SURENDRA RAJARAM GUPTA vs SHIVAM BUILDERS

COMPLAINANTS in these two complaints are members of Dayashanker Co-operative Housing Society Limited (Society for short) and they have filed these complaints to recover compensation from the opponents on the grounds of defects in construction and failure to provide facilities and amenities in accordance with the contract. Since identical questions are raised in these complaint''s, for the sake of convenience, they are disposed of by this common judgment.

THE case of the complainants is as follows. Opponent Nos. 1 to 3 had framed a housing scheme called Karnavati Apartments and published the scheme inviting members of the public to become members of the said scheme. Karnavati Apartments were to be constructed for the members of the society. Opponent Nos. 1 to 3 are developers, builders architects and engineers and they had undertaken to construct Karnavati Apartments (flats). THE complainants were attracted by the advertisement given by the opponents and they became members of the scheme/society. Karnavati Apartments consisted of three types of flats with different areas. One type of flat was of 50 sq. yds. second type was of 60 sq. yds.; and third type was of 73 sq. yds. Price of the flats was fixed at Rs. 1/800/- per sq. yd. It is the complainants'' case that in addition to this agreed price, they were required to pay Rs. 100/- per sq. yd. in cash without receipt. THE construction of the flats was to be completed within 8 months. Since the complainants were in need of residential premises, as stated above, they became members of the scheme/society. THE construction of the flats was expected to be completed by March, 1992; but no progress was made in the construction work. THE complainants represented to the opponents that they were staying in rented premises and, therefore, the construction may be completed at an early date. Ultimately, the opponents gave possession of the flats in June-August, 1992. According to the complainants, when the possession of the flats was given to them, construction was incomplete, but the opponents assured them that it would be completed. Since the complainants were in need of housing accommodation they took possession of the flats. However, the opponents left the construction incomplete. THE complainants have enumerated in the complaint the defects in the construction and the common amenities and facilities which were not provided by the opponents as agreed. It is further submitted that the opponents had collected from each of the complainants Rs. 5,000/- for administrative expenses. This amount has been retained by the opponents. On the above grounds, the complainants have filed these complaints seeking the following reliefs against the opponents. (1) Compensation for physical and mental torture; (2) Refund Rs. 5,000/- to each of the complainants; (3) Refund of cash amount taken @ Rs. 100/- sq.yd.; and (4) Expenses for completing the work of construction and removing defects.

Opponent Nos. 1 and 2 have filed written statement Exh. 13 resisting the complaint. They have denied the allegations made by the complainants and submitted that the dispute which is raised by the complainants is a dispute between members of the society and the society and therefore this Commission has no jurisdiction to entertain the complaint. It is further submitted that the allegation of incomplete or defective construction is not correct. The work of construction was supervised by engineers appointed by the Society and the construction was done in accordance with the plans. It is submitted that the work of construction could not be completed because time was taken in getting the land vacated by persons who were occupying it and this fact is known to the complainants. Opponent Nos. 1 and 2 have also denied the allegations about the defect in construction and the so-called failure to provide common amenities and facilities. Opponent Nos. 1 and 2 have also denied having received any cash amount or amount for administrative expenses. It is submitted that the complainants are not entitled to claim any compensation or refund of any amount from them. Opponent No. 4''s written statement is at Exh. 37 and he has also denied the allegation made by the complainants and submitted that the complainants are not entitled to claim any compensation or any other amount from him. Opponent No. 4 has raised the same contentions which are raised by opponent Nos. 1 and 2.

This Commission by its order dated February 15,1993 passed below Exh. 5 appointed Court Commissioner directing to him to make local inspection and to draw up Panchnama and submit report regarding the work of construction. The Commissioner was also directed to take a photographer with him to take photographs of the work of construction. The Commissioner made local inspection of the apartments or flats of the complainants in presence of the representatives of the complainants and the opponents. The Commissioner''s report alongwith Panchnamas drawn up by him and the photographs taken during the local inspection are at Exh. 26. It may be mentioned here that no objections have been filed against the report of the Commissioner.

