National Consumer Disputes Redressal
Vineyyard Meadows Villa Owners ... vs Hebron Developers (P) Ltd. on 5 March, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 729 OF 2015 1. VINEYYARD MEADOWS VILLA OWNERS ASSOCIATION Represented by its Secretary, Mr. Subash Gopalakrishnan, S/o. Gopalakrishnan, Vineyard Meadows, Nadama East, Thripunithuru, Kochi - 682 301. ...........Complainant(s) Versus 1. HEBRON DEVELOPERS (P) LTD. (THROUGH ITS M.D.-MR. ALEXANDER DANIAL) REGD. OF. AT NO. 74/4/ ADDE VISWANATHA PURA, ARAKARE P.O., RAJANKUNTE, BENGALORE-561203 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mrs. Resmitha R. Chandran, Advocate For the Opp.Party : Mr. Rajendra Beniwal, Advocate Dated : 05 Mar 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The OP namely Hebron Developers (P) Ltd., previously known as Vineyard Developers Pvt. Ltd. entered into an agreement with several land owners for development of the said land and construction of the villas thereon. The case of the complainant is that as per the development agreement, the area of the common facilities and amenities was 1 Acre and 82 Cents. This is also the case of the complainant that the actual area provided by the OP for common facilities and amenities is only 1 Acre and 30 Cents. The complainant, which is an association of the villa owners, is therefore, before this Commission with the following prayers:
To grant compensation of Rs.5,00,00,000/- (Rupees Five Crores only) together with the interest at 6% per annum, to the members of the complainant association and their assignees from the date of development agreement till the realization from the opposite parties, To direct the opposite parties to provide the common facilities mentioned in the Annexure: C/6 (Colly.) executed by the opposite parties such as place area for kids, supermarket, health centre, internet centre, beauty salon, fishing area, private boating club and water treatment plant, within the compound wall of Vineyard Meadows to the members of the complainant association and their assignees.
To allow the cost of the proceedings to be recovered from the opposite parties, To grant such other relief/reliefs which are appropriate and incidental to this proceeding.
2. The learned counsel for the complainant states on instructions that the complainant is pressing only for compensation in respect of the loss of the land meant for common facilities and amenities, to the extent of 52 Cents.
3. The complaint has been resisted by the OP which has disputed the authority of Mr. Subhash Gopalakrishnan to institute this complaint and has also claimed that there is no privity of contract between it and the complainant association. The OP has also taken another preliminary objection that the complaint is barred by limitation. On merits, it is alleged that on one side of the whole property, there is a river and on the other side, there is a paddy field. A drainage canal is constructed by the Government on the opposite side of the river, for which a considerable area had to be set apart. It is alleged that a survey was conducted by revenue authorities in 2007 and the boundaries were reset. It is further alleged that similar shortcomings had taken place on the entrance portion of the compound fixed for the project and about 6 Cents on the entrance portion was set apart for outside parking in front of the entrance building. It is also alleged that by mistake, the area was wrongly mentioned in the agreement with 21 villa buyers but in the subsequent agreements, the area of the common facilities and amenities was stated to be 1 Acre and 40 Cents.
4. As far as the plea of limitation is concerned, admittedly the sale deed of the club house in favour of the complainant was executed on 17.12.2013. The cause of action to file the consumer complaint in respect of deficient area of the common facilities and amenities would obviously accrue at the time the said area is handed over to the association of villa owners. If the period of limitation is computed from December 2013, the complaint is within the prescribed period of limitation.
5. The next question which arises for consideration is as to how much is the actual area for common facilities and amenities which the OP has made available for the flat buyers. According to the complainant, the said area is 1 Acre and 30 Cents whereas as per the OP, the said area is 1 Acre and 40 Cents. The complainant has filed a survey report showing the said area to be 1 Acre and 30 Cents. No such report however, has been filed by the OP. Therefore, there is no reason to disbelief the survey report filed by the complainant and accordingly, I hold that the actual area of the common facilities and amenities is only 1 Acre and 30 Cents.
6. On merits, I find no force in the plea taken by the OP. The Government could not have constructed a canal on a private land which the villa buyers had handed over to the OP for development and construction of the villas. The learned counsel for the complainant states that in fact, the canal existed even prior to the agreement with the villa owners. Be that as it may, if the OP has failed to protect part of the land meant for common facilities and amenities, it is required to compensate the villa buyers for the loss of such land.
7. As far as the locus-standi of the Secretary of the complainant is concerned, a perusal of clause 36(f) of the By-Laws of the complainant association would show that the Secretary is authorized and competent to institute, prosecute and defend suits and other proceedings in which the association may be involved. The complaint having been instituted by the Secretary of the association, it has been instituted by a competent person. In fact, the person who has instituted the complaint has also been recognized by the OP as the Secretary of the association.
8. The next question which arises for consideration is as to what amount if any, the villa owners are entitled on account of loss of land admeasuring 52 Cents which was to be used for providing common facilities and amenities in the project. No evidence has been led by the complainant to prove the current market price of the said land. However, the development agreement would show that the OP had to provide common facilities and amenities @ Rs.2,65,000/- per cent. Therefore, the OP should pay at least Rs.2,65,000/- per cent for the deficient land on which common facilities and amenities were to be constructed.
9. For the reasons stated hereinabove, I hold that :
1) The villa owners are entitled to compensation amounting to Rs.1,37,80,000/- (52 Cents x Rs.2,65,000/-) from the OP.
2) Out of the aforesaid amount, the price for 10 Cents of the land amounting to Rs.26,50,000/- on which common facilities and amenities were to be constructed, will be paid equally to all the villa owners, whereas the price of the remaining 42 Cents on which common facilities and amenities were to be constructed, amounting to Rs.1,11,30,000/- will be divided amongst 21 villa owners with whom the OP had agreed to provide common facilities and amenities to the extent of 1 Acre and 82 Cents. The aforesaid amount shall carry interest @ 9% per annum from the date of filing of this complaint.
3) The payment in terms of this order shall be made within three months from today.
The consumer complaint stands disposed of.
......................J V.K. JAIN PRESIDING MEMBER