Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 601
Instituted on : 19.11.2019.
Decided on : 12.07.2022
Dayawanti Attri, age 65 years, R/o 481, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 602
Instituted on : 19.11.2019.
Decided on : 12.07.2022
Bharat Sachdeva(age 39 years) s/o Premchand, Flat No.509, Second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 603
Instituted on : 19.11.2019.
Decided on : 12.07.2022
Smt. Dharam Kaur(age 45 years), Flat No.465, Ground Floor and 566, Ground Floor, Omaxe City, Rohtak, Haryana. Being deceased through her daughter Ompati w/o Sh.Wazir Singh.
.......................Complainant.
Complaint No. : 604
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Lata Devi(age 37 years) w/o Ajay Kumar, Flat No.624, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 605
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Neeru Manchanda(age 52 years) w/o Dinesh Kumar Manchanda, Flat No.609, Second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 606
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Preeti Raikwar, age 41 years w/o Dhiraj Parihar, Flat No.507, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 607
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Bhupinder Malik, age 56 years s/o Prem Singh Malik, Flat No.626, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 608
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Sharda Gupta, age 59 years w/o N.S.Gupta, Flat No.466, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 609
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Shiv Kant, age 41 years, s/o Charan Singh, Flat No.465, Second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 610
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Manoj Kumar, age 53 years, s/o Sh. Balwan Singh, Flat No.493, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 611
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Surat Singh, s/o Ran Singh, Flat No.482, Second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 612
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Radhey Shyam, age 60 years, Flat No.622, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 613
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Kavita Mehta, age 54 years, w/o Deepak Mehta, Flat No.578, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 614
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Raj Kumar, age 47 years, s/o Sh. Roshan Lal, Flat No.420, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 615
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Sudesh Kumari, age 53 years, Flat No.629, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 616
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Ompati w/o Wazir Singh age 55 years, Flat No.598, First floor and 465 First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 617
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Satyavir Mathur age 70 years, s/o Mahavair Kishore Mathur, Flat No.399, First floor and 465 First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 618
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Anil Kumar Hooda 49 years s/o Raghubir Singh Hooda, Flat no.578, Second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 619
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Pushpa Nagar age 54 years, w/o M.R.Nagar, Flat no.451, second Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 620
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Anil Kumar age 37 years s/o Sh.Raj Singh, Flat No.555, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 621
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Aman Arora age 34 years s/o Ramesh Kumar Arora, Flat No.506, Ground Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 622
Instituted on : 20.11.2019.
Decided on : 12.07.2022
Reena Taneja w/o Narender Kumar Taneja, Flat No.508, First Floor, Omaxe City, Rohtak, Haryana.
.......................Complainant.
Complaint No. : 657
Instituted on : 26.11.2019.
Decided on : 12.07.2022
Smt Santosh Jain age 56 years, wife of Sh. Satish Kumar Jain, R/o Flat No.549FF, Omaxe City, Rohtak-124001.
.......................Complainant
Vs.
- The Managing Director M/s Omaxe Ltd. Office at 7, LSC, Kalkaji, New Delhi-110019.
- The Managing Director Shanvi Estate Management Services Pvt. Ltd., Office at : Basement-1, Omaxe Square, Jasola, New Delhi.
- The Estate Manager Shanvi Estate Management Services Pvt. Ltd., Office At: Club Heaven, Omaxe City, Happy Homes, Opp. Tilyar Lake, Rohtak, Haryana-124001.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. SHYAM LAL, MEMBER.
Argued by: Shri Shubham Manchanda, Advocate for the complainant.
Sh.Vivek Mor, Advocate for the complainant(in complaint no.657)
Sh. Mannu Malik Advocate alongwith Sh. Pankaj Karnataka, A.R for
the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. The complaints No. 601 to 622 of 20.11.2019 & complaint no.657 of 26.11.2019 are being decided jointly as all these cases involve similar facts and are against the common respondents.
Facts of complaint No. 601 of 2019,
titled as Dayawanti Vs. Managing Director M/s Omaxe Ltd..
Brief facts of the case are that complainant is owner of flat situated at Happy Homes, Omaxe City, Rohtak. Respondent no.1 developed the concerned Housing Society in Rohtak and assured to construct the boundary wall of the society, but the respondent No.1 miserably failed to do so, it creates a great apprehension of trespassing in the society by the anti-social elements. It creates a great deficiency in service on the part of respondent no.1 as promised in Agreements at the time of purchasing the flat. Further, the respondent no.1 forced the complainant to execute another agreement with the respondent no.2 for maintenance and operation of the flat/society. Respondent no.1 as per agreed terms and conditions is also not carrying out proper maintenance and not providing agreed services to the complainant. The respondent no.2 is not providing sweepers for daily sweeping of common areas for the last six months on regular basis whereas in maintenance and operation agreement with respondent no.2, it was agreed that daily cleaning of common areas, stair cases have to be done by the maintenance agency. In the year 2019 for almost 40 days the sweepers, security guards and garbage collection hawkers of the society called strike and did not work as they were not paid salary by respondent no.2 regularly. Due to strike of all types of service workers, the complainant is facing huge problem even after paying the agreed maintenance cost to the respondent no.1 i.e. @ 60 paise/sq.feet. Respondent no.2 as agreed in agreement at annexure-1 at page no.15 at point No.(A)(2) that regular maintenance and upkeep of gardens, plantation, greenery, fountains etc. in the common areas within the complex of abovementioned society and & at point no.(A)(4) that maintenance of boundary walls, drains, club house etc. and maintenance/pot hole, repairs of roads, sidewalks etc., but both the respondents No.2 & 3 miserably failed to provide the services as agreed in the agreement and the situation become worst with the residents as well as the complainant. Respondent no.2 also agreed for maintenance and operation of Swimming Pool in the club of the abovementioned society but opposite party No.2 & 3 handed over the said swimming pool to some third party at their own without discussing with the residents of the society and the swimming pool of the society was commercialized. Respondent no.2 also provided plumber and electricians but they are not performing their duties as agreed for removal of complaints and the electricians are continuously demanding gratification and huge service charges of repairing work, for which they are bound to do so. The situation of water treatment plant in the society is also worst and due to supply of high TDS water, the complainant had to construct a separate borewell. Complainant sent a legal notice to the opposite parties but the same was not replied. Further, in the month of November 2019 one notice alongwith the monthly invoice was received by the complainant from the office of opposite party no.3, comprising that the respondent no.2 is going to increase the monthly maintenance charges from Rs.0.60 to Rs.2.10 per sq. feet per month of super area of the unit 1st December, 2019. But the alleged notice is without date and without signatures or any officials stamp on it. The act and conduct of the opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that the respondents may kindly be directed to withdraw the notice of respondent no.3 of increase of monthly maintenance charges from Rs.0.60 to Rs.2.10 per sq. feet per month, to refund the maintenance charges alongwith interest for the last eight months w.e.f. January, 2019 for not providing the services as agreed by them, to direct the respondents to repair roads, sewer, park, water supply, street light etc. in the society as early as possible and to pay compensation of Rs.100000/- for harassment, mental pain and agony to the complainant..
2. On notice, the respondents appeared and filed their separate written reply. Respondent no.1 in its reply has submitted that the concerned housing society has been developed as per the approved plans with respect thereto by the concerned competent authorities. It is submitted that after execution of the Conveyance Deed by the opposite party No.1 in favour of the complainant, there does not remain and exits the consumer-service provider relation between the complainant and opposite party No.1. It is further submitted that the colony is a part of approx. 111 acres of plotted development falling in sector 26 and 28 of Rohtak and a plotted colony cannot be fenced by erecting boundary wall around it as many common sector roads, revenue raasta, provision for common amenities etc. pass through it and hence cannot be obstructed for commutation of general public as per the applicable norms. Hence it is denied that the respondent no.1 would have ever assured the complainant to construct the boundary wall contrary to the applicable norms. It is denied that the respondent no.1 is not carrying out proper maintenance and not providing agreed services to the complainant. The answering respondent is the entrusted maintenance agency duly appointed by the developer as per the agreed terms which has been providing maintenance services in the society since 2011-12 at a very subsidized rate of 0.60 paise per sq. ft. per month by incurring huge monthly losses as the inflation and cost of services and manpower has been increased many folds since then. The charges have been rightly increased by the answering respondent which had been sustaining huge recurring losses as it has been providing the maintenance services in the colony for the last approx. 10 years at a meager charge of Rs.0.60 paise per sq. ft. per month whereas the cost of fuel, labour, electricity and other material and services have increased to many folds since then. It is also pertinent to mention here that the answering respondent is also sustaining huge losses due to the significant outstanding amount of maintenance charges and because the residents are not willing to pay the increased monthly maintenance charges as determined by the respondent agency as per the agreed terms despite repeated requests consequently on some occasions, affecting the services in the colony adversely. There is exorbitant outstanding of more than two crores is due to the residents towards maintenance charges. All the services are being provided in best possible manner and the common areas including parks etc. are being maintained appropriately by the respondent. The complainant has placed misleading pictures before the Hon’ble Forum as roads etc. are repaired from time to time as and when required by the respondents. The present complaint filed by the complainant and other various complaints filed by the residents/occupants of the colony is nothing but a blatant attempt to hide their own wrongs and avail all paid facilities and services free of cost. It is denied that the electricians are continuously demanding gratification and huge service charges. The internal water and sewer lines have been laid in the colony as per the approved plans with respect thereto and are fully operational and the ground water is being provided after due treatment. The water samples are collected from time to time by the concerned civic agencies to check and verify the same. Due to non payment of maintenance charges by the residents of the colony, common area maintenance services are being adversely affected from time to time. Hence the respondent is entitled to increase the maintenance charges and the same have been rightly and fairly increased in the interest of the colony and residents residing therein. It is denied that there is any deficiency in the part of answering respondent and that the respondent has caused any mental agony, pain, harassment to the complainant or the residents of the society. Hence the present complaint is not sustainable in the eyes of law and liable to be dismissed. Opposite party no.2 & 3 in there reply has submitted that the maintenance Agreement has been executed between the complainant and the opposite party No.2 i.e. Shanvi Estate Management Services Pvt. Ltd. only. The opposite party No.1 i.e. Omaxe Ltd. is not privy to that Maintenance Agreement and is not providing any services to the complainant.
3. It is further contended that the respondent has been maintaining the colony since 2010-2011 at subsidized rates by sustaining huge monthly losses and since December 2017 it has been conducting meetings and requesting the residents for increase in maintenance charges as the cost and expenses to upkeep & maintain all common areas and services have increased to many folds since 2010-11. It is pertinent to mention here that the maintenance services and facilities being provided by the respondent and charges to be paid on account thereof are strictly governed by the buyer’s agreements and maintenance agreements executed between the allottees and the developer and respondent company and the respondent has right to increase common area maintenance charges by virtue thereof as per the actual cost being incurred by it in order to provide maintenance services in the colony in a precise manner. It is to inform this Hon’ble Commission that instead of agreeing to pay the increased cost of maintenance, many residents completely stopped paying the maintenance charges from March 2018 and other residents denied to pay the increased cost of maintenance charges and filed many cases before various courts/forums like the present complaint. It is an established law that the maintenance and services are to be provided by the colonizer for a certain stipulated period from the date of completion of the any residential project but the same cannot be provided free of cost. In this regard the Hon’ble Supreme Court of India in DLF Universal Ltd. and Anr. Vs. Director, T and C Planning Haryana and Ors., AIR 2011 SC 1463(Supra) has also clearly laid down the law. It is pertinent to mention herein again that as of 31.12.2019 an exorbitant amount of Rs.29240487/- is due and to be paid by the residents towards maintenance charges to the respondent, due to which common area maintenance services are being adversely affected from time to time. Hence the respondent is entitled to increase the maintenance charges and the same have been rightly and fairly increased in the interest of the colony and residents residing therein. All the other contents of the reply filed by opposite party No.1 were reiterated by the opposite party No.1 in their reply and has prayed for dismissal of complaint with costs.
3. Ld. counsel for the complainant in complaint no.601 has tendered affidavit Ex.CW1 & Ex.CW2, documents Ex.C1 to Ex.C8 and closed his evidence on dated 22.09.2021. In complaint no.602 tendered affidavit Ex.CW1 & Ex.CW2, documents Ex.C1 to Ex.C10 & document Ex.C11 in additional evidence and closed his evidence on 17.06.2022. In complaint no.603 (documents Ex.C1 to Ex.C9), in complaint no.604, 607,609, 610, 612, 613, 614, 617, 618, 620,621 tendered affidavit Ex.CW1 & Ex.CW2, documents Ex.C1 to Ex.C10 and closed his evidence on dated 22.09.2021,(In complaint no.611-documents Ex.C1 to Ex.C9 and closed his evidence on 22.09.2021), in complaint no.605 tendered affidavit Ex.CW1 & Ex.CW2, documents Ex.C1 to Ex.C10 & document Ex.C11 to Ex.C12 in additional evidence and closed his evidence on 17.06.2022. and in complaint no.606- Ex.C1 to Ex.C7, complaint no.608- Ex.C1 to Ex.C7, complaint no.615- Ex.C1 to Ex.C9, complaint no.616- Ex.C1 to Ex.C11, complaint no.619- Ex.C1 to Ex.C7, complaint no.622- Ex.C1 to Ex.C6 and closed his evidence on 22.09.2021. In complaint no.657- Ex.P1 to Ex.P3 and closed his evidence on 15.04.2022. Ld. counsel for the opposite parties tendered affidavits in complaint no.601, 602, 603, 604, 606, 607, 608, 609, 610, 613, 614, 616, 617, 619, 620, 621, 622 Ex.RW-1/A, Ex.RW-2/A & documents Ex.R1 to Ex.R6 closed his evidence on dated 12.04.2022, in complaint no.605, 612, 615, 618-Ex.R1 to Ex.R5 and closed his evidence on 12.04.2022 in complaint no.611-documents Ex.R1 to Ex.R3 and closed his evidence on 12.04.2022. Ld. counsel has tendered documents in complaint no.657 Ex.R2 to Ex.R4 and closed his evidence on dated 17.06.2022.
4. We have heard the learned counsel for the parties and have gone through the written arguments placed on record by both the opposite party as well as material aspects of the case very carefully and minutely.
5. In the present case grievance of the complainant is that the opposite party No.1 failed to construct the boundary wall of the society as agreed and also failed to maintain and operate the society as per maintenance and operation agreement with respondent no.2. In the year 2019 most of the workers of the society i.e. sweepers, security guards and garbage collection hawkers remained on strike due to which complainant faced huge problem even after paying the agreed maintenance cost to the respondent no.1. It is also contended that the plumber and electricians provided by the opposite party no.2 did not perform their duties as agreed and the situation of water treatment plant is also worst. It is further contended that opposite parties have increased the monthly maintenance charges from Rs.0.60 to Rs.2.10 per sq. feet per month. It is prayed that the opposite parties be directed to repair the sewer, park, water supply, street light etc. in the society as early as possible and also to pay compensation to the complainant. On the other hand ld. counsel for the opposite parties has contended that the opposite party is the entrusted maintenance agency duly appointed by the developer as per the agreed terms which has been providing maintenance services in the society since 2011-12 at a very subsidized rate of 0.60 paisa per sq. ft. per month. It is further contended that all the services are being provided in best possible manner and the common areas including parks etc. are being properly maintained, roads etc. are repaired, the ground water is being provided after due treatment.
6. To prove their case complainant has placed on record photographs Ex.C10 dated 18.09.2019 to 13.11.2019. Regarding the increasing the maintenance charges a letter Ex.C8 has been placed on record, as per which opposite party has wrote to the residents of Omaxe City, Rohtak for increasing the monthly maintenance charges from Rs.0.60/- to Rs.2.10 per sq. feet w.e.f. 01.12.2019. Copy of maintenance agreement is also placed on record as Ex.C9. On the other hand, opposite parties have placed on record copy of allotment letter Ex.R3, copy of maintenance agreement Ex.R4, copy of receipt Ex.R5, copies of letters Ex.R6 alongwith photographs (page no.34 to page no.36).
7. Regarding the increasing of maintenance charges from Rs.0.60 paise per sq. ft. to Rs.2.10 per sq. feet w.e.f. 01.12.2019, we have perused the Agreement/Allotment letter Ex.R3 and as per section 40 of this agreement it is submitted that : “The Buyer(s) shall pay maintenance charges, which will be fixed by the company or its nominated Maintenance Agency from time to time depending upon the maintenance cost”. As per the opposite parties they have not increased the cost of maintenance since 2011-12. The cost of fuel, labour, electricity and other material and services have been increased to many folds since then. Hence in view of the alleged facts mentioned above and as per the judgment of Hon’ble Supreme Court of India in DLF Universal Ltd. and Anr. Vs. Director, T and C Planning Haryana and Ors., AIR 2011 SC 1463(Supra) we have no occasion to interfere in the matter and as such we are not giving any findings on this point.
8. From the photographs places on record by the complainant it is observed that there are some wear and tear in the gym, patches on the playground/roads and these photographs are dated 18.09.2019 to 13.11.2019, which depicts that there was lack of maintenance in the area of Omaxe City in the year 2019 despite the fact that the complainants were giving proper maintenance charges as agreed between the parties. No doubt, as per the photographs placed on record by the opposite parties the parks and roads etc. are well maintained but earlier in the year 2019 the same were not properly maintained, due to which complainants might have suffered inconvenience and there is deficiency in service on the part of opposite parties. As per the pleadings of the complainants, opposite parties failed to upkeep of gardens, plantation, greenery etc. in the society, so it would be suffice to pay a lumpsum compensation for this purpose and to spend the alleged amount on the plantation and upkeep of plants in the Omaxe Society. In our view a separate authority/department should be appointed for this purpose.
9. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite parties to pay a an amount Rs.5000/-(Rupees five thousand only) as litigation expenses to each of the complainant and also to pay a lumpsum compensation of Rs.500000/-(Rupees five lac only) on account of deficiency in service and to deposit the alleged amount in the account of G.M. Haryana Forest Development Corporation, Office at Jhang Colony Rohtak and the alleged department shall make an estimate for planting trees alongwith tree guards and 3 years maintenance charges of alleged trees and thereafter the department shall plant the trees in the society i.e. Omaxe City, Rohtak worth rupees five lacs which includes the cost of trees, tree guards and maintenance charges for 3 years. Order shall be complied within one month from the date of decision, failing which opposite parties shall be liable to pay interest @ 9% p.a. on the awarded amount of Rs.500000/-(Rupees five lacs only) from the date of filing the present complaint i.e. 19.11.2019 till its realization.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
12.07.2022
........................................................
Nagender Singh Kadian, President
..........................................
Tripti Pannu, Member.
……………………………….
Shyam Lal, Member
