Complaint filed on: 12.02.2014

Disposed on: 02.07.2019

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.287/2014

DATED THIS THE 02^ND JULY OF 2019

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

Complainant/s: -                           

Hoysala Commanders

Retreat Apartment

Owners Welfare Association

Having its Office at

No.1524, 6^th Cross Road, Bhadrappa Layout,

Bengaluru-94.

Rep. by its President AVM B.C. Nanjappa AVSM VSM (Retd)

By Advocates

M/s.Fox Mandal & Associates, Solicitors

V/s

Opposite party/s:-    

1. M/s.Hoysala Projects,

A Private limited Company incorporated under the Companies Act, 1956

Having its Corporate Office

at No.104, Ground Floor,

Infantry Techno Park,

Infantry Road,

Bengaluru-01.

Rep. by its M.D. Sri.T.S.Sathish

By Advocates M/s.Anil Associates

2. M/s.Jupiter Infrastructure (Bangalore) Pvt. ltd.,

Having its Office at

No.34, E-Block Extension

Behind Swathi Gardenia, Sahakaranagar,

Bengaluru-92.

Rep. by its M.D.

By Adv.Sri.SriKantham.V.R

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

            This complaint is filed by the Complainant against the Opposite party No.1 & 2 (herein after called as OPs), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OP.1 to undertake and complete the following works:

1. Provide the water supply from BWSSB to the complex inclusive of storage and pumping and metering to overhead tanks
2. Complete/operationalize the facility for rain water harvesting, filtration and ground water recharge
3. Undertake the construction and completion of sewerage line linking the line to the main sewerage line  
4. Pay all outstanding charges as levied by the BWSSB and hand over all documents pertaining to payment of taxes and BWSSB charges pertaining to entire project
5. Pay betterment charges as laid down by BBMP in full for the complex and remaining property taxes for site 51
6. Undertake and construct dual piping systems to use the treated sewage water of adequate purity for toilet flushing, gardening and other purposes as laid down by the Karnataka Pollution Control Board                                              

Further prays to direct the OP.1 to pay Rs.18 lakhs with interest at 18% p.a. towards deficiency in service; to pay Rs.15,000/- towards cost and to grant such other reliefs deem fit for which the Complainant is entitled to in the interest of justice and equity.

2. The brief facts of the complaint is as under:

The Complainant submits that, the Complainant is a society registered under Karnataka Societies Act, 1960 on 09.08.12, which address the issues of the owners of the residents. OP.1 is the developer. OP.2 is an advertiser of OP.1 and intermediary between the Complainant and OP.1. OP.1 had advertised in its brochures that the complex would be prestigious and pivotal in housing and assured that timely, prompt service and amenities like a swimming pool, landscaped garden etc., would be provided to all the residents. Hence, the prospective purchasers invested their hard earned money to purchase the flats and entered in to sale agreement. The purchasers paid the entire sale consideration including the additional levy for electricity and municipal water charges in accordance with the terms & conditions of the agreement.

2a. The Complainant further submits that, as per clause 14 of the sale agreement, the date of handing over the possession of the flats were on 15.12.10. The reasonable extension of time alloted to OP.1 was three months. But OP.1 made inordinate and unexplained delay in handing over the possession of the flats. Further OPs have not complied certain pre-requisite conditions laid down by the BWSSB and Pollution board at the time of issuing No-objection. The Complainant noticed that many of the assured basic amenities, mandatory requirements are incomplete. The rain water harvesting facility and STP constructed by OP.1 was incomplete. Property tax pertaining to site no.51 which forms part of the entrance of the complex and the betterment charges for the entire complex was unpaid. The payments with regard to municipal water connection has been made by the residents at the time of entering in to agreements, but OP.1 not paid the same to BWSSB. Hence, there is no municipal water connection to the said flats.

