Satish Lalji Jaiswal & 19 Ors vs Proview Constructions Ltd

Heard Mr. Atul Kumar, Advocate, for the complainants and Mr. T.A. Francis, Advocate, for the opposite party.

20 home buyers of the opposite party have filed above complaint, as a class action complaint, for directing the opposite party to pay (i) Rs.32190000/- to the complainants towards not providing various amenities; (ii) such sum as may be determined by the Commission for loss suffered by large number of home buyers of the opposite party; (iii) costs of the litigation; and (iv) any other relief which is deemed fit and proper, in the facts and circumstances of the case.

The complainants filed an application under Section 12(1)(c) of the Consumer Protection Act, 1986, for grant of leave to file the complaint in representative capacity, which was allowed on 03.08.2017 and permission to file the complaint in representative capacity was granted. In compliance of the order dated 03.08.2017, the notices were published in newspapers and proof of publication has been filed by the complainants. The complainants filed another application for condoning the delay in filing the complaint on 05.06.2017. Since in some of the cases sale deed were executed in the year 2012, but the deficiency alleged by the complainants in the amenities and facilities are continuous wrong. As such delay in filing of the complaint is condoned and the complaint is treated within time.

The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and doing business of development and construction of multi-storey buildings. After taking permission/sanction from Gram Panchayat, the opposite party constructed 507 flats and 10 shops at village Nimgaon Korhale, Post Shirdi, Tal Rahata, District Ahmednagar and obtained completion certificate on 25.02.2011. Allured with amenities and facilities as declared by the opposite party, the complainants apurchased the flats during 2010-2016 from the opposite party in above project. The opposite party sold about 10 shops and 250 flats in this project. Although the project was completed in February, 2011 but maintenance and administration were still in the hand of the opposite party, despite forming Cooperative Housing Society by the home buyers, it continued to provide services. The opposite party issued maintenance bill to the complainants from November, 2013 to June, 2015. The opposite party collected Rs.20000/- for installation of separate electric meter, Rs.20000/- for providing power backup, Rs.10000/- for drinking water connection, Rs.40000/- for lift, Rs.37500/-, for drainage and Rs.50000/- for road connection from each home buyers but these amenities have not been provided by the opposite party. The opposite party got installed one electricity meter in its name and few electricity meters in the names of home buyers. From that electricity meters, the power is being distributed to the home buyers and the bills are being realized by the opposite party. In spite of charging of Rs.20000/- from per home buyers, the opposite party has not provided the power backup system. Internal electrification work in the project is too poor inasmuch as in Block B and C no earthing has been provided. The opposite party had not provided drinking water connection to any of the home buyers by direct connection to their flats relating to water supply rather the opposite party is providing water through tanker and installed one RO system at ground floor level for drinking purpose. The opposite party has constructed 7 wings in this project, but only 2 lifts are functional in 2 wings and in other wings, lifts are not provided. The opposite party has constructed septic tank for a huge complex of 507 flats and 10 shops instead of providing drainage system connected with sewage pipeline. The opposite party charged from each home buyers Rs.350000/- for Sai Vatka in the area of 740 sq.ft. and Rs.250000/- for Sia Suman in the area of 525 sq.ft., but opposite party has made a very cheap furnishing using China make furniture, plumbing, electricity and other appliances. The opposite party has assured to the flat buyers to install water softener plant to take care of hard water problem and prevent damage to plumbing work, but neglected that work, due to which whole plumbing work and pipes gets frequently blocked and the flat purchasers have faced a lot of hardship and have to incur money to clear the blockage frequently. The opposite party promised to provide well equipped German modular kitchen but no water connection has been provided in the kitchen sink/basin in spite of collecting money for a furnished flats and Rs.20000/- has been charged for kitchen appliance from each flat buyers. Although 250 flats and 10 shops have been sold, but the opposite party did not take any step to form Cooperative Housing Society of the home buyers despite the demand of the complainants and other home buyers. Ultimately the home buyers themselves formed Housing Cooperative Society and get it registered with the Registrar Cooperative Society, but the opposite party challenged the order of registration before appellate authority. The opposite party has collected IFMS security deposits from Rs.15000/- to Rs.20000/- from each home buyer but not furnished any account to the complainants in respect of expenses for maintenance. The opposite party has also promised to provide club membership, 24 hours power backup, restaurant and open air café facility, but have failed to provide these facilities. The opposite party has not provided excess road and road light to the project in dispute. In the sale deed, the area has been mentioned as 68.77 sq.mtrs., but actual area on the spot is 56.53 sq.mtrs. for Sai Vatika. In the sale deed flats Sai Suman apartment area has been mentioned as 48.79 sq.mtrs. but actual area is 43.25 sq.mtrs. Plot area on which the building has been constructed by the opposite party is 10000 sq.mtrs. As per law, the opposite party is entitled to construct upto 1.20 FSI by acquiring 0.2 FSI by paying extra premium charge, but the opposite party has constructed FSI 3.11 inasmuch as built up area is 31100.70 sq.mtrs. Additional FSI is illegal. The opposite party has constructed unauthorized structure as F block although in sanctioned plan only A, B, C, D, G, I blocks are mentioned. The sanctioned plan shows that parking space, but the parking space has been illegally converted into unauthorised swimming pool. Although in sanctioned plan the place for swimming pool has not been shown. The complainants gave number of notices to the opposite party in respect of deficiency in service as well as unfair trade practice, but no reply has been given by the opposite party. Then this complaint was filed on 11.11.2016 and amended complaint on 27.06.2017.

The opposite party filed its written reply to the amended complaint on 25.05.2018. The opposite party has stated that the sale deeds were executed in favour of the complainants in the year 2011 to 2014 except complainant Amit Ashok Gawhane, who has obtained sale deed on 01.07.2016. Total 507 flats and 10 shops were constructed by the opposite party out of which 250 flats were sold and remaining flats are unsold till today. 250 flats which have been sold are in Block A, Block B and Block-C. In Block-C, only 8 flats have been sold. Out of 10 shops, only one shop has been sold. Over 60% flats are still unsold, as such, under the law the opposite party was not able to form Cooperative Housing Society of the flat owners. Formation of Cooperative Housing Society was found was not in accordance with law by the appellate authority and registration was set aside by order dated 17.05.2016. Most of the home buyers are followers of Sai Baba of Shirdi. They used to visit and live in flat occasionally, as such, they are not willingly to take separate electricity meter to their flats. After the sale deed, house tax is payable to Gram Panchyat, who in turn used to issue “No Objection Certificate” (NOC) for installation of electricity meter. As house tax of various home buyers are due as such the opposite party is not able to apply for separate electricity meter for them. The allottees, who used to live occasionally for 7 to 20 days in a year, are saving them from high electricity charges by taking power connection through the meter of the opposite party. Since most of the residents occasionally use to live, they are not giving maintenance charges also as such the opposite party has not engaged any maintenance agency. Earthing work of electricity has been completed in all the blocks which are still unsold. The opposite party is providing electricity backup through 63 KVA generator which is sufficient to bear the load of present occupants. The opposite party is providing potable water to all the flats. RO purification plant at the ground floor has been installed in addition to the water connection in the flat. The lifts in the sold blocks are functional. The complainants and other home buyers are not giving the maintenance charges of the lifts. No municipal sewerage system is lying in the rural area, where the project is situated as such, the opposite party has installed a sewerage treatment plan at the project which is functional. The furniture and fittings at Sai Vatika and Sai Suman were of good quality and the allegation that it was of poor quality, has been denied. The plumbing pipes get blocked as it are used for 10 to 20 days in whole year. The kitchens and internal fittings are of international quality modular kitchen and as per specification made in brochure. Since 2012 the kitchen are also occasionally used for 10 to 20 days in a year as such the complaint is being made that it were not of good quality. Kitchen appliances have been installed as per choice of the home buyers.  After using so many years they are making their complaint in this respect. Few home buyers, who want to jerk the project, have malafide this complaint. Entire infrastructure of club and restaurant has been made by the opposite party, but its operation depends upon the presence of the residents. It has been denied that there has not been proper access road or road lights inside the project are missing. The complainants have purchased fully completed flats after verifying all facilities and amenities on the spot.  After 5 years of taking possession, this complaint has been malafide filed as a pressure tactic to extract money from the opposite party.

The complainants filed rejoinder reply on 09.07.2018 in which they have stated that till date more than 250 flats and 3 shops have been sold. The opposite party has not issued any bill in respect of maintenance after June 2015. The opposite party are not providing the basic maintenance and facilities like drinking water in individual flat electricity meter in individual flat, sewerage line, functional lift, power backup is not sufficient for 250 flats, therefore, they are not realizing the maintenance amount also. The opposite party has not provided audited maintenance account to the home buyers. In the absence of necessary facilities and maintenance the flat buyers are not in a position to move in their flats. Cooperative Housing Society was formed by the flat buyers and was registered under Maharashtra Society Act, 1960. The opposite party challenged the order of registration in appeal which was allowed by the order dated 17.05.2016. The complainants challenged the order dated 17.05.2016 in Revision Application No.613 of 2016 which was allowed on 03.05.2018 and registration of Cooperative Housing Society has been restored. The opposite party has collected Rs.20000/- from each home buyers in the head of installation of electricity meter, therefore, there is no justification by the opposite party for not installing electricity meter.  It has been denied that as various members live occasionally, therefore, they have taken connection through the meter of opposite party, in order to avoid minimum charges. It has been denied that in Block A, B,C there is any electric earthing. The opposite party has collected Rs.20000/- from each home buyers for providing power backup, but power backup as provided by the opposite party is not sufficient to bear the load. The opposite party has provided functional lift only for two wings G Block and I Block. It has been denied any sewage treatment plan has been installed in the project. Though Shirdi is a village, but Gram Panchayat has provided underground sewage line and the opposite party can connect sewage of the project to this line. The furniture is of China make and there was frequent wear and tear. The allegation that due to not using the water pipe line for quite long time it is blocked is incorrect and denied. No water connection has been provided even in kitchen sink, basin although opposite party has collected money in this head. In building plan as approved by Gram Panchyat, Block F has not been shown. It has been illegally constructed. Swimming pool is unauthorised and has been constructed at the place of reserved for parking.

The complainant filed Affidavit of Evidence of Satish Lalji Jaiswal. The opposite party filed Affidavit of Evidence of S. Khera. Both the parties have filed their written synopsis.

We have considered the argument of the counsel for the parties and examined the record. The complaint has been filed, alleging that in spite of collecting money the opposite party has not got installed electricity meter to individual flats, adequate power backup, supply of drinking water, water softener, less area; parking space has been illegally converted in swimming pool and Block F has been constructed without there being approval of lay out plan and more FSI has been constructed. The opposite party has denied all the allegations except the allegations of installation of individual electricity meter. The complainants did not move any application for issue of Local Commissioner for obtaining report in respect of the alleged deficiency in service. Therefore, at this stage, it is not possible for us to record any finding in respect of various deficiencies. In spite of publication of the notices in the newspapers, no other home buyers sought for his impleadment in the complaint.

It is admitted to the opposite party that they are supplying electricity to various home buyers from their connection although they have collected Rs.20000/- per home buyers for installation of electric meter. The opposite party has stated that as the home buyers are not paying house tax to Gram Panchyat which is payable from the date of their sale deed and Gram Panchyat is not issuing NOC for installation of electricity meter. Therefore, electricity meter could not be installed. In the light of controversy it would be appropriate that home buyers may obtain NOC from the Gram Panchyat and supply it to the opposite party for installation of electricity meter. On receiving NOC, the opposite party get separate meter installed to those home buyers.

So far as using additional FSI or making illegal construction of Block F is concerned, the complainants are free to move a complaint before appropriate authority in this respect. The home buyers have formed their Cooperative Housing Society as such they can engage maintenance agency of its choice.

ORDER

In view of aforesaid discussion, the complaint is partly allowed.  The home buyers are directed to provide NOC from Gram Panchyat to the opposite party within two months. After receiving “No Objection Certificate”, the opposite party shall take immediate step for installation of electricity meter in the individual flats of such home buyers within next two months and get it installed. If Cooperative Housing Society engages any maintenance agency for maintenance of the project, the opposite party shall not create any hindrance.