Date of Filing – 07.03.2013
Date of Final Hearing – 24.08.2016
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of intending purchasers against the Kolkata Metropolitan Development Authority (KMDA) and one of its officer on the allegation of deficiency in services on the part of them while rendering construction services to the Complainants.
In a capsulated form, complainants’ case is that pursuant to an advertisement published by the Opposite Party no.1 for construction of a multi-storeyed building named ‘Ashabari Housing Complex’ in the area of Baishnabghata-Patuli Township, they had applied for residential flat of their own use. OP no.1 allotted flat no.DD-702 measuring about 1309 sq. ft. at a total consideration of Rs.15,64,255/-. The Complainants paid total consideration amount of Rs.18,28,821/- by several instalments from 15.11.2003 to 19.09.2006 as per payment schedule declared by the OP no.1 including Rs.72,895/- being the price for additional area of 61 sq. ft. On 27.03.2007, the OP no.1 delivered formal possession of the flat on 27.03.2007. After taking formal possession, Complainants found several defects in the construction of the flat, viz.- a) shortfall in respect of saleable area of the flat measuring 47 sq. ft.; b) professional loss of Rs.67,273/- of Complainant no.2, who is a chartered engineer in profession and on account of his remaining present during repairing work from 24.05.2007 to 20.07.2007; c) for not providing source of hygienic drinking water in the housing complex; d) for not installation of lift of eight passengers in each of the towers as per certificate issued by the Director General, Fire and Emergency Services, Govt. of West Bengal and e) for construction of defective drive way as the drive way provided is not a metal top drive way etc. The Complainants allege that though the OPs provided the draft deed of convenience but failed to provide break up of documentation charge in violation of the order dated 19.04.2010 passed by Hon’ble Information Commission. The request and reminders including notice went in vain. Hence, the complaint with prayer for certain reliefs, viz.- 1) to pay Rs.67,273/- for professional loss suffered due to defective construction; 2) to pay Rs.56,165/- for loss suffered due to shortfall in saleable area; 3) to pay Rs.25,000/- as compensation for loss suffered for not providing drinking water; 4) to pay Rs.16,371/- on account of refund of unethical collection of documentation charge; 5) direction upon OPs for replacement of six passengers lift by eight passengers lift in each tower and 6) for replacement of existing drive way by that of metal top as per plan sanctioned by KMC; 7) compensation and litigation costs etc.
The Opposite Parties by filing a written version has stated that KMDA is not a business organisation and it is a statutory body under the control of UD Department, Govt. of West Bengal which builds flat for residential purpose to cater the needs of different income groups of people on no profit no loss basis. The Complainants was allotted a flat at Ashabari Housing Complex. The OPs have stated that the defects as alleged by the Complainants were rectified over a period nearly three months and the Complainants satisfy themselves regarding construction etc. took possession of the flat on 27.03.2007. The OPs submit that the deed of conveyance has already been sent to the Complainants but the Complainants raised some conflict with regard to some terms and conditions beyond the authority of the Complainants. The OPs also submit that the saleable area of the flat was 1370 sq. ft. after including proportionate common areas. The OPs have emphatically submit that the Complainants are not entitled to certified true copy of occupancy certificate, building plan, tax clearance certificate along with execution of sale deed in proper format, not entitled for installation water filtration unit or replacement of one six passenger lift to eight passenger lift or entitled for replacement of existing tile top drive way by that metal top and as such the complaint should be dismissed.
Complainant no.1 Dr. (Smt.) Krishna Pal tendered evidence on affidavit against which questionnaire was set forth by the OPs to which reply was given by the Complainants. On behalf of OPs Shri Pragati Kumar Laha, an Authorised Officer of KMDA has tendered evidence on affidavit. Questionnaire for cross examination to him has been filed by the complainants against which reply was given by the OPs. Both the parties have relied upon some documentary evidence.
On the basis of contention of the parties, the following points emerge for consideration:-
- Is the case maintainable in its present form?
- Is the case bad for non joinder of Ashabari Apartments Residents’ Welfare Association?
- Is there any deficiency in services on the part of the Ops?
- Are the complainants entitled to get the relief/reliefs, as prayed for?
-
Point no.1:- The materials on record indicates that Complainants in order to purchase of a Super Deluxe flat being DD-702(Type ‘C’) with a covered garage being no.DD-72 in the complex of KMDA at Baishnabghata-Patuli Township named as ‘Ashabari Housing Complex’ has paid a total consideration of Rs.18,28,821/- including Rs.72,895/- being the price for additional area of 61 sq. ft. The KMDA after construction of the flat delivered the possession of the flat to the Complainants on 27.03.2007. It means and indicates that the Complainants being ‘consumer’ has engaged KMDA for providing service and hired the ‘Housing Construction’ services of the OPs. Therefore, in accordance with the provisions of Section 2(1)(d)(ii) of the Act, the Complainants are consumers of the OPs. In the case of Lucknow Development Authority – Vs. – M.K. Gupta reported in (1994) 1 SCC 243 the Hon’ble Apex Court has observed that the Government Authorities are amenable to the jurisdiction of the Consumer Forums under the provisions of the Act.
Therefore, this point is decided in the affirmative and in favour of the Complainants.
Point no.2:-
The OPs in Para-11 of the written version has mentioned that since the issue related with Ashabari Apartments Residents’ Welfare Association, Complainants should have impleaded them as a party for effective adjudication of the dispute. Since we have already held that the Complainants are consumer as defined in Section 2(1)(d) of the Act, we must consider the deficiencies alleged by the Complainants within the four corners of the record and in any case, it cannot be said that the complaint is defective or bad of non joinder of the necessary party.
Therefore, this point is also decided in favour of the Complainants and disposed of accordingly.
Point no.3:-
This point being vital and decisive one, both the parties have argued strenuously over the matter. The Complainants in the petition of complaint as well as in the brief note of argument has categorised the deficiency in services on the part of the OPs on five grounds. We shall discuss point wise and try to find out the alleged deficiencies on the part of OPs in providing services to the Complainants in respect of the flat purchased by them from the OP no.1.
Firstly, the Complainants alleged that on the basis of the defects pointed by them, the OPs rectified the said defects over a period of about three months from 24.05.2007 to 20.07.2007 for which the Executive Engineer of the KMDA made written request to the Complainants to remain present during such repairing work. Accordingly, the Complainant no.2, who is a chartered engineer by profession had to remain present during the said period of repairing work and as such for on account of journey from his residence to the flat in question, conveyance and professional loss he has suffered a loss of Rs. 67,273/-.
Surprisingly enough, Complainants did not take any pain to produce any bill or voucher regarding the alleged loss suffered by him. The Complainants had agreed to purchase the flat and after taking possession, when they noticed some defects, they wrote a letter to the KMDA on 24.04.2007 and in reply to the said letter, the Executive Engineer, KMDA by their letter dated 02.05.2007 requested the Complainants to give them prior intimation so that they can do the repairing work. The Complainants on their own interests wrote letter to the KMDA for removal of defects and immediately the KMDA took steps to remove the defects and as such it cannot be termed as deficiencies on the part of KMDA in providing service. Moreover, the Complainants have failed to produce a single scrap of paper showing the amount of Rs.67,273/- incurred by Complainant no.2.
Secondly, the Complainants alleged that in terms of the advertisement as well as the National Building Code, the OPs were under obligation to supply pure and wholesome water but the supply of water in the apartment is not only inadequate but the same is also of such poor quality that people cannot take bath with the same. Mr. Uday Kumar Jha, Ld. Counsel appearing for the Complainants has left no stone unturned to substantiate the allegations. He has drawn our attention to the relevant provision of National Building Code of India, 1983 issued by Bureau of Indian Standards where it has been mentioned – “ all premises intended for human habitation, occupancy or use shall be provided with the supply of pure and wholesome water, neither connected with unsafe water supply nor subject to the hazards or back-flow or back-siphonage”.
Ld. Counsel for the Complainants has also drawn our attention to the test reports of drinking water made by R.V. Briggs and Company Pvt. Ltd. dated 30.07.2007 and 17.08.2008 respectively and submitted that those reports clearly indicate that the water provided in the housing complex is unfit for human consumption. Mr. Barun Prasad, Ld. Counsel for the OPs has contended that the drinking water contained in a plastic bottle was the sample for the examination and it does not show whether it was properly sealed or lebelled and as such when the collection of the sample appears to be defective no reliance can be placed on it. He has also submitted that the technical person who examined the water did not come to prove the report and to face cross examination and as such the report bears no significance for ascertaining the deficiency on the part of the KMDA. He has further submitted that for the purpose of ascertaining the actual condition of water, the Complainants could have filed an application to refer the water in National Test House to know its actual hygienic condition but when the Complainants did not take any steps for doing so, an adverse presumption should be drawn against the Complainants. To fortify his contention, Ld. Counsel for the Complainants has placed reliance to Paragraph-8 of a decision reported in 2013 (4) CPR 589 (NC) (Malkiat Singh – Vs. – Paramjeet Walia). In the said case, the National Commission observed – “Complainant has not led any evidence except his own affidavit and in the absence of any supporting evidence, it cannot be presumed that the work done by the OP was defective ...”.
Considering the nature of allegation and the evidence adduced by the Complainants, we have no other option but to hold that the Complainants have failed to substantiate their second allegation as to non-supply of pure and wholesome water.
