CONSUMER CASE No.- 35/2020
JUDGMENT AND ORDER
The case of complainant Sri Promotesh Dey, in brief, is that the Proforma O.P. No. 2 namely Sri Amal Mazumder and O.P. no.-3 Smt. Swapna Mazumder are the absolute owner in possession in respect of a plot of land measuring 07 kata 13 chatak covered by 2nd R.S. Patta No.463, Dag no. 3494, Mouza- Silchar town, pargona- Barakpar situated at Kurmi Bungalow Road, Ambicapatty, Silchar. On the said plot of land Principal O.P. No.-1 namely Sri Niloy Paul as promoter/builder by virtue of power of Attorney constructed residential apartment flats and the same was named as ‘ PEARL HEIGHTS’ . The complainant purchased a residential flat measuring more or less 850 sq. ft. inclusive of 152 sq. ft. common area services etc. being flat no.- 3-C in the 3rd floor of the aforesaid ‘PEARL HEIGHTS’. Apartment with proportionate share of land 249.75 sq. ft. out of schedule-1 land by a registered sale deed no.-5219 dated 24/09/2019 by paying consideration amount of Rs.8,50,000/- only. That as per terms and conditions of the agreement for sale executed on 18/04/2018 between the complainant and Principal Opposite Party No.-1 Sri Niloy Paul , the O.P. No.-1 has agreed to provide all common facilities i.e., generator, transformer, lift, staircase, passage, drainage etc. and undertook to complete the building construction by using and fitting good quality products and in standard manner. But , it has been alleged by the complainant that, the construction works of the flat/apartment have been done in non-standard manner with several defects violating the terms and conditions of agreement. As a result, according to the complainant, they have been suffering various problems and also they have occurred huge financial loss. It has been further alleged that due to non-standard works of the construction of building the wall plaster in both inside and outside of the flat, and also ceiling plaster have become cracked. That the sanitary tank in the basement of the apartment was made without provision of soak pit and sanitary tank pipe is connected with open drain causing bad smelling and unhygenic condition. Further allegation of the complainant is that due to non-construction of western side wall of the basement area rain water frequently enters in the parking area and common passage. That the common entrance path of the apartment does not remain fit for use in the rainy days. There is also no proper ventilation system in the car parking/ basement area. That the roof of the lift is also not covered by quality CI sheet. According to the complainant, though several times they requested the O.P. No.-1 and issued notice but the O.P. No.-1 neglected to provide the required facilities as per agreed terms thus causing disservice towards them. Under the circumstances, the complainant has prayed for directing the O.P. No.-1 to repair all broken/cracked walls of the complainant’s flat both outside and inside and to paint the same, to rectify all electrical faulty works of the apartment of the complainant by replacing all defective electric fittings, to remove the deficiencies whatsoever by making common drainage system so that the complainant and other occupants may not face any difficulties for stagnant water, to install a common generator, to construct a soak- pit and connect the sanitary tank’s pipe with the soak-pit to stop bad smell, to provide a RCC hume pipe measuring 12’ diameter in the approach, to provide CC Block in the approach of the apartment, to cover the roof of the lift by quality CI sheet, to construct the western side wall in order to stop the passage of outside water in the basement area, to provide proper ventilation in basement/ car parking space. In addition the complainant has prayed for awarding compensation against the O.P. No.-1 including compensation of Rs. 1,80,000/- only for deficiency in service, compensation of Rs. 80,000/- only for mental harassment and anxieties, compensation of an amount of Rs. 40,000/- towards legal expenses etc.
The Principal Opposite Party No.-1 Sri Niloy Paul has submitted written statement stating , interalia, that there is no reason or justification to file this case, that the complaint is not maintainable, that the complaint is barred by limitation etc. etc. The answering O.P. has denied all the allegations levelled against him. The case of Principal O.P. no.-1 is that the O.P. No.-1 is engaged in the business of promotion and development of land by construction of building. That the answering O.P. no.-1 entered into an agreement registered vide no. 3767 dated 06-08-2014/12-08-2014 for construction of multistoried building over a plot of land measuring 07 katha 13 chatak bearing holding no. 249 of ward no.- 25 of Silchar Municipal Board. In accordance with the agreement the proforma O.P. executed the power of Attorney empowering the answering O.P. No.-1 to construct the building. The answering O.P. obtained construction permission from SDA, Silchar and accordingly constructed the building and the building was named as ‘ PEARL HEIGHTS’ . It is stated that the complainant offered to purchase one flat measuring 852 sq. ft (approx) inclusive of 152 sq. ft. common area services etc. being flat no.- C in the third floor of the ‘ PEARL HEIGHTS’ with proportionate share of land for consideration amount of Rs.8,50,000/- . According to the answering O.P. , on being satisfied with the construction, facilities provided in the building including the drainage system, septic tank, soak pit, pipe line, common corridors and other facility the complainant purchased the concerned flat. It has been further stated that the generator could not be provided as all the occupants of the building have not made any payment for the generator. Further version of the answering O.P. is that the complainant having purchased the flat happily residing there by maintaining the common services alongwith other occupants of the building. As such it is stated that the answering O.P. no.-1 has not caused any disservice to the complainant. The complainant and other occupants are actually responsible for any damage if at all has occurred regarding common areas and services of the building. Under the circumstances it is prayed for dismissal of the complaint .
In support of the case complainant Sri Promotesh Dey submitted his evidence on affidavit as PW-1 and exhibited some documents. On the other hand, from the side of Opposite Party No.-1 evidence on affidavit of Sri Niloy Paul has been submitted as DW-1 and also some documents have been exhibited. Thereafter both sides have also submitted written argument in addition of oral argument put forward at length by the learned counsels of the respective parties. Perused the entire evidence on record. Let us now appreciate the evidence below.
In his evidence as PW-1 the complainant has reiterated the same facts as stated in the complaint petition. It has been stated by PW-1 that the the Proforma O.P. Nos. 2 & 3 are absolute owner of a plot of land measuring 07 kata 13 chatak covered by 2nd R.S. Patta No.463, Dag no. 3494, Mouza- Silchar town, pargona- Barakpar situated at Kurmi Bungalow Road, Ambicapatty, Silchar. On the said plot of land the Principal O.P. No.-1 Sri Niloy Paul as promoter constructed residential apartment flats and the same was named as ‘ PEARL HEIGHTS’ . Further version of PW-1 is that he purchased a residential flat from O.P. No.-1 measuring 850 sq. ft. inclusive of 152 sq. ft. common area services etc. being flat no.- 3-C in the 3rd floor of aforesaid ‘PEARL HEIGHTS’ apartment with proportionate share of land 249.75 sq. ft. out of schedule-1 land by a registered sale deed no.-5219 dated 24/09/2019 by paying consideration amount of Rs.8,50,000/- only. According to PW-1, as per terms and conditions of the agreement for sale executed between himself and O.P. No.-1 Sri Niloy Paul , the Principal O.P. No.-1 has agreed to provide all common facilities i.e., generator, transformer, lift, staircase, passage, drainage etc. and undertook to complete the building construction by using and fitting good quality products and in standard manner. But , it has been alleged by PW-1 that, the construction works of the flat/apartment have been done in non-standard manner with several defects violating the terms and conditions of the agreement. As a result, according to the complainant, they have been suffering various problems and also they have incurred huge financial loss. That the wall plaster in both inside and outside of the flat, and also ceiling plaster have become cracked, the sanitary tank in the basement of the apartment was made without provision of soak pit and sanitary tank pipe is connected with open drain causing bad smelling and unhygenic condition. Further allegation of PW-1 is that due to non-construction of western side wall of the basement area rain water frequently enters in the parking area and common passage. That the common entrance path of the apartment does not remain fit for use in the rainy days. There is no provision to pass water from the basement area and also there is no proper ventilation system in the car parking/ basement area. That the roof of the lift is not covered by quality CI sheet. According to PW-1, though several times they requested the O.P. No.-1 and issued notice but the O.P. No.-1 neglected to provide the required facilities as per agreed terms thus causing disservice towards them.
On the other hand, from the evidence of DW-1 i.e., the Principal O.P. No.-1 it reveals that it is not in dispute that the O.P. No.-1 as promoter of the land constructed the alleged building ‘PEARL HIGHTS’ and a flat no.-3-C in the 3rd floor of the said building measuring 852 sq. ft.(approx) inclusive of 152 sq. ft. common area services was purchased by the complainant by a registered sale deed. According to DW-1, the complainant purchased the flat on being satisfied with the construction, facilities provided in the building including the drainage system, septic tank, soak pit, pipe line, common corridors and other facility. After the flat was handed over the complainant and other occupants have been maintaining the common services in the building. It is stated that the generator could not be provided as all the occupants of the building did not make payment for the same.
PW-1 has averred that due to non-standard works of the building the wall plaster both inside and outside of his flat and also ceiling plaster have become cracked. The sanitary tank in the basement of the apartment was made without provision of soak-pit and sanitary tank pipe is connected with open drain causing foul and bad smell as well as creating unhygenic condition. PW-1 has further alleged that in the basement due to non-construction of western side wall by the Principal O.P. No.-1 rain water enters in the basement and car parking areas causing problem. Further allegation of PW-1 is that there is no proper ventilation system in the car parking/ basement area. But the submission of DW-1 is that the complainant i.e., PW-1 purchased his flat on being satisfied with the construction and facilities provided in the flat as well as in the common areas including the drainage system, septic tank, soak pit, pipe line etc. It reveals from the case record that the concerned flat was purchased by the complainant on 23rd day of September’2019 and the instant case was filed by the complainant in the month of November’2020. So the appearance of crack in the wall plaster of the flat of the complainant within this short period clearly shows the fact that some works of the flat were below standard and for that, according to us, the O.P. No-1 is bound to compensate. It may be mentioned here that three other flat owners of the same building lodged complaints alleging in respect of the concerned flat as well as complaints in respect of the common areas facilities of the building. The xerox copy of the photo of the drain of the building shows its horrible condition.There is no ground for us to disbelieve the allegation that the sanitary tank in the basement of the apartment was made without provision of soak-pit and the open drain causing of the building causing bad smell as well as unhygienic condition. Both the allegations appear to be serious since those are polluting the environment of the Apartment and its adjoining areas and on the other hand these are making the Apartment/building inhabitable. Another allegation is that due to non-construction of western side wall by the Principal O.P. No.-1 rain water enters in the basement and car parking areas causing problem. During the course of argument it has been admitted by the O.P. side that construction of western side wall is pending. Another allegation of PW-1 is that there is no proper ventilation system in the car parking/ basement area. There is also no specific denial of this fact by the O.P. So we are of the clear opinion that the Principal O.P. i.e., the Promoter who sold the flats to the Purchasers is bound to meet up the allegations/demands of the complainant.
In his evidence PW-1 has further contended that the O.P. no.-1 agreed to provide generator for the use of flat owners. But the version of DW-1 is that as all the occupants of the building did not make payment for the generator so the generator could not be provided. On the other hand Ext. -1, the copy of sale deed of the flat of the complainant contains no whisper in respect of any generator the builder agreed to provide in the building for common use. There is also no evidence in the case from the side of the complainant that he and other flat owners paid their respective contribution for the generator.
PW-1 has further alleged that the roof of the lift is not covered by quality C.I. sheet and the common entrance path of the apartment is also not fit for use in rainy days. Though the O.P. No.-1 has denied the said facts but the case record shows that the Society of the building i.e., ‘Pearl Heights’ in their meeting held on 02/08/2020 took resolution regarding such drawbacks/faulty works in the building and flats . It also has been submitted by the complainant that the president of the Society of the apartment/building sent the demand to the Promoter for rectification of faulty works but the promoter did not comply. There is also no grounds in the case to disbelieve the allegations made by the complainant. As such the activities of the promoter i.e the principal O.P. No.-2 constitute negligence and disservice towards the complainant. The promoter is liable to provide essential basic facilities in the building and the quality of works should not be such that within few years it will start deteriorating.
Under the circumstances, according to us, the complainant is entitled to get reliefs in the case. However it may be mentioned here that the promoter is not liable to provide generator to the complainant’s building. As most of the allegations regarding faulty works etc. in the building are for common use by all the flat owners, so, according to us, it will be appropriate to give reliefs for those matters jointly. Also it will not be out of place to mention here that there is reason for filing this case and also there is no defect or impediment in the case for granting reliefs
Accordingly, it is ordered that the principal O.P. No.-1 Sri Niloy Paul shall pay to the complainant an amount of Rs. 40,000/- ( Rupees forty thousand ) only towards compensation for damages in the plaster of walls of his flat etc. The complainant shall utilize the said amount for repairing of wall plasters, for painting and for electric repairing . The Principal O.P. No.-1 shall further pay an amount of Rs. 5,000/- ( Rs. five thousand ) only towards cost of litigation. The entire amount as directed for payment shall be payable within a period of next 90(ninety) days else interest @ 10% per annum would accrue on the entire amount from the date of judgment till realisation of the amount. For construction of western side boundary wall , repairing of drains, septic tank, pipe line, entrance path of the building, for ventilation work of the basement etc. related to common areas of the building order has been passed in Consumer Case No.- 34/2020. As such, in this case no separate order has been passed regarding construction of wall and compensation for repairing in the common areas.
With the above the case stands allowed on contest against the principal O.P. No.-1 Sri Niloy Paul. The judgment is pronounced on this 21st day of March’ 2023 under our seal and signature.
