ORDER
B.K. Taimni, Member
1. This complaint was filed by Atul Vihar Kalyan Samiti a registered body of the residents of 81 owners of the apartments of “Atul Vihar Building complex” alleging several deficiencies on the part of 1st Opposite Party, M/s. Dubey Construction Co., Jabbalpur. The Complaint is that after attracting the prospective buyers through alluring advertisements, the 1st Respondent was successful in his effort and the prospective buyers entered into an agreement for purchase of flats but when they moved in the flats several deficiencies were notice.
2. In the brochure, following features were highlighted:-
– Financial assistance through H.F.D.C.
– Normal construction with R.C.C. Frmaed structure as per I.S. – 456
– 24 Hours water supply from Tube-well
– Electric supply through independent metres
– Garrages available on cost.
– Common covered parking for scooters and cycles available.
3. Along with the Borchure, detailed literature was issued and the following were the highlights of the features enumerated therein:-
– Lift facilities provided so that on any floor living is no problem.
– Covered parking place provided common for all flat owners.
– Front door of teakwood pannelled shutters and internal doors of water proof-ply pannelled doors.
– Water supply 24 hours from over head Tanks
– Development of side will be with TAR Roads, culverts, drains and three plantation.
(emphasis supplied)
Main defects noticed were as followed:-
1. Water Problem
a) Insufficient water supply. Against the promise of 24 hours water supply, it is available for much less period
b) Unpotable water. Water is hard.
2. Internal/Approach road
Roads are not tarred as such during rains they become muddy and unusable.
3. The Set Backs
This means open spaces. Against the regulation of leaving 5 mtr. Space between the boundary and the building, it is 3 meter at places. They are not wide enough to let a Fire Brigade move in nor are these set-backs tarred to let a 18 tonnes vehicles ply on it.
4. Various Construction Defects:-
This relates to cracks in the building/flats walls of corridor, eccentric columns affecting their load bearing capacity, see page on top floor flats due to poor water proofing, defective main doors as promised these doors are not of Sal and Teak wood. Inside doors and windows are also defective. Boundary wall is sub-standard. Main gate has not been provided; weak/cracked walls on all the terrace, defective floor of terraces and several other defects.
5. Non-provision of second lift in “C” Block.
6. Faulty electrification of the premises
7. Absence of street lighting
8. Insufficient parking space.
9. Absence of open spaces for the community
10. Not meeting the fire protection requirements and requisite clearance not obtained by the Ist Opposite Party.
4. On the basis of these alleged deficiencies, the Complainant prayed for award of Rs.52,43,650/- to be given to them to remove the defects, compensation of Rs.20,000/- to each member, refund of 25% of the purchase price to each of the apartment owner and to fulfil the Fire Protection Requirements and award of interest @ 18% on the above amount. A number of photographs of the defective buildings was also attached with the complaint, complaint was accompanied by large number of documents besides others, on the status of the flats and facilities.
5. The Respondent No. 1 and 2 filed their reply, rebutting the allegation of deficiencies and also raised preliminary objection on the maintainability of the complaint on the ground that as alleged by the Complainant there cannot be 81 apartment owners as only 67 apartments have been sold. Registered Association is not a consumer with the definition of consumer. In view of above, an amended complaint on behalf of 67 apartment owners were filed. Reply was also filed by the 3rd Respondent i.e. Municipal Corporation, Jabbalpur stating that they are statutory body performing such functions. No allegation of deficiency has been alleged against them in the complaint – hence the complaint needs to be rejected qua them with costs. Rejoinder was also filed by the Complainant Association alleging collusion between Respondent Nos. 1 & 2 and the 3rd Respondent and reiterating the allegation of deficiency made in the complaint and maintaining that they are consumers within the definition of this word as per provisions of CPA, 1986. The Respondent No. 1 & 2 also filed report of one Mr. K.C. Kulshreshtra, an Electrical Engineer and one Mr. C.M. Ayachee, a Civil Engineer.
