WELFARE ASSOCIATION 'E' BLOCK, BRIJ VIHAR, GHAZIABAD vs VICE-CHAIRMAN, GHAZIABAD DEVELOPMENT AUTHORITY

THE Ghaziabad Development Authority (GDA) announced the construction of HIG (Dupleix) and LIG Houses/flats under the Scheme No. 521 in April, 1988. This is popularly known as the Birj Vihar Housing Colony. It was a self financing scheme for the construction of 80 units of HIG (Dupleix) (estimated cost of house was Rs. 3,90,000/-) and LIG Houses/Flats of 144 units (estimated cost of House/Flat varied from Rs. 62,000/- to 69,000/- depending upon whether the flat was on ground floor, first floor or second floor). The construction of the houses/flats was expected to be completed in a period of two years of the deposit of the reservation money. The Applicants for allotment of houses/flats under the scheme were required to pay a registration fee of Rs. 10/- alongwith the application for allotment, registration amount of Rs. 39,000/- for HIG (Dupleix) and Rs. 6,500/- for LIG Houses/Flats and similar amount as Reservation amount for HIG /LIG; the balance amount of the estimated cost was to be paid in four half yearly instalments i.e. in a period of two years. In accordance with the terms of the scheme, the Houses/Flats were to be completed within two years of the deposit of Reservation money and possession given after payment of the full amount due under the scheme. Consequently, the Houses/Flats were due to be completed and the possession delivered to the allottees by 30th September, 1990;

IT is relevant to mention that the Brij Vihar Colony is divided into two parts, first is situated before the Railway crossing and the second is across the Railway track crossing. It is the allottees of the Brij Vihar ''E'' Block Colony across the Railway line who have filed the complaint petition. The Complainants have alleged four major deficiencies on the part of the O.P.-G.D.A. (i) delay in delivery of the possession of the flats; (a) As already mentioned above, the Flats/Houses were due to be completed and the possession should have been delivered by 30th September, 1990. However, it was only from July to September, 1991 that the letters were issued by G.D. A. to the allottees asking them to take possession of the flats during the period from July to September, 1991 and it was indicated that the possession had to be taken latest by 30th October, 1991. The allotments were liable to be cancelled if an allottee failed to take possession. There was, thus a delay from 9 to 13 months in giving possession of the Houses/ Flats and possession was also offered to the allottees under threat of cancellation of allotment and their liability to pay charges for Choukidars. (b) The offer of the possession of the Houses/Flats was made when the basic essential amenities or infra-structural facilities like water supply, electricity supply, drainage and sewerage systems, pucca roads, boundary wall for the colony etc. had not been provided. The Complainants repeatedly in writing and by personel contacts with the Senior Officials of the G.D.A., the Vice-Chairman, the Joint Secretary and the Chief Engineer, brought to their notice that the basic essential amenities had not been provided in the Housing Complex and therefore, it was not possible for the allottees to occupy the Houses/Flats. In fact the Colony was not livable and the allotment was a paper allotment intended to collect money from the allottees. The Complaint Petition was filed by the complainants in September, 1992 and according to the petitioners Brij Vihar ''E'' Block Colony across Railway track was at that time without basic civic services without which it was not possible to live in the Flats/Houses of that colony. (c) The material used in the construction of the Houses/Flats was substandard and of very poor quality. For this purpose, the complainant obtained a report from a Chartered Engineer. The report of the Chartered Engineer is to be found at pages 38 to 46 of the paper-book. It is seen from the report that there was omission to provide many Civil Works, Water Supply, Sanitary and Electricity items in certain flats such as glass-panes, wash-basins or wash-basin fittings, water taps in bath-rooms and kitchens, seats in latrines, and over-head Sintex Water-tanks (see also page 35 of the paper-book). The quality of items provided was not only substandard but very poor. The windows and jalli shutters had warped or were badly cracked in many places; flush shutters were damaged requiring replacement; flats had been damaged due to leakage, the grill and R.L. work was of very poor standard etc. The Complainants had also been given a list of materials required to be provided in the Houses/ Flats by the G.D.A. and these items were given to the allottees by GDA for being installed/fixed in the flats and the allottees were expected to get this done by employing their own labour and bear risk of breakage or damage if any. These items arelistedatpage37ofthe paper-book and include items like Wash-basins without taps and P.V.C. connections but without waste pipe connectors, Sinks, Flush cistern without syphon, ball and handle etc., Sintex tank for water without float ball etc. The Chartered Engineer had estimated the cost of replacement of items for civil works, water supply and electricity items, substandard items etc. at Rs. 1,03,700/-in the case of the HIG (Dupleix) Houses and at Rs. 22,000/- in the case of LIG Houses/Flats. The deficiencies in construction of the Houses/Flats are summarised in the letter dated 20th December, 1990 of the 5 Complainants to the Vice-Chairman, GDA (at pages 33 to 37 of the paper-book). (d) Absence of approach road to the ''E, Block of the Brij Vihar Colony.

In their complaint, the applicants have pointed out that the Brij Vihar Colony is divided into two sectors: (i) before the Railway Crossing and (ii) across Railway track crossing. The sector across the Railway track is enclosed, rather trapped, by Railway tracks on three sides one from Tilak Bridge to Sahibabad, second from Shahdara to Sahibabad and the third linking these two tracks. But the GDA in its brochure for the Scheme 521, had shown only the first two Railway tracks and did not show the third link track. According to the Complainants, if the fact that the housing complex area across the Railway track was entirely encompassed by Railway tracks it was unlikely that the majority of the applicants would have applied for allotment of Flats/Houses in the scheme. In any case, there was misrepresentation and concealment of the facts so far as the approach to the Colony in this sector is concerned.

A sub-way or a fly-over is necessary at the Railway crossing because the gate of the Railway-crossing remains closed for considerable lengths of time during each day, thus hindering free movement across the Railway-crossing. The Complaint Petitioner further pointed out that the GDA was fully aware of this position and therefore, the Chief Engineer had taken up with the Railway authority the question of construction of sub-way at the Railway crossing.

THE GDA has filed three counter affidavits the first counter affidavit dated 17.3.1993 was filed by an Assistant Engineer on behalf of the O.P.-GDA. The second counter affidavit was again filed on 31.1.1994 by an Assistant Engineer. The third counter affidavit dated 5.5.1994 was filed by the Executive Engineer on behalf of the O.P.-GDA. The latter two affidavits were filed when the Counsel for GDA was not able to reply to queries from the Bench and furnish the information asked for. By the first affidavit of 17.3.1993, the GDA pleaded that it had been laid down in the terms and conditions of the Scheme that house would be sold on "As Is Where Is Basis" and no objection on the construction would be entertained. It was also pleaded that "full facts and the situation of the map of the Colony" had been n in the brochure. A detailed map was also kept in the Drawing Section of the Authority and the allottees were free to inspect the map on working day. Therefore, there was no misrepresentation for concealment of facts regarding the Railway tracks enclosing the Colony on three sides. It was further pleaded that "essential amenities had already been provided". Work of pipe line for water and supply of water, Sewerage, Roads and Drainage was complete; the electrification work of the external portion was complete and the installation of the transformer was in progress. It is stated that there was no provision for construction of the approach road or sub-way across the Railway track but the authority was persuading the Railways to provide a sub-way (o the residential Colony.

IT has also stressed the Chartered Engineer who had given his report regarding deficiency in the materials and fittings used in buildings was a resident of one of the allottees flats that, therefore, his report was suspect.

AS regards, the possession of the Houses/Flats, it was observed in the affidavit as under: "As far as the allegations of any delay in possession is concerned, it is most humbly stated that there are certain circumstances beyond the control of the authority. However, full efforts are being made to give the possession at the earliest..."

Thus, the Authority pleaded that the essential services had been completed except for the electricity supply which depended upon the release of power by the U.P. State Electricity Board.

THE second affidavit dated 31st January, 1994 from the Assistant Engineer explains the quality of construction and the quality of materials used in the Houses/Flats. The general contention is that the work has been done and materials used according to specifications and under the supervision of the technical staff of the Authority. He has submitted that wherever defects have been established, these have been rectified. He has also explained how extra charges have been levied in the final cost of the construction and recovered from the allottees.

FROM the third affidavit dated 5.5.1994 of the Executive Engineer, it is seen that work of providing Drainage system, Roads, Water supply, installation of Electricity Poles and Cables in Radha Kunj, which is a part of Brij Vihar, commenced in February, May, 1991 and was completed between July and October, 1992 and became functional during this period. In this connection, it is necessary tore-call that these supplemental counter affidavits had to be filed by GDA because the Counsel for the OP-GDA was not able to furnish the information to the Commission at the hearings as to when the work of construction and installation of water supply, electricity supply, drainage, sewerage and roads etc. were commenced, when they were completed and when the systems became functional in the Colony. In this connection, the Orders passed by this Commission dated 10th September, 1993,31st January, 1994, 23rd February, 1994 and 6th May, 1994 are relevant.

DURING the hearing, it was elicited by the Bench from the Counsel for GDA that the delay in release of energy by the U.P. State Electricity Board was because of non-payment of electricity supply bills raised against GDA by the U.P.S.E.B., and that these were paid by the G.D.A. only on 6.1.1993. It was thereafter that the U.P.S.E.B. gave electric connection.

IT would be evident from the facts cited above that there has been more than one year''s delay on the part of the OP-GDA in completing and allotting the Houses/Flats to the allottees who had made payment in full as per the payment schedule. However, such delays in construction are usual in this country and in any case, it cannot be said that one year''s delay in completion of construction is abnormal and that such delay can be deemed to be deficiency in service on the part of GDA. But it has been established conclusively that the GDA started to make the allotments and give possession of the Houses/Flats to the allottees well before the essential infra-structural works such as electricity supply, water supply, drainage/ sewerage and roads had been constructed and made functional. It is not understandable as to why the O.P.-GDA forced the allottees to take possession on threat of cancellation in 1991 when the Colony was not livable for want of such essential facilities. We are satisfied from the materials produced on record that the Houses/Flats were not in a livable State and hence the allotment and offer of possession of such houses constituted deficiency in service in housing construction as defined in Section 2(1)(o) of the Consumer Protection Act, 1986. So far as the defects in construction of the Houses/Flats and use of substandard materials are concerned, there has been no meaningful challenge by the O.P. -GDA to the contentions of the Complainants, except for making the plea that the work was done by expert engineering staff of the Engineering Department of the GDA and the quality of the work was satisfactory.

WE hold that it has been established beyond doubt that there has been an inordinate delay in the provision of essential infra-structural works necessary for the habitation and enjoyment of the Houses/Flats, that the materials used & fixture fittings provided in the buildings became degraded over a period of time before the houses could be acutally occupied after the provision of water supply, electricity etc. and that the fittings, fixtures etc. were substandard and of very poor quality.

WE are also of the view that the OP.- GDA has not been fair to the complainants when it did not disclose that the ''E'' Block Brij Vihar across the Railway crossing was enveloped on three sides by railway tracks. It was guilty of misrepresentation and unfair trade I practice. It is, therefore, ordered that the allottees of the Houses/Flats are entitled to interest @ 18% p.a. from July, 1991 to December, 1992 when various essential works like drainage, roads, water supply and electricity were completed and the colony could be considered to be fit for occupation and power was released by U.P.S.E.B. after 6.1.1993.

THE amount which is payable by the GDA by way of interest-would be recoverable by the GDA from those amongst its staff who are found to be responsible for the failure of duty to see that the allotments were made only after the essential infrastructural works had been completed and the colony became liable.

AS regards, the items of works like civil, water supply, electricity are concerned which were either not provided but were required to be provided by the GDA or were substandard, we direct that the O.P.-GDA shall provide them at its own cost within a period of three months from the date of receipt of a copy of this order. These must be supplied according to ISI specifications or C.P.W.D or State P.W.D. standard. Where however, the allottees had provided these items out of sheer desperation at their own cost, the O.P.-GDA should reimburse them the costs of these items as per the C.P.W.D. Schedule of the rates including the premium allowed in the rates as in 1992. As regards, the construction of subway underneath the Railway track, we have no doubt that the fact that the Colony was enclosed on three sides by the Railway track was not brought to the notice of Applicants for Houses/Flats and to that extent the GDA, was guilty of misrepresentation and unfair trade practice. In he Railways do not provide the subways within a reasonable period of one year of this order, it will be the responsibility of O.P.-GDA to provide sub-way at its own cost.

THERE is no doubt whatsoever the GDA has been guilty of deficiency in services in the allotment of the flats/houses in the Brij Vihar Colony, that there was no justification whatsoever for making allotment of flats/ houses before the essential infra structural works were completed and the colony became livable and that there were numerous defects in the Houses/Flats constructed of which the allottees were forced to take possession on the threat of cancellation. We, therefore, award a compensation f Rs. 15,000/- to allottees of HIG and Rs. 5,000/- to allottees of LIG Flats payable by the O.P.-GDA to each of the allottees. The amounts so paid by way of compensation will be recoverable by tine GDA from the members of its staff who made the allotment of flats/ houses prematurely and made the allottees, take possession under threat of cancellation of allotment. The Registry shall send a copy of this (order to the Vice Chairman, GDA forthwith.