National Consumer Disputes Redressal
The Lords Cottages & Villas Resident ... vs M/S. Himalayan Buildwell (India) Ltd. & ... on 22 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 307 OF 2014 1. THE LORDS COTTAGES & VILLAS RESIDENT WELFARE ASSOCIATION (RETD.) S/o late Shri B. K. Johar, Tower-1, Flat-1501, Uniworld Gardens, Sohna Road, GURGAON - 122018. ...........Complainant(s) Versus 1. M/S. HIMALAYAN BUILDWELL (INDIA) LTD. & 2 ORS., Through its Director, Shri Biju Pillay, E-4/30, Krishna Nagar, DELHI - 110031 2. M/S. VIDYA BUILDWELL (P) LTD. Through Its Director, Mr. Shekhar Bhudani,
E-4/30, Krishna Nagar, DELHI - 51 3. A.B. CONSTRUCTION PVT. LTD. Through its Director Mr. Agam Aggarwal,
E-4/30, Krishna Nagar, DELHI - 51 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. SACHIN JAIN ADVOCATE
MR. RAKESH JOHAR, MR. A.K. LAL &
MR. K.K. SETH, IN PERSON FOR THE OPP. PARTY : MR. PAWAN KUMAR RAY, ADVOCATE
Dated : 22 May 2024 ORDER
1. Heard Mr. Sachin Jain, Advocate, for the complainant and Pawan Kumar Ray, Advocate, for OP-1 to 3. Mr. Varun Bansal (OP-4) filed IA/4994/2015 for his impleadment in this complaint on the ground that OP-3 had sold him 200 sq.yrd. land in Khasra No.75, Khet No.1029, situated at Latibunga, Mukteshwar, district Nainital on 17.06.2005 and OP-1 entered into an agreement dated 25.08.2005 for construction of the cottage on it but they are not constructing it, for which, he had filed CC/601/2014, before State Commission Delhi, where they were avoiding service of the notice. This application was allowed vide order dated 24.09.2015. But no one appeared for OP-4.
2. Initially the complaint was filed by eight complainants (seven cottage owners and one resident welfare association). The opposite parties filed written reply to the complaint and the complainants also filed rejoinder to the written reply. Later on, the complainants filed IA/1039/2017 seeking amendment in the complaint to bring it under Section 12(1)(b) of the Consumer Protection Act, 1986. The said application was allowed vide order dated 03.03.2017 and the amended complaint was taken on record and the opposite parties were directed to file the written version to the amended complaint. As the opposite parties failed to file written reply within stipulated period, their right to file written reply in amended complaint was closed, vide order dated 07.07.2017.
3. The Lords Cottages & Villas Residents Welfare Association has filed above complaint, for directing OP-1 to 3 to (i) make provision for regular & adequate water supply to each individual cottage; (ii) provide tarred road from main road to the parking and individual cottage; (iii) provide club house, gym, camping, restaurant, coffee shop, indoor sports, morning store, hanging gardens, open air restaurant and individual car parking; (iv) handover common services to the association; (v) abstain from carving out new plot at the site, raising cottage and selling it; (vi) provide separate infrastructure for any new development on new pieces of land and not to use any infrastructure or services of the existing colony as per original map; (vii) pay Rs.125000/- as litigation expenses; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case. In alternative, if the relief sought for at Sl Nos. (i) to (iii) are not executable effectively then to award the cost of such work, which is quantified on estimated basis at Rs.1.78 crores.
4. The Lords Cottages & Villas Residents Welfare Association is a registered association of the owners of cottages and villas in the project "The Lords Cottages & Villas", at L-6, Gram Shashbani, Patti Sunderkhal, tehsil Dhari, district Nainital. Himalayan Buildwell (India) Ltd. (OP-1) was a private limited company; M/s Vidya Buildwell (P) Ltd. and Agam Biju Construction Pvt. Ltd. (OP-2 and 3) were subsidiary companies of OP-1. The complainant stated that OP-1 floated a housing project of villas and cottages of 100 sq.yrd and 200 sq.yard. at Gram Shashbani, Letibunga, Mukteshwar, Nainital, in the year 2004 and gave advertisements and published brochure with the promise of construction quality and various other utility services for the benefit of the purchasers. The project inter alia comprises club house, shopping place, tarred road from main road to the cottages, earmarked parking area, regular water supply etc. According to clause-13 of the terms & conditions in the application form the opposite parties were liable to provide all facilities in the project. The members of the complainant entered into individual agreements in the year 2004 onwards. After construction of the cottages, sale deeds were executed in favour of the purchasers from 2010 to 2013. After selling the cottages to the members of the complainant the opposite parties failed to provide the basic amenities. There is seepage on large scale; floors are broken through and even one could fall through the cracks. There is also danger of poisonous reptiles creeping through the cracks. Many cottage owners have changed the flooring and furnishing and also got the walls extensively repaired at their own cost. Poor quality furniture has been provided. Club building has deteriorated and presently is in dilapidated condition. Road connected to the project is not usable due to huge potholes and sharp stones, which the opposite parties had promised RCC road. The opposite parties failed to provide dedicated car parking as promised and even open car parking space is blocked due to waste material of construction. The land for park has been allegedly earmarked but it is used by the opposite parties for storage of pipes and other material. Hospital and restaurant as promised by the opposite parties have not been provided. The opposite parties had promised 24 hours water supply but there is no water supply to the cottage owners. The retaining walls collapse again and again, exposing the residents to the risk. Without completing the project, the opposite parties illegally started construction of new cottages on the same land and adjoining land as a contiguous part of the existing project. In this regard, the members of the complainant raised objection with the opposite parties and they were told that the new cottages would have completely independent infrastructure. The opposite parties also allowed some cottage owners to make illegal construction in violation of the agreement. On 11.07.2013, a meeting was held between the members of the complainant and the opposite parties wherein the opposite parties made various commitments. In this regard, the RWA also sent a letter dated 25.07.2013 to the opposite parties. When nothing was done by the opposite parties, the complainant sent a legal notice dated 29.10.2013 seeking redressal of their grievance. Mr. Agam Aggarwal, Director of opposite party-1 sent a letter making a false statement that he is no more Director of OP-1. Although the opposite parties sent a letter dated 21.05.2014 to the complainant and its members stating that they would resolve the issues, but no tangible effort was made by them. The complainant sent a letter dated 21.05.2014 and one member of the complainant also sent an email dated 05.06.2014 for redressal of their grievance which the opposite parties failed to do. Whatever limited water was available for use of the cottages, the opposite party illegally used the same for construction work and there was no water supply in the cottages at all and the residents had to make their own arrangements for water. The opposite parties are also selling the common area meant for use of the complainant to third party. The bungalow which was represented as Royal Club is offered for sale to the outsiders. The complainant also made complaints to various officers including SHO of the concerned police station and Patwari. The complainant and its members also visited the office of the Sub-District Magistrate and District Magistrate and gave the complaint dated 14.07.2014 but nothing was done. Opposite party-1 claimed to have been established in 1999 and was a part of group of companies engaged in activities like cement, petroleum, agricultural and architectural. The complainant came to know that all such representations were false. Instead of resolving the problems of the members of the complainant, the opposite parties, with malafide intention, offered to buy back the cottages at a very low price. The cottage owners have been deprived the use of their cottages due to unfair trade practice of the opposite parties. Thus, the complainant has filed the above complaint on 14.08.2014.
5. In the written version filed by OP-1 & 2 before amendment of the complaint, they stated that Agam Aggarwal in the capacity of the director of M/s. Himalayan Buildwell (India) Limited sold the land to the cottage owners and M/s. Vidya Buildwell (P) Ltd. constructed the cottages under a separate agreement. After completion of the construction of cottages, complainants-1 to 7 took possession during 2007 to 2009. Possession of the cottage constructed on Plot No.-L-7 was also given to complainant-2 in the year 2011. Possession Letter dated 02.07.2013, allegedly issued by opposite party-3 is a forged document. Opposite party-3 has nothing to do with the project and has been illegally impleaded in the complaint. Opposite parties-1 and 2 entered into an agreement with M/s. Lords Resorts and Construction through its proprietor Shri Shekhar Budhani to look after the entire maintenance of entire project, who is necessary party in the complaint. Opposite parties-1 and 2 have been bound up in April, 2014 and not in existence and wrongly been impleaded in the complaint. Complainants-1 to 7 illegally formed complainant-8 and got it registered on the basis of forged documents i.e. the ownership documents of property No.L-16, in the name of Mrs. Anjana Mehta although it belonged to Mr. Ajay Sabharwal, who has also obtained stay order against Mrs. Anjana Mehta from the court of Civil Judge (SD) Nainital in Civil Suit No.48 of 2014 and the case is pending. As complainant-8 is an illegal association, other cottage owners did not join in the complaint. Complainant-8 is an illegal entity and possession of common facilities cannot be handed over to it, which has been illegally formed to extract money from the opposite parties. The project in question is situated in the high risk zone of heavy rain fall and sliding. Due to heavy rains there is land sliding every year which requires repairs and maintenance. M/s Lord Resorts and Construction with whom OP-1 & 2 have entered into an agreement for maintenance, carries out necessary maintenance works from its personal funds. No cottage owner has paid maintenance charges despite repeated requests, due to which the roads and other amenities could not be repaired. Now the condition of the roads, sewage and other amenities has worsened and requires reconstruction for which huge funds would be required. The cottage owners are themselves responsible for pathetic condition of roads, sewage and other amenities. Clause-9 of the brochure specifically provided that the opposite parties can modify/delete/improve the specifications due to technical reasons for betterment of the colony/individual unit. All the allottees were informed that due to architectural changes in the project, it was not possible to construct Royal Club, Medical Centre, Gymnasium and Bar-be-que. Opposite parties-1 & 2 also gave an option to the allottees to withdraw themselves from the project and their deposited amount would be refunded immediately with interest @ 8% per annum but none of the allottees gave the option for withdrawal or raised any objection for not providing the above facilities. The opposite parties opened a canteen in the project but as the allottees failed to pay maintenance charges, the canteen employees could not be paid their salary and they left the job, due to which the canteen has become non-functional. The allottees had never made any complaint regarding construction quality. When opposite parties-1 & 2 started demanding maintenance charges, then only they made false and frivolous complaint in order to avoid maintenance and reconstruction charges. However, all other cottage owners, except members of the complainant, are ready to pay the entire maintenance and reconstruction charges. It is denied that there is large scale seepage, floors have broken and become dangerous. As the cottage owners do not live in and the cottages remain closed throughout the year, no maintenance is done. Cottage owners are required to live in the cottages and maintain them properly. The allegation that low quality furniture was provided is denied and it is stated that the opposite parties have provided good quality furniture. It is denied that the possession of the last cottage was given to Mr. A.K. Lal in the year 2013. Mr. A.K. Lal was handed over the possession in 2011. The complainant has falsely alleged that the club building has deteriorated. The opposite parties have not constructed the club building and the reason for not constructing the same was also communicated to all allottees with the option of withdrawal from the project. The condition of the roads became bad over years due to land sliding and heavy rains. The allottees are provided adequate water supply. Broken walls needs maintenance which can be done only after receiving the maintenance charges but the members of the complainant have refused to pay. It is denied that the opposite parties have not completed the project and made illegal construction in the project. The construction has been made as per agreement executed between alottees and the opposite parties dated 28.04.2005. The opposite parties did not assure the complainant that the issue would be resolved within three months. In the meeting held between the parties, the opposite parties demanded the due amount prior to resolving the issues. In the meeting, opposite party-1 agreed to construct the club house, reconstruction of road and clean open parking space, subject to sharing of construction cost amongst the cottage owners but the members of the complainant association refused to their share of payment although other cottage owners were ready to make payment of their share. The allegation of the complainant that Mr. Agam Aggarwal is no more a director of opposite party-3 and no false statement has been given in this respect. The allegations that the opposite parties are using the parking space for dumping the building material and making construction on the common area and alienating it are false. The opposite parties have never shown any bungalow to the complainant for using the same as Royal Club nor any such bungalow is available on the site. The opposite parties never claimed to be a part of group of companies engaged in the activities of cement, petroleum, agricultural and architecture. All allegations made against opposite parties-1 & 2 are false and frivolous. The complaint does not have any merit and deserves to be dismissed.
6. The complainant filed Rejoinder Reply, Affidavits of Evidence of Ajay Kr. Lal, Rakesh Johar and documentary evidence. The opposite parties-1 and 2 filed Affidavits of Evidence of Tarsem Dhingra, Shekhar Budhani and documentary evidence, Affidavit of admission/denial of documents, Affidavit of dissolution of opposite parties-1 & 2 of Shekhar Budhani. Both the parties have filed written synopsis.
7. We have considered the arguments of the parties and examined the record. The opposite parties have challenged locus standi of the complainant association to file the complaint. According to the opposite parties although there are 33 cottages in the project "The Lords Cottages & Villas", at L-6, Gram Shashbani, Patti Sunderkhal, tehsil Dhari, district Nainital" but complainant association was formed by 7 cottage owners on 19.07.2013 and it cannot be considered as cottages owners association of the project as such the relief for handing over of common amenities and services cannot be claimed by it. The complainant has filed List of Members, as supplied by Deputy Registrar, Firm, Societies and Chits, Haldwani, Nainital dated 07.11.2018, showing total 18 cottage owners were member in the association. As such, relief relating to handover of common amenities and facilities cannot be granted to the complainant.
8. The complaint has been filed under Section-12(1)(b) of the Consumer Protection Act, 1986, under which a recognised consumer association is authorised to file a complaint on behalf of a consumer. It has not been mentioned in amended complaint that the complaint was filed on whose behalf nor authority/affidavit of any consumer has been filed. In support of the complaint only one affidavit of Rakesh Johar was filed, who was the Secretary but in the List of Member as on 07.11.2018, he is neither office bearer nor member in the association. The counsel for the complainant gave a clarification note on 04.03.2024, stating that the present complaint is not meant for individual benefit of few consumers but is aimed to secure common amenities like water supply, medical services, clubhouse etc. for the entire project. Although the consumer protection law is a beneficial legislation but for raising a consumer dispute, the procedure has been prescribed. Authority of the consumer is minimum requirement for the recognised association to file complaint on its behalf. Without authority of the consumer, no complaint can be filed by a recognised association under Section-12(1)(b) of the Consumer Protection Act, 1986. We have already found that the complainant is not an association of entire cottage owners of the project as such, it cannot be treated as a consumer under Section-12(1)(a) of the Consumer Protection Act, 1986, for common amenities and services. Therefore, the complaint filed as such, is not maintainable.
9. The project of villas and cottages of 100 sq.yrd and 200 sq.yrd. at Gram Shashbani, Letibunga, Mukteshwar, Nainital was launched by opposite party-1 in the year 2004. All the seven complainants who had filed original complaint, purchased the land from opposite party-1 in the year 2005 and entered in construction agreement with opposite party-2 on different dates in the year 2005. After construction of cottages, possession were delivered to them in the year 2008-2010. The complaint filed on 14.08.2014, for individual grievance was highly time barred. No application for condonation of delay was filed as such, it was liable to be dismissed as time barred.
10. Pradeep Parangai, Advocate Commissioner, in his report dated 16.11.2015 mentioned that the care takers of the cottages informed that water supply was stopped from 3 years. Opposite parties-1 and 2 have stated that they entered into an agreement with M/s. Lords Resorts and Construction through its proprietor Shri Shekhar Budhani to look after the entire maintenance of entire project. The project in question is situated in the high risk zone of heavy rain fall and sliding. Due to heavy rains there is land sliding every year which requires repairs and maintenance. M/s Lord Resorts and Construction carried out necessary maintenance works from its personal funds. No cottage owner has paid maintenance charges despite repeated requests, due to which the roads and other amenities could not be repaired. The complainant has not filed any evidence to show that the cottage owners were regularly paying maintenance charges. It is therefore proved that due not paying maintenance charges, the water supply could not be continued. Rakesh Johar and other cottage owners have already applied for regular water connection in January, 2016 to Uttarakhand Jal Sansthan.
10. Opposite parties-1 and 2 have been bound up on 26.05.2014 and 07.06.2014 respectively and not in existence on the date of the filing the complaint and wrongly been impleaded in the complaint. The complainant has filed copies of Affidavits filed by Agam Aggarwal before Registrar, Companies, giving undertaking to settle all lawful claim against the companies of any person. The opposite parties stated that they had provided all common amenities like green lawns, park and garden, canteen, having coffee shop, big parking facilities, resort administration office with one supervisor, one guard room in gate, one permanent labour room, electrical works, electricity connections and fitting. Due to change of circumstances as well as architectural changes, it was informed to all the cottage allottees including the complainants about the difficulties for construction of Royale Club, Gymnasium, Bar-Be-que and medical centre and the cottage owners were given option to take refund of their money with interest. As none of the allottee have raised this dispute as such, the version of the opposite parties have to be accepted.
O R D E R
It view of the aforesaid discussions the complaint is dismissed.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER