CONSUMER PROTECTION COUNCIL Vs SURESHBHAI S.PATEL

1. BY way of this complaint, relief by way of rectification or removal of defects as pointed out by the valuer or to pay compensation in the sum of Rs. 16,53,200 to the apartment owners to enable them to rectify the defective works as per the technical-cum-valuation report dated 28.3.1998 given by approved registered valuer M/s. M.C. Dalal & Company and to pay compensation in the sum of Rs. 2,00,000 on the head of mental agony, hardship, inconvenience and expenses etc. and to pay cost in the sum of Rs.25,000 on following brief allegations of facts.

2. COMPLAINANT No. 1 is a voluntary consumer organisation and complainant Nos. 2 and 3 have described themselves as Secretary of Bore Committee and Managing Committee member of the Bore Committee of Karnavati (Ranip) Co-op. Housing Society Limited. 1st two opponents and opponent No. 4 have been described as partners of Hariom Corporation, Organiser-cum-Builder of housing society. Opponent No. 5 has been described as Chairman as also Organiser-cum-builder of Karnavati (Ranip) Co-op. Hsg. Society. Opponent No. 3 has been deleted from the complaint.

It has been alleged that the opponents committed unfair trade practice and have been deficient in rendition of service as organiser, developer and builder of the aforesaid housing society. They had given pamphlet showing brief outline of type of development and construction as also various materials to be used in the construction of the tenements in question as per Annexure-I which is a one page specification. Construction was carried out and possession was handed over to the enrolled members of the society with possession letter of a common format signed by the allottees under duress and compulsion inasmuch as if such possession letters were not signed, handing over of possession would be delayed. According to the complainants full payments were made to the opponents. The complainants, therefore, sent letter dated 17.7.1995 and also letter dated 29.8.1997 with copy endorsed to the District Registrar of Co-op. Societies informing opponent No. 5 that the documents alleged to have been verified by the allottees were in fact not verified and the conditions regarding construction stated to have been accepted have not been in fact accepted and the letter of possession issued by the allottees would not be binding to the complainants. The complainants have alleged that there are numerous defects in the construction work and they have obtained the valuation report as stated above. They have also asserted that the opponents collected Rs. 15,000 in excess from each of the allottees. They have narrated the details of the valuation report in their complaint. They have also asserted that the opponents have not followed certain conditions contained in the N.A. permission issued by the District Collector, Ahmedabad. The complainants have also been duped by providing a small common plot portion of which has been unlawfully misused by opponents for construction of two more row-houses though not provided in the plan approved by Ahmedabad Urban Development Authority (AUDA).

The complainants have alleged that the opponents have not furnished clear title to the property. The land on which the houses are built is not transferred in favour of the housing society and the same has been in the name of the owner/farmer in the record of rights. Some of the members have not received legal papers required by them for finalisation of loan prospects. Some of the members have not received share certificates. The accounts in respect of maintenance charges @ Rs. 15,000 taken have also not been furnished to the members of the society. Some of the original allottees have disposed of their houses and the opponents have collected transfer fees @ Rs. 20,000 from such sellers/purchasers and have not given any accounts of such collection of transfer fee. It has been alleged that the bore provided for supply of water to the occupants of the row houses/tenements is not yet transferred in favour of the housing society and is still in the name of concerned farmer. The electricity connection to draw water from the bore is also in the name of the farmer. Consumption of electricity is chargd at commercial rates which is higher than that of domestic rates and that would be chargeable only if the connection is in the name of residents/occupiers/owners of the houses of housing society itself. The watchman, whose services are no more required did not vacate the room given for use as watchman. Annual meeting to disucss problems of members and for furnishing accounts or receipts and expenses and giving report of activities has not been called since inception. The complainants wrote letters dated 24.9.1997 and 2.10.1997 for redressal of their grievances as noted herein above. One more letter dated 18.4.1998 was written by Registered Post A.D. The complainants have also sent copies of the technical report dated 20.3.1998 given by the valuer. Vide his letter dated 5.5.1998, 5th opponent has alleged that he was not partner of M/s. Hariom Corporation, that notice issued by the complainants would not relate to him, that he was Chairman of the Society and that he was not connected in any manner with M/s. Hariom Corporation. The complainants gave reply dated 30.5.1998 to the 5th opponent bringing to his notice that possession letter given to Mr. Kanubhai P. Patel, opponent No. 5 clearly indicated that he was partner and administrator of M/s. Hariom Corporation. The complainants, under such circumstances, proceeded to issue fresh notice dated 30.5.1998 to the opponents with regard to redressal of the aforesaid grievances. One Mr. Manibhai Patel sent undated letter on behalf of opponent No. 3 stating that opponent No. 3 was not staying at the address at which the notice was issued for around 4 years and the house in fact belonged to Mr. Manibhai Patel. Under such circumstances, the complainants have filed present complaint for redressal of their grievances as stated above and as stated in the valuation report.

3. THIS complaint accordingly appears to have been filed on 12.8.1998. It came to be admitted by order dated 14.9.1998. Summons came to be issued to the opponents. By order dated 9.9.1999 it has been noted that opponent No. 3 has not been served and the summons in respect of the said opponent was returned with postal endorsement about addressee having left the house for his native place. The learned advocate for the complainants, therefore, did not press claim against opponent No. 3 and opponent No. 3 was accordingly deleted from the complaint. Notices were reissued to the opponents and by way of abundant caution such notices were also issued under postal certificate. The absence of opponents came to be recorded as per order dated 8.1.2001. Once again the exercise was repeated and absence of opponent Nos. 1, 2 and 4 was recorded by order dated 18.7.2001. Affidavit of service has also been filed by one Mr. Mahendrabhai M. Jani, on behalf of the complainants and the same is dated 5.10.2001 and appears at Exh. 5. The matter was then taken up for hearing and certain explanations were sought from the complainants. We will take ourselves to the basic defects in some part of the complaint little later. However, the complainants have examined Mr. Madanmohan Chinubhai Dalal for proving the valuation report which has been placed on record with Exh. 10 dated 25.3.2003. We have gone through the allegations of facts made in the complaint, valuation report, valuer''s evidence and the copies of pamphlet, sample possession letter (undated), objection letter dated 19.2.1994 which appears to have been sent once again on 17.7.1995 and valuation report dated 20.3.1998. We propose to divide this complaint into two parts. First part would relate to the alleged defects and deficiency in the construction as reflected in the valuation report as also disowning possession letters stating several admissions on the part of the complainants and other members of the society. Second part would relate to the general grievances concerning obligations on the part of the opponents to clear the title to the land on which the tenements have been constructed and to obtain building use permission from local authority as also transferring the bore to the name of the society to which the complainants and other allottees are members.

In so far as 1st part of the complainant''s case is concerned, the allottees of the tenements other than complainant Nos. 2 and 3 are not parties to this complaint. The complainant Nos. 2 and 3 however, have disowned their admissions contained in the possession letter by sending 1st letter dated 19.2.1994 to the opponents. The present complaint has been filed on 12.8.1998. Thus, it would clearly appear that the complainants and other allottees of the tenements of the society in quetion have taken possession of their respective tenements prior to 19.2.1994. If that is so, the present complaint would be barred by limitation in respect of specific grievances made on behalf of the individual allottees of the tenements in the aforesaid society viz., Karnavati (Ranip) Co-op. Housing Society Ltd. There is another aspect of the matter insofar as this part of the complainant''s case is concerned. The defects in respect of tenements could not be said to be similar in nature. We will presently deal with the valuer''s report for the purpose of final adjudicaton of the matter. However, it is obvious that factually the cause of action insofar as individual members are concerned can hardly be said to be common or similar in nature with regard to defects or incomplete works in the construction carried out by the opponents. Complainant Nos. 2 and 3 have been shown to be Secretary of Bore Committee and Managing Committee Member of Bore Committee respectively. Complainant No. 1 consumer organisation has not filed any written document to show that other allottees or members of the society would join as the complainants. The society has not been made as party to this complaint. Opponent No. 5 has been made a party to the complaint in his capacity as Chairman of the society and insofar as he in that capacity is concerned, is member of the society, though office bearer thereof. Needless to say the dispute between a member and another member in respect of internal management of the society for which no consideration is paid by members to the office bearer cannot be said to be a consumer dispute. The sum and substance of these broad facts in sofar as first part of this complaint is concerned is that the complaint in respect of that part is barred by limitation and it cannot be entertained for number of reasons indicated herein above including bar of multifariousness. This Commission in Complaint No. 31 of 1996 between S. Vaithianathan and 29 Others v. The Commissioner, Gujarat Housing Board, decided on 30.3.2005 had an occasion to observe as under:

"Besides, all the complainants have joined for different causes of action in one complaint except with regard to alleged price escalation. They do not apear to have taken possession of the flats in question on one date. Even defects in construction which are stated in the complaint are not uniform or similar. Thus, there is uncertainty about some of the complainants being consumers, about their respective dates of possession, about their respective grievances with regard to alleged quality of construction. Under such circumstances, it has been submitted that this is a fit case where the complaint should be held suffering from the vice of multifariousness and such defect in the complaint even at this stage cannot be cured."

4. IN this view of the matter, even though the complaint has proceeded ex parte against the opponents, same cannot be entertained in so far as 1st part thereof is concerned as stated above.

Insofar as 2nd part of the complaint is concerned, that relates to the obligations of the opponents as developer-organiser-builder of the tenements in question. They are alleged to have not got transferred the land on which the tenements have been constructed to the name of the society known as Karnavati (Ranip) Co-op. Housing Society Ltd. They have also failed to transfer the bore in the society to the name of the said society and since the bore stands in the name of concerned agriculturist/owner the society is required to pay electricity burning charges at commercial rates whereas if the same is transferred to the society it would have to make payment of electricity burning charges as applicable to residential houses. It has been alleged that no building use permission has been obtained from the local authority (AUDA). It is obvious that building use permission would be granted provided all legal requirements including clearance of title of the society are fulfilled. Now, the allegation with respect to all these common and broad defences on the part of the opponents provide continuous cause of action in favour of the complainants. Complainant No. 1 is a consumer organisation who can take such a cause on behalf of the members of the society. Complainant Nos. 2 and 3 being the allottees/occupiers and the members of the society as also office bearers of the Bore Committee would be entitled to present and pursue such common cause. It would be axiomatic to say that when a builder-organiser-developer ordinarily attends to the rendition of service as builder-organiser-developer, it is his primary duty to see that a clear title and legal permission to use the developed property is provided to the allottees of the tenements who are obviously the consumers. In the present case the allegations made by the complainants right from the time of issuance of the communications and notices as stated above till up to this point of time have not been denied. No reply has been filed in spite of repeated opportunities having been given to the opponents. Hence, the complainants would clearly be entitled to appropriate relief in respect of such common grievances connected with aforesaid basic rendition of service on the part of the opponents as stated above. It is in this respect that we would be required to take into consideration the valuation report issued by M/s. M.C. Dalal and Company. Mr. Madanmohan Chinubhai Dalal has proved the report as per his deposition appearing at 8. Original valuation report has been placed on record along with list Exh. 10. It has been observed in the report that Karnavati (Ranip) Co-op. Hsg. Society containing tenements and row house type residential buildigns was developed on plot bearing F.P. No. 8 of TPS No. 1 at Ranip, Opp. Sector 5, Nirbhaynagar, Ahmedabad on land admeasuring 5444 sq. mts. containing 29 row houses (Type C) and 25 tenements (A & B Types) as per the building plan. According to the valuer, the quality of construction work is inferior and below average. Common amenities like road, compound gate, street lights, bore for water supply are not provided properly for which extra charges of Rs. 15,000 were recovered from each of the members. Marginal open space in front, on sides and between the buildings are less than required and as shown in the plan approved by AUDA. It has also asserted that the builder has not fulfilled certain conditions requiring construction and development of plot as stated in the NA permission dated 15.10.1995 issued by the District Collector, Ahmedabad and the valuer has enumerated such conditions as condition Nos. 12, 22 and 23 incorporated in the report. According to him the size of the common plot is less than what has been shown in the lay out plan approved by AUDA. There is also unauthorised construction of two row houses on the common plot. In respect of water supply the builder has stated to have constructed overhead RCC water tank and bore with pumping arrangement. The overhead water tank is leaking and construction work of the bore is poor as particularised in the report. The original motor pump provided by the builder got burnt and had to be replaced by members of the society by incurring extra expenditure of Rs. 32,000. No street lighting has been provided by the builder even though extra money has been collected by him from the members. No building use permission has been obtained as required by the local authority. The result is that water supply connection from sanctioning authority will not be made available and occupants are required to incur unnecessary expenditure for procuring water. Following opinion has been given by the valuer:

