Raghava Estates Ltd vs Vishnupuram Colony , Vgtm Urban Development Authority

THIS revision petition has been filed by the Builder, Raghava Estates Ltd., OP1. The petitioner floated a project by the name of Vishnupuram Colony in which the Members of the complainant/Respondent No. 1, Association acquired individual houses. The Builder was to provide the said colony with all modern facilities like underground drainage, underground electricity, BT roads, temple, shopping complex, canals to drain rain water on both the sides of BT road and developed park. The Builder also collected Rs.200/- per sq.yd from each Member of the Association towards development of the said facilities in all, collected a sum of Rs.55,98,000/-.

THE complainant , Association gave a detailed notice as there were lot of defects in the above said facilities. THE BT roads laid in the colony are of 1/2 (half) inch thickness which show that the roads are for namesake and of sub-standard. THE petitioner was bound to lay 60 ft. road between the First and Second phases but it neither formed 60 ft. road nor left sufficient margins to manifest the 60 ft. road. As a matter of fact, it formed 31 ft. road but left 18 ft. BT road and this is not even in semblance for the road for the remaining 29 ft. THE outline for underground drainage was not yet formed and the Builder did not follow the mandatory Rules and Regulations of the VGTM Urban Development Authority/Respondent No.2. THE complainant, therefore, got issued a recall notice to the VGTM Urban Development Authority, to take necessary action against the Builder. THE Builder did not maintain the level for proper flow of drainage, which resulted in blockage in chambers due to reverse flow, getting stagnated and overflowing into the vacant flats of the colony. It is also alleged that the Builder formed BT roads in March, 2004 and the drainage work continued till March, 2004, half-finished. THE request made by the Complainant to rectify the defects did not ring the bell. The complainant filed a complaint in June, 2005. It calculated the damage for having laid sub-standard BT roads and drainage canal, at Rs.14,400/- and towards the remaining unfinished roads, at Rs.2,00,000/-, repair and maintenance of drainage pipes with proper lineman at Rs.30,000/-. The complaint was filed with the prayer that the Builder should be directed to complete the above works worth Rs.19,40,000/- or in the alternative, to pay the damages to the tune of the said amount along with escalation charges.

The District Forum allowed the complaint in part, directing the petitioner to pay Rs.19,40,000/- to the complainant, within one month and on default, awarded interest @ 7.5% p.a, till the date of the payment, together with cost of Rs.5,000/- and the petitioner would pay 10% in escalation on Rs.19,40,000/- p.a. since it is increasing every year. The complaint against OP No.2 was dismissed.

The State Commission partly accepted the appeal filed by the petitioner. It, however, set aside the escalation charges of 10% which was not prayed for, but rest of the order was affirmed. Aggrieved by that order, the present revision petition has been filed. We have heard the counsel for the petitioner. The learned counsel for the petitioner vehemently argued that the petitioner is a highly reputed company in the Real Estate business. He has given all the facilities. The complaint made by the complainant is false. The case is barred by time. The possession was given in the year 2000 and the complaint was filed in the year 2005.

ARGUMENTS raised by the learned counsel for the petitioner, lack conviction. As a matter of fact, the District Forum had appointed an Executive Engineer, for inspection of the above said colony. His report is of infinite value. He gave the following report:- "1. The width of WBM layer is 6.00 M against 6.00 M specified and is fairly tallying; 2. The width of B.T. layer is varied from 5.35 M to 5.65 M against 6.00 M specified (5.80% to 10.80% less); 3. The thickness W.B.M. layers is varying from 102mm to 125mm against 150mm thick specified (16.7% to 32% less thickness); 3. The thickness of B.T. layer is varying from 20mm to 25mm against 20mm specified and is fairly tallying ".

During the inspection, the Builder was present and he promised that the underground drainage system would be cleaned and made operational and the width of the 30 ft. road would be extended to 60 ft. width. The petitioner was large in promises but short in performances. The complainant also filed estimation report given by Sh. R. Nalini Mohan, Engineer, to the effect that the rectification would cost Rs.19,40,000/-. It is noteworthy that the counsel for the petitioner did not point out that there was any difference between the Agreement, pleadings and the report submitted by the Engineer. She also could not point out that the amenities/facilities provided by the petitioner were in consonance with the provisions of the Agreement. Again, the Commissioner Engineer was cross-examined before the District Forum and nothing of importance has cropped up during his cross-examination. The learned counsel for the petitioner could not find anything to cavil about the judgment of the State Commission. The learned State Commission brushed aside the argument regarding delay in filing the complaint by placing reliance on the judgment in B.Venu Madhav Vs. National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi and Ors, in W.P. No. 30394 of 2011, dated 18.01.2012 reported in CDJ 2012 APHC 421, wherein it was held that "when there is immovable property and the amenities promised by the opposite party were not provided, the National Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time ".

THIS discussion tips the scale in favour of the complainant and, as such, the revision petition filed by the OP, is dismissed.