National Consumer Disputes Redressal
Dr. V.J. Vikram & Anr. vs Usha Anandan on 14 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 80 OF 2014 (Against the Order dated 05/12/2013 in Complaint No. 43/2008 of the State Commission Tamil Nadu) 1. USHA ANANDAN W/O. MR. V. ANANDAN, PROPRIETRIX OF M/S. UMA MAHESWARI CONSTRUCTIONS, F-1, NO. 97 & 98, R.K. MUTT ROAD, MANDAVELI CHENNAI-600028 ...........Appellant(s) Versus 1. DR. V.J. VIKRAM & ANR. S/O. DR. V.S. JAGANNATHAN, F-2, NO. 97 & 98, R.K. MUTT ROAD, MANDAVELI, CHENNAI-600028 2. MRS. V. SURYAKANTHAM, W/O. DR. V.S. JAGANNATHAN, W/O. DR. V.S. JAGANNATHAN, F-2, NO. 97 & 98, R.K. MUTT ROAD, MANDAVELI, CHENNAI-600028 ...........Respondent(s) FIRST APPEAL NO. 319 OF 2014 (Against the Order dated 05/12/2013 in Complaint No. 43/2008 of the State Commission Tamil Nadu) 1. DR. V.J. VIKRAM & ANR. S/O. DR. V.S. JAGANNATHAN, F-2, 97 & 98, R.K. MUTT ROAD, MANDAVELI, CHENNAI-600028 TAMIL NADU 2. MRS. V. SURYAKANTHAM W/O. DR. V.S. JAGANNATHAN, F-2, NO. 97 & 98, R.K. MUTT ROAD, MANDAVELI, CHENNAI-600028 TAMIL NADU ...........Appellant(s) Versus 1. USHA ANANDAN PROPRIETRIX, M/S. UMA MAHESWARI CONSTRUCTIONS, F-1, 97 & 98, R.K. MUTT ROAD, MANDAVELI, CHENNAI-600028 TAMIL NADU ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT :
Dated : 14 February 2024 ORDER
For Usha Anandan : Mr. R. Anand Padmanabhan, Advocate
Mr. Avnesh. O, Advocate
For Dr. V.J. Vikram & Anr. : Mrs. Revathy Raghavan, Advocate
Mrs. Divya Singhvi, Advocate
1. These are two appeals filed by the owner and the builder/developer as well as the purchaser respectively regarding the premises wherein the flat purchaser/complainants had raised their grievances before the State Commission about certain deficiencies in service and compensation due to the loss suffered by them arising out of the alleged deviations in the construction and also depriving them of their user rights as agreed upon between the parties. The complainants have filed FA No.80/2014 being not satisfied with partial relief granted to them upon accepting the deficiency and have prayed for enhancement.
2. The appeal filed by the complainants raises a grievance that the State Commission, after having found the deficiencies established, erroneously awarded a very small amount of compensation of Rs.75000/- on account of the contraventions alleged together with a cost of Rs.10000/-.
3. FA/319/2014 has been filed by the builder praying for setting aside the entire impugned order passed by the State Commission dated 05.12.2013.
4. The dispute has a long chartered history and therefore, it is necessary to arrange facts in seriatum in order to understand the exact nature of the grievance raised in the complaint and to appreciate the contentions raised in both the appeals.
5. There existed an old tiled house with a municipal old door number 73 situated on survey no.4192/2 and 4196/4 of Village Mylapore on R.K. Mutt Road, Mandaveli, Chennai. The area of the said land over which the aforesaid old house was situated, is stated to be approximately about 2405 sq. ft. Admittedly, the property belonged to Mr. Anandan which was his ancestral property and he decided to demolish the old tiled house and launch a project in the name of his daughter Uma Maheshwari Constructions along with his wife Mrs. Usha Anandan. Consequently, in the year 2001-2002, the aforesaid plan was sought to be executed and accordingly, a sanction for the aforesaid plan was moved before the competent authority that is stated to have been sanctioned on 08.11.2002.
6. It appears that after demolition of the old building, new constructions commenced planned with a basement and two floors with two flats on each floor, a first floor and a second floor. The floor above the basement appears to have been utilized as a parking area and partly as a jewellery shop of the owner Mr. Anandan who has an ancestral business belonging to the family of Vishwakarma Achari Jewellery Makers. The building, as planned, was to comprise of only four residential flats on two floors.
7. It also appears that the complainants Dr. V.J. Vikram and his mother Mrs. Suryakantham proposed to buy a flat on the first floor of the said construction and with that end in view, a construction agreement was entered into on 26.08.2003. According to the said agreement, a flat on the first floor was negotiated along with an undivided common share of the land of the property described in the schedule of the said agreement. It seems that the flat was almost constructed and in a very short span of the said agreement, the sale deed was executed on 02.09.2003 with the complainants promptly entering into possession of the said flat. The other flat on the first floor was retained by the owner and the other two flats on the second floor were sold to Mr. and Mrs. Sarvanan and one Mr. Balaji respectively.
8. The complainant alleges that after possession of the premises, which according to them was purchased for the purpose of running a Chartered Accountant Office, they started experiencing that the enjoyment of the common areas was being disturbed and that the parking area had been settled with the other two flat owners depriving the complainants of the enjoyment of that area. Thus, this dispute was raised by the complainants regarding common enjoyment of the common areas including parking and basement, and not only this, the owner/builder is alleged to have deviated the building plan by creating additional space in the basement area and also in the constructed area of the flats.
