State Consumer Disputes Redressal Commission
Rajneesh Bhardwaj vs Sushma Buildtech Limited on 3 September, 2024
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 298 of 2023 Date of Institution : 31.10.2023 Date of Decision : 03.09.2024 Rajneesh Bhardwaj Ms. Divya Jyoti Both residents of flat No.104 Sushma Crescent Zirakpur. ......Appellants/Complainants V e r s u s Sushma Buildtech Limited office address Unit No.107, 1st floor Business Complex Elante Mall, Industrial Area Phase I, Chandigarh 160002 through its Manager/authorized signatory/officer incharge/ Director Sales and Marketing. The Executive Officer, Municipal Council Zirakpur off. Address 403 Gaushala Road Zirakpur. The Chief Administrator, Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, Mohali. The Chairman Punjab Pollution Control Board Vatavaran Bhavan Nabha Road Patiala. District Town Planner Department of Town and Country Planning PUDA Bhawan SAS Nagar, Mohali. .....Respondents/opposite parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.PREETINDER SINGH, MEMBER
Present:- Sh. Sandeep Malik, Advocate for the Appellant.
Sh. Vishal Singal, Advocate for Sh. Sanjeev Sharma, Advocate for respondent No.1.
Sh. Rakesh Verma, Advocate for respondent No.2.
Sh. Pratyush Sood, Advocate Proxy for Ms. Swati Dayalan, Advocate for respondent No.3 - on VC.
None for Respondent No.4.
None for Respondent No.5.
PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The complainants (appellants in this appeal) by way of filing this appeal are seeking modification of the relief already awarded to them, vide order dated 21.09.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.155 of 2021. Following relief has already been granted by the District Commission while allowing the said consumer complaint:-
"...In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OP No.1 is directed as under:-
to refund Rs.4,00,000/- (paid by complainants as PLC charges to the opposite parties) to the complainants with interest @9% P.A. from the date of payment till onwards.
to pay Rs.20,000/- to the complainants as compensation for causing mental agony and harassment to them;
to pay Rs.10,000/- to the complainants as costs of litigation.
This order be complied with by the OP No.1 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
Complaint against rest of the OPs stands dismissed..."
Before the District Commission it was the case of the complainants that they booked flat No.104 with the opposite parties, against which allotment letter Annexure C-1 was issued by opposite party no.1 on 15.6.2019. Total price of the flat was fixed at Rs.58,55,800/- including Rs.4,00,000/- as PLC. Buyer Agreement Annexure C-2 was executed on 30.6.2017. It was alleged that when the complainants visited the construction site it was found that there is Sewerage Treatment Plan (STP) plant just near their flat. The complainants sent numerous emails to the opposite parties for removal of the said STP plant but it was not done by the opposite parties. It was stated that the complainants took possession of the flat on 26.8.2019 and started living in it and noticed foul smell and gases from the said STP. The complainants even served legal notice upon the opposite parties in the matter but to no avail. It was stated that as per approved layout plan the location of STP was away from the flat in tower H but the opposite parties violated the conditions of approved layout plan approved by the department of Town and Country Planning, Municipal Council Zirakpur and GMADA. Hence consumer complaint was filed before the District Commission.
Opposite party no.1 in its reply while taking preliminary objection of maintainability and arbitration stated that the STP was already functional at the time of the booking of the flat in question by the complainants. The complainants had visited the site prior to booking and prior to execution of buyer's agreement and as such the location of STP plant was well in their knowledge. It was denied that the STP emits any foul smell or causes any noise pollution as the same has been constructed with the latest technology and on the other hand, is a state of art construction. The STP has been duly approved by the requisite authorities and confers to the highest standard of living as per the set parameters and is of highest standards. It is denied that the STP is constructed in violation of any law in force. Remaining averments made in the complaint were denied.
Opposite party no.2 in its reply stated that the complainants had purchased the flat in question from the opposite party no.1 and allotment letter was also issued by it. Opposite party no.2 has no role in the matter, and, therefore, complaint is not maintainable against it. Prayer was made for dismissal of the complaint against opposite party no.2.
Opposite party no.3 in its reply stated that the complainants have no locus standi to file the instant complaint against it because it is neither the promoter nor the developer qua the project in question. It was stated that there is no relationship of consumer and service provider between the complainants and opposite party no.3 therefore, the complaint being not maintainable against it is liable to be dismissed.
Opposite party no.4 did not turn up despite due service, hence it was proceeded against exparte vide order dated 15.6.2021.
Opposite party no.5 filed reply and stated that the Sushma Buildtech Ltd. project situated at village Gazipur, District SAS Nagar falls within the Municipal limits of Zirakpur which comes under the Department of Local Govt. Punjab. Opposite party no.5 has neither granted any kind of permission nor approved any layout plan of the project as this area does not come under the jurisdiction of opposite party no.5. However, thereafter, on 17.3.2023 when none appeared on behalf of opposite party no.5 for arguments, it was proceeded against exparte.
The contesting parties led evidence by way of affidavits and numerous documents before the District Commission.
The District Commission after hearing the contesting parties and on going through the material available on record, allowed the consumer complaint, in the manner stated above.
Hence this appeal has been filed by the appellants/complainants seeking modification of the relief already granted by the District Commission.
Record of the District Commission has been requisitioned.
None appeared on behalf of respondents no.4 and 5 for arguments, and, accordingly, we have heard the counsel for the contesting parties and have scanned the entire record of this case.
Before this Commission also, the following grounds have been raised by the appellants/complainants:-
that the District Commission failed to pass any direction qua relocation of STP in question; and that a very meager compensation has been awarded by the District Commission for the mental agony and harassment suffered by the appellants/complainants, qua installation of STP near their flat.
First coming to the issue raised by the appellants/complainants qua location of STP, it may be stated here that admittedly, the unit in question stood allotted to the appellants/complainants vide letter dated 19.06.2017, Annexure C-1 and Apartment Buyer's Agreement, Annexure C-2 was executed between the parties on 30.06.2017. It is also not in dispute between the parties that an amount of Rs.4 lacs stood received by the respondent no.1 from the appellants/complainants, as Preferential Location Charges (PLC) on the ground that the unit in question is Preferential Located. From this fact alone, it is established that the appellants/complainants had chosen the said unit, with the hope that the same will be surrounded by lush green area/other amenities, for which he has paid excess amount in the shape of PLC. However, what to speak of Preferential Location, it was found that STP was installed just in front of the unit in question, which started emitting foul smell and heavy sound from its motor.
At the time of arguments, when we put a specific query to counsel for respondent no.1, as to why STP was installed just in front of the unit in question, which infact was a preferential located unit, he tried to wriggle out of the situation, by placing reliance on the letter dated 23.9.2020, Annexure R-7, and contended that respondent no.1 had clarified to the Executive Officer, Municipal Council Zirakpur, Punjab; that initially the project in question was accorded permission to start construction for Towers A to I along with EWS Tower as the extension of the project (Tower J to O) was approved later on along with revised number of units of Tower "P"-EWS Tower in the year 2016 and that it was further clarified by respondent no.1 in this letter to respondent no.2 that it had initiated the revision of project plans for additional towers as well as partial completion of first phase and inadvertently missed out to revise the location of STP which was originally approved near Tower "A" to the correct location where the STP has been installed way back and operational since past almost couple of years. He further contended that thereafter, vide letter dated 9.12.2020, Annexure R-8, respondent no.2 considered the clarification given by respondent no.1 and issued Revised Plan, Annexure R-9 of the project qua location of STP near block 'H', which cannot be disputed by the appellants/complainants at this stage.
We have considered the submissions/contentions made by the counsel for the respondent no.1 and are of the view that the same does not merit acceptance, for the reasons to be recorded hereinafter. We have very carefully perused the original layout plan, Annexure C-8 placed on record by the complainants before the District Commission and found that the location of the said STP has been earmarked at the left corner of entry of the project in question i.e. totally opposite side of the unit of the appellants/complainants, as under:-
At the same time, in this original layout plan, Annexure C-8, shops have been shown to be built in front of the unit of the appellants/complainants and thus, it was based on this location that amount of Rs.4 lacs stood received by the respondent no.1 from them, as Preferential Location Charges (PLC). This original layout plan, Annexure C-8 has been signed by the competent Authorities, including the Assistant Town Planner, Municipal Council, Zirakpur on 18.12.2017.
It is significant to mention here that the unit in question stood allotted to the appellants/complainants vide letter dated 19.06.2017, Annexure C-1 and Apartment Buyer's Agreement, Annexure C-2 was executed between the parties on 30.06.2017 and possession of the said unit stood delivered to the appellants/complainants on 26.08.2019. Under these circumstances, the act of respondents no.1 and 2 by revising the layout plan Annexure R-9 vide letter dated 9.12.2020, Annexure R-8 and relocating the STP near the unit of the appellants/complainants, especially, when the unit was sold, based on the promise that it was preferentially located, certainly amounts to unfair and restrictive trade practice.
The appellants/complainants had purchased their unit with the expectation of a superior living environment due to the preferential location, yet the sudden introduction of an STP in proximity to their home severely disrupted their living conditions. The STP's relocation has definitely deteriorated the quality of life of the appellants/complainants. Instead of enjoying a clean, green, and peaceful environment with nearby markets and parks, the appellants/complainants were subjected to the constant disturbance caused by the STP. The noise from the motor, combined with the foul odor emitted by the plant, became a source of continuous discomfort and stress for the residents. This situation highlights the breach of trust and the failure of the respondent no.1 to deliver what was initially promised. The appellants/complainants were entitled to believe that the preferential location they paid extra for would enhance their living experience, not degrade it. The unauthorized modification of the layout plan and the subsequent adverse impact on the living environment of the appellants/complainants amounts to a deliberate act of misrepresentation, thereby constituting unfair trade practices as defined under consumer protection laws.
