Consumer Case No.123/2008

Between:-
Mr.G.K.Jaiswal, S/o. Munna Lal,
Aged about 64 years, Occ: Retd. Employee,
India, R/o. H.No.13-1-670, Mangalnat,
Hyderabad-500006. ….Complainant
And

• Mr.Ramesh Chabbra, S/o. Late Satish Chandre,

R/o.H.No. 11-1-776/14, Chilakalagud,
Secunderabad.

• Municipal Corporation of Hyderabad,

Rep. by its Commissioner,
Near Tank Bund,
Hyderabad. ….. Opposite Parties

This case coming on this day for final hearing before this Forum in the presence of Sri K.Visweswara Rao, Counsel for Complainant and Sri Rameshchandra, advocate for the opposite party No.1 and Opposite party No.2 having not contested and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(per Hon’ble President, Sri M.Vijaya Bhaskara Reddy on behalf of bench)

1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, against the opposite party No.1 seeking a direction to arrest all the leakages in the rooms his flat, to provide good quality electricity fixtures, electricity wiring, to provide the grills in the corridor, to replace the defective wood work in the Flat, to pay the requisite penal charges to the government for regularisation of his Flat, to pay Rs.10,000/- towards compensation for causing mental agony and inconvenience, to direct opposite party No.2 to collect the requisite penal charges from opposite party No.1 and to regularise the deviations and for costs.
2. The case of the complainant as set out in the complaint in brief is that opposite party No.1 is a builder and developer engaged in the business of construction of the residential complexes and selling the same. He represented that he got a development agreement with the concerned land lord for developing the premises bearing NO.6-3-223 to 226, Prem Nagar, Khairatabad, Hyderabad in an extent of 386 Sq.yrds. and also that he would be constructing the cellar + ground and 4 upper Floors besides a room in 150 Sft. in the 5th Floor. He also represented that he has got the approval of opposite party No.2. He offered Flat No.201 together with one car parking space to the complainant. He assured quality construction and fixtures. However, he failed to furnish the copy of the approved plan issued by opposite party No.2 inspite of several requests. Having indemnified against any defects, opposite party No.1 has to rectify the same. He also assured to provide the basic and common amenities. He named the complex as Chabra’s Nest.
3. Having been induced by the representations of opposite party No.1, the complainant purchased Flat No.201 admeasuring 1,000 Sft. inclusive of common areas situated in the second Floor with un divided share of the site in an extent of 20 Sq.yrds along with car parking. The complainant paid the consideration to opposite party No.1 on 09-06-2005 who handed over the possession on 14-06-2005.
4. The complainant noticed that opposite party No.1 had deviated from the approved plan. Opposite party No.2 did not take any action. As per the approved plan, opposite party No.1 had to construct a single apartment in each Floor, but he constructed more than one in each Floor. The complainant had asked the opposite party No.1 for getting the construction regularized but he postponed the same. At that time there was no scheme for regularization of the deviations. Opposite party No.1 asked the complainant to wait for some time till the scheme is floated by the government.
5. Recently the government has floated a scheme for regularization of the deviations in construction on payment of penal charges. However, opposite party No.1 has not evinced any interest. The same amounts to deficiency in service.
6. It is further pleaded that all bathrooms and bed rooms were leaking continuously. There are dampness marks in all rooms. Opposite party No.1 used inferior quality of the fixtures including the electricity wiring. He did not fix the grills in the corridors as a result of which the rain water is entering the flat. Opposite party No.1 also fixed inferior quality of wooden frames and shelters. They require replacement with standard quality wood. Inspite of several requests, opposite party No.1 failed to attend to those works. The builder would have to attend to the defects and repairs for a period of 3 years free of cost as per the Apartment act. The opposite party No.1 committed unfair trade practice, while opposite party No.2 failed to insist opposite party No.1 for regularization. Even after a legal notice, opposite party No.1 failed to respond. Hence the complaint.
7. Opposite party No.1 alone contested the matter by filing the counter, while opposite party No.2 did not contest.
8. The case of the opposite party No.1 as set out in his counter in brief is that the complainant had taken all the documents pertaining to the building including the sanctioned plan. He purchased the flat for lesser price than the market price knowing fully well that there were deviations.
9. It is further pleaded that the occupants of the building would have to maintain the water and drainage pipes and also the building. If, the blockages are not cleared from time to time, it would result in leakages. With regard to the wood work, it was done as per the specifications and quality. The works were done as per the funds provided by the complainant. If, the complainant is not satisfied with the Flat, he is ready take back the same by paying the sale consideration amount paid by the complainant with interest.
10. The opposite party No.1 got issued a reply notice to the notice issued by the complainant. The complainant took possession of the Flat on 14-06-2005 under a document after satisfying with the quality of work. Due to the improper use and maintenance of the electrical fixtures by the tenants of the complainant they did not last longer. There are no merits in this complaint and as such liable for dismissal with exemplary costs.
11.The points that arise for consideration are:-
I.Whether the complainant is entitled for a direction against the opposite party No.1 to arrest all leakages?
II.Whether the complainant is entitled for a direction against opposite party No.1 to provide quality electrical fixtures and electric wiring of good standard and also the corridor grills and for replacement of defective wood work?
III.Whether the complainant is entitled for a