O   R   D   E   R

 (Per Ms. Savita G. Kurtarker, Member)

By this Order we shall dispose of the Complaint filed by the Complainant u/s 12 of the Consumer Protection Act.

The  facts of the case are as under:

1. The Complainant is in possession of the Flat No. S-2 situated on second floor of the Building ‘B’ of Romart Apartments, constructed in the property known as ‘Ajabata’  surveyed  under chalta No.11 of P.T. Sheet No. 22 of Margao City Survey.

1. The said flat was purchased by the Complainant from the Opposite Party No.2 who is the proprietor of Opposite Party No.1, vide Agreement for Sale dated 08.02.2002 registered under No. 659 at pages 309 to 326 of Book-I, Vol. No.1301 dated 01.03.2002.

1. The possession of the flat was given to the Complainant on 09.01.2003.

1.  After taking possession the Complainant noticed various defects in the said flat.  Those defects/irregularities which are as under:

1. Passage to the building wherein the said flat is situated was promised to be provided without any obstruction.  However, the same continues to be obstructed by the existence of the parapet of a well as also by the existence of a balcony of a first floor flat.

1. No sufficient head room is provided for at the entrance of the said building wherein the said flat is situated.

1. Works of the staircase are yet to be completed, as on date, i.e. application of Nehru polish (lime) is yet to be done, further no wiring has been done, all the staircases and the same are not provided with any lights.

1. The roof of the building wherein the said flat is situated has not been waterproof.

1. The said flat has not been provided with an independent electricity/water connection.

1. The walls of the said flat have developed cracks and require to be filled.
2.  

1. The roof of the said flat leaks during the monsoon season, i.e. from June 2004.

1. The painting of the ceiling of the said flat is destroyed on account of seepage of monsoon waters.

1. The door polish of the outer door of the said flat has been destroyed while works of painting of the building wherein the said flat is situated, were being carried out.

1. The external door frame of the outer door of the said flat has not been polished and/or painted.

1. The paint of the external walls of the building wherein the said flat is situated has faded due to use of sub-standard materials.

• No door to the open terrace and of the open duct situated on the ground floor of the said building has been fixed resulting in flow of rain waters in the building and the said flat.

1. No ventilation to the said flat and the said building, has been provided for i.e. no ventilators to the windows of the bedroom and hall of the said flat have been provided for and glasses have been fixed on the external of the building on the second floor without any ventilators, i.e. on the staircase.

• The septic tank exhaust pipe is made to terminate near the kitchen window of the said flat which causes nuisance and health problems.

• Chambers of the waste water drainage have not been laid at the proper location.

1. The surroundings of the said building have been filled with waste construction materials which are non bio-degradable and further the same have not been tarred as promised.

1. The compound wall around the land wherein the said building is situated is yet to be constructed.

1. No letter of possession has been issued with respect to the said flat.

1. No copy of the Occupancy Certificate with respect to the said flat has been issued.
2.  

1. The Complainant addressed a legal notice dated 10.12.2004 with a request to remove the defects/irregularities in the said flat and the same was duly served on Opposite Parties.

1. The Complainant’s contention is that at the time of taking over the possession, the Complainant was not given any copy of Occupancy Certificate and further the Complainant alleges that the Opposite Party No.2 has constructed  the building without complying the approved plan.

1. The Complainant also submitted that no electricity and water connections have been obtained by the Opposite Party No.2 to the said building.  According to the Complainant all the defects mentioned in para 4 of the complaint have come to the notice of the Complainant in  the year June 2004.

1. The Complainant prayed for the following reliefs:

1. That the Opposite Parties be forthwith directed to rectify all structural and other defects found enumerated in para 4  hereinabove.