Thirdly, the Complainants have alleged that the drive way of the apartment has not been constructed in terms of the sanctioned plan which required the drive way to be metal top. In this regard, much reliance was placed on a document published by Ashabari Apartments Residence Welfare Association. In the said document, it has been mentioned only small and light commercial vehicles under 4 ton capacity vehicles are allowed within Ashabari to avoid damage to underground sewerage lines and loading and unloading from intermediate and heavy commercial vehicles has to be done from outside the Complex. The complainants did not make any prayer for appointment of any technical expert to ascertain the allegation in respect of damage to the underground sewerage lines. The complainants should have appointed a technical person to prove the allegations on this point and mere affidavit in this regard and a caution notice issued by the Housing Welfare Association cannot be taken into consideration, particularly, when Ashabari Apartments Residents Welfare Association has not been impleded as a party to this proceeding. Therefore, complainant has failed to prove the allegation of deficiency in service with regard to drive way also.
Fourthly, the complainants has alleged about shortfall of saleable area and violation of the fire clearance certificate. In this regard, it would be pertinent to have a look to the N.O.C given on 21.02.2009 by the Director General, West Bengal Fire & Emergency Services. In the letter addressed to the Executive Engineer, KMDA it has been mentioned that the performance of fire fighting system as incorporated in the buildings of KMDA at Baishnabghata – Patuli Township were tested and found in satisfactorily working condition. On the basis of that No Objection Certificate has been issued for two numbers G + 10 storied building and six numbers of G + 9 storied building. However, to up-keep the fire safety measure for the aforesaid building some suggestion has been given including installation of fire lift of 8 passengers. Such a measure does not appear to be an immediate or proximate one and this cannot be a ground to cause delay in obtaining sale deed by the complainants in favour of them.
So far as saleable areas is concerned, in the offer letter dated 12.01.2004, it has been categorically mentioned that – “Saleable area is only plinth area plus proportionate coverage of common area. Special attention of all applicants is invited to the particular point. Common areas means total from ground level to roof level of stair room and lobby area”. The Complainants have alleged that there is a shortfall of saleable area of 47 sq. ft. @1195 sq. ft. equal to Rs.56,165/-. On the other hand, on behalf of the OPs it has been categorically mentioned that total saleable area of Flat no.DD-702=101.45 sq. mt. and the proportionate common area provided utility service in the individual tower and community centre = 0.238 sq. mt. + 0.017 sq. mt. = 0.255 sq. mt. and as such after addition of common areas with saleable areas, it comes to 127.319 sq. meter i.e. 1370 sq. ft.
The Complainants did not pray for appointment of any Engineer Commissioner to ascertain the actual controversy over the point raised by them. Ld. Counsel for the OPs placed reliance to a decision of National Consumer Commission reported in 2016 (1) CPR 765 (Sau Janabai & Anr. – Vs. – M/s. Tapadiya Construction Ltd. & Anr.) where it has been held that architect or engineer must be produced by Complainant to prove alleged defects/deficiencies in constructions of flats. The ratio of decision will be applicable in our case because unless a technical person is appointed for ascertain the same, on the basis of oath against oath the alleged dispute cannot be adjudicated. Therefore, Complainants have also failed to prove deficiencies either in respect of installation of fire lift passenger having carrying capacity of eight persons or to prove shortage of saleable area of flat.
Fifthly and lastly, the Complainants have alleged that the claim of the OPs regarding documentation charges amounting to Rs.16,371/- is unethical and excessive. To fortify the same an order passed by the West Bengal Information Commission dated 19.04.2014 has been filed. The materials on record indicate that on 19.04.2010 the KMDA wrote a letter to the Complainants forwarding thereby the copy of draft deed of conveyance but the Complainants raised dispute as to some terms and conditions of the said agreement. As per terms of the agreement, there was hardly any scope on the part of the allottee to raise such dispute. The Complainants have liberty to withdraw himself from purchasing the flat but there is hardly any scope to rewrite the agreement and only Civil Court may entertain such a dispute and not by a Consumer Forum. Therefore, Complainants have also failed to prove their allegations on this count.
Therefore, it becomes crystal clear that Complainants have not been able to prove the allegations of deficiencies in services on the part of OPs and as such this point is decided in the negative and against the OPs.
Point no.4:-
On evaluation of material on record and in view of our foregoing discussion in Point no.3, we have no hesitation to hold that the Complainants have failed to prove the allegations of deficiency in services on the part of OPs in a dispute or Housing Construction and as such the complaint is liable to be dismissed. However, considering the facts and circumstances of the case, we do not like to pass any order as to costs.
In the result, complaint fails.
It is, therefore,
ORDERED
That the complaint is dismissed on contest but without any order as to costs.
