Gurcharan Singh Saran, Presiding Member (J) -
(1.) THIS order will dispose of all the below mentioned eleven appeals which can be disposed of with the one order; as the opposite parties in all the appeals is same and same type of relief has been sought against the OPs in all the complaints filed against the OPs whereas the facts of the complaint has been taken from First Appeal No. 1095 of 2013. The appeals have been filed against the impugned order dated 24.7.2013 passed in Consumer Complaint No. 336 dated 16.8.2012 and others vide which the learned District Forum, Mohali allowed the complaint of the complainant with a direction to OP No. 1 to pay to the complainant a lump sum compensation of Rs. 2,25,000 towards deficient in construction, mental torture and harassment including costs of litigation whereas the complaint against OP Nos. 2 to 4 was dismissed. Details of all the appeals along with their titles are as under:
The complaint was filed by the complainant against the OPs on the allegations that OP No. 1 invited the applications/forms from the general public for the allotment of flats in their housing Society under the name and style of Shiva Real Estate (Comfort Homes), Chhajjumajra Road, Sunny Enclave, Kharar, District Mohali and had issued the brochure that their project is approved by OP Nos. 2 and 3 and showed the covered area of two bed room flat as 1390 sq. ft. The complainant also entered into agreement with OP No. 1 on 17.7.2010 and purchased two bedroom flat No. 37 -A, 4th Floor with covered area as mentioned in the brochure and had taken the possession of the said flat after making full and final payment and sale deed was got executed and registered by OP No. 1 in favour of the complainant on 9.9.2011 whereas letter of possession was issued on 14.8.20111. After taking the possession from OP No. 1, the complainant within 3 -4 months came to know that there are discrepancies in the quality of the construction and the entire building within a span of six months had come to such a dilapidated condition and it seem to be a construction of 40 -50 years old as the material used in the construction work was very poor/inferior quality. It was brought to the notice of OP No. 1 but it failed to take any step to remove or rectify the defects in the construction. In the complaint, the deficiencies pointed out in the work of the OP was that OP had raised the building on RCC pillars on the ground floor and the building in the middle of the pillars on the ground floor had taken 'U' shape due to poor quality of the building material. There are number of cracks in the joints of the walls and roof and cracks in the middle portion of the walls. Sufficient lifts have not been provided by OP No. 1. There was provision of three lifts and only one lift has been installed. It was provided in the brochure that steel Chaukhats will be provided whereas only wooden Chaukhats were fixed in the building. No electricity supply has been provided by OP No. 1 and charging the same from the complainant and others, therefore, proper electricity supply has not been provided. It was further promised to supply steel electric wires for installation of the invertors but it was not done. Modular kitchen was to be provided, which has not been provided. OP No. 1 had further promised to supply pure and clean water and an alternative arrangement for the supply of water in case of any defect. There is only one water tank, which gives supply to all the floors. In case of failure/fault, there is no alternative arrangement. No fire fighting safety arrangements have been provided as promised. Due to poor quality material, the roof in the middle of pillars had got bended at various places. The building was approved upto 5th floor but construction has been raised up to 6th floor also. No texture paint has been done on the walls as promised, no street lights in the open space and parking place has been provided. Boundary wall of the Society is of very low height and covered area of the flat is less than that mentioned in the brochure. Rs. 27,000 taken as maintenance charges but has failed to give maintenance properly. It was further promised to provide full power back up to the elevators. However, till date no such elevators with power back up has been provided. There is seepage in the walls, floor tiles of the rear Courtyard. No proper Car parking area has been given in the flat, therefore, it was difficult to find out a place for parking the car. Accordingly, it was stated that there is deficiency in services on the part of the OPs. Hence, the complaint with a direction to the OPs to pay a sum of Rs. 4,50,000 and Rs. 7,000 as litigation expenses.
(2.) OP No. 1 filed reply to the complaint taking preliminary objections that the complaint was wholly misconceived, groundless and unsustainable; the Forum did not have the jurisdiction to entertain the complaint; the dispute raised by the complainant is outside the purview of the Act; complainant does not fall within the definition of 'consumer'; the complaint was false, frivolous and vexatious, therefore, liable to be dismissed under Section 26 of the Act; the complainant had visited the site number of times before it was finalized and open option was given to the complainant either to accept the flat or take the money deposited by him. 7th storey building has been approved and accordingly, the construction was raised as per approval. The complainant had purchased the flat when the construction was at the stage of 70% completion. It clearly reveals the demarcation of the rooms, bathroom, toilets, balconies and parking area. The brochure is conceptual and Architect or Builder reserve the right to amend and modify as per the need, therefore, few feet can be here and there from accuracy and that cannot tantamount to be damaged. The whole building stands on the pillar structure. There was some bending at one place, it may be due to deflection due to rainy season. The complainant placed on the record some photographs showing the tile and other works of the flat pending but against the same opposite party pleaded that the photographs are of some other flats annexed for wrongful gain from the opposite party. There are still some flats, which are yet to be sold and the complainant has annexed the photographs of those flats in which the tile work is pending. The woods are more costly than the steel Chaukhats, therefore, at the instance of some flat holders, these were changed to wood. A Comfort Homes Residents Association has been constituted and it is taking care of all the amenities and facilities at the site as per the agreement. The complainant had signed the Sale Deed after taking the possession in which he had given a satisfactory note with regard to the construction of the building and the amenities provided in it. On merits, the same averments were reiterated. It was specifically denied with regard to the deficiency in services in the construction as pointed out in the complaint. Ultimately, it was stated that there is no merit in the complaint and the same be dismissed. Op No. 2 in its reply had taken the preliminary objections that neither the complainant nor Op No. 1 is the consumer of Op No. 2; the GMADA can sue and be sued in its name and provisions in terms of provisions of Punjab Regional and Town Planning and Development Act, 1995 and that the complainant had no cause of action against Op No. 2. On merits, it was stated that housing project of Op No. 1 was never approved by Op No. 2 and have not issued the licence to develop the colony. No building plans were approved by Op No. 2. Therefore, Op No. 2 has been wrongly impleaded as a party. Therefore, the complaint of the complainant is without merit in case no relief is to be provided by Op No. 2.
(3.) OP No. 3 in its reply had taken the preliminary objections that the complainant had concealed the material facts from the Forum; this OP was unnecessarily dragged in the case; complaint be dismissed with costs of Rs. 50,000 as no cause of action has accrued to the complainant to file this complaint against this OP. On merits, it has been stated that the project of the Ops was approved by the OP as per rules and regulations. It was approved for 6th Floor, however, till date, the opposite party has not applied for any completion certificate. The complainant has made irrelevant and irresponsible allegations against this OP, therefore, no merit in the complaint qua this OP and it be dismissed.;