Karnataka

Bangalore 4th Additional

CC/15/1985

Vishnu Vardhan Makkapati - Complainant(s)

Versus

Housing Commissioner Karnataka Housing Board & Others - Opp.Party(s)

28 Apr 2018

ORDER

Complaint filed on: 11.12.2015

                                                      Disposed on: 28.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1985/2015

DATED THIS THE 28^th APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Vishnu Vardhan Makkapati, 104, KHB Colony,

Old Madras Road,

Huskur,

Bengaluru-49.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

 

1. Housing Commissioner Karnataka Housing Board, Cauvery Bhavan, K.G.Road, Bengaluru-09.

 

2. Assistant Executive Engineer Bengaluru Urban

Coordinating office,

Karnataka Housing Board,

F-Block, Cauvery Bhavan, K.G.Road, Bengaluru-09.

 

By Adv.Sri.R.A.Kulkarni

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to pay a sum of Rs.10 lakhs as compensation towards poor quality of construction and for providing items of a poor make. Further direct them to pay Rs.3 lakhs due to delay in issuing possession of the house and direct them to return the sum of Rs.23,000/- collected towards maintenance charges.

 

          2. The brief facts of the case of the Complainant are that, he has been allotted a house bearing number 104 in KHB colony, Huskur-Hoskote, Bengaluru Nagara Taluk by Karnataka Housing Board (hereinafter referred as KHB). He has paid the entire amount as stipulated by KHB to get his house registered on 17.01.13. However, the possession of the house was delayed significantly by KHB. Finally the possession certificate was issued on 13.12.13 after significant delay. He submitted an application under Right to Information Act (hereinafter referred as RTI) to KHB seeking reasons for delay in issuing possession certificate and the rules by which KHB compensates allottees for the delay. But he has not received any information from KHB regarding it. The Complainant further submits that, during the time of construction itself, he noticed seepage in several walls and ceiling of the house and have requested KHB to ensure that the quality is maintained well. However, no action has been taken by the KHB, resulting in poor quality of construction, with several cracks in the walls and seepage in both ceilings and walls of the house. He has noticed several other issues also in the house and have requested KHB to rectify them before issuing possession certificate. But none of them were addressed despite several requests to KHB. Also no checklist was provided to him to ensure that all the material including the electrical/sanitary/plumbing fittings are installed as per the norms. Hence, he has requested them to provide him with list of the specifications for key materials of the house under RTI. However, they have not provided the details to him despite several RTI requests escalations. After taking possession of the house, he has written to KHB to rectify the pending issues in the house but nothing has been done by them. Finally, in response to his request for detailed project report under RTI, again escalated several times, they provided him with a copy of the bill of quantities. To his surprise, he noticed that many of the items as listed in it were not provided in the house and there were gross violations in several other items. The Complainant further submits that, KHB has collected an amount of approximately Rs.23,000/- from him towards maintenance of the layout but no services were provided by them. Despite several complaints from their registered society i.e. KHB Huskur Layout Residents Association, they did not maintain the layout at all, leading to serious inconvenience to them. Even the basic items such as water supply, street lighting, and garbage management were not provided and there were frequent power cuts lasting for successive days since the electricity supply lines and transformers got burnt regularly. Further he found discrepancies between the actual work and the bill of quantities in civil works, brick masonry, steel and aluminum works, wood work, flooring, finishing works, painting, concrete tile flooring, stainless steel hand rails, water supply and sanitary works, electrical works (internal) and compound wall. Hence prays to allow the complaint.

 

