National Consumer Disputes Redressal
Jagrut Nagrik & Ors. vs Parakramsinh A. Jadeja & Ors. on 30 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 825 OF 2020 1. JAGRUT NAGRIK & ORS. ...........Complainant(s) Versus 1. PARAKRAMSINH A. JADEJA & ORS. 901, DEVASHISH APPARTMENT,PRATAPGANJ, VADODARA-390002 GUJARAT 2. ASHOK H. RANNA (LAND OWNER) 68/B, URMI SOCIETY, B.P.C. ROAD,VADODARA-390020 GUJARAT 3. VIRAL MANOJ BHAI SETH (PARTNER) EARTH LANDMARK LLP (DEVELOPER), 303, EARTH COMPLEX, NEAR MALHAR POINT, OLD PADRA ROAD,VADODARA-390012 GUJARAT 4. EARTH LANDMARK LLP (DEVELOPER) PRITESH MAHENDRA SHAH (PARTNER), 303, EARTH COMPLEX, NEAR MALHAR POINT, OLD PADRA ROAD,VADODARA-390012 GUJARAT ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. P.V. MOORJANI, AUTH. REPRESENTATIVE FOR THE OPP. PARTY : FOR OPPOSITE PARTY-1 AND 2 : MS. NIMISHA MENON, ADVOCATE
FOR OPPOSITE PARTY-3 AND 4 : MR. D.N. RAY, ADVOCATE
: MR. DILIP NAYAK, ADVOCATE
Dated : 30 January 2024 ORDER
1. Heard Mr. P.V. Moorjani, Authorised Representative, for the complainants, Ms. Nimisha Menon, Advocate, for opposite parties-1 and 2 and Mr. D.N. Ray, Advocate, for opposite parties-3 and 4.
2. "Jagrut Nagrik", a voluntary consumer association and 8 home buyers of the group housing project "Earth Somnath" have filed above complaint for directing the opposite parties to (i) pay compensation of Rs.240000000/- with interest @18% per annum, from the date of possession till the date of payment, for constructing 24 houses on gas pipeline; (ii) pay compensation of Rs.20000000/- with interest @18% per annum, from the date of possession till the date of payment, for construction of club house and swimming pool on the pond of the village; (iii) refund Rs.10000000/- with interest @18% per annum, from the date of payments till the date of refund, realized toward lifetime maintenance; (iv) refund Rs.12040000/- with interest @18% per annum, from the date of possession till the date of payment, for deficient construction; (v) pay Rs.200000/- with interest @18% per annum, from the date of possession till the date of payment, for professional fee paid by the complainants to Mr. Atri Vyas and Associates; (vi) pay Rs.100000000/- with interest @18% per annum, from the date of possession till the date of payment, for less area and other deficiencies of the flat allotted to the complainants; (vii) pay Rs. 16500000/- with interest @18% per annum, from the date of possession till the date of payment, which may be recovered by the government for deficient stamp duty and penalty; (viii) pay Rs.5000000/- to as compensation for mental agony and harassment; (ix) Pay Rs.1000000/- as litigation costs; and (x) any other relief which is deemed fit and proper in the facts and circumstance of the case.
3. The complainants stated that Parakramsinh A. Jadeja and Ashok H. Tanna (OP-1 and 2) were the owners of 11938 sq.mtrs. land of Block No.89, (old Revenue Survey No.104), situated at village Sewasi, taluka and district Vadodara. Earth Landmark LLP (OP-3) was a limited liability partnership firm, registered under the Limited Liability Partnership Act, 2008 and Viral Manojbhai Seth (OP-4) was its Managing Partner. On the basis of development agreement dated 15.02.2014, between OP-1 and 2 on the one side and OP-3 and 4 on the other side, OP-3 and 4 developed a group housing the project of villas in the name of "Earth Somnath", on above land, for which, they obtained necessary permission from the Collector, vide letter dated 02.08.2013 and Vadodara Shaheri Vikas Satta Mandal, vide letter dated 20.01.2014. On 19.10.2013, OP-3 and 4 advertised that "Earth Somnath" would have a club consisting multipurpose hall with modern facilities, game room, gymnasium, swimming pool with deck area and changing rooms, raised gardens with seating, Outdoor Leisure amenities would be lush green landscape garden with water cascade, multipurpose court with seating area, children play area, gazebo seating surrounding lili-pond, jogging track, Value Additions would be an inviting entrance gate with water body, 24x7 security with security cabin and intercom, paved internal road with street light, underground cabling for fire free look, 24 hour water supply through corporation and bore-well rain water harvesting, termite resistance treatment etc. Believing upon the representation of OP-3 and 4, complainants-2 to 9 and other home buyers booked a villa and deposited booking amount in the year 2014-2015. OP-3 and 4 allotted villa and executed an agreement for sale and development agreement in favour of the buyer, shortly after booking. At the time of agreement with the buyers, OP-3 and 4 made part payment of Rs.10/- lacs out of Rs.15/- crores to OP-1 and 2 towards price of the land. OP-3 and 4 revised layout plan on 24.07.2015, increasing number of the villas from 78 to 85 without any information or consent of the home buyers. OP-3 and 4 constructed 83 villas and obtained "occupation certificate" on 06.09.2016. Without developing all the promised amenities and facilities, OP-3 and 4 handed over possession of the villa to the buyers in the year 2017-2018. At the time of offer of possession, OP-3 and 4 realized Rs.100000/- from each buyer as lifetime maintenance charges but this amount was not deposited in the bank. After taking possession, the home buyers found that actual size of the plot was less than as mentioned in the agreement, actual size of the villa was less than as mentioned in the agreement, common area and road size mentioned in all indexes are different. OP-3 and 4 constructed some villa on the land of the corporation through which gas pipeline had been laid by GAIL and sold it to the buyers. Club house and swimming were constructed over the land of pond of the village and it was included in boundary of the project as well as there were various deficiencies as detailed in paragraphs-11 and 18 of the complaint, which are based upon the report dated 12.12.2018 of Atri Vyas and Associates, a consultant engineers. Complainant-1 gave a notice to the OPs dated 15.09.2018, for removing above deficiencies. In spite of service of the notice, the OPs did not respond. After receipt of the report dated 12.12.2018, complainant-1 gave another notice to the OPs dated 17.01.2019, for removing deficiencies but again the OPs did not respond. Then the complainants made complaint to District Collector Vadodara and Vadodara Urban Development Authority on 08.02.2019 and Police Commissioner, Vadodara on 16.03.2019 but no action was taken by these authorities. Complainant-1 filed Writ Petition No.139 of 2019, before Gujarat High Court, in respect of limited issue of illegal construction raised over the land of the corporation through which gas pipeline was laid by GAIL as it is a life threatening of the residents and construction of the club building and swimming pool on the land of village pond. OP-3 and 4 raised an objection in the writ petition that the disputes raised in the writ petition were of the nature of consumer dispute. Then this complaint was filed on 31.07.2020, alleging deficiency in service. The complainants filed IA/5134/2020, under Section 35(1)(c) of the Consumer Protection Act, 2019, for grant of leave to institute the complaint as a representative complaint on behalf of all the home buyers of the project.
4. Earth Landmark LLP and Viral Manojbhai Seth (OP3 and -4) filed their written reply and contested the matter. They stated that OP-4 was a reputed builder and successfully developed various project to the full satisfaction of the buyer. After obtaining permission for development, from the Collector, vide letter dated 02.08.2013, the project "Earth Somnath" was launched. Underground GAIL pipeline was passing through Survey No.104, since 1992. GAIL (India) Limited, vide letter dated 02.08.2013, granted NOC for construction of the building at a distance of 15 meters from pipeline. Thereafter, they got sanction of layout plan from Urban Development Authority, Vadodara vide letter dated 20.01.2014 and other NOC as required to develop the township. The construction was raised as per layout plan and was completed including all the amenities. Revision in layout plan was only due to statutory requirement. All the conditions mentioned in the letter dated 02.08.2013 by GAIL (India) Limited were strictly adhered. Urban Development Authority, Vadodara, after inspection and verification of the construction, granted "occupation certificate" on 06.09.2016. Possession over the villas was handed over to the home buyers immediately thereafter. Resident's Welfare Association, namely "Earth Somnath Association" has been formed and the lifetime maintenance amount realized from the home buyers, has been deposited in its account with HDFC Bank. It has been denied that OP-3 and 4 constructed some villa on the land of the corporation through which gas pipeline by GAIL was passing; club house and swimming pool were constructed over the land of pond of the village; area of the plot and villa is less than as mentioned in the agreement; any deficiency in construction or any of the amenities were incomplete. The complainants after inspection of the project and their villa, completed formalities and took possession. Out of 82 home buyers, only 8 persons started filing false complaints against OP-3 and 4, with an intention to extract money and to avoid payment of monthly maintenance charges. The complainants gave advertisements in the newspapers relating to the pendency of the writ petition and the complaint with an intension to malign the reputation of the OP-4. Due to frivolous disputes raised in the writ petition and in this complaint, the price of the villa in the project is being adversely affected, causing loss to OP-3 and 4 and the home buyers who want to sell their villa. Various home buyers requested OP-4 to resolve the dispute at the earliest. The complainants have claimed compensation in the complaint, which is more than what have been paid by them towards villa. OP-3 and 4 filed IA/2226/2021, for dismissing the complaint on the ground of pendency of Writ Petition No.139 of 2019, before Gujarat High Court, in which, all the issues raised in this complaint have already been raised and the complaint is time barred.
5. The complainants filed Rejoinder Reply. Writ Petition No.139 of 2019 was dismissed as withdrawn vide order dated 08.12.2021, with liberty to prosecute its claim in consumer complaint.
6. We have considered the arguments of the counsel for the parties and examined the record. We have to examine as to whether there is sameness of interest of numerous home buyers in this complaint. The complainants alleged that 24 villas are constructed on the land of corporation through which gas pipeline of GAIL was passing on and club house and swimming pool are constructed on the pond of the village. They relied upon the report of Atri Vyas & Associates dated 12.12.2018. A perusal of the report does not indicate that any survey was done by Atri Vyas & Associates, in order to locate Block 89 Revenue Survey No.104 of village Sevasi. Without conducting any survey, allegation that club house and swimming pool are constructed on the pond of the village, is not liable to be accepted. In this report no sketch was prepared that which 24 villas were constructed without maintaining requisite distance from GAIL gas pipeline. A perusal of letter of GAIL (India) Limited dated 02.08.2013 shows that it had acquired 18.5 meter wide land of Revenue Survey No.104. Neither GAIL nor gram panchayat Sevasi has raised any objection in respect of any encroachment over its land. In the absence of any survey by Atri Vyas & Associates, its allegation that OP-3 and 4 have encroached over land of GAIL or gram panchayat, or Villa Nos. 79, 80, 81 and 82 are constructed outside the plot, is not liable to be accepted.
7. In Paragraph-1 of the report dated 12.12.2018, Atri Vyas & Associates has mentioned that total area of the land as per record was 11938 sq.mtrs. After deducting 83.06 sq.mtrs for road set back and 1193.80 sq.mtrs for common plot, developed area comes to 10661.14 sq.mtrs. This is a calculation mistake. Correct calculation is 10861.14 sq.mtrs, while in revised plan total developed area was shown as 10854 sq.mtrs. Due to this calculation mistake, it has been mentioned that area of the land and villa is less than the area as mentioned in the agreement to sell. Report in this respect is also incorrect. OP-3 and 4 have obtained "occupation certificate" dated 06.09.2016, which is a proof that the construction was done as per sanctioned layout plan. There is no evidence to rebut this presumption.
8. Jaynarayan P. Patel is owner of Villa No.A-10 sale deed dated 22.01.2015, Neeraj Parmanandbhai Patel is owner of Villa No.79 sale deed dated 01.04.2017, Bhaveshkumar Ishwarlal Patel is owner of Villa No.80 sale deed dated 22.03.2017, Samir Kiritbhai Patel is owner of Villa no.23 sale deed dated 19.05.2017, Atul C. Mehta is owner of Villa No.A-14 sale deed dated 07.10.2016, Chaitanya Pravinchandra Kalaya is owner of Villa No.A-4 sale deed dated 22.07.2016, Dharmendrakumar V. Patel is owner of Villa No.A-2 and sale deed dated 14.03.2016, and Tarunkumar K. Patel is owner of Villa No.24 sale deed dated 18.05.2017. The complaint filed on 31.07.2020 by these persons is not within limitation. The complaint in respect of deficiency in construction on their behalf is also time barred. There is no sameness of interest of numerous villa buyers as such application under Section 35(1)(c) is rejected.
9. So far as the allegations that lifetime maintenance charges has not been deposited in the account of Resident's Welfare Association, is concerned, this allegation has been denied. In any case, if full amount of maintenance realized from home buyers has not been deposited, liberty is given to Resident's Welfare Association to file complaint before appropriate forum as per pecuniary jurisdiction.
O R D E R
In view of the aforesaid discussions, IA/5134/2020 is rejected. IA/2226/2021 is allowed and the complaint is dismissed with liberty is to Resident's Welfare Association to file complaint for lifetime maintenance charges before appropriate forum as per pecuniary jurisdiction.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER