State Consumer Disputes Redressal Commission
L. Srinivasulu vs S. Narasimha Rao on 28 February, 2011
BEFORE THE A
BEFORE THE
A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.
1659/2008 against C.C. 29/2008 , Dist. Forum, Tirupathi
Between:
L. Srinivasulu, S/o. Suryanarayana
D.No. 6-8-496,
Irlanagar, Tirupathi. *** Appellant/
O.P. No. 2
And
1) S.
Narasimha Rao
S/o. S. Venkata Rao
3rd Floor, Plot No. 59
New Balaji Colony
AIR Bye-pass
Road
Tirupathi-2.
2) P.
Bharathi Kumar
S/o. Late P. Subbarama Naidu
Kothapalle (Nadimpalle) (V)
Mungilipattu Post
Chandragiri Mandal
3) M. Hari Kumar,
S/o. M. Changalraya Naidu
4) M.
Chitti, W/o. Hari Kumar
Both R/o. 8-164, 2nd floor
New Balaji Colony
Tirupathi.
5) A.
Narendra, S/o. Nagaraja Naidu
D. No. 1-3, Anantha Gurrappagaripalle (V)
Ayathepalle Post, Chandragiri Mandal
6) N.
Jayachandran,
S/o. Sahadevulu
No. 4-67/1, Indira Nagar
Piler, Chittoor Dist.
7) T. M. Raj
Kumar
S/o. T. Chinnaswamy
8) Smt. G.
Kalavathi
W/o. T. M. Raj Kumar
Both R/o. 19-8-16C
Hathiramji Colony
R.C. Puram, Tirupathi. *** Respondents/
Complainants
9) T.
Srinivasulu Reddy
S/o. T. Ramakrishna Reddy
No. 18-1-30/1, Santhinagar
K.T.
Road, Tirupathi. *** Respondent/
O.P.
No. 1
Counsel for the
Appellant: M/s. I. Mammuvani.
Counsel for the
Respondents: Paper
publication
CORAM:
HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT. M. SHREESHA, MEMBER.
MONDAY, THIS THE TWENTY EIGTH DAY OF FEBRUARY TWO THOUSAND ELEVEN
ORAL
ORDER:(Per Honble Sri Justice D.Appa Rao, President.) ***
1) This is an appeal preferred by Opposite Party No. 2 against the order of the Dist. Forum directing him to install lift, motor system for lift, lay borewell with submersible pump set and acquire site for drainage system already provided , pay Rs. 10,000/- each to complainant Nos. 1, 2, 6 to 8 towards compensation, and Rs. 1,000/- each to complainant Nos. 1,2 and 6 to 8 towards costs.
2) The parties are described as arrayed in the complaint for felicity of expression.
3) The case of the complainants in brief is that R1 is the land owner, and R2 is the builder.
The complainants have purchased apartments from them under registered sale deeds dt. 9.8.2006, 26.2.2007 and 26.4.2007 and have been in possession ever since. However, they did not provide drainage system, parking place, place for operating lift system, separate toilet and room for watchman, and painted the building. They learnt that there was no approval from Tirupathi Urban Development Authority (TUDA). They claimed the amount towards penalty to be paid by them for regularising the construction. On that they issued notice for which no reply was given. By virtue of clause 5 of the sale deed if there were any defects both of them had agreed to indemnify the loss or damage sustained by them. While sanction was accorded for G+2 however they constructed G+4 violating the rules. Though in the sale deeds there was a mention that approvals have been made by the Grampanchayat and TUDA however, it was found that there was no such approvals. This amounts to unfair trade practice and therefore they filed complaint claiming Rs. 15 lakhs towards deficiency in service and Rs. 4 lakhs towards unfair trade practice besides correcting the above deficiencies pointed out.
4) R2 filed written version resisting the case which was adopted by R1. While denying various averments made in the complaint, he alleged that he constructed a group housing residential building under the name and style of Raghava Enclave on the land of R1, after obtaining necessary approvals from Grama Panchayat, M.R. Palle, Tirupathi. As per the terms of agreement of sale after constructing the apartments they were delivered to them. They have been in possession for the last nine months. Later they have also executed registered sale deeds. Originally they had taken approval for construction of G+2. Only after the government has issued G.O. for regularisation of building plans they have approached for regularization of 3rd and 4th floors for which he paid Rs. 45,000/- through cheque dt. 31.3.2008 for flat Nos. 302, 401, & 402 of 3rd complainant. For that reason owners of flat Nos. 301, 201, G1 & G2 were not impleaded as parties. He purchased a strip of land 13 x 43 to serve as a passage to the flats of the complainants. He dug two bore wells one for apartment owners and the other was provided in the site of wife of R1. He also provided water tap connection from Grama Panchayat and constructed water sump for storage of water with submersible pump. There was no stipulation for construction of lift, , watchman room and common toilet, and motor system. In fact he had provided parking place exclusively for two wheelers. He did not agree for providing car parking area. As per clause 10 of the agreement upon taking possession of the flat they have no claims against them for any defect. They were not consumers. In fact complainants have to pay the following amounts.
S.No. Description Amount due.
11st complainant 4,00,000/-
22nd complainant 5,25,000/-
33rd & 4th complainants 3,50,000/-
45th complainant 3,50,000/-
56th complainant 20,000/-
67th & 8th complainants 3,75,000/-
Total 20,20,000/-
When he demanded for payment of amount, in order to evade payment and black mail him they filed this complaint. Therefore he prayed for dismissal of the complaint with costs.
5) The complainants in proof of their case filed their affidavit evidence and got Exs. A1 to A24 marked while the respondent filed his affidavit evidence and got Ex. B1 to B8 marked. Smt. S. Jaya who was appointed as Commissioner filed her report marked as Ex. C1.
6) The Dist. Forum after considering the evidence placed on record directed R2 to install lift, motor system for lift, lay bore well with submersible pump set and acquire site for drainage system already provided , pay Rs. 10,000/- each to complainant Nos. 1, 2 and 6 to 8 and Rs. 1,000/- each to complainant Nos. 1,2 and 6 to 8 towards costs.
7) Aggrieved by the said decision, R2 preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that there was no agreement to provide lift. Complainant Nos. 3, 4 and 5 have withdrawn the complaint without insisting for any of the amenities mentioned in the complaint. The words lift motors in the general clause was mis-construed. He had constructed the flats in accordance with sanction plan. The Dist. Forum could not have directed him to acquire site for providing drainage and lift. He has already handed over the vacant undivided share of land and therefore prayed for dismissal of the complaint with costs.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the appellant builder constructed 10 apartments viz., 2 each on ground floor, viz., ground to 1st to 4th floors. Complainant No.1 purchased flat No. 102, complainant No. 2 purchased flat No. 302, complainant No. 3 & 4 husband and wife purchased flat No. 401, complainant No. 5 purchased flat No. 402, complainant No. 6 purchased flat No. 101 and complainant Nos. 7 & 8 husband and wife purchased flat No. 202 evidenced under Exs. A1 to A6 registered sale deeds. The owners of flat Nos. 201, 301, G1 and G2 did not join in the complaint. During enquiry complainant No. 3 to 5 did not press the complaint against the respondents. Admittedly after completion of construction of flats they were delivered to the above said complainants.
10) The Vice-Chairman, TUDA issued Ex. A12 notice dt. 17.1.2008 to the flat owners informing that constructions were made in deviation to sanction plan. By Ex. A13 endorsement dt.
7.2.2008 it has informed that plans submitted by them were not approved by them and the seal affixed on the plan was not genuine and directed them to submit plan under Building Regularization Scheme (BRS). The complainant Nos. 1,7, 6 and 2 respectively submitted Exs. A18, 19 Ex. A20 & A21 applications for regularization of un-authorisedly constructed buildings in deviation of sanction plan.
11) R1 is the owner of the land which he conveyed 1/10th share to each of the purchaser of the flat for a sale consideration of Rs. 99,000/-. R2 appellant herein conveyed the semi-finished flats to them under separate sale deeds. The deviations in construction and not providing amenities if any cannot be attributed to R1. It cannot be that said that there was any deficiency in service on his part.
12) Evidently R2 has constructed the flats without any approval and also in deviation of plans evidenced under Ex. A12 & A13. Ex. A15 sketch for construction of residential building, Ex. A7 proceedings of the Vice-Chairman, TUDA, Tirupathi approving the building plan, and Ex. A17 endorsement dt. 7.2.2008 of Vice-Chairman, TUDA endorsements were found to be not genuine. In Ex. A16 certificate issued by Panchayat Secretary, M.R. Palley he had categorically mentioned that no permission was given for construction of building. Contrarily R2 filed Ex.
B7 photostat copy of approved plan for construction of ground floor, 1st floor and 2nd floor issued by Executive Officer, M.R. Palle vide B.A. No. 81/04-05 dt. 27.1.2005. He alleges that having obtained approval from the Grampanchayat for construction of one flat in ground floor he constructed two flats each in ground, 1st to 4th floors. In the sale deeds R2 /appellant herein made a mention that the very Grama Panchayat has given permission vide D.Dis No. B.A. No. 327/05/G2 Dt. 22.10.2005. What all the constructions that were authorised were only in regard to one flat in ground floor, two flats in 1st floor and one flat in 2nd floor.
The other flats owners have submitted applications to Vice-Chairman, TUDA for regularisation of un-authorised constructions. This undoubtedly amounts to unfair trade practice and fraud on the complainants.
13) The complainants insist that car parking was not provided though he promised to provide the same. It is not in dispute that R2 has provided parking place exclusively for two wheelers. In Ex. B7 he has shown only one flat in ground floor while the remaining place was shown for parking. Contrarily he constructed two flats in ground floor. Naturally there was no space for car parking in the ground floor. In the sale deeds there is a clause to the effect that the vendees are entitled to common passage, landing place, corridor, driveway, toilet, lift, motors, staircase, stairway, water storage tank, including overhead tank, and top open space and underground sump, power room with all electrical installations etc., pertaining to and situated in the areas other than the portions sold and the possession of which was delivered to the vendee for its exclusive use and enjoyment. The complainants unfortunately did not file construction agreement entered into between them. R2 filed Exs. B1 to B6 copies of construction agreements. As rightly pointed out by the Dist. Forum they did not bear the signatures of the complainants, and therefore they cannot be relied.
14) At this juncture it cannot be lost sight of the fact that the very appellant along with R1 owner of the property filed a memo dt. 22.8.2008 wherein he agreed to provide three car parking slots measuring 12 x 7 each respectively. He further agreed to provide three car parking slots measuring 12 x 7 feet each, and remove the submersible pump with electricity motor and shift to the existing bore well which is situated in the complainant residential building. He agreed to permit the pipelines of drainage and water lines of the existing complaint residential building to pass thorough in his site (to the North of the existing building). When they had agreed to provide three car parking slots there cannot be any difficulty for providing rest of the car parking slots to the other flat owners by removing unauthorised structures constructed by them in the cellar portion. Therefore, we do not agree that complainant Nos. 1, 2, 6 to 8 are not entitled to car parking slots measuring 12 x 7 each. The provision of drive way mentioned in Ex. B7 could not have been for scooters.
15) As far as construction of living room and toilet for watchman there is no provision either in the agreement or in the sale deeds. Therefore, we cannot insist the appellant to construct the same.
16) The other complaint was that adequate water and drainage systems were not provided.
Evidently the appellant has dug two borewells while one bore well is provided in the existing residential building the other bore well is situated in the site of wife of R1. It is also not in dispute that water tap connection from Grama Panchayat was provided and constructed water sump for storage of water with submersible pump. This was handed over to the complainants. We recall that in the undertaking memo filed by the opposite parties they agreed to provide three car parking slots measuring 12 x 7 each, remove the submersible pump with electricity motor and shift to the existing bore well which is situated in the complainant residential building. He agreed to permit the pipelines of drainage and water lines of the existing complaint residential building to pass thorough in his site (to the North of the existing building). The advocate commissioner visited the premises. He noted that there is a bore well situated outside the premises. So also he noted the drainage is provided outside the area. Necessarily the appellant has to provide drainage facility on permanent basis. In the light of their own undertaking, we direct them to provide the above which they have undertaken in the memo.
17) Originally he has taken permission for construction of one flat in ground floor, two flats each in 1st floor, and one flat in 2nd floor. However, he constructed two flats in 3rd and 4th floors. The contention of the appellant is that there is no space provided for construction of lift system. In the report of the Commissioner there was a mention that area required for erection of lift is 73 x 365 and the estimated cost is Rs.
1,41,944/- . Ex. A22 photographs show that initially appellant intended to provide lift system to the building and for that reason Johnson Lifts Pvt. Ltd., fixed their board indicating that they were erecting their company lift. Obviously having initially agreed to provide the lift and even negotiated with the said company, he must have changed his mind and now denying that there was no agreement in that regard.
18) Since A.P. Apartments Act stipulates that a lift has to be provided in case of more than two floors, Having made provision it is beyond doubt that the appellant has to install the lift.
The order of the Dist. Forum in directing the appellant to provide the above to complainant Nos. 1, 2, 6 to 8 cannot be found fault. In view of non-providing of lift besides drainage and water facility on permanent basis, the complainants had suffered mental agony for which the appellant was directed to pay Rs. 10,000/- each which cannot be said to be excessive. Though possession was delivered although they have been enduring this, and therefore we are of the opinion that the compensation that was awarded by the Dist. Forum was adequate. We do not see any reason to interfere with the order of the Dist. Forum in this regard.
19) The Dist. Forum directed the appellant to install lift and drainage system by acquiring required site and also provide bore-well with submersible pump-set. This need not be sought in view of the endorsement made by the appellant that he would provide in whatever way feasible to him. Therefore there is no need to mention that the appellant has to acquire property. However has to lay bore well with submersible pump-set and drainage system besides installing a lift. Except this small modification rest of the order of the Dist. Forum is confirmed.
20) In the result the appeal is dismissed with small modification wherein a direction was given to acquire land which need not be ordered in view of his own undertaking dt. 22. 8. 2008 The complainants are also entitled to costs of Rs. 1,000/- each in the appeal. Time for compliance six weeks.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER Dt. 28.
02. 2011.
*pnr UP LOAD O.K.