State Consumer Disputes Redressal Commission
The Fortune Icon Apartments vs Fortuna Constructions India Private ... on 26 August, 2024
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/34/2023 ( Date of Filing : 27 Mar 2023 ) 1. THE FORTUNE ICON APARTMENTS RESIDENTS WELFARE ASSOCIATION Rep. by its President (Dr. Jaganath Jogidar) ...........Complainant(s) Versus 1. Fortuna Constructions India Private Limited, Fortuna House, No.184, 3rd floor, Oppt. NCERT, Outer Ring Rd, Banashankari 3rd Stage, Bengaluru-560085. 2. M/s.Fortuna Projects, No.212,4th floor, Bellary Road, Sadhashivanagar,above Hero Honda Showroom,Bangalore-560 080 reptd.by its Managing Partner 3. Mr.K.Nagaraj, son of late Kaverappa, No.282, Kaveri Nilaya,3rd Main, Road, K.R.Puram Extension,Bangalore-560 036 4. Mr.Padmaiah Vuppu,proprietor, M/s. Fortuna Builders,R/o. of No.1B,Swasthik Shappire Apartments,10th cross,1st Main Pai Laout, Bangalore-560 016 also aat Mr.Padmaiah Vuppu, Proprietor, M/s.M.R,S,Fortuna Projects, No.3159,1st floor, 5. Mr.S.Naresh Kumar, son of late N.Sriramulu R/o.No.84,2nd floor,2nd Main,Rohini Residency,CIL colony, Sanjay Nagar,Bangalore-560 094 6. The Chairman, Bangalore Water supply and Sewerage Board,1st floor, Cauvery Bhavan,Kempegowda Road,Bangalore-560 009 7. The Chief Engineeer (North), Bangalore Water supply and Sewerage Board,1st floor, Cauvery Bhavan,Kempegowda Road,Bangalore-560 009 8. The Asst. Executive Engineer, Bangalore Water supply and Sewerage Board,North-1, Sub Division,Sahakarnagar,Bangalore-560 092 ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 26 Aug 2024 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE (ADDL. BENCH) DATED THIS THE 26th DAY OF AUGUST 2024 PRESENT MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA .C. BAGEWADI : MEMBER CONSUMER COMPLAINT NO. 34/2023 The Fortune Icon Apartments, Residents Welfare Association, Rep. by its President, (Dr. Jaganath Jogidar) (By Smt. Bhavana.N.Patil, Advocate) ....... Complainant/s V/s 1. Fortuna Constructions India Private Limited, Fortuna House, No.184, 3rd Floor, Opp. NCERT, Outer Ring Road, Banashankari 3rd Stage, Bengaluru 560 085. .. Opposite Party/ies 2. M/s Fortuna Projects, No.212, 4th Floor, Bellary Road, Sadashiva Nagar, Above Hero Honda Showroom, Bangalore 560 080, Rep. by its Managing Partner. 3. Mr. K. Nagaraj, S/o Late Kaverappa, R/o No.282, Kaveri Nilaya, 3rd Main Road, K.R. Puram Extension, Bangalore 560 036. 4. Sri Padmaiah Vuppu, Proprietor, M/s Fortuna Builders, R/o No.1B, Swasthik Shappire Apartments, 10th Cross, 1st Main, Pai Layout, Bengaluru 560 016, Also at : Sri Padmaiah Vuppu, Proprietor, M/s M.R.S. Fortuna Projects, No.3159, 1st Floor, 12th Main, HAL 2nd Stage, Indiranagar, Near ESI Hospital, Bengaluru 560 033. 5. Mr. S. Naresh Kumar, S/o Late N. Sriramulu, R/o No.84, 2nd Floor, 2nd Main, Rohini Residency, CIL Colony, Sanjay Nagar, Bangalore 560 094. (OP Nos.1 to 5 placed exparte) 6. The Chairman, Bengaluru Water Supply & Sewerage Board, 1st Floor, Cauvery Bhavan, Kempegowda Road, Bengaluru 560 009. 7. The Chief Engineer (North), Bengaluru Water Supply & Sewerage Board, 1st Floor, Cauvery Bhavan, Kempegowda Road, Bengaluru 560 009. 8. Asst. Executive Engineer, Bengaluru Water Supply & Sewerage Board, North - I Subdivision, Sahakaranagar, Bengaluru 560 092. (By Sri B.L. Sanjeev, Advocate for OP Nos.6 to 8) ORDER
MRS. SUNITA CHANNABASAPPA BAGEWADI, MEMBER This is a complaint filed by the complainant alleging deficiency in service on the part of the Opposite Party Nos. 1 to 5 to refund the amount of Rs.1.90 crores received for providing sewerage and BWSSB facilities with interest, compensation and costs.
2. The brief facts of the complaint are hereunder;
It is the case of the complainant association stated that the members of the association are the owners residing in the Fortune Icon Building developed by the Opposite Party Nos. 1 to 5/Builder. Even after more than a decade, the Opposite Parties jointly or severally not regularize the sewerage disposal and to provide Cauvery water for the residential building of the complainant. The association members are using the borewell water for all purposes which is contaminated with symptoms of effecting the health. Despite several meeting and approach and requests made to Opposite Party Nos. 1 to 5 not taken any action till date. The Opposite Party Nos. 6 to 8 despite of deposits made erstwhile Municipality of Byatarayanapura have not considered once the residential building of the complainant merged with BBMP and after more than a decade, abruptly without any notice the Opposite Party Nos. 6 to 8 have disconnected the sewerage water disposal causing danger, difficulty injury to the resident along with neighbourhood area. Hence, the complaint.
3. The Opposite Party Nos. 1 to 5 placed exparte. The Opposite Party Nos. 6 to 8 appeared through counsel and filed version and contended that the water/drainage connection has not been taken from Opposite Party Nos. 6 to 8 Board to the complainant apartment by making necessary application with the prescribed fees. Further, Nagarjuna Garden Owner's Association, which is an apartment situated at the same locality of the complainant apartment, submitted a representation dt.10.07.2021 to the respondent Board informing that there is regular chamber blockages due to increase of residents resulting in health hazard and requested to change the main sanitary pipeline. Thereafter, while inspecting it was learnt that the complainant have taken illegal water/drainage connections from the BWSSB pipelines. In this regard, the Opposite Party issued a notice dt.23.11.2021 calling upon the complainant to apply personally or online for regularization of the unauthorized water/drainage connection to their apartments by paying the prescribed fee within 7 days from the receipt of that notice, failing which action will be taken to disconnect such connection and without any further notice, legal action will be taken as per Section 108(A) of the BWSSB Act, 1964. Despite of that notice and repeated warnings, no steps were taken to regularize the water/drainage connection to 117 flats in complainant apartment. The Opposite Parties submit that despite giving notice in writing as well as oral to regularize their illegal water/drainage connection, no action whatsoever was taken in that regard and in view of the hardship caused to the residents of the locality and metered consumers, the illegal connection taken by the complainant was disconnected on 14.03.2023 and a letter in this regard also produced in this regard. The prescribed fee towards water/drainage connection to the apartments of the complainant has not been paid and as such, the action taken by these Opposite Parties is just and proper. Therefore, there is no deficiency in service and prayed to dismiss the complaint.
4. The complainant has filed affidavit evidence and marked documents at Ex.C1 to C19. The Opposite Party Nos.6 to 8 also filed affidavit evidence and marked documents at Ex.R1 to R6. Heard the arguments of both parties.
5. On perusal, the following points will arise for our consideration;
(i) Whether the complainant has proved the alleged deficiency in service against the Opposite Parties?
(ii) Whether the complainant is entitled for the reliefs sought? (iii) What order? 6. The findings to the above points are; (i) Affirmative (ii) Partly affirmative (iii) As per final order REASONS
7. On perusal of the pleadings, version, affidavit evidence and documents produced by both parties, we noticed that the Opposite Parties have contended that the complaint is not maintainable either in Law or on facts and circumstances of the case. On going through the definition of "PERSON" u/s 2(31) of CP Act, 2019, the complaint is maintainable, which reads as under;
(31) "PERSON" includes -
(i) an individual; (ii) a firm whether registered or not; (iii) a Hindu undivided family; (iv) a co-operative society; (v) an association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not; (vi) any corporation, company or a body of individual whether incorporated or not; (vii) any artificial juridical person, not falling within any of the preceding sub-clauses;
8. The Opposite Parties further contended that water/drainage connection has not been taken from Opposite Party Nos. 6 to 8 Board to the Complainant Apartment by making necessary application with prescribed fees. Further Nagarjuna Garden Owner's Association which is an apartment situated at the same locality of the complainant apartment submitted representation dt.10.07.2021 to the Opposite Party Nos. 6 to 8 Board informing that there is a regular chamber blockage due to increase of residents resulting in health hazard and requested to change the main sanitary pipeline. While inspecting, it was learnt that the complainant have taken illegal water/drainage connection from BWSSB pipelines. Hence, the Opposite Party Nos. 6 to 8 have issued a notice dt.23.11.2021 calling upon the complainant to comply personally or online for regularization of the unauthorized connection to their apartment by paying prescribed fees within seven days from the receipt of the notice. Failing which, the connection will be taken to disconnect such connection. Inspite of notice and repeated warnings, no steps were taken to regularize the connection to the complainant's apartment. Hence, the connection was disconnected on 14.03.2023 and issued a letter in this regard to the complainant. The Opposite Parties further contended that the prescribed fee towards the water/drainage connection to the complainant's apartment has not been paid. Perused the Annexure-L, L1 and L2 it is noticed that Opposite Party No.1 who is a developer has collected Rs.1,90,00,000/- in total (from each member Rs.1,50,000/-) as per the Sale Deed towards KEB, BWSSB and for common facilities which means Opposite Party Nos. 1 to 5 have received deposits towards KEB, BWSSB and common facilities purpose from the flat owners. We also noticed that Ex.R1 shows that one Nagarjuna Garden Owner's Association situated at some locality submitted representation dt.10.07.2021 informing that there is a regular chamber blockage due to increase of residence. After inspecting it was noticed that the complainant has taken illegal water/ drainage connection from BWSSB as per Ex.R2. Accordingly, issued notice to the complainant to regularize the same. When the complainant has not made efforts, the Board has disconnected the connection as per Ex.R4.
9. Perused the documents at Ex.C17. We noticed that at the time of Sale Deed each flat owner have been deposited certain amount towards KEB and BWSSB. However, the same was not deposited by the Opposite Party Nos. 1 to 5 to the BWSSB Board. It is the bounden duty of the Opposite Party Nos. 1 to 5 to make necessary application with prescribed fees to provide the Cauvery water to the apartment. Providing drinking water is an essential service/basic need of human consumption and inspite of several requests, the Opposite Party Nos.1 to 5 have not made any application along with prescribed fee to avail the drinking water connection till today. As a result, the flat owners have been forced to spend a lot of money to obtain drinking water from outside sources for last 14 to 15 years which has been more challenging to the flat owners. Moreover, the complainant has produced some photographs of STP which discloses that STP installation is as per the guidelines prevailing at the time while sanctioning the building by Byatarayanapura Municipal Corporation. Hence, considering the facts and discussion made here, we are of the opinion that inspite of receiving deposits from the flat owners for providing drinking water to the residents of the building of Opposite Party Nos. 1 to 5, they have not paid the prescribed fee not made application with prescribed fee to the BWSSB Board and failed to provide the drinking water facility till today which amounts to deficiency in service on the part of the Opposite Party Nos. 1 to 5. The complainant has proved that the Opposite Party Nos. 1 to 5 have collected the amount, but, there is no any documents put forth before this Commission to show that the Opposite Party Nos. 1 to 5 have deposited the same to the Opposite Party Nos.6 to 8 authority. Hence, considering the facts and discussion made here, we are of the opinion that the complainant has proved the deficiency in service on the part of the Opposite Party Nos. 1 to 5. The complaint against Opposite Party Nos. 6 to 8 is hereby dismissed. Hence, the following;
ORDER The complaint is allowed in part against Opposite Party Nos. 1 to 5 and dismissed against Opposite Party Nos. 6 to 8.
The Opposite Party Nos. 1 to 5 are directed to refund the amount paid by the complainants/flat owners towards BWSSB and Sewage facilities to the complainant association along with interest at 6% p.a. from the date of receipt of the amount, till realization.
Further, the Opposite Party Nos. 1 to 5 are directed to pay a sum of Rs.2,00,000/- as compensation and Rs.25,000/- as costs of litigation to the complainant.
The Opposite Party Nos. 1 to 5 are directed to comply the abovesaid Order within 45 days from the date of receipt of this Order.
Forward free copies to both the parties.
Sd/- Sd/- MEMBER JUDICIAL MEMBER KCS* [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER