FA.No.556/2007 AGAINST C.C.No.182/2005  DISTRICT FORUM-II,A KRISHNA AT MACHILIPATNAM .

Between:

Raghava Estates Ltd,

Rep. by its Managing Director,

Sri Lingam Ravindra

Kanuri Subbaiah Buildings,

Near Eenadu, Patamata Lanka,

Vijayawada-10.                                                                                                             Appellant/

O.P.No.1

And

1. Vishnupuram Colony Welfare Association

    Poranki, rep. by its President, Vemuri Lakshmi

    Narayana Rao, H.No.76, Vishnupuram Colony

    Poranki, Penamaluru Mandalam,

    Krishna District.                                                                                                        Respondent/

                                                                                                                                       Complainant.

2.  VGTM UDA rep. by its Vice Chairman,

     Vijayawada.                                                                                                             Respondent/                                                                                                                                                                            Opposite party 2

 (Respondent No.2 not necessary party)

Counsel for the Appellant: Mr.C.V.V.Prasad.

Counsel for the Respondent. Mr.M.Hari Babu.

QUORUM:           SMT.M.SHREESHA,  MEMBER

&

SRI K.SATYANAND, MEMBER

.

TUESDAY, THE TWENTY SECOND DAY OF DECEMBER,

TWO THOUSAND NINE

(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***

        This is an appeal preferred by the first opposite party against which the District Forum imposed liability for deficiency in service and directed it to pay Rs.19,40,000/- and in addition 10% escalation on the said amount per year (date of commencement and the date till which such escalation has to be paid was not indicated in the order) besides costs in a sum of Rs.25,000/-.

        The facts that led to filing this appeal are briefly as follows:

        The complainant is Vishnupuram Colony Welfare Association.  It appears the first opposite party, a real estate developer, floated a project by name Vishnupuram Colony in which the members of the complainant association acquired individual houses.  While initiating the project, the opposite party promised several attractive facilities including a 60 feet BT road and other BT roads, drainage system, stormwater drainage canals on either side and other facilities in fact in conformity with the conditions in that regard while approving the lay out by the second opposite party.  

        But soon it turned out  that the opposite party laid sub standard BT road of merely ½ inch thickness and narrowed down 60 ft. BT road that was the star attraction of the project and likewise provided crippled drainage system after a long delay that extended upto 2004 while in fact the project was commenced way back in 2000.  It is the further case of the complainants that though the opposite party No.2 collected at the rate of Rs.200/- per sq. yd. by way of development charges from the house owners, it failed to provide the above mentioned facilities as per the standards; this lapse signifying according to them the deficiency in service.  So on the ground of deficiency in service, they claimed the amount as much as Rs.19,40,000/- and costs.

        The opposite party No.1 resisted the complaint denying that  there was any deficiency and collecting at the rate of Rs.200/- per sq. yd. by way of development charges even while admitting that the complainant association members had taken individual houses in the venture.  It was categorically denied that the BT roads were sub standard claiming that the opposite party laid roads as per the approved layout with required standard.  Likewise the opposite party also denied the allegation that it failed to form 60 ft road and asserted that such a road was formed in accordance with the approved layout.  The opposite party explained that as per the lay out plan 2/2000 in respect of phase-II, the opposite party was obliged to leave sufficient site to make the abutting road a60 feet road and in terms thereof, the opposite party left required site along the phase II to the existing panchyat road and as such the abutting road of phase –II was 60 feet and was very much in accordance with approved lay out.  Similarly it also denied not having provided underground drainage by asserting that it had provided under ground drainage pipes with necessary chambers and with proper levels throughout the colony.  It further contended that it was the responsibility of the Gram Panchayat of Poranki to look after the out fall of drainage and it failed in providing necessary and proper drainage facilities to the colony. It was therefore not correct to state that the opposite party did not follow the mandatory rules and regulations of opposite party no.2.  The other allegation the opposite party chose to contradict appears to be nothing but the extension of the criticism of the complainant in as much as it maintained that opposite party failed to maintain the levels for proper flow of drainage which according to the opposite party was baseless and called upon the complainant to prove that the levels were not maintained properly.  Thus the opposite party urged that the complaint was liable to be dismissed.

        In view of this emergence of consumer dispute, the District Forum embarked upon enquiry.  In support of its case, the complainant got filed the affidavit of   the President of the complainant association  and relied upon documents marked as Exs.A1 to A14.  Exs.A1 and A2 were meant to prove the locus standi of the complainant.  Ex.A3 and A4 were tendered to show that the opposite party made certain promises the breach of which was sought to be made the substratum of the grievance.  In other words, Ex.A3 and A4 were sought to be relied upon as the source documents for making out the grievance.  Ex.A5 was a letter addressed by opposite No.1 to one of the allottee’s of the plot No.28 calculated to prove the demand of Rs.200/- per sq. yd. towards the development charges.  Ex.A6 was the letter addressed by the complainant to the opposite party clamoring against various problems that remained unattended to by the opposite party. Ex.A7 was ultimately the legal notice issued to opposite party No.1.  Ex.A8 was the reply thereof.  Ex.A9 was the estimate of the expenditure for  rectification of drainage pipes, roads obtained from a consulting engineer engaged by the complainant.   Exs.A10. A11, A12 were filed to show the competence of the complainant to maintain the complaint on behalf of its members.  Ex.A13 was again another document to show that the opposite party collected development charges from the members. Ex.A14 was a letter from the District Panchayat officer making it clear that the provision of internal roads and drainage was the responsibility of the real estate developer.    It also further clarified that as per the rules the panchayat road and the drainage have to be improved or maintained by the Gram Panchayat.  The opposite party No.1 got filed the affidavit of its Managing Director and relied upon documents marked as Exs.B1 to B20.

        On a consideration of the evidence adduced on either side, the District Forum reached the conclusion that the complainant could prove the deficiency in service against opposite party no.1 and relying upon the estimate embodied in Ex.A9 awarded the amount as prayed for and also added a further  dose of relief by providing for recurring payments by way of escalation at the rate of 10% per year on the amount awarded without specifying from which date to date.  The District Forum also awarded costs in a sum of Rs.25,000/-.

        Aggrieved by this order, the opposite party No.1 against whom alone the order was passed filed the present appeal urging various grounds. It is the case of the appellant that the complainant failed to prove the development charges at the rate of Rs.200/- per sq. yd. The District Forum failed to see that the complaint was barred by limitation. The District Forum failed to consider Ex.A14 in which it is stated that the maintenance of roads and drainage system concerns the Gram Panchayat and it was the duty of the Gram Panchayat.  The District Forum ought to have seen that the road between phase I and phase II was apportioned among 43.6 ft road and an irrigation canal which was vested in gram panchayat apart from 16.6 ft area provided by the appellant and that therefore there was no obligation on the part of the appellant herein for development of the said entire 60 feet wide road.  Inspite of that the appellant had developed the said road to the maximum extent of 40 feet. The District Forum also failed to see that the said 60 feet road was planned between phase I and Phase II of the colony and it was not a part of layout and therefore it was not obliged to develop the said 60 feet road.  It was ultimately urged that there was no deficiency in constructing the drainage system and the District Forum made appellant liable  for the so called  improper maintenance.   The very claim was in the nature of a specific performance and the District Forum failed to note this point.

        The appellant filed written arguments.  The counsel for respondent addressed oral arguments.

        The points that arise for consideration are:

1)                Whether the complainant could establish the charge of deficiency in service levelled against the opposite party?

2)                If so, whether the frame of the relief is justified?

3)                To what result?

1.                In the matters of making out deficiency in service arising out of real estate deals, the complainant has to prove the existence of the grievance or grievances that collectively make the deficiency in service as against the opposite party developer.  In the process of proving such grievance, it is necessary to establish

a)                the right and source of right of the complainant

b)                The factum of violation by  the other side.

c)                 The absence of justification for violation or absence of proof of compliance debunking violation alleged.

These three parameters have to be applied in respect of each grievance one by one in order to take a decision on each grievance either upholding it as true or rejecting it as false. 

        As could be seen from the complaint, the essential grievances for which this complaint is laid are not many.  They pertain to the quality of internal roads, the quality of the drainage provided and the failure of the opposite party to lay 60 feet road.   Now taking up these grievances one by one, the source for complaining against the inferior quality of the internal  roads is absolutely not available.  It is not the case of the complainant that the internal roads were not laid.  The complainant only alleged that those roads were of ½ inch thickness and the roads were of such a inferior quality that the grass has sprouted penetrating those roads.  But even according to Ex.A14, the maintenance of the panchayat roads was the responsibility of the Panchayat and we do not have data as to which of the roads vested in the Gram Panchayat and which of the roads still remained private in the sense that they remained in the ownership of the community of the individual owners.  No doubt Ex.A14 makes a distinction between the construction of the roads or the drainage as the case may be and the further maintenance of the roads and the drainage.  The first part that is the constructing of the roads and drainage is  very much the responsibility of the developer i.e. opposite party No.1 but the maintenance of the roads vested in Gram panchayat and the drainage squarely falls within the jurisdiction of the gram panchayat.  It is pertinent to point out that Ex.A14 is a document filed by the complainant itself.  It is not the case of the complainant that the internal roads and the drainage were not constructed by the opposite party.  Their case was that both these two facilities were in a way sub standard.  But as could be seen from the evidence adduced there is not even an iota of evidence by way of an expert opinion that those two constructions were sub standard except the self serving testimony of P.W.1.  No doubt the complainant relied upon Ex.A9 which gave an estimate of the cost involved in improving the condition of the road fixed at a total of Rs.16,40,000/-.  But the fact remains that Ex.A9 which by implication refers to the quality of the road which again is sought to be attributed as misfeasance of opposite party No.1 came into existence behind the back of opposite party No.1. as such an observation is conspicuous by its absence in Ex.A9.  Such a far reaching exercise mulcting an unrepresented party with liability cannot be resorted to without proper notice to th other side.  As a matter of fact, the complainant ought to have got appointed an expert though not a Commissioner to do the very same exercise for which Ex.a9 stood but after the participating of both the parties and after affording full opportunity to them.  Likewise even in the case of drainage Ex.A9, the only evidence as already pointed out that is sought to be given the flavor of an expert’s opinion suffers from the same vice  and the estimation of the said consulting engineer in respect of the improvisation of the drainage system quantified at Rs.3,00,000/- is equally exposed to the comment of having been rendered in the absence of one of the stakeholders in the exercise. 

        The third grievance pertains to the non provision of 60 feet BT road.  Ex.A9 is totally silent.  Thus the claim amount of Rs.19,40,000/- did not cover any translation into monetary terms of the relief pertaining  to the said grievance.   The opposite party gave an extensive explanation about the non provision of 60 feet BT road  between phase I and Phase II  for which no doubt a mention was made in the brochure.  But the fact remains that the said 60 feet road was not an internal road more precisely called the colony road.  Obviously it lies outside phase I and outside phase II.  He gave an explanation relying upon Ex.A24, Ex.B1 which is equal to Ex.B9 and Ex.B2 which is equal to B4 in order to show that the requirement of laying roads which was a condition precedent for giving final layout as stipulated by the provisional layouts borne out from Exs.B8 and B3 preceding Ex.B1 and B2 respectively sets at rest the controversy as regards this particular road.  But when once such a road was promised in the brochure, otherwise called as pamphlet brought out by opposite party No.1 and marked as Ex.A3 and A4, it is incumbent upon the opposite party to show to the hilt as to how the compliance became impossible or was successfully effected.  Here there is some deficiency in the adequacy of the presentation of the case of opposite party No.1.  In any view of the matter, this grievance of the complainant did not entail any monetary liability as what was claimed appeared to be in relation to the other grievances only as per Ex.A9. 

        Thus, it cannot be straight away said  that the case of the complainant and the defense of the opposite party are both decisively capable of being spelt either as established or not established.  This situation has arisen because the enquiry remained inconclusive and not thorough.   This kind of dilemma justifies the ordering of the further trial as the tribunals are bound to be very decisive in their verdicts.  In this view of the matter, we feel that this is a case that deserves to be sent back or remitted to District Forum for further trial to fully sort out the bones of contention after giving full opportunity to both sides keeping in view the procedural nicities in the matter of fully adjudicating a cause that came to the expressed in the foregoing discussion. 

        Accordingly the appeal is allowed setting aside the order of the District Forum and remanding the matter to the District Forum to dispose of the case on merits after making a further enquiry into the complaint after giving full opportunity within three months after the receipt of this order.  There shall be no order as to costs in the circumstances of the case.

                                                                                                                        Sd/-MEMBER.

                                                                                                                        Sd/-MEMBER.

JM                                                                                                                     Dt.22-12-2009