ORDER
D.P. Wadhwa, J. (President)
1. It
is the complainant who is in appeal before us. Her complaint for alleged deficiency in service and faulty construction against the respondent, architect and constractor was dismissed by the State Commission.
2. Appellant engaged the services of the respondent for construction of her house. An agreement dated 4.4.1998 was entered into, though according to the complainant construction had started in February itself. It was agreed that construction was to be completed within six months’ time and the rate of construction was fixed at Rs. 400/- per sq. ft. for the main building and Rs. 650/- per sq. ft. for the annexe and garage. Complaint was that respondent did not prepare the blue print of the house to be constructed and without that he went ahead with the construction. By December, 1998 only roof of the second floor was cast which required 10 days curing period. In the meanwhile complainant left for Delhi and when she returned she found that respondent had abadoned the work altogether. He had removed all his equipment and labour and a small hut constructed to store cement etc. was demolished and the goods removed. It is alleged that these bricks had been paid for by the complainant. Disputes started between the parties as to the level upto which construction had been completed and the amount due to the respondent. It was the case of the respondent that he stopped further construction as he was not being paid as per the agreement and the stages of construction completed by him. He alleged that a sum of Rs. 17.5 lakhs was due to him. According to the complainant this figure
was totally baseless and had no correlation with the work done. It was on 23.2.1999 that respondent gave estimate of the work done by him and amounts due to him. Complainant says that she has already paid Rs. 13,15,000/- and she alleged that respondent wanted her to pay the balance amount over and above this figure. Complainant also pointed out discrepancy in the measurement of the area so constructed by the respondent. She engaged the services of M/s. G.B. Singh & Associates, Architects, Chartered Engineers, Consultants, Registered Valuers and Surveyors who assessed the value of the work done by the respondent and they arrived at a figure of Rs. 7,94,872/-. M/s. G.B. Singh & Associates also fixed an amount of Rs. 95,385/-as the architect fee for the work done by the respondent. Thus the total value of the work done by the respondent according to the complainant was Rs. 8,90,000/- and she having paid Rs. 13,15,000/- wanted refund of Rs. 4,25,000/- from the respondent.
3. She, therefore, filed complaint before the State Commission alleging deficiency in service on the part of the respondent and claimed Rs. 5,75,000/- as under :
4. Respondent in his written submission denied the allegation of the complainant that any amount was due to her and rather it was his case that he had done the work to the tune of Rs. 17.50 lakhs and complainant wrongfully withheld the amount due to him on one excuse
or the other. Respondent also pointed out that under the terms of agreement there was an exist clause under which either party could withdraw at the stages mentioned in the agreement after respective payment as under :
5. Respondent therefore, said that since after casting of the slabs he was entitled to 90% of the total cost and he could withdraw from the work as option was to both the parties. He said only very nominal amount of work was left to be done in the premises. Respondent also pointed out that under the agreement an arbitration clause existed under which dispute could be referred to arbitration by mutually accepted technologist only.
6. As far as evidence in the case was concerned both the parties had filed their respective affidavits. There was also an affidavit of G.B. Singh & Associates supporting the report submitted by them on the basis of which complainant filed complaint.
7. State Commission after examining the pleadings and the evidence on record came to the conclusion that complainant had not produced any evidence to substantiate her claim. State Commission said that there was no credible evidence to show that there was any defect in the construction as her own evidence was countered by that of the respondent. Moreover, State Commission did not give any credence to the report of M/s. G.B. Singh & Associates. State Commission said it was wholly an ex parte affair and respondent was not associated at the time of survey of the premises constructed by him when G.B. Singh visited the premises, measured the construction and calculated the cost of construction. G.B. Singh & Associates in the circumstances could
certainly be an interested witness to give a report favouring the complainant. There is nothing on the record to show if any application was made by the complainant to have an independent architect appointed as Local Commissioner to give the report on the amount of the construction and the value in terms of agreement between the parties. In our view State Commission was right in not placing any reliance on the report of G.B. Singh & Associates.
8. State Commission found that the construction being done was unauthorised. This finding by the State Commission was arrived at on the plea of the complainant that respondent was not submitting the blue print of the proposed construction. There was no sanction of the plan of the premises by which construction was undertaken by the respondent, Complainant was herself party to the unauthorised construction. Any agreement to construct an unauthorised building would be unlawful and a Tribunal certainly be not a party to enforce such an agreement. As a matter of fact when State Commission found that the construction being undertaken by the respondent at the instance of the complainant was unauthorised it should have thrown out the complaint as it could not be said that any consumer dispute arose between the parties or State Commission to assume jurisdiction. There cannot be any consumer dispute.
This appeal is, therefore, dismissed with cost which we assess at Rs. 5,000/-.