Tamil Nadu

South Chennai

CC/163/2013

Mr.Krishnakumar.V.L - Complainant(s)

Versus

VNG Developers Ltd., - Opp.Party(s)

Pari Ramiah

06 Sep 2019

ORDER

                                                                        Date of Filing  : 23.05.2013

                                                                          Date of Order : 06.09.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.163/2013

DATED THIS FRIDAY THE 06^TH DAY OF SEPTEMBER 2019

                                 

1. Mr. V.L. Krishnakumar,

S/o. Mr. V.S. Lakshmanachari,

 

2. Mrs. K.K. Vedhalakshmi,

W/o. Mr. V.L. Krishnakumar

 

Both residing at:

Flat No.1, IV Floor,

Block A6, “VGN MINERVA”,

No.273, Dr. Gurusamy Road,

Nolambur,

Mugappair West,

Chennai – 600 095.                                                       .. Complainants.                                                     

 

                                                                                                ..Versus..

 

VGN Developers Private Limited,

Rep. by its Managing Director,

No.15, Wallace Garden, 2^nd Street,

Nungambakkam,

Chennai – 600 006.                                                    ..  Opposite party.

 

Counsel for the complainants    : M/s. Pari Ramiah & others

Counsel for the opposite party  : M/s. K. Harishankar & others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to demolish STP & WTP plants and to rebuild the entire plant in accordance with the rules and regulations and to pay compensation equivalent to the cost for demolition and reconstruction of the STP & WTP plants to the Association by a third party agency, to refund a sum of Rs.2,50,000/- collected towards covered car parks from the complainants with interest at the rate of 18% p.a., to refund a sum of Rs.25,000/- collected from the complainants towards Piped Gas Line connection with interest at 18% p.a., to ensure that Utility Block at VGN Minerva is a part of the said project as per State Bank of India Valuation Report and not to claim any right over Utility Block as personal asset as if belongs to Managing Director and to pay a sum of Rs.1,00,000/- towards compensation for mental agony, unfair trade practice and deficiency in service with cost of Rs.10,000/- to the complainants.

1.    The averments of the complaint in brief are as follows:-

        The complainant submits that the opposite party had widely advertised through various media, the development of an integrated township under the name and style of “VGN MINERVA” at Nolambur, Chennai – 600 095 in land measuring 1.29 acres or 4,18,050 sq. ft. comprised in various survey numbers consisting of 14 Blocks with 572 residential apartments with all amenities including STP, WTP, piped gas line, departmental store, club house, utility block, gymnasium etc with the tag line “World of Happiness”.  The complainants submit that they have booked a residential three bedroom flat having a built-up area of 1769 Sq. ft. along with a covered car park, being Flat No.1, Fourth Floor, Block A6 together with 1009 Sq. ft., of undivided share of land in the apartment complex known as “VGN MINERVA” being developed by the opposite party.  The total sale consideration was fixed by the opposite party as Rs.61,41,139/-. The total sale consideration included Rs.2,50,000/- for covered car park, Rs.50,000/- towards Corpus Fund, Rs.1,50,000/- towards STP/WTP/EB, Rs.25,000/- towards piped gas line and Rs.1,61,558/- towards other charges.  The Agreement for Development and construction was entered into between the parties dated:13.03.2009. The Sale Deed for the undivided share of land was executed on 18.09.2009 under a registered vide Doc. No.3719 of 2009 and possession of the said flats was handed over to the complainants on 12.08.2011 and the same was occupied in the month of September 2012.   As per the Agreement for Development and Construction the common areas and amenities including the STP, WTP, piped gas line, departmental store, club house, utility block, gymnasium etc for the period of one year i.e. from June 2011 upto July 2012 and had collected the maintenance charges payable for one year in advance from the complainants and the other flat owners and the opposite party was to facilitate for the formation of an association of the flat owners to be known as “VGN Minerva Owners Welfare Association” and hand over all the common areas and the amenities as also the Corpus fund to the Association.  