9. The complainants also started complaining of an incorrect utilization of the basement area for commercial purposes as a manufacturing unit of Orthopaedic machines which, according to the complainants, could not have been done as the area was a residential area. The complainants also alleged that many strangers loitered about there on account of such commercial activity in the basement that also caused noise pollution as well as other disturbances.
10. According to the appellants, the complainants started raising these complaints and also approached the Chennai Metropolitan Development Authority from where notices for demolition in respect of alleged deviations in the constructions were issued on 19.01.2004, 13.02.2004 and again through the Assistant Commissioner on 20.02.2004 to answer the said notices. Since there was a threat of demolition as well, the owner/builder filed Writ Petition No.3245 of 2004 wherein an interim order was granted on 18.02.2004. The complainants sought impleadment in the said Writ Petition through Miscellaneous Application No.3772 of 2004 which was dismissed by the High Court of Madras on 06.10.2004.
11. The complainants also appear to have approached the Electricity Department for discontinuing the electricity connection in the basement area and the shop on the ground that these were commercial connections which could not have been extended for any commercial use in a residential area. The complainant no.2 Mrs. Suryakantham and one of the other flat owners to whom the flat had been sold namely Mr. R. Balaji, both joined together and filed Writ Petition No.77 of 2005 and Writ Petition No.27381 of 2007 for a mandamus to the Electricity Board to discontinue the two commercial electricity connections given to Mr. and Mrs. Anandan. The said Writ Petitions were dismissed on 18.09.2007. It is to be noted that these very objections regarding the area being a residential area and not commercial, were raised, as during the pendency of the Writ Petitions an Assistant Engineer of the Municipal Corporation of Madras had given a no objection certificate which was withdrawn. The High Court held that such withdrawal of the no objection certificate originally given was not a necessary factor for continuing service connections and was irrelevant. It was also held that there was no irregularity or illegality committed by the Electricity officials in extending the electricity connections.
12. It appears that during the said period, the notice of discontinuation had been issued by the Electricity Department to Mr. V. Anandan, the owner who filed Writ Petition No.37181 of 2005 for quashing the said notice issued on 26.10.2005. The said Writ Petition was also disposed of on the same date i.e. 18.09.2007 observing that once the electricity connection had been given, there was no occasion to disconnect the same and since the complaint giving rise to the said issuance of connection had also been dealt with and the Writ Petition filed by the complainants had already been dismissed, no further orders were required because the service connections had been restored and also allowed it to be continued as such. The said order is also on record. It is during this period that the suit had been filed referred to above in 2008.
13. The Writ Petitioner Mrs. Suryakantham upon dismissal of her Writ Petition, alongwith Mr. R. Balaji, filed Writ Appeals challenging the order of the learned Single Judge dated 18.09.2007 in the Writ Petitions referred to above. A Division Bench of the Madras High Court dismissed the Writ Appeals and observed as follows:
8. The Tamil Nadu Electricity Supply Code, 2004 and Chapter 3 provides for disconnection of the electricity service connection already given for non-payment of electricity charges only. In the absence of any specific provisions empowering the Electricity Board to disconnect the service connection on the complaint made by some of the building owners that the jewellery shop has been constructed in the common area which is in violation of the sanctioned plan, we afraid of such a direction can be given by way of a mandamus by invoking the power under Article 226 of the Constitution of India. The entire ground of attack of the appellants is that the construction put up is not in accordance with the statutory provision of the Madras City Municipal Corporation Act and DCR framed thereunder. If that be so, it is well open to the appellants to move the appropriate authority or forum for appropriate action. Leaving that, a relief which is unsupported by any statutory provision is sought for which has been rightly rejected by the learned single Judge. We find no reason to interfere with the orders of the learned single Judge in the absence of any statutory provision in support of the Electricity Board to disconnect the connection already given.
9. Accordingly, the writ appeals are dismissed. This judgment would not preclude the appellants to invoke any other remedy available to them under law. Consequently, connected miscellaneous petitions are also dismissed. No costs.
14. It appears that taking a clue from the observations made as quoted hereinabove, the complainants filed CC No.43 of 2008 which has given rise to the present two appeals.
15. It may be again reiterated as noted hereinabove that the owner had filed Writ Petition No.3245 of 2004 against the notices of demolition issued by the Chennai Metropolitan Development Authority where a stay order was granted. In the said Writ Petition, the impleadment application filed by the complainants had been dismissed on 06.10.2004.
