SECTOR 4 - A RESIDENTS WELFARE vs U.P. AWAS VIKAS PARISHAD

The present complaint has been filed by Sector 4-A Residents'' Welfare Association, Vasundhara, Ghaziabad, Uttar Pradesh, the complainant. The Welfare Association consists of 736 Flat-owners. U.P. Awas Vikas Parishad. The OPs, floated a ''Scheme'', for sale of flats, known as "Bhau Rao Devras Avasiya Yozna". This was a ''Self-Finance Scheme''. The Brochure mentioned that the allottees would get completely furnished flats, type design F-45, the construction ? cement mortar, floor ? CC / Mosaic floor, door, windows, balcony ? iron frame, section grills, Roof ? RCC treatment of the roof Mudfurka / Brickcoba treatment, plaster cement mortar, outer finish ? Snowchem, Terrazzo finish / grit finish, inner finish ? distemper in rooms, rest part in whitewash, an attractive Scheme with full greenery, with the surroundings, full developed colony, having the facility of High School, Degree College, Management Institute, Local Market, Health Centre, Cinema Hall, Post Office and also Police Station, etc. The Brochure or Registration Booklet has been placed on record as Annexure C-3/Annexure P-1.

The Type design, i.e., F-45, floor design showed that OPs will be constructing Ground, First, Second and Third floors and each Floor will have two flats, but this fact is not substantiated by any evidence. However, at the time of possession, it transpired that flat has been changed by OPs and four Flats were constructed without the consent of the allottees, and the allottees are facing problems of opening their doors as there is congested space in front of doors of their flats. The design plan, Annexure C-4, was given at the time of handing over the possession.

As per Brochure, the price of the flat was fixed at Rs.3.12 lakhs, by 31.03.1999. At the time of registration, charges were escalated under different Heads. The OPs excessively charged for the land as well as for the construction. The registration was delayed and possession was given at late stage. Again, there are separate charges, i.e., 18% interest on the above said Heads and further interest on the said penalty imposed by the OPs, on Flat No. 4123, where, Rs.1,208/-, i.e., 21% of interest was imposed on Rs.1,950/- of the penalty for late possession. The allottees were handed over the physical possession of the flats after, over a period of more than one year, after depositing the demanded amount even when the complete amenities and facilities were lacking and deficient on the part of the OPs. The photocopy of the receipts dated 02.12.1999 of flat No.4123 is annexed as Annexure C-5.

It is alleged that all the 738 flats were constructed with poor materials, without having door in the drawing room, wash-basin, problems of leakage/seepage of water in the flats, no water proofing treatment over the roof, cement plaster over the RCC slap have been provided, due to which, the walls are not safe. No standard water proofing treatment was made. All the flats constructed have got leakage/seepage in the roof/wall. Photocopy of the same has been placed on record as Annexure C-6. There is no provision of outlet of waste water in the locality. No Cinema Hall, Health Centre, Degree College, etc., were provided. Various representations were made out of which representation dated 18.07.2001, is placed on record, as Annexure C-7. The OPs took an extra sum of Rs.8,400/- as interior electric line/pipe line though, the said electric wiring and appliances were of poor quality. OPs also charged a sum of Rs.3,800/- for the erection of the boundary wall from each flat owner/ allottee, total amount being, approximately, Rs.28.00 lakhs, but the boundary wall, with only 3 feet height, was made, which did not provide safety and security to the residents, culminating into theft, burglary, trespassing and even cases of murder in Sector 4-A, were committed. Copies of the complaints and the photographs have been annexed as Annexure C-8 (colly).

There is no covered parking space for parking motor cars and scooters. Proper parking space was not provided, the 64 flats were bereft of parking space, exit route, etc. It is alleged that the electric cable to the individual flat connection from the meter room is provided through a drain covered with stones, slabs, but this proved to be ineffective due to entry of surface water in the drain. The occupants took direct connection from the meter from their flats, through open insulated wire which has resulted in jumbling of electric wire and chances of cross-connection, which may cause impending danger and severe damages to the life and property of flat-owners. The occupants were taken for a ride. Extra facilities were taken in case of flat Nos.

Flat No. Construction Land charge

2061 2,46,000/- 1,46,000/- (approx.)

2062 2,46,000/- 1,95,000/- (approx.)

3032 2,06,475/- 1,04,748/-

3053 2,46,000/- 1,68,000/- (approx.)

Furthermore, a sum of Rs.20,000/- each, extra, was taken from the owners of the Ground Floor, though there were no extra amenities. The complainants have spent more than Rs.One crore for minor repairs, but this plea is not bolstered by any evidence. Although, the possession of the flats was delayed by one year, yet, the OPs have forcibly charged Rs.50/- from each flat owner till they acquired the physical possession. The land cost has also been disputed. Consequently, the present complaint was filed on 27.08.2003, with the following prayers :-

" i) for the removal of the defects and deficiencies as made by the respondents / opposite party by not providing the services / facilities as given in the brochure / registration book.

ii) to refund all the excess amount along with interest on account of different cost of the land as well as for the construction from different flat owners.

iii) to refund all excess amount that has been taken on different heads along with interest which is to be equally levied.

iv) to pay the damages, loss, along with interest on account of construction 4 flats instead of 2 flats in the same area as shown in Registration Book for a sum of Rs.1 crore.

v) to pay compensation along with interest on account of financial loss as well as injury due to handing over the possession of the flats after a period of more than 1 year, for a sum of Rs.50,00,000/-.

vi) for rectification / removal of the deficiency in construction according to the brochure and design plan and to make the flats of the complainant habitable condition with all amenities.

vii) direct the opp. parties to provide all facilities with full greenery with the surroundings, having the facility of parking, high school, degree college, management institute, local market, health centre, cinema hall, etc.

viii) to pay compensation for mental agony, physical torture and financial loss that the complainant has incurred due to the deficiency of service rendered by the Opp. parties for a sum of Rs.50,00,000/-.

ix) to pay the cost of the litigation in favour of the complainant for a sum of Rs.25,000/-.

x) any other or further order as this Hon''ble Commission may deem fit and proper in the facts and circumstances of the petition".

DEFENCE :-

The OPs have contested this case. It is contended that the residents of Sector 4-A Residents'' Welfare Association also filed a Writ Petition No. 41540 of 2002, before the Allahabad High Court and the same was pending at the time of filing of Written Statement dated 27.02.2004. The OPs advertised the finished flats and not the furnished flats. Specification of the houses along with the drawing has been disclosed to the prospective applicants in the registration booklet. There are two Management Institutes, 13 Schools, Post Office, Police Post, situated in Vasundhara. Again, a Degree College, a multiplex Cinema Hall is proposed on a plot for allotment. Again, Vasundhara is fully developed and Sector 4-A is part of it. In para 6 and Clause 9.7 of the booklet, it is clearly mentioned that freehold facilities will be available as per the prevailing rules at the relevant time. Vasundhara Yojna comprises 1 to 19 Sectors. It has complete transport, water supply, sewage system, electricity network along with developed parks. In the Vasundhara Yojna, prestigious DPS High School, Jaipuria Institute of Management, Mewar Institute of Management, Arwachin School, Ram Kishan Institute, Local Markets, etc., are available. Banking facilities have also been provided in Vasundhara Yojna for the benefit of the residents, including Sector 4-A. Copy of the registration booklet of the Scheme in question is annexed as Annexure P-1.

A Tentative Sketch plan in the registration booklet was depicted and the allottees were called for and it was expected that they would make themselves fully conversant with the design and drawing and location proposed with the construction before applying for registration. Opportunity was given to the allottees to visit this premises and apprise themselves of the design, quality and progress of work, etc. A register for visit was kept so that the department may get the feedback from the buyers for their full satisfaction. No objection was ever raised. Above all, in Clause 9(4) it was clearly stated that the allotment will be made on the basis of "as it is and where it is" and after the allotment, no complaint would be entertained. The registration of 98E was started from 07.08.1998 to 30.09.1998. About 250 persons got cancelled their registration from the aforesaid Scheme which was closed on 30.09.1998. Registration was given to some new applicants. According to Clause 10(4) of the registration booklet, the allottees were to pay the charges for maintenance and up-keep of the completed flats. The flats were constructed by four reputed, fully qualified contractors, as per specification decided by the Parishad. The allottees were free to find out any defect but no objection was received. A full-fledged sewage system and drainage system is fully functional in the area. It is denied that the OPs had promised to supply fully-furnished flats. However, two extra facilities, i.e., providing a common box for external electric connection and a surrounding boundary wall has been provided on the request of the flat owners and actual cost was charged for the same. However, no such proof was adduced. If the Welfare Association wishes to raise the height of the boundary wall, they could themselves raise it. The boundary wall is as per the norms of the OPs. It was never explained what are those ''norms?''. There was no provision for covered parking space in registration booklet. Then, what is the use of ''open parking'' place.

It is explained that an extra amount was charged from the owners of flat Nos. 2061, 2062, 3023, 3032 and 3053, as per para 1.1 (iii) of the booklet. The cost was to be calculated at the rate prevailing on the due date of instalment. It is denied that the extra amount was charged from all the allottees. Again, House Nos. 4-A 2061, 4-A 2062 and 4-A 3053, were allotted against the vacancy during the construction period by that time. OP1 invested its own money on the construction of these flats. All the other allegations have been denied. SUBMISSIONS AND FINDINGS :-

We have heard the counsel for the parties and gone through their written synopses. The Learned Counsel for the OPs vehemently argued that the OPs had advertised for the allotment of ''finished flats'' on ''as-is-where is'' basis and the same is evident from a perusal of Para 9 of the Registration Booklet, marked as Annexure C-3 by the complainant. Para 9(4) of the Booklet mentions that the flat will be allotted on the basis of ''as-is-where-is'' basis and no objection raised by the allottees, subsequently, would be entertained. It is also mentioned that if somebody does not accept the flat, his allotment would be cancelled subject to deduction of 20% of the total amount and would be paid without any interest. This Booklet is dated 07.08.1998. It must be mentioned that both the parties have placed reliance on this document and have referred the same, here and there, in their complaint and written statement, respectively.

Counsel for the OPs has cited few authorities in order to buttress his case, viz., U.T. Chandigarh Administration & Ors. Vs. Amarjeet Singh & Ors. 2009 C.T.J. 486 (S.C.), Bangalore Development Authority vs. Syndicate Bank 2007 (6) SCC 711 and Consumer Unity & Trust Society Vs. Chairman & Managing Director, Bank of Baroda, Calcutta & Ors. 1 (1995) CPJ 1 (S.C.), Delhi Development Authority Vs. Sandeep Khatri, RP No.710 of 2014, it was held that "when allotment is made on, ''as-is-where-is'' basis, then, there is no element of ''service'' in the contract, the complainant is not covered under the definition of ''consumer'' under Section 2(1)(d) of the C.P. Act, 1986 and, therefore, the complaint is not maintainable.

We do not pick up a conflict with the above said legal proposition, but it must be borne in mind that despite the existence of this stipulation, there can be exceptions to the same. If the building authority has mentioned that they would also provide certain other amenities, as has been provided in this case and in above said Booklet, as well, in that event, this condition / stipulation will pale into insignificance.

This view also finds support from a judgment of this Commission reported in Revision Petition No.2951 of 2009, titled HUDA & Anr. Vs. M/s. Suneja & Sons, decided on 18.08.2011 . Sub-Para (2) of Para 21 of the said judgment is relevant, where, reference was made to other authorities of the Hon''ble Supreme Court, which is reproduced here, as under :- " (ii) As regards reliance on the Apex Court judgment in the case of UT Chandigarh Administration vs Amarjeet Singh and Ors., Mr.Pattjoshi emphasised that reliance ought to be placed instead on two subsequent judgments of the Apex Court, namely, Haryana Urban Development Authority and Another v Satish Hans [(2009) 7 SCC 282] and Madan Kumar Singh vs District Magistrate, Sultanpur [IV (2009) CPJ 3 (SC)], decided respectively, on

9.04.2009 and 07.08.2009. Drawing upon the case of HUDA v Satish Hans, Mr. Pattjoshi argued that in a similar matter relating to rectification of statement of accounts of an auction purchaser, the Apex Court did not set aside the order of this Commission on the ground that the complainant being an auction purchaser could not at all qualify as a consumer. However, the Apex Court remanded the matter back to this Commission in view of the specific fact of that the

case, viz., the complainant in that case had already availed of the channel of remedy of moving the appellate authority provided for under the relevant provisions of the HUDA Act. In the case of Madan Kumar Singh vs District Magistrate, Sultanpur, on the other hand, the auction purchaser of a vehicle, who was deprived of possession and plying of the vehicle, was held to be a consumer under the Act. The ratio of this case, according to Mr. Pattjoshi, was squarely applicable to this case, because the petitioner had deviated from the terms of allotment and withheld sanction of the building by raising erroneous and arbitrary demands on the balance cost of the plot. Mr. Pattjoshi, therefore, submitted that the demand for the balance cost should be revised by the petitioner by working out simple interest @ 10% per annum with effect from the date of offer of possession till the date of deposit of the sum of Rs. 30 lakh by the respondent/complainant and the balance amount should be refunded to the respondent/complainant by the petitioner with simple interest @ 9% per annum. He concluded by requesting that the petitioner sanction the building plan submitted by the respondent/ complainant expeditiously to enable construction on the plot".

Again, in this very Booklet, it is mentioned, in point No.4 that colony will be having High School, Degree College, Management Institute, Local Market, Health Centre, Cinema Hall, Post Office and also Police Station, etc. Again, in the same Booklet, under the caption, "Vishesh Akarshan and Sharte" (Special Attractions & Conditions) in para 2(1), it is mentioned that the OPs will provide the following facilities, such as, pipeline, sewerage system and other connected facilities, metal roads, drains, small bridges, growing of trees, electrification, etc. In Clause 2, it was mentioned that all the necessary civic facilities would be provided. It is not out of place to mention here that ''complainants'', consisting of 736 persons are so fed up with this case that they could not get the Booklet translated into English Language, despite, we indicated the same to their counsel. Fortunately, we know ''Hindi'' Language, wee bit, and, as such, we pulled our sleeves and without wasting further time, we are deciding this case. The people are already exasperated by senseless delay. In view of these conditions, we find that the ''complainants'' are ''consumers'' and, therefore, the argument urged by the counsel for the OPs is to be eschewed out of consideration.

Our predecessor Bench, vide its order dated 10.09.2004, Appointed a Local Commissioner. The said order and LC''s report, dated 10.02.2005, are reproduced here, as under :-

Order of this Commission dated 10.09.2004 Local Commissioner''s report dated 10.02.2005

In this complaint, Resident Welfare Association,Vasundhara, has pointed a number of defects in the houses constructed by Opposite Party, UP Awas Evam Vikas Parishad. The defects pointed out at the time of taking physical possession are, as under : Having interacted with both parties, carefully perused written submissions given by the parties as also the oral submissions on 9 Nov, 2004 and th 7 Jan, 2005, and having visited the site on th 07.01.2005 in presence of both the parties, submit our report as here, as under :-

The basic amenities like roads, water supply, electricity, telephone connection, parking facility, parks are not developed. Grievance Point No. 1 Even though all houses are of same category i.e. LIG, the parking place provided have varying specifications viz. concrete, brick on edge & rammed earth. The grievance of the Complainant is genuine as far as parks and parking places are concern etc. Parks & parking places have not been fully developed. Roads, water-supply electricity have been developed. Telephone facility was not the obligations of opposite parties to develop. We have considered the advertisement (copy enclosed) and the brochure (copy enclosed) issued by UP Awas Vikas Parishad as the basic document encompassing the obligations of UP Awas Vikas Parishad.

The basic design as stated in the brochure has been changed. Grievance Point No. 2 There is no change in basic design of the flats. Back to back arrangement of flats is in conformity with the concept given in the Brochure (page 3 of brochure).

There is no inner door in the drawing room. Grievance Point No. 3 The complaint of the complainant is genuine.

Instead of using distemper only white washing is done. Grievance Point No. 4 Complaint of the Complainant is partially genuine. The brochure provides for distemper finish in all rooms but distemper finish has been provided by UP Awas Evam Vikas Parishad in the Drawing Room only. In this connection it is stated that site visit could not yield any results as the occupants of the visited houses had redone the wall finishes due to the original work needing refinish due to passage of time. The conclusion of the Commissioner is based upon the statement of UP Awas Evam Vikas Parishad (enclosed).

Wash basin is not provided for proper drainage Grievance Point No. 5 Complaint of the complainant is genuine. One washbasin is the least requirement in case of flats of this status. Moreover, UP Awas & Vikas Parishad did provide a plugged inlet for this purpose and therefore it is clear that the requirement was a definite provision which has not been complied with by UP Awas Evam Vikas Parishad. Even as per the brochure the flat was to be fully finished.

There are no tiles in the kitchen, latrine and bathroom. Grievance Point No. 6 Complaint of the complainant is genuine. Provision of the advertisement & the brochure taken together clearly provide for mosaic flooring in the flat. Similarly the advertisement inserted by UP Awas Evam Vikas Parishad also states that the walls of kitchen & toilets will be provided with tiles. Though the brochure has no specific mention regarding tile finish to the walls of kitchen & toilet, the same is obvious when the two documents i.e. the brochure and the advertisement, which emanated from UP Awas Evam Vikas Parishad are read together. Instead of tiles, mosaic floor & dado has been provided in toilet & bath only.

Flooring quality is not as per agreement. Grievance Point No. 7 Provision regarding the flooring has already been described vide point no. 6 above. The Complaint of the complainant is partially genuine.

Parking space for vehicles is not covered. Grievance Point No. 8.

The parking places have neither been marked nor covered and have varying specifications as stated vide Grievance Point No.1.The Commission, however, wish to add that neither the brochure nor the advertisement contain any specific provision of ''Covered'' parking but parking for a housing complex should include both covered & open parking places, covered for the occupants of the flats and open for visitors. No covered parking has been provided.

Electrical fittings are of poor quality. Grievance Point No. 9 Electrical work was inspected and damages to switches & wires were noticed. On examination it was observed that such damages were attributable to various appliances & gadgets being used by the occupants. The complaint of the Complainant is therefore not genuine. However, the wires & fittings provided by UP Awas Evam Vikas Parishad were of reasonable quality & rating commensurate with the load requirement of the LIG houses i.e. about 2 K.W.

Boundary wall is quite low. Grievance Point No. 10 Boundary wall of approx., height 1.6M from DPC (Plinth) has been constructed all round. Since the neighboring lands are situated at different elevations/ levels with reference to the land of the society, the boundary wall height is slightly in adequate at some of the places-specifically at entrance gate No. 1. We are, however, unable to consider the boundary wall height as ''very low'' as contended vide the complaint of the Society.

Roads width is not as per the original plan, etc. Grievance Point No. 11 The Brochure, which according to both the parties is the ''Contract'' or ''the Memorandum of Understanding'', does not specify any road width. However, both parties did produce detailed ''site plans'' of the scheme and with reference to these plans, the complaint of the society is partially genuine. The two site-plans having same drawingNos. & date are enclosed. It is pertinent to bring out here that the two ''site plans'' differ with each other - which is not normal in the profession , the documents bear the same number & date. During the site inspection the Complainant did not show any interest or inclination to get the road width verified. On being asked by the Local Commissioners the complainant stated that the intention was to point out lesser width of what is marked the submitted drawings as ''path'' is not covered by the scope of work as ordered by Hon''ble National Consumer Disputes Redressal Commission.

It is thus clear that some deficiency on the part of the OPs stands proved. Thus, there is much ''ado'', about something. Parks, not properly maintained. Parking places are not covered. This is a deficiency in service on the part of the OPs. There is no inner door in drawing room. Strangely, there is no wash-basin. Tiles in kitchen, bathroom and latrine were replaced by the poor materials. White-wash, flooring quality and height of the boundary wall were not up to the requisite standard. At the eleventh hour, after you have made lot of exercise, incurred money and wasted precious time, you may not be in a mood to abandon that Scheme. The Opposite parties are interested to leave you in the lurch, but you have no other option, but, to string with it. The situation changes every now and then. You are a helpless person facing an arrogant, despotic, high-handed capricious personality, who does not understand your position. Excess Payment :

Then, there is the question of ''Excess'' payment and the value of the land. It is well settled that the complainant cannot question the cost of the project at this stage. They have entered into the agreement. They must have considered the ''pros and cons'' and the ''premises'' which were to be taken over by them. They are estopped from the ''principles of estoppel''. In the Booklet, it is also mentioned that the price mentioned above is an estimated one which can be reduced or increased at the time of actual construction. That, according to Clause 10(7), the residents will constitute into a ''Society'' and will take care of these flats, themselves. The owners of House Nos. 4-A 2061, 4-A 2062 and 4-A 3053 were given the possession against the vacancy during the construction period and by that time, the OPs had invested its own money on the construction of these flats. Consequently, after the prescribed period, the interest was charged from them, on delayed payment. Thus, the OPs are not liable to refund the money. The Cinema Hall, Local Market, a Degree College, etc., were meant for the entire Vasundhara, Ghaziabad. Those were not meant for this particular colony. Relief :

Succinctly stated, there is deficiency in service on the part of the OPs as discussed above. Taking overall view of these deficiencies, we award compensation / costs of Rs.10,000/- to each of the member of the ''Society'', i.e., total being, Rs.73,60,000/-, with interest, at the rate of 9% p.a., from the date of filing of this case, i.e., 27.08.2003, till realisation.