.BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. OF 2009 AGAINST C.C.NO.602 OF 2008 DISTRICT CONSUMER FORUM-I HYDERABAD
Between
B.Suresh Babu S/o B.Rama Krishnaiah
Aged 46 years, Occ: Addl. Director of Industries
R/o Flat No.302, H.No.7-1-29/A/5/302,
Rajeswari Apartments, Ameerpet, Hyderabad
Appellant/complainant
A N D
1. Sri N.Ravi Kumar S/o Narasimham
aged major, Occ: Service
R/o Flat No.G2, H.No.7-1-29/A/5/302,
Rajeswari Apartments, Leelanagar
Ameerpet, Hyderabad
2. Sri Nandkumar, aged major
R/o Flat No.103, H.No.7-1-29/A/5/203,
Rajeswari Apartments, Ameerpet, Hyderabad
3. Sri N.S.Sekhar, Aged Major Occ: Service
R/o Flat No.104, Rajeswari Apartments
Leelanagar, Ameerpet, Hyderabad
4. Sri L.S.G.Murthy, aged major Occ: Service
R/o Flat No.101, Rajeswari Apartments
Leelanagar, Ameerpet, Hyderabad
5. Sri V.S.Sastry, aged major, Occ: Service
R/o Flat No.202, Rajeswari Apartments,
Leelanagar, Ameerpet, Hyderabad
6. Sri Rolla Kistaiah, Aged Major, Occ: Service
R/o Flat No.G-1, Rajeswari Apartments,
Leelanagar, Ameerpet, Hyderabad
7. Sri M.R.Prasad, Aged Major Occ: Service
R/o Flat No.102, Rajeswari Apartments
Leelanagar, Ameerpet, Hyderabad
8. Shri Rajeswari Owner’s Apartment Welfare
Association 9Regd. No.648/2008) rep. by its
General Secreary, N.S.Sekhar, H.No.7-1-29/A26
Leelanagar, Begumpet, Hyderabad
Respondents/opposite parties
Counsel for the Appellants Sri V.Gourisankar Rao
Counsel for the Respondents Party in person
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE TWENTIETH DAY OF JULY
TWO THOUSAND TEN
The complainant is the appellant. The appeal is directed against the order dated 21.7.2009 in C.D.No.602 of 2008 by the District Forum-I, Hyderabad whereby his complaint was dismissed.
The factual matrix of the case is that the complainant is that the complainant was the owner of the Flat in 3rd Floor of the Rajeswari Apartments since 2005. At the time of purchase there was no ground water from the year 1993 and all the flat owners have been purchasing water through water tanks. Since the complainant’s flat is in the 3rd floor the water from the head tank goes to first floor and then comes to third floor. The flow of water is very low and it led to uneven distribution of water which is not at all sufficient to the flat owners in the 3rd floor. The complainant receiving 10% of the water supply, yet he is paying full water charges on par with other flat owners. As per the technical report of Chief Engineer to ensure equal distribution of water supply to all flat owners, it is necessary to increase the size of the water lines of 2nd floor and 3rd floor to 1” and reduce the line to 1/2 “ in the ground and first floors.
All the flats are connected through single pipe line, the amount of water to 3rd floor is less. As per the advice of the Chief Engineer, the complainant has taken water connection directly from the main tank with ½” pipe line to overcome the difficulty of water supply and got installed a separate water meter for the connection. On 31.5.2008 the opposite parties no.1 and 2 have destroyed the water meter as well as the pipe line connection of the complainant and damaged the entire water system worth Rs.15,000/-. The opposite parties no.1 and 2 violated the rules and regulations of A.P. Apartments (Promotion and Construction of Owners) Act,1 987. The complainant also wrote letter dated 19.6.2008 to GHMC authorities to take necessary steps for equitable distribution of water to all flats. The complainant also filed suit O.S.No.1590 of 2008 for his easement right which is still pending. Therefore, the complainant filed the complaint before the District Forum seeking direction to the opposite parties to restore 1/2” water connection by installing with water meter from the over head tank and to pay compensation of Rs.2 lakhs and costs.
The opposite parties filed counter denying the material allegations made by the complainant contended that there is no proof of unequal distribution of water for the flats. No engineer inspected the building at any point of time. Neither the complainant nor the tenants are paying the maintenance and water charges from the month of October 2007. Therefore the complainant is not a consumer to file the case. The complainant filed a civil suit O.S.No.1590 of 2008 on the file of V Jr.Civil Judge, Hyderabad wherein I.A.NO.272/2008 and 273/08 filed for injunction and restoration of water supply was dismissed. The complaint is not maintainable as principle of the res-judicata is applicable as the matter was already adjudicated by the civil court. The same fact was suppressed by the petitioner in the complaint. The case against opposite parties in individual capacity is not maintainable. The water right on the over had tank is a common right but not an individual right. The complainant is also using water along with the other flat owners equally and no owner shall bring any change or alteration except with unanimous consent or majority consent of the flat owners. The complainant on 16.5.2008 tried to close the outlet of overhead water tank by taking connection for his flat through outlet which was obstructed by the opposite parties. The complainant is taking the water from the tank directly along with all the other flat owners. The complainant has no right to draw excess water and he has no right to take unauthorized connection by closing the outlet. Hence the opposite parties prayed for dismissal of the complaint.
The complainant filed his affidavit and got marked exhibits A1 to A5.
No evidence affidavit and documents were filed by the opposite parties.
The learned counsel for the complainant has filed written arguments.
The point for consideration is whether the impugned order warrants any interference in this appeal?
The complainant had purchased the Flat bearing number 302 on 7-01-2005 in Rajeshweri Apartments from its owner A.V.Subba Rao. The sale deed ExA1 evidences the sale transaction. The number of apartments in the building is two flats in the ground floor, four flats each in the first floor and second floor and two flats in the third floor. It is interesting to see the complainant contend on one hand that that at the time of the purchase of the flat there was no registered association resulting all the affairs were regulated by gentlemen’s agreement and subsequently the complainant was nominated as the president and the owner of the flat bearing number 301, Srinath as the secretary and since then they have been discharging their duties and on the hand filing the complaint against the Association, the opposite party no.8 herein. It is not disputed that the father of the opposite parties no.1 and 2 ,K.Narasimhan entered into a Development Agreement with M/s Pragathi Developers for construction of the building where under he was allotted one flat in the ground floor and another in the first floor. The father of the opposite parties no.1 and 2 and one Iyyangar used to manage the facilities like water, parking etc since 1991till the death of the father of the opposite parties no.1and 2 and subsequently Iyyangar was also expired. The opposite parties submitted that in view of transfer of the opposite party no.1 to Madras the complainant was entrusted with the responsibility from the month of June,2006 till December, 2006 which obligation he continued to exercise against the request of the opposite party no.1, till the month of April,2008.
The complainant filed the suit, O.S.No.1590 of 2008 and during pendency of the suit he has filed the complaint before the District Forum. The learned counsel for the complainant contended that the complainant filed the complaint before the District Forum on 7th August,2008, the Court dismissed the petitions, I.A.Nos.272 of 2008 and 273 of 2008 were on 18th August,2008 and the complainant had withdrawn the suit on 5th September,2008. However, in the written arguments filed on behalf of the complainant, it is stated that the suit is still pending. Paragaraph 10 in the page 3 of the written arguments reads as “The complainant has approached civil court for his easement rights in OS. No. 1590/2008 and it is still pending”. In the light of such contention, the complainant cannot be supposed to say that the district forum has taken an erroneous view of fact and dismissed the complaint. The contention of the complainant in the written arguments make his statement susceptible that he had withdrawn the suit and that to the effect he had filed counter in SRNo.1732 of 2009 in E.A.No.76 of 2008.
To a query of this Commission as to why the complainant had withdrawn the suit wherein a detailed enquiry could have been held, elaborate evidence could have been adduced giving opportunity to the complainant and the opposite parties as well to put forth their case in comprehensive scope whereby all the rights of the parties in regard to the distribution of tap water could have been decided, the learned counsel for the complainant replied that in view of a judgment of the Hon’ble Supreme Court in Fair Air Engineers Pvt Ltd vs N.K.Modi 1996(6) SCC 385, it is the prerogative of the complainant to choose the choice of the Forum for ventilating his grievance. In that decision it was held that depending upon the circumstances of the case, it lies within the discretion of the Consumer Forum whether it can take up the matter or relegate the parties to the appropriate Forum.
The complainant had filed the suit,O.S.No.1590 of 2008along with two petitions before the IV Additional Junior Civil Judge, Hyderabad and after tasting his luck there which resulted in the dismissal of his two interlocutory applications filed seeking direction for restoration of the water connection, the complainant proceeded to prosecute the complaint filed before the District Forum. The learned Junior Civil Judge held that the matter such as genuineness or authenticity of the certificate issued by the Chartered Engineer would be considered at the time of full fledged trial of the suit. In these peculiar circumstances, we are unable to understand how the consumer forum can be compelled to permit the complainant to proceed with a comprehensive claim requiring evidence in the form of examination and cross examination of witnesses , for adjudication of the matter in summary proceedings.
During pendency of the appeal the complainant filed the affidavit of V.Srinath, the owner of the Flat No.301. Srinath in his affidavit has stated that the contents of his affidavit filed in I.A.Nos.272 of 2008 and 273 of 2008 O.S.No. 1590 of 2008 in the Court of the IV Additional Junior Civil Judge, Hyderabad are wrong and the statement that each flat is getting equal quantity of water is incorrect. The learned IV Additional Junior Civil Judge, Hyderabad dismissed the petitions filed by the complainant holding that the complainant had been not able to establish that he had prima facie case and balance of convenience is not in favour of restoration of water connection to the flat of the complainant. The Court held that the tenant of the complainant, G.sandeep had filed his affidavit in the petitions to the effect that the complainant had obtained illegal water connection from the outlet(i.e.tank cleaning valve) of the overhead tank to the flat let out to him.
Taking into consideration of the affidavits filed by the tenant of the complainant, Sandeep and that of the owner of the Flat No.301 ,Srinath and other flat owners, the petitions filed by the complainant were dismissed. Thereafter, the complaint filed by the complaint was dismissed by the District Forum. After his affidavit was filed in the Court, Srinath has not filed any petition bringing to the knowledge of the Court the statement made therein said to have been incorrect. A month after dismissal of petitions filed by him, the complainant filed application for withdrawal of the suit O.S.No. 1590. For the first time, he has filed his affidavit in the Appeal whereunder he has disowned the contents of his affidavit filed in O.S.No.1590 of 2008.
An affidavit is a sworn statement made by the deponent. It stands on a different footing compared to a statement not made on oath. All the interlocutory applications are disposed of by a Court basing on the documentary evidence and affidavits as well. The affidavit filed by Srinath before the court was certified by the Advocate before whom it was made has stated in his affidavit filed before this Commission disowning under the pretext of ignorance of the contents of the earlier affidavit filed in O.S.No.1590 of 2007 and thereby he has degraded the sanctity of the affidavit and abused the process of law.
The alternative water distributive system which was covered by a news item in Hindu daily news paper and the photographs of the building filed by the complainant to show the floor wise pipe system would not support the case of the complainant as commissioner filed his report to the effect that there was an independent water connection connected to the cleaning outlet of the overhead tank which however, was not in existence by the time of inspection of the building. It appears the commissioner had taken the assistance of a plumber at the time of her inspection of the building. The plumber has filed his report to the effect that the overhead tank on the terrace of the building is of 6000 liters capacity of which 2000 litres of water is meant for drinking purpose and the balance 4000 litres for other purposes and there is no obstruction for the supply of drinking water to the flat no.302 of the complainant.
Feeling dissatisfied with the report of the commissioner which as aforesaid has been not of any help to the case of the complainant, the complainant had filed another application before this Commission to appoint an expert to inspect the water distribution pattern to his flat. G.L.Rao (FIE), Chief Engineer(retired) was appointed to make an inspection of water delivery system in Sri Rajeshweri Apartments Residential Complex. The complainant heavily relied upon ExA2 the report of the Chartered Engineer. The opposite parties no.1 and 2 disputed the genuineness of ExA2 before the IV Addl. Junior Civil Judge. As aforesaid, the Court disposed of the petitions filed by the complainant leaving the issue of the genuineness of ExA2 to be decided at the time of full fledged trial. The complainant had withdrawn the suit even before the trial has commenced. Hence, the question of genuineness of the document remained as it is as the District Forum has not touched this aspect while taking up Points.1 and 2 for discussion.
If we leave apart ExA2 and consider the commissioner’s report filed in the Complaint and the expert’s report filed in the appeal, the relevant findings of the commissioner and the two engineers discernible and are described as follows:
1. There are four floors in the Building with 2 Flats in the Cellar, 4 Flats in each of the 1st Floor and 2nd Floor and 2flats in the 3rd Floor whereof 5 Flats are located on one side and 7 Flats on the other side which have been supplied water stored in two sumps and a overhead tank.
2. The sump on the western side of the Building is of size4’-0’x8’-10’x5-6’ with a ½’connection with a meter for Municipal drinking water supply. Another sump is of the size 7’-2”x11’-0x7’-0’ with a pump and motor of capacity 1.5 HP meant for tanker/bore water.
3. The overhead tank is of capacity of 6,000Litres on the terrace, divided into two parts with a capacity of 4,000 litres for tanker/bore water and with a capacity of 2,000 litres for drinking water.
4. There is an indication that a separate connection was taken from the flush out valve of the overhead tank used for supply of bore well water to the flat of the complainant.
5. There is difference in water head across the four floors of the building, water pressure will go on decreasing from ground floor to top floor.
6. Equal water distribution can be ensued by increasing the size of the water lines of second and third floor to 1” and reduce the line to ½” for ground and first floor or each flat owner can be permitted to draw the water directly from main tank where a system of accountability of the quantity of water supplied to each flat could be measured and build for.
Thus, the two engineers appointed on application by the complainant had come to the conclusion that any of the aforesaid measures suggested by them could be adopted by the parties. The expert G.L.Raod appointed by this commission had opined that providing measurement system of water supplied is a feasible solution for which the complainant had expressed his willingness while the opposite parties have not been willing to resort to such a system, may be in view of the cost involved and the requirement of acceptance of all the flat owners.
The complainant has submitted that he had been using the separate connection which was disconnected by the opposite parties, ever since he had purchased the flat from his vendor A.V.Subba Rao. The opposite parties have submitted that the water connection in question was only taken from the flush out valve of the overhead tank by the appellant in the month of January, 2008. The complainant has not filed any document except the affidavit of his vendor to show that the water connection in question had been in existence from the date of purchase of the flat. In such circumstances to come to the conclusion in regard to the period of existence of the water connection in question said to have been installed for supply of water to the apartment of the complainant, elaborate evidence comprising of examination of witnesses is essential which can be only done in a civil court.
Thus, the aforementioned factual situation is obtained in the circumstances of the case, coming to the aspect of question of law, both the parties relied upon the provisions of A.P. Apartments (Promotion of Construction and Ownership) Act, 1987. The learned counsel for the complainant has referred to Sec.2, 21, 27 of the Act and Rule 17 of Multi Storied Building Regulation Rule, 1987, whereas the opposite parties relied upon Sec.3 of the Act. Section 3 of the Act is a provision dealing with definition of Apartment, Association of Apartment Owners, Common Areas and facilities etc. Clause ‘d’ of the Section provides for common areas and facilities otherwise provided in the declaration and they include the land on which the building is located, installations of general services such as power, light, gas hot and cold water, heating, refrigeration, air conditioning and incinerating; elevators, tanks, wells and borewells, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use.
The tank being a common area as provided by Sec.3 of the Act, all the apartment owners will have equal rights for the use of the tanks, wells and bore wells, pumps etc. However, the exercise of right conferred by Sec.3 of the Act is subject to the Secs.21 and 27 of the Act. Section 21 of the Act reads as under:
The Manager or Board of Managers of an association of Apartment Owners may, after due notice of not less than 7 days, for just and sufficient cause, cut off, withhold, or in any manner curtail or reduce any essential supply or service enjoyed by an apartment owner.
In the explanation clause the essential supply or service is dealt with whereunder supply of water, electricity, lights in passages and on stair cases and elevators and conservancy of sanitary service have been included. Sec.27 of the Act provides for an overhead tank to every owner of the apartment. The procedure for providing the overhead tank to the owner of apartment is left to be prescribed by a subordinate legislation. Sec.4 R/w Sec.6 of the Act makes ti clear that once the builder had declared the plan of the building under the Act, he cannot later on alter it. Any modification of the building shall be done only with the consent of all the flat owners. In this contest it is essential to extract Sec.6 of the Act which reads as under:
7. No alterations after disclosure of plans etc. 1) After the plans, specifications and the nature of the fixtures, fittings amenities and common areas as sanctioned by the local authorities or urban development authority concerned are disclosed to an intending transferee u/s 4 and a written agreement of sale is entered into u/s 5, the promoter shall not make any additions or alterations therein
(i) if it effects any apartment, without the previous consent in writing of the transferee who intends to take that apartment; and
(ii) if it effects more than one apartment, without the previous consent in writing of all the transferees who intend to take those apartment
2. Any of the additions or alterations referred to above shall be carried out only with the prior approval of the local authorities or the urban development authority concerned.
The association, the opposite party no.8 has stepped into the shoes of promoter insofar as the management of affairs of the flats in the builder are concerned and in terms of the provisions of the A.P. Apartments (Promotion of Construction and Ownership) Act mentioned above, any modifications or alterations to the fixtures, fittings etc., have to be carried out by the consent of all the flat owners and approval of the authorities concerned.
The complainant has filed an application dated 19.6.2008 before the Commissioner, GHMC seeking his intervention by advising the engineer concerned to make a technical study of the problem in regard to equal distribution of water to all the flats in the building. He has referred to the approval of building plan in file no.204/TP5/90 as faulty in regard to the design of the water connection system and complained that the municipal authorities had not noticed the water design system at the time of granting approval of building plan. It appears the Commissioner has not taken any action on the application of the complainant.
The complainant has approached the Hon’ble High Court by filing W.P.No.23582 of 2008 and seeking direction to the GHMC and the opposite parties no.1 and 2 besides the Dy. Commissioner of Police West Zone, Hyderabad to provide the water connection to his flat no.302 through calibration system as per Regulation no.17 of Multistoried Building Regulations. In the affidavit filed in support of the petition, the complainant has stated that he used to get water supply through common water connection which was provided at the time constructing the apartment and in view of his flat being located in third floor, he used to get very small quantity of water compared to the other flats in the lower floors and the remedy for him is to get independent water connection from the main tank to each of the flats. Further, he has stated that he approached the Human Rights Commission, District Forum and also filed a private complaint against the opposite parties no.1 and 2 herein in the court of III Addl. CMM, Nampally, Hyderabad and also approached the Special Executive Magistrate, Hyderabad stating that his access to the common area where the water system is existing was obstructed and despite approaching all these fora, he could not get any justice for redressal of his grievance. The Commissioner, GHMC is stated to have not taken any action to consider the representation of the complainant. It is not known what happened to the writ petition as the same relief has been sought for before the High Court.
All the flats including the flats in the 1st, 2nd and ground floors of the building including the flat of the complainant are not getting equal distribution of waters. The owner of the flat no.301 in the third floor of the building has filed his affidavit in the appeal before this Commission. He has stated that compared to the quantity of water supplied to the flat of the complainant, his flat is supplied with less quantity of water on account of his flat being located on the eastern side wherein seven flats are in existence whereas on the western side there are five flats including the fflat of the complainant. The expert in his report has stated that all the flat owners have been storing water in syntax tanks kept in their respective flats. All the flat owners except the complainant have filed an application that they do not face any water problem. The complainant claims an independent water connection on the ground that the water supply is not sufficient to meet the needs of the residents of his flat. Admittedly the complainant has not been residing in his flat. However, as aforesaid there has not been equal distribution of water supply to all the flats of the building.
The expert appointed by this Commission has suggested providing measurement system of water supply to all the flats in the building whereby a system of accountability of the quantity of water supplied to each flat could be measured and billed for, as such the user can get the required quantity of water and he will be careful enough in utilizing the quantity of water prudently whereby most precious natural resource would be saved. The other flat owners have no grievance in regard to the distribution of the water to their flats. The complainant claims excess quantity of the water than what is being supplied to his flat. For the opposite partyno.8 to effect any change or modification of the existing fixtures and fittings of the water distribution system the consent of all the flat owners in addition to the approval of the authorities concerned is essential. The ground reality must be kept in mind before granting any relief in favour of the complainant. All the flat owners have not complained of any unequal distribution of supply to their flats and as such they cannot be compelled to pay any amount for arrangement of alternative water distribution system. Taking into consideration of all the circumstances, we direct the opposite party no.8 to obtain the consent of all the flat owners and approval of the authorities concerned and provide the water supply system to all the flats whereby each flat owner may draw the water directly from the main tank. The complainant shall bear the expenses for providing the water supply system to all the flats of the building. The deposit of the amount by the complainant is condition precedent for the opposite party to proceed with the providing of water supply system.
In the result the appeal is allowed. The order dated 21.7.2009 passed by the District Forum is set aside. Consequently the complaint is allowed directing the opposite party no.8 to obtain the consent of all the flat owners and approval of the authorities concerned and provide the water supply system to all the flats whereby each flat owner may draw the water directly from the main tank. The complainant shall bear all the expenses incurred for providing the water supply system to the flats. The complaint against the opposite parties no.1 to 7 is dismissed. No costs.
MEMBER
MEMBER
Dt.20.07.2010
KMK*