2.     The complainants submit that VGN Minerva Owners Welfare Association was formed and took charge the common areas and amenities without being informed on various issued including defective Sewerage Treatment Plant/ Water Treatment Plant / RO Plant, non provision of piped gas connection etc.   The opposite party collected a sum of Rs.1,50,000/- per flat on account of the same from the complainants.   The complainants submit that the opposite party has not got the mandatory consent to establish or consent to operate order from the Pollution Control Board as stipulated in the conditions while granting environmental clearance for the project without which a builder should not handover possession to occupants.  The complainants submit that as per the construction agreement dated:13.03.2009 entered into between the complainants and the opposite party, it was agreed by the opposite party that piped gas connection shall be provided for every individual flat and every owner had paid a sum of Rs.25,000/-.   But till date, the same has not been provided.   As per the Construction Agreement dated:13.03.2009 each of the allottees shall be entitled to a free Club membership.  Above all, as per the Valuation Report of State Bank of India, the cost of Utility Block is part of the project of VGN Minerva.   But to the great surprise of the complainants now the opposite party is claiming that the Utility Block is the personal asset of the Managing Director of the opposite party Company.   The Utility Block was constructed within the perimeter of the complex and the entry after security check and the approved plans are proof of this.  The Utility Block was constructed as part of the project for the owners as per the CMDA approval.   At the time of approval from CMDA, it was not shown as part of private property.  The ownership was transferred to Mr. Pratish, the Managing Director of the opposite party Company after handing over of the project to the residents even after the objection of the Association and owners of flats.  The opposite party has sent a negative reply to Association’s letter sent regarding the issue.   The opposite party sent threatening letters, emails and legal notices making false and frivolous allegations.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegations made by the complainant and the opposite party states that the contract between the complainant and the opposite party is a commercial one and This Forum is having no jurisdiction to entertain the case.   The opposite party states that on 04.10.2008, the complainant booked 3 bedroom residential apartment.  Due allotment letter also issued on the same day.  The agreement for sale and Development and construction executed on 13.03.2009.  The Sale Deed was executed for the undivided share of land executed on 18.09.2009 and the flat was handed over to him on 12.08.2011.  The complainant took possession of the flat on 12.08.2011 without any objection after due inspection.  As per the agreement the opposite party looked after maintenance of the project for 12 months from the date of handing over possession and at the request of the Owners’ Association the opposite party extended the maintenance service till September 2012.  The opposite party states that the Water Treatment Plant and Sewerage Treatment Plants were duly constructed and handed over to the association.  The State Level Environment Impact Assessment Authority issued Clearance Certificate on 04.03.2009.  Similarly, the Tamil Nadu Pollution Control Board issued certificate on 25.06.2009.  The opposite party states that the car park does not come under the saleable or common area.  The opposite party states that the collection of Rs.25,000/- towards piped gas connection was duly expended.  To allege after two years of taking possession that the procedural requirements and consent from the various authorities were not obtained thus leading to deficiency in the operation and functioning of the plants is untrue and the complainants are levelling fictitious allegations against the opposite party. That due to the improper usage and poor maintenance of the units by the dwellers, post the handing over of the maintenance, the opposite party cannot be alleged and made responsible.  Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainants have filed proof affidavit as their evidence and documents Ex.A1 to Ex.17 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.12 are marked on the side of the opposite party.   

5.      The points for consideration is:-

1. Whether the opposite party is liable to demolish the STP & WTP plants and to rebuild the plant in accordance with rules and regulations as prayed for?
2. Whether the utility block of ‘VGN MINERVA’ is a part of the project and the Managing Director have any personal right over it?
3.  Whether the complainant is entitled to get refund of a sum of Rs.2,50,000/- paid towards car parking with interest as prayed for?
4. Whether the complainant is entitled to get refund of a sum of Rs.25,000/- paid towards piped gas line, Rs.1,00,000/- towards compensation for unfair trade practice and mental agony with cost of Rs.10,000/- as prayed for?

6.      On point:-

The complainant filed his written argument.  The opposite party has not filed any written argument.  Heard both Counsels.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that as per Section 2 (1) (d) of the Consumer Protection Act, 1986, the complainant is a ‘Consumer’ and the opposite party is a service provider as per Section 2 (1) (o), since housing and real estate is coming under the purview of the Consumer Protection Act.  Further the contention of the complainant is that this case is filed within the period of limitation since the cause of action continues.  Because as per the agreement and advertisement, the opposite party assured that the WTP (Water Treatment Plant) and STP (Sewerage Treatment Plant) which was not constructed properly in accordance with the provisions of Water Act (Prevention and Control of Pollution Act).  Equally, the piped gas connection as promised and agreed was not provided till date.   Mere taking possession of the property shall not be bar for such continuous cause of action.  Further the contention of the complainant is that as per the annexure II of the agreement Ex.A3 & Ex.A4 and the brochures, the newspaper advertisement of the opposite party agreed to provide WTP and STP as an amenity.  The opposite party miserably failed to obtain the required statutory approvals / consents from SIEAA and TNPCB and has violated the conditions of initial approval / consent given by the authorities which is evident from Ex.B1 & Ex.B2 and the order passed by the National Green Tribunal Southern Zone, Chennai dated:13.01.2016 which reads as follows:

3. Present status of STP today.

“It respectfully submitted that the said Sewerage Treatment Plant was again inspected on 09.12.2015.   During the inspection, it was noticed that all the treatment unit of STP was in operation and a sample of treated sewerage was collected from the outlet of STP.  The Report of Analysis of the treated sewerage reveals that the parameter pH & BOD satisfy the standards prescribe by the Board.  Whereas the total suspended solids is 38 mg/lit as against the 30 mg/lit (Copy enclosed).   The unit has provided G.I sheet cover of 28 feet height in the Northern side of the STP i.e. between the residential apartments and STP, G.I sheets cover of 13 feet in the Southern and Western side and a compound wall of 5 feet height in the Eastern side.   The unit has also provided DG set of capacity 63 KVA as a standby power source for operating the STP.   The said STP is located adjacent to the residential apartments (Plot No.72).

17. We do not agree with the contention of the applicant that individual septic tank would have been more environment friendly than centralized STP.  For small development projects with limited population it may be ideal to go in for in for individual septic systems particularly where the soil conditions are conducive for filtration and percolation of the treated water to subsoil layers without causing ground water pollution.  But here, there are 672 residential units and once all the units are occupied, the total population residing in the complex may range between 3000 - 4000 and hence, having a centralised and well designated STP, operated properly, will to be a cause for any concern and in fact he STP will result in proper utilization of sewage as the related water can be utilized for watering the places and for maintaining the greenery in the complex.

19. ii) The record placed before us reveals that the functioning of the STP is assigned to a contractor by the 3^rd respondent.  The contractor shall deploy only competent Technicians to operate the STP who shall be fully conversant with the recommended operating  procedure for which purpose, Operation and Maintenance Manual shall be prepared if not yet prepared.  For this purpose a detailed Terms of Operation of Contract shall be finalised and implemented”

7.     Further the contention of the complainant is that the WTP and STP constructed by the opposite party is defective is very clear from Ex.A6, Ex.A7, Ex.A10, Ex.A11 & Ex.A13 and the photographs Ex.A15 & Ex.A16.  The alleged test reports Ex.B5 to Ex.B10 filed by the opposite party reveals only the collection of samples at the project science.  The opposite party shall obtain proper permission from the CMDA authority and it should be constructed.  But no permission from CMDA obtained. Further the contention of the complainant is that as per the Tamil Nadu Apartment Ownership Act, 1994 section 3 (h) the parking areas, stair case, terrace, compound wall, water supply, sewerage and drainage connection and the installations like power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating etc with community hall and facilities are all attached with the apartment including the common areas also.  Hence, the complainant is claiming a sum of Rs.2,50,000/- paid towards car parking area, Rs.25,000/- paid towards piped gas connection Rs.15,000/- with compensation of Rs.1,00,000/-.  Further the contention of the complainant is that the opposite party has retained the undivided share for the retail/ utility block as the flat owners has no right over the same.  But as per section 6 Clause (ii) of the agreement that such utility block shall belongs to the apartment owners and the claim over the utility area by the opposite party amounts to unfair trade practice and deficiency in service.

8.     The learned Counsel for the opposite party would contend that the contract between the complainant and the opposite party is a commercial one and this Forum is having no jurisdiction to entertain the case.  But it is admitted that the opposite party is a builder cum real estate owner constructed the apartment and sold to the various person including the complainant.  As per section 2 (o), the opposite party shall be the service provider and the case is coming under the purview the Consumer Protection Act, 1986.   Further the contention of the opposite party is that on 04.10.2008, the complainant booked 3 bedrooms residential apartments.   Due allotment letter also issued on the same day.  The agreement for sale and Development and construction executed on 13.03.2009 as per Ex.A3 & Ex.A4.  The Sale Deed as per Ex.A5 was executed for the undivided share of land on 18.09.2009 and the flat was handed over to him on 12.08.2011.  Thereafter, the complainant took possession of the flat without any objection after due inspection.  As per the agreement the opposite party has to look after maintenance of the project for 12 months from the date of handing over possession; and at the request of the Owners’ Association the opposite party extended the maintenance service till September 2012. 

9.     Further the contention of the opposite party is that the Water Treatment Plant and Sewerage Treatment Plants were duly constructed and handed over to the association.  The State Level Environment Impact Assessment Authority issued Clearance Certificate on 04.03.2009 as per Ex.B1.  Similarly, Tamil Nadu Pollution Control Board issued certificate on 25.06.2009 as per Ex.B2.  But on a careful perusal of the order of NGT, it is very clear that it was not constructed within the stipulated space proves the deficiency in service.  The overflow of STP and its damage due to the improper maintenance and dumping waste materials also proves the deficiency in maintenance by the opposite party.   Further the contention of the opposite party is that the car park does not come under the saleable or common area.  The charges payable are only for the exclusive allotment  and exclusive right of use.   It cannot be questioned.  Hence, the claim of refund of car parking area is unsustainable.  Further the contention of the opposite party is that the collection of Rs.25,000/- towards piped gas connection was duly expended but the photographs, CD and as per the Engineer’s Report as per Ex.A13, Ex.A14, Ex.A15, Ex.A16 & Ex.A17 are very clear that there are damages and improper erection which is due to improper maintenance.  Further the contention of the opposite party is that the Life Time Membership collected towards the club is with the association itself is non-refundable and it shall be maintained by the Association.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall maintain the Piped Gas Line connection etc and demolish and reconstruct the STP & WTP in accordance with the direction of NGT Order and pay a compensation of Rs.50,000/- with cost of Rs.5,000/- to the complainants.

In the result, this complaint is allowed in part.   The opposite party is directed to maintain the Piped Gas Line connection etc and demolish and reconstruct the STP & WTP in accordance with the direction of NGT Order and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainants.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

 Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 06^th day of September 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANTS’ SIDE DOCUMENTS:-

Ex.A1	27.02.2009	Copy of State Bank of India Valuation Report
Ex.A2	04.03.2009	Copy of letter issued by the Director of Environment and Member Secretary, SEIAA, Tamil Nadu
Ex.A3	13.03.2009	Copy of Agreement for Development and Construction
Ex.A4	13.03.2009	Copy of Agreement for sale
Ex.A5	18.09.2009	Copy of Sale Deed
Ex.A6	23.12.2011	Copy of Grievance letter dated:23.12.2011 sent to the opposite party through email on 01.01.2012 and speed post on 02.01.2012
Ex.A7	29.01.2012	Copy of the grievance letter sent to the opposite party
Ex.A8	06.03.2013	Copy of legal notice by the opposite party
Ex.A9	15.10.2012	Copy of email sent by the President of the Association to the opposite party on various issue
Ex.A10	19.10.2012	Copy of email sent by the President of the Association to the opposite party regarding STP, WTP
Ex.A11	01.03.2013	Copy of letter sent by the Association President to the opposite party regarding reticulated Pipe gas project at V.G.N. Minerva
Ex.A12	03.03.2014	Copy of letter sent by the Association President to the opposite party on STP, WPT and RO Plant along with a copy of the environmental clearance to V.G.N. Project
Ex.A13	09.03.2014	Copy of letter of Er Dr. Sundaramoorthy to the Hon’ble Dist. Consumer Redressal Forum, Chennai South regarding STP Plant site visit on 11th November 2012
Ex.A14		Copy of gas plant current state photographs (6 Photos)
Ex.A15		Copies of photos of revamp work done at STP now at present
Ex.A16		DVD containing photos of revamp works done Gas plant, STP
Ex.A17	09.03.2014	Copy of bill for Rs.299/- given by Anbu Digital Studio and colour lab

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1	04.03.2009	Copy of environmental clearance
Ex.B2	25.06.2009	Copy of Tamil Nadu Pollution Control Board - Consent Order - 4945
Ex.B3	01.02.2011	Copy of CMDA – Completion Certificate
Ex.B4	12.08.2011	Copy of no claim letter given by the complainant
Ex.B5	06.08.2011	Copy of test report No.053/08
Ex.B6	15.10.2011	Copy of test report No.101/10
Ex.B7	31.12.2011	Copy of test report No.183/12
Ex.B8	13.01.2012	Copy of test report No.184/01
Ex.B9	06.04.2012	Copy of test report No.039/04
Ex.B10	06.04.2012	Copy of test report No.041/04
Ex.B11	30.05.2013	Copy of reply notice sent by the opposite party to the complainant’s legal notice
Ex.B12	13.01.2016	Copy of Application No.291/2014 (SZ) before the National Green Tribunal Southern Zone, Chennai

 

                              

MEMBER                                                                                PRESIDENT