6. After hearing both the parties, and in view of fact that a spot inspection was required to help to determine the allegations, the Commission vide its order dated 1.2.96 requested to Madhya Pradesh State Consumer Dispute Redressal Commission to appoint a qualified Engineer to visit the spot and submit his report. As a result of this, one Mr. Ramdeen, Executive Director (Retd.) of Madhya Pradesh Electricity Board Jabbalpur, was appointed for this purpose who submitted his report on 27.3.97. On some doubts raised about his competence to comment on defects which were civil in nature, while Mr. Ramadeen admittedly was an Electrical Engineer, as also the fact that no specific terms of inference were framed, the Commissioner with the consent of both parties by its order dated 28th April, 1999 appointed one Mr. R.K. Aggarwal a retired Chief Engineer in Public Health Engineering Department of MP based in Jabbalpur who submitted his report on 15.7.00. Both the reports are on record.
7. It was argued by the complainant Association represented by its Joint Secretary. Mr. V.M. Kalariya that now that both the reports of local Commissioners are on record and they having filed a comparative statement of both the report. National Commission should direct the Respondents to carry out the repairs as per findings of the first Commission. Mr. Ramadeen which is comprehensive, detailed the through. This report deals with all the aspects of the problems faced by the Resident. Enough material has been brought on record to support this fact as to how the Respondents failed to provide the necessary services as promise in the Agreement, Brochure and as also to meet the requirement of local loans on the subject. Municipal Corporation has colluded with the Respondent as is clear from the violations committed by the Respondent No. 1 & 2 in construction and no action having been taken by them as also the non-co-operative attitude exhibited and reported by the Local Commission, Mr. Ramadeen. The report of Mr. Ramadeen be accepted in toto. Mr. Aggarwals’s report leaves much to be desired as he did not visit the flats and visited the area of the complex for a very short time; in this short time he could not see the difficulties faced by the flat owners. It is not a thorough report.
8. On the other hand, it was argued by Mr. Ajay Dube the 2nd Respondent on behalf of the Ist and 2nd Respondent that Mr. Ramadeen did not have the requisite qualifications to be appointed as local commissioner as his background and qualifications was of an Electrical Engineer whereas most of the problems were of civil in nature. Their objection on the point is already on record. The report of Mr. R.K. Aggarwal with a background of civil engineering should be accepted, if all, but only after considering his preliminary objections on the point of complainant having any authority under the law to represent the flat owners which, originally was given as 81 and later on reduced to 67. Complaint is also barred by limitation, having been filed in October, 1993 whereas most of the flat owners had signed the agreement in 1989. Flat owner after taking the possession cannot complain about deficiency as he ceases to be a consumer. For this he relief upon the judgment of Hon’ble Supreme Court in Civil Appeal No. 7330/93 I.O.C. v. Consumer’s Protection Counsel, Kerala and another Civil Revision 1994 SC 853 also on 1947 NCJ 240. Ballabh Das Lachmi Narayan v. Sobhanji Keshar Singh & Anr., order of this Commission in Sarthank Bahuria & Anr. v. The Orissa State Housing Board III (1993) CPJ 384 (NC). P.B. Desai v. Prajapati Builders & Developers & Ors. 1 (1994) CPJ 72 (NC).
9. Respondent No. 1 & 2 had also moved the Hon’ble Supreme Court at the time of our directing the M.P. State Consumer Disputes Redressal Commission to appoint a commission, praying that his preliminary objection be heard. Hon’ble Supreme Court while disposing off this Civil Appeal vide its order dated July 9, 1996, ordered as follows:-
10. The only grievance made by Shri Soli J. Sorabhjee, the learned Senior Counsel for the Appellant is that before passing the impugned order, the National Commission not considered the preliminary objection raised by the appellants with regard to jurisdiction of the National Commission under the Consumer Protection Act. Since by the impugned order only an interim direction has been given to inspect the premises the rights of the appellant are not affected. we have however, no doubt that the National Commission will duly consider the preliminary objection raised by the appellant before the passing of the final orders. We, therefore, do not find any ground to interfere with the impugned order. The appeal is accordingly dismissed. No costs.
11. As seen, on record, the Respondent No. 1 & 2 had three preliminary points to make i.e. I) complainant is not a consumer (ii) complaint is barred by limitation and (iii) the complainant association committed a fraud by pleading on behalf of 81 flat owners whereas by the time of complaint only 67 flats had been sold.
12. Section 2(d) of the Consumer Protection Act defines, Consumer meaning any person who…………” person’ is defined in Sub-section 2(m) which state “person” includes.
(iv) every other Association of persons whether registered under the Societies Registration Act (21 of 1860) or not.
13. The intention of the law makers is clear. The above is an inclusive definition.
14. On perusal of the material on record, we are left in no doubt that there is a registered body under the name of “Atul Vihar Kalyan Samiti, based in Flat No. 207. Atul Vihar, Wright Town, Jabbalpur under the Societies Registration Act registered on 4.6.93. We have no hesitation in accepting the complainant as a ‘consumer’ within the provisions defined under the CPA. His reliance on judgment of Supreme Court in IOC v. Consumer Protection Council, Kerala cited earlier also does not help him as the facts of this case are different. Here is a case of flat owners themselves complaining and not through a voluntarily agency. We see no merit in this objection and is rejected. Second objection relates to limitation. According to the Respondent in most of the cases, Agreement to sell were entered in 1989 and in complaint has been filed in October, 1993, hence it is beyond the prescribed limitation period of three years. He also relies on several orders passed by this Commission in support of the fact that once the possession is given, than the flat owner cannot complaint. In 111 (1993) CPJ 384 (NC) we had held that “after taking possession of the houses complainant cannot be heard to say that there has been unreasonable delay in the construction of the house”. This is not applicable in the instant case as this not the complaint.
15. In 1 (1994) CPJ 72 (NC), we had held :-
The State Commission also very pertinently pointed out that the possession of the flats has been handed over in 1987. Most of the complainants took possession in 1988 but the disputes was raised in 1991. It, therefore, rightly observed that the dispute appears to be belated, apart from absence of any evidence to support the allegations of the appellant complainants. In view of the specific counsel for the appellant did not press his contentions on the above point, we do not find any merit in this appeal and the same is dismissed.”
16. We see no similarly between the facts of the two cases-the one cited and the one before us.
17. In the instant case deficiency was pointed out within a reasonable period after occupying the flats, hence this citation does not help the Respondent. What we are confronted with is deficiency in service as per the terms of agreement and as per Building laws/by laws applicable in the local area of Jabbalpur. We also see from the list of members of flat owners, annexed with the rejoinder filed on 25.2.96, that most of the flats were handed over in 1991/92. Some were of course, handed over in 1989 and 1990 also. The point being made is that case be heard at least on behalf of those flat owners whose claim is within the time limit. Since most of the points considered for adjudication relate to common facilities, it matters not whether, number of Complainants represented through the Association it ten, twenty or thirty. It is the common facilities or the lack of it which is at the core of it and for many complainant members, the Complainant is within time, hence we see no merit in this point either.
18. The third objection is that the complainant had committed a fraud by misrepresentation of the number of flat owners as 81, whereas the total flats disposed of by him are only 67. It is fact that the complaint was filed by 81 flat owners. There is no disputing the fact that there are 81 flats. On being asked for better particulars, the Complainant supplied the details of 67 flat a owners. Never the less, common facilities are going to be utilized for all the 81 flat owner all beit, at a later date. In our view no fraud has been committed by the complainant keeping in view that fact that they represented 67 flat owners, even though later two affidavit have been placed on record by the 1st + 2nd Respondent about these members/flat owners disassociating themselves from the complaint giving us the impression that the Respondent No. 1 & 2 wish to leave no stone unturned to let us address the core point of deficiency of service. We do not see as to how it prejudices the Respondents case when the Complainant claims to represent 81 whereas giving list of only 67 members? There is no merit in this objection either. Another point/application was made by the Respondent No. 1 & 2 to summon the complainant for cross-examination for which he relied upon AIR 1977 SC 2421 T. Arivandanam v. T.U. Satyapal in which the Hon’ble Supreme Court had held:-
“The trial courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage ……If the trial court is satisfied that the litigation was inspired by vexatious motives and altogether groundless it should take different action under Section 35 A.”
19. We need to appreciate that CPA is welfare social legislation and procedure to be followed on receipt of complaint is given in the Act itself in that respect, it is a complete legislation by itself. Even that the key words of the judgment are” If the Trial Court is satisfied……..”.Issue of notice to other party is not automatic. The Complainant is heard and the case examined based on the material evidence on record and only then Notice to the other party is issued. In this case also the Commission was satisfied to proceed with the case based on material on record. We find no merit in this contention of the Respondent No. 1 & 2 either.
20. Respondent No. 3, Municipal Corporation, Jabbalpur remained absent in spite of notice, hence proceeded ex-parte.
21. Coming to merits of the case, we see that this Commission recorded vide its order dated 1st February, 1996 that “In order to satisfactorily adjudicate upon the said plea, we consider it necessary that the flats, in question should be got inspected by a competent and qualified engineer preferably either a serving or retired Chief Engineer of PWD/MPEB). Since the parties before us are not able to agree about any particular expert to be deputed for the purpose. We request the State Commission, Madya Pradesh, Bhopal to appoint a suitable expert engineer…”
22. The State Commission of M.P. after due consideration appointed one, Mr. Ramadeen Executive Director (Retd.) M.P. Electricity Board. He submitted his report a very comprehensive and detailed report at that on 27.3.97 recommending and expenditure of Rs.27,33,786/- for repairing/providing common facilities and another Rs.3,00,175/- for carrying out various repairs within the individual flats While this report was acceptable to the Complainant several objections on grounds of competence of an Electrical Engineer carrying out the work of a Civil Engineer and no clear terms of reference etc. were taken by the Respondent No. 1 & 2 on this report. After due consideration of the objections and points made by both the parties, this Commission appointed one, Mr. R.K. Aggarwal – a retired Chief Engineer of P.H.E., Department of M.P. Government. For purposes of facility order dated 28th April is reproduced as it also lays down the scope of the Inspection and report :-
” By consent of both parties, Mr. Ramesh Kumar Agrawal, (Retd. Engineer-in-Chief, P.H.E., Department, Government of Madhya Pradesh), R/) 1130, Napier Town, Near Shastri Bridge, Jabalpur, Madhya Pradesh is appointed as Special Officer to make a spot inquiry and assess the damages about the deficiency in construction. He will examine the complaints made by the Complainant and if there is any basis for the allegations made in the complaints, he will make assessment of the amount needed to rectify the defects pointed out in the complaints and made a report to this Commission within a period of four months from the date of communication of this order. The inquiry will confined to the complaints as to water supply for drinking and other purposes i.e. non-drinking purposes, approach road, Terrace flooring, boundary wall, main gate, watchman room, pump houses, surface water drains (storms), provision of second lift in Block “C”, parking space, see page in kitchen and rooms adjacent to duct, repair of cracks on outer wall/passage wall and settlement cracks along the bottom of parapet and drip course. The Special Officer will examine all these allegations and will also make a report whether there is any deviation from the original plan of the construction. The Special Officer will make an estimate of the costs involved to undo the damage. Each party will pay Rs.10,000/- to the Special Officer to meet the initial cost charges and expenses of Special Officer within a fortnight. The final remuneration of the Special Officer will be settled after receipt of his report.”
23. Report of Mr. R.K. Aggarwal was received in July, 2000. On being asked, an opportunity was granted to the Respondent No. 1 & 2 to cross examine Mr. Ramdeen provided he was willing to defray his expenses to which he did not agree, hence no cross-examination could take place. Both the parties have given- for record – a comparative chart showing the recommendations of the two commission. Rejoinder were also filed. After hearing the parties and perusal of material on record, we find it much more convenient to pass order based on the material before us. Three points need to be made, one, that Mr. R.K. Aggarwal was appointed by common consent of the parties; two, scope was limited to common facilities and three, this is the latest spot report available – and to remind ourselves that Mr. R.K. Aggarwal was appointed by this Commission itself.
24. On examination of both the reports we find that amongst the common facilities three of them surface higher than others and these are, water problem, lift and parking facilities. Detailed calculations in respect of parking facilities have been given in the report of Mr. Aggarwal clearly stating that parking area available is 793.53 sq. mts. against requirement of 556.87 sq. mtr. Hence no case is made out by the Complainant in this regard. As regard lift, Mr. Ramadeen’s reported need for a second lift is based on conjectures, opinion and future requirements whereas the report of Mr. Aggarwal based on the same issue i.e. provision of a lift is based on National Building Code and clearly stating that as per norms installed lifts meet its requirements. We see no merit in this demand either.
25. Regarding water – there are two issues – one relating to 24 hours supply and second relates to its potability. We see that in the agreement entered into by the Builder and the flat owner – and the Brochure as produced before us by the Complainant following features are mentioned :-
A PART OF SALE AGREEMENT
26. Clause 8 of the Sale Agreement, detailing specifications of construction of Anand Shree at Wright Town Jabbalpur laid down as under :-
8. The water supply arrangement shall be made through an overhead tanks with concealed G.I. Pipe fitting with gun metal/cromium plated fixtures.
The Brochure referred to earlier had also stated :-
* 24 hours water supply from tube well.
27. There is no dispute that there is a tube-well, a motor and overhead tanks which Mr. Aggarwal has found to be adequate. If there is maintenance problem, it has to be resolved by the flat owners. But what continue to be a problem relates to drinking water on which, Mr. Aggarwal has to say”…… to get water for drinking water purposes from the Municipal tap, which is there in the complex’. This does not seem to make any sense to us. Coming as it does from an Engineer of PHED, Not only modern living is not possible without safe and potable water, human lives can not exist without them especially when we know that unsafe drinking water is the sole cause of largest number of deaths in the country., On this issue, we are inclined to include the input on safe drinking water from the report of Mr. Ramadeen. He had provided for Rs.1,90,300/- for this purpose. This was in 1997. A round figure of Rs.2,00,000/- should be made available, for ensuring supply of safe drinking water in each flat rather than asking the flat owners to go and fetch water for this purpose from a tap located inside the complex.
Terrace Flooring :-
Mr. Aggarwal’s report is silent on this subject. We are prone to agree with the estimates of Rs.30,000/- made for this purpose by Mr. Ramadeen.
Approach Road :-
As agreed to by Respondent Nos. 1 & 2 they should be permitted to complete the cement concrete road at their cost instead of a tar-road, at an estimated cost of Rs.77,4000/- as former is more durable.
Boundary wall :-
Respondent No. 1 & 2 agreed to construct the boundary wall. This must be done by them within the next six months. Work relating to dismantling the old and in its place reconstruction of a portion of the boundary wall at an estimated cost of Rs.88,700/- should be done simultaneously by Respondent No. 1 & 2.
Main Gate :-
Report of Mr. R.K. Aggarwal leaves this an open issue. The report of Mr. Ramadeen put its estimate cost at Rs.10,000/-. This should be accepted.
With regard to Watchman Room, there was no provision in the sanctioned plan, hence nothing can be done.
Regarding Pump House and Surface Drains, it was found to be question of maintenance which can not be passed on the Respondent No. 1 & 2.
See page in Kitchen and Rooms adjacent to duct :-
We accept the recommendation that Respondent Nos. 1 & 2 bear the cost of this which is estimated as Rs.31,300.
Repair of cracks on outer wall/passage walls etc.
We accept the recommendation of Mr. Aggarwal and an amount of Rs.4,000/- be provided by Respondent No. 1 & 2 for this purpose.
Summarising, the position which emerges is, that for carrying out the following works, amount shown against each be provided by Respondent Nos. 1 & 2 to the Complainant within eight weeks of our order :-
(In Rupee)
1. Potable Drinking Water arrangement Rs.2,00,000/-
2. Terrace flooring Rs.30,000/- 3. Boundary wall (Dismantling and reconstruction) Rs.88,700/- 4. Main Gate 5. Approach road Rs.77,400/- 6. Seepage in Kitchen etc. Rs.31,300/- 7. Repairs of Cracks etc. Rs.4,000/- ------------- Rs.4,41,400/- ------------
28. The above does not include the estimated (no estimates are given) expenditure on construction of boundary wall which Respondent No. 1 & 2 had agreed before Mr. R.K. Aggarwal to build which could not be built earlier on account of dispute regarding demarcation of the conservancy lane. This is to be done by the Respondent No. 1 & 2 as already agreed, within six months of this order.
29. With this, we earnestly hope that after completion of these works, the flat owners and the builder shall live together in peace. It is for the builder to save his reputation and for the flat owners to devote their energies on living a better quality of life.
30. No orders on costs.