PASUMARTHI S.N. MURTHI vs NISCHINT CONSTRUCTIONS

THE first complainant is the owner of 500 square yards of site, together with an old house bearing Municipal No. 8-2-322, Road No. 7, Banjara Hills. So also, the second complainant is the owner of 300 square yards of site forming part of the same premises bearing No. 8-2-322. THE first opposite party M/s. Nischint Constructions is a proprietary concern of Smt. Nivedita Reddy, represented by her husband and GPA Holder Sri Ch. Baba Prasada Reddy, while the second opposite party is herself and the third opposite party is her GPA Holder mentioned above.

WHILE so, the complainants executed a Development Agreement on 15.5.1993 in favour of the first opposite party represented by the third opposite party for construction of multi-storeyed complex on the said 800 square yards, according to which, the complainants are entitled to get an extent of 3,700 sq. ft. of the built-up area and space for parking for two cars towards their share and 40 percent of the additional area in each additional floor, as and when sanctioned and permitted. The complainants selected plot Nos. 101 in the ground floor, and 301 in the second floor. The complex is named "Ash Wood Villa". The complainants, accordingly, executed the General Power of Attorney of even date appointing the third party as their Power of Attorney Holder. Consequently, the GPA Holder obtained the sanctioned plan for construction of the proposed ground, first and second floors of "Ash Wood Villa" by the Municipal Corporation of Hyderabad for a total built-up area of 11,850 sq. ft. Though, as per the sanctioned plan, 8 feet and 14 feet 9 inches are to be left as set backs on the northern and eastern sides respectively, but, the construction has been made upto the boundary wall of the first complainant and projecting 2 feet into the compound of the complainant, consequently, rain and drain water falls into the compound of the complainants causing nuisance to them. The said deviations are contrary to the sanctioned plan. Though, there is no provision for a cellar, it was raised, which is conveyed under a registered document to the brother of the third opposite party. The balconies shown in the sanctioned plan have been converted into rooms. The area earmarked for road widening has also been included thereby increased the built-up area approximately to 17,150 sq. ft. Further, without obtaining sanction at all a pent house was constructed over the second floor with a built-up area of 3,600 sq. ft. Of course, Clause 19 of the agreement provides for construction of a pent house on the third floor, below the water tank, to an extent of 1,800 sq. ft., and the builder alone is responsible to obtain necessary regularisation at his own cost, but, constructing double the area contravenes the said clause. A sale-deed, showing the plinth area of pent house as 2,630 sq. ft. was executed, though, the actual constructed area is 3,600 sq. ft. in favour of third parties. A notice dated 12.9.1994 was issued to the first complainant by the Municipal Corporation of Hyderabad stating that there are violations in construction on the ground and upper two floors and construction over all round open space required to be left open and also regarding the FSI. The third opposite party filed O.S. 1134/1994 in the name of the complainants against the MCH and obtained temporary injunction against demolition. As several false statements were made, in the plaint filed, the complainants had withdrawn the suit on 17.10.1995. The complainants cancelled the GPA given to the third opposite party by a notice dated 6.10.1995. The third opposite party gave a reply dated 13.10.1995 with contentious allegations. The opposite parties also sold the rest of the flats as well as the pent house. As the opposite parties had violated the conditions of the sanctioned plan, the MCH issued notices to the builders as well as other buyers for demolition of unauthorised constructions. Some of the suits were dismissed, while, the suits filed by three purchasers are still pending. The complainants have impleaded themselves, as parties in those suits. The complainants filed W.P. 29188/1995 before the Hon''ble High Court of A.P. seeking for a direction to the Government of Andhra Pradesh and Municipal Corporation of Hyderabad not to grant relaxation or regularisation of the illegal and unauthorised constructions made by them. The said writ petition was disposed on 21.8.1997 with a direction to the Government to consider the application of the purchaser Capt. Dinesh Mishra for relaxation of rules and for regularisation of deviations. The complainants also filed W.P. 8971/1999 for stay of regularisation of illegal constructions by the MCH and also to demolish the illegal constructions and obtained interim stay. The two flats which are meant for the complainants are left incomplete. They got the incomplete works approximately estimated by M/s. MBG Shastri & Associates, who are reputed Government Registered Valuers and Consulting Engineers. The opposite parties have abandoned the work and left the flats incomplete. Except for the outer cellar of the flats, major part of the works are left unfinished, although, they are bound to complete the works and hand-over the possession within 12 months. On 5.9.1995, there was a meeting of the first complainant and the third opposite party, whereunder, the latter agreed to complete the pending works in all respects and hand-over the flats 101 and 301 on or before 31.12.1995. The O.P. 3 also further agreed to provide all common facilities, such as, municipal water connection and permanent electricity supply etc. Therefore, the complainants issued a registered notice dated 23.5.1996, but, there was no response.

The complainants filed O.P. 1241/1996 before the District Consumer Forum, Hyderabad, on 20.11.1996, for which, the opposite parties filed a counter on 12.3.1998 stating that the construction of the complainants'' flats is completed and they are made ready, which is false. The complainants later withdrew the complaint with a view to pursue their remedies seeking comprehensive reliefs and damages exceeding Rs. 5 lakhs in the State Commission. The complainants are entitled to rents accruing thereon from 15.5.1994. Though, there is an arbitration clause in the agreement, the complainants are entitled to pursue their remedies under the C.P. Act. Therefore, the complainants filed this complaint claiming, in all, a sum of Rs. 19,81,000/-, besides, a direction for possession of the two flats together with parking space.

IN the written version filed by the opposite parties, it is stated that the complaint is barred by time. They have not approached the Commission with clean hands. They are precluded from filing a fresh complaint in view of the withdrawal of the earlier complaint from the District Forum without any reservation of their right to file a fresh application. The complainants, who are immediate neighbours were inspecting day-to-day progress of the construction and having been satisfied allowed the construction to go on, have come-up with this speculative litigation since their request for pent house has been turned down by the opposite parties. The allegation that the notice dated 12.9.1994 was not served on the first complainant is incorrect and it is the latter that requested the third opposite party to file the suit, but curiously, he withdrew the suit on 17.10.1995 without notice to them in order to harass the opposite parties. The complainants have impleaded themselves as parties in the suits filed by the purchasers with a view to coerce the opposite parties to come to terms by arm twisting methods. It is the complainants that have blocked the way of proceeding with further construction by obtaining interim order by filing W.Ps. 29188/1995 and 8971/1999 and the complainants alone are squarely responsible from preventing the opposite parties from completing the unfinished works. The opposite parties are ready and willing to deliver possession of the flats to the complainants provided the latter agree to pay a sum of Rs. 5 lakhs i.e. Rs. 2.5 lakhs deposited at the time of agreement and the balance during the course of the construction. The complainants are not consumers. The cost of the unfinished works as estimated by the complainants is speculative. There is no cause of action, much less, continuing cause of action after withdrawal of O.P. 1241/1996. The agreement provides arbitration clause and as such this complaint is not maintainable, but meant to harass the opposite parties. The complainants are not entitled to several reliefs prayed for by them. Hence, the complaint has to be dismissed with exemplary costs.

THE first complainant filed his affidavit in evidence, besides, filing Ex. A-1 to Ex. A-9. THE third opposite party filed his affidavit in evidence as well as additional evidence, on behalf of the opposite parties, in support of the allegations in the written version, besides filing Exs. B-1 to B-28. THE point for consideration is, whether there is any deficiency in service on the part of the opposite parties, if so, to what extent ? There is no dispute that the complainants are the owners of 800 sq. yards of site, in respect of which, a Development Agreement dated 15.5.1993 was executed between the parties, according to which, 3,700 sq. ft. of built-up area together with car parking space for two cars should be given to the complainants and the remaining built-up area shall belong to the builder and the project called "Ash Wood Villa" multi-storeyed complex should be completed within a period of 12 months. The complainants have selected flat Nos. 101 in the ground floor, and 301 in the second floor. There is also an agreement between the parties that the builder is permitted to construct a pent house on the third floor, below the water tank to an extent of 1,800 sq. ft. and the builder alone is responsible to obtain necessary regularisation at his own cost, but the complainants contend that the builder not only failed to leave the required set back on the northern and eastern sides of the proposed complex, but also made the construction up to the boundary wall of the first complainant by projecting 2 feet into the boundary wall of the complainants. Further, the builder constructed cellar without municipal sanction, converted into rooms and conveyed the same under registered sale deed in favour of the brother of the third opposite party. The area earmarked for road widening has also been included making constructions so as to increase the built-up area approximately to 17,150 sq. ft. There is no denial of these allegations by the opposite parties, except stating that the complainants, who are immediate neighbours were constantly aware of day-to-day progress of the building, but they never raised their little finger in protest and it is only when the opposite parties failed to oblige their request for a pent house, all these troubles started. Further, the first complainant says that he was away in States and in his absence these deviations were made in the construction. We are of the view whether the complainants were consenting parties or not, the builder is not supposed to deviate from the sanctioned plan. Clause 3 of the agreement contemplates that the builder shall hand over the built-up area as per the choice of the owners after obtaining the sanctioned plan. This clause contemplates that both parties are aware that construction shall be in accordance with the sanctioned plan. Be that as it may. The learned Counsel for the opposite parties submits that the complaint is barred by time, it is not maintainable, the complainants shall invoke arbitration clause. The complainants themselves, are squarely responsible for the delay in construction and the builder is always ready and willing, provided the complainants pay a sum of Rs. 5 lakhs including interest-free deposit made by the builder.

HENCE, the first question that falls for consideration is, whether the complaint is barred by time ? The Agreement, Ex. B-1 is dated 15.5.1993, time for performance by the builder as stipulated in the agreement is 12 months, as such the builder has to deliver possession of the flats by 15.5.1994. The complainants issued a notice under Ex. B-5 on 6.10.1995, for which the third opposite party replied under Ex. B-6 dated 13.10.1995. The complainants in their notice took objection for filing O.S. 1134/1994 against MCH on behalf of the complainants, as GPA of the complainants and having indulged in various illegal and unauthorised acts in construction. HENCE, cancelled GPA. Here, it may be pointed out that execution of GPA is in favour of the third opposite party. It was executed perhaps to facilitate and to obtain sanctioned plan, to proceed with construction as per the terms of the agreement and to deal with the balance of the built-up area leaving the area that falls to the share of the complainants. Clause 13 of the GPA specifies that GPA is authorised to do all such acts though not precisely mentioned or in the course of general business, attorney be advised or deemed to be requisite to be done or performed in respect of the above-mentioned property named by the complainants. Therefore, it is clear that GPA has power to act in course of general business whatever is deemed requisite and necessary in respect of the said property, which in effect, means all lawful acts. In other words, construction without obtaining proper sanction or making constructions in violation of sanctioned plan is not covered by the power conferred under this GPA. Therefore, the complainants are entitled to cancel the GPA, which was done under this notice. The third opposite party replied that he continues to be GPA in view of Clause 2 of the GPA which enables him to submit applications or other papers before Courts, Tribunals, Government Offices etc. We are of the opinion that this clause, no doubt enables him to approach a Court of Law to defend a wrong done to his principal but not to cover-up his actions which are not authorised by law.

THE complainants have stated that there was a meeting between the first complainant and the third opposite party on 5.9.1995, whereunder, the latter agreed to complete the pending works and hand over the flats on or before 31.12.1995. This allegation in the complaint is not denied by the opposite parties, but, stated that they requested the complainants to accommodate and adjust a sum of Rs. 2 lakhs out of Rs. 5 lakhs lying in deposit with the complainants to enable them in executing the finishing works. THErefore, the complainants have two years'' time to file the complaint from 5.9.1995. But in the written version, the same stand is reiterated by the opposite parties and this runs as follows : "If the complainants are ready and willing to refund an amount of Rs. 5 lakhs together with interest as agreed by them on Rs. 2.5 lakhs, these opposite parties are ready and willing to put the complainants in possession of flat Nos. 101 and 301 with two car parking spaces. In view as well as the stand taken in the counter dated 12.3.1998 in O.P. 124/1996 of this stand, we are of the view that the complaint is not barred by time. Hence, this point is answered against the opposite parties". The next contention is, that the complaint is not maintainable, since the complainants have withdrawn O.P. 1241/1996, for the same reliefs on 19.3.1999 without obtaining the leave of the District Forum.

The complainants state that they withdrew the complaint to facilitate them to seek more comprehensive reliefs and damages exceeding Rs. 5 lakhs by approaching the State Commission. The order dated 19.3.1999 shows "suo motu advanced today, memo filed by GPA of the complainants. Complaint dismissed as withdrawn". Therefore, the question is withdrawing earlier complaint without obtaining leave of the Forum, is a bar for maintainability of this complaint. This argument is devoid of merits. The Apex Court had occasion to examine a similar situation in a case decided by the Apex Court reported in Naresh Prasad v. DDA, I (2000) Consumer Protection Judgments 19, that unless the Redressal Forum goes into the merits of the dispute and decides one way or the other, disposing of the C.D. for default or on withdrawal, does not bar the institution of a fresh dispute, provided it is within the period of limitation. Hence, this objection, in our view, does not carry conviction.

IT is next contended that in view of the arbitration clause contained in agreement Ex. B-1, that in the event of any dispute, both parties agreed to refer the matter to an Arbitrator to be selected by mutual consent and the decision of the Arbitrator shall be final, this complaint is not maintainable. But the Apex Court has ruled vide a decision reported in III (1996) CPJ 1, that the Fora under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act, rather than to relegate to Arbitration since the Act intends to relieve consumers of the cumbersome arbitration proceedings. It is vehemently contended by the learned Counsel for the opposite parties that on account of the attitude adopted by the complainants, the project could not be completed and, therefore, they are squarely responsible for the delay. The learned Counsel relies upon W.P. 24188/1995 filed by the complainants, wherein the Hon''ble High Court of A.P. by its order dated 21.8.1997 directed the Government to consider the application of the purchaser Capt. Dinesh Mishra and his wife for relaxation of rules and for relaxation of deviations. The complainants also filed W.P. 8971/1999, and obtained interim stay of Building Relaxation Scheme issued in G.O.Ms. No. 419, M.A. and Irrigation Department dated 30.7.1998 in respect of illegal constructions made in "Ash Wood Villa". On the appearance of the opposite parties, the stay order was confined to regularisation of construction made by the appellants, but status quo was granted regarding the demolition until further orders. But there is no prohibition or injunction granted in any of these orders from proceeding with construction as per the sanctioned plan in respect of the two flats allotted to the complainants.

HOWEVER, the learned Counsel contends that the complainants had issued a notice on 18.11.1995 cancelling the agreement Ex. B-1, and as such the builder could not proceed with, wherein the complainants have stated that the clause regarding the pent house was added after they approved the draft agreement and they signed the same believing that it is a copy of the approved draft agreement without verifying each term of the agreement. It is further stated that as per the original agreement they are entitled for 40 percent of the built-up area, but in the fair agreement it is stated that they are entitled to 40 percent of the additional area in each of the additional floors of the sanctioned or permitted area only. The cellar was constructed without permission, which is unauthorised. So also, a number of other objections, some of which were already referred to, were pointed out in this notice. Regarding the construction of pent house also, objection was taken. It is alleged that the opposite parties failed to adhere to the time schedule for construction and handing over the flats. The fact that the notice issued by Municipal Corporation of Hyderabad, for demolition of unauthorised constructions was also raised, the suits and the writ petitions were also referred. Finally, it is stated that since the terms of the agreement are violated, they considered it not desirable to allow the agreement of development to stand, and it is accordingly cancelled. The opposite parties are called upon to pay damages and compensation. He further placed reliance on a notice dated 25.9.1995 issued by the first complainant claiming that himself and his wife were allotted only 3,700 sq. yards of built-up area, out of 11,850 sq. ft., as per the sanctioned plan, but actual construction would come to 18,500 sq. ft. and 40 percent of it would be 4,740 sq. ft., as such, he claims another 3,700 sq. ft. or the pent house. From this, the learned Counsel contends that the intention of the complainants is only to extract more extent than what they are legitimately entitled to. We cannot accept this contention either. The complainants have been seriously agitating and insisting that the opposite parties should not make any deviations from the approved plan and such deviations are liable to be demolished, and in case, such demolition is not affected, the opposite parties are not entitled to make gain from such illegal constructions in view of Clause 21 of the agreement, which provides for 40 percent of the additional area to the complainants in the event of further floors being sanctioned apart from cellar, ground, first, second and pent house floors. Therefore, under this notice, though the complainants claim 40 percent in such subsequent construction, if sanctioned, we cannot find fault with the complainants, if they claim 40 percent even though the construction is not sanctioned as, when once this additional space is sold away by the opposite parties, the complainants cannot get their 40 percent share, even if, there is regularisation of the same at a subsequent point of time. For all these reasons, this objection also, in our view, does not merit acceptance. Let up now consider, how far these complainants are liable in protracting the litigation or in other words, causing delay by resorting to litigation. When once, as we find that the opposite parties have resorted to illegal constructions, the complainants being the owners have a right to prevent it as well as to agitate over their rights. Having been allotted two flats towards their share they have to take possession of those flats, and they will suffer, if the construction is not in accordance with the sanctioned plan or there are deviations including shortfall in set backs or projections of balconies into their house. Therefore, if they have decided to agitate over their rights or resorted to litigation to ventilate their grievances, by no stretch of imagination, it can be said that the delay in construction is their own making. What is relevant is, whether the opposite parties have constructed complex in accordance with the sanctioned plan and completed the same within the stipulated time. When once they failed to show these two things, the complainants cannot be blamed if, they have approached the Court of Law, for redressal of their grievances. Hence, the contention of the opposite parties that the complainant are squarely responsible for the delay caused in completing the construction cannot be countenanced. The next question is, what is the relief the complainants are entitled to ? The complainants claim possession of flat Nos. 101 and 301 along with space for parking of two cars after completing the unfinished complex. Having regard to these circumstances, there cannot be any impediment in granting this relief. The complainants claim a sum of Rs. 10,11,000/- as the value of the unfinished works for the two flats.

THE opposite parties in CD. IA. No. 1248/2001, an application for appointment of another Civil Engineer Commissioner, to inspect flat Nos. 101 and 301 and find the estimate for the unfurnished works, stated that Rs. 1,16,370/- will be sufficient for completing the unfinished works for flat No. 101 and Rs. 1,54,505/- for flat No. 301, whereas the Commissioner appointed by this Commission estimated Rs. 3,65,000/- and Rs. 5,01,000/- respectively. Having regard to these estimates, we are of the view that 20 percent could be deducted from the estimate of the Commissioner towards market variations. Thus we arrive at Rs. 2,92,000/- and Rs. 4,00,800/- for flat Nos. 101 and 301 respectively.

THE complainants also claimed a sum of Rs. 4 lakhs as damages for the loss of occupation for flat No. 101 from 1.1.1996 to 1.5.1999 at Rs. 10,000/- per month and Rs. 4,80,000/- for flat No. 301 for the same period at Rs. 12,000/- per month. No evidence is produced about the rental values in the said locality. THErefore, we are of the view that there can be exaggeration to some extent in some estimated claims. We are, therefore, of the view that a sum of Rs. 5,000/- per month for flat No. 101 and Rs. 6,000/- per month for flat No. 301 per month from 1.1.1996 to 1.5.1999 would be reasonable. THEse sums shall carry interest at 18 percent from 1.5.1999 till payment. So also compensation is granted at the same rates per month from 1.5.1999 till delivery of possession of the flats. As we have given compensation for the delay, no further damages for mental agony are awarded. While paying these amounts interest-free deposit of Rs. 2,50,000/- paid by the opposite parties shall be given credit to. The disputes regarding violations in the constructions from the sanctioned plan including projection into the complainants'' site or the question regarding the entitlement of 40 percent share of the owners in the additional constructions which are illegal are left open. In the result, the complaint is allowed to the extent indicated above with costs of Rs. 5,000/-. Time for compliance six weeks. Complaint allowed.