IN THE STATE COMMISSION:DELHI
(Constituted under Section 9 of The Consumer Protection Act, 1986)
Date of Decision: 28-07-2011
Complaint Case No.107/05
1. LT. UDHAY BHAN SINGH,
R/O Lt. Gulab, Flat No. 504,
2. LT. T. SAMUEL,
R/O Gulab, Flat No. 1202,
3. LT. SHYAM SINGH,
R/O Gulab, Flat No. 1104,
4. SHRI M.A. KHAN,
R/O Gulab, Flat No. 101,
5. SHRI JEEVA NAND,
R/O Gulab, Flat No. 104,
6. SHRI SUKHBIR DAHIYA,
R/O Gulab, Flat No. 904,
7. LT. S.S. RAWAT,
R/O Gulab, Flat No. 303,
8. LT. SURYA PAL,
R/O Gulab, Flat No. 401,
9. SHRI BHAGWAT SINGH,
R/O Gulab, Flat No. 402,
10. SHRI S.P. THAPLIYAL,
R/O Gulab, Flat No. 403
11. SHRI V.B. SINGH,
R/O Gulab, Flat No. 502
12. SHRI D.N. MISHRA,
R/O Gulab, Flat No. 503
13. SHRI S.S. HOODA,
R/O Gulab, Flat No. 404
14. SMT KIRAN JAGLAN,
R/O Gulab, Flat No. 801
15. SHRI RAMAN UNNI,
R/O Gulab, Flat No. 1201
16. SHRI V.V. THOMAS,
R/O Gulab, Flat No. 1203
17. SHRI K.R. DESHPANDE,
R/O Gulab, Flat No. 1204
18. SHRI B.S. DHAWAN,
R/O Gulab, Flat No. 1101
19. SHRI K.K. YADAV,
R/O Gulab, Flat No. 1102
20. SMT MRINAL SAHA,
R/O Gulab, Flat No. 1301
21. SMT JAGDISH RAI,
R/O Gulab, Flat No. 1303
22. SHRI JAGDISH RAI,
R/O Gulab, Flat No. 1304
23. SHRI D.K. BARAD,
R/O Gulab, Flat No. 603
24. SHRI G. SINGH,
R/O Gulab, Flat No. 1302
25. SHRI KAMALASAN NAVAPAT,
R/O Gulab, Flat No. 804
26. SHRI S. KHAIRWAL,
R/O Gulab, Flat No. 703
27. SHRI S.S. ANAND,
R/O Gulab, Flat No. 201
28. SHRI A.S. MISHRA,
R/O Gulab, Flat No. 1402
29. SHRI A. ALEXANDER,
R/O Gulab, Flat No. 1003
30. SHRI G.S. WARIAH,
R/O Gulab, Flat No. 1002
31. SHRI K.P. SREEDHARAN,
R/O Gulab, Flat No. 301
32. SHRI GURCHARAN DASS,
R/O Gulab, Flat No. 901
33. SHRI AABIJIT BANERJEE,
R/O Gulab, Flat No. 302
[ ALL RESIDENTS/ALLOTTEES OF GULAB BUILDING
JAL VAYU DEFENCE ENCLAVE, PLOT NO. 20,
SECTOR – 20, KHARGHAR, NAVI MUMBAI – 410 210 - COMPLAINANTS
Versus
CORAM
MS. KANWAL INDER … PRESIDING MEMBER
MS SALMA NOOR ... MEMBER
Kanwal Inder
ORDER
1. This complaint under Section 17 of the Consumer Protection Act has been filed by the complainants on 28-07-2005 alleging deficiency in service and unfair trade practice on the part of OPs seeking Rs.25,000/- as compensation to each of them besides other directions to OPs.
2. The complaint is being contested by the OPs who have filed reply to which the complainants filed rejoinder. The parties have led evidence by way of affidavits and have filed written submissions.
3. We have heard Ld. Counsel for the parties and have gone through the record.
4. There is no dispute regarding the facts that the complainants are flat owners in Gulab Building, Jal Vayu Defence Enclave, Plot No. 20, Sector 20, Kharghar, Navi Mumbai. They were allotted flats by the OP-1 Air Force Naval Housing Board which was set up to plan, build and allot dwelling units to the Air Force and Naval personnel from all over India under its self finance housing scheme on No profit No loss basis. The OP No.1 had appointed OP-2 as Architect and OP-3 as Construction Company under contract to carry out the construction of the said Gulab building. The OP-1 had offered said dwelling units in May 1994 as per terms and conditions enumerated in its 097 IG message. The scheme had two types of flats; type–1 for officers with approximate total area of 900 sq.ft with initial estimated price of Rs.7.68 lakhs and type-2 for sailor and airmen with approximate area of 600 sq.ft with initial estimated price of Rs.5.12 lakhs. Pursuant to the said IG, officers, sailor and airmen joined the scheme and started paying installments. In August 1995 the OP-1 vide 175 IG message, raised the area to 935 sq.ft and 685 sq.ft and the cost was also raised to Rs.8.2 lakhs and 5.8 lakhs respectively, which was further raised to 6.8 lakhs for sailor and airmen on 01-03-1996. Their area was further increased to 710 sq.ft and cost to Rs. 7.6 lakhs by OP-1 vide letter dated 28-01-1998 and penalty was imposed for withdrawal. Vide letter dated 19-02-1999 the OP-1 required the allottees to pay Rs.32,000/-, Rs.52,000/- and Rs. 90,000/- respectively for scooter parking space, open car parking space and car parking space. The possession of the dwelling units was to be handed over in October 1998, which was subsequently informed to commence from 06-12-1999 but this was also not complied with till February 2000.
5. These allottees have come up with this complaint alleging delay in handing over flats, wrongly collected charges for maintenance and parking space, major cracks on structure and stair case, major leakage and seepage into the building units from the outside walls of the whole of the building and in the stair case loft, major seepage from sunken floors of toilets, leakage from plumbing shaft etc which have not been rectified despite complaints, alleging that the OP-1 has been informed as early as 03-02-2000 about the defects in the flats and repeatedly sent complaints of seepage/leakage which is bound to reduce the strength and life of the building and lead to unhygienic conditions. The OP-1 arranged visit of flats on 03-07-2000 and acknowledged the rectification of the seepage and leakage. However nothing has been done to remove or rectify the seepage despite assurance. The complainants are seeking the following directions to the OPs:
a) To pay the compensation of Rs.25,000/- to each of the complainants for the physical hardship, anxiety and mental harassment suffered:
b) Immediate repair/renovation of the building under the supervision of this Commission and at the expense of AFNHB, Architect and the Construction Company, without diverging or diluting the project fund or the Long term maintenance fund
or in the alternative OPs to jointly and/or severally pay an amount of Rs.37 lakhs being estimated expenses in rectification of defects which the complainant could get done, including suffer any additional cost if found beyond Rs.37,00,000/-:
c) Payment @9% on the amount paid for the period 0/10/1998 till date of handing over possession to the respective allottees as compensation for the delay in handing over of the flats:
d) Return to each of the petitioners the amount wrongly ad coercively collected for parking space:
e) Reimbursement of legal charges of Rs.50,000/-:
f) AFNHB be ordered and directed to give a complete and proper final account of the amount collected as maintenance charges are still not made and given to the allottees therefore the OP-1 may be directed to give the proper account of the money so collected to allottees:
g) Reimbursement of extra charges of Rs.70/-per sq.ft. charges from sailors flats with 15% interest.
6. As regards claim for compensation for delay in handing over possession, no case is made out as the OP-1 had not promised to hand over these dwelling units in October 1998 as alleged. On the contrary it is clearly stated in Clause 9 of the allotment letter that no definite date for completion of construction of the units can be indicated but these are expected to be ready sometimes in October 1998 but in case of delay for unforeseen circumstances no interest shall become payable on the amount deposited by the allottees.
The Complainants allege that it is unfair trade practice on the part of the OP-1 to exclude its liability for failing to deliver possession within the agreed and reasonable time. This mere allegation is of no consequence. The term Unfair Trade Practice has been defined in Section 2 (1)(r) of the Consumer Protection Act 1986 and no such circumstances has been brought on record.
7. A contention has been raised that the OP-1 had been charging interest form the allottees on delayed payment, whereas no compensation was paid to the allottees for delayed handing over the dwelling units. This contention is of no help to the complainants in view of their own submission in the same para that Long Term Maintenance Fund was allotted with the interest charged for delay if any. The OP-1 also says that the interest was not retained by it but was credited to the project in project fund. It further states that interest was charged as per agreement between the parties and to bring at par with the allottees who pay in time.
It is further worth mentioning that possession has been delivered in 2000 and complaint in this regard having been filed in 2005 is hopelessly barred by time.
8. For the reasons stated above we come to the conclusion that there is no substance in complaint in this regard which is time barred.
9. Prayer for reimbursement of the amount for parking space has also no legs to stand. The complainants themselves have averred that it was mentioned in para 7 of information pamphlet that the board may also construct car and/or scooter garages alongwith the dwelling units or may provide parking spaces for them. Annexure ‘C’ allotment letter itself specifies that cost of parking space and maintenance charges will be extra. Vide letter dated 19-02-1999 (Annexure E to the complaint) the OP-1 has explained the reason for providing parking space and cost thereof. Admittedly this was self finance housing scheme and the OP-1 was working on no profit no loss basis. Hence no case for return of amount collected for parking space is made out. Moreover claim for this relief is barred by time as, as per this complaint, last installment was collected on 18-01-1999, while this complaint has been filed on 28-02-2005.
10. No claim for reimbursement of extra charges of Rs. 70 per sq.ft. charged from sailor flat with 15% interest is made out. The complainants have placed on record copy of allotment letter dated 01-03-1996 as Annexure ‘C’ which specifically mentions that cost indicated is tentative with normal escalation and is subject to revision, and that every effort is being made to ensure that final cost does not exceed the cost mentioned but escalation could not be ruled out due to abnormal increase in price of material, labour etc. Admittedly area was increased and corresponding cost of the flat was increased. The complainants themselves have placed on record copy of letter of the OP-1 dated 28-01-1998 Annexure D that representatives had been received to increase the area and expanding the living space in flats and a number of improvements as suggested by the allottees will mean corresponding increase in cost. Further explanation is given in its letter dated 19-02-1999 (Annexure E). Hence the complainants cannot make any complaint in this regard.
11. As regards prayer of the complainants for direction to OP-1 to give complete, proper final account of amount collected as maintenance charges, no cause of action has been alleged in this respect. The only allegation in this regard in the complaint is that the Long Term Maintenance Fund which is yet to be utilized was collected with the interest charged form allottees for delayed payment and statement of account issued by the OP-1 is dated 11-01-2000. Thus no basis has been laid for making such a prayer. Moreover complaint in this regard having not been filed within time as required by Section 24A of the Consumer Protection Act is barred by time.
12. As regards relief of direction to the OPs to carry out repair/renovation, it is evident from pleadings and evidence led by the OPs that receipt of complaints of leakage/seepage etc is not disputed but it is pleaded that guarantee period that is defect liability period was upto 30-09-2002. It is alleged that as per contractual provision, the OPs were committed to rectify the defects under two years of defect liability period which has been done free of cost and for which the satisfactory signatures have been given by Gulab flat owners and the complaint is time barred as per 24A of the Consumer Protection Act. This does not come to the rescue of the OPs in view of their own averments in reply and evidence. The version of OP-1 is that the OP-3 was asked to keep its maintenance team to rectify small faults, defects if reported, during the defect liability period, first such work had been done in September/October 2002; the second collective work was done during May/June 2003, the first major preventive measure has been taken up by Society of Gulab Building in April 2006, the OP-1 had done painting work in October/November 2002 and has not released Bank Guarantee of Rs.5,00,000/- of OP-3 till date. Flat of Mr. Kherwal was repaired in October 2002 and later in October 2003.
13. The OP-3 in its evidence has stated that subsequent to issuance of Virtual Completion Certificate w.e.f. 14-09-2000, it entered into defect liability period for 24 months during which period it was responsible for rectification of the defects that appeared in concerned works: during this period it rectified and carried out repairs diligently and attended to all complaints of the complainants promptly and completed its contractual responsibility with regard to repair and rectification, it promptly attended to the complaints regarding seepage, leakage, cracks etc and kept maintenance team to rectify small faults/defects if reported; even after the completion of defect liability period it rectified and repaired some flats in October 2002 and such collective work of rectification or repair has been done during May/June 2003 and even later in October and November 2003; even though it was decided between OP-1 & 3 that no compliant would be entertained after 26-05-2004, OP 1 & 3 continued to receive new list of complaints, it was only on specific request of OP-1 that OP-3 agreed to go ahead with the repairs of building no. K-202 though the complaint was received after 25-04-2004.
14. Thus the version of the complainants regarding seepage/ leakage/ cracks in the building, complaints regarding which continued to be made, is admitted. Though the OP-2 denied its responsibility for quality of construction or to rectify the same after defect liability period stating that it is Architect and provides consultancy services in the field of Design of Building and allied services but as per its Article of Agreement dated 10-04-1996 with OP-1 it had undertaken the preparation of Architectural, structural, sanitary, electrical, external developments and other engineering designs and drawing etc and provide all other consultancy and allied services necessary to the project including the supervision of the work at site for entire duration of project and was fully responsible for the Quality Control as is evident from clause 3.4(i) which is reproduced below:
“It shall be the sole responsibility of the Architect to provide correct drawings, designs and specifications and to ensure that work is being done in accordance with approved drawings, designs and specifications and that no substandard material is being used in the project. If as a result of the judgment of Consumer Protection Cell it is proved that the defect in the house/houses are due to faulty design, specification or negligent supervision the entire expenditure of setting right the defects including the cost incurred by the Board for defending the case shall be deducted from any payment due to the Architect or shall be reimbursed to the Board by the Architect”.
15. Hence all the OPs are responsible for the defects of leaking/seepage/cracks in the building units provided to the complainant for consideration received. It is evident on record that despite complaints attended to during defect liability period, the problem continued and is still subsisting as pleaded and substantiated by the complainants. Photographs of the building have also been filed.
16. Objection of OP-2 that the complaint is not maintainable as building is situated in Navi Mumbai is of no consequence as it entered into contract with OP-1 and both OPs No. 1 & 2 are stationed at New Delhi and letter of allotment Annexure-C confers jurisdiction on Delhi Courts. It is further worth mentioning that the OP-3 in his reply has not challenged jurisdiction of this commission.
17. The OP-1 has raised an objection that it is a non-profit welfare organization and is not a service provider as per Sec.2(1)(o) of the Consumer Protection Act. This is not so. Hon’be Supreme Court in Civil Appeal No. 6237 of 1990 in RC Lucknow Development Authority vs M.K. Gupta has ruled that housing activity being service covered under Section 2(o) of the Consumer Protection Act, Commission has jurisdiction to entertain complaint regarding service rendered by even statutory and public authorities.
18. For the reasons stated above we hold that there is deficiency in service on the part of the OPs and hence they are liable to renovate/repair the Gulab Building dwelling units of the complainants and to pay them compensation of Rs.25,000/- each as claimed by them for the hardship, anxiety, sufferings undergone by them, as also reimburse them legal cost incurred in taking recourse to law.
19. For the reasons stated above, we direct the OPs to carry out repairs/renovation of the Gulab Building in Jalvayu Enclave, Plot No. 20 Sector-20, Karghar, Navi Mumbai and pay to the complainants Rs.25,000/- each as compensation, with cost Rs.50,000/- within four months of receipt of copy of this order.
20. A copy of this order as per the statutory requirements be provided to the parties free of charge.
21. This file be consigned to Record room after needful is done.
(KANWAL INDER)
PRESIDING MEMBER
(SALMA NOOR)
MEMBER
av