THE complainants have filed affidavit of the holders of power of attorney in support of the allegations made in the complaint. In this affidavit also, it is stated that there are defects in the work of construction of flats and certain common amenities and facilities are not provided by the opponents. Opponent Nos. 1 and 2''s statement is not supported by affidavit whereas opponent No. 4 has filed affidavit in support of his written statement. THE parties have also filed copies of the documents. THE documents mainly consist of the receipts for payment, possession letters and the agreement between the society and the opponents. THEre is no other oral evidence. THE complainants have not produced the detailed plans and specifications in respect of the flats. THE complainants have also not proved what expenses they will have to incur for removing the defects in the construction and completing the construction. THE opponents have also not produced such plans and specifications. THE opponents have relied on the agreement between them and the society for the development of the land and construction of the flats. It is not disputed that the work of construction was carried out by the opponent Nos. 1 and 4. It is on the basis of the above evidence and the Commissioner''s report that the controversy raised in these complaints has to be resolved. The Commissioner''s report and the Panchnamas drawn up by him establish beyond doubt that there are defects in the construction of the flats. However, as pointed above, the complainants have not led evidence to prove what expenditure will have to be incurred in removing these defects. There is also no evidence regarding the common amenities and facilities which according to the complainants were to be provided by the opponents. Therefore, we are left only with the Commissioner''s report and Panchnamas drawn up by him to give relief, if any, to the complainants. There is no reason to discard the Commissioner''s report and the Panchnamas drawn up by him since no objection has been raised against them by any of the parties to these complaints. Therefore, as observed above, there are defects in the work of the construction of the flats as stated in the report of the Commissioner and Panchnamas. Since there is no evidence regarding the expenses which the complainants will have to incur in removing the defects in the construction work, the only relief with regard to these defects which can be granted to the complainants is to direct opponent Nos. 1 to 4 to remove the defects which are noted in the Commissioner''s report and the Panchnamas. There is also no evidence regarding cash amount @ Rs. 100/- per sq. yd. alleged to have been paid by the complainants without any receipt or Rs. 5,000/- per member paid for administrative expenses. Therefore, there is no question of directing refund of this amount. However, we are inclined to award lumpsum compensation of Rs. 5,000/- to each of the complainants for the hardship which they have suffered on account of defective construction.

THERE is no substance in the opponents'' contention that the dispute raised in the complaints is a dispute between members of the society and the society and, therefore, this Commission has no jurisdiction to entertain the complaint. The dispute which is raised is with regard to defective construction and failure to provide amenities and facilities by the opponents. The complainants have no grievance against the society as such. It is not disputed that there was contract between society and the opponents for the construction of the flats. The complainants, as members of the society, are beneficiaries of the services of opponent Nos. 1 to 4 which the society had hired for the work of construction of flats. THEREfore, the complainants, fall within the definition of consumer under the Consumer Protection Act. It was not necessary for the complainants to approach the Board of Nominees under the Co-operative Societies'' Act for getting redress. We, therefore, reject the opponent''s contention that this Commission has no jurisdiction to entertain the complaints. In the light of the above discussion, we pass the following order. Opponent Nos. 1 to 4 are directed to remove the defects in construction of the apartments or flats of the complainants which are noted in the Commissioner''s report and the Panchnamas which are at Exh. 26 within three months from the date of this order. In case the opponent Nos. 1 to 4 fail to remove these defects within three months, it will be open to the complainants to engage a qualified Engineer to remove these defects. In case the complainants have to so remove the defects, they shall maintain the accounts of the expenditure incurred by them for removing the defects. The complainants shall be entitled to recover the expenditure incurred by them for removal of defects from opponent Nos. 1 to 4. Opponent Nos. 1 to 4 are further directed to pay to each of the complainants of these two complaints lump sum compensation of Rs. 5,000/- for the hardship which they have suffered. Opponent Nos. 1 to 4 shall also pay to each of the complainants Rs. 500/- by way of costs. These two complaints i.e. Complaint Nos. 34 and 35 of 1993 shall accordingly stand disposed of. Complaints disposed of with costs.