"(1) Construction work carried out by the builders is not of good quality. The building bye-laws are not adhered to. The builder must carry out the repairs in buildings, roads, water tanks etc. under proper and expert technical supervision at his cost. (2) The building use permission will not be granted by the concerned authority as there are less marginal open spaces, less area of common plot and unauthorised construction. (3) The amount collected for providing common facilities etc. should be refunded to the occupants as the same are not provided. (4) The builder should get building use permission from the sanctioning authority and hand it over to the society."

In our considered opinion appropriate directions will have to be issued in respect of building use permission, and common facilities such as cost of underground tank, motor and pump, compound gate, street lighting, drainage connection, fencing of common plot and increasing depth of the existing bore. That would appropriately redress the common grievances which can be represented by the complainants in this complaint and which relate to continuing cause of action against the opponents.

5. IN so far as common facilities such as cost of underground tank, motor and pump, compound gate, street lighting, drainage connection, fencing of common plot and increasing depth of existing bore are concerned, the valuer, in his report Exh. 10 has assessed the estimated cost at Rs. 2,35,720. The cost of common facilities as worked out by the valuer will go to the benefit of the society at large. Appropriate direction will have to be issued in that respect. INsofar as transferring the bore to the name of the society is concerned, it will be part and parcel of obtaining building use permission inasmuch as the land in question on which the society is situated is not transferred to the name of the society, the building use permission would hardly accorded by the local authority. Hence, appropriate directions in respect of obtaining BUP will take care of clearance of title grievance with regard to which has been made in this complaint. The same is the position with regard to clearance of common plot on which unauthorised construction is alleged to have been made by the opponents.

6. OPPONENT No. 5 in his reply given to one of the notices/communication received from the side of the complainant contended that he has no concern with M/s. Hariom Corporation but the complainants in term alleged that opponent No. 5 happended to be the partner of M/s. Hariom Builders. Reference in this connection has been made to draft possession letter in which description of the party taking in writing from the executant of the possession letter is described to be Chairman/Secretary, Karnavati (Ranip) Co-op. Housing Society Limited and Vishnubhai Shambhubhai Patel (opponent No. 5) Manager and Partner of M/s. Hariom Builders. In that view of the matter, opponent No. 5 would be liable to answer the common grievance as stated above made by the complainants in this complaint.

In the result, following order is required to be passed. ORDER Opponents Nos. 1, 2, 4 and 5 are directed to obtain Building Use Permission in respect of the tenements/row houses in question occupied by the members of Karnavati (Ranip) Co. op. Housing Society Limited within three monhts from the date of receipt of true copy of this order. Upon the said opponents failing to obtain such permission, complainant Nos. 2 and 3 will be entitled to move the concerned authority (either AUDA or in case the area is transferred to Municipal Corporation, then Ahmedabad Municipal Corporation) at the cost of opponents and opponents will have to pay all expenses incurred by complainant Nos. 2 and 3 in respect of obtaining such Building Use Permission and the opponents will have to pay the same within six weeks from the date on which the demand is raised by complainant Nos. 2 and 3 in that respect. Opponents are directed to deposit in this Commission Rs. 2,35,720 with interest @ 6% p.a. from the date of complaint till such deposit within three months from the date of receipt of true copy of this order with a view to enable complainant Nos. 2 and 3 to incur expenses in respect of underground tank, motor and pump, compound gate, street lighting, drainage connection, fencing of common plot and increasing depth of existing bore as particularised in the valuation report. Opponents are directed to pay cost of Rs. 25,000 insofar as complainant No. 1 is concerned and further cost of Rs. 25,000 in so far as complainant Nos. 2 and 3 are concerned within three months from the date of receipt of true copy of this order. Complaint disposed of.