| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 19 of 2017 - Sri. Parimal Dutta
S/O- Late Prasanna Dutta. - Smti. Madhumita Dutta
D/O- Sri Parimal Dutta, both are resident of Pratisruti Apartment Flat No. 301, G.C. College Road, Silchar ………………………………………… Complainant. -V/S- - Sri Anup Kumar Deb,
S/o Lt. Ajoy Kumar Deb, of Kalimohan Road, Tarapur, Silchar-3 ………………………………………………………………………O.P No.1 - Sri Rajat Choudhury,
S/o Lt. Rabindra Kumar Chodhury, G. C. College Road, Silchar…………………………………………………………O.P No.2 Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Sri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared: - Mr. Arijit Kumar Deb, Advocate for the complainant. Mr. Debabrata Deb, Advocate for the O.Ps. Date of Evidence 01-12-17, 21-12-17, 06-03-18 Date of written argument 19-12-2018, 31-12-2018, 12-03-2019 Date of oral argument 03-04-2019, 30-04-2019 Date of judgment 14-05-2019 JUDGMENT AND ORDER Sri Bishnu Debnath, - The Complainant Parimal Dutta and his daughter Madhumita Dutta Jointly purchased an incomplete Flat alongwith all common right over roof, lift, Staircase, passage, drainage, generator, common transformer, electrical supply etc. for consideration of Rs.3,00,000/- from the Arup Kumar Deb, the lawful power of Attorney holder of land owner Sri Rajat Choudhury, vide register sale deed No. 2861 dated 22/05/2015. The description of that flat is given in the schedule II of the sale deed. On the date of execution of the sale deed the possession of that flat handed over to the Complainants. But the O.P. builder i.e Power of Attorney holder not yet provided proper drainage facility & common generator etc. Further there is not proper ventilation system available in the Car parking space allotted to the Complainant and also the concealed water pipe line in the flat of the Complainant is unfinished and unprotected resulting of which water is seeping from the pipe line constantly.
- The O.P.No.1 (builder) in his W/S denied all the allegations. He stated inter alia that a super structure in 3rd Floor of Pratisruti Apartment was sold to the Complainant for Rs.3,00,000/- with common right of drainage system, roof top, stair case, lift, generator etc. So, the O.P. No. 1 is not liable for repairing of any water leakage problem in the concealed water pipe line as alleged. Moreover, he stated that lift & transformer have already installed in the premises for common use. He stated that the Car parking problem is not within the look out of the O.P.No.1 and same may be solved by the occupant of the Pratisruti Apartment by forming an association. However, in his W/S he stated unequivocally that he constructed drainage system by laying PVC Pipe line under the earth but later on, the owner of the land faced conflict with the P.W.D and for which drainage through PVC pipe line has been discontinued to use. However, he opined and suggested that the land owner i.e O.P.No.2, occupants of the Pratisruti Apartment may take necessary step for arrangement of drain and in this aspect O.P.No.1 i.e builder is not liable as the O.P.No.1 has already installed PVC pipe line for passing water of the apartment by investing huge amount of money.
- The O.P.No.2 stated inter alia that the Complainant purchased super structure measuring 600 sq.ft and took possession of incomplete flat. So, completion of flat, fittings furnishing etc. and the responsibility of the Complainants and for any defect the O.P.No.2 is not responsible. Moreover, the promoter has already installed PVC pipe for passing water of the apartment.
- During hearing the Complainant No.1 submitted his deposition supporting affidavit and also exhibited his sale deed and other relevant papers. The O.P.No.1 submitted his deposition with some documents. The O.P.No.2 also submitted his deposition supporting affidavit.
- The premises of Pratisruti Apartment was inspected by Junior Engineer Mr. Raltwnluoi Intovate as per order of this District Forum and reported regarding present nature of feature of the drainage system in the premises of the Pratisruti Apartment. His statement has been recorded on oath as court witness. However, after closing evidence both sides counsels submitted their written argument.
- I have heard oral argument of both sides counsels and perused the evidence on record including written argument.
- It is a fact from the evidence on record that during the pending process the O.P.No.1 installed transformer and lift to the apartment for common use of the occupant of the Pratisruti apartment including the O.P.No.2 because O.P.No.2 is also residing a flat of the said apartment.
- However, form the evidence on received it is crystal clear that the Complainant purchased super structure for Rs.3,00,000/- by registered sale deed vide Ext.1. Now, it is required to establish by the complainant as whether the builder installed water pipe line to the flat of the Complainant or the Complainant without supervision and control of the builder i.e O.P.No.1 the water pipe line fixed in the flat. The evidence I that aspect is silent in the record. That is why, in my considered view it is to be concluded that no disservice is noticed to this District Forum against the O.P.No.1 & O.P.No.2 regarding leakage of concealed water pipe line.
- So far as ventilation of the car parking is concern I do not find any evidence on record to disbelieve the aforesaid allegation brought by the Complainant. As per sale deed the Complainant purchased super structure of the flat and the Car parking space. So, it is the duty of the O.P.1 to provide proper ventilation in the car parking of the Complainant inasmuch as proper ventilation is the integral part of the superstructure.
10. However, the problem regarding obstruction of other person to the Complainant for using car parking is the matter of internal management between the occupants of the Pratisruti Apartment. Thus, the O.P.No.1 or O.P.No.2 is not solely liable to solve the aforesaid problem. - However, for common use of generator, the O.P.No.1 stated inter alia that the generator may be installed with contribution of the occupant of the Pratisruti Apartment. But no evidence is adduced to support the fact regarding agreement for contribution.
- If I read the sale deed carefully, I do not find any separate footing for installation of generator than installation of Transformer because nothing separately mention in the sale deed regarding installation of generator with contribution.
- Thus, keeping both the transformer & generator in same footing I am of view that like the transformer, the generator purchasing and installation expenditure must be bear by the builder/O.P.No.1. As such O.P.No.1 is liable to install generator within the stipulated time and may collect contribution or adjust subsequently if there is any express agreement between the parties.
- However, the Complainant raised allegation that there is no drainage system in the premises. The Court commission i.e court witness also reported that he did not find any existing drainage system in the premises. However, the O.P.No.1 tried to established a fact that at the initial stage of sale of the flat there was a drainage with PVC pipe towards ester side of the premises but the said pipe line drainage has been closed due to conflict between the O.P.No.2 and P.W.D for which he is not responsible.
- In this aspect after going through the evidence on record and perusal of the report of Commission of the court i.e court witness, I am to say that it is the responsibility of the builder to construct drainage system of the premises by observing all legal formalities and because without drainage system in the longrun the premises may become inhabitable for human being and resulting of which the occupants of the apartment may face irreparable losses.
- As such when the O.P.No.1 constructed pipe line drainage system under the earth, he ought to look into all legal and other impediments before construction and in fit case he had to approach for permission form concern authority to construct drainage on the land of others. But evidence on record it is crystal clear that he acted callously with a focus only to convince the prospective purchased and also to the lawful occupant of the building that all necessary and basic requirement for occupation in the building has been provided, where as it is in his knowledge that he construct PVC pipe line drainage system illegally on the land of other person then the land of O.P.No.2.
- Therefore the O.P.No.1 liable for deficiency in service for not providing proper drainage system in the premises of Pratisruti Apartment.
- With the above, the O.P.No.1 is directed to make alternative arrangement for construction of drainage system of the apartment within 45 days from today along with arrangement for proper ventilation of the car parking space and installation of generator for common use. If fail O.P.No.1 is liable to pay compensation for disservice of Rs.50,000/- (Rupees Fifty thousand) only for each of the defaulted works stated above. The O.P. is also liable to pay cost of the proceeding of Rs.5,000/. In the event of making payment of cash awarded amount for failure for providing the aforesaid service, the O.P.No.1 is liable to pay interest at rate of 10% per annum with effect from the date of defaulter.
- With the above, this case is disposed of on contest. Supply free certified copy o0f judgment to the parties. Given under my hand and seal of this District Forum on this the 14th day of May, 2019.
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