Thus, in light of the unique facts and circumstances surrounding this case, this Commission is of the considered opinion that issuing appropriate directions to respondent no. 1 to dismantle and relocate the STP to its originally designated location, as depicted in the original layout plan (Annexure C-8), would serve the ends of justice. Restoring the STP to its original location is not merely a corrective measure but a necessary action to rectify the harm caused by the respondent no.1 unilateral and unjustified alteration of the layout plan. Such a directive will not only address the immediate grievances of the appellants/complainants but also sets a precedent emphasizing the importance of adhering to contractual obligations and ensuring that purchasers receive exactly what was promised. In doing so, this Commission reinforces the principles of accountability, transparency, and fairness in dealings between consumers and service providers.
Now coming to the compensation to the tune of Rs.20,000/- awarded by the District Commission for the mental agony and harassment suffered by the appellants/complainants, qua installation of STP near their flat, it may be stated here that this Commission cannot lose sight of the fact that the appellants/complainants have suffered a lot of mental agony and harassment in the matter, because their hopes would have definitely dashed to the ground when they came to know that the STP has been installed near their flat. As stated above, the appellants/complainants had purchased their unit with the expectation of a superior living environment due to the preferential location, yet the sudden introduction of an STP in proximity to their home severely disrupted their living conditions, which has definitely deteriorated their quality of life because instead of enjoying a clean, green, and peaceful environment with nearby markets and parks, they were subjected to the constant disturbance & nuisance caused by the STP. Thus, in view of peculiar facts and circumstances of this case, we are of the considered opinion that compensation to the tune of Rs.20,000/- is on the lower side and the same is enhanced to Rs.1.50 lacs.
For the reasons recorded above, this appeal stands partly allowed. The order impugned dated 21.09.2023 passed by the District Commission in consumer complaint bearing no.155 of 2021 is modified. Accordingly, respondent no.1/opposite party no.1 is directed as under:-
To dismantle and relocate the STP in question, to its originally designated location, as depicted in the original layout plan (Annexure C-8) within a period of 3 months from the date of receipt of a certified copy of this order failing which it shall be liable to pay penalty @Rs.300/- per day to the appellants/ complainants, till realization.
To refund to the appellants/complainants, an amount of Rs.4,00,000/-, paid by them as PLC charges with interest @9% P.A. from the date of payment onwards, as already awarded by the District Commission, within a period of 30 days from the date of receipt of a certified copy of this order failing which the said amount shall carry penal interest @12% p.a. from the date of default, till realization.
To pay Rs.1.50 lacs to the appellants/complainants as compensation for causing mental agony and harassment to them and also Rs.50,000/- as litigation expenses, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, it shall be liable to pay the these amounts, alongwith interest @12% p.a. from the date of default till realization.
Before parting this order, it is pertinent to highlight an observation made by this Commission regarding a concerning trend that has come to our attention. It has been noticed that competent authorities, such as GMADA, Municipal Councils, and similar regulatory bodies, frequently permit changes or revisions to the original layout plans of residential projects after they have been launched and sold to the general public. These alterations are often initiated at the request of builders and developers but are carried out without any notice or consultation with the home buyers or allottees who have already invested in the project based on the initial layout. Such practices not only undermine the trust of the home buyers but also violate the principles of transparency and fairness and are detrimental to the interests of home buyers/consumers. When a residential project is marketed and sold based on a specific layout plan, any subsequent changes should not be made arbitrarily or unilaterally. It is crucial that the authorities recognize their responsibility to protect the interests of the home buyers, who have made significant financial commitments based on the original plan.
In this regard, it is imperative for the competent authorities to take proactive steps to ensure that any proposed revisions to the layout plan are carried out with the full knowledge and involvement of the affected home buyers or allottees. Specifically, before granting approval for any such changes, the authorities should obtain a comprehensive list of all the home buyers and allottees of the residential project from the concerned builder/developer and issue formal notices to each of them, clearly outlining the proposed changes and inviting their objections or concerns and only thereafter approve such changes only after thorough consideration of the feedback or objections received from the home buyers, ensuring that their rights and expectations are not unfairly compromised. This approach will not only uphold the rights of the consumers but also reinforce the accountability of builders, developers, and regulatory bodies in safeguarding the interests of home buyers. Allowing changes without following this due process undermines the very essence of consumer protection and can lead to prolonged disputes and dissatisfaction among home buyers, who are left with no recourse after investing their hard-earned money. In conclusion, this Commission strongly urges all relevant authorities to adopt a more transparent and participatory approach when dealing with any proposed alterations to layout plans of residential projects. The duty of care towards the home buyers and the need to maintain fairness and equity in real estate transactions should always be paramount.
Certified copies of this order be sent to the parties, free of charge, forthwith, and one copy be placed in the District Commission file.
Certified copy of this order be also sent to the Chief Secretary to the Government of Punjab and Chandigarh, free of charge, forthwith.
The concerned files be consigned to Record Room, after completion and the record of the District Commission, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.
Pronounced 03.09.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PREETINDER SINGH) MEMBER Rg