2c. The Complainant further submits that, he brought to the notice of the OP.1 that list of works pending for completion vide letter dtd.01.10.12. OP’s representative assured to attend the said works on priority. But OP.1 replied on 15.10.12 stating that there is no any work remained pending. BWSSB and BBMP issued notices to OP.1 regarding nonpayment of betterment charges. OP.1 has collected the payments towards betterment charges, but misappropriated the said amount and had not paid the same to the concerned authorities. Hence, being aggrieved by the act of the OP.1, Complainant issued legal notice dtd.19.08.13 for deficiency in service, unfair trade practice and misappropriation. OP.1 issued an untenable reply on 06.09.13. However, in the notice, it is admitted that the issue relating to the municipal water connection would be duly sorted out and sought a period 180 days. But OP.1 has not commenced anything to evidence to its promises. Since the completion of the complex in 2011, OP.1 despite making repeated assurances has not delivered on the promises made in the brochures as well as the agreements.  Hence, the Complainant has approached this forum.

3. The OP.1 & 2 both appeared before this forum, but only OP.1 filed objections. In the objection, the OP.1 submits that, the complaint is not maintainable either in law or on facts. The OP.1 has given suitable reply on 06.09.13 to the legal notice issued by the Complainant on 19.08.13. Main grievance of the Complainant is in respect of providing water supply and sanitary connections from the BWSSB. At the time of obtaining NOC from BWSSB, OP.1 had remitted an amount of Rs.12,80,000/- towards GBWSP charges on 21.04.19 and also an amount of Rs.1,19,457/- towards NOC charges on 22.04.19. Subsequently, after the completion of the building the OP.1 had applied for BWSSB connection. However, on considering the application for connection, BWSSB had issued a demand note on 13.04.12 asking to remit an amount of Rs.30,26,300/- pro-rata charges and an amount of Rs.11,00,320/- towards GBWASP charges totaling to Rs.41,26,620/- without considering the fact that OP.1 had already paid the GWASP charges at the time of sanctioning itself. In view of this discrepancy, OP.1 had not remitted the amount and had sought clarification on pro-rata charges and an amended demand note from BWSSB reducing the amount already paid towards GBWSAP charges. After continuous follow-ups from OP.1, on 20.05.14 BWSSB has issued revised demand note to pay an amount of Rs.28,78,150/- towards pro-rata charges and also confirming the receipt of GBWASP charges paid during issuance of NOC. Hence, OP.1 has no intention whatsoever to misappropriate the amount paid by the purchasers.

3a. The OP.1 further submits that, he has installed Sewage Treatment Plan (STP) at the apartment building at the cost of Rs.25 lakhs for the benefit of the occupants without collecting any extra charges from the purchasers of the building. Further in respect of Rain water harvesting (RWH) is concerned, OP.1 constructed the said facility which was fully operational and the same was constructed according to the norms. The building was handed over to the owners in the year 2011 itself. Subsequently the owners of the apartment formed a registered association i.e. the Complainant society. After handing over the building, it is for the association to maintain the STP and also RWH facility. In fact the bylaws of the Complainant association provides for maintaining infrastructure and the civic amenities of the complex which includes STP and also RWH facility, among others. With respect to the alleged property tax pertaining to site no.51 is concerned, the said site number is wrongly shown as site no.51 instead of site no.50. OP.1 has remitted up to date taxes in respect of site no.50.

3b. The OP.1 further submits that, the BBMP inspected the building premises and after having satisfied about the compliance of all the building Byelaws, including RWH in all respects has issued the occupancy certificate on 27.10.10. The issue regarding betterment charges is concerned, the matter is before High Court of Karnataka. The OP.1 has already paid a substantial amount on 17.01.09 itself towards betterment charges. Further, OP.1 is ready and willing to pay the balance amount towards betterment charges to the BBMP in respect of the said building after the outcome of the batch of writ appeals.

3c. The OP.1 further submits that, OP.1 has never neglected on its duties and has never indulged in service deficiency and unfair trade practice or unjust enrichment as falsely alleged by the Complainant. The Complainant in its notice dtd.19.08.13 had claimed an astronomical amount of Rs.25 lakhs as compensation on account of alleged unjust enrichment and negligence and in the complaint the Complainant has claimed an amount of Rs.18 lakhs as compensation. The OP.1 is not liable to pay any amount towards compensation as wrongly claimed by the Complainant. The intention of the Complainant in filing the above complaint appears to be to make illegal and wrongful gain by making unnecessary and unwarranted allegations against the OP.1, only within malafide intention to harass and arm twist the OP.1, to come to terms. Hence, on these grounds and other grounds, there is no unfair trade practice adopted by the OP.1 and also there is no deficiency in service on its part. Hence, prays this forum to dismiss the complaint.

4. In the course of enquiry into the complaint, the Complainant and the OP.1 has filed their affidavit reproducing what they have stated in their respective complaint and objection. Both have filed written arguments. Both parties have produced documents which were marked. We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the Complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he entitled for the relief sought for ?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Partly in the affirmative

Point No.2:  As per the order below

REASONS

7. Point No.1: Admittedly all the following amenities and pending works were complied by the OP.1 in the year 2014 itself:

1. Provided the water supply from BWSSB to the complex inclusive of storage and pumping and metering to overhead tanks
2. Completed/operationalized the facility for rain water harvesting, filtration and ground water recharge
3. Undertaken the construction and completion of sewerage line linking the line to the main sewerage line  
4. Paid all outstanding charges as levied by the BWSSB and hand over all documents pertaining to payment of taxes and BWSSB charges pertaining to entire project
5. Paid betterment charges as laid down by BBMP in full for the complex and remaining property taxes for site 51
6. Undertaken and constructed dual piping systems to use the treated sewage water of adequate purity for toilet flushing, gardening and other purposes as laid down by the Karnataka Pollution Control Board                                              

The grievance of the Complainant was satisfied as long as back in the year 2014 itself. The said matter is kept pending only for the purpose of compensation. Admittedly, OP.1 has paid BWSSB charges and obtained the NOC. The OP.1 had collected Rs.1,50,000/- from each apartment owners to pay towards electricity and municipal water charges. OP.1 had not disputed the receiving of the said amount. Though OP.1 had received the amount from the apartment owners, OP.1 had not remitted the said amount to BWSSB and kept the amount with OP.1. Only after filing of this complaint, OP.1 had paid the amount to BWSSB and obtained the NOC in the year 2014. The said act of OP.1 made the Complainant to get Cauvery water supply after delay of 2 years. Further the Complainant is claiming Rs.18 lakhs towards compensation. OP.1 complied with all the requirements to the satisfaction of the Complainant in the year 2014. The Complainant cannot earn a bounty at the cost of the OP.1. Hence, we decline to award compensation of Rs.18 lakhs. Further with regard to deficiency in service caused by the OP.1 concerned, we are convinced to award Rs.50,000/- towards compensation and Rs.10,000/- towards cost of litigation. Accordingly, we answered the point no.1 partly in the affirmative.  

8. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint filed by the Complainant is allowed in part.

2. The OP.1 is directed to pay compensation of Rs.50,000/- and cost of litigation of Rs.10,000/- to the Complainant. 

3. This order is to be complied by the OP.1 within 45 days from the date of receipt of this order.

4. The complaint against OP.2 is dismissed, since there is no any dispute/grievance raised by the Complainant in the present complaint.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 02^nd day of July 2019)

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

Sri.AVM B.C.Nanjappa AVSM VSM (Retd.,) who being the President of the Complainant Association was examined. 

Copies of Documents produced on behalf of Complainant/s:

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

Sri.Amaranath Hiremath, who being the Manager Legal and Authorized Signatory of OP.1 was examined. 

Copies of Documents produced on behalf of OP.1: