Date of Filing 18.05.2023

                                                                                                             Date of Disposal: 31.01.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                              ……MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA(Inter), BL.,                                                            ……MEMBER-II

CC.No.52/2023

THIS WEDNESDAY, THE 31^st DAY OF JANUARY 2024

Mrs.S.Geetha,

W/o.Late S.Sampathkumar,

Residing at Villa 65 Allam Senior Heaven,

Stepsstone Private Limited, Radha Nagar,

Retirement Community Centre, Neman B Village,

Chennai 600 124, Thiruvallur District.                                                  ......Complainant.

                                                                              //Vs//

1.M/s.Stepsstone Promoters Private Limited,

   Having its corporate office at

   No.1/1, Sakthi Nagar, 2^nd Street,

   Choolaimedu,Chennai 600 094.

2.The Managing Director,

   Stepsstone Promoters Private Limited.

3.Mr.Prabhu,

   Site Engineer for AALAM NEMAM layout,

   Stepsstone Promoters Private Limited.

4.Mr.Bhoobalan,

   Site Engineer for AALAM NEMAM layout,

   Stepsstone Promoters Private Limited.

All 2 to 4 are having office at

No.1/1, Sakthi Nagar, 2^nd Street,

Choolaimedu,Chennai 600 094.                                                         ….opposite parties.

Counsel for the complainant                                        : M/s.M.K.Sathish, Advocate.

Counsel for the opposite parties                                 :  M/s.Rithvik Anand, Advocate.

This complaint coming before us on various dates and finally on 24.01.2024 in the presence of M/s.M.K.Sathish, counsel for the complainant and M/s.Rithvik Anand, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to the construction made by the opposite party 1 & 2 in deviation of the approved plan along with a prayer to demolish the staircase built abutting the southern side wall of the living room of the complainant’s villa and to pay a sum of Rs.20,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with the litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that the complainant and her son namely S.Vijayaraghavan had purchased a land measuring 646 square feet bearing Plot No.65 comprised in Survey No.455/1 and Patta No.881, within the AALAM NEMAN layout. The complainant and her son had entered into an construction agreement with the 1^st opposite party to develop the said property by constructing a villa with a built-up area of 450 square feet.  Total construction cost of the villa was fixed at Rs.8,10,000/- and the same has been paid by the complainant to the 1^st opposite party as per the terms of the construction agreement. At the time of construction the 1^st opposite party had constructed the basement of the southern side wall of the living room in the same without leaving any setback and at that time the complainant had approached the opposite party 2 to 4 and urged to leave the setback as per the existing rules and regulations but the opposite party 2 to 4 had pacified the complainant by expressing that there would not be any trouble in the future with regard to the setback on the southern side of the villa, since a new villa at Plot No.64 situated on the southern side of complainant’s villa will be constructed by leaving a setback on the northern side of the same as done to the complainant’s villa.  Thereafter the 1^st opposite party had completed the construction of villa and handed over the possession of the same to the complainant and her son on 11.08.2021. The opposite party 1 & 2 commenced to construct the Plot No.64 through the opposite party 3 & 4.  During the month of October 2021 the complainant had gone to the house of her relatives at Chromepet and stayed with them for few days.  At that time the opposite parties 3 & 4 had engaged labourers and constructed the basic structure of the staircase of the neighbouring villa in such a way that the same was abutting the southern side wall of the living room of the complainant’s villa. After her return from Chromepet she had contacted all the opposite parties and repeatedly requested them to demolish the basic structure of the staircase built for the neighbouring villa and to reconstruct the same by leaving space measuring at least 3 inches between the southern side wall of the living room of complainant’s villa and the staircase of the neighbouring villa to avoid any future complications. Inspite of the repeated requests the opposite parties had failed to demolish the basic structure of the staircase. Owing to such irregularity the southern side wall started seepage of water during the rainfall. Hence the complainant issued a legal notice to the opposite parties on 31.01.2023 calling upon them to either provide a new villa at the AALAM NEMAM layout or immediately demolish the staircase abutting the southern side wall of the living room of complainant’s villa. But of no response. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties 1 & 2 to demolish the staircase built abutting the southern side all of the living room of the complainant’s villa and to pay a sum of Rs.20,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with litigation expenses to the complainant.

The crux of the defence put forth by the opposite party 1 & 2:-

3. The opposite party 1 & 2 filed version disputing the complaint allegations contending inter alia that the complainant’s son was a party to the construction agreement entered with them but the present complaint was filed by the complainant alone and hence the complaint is liable to be dismissed for non-joinder of necessary party. Further it was submitted that the complaint is liable to be dismissed also for misjoinder of parties for the reason that there is no relationship between the complainant and the opposite party 3 & 4. The opposite party had constructed the construction as per the specifications mentioned in the construction agreement dated 06.06.2019. The complainant and her son were periodically visiting the complaint schedule premises when the construction activities were going on. Therefore it is inappropriate on the part of the complainant to allege that the opposite party 1 & 2 had constructed the construction in contravention to the construction agreement. As admitted by the complainant that she took possession of the complaint schedule premises as early as 11.08.2021 without any demur. It was denied that the 3^rd opposite party intimidated the complainant with dire consequences if she does not give up her demands. The neighbouring premise has been constructed strictly as per the plan submitted and sanctioned by the Statutory Authorities. It was denied that the opposite party 1 & 2 offered an alternate villa. Thus they sought for the dismissal of the complaint.

The crux of the defence put forth by the opposite party 3 & 4:-

4. The opposite party 3 & 4 filed version disputing the complaint allegations contending inter alia that the complainant could not press for any relief against them as there was no consumer and service provider relationship between the complainant and the opposite party 3 & 4. Complaint was not only misconceived, frivolous, vexatious in nature but also an abuse of process of law therefore liable to be dismissed with exemplary costs.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. On the side of opposite parties proof affidavit was filed but no documents were submitted. The Advocate Commissioner appointed by this Commission vide CMP.No.116/2023 filed a report along with Chartered Engineer’s Report on 22.12.2023 and the same was marked as Ex.C1 as Court Document.

Points for consideration:-

1)    Whether the complaint allegations against the opposite parties with regard to the construction made by them in deviation of the approved plan has been successfully proved by the complainant by admissible evidence?

2)    If so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1)    Construction Agreement dated 06.06.2019 was marked as Ex.A1;

2)    Sale Deed dated 13.09.2019 was marked as Ex.A2;

3)    Site cum ground floor plan for construction of villa at Plot No.65 was marked as Ex.A3;

4)    Legal notice issued by the complainant to the opposite parties dated 31.01.2023 was marked as Ex.A4

5)    Reply notice of the opposite parties dated 13.02.2023 was marked as Ex.A5;

6)    Aadhar card of the complainant was marked as Ex.A6;

6. Heard both learned counsels appearing for the complainant and the opposite parties 1 to 4.

7. The crux of the arguments of the complainant’s counsel is that the complainant along with her son purchased a Plot and constructed a villa for the Residential purpose in AALAM NEMAM layout.  As the villa constructed adjacent to the complainant’s property in Plot No.64 was built without leaving any space on the southern side of the complainant’s property, it resulted in slow seepage of water during the rainfall.  Further the basis structure of the staircase was built in such a manner that it would cause complications in future.  Though several talks were held between the complainant and the opposite parties for amicably settling the matter the opposite party 1 & 2 failed to do so.  Thus the present complaint was filed to direct the opposite party 1 & 2 to demolish the disputed construction and to pay compensation. The learned counsel also cited the Advocate Commissioner’s Report in proof of water seepage on the southern side wall of the complainant’s property.  He also disputed the Advocate Commissioner’s Report and Chartered Engineer’s Report stating that both properties were constructed only as per the plan.

8. On the other hand, the learned counsel appearing for the opposite parties 1 to 4 disputed the very maintainability of the complaint itself stating that when the property was purchased in the name of two persons one person alone could not file the complaint and hence the complaint itself bad for non-joinder of necessary party.  On merits relied upon the report submitted by the Advocate Commissioner and Chartered Engineer and argued that there was no deviation in the construction made by the opposite parties.  Thus he sought for the dismissal of the complaint.

9. Perused the pleadings and material evidences produced by both parties. It is found that the property was constructed after purchasing the same from the 1^st opposite party in Plot No.65, in AALAM NEMAN layout by the complainant and her son.  However, the complaint was filed by mother alone.  As per Consumer Protection Act 2019 in the definition of complainant as per Section 2(5) the definition includes one or more consumers, where there are numerous consumers having the same interest under Sub clause 2(5) (v).  Therefore, though when the property was purchased in the name of mother and her son and when it was alleged by the complainant that her son met with an accident and hence could not come to Court, considering the same she alone filing the complaint could not be considered as fatal for maintainability of the complaint. Further when both are residing in the same property and complainant being one of the beneficiaries she could not be prevented from filing the complaint in her individual capacity.   Thus we brushed aside the defence version raised by the opposite parties that the complaint has to be dismissed on the ground of non-joinder of necessary party could not be held as a defence.

10. However, with regard to the merits of the complaint it is seen that as per the Chartered Engineer and Advocate Commissioner’s Report there is no deviation in the construction.  The Engineer has provided that as per the approved plan the setbacks are given on the three sides except on the southern side. Further it is stated that except the small sit out on the front side, there is no deviation in the construction.  Thus it is clearly established that the plan permission itself has been obtained by the opposite party 1 & 2 without giving gap on the southern side which could not be agitated in the present complaint as the allegation in the present complaint relates only to the construction made by the opposite party in the adjacent villa.  The same observations were made for the neighbouring villa.  It has been mentioned that villa 64 was also constructed as per the approved plan.  Thus it is clearly stated that both villas were constructed as per the approved plan and there is no deviation.  In such circumstances the complaint allegations that the adjacent villa has been constructed in deviation of the approved plan causing hindrance to the enjoyment of the complainant’s villa could not be accepted. Thus we find that there is no deficiency in service or unfair trade practice on the part of opposite parties in the matter of construction of the neighbouring villa of the complainant. We answer the point accordingly in favour of the opposite parties and as against the complainant.

Point No.2:-

11.  As we have held above that the opposite parties had not committed any deficiency in service or unfair trade practice to the complainant, she is not entitled any relief from the opposite parties.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 31^st day of January 2024.

         -Sd-                                                       -Sd-                                                       -Sd-                                                                                                               

 MEMBER-II                                           MEMBER-I                                           PRESIDENT

List of document filed by the complainant:-

Court Document:-

      -Sd-                                                       -Sd-                                                         -Sd-

MEMBER-II                                           MEMBER-I                                           PRESIDENT