State Consumer Disputes Redressal Commission
Balwant Garg & Anr. vs M/S Saraswati Builders & Ors. on 16 June, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.826 of 2013 Date of Institution: 01.08.2013 Date of Decision: 16.06.2016 1. Balwant Garg aged about 40 years son of Sh. Om Parkash, resident of House No.33, Park Avenue Colony, Faridkot. 2. Parsottam Lal aged about 55 years son of Sh. Kesho Ram resident of House No.159, Park Avenue Colony, Faridkot. Appellants/Complainants Versus 1. M/s Saraswati Builders, Park Avenue Colony, Kotkapura- Talwandi Bypass, Faridkot, Head Office M/s Saraswati Builders, 3046, Sector 28-D, Chandigarh through its Partner. 2. Punjab Urban Planning and Development Authority (PUDA), Bhagu Road, Bathinda. 3. Punjab Urban Planning and Development Authority (PUDA) Bhawan, Sector 62, Mohali through its Chief Administrator. 4. Government of Punjab through Secretary, Housing and Urban Development , 15/5, Civil Secretariat, Chandigarh. 5. Punjab Pollution Control Board, Nabha Road, Patiala through its Chairman. Respondents/ Opposite parties First Appeal against order dated 11.06.2013 passed by the District Consumer Disputes Redressal Forum, Faridkot. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri.J.S Gill, Member Shri. H.S. Guram, Member Present:-
For the appellants : Sh.Surinder Garg, Advocate For the respondent no.1 : None For the respondent no.2&3 : Sh. Balwinder Singh, Advocate For the respondent no.4 : None. For the respondent no.5 : None. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the complainants in the complaint) have directed this appeal against order dated 11.06.2013 of District Consumer Disputes Redressal Forum Faridkot dismissing the complaint of the complainant. The respondents of this appeal are the opposite parties in the complaint and appellants of this appeal are complainants in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that they are residents of Park Avenue Colony Faridkot bearing house nos. 33 and 159. The colony was developed by OP no.1 on Kotkapura-Talwandi Bypass Road Faridkot by getting approval from OPs no.3 and 4 under Punjab Apartment and Property Regulation Act, 1995. OP no.1 is to provide roads, as per PWD specifications with arrangement of self flow of rain water, water supply system with one tubewell of size 10''x6'' up to 400 feet depth, one underground reservoir (UGSR) of size 60'x33' with working dept of 7' below ground level (BGL), one over-head storage reservoir (OHSR) of 50,000 gallon capacity up to 90' full supply level (FSL), capacity, an independent sewerage treatment plant of suitable capacity of FAB technology with provision of using the treated water for irrigating road side plants, open spaces, green parks etc within the colony through underground pipes and absorbing excess treated underground through deep soakage pits, laying of storm water, drainage system, street lighting with underground cable, construction of community centre and school and landscaping. OP no.1 has violated many terms and conditions of the agreement and has not provided civic amenities in the colony, as per terms and conditions, the details of which are noted below :-
i) Sewerage System: It is clearly mentioned in the explanatory note that an independent sewerage treatment plant of suitable capacity of FAB technology shall be set up and the treated water will be recycled for irrigating the road side plants, open spaces, green parks etc within the colony through underground pipes and excess treated water will be absorbed underground through deep soakage pits. This condition has been fulfilled by the opposite party no.1. No pipes have been laid for recycling the treated water for irrigating the road side plants, open spaces, green parks etc within the colony, neither deep soakage pits have been dug for excess treated water. Moreover the sewerage treatment plant is not working. Even the electricity connection for working of the plant was disconnected due to non-payment of bill and the residents of the colony had to pay the arrears of electricity charges to reconnect the electricity supply.
ii) Community Center, School etc :- As per condition 1 (d) of the agreement the opposite party no.2 is bound to construct or get constructed at his own cost schools, hospitals, community centers and other community buildings or transfer the same to State Government or local authority. This condition has also not been fulfilled. The places set apart for the school and the community center are lying vacant. It is learnt that the opposite party no.1 is trying to sell away the site left for the school.
iii) Road, Public Parks etc: As per condition 1 (c) of the agreement; the opposite party no.1 is responsible for providing, laying and consolidation of 20 mm thick compact graded pre- mix carpet after missing the aggregates and bitumen in hot mix plant and laying as per PWD specifications. The opposite party no.1 has also blatantly violated this condition. Condition of roads is deteriorating as the same have not been laid as per PWD specifications.
iv) Upkeep of roads, open spaces, public parks etc: As per agreement the opposite party no.1 is responsible for upkeep of roads, open spaces, parks for a period of five years from the date of issue of completion certificate. Though the period of 5 years has not yet been expired the opposite party no.1 has left the colony to the mercy of God. The roads are breaking down and most of public parks are in a pitiful condition. There is no employee of the promoter to upkeep the parks and water the plants on roadsides. The opposite party no.1 has even dug away the grass from the sides of the main road and shifted it to another colony being developed by him. As per agreement there must be 244 trees to be planted by the promoter in the colony but in fact the number is less than half.
v) Street Lighting : As per terms of agreement, opposite party no.1 had agreed to lay underground cable for street lighting with aluminum conductor PVC insulted PVC sheathed unarmored cable. This condition has also been violated. All the street lighting is done over ground with sub standard material. Moreover as per agreement with the Punjab State Electricity Board, (now Punjab State Power Corporation Ltd) proper infrastructure for issuing connections to the residents has not been laid due to which the PSPCL has banned issuing connections to the residents of the colony. Many residents of the colony including the complainants who have built their houses by spending lakhs of rupees have been denied electricity connections of the PSPC Ltd, due to afore mentioned reason. Due to non-releasing of connection, the residents are suffering financial loss, inconvenience and mental agony as they are unable to reside in their houses. Some residents had to file complaints before the District Consumer Disputes Redressal Forum for getting electricity connections which have been accepted.
vi) Water Supply: As per agreement opposite party no.1 is bound to provide independent tube well based water supply for which one tube well of size 10''x6'' up to 400 feet depth BGL, one UGSR of size 60'x33 with 7' depth BGL and generator set of suitable capacity is required. All these conditions have been violated. There is no generator set for water works. The UGSR is very much under sized. The motor for pumping water is of very low capacity and of very poor quality and remains burnt for most of the time. The promoter does not pay the bill for electricity connection to the water works causing frequent disconnection by the PSPC Ltd. It is pertinent to mention that the bore well is the encroached government land instead of the land of the colony which the government can confiscate any time. It is very serious matter that the water is supplied to the residents directly without any purification. No sampling to check the quality of water has been got done by the promoter which is mandatory before supplying water for human consumption.
vii) Illegal inclusion of extra land in the colony : The PUDA has approved the Park Avenue Colony for 20.77 acres only but the opposite party no.1 has illegally included about 10 acres land within the boundary wall of the colony and is trying to sell plots from this illegal land showing them to be a part of the colony though high tension electric wires pass over this extra land. Moreover this extra land is over grown with weeds and has become habitat of dangerous creatures such as poisonous snakes, mangoose, rats etc. This act of the promoter is a criminal offence under the provision of Punjab Apartment and Property Regulation Act, 1995 but the opposite parties no.2 and 3 has not initiated action against the promoter.
The above-said illegalities and violations by OP no.2 make it liable for cancellation of Certificate for Registration as Promoter, registration of criminal case, forfeiture of bank surety and payment of fine. The complaints were submitted to OPs no.2 and 3 and legal notice dated 22.09.2010 was also served upon OPs, but to no effect. The complainants have, thus, filed the complaint directing the OPs no.2 to 5 not to issue completion certificate to OP no.1, to take action against OP no.1 for violating the provisions of agreement and Punjab Apartment and Property Regulations Act. The complainant also prayed that OPs be directed to pay a sum of Rs.5 lac as compensation for mental harassment.
3. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant. It was averred in preliminary objections that OP no.1 has been granted license to develop the colony under the Punjab Apartment & Property Regulation Act 1995 on 27.05.2005, had completed all the formalities under the PUDA guidelines i.e. sewerage, water, electricity, roads, environment etc by May 2008, which is clear from letter dated 04.03.2008 and 21.05.2008 addressed by OP no.2 to OP no.3 in response to letter Ref No.PUDA/PMP/Bhatinda/2008/49-51 dated 09.01.2008 qua issuance of completion certificate to OP no.1 mentioning that the work related to development of the colony including sewerage, water, electricity, roads, environment has been completed by OP no.1. It was further averred that OP no.1 has not violated any condition of PAPRA Act, 1995. As per condition no.(iv) of the License dated 27.05.2005 issued under PAPR Act, 1995, the OP no.1 in its layout plan was required to keep land reserved for the roads, open spaces, schools, parks and other common uses not less than 41.65% of the gross area under the colony and lay out plan was submitted to OPs, which was duly approved by OP no.2 and 3. OP no.1 had not authorized or consented any plot owners like complainants to misuse the electricity from his meters or streetlights yet the theft of electricity has been committed by certain plot owners like owners of plot nos. 149, 134, 160, 45 etc, as well as complainant no.2. The complainant no.1 after satisfying himself qua the facilities and amenities being provided by OP no.1 approached for purchase of plot no.33 and tendered affidavit dated 30.03.2007, which proved his admission qua his satisfaction for the amenities provided by OP no.1. The complainant no.1 is in habit of filing the frivolous complaints with various authorities. The complainant no.2, who had also committed a theft of electricity, in order to cover up his illegal act, had filed a frivolous complaint no.260/10 before this Forum. The complainant no.2 is lawyer by profession and filed complaints amounting to abuse of process of law. The complainant no.2 with other plot owners had sent a legal notice dated 22.09.2010 to OPs no.1, 3 and 4, which was duly dealt with and all allegations made against OP no.1 were found to be false and frivolous. All the requirements of the PAPRA Act 1995 as well as PUDA; as is evident from the letters issued by concerned authorities and inspections; carried out by them in addition to that so many trees have been planted in the colony by OP no.1 by meeting all the standards of PPCB. The officials of PPCB have not issued the necessary approvals for the reasons best known to them. The letter dated 18.03.2008 with regard to completion certificate was sent to Chief Administrator by the Divisional Engineer in which it was categorically mentioned that 100% of plantation of trees has been completed by OP no.1. The complaint is not maintainable. OP no.1 controverted the averments of the complainant even on merits and prayed for dismissal of the complaint.
4. OPs no.2, 3 and 4 filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complainant is not a consumer qua OPs no.2, 3 and 4 and hence complaint merits dismissal. Any deficiency in service was denied by OPs on their part, as there is no relationship of consumer and service provider between complainant and OPs no.2, 3 and 4. On merits, OP no.2, 3 and 4 controverted the averments of the complainant, as contained in the complaint. It was vehemently denied by OPs no.2, 3 and 4 that they in any manner connived with OP no.1 regarding any alleged violation of terms and conditions of the agreement. It was denied that OPs no.2 ,3 and 4 overlooked any complaint or illegality of OP no.1. OPs no.2, 3 and 4 denied the averments of the complainant and prayed for dismissal of the complaint.
5. OP no.5 filed its separate written reply and contested the complaint of the complainant. It was averred in preliminary objections that OP no.5 is Regulatory Authority constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974. The Board is carrying out its statutory duties and is performing its functions in accordance with the provisions of the Pollution Control Laws i.e. the Water (Prevention & Control of Pollution) Act, 1974. OP no.1 granted NOC on 23.09.2004 by the Punjab Pollution Board for development of residential colony at Amritsar Highway and in Faridkot in the name of Park Avenue in an area of 20.77 acres for a population of 2450 persons from population angle and conditions mentioned in the said NOC. The said NOC was valid for one year from the date of its issue till the complete development of the colony, whichever took place. The promoter shall construct the sewage treatment plant simultaneously with the development work of the colony or within six months, whichever is earlier. Earlier the project was covered under the provisions of the Environment Impact Assessment Notification dated 07.07.2004 issued by the Ministry of Environment and Forests Department of India. Later on such like projects were exempted from the purview of Environment Impact Assessment Notification by the Central Government by a circular dated 13.10.2006 was issued by the Ministry of Environment & Forest, Government of India. The project proponent has installed the sewage treatment plant in the year 2007, but the same was not provided with measuring devices at the final outlet of STP/source of water supply and the promoter has not developed the land for the disposal of the treated water. In this regard, personal hearings were afforded to the project proponent before the Chairman of the Board in the year 2007, 2009 and in the year 2010 before the Chief Environment Engineer of the Board, but to no effect. Notices were also issued in this regard to the project proponent, but he failed to comply with the provisions of the water (Prevention & Control of Pollution) Act, 1974. The role of the Punjab Pollution Control Board in the present case is limited to the extent of installation of the sewage treatment plant by the project proponent and safe disposal of wastewater. OP no.5 is not concerned with upkeep of roads, open spaces, street lighting, water supply and other amenities in the residential colony. OP no.5 contested the complaint of the complainant even on merits and prayed for dismissal of the complaint.
6. The complainant tendered in evidence, affidavit of Parshotam Lal Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-11, affidavit of Warriyam Singh Ex.C-12, affidavit of Balwant Garg complainant Ex.C-13, affidavit of Parminder Kaur Ex.C-14, affidavit of Parvinder Singh Ex.C-15 and copies of documents Ex.C-16 to Ex.C-51. As against it; OP no.1 tendered in evidence affidavit of Sh. Sham Lal Ex.R-1 along with copies of documents Ex.R-2 to Ex.R-16, affidavit of Navreet Grewal Estate Officer Punjab Urban Development Authority Ex.R-17. On conclusion of evidence and arguments, the District Forum Faridkot dismissed the complaint of the complainant by virtue of order dated 11.06.2013. Dissatisfied with the order of the District Forum Faridkot dated 11.06.2013, the complainants now present appellants, carried this appeal against the same.
7. We have heard learned counsel for the parties and have also examined the evidence on the record of the case.
8. The District Forum dismissed the complaint of the complainant primarily on the ground that complainants have filed complaint in representative capacity on behalf of other residents of the locality. No such permission has been taken from the District Forum to file a joint complaint under Section 12(1) (c) of the Act it is mandatory in nature and accordingly dismissed the complaint of the complainant as not maintainable. Finding of the District Forum on this score has been seriously assailed before us by the appellant.
9. From appraisal of evidence on the record and hearing the respective submissions of counsel for the parties, we find that complainants have filed complaint for not providing the civil amenities like water supply, sewerage system, electricity supply, drainage etc to the residents of Park Avenue Colony Faridkot. The complainants sought direction for providing necessary civil amenities such as sewerage system, community centre, school etc, roads, public parks, upkeep of roads, open spaces, street lighting, water supply, illegal inclusion of extra land in the colony in this case. The drift of the complaint is that complainants have filed complaint on behalf of other residents of Park Avenue Colony Faridkot, as well. The complaint is virtually in a representative capacity, as is evident from its tenor. The counsel for the appellant referred to law laid down by Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in "G.B. Thapa & Others versus Tajendra Pal Singh Guliani & another", reported in III (2004) CPJ 296-297, wherein Madhya Pradesh State Consumer Commission held that Order 1 Rule 8, Code of Civil Procedure Code, 1908- joint complaint. Complaint cannot be termed as representative complaint in strict sense. Matter has also been examined by National Commission in " Atharya Towers Owners Association versus M/s Raheja Developers Ltd," in Consumer Case No.250 of 2014 decided on 05.11.2014. The National Commission has observed in para no.4 of the judgment that : As per Section 12(1)(c), one or more consumers having the same interest may file consumer complaint on behalf of, or for the benefit of all consumers so interested with permission of the District Forum (National Commission in the instant case). A perusal of the prayer clause to the complaint indicates that there are issues concerning the non-provision of common amenities and facilities like road, water supply, electricity, sewerage, car parking, clubhouse, swimming pool, school, shopping complex etc. to entire locality. However, there are other issues also, regarding the payment of interest to the allottees for not giving possession within 36 months of payment of booking amount. Obliviously, such an amount shall be different in each case depending upon the area of each unit and the dates of making first payment, which are different for different allottees. For individual interest, therefore, every consumer shall have to file individual complaint before a consumer forum of competent pecuniary jurisdiction. It is, thus, evident from the cited authority of National Commission that for individual interests, every consumer shall have to file individual complaint before a consumer forum of competent pecuniary jurisdiction. A perusal of prayer clause to the complaint indicates that there are issues concerning the non-provision of common amenities and facilities like road, water supply, electricity, sewerage, car parking, clubhouse, swimming pool, school, shopping complex etc. So in the circumstances of the case, the complainant who have filed the instant complaint for non-provision of above-referred amenities to the residents of the locality have filed this complaint in representative capacity only. In view of the mandate of Section 12(1)(c) of the Act, one or more consumers, where there are numerous consumers having same interest, with permission of District Forum on behalf of, or for the benefit of, all consumers so interested can file the complaint. Here, no such permission of the District Forum has been taken and there is, thus, violation of mandate Section 12(1)(c) of CP Act.
10. As a result of our above discussion, finding no merit in the appeal; same is hereby dismissed.
11. Arguments in this appeal were heard on 14.06.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER (H.S.GURAM) MEMBER June 16, 2016 (ravi)