tower-II). The complainant was not pursued under Section 12 (1) (c) of the Act and has accordingly been heard under Section 21. Even after last opportunity being provided on 11.10.2022 to the opposite parties to appear in the matter and to present their case, none appeared on 14.12.2022 and were accordingly proceeded ex-parte.
The facts of the case, in brief as stated by the complainant, are that the complainant is an Association of the owners of 32 flats in Navkar Residency – I and Navkar Residencey – II which were the flats developed by the opposite parties no. 1 & 2. The flats were sold by the opposite parties through registered sale deeds in favour of the members of the complainant association. The complainant association is a duly registered society with the Registrar of Societies under the Rajasthan Societies Registration Act, 1958. It is stated that the opposite parties have not provided various amenities and facilities specifically mentioned in their brochure as well as in the approved sanctioned plan at the time of booking to the members of the complainant association. These include facilities of CCTV camera security, E-PABX facility, Fire Fighting arrangements, rain water harvesting system, indoor games room, open children’s play area, health club and jogging track. Although sale deeds had been executed and physical possession handed over, no possession letters have been given to the buyers even after receiving the full amount of sale consideration. It is stated that the construction of the flats was defective and despite assurances that the work would be completed as per the approved plan of the Urban Improvement Trust, Bhilwara, the opposite parties had failed to install the rain harvesting system, solar energy equipments and did not make the flats earthquake resistant. Covered car parking facility measuring 269.29 sq. mts. in Tower – I as per the approved plan was not provided and 14 small rooms in the said area were constructed which were sold by the opposite parties for Rs.1 lakh each without issuing any sale letter/receipt. The ramp for going to the basement in Navkar Residency I was also not constructed. It is also alleged that in Navkar Residency II the opposite party sold 291.38 sq. mts. of covered parking area for commercial purposes. It is further alleged that due to water logging, members of the complainant association are unable to use the lift and the continuous seepage of ground water puts the foundation of both the towers at risk. The complainant states that the opposite parties did not get R.C.C. or water proofing done in the basement of both the towers despite several requests. It is also alleged that the opposite parties have illegally drawn electricity from the electricity meters of the members of the association for the office and in the basement of Navkar Residencey I which was stopped only after issuance of a legal notice dated 10.11.2012. The quality of construction is stated to be inferior which causes seepage of water and water logging due to a poor drainage system. Water supply has also not been provided by the PHED, Bhilwara and instead it is provided from a tube well. This is despite having collected Rs.25,000/- from each member of the complainant association towards maintenance deposit as per the Agreement to Sell. All maintenance, security and up keeping facilities are stated to have been stopped w.e.f. 01.02.2012. The maintenance deposit collected has also not been returned to the complainant association. It is stated that the complainants engaged the services of M/s Apex Engineers & Associates, Bhilwara to evaluate cost for completion of unfinished works and repairs which was estimated at Rs.57,77,000/- based on the Schedule of Rates of the State Government. The cost of the installation of Fire Fighting Hydrant System was also estimated at Rs.5,50,335/-. The provisional fee paid to the engineers was Rs.7,000/- and Rs.2,000/- respectively. The complainants are before this Commission with the following prayer:
a. to rectify the defects as mentioned in the present complaint and carry out repairs as per Annexure 11 in both the residential towers of Navkar Residency, Kanchipuram, Near Basant Vihar, Bhilwara - 311001, Rajasthan to the satisfaction of the members of the complainant association and if the opposite parties fail to comply the same then the opposite parties be directed to pay Rs.57,77,000/- to the complainant association towards repairs as per Annexure-11,
b. to install Fire Fighting Hydrant System as per Annexure-12 in both the residential towers of Navkar Residency, Kanchipuram, Near Basant Vihar, Bhilwara - 311001, Rajasthan and if the opposite parties fail to comply the same then the opposite parties be directed to pay Rs.5,50,335/- to the complainant association towards installation of the Fire Fighting Hydrant System as per Annexure - 12,
c. to pay Rs.49,00,000/- to the complainant association which amount the opposite parties illegally collected from the complainant association by illegally constructing and selling small rooms at the parking place and by illegally collecting the amount for parking without properly providing the same,
d. to pay Rs.9,75,000/- to the complainant association towards maintenance deposit which amount the opposite parties have illegally detained to pay Rs.9,000/- to the complainant association towards the amount spent by the complainant association for the inspection and calculation of estimation provided in Annexures - 11 and 12,
e. to pay 50,00,000/- as compensation for mental pain and harassment caused to the members of the complainant association,
f. to pay 1,35,000/- to the complainant association towards litigation expenses incurred by the complainant association and
g. any other relief the Hon'ble Commission deems fit and proper may also be granted in favour of the complainant and against the opposite parties.
The complaint was resisted by the opposite parties by way of written arguments. Parties also led their evidence.
I have heard the learned counsel for the complainant who submitted that his written submission may be treated as final arguments. Reply and affidavit of evidence filed by the opposite parties have been considered as their final submissions.
The opposite parties have denied the allegations and stated that the amenities promised in the brochure at the time of the sale of flats have been provided to the residents of Navkar Residency I & II. They submitted that swimming pool, indoor badminton court, health club, etc. are available and functional in the complex as mentioned in the brochure. It is also submitted that though the sale deed itself mentioned that possession has been delivered, separate possession letters have been delivered to allottees who sought the same. Opposite party has denied all allegations regarding poor quality of construction and use of substandard material. The opposite parties also deny the allegation that rainwater harvesting system is not provided. They also state that the buildings are earthquake resistant and that parking facility as per approved and sanctioned plans has also been provided to the allottees. Some areas of the basements have been transferred to flat owners only against consideration exclusively for the purpose of storage and not for any commercial activities. As per the opposite parties, the complainants have made wrong and incorrect averments. It is strongly denied that there is any illegal or unauthorized construction and sale in the buildings in violation of terms. As per opposite party at times due to increase in the ground water level, the ground water seeps in and opposite party takes quick action in case of any water logging to prevent spread of any disease. According to opposite parties, incorrect and false allegations have been levelled by the complainant against them which they deny and it is accordingly submitted that the complaint be dismissed.
From the foregoing it is evident that although the parties have executed the sale deed and handed over possession to the members of the complainant association, it has not handed over possession letters to all of them. No document has been brought on record to show that the maintenance fund that was created by collecting Rs.25,000/- each from the members of the association have been transferred to the complainant association which is a registered society under the Rajasthan Societies Act. The complainant association has pleaded for undertaking the rectification of defects by the opposite parties and to install a fire fighting Hydrant System and to pay Rs.49 lakhs to the complainant association which was collected by the opposite parties by constructing and selling small rooms in the placed designated for parking in the two towers.
The opposite parties have not denied that a sum of Rs.25,000/- for each of the allottees of the two towers have been collected towards maintenance fund. The correct approach would have been for the opposite party to hand over the responsibility of maintenance of two towers along with maintenance related fund to them unless there was an agreement that the maintenance would be undertaken by the opposite parties. No such document has been brought on record by either of the parties. No details of audited accounts of this fund have also been brought on record by the opposite party. It is, therefore, clear that the maintenance of the building which was being done by the opposite party was not fully undertaken by them. There is, therefore, no justifiable reason for the maintenance fund collected to be retained with the opposite parties.
As regards the construction of the rooms in the area designated for covering parking, the opposite party no. 1 is enjoined by law to act as per the approved building plan by the local authority i.e. Urban Improvement Trust, Bhilwara. Any violation of the building plan would render it liable to penalties and would need to be rectified at its cost to conform to the approved building plan. As per the building plan submitted by the complainant association, there is no provision for construction of rooms in the basement and, therefore, it is apparent that such construction is without approval of the concerned local authority. The opposite party is liable to rectify the same at its cost.
It is not denied by the opposite parties that possession letters have not been issued to all the members of the complainant association except those members who asked for it. There is, therefore an admission of deficiency in service by the opposite parties to this extent insofar as it relates to members of the complainant association who have not been provided such letters. The opposite party no. 1 is legally obligated to provide the same having collected the full sale consideration and having executed sale deeds at the time of handing over possession of the flats.
In view of the foregoing, it is manifest that the opposite parties have been deficient in service and are also guilty of unfair trade practice. This complaint is, therefore, allowed with the following directions:
(i) The opposite parties shall provide the possession letters to the allottees of Navkar Residency I & II;
(ii) The opposite parties shall also transfer over an amount of Rs.9,75,000/- collected @ Rs.25,000/- from 35 members towards the maintenance fund to the complainant association for maintenance of the two buildings.
(iii) The opposite parties shall restore the covered parking area as approved in the building plan by the Urban Improvement Trust, Bhilwara at its cost.
(iv) The opposite parties shall also pay a compensation of Rs.25,000/- to each of the allottees within two months for mental agony and harassment.
(v) This order shall be complied within eight weeks failing which the opposite party shall be liable to pay 9% interest from the date of this order till the date of realization.
The Consumer Complaint is disposed off with this order.