3. On receipt of the notice, Ops did appear and filed version denying the contents of the complaint. The sum and substance of the version of the Ops are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed in limine. Ops further submit that, Complainant has not issued two months previous notice before filing complaint u/s.72 of KHB Act. Ops further submit that, they have constructed 84 houses good quality all materials in the constructions. There are no substandard materials used any type of materials. The construction of houses completed in December 2012. Before construction work taken place, there is an inspection committee of all type of materials like sand test, course tested, bricks tested, concrete cubs tested and cement tested by the expert committee and completion of building in 2012 December and electrical connection etc., provided by the Ops to all those houses temporarily and electricity connection only by the KPTCL not by Ops as alleged by the Complainant. Complainant has been allotted house no.104 and executed sale deed on 17.01.13 and taken possession on 13.12.13. It is outright sale transactions and hence the Complainant is not a consumer and there is no consumer dispute to decide the allegations made in the complaint and the entire allegation made from the proposal broacher and after construction there will be different situation. Complainant after taking the possession of the house, he without permission of Ops had altered the house on top floor and he has done drill works on the terrace and there is seepage and crack etc., thus it is clear that it is his fault and not the Ops. Except this allottee who is Complainant and no other allottees have raised any objection in respect of substandard materials used in the construction of houses. Even today if he is not interested in such a defect house, he could have sought for cancellation the allotment and seek for cancellation of registered sale deed. The Ops are ready to refund the amount. The allegations of substandard materials are used, residential facilities not provided etc., cannot be evaluated in summary proceedings u/s.12 of CP Act and such dispute can be exhaustively dealt with by a competent civil court. Ops further submit that, there are several covenants in the sale deed stating that purchaser has taken possession of the house and before taking possession of the same the purchaser has verified and is fully satisfied as to completion of all the works in the house and its fitness for occupation and has no claims against the vendors in respect of the house. Further correctness of the area of the house and the specification and amenities provided therein. Further quality of construction of building, facilities and services plumbing and electrification in and of the house. Further purchaser shall pay an amount equivalent to 10 months maintenance fee as advance at the time of issue of possession certificate of the property by the vendor. This is mandatory condition not complied with, but now he is alleging that there is delay in giving possession and sought for Rs.3 lakhs for the delay in handing over possession certificate. This deed is binding both parties to comply the conditions. Whether he has paid said amount or not is not stated in the complaint since already taken possession certificate in 2013 itself, there is no abnormal delay in giving possession certificate, hence he is not entitled any amount from Ops. Further Complainant/purchaser acknowledge that the vendor shall not responsible for any defect, structural or otherwise in the property and the purchaser shall not have any claim for compensation from the vendor for any such defect. Ops further submit that, purchaser acknowledges that without prejudice to the vendors right u/s.45 of KHB Act r/w Regulation 13 of the Act and the vendor shall have in addition the right to cancel the allotment of the house made in favor of purchaser and to evict him/her from the allotted house and resume possession thereof in the event of any one or more of the following non-compliance on the part of the purchasers, if any of the terms & conditions of this deed. There is no delay in issuing possession certificate and after taking physical possession he is residing in the house after two years 11 months delay in filing the complaint and barred by time u/s.24A of CP Act. Having regard to the facts and circumstances of the case, there is no deficiency of service on the part of the Ops. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A20. The Assistant Executive Engineer KHB Bengaluru and authorized officer of Op.no.1 filed affidavit evidence and got marked the documents as Ex-B1 to B11. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether complaint filed by the Complainant without complying the provisions of Sec.72 of Karnataka Housing Board Act is maintainable ?
2. Whether the Complainant proves deficiency of service on the part of Op, if so, whether he entitled for the relief sought for ?    
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative  

Point no.2: Does not survive for consideration 

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  During the course of arguments, learned counsel for the Ops submit that, Op.no.1 & 2 are represented by the Housing Commissioner of the KHB and Assit., Executive Engineer, Bengaluru Urban Coordinating office, KHB. As to how the complaint filed by the Complainant, without complying the Sec.72 of the KHB Act is not maintainable is concerned, the learned counsel for the Ops placed reliance on the decision of Hon'ble State Commission in appeal no.708/2006 disposed on 05.03.15, wherein at para 15 onwards reads thus:

15. U/s.72 of KHB Act, the issuance of notice before initiating any proceedings is mandatory. For the sake of convenience the said Sec.72 is excerpted hereunder:

“72. Notice of suit against Board – No person shall commence any suit against the Board (Housing Commissioner, Chief Engineer, Secretary) or against any officer or servant of the Board or any person acting under the orders of the Board, for anything done or purporting to be done in pursuance of this Act, without giving to the Board (Housing Commissioner, Chief Engineer, Secretary) officer or servant or person concerned two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of.”

16. No doubt the word referred to in Sec.72 is suit, nevertheless the proceedings before the Consumer Disputes Redressal Forum is in the form of complaint and the relief claimed is in the nature of relief which can be sought in the regular suit and in the circumstances for non-compliance of the issue of notice before initiating any proceedings against Op complaint as brought out fails, and thus, the impugned order ordering for payment of certain amount to the Complainant is not proper and same requires to be set aside. Hence, the following:

ORDER

The above appeal is allowed by setting aside the impugned order dtd.23.09.05 in CC.no.152/2005 on the file of DCDRF, Mysore and consequent of which the complaint is ordered to be returned to the Complainant for compliance u/s.72 of the KHB Act, 1962.

 

8. We have gone through the order passed by the Hon'ble State Commission in the above said appeal, wherein in view of the non-compliance of Sec.72 of KHB Act, the complaint was ordered to be returned to the Complainant therein for compliance of Sec.72 of KHB Act, 1962. The said decision is binding nature on this forum. In this view of the matter, we come to the conclusion that, the complaint filed by the Complainant is not maintainable before this form, without compliance of Sec.72 of KHB Act, 1962. Hence, complaint is to be returnable to the Complainant for compliance of Sec.72 of KHB Act, 1962. The Complainant is also advised that after the compliance of Sec.72 of the said Act, he may file the fresh complaint in the light of the observations made in Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 

9. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

 

10. Point no.3: In the result, we passed the following:

 

ORDER

 

          It is ordered to return the complaint to the Complainant for compliance of Sec.72 of KHB Act, 1962. Complainant is advised that, after the compliance of Sec.72 of the KHB Act, he may file the fresh complaint in the light of the observations made in Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 28^th April 2018).

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Vishnu Vardhan Makkapati, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Letter to housing Commissioner dtd.11.03.14 requesting completion of pending work
Ex-A2	Follow up emails requesting completion of pending work dtd.17.06.14, 30.05.14, 25.05.14, 20.05.14, 13.05.14, 30.04.14, 15.03.14
Ex-A3	Sale deed dtd.17.01.13
Ex-A4	Possession certificate dtd.13.12.13
Ex-A5	Challan dtd.16.11.13 towards part payment of maintenance charges
Ex-A6	BOQ for HIG-I extract from bill of quantities
Ex-A7	Responses from KHB dtd.04.09.13, 4.04.14, 25.06.14, 18.03.15, 19.03.15, 23.03.15 to RTI requests
Ex-A8	Letter to Housing Commissioner dtd.15.01.13 reg. registration of house
Ex-A9	Complaint to Housing Commissioner dtd.21.09.13 reg. poor quality of construction and delay in issue of possession certificate
Ex-A10	Letter to Asst. Executive Engineer dtd.29.10.13 requesting completion of pending work and issue of possession certificate
Ex-A11	RTI request dtd.17.08.13 seeking details of specifications and electricity/water supply blueprint and follow up escalations dtd.29.09.13, 22.03.14, 24.02.15
Ex-A12	RTI request dtd.02.11.13 seeking reasons for delay in issue of possession certificate, details of quality checks, and maintenance services to be provided.
Ex-A13	RTI request dtd.22.03.14 and follow up escalation dtd.24.02.15
Ex-A14	Follow up complaint by KHB Huskur layout Residents association dtd.27.01.15 regarding no maintenance in the layout.
Ex-A15	Complaint from our residents association to Housing Commissioner dtd.03.12.14 reg. no maintenance in our layout
Ex-A16	Follow up emails regarding maintenance of our layout to Housing Commissioner and Chief Engineer
Ex-A17	CD with photographs taken after the registration of my house showing that the construction was not complete by the time it was registered and that it was not complete even at the time of issuing possession certificate.
Ex-A18	Challan towards balance amount of Rs.2,380/- for maintenance charges paid on 12.12.13
Ex-A19	Allotment letter dtd.06.08.12
Ex-A20	CD submitted with Memo dtd.06.08.16

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.A.Syed Azgar, who being the Assistant Executive Engineer KGB Bengaluru and authorized officer of Op.no.1 was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Sale deed
Ex-B2	Corporation bank challan
Ex-B3	Letter dtd.29.08.13
Ex-B4	Letter of Complainant dtd.12.12.13
Ex-B5	Possession certificate dtd.13.12.13
Ex-B6 to B8	Test reports of materials used in the constructions
Ex-B9 to B11	Full completed photos in respect of HIG, MIG, LIG houses

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT