National Consumer Disputes Redressal
Jmd Gardens Residents Welfare ... vs M/S Jmd Limited & 2 Ors., on 11 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 110 OF 2014 1. JMD GARDENS RESIDENTS WELFARE ASSOCIATION & 47 ORS., Through its President, Regd. Office: M-1201, JMD Gardens, Sector 33, Islampur, Sohna Road, GURGAON - 122018. ...........Complainant(s) Versus 1. M/s JMD LIMITED & 2 ORS., Through its Managing Director, JMD Regent Square, 3rd Floor, Mehrauli Gurgaon Road, GURGAON - 122002. 2. JMD Maintenance Services, JMD Regent Square, 3rd Floor, Mehrauli Gurgaon Road, GURGAON - 122002. 3. Director, Town & Country Planning Haryana Chandigarh, Ayozna Bhawan, Madhya Marg, Sector-18, CHANDIGARH - 160018. ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Complainant : Mr. Siddhartha Jha, Advocate For the Opp.Party : For the Opp. Parties Nos.1 & 2: Mr. Arjun Sawhney, Advocate
Mr. Nikhil Kapoor, Advocate
Mr. Rohan Bhambri, Advocate
For the Opp. Party No.3 : NEMO
(Ex-Parte, vide order dated 07.03.2018)
Dated : 11 Nov 2022 ORDER
1.Complainant No.1 is the registered Residential Welfare Association of residential complex, "JMD Gardens" located at Sector 33, near Subhash Chowk,Sohna Road, Gurgaon. Complainant No.1 filed this Complaint on behalf of its 47 members who are owners of residential Flats in "JMD Garden". Opposite Party No.1 is a real estate developer having Registered Office at 6, Devika Tower, Upper Ground Floor Nehru Place, New Delhi-110019 and Corporate Office at JMD Regent Square, 3rd Floor, Mehrauli Gurgaon Road, Gurgaon-122002. Opposite Party No.1 (hereinafter referred to as 'the Developer') who developed and sold the flats to the members of Complainant No. 1(hereinafter referred to as 'the Residents'). Opposite Party No.2 is the sister concern of Opposite Party No.1 and is engaged in the maintenance of JMD Gardens, having Registered Office at 6, Devika Tower, Upper Ground Floor Nehru Place, New Delhi- 110019 and Corporate Office at JMD I Regent Square, 3rd Floor, Mehrauli Gurgaon Road, Gurgaon-122002. Opposite Party No.3 is the Director, Town and Country Planning, Haryana, Chandigarh, office at Ayozna Bhawan, Madhya Marg, Sector, Chandigarh-160018. Building plans were sanctioned by the Opposite Party No.3, vide approval letter dated 22nd July 2005. Under Clause 2.3 of the Flat Buyer Agreement the construction of flats was to be completed within three and half years from the date of sanction of the building plans. The Residents were handed over possession of their respective flats on various dates between July 2010 and August 2012, with a delay of more than three years. The Complainants deposited a sum ranging from Rs.50 per square ft to Rs.70 per square ft in the form of a Contingency Fund. Further, the amount was stipulated as an interest free amount which the Complainant submits was per se illegal and there was no basis for charging such an interest free amount, against a demand which may or may not occur. Residents enquired with the concerned authorities and received confirmation from DTCP, Haryana that the final determination of the External Development Charges was already quantified in December 2004, which Opposite Party No.1 failed to inform them and also failed to return the excess money collected from the Residents. Further, Opposite Party No.1 in violation of clause 3.1 of the flat buyer's Agreement, included balcony in the calculation of super area. At the time of executing the sale deed, Opposite Party No.1 coerced the Residents to accept the amended definition of super area which included balcony. In addition to fraudulently misrepresenting the Super Area, Opposite Party No.1 started constructing new towers on the plot next to JMD Gardens. These towers were not in the project plan when the Residents booked respective flats in JMD Gardens. Opposite Party No.1 had, thus, encroached the original common area, in violation of the sanctioned building plan approved by DTCP, Chandigarh, Haryana. Every flat owner had an undivided interest in the common area and facilities and this arbitrary alteration of common area was in contravention to Section 6 (2) of The Haryana Apartment Ownership Act, 1983, which provided that the percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the Form of Declaration shall have a permanent character and shall not be altered without the consent of all of the apartment owners. Opposite Party No.1 had collected preferential location charges from the Residents of L and M block Towers of JMD Gardens, who purchased units in lower floors on the basis of the assurance given by Opposite Party No.1 that the front area will be an open area. However, after collecting preferential location charges Opposite Party No.1 started constructing new towers which had blocked air and sun light and caused inconvenience. At the time of taking possession of their respective flats, it was alleged that the quality of construction and services provided were of inferior quality to what had been promised by Opposite Party No.1. Most of the towers suffered from serious structural defects. Almost all the flats of every tower have seepage, since inception. The moisture and seepage caused deterioration of floor joints, beams, subflooring, insulation, and electrical-mechanical systems. The Residents had strong apprehensions that prolonged water logging will soften the soil and weaken its weight bearing capacity. Serious seepage under the foundation footer may erode soil and will cause the wall to drop or crack. The map plan shown by the Developer prior to construction, represented that servant room would be accessible from the kitchen balcony. However, no such access had been provided, which rendered the servant room unusable. The alterations were made without the consent of the Residents, causing extreme inconvenience to them. Even after multiple requests the Developer had not taken necessary steps to connect the servant rooms with the kitchen. The Developer charged a significant amount for various facilities and amenities like Amphitheater, School, Shopping Complex etc., as per the conditions of approval for the building plan granted by DTCP, Chandigarh, Haryana. These facilities, however, were not provided to the Residents. Opposite Party No.1 had taken a sum of Rs.50,000/- as Club Membership Fee from every Resident at the time of handing over possession. The said amount had not been transferred to the Complainant -Association, which was running the club. The interest free amount collected from all Residents is lying with Opposite Party No.1. Each flat owner had been assured full power backup of 6.25 KVA. Opposite Party No.1 had taken a sanctioned load which was significantly lower than the required and promised load. Further, Opposite Party No.1 had installed DG with capacity of only 2520 KVA in place of the required capacity of 3030 KVA. Accordingly the power produced by them is significantly lower than what was promised in the sales brochure. Opposite Party No.1 had promised Residents in the Sales Brochure that bathrooms would be fitted with bath tub and geyser. It was stated that the bathrooms were not as per the promised specifications. Opposite Party No. l had separately charged the Residents for parking slots; however, it had not included the right to parking in the conveyance deed of the flats. Further the lifts which were installed were not connected with intercom or any emergency hotline and also lifts were not maintained properly by Opposite Party No.1. The Automatic Rescue Devices (ARD) in the lifts was either not installed or was faulty. Fire Safety equipment installed by the Developer were non-functional and the Developer also had not installed Public announcement system (Public Addressing System) required to alert the Residents in the event of fire to evacuate the building. Some of the fire hoses were removed from the towers and being used by the workers of the Developer to carry water from one tank to another and the parks. There was severe rusting in the fire pipes and water seeped continuously through the same. Before handing over possession of the flats, Opposite Party No.1 coerced the Residents to sign a maintenance agreement with Opposite Party No.2, JMD Maintenance Services Private Limited. In spite of requesting for accounts, Opposite Party No.2 did not provide accounts of the maintenance expenses. As per the Haryana Apartment Ownership Act, the common area is owned by the Association of fiat owners and only they can authorize any agency to provide and collect maintenance agreement. The Complainant, vide legal notice dated 12.11.2013, highlighted the various defects and deficiencies in service with regard to 'JMD Gardens' and requested Opposite Parties No.1 and 2 to take steps within 15 days to rectify the deficiencies and also requested them to hand over the maintenance to Complainant No.1, after joint inspection of deficiencies. However, the Opposite Parties failed to take any steps to address the grievances of the Complainants. It was stated that after receiving the legal notice, the Developer had taken certain steps for rectification, however, the pace of the rectification work was very slow. The builder had not given any definite time line for rectification of the seepage. Aggrieved by the deficiency and unfair trade practice on behalf of the Opposite Parties, the Complainants filed the instant Consumer Complaint before this Commission with the following prayer:-
"8. Relief Sought In the facts and circumstances of the present case, the Complainant respectfully pray that this Hon'ble Commission may be pleased to grant the following reliefs paragraphs.
8.1 With respect to seepage direct the Opposite Party No. 1 to identify the cause of seepage and immediately take steps to rectify this structural defect within two months or in alternative the Opposite Party No. 1 should pay the Complainant Association an amount of Rupees Nine Crores and Fifteen Lakhs for it to take steps to rectify this defect. The Architect in his report has given estimation that this much amount will be required to rectify this defect. A copy of the Architect's report is annexed hereto and marked as Annexure-Q. 8.2 Direct the Opposite Party No l and 2 to pay every Resident the following amounts:
(i) Refund of the contingency deposit fund and extra EDC illegally collected from the Residents, with an interest at the rate of 18% per annum from the date of payment of the contingency deposit fund and EDC by the Residents. The Residents have also claimed compensation towards harassment and refund of higher charges paid towards maintenance and DG sets. The amount due to each Resident is reflected in the given chart which is annexed hereto as Annexure- R. 8.3 Direct the Opposite Party No. 1 to declare the actual carpet area and built-up area to the Residents and refile the Deed of Declaration with the Government in the manner prescribed.
8.4 Direct the Opposite Party No. 1 to pay the following amounts to the Complainant Association: (i) the amount charged from every Resident in name of security deposit for maintenance services with an interest of 18% from the date when such amount was charged. The principal amount itself is approximately Rupees Five Crores.
(ii) Transfer the sum of Rs.50,000/- charged from every Resident (total approximately Rupees Two Crores Fifty Lakhs) to the Complainant Association which was collected by the Opposite Party No. 1 in name of Club Membership Fee.
8.5 Direct the Opposite Party No. 1 to immediately provide facilities and amenities like amphitheater, community center, school, increase the sanctioned load from DHBVN and install additional DG sets to provide the promised power back up, water harvesting equipments, replace the current poor quality lifts with promised high-speed lifts, fire safety equipments as promised to the Residents at the time of booking of the flats 8.6 Direct the Opposite Party No. i to immediately stop the constructions of new towers on the plot next to the JMD Gardens and demolish the tower constructed opposite L and M Block since it will put further strain on the limited facilities available to the Residents and further alter the Super Area. The Opposite Parties should be restrained from selling the flats in the new towers and proceeds from any flat already sold should be given to the Complainant Association as compensation.
8.7 Direct the Opposite Party No. 1 to immediately remove the construction materials from the JMD Gardens at its own cost and its workers should immediately stop using the elevators for carrying the construction materials.
PRAYER In the light of above facts and circumstances it is most respectfully prayed that this Hon'ble Commission may be pleased:
To allow the reliefs sought in the paragraphs above.
ii) To pass such further order or orders as this Hon'ble Commission deem fit and proper for granting complete relief to the Complainant Association."
2. The Complaint was resisted by the Opposite Parties by filing written statement on the ground that the Complainant Association was not a 'Consumer' under section 2 (1) (d) of the Consumer Protection Act 1986, as the Complainant was not a voluntary Consumer Association as per Section-2 (1) (b) of the Consumer Protection Act. There are about 500 flats in the aforesaid project and this Association does not represent all the Residents/ unit Allottee of the project. It was contested that the Complainant had not approached this Commission with clean hands. The Complainant was guilty of 'supressio-veri,suggestion-falsi' as the Complainant had concealed the material facts and twisted certain facts. It was further stated that the Complaint was barred by limitation as the possession of the Flats was given during the years 2010, 2011 and 2012 and this Complaint was filed in 2014. The Complaint was also resisted on the ground that the Complaint included complicated questions of fact and this Commission did not have jurisdiction to entertain this Complaint and hence was not maintainable.
On merits, it was stated that the Complainants had taken possession of flats after inspection and satisfaction. They had also given affidavits in respect of their satisfaction. There was no defect in the plumbing work and the construction of the flats was of good quality. Opposite Party No.1 had taken EDC charges as applicable. All the allottees were provided super area as agreed in the Agreement. Club Membership Fee was charged from the allotees for making the club operational. Opposite Party No.2 was handling the maintenance effectively. The Complainants forcibly took possession of the maintenance. They are, therefore, not entitled for any compensation towards maintenance. Opposite Party No.1 had installed the DG Set commensurate to the agreed power back up. Opposite Party No.1 had provided the area as per Agreement. Opposite Party No.2 charged security deposit for the purpose of maintenance and Opposite Party No.2 was maintaining the flats properly. There is no question of refund of security deposit. There was no provision in the Agreement that the Club Membership Fee was refundable. Opposite Party No.1 had provided all amenities as per Agreement. Opposite Party No.1 had constructed two towers under License No.3 to 12 of 2005 dated 22.07.2005.
3. Heard the Learned Counsel for the Parties and carefully perused the record. The learned Counsel for the Complainant submitted that almost all the towers had problem of seepage and water logging since the inception because of structural defects and poor quality of construction. It had not only affected the value of the flats but also had structural and safety issues. It was argued that the Architect Report showed that the quality of plumbing work done in the complex was of inferior quality, resulting in seepage and would have damaging effect on the structure. Learned Counsel submitted that Complainant No.1 had engaged an Architect firm to evaluate the condition of the towers. The Architect firm in its report had noted various flaws in construction and had suggested various steps to deal with the problem of seepage. The report under the heading "Common Areas" has computed a figure of Rs.9.05 crores that would be required to deal with the problem of seepage of all the towers. At the time of offer of possession, the residents were forced by Opposite Party No.1 to pay Contingency Fund for potential increase in External Development Charges. This interest free amount at the rate of Rs.50 per sq. ft was around Rs.1 lakh for each resident. The residents were not told about any such funds at the time of booking of the flats and were informed about this charge only at the time of signing of flat buyer's agreement. It was further argued that the amount collected by Opposite Party No.1 towards the External Development Charges, apart from the Contingency Fund, was in excess to the amount deposited by Opposite Party No.1 towards the External Development Charges. Opposite Party No.1 collected the External Development Charges at the rate of Rs.90 per sq. ft. totaling Rs.9,34,32,060/- for all the residents and as per RTI response dated 17.5.2013 from Town and Country Planning Department, Haryana, the total sum deposited by Opposite Party No.1 with the Authority towards External Development Charges was only Rs.8,64,94,000 which comes to Rs.83.32 per sq. ft. Opposite Party No.1, therefore, was liable to return the excess amount with interest to the Complainant Association. Learned Counsel submitted that Opposite Party No.1 promised various facilities and amenities like additional DG sets to provide the promised power backup of 6.25 KVA per flat, Water Harvesting Equipment, Fire Safety Equipment, Amphitheater, Community Center at the time of booking of the flats. However, none of these facilities were provided. Learned Counsel further submitted that in direct contravention to Rule 3 of the Haryana Apartment Ownership Rules, 1987, requiring developers to disclose "built up area" in Form of Declaration, Opposite Party No.1 filed an improper Deed of Declaration Form and disclosed only "Approx. Super Area" in the sale. It was stated that Opposite Party No.1 cheated the Residents by subsequently changing the definition of Super Area. Clause 3.1 of the Flat Buyer's agreement did not have balcony in the definition of super area but was included in the sale deed. It was further submitted that Opposite Party No.1 coerced the Residents to sign a Maintenance Agreement with its sister concern/Opposite Party No.2. The total amount collected from the Residents as Interest Free Maintenance Security Deposit was approximately Rs.5 crores. Even the Maintenance Agreement which was for a period of 3 years had expired. The Residents requested Opposite Party No.2 several times to handover the maintenance to Complainant No.1 alongwith the Security Deposit. However, Opposite Party No.2 had not handed over the maintenance charge alongwith the Security Deposit to Complainant No.1 and is continuing under an expired Maintenance Agreement with increased maintenance charges. It was further argued that Opposite Party No.1 charged Club Membership Fee of Rs.50,000/- per head and had failed to return this amount to the Complainants. Opposite Party No.1 failed to provide the DG sets as promised to meet out the power back up. It was submitted that Opposite Party No.1 had collected preferential location charges from the Residents of L and M block Towers of JMD Gardens, who purchased units in lower floors on the basis of the assurance given by Opposite Party No.1 that the front area would be an open area. However, after collecting preferential location charges, Opposite Party No.1 started constructing new towers which had blocked air and sun light and caused inconvenience. The maintenance provided by Opposite Party No.2 was of extremely poor quality.
4. Learned Counsel for the Opposite Parties submitted that the facts of the Complaint were misleading, wrong and incorrect and therefore denied. It was submitted that the Complainant i.e., ''JMD Gardens Residents Welfare Association" was not a "Consumer" as defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 (hereinafter referred as 'Act') as it does not come under definition of 'Complainant' as defined under section 2(l) (b) of the Act. Learned Counsel also submitted that the Consumer Complaint was time barred as possession of the respective flats was handed over during 2010, 2011 and 2012 and the Consumer Complaint was filed in 2014. It was further submitted that the relief sought by the Complainants for damages, compensation on account of alleged deficiency in service and injunction against Opposite Party No.1 were not maintainable. The learned Counsel relied on the judgment of the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Union of India & another (2000) 6 SCC 113.
5. On merits, the Learned Counsel submitted that the Complainants had taken possession only after inspection and satisfaction of the quality and specification of the respective flats. They had given an affidavit to this effect. It was submitted that the Opposite Parties got Occupation Certificate of the aforesaid project & filed declaration as per terms of the Haryana Apartment Ownership Act 1983. It was wrong and incorrect that the quality of the plumbing work and construction in JMD Gardens was poor and most of the towers suffered serious structural defects or almost all the flats of all towers had a seepage issue since inception or there was seepage along the columns or in the basement or moisture and seepage had caused deterioration to floor joints, beams, subflooring, insulation, and electrical-mechanical systems. It was denied that the contingency fund was charged arbitrarily as per clause 2.4 of the Flat Buyer Agreement. Opposite Party No.1 derived its right to collect contingency fund as per the terms of licence No.3 to 12 of 2005 dated 22.07.2005, issued by DTCP Haryana. It was submitted that license No.3 to 12 of 2005 dated 22.07.2005 issued by the DTCP reflects that the External Development Charge was not final. It was further stated that determination of final EDC was yet to be made by the DTCP. Opposite Party No.1 had installed the DG Set commensurate to the agreed power back up. Learned Counsel submitted that all the allottees were provided super area as agreed in the Agreement. The Complainant Association wrongly alleged that Opposite Party No.1 had reduced the super area. Opposite Party No.2 charged security deposit for the purpose of maintenance and Opposite Party No.2 was maintaining the flats properly. There is no question of refund of security deposit. It was submitted that Opposite Party No.1 charged a sum of Rs.50,000/- as Club Membership Fee from every Resident at the time of handing over possession. This amount was utilized to construct and make the club operational. Opposite Party No.1 had provided all amenities as per Agreement. Opposite Party No.1 had constructed two towers under License No.3 to 12 of 2005 dated 22.07.2005. Learned Counsel submitted that the Opposite Party No.1 provided all amenities as per Agreement.
6. Learned Counsel submitted that Opposite Party No.1 taken PLC in terms of the Agreement. Opposite Party No.2 was handling the maintenance effectively. Complainant Association forcefully took the maintenance charge from Opposite Party No.2. The Learned Counsel rested the argument in denial of all the allegations in the Complaint and prayed for the dismissal of the same with litigation cost.
7. Facts of the case are that Opposite Party No.1 developed and sold the flats to the members of Complainant No.1. Under Clause 2.3 of the Flat Buyer Agreement, the construction of flats was to be completed within three and half years from the date of sanction of the building plans. The residents were handed over the possession of their respective flats on various dates between July 2010 and August 2012. The dispute is that the Developer, contrary to clause 3.1 of the flat buyer's agreement, included balcony in the super area and encroached the original common area by constructing new towers, in violation of the sanctioned building plan approved by DTCP, C+ handigarh, Haryana. It was also disputed that quality of construction and services provided were of inferior quality and not as promised. It was alleged that the most of the towers were suffering from serious structural defects and almost all the flats of all towers have seepage issue since the inception. It was also disputed that the map shown by the Developer to the Residents prior to the construction, represented that the servant room would be accessible from kitchen balcony. However, no such access had been provided, which rendered the servant room unusable. The Opposite Party promised in the Sales Brochure, that bathrooms would be fitted with bath tub and geyser. It was stated that the bathrooms of the flats allotted to the Residents were not as per the promised specifications. The Developer had charged a significant amount of money for various facilities and amenities like amphitheater, School, Shopping Complex etc., as per the conditions of approval for the building plan granted by DTCP, Chandigarh, Haryana. However, these facilities were not provided to the Residents. The Complainants deposited an interest free sum ranging from Rs.50 per square ft to Rs.70 per square ft in the form of a Contingency Fund for any potential increase in External Development Charges. The same had not been returned after the External Development charges were fixed. Opposite Party No.1 had taken a sum of Rs.50,000/- as Club Membership Fee from every Resident at the time of handing over possession. The said amount had not been transferred to the Complainant i.e., the Residents Welfare Association who is running the club. Further it was alleged that Opposite Party No 1 had installed DG set with capacity of only 2520 KVA in place of the required capacity of 3030 KVA, accordingly the power produced by them was significantly lower than what was promised in the sales brochure. Further the lifts which were installed were not connected with an intercom line or any emergency hotline and also lifts are not maintained properly by Opposite Party No.1. The Automatic Rescue Devices (ARD) in the lifts was either not installed or faulty. It was stated that the Fire Safety equipment installed by the Developer in the 'JMD Gardens' were nonfunctional and the Developer had also not installed Public announcement system (Public Addressing System) required to alert the Residents in the event of fire to evacuate the building. There was severe rusting in the fire pipes and water seeps continuously through the same. Before handing over possession of the flat, Residents signed a maintenance agreement with Opposite Party No.-2, i.e., JMD Maintenance Services Private Limited, who failed to provide accounts of the maintenance expenses. As per the Haryana Apartment Ownership Act the common area is owned by the association of the flat owners and only the association of the flat owners can authorize any agency for maintenance. It is not disputed that the Complainant Association, vide legal notice dated 12.11.2013, highlighted various defects and deficiencies in service with regard to 'JMD Gardens' and requested Opposite Party No.1 and 2 to rectify the deficiencies and also hand over the maintenance to Complainant No.1. The Opposite Parties failed to take any steps to address the grievances of the Complainants.
8. Regarding limitation, it can be seen from the record that the Complainant sent legal notice on 12.11.2013 to the Opposite Parties to redress the grievance of the Complainants regarding seepage in basements, alteration in structure of flat, malfunctioning of lifts and fire system etc. The present Complaint was filed on 21.04.2014 before this Commission, well within the limitation period prescribed under Section-24a of the Consumer Protection Act, 1986. The defects and deficiencies in service for which the instant complaint has been filed is continuous in nature and still subsists and therefore the cause of action is continuing.
9. The Opposite Parties also contended that the Complaint contained complicated facts and it cannot be adjudicated in a summary proceeding under Consumer Protection Act, 1986. Hon'ble Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil) 7228 of 2001 observed as follows:
"It cannot be denied that Fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Fora have been established and conferred with the jurisdiction in addition to the conventional Courts. The principal object sought to be achieved by establishing such Fora is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved."
10. From the facts and circumstances of the case, it is seen that there are no complicated questions of fact and law involved in this case, which cannot be decided by this Commission. Moreover, as held above by Hon'ble Supreme Court, involvement of some questions of fact and law cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved. This Commission is, thus, competent to adjudicate the instant Consumer Complaints. Hon'ble Supreme Court in Sobha Hibiscus Condominium vs Managing Director, M/S. Sobha on 14 February, 2020 held as follows:
11. The Complainants alleged that the quality of construction and maintenance in JMD Gardens was extremely poor and most of the towers were suffering from serious structural defects. The plumbing work was also alleged to be defective. In this regard, it is relevant to note that this Commission, vide order dated 11.03.2016, appointed Mrs. Rumnita Mittal, Former Member of Delhi State Commission as a Local Commissioner to inspect the Flats in question at JMD Garden. The Local Commissioner along with the Architect inspected the Flats at JMD Garden on 25.04.2016 and submitted Inspection Report along with the Architect Report on 02.05.2016.
"It was observed that there was rampant seepage along the stairs as well as almost all over the roof of the basement with drain water pipes dripping at several points resulting in formation of puddles on the floor of the basement. The surface of the floor appeared to have been eroded on account of water seepage. Almost all the lift shafts were full of seepage. The drainage pipes as well as water troughs hung to catch rain water were rusted. The fire pipelines and sprinklers in the basement under tower J, I, L, M & P were punctured and leaking.
The lifts installed were of inferior quality and reflected poor maintenance as the number of panels of the lifts were broken in place and further when we took a ride in the lift to go on the upper floors, there were jerky moments, not only that but the door of the lift did not open wide enough for alighting and had to be forced open. Several lifts were also out of order not were there any safety equipments in the lifts.
Thus, a bird's eye view of the whole complex gives an impression of poor quality of workmanship and maintenance. The above facts are also borne out from the detailed technical report of the Architect annexed as Annexure (A), photographs numbering 1 to 71 annexed with this report as Annexure (B) as well as the presence sheet prepared on the spot is Annexure (C)."
Apart from the above, the Architect also observed that plastering had not been done on brick walls at various places specially the shafts. Almost all the plumbing shafts were un-plastered, due to which the seepage was even more. It was also observed by the Architect that concrete had come out at some locations, exposing the reinforcement. Regarding electrical work, the Architect observed that at many places the electrical wires and cables were put in a very haphazard way. Some of the joints of electrical wire were left open, which were dangerous. Regarding firefighting system, the Architect observed that the pipes had been repaired at some locations by welding. The repairing was not done properly. At many places due to seepage of water, the firefighting pipes were rusted. Regarding external development, it was observed that the external development was in a very bad shape and the maintenance was very poor. I was also observed that the soft water tank placed in the pump room was damaged from the bottom due to which lot of water was getting waster. The maintenance of the transformer was poor. Due to lack of proper cooling system for the transformer, the doors of the transformer cover were kept open making it prone to accident. There was no provision to restrict the entry in the transformer room, which could lead to fatal accident.
12. The Local Commissioner as well as the Architect observed that there was poor quality of workmanship and maintenance. The allegation of the Complainants, thus, stands proved. Opposite Parties are accordingly directed to remove the deficiencies pointed out by the Local Commissioner in its report dated 27th May, 2016. Moreover, since the report of the Local Commissioner relates way back to the year 2016, the Opposite Parties are also directed to do joint inspection of the deficiencies and maintenance work alongwith representatives of the Complainant Association and remove the same and submit the expert report to the Complainant Association.
13. Regarding contingency fund which was charged by the Opposite Party No.1, it is relevant to mention that this Commission, vide order dated 19.03.2021, sought certain clarifications from the Parties. Opposite Parties Nos.1 & 2 in their reply dated 16.08.2021 admitted that they had charged contingency fund @ Rs.50/- per sq. ft. interest free refundable/adjustable security in terms of Clause 2.4 of the Builder Buyer Agreement. In this regard, Clause 2.4 of the Builder Buyer Agreement is relevant, which reads as follows: -
"... Pending determination of charges, the Flat/Apartment Alottee(s) shall pay as interim measure by way of Contingency Deposit an interest free refundable/adjustable security of Rs.50/- per sq. ft of the super area which will be refundable/adjusted on final determination of the External Development Charges by the Director, Town and Country Planning, Haryana and any excess or shortfall thereof shall be to the account of the Flat/Apartment Allottees. The Contingency Deposit shall continue to be available to the Company till the date of its utilization/refund as aforesaid."
From the above, it is seen that the Opposite Parties have charged Contingency Deposit interest free refundable/adjustable security of Rs.50/- per sq. ft. of the supper area in terms of clause 2.4 of the Builder Buyer Agreement. There is no ambiguity or violation of the terms & conditions of the Builder Buyer Agreement regarding contingency deposit interest free security. The Complainants are, thus, not entitled for any interest on the said security deposit. As far as transfer of the contingency fund in the name of the Complainant Association is concerned, as per clause 2.4 of the Agreement the same was to be transferred in the name of the Complainant Association after final determination of the external development charges. Admittedly, the final determination of charges had been done by the concerned Authorities. Opposite Party No.1 is, therefore, directed to transfer the entire contingency fund in the name of the Complainant Association.
14. The Complainants submitted that the Opposite Party No.1 charged Rs.9,34,32,060/- towards external development charges and the total sum deposited by Opposite Party No.1 with the concerned Authorities towards external development charges was Rs.8,64,94,000/-. It was submitted on behalf of the Opposite Parties that Opposite Party No.1 had charged Rs.846.720 lakhs from the allottees. It is admitted on behalf of Opposite Party No.1 that the Authorities have charged Rs.869.975 lakhs towards external development charges. The Complainant Association is directed to submit the proof of payment of Rs.9,34,32,060/- with Opposite Party No.1. On submission of proof of payment, Opposite Party No.1 shall return the excess amount to the Complainant Association with interest @ 9% p.a. from the date of payment.
15. Opposite Party No.1 stated that they have installed the DG set as per the agreed power back up. The Complainants submitted that Opposite Party No.1 was to provide 6.5 KV DG set. On the contrary, Opposite Party No.1 stated that Complainant had not shown any provision under which 6.5 KV DG set was to be provided. In this regard, brochure filed by the Complainant is relevant which says "Power Back Up- 100% for common areas- 6.25 KVA Power Back up for each flat." The brochure of Opposite Party No.1 itself provided for power back of 6.5 KVA for each flat. Opposite Party No.1 is accordingly directed to provide 6.5 KVA Power Back up for each flat as promised by them in the brochure.
16. The Complainants also raised the issue of super area. It was stated that in clause 3.1 of the Builder Buyer Agreement, the definition of super area did not include the balcony. Opposite Party No.1, however, in clause 4 of the sale deed included the balcony in the definition of the super area and thereby decreased the total super area of the flat. In this regard, clause 3.1 of the Builder Buyer Agreement reads as follows: -
"THAT the Flat/Apartment Allottee(s) agrees that for the purpose of calculating the sale price in respect of the said Flat/Apartment, the super area shall be inclusive of covered area of the said Flat/Apartment, area under the periphery walls, area, under columns and walls within the said Flat/Apartment, half of the area of the wall common within other Flat/Apartment adjoining the said Flat/Apartment plus proportionate share of the service areas to be utilized for common use, and facilities viz. areas under stair case, circulation areas, walls, lifts, shafts, passages, corridors, lobbies, refuge a rea, stilts and the like."
Clause 4 of the Sale deed reads as follows: -
"THAT the Vendee agree that for the purpose of calculating the sale price in respect of the Flat, the super area is inclusive of covered area of the said Flat, area under the periphery walls, area under columns and walls within the said Flat, half of the balcony area plus proportionate share of the service areas to be utilized for common use, and facilities viz. areas under stair case, circulation areas, walls, lifts, shafts, passages, corridors, lobbies, refuge area, stilts and the like."
17. Joint reading of the aforesaid clauses makes it clear that in the Builder Buyer Agreement the area of balcony was not included in the super area and Opposite Party No.1 had included the same in the Sale Deed. This Commission, vide order dated 19.03.2021, directed the Parties to clarify whether the super area included balcony also. Opposite Parties Nos.1 & 2 stated that the flats had super area of 1875 sq. ft. having built up of 1549 sq. ft., which included the area of balcony. In the Builder Buyer Agreement, balcony is not included in the super area. Therefore, the contention of the Complainants relating to changing of definition of super area stands proved. Accordingly, Opposite Party No.1 is directed refund the price collected towards that area.
18. Regarding maintenance, Opposite Party No.1 stated that the Complainant Association had forcefully taken over the maintenance on 20.12.2020. As observed in the preceding paragraphs as also by the Local Commissioner and the Architect, the maintenance by Opposite Party No.1 is very poor, Opposite Party No.1 was directed to handover the maintenance to the Complainant Association. Opposite Party No.2 is accordingly directed to transfer the maintenance amount charged from the allottees in the name of Complainant Association.
19. On club membership fee, Opposite Party No.1 submitted that the club membership fee was non-refundable. The club membership was optional and the allottees who paid the said fees, were made members of the club by Opposite Party No.1. In this regard, clause 47 of the Builder Buyer Agreement reads as follows: -
"That the Flat/Apartment Allottees may become the members of the State of Art in-house club, Health club and the swimming pool on payment of fees and charges as may be applicable. The club shall be managed by the Company and/or its nominated agency. The Flat/Apartment Allottee shall not interfere in the same. IN all cases, the ownership of the club, its equipment, building and construction and rights in the land underneath shall continue to vest in the Company irrespective of the fact that its management is with the Company or its nominee appointed for the purpose. The Flat/Apartment Allottee would be entitled to avail the club facility/services as per rules and regulations of the club."
20. From the above, it is clear that the club membership was optional. It is nowhere mentioned that the club membership fee was refundable. Opposite Party No.1 stated that the allottees who paid the club membership fee were made member of the club and admittedly the Complainant Association is running the club since 19.07.2013. In absence of any provision for refund, asking for refund of club member fees by the Complainants is not justified. The prayer is, therefore, rejected.
21. This Commission, vide order dated 19.03.2021 sought clarification regarding construction of School, Dispensary and community centre as per approved plan of DTCP, Haryana. The Complainants stated that Opposite Party No.1 had constructed the School. They, however, failed to provide the facility of dispensary and community centre. Admittedly, as per approved plan of DTCP, Haryana, School, dispensary and community centre were to be constructed by Opposite Party No.1. Opposite Party No.1, however, has not given specific reply to the said clarification. They only submitted that all amenities as per license/approved building plan of DTCP, Haryana have been provided. If the dispensary and community centre have not been constructed, Opposite Party No.1 is directed to construct the dispensary and community centre as per approved plan of DTCP, Haryana.
22. The Complainants alleged that Opposite Party No.1 had constructed new towers on the plot next to the JMD Gardens illegally. It is admitted by Opposite Party No.1 that they had constructed the new towers as stated by the Complainants and the flats in these towers have already been sold. Opposite Parties had already clarified in paras 3.8 and 3.12 of their reply to the Complaint that the said towers were constructed only after issuance of additional license Nos. 3 to 12 by the Director, Town & Country Planning, Haryana dated 22.07.2005. The Complainants also failed to show any evidence that the land on which new towers had been constructed was shown as an open space and PLC was charged on that account. The allegation of the Complainants that Opposite Party No.1 constructed the towers illegally is, thus, without any basis and is accordingly rejected.
23. The fact, however, remains that Opposite Party No.1 had taken PLC from the allottees of L and M Block towers. Construction of new towers after collecting preferential location charges is illegal. Opposite Party No.1 is accordingly directed to refund the PLC collected from the allottees of L and M Block with interest @ 9% p.a.
24. In view of the above observations and directions, the Consumer Complaint stands disposed of alongwith all pending applications. There shall be no order as to costs. Opposite Parties are directed to comply the order within six months from the date of the order.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER