BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
C. C. 31/2009
Between:
Udayanandan Residency
Devi Towers Residents/Flat Owners Association
(Regn. No. 452/08), D.No. 5-5-702
Chintalakunta, L.B. Nagar
Rep. by is President
P. Yadagiri Reddy. *** Complainant
And
1. Smt. M. Sunitha, W/o. Sri Ramu
H.No. 5-11-568, Opp. KUC Road
Hanumakonda, Warangal Dist.
2. Smt. G. Rajitha, W/o. L. Mohan
R/o. 14-347, GDK Main Road
Gandhinagar, RK6- Srirampur
Mancheriyal, Adilabad Dist.
3. M/s. Devi Constructions
R/o. Plot No. 139, Durga Vihar
Thirumalgherry, Secunderabad
Rep. by its Managing Partner
N. Sudhakar. *** Opposite Parties
Counsel for the Complainant: M/s. V. Gourisankara Rao
Counsel for the OPs: M/s. Gulam Asghar Hussain Khan (R1& R2)
M/s. Srinivasa Rao Pachwa (R3)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI R. L. NARASIMHA RAO, MEMBER
WEDNESAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is a complaint filed by the flat owners association against the owners opposite parties 1 & 2, and the builder opposite part No. 3, for various omissions and commission pertaining to the flats together with claim a of compensation of Rs. 10,000/- to each of the flat owner and costs.
2) The case of the complainant in brief is that Ops 1 & 2 owners of the plot entered into development agreement with Op3 a builder having got the approval of residential complex vide permit dt. 1.7.2005 from HUDA. Accordingly Op3 constructed residential complex consisting of cellar, stilt + 5 upper floors each floor consisting of five flats. The flat owners purchased respective flats under various agreements of sale followed by sale deeds. They had agreed to provide various amenities as per the specifications made in the agreements of sale, however did not provide as promised. The possessions was given from January, 2008 onwards till May, 2008. Several works were unfinished and unattended and some were in semi-finished stage. On that they got the estimation of the value of the pending works through a civil contractor M/s. K. K. Associates who estimated the value of pending works at Rs. 37,52,500/-. Despite their notice to get the deficiencies rectified they did neither rectify nor give any reply and therefore they prayed that the opposite parties be directed
a. To provide new drinking water sump to store the drinking water in the
cellar.
b. Construct steps/staircase from cellar to the upper floors
c. To provide protection measures for the safety of the residents to prevent
People entering from adjacent apartments.
d. To provide fire fighting equipment to the apartments
e. To properly level the corridor for preventing the water stagnation.
f. To furnish original title deeds and link documents in respect of the flats.
g. To provide outlets for rain water.
h. To replace the defective lift
i. To provide generator.
j. To hand over the room constructed near the gate to the association.
k. To reimburse BRS amount to all the flat owners.
l. To regularize the cellar which was constructed unauthorizedly
and illegally.
m. To provide access from main high way to the residential complex
n. To rectify the leaking drainage pipes which are emanating foul smell.
o. To provide separate pipe lines for rain water.
p. To replace PVC pipelines for supply of water instead of GI pipes.
q. To provide plastic or cement sheets roof on the stair case.
r. To replace the main gates of the ground floor and cellar.
together with compensation of Rs. 10,000/- to each of the flat owner and costs of Rs. 25,000/-.
3) Opposite Party No. 1 filed counter adopted by Op2 denying various averments made in the complaint. They have nothing to do with the reliefs claimed. They have erroneously impleaded them. The remedy available for them was to sue for specific performance. By simply constituting themselves as an association without even obtaining their consent, it would not authorize them for filing the complaint. If there is deficiency in construction it was Op3 that was accountable. Clauses 5 to 12 establish that it was Op3 who was liable and accountable for all the defects in the construction, and compensate for any alleged deficiencies in construction. Out of 25 flats they have sold three flats which fact was suppressed by the complainant. The complaint was speculative in nature. When the complainants themselves have purchased the un-finished or semi-finished flats from Op3 they cannot turn round and accuse them for any deficiencies. The complaint was bad for mis-joinder of parties and therefore prayed for dismissal of the complaint with exemplary costs.
