A. P. STATE CONSUMER DISPUES REDRESSAL COMMISSION :AT HYDERABAD
FA 1577/2008 AGAINST CC NO.480/2008 ON THE FILE OF THE
DISTRICT FORUM I, VISAKHAPATNAM
Between :
Smt. Challa Sailaja,
W/o Vijaya Bhaskara Babu,
Hindu, aged 38 years, Flat no. 504,
Trishul Majestic Apartments,
Santhipuram, Visakhapatnam … Appellant/Opposite party
And
1. Sri Malla Jaganmohan Rao,
S/o Sri M. Prakasa Rao
Hindu, aged 35 years, Occupation Software Engineer
Being rep. by his G.P.A. Holder
Sri M. Prakasa Rao, S/o Jagga Rao
R/o Flat no. 301, 3rd floor, Trishual Raj Vihar Apartments,
80 ft. Road, Tatichetlapalem, Visakhapatnm 530 016.
2. Sri Veyyakula Priyatam Prasad
S/o Sri M. Prakasa rao, Hindu, aged 35 years
Employee, being rep. by G.P.A. Holder Sri S. Venkata Rao
Hindu, aged 61 years, Flat no. 303, 3rd Floor
Trishual Raj Vihar Apartments, 80 Ft. Road, Tatichetlapalem,
Visakhapatnam 530 016.
3. Sri Boddeti Venkata Mahendra,
S/o B. Sanyasi Rao, Hindu, aged 40 years,
Software Engineer, being rep. by G.P.A. Holder
Sri B. Sanyasi Rao, S/o B. Raghavendra Rao,
Hindu, aged 59 years, R/o Flat No.505,
5th floor, Trishal Raj Vihar Apartments, 80 ft. Road
Tatichetlapalem, Visakhapatnam 530 016.
4. Sri Tummalapenta Suresh,
S/o Sri t. Venkata Ramana,
Hindu, aged 27 yers, Studying at U.S. A
Being rep. by Sri T. Srinivasulu, S/o T. V. Ramana
Hindu, aged 33 years, R/o Flat no. 305
3rd floor, Trishul Raj Vihar Apartments, 80 ft. Road,
Tatichetlapalem, Visakhapatnam 530 016.
5. Smt. Avadhanula Surya Kala
W/o A. Subrahmanyam
Hindu, aged 58 years, R/o Flat no.402
4th floor, Trishul Raj Vihar Apartments, 80 ft. Road,
Tatichetlapalem, Visakhapatnam 530 016.
6. Smt. Allam Anuradha,
W/o A. Vaasu, Hindu, aged 41 years,
Being rep. by G.P.A. Holder,
Sri A. Vasantha Kiran, Hindu, aged 41 years,
R/o Flat no. 502, 5th floor,
Trishual Raj Vihar apartments, 80 ft. Road,
Tatichtlapalem, Visakhapatnam 530 016 … Respondents/complainants.
Counsel for the Complainant : Mr. Ch. R. Vasantha Kumar
Counsel for the Respondents : Mr. Ravi Cheemalapati
FA 1578/2008 AGAINST CC NO.414/2008 ON THE FILE OF THE
DISTRICT FORUM I, VISAKHAPATNAM
Between :
Smt. Challa Sailaja,
W/o Vijaya Bhaskara Babu,
Hindu, aged 38 years, Flat no. 504,
Trishul Majestic Apartments,
Santhipuram, Visakhapatnam … Appellant/Opposite party
And
1. Smt. Gurajala Gouri Vani
W/o Sri G. Kanaka Raju
Hindu, aged 36 years, House hold duties,
R/o Flat no. 205, Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
2. SriMeka Venkata Satya Harischandra Ram Prasad Rao Choudary
S/o venkata Rao, Hindu, aged 49 years, R/o Flat Nlo.202,
2nd floor, Trishul Raj Vihar Apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
3. Sri Mallapu Solman Raju
S/o M. Narasimha Murthy
Hindu, aged 40 years, R/o Flat No.203,
2nd floor, Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
4. Smt. V. Saraswathi,
W/o Sri V. Venkateswar Rao,
Hindu, aged 44 years, R/o Flat no. 403
Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
5. Sri Kuppili Mohan Rao,
S/o K. Rama Murthy
Hindu, aged 61 years, R/o Flat no. 405,
Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
6. Smt. Ganta Anitha Manorama,
W/o Sri G.A.G. Sekhar,
Christian, aged 48 years, R/o Flat no. 304,
Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
7. Sri Alluri Venkata Ramana Murthy Raju
S/o A. Varahala Raju
Hindu, aged 28 years, R/o Flat no. 301,
Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
8. Smt. Palla Manikyam,
W/o K.A. Sundar Rao
Hindu, aged 48 years, R/o Flat no.204,
2nd floor, Trishul Raj Vihar apartments
80 ft. Road, Tatichetlapalem, Visakhapatnam – 530 016.
Counsel for the Complainant : Mr. Ch. R. Vasantha Kumar
Counsel for the Respondents : Mr. Ravi Cheemalapati
Coram ; Sri Syed Abdullah … Hon’ble Member
And
Sri R. Lakshminarasimha Rao… Hon’ble Member
Wednesday, the Sixteenth Day of June, Two Thousand Ten
Oral Order : ( As per Sri Syed Abdullah, Hon’ble Member )
*******
These appeals are arising out of two separate orders passed in CC. 414/08 and CC 480/08 dated 31.10.2008 passed by the District Forum I, Visakhapatnam, in which, the appellants are the opposite parties and an order was passed directing (1) to commission the facility of lift (2) to demarcate car parking slots giving numbers, (3) to provide and connect generator and also to provide power supply to motor bore well (4) and the lift to have an access to the ground floor with an entry to it.
The complainants in CD. 414/08 and C D 480/2008 filed separate complaints against the common opposite party alleging deficiency in service in respect of the flats built and sold to them.
The reliefs claimed in both the cases and the points involved in it are identical and so by a common order these two appeals are disposed of .
The facts of the case in both the CC 414/2008 and 480/2008 are identically the same.
It is the case of the complainants that the opposite party who is the builder had constructed Trishul Raj Vihar Apartments and by means of a construction agreement obtained the purchasers and the complainants have purchased the flats and the opposite party had agreed to construct the flats as per the specification and greed to provide the facilities and amenities. But the opposite party failed to install lift, provide generator, separate motors to the bore wells, provide drinking water etc. The power supply was not obtained to the residential flats up to May, 2008 which caused great hardship. Further the opposite party had closed down the lift opening in to the ground floor and entry into the ground floor. The Opposite party had used substandard material in constructing the drains. Since the complainant had closed the lift to the first floor the complainants and other occupants have to scale down to the stilt floor and then climb up the ramp instead of directly approaching the road from the ground floor. No proper lighting is provided in the cellar and common area. In spite of request, the opposite party failed to provide the same. So a legal notice dated 05.06.2008 was issued for which a reply was sent with false allegations. . The act or omission amounts to deficiency in service.
The opposite party in its version had denied the allegations and taken the stand that the complaints are not maintainable as complicated questions of fact and law are involved. However, admitted that agreements were executed in between the builder and the flat owners for construction of residential flats in the four floors. As per the approved plan, stilt floor and ground + four upper floors were constructed. The opposite party is the absolute owner of ground floor having 183.16 sq. yard of site. The opposite party also had obtained regularization from the Municipal Corporation for utilizing the ground floor for commercial use. Proper tax was also assessed. Similarly, TRANSCO is collecting power charges on commercial basis. Since the entire ground floor is exclusively owned by the opposite party, it cannot be used as a common corridor. It is the prerogative of the opposite party to decide whether the lift should be stopped at the ground floor or not ?
During April/May, 2007, an elevator was installed but it could not be commissioned due to non-availability of thee phase power until 22nd May, 2008. Rs.5,10,000/- was paid towards BPS on behalf of all the flat owners. The District Forum had adjudicated the dispute on two points. Viz. (1) as to the maintainability of the complaint ? (2) as to whether there is any deficiency in service on the part of the opposite party ?
The complainants in CC 414/2008 got marked Ex. A-1 to A-14 along with evidence affidavit. Similarly, the opposite party filed Ex. B-1 to B-11 on its side.
Similarly, the complainants in CC 480/2008 got marked Ex. A1 to A8 and the Opposite party got marked Ex.B1 to B11 along with their respective evidence affidavits.
As regards the maintainability of the complaints, the appellant’s strong hold contention is that in view of the reliefs sought for to direct the opposite party to open the lift in the ground floor and to provide entry to the ground floor the matter requires thorough examination and where complicated facts and legal aspects are involved the matter is to be adjudicated in Civil Court and that the matter of this nature cannot be determined in a summary procedure by the District Forum. In support of this contention, the appellant had relied upon a decision of the Hon’ble National Commission reported in (1) 1994 CPJ 43 (NC) but in subsequent decisions it has been made clear that when the District Fora are manned by the District Judges the complicated questions of fact and law can be gone into and for the simple reason that proceedings are summary in nature, a complaint which squarely falls in the definition of consumer cannot be thrown out. So the contention raised by the appellant that the Consumer Fora has no jurisdiction is untenable and it was rightly rejected by the District Fora.
The facts are not in dispute that by means of construction agreement , the opposite party had agreed to construct different flats and deliver the same by providing facilities and amenities. No doubt, the complainant had obtained sanctioned plan and constructed the flats and sold the same to the complainants by executing registered sale deed vut there is a statutory obligation upon a builder as provided U/s. 4 of A. P. Apartments ( Promotion, Construction and Ownership) Act, 1987 to make construction as per plans and specifications and also to provide all the facilities and amenities required which were agreed to be provided . Further Developer/promoter should earmark common areas and facilities in the flats and also to fulfill statutory obligations as contemplated U/s. 9, 11,14,24, 26 and 27. On completion of the construction he has to obtain occupancy certificate from the concerned Municipal Corporation that the flats that were constructed and sold were constructed as per the specifications and standards by providing all necessary amenities and facilities. More particularly that it is fit for occupancy. So the burden is always on the promoter/opposite party to show that the flats that were constructed and sold are built with standard material and fit for occupation. It is not known why the opposite party had not filed the occupancy certificate obtained from the corporation certifying that the construction was made as per the construction agreement and fit for occupation. Mere filing of the brochure and its photos is not a fool proof evidence to show that the opposite party had complied with the statutory obligations. Ex.B-4 which is an application filed by the opposite party had applied to securing regularization for the deviation in the constructions made by him which itself reflects that contrary to the terms and conditions of the agreement and sanctioned plan, the construction was made.
The opposite party has not filed orders passed by the Corporation regularizing the unauthorized construction during the pendency of the enquiry. The opposite party had not taken proper steps to get a Commissioner appointed or seek the help of the Fora to direct the concerned authority of the Municipal Corporation to inspect the construction and issue certificate as required under the Statute. By seeing the ground plans of the construction, it cannot be said that the present construction was made as per the sanctioned plan without any deviation Ex. B-7 G.O.Ms.No. 901 dated 31.12.2007 was issued by the Government for penalizing of unauthorized constructed buildings and deviation of sanctioned plan Rules 2007. G.O. contains the guidelines and from this it cannot be presumed that the deviation made in the sanctioned plan was regularized by collecting penalty. The notarized affidavits Ex.B9 giving consent by the purchasers in favour of the opposite party to proceed with the construction cannot be of any help at all when there was deviation. In the light of the statutory provisions of the A. P. Flats and Apartments Act, 1987 in case of deviation the builder is liable for prosecution. The flats were constructed for residential purpose. The builder is not expected to shops in the stilt area which area is exclusively intended for car parking and for the purpose for which it is intended for . Merely because the complainants and other purchasers have occupied the premises in their anxiety to have some shelter it cannot be presumed or assumed that the construction was made as per the specifications by providing all amenities and facilities as assured under the agreement. Since the complainants/ purchasers have parted with huge amounts, they had no other go except to occupy the flats in spite of the risks involved in it and the shortcomings. At the time of entering into construction agreement or offer of sale a rozy picture will be painted especially to lure purchasers and when find it reaches finality several short comings will be noticed. For the reasons best known the complainant has not obtained any report from the municipal corporation or obtained order to appoint an Advocate Commissioner to show that the construction is without any deviation or violation. Sanctioned plan does not show that the construction of shops for commercial purpose is permitted. It is for the opposite party to show that as per the plan, the installation of lift is to start from stilt area without any stoppage at first floor and without any access to it . merely because the opposite party had reserved the first floor for herself she cannot prevent the other occupants to use the first floor corridor for having an access to the lift. There will be any amount of inconvenience to the senior citizens and old persons when the lift will not stop at the first floor so as to go the road point. If the lift will not stop at the first floor, there will be any amount of physical stress and strain to the senior citizens to go up to the stilt area and from there to climb a ramp to go to road point which is highly objectionable and inconvenient. The District Forum on point no. 2 had discussed on the factual aspects in detail and on reappraisal of the evidence on record we find that there is no factual or legal infirmity to arrive at different conclusions or differ with the finding. The District Forum has come to right conclusion in grating reliefs in favour of the complainants directing the opposite party to provide the short comings or deficiencies. Both the appeals FA 1577/2008 and FA 1578/2008 are devoid of merits.
In the result, the appeals are dismissed confirming the orders passed in CC.414/2008 and 480/2008 as justified. No order as to costs.
Sd/-
MEMBER
Sd/-
MEMBER
DATED : 16.06.2010.
