State Consumer Disputes Redressal Commission
Mrs Jayanti Khunte vs Neeraj Patel & Anr. on 16 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/73
Instituted on : 07.11.2017
Mrs. Jayanti Babulal Khunte,
W/o Shri Babulal Khunte,
Residing at : A-502, Aanandam Apartment,
Ward No.12, Sharda Vihar, S.E.C.L. - By Pass Road,
Korba, District Korba (Chhattisgarh) ... Complainant.
Vs.
1. M/s. Neeraj Patel and Makhan Singh Dhanjal,
(A Partnership Firm Through Its Partner : Neeraj Patel),
Having Office at : Bhoomiraj, Real Infra Project P. Ltd.,
S.E.C.L. Road, T.P. Nagar,
Korba (Chhattisgarh) 495677
2. Mr. Makhan Singh Dhanjal,
Partner of M/s. Neeraj Patel & Makhan Singh Dhanjal.
(A Builder and Developers),
Residing at : Darri Road,
Korba, Tahsil & District Korba (C.G.) 495677 .... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri Rohit Dalmia, Advocate for the complainant.
Shri Shishir Bhandarkar, Advocate for the OPs.
ORDER
DATED : 16/MAY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs, seeking following reliefs :-
// 2 //
(a) To rectify all the defects in the construction and resolve the problem of water seepage upon ceiling wall, side walls and water seepage from the windows and wall cracks inside the Flat No.A/502 in a time bound manner;
OR In case the defects cannot be cured, then take back the possession of the Flat No.A/502 from the complainant and return the flat costs paid by the complainant to the OPs and also pay the miscellaneous expenses incurred by the complainant towards obtaining Home Loan and monthly interest paid by the complainant till date;
(b) Handover possession letter for the Flat bearing No.A/502 to the complainant.
(c) Provide individual car parking facility as promised in its brochure.
(d) Provide roof top community centre in the building.
(e) Demolish the illegal structure constructed by it at the entrance of the building and provide ample car parking facility for the visitor car parking.
(f) Pay the claim of Rs.47,29,560/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Five Hundred Sixty) along with interest @ 21% p.a. // 3 //
(g) Pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards the physical strain and mental agony suffered by the complainant; and
(h) Pay a sum of Rs.1,00,000/- (Rupees One Lakh) towards cost of this petition.
(i) Appointment of a competent person by the Commission to inspect the site and submit its report before the Commission during the pendency of the proceedings.
(j) To amend the complaint and/or its prayer, if circumstances arises.
(k) Such further and other orders may please be passed for which act of kindness, the complainant shall, as is duty bound, ever pray.
2. Briefly stated the facts of the complaint of the complainant are that the complainant happens to be a Designer (2D & 3D Designs and all kinds of Interior Decoration), and is looking to set up the business in Korba City and was looking to purchase a flat for residence purpose. One person named as Mr. Jay Vaishnav who was working with the OPs had approached the complainant and informed that O.P. No. is constructing a building named as "Anandam Apartment" at Korba (Chhattisgarh) for residence purpose and invited the complainant to visit the site. The complainant after visiting the site was taken to the office of O.P. No.1 and was informed that the OPs have obtained all the permission from the concerned authorities and also brochure of the project site was handed over to her by the executives of the O.P. No.1. Believing upon the false representation of the O.P. No.1 to be true, the complainant in good faith entered into the negotiation for the flat // 4 // situated at 5th Floor and concluded the deal. The O.P. No.1 as per their brochure had committed to the complainant that they are going to provide individual car parking facility to all the flat purchasers and roof top community centre, whereas the O.P.No.1 failed to provide any of services till date for the reason unknown to the complainant. The OPs had sold the complainant a flat situated at Anandam Apartment, Block A, Flat No.502, SECL Bypass Road, Sharda Vihar, Korba. Chhattisgarh - 495677 for sum of Rs.24,00,000/- (Rupees Twenty Four Lakhs) inclusive of C.S.E.B. charges of Rs.50,000/- paid for electric transformer and Rs.15,000/- towards society maintenance charges for 1st year as also mentioned in the booking form. The parties had executed Sale Deed dated 29.05.2017 for the aforesaid flat which was duly registered before the office of the Sub-Registrar, Korba (Chhattisgarh) on 29.05.2017 bearing Registration No.E-Registration . ID No.CG5711529052017009. The OPs gave one set of key for the aforesaid flat to the complainant and asked her to occupy the flat and start doing interior and furniture work she wish to do so as Noticee's have given same permission to other flat purchasers too and have promised verbally to handover the possession letter to the complainant, which the OPs failed to do so, inspite it was clearly mentioned in the sale deed that they would handover the possession letter to the complainant on or before 30th June, 2017. Also remaining two sets of keys of the flat are in the custody of OPs and it is prayed that the OPs shall be directed to handover the remaining two sets of keys to the complainant. Based upon the verbal permission from the OPs, the complainant had moved into the aforesaid Flat No.A/502 and started doing her interior and furniture work. The complainant and her // 5 // husband were shocked and were left high and dry during the recent monsoon season when the water was seeping in their flat through the ceiling wall at the living room area (Hall) and also water is seeping on the side walls of their bed room and hall, Kitchen and also Master bedroom's wall are cracked and that the complainant had also received shock from the electric current while working in the kitchen due to water seepage problem. Further the windows installed by the OPs in the bedroom and kitchen of the said flat were done in shabby manner hence there are gap in the windows due to which water flows directly inside the bedroom and kitchen of the flat which make the place inhabitable for human beings. Also it has been noticed that the OPs have illegally changed the designed/layout of the building as originally shown in their brochure by replacing the concrete parapet area which protects the window from rain water, from the plastic ones with iron frame. The said unauthorized /illegal change of the parapet has resulted in the seepage of water in the bedrooms and kitchen of the flat which could have been avoided had the OPs had not changed it without obtaining proper permission from Municipal Corporation of Korba and done proper workmanship. The said problems where duly brought to the notice of the O.P.No.2 through verbal communication and whatsapp communication by the complainant since July, 2017. Inspite of the same, the OPs chose to remain mute spectator and have not taken any steps to correct the defects in the construction work for the reason unknown to the complainant. The complainant had also visited office of the O.P. No.1 and had meeting with the OPs to rectify the defects as the same is very serious and could also affect the stability of the building as the water seepage harms // 6 // and strength of the building in the longer run. The O.P. No.1 through Neeraj Patel had shown his dis-pleasure to the complainant and her husband whey they confronted with him about the aforesaid defects in the construction quality and the arbitrary changes in the sanctioned plan of the building without obtaining permission from the Municipal Corporation for the same. The OPs have also constructed an illegal structurei n the car parking area (which is originally reserved for the visitors and the flat purchasers) at the entrance of the building by constructing a bungalow for their own use. The sanctioned plan of the building and their own brochure does not show any bungalow at the entrance of the building. This proves that the OPs are violating all the laws and are mere interested to make money by any means. The complainant had sent her request letter to the OPs in writing vide letter dated 02.08.2017, which was sent by speed post. The said packet was duly returned by the postal department with the remark "Refused to Accept." Hence, it is clear that the OPs are shying away from their responsibility and not interested to resolve the problems of the flat purchasers, including of the complainant too. The complainant left with no choice had sent a legal notce to the OPs through her Advocate vide R.P.A.D. letter dated 21st August, 2017. The said sealed postal packet was returned by the postal department with the remark "Refused". The complainant had also written a group complaint along with the other flat purchasers against the OPs before the Collecltor of Korba District and accordingly took cognizance of the grievance and directed the Municipal Corportion of Korba to conduct the inqury and Government Press release was issued by the Collector office in various news papers such as Hari Bhumi, Nai Duniya, Patrika, Nav Bharat, Dainik // 7 // Bhaskar, Lok Sadan on 26th September, 2017, 8th October, 2017 and 9th October, 2017. The complainant had incurred huge financial costs for purchasing Flat No.A-502 from the OPs as the purchasers had availed Home Loan of Rs.19,20,000/- from Housing Development Finance Corporation i.e. HDFC and has to pay interest 10.55% upn the said Home Loan amount for the 20 years tenure against the sub-standard construction quality of the building constructed by the OPs which comes to Rs.46,16,160/- (inclusive of Principal Plus Interest Amount). Also the complainant had paid sum of Rs.1,13,400/- to the HDFC towards loan processing fees, legal charges, loan agreement registration charges, Insurance Premium for obtaining Home Loan from them. Thw OPs had inflicted enormous amount of mental aony and financial loss on the complainant. The OPs be directed either to repair the building in a time bound mnner so a to make it habitable and remove all the defects in the building structure and make all the necessary changes to reinstate it as per the sanctioned layout plan passed by the Municipal Corporation and / or as per concerned authorities. Failing which the OPs be directed to take back the flat from the complainant and return the flat costs to the complainant plus reimburse all the other expenses incurred by the complainant for obtaining Home Loan from HDFC , including payment of monthly interest too. The OPs had been negligent in their work and have caused deficiency in service. Hence, the instant complaint.
3. The OPs have filed their written statement and denied the allegations mae by the complainant against them and averred that the complainant herself came to the office of OPs and showed her interest in purchasing a flat in the residential flate scheme named as "Adhiraj Anandam" which actually // 8 // was constructed by one Adhiraj Infra Estates Pvt. Ltd. popularly known as Adhiraj Group. The OPs, looking to the interest and the inclination of the complainant to purchase a flat in the said residential flat scheme, showed the complainant layout plan of the flat scheme and the complainant after thoroughly checking the plan and being completely satisfied with the same showed her interest in purchasing a flat. The OPs had thoroughly explained about the residential project and flats constructed under the said project and facilities available therein to the complainant and no facts were hided or suppressed from her therefore, alleging that the OPs had misguided the complainnt by making her to purchase the flat in question is completely untrue. The OPs have never assured the complainant regarding provision of any Roof Top Community Centre, as it was not approved under the sanction layout plan. So far as the question of individual car parking is concerned, the OPs have provided basement car parking under all the three blocks constructed in the said residential premises for all the flat owners. But the car parking so provided is paid parking charges of which have not so far been paid by the complainant till date. As regards so called brochure of Exhibit A is concerned, it is an old brochure printed by the Adhiraj Infra Estate Pvt. Ltd., which is not a legal document but is only a conceptual document under which no legal proposal has been made. On observing the brochure, it is clear that the Project Developer reserved the right to change any specification or alleviation indicated in the brochure which clearly means that the facilities indicated in the brochure and any specification in the flat could have been altered by the Project Developer. The complainant therefore cannot put her claim on the basis of any such brochure which is // 9 // merely a conceptual document. The complainant had to make the payment of Rs.24,00,000/- towards the price of the flat in question under an agreement dated 09.05.2017 and the charges for C.S.E.B. Transformer and Society Maintenance were to be paid separately by the complainant which she has not paid. In addition to this, the complainant has also not paid for registration and stamp duty of the sale deed of Exhibit B of the flat in question saying that she has applied for a loan for purchasing the flat from HDFC which would be granted to her only when the registration of flat is complete and once the loan amount is sanctioned, she shall make the payment for registration and stamp duty of the sale deed to the OPs. On above assurance by the complainant, the OPs in good faith borne all the expenses incurred in the registration of sale deed and stamp duties bonafidely believing that the complainant shall reimburse all the costs to the OPs once the loan amount is reimburse to her. The complainant, thus, was liable to indemnify the OPs towards the payment of registration and stamp duty, but the said amount has not so far been paid till date by the complainant even after repeated demands made by the OPs. The aforesaid flat was not given at all to the complainant as the OPs during the rainy season, wanted to check for any flaws in the aforesaid flat which is situated on the 5th floor; and make the repairing of same so that the complainant does not have to face any problems later, but the complainant under the pretext that she needs to take measurement for interior wardrobes and furnitures requested th OPs to provide a set of key. The OPs believing upon the complainant's verion provided keys to her, but the complainant took undue advantage of the OPs'good faith and took the possession of the flat and did // 10 // not even return the keys and started commercial activity. Upon this the OPs requested the complainant not to take the possession of the flat until NOC is given to her and also requested regarding payment of her dues, but the complainant started threatening OPs with false cases against them and thus the OPs became helpless. As far as the question of giving possession within specified time period is concerned, the sale deed does not mention any specific date because the OPs give the possession only when the flat is completlely ready and all the flaws are fully repaired. But in the present case, the complainant took possession by deception from the OPs even before such process was complete. Even then, the OPs have repaired all the minor seepage related problems. As regards so called wall-cracks in the master bedroom and kitchen are concern, it is denied that there was any wall crack. The cracks were in fact superficial in nature as it had occurred only in "paint-putty" which has also been repaired and now there is no seepage or wall cracks in the aforesaid flat. As far as question regarding windows fitted in the flat and parapet walls, the layout plan does not mention about concrete parapet walls to be applied upn the windows, yet the overhangs are made above the windows with decorative PVCs which is sufficient to stop the rain water from entering into the flat from windows. The OPs have constructed the flats of high quality standards after due consultation and guidance of Municipal Corporation and therefore there are no constructional flaws in the aforesaid flat. Whereas the questioned CDS and photographs of Exhibit C, are concerned, they do not show the present actual condition of the aforesaid flat because all the flaws have been fully repaired by the OPs. The OPs have not constructed any structure as against // 11 // the Approved Layout Plan. The builing that has been constructed by the OPs is in fact renovation of its old office situated outside the layout plan and is on the land owned and possessed by the OPs themselves. The objection to this effect is therefore misconceived and hence not tenable. The OPs are within their rights to construct or renovate a building on the land which is owned and possessed by them and which is out of the layout plan of the subject residential flat scheme. No such letter and the notice has ever been received by the OPs on their correct address, therefore, the question of refusal to accept the envelope containing any such letter any noties does not arise. The said group of complaint of the complainant was false and fictitious as some of the persons namely Keshav Singh Singhar, Santosh Kumar Rajput, Jagram Rathore, Sharad Sharma, Hemant Kumar Mahore and Anita Sonwani named in the complaint backed out and made specific allegations against the complainant herself that they have wrongly been involved in the complaint, whereas they have no cmplaint against the OPs. They even requested the Collector to take action against the complainant for making false complaint collectively in their name. The Municipal Corporation, Korba while conducting the enquiry, did not find and structural and constructional defect or shortcomings in their inspection. The OPs have nothing to do with any such loan agreement between the complainant and HDFC as they are not the party to any such agreement Even otherwise, if there is any loan agreement in existence between the complainant and the HDFC, the complainant is under obligation to abide by the terms of any such loan agreement and cannot claim any amount from the OPs as obtaining loan from any financial institution was the prerogative // 12 // decision of the complainant herself and any amount payable therein was for the complainant herself. The OPs have rectified all the defects and have provided all the facilities shown in the layout plant and as such the flat is now free from all defects. The relief sought in para 17 of the complaint is infact untenable because in the first place there has been no structural or constructive defect in the building. Entire building and the flats constructed thereby are in fact as per the sanctioned layout plan of the Municipal Corporation and other concerned authorities. Secondly, all the minor defects such as minn seepage and pain - putty cracks here and there, have also been repaired by the OPs and a such there ha been no defect left to be cured. The entire building and the flat in question is now absolutely fit for habitation. The question of returning the cost of flat and reimbursement of all the expenses under the home loan agreement, therefore,does not arise. The complainant in her complaint has not given justification to claim any amount as big as Rs.58,29,560/- and has thus filed false, fictitious and vexatious complaint with sole intention to grab money from the OPs. The OPs have already rectified all the defects, wall putty cracks and resolved the problem of water seepage from the ceiling, windows and side walls of the flat in question. The question of taking back the possession and the reimbursement of any amount as claimed under Clause F, G and H of Para 23, does not arise. As regards providing Rooftop Community Centre is concerned, it has never been promised by the OPs nor has it been mentioned in the layout plan. So far as demolition of structure construced by the OPs is concerned, it is in fact not a new construction but the renovation of the old office of the OPs which is situated out of the sanctioned lay out plan of the // 13 // flat scheme on the land owned and possessed by the OPs. As regarding the Visitor's Parking is concerned, it is well provisioned under the approved layout plan and is there within the premises of the flat scheme. So far as the Individual Car Parking is concerned, sufficient car parking space for all the flat owners of individual building has been given in the basement, charges for which have not so far been paid by the complainant. As regarding handing ove possession letter for the questioned flat is concerned, it is reiterated that the complainant in the pretext of taking measurement for interior furnitures has taken illegal possession by her own without obtaining NOC from the OPs and has started commercial activities therein. The OPs, however are ready to give possession letter to the complainant provided she pays all her outstanding dues against tramsormer and maintenance charges, parking charges and also expenses incurred in the execution of the sale deed, which comes to Rs.2,82,345/-. As regards appointment of Commissioner is concerned, the competent authority of Municipal Corporation Korba on the instruction of Collector, Korba has already inspected the side and has found nothing substantial against the approved layout plan nor has found any defect in the flat scheme including the flat in question and amay submit its report to that effect to the Collector, Korba shortly. The OPs prior to giving possession, as a routine check the flats to ascertain whether there occurs any defect in the rainy season. The OPs had thus not given formal possession of the flat to the complainant nor the electric meter was installed but without giving opportunity to the OPs to check and rectify the defect, if any, the complainant started living there in the flat by illegally getting electric supply directly from the electric pole and // 14 // started commercial activity by running animation coaching centre. When confronted, with the complainant she started threatening them with dire consequences. Being aggrieved, the OPs vide their letter dated 20.08.2017 demanded the complainant to make the payment of balance amount and to obtain the NOC and possession letter. The complainant however, did not give heed to genuine demand of the OPs and instead made false complaint to the Collector Korba along with Sanjeev Soni, Keshave Singh Singhar, Jagram Rathore, Sanju Kumar Sharma, Santosh Kumar Rajput, Jagram Rathore and Anita Sonwani vide their written letters backed out from the complaint saying that they have no complaint against the OPs and their signatures were wrongly been taken and being misused by the complainant for lodging false complaint. On coming to know about the said false complaint, the OPs gave parawise reply to the complaint. Other residents of the Anandam Apartment also lodged their protest against the complainant to the Collector in writing. All this goes to show that the complainant with the malafide intention had lodged the false complaints before the Collector and Municipal Corporation with sole intention to squeeze money from the OPs and to avoid payment of the overdues, and as such the dispute between the parties has not remained to be a consumer dispute for being adjudicated by this Commission. The complainant in fact has not come with clean hands and has raised false, fictitious and vexatious dispute involving complicated question of law and facts which cannot be adjudicated by Consumer Fora in summary proceedings. Rather it should be remitted to Civil Court. The OPs have also come to know about an episode of a dispute wherein the allegations of fraud had been levelled against the // 15 // complainant and her Animation Centre by two of her students who alleged to have been cheated by the complainant. But, when issue blew out of proportion and came in public domain, the complainant as Director of her so called ARC Animation Centre was forced to refund the amount to her students. This again proves that the complainant is in the habit of making disputes with everybody who come across her. The OPs have also been the victim of her hostile attitude in the present case. The OPs are a reputed firm having unblemished business record for the past many years and because of the complainant's false, fictitious and vexatious allegation, they have suffered not only financial loss but also damaged to the repudation of substantial magnitude for which the OPs are entitled for exemplary cost of Rs.5,00,000/- from the complainant. The complaint be dismissed with cost.
4. The complainant has filed document. Exhibit - A is Brochure, Ex. B are copy of agreement, sanction layout, Ex.C are copy of photographs /CD, whatsup screen sheets, Ex.D is letter along with sealed postal packet, Ex. E. are copy of legal notice / postal receipt and sealed postal packet, Ex.F is copy of letter sent to Collector with newpaper publication, Ex. G is copy of loan sanction letter by HDFC Bank along with Insurance Bond.
5. The OPs have filed documents. Annexure 1 is Certificate of Building Suitable for us dated 12.06.2017, Annexure 2 is Certificate of Regularization dated 17.08.2017 with photographs, Annexure 3 is R.T.I. Application dated 18.01.2018, Annexure 4 is Permission for parking dated 13.12.2013, Article 2 is Visitor's Parking photo, Article 3 is Individual Car Parking, Autorization letter. Annexure OP-5 to 10 are Letters to Collector regaring false complaint, Annexur OP-11 is written explanation to Bhavan Adhikari dated // 16 // 13.11.2017, Annexure OP-12 to OP-16 is newspaper cuttings regarding false complaint againt the OPs dated 19.03.2017 and 20.03.2018, Annexure OP-17 is letter of PIO dated 20.02.2018, Annexure OP-18 is Report of Bhawan Adhikari, Annexure OP-19 is Quotations, Annexure P-20 is Purchase details, Annexure OP-21 is letter to the complainant demanding payment, Annexure OP-22 and OP-23 is complaint against the complainant by students, Annexure OP-24 to 27 is newspaper cuttings dated 05.08.2017, 28.08.2017 and 15.11.2017, Annexure OP-28 and OP-29 is agreement between the complainant and students, Annexure OP-30 is payment by cheques, Annexure -31 is reply of complaint to Tehsildar.
6. Shri Rohit Dalmia, learned counsel appearing for the complainant has argued that the complainant after negotiation with the OPs booked a flat No.A-502 situated at Aanandam Apartment, SE.C.L. By Pass Road, Sharda Vihar, Korba, District Korba for sum of R.24,00,000/-. The OPs executed Sale Deed in favour of the complainant. The OPs provided brochure to the complainant. In the brochure, it is specifically mentioned that the OPs will provide roof top community centre and individual car parking facility for 55 flats purchasers, but the OPs failed to do so. The OPs had received permission from Municipal Corporation for providing 25 stilt car parking but only provided 11 car parking facilities. Thus total 36 car parking facilitie were provided by the OPs as against 55 flats constructed by them and car parking facility was to be provided free of cost to the complainant, but the OPs demaneded parking charges. The OPs have also admitted that there is an open parking space allotted for 275.35 sq mtr., but the same was // 17 // not provided to the complainant. The office of the Deputy Director, Town and Country Planning, Korba (C.G.) vide his letter dated 17.08.2017 has mentioned in their regularization letter that the OPs have encroached and illegally occupied 400 sq. mtrs. Of plot and out of which only 184.04 sq. mtrs have been regularized after paying penalty of Rs.1,21,500/-. 400 sq mtrs. land have been illegally encrosached upon by the OPs. There is serious deficiency in the construction work done by the OPs and there is water seepage from side walls of bed room, hall, kitchen and also master bedroom's wall are cracked and there is electric shock in the kitchen due to water seepage problem, windows installed by the OPs in the bed room and kitchen of the said flat were done in shabby manner, hence there are gap in the windows due to which water flows directly came inside the bedroom and kitchen of the flat. The OP have committed deficiency in service by not providing proper facilities. The OPs also committed deficiency in service by not constructing the flat upto mark and the quality of the construction is below standard. Shri Dalmia, has further argued that the photographs and CDs have been produced by the complainant in support of her case. Looking to the Photographs, CDS and documents, it appears that the OPs have not fulfilled the conditions as assured by them. Therefore, the complainant is entitled to get relief, as prayed by her in the relief clause of the complaint. The complaint be allowed.
7. Shri Shishir Bhandarkar, learned counsel appearing for the OPs has argued that the complainant had to make the payment of Rs.24,00,000/- towards the price of the flat in question under an agreement dated 09.05.2017 and the charges for CSEB Transformer and Society Maintenance // 18 // were to be paid separately by the complainant. In Annexure OP-20, it has been clearly mentioned that the parking charges, transformer and society charges, registration charges and all taxes shall be payable extra, which the complainant is yet to pay. The OPs did not promise to the complainant that individual Car Parking facility and Roof Top Community Centre will be provided. The OPs have provided basement car parking under all the three blocks constructed in the said residential premises for all the flat owners, but the car parking so provided is paid parking charges, which have not so far been paid by the complainant till date. In brochure, it is specifically mentioned that the project developers reserved the right to change any specification of alleviation indicated in the brochure. The complainant obtained key of the flat for interior decoration and in good faith the OPs gave key of the flat to the complainant. Thereafter the complainant started threatening the OPs with false cases against them. So far so called wall cracks and seepage in the master bedroom and kitchen are concerned, there was no seepage in the master bedroom and kitchen . There was no cracks in the wall. There is no defect in the construction and fitting of windows. The OPs have not constrcted the structure against the approved lay out plan. The complainant filed false complaint. The other residents of the Colony of the complainant sent complaint to the Collector, Korba in which signature of some occupants are present. The complainant has filed copy of letter dated 25.09.2017, which was sent to Collector, Korba. In the said letter, Keshav Singh Sengar, Santosh Kumar Rajput, Jagram Rathore, Sharad Sharma, Hemant Kumar Mahre and Anita Sonwani, put their signatures, but they again sent letter to the Collector, Korba and in the said letter they // 19 // specifically pleaded that the construction done by the builder is good and they are satisfied with the quality of the construction and some persons unnecessarily made complaint to the Collector. The complaint made by the complainant is false. Hemant Kumar Mahore, Sharad Sharma Keshav Singh Sengar, Santosh Kumar Rajput have signed the above letter and separate letters were also sent to the Collector, Korba by Keshav Singh Sengar, Santosh Kumar Rajput, Jagram Rathore, Sharad Sharma, Hemant Mahore and Smt. Anita Sonwani that they are fully satisfied with the construction done by the OPs. It shows that the complainant filed false complaint against the OPs, therefore, the instant cmplaint is liable to be dismissed.
8. We have heard learned counsels appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
9. It is admitted fact that the complainant and her husband had purchased Plot No.A-502, Aanandam Apartment, Ward No.12, Sharda Vihar SECL By Pass Road, Korba (C.G.) and sale deed was executed in favour of the complainant and her husband. The complainant has filed Ex. B, which is Sale Deed, in which the name of purchaser is mentioned Smt. Jayanti Khunte (complainant) and Babulal Khunte, but this complaint has been filed by Mrs. Jayanti Khunte and she did not make party her husband Babulal Khunte, whereas he is also purchaser of the flat in question.
10. The complainant has filed Ex. A, which is copy of brochure of Adhiraj Aanandam. In the above brochure, the amenities which are to be provided, are mentioned which are :-
// 20 // "1. Grand Entrance Gate.
2. CC TV Surveillance in Campus and Commn area.
3. Intercom in all units.
4. Roof Top Community Center.
5. List for individual Tower.
6. Individual parking
7. Four sided inernal road.
8. Planned Drainage.
9. Elegant Lighting.
10. Plantation and Green Area.
11. Visitor Parking.
12. Kids Play Zone.
13. Colony Enclosed with Boundary Wall.
14. Adequate Water Supply.
15. Round the Clock securith with Guard Room.\
16. Temple.
17. Car wash area."
11. In the brochure, it is mentioned that Individual Parking will be provided to the purchasers, but it is not mentioned that Individual Parking Facility will be free of cost. The complainant has filed copy of MAP (Ex. B) in which it is mentioned "Open Parking 275.35 Sqm)". According to the complainant, the OPs, encroached the open area which is reserved for car // 21 // parking and illegally constructed a bunglow, but the same was denied by the OPs.
12. The complainant sent letter dated 11.09.2017 to the Collector, Korba, in which it is mentioned tht the builders have not constructed the building as per the plan shown in the brochure and have compromised in the layout plan by arbitrary changing the parking space for visitor car parking by illegally constructing a bungalow in the space reserved for visitor car parking.
13. The OPs have filed copy of letter dated 12.06.2017 issued by Municipal Corporation, Korba, which was issued under Rule 31(2). Vide letter dated 13.12.2013, permission was given to the builder by Deputy Director, Town and Country Planny, Korba (C.G.). The OPs have filed copy of leter sent by other occupants/residents of Aanandam Apartment in which they specifically mentioned that the builder had provided all facilities to the purchasers of the flats and they are fully satisfied.
14. The complainant herself has filed an application before this Commission for appointment of Commissionr for spot inspection of the premises and she prayed that the report be obtained by appointing Commissioner i.e. Engineer of Public Works Department or Engineer of Chhattisgarh Housing Board. The application of the complainant was allowed and Executive Engineer of Chhattisgarh Housing Board, Division - 1, Kabir Nagar, Raipur was appointed as Commissioner. The Commissioner was directed that inspection be done in presence of both the parties. The // 22 // Executive Engineer inspected the premises in presence of both the parties. The Commissioner submitted his report.
15. The Commissioner was appointed on the basis of application made by the complainant. The Aanandam apartment is situated at Korba and the Commissioner is posted as Executive Engineer, Chhattisgarh Housing Board, Division - 1, Kabir Nagar, Raipur therefore, he is an independent and uninterested person and his report is reliable and can be made basis for adjudication of the case. In para 3 of the Report, the Commissioer has specifically mentioned that he has not found that any illegal construction was made by the OPs and there was no obstruction in the main door of the apartment. Shri Poonamchand Agrawal, Executive Engineer, gave detailed report. In the report dated 24.03.2018, it is mentioned thus :-
"mijksDr fo"k;kUrxZr laUnfHkZr i= ds ek/;e ls izdj.k esa dfe'uj fu;qDr djrs gq;s eq>s oknxzLr edku dh oLrqfLFkfr ,ao fuekZ.k xq.koRrk vkfn ds laca/k esa ijh{k.k dj viuk tkap izfrosnu vkxkeh is'kh fnukad 27-03-2018 ds iw.kZ izsf"kr djus gsrq funsZf'kr fd;k x;k gSA ftlds ifjizs{; esa esjs }kjk mHk;i{kdkjksa ds mifLFkfr esa fnukad 22-03-2018 dks oknxzLr edku fujh{k.k fd;kA ftldk fcUnqokj Vhi fuEukuqlkj gS %& 1- ifjoknh }kjk vius ifjoknh dh dafMdk 04 esa mijksDr edku@Q~ySV esa ikfdZx lqfo/kk ugh gksus ds lac/k esa mYys[k fd;k gS fdUrq fujh{k.k ds nkSjku ik;k x;k fd Q~ySVl~ esa vuqeksfnr vfHkU;kl vuqlkj i;kZIr ikfdZx dh lqfo/kk miyC/k gSA 2- ifjoknh }kjk vius ifjokn dh dafMdk 8 esa mijksDr edku@Q~ySV fyfox :e@gky dh Nr ,oa ckgjh nhokyksa esa ikuh lhist gksus ds dkj.k fctyh ds cksMZ esa djaV vkus dh f'kdk;r dh xbZ gSA edku ds fujh{k.k esa ekewyh lhist ds dqN txg fu'kku // 23 // feys fdUrq cjlkr ugh gksus ds dkj.k bl laca/k izek.k ds vHkko esa Bksl fu.kZ; fy;k tkuk mfpr ugh gS fdUrq fn[k jgs fu'kku vLFkkbZ LoHkko ds gS tks ejEer ;ksX; gSA ifjoknh }kjk ;g Hkh dgk x;k fd fdpu vkSj csM:e esa yxh f[kM+dh lgh rjhds ls ugh yxkbZ xbZ gS] bl laca/k esa fujh{k.k esa ik;k x;k fd f[kM+dh yxkrs le; feL=h ls =qfV gqbZ gS ftls lq/kkj dj Bhd fd;k tk ldrk gSA csM:e dh f[kM+dh ds NTts ls ikuh dk fjlko gks jgk gS ;g Hkh f'kdk;r ifjoknh ds }kjk fd;k x;k gS fdUrq bldh dksbZ y{k.k ugh feyk gSA ifjoknh }kjk ;g Hkh dgk x;k fd czks'kj esa csM:e dh f[kM+dh ds mij vkj-lh-lh- NTtk fn[kk;k x;k gS fdUrq fcYMj }kjk ogka ij vk;ju Qzse ds mij IykfLVd lhV dk NTtk yxk fn;k x;k gSA bl laca/k esa tc czks'kj dk voyksdu fd;k x;k rks mlesa ,sls fdlh NTts dk fuekZ.k ugh fn[kk;k x;k gSA fujh{k.k esa mifLFkr fcYMj Jh uhjt iVsy }kjk bl laca/k esa iqNs tkus ij mUgksaus dgk fd Hkou ds ;kstuk cukrs le; =qfVo'k ;g NTtk NqV x;k Fkk ,oa bl NTts ds fcuk gh Hkou dk vuqKk@vuqeksnu lacaf/kr foHkkx ls izkIr mijkUr gh fuekZ.k fd;k x;k gS fdUrq fuekZ.k iw.kZ gksus ds i'pkr~ NTts dh vko';drk eglwl gksus ij rRdky Hkou esa vk;ju Qzzse ds mij IykfLVd lhV dk NTtk yxk fn;k x;k gS D;ksafd Hkou iw.kZ gksus ds i'pkr~ vkj-lh-lh- NTtk dk fuekZ.k fd;k tkuk laHko ugh gS tks vk;ju Qzse ds mij IykfLVd lhV dk NTtk yxk;k x;k gS og iw.kZ :i ls ,d vkj-lh-lh- NTts ds lerqY; gS ,oa muds vuqlkj ;g dk;Z rduhdh :i ls mfpr gSA 3- Ikfjoknh }kjk vius ifjokn dh dafMdk 11 esa ;g f'kdk;r fd;k x;k gS fd fcYMj }kjk xSj&dkuwuh rjhds ls ifjlj ds eq[; }kj ij vius Lo;a ds mi;ksx ds fy;s ,d caxyk cuk;k gS] fdUrq fujh{k.k ds nkSjku ,slk dksbZ fuekZ.k ugh feykA orZeku esa ifjlj dk eq[; }kj esa dksbZ ck/kk ugh gSA // 24 // 4- fujh{k.k ds nkSjku ifjoknh ds crk;k fd mDr ifjlj esa fcYMj }kjk 3 cksjosYl djok;s x;s gS fdUrq orZeku esa flQZZ ,d cksjosYl ls ikuh lIykbZ fd;k tk jgk gSA bl laca/k esa fcYMj Jh uhjt iVsy }kjk voxr djk;k x;k fd orZeku esa ifjlj esa fuokljr jgokfl;ksa dh de la[;k dks ns[krs gq;s flQZ 01 cksjosYl ls ikuh lIykbZ fd;k tk jgk gS ,oa ikuh lIykbZ esa dksbZ deh ugh gS vkSj blesa jgokfl;ksa dh la[;k c<+us ij vko';drkuqlkj vU; cksjosYl esa Hkh i;kZIr ikuh lIykbZ dh tk;sxhA 5- fujh{k.k ds nkSjku ifjoknh us crk;k fd mDr ifjlj esa fcYMj }kjk lHkh dejksa dh flfyax esa ih-vks-ih-@fMLVsaij djus dk Hkjkslk fnyk;k x;k Fkk fdUrq vkt rd ;g dk;Z ugh fd;k x;k gSA bl laca/k esa fcYMj Jh uhjt iVsy us dgk fd ifjoknh us muds Hkou ysrs le; ;g vuqjks/k fd;k Fkk fd oks dejks dh flfyax esa ih- vks-ih-@fMLVasij dk;Z ds LFkku ij QkYl flfyax dk dk;Z djok;sxk vkSj bl dk;Z esa tks O;; vk;sxk og ifjoknh ogu djsxk fdUrq Hkou ds oknxzLr gksus ds dkj.k fcYMj }kjk blesa vHkh rd dksbZ dk;Z ugh djok;k gS fdUrq Hkou ds okneqDr gksus ij og vius opu vuqlkj lHkh dejksa dh flfyx esa ih-vks-ih-@fMLVsaij dk;Z djok nsxkA 6- fujh{k.k ds nkSjku ifjoknh us fn[kk;k fd Hkou esa dbZ dejksa esa nhokyksa ij dqN njkjsa vk xbZ gSA fujh{k.k esa ik;k x;k gS fd dqN LFkkuksa ij nhokyksa esa njkjsa vk x;h gS tks vLFkkbZ LoHkko ds gS tks lq/kkj djus ds i'pkr~ ewy Lo:i esa yk;h tk ldrh gS ,oa blls Hkou dh etcwrh ,oa xq.koRrk esa dksbZ foijhr izHkko ugh iM+sxkA oknxzLr edku dh oLrqfLFkfr ,oa fuekZ.k xq.koRrk vkfn ds laca/k esa ijh{k.k dj ik;k x;k fd f'kdk;r es mYysf[kr deh;k vLFkk;h LoHkko dh gSA tks Hkou fuekZ.k ds le; dk;Z esa yxs feL=h@etnqj dh ekewyh ykijokgh ds dkj.k gqbZ gS] ftUgs ejEer dj ewy LoHkko esa yk;k tk ldrk gS ,oa blls Hkou dh etnwjh ,oa // 25 // xq.koRrk esa dksbZ foijhr izHkko ugh iM+sxkA vkt rd ejEer dk;Z ugh djkus ds laca/k esa tc fcYMj Jh uhjt iVsy ds dkj.k iqNk x;k rks mUgksus crk;k fd ifjoknh }kjk mudk yxHkx :
3]00]000@& Hkqxrku jksd fn;k x;k x;k gS ftl dkj.k mUgksaus ejEer dk;Z ugh fd;k gS rFkk vko'oklu fn;k x;k fd mijksDr Hkqxrku izkIr gksus ,oa Hkou ds okneqDr gksus ds i'pkr~ mDr dk;Z dks iw.kZ dj nsxkA vr% Jheku ds le{k oknxzLr edku ua 502 vkuane vikVZesaV okMZ 12 'kkjnk fogkj] dksjck dk LFky fujh{k.k izfrosnu vko';d dk;Zokgh gsrq lknj laizsf"kr gSA "
16. Looking to the Commissioner's report dated 24.03.2018, it is found that only some seepage are present in the Flat and some defects were occurred during fitting of the winodows, therefore, it is just and proper to direct the OPs to cure the defects in the flat, which are mentioned by the Commissioner in his inspection report. The rest of the reliefs, sought by the complainant is not acceptable, on the basis of Commissiner's report.
17. The Commissioner in his report, has specifically mentioned that there is sufficient space for car parking parking place is constructed as per approved layout, therefore, the contention of the complainant that OPs have illegally constructed bunglow in open space and car parking facility, is not provided, is not acceptable.
18. On the basis of complaint made by Mrs. Jayanti Khunte and others, the information was given by Building Officer, Municipal Corportaion, Korba (C.G.) under Right to Information Act, 2005 on 19.02.2018, in which it is specifically mentioned that after receiving the complaints from the owners of flat, spot inspection was done and during spot inspection, it was found // 26 // that the colonizer had completed internal development and construction was done according to the approved lay out and builder had constructed the houses in his own land, which is situated outside of colony area and the same was regularized by the competent authority.
19. The complainant has prayed for demolishing the illegal construction done by the OPs and has also claimed a sum of Rs.47,29,560/- against the OPs along with interest. The complainant is utterly failed to prove that any illegal construction was made by the OPs. The complainant is not able to prove that she suffered loss of Rs.47,29,560/- due to the OPs, therefore, the complainant is not entitled to get above reliefs.
20. The contention of the OPs is that the complainant has not paid a sum of Rs.3,00,000/-, therefore the defects in the flat in question were not removed. On the basis of the sale deed executed by the OPs in favour of the complainant and her husband, the above contention of the OPs, is not acceptable. In the sale deed, it is specifically mentioned that the OPs had received total consideration amunt from the complainant, therefore, the OPs are not entitled to adjust a sum of Rs.3,00,000/- from the complainant.
21. Looking to the Commissioner's Report, it appears that there is some defects in the fitting of windows, there is seepage in the wall and windows were not fitted properly, therefore, the OPs are liable to remove the defects, as mentioned by the Commissioner in his report.
22. Looking to the Inspection Report of Building Officer, Municipal Corporation, Korba (C.G.) and Commissioner's Report, it is established that // 27 // the OPs have not made any illegal structure / construction. The complainant is also completely failed to prove that the OPs made illegal structure. Therefore, the rest of the reliefs sought by the complainant, is not acceptable. The complainant is only entiled for relief of rectification of defects in the construction, as mentioned by the Commissioner in his report.
23. Therefore, the complaint filed by the complainant against the OPs, is partly allowed and it is directed that :-
(i) The OPs will cure the defects in the flat of the complainant, which are mentioned by the Commissioner in his report, within 2 months from the date of this order.
(ii) The rest of the reliefs sought by the complainant, are disallowed.
(iii) The OPs will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel) President Member Member Member 16 /05/2018 16 /05/2018 16/05/2018 16 /05/2018