State Consumer Disputes Redressal Commission
Vijay Raghava Township Complex Owners ... vs 1. M. Ch. Raghava Rao Son Of Son Of Late ... on 13 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/260/2014 1. Vijay Raghava Township Complex Owners Association, Rep. by its Secretary Vineet Chand Padmanabhan Nair Son of Padmanabhan Nair Aged 41 Years, B.217 Vijaya Raghava Township, Nallagandla Bypass Road, Serilingampally, Hyderabad 500 019 ...........Complainant(s) Versus 1. 1. M. Ch. Raghava Rao Son of Son of Late Narayana Rao, Proprietor Vijaya Raghava Constructions R.o. H.No.6.60, Behind Vidya Nursing Home, Chandanagar, Hyderabad 500 050 2. 2. S. Srinivas Goud Son of Lingamaiah Goud, Aged 45 Years, Occ Business, R.o. Flat No.101, Block A, Vijaya Raghava Township Nallagandla Bypass Road, Serilingamplly Mandal, R.R. District ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 13 Apr 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.260 OF 2014 Between : Vijaya Raghava Township Complex Owners Association, Represented by its Secretary, Vineet Chand Padmanabhan Nair, S/o Padmanabhan Nair, aged 41 years, B-217, Vijaya Raghava Township, Nallagandla Bypass Road, Serilingampally, Hyderabad. Complainant And 1) M.Ch.Raghava Rao S/o late Narayana Rao, Proprietor Vijaya Raghava Constructions, R/o H.No.6-60, Behind Vidya Nursing Home, Chandanagar, Hyderabad - 500 050. 2) S.Srinivas Goud S/o Lingamaiah Goud, Aged 45 years, occ: Business, R/o Flat No.101, Block-A, Vijaya Raghava Township, Nallagandla Bypass Road, Serilingampally mandal, R.R. District - 500 019. Opposite parties Counsel for the Complainant : Sri Shafath Ahmed Khan Counsel for the Opposite parties : Sri M.Anand Rao-for OP No.1 OP No.2-deemed served Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Thursday, the Thirteenth day of April Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** This is a complaint filed by the Complainant seeking direction to the Opposite parties jointly and severally to pay the complainant to repair the defects, deficiencies and illegalities committed by them in respect of the flats of the complainant; to award compensation of Rs.10,00,000/- for the mental tension, financial loss, health hazards suffered by the members of the Complainant Association; to award costs of the litigation and award any other relief or reliefs as deemed fit and proper in the circumstances of the case.
2. The case of the Complainant, in brief, is that Complainant is an association of flat owners registered with registration No.87/2011 with the Registrar of Societies. The OP No.1 is developer and builder who constructed 115 flats on the land to an extent of Ac.1-04 guntas in Sy.No.73/A and 73/AA, situated at Nallagandla village, Serilingampally mandal, Ranga Reddy district, which was owned by OP No.2 under Development Agreement dated 20.07.2007 registered as document No.9433/2007.
3. As per the agreement, 115 residential flats were constructed and the same were shared in the ratio of 60:40. Of which, OP No.1 got 69 flats and OP No.2 got 46 flats and sold them to the members of the Complainant Association by both the Ops. The Ops caused sale of the flats by bringing out multicoloured brochures giving details of quality of construction, amenities and recreational facilities, etc., The members of complainant association, serving the brochure purchased the flats and on being handed over the possession from November 2011 onwards, started living, in their respective flats. From the rainy season of 2012 onwards, each flat owner started facing several problems due to poor quality of construction material used, illegal acts committed by OP No.1 which includes encroachment of public road and leaving the drainage to flow openly into neighbour's land resulting in stagnation of sewerage water and emanating foul smell, breeding of mosquitoes, germs, etc., endangering the health of the residents of the complex. The western/west side flat owners/dwellers are unable to open their windows and balcony doors due to stagnation of sewerage water resulting of living under multiple difficulties including no ventilation.
4. The complainant facing multiple problems due to poor quality of construction and illegal acts committed, engaged a consultant by name 'Design Courtyard' to carry-out a detail inspection who through his report dated 12.12.2012, submitted a technical write-up highlighting the deficiencies. Out of four lifts, two lifts are very inferior quality/local made, resulting in frequent breakdown often more than once a day. The lifts in the 'B' and 'C' blocks are permanently non-functional resulting inconvenience and hardship to all residents. Complainant brought to the knowledge of Ops the deficiencies, illegalities and defects and requested to redress and resolve the grievances. Though promise to redress the grievances, never adhered to his promises and started avoiding with lame excuses. Complainant got issued a notice dated 28.03.2013 to both the Ops. Since then there has been a series of exchange of notices with all false allegations.
5. OP No.1 met the office bearers of complainant and promised to rectify the defects and address the other deficiencies, but never paid any heed or took steps to address the grievances. The seepage of water on the 5th floor terrace and the parking area due to poor quality construction of the roof garden, have cropped up due to the use of inferior material, which will result in reduction of the utility of the complex and endanger the lives of the residents of the complex. Ops encroached the public place abutting to public road, constructed a front compound wall on the southern side i.e., the entrance of the complex abutting to R & B road. The encroached public land was about approximate 200 sq. yards of land. Recently a fly over is being constructed the entire front compound wall on southern side was demolished by the R & B officials, leaving only very small area on front side. Till date, the Ops neither constructed front compound wall nor taken any steps. The Ops showing public road encroached on the southern side, collected sale price under the heading undivided share in the land. Therefore, the Ops have to calculate the excess amount of the encroached land and reimburse the excess sale price to each flat owner.
6. On 14.04.2014, when there were rains, the rain water mixed with mud entered the complex, making it dirty and difficult for the complainant members to use the parking. There is continuous leakage of water from the overhead water tank in "B" and "C" block into the 5th floor resulting the flats on the 5th floor getting continuous leakage from the ceiling during normal days and excess leakage on the rainy days. The electrical transformer already installed by OP on the southern west corner on the elevated platform was demolished by R & B Department, forcing the complainant shift the existing transfer to another place, cost the complainant Rs.1,60,000/- which the Ops refused to pay.
7. The defect in the planning, designing, etc., of the entire complex is evident from an incident that happened on 29.12.2013 when a fire accident occurred in Flat No.115, summoning the fire engine to prevent the fire but fire engine could not enter the complex because there was no sufficient entrance. The entire construction is defective and not fire proof as no certificate from the Fire Department had been obtained by the Ops, which is a mandatory requirement. The following particulars of approximate cost is likely to be incurred for the rectification/repairs, installation etc., to make the flats perfect for comfortable dwelling purpose.
a. for repairs to damaged flats inside walls to prevent Rs.40,00,000/- leakage of water in the bathroom, floors, inner walls of flats etc., b. repair of overhead water tanks and terraces of all Rs. 8,00,000/- the three blocks A, B and C to ensure no water leakaging to 5th floor flats c. replacement of local made lifts installed in B & C Rs.15,00,000/- blocks with 6 persons capacity with that of standard "Kone" company lifts costing Rs.7,50,000/- each. d. cost of construction for permanent septic pipe Rs. 5,00,000/- line connecting to the public septic tank e. construction of front compound wall upto 6ft Rs.10,00,000/- height on the southern side and filling it with concrete to level it to road height f. transformer already shifted which incurred cost Rs. 1,60,000/- of Rs.1,60,000/- payable by the Ops. g. claiming damages/compensation from the Ops for Rs.10,00,000/- suffering various inconvenience including air, sound, drainage smell pollution etc., causing health hazards etc., due to demolition of southern/front compound wall exposing the flats dwellers direct to public road h. claim of compensation of Rs.10,00,000/- for mental Rs.10,00,000/- tension, financial loss, health hazards suffered by the members of the Complainant Association. __________________ Rs.99,60,000/- ________________
Hence the complaint to direct the Ops jointly and severally to pay the complainant a sum of Rs.89,60,000/- to enable the complainant to repair the defects, deficiencies and illegalities committed by the Ops in respect of the flats of the complainant, to award compensation of Rs.10,00,000/- for the mental tension, financial loss, health hazards suffered by the members of the Complainant association, to award cost of the litigation.
8. OP No.1 filed his written version contending that the complaint is misconceived, speculative, false, bogus and badly barred by limitation, as such, not maintainable in the any law or on facts, hence, liable to be dismissed in limine. The OP No.1 did not sell all his 69 flats in the complex but retained some of them for himself and for his family members and those flats are still unsold and retained by him as on today. The OP No.1 constructed flats by providing all amenities including making drainage system, etc., and also constructed compound wall from all corners with an entry gate along with big name board in the year 2008 and sold them to its owners, who occupied their respective flats and thereafter OP No.1 collected Rs.50,000/- from each owner of the flat towards corpus fund and also maintained the entire Vijaya Raghava Township for about two years on his own without collecting any amount from any of the flat owners towards maintenance and thereafter handed over the management to the complainant association in the year 2008 itself along with corpus fund and since then the complainant association is looking after the management and maintenance of the complex. Therefore, from 2008 onwards, the OP No.1 is nothing to do nor he has got any liability or responsibility in the day to day affairs of the complainant association.
9. After more than 5 years, the question of allegation of poor quality of construction, using poor quality of materials and encroachment does not arise at all. The association shall also keep keen maintenance of roof-tops and walls, free flow of drainage water or other water and if any waste material is struck in the middle of any drainage pipes, the entire drainage system of that flat will not only become a big problem but also causes damage to the said pipeline system. It is the complainant's association which has to look after periodical check but should not blame the OP No.1 as he is neither maintaining the association nor looking after its day-to-day affairs. The OP No.1 is nothing to do with the allegations made in the complaint.
10. The OP No.1 has no knowledge or prior intimation from the complainant with regard to engaging of consultant by name design courtyard to carry-out a detail inspection and he has nothing to do with the same. OP No.1 is nothing to do with the break-down of the lifts. The complainant got issued a notice dated 15.05.2013 to which, the OP No.1 gave suitable reply. There was exchange of notices in between the parties. The poor quality of construction and encroach of public place abutting public road are denied by him. This Commission has no jurisdiction to entertain the complaint as the same is badly barred by limitation of two years. In collusion with OP No.2, the complainant hatched a plan to gain illegally from OP No.1 by creating all self-created imaginary facts and figures. There is no deficiency of service on his part and hence prayed to dismiss the complaint with exemplary costs.
11. In order to prove its claim, the Complainant got filed the affidavit evidence of its Secretary Vineet Chand Padmanabhan Nair and Exs.A1 to A12. On his behalf, the OP No.1 himself filed his affidavit and Ex.B1 to B16.
12. The points that arise for consideration are :
i) Whether there is any deficiency of service on the part of the Opposite parties and whether the Complainant is entitled for the reliefs, as prayed for?
ii) Whether the complaint is barred by limitation? iii) To what relief ?
13. POINTS 1 & 2: It is not in dispute that the members of the Complainant are the owners of the flats in occupation of the premises 'Vijaya Raghava Township Complex', situated at Nallagandla village, Serilingampally mandal, Ranga Reddy district, having purchased their respective flats from the builder as well as owner of the land out of the respective shares fell to them. It is also not in dispute that the complainant association got shifted the transformer from the place of installation to other place on account of laying fly-over and also the demolition of front portion of the complex.
14. On the other hand, the OP No.1 would contend that he has nothing to do with the allegations made in the complaint or the deficiencies complained in view of the fact that the possession of the respective flats were delivered to the owners of the flats i.e., members of the complainant association long back and the maintenance of the complex was already entrusted to the complainant long back. In this regard, we may state that the word "maintain", with its grammatical variations and cognate expression, shall include fencing, covering, repairing, restoring or cleansing, or doing of any act which may be necessary for the purpose of preserving or conserving, of or securing convenient access to a building. Admittedly, the maintenance of the complex is entrusted to the Complainant Association by the OP No.1 long back. From the perusal of Ex.A1 it is evident that the complainant association has been formed on 28.01.2011 itself and the present complaint is laid on 17.09.2014 after a period of three years from the date of registration of the association.
15. In fact, the complainant has not placed any evidence to show that they have been demanding the opposite parties 1 and 2 to attend the deficiencies as pointed-out in the present complaint till issuing of Ex.A6 notice dated 28.03.2013. We may state that the complaint has to be filed within a period of two years from the date of cause of action. No evidence is placed on record by the complainant as to when the Apartment in question was completed and as to when the members of the complainant association have occupied the premises so as to claim that the complaint is filed within the period of limitation.
16. As stated above, no cause of action survived till the date of Ex.A6 i.e. 28.03.2013, as the complainant did not demand the opposite parties either to attend the alleged deficiencies or to take steps to get them rectified. Hence, no cause of action would arise and continues in favour of the complainant. Even the complainant failed to file the copies of resolutions in the minutes of meeting held by them. Under these circumstances, it is obvious that the complainant has kept silent upto 28.03.2013. Section 24A of the Consumer Protection Act, 1986 prescribes limitation of two years since accrual of cause of action, for institution of proceedings under the Act. In this case, the cause of action arose when the members of complainant association have purchased their respective flats. As can be seen from the perusal of Ex.B3 dated 21.08.2006, the permission was accorded by the HUDA and Seri Lingampally Municipality for construction of the complex and as per Ex.B9, B10 and B11, the regularisation was accorded on 18.07.2009 and as per Ex.B8, the property tax was assessed for the occupied portions, hence, no separate certificate of Occupancy Certificate is required for the building. As observed above, the complainant association has failed to establish that there is continuing cause of action in this case as contended by them, to file the complaint on 17.09.2014, long after expiry of two years period from the date of Ex.B9, B10 and B11. Absolutely, there is no evidence on record to show that after completion of the construction in the year 2006 or till 2009 or thereafter the complainant complained to the opposite parties 1 and 2 about the deficiencies and inferior quality of the work and demanded them to comply with the same. In the absence of any such evidence, it cannot be said, that the cause of action that arose in the year 2006 or 2009, continued till 2014. Under these circumstances, we are of the view that the complaint is barred by limitation.
17. The documents exhibited by the complainant to substantiate its allegations do not establish or convince this Commission to hold that the Opposite parties are deficient in rendering services. No evidence is brought on record to show that the Opposite parties 1 and 2 gave any undertaking in respect of the amenities and requirements to be provided. It is not known why the owners of the complainant association has failed to file the sale deeds under which the opposite parties have agreed to provide basic amenities and other facilities which is a crucial document and for the reasons best known, the same are not filed. Unless the details are gone through, it cannot be said that there is deficiency of service on the part of the Opposite parties in providing the amenities and removing the deficiencies. It is not known how the members of the complainant association right from the date of occupation till the date of filing of the complaint on 17.09.2014 have not protested and have been using their flats without insisting the opposite parties to make good the short coming. For the first time, after lapse of three years, the complaint was filed against the first opposite party builder and the owner of land, that too, in their personal capacity.
18. We may state further that for every multi-storied complex and flats, the basic requirement is that the builder has to apply for sanction of plan and to obtain permission to provide sewerage facility and water connection by paying necessary charges as per the rules framed by the Sewerage Board. It is not known how the owners of the complainant's association have occupied the flats and have been in use of it, all the while, without occupancy certificate and even without providing the proper drainage facility. Though it is stated that the complainant association passed resolutions from time to time, for the reasons best known, the same are not filed. In which circumstance, it cannot be said that the opposite parties are at fault in providing the drainage facility in proper way in respect of the respective flats of complainant's members.
19. It is to be further stated that when the complainant is maintaining the building itself, no deficiency of service can be attributed against the owner of the land or builder after a gap of more than three years from its registration. Nothing can be inferred that there was breach of obligation on the part of the opposite parties and that they failed to provide the amenities/rectify the defects referred to above.
20. The burden of proof is always on the complainant to establish that the builder who had constructed the multi-storied complex or the flats had not fulfilled the contractual obligations and that there are short comings which are required to be done as per the directives of the Consumer Disputes Redressal Commission. A cursory look of the allegations of the complainant's association itself shows that the allegations are bald and vague and those allegations are not substantiated by any tangible evidence to prove it. The documents that are being filed are in no way concerned with the allegations. It is not known why they have not filed any of the correspondence said to have been exchanged between the association and the first opposite party by pointing out the shortcomings calling upon him to fulfill it. The complainant's association has not placed any relevant documentary evidence on record. Unless it is proved and established that as per the contractual obligations, the first opposite party failed to provide amenities referred to above so as to make him individually liable along with the owner of land (OP.2), they cannot be made liable. It is elementary that in order to succeed in the case filed by the complainant's association, it has to establish that the first opposite party had committed breach of the agreement and that by incurring an additional expenditure they made good those short comings or that necessary amount is required for getting them fulfilled. Though one may have sympathy towards the owners of the flats when they are not provided with amenities as per the contract, but no order can be passed in favour of the owners in the absence of tangible and cogent evidence. In view of the aforesaid reasons, we answer the points 1 and 2 framed for consideration at paragraph No.12, supra, against the complainant and in favour of the Opposite parties.
21. POINT No.3 : In the result, the complaint fails and accordingly dismissed, but in the circumstances, parties to bear their own costs.
PRESIDENT MEMBER Dated: 13.04.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Vineet Chand Affidavit evidence of M.Ch.Raghava Padmanabhan Nair, as PW1. Rao, OP No.1 EXHIBITS MARKED For Complainant :
Ex.A1 is copy of the Certificate of Registration, dated 28.01.2011 issued by the office of the Registrar of Societies, Ranga Reddy district.
Ex.A2 is copy of the Authorisation letter as per the general body meeting held on 29.09.2013, issued by Vijaya Raghava Township Flat Owners Association.
Ex.A3 is copy of the brochure released by the Vijaya Raghava Township.
Ex.A4 is the report dated 12.12.2012 given by Design Courtyard to the complainant.
Ex.A5 is copy of the list showing the names of the members of Complainant Association.
Ex.A6 is copy of notice dated 28.03.2013 got issued by the complainant to the Opposite parties.
Ex.A7 is copy of the reply notice, dated 25.05.2013 got issued by M/s Vijaya Raghava Constructions, rep. by its Proprietor to the counsel for complainant.
Ex.A8 is copy of the legal notice, dated 22.07.2013 got issued by the OP No.1 to the OP No.2 and the Secretary of the Complainant's association.
Ex.A9 is copy of the notice, dated 22.08.2013 got issued by the complainant to the counsel for M/s Vijaya Raghava Constructions.
Ex.A10 is copy of the rejoinder to the reply notice dated 22.08.2013 got issued by the OP No.1 on 02.09.2013 to the counsel for the complainant's Association.
Ex.A11 is copy of the reply notice dated 19.09.2013 got issued by OP No.2 to the counsel for the complainant.
Ex.A12 are the photographs showing the demolition of front wall and the subject complex.
For Opposite parties :
Ex.B1 is copy of the Development Agreement-cum-G.P.A. dated 20.07.2007 executed by the OP No.2 in favour of M/s Vijaya Raghava Constructions.
Ex.B2 is copy of the Building permission-sanction for construction of residential building consisting of stilt + 5 floors in favour of Sri S.Narender Goud and another, issued by the Commissioner, Serilingampally Municipality, vide proceedings No.G/284/BP/3774/2006-07, dated 21.08.2006.
Ex.B3 is copy of the approved plans of the building along with sanctioned plan.
Ex.B4 is copy of the notice dated 15.05.2013 got issued by the complainant's association to M/s Vijaya Raghava Constructions and OP No.2 Ex.B5 is copy of the reply notice dated 25.05.2013 got issued by M/s Vijaya Raghava Construction to the counsel for the complainant.
Ex.B6 is copy of the letter issued by the complainant association to the OP No.1 acknowledging the receipt of original documents, for legal opinion.
Ex.B7 is copy of the letter issued by the complainant association to the OP No.1 acknowledging the receipt of original documents.
Ex.B8 is copy of the letter dated 27.12.2012 bearing No.A/9926/TPS/HO/GHMC/ 2012, addressed by the Chief City Planner, GHMC to OP No.1 intimating that the Occupancy Certificate is not required for the building.
Ex.B9 is copy of the proceedings No.BPS/8273 & 8277/Cir-XI/WZ/2008, dated 18.07.2009, issued by the Deputy Commissioner, Circle-XI, GHMC, Serilingampally certifying the regulation and penalization of unauthorized construction of the complainant's complex.
Ex.B10 is copy of the proceedings No.BPS/8275 & 8278/Cir-XI/WZ/2008, dated 18.07.2009, issued by the Deputy Commissioner, Circle-XI, GHMC, Serilingampally certifying the regulation and penalization of unauthorized construction of the complainant's complex.
Ex.B11 is copy of the proceedings No.BPS/8274 & 8276/Cir-XI/WZ/2008, dated 18.07.2009, issued by the Deputy Commissioner, Circle-XI, GHMC, Serilingampally certifying the regulation and penalization of unauthorized construction of the complainant's complex.
Ex.B12 is copy of the legal notice, dated 22.07.2013 got issued by the OP No.1 to the OP No.2 and the Secretary of Complainant's Association.
Ex.B13 is copy of the notice dated 22.08.2013 got issued by M/s Vijaya Raghava Township Complex Owners Association to the counsel for the OP No.1.
Ex.B14 is copy of the Rejoinder to the reply notice, dated 22.08.2013 got issued by the OP No.1 to the counsel for the complainant.
Ex.B15 is copy of the reply notice, dated 19.09.2013 got issued by the OP No.2 to the counsel for the OP No.1.
Ex.B16 are the bunch of photographs numbering (4).
PRESIDENT MEMBER Dated: 13.04.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER