National Consumer Disputes Redressal
Rama Majumder & Anr. vs Indralok Apartment Flat Owners ... on 30 November, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 911 OF 2015 (Against the Order dated 15/09/2015 in Complaint No. 7/2011 of the State Commission West Bengal) 1. RAMA MAJUMDER & ANR. WIFE OF ASHOK MAJUMDER OF YASHODA BHAWAN, B.B.T. ROAD, P.O. DAULATPUR, P.S. MAHESHTALA, KOLKATA-7000141 DISTRICT: SOUTH 24 PARGANAS 2. ASHOK MAJUMDER SON OF LATE JASODAJIBAN MAJUMDER OF YASHODA BHAWAN, B.B.T. ROAD, P.O. DAULATPUR, P.S. MAHESHTALA, KOLKATA-700141 DISTRICT: SOUTH 24 PARGANAS ...........Appellant(s) Versus 1. INDRALOK APARTMENT FLAT OWNERS ASSOCIATION DAULATPUR, BBT ROAD, P.S. MAHESTALA, KOLKATA-7000141 2. SANDHYA GANGULY WIFE OF SRI ARUP GANGULY, OF NUNGI SANI PARA, P.O. BATANAGAR, P.S. MAESHTALA, KOLKATA-700140 SOUTH 24 PARGANAS 3. ARUP GANGULY OF GANGULY, OF NUNGI SANI PARA, P.O. BATANAGAR, P.S. MAESHTALA, KOLKATA-700140 SOUTH 24 PARGANAS 4. THE CHAIRMAN, MAHESHTALA MUNICIPALITY, P.O. &P.S. MAHESTALA, KOLKATA-700141 SOUTH 24 PARGANAS ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Appellants : Mr. Pinaki Roy, Advocate For the Respondent : For Respondent No.1 : Mr. Abhijit Pal, Advocate
For Respondent No.2 : Ex-parte
For Respondent No.3 : Ex-parte
For Respondent No.4 : NEMO
Dated : 30 Nov 2021 ORDER
R.K. AGRAWAL, J., PRESIDENT
1. This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Appellants/Opposite Party Nos. 1 & 3 in the Complaint before the State Commission, challenging the correctness of Order, dated 15.09.2015 passed by the State Consumer Disputes Redressal Commission, West Bengal at Kolkata (for short "the State Commission") in Consumer Complaint No. 07 of 2011. By the Impugned Order, the State Commission has partly allowed the Complaint filed by the Indralok Apartment Flat Owners Association/Complainant directing the Appellants, Opposite Party No.2, Smt. Sandya Ganguly and Opposite Party No.4, Sri Arup Ganguly to repair/remove the defects of the Building in question within three months from the date of Order failing which they were liable to pay costs of ₹11,00,000/- to the Complainant along with interest thereon @ 10% p.a. from 14.04.2008. The Complainant Association was also awarded compensation of ₹5,00,000/- for mental agony and harassment and litigation costs of ₹5,000/-.
2. The brief facts of the case as narrated in the Complaint are that the Complainant is an unregistered Association formed by the Flat Owners of Indralok Apartment and as per their Board of Resolution they authorized one, Ajoy Roy Chaudhuri, being Secretary to represent the case.
03. Being allured and satisfied with the sanctioned Building Plan, all the Flat Owners of the Indralok Apartment approached the Opposite Parties Nos. 1 to 4 for purchasing their respective Flats against consideration price as decided and accordingly Agreements for Sale were executed between the parties. On 09.09.2008, the Opposite Parties after construction of the Building issued one declaration about possession of the Flats to the respective Flat Owners. Though the Opposite Parties issued possession letter and allowed the Flat Owners to occupy the Flats but still there were several incomplete construction works pending. On 14.04.2008, the Opposite parties by one Deed of Declaration admitted the incomplete and defective works in favour of Smt. Krishna Roy Chowdhury and Joydev Kumar Dey, Flat Owners of Indralok Apartment. Thereafter, Vide Memo of Understanding dated 18.05.2008, Opposite Parties admitted incomplete construction of the Building as well as the defective works, which were; (i) incomplete drainage; (ii) electrical earthing; (iii ) lift, staircase, staircase window grill etc. and also committed to complete the construction within one/two months. Though the Opposite Party Nos. 1 to 4 admitted their fault and agreed to complete the incomplete construction work as well as defective construction of the Building but they failed to comply with their commitment and having no other alternative available, the Complainant Association sent one letter dated 13.09.2008, categorically explaining the defects and deficiency in construction of the Building. However, the Opposite Party Nos. 1 to 4 neither replied nor made any attempt for removing the defects and deficiencies as agreed.
04. Accordingly, the Complainant Association intimated their grievances and sufferings to the Chairman in Council, Mahestala Municipality (hereinafter referred to as "Municipality") on 14.11.2008 and 04.12.2008 for redressal and in reply to such letters, the Municipality, Vide letter dated 12.12.2008 requested the Members of the Complainant Association to be present on 14.12.2008 at their Ward office for discussion. But the Opposite Parties did not turn up for discussion and again reminders were sent to them for discussion by the Municipality. The Flat Owners' attended the meeting but the Opposite Parties still not turn up. Again, in February 2009, in the presence of Municipality, the Opposite Party Nos. 1 to 4 agreed to complete and remove all the deficiencies as alleged by the Flat Owners' Association within 15 days. However, despite several correspondences, the Opposite Parties did not bother to remove the defects and deficiencies. Subsequently, for the purpose of assessment of cost of repair and removal of deficiencies and defective construction, the Flat Owners' Association obtained quotation from recognized Organizations such as (i) Bidyut Elevators who assessed cost of installation of lift for ₹5,70,000/-, (ii) A.K. Enterprise for deep drinking water with Garden Reach water supply for ₹2,08,000/-; (iii) M/s Mukherjee Enterprise for repairing of defective construction of the Building including roof treatment, soak pit, court yard, boundary wall, water reservoir, tank, marble flooring and estimated cost of ₹11,59,880/-; and (iv) Lewis Berger Home Painting who submitted quotation for exterior painting of the Building for ₹2,13,345/-. In all the Flat Owners' Association was required to spent for an amount of ₹21,51,225/- in total.
05. Finally, the Flat Owners' Association approached the State Commission for getting necessary orders directing the Opposite Party Nos. 1 to 4 to repair/remove all the deficiencies and/or to pay an amount of ₹21,51,225/- as cost for such repair/removal of defects and deficiencies along with interest @12% p.a. As all the Flat Owners of the Association were suffering immensely with mental agony and physical harassment, threat to life on account of the entire Building being polluted with dirty water and garbage, they claimed compensation to the tune of ₹20,00,000/- and litigation cost of ₹20,000/-.
06. The Complaint was contested by the Opposite Party No. 1 and 3 by filing joint Written Version on the ground that it was not maintainable being not filed as per Section 12(1)(c) of the Act with the permission of the Court and the Complainant is not a registered Association. On merits, it was pleaded that the construction work of the Building has been completed, sewerage system and electrical fittings have already been done and there is no deficiency in service on their part.
7. On appreciation of the material available on record, evidence adduced by the parties and especially based on the report of Local Commissioner appointed by it for inspection of the site in question, the State Commission disposed of the Appeal in the above terms. With regard to maintainability of the Complaint, the State Commission observed as under:-
" The maintainability of the case has been challenged on behalf of the O.P's. on the ground that one Shri Ajoy Roy Choudhury has filed the consumer complaint on behalf of Indralok Apartment Flat Owners' Association which is not a registered Society. In paragraph 1 of the complaint it has been categorically mentioned that Indralok Apartment is an unregistered Association which has been established by flat owners as per Board of Resolution. The Board of Resolution has been annexed with the petition of complaint which bears the signatures of all other flat owners. Since the interest of all flat owners are the same they have filed the instant complaint by adopting a resolution authorising Shri Ajoy Roy Choudhury to initiate the complaint. Ld. Advocate for the O.P's. has submitted that since the complainants/Flat Owners' Association is not a registered Association nor it is a recognised Association and therefore it cannot file a complaint against O.P's under section 12(1)(b) and (c) of the Act without taking permission of the Court. In reply to the same Ld. Advocate for the complainant has referred section 2(m) of the Act which provides -
''person' includes :
A firm whether registered or not,
A Hindu undivided family,
A co-operative society,
Several other Associations of persons whether registered under the Societies Registration Act, 1980 (21 of 1860) or not.''
Therefore, if we have a look to the relevant provision it would be quite clear that an unregistered Association may also be treated as a 'person' to ventilate their grievances under the Act.
Needless to say, the members of the complainants/Association are purchasers and O.P. Nos. 1 to 4 being Developers/land owners are service providers. Since all allegation of deficiency of service has been lavelled by the complainant against O.P. Nos.1 to 4 and that too in presence of O.P. No.5 who is the Chairman of Maheshtala Municipality where the disputed Apartment is situated, we must say that the instant complaint is maintainable under the law.
8. On the merit of the case, the State Commissioner observed as under"-
" In para 12 of the petition of complaint, the complainants have spelt out the deficiencies suffered by them. According to the complainants, the O.P. Nos. 1 and 2 have defaulted in the following fields -
job completion certificate, (b) incomplete building construction, (c) no sewerage system and soak pit causing entire waste water are dumped at the basement of the building causing ground floor always fulfil with rotten water causing severe damage of the building, (d) the entire building is running with temporary electrical fittings and fixture which may cause threat to life, (e) common area has not been provided, deviated for the benefit of the opposite parties No.1 to 4, (f) common passage and lobbies not provided as per building plan, (g) water pump, water reservoir for drinking water, water facility to be provided from Garden Reach water supply, (h) to remove the deficiencies as per Deptt. Of Fire Service, Govt. of West Bengal as per their letter dated 05.01.2011, (i) to provide entrance with safety and security of the flat owners, (j) to provide front area as open terrace by removing illegal construction of shop rooms, provide main gate, (k) to provide boundary wall for the entire building and to install security staff room with iron grill gate (l) to provide light arrangement inside the staircase, common area and outside of the building for security purpose, (m) to repair roof of the building so that rain water will pass smoothly with water proof treatment of the roof, (n) electrical room, pump room, darwan room, (o) staircase should be repaired and separated as per building plan between 1st floor of the commercial unit with other floors of the building which has been strongly objected by the Deptt. of Fire Service, Govt. of West Bengal, (p) to paint exterior of the building with standard specification, (q) to install lift and (r) to take initiative for registration of Indralok Apartment Flat Owners Association.
As the O.P. Nos. 1 to 4 refuted the allegations of the complainants in this regard, at the instance of the complainants one Engineer Commission was appointed in connection with this case. Mr. Shaktipada Bera, Engineer Commissioner after giving the information to the parties went to the spot and inspected as per direction of the Commission. After inspection the Ld. Engineer Commissioner has submitted his report before this Commission on 10th February 2012. Though the O.P's. tried to foil the attempt of the complainants to have inspection through Engineer Commissioner but ultimately the truth has come out before this Commission. During inspection the Engineer Commissioner noticed several shortcomings like - (a) deviation in the construction with respect to sanctioned plan, (b) specific instances of improper work in several areas of execution (c) lacunae in the area of waste water management; (d) no preventive measure to block trespassing, no complete water proofing arrangement of the building; (f) no arrangement is made to cope with fire hazards; (g) structures are not promoted.
The Ld. Engineer Commissioner put forward several suggestions to remove the defects indicated hereinabove in para 21 of his report. The said report is supported by field notes and other documents. The report has been accepted and against the said acceptance of report no appeal has been preferred. Therefore, there is hardly any reason to disbelieve the contents of the report of Engineer Commissioner which clearly demonstrates deficiency in service on the part of the O.P. Nos.1 to 4.
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In view of our foregoing discussions it is abundantly clear that the O.P. 1 contravenes the terms of the agreement in constructing the building and even they did not take any step for fire safety in contravention to section 11(c) of the West Bengal Fire Services Act, 1950. The Executive Officer of the Maheshtala Municipality has made an allegation against O.P's. for deviation from the original sanctioned plan. In that view of the matter the complainants are entitled to get the relief as prayed for. In other words, a direction should be given to the opposite party Nos. 1 to 4 to repair/remove the defects, deficiencies as embodied in paragraph No.12 of the complaint within the time frame otherwise to pay the cost of the same to the tune of Rs.11,00,000/- along with interest thereon @ 10% p.a. from 14.4.2008 i.e., the date of declaration executed by the O.P's. in favour of Smt. Krishna Roy Choudhury, wife of the signatory to the petition of complaint.
The complainant is also entitled to compensation inasmuch as they had to suffer a loss for long 7 years and during this long span of time they have been suffering from mental agony, harassment and as such they must be compensated with a compensation which quantified by us to Rs.5 lakhs and besides the said compensation the complaints are entitled to litigation cost which is assessed at Rs.5,000/-.
09. Aggrieved by the Order passed by the State Commission, the Opposite Parties 1 & 3/ Appellants herein have filed the present Appeal.
10. Heard learned Counsel for the Complainant Association and the Appellants at some length and also perused the material available on record as well as the Written Submissions filed by them. Opposite party No. 2 and 3 are ex-parte.
11. Learned Counsel appearing for the Appellants contended that the Complaint is not maintainable as the Complainant Association is not registered under any Act. No document of any formation of Association or any registration or else has been placed on record. It is further contended that the Complaint was hopelessly barred by the limitation as most of the Flat Owners took the possession in the year 2005 and 2006 and the Complaint has been filed in the year 2011. The Complainants were chronic defaulters in making the payment of the installment and the criminal cases are pending against them in different Courts. There was no deficiency in service or shortcoming in the Building as alleged by the Complainants in para 12 of the Complaint. The Appellants have never agreed to rectify the defects or to remove the deficiencies before the Maheshtala Municipality. The Local Commissioner's report has been accepted by the State Commission ignoring the fact that the Appellants vented and registered vehement grievance and objections against the Report in their own style and fashion. That the Complainant in collusion with Opposite Party Nos. 2 and 4 misused the blank signature of the Appellants and made manufactured and purported declaration. There is no admission of any incomplete and defective works by the Appellant vide Deed of Declaration dated 14.04.2008.
12. Per-contra, learned Counsel for the Complainants support the well-reasoned and detailed order of the State Commission. It is stated that the Order passed by the State Commission is based on the Report of the Local Commissioner who in his report has explained all the deficiencies in the Building. The Local Commissioner has submitted his report observing all formalities and giving satisfactory opportunity, as such, the said report cannot be challenged.
13. We have given our thoughtful consideration to the rival contentions of the parties and also perused the material available on record as well as the written arguments filed by the Complainant and the Appellants.
14. So far as, the preliminary issue raised by the Appellants that the Complainant is not registered Association and has no locus standt to file the present Complaint is concerned, we do not find any substance in the said submission. Section 2(d) of the Act defines "Consumer" as under:-
"(d) consumer' means any person who--
buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
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As per Section 2(m) 'person includes:-
"(i) a f irm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies R (21 of 1860) or not;"
15. Reading Section 2(d) with Section 2(m), it becomes clear that an unregistered firm can file a complaint before the Consumer Forum. The objection raised in this regard is, therefore, rejected.
16. On merits of the case, we find that as there was some dispute between the parties regarding the deficiencies and shortcomings in the Building, the State Commission appointed aone Sakti Pada Bera as Engineer Commissioner to inspect the Building and submit his Report with regard to the deficiencies/shortcomings in the Building as alleged by the Complainant Association, especially in para 12 of the Complaint. The Local Commissioner after prior intimation to the parties visited the premises and submitted his report on 13.02.2012 pointing out the following deficiencies in the Building in question:-
"19. That, the point-wise comments on the defects/deficiencies as observed during our inspection and as filed by the Complainants, vide their Misc. Application No.228/2011 dated 15.09.2011 are as under:-
a) The Job Completion Certificate could not be produced since the job was found incomplete (the ground floor and first floor were yet to be completed). Structures, roof-slabs and a few partition walls had been erected.
b) It was evident on inspection that the building had not been completed till then.
c) Sewerage system as a whole had not been made, instead of which a septic tank and soak pit had been constructed with changes in their orientation. For waste water disposal, only some civil work had been done and the construction was only partial. Resultantly, there was accumulation of water in the ground floor. A sizable area of the ground floor was under water turning the environment totally unhygienic. At some places waste water was found coming from under the floor of the shops. Again at some places, exposed sewage lines as well as pit inside the premises was seen.
d) Electrical arrangements as installed were not found satisfactory. The meter board was found covered with MS net and it is found to be easily accessible. Along the stairs there was temporary wiring for illumination.
e) The open terrace for 2nd, 3rd and 4th Floor was found covered with roof slabs which obstruct entry of natural light thus leaving the common passage dark.
f) The common passage had been constructed in deviation from the sanctioned plan.
g) Although there was a submersible pump at the entrance of the apartment, there was no water reservoir for storage of drinking water and it was also observed that near the stair of 2nd, 3rd and 4th floor, there were water taps through which drinking water supply from Garden Reach could be made available.
h) As regards firefighting system, there was an arrangement for pasting notices on the staircase wall although no notice had been found pasted. No fire extinguisher was also found installed inside the staircase or in other areas.
i) There was a gate at the entrance. But since the boundary wall had been left incomplete, the gate served no purpose as far as the security of the flat owners was concerned. Outsiders had free entry to the premises from any side.
j) The apartment is situated on Daulatpur Road. Adjacent to the road near the car parking area as per the sanction plan there were a few shops and small open space.
k) Of the total length of the boundary wall only a small portion had been found constructed and there was no security room etc. inside the complex.
l) There was no arrangement for illumination of the premises.
m) The roof weatherproofing work was yet to be undertaken although rainwater pipes had been fitted for the said work and as a result, the RCC roof slabs were left exposed to rain. This might cause accumulation of water in the roof.
n) Inside the premises there was no electrical room or pump room or guard (darwan) room.
o) Since the ground floor and the first floor were yet to be completed, the staircase for the portion to be used for commercial purpose etc. was not yet erected (which is a basic requirement for fire-escape route), although the same was already shown in the approved Sanction Plan.
p) From 2nd floor to 4th floor although the plastering had been found completed, there was no weather proof arrangements like snowcem or other weather coat paints on the outside.
q) There was provision for lift-well but no lift had been found installed. r) On enquiry, it was learnt that the "Flat Owners Association" had not been registered yet.
15. The Local Commission has also suggested remedial measures in the respect of the afore-extracted deficiencies which are as under:-
"21. That, the following are the suggestions in respect of the above, as otherwise there shall be the adverse after effects:-
the constructions made beyond the sanction plan, shall have to be demolished;
In this case, the sanctioning authority should be informed failing which ventilation system of the inhabitants will be affected;
Waste water management shall have to be done immediately by using yard gully, providing pit and constructing drain (preferably covered) upto the point of ultimate discharge at common municipal drain. Or else, there would be severe hygienic issues for both inhabitants of the housing complex as well as the people of the surrounding areas. In the event of the structure remaining immersed in water for long periods, there might be structural problem which has already affected the life of the building.
The boundary wall will have to be completed immediately failing which there are chances of undesirable incidents.
All the electrical arrangements shall have to be completed carefully as per Indian Electrical Rules deploying competent licentiate electrician(s) and there should be no exposed wire. Laxity in these matters might lead to fire hazards.
Outside wall shall have to be repaired as and when required and cement base paint should be applied. Roof whether-proofing arrangement shall have to be adopted as otherwise the life of building would certainly be adversely affected and curtained.
The sanitary and plumbing works shall have to be undertaken through an experienced agency, and if required, it should be done after removing the existing concealed lines and changing the orientations, as the case may be. Any delay in execution of this job will result in absorption of water seepage/moisture which will ultimately lead to the collapse of the portions in question.
On pumping out the accumulated waste water from ground level, plinth protection arrangement shall have to be made as otherwise the foundation will become weak and a weak foundation will cause deterioration of the basic structure;
Arrangement for fire-fighting shall have to be made in such type of complex (with a large number of inhabitants in upper floors), following the prevalent practice. On completion, the same shall have to be subjected to scrutiny and certification by a statutory authority, otherwise the only escape route being through the staircase there are chances of major mishap on account of accidental fire.
Lift shall have to be installed as per usual practice, as the inhabitants of 3rd and 4th floor (particularly the aged and the sick) have been facing severe difficulties in the absence of lift.
All of the temporary shops etc. shall have to be demolished and the whole thing shall have to be done as per sanction plan as the basic purpose behind sanctioning building plans is to provide open space for aeration and natural illumination for the inhabitants.
The building should be completed in all respect in conformance to the sanctioned plan and necessary Completion Certificate must be obtained from Sanctioning authority. If the above suggestions are following and complied with, most of the said deficiciens would be set right. "
16. A bare perusal of the Local Commissioner's report dated 13.02.2012 would reveal that the Building constructed by the Appellants lacks even the basic amenities/facilities, such as sewerage system, electrical arrangements, natural light, common passage, submersible pump, reasonable level of security, parking area, roof waterproofing; staircase; waste water arrangement, parks, cleanliness etc. As extracted above, the Local Commissioner has observed that only few structures, roof slabs and a few partition walls had been erected; Building was yet not complete; a septic tank and soak pit had been constructed in lieu of proper sewerage system; for waste water disposal also only some civil work was done as a result of which there was accumulation of water; there was damage to the building due to its being immersed in water for a long time; electrical arrangements as installed were not satisfactory; there was no water reservoir for storage of drinking water; the boundary walls had been left incomplete and the outsiders had free entry to the premises; there was no guard/security room; there was provision for lift-well but no lift had been found installed and no fire extinguisher was installed inside the staircase or other areas. The Local Commissioner in his report, had concluded that; there was deviation in the construction with respect to the sanctioned plan; there were specific instances of improper work in several areas of execution; there were lacunae in the area of waste water management; there was no preventive measure to block trespassing; there was no complete water proofing arrangement of the Building as a whole; there was no arrangement made to cope with fire hazards and there were structures not permitted in the sanctioned plan.
17. In our considered opinion, it is evident that the facilities/amenities, as promised by the Appellants/Opposite Parties, have not been provided in the Building and, therefore, the State Commission, for the reasons recorded in the order passed by it, is perfectly justified in allowing the Complaint in the aforesaid terms. Hence, we do not find any illegality or perversity in the Impugned Order passed by the State Commission. Consequently, the Appeal is dismissed leaving the parties to bear their respective costs.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER