DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  14^th  day of  July, 2023 

Present      :    Sri. Vinay Menon V., President

                  :   Sri. Krishnankutty N.K., Member                               Date of Filing:  24/04/2017    

            CC/72/2017

By  Sri. Vinay Menon V., President

1. Essence of voluminous pleadings and documentary evidence can be shredded short to merely one question: whether the O.P.s had effected unilateral variation at the time of providing septic tank at the time of construction in violation of the approved plan?
2. Complaint grievance is that the complainants are residents of the apartment complex constructed by the O.P. and they all have one and the same grievance - that contrary to the undertaking upheld by the O.P. while submitting a plan before the civil authorities for construction of the flat that the building will have a septic tank of 12,000 litres, the O.P had unilaterally reduced the volume to 3000 litres, thereby resulting in frequent overflowing. Frequent overflowing is a result of the reduction of volume of such apartment with large population. This reduction being deficiency in service, this CC is filed.
3. Skeletal version pleadings to adjudicate the dispute are that the O.P. had never assured the complainants that they would provide septic tank of 12,000 litres. There is not enough space for installation of a tank having a volume of 12,000/- litres.  Building was handed over after completion, and therefore there was no agreement between the complainants and the O.P.s with regard to a septic tank.  The complaint is grossly barred by limitation as the properties were sold as early as 2011. The complaint is bad for non-joinder of necessary parties as the manufacturer is not impleaded herein. 
4. The following issues arise for consideration:

1. Whether the complainant is barred by limitation?
2. Whether the complaint is bad for non-joinder of necessary parties?
3. Whether the O.P.s had effected unilateral variation at the time of providing septic tank at the time of construction in violation of the approved plan?
4. Whether there is any deficiency in service/unfair trade practice on the part of the O.P.s?
5. Whether the complainants are entitled to any of the reliefs?
6. Any other reliefs?

5.         (i)         1^st Complainant filed proof affidavit and marked Exts. A1 to A3. Signatory to this affidavit was examined as PW1.

                        Marking of Ext. A1 was objected on the ground it is a photocopy. Since this Commission is not bound to follow Indian Evidence Act and in the absence of a plea that this document is forged, objection of O.P. is discarded.

      Marking of Exts. A2 and 3 were objected to on the ground that they can be proved only thorough the persons who executed the document. They are receipts issued by the persons who had allegedly carried out cleaning works of the septic tank. Considering the nature of the documents, eventhough we are not bound by Evidence Act, we feel that it is in the interest of justice that these documents be relied on with caution as what is sought to be proved through Exts. A2 and A3 also requires corroboration. We will deal with the validity of the said documents as and when the need arises during discussion of the facts of the case in Issues.  

(ii)        O.P.s filed proof affidavit, but did not mark any documents.

(iii)       Report of the Expert Commissioner appointed by this Commission was marked as Ext. C1. O.P. had filed objection to this report. Expert Commissioner was examined as CW1. 

(iv)       Certified copy of Ext. A1 plan maintained in the records of Palakkad Municipality was marked as Ext. X1.

            Issue No. 1

6.         O.P.s’ preliminary objection is that sale occurred as early as 2011 and hence the complaint is barred by limitation. While examining the PW1, the O.P. had strived to         bring out from the witness that the complainants had notice of variation in size as early            enough to constitute bar of    limitation.

7.         It is to be noted that the allegations are with regard to the defective functioning of septic tank, which, in its nature is not a patent installation. It can be seen or notice only when  some problem arises. The complainant had stated they noticed the defects only during 2016. Nothing is forthcoming from opposite parties that prove thatthe complainant had notice of  the variation in size of the septic tank as early enough to constitute the bar or limitation. Further the Hon’ble National Commission had held in its judgment dated 4/9/2012 in Raghava Estate Ltd., V/s Vishnupuram Colony Welfare Assocation (2012 (4) CPR 188 (NC)) that when the dispute pertains to immovable properties and the amenities thereon promised by the opposite parties that were not provided, it can construed as giving rise to a continuing cause of action and it cannot be said to be barred by time.

8.         Hence we hold that the complaint is not barred by limitation.

Issue No. 2

9.         The next objection raised by the opposite parties is with regard to the non-joinder of the manufacturer of the precast septic tanks, who, according to OPs, are necessary for a justifiable adjudication of the dispute.

10.       Grievance of the complainant is not with regard to the functioning of the septic tanks but regarding unilateral variation from the accepted plan submitted before the Municipal authorities. Hence we hold that the complaint is not bad for non-joinder of necessary parties.

Issue Nos. 3 & 4

11.       Complainant’s grievance is that the O.P.s had obtained license for construction of the apartment complex by submitting a plan showing the volume of septic tanks as 12000 lts. Once the license having been availed from the Municipal Authorities, the O.P.s had reduced the volume of the septic tank. Contrary to the undertaking in the wake of constant overflowing of toilets, the complainant found that the opposite  parties had provided 2 septic tanks having combined  volume of only 3000 ltrs.

12.       The opposite parties contested that they had no agreement whatsoever with the complainants to provide septic tanks having a volume of 12000 ltrs, which plea, incidentally, is admitted by PW1. They also contented that septic tank of 3000 litres in enough to process the excretal waste of the apartment.

13.       In order to corroborate their contentions, the complainants took out an expert commissioner (CW1) whose report was marked as Ext.C1. Stating his findings to the third point to be noted in the work memo submitted by the complainants, CW1   has reported as follows:

            “As per the drawing the capacity of the cast  in site septic tank is 12000 Ltrs. But during inspection it is found that the septic tank provided is not as per drawing. Instead of cast in septic tank, two precast septic tanks are provided. The total capacity of two septic tanks provided is 1570 ltrs x 2  = 3140 Ltrs”  (sic)

14.       Said expert commissioner was examined as CW1. The entire cross examination of CW1 by the counsel for O.P.s was pointed to avail   an answer that reduction of the size of septic tanks has no connections whatsoever to the constant blockage of the toilets. Their attempt was to bring to notice of this Commission that the slowness of leaching action was due to the water level in the locality as well as the faulty handling of septic tank by amateurs leading to atmospheric intervention.

15.       It is of importance to note that the opposite parties has no case that they had varied the size of septic tank. They only harp on the contributory liability of the complainants in the over flowing of toilets.

16.       Evidence adduced by CW1 as well as a perusal of Ext.X1 would show that building permit was availed by the opposite parties for construction of an apartment complex with septic tank having a volume of 12000 ltrs, but they had in total variance reduced the size to 3140 ltrs. Even if the opposite parties cannot be said to have entered into an agreement with the complainants who are the beneficiaries, the O.P.s had availed sanction from an authority who is bound by law to uphold the beneficiary interest of such consumers.  O.P.s were under a statutory obligation to comply with the condition under which license was granted.  In a case before the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai  [Shreeyog Constructions V/s Prasad Madhukkar Deo (2012(1)CPR396)], the question related to legality of reduction of size of apartments from the approved plan and the said Commission had held  that builder had a statutory obligation to comply with and stick to the approved plan.   

17.       Accordingly we hold that the opposite parties had a statutory obligation to comply with/adhere to the approved plan. Any deviation there from without following official course of action is perse illegal.  Such conduct on the part of opposite parties is nothing short of unfair trade practice and deficiency in service.

Issue Nos. 5 & 6

18.       Consequent to the finding that there is deficiency in service and unfair trade practice on the part of OPs, we hereby direct as herein below:

            1. The opposite party shall pay each complainant (one complainant per  flat) an amount of Rs.50,000/- as compensation for their illegal activity.

            2. The opposite party shall pay each complainant (one complainant per  flat) an amount of Rs.25,000/- as cost of these proceedings. 

            3. If the complainants are initiating works for having a septic tank of 8860 Ltrs installed,  the opposite party shall pay the entire expenses incurred for such installation.  Needless to say, the complainants shall maintain proper papers of accounting for the works carried out. This order need to be complied with only if the complainants initiate their works within 60 days from the date of receipt of this order, with notice to the O.P.s by way of registered acknowledgement due communication or e-mail communication.

                              Pronounced in open court on this the  14^th day of July, 2023.        

                                                                                                                      Sd/-

                                                                                                            Vinay Menon V

                                                                President

           Sd/-                             Krishnankutty N.K.

                                                                                                                     Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 –  Copy of approved plan

Ext.A2 –    Original cash receipt dated 1/10/2016

Ext.A3  –   Original receipt dated 9/12/2017

 Exhibits marked on the side of the opposite party:    

Nil

Court Exhibit: 

Ext.C1 –Commission report dated 14/7/2020

Third party documents: 

Ext.X1 – Certified copy of approved plan produced by the Secretary, Palakkad Municipality

Witness examined on the side of the complainant:

PW1 – Mohandas (1^st Complainant)

Witness examined on the side of the opposite party: 

Nil

Court Witness:

CW1 – Mohandas, Expert Commissioner

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.