PER JUSTICE J.M. MALIK, PRESIDING MEMBER

1.      Counsel for the parties present.    This order shall decide the cross appeals filed by both the parties separately in respect of the same order rendered by the State Commission dated 20.03.2012.

2.      The complaint was filed by the Pavan Residency Flat Owners Welfare Association, complainant in the year 2003 against the following opposite parties/respondents; (1) M/s. Pavan Builders,  Visakhapatanam, (2) Sri P.V. Narasimha Rao, proprietor of Pavan Builders, (3) Vice Chairman, Visakhapatnam Urban Development   Authority, (4) The Municipal Commission, the Greater Visakhapatnam  Municipal Corporation, Visakhapatnam.  

3.      The complainants formed a Registered Society consisting of 160 Members, who are the flat owners of Pavan Residency consisting of four blocks.  Opposite Parties-M/s. Pavan Builders-Opposite Party No.1 and Sri P.V. Narasimha Rao, O.P.2 in their brochure clearly stated that building is approved by Visakhapatnam Urban Development Authority (VUDA) and they would retain two flats.  All the members paid maintenance charges to the opposite parties No. 1 and 2 in the sum of Rs. 12,00,000/- at the rate of 7,500/- from each flat owner from the flat cost to form corpus fund.  Opposite Parties 1 and 2 also collected an amount of Rs. 4,200/- towards meeting and maintenance of common areas. 

4.      The main grouse of the complainants is that separate generators for each of the complex for operation of lifts, water pumps and illumination of common areas were not provided, instead, only one generator for all the four complexes was provided.  It is alleged that, as a matter of fact, that trial run of the generator, the ramp on which it was housed developed cracks due to vibrations as the opposite parties did not make arrangement to house the generator in a proper manner.  One generator of 160 KV was provided at a single place, which according to the opposite parties would cater to the needs of the common areas and water pumps.  The second question is that the intercoms were not working properly and for that opposite parties are liable to rectify the same. 

5.      The complaint was filed before the District Forum.  The District Forum allowed the complaint and directed that the generator of adequate capacity to each of the four blocks be installed and intercom be rectified.

6.      Aggrieved by that order, the respondent/opposite parties filed an appeal before the State Commission.  The appeal was filed by the opposite party was partly accepted.  The State Commission rendered the following order:

          “Therefore we do not see any reason to interfere with the first direction of the District Forum with respect to providing separate generator of adequate capacity to each of the four blocks not only for operation of lift, water pumps, illumination of common areas but also provide alternate power from the generator to two tube lights, two fans and one TV in each flat in the place earmarked for generator in the plans of four blocks by reconversion of shop room into generator room within three months failing which refund Rs. 12,00,000/- @ 7,500/- per flat with interest @ 9% p.a. from the date of complaint i.e. 24.03.2008 till the date of payment.” 

The State Commission directed that it is duty of the complainant association to get the same rectified after its installation.

7.      We have heard the counsel for the parties.   We have perused the brochure which says “stand by generator for common area, lighting and water pumps.”  However, the number of generators are conspicuously missing.

8.      The counsel for the petitioners has also invited our attention towards the meeting held by the complainants.  Its relevant para reads as follows:

          “Generator: Against our request for four individual generators, Builder explained that 160 KVA Generator provided by them meets the power requirements of all the four blocks including common areas lighting, lifts and water pumps operation.  Further he has also stated that operation and maintenance cost of single generator is more economical compared to four individual generators.  Builder to reduce the pollution problem.  On completion of modifications, generator would be put on trial for fifteen days to assess the pollution levels and its adequacy to meet the requirement of all the flats of all four blocks and common areas/installation.  Thereafter, the Generator, subject to adequacy of the capacity and acceptable pollution levels, would be taken over by the Association for further operations.”         

9.      Counsel for the petitioners vehemently argued that the complainants have themselves given consent to one generator only.  However, there is a rider which clearly goes to show that the generator would be put on trial for fifteen days to assess the pollution level and its adequacy to meet the requirement of each of all four blocks and common area installations. 

10.    Counsel for the petitioners has also invited our attention towards the expert evidence i.e. inspection report of Pavan Residency Apartments M.N. Nagendra Nath.  Para ‘4’ of his report reads as follows:

          “The location of Generator provided under the ramp by the Builder is at an odd place and while in operation the whole RCC framed structure will get damaged due to constant vibrations and abnormal sound it produces and the smoke emitted in an environmental hazard.  Hence separate Generator rooms for the 4 blocks are to be provided with acoustic  enclosures and to minimize the vibration and sound pollution, are to be located outside the RCC framed structures.”

11     Counsel for the petitioners has also referred to the report of petitioner’s own expert Mr. M. Nageswara Rao.  Its paras 3 and 9 are reproduced as follows:

          “3.     The location of the Generator was inspected by the electrical inspectorate and approval were issued, hence it is in accordance to the norms prescribed by the competent authority.  The Generator installed is of 160 KVA which is sufficient for the common areas lighting, lights, pumps and a specified load for every apartment.  The generator was commissioned by the suppliers on dated 15.07.2005;

          9.      It has been observed that the specifications and facilities provided in the building are more superior than the mentioned in the builder agreements for the benefit of the flat owners and to improve the quality of the construction.  Some of them are mentioned following:

Conclusion:

Hence no technical deficiencies were observed and it appears that the present condition and state of affairs in apartment building is due to normal wear and tear and also lack of proper periodical maintenance by the association of the owners.  Therefore in my opinion it is suggested that General & periodical maintenance is required for any civil works and treatments for their durability and performance and the present claims and complaints are only due to normal wear and tear and imporper umkeep, maintenance of the building.  As per the By laws of the society of the flat owners association.  Registered as No. 1845/2005 clause 3.5 page No.2 it is the responsibility of the association for the maintenance of the common amenities such as water pipe lines, drain pipes, repairs to Civil works in common area.  Operation of Generator and periodic paintings outside common area etc.”

12.    Counsel for the petitioners vehemently argued that all these facts clearly go to show that one generator is enough for the entire society.

13.    We are unable to clap any importance with these arguments.  It must be borne in mind that one generator costs only Rs. 3-4 lacs, the opposite parties have taken Rs. 12,00,000/-.  They did not produce the bill to show that this generator was purchased for a sum of Rs. 12,00,000/-.  Counsel for the petitioner submits that he should be given an opportunity to file the same at this stage.  This is too late.  We are hearing the revision petition and further time cannot be granted to produce the same and to delay the case unnecessarily.  It was the petitioners’ and nobody else who were to carry the ball to prove these facts.  Another opportunity for adducing additional evidence cannot be granted. 

14.    Secondly, the report of the expert clearly goes to show that one generator is not sufficient.  If one generator fails or does not work, that will cause sufferings to all the flat owners. 

15.    Thirdly, the petitioner has already constructed four separate rooms for installations of four generators.  Why these four rooms were constructed?  The flat owners were given assurance that four generators will be provided but it appears that the opposite parties are long in making promises but short in making performances.  The opposite parties have been requesting the petitioners time and again to put up four separate generators because only one generator does not cater to their needs but the petitioners have turned a deaf ear to that.

16.    It is also clear that one generator is creating severe noise and air pollution.  It has also developed cracks in the building where the generator has been installed.  This stands proved by the affidavit filed by the complainant.

17.    Again District Forum held:

          “18.  Ex-A 12 copy of minutes of meeting held on 01.03.2006 would show collection of additional amount of Rs. 7,500/- from each flat owner and significantly the builder also participated in that meeting and signed the minutes.  Similarly Ex. A17 to 22 exchange of letter between the parties also show the assertion of the complainant association as to the extra payment made for this additional facility by the builder and this was never repudiated by the builder, except in his counter, in answer to this complaint.  Thus it is quite evident that the Builder, apart from agreeing to provide separate generator to each of the four blocks covering common areas and pump sets, also agreed to provide alternate power supply of two Tube lights, 2 fans, 1 TV for each apartment on payment of extra money, but failed to do so.  Admittedly a common generator was provided by the builder catering to the needs of common areas and pump sets in all the four blocks.  Having received the amount, the Opposite Party is bound to provide that amenity.  As already noted, the plan would show generator room separately and the opposite party can provide generators in those rooms earmarked for the generator as per the plan.”

18.    However, the counsel states that this does bear the signature of the opposite parties.

19.    Now we come to the question of intercom.  We find no flaw in the order passed by the State Commission.  Once intercom was working properly, it is now the duty of the complainants to rectify the same. However, the District Forum’s order goes to read as such:

          “21.   With regard to restoration of intercom facility, undisputedly the same has been provided originally but when the system was not working, it is the Builder, who got the same removed by the concerned people for rectification and evidently did not get it restored.  When he himself took away the instrument, it is his bounden duty to see that the system of intercom is restored at his cost”.

20.    It is therefore, directed that the opposite parties will hand over all the ownership documents to the complainants who can seek redressal of their grievances either from the manufacturing company or by taking legal proceedings.  The said documents be handed over to the complainants within a period of two months, if it is not already handed over, otherwise the opposite parties will have to pay penalty of Rs. 10,000/- per month till the same is given to them.  We therefore, confirm the order passed by the State Commission, except those directions, which are passed today. 

21.    At this stage, counsel for the petitioner has submitted that he is ready to return Rs. 12,00,000/- with interest @ 9% per annum to the complainants from the date of its receipt within a period of three months.  In that event, the complainants will install their own generators at their own costs.  For this, counsel for the complainants has got no objection.  The opposite parties are given liberty to remove the 160 KV generators after fifteen days from the day of return of Rs. 12,00,000/- with up-to- date interest.  The order regarding intercom passed today, will prevail.

          The revision petitions are disposed of, in the above terms.