4) Opposite party No. 3 equally resisted the case. He denied each and very fact alleged in the complaint. While admitting that he had entered into development agreement with the Ops 1 & 2 for construction of 25 flats in an extent of 660 sq.yds under development agreement dt. 2.3.2007, he stated that after completion of construction he sold 15 flats to various purchasers who purchased after satisfying with the construction. Most of the flat owners had committed default in payment of the amounts towards amenities. They had to pay Rs. 26,11,593/-. Ops 1 & 2 had sold the very same flats to different persons under different sale deeds. In fact they executed agreement of sale in favour of one Sri Krishna Mohan for 10 flats on 2. 3.2007 . Again they executed another agreement of sale in favour of one Sri A. Prashantha Reddy on 17.9.2007. Again they sold three flats to three persons due to which there was lot of law and order problem and various civil and criminal cases in various courts were filed and they are pending. When he received a letter from the complainant on 30.5.2008 he visited the apartments on 2.6.2008, called for meeting of all the members and discussed various issues raised by the complainant. Except for installation of standby generator the remaining deficiencies pointed out by them were settled. He did not commit various deficiencies pointed out in the complaint.
5) He gave explanation to various deficiencies pointed out by the complainant as follows :
a) Water connection was provided in the year 2009 after obtaining permission on 27.6.2007 since there were no municipal water pipelines in the locality and in the process there was delay.
b) He also provided concrete water proof cement water sump.
c) He arranged water tankers every day at his own cost.
d) He had provided spiral staircase made of steel as advised by architect as the cement stair case would obstruct the drive way in the cellar.
e) He had provided safety grills way back in the year 2008.
f) As per law he had provided two fire extinguishers and four sand filled buckets.
g) The cellar, ground floor and roof top was plastered with cement work as per the practice in vogue.
h) He had allotted parking area and earmarked parking slots.
i) He had provided rain water outlets and it was for the complainants to maintain it properly.
j) He had provided branded 6 passengers Orion lift in the year 2007 and it was for the complainants to maintain the lift properly.
k) He is ready to provide a standby generator subject to payment of payment of dues.
l) He had constructed a room near the gate for the office of the complainant association but the same was occupied by the watchman.
m) The flats owners purchased the flats only after verification of documents, sanction plan etc. for a lesser price and they have to bear the costs and consequences if any.
n) He had provided proper flooring with cement and also provided motor for the purpose of pumping the stagnated water.
o) He had provided access to the main road high way but the flat owners blocked by constructing stair case despite objection.
p) Leakage in drainage pipelines and emanating foul smell was due to improper maintenance.
q) He had provided the rain harvesting pit and the same was closed since the entire locality was water logging area.
r) He had provided PPR pipes not PVC pipes as alleged by the complainant and they were superior in quality.
s) He had provided PVC sheet roof top and the same was got damaged by the complainants. It is for them to safeguard and maintain properly.
t) He had provided sufficient gates in the year 2007 itself. There was no need to replace the same.
u) In order evade payments due to him the complainant filed this complaint to black-mail. The estimation filed by the complainant is baseless without any reasoning.
There was no deficiency in service on his part and therefore prayed for dismissal of the complaint with exemplary costs.
6) The complainants in proof of their case filed the affidavit evidence of P. Yadagiri Reddy, President of the complainant association and got Exs. A1 to A8 marked. Op1 filed her affidavit evidence while Managing Director of OP3 filed his affidavit evidence and Exs. B1 to B8 were marked on behalf of opposite parties.
7) The points that arise for consideration are :
i. Whether the complainant association is entitled to any of the reliefs claimed or providing various deficiencies pointed out in the complaint?
ii. Whether the complainant is entitled to any compensation?
iii. If so to what relief?
8) It is an undisputed fact that Ops 1 & 2 are owners of 660 sq.yds of site which was given under development agreement Ex. A1 dt. 2.3.2007 for construction of 25 flats where-under Ops 1 & 2 are entitled to 10 flats and Op3 builder was entitled to 15 flats. Op3 builder had sold the flats by executing sale deeds in favour of various persons who in turn formed complainant association. Pursuant to the said agreement possession was admittedly delivered by May, 2008. It may be stated herein that even before the development agreement Ops 1 & 2 had obtained approval from the Municipal Corporation for construction of flats on 1.7.2005 itself. It is not known whether properties sold by Ops 1 & 2 to various persons were also members of the complainant association. OP3 alleges that various defects pointed out in the construction were not true. They were neither defective nor deficient. The complainant association could not give the names of the members, and the deviations that were pointed out by them were made by Op3 and in fact the purchasers knowing full well about those deviations purchased the flats with an understanding that they would alone be responsible for any consequences, and that they had agreed to pay various amounts towards amenities. However, they did not pay the same. In regard to 25 flats OP3 gave a list mentioning the amounts due by each of the flat owners/land owner amounting to Rs. 26,11,593/-.
9) The complainant association in order to prove that that there was deficiency in construction got estimated the value of pending works through M/s. K. K. Associates which estimated at Rs. 37,52,500/- and the report is marked Ex. A5. An advocate commissioner was appointed to verify the deficiencies whatsoever pointed out by the complainant association in its complaint and he with the assistance of Sri K. M. Ravi Kumar, Structural Engineer visited the premises and filed his report which is assigned as Ex. A8. The commissioner in his report noted the status of each of the construction alleged by the complainant.
They are as follows :
a) Existing sump is there in that 2’-3” height of water appeared in the sump. The sump measurements are: inside clear 4’-3” x 14 x 4-1/2 depth. There is 1-1/2 HP capacity motor is connected to the said sump.
b) Iron round staircase in the cellar with 5’-5” dia with 3” vertical pipe and railing 10 mm square rod with top 40 mm x 5 mm patti. Treads with 18 mm x 3 mm patti with angular frame
c) The gap between the two buildings is 2’-6” total parapet wall completed, terrace flooring completed, staircase mid-landing edge 3’ height wall completed. In between the two buildings the iron frame work is completed and plastic sheets were broken.
d) Fire fighting equipment is not provided.
e) In ground floor plastering work is completed and in the cellar ceiling and beams 1st coat plastering is 90% completed. In the cellar coloumns and outside wall plastering are not completed.
f) Earmarking completed in parking slots in the cellar and ground floor.
g) In corridors flooring level maintained at zero level.
h) Rain water pipes provided and it is connected to drainage, to make it function, the arrangement of rain water facility should be provided.
i) Lift is properly functioning and it is make of Orien company of six passengers capacity.
j) No generator is provided.
k) In the ground floor, the custody of office room is with the petitioner/complainant viz., welfare association. The room size is 16 x 10 and outside common toilet 3’-4” x 7’
l) 25 flats are in finished condition, outside some paint patch works are pending.
m) No access from highway main road to the subject residential complex.
n) No leakage is observed at the time of inspection, however in some of the flats situated at top floors, the dampness marks are observed in the walls.
o) Rain water pipes were provided.
p) The G.I. pipes are not in existence, the UPVC pipes are provided for the water lines and they are working in good condition.
q) Staircase head room provided with slab, remaining ducts closed with iron frames with plastic sheets, however, some sheets at some places were broken at one place backside of staircase, plastic sheet totally broken.
r) Since the existing gates are serving well, there is no need to replace the existing gates but it is necessary to provide fiber sheets to both the gates for security purposes.
He made the following suggestions.
- In the cellar for lifting of excess water, one motor needs to be provided.
- Transformer iron girder support is provided. It is sufficient.
- Ground to first floor staircase left side at the first flight railing is to be provided.
- Cement flooring was not done in ground floor of outside, at backside of lift and staircase.
10) This report is by an expert. The complainant did not dispute the observations noted by the commissioner in regard to the facts noted except alleging that the advocate commissioner failed to note that the existing sump was leaking and the complainant put 1000 liters Syntex tank on the sump. The complainant association by spending Rs. 8,000/- installed a grilled door on the terrace and also provided pipe line for lifting water from the bore well to the overhead tank by spending Rs. 30,000/-. When Op3 contended that he had to get Rs. 26,11,593/- for providing various amenities and the complainants did not pay the said amount, a curious contention was taken, that if there were dues, Op3 as well could recover the amounts and on that ground, he cannot deny the amenities.
11) In the light of the report of the commissioner, it could be said beyond doubt that Op3 builder had complied with most of the deficiencies pointed out those were either incorrect or even for small minor deficiencies the complainant intend to get it rectified by filing a complaint hiking the amounts obviously in order to attract jurisdiction of this Commission. When the commissioner against whom nothing could be said, based on export report had mentioned that Op3 had completed the most of the defects or deficiencies pointed out. We do not see any merits pertaining to most of the deficiencies pointed out. The complainant ought not to have rushed by filing a complaint, when in their own complaint they mentioned that when they have issued notice under Ex. A3 on 30.5.2008 Op3 visited the apartments on 2.6.2008, called for meeting of all the members available and discussed various issues raised by the complainant. He admits that except for installation of standby generator, he had completed all the constructions barring some minor works like i) in the cellar for lifting of excess water one motor needs to be provided ii) Ground to first floor staircase left side at the first flight railing is to be provided. iii) Cement flooring was not done in ground floor outside and at back side of lift and staircase.
12) The deficiencies so called pointed out by the complainant in its complaint ‘A to S’ were all answered independently mentioning that most of them were either rectified or the problem that the complainant was pointing out was not existing.
13) At the cost of repetition, we may state that we fail to understand why the complainant association has been un-necessarily complaining despite the fact that they have no complaint as recorded by the commissioner - for example: In the ground floor the custody of office room is with the petitioner/complainant viz., welfare association. The room size is 16’ x 10’ and out-side common toilet is 3’-4” x 7’ still they have complained that it was not handed over.
14) When they have contended that the flats were un-finished the commissioner has pointed out that 25 flats are in finished condition and outside, some paint and patch works are only pending.
15) In regard to lift they want a lift of OTIS company while Op3 provided Orien company. When the commissioner went and inspected the premises he found that “lift is properly functioning and it is make of ‘Orien company of 6 passengers capacity.”
16) While the complainant alleges that there is hardly a gap of 1-1/2 feet between the residential complex and the adjacent commercial complex making third parties to enter into their residential complex, the commissioner who visited the premises had found the distance of 2’-6”. There is no reason why the complainant was giving wrong picture even in regard to measurements.
17) The complainant even seeks fire fighting equipment for their complex. Op3 contends as per A.P. Apartments Act since the complex is below 18 meters in height he installed fire extinguishers and sand filled buckets. The said fact was not disputed.
18) OP3 builder had complained that the complaint was engineered at the instance of Ops 1& 2 in view of the dispute between them. He alleged that Ops 1 & 2 executed registered and unregistered documents in favour of third parties by selling the same flats twice. They have also executed registered agreement of sale in favour of one Krishna Mohan on 2.3.2007 for 10 flats of their share. Again they also executed another agreement of sale in favour of one A. Prashantha Reddy on 17.9.2007. Again they sold three flats in favour of Vijay Kumar, P. Srinivasa Prasad and M. Haridhar. Now both were claiming flats and in this regard various civil and criminal cases were pending in various courts. They have also cancelled the GPA issued in his favour by issuing letter dt. 2.11.2007.
19) The complainant complains that there was no passage from residential complex to main highway on the northern side. Ops 1 & 2 had categorically stated that they had handed over the passage to Op3 on 2.3.2007 from National Highway to residential apartment. Since the buyers of respective flat owners have been using which is more than sufficient for their ingress and egress, there is no need to give any direction in this regard.
20) The complainant has filed an estimation prepared by M/s. K. K. Associates marked as Ex. A5 at Rs. 37,52,500/- for repairs. Op3 claimed that an amount of Rs. 26,11,593/- had to be paid by the flat owners. As we have earlier pointed out the complainant did not dispute, however, maintains that Op3 can as well file a suit and recover the amounts. Unfortunately the parties did not evince any interest by filing documents in order to substantiate the claims made by each of them. M/s. K. K. Associates which the complainant had requested to estimate amounts, without furnishing any details as to how it could estimate said structures, estimated Rs. 6 lakhs for providing lift of OTIS make, Rs. 2,50,000/- to arrest leakages in the bathrooms of the apartments, Rs. 1 lakh towards balconies repairs, Rs. 1.00 lakh towards total leakages on the terrace, Rs. 4 lakhs towards fire fighting equipment etc. As we have already pointed out he gave explanation to various deficiencies pointed out by the complainant, and the Commission in his report made the following suggestions.
i. In the cellar for lifting of excess water, one motor needs to be provided.
ii. Transformer iron girder support is provided. It is sufficient.
iii. Ground to first floor staircase left side at the first flight railing is to be provided.
iv. Cement flooring was not done in ground floor of outside, at backside of lift and staircase.
The opposite party being a builder obviously a partnership firm must have maintained the accounts and could have filed the statement showing the dues of each flat owner in order to direct them to pay the same.
21) The complainant alleged that there were deviations in the constructions and therefore they were directed to pay BRS charges evidenced from Ex. A4 notice issued by the Municipal authorities u/s 452(2) & 636 of HMC Act, 1955. Op3 had stated that Ops 1 & 2 had taken approval for construction of apartments vide HUDA permission No. 1882/P4/P18/HUDA/2005 dt. 1.7.2005. Op3 contended that the purchasers after satisfying with the construction, took possession of the flats and they have been enjoying the same. They were well aware of the deviations. The fact that there were deviations cannot be gleaned from the evidence placed on record. However they were made to pay the amounts mentioned in the memo filed by the counsel for the complainant viz., Rs. 33,000/- in respect of 17 members of complainant association.
22) In the result the complaint is allowed in part directing the builder opposite party No. 3 (i) to provide motor for lifting water from the cellar, (ii) railing to first floor stair case, and (iii) cement flooring in ground floor at the back side of lift and staircase, and further directed to refund Rs. 33,000/- which was paid to MCH towards deviation charges. The complaint against Ops 1 & 2 is dismissed. However, in the circumstances each party to bear its own costs. Time for compliance three months.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________
MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANTS: OPPOSITE PARTIES
None None.
Documents marked for complainant:
Ex A-1 Development Agreement Cum GPAH dated : 2.3.2007
Ex A-2 Agreement of Sale of Semi Finished Flat Feb, 2006
Ex A-3 Letter dt : 30-5-2008
Ex A-4 GHMC Notice dt : 12-2-2008
Ex A-5 Detailed Estimate for repair of the Apts. Dt : 25.4.2009
Ex A-6 Legal notice dt : 13-10-2008
Ex A-7 Postal & Acknowledgements .
Ex. A8 Commissioner’s report.
Documents marked for Opposite Parties:
Ex B-1 copy of GPA dt : 2.3.2007
Ex B-2 copy of Sale Deed dt :2-6-2007
Ex B-3 copy of Sale Deed dt :28-01-2008
Ex B-4 copy of agreement of sale of semi finished flat dt : 4.2.2008
Ex B-5 copy of Water supply and Sewerage Board dt : 27-6-2007
Ex B-6 copy Photos (24)
Ex. B7 Development agreement-cum-GPA dt. 2.3.2007
Ex. B8 Receipt dt. 14.6.2010 issued by photo studio.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________
MEMBER
Dt. 24. 11. 2010.
*pnr
“UP LOAD – O.K.”