1. To pay to the Complainant a sum of Rs.1,00,000/- towards damages for mental torture anguish etc.

1. Costs and any other reliefs deemed fit and proper in the circumstances of the case be granted.

1. The Complainant relied on the following list of documents at the time of filing the complaint.

1. Agreement  of Sale dated 08.02.2000 alongwith sketch.

1. Receipt issued by Sub Registrar dated 08.02.2002

1. Cash Voucher dated 06.02.2002 issued to the Opposite Party.

1. Receipts (two) dated 08.02.2002 and 09.01.2003 issued by the Opposite Party

1. Receipt issued by Minguelinho F. Andrade dated 20.01.2005

1. N.C. Complaint made by the Complainant to the Margao Town Police dated 11.11.2004.

1. Complaint made by the Complainant to the Margao Town Police dated 04.11.2004.

1. Approved Plan.

1. Legal Notice dated 10.12.2004 alongwith 2(two) A/D cards .

1. Report of Engineer Pascoal Barbosa Noronha dated 09.12.2004.

1. Photographs (7 in number) alongwith negatives and cash memo.

1. The Opposite Parties were served and filed their written version and denied all the allegations made in the complaint.  It is the case of the Opposite Parties that the building has been constructed as per the approved plan and the Occupancy Certificate and completion certificate have been issued by the authority.

1. It is the case of the Opposite Parties that the Complainant has carried out the structural changes to his flat which is visible on comparing the approved plan of the said flat with the plan of Engineer Pascoal Noronha and according to the Opposite Parties the cracks that are alleged to have developed in the said flat and the leakage of water as alleged, if true, may be due to the Complainant carried out structural changes to his flat without permission of the Opposite Parties.

1. In their written version the Opposite Parties have pointed out at page 5 para 4(r) that the letter of possession has been issued by the Opposite Party No.2 to the Complainant and the same is with HDFC Housing Finance from whom the Complainant has taken a loan and without the same HDFC Housing Finance would not have sanctioned loan to the Complainant.

1. The Opposite Parties prayed for dismissal of the complaint.

1. The Opposite Parties relied on the following list of documents at the time of filing of the written version.

1. Receipt issued by the Opposite Party dated 06.02.2002.

1. Receipt issued by the Opposite Party dated 08.02.2002.

1. Receipt issued by the Opposite Party dated 09.01.2003

1. Copy of the letter addressed to the chief Officer, Margao Municipal Council dated 16.09.2002.

1. Copy of completion letter dated 09.04.2003 issued by the SGPDA.

1. Copy of Occupancy Certificate dated 14.11.2003 issued by the Margao Municipal Council.

1. Copy of reply dated 07.01.2003 addressed to Adv.Vivek Vaz.

1. Sealed return envelope with reply dt. 07.01.2003 addressed to Adv. Vivek Vaz.

1. Approved Construction Plan

1. Plan produced by Complainant drawn by Eng. Pascoal Noronha.

1. Agreement of Sale dated 08.02.2002.

1. The Complainant filed Affidavit-in-evidence and additional Affidavit-in-evidence and Affidavit-in-evidence of his expert witness Mr. Pascoal Noronha.  The Opposite Parties also filed their Affidavit-in-evidence.

1. We heard ld. Advocates for both the parties orally.

1. We have gone through the complaint, copies of the documents, Affidavit-in-evidence and additional Affidavit-in-evidence of the Complainant and the witness of the Complainant. We have observed

that clause 21 of the Agreement for Sale dated 08.02.2002 speaks as under:

1.  We are of the opinion that the Agreement is binding on the parties to the Agreement.  Therefore the Complainant is bound by clauses enumerated in the agreement.  We have seen at para 4 of the complaint and at para 5 of the Affidavit-in-evidence Complainant has shown the defects to the building.  The Complainant at para 4(a) of the complaint and at para 5(a) of Affidavit-in-evidence states that passage to the building wherein the said flat is situated was promised to be provided without any obstruction, however the same continued to be obstructed by the existence of the parapet of the well and also of the existence of the balcony of first floor flat.  We are of the opinion that this defect was existed and visible at the time of construction of the building wherein the flat of the Complainant is situated and also visible at the time of taking possession of the flat.  It is seen from the conduct of the Complainant inspite of the said defect the Complainant has taken possession of the flat. 

1. Further the defects at para 4(b) 5(b), 4(c) 5(c), 4(d) 5(d), 4(f) 5(f), 4(g) 5(g), 4(h) 5(h), 4(i) 5(i), 4(j) 5(j), 4(k) 5(k), 4(l) 5(l), 4(m) 5(m), 4(n) 5(n), 4(o) 5(o), 4(p) 5(p) and 4(q) 5(q) of the complaint and Affidavit-in-evidence respectively which defects were visible before taking of the possession.  Inspite of that the Complainant has taken possession in contravention  of  clause 21 of the Agreement for Sale.  Therefore

we are of the opinion that the Complainant is not entitled from the Opposite Parties rectification of any of the defects mentioned in this para.The defects mentionedin para 4 (r) & (s) of the complaint and the same defects are mentioned at para 5 (r) & (s) of the Affidavit-in-

evidence of the Complainant could not be considered because at the time of written version the Opposite Parties have filed the completion letter of SGPDA dated 09.04.2003 and the Occupancy Certificate issued by the Margao Municipal Council forthe said complex.

1. We have gone through the Occupancy Certificate bearing No. 3(OC)1/03-04/TECH/128 which duly states that the building has been inspected by the Engineer of the Council and that four flats G-1 to G-4 on the ground floor and four flats F-1 to F-4 on the first floor and three flats S-1 to S-3 on the second floor have been completed as per the approved plans and the building confirms in all respects of  structural safety, fire safety, hygienic and sanitary conditions inside and in the surrounding and fit for  residential purpose.  This certificate was issued on 14.11.2003.  Therefore we are of the opinion that the Occupancy Certificate issued by the Margao Municipal Council is to be considered while deciding the present complaint on merits. Therefore we are of the opinion that whatever defects in construction stated in the complaint could not be accepted.  We agree with the contention of the Opposite Parties that the Complainant has carried out structural changes to his flat and without any ivota of evidence before us to accept the contention of the Complainant that leakage of the water through the walls, development of cracks to the walls of the flat are construction defects or whether the defects are due to structural changes made by the Complainant to his flat.

1. At the time of the arguments the ld. Advocate C. Vas for the Opposite Parties shown his willingness to provide independent electricity to the flat of the Complainant.  He stated that application had already been forwarded to Electricity Department for domestic electricity meter in

the name of the Complainant as back as a year ago before filing of this complaint.That time the Electricity Department had no meters, therefore same could not be installed.Ld. Advocate for Opposite Parties also suggested that he will pursue the application with Electricity Department.

1. While perusing the records we have observed that the Complainant has not denied that the  roof of the building has been covered with Mangalore tiles.  However, the Complainant’s grievance is that roof  is not water proof.  We find no undertaking for water proofing of the roof in the Agreement for Sale executed between the parties.  We cannot travel beyond the Agreement.

1. The Complainant has not brought on record sufficient evidence to support his complaint that the Opposite Parties have not constructed the building as per the approved plan, in absence of such evidence we are unable to hold that the Opposite Parties have committed act of deficiency.

1. That during the course of arguments it was brought to our attention by the ld. advocate for the Opposite Parties that the Housing Co-op Society has been duly formed for occupants of that building, the land and premises has been conveyed into said housing co-operative society and the Complainant became the member of the said Housing Society. 

1. The Complainant alongwith the report of Engineer Pascoal Barbosa Noronha has attached the sketch of the flat belonging to the Complainant.  When the said sketch of the flat is compared with the copy of the original plan to the agreement, we have observed that the balconies to the bed room and kitchen have been removed and also we noticed removing of middle walls of bedroom and kitchen.  However, the Engineer Pascoal Barbosa Noronha has not mentioned structural changes made to the said flat by the Complainant.  Therefore, we
2.  

    cannot accept the contents of his report and also defects mentioned by him  in his report as the construction defects.

Under the circumstances we are inclined to dismiss the complaint and pass the following order.

           The complaint is dismissed with no orders as to costs.

                                                                      (Shri Jayant S. Prabhu)

                                                                                  President

                                                            (Ms. Savita G. Kurtarker)

                                                                           Member

                                                                        (Ms. Cynthia A. Colaco)

                                                                                      Member