16. In the meantime, one of the flats that had been purchased by Mr. Balaji in the second floor, was purchased by Mr. Jagannathan and his other son Mr. Vinil Kumar. Mr. Jagannathan, as stated, is the husband of Mrs. Suryakantham and father of Mr. V.K. Vikram in the complaint giving rise to these appeals. The second flat was purchased by Mr. Jagannathan and his son Mr. Vinil Kumar and they moved an application for impleadment in Writ Petition No.3245 of 2004 praying that they should be impleaded and heard. The said application was dismissed by the learned single Judge on 16.04.2009 and they preferred Writ Appeal No.583 of 2003 before the Division Bench of the Madras High Court. The said Writ Appeal, after noticing that the impleadment application of Mrs. Suryakantham had been dismissed and had become final, observed that this was a second round of impleadment raising the same issues and dismissed the appeal. While dismissing the same, the Division Bench observed as follows in paragraph 13 to 15 :
13. It is not as if the Appellants are left with no other remedy. Appellants have already filed Civil suit in OS No.352/2008 before VIII Assistant Judge, City Civil Court, Chennai against is Respondent and his wife (Usha Anandan), Alleging has also filed complaint before the State Consumer Disputes Redressal Commission, Chennai in CCN-43/2008 claiming compensation of Rs.25,00,000/- for the loss and injury suffered due to deficiency in service That apart, 2nd Appellant has also lodged criminal complaint before the Inspector of Police, Foreshore Estate Police Station, Chennai on 3.7.2004 and complaint before Commissioner of Police, Chennai on 11.7.2008. Appellants even while pursuing his remedy before the appropriate forums, 2nd Appellant has sent repeated representations to the Chief Minister's Cell and also preferred several Petitions before Commissioner, Corporation of Chennai. 2nd Appellant has not even spared daughters of 1st Respondent and is said to have sent complaint to the school authorities where daughters of 1st Respondent are studying.
14. Noticing dismissal of earlier impleading Petition IMP MP No.22662/2004] and other circumstances, learned single Judge rightly-dismissed the impleading Petition and we do not find any reason for interference with the order of learned single Judge.
15. In the result, this Writ Appeal is dismissed. No costs. Consequently, the connected M.P. is closed.
17. The aforesaid narrative indicates the litigative pursuits undertaken by the complainants where their effort to get the electricity connection discontinued failed and with regard to the proceedings initiated before the development authority for demolition, their impleadment applications were also rejected in the Writ Petition filed by the owner, in which a stay order was operating.
18. The said Writ Petition No.3245 of 2004 was finally disposed of on 12.04.2012 observing that such issues pertaining to the regularization of any deficiencies under the Tamil Nadu Town & Country Planning Act, 1971 have to be determined by the competent authorities and since the same issues are pending before the Apex Court, decisions would be taken in accordance thereof.
19. It may be mentioned that no final decision in respect of the allegations of deficiencies have been taken by the competent authority and it has been brought on record that notices were again issued on 09.01.2013 in respect of locking and sealing/demolition of the premises followed by another notice on 03.06.2014 in respect thereof. The notice allegedly calls upon the occupiers of the premises to discontinue occupation of the same. There is nothing on record to indicate any adverse orders being passed by the competent authority in this respect.
20. The complaint giving rise to the present controversy, has been allowed by the impugned order dated 05.12.2013 observing that the complaint is not barred by limitation, though the building rules have been violated and there is a deviation and therefore, as per clause 15 of the agreement, the complainants who have been prevented from making use of the common area and its incorrect use, are entitled for compensation because of contravention of clause 15. The observation on the basis of which the complaint has been allowed need to be extracted herein under in order to appreciate the grounds raised in both the appeals:
Regarding this as we have already observed that the complaint is not barred by limitation and there is no need to consider that the agreement for limitation separately once again and since as per the clause-15 of the agreement under Ex.A1 still the violation and deviation of the construction are continues in existence and not removed or set right as on date of complaint and as the complainants have already initiated various proceedings against the opposite party and other parties as per the proceedings under Ex.A4 to A6, A8, A9, A12 to A17, 19 etc. and as per the condition clause-15 the first part of opposite party assures that the construction shall be as per the approved plan and in any deviation resulting in any loss to the party of the 2 part (complainant) shall be compensated by the first part (opposite party) since the complainants have established the loss and sufferings by initiating various proceedings against the opposite party and against the Tamil Nadu Electricity Board for effecting commercial service connection to the unauthorized construction in the building in which the complainants have purchased a flat against the flat owner's Interest and by permitting the employees and using the common area contravening the basement for the purpose of car parking and using of common areas facilities by other persons other than the flat owners would all causing mental agony and harassment, loss to the complainant which are to be compensated as per the Clause- 15 of the construction agreement and thereby there is deficiency of service on the part of the opposite party by contravening of clause-15 of the construction agreement dated 26.8.2003 (Ex.A2) and we answer this point accordingly.
21. The State Commission further proceeded to quantify the quantum of compensation which was claimed to the tune of Rs.25 lacs. The conclusion drawn for awarding a lesser amount is contained in paragraph 9 of the impugned order which is extracted herein under:
9. In this case the complainants have suffered loss and injuries due to the various activities of the opposite party in violation of conditions as per the clause-15 of Construction Agreement dated 26.8.2003 constructed additional building for the purpose of business nature raised of basement to the ground floor and allowing the employees to stay in the complex permitting to use the facilities by others meant for the flat owners only which are all causing depression, mental agony to the owners of the Flats in enjoying their property in peaceful manner and such nuisances violations are still continuing and by considering the Civil suit also filed by the complainant regarding the relief for restoration of enjoyment of common area rights and damages for the suitable amount to the determined by court we are of the view that a sum of Rs.75,000/- as compensation could be awarded would meet the ends of both and thereby we answer this point accordingly.
22. The owner/builder/developer has come up assailing these finding on merits and the complainants have come up for enhancement of the amount. During the pendency of these two appeals, it appears that this issue with regard to deviation and the proceedings pending before the competent authority under the Tamil Nadu Town & Country Planning Act, 1971 was noticed and the following order was passed by this Commission on 19.10.2020:
"Consumer Complaint No. 43 of 2008 has been filed by Dr. V. J. Vikram and Mrs. V. Suryakantham against Mrs. Usha Anandan, seeking following reliefs: "To direct the Opposite Party to pay ₹25,00,000/- as compensation for the loss and injury suffered by the Complainants due to deficiency in service and negligence of the Opposite Party in the short comings in the construction services offered by the Opposite Party contravening the Clause 15 of the Construction agreement dated 26.08.2003 entered between by the Complaints and the Opposite Party." The question as to whether there has been shortcoming in the construction services by Mrs. Usha Anandan or Clause 15 of the agreement dated 23.08.2003, entered between the Complainants and the Opposite Parties, has been contravened or not, is engaging the attention of the Competent Authority under Section 49 read with Section 56 of the Tamil Nadu Town and Country Planning Act, 1971. Unless the findings are recorded by the Competent Authority regarding the contravention of Clause 15 of the said Agreement, we cannot proceed in the matter. We, therefore, request the Competent Authority to decide the matter, which has been filed in the year 2004 - 2005 by Mrs. Usha Anandan, expeditiously in accordance with law within a period of 8 weeks from the date of filing of a copy of this Order before the Competent Authority. The Competent Authority is requested to send a copy of the Order to this Commission so that we may proceed with the matter. The parties may file the copy of this Order before the Competent Authority. All other points which are available to the learned Counsel are left open. List the matter on 11.01.2021 through physical hearing."
23. On 18.03.2021, the Commission was informed of the pendency of a Writ Petition filed before the Madras High Court being Writ Petition No.23389 of 2017 as a consequence whereof the competent authority has not been able to decide the matter. The case was accordingly adjourned for six months and the following order was passed on 18.03.2021:
Mr. R. Anand Padmanbhan, learned Counsel for the Appellant states that pursuant to the Order dated 19.10.2020 he had approached the Competent Authority to decide the matter but he has been informed that on account of the pendency of the Writ Petition No. 23889 of 2017 pending before the Hon'ble Madras High Court, the Competent Authority cannot decide the matter. We therefore deem it appropriate to list the matter after six months. In the meantime, if the Hon'ble Madras High Court decides the matter the learned Counsel for the parties shall apprise the same.
List on 25.10.2021.
24. The position as on date remains the same which was also noticed in the order dated 25.10.2021.
25. Learned counsel for the complainants urged that the matter cannot be kept pending merely because such disputes are pending before the High Court or even before the Apex Court. Accordingly, on 21.08.2023, the following order was passed:
It is stated at the Bar by the learned Counsel that an issue regarding deviation about which an observation had been made by this Commission was engaging the attention of the Madras High Court where in respect of such deviation a Writ Petition has been filed and an interim order was passed. It is further informed that the issues arising out of Section 113 of the Tamil Nadu Town & Country Planning Act, 1971 regarding deviation and the extent of their compounding is already engaging the attention of the Apex Court in a couple of matters and the Madras High Court has disposed of the matter observing that the parties would be bound by the decision to be rendered by the Apex Court. It is in this background that the present Complaint has to be considered and the contention appears to be that the jurisdiction of this Commission will be confined only to the relief claimed for payment of compensation in terms of the Consumer Protection Act and not otherwise. Today since no time is left, let the matter be listed on 08.01.2024.
26. Thereafter, arguments were advanced on 08.01.2024 and the following order was recorded:
Heard learned Counsel in both the cases which are cross appeals arising out of a common order passed by the State Commission dated 05.12.2013. The Complaint filed by Dr. V.J. Vikram and Mrs. V. Suryakantham alleges facts which according to the Complainants are allegations of deficiency in service and unfair trade practice. The claim was that due to the loss and injury suffered by the claimants on account of deficiency in service and negligence a sum of Rs.25,00,000/- be compensated. The said complaint was examined where the owner cum developer of the propoerty arrayed as Opposite Party namely, Ms. Usha Anandan, took a plea that the complaint was barred by limitation keeping in view the provisions of Section 24A. The Commission answered it in favour of the Complainants stating that it was a continuing cause of action and therefore the complaint was maintainable. The second issue framed by the State Commission was about deficiency which was alleged by the Complainants to be deviations under Clause 15 of the Construction Agreement dated 26.08.2003. A copy of this agreement is available on record in First Appeal No. 80 of 2014 which has been filed on 11.02.2014. The State Commission came to the conclusion that the deviation was established as various proceedings had been initiated against the Opposite Party and since there was a Clause compensating the Complainants, hence the claim was allowed. The findings recorded by the State Commission in the form of a narrative are that the electricity connection in the jewellery shop and the utilisation of the area constructed as well as the excess area of the flats amounted to deviation. It is also stated in the Impugned order that the occupation of the basement area for car parking purposes and the use of common area facilities including a toilet by outsiders and other persons other than the flat owners was causing mental agony to the Complainants and therefore this violated Clause 15 of the agreement. Hence the Appellant was entitled for the relief prayed for. Accordingly it proceeded to consider the issue of compensation also and came to the conclusion that a sum of Rs.75,000/- would be payable to the Complainants and the complaint was accordingly allowed. These two cross appeals have been filed, one by the land owner cum developer, being First Appeal No. 80 of 2014 praying for setting aside the impugned judgment and the other appeal being First Appeal No. 319 of 2014 has been filed by the Complainants praying that after having arrived at the conclusion that there was a deviation and violation of Clause 15 of the agreement, the Complainants were entitled to higher compensation and therefore the relief sought is for modifying the impugned order and enhancing compensation to be paid to the Complainants. It is also on record that the Complainants had prior to the filing of this complaint filed civil suit no. 1058 of 2008. This civil suit according to the Opposite Party/Appellant prays for reliefs which are almost similar if not identical to the reliefs prayed before the State Commission. It is therefore submitted by the Learned Counsel that the complaint cannot be allowed to be proceeded with once the Complainant has chosen to elect the remedy of a civil suit, where all such pleas have been raised and can be effectively adjudicated as well, subject to objection being taken in this regard. It is also to be noted that the recital in the agreement is for the construction of a flat, the possession whereof was to be handed over in terms of the Clause 7 of the said agreement. The dispute which centres around between the parties in this case is with regard to an alleged violation of Clause 15 which recites as follows.... "15. The Party of the First Part assure that construction shall be as per the approved plan and any deviation resulting in any loss to the Party of the Second Part shall be compensated by the Party of the First Part." A perusal thereof indicates that compensation can be claimed by the Complainants provided any deviation has resulted in any loss to the Complainants. This issue according to the learned Counsel for the Opposite party does not arise at all, inasmuch as no loss has been caused to the complainants so far as their entitlement to the flat is concerned. He also submits that, over and above, these Complainants have purchased another flat in the same building and therefore the Complainants are enjoying both the flats along with the alleged deviations, which is an excess of area, and has not caused any loss in any tangible terms till date. It is therefore submitted that Clause 15 is nowhere attracted, which has been stretched by the State Commission to include alien grievances, which were otherwise not part of the agreement or could even form part of any deficiency in service or any unfair trade practice. Learned Counsel for the Complainants however submits that the common enjoyment areas including basement and other such enjoyments have been taken into account and the mental agony caused on account of the other activities being carried out are also deviations and hence the State Commission was justified in proceeding to award compensation. To this argument learned Counsel for the Opposite party/Appellant has invited the attention of the Bench to a proposal memo filed by the Complainants before this Commission which is at page 87 of the paper book of First Appeal No. 319 of 2014. It is urged that according to the proposal of the Complainants, the claim with regard to deviations in the basement and in the ground floor and first floor as indicated therein are not being pressed. Learned Counsel for the Complainants submits that she stands by the said averments made in the proposal and even otherwise prima facie it appears that the said proposal might be detrimental to the occupation of the flat by the Complainants, more so when there are two flats at the moment being occupied by them. In the wake of the aforesaid background of the case the only issue that has to be determined is regarding the allegation of deficiency in service or any such unfair trade practice arising out of Clause 15 of the agreement relating to the flats purchased. Learned Counsel for the Complainants requests for an adjournment to assist the bench. Put up on 10.02.2024 (Saturday) as prayed. Registry to arrange sitting accordingly.
27. The necessity of reproducing the aforesaid order has arisen because of the proposals made on behalf of the complainants for not pressing the claim with regard to the deviations in the basement, ground floor and the first floor owned by them. The said request was noted and recorded in the aforesaid order.
28. In between, the complainants have moved a clarification virtually trying to explain that the observations recorded in the order quoted above did not amount to any consent to withdrawal of the major and grave violations in respect of points no.3 to 5 of the said proposal. Since the same will have some bearing on the outcome of these allegations, it would be appropriate to extract the contents of this clarification note dated 31.01.2024 filed by the complainants which is extracted herein under:
1. I am the advocate of the Appellants in FA 319/2014 and Respondents in F.A.No.80/2014 seeking the following clarification to the interim order dated 08.01.2024 passed by this Honourable Commission.
2. I humbly submit that this Honourable Commission during the proceedings in 2019 suggested both counsels of Appellants and Respondent to suggest an amicable solution. A suggestion in the form of a Proposal was filed which is reproduced verbatim:
Proposal to Honorable NCRDC at Delhi The Appellant Mrs. Usha Anandan was served with demolition notice dated 19.01.2004 u/s. 256 (1) of Chennai City Municipal Corporation Act, 1919 with respect to the property bearing No.97 & 98 R.K.Mutt Road, Mandavell, Chennal-28. Thereafter a notice is served to all flat owners vide Letter No.2/2012 u/s. 56 of Tamilnadu Town and Country Planning Act, 1971 dated 09.01.2014 with defects/ deviations as follows:
1. In the basement:
Northern side deviation by 1.6 meter Southern side by 1.75 meter Eastern side by 1.07 meter and NOT PRESSED Western side by 0.30 Meter
2. In the Ground floor & first floor: Northern side deviation by 0.73 meter Southern side by 0.72 meter and PRESSED NOT Eastern side by 1.78 meter
3. In basement floor, the usage as given in the plan (common use as store room) and partly used as commercial
4. In ground floor, partly used a commercial purpose (jewelry shop by Mrs. Usha Anandan and her husband) and
5. South Eastern corner (of ground floor) a toilet of size 1.75 Meter *1.05 Meter has been constructed Unauthorizedly for facilitating use of commercial space.
Relief sought:
a) Only Deviations as mentioned 3 to 5 are to be removed and set right so as to punish the errant builder from profiteering. Points 1 and 2 not pressed as it is adverse to us at this present stage because we are living in it and it will endanger the structure (innocent party concept).
b) Commercial business in the Basement must be abandoned and restored as store room for the use of all flat owners
c) Jewelry business in ground floor has to be abandoned and the northern wall of the shop is removed so as the original car park area is restored.
6. The structural safety has to be kept in mind while undertaking the modification work and the Corporation of Chennai and Police Commissioner may be directed to take necessary steps to ensure no untoward incident takes place while setting right the violations.
7. The corrective work is to be carried under the supervision of an approve work Structural Engineer and a Compliance Report shall be filed with the Honorable Commission on satisfactory correctional work done in accordance with the order.
8. Since the Builder is a chronic defaulter and had not carried out the correction work since served notice of demolition on 19.01.2004 and thereafter 03.06.2014, a supervisory authority namely a reputed builder or structural engineer shall be entrusted to carry the removal of violations.
Two copies of approved plan are furnished. No certified plan could be procured from the Corporation of Chennai as the entire records kept in Saidapet Record Room were washed away and hence only Xerox copies are available.
Residential address: Mrs. Revathy Raghavan Advocate A-119, Mayur Vihar- Phase I, Pocket I Chambers New Delhi Mrs. Revathy Raghavan Advocate 109, New Lawyers C. Setalvad Building Supreme Court, New Delhi
3. I humbly submit that the Honourable Commission has observed in Para 8 of the order dated 08.01.2024 that "It is urged that according to the proposal of the Complainants, claim about deviations in the basement and in the ground floor and first floor as indicated therein are not being pressed."
4. I humbly invite the attention of the Honourable Commission that SI.No. 1 & 2 are 0.73 meters of concreted pillars of the foundation which is the setback to the building and as denoted in Sl.No. 1 & 2 of the proposal submitted to this Honourable Commission. I further submit at any point in time I have not consented to withdraw all major and grave violations in Sl. No.3 to 5 which were upheld as violations by the Honourable State Commission.
5. I humbly submit that the plain reading of Para 8 suggests that as if I have consented to give up all violations when the Respondent has not consented to adhere to the conditions in "Relief sought" in the said proposal and hence this is brought to the attention of this Honourable Commission to pass a suitable clarificatory order in this regard.
Under these circumstances, it is prayed that this Honourable Commission be pleased to pass suitable clarificatory order/s to understand the correct and factual meaning to the Proposal submitted by me and thus render justice.
29. The arguments on behalf of the complainants raised is that the finding recorded by the State Commission on deficiency and award of compensation should be upheld with the modification that the entire amount as claimed for the deficiency should be awarded and to that extent, the order should be modified. While defending the order of the State Commission, learned counsel urged that so far as deviation is concerned, the same is being proceeded with before the competent authority and merely because it has not been finalized, it cannot amount to a denial of the reliefs as prayed for before the Consumer Fora and consequently, the same cannot be a ground to forestall the execution of the relief granted by the State Commission.
30. It is further submitted that right from day one, deficiencies existed and were a continuing cause of action. Hence, the State Commission rightly came to the conclusion that the complaint had been filed within limitation.
31. It is then submitted that the common area and the common enjoyment of such area cannot be prevented and filing of the suit or any other interventions before the High Court cannot be an impediment in pursuing the present cause in the complaint which is protected in terms of Section 3 of the Consumer Protection Act, 1986 as well as in terms of the Division Bench order dated 18.02.2009 in Writ Appeal No.583 of 2003 as extracted hereinabove. The contention is that not only the cause of action is continuing but is also alive and therefore, it was rightly determined by the State Commission.
32. It is also urged that the pendency of the proceedings before the competent authority in respect of the deviations or even the pendency of the suit cannot take away the right of the complainants to pursue the remedy available under the Consumer Protection Act, 1986 and therefore, the State Commission has rightly awarded the reliefs as well as the compensation which deserves to be enhanced.
33. Learned counsel has also argued that the utilization of the premises even otherwise violates the laws relating to residential units and is also a deviation in terms of Section 15 of the Construction Agreement. Hence, the deficiencies are established.
34. On the date when the orders were reserved, a fresh set of written arguments were filed on behalf of the complainants claiming Rs.52 lacs as compensation and on the legal plane, the submissions advanced are that the basement of the building is according to the sanctioned plan and the right to use this basement as a common area, is protected under the transfer of undivided share of the land as per the agreement dated 26.08.2003 coupled with the subsequent sale deed dated 02.09.2003.
35. Learned counsel has advanced another submission contending that the basement forms part of the common area and is included in terms of the agreement as also in view of the law laid down by the Apex Court in the case of Nahal Chand Laloo Chand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Limited Civil Appeal No.2544 of 2010 along with connected appeals decided on 31.08.2010, AIR 2010 SC 3607. Relying heavily on the said judgment, the learned counsel submits that it is settled by the said decision that basement is also part of the common area and if the same does not find a recital in the agreement, it cannot be treated to be beyond the agreement and the builder/developer cannot be permitted to prevent the complainants from using the same. It is urged that the said area having been sold to the other two flat owners, cannot denude the complainants of their rights to use the same. On the other hand, the developer/builder cannot be permitted to use the basement or any other area for any commercial purpose including running of a shop and therefore, this is a deficiency of service and an unfair trade practice. Hence, the order of the State Commission does not suffer from any infirmity.
36. The final argument which was advanced on behalf of the complainant is that under The Tamil Nadu Apartment Ownership Act, 1994 and according to Section 3(h)(iii), basements are also common areas. Thus, the complainants also have a statutory protection and right emanating therefrom to enjoy the benefits of the basement as a common area.
37. Learned Counsel for the builder/developer Appellant in FA No 80/2014 Mr. Padmanabhan for the has advanced his submissions contending that none of the reasons given by the State Commission to maintain the complaint are tenable and the findings are vitiated in fact as well as in law. Learned Counsel urged that the background in which the litigation was pursued and commenced, establishes that the property was purchased by the Complainants with open eyes and after perusing all documents including the building plan etc. as they are not laymen but are people from the legal and financial profession. The status of the property and the construction were all known to them and they immediately entered into possession in 2003 itself. Thus they had full knowledge of the status of the construction as also its utilization. They also knew that the other two flats on the floor above had been sold to Mr. Balaji and Mr. & Mrs. Saravanan.
38. Learned Counsel contends that the builder had offered the space for parking to the Complainant as well but they refused to avail of the said facility and it is thereafter that it was settled with the other two flat owners. The contention is that the dispute began with small things including the usage of basement and jewellery shop of the builder. It is urged that the complainants had no concern with the same but they tanned excesses and went up to extent of making complainants all over resulting in multifarious litigations faced by his clients. It is urged that the dispute of the electricity connection was contested where the complainants lost the battle. They also instituted a suit on the same ground and for the same relief and therefore this complaint could not have been entertained much less decreed by the State Commission. It is clear that the suit was filed prior to the filing of the complaint and the complaint was instituted without even disclosing the fact that the same relief was being claimed as was prayed for in the suit itself. In this background when the Impleadment applications of the Complainant before the High Court in the matters relating to the alleged deviation and notice of demolition has been dismissed, they cannot on the same ground come up and claim for a relief which is not within the jurisdiction of this Forum and is yet to be decided by the competent authority.
39. In essence the argument of Mr. Padmanabhan is that in the absence of any finality to the proceedings relating to deviation and demolition before the Development Authority, the same cannot be made a ground for deficiency in service. Learned Counsel submits that it is for this reason that the Complainants have come forward with a proposal of not pressing their plea in respect of the alleged deviations in the basement and the ground and first floor that has been recorded in the Order of this Commission on 08.01.2024. Learned Counsel submits that such an argument on deviation is clearly to the disadvantage of the complainant who subsequently has purchased one of the flats from Mr. Balaji on the second floor. It is alleged that if there were deviation or there was any such lapse then the complainant family would not have purchased another flat in the same building. He contends that this is a strong circumstance to infer that the complainants are not really interested in pressing the issue of deviation, rather they are more interested in acquiring more share of the property beyond the agreement in the basement area.
40. It is argued by Mr. Padmanabhan that the basement area is not a common area either contemplated in the agreement or the sale and it was never part of any such settlement with the flat buyers. The basement was, and remained the exclusive property of the builder/developer that has been settled later on. He submits that the builder and the developer are no one else then the owners of the property who have kept for themselves one flat and the other constructions including the basement. It is submitted that under the agreement the only transfer to the complainants is in respect of one flat on the first floor coupled with the undivided share in the entire area of the land. No other common facility or common area is contemplated to be parted with either under the agreement or the sale. The inclusion of the basement etc. cannot be inferred nor can it be deemed to have been included as part of the agreement.
41. It is alleged that a new argument at the time of final hearing regarding basement being a common area, is not at all attracted in as much as this was neither pleaded in the original complaint nor can it be gathered from any other document that the basement was also meant to be owned by the complainant. Learned Counsel has alleged that the Judgment in the case of Nahalchand Laloochand Private Ltd. (Supra) is nowhere attracted in as much as the said judgment was in context of MOFA [Maharashtra Owners Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 read with Rule 1964 which is specific to apartments as defined under the said Act. It is alleged that it is under the provisions of the said Act that the Apex Court was interpreting the definition of the word "Garage" that was being claimed with regard to stilt parking space. It was held that an open parking space does not tantamount to a garage within the said Act, but while interpreting the provisions relating to common areas and facilities under Section 3 (f) of MOFA Act, it concluded that the definition includes basement as well within the common area.
42. It is urged that there is no such pleading in the present complaint and even otherwise the Maharashtra Act nowhere applies on the facts of the present case.
43. Responding to the applicability of the Tamil Nadu Apartment Ownership Act, 1994, it is urged that the said Act does not apply on the facts of the present case and this was a simple case where the owner of the property demolished his old house and raised constructions wherein provisions were for four residential flats only on two floors. This was therefore not an apartment so as to attract provisions the 1994 Act.
44. The construction in question consists of basement, ground floor and the four flats above it. The said construction therefore does not qualify for the application of the 1994 Act.
45. The submission is neither any provision of the agreement or any provision of law is attracted and even otherwise there is no fact so as to establish that any loss has been caused to the complainants on account of any deviation. It is therefore submitted that Clause 15 of the agreement dated 26.08.2003 was nowhere attracted and the complaint is totally misconceived which deserves to be dismissed.
46. It is also the contention of the learned Counsel that any right regarding the usage of the basement or parking space is completely out of the context which services were never offered under any document and therefore deficiency was nowhere established. The State Commission has overlooked these aspects of the matter which have neither been properly apprised nor appreciated hence the impugned order deserves to be reversed.
47. Having considered the submissions raised in both the appeals and having perused the voluminous documents on record as well as the judgment cited at the bar, it is evident that the property seems to have been negotiated on an "as is where is" basis. The possession was taken shortly after the construction agreement dated 26.08.2003 and the sale deed was executed promptly on 02.09.2003. It is not disputed that the complainants entered into possession of the premises in 2003 itself.
48. They purchased the property with eyes wide open. It was an existing construction and not something which was added or subtracted later on. The construction agreement nowhere negotiates either basement or parking as apartment facility for the flat. Even though the complainants had started raising complaints against the owners/developers through various litigations, the suit came to be filed in February, 2008 and the complaint giving rise to the present appeal was filed in July, 2008. This was therefore five years after taking possession. It cannot be said that the complainants did not know of the alleged deviations nor is it their case that it was discovered later on.
49. The dispute started with regard to the usage of common areas and then gradually this percolated into litigation and finally converted into the filing of a suit in February, 2008. The complaint as noted above was filed in July, 2008 alleging deficiency more particularly based on Clause 15 of the Agreement which is extracted herein under :-
"15. The Party of the First Part assure that construction shall be as per the approved plan and any deviation resulting in any loss to the Party of the Second Part shall be compensated by the Party of the First Part."
50. A perusal of the said Clause would indicate that if there is any deviation resulting in any loss to the complainant then only it would operate to entitle the purchase to be compensated. From the facts narrated above, the alleged deviation is yet to be examined by the Development Authority before whom, the said issues are stated to be pending. Not only this, there is a mention of the Orders passed by the Madras High Court in Writ Petition No.23889 of 2017 and matters of such nature are also probably engaging the contention of the Apex Court. Thus, there is no determination of any alleged deviation which cannot be examined by this Commission as it squarely falls within the jurisdiction of the competent authority in terms of the Tamil Nadu Town and Country Planning Act, 1971. The Development Authority exercises exclusive jurisdiction to pass orders regarding deviation or demolition. The said jurisdiction has been already invoked by the competent authority and unless a finding is returned, the Consumer Forum will not have any jurisdiction to comment on the same as in the facts and circumstance of the present case, it is evident that the complainants themselves voluntarily entered into the premises and did not raise any objection on taking possession of the flats.
51. Not only this, the Complainants family brought another flat in the same premises much later on which according to them is affected by the deviations that are subject matter before the Development Authority. The preponderance of probability in the above background leans in favour of the circumstances that the complainants voluntarily and knowingly have occupied the premises and they had no qualms about any such deviation when they purchased the property that was a constructed flat and took possession of it. Having entered into possession and having contested the litigation sideways before the High Court, the complainants came up with a proposal before this Commission that they do not propose to press the issue of deviation as indicated in the proposal that has been recorded in the Order dated 08.01.2024.
52. It is thus evident that the complainants on the one hand want to save the premises and on the other hand are attempting to allege deficiencies without having objected to it when they purchased the flat. They subsequently raised issues as noted above. The deficiencies were made a cause in the year 2008 through the suit filed by them which is almost after five years of taking the possession of the premises.
53. The finding recorded by the State Commission that since the complainants have undertaken various proceedings which established the loss and sufferings of the complainant is a finding which cannot be sustained in as much as merely because several complaints have been lodged, the constructions automatically do not get converted into unauthorized construction or amount to deviation. There is no actual loss to the complainants established which may be on account of any lessening of area or in the quality of construction. There is no such averment about the design and the quality of the construction or any delay in the handing over of possession. In fact there is no challenge to the services that are covered by the agreement and in the absence of any loss identified and established, allegations of deficiency cannot ipso-facto be treated to be conclusive, hence impugned order is erroneous.
54. The complainants have miserably failed to establish that basement or the parking area are common areas available to them so as to contravene Clause 15 of the agreement. In the absence of any such evidence proving the existence of any deviation that might have caused a loss or expected loss, the State Commission could not have arrived at a conclusion of deficiency in service as alleged.
55. On the legal plane also, the arguments advanced that the basement forms part of common area does not stand to reason and as discussed above, the basement area is not a common area under the terms of the Agreement between the Parties and cannot be covered by the provisions of the Tamil Nadu Apartment Ownership Act, 1994 in view of Section 2 thereto which is extracted herein under :-
"2. Application of this Act - This Act shall apply to every apartment in a building constructed whether before or after the date of commencement of this Act:
Provided that such building shall contain five or more apartments or three or more floors and construction of such building has been made in accordance with a planning permit and also a building plan duly sanctioned by the appropriate authority concerned under the relevant law for the time being in force."
56. It is clear that even if a basement is understood under the Act 1994 to be part of a common area, the scrutiny stands excluded by virtue of Section 2 quoted herein above as the construction is of only four flats on two floors above the basement, hence the 1994 Act is clearly inapplicable.
57. The judgment relied on by the learned Counsel for the Complainant for praying basement as a common area therefore is clearly distinguishable and cannot be binding on the present case in view of all the reasons herein above.
58. The Complainant therefore does not have any actionable claim on the ground of deficiency in service and unfair trade practice.
59. The question of award of Rs.75,000/- compensation does not arise as in view of the findings recorded herein above, there is no deficiency in services and the complaint ought to have been dismissed.
60. Accordingly FA No.80 of 2014 is allowed and FA No.319 of 2014 is dismissed on the impugned order of the State Commission dated 05.12.2013 is set aside. The complaint stands dismissed without prejudice to any claim before the Civil Court in O.S. No.1052 of 2008.
.........................J A. P. SAHI PRESIDENT