BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
Between
G.Damodar Reddy S/o G.Laxma Reddy
Hindu, aged about 43 years, Occ: Service
R/o Flat No.S-2, II-Floor, Tirumala Residency
Satyanarayanapuram, Gaddiannaram,
Saroornagar, Ranga Reddy District
Appellant/complainant
A N D
M/s Maitri Constructions
Rep. by its Managing Partner
N.Narayana Acharya
R/o H.No.2-2-144/15/A/1
New Nallakunta, Hyderabad
Respondent/opposite party
Between
A.Keshava Rao S/o A.Raman Rao
Hindu, aged about 34 years, Occ: Service
R/o Flat No.F-3, I-Floor, Tirumala Residency
Satyanarayanapuram, Gaddiannaram,
Saroornagar, Ranga Reddy District
Appellant/complainant
A N D
M/s Maitri Constructions
Rep. by its Managing Partner
N.Narayana Acharya
R/o H.No.2-2-144/15/A/1
New Nallakunta, Hyderabad Respondent/opposite party
Between
G.Srinivas S/o G.Veeraiah
Hindu, aged about 40 years, Occ: Service
R/o Flat No.T-2, III-Floor, Tirumala Residency
Satyanarayanapuram, Gaddiannaram,
Saroornagar, Ranga Reddy District
Appellant/complainant
A N D
M/s Maitri Constructions
Rep. by its Managing Partner
N.Narayana Acharya
R/o H.No.2-2-144/15/A/1
New Nallakunta, Hyderabad Respondent/opposite party
Counsel for the Appellants Sri S.S.V.R.Bhattar
Counsel for the Respondent Sri C.S.N.Raju
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE NINETEENTH DAY OF OCTOBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The facts of all the appeals are identical in nature. As such we propose to dispose of the appeals by a common order. F.A.No.1487 of 2008 is taken as the lead case.
The complainant is the appellant. The District Forum dismissed the complaint opining that the complainant is not entitled to the relief of Water Supply to his flat as he failed to produce notice issued by the Hyderabad Municipal and Sewerage Board requiring the complainant to pay amount for supply of drinking water and in the absence of any agreement for providing watchman room the relief sought there for does not found deserved to be allowed and other two reliefs were declined to be granted on the premise that the complainant failed to prove any deviation from the sanctioned plan resorted to by the opposite party . The relief of car parking area was left undecided concluding that either the complainant was given possession or he might have failed to pay the car parking charges.
The factual matrix of the case is that on 5th May,2006 the appellant and his wife entered into agreement of sale with the land owner and respondent for purchase of the flat bearing number T2 in Third Floor admeasuring 450 sq.ft with undivided share of land of 16 sq.yards in the plot number 43 in survey numbers 116,117 and 118 at Satyanarayanapuram, Gaddiannaram, Ranga Reddy District and on the same date, an agreement for construction with the respondent. The appellant paid an amount of four lakh rupees as per the schedule of payment to the respondent. The land owner and the respondent jointly executed registered sale deed dated 27th December,2006 in favour of the appellant and the respondent delivered possession of the flat to the appellant. The appellant along with other flat owners got issued notice to the respondent to provide the amenities, viz., watchman room, drinking water facility besides seeking rectification of leakage in cup boards in the flat purchased by the appellant.
The respondent resisted the claim on the premise that the appellant had not paid the entire cost of the flat of `6,20,000/- and that the appellant after verification of the amenities provided, had taken possession of the flat on 26th December,2006. It is contended that the respondent provided water provision and in the absence of any agreement for providing watchman room, the appellant cannot seek such relief. It was submitted that the appellant filed the complaint without any basis and at the instigation of one of the flat owners namely Damoder Reddy who had been on inimical terms with the respondent.
The appellant filed his affidavit and ExA1 to A12. The managing partner of the respondent firm ,M.Narayanacharya filed his affidavit and got marked ExB1 to B5.
The points for consideration are:
1. Whether the appellant is entitled to the amenities sought for?
2. Whether the respondent firm rendered any deficient service to the appellant?
3. To what relief?
POINTS NO.1 and 2: The facts not in dispute are the sale of the land admeasuring 450 sq.ft with undivided share of land of 16 sq.yards in the plot number 43 in survey numbers 116,117 and 118 at Satyanarayanapuram, Gaddiannaram, Ranga Reddy District by the land owner and the respondent and execution of the agreement for construction on 5th May,2006 in favour of the appellant. The other facts which are no more in dispute are the construction of the flat bearing number T2 in the third floor of the building by the respondent firm and delivery of possession of the flat on 26th December,2006 in favour of the appellant. The appellant claims for providing amenities, 1.watchman room, 2. Water supply to the building and 3. Car parking space apart form claiming damages and repairs of the cup boards as also damages of `25,000/-.
The construction agreement between the parties is the basis of their rights and liabilities. The contention of the respondent that the appellant agreed to pay an amount of `6,20,000/- to it is not supported by the terms of the construction agreement. Clause 4 of the construction agreement provides for the amount payable by the appellant and the amenities to be provided by the respondent firm. The total amount of Rs. four lakh was agreed to be paid by the appellant in phased manner, `50,000/- at the time of execution of the construction agreement, `50,000/- before completion of plastering, `40,000/- before completion of flooring, `2,35,000/- at the time of registration of the sale deed and `25,000/- at the time of taking delivery of possession of flat. Coupled with the construction agreement, the possession letter dated 26th December,2006 issued by the respondent establish the payment of entire amount by the appellant. The contention of the respondent that the appellant made part payment against an amount of `6,20,000/- to it does not hold water.
The appellant sought for direction to the respondent to provide watchman room and car parking area. Clause 4 of the construction agreement provides for car parking area whereas there is no agreement or any other document executed between the parties to the effect that the respondent promised for providing the watchman room. In the absence of any agreement the appellant cannot seek for performance of a promise which has not been made by the respondent. So far as the car parking space is concerned, in terms of clause 4 of the construction agreement, the respondent is bound to provide it to the appellant.
The appellant has submitted that water facility was not provided to the building as a result of which he and other flat owners in the building was compelled to purchase water from the Municipal water Board and the Hyderabad Municipal and Sewerage Board required the appellant to pay amount for getting water connection. The respondent refuted the charge on the premise that it had provided sufficient water provision to the building. It is stated that it had delivered possession of the flat in the month of December, 2006 and the appellant as also the other flat owners had not raised any objection relating to the provision of the water supply to the building. It is true the appellant had not protested that there was no water facility provided by the respondent, at the time of his taking delivery of possession of the flat.
The appellant and two other flat owners had got issued notice through their advocate on 19th June,2007 wherein it was stated that car parking place was not provided and certain leakage was traced out in the bedrooms of their respective flats. There was no mention of the lack of water facility to the building. It is pertinent note that the notice was issued on 19.6.2007 and the HMW & Sewerage Board issued notice on 3.5.2008 which has been filed in F.A.No.1486 of 2008 requiring landlord to get regularized the connection on the premise that the domestic connection prior to connection of the building was continued to be enjoyed even after construction of the apartments. The appellant and the other flat owners are not expected to know of the respondent’s in action is taking steps for regularization of the existing tap connection till the HMW & Sewerage Board served the notice dated 3.5.2008 on the landlord with whom the respondent entered into the Development Agreement for the purpose of construction of Tirumala Residence.
The appellant has contended that it is the obligation of the respondent to get water connection facility to the building and construct the building in consonance with the spirit of the sanction plan. The respondent, as aforesaid has contended that it had paid a sum of `8227/- for regularization of the tap connection and there was no violation of sanction plan at the time of purchase of the flat by the appellant. It is true, it is the obligation of the respondent to provide water facility to the building, Tirumala Residency and raise the construction in accordance with the terms of the sanctioned plan issued by the GHMC Hyderabad. The notice issued by HMW & S Board and the notice issued by GHMC Hyderabad go to show that though the appellant had paid the amount the water connection which was in existence was not regularized and there was some deviation from the terms of the sanction plan which has not been specifically spelt out required to be regularized. On both counts, the respondent is held liable to comply with the requirement of the notices issued therefor.
Insofar as the leakage of the certain portions of the building concerned the appellant failed to produce any evidence much less a technician’s report to substantiate his claim. We do not find any evidence in support of the contention of the appellant that there was leakage in cupboards in the flat purchased by him from the respondent. The respondent has submitted that the appellant has taken possession of the flat after verifying it as to its meeting the standard relating to the material used and construction thereof. It is further submitted that the appellant has not raised any protest at the time taking delivery of the flat that there was any such leakage as alleged in the notice that was issued about a year after his taking possession of the flat. We do find some force in the contention of the respondent as the flat would be deemed to be constructed in accordance with the standard relating to the construction till it is proved to the contrary by adducing any cogent evidence and as such in the absence of any evidence brought on record by the appellant, there cannot be any other conclusion than the one that there was no such leakage as alleged by the appellant in the complaint pertaining to the cupboards in the flat.
Therefore, in view of the facts and circumstances discussed above, we are of the considered opinion that the respondent firm rendered deficient service by not getting the water connection regularized and resorted to deviation of the terms of the sanction plan and has not allotted car parking place to the appellant for which reliefs we hold the appellant entitled to.
In the result the appeals F.A.No.1485 of 2008, F.A.No.1486 of 2008 and F.A.No.1487 of 2008 are allowed. The orders dated 22.9.2008 passed by the District Forum in C.C.Nos. 128 of 2007, C.C.No.129 of 2007 and C.C.No.130 of 2007 are set aside. The respondent/opposite party directed to take steps for regularization of water supply and sewerage connection and allot car parking slots to the appellants. The costs of the proceedings quantified at `2,000/- in each appeal. Time for compliance three months.
PRESIDENT
MEMBER
MEMBER
Dt.19.10.2010
KMK*
