State Consumer Disputes Redressal Commission
Dr. R.S. Kher vs C.S.E.B. on 4 October, 2010
CHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.359/2006
Instituted on : 10/07/2006
Date of Order 04/10/2010
1. Dr. R.S. Kher,
S/o Late Shri S.V. Kher,
Flat No.202.
2. Smt. Anjana Sinha Roy,
W/o M.N. Sinha Roy,
Flat No.206.
3. Kanchi Appa Rao,
S/o Shri K.N. Shastri
Flat No.305.
4. Smt. Kalpana Mukherjee,
W/o Shri M.M. Mukherjee,
Flat No.303.
5. V. Shevalkar,
S/o Shri L.N. Shevalkar,
Flat No.201.
6. Ramesh Kochar,
S/o Shri Gurudayal Kochar.
Flat No.201.
7. Smt. Krishna Sharma,
W/o Late Gopal Sharma,
Flat No.105.
8. Shri Nathan,
S/o Late M.L. Chaktravarty,
Flat No.306,
(All Residents of : Shanti Apartments,
Tikrapara, Bilaspur (C.G) ...... Appellants
Vs.
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1. Chhattisgarh State Electricity Board,
Through : Executive Engineer,
Town Division, Old Power House, Torwa,
Bilaspur (C.G)
2. Shri A.R. Sharma,
S/o Late Diwan Sharma,
In front of Upasana Bhawan,
Near Shanti Apartments, Tikrapara,
Bilaspur (C.G)
3. Shri A.K. Sharma,
S/o Shri A.R. Sharma,
Loyal Construction,
In front of Upasana Bhawan, Tikrapara,
Bilaspur (C.G)
4. Municipal Corporation, Bilaspur
Through - Commissioner,
Municipal Corporation,
Bilaspur (C.G) ..... Respondents
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Manoj Kumar Dubey, for appellant Nos.1, 2 & 6.
Appeal of appellant Nos.4, 7 & 8 has already been
dismissed vide order dated 06/05/2010.
None for appellant Nos.3 & 5.
None for respondent No.1.
Shri R.K. Jajodia, for respondent Nos.2 & 3.
Shri Vijay Mishra, for respondent No.4.
ORDER
DATED : 04/10/2010 PER HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT.
This appeal is directed against order dated 15-06-2006 of the District Consumer Disputes Redressal Forum, Bilaspur (herein after // 3 // referred for short as District Forum) in Complaint Case No.119/2003, whereby the complaint of the complainants was partly allowed.
2. Facts of the case, in brief, are that the complainants had booked flats in the Apartment constructed by the O.P.Nos.2 & 3 and it was alleged that the flats were not constructed within the prescribed time limit, common electric meter was not transferred in the name of Society, septic tank of their apartments were connected with other apartments, parking space was not provided as per the agreement, thereby causing deficiency in service. Prayer was made before the District Forum seeking directions to the OPs to complete the construction, transfer the electricity meter in the name of Society, to disconnect the septic tank of complainants from other apartments and also to disconnect the water supply connected with other apartments, also parking space be provided and suitable compensation be awarded. O.P.No.2 & 3 are builders who constructs houses and sale it. They have constructed an apartment in the area Tikrapara, Bilaspur named as "Shanti Apartment". According to the facilities as assured by the O.Ps No.2 & 3, complainants had purchased flats. Complainants averred that O.P.Nos.2 & 3 had sold flats having installed a common Electric Meter No.50/01/74/231 having Service No.021676 and showing a big gate in front of the apartment as a // 4 // security measure, a room for watchman, lightening conductor, common light in Phase 2, two submersible pumps having 24 hours water supply facility and parking facility as per space left in the sanctioned map. It was also averred that on completion of the construction of flats the common meter would be transferred in the name of Society, as assured by OPs. It was alleged that OPs did not fulfill the assured promises. It was also averred that O.P.Nos. 2 & 3 had started construction on the parking space saying that it was being constructed for the purpose of vehicle parking but after construction it was given on rent and some part of it was sold by O.P.Nos. 2 & 3. Complainants also averred that O.P.Nos.2 & 3 have assured installation of two submersible pumps but till date second submersible pump was not installed. Complainants averred that having been compelled they sent Advocate Notice to the O.P.Nos.2 & 3, who in reply intimated that the complainants were free to approach any competent Court for the remedy. Complainants besides aforesaid also alleged some other related deficiencies regarding deviation in providing facilities and also construction as per sanctioned map passed by Municipal Corporation.
4. O.P.No.4 remained absent before the District Forum.
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5. O.P.No.1 in its reply denied that O.P.No.2 to 5 had violated the provisions of agreement and the case is of civil nature and has to be decided there only. The case involves complicated questions of facts & law, which can not be decided without witnesses. There is no relationship of „consumer‟ between the complainants and O.P.No.1 so as to make it a consumer dispute. As per provisions of Indian Electricity Act and Electricity Supply Act, the related dispute is required to be placed before Electric Supervisor and after proper investigation case is to be decided. O.P.No.1 also averred that the electric connection was taken in the name of O.P.No.2 for domestic purpose and admitted that Rs.6,900/- was added in the bill of Rs.6, 905/- towards strengthening charges and remaining amount of Rs.5/- was towards computer charges and was recoverable from the concerned persons as per said Act. Compensation sought by the complainants in respect of electrical charges out of joint connection is of civil nature, which does not come within the jurisdiction of Consumer Forum.
6. O.P.Nos.2 & 3 averred that they had sold flats with facilities as assured which are mentioned in the written agreement. OPs also denied that the common meter No.021676, big gate as a security, watchman room, and lightening conductor, common electricity in // 6 // phase 2, two submersible pumps and parking light facilities were assured. It was averred that as per necessity during construction a temporary meter was taken in the name of the OPs and after the construction work it was made permanent. Due to use of electricity commonly, the amount of electricity bill was being paid by flat holders jointly and due to addition of strengthening charges in the electric bill as per rules, the complainants had approached Courts and taking advantage of partial relief given thereby, they had tried to file another case. Complainants could get the common meter transferred in the name of the Society but they had never complained for the same. OPs also averred that they had provided parking facility to the flat holders and for the sake of safety of vehicles, shed had been provided. OPs denied that it had given the parking space on rent and also its some parts sold. There was no promise to provide two submersible pumps rather promise was for supply of 24 hours water facility. OPs No.2 & 3 averred that it had provided all facilities as assured as such no deficiency was committed by them.
7. Learned District Forum having perused the documents filed in the case and heard arguments of parties present, allowed the complaint partly.
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8. We have perused the documents on record and heard arguments of parties present.
9. Admittedly appellants/complainants had purchased their flats from respondents‟ no.2 &3 who are builders of the scheme named as Phase no.1 of Shanti Apartments. It is alleged that apartments under Phase no.1 and Phase no.2 were different buildings constructed with different building permission and lay out plans so residents of one phase could not interfere with area covered under another phase. Appellants/complainants contended that as per provisions of C.G.Municipal Corporation Act 1956, for any change in construction as per approved plan, written permission from Municipal Corporation is required which was not considered by learned District Forum so they prayed for seeking direction to call for entire records of building permission, lay out plans, approved Drawings etc.in respect of Phase no.1 and Phase no.2 of ShantiApartments,Tikrapara,Bilaspur from respondent no.4 the Municipal Corporation,Bilaspur.Respondents no.2&3 raised objection on plea of the appellants/complainants that they had not raised said points before the District Forum and raised it at appeal stage. This commission having felt that said documents were necessary for full and final adjudication of the case directed on 25-08-2007 to call for the same from Respondent no.4 the Municipal // 8 // Corporation, Bilaspur in compliance of which it submitted few documents through a peon and it was found during proceedings on 19-09-2008 that documents relating to Phase no.1I only were submitted whereas direction was given to provide documents related to both Phase no.1 & Phase no.2. so again Respondent no.4 was directed during proceedings on 19-09-2008 to provide documents related to Phase no.1 with explanation for such lapse. Further during proceedings on 6-11-2008 it was brought on notice of this commission that documents related to Phase no.1 were not available with respondent no.4 the Municipal Corporation and at the same time Respondents no.2 & 3 the builders also stated that whatever documents were available with them, they had already been filed. During proceedings on 15-01-2009 with the consent of all the parties present Mr.Neeraj Dubey an advocate was appointed by this commission to ascertain from the spot whether boundary wall around the apartment as per terms & conditions and also other facilities as promised by the builders to the apartment holders were provided or not, whose report dated 18-02-2009 is on record. During proceedings on 6-05-2010 appeals of appellants/complainants no.4, 7, 8 namely Smt.Kalpana Mukherjee, Smt.Krishna Sharma & Shrinathan were dismissed since they ceased to be „consumer‟ in terms of section 2(1) // 9 //
(d) of Consumer Protection Act,1986 in view of the fact admitted by them that they had sold their flats to others.
10. In order to decide the dispute, between the remaining appellants/complainants and the builders respondents no.2 &3, we have to rely on the observations in the report dated 18-02-2009 of the commissioner Mr.Neeraj Choubey, an advocate who is an independent person appointed by this commission with due consent of parties in the case. In the said report he observed that boundary wall was there but on many places plaster was not done and towards main road at one place height of the wall was low. He also observed that there were no documents produced by either party to show if any promise was made by said builders to build boundary wall between phase no1 & phase no2.He further observed that as per documents produced and spot inspection there was promise by the builders only to provide 24 hours water supply. Water tank of capacity 10,000 ltrs. is available for the apartments of the appellants herein whereby water can be used anytime. He also observed that there are two bores out of which one is within the control of appellants herein by which they can use water any time through water tank of 10,000 ltrs.capacity available there. He also observed that there is no evidence on record that one bore is insufficient. Further the commissioner also observed that parking // 10 // space 3000 sft. is there where vehicles can be parked. Moreover the passage towards phase-2 apartment is 17 feet wide by the side of which vehicles can also be parked. Also space 45‟x10‟ over septic tank is there where also vehicles can be parked. It was also observed by the commissioner that there was no evidence to show as to what area of parking would be used by a person. About the dispute of connecting septic tank of phase-1 to phase-2,commissioner observed that the septic tank in use is of measurement 24‟x10‟x8‟ which according to builders is of adequate capacity and even if found necessary it can be cleaned at an expense of Rs.500/-and for that purpose they are ready to deposit Rs.5000/- in the name of society.
11. Appellants herein submitted their objection jointly dated 11-05-2009 alleging that the commissioner had inspected the site without the approved plan and drawing so his report was not acceptable.
12. In this connection there is one more pertinent document dated 26-06-2004 (S.No.74) which is a copy of letter sent by Municipal Corporation to three of the appellants in reply to their complaint filed there. In the said letter it is clarified that construction work done in phase 1 & phase 2 of Shanti Apartment relates to 34 flats. Development // 11 // work in the campus had been done as per approval only. Parking space, septic tank had been provided as per standard norms. Water supply facility with provision of two bore pumps was provided which was under disposal of residents. Boundary wall was also provided as safeguard against unsocial elements and cattles.
13. Counsel for appellants has placed reliance on definition of „common areas and facilities‟, under Section 3(f) of C.G. Prakoshtha Swamitva Adhiniyam, 1976 (hereinafter „CPSA Act‟ for short) and also on provisions of Section 6 of the same Act and submitted that as per provisions of Section 6 of the Act "each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration" and therefore the action on behalf of individual apartment-holder is not barred. He further submitted that the Builder is duty bound, in case of apartment, to provide common areas and facilities as per definition given under Section 3 (f).
14. We have considered the aforesaid arguments and agreed that under the CPSA Act, in case of construction of apartment house the apartment owners shall have certain rights in respect of common areas and facilities as per definition given under Section 3 (f) of the CPSA // 12 // Act and as per further elaboration under Section 6 of the same Act, but so far as the action is concerned, we find that Section 23 of the CPSA Act provides that "without limiting the rights of any apartment owner, actions may be brought by the Manager or Board of Managers, in either case in the discretion of the Board of Managers, on behalf of two or more of the apartment owners as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities or more than one apartment-------". In view of this provision it is clear that as and when a case is filed on behalf of more apartment-holders, than one, then it is the Manager or the Board of Managers of the association of apartment owners, who has been authorized to initiate such action on behalf of group of, individual, apartment owner. An individual apartment owner or a group of apartment owners cannot initiate action on behalf of all the owners of apartments. Section 3 (d) of the CPSA Act, defines „association of apartment owners‟ in the way that it means "all of the apartment owners acting as a group in accordance with the bye-laws and declaration". Further sub-clause (6) of Section 6 of CPSA Act, says that "the association of apartment owners shall have the irrevocable right, to be exercised by the Manager or Board of Managers, to have access to each apartment from time to time during reasonable hours as may be // 13 // necessary for the maintenance, repair and replacement of any of the common areas and facilities therein or accessible therefrom, or for making emergency repairs therein ------."
15. Thus so far as common areas and common facilities are concerned, it is the association of apartment owners to be represented by Manager or Board of Managers of the Association, which has been authorized to take action or to initiate action to perform the work of repairing, to Sue or which may be Sued on behalf of the apartment- holders. In view of this provision, it appears that the complaint should have been brought by said association of apartment owners.
16. So far as the „common areas and facilities‟ are concerned, as per definition given under Section 3(f), it means : -
"(f) "common areas and facilities" unless otherwise provided in the declaration or lawful amendments thereto, means-
(i) the land on which the building is located;
(ii) the foundations columns, girders, beams,
supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the buildings;
(iii) the basements, cellars, yards, gardens, parking areas and storage spaces;
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(iv) the premises for the lodging of janitors or persons employed for the management of the property;
(v) installation of central services, such as power, light, gas, hot and cold water, heating, refrigeration air conditioning and incinerating;
(vi) the elevators, tanks, pumps, motors, fans compressors ducts and in general all apparatus and installations existing for common use;
(vii) such community and commercial facilities as may be provided for in the declaration;
and
(viii) all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use;"
There is nothing on the basis of which it can be said that aforesaid facilities or common areas have not been provided by the Builder to the apartment owners.
17. Section 3 (j) defines "declaration", as "the instrument by which property is submitted to the provisions of CPSA Act as per Section 2 and such declaration as from time to time may be lawfully amended". In view of this provision, it is clear that a declaration was necessary to be executed and registered along with sale-deed. In the registered sale-deed, executed by the Builder in favour of the complainant there is a reference in respect of such declaration, but said declaration has // 15 // not been produced by any of the parties, whereas the definition of common areas and facilities starts from the words "unless otherwise provided in the declaration or lawful amendments thereto," which shows that the common areas and facilities are required to be declared in such declaration. Section 6 of the CPSA Act further talks about such declaration and says that "each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration". Such declaration was neither called nor produced by any of the parties. In absence of any such declaration, it is difficult to hold that common facilities or common areas, as declared by the owners, have not been provided.
18. Under the provisions of Consumer Protection Act, 1986, as per Section 2(1)(b)(iv), complaint filed by one or more consumers where there are numerous consumers and are having the same interest, is maintainable, but as per Section 13(6) of Consumer Protection Act, 1986, "where the complainant is a consumer referred to in sub-clause
(iv) of clause (b) of sub-section (1) of section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon" and therefore it // 16 // was necessary for the complainant to move an application under Order I rule 8 of CPC for allowing the complainants to file complaint on behalf of more than one consumer having similar interests. It appears that no such application has been moved though the complaint was relating to common relief of all the apartment-holders.
19. We find that the appellants have been harping on complaint about deficiencies on the part of respondents no.2 & 3 which are related to community of Shanti Apartments as a whole and are of common nature. There is no evidence to show that either of the complainants had ever raised any individual complaint about inconvenience faced on account of the alleged deficiencies like boundary wall, water supply, septic tank, parking space for vehicle. Each appellant herein had individual agreement in respect of flat purchased and if he/she had any individual problems about his/her own flat, could very well raise complaint at appropriate levels but it is not the case here. Some individual appellants/complainants out of total residents of Shanti Apartment have raised issues of common nature without due authority of remaining residents which was not proper. There is no evidence on record to establish that all the residents of Shanti Apartment had same complaints in respect of alleged deficiencies.
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20. Under foregoing discussion we do not feel appropriate to interfere with the order of learned District Forum, therefore the same is affirmed and the appeal is dismissed. No order as to cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/10/2010 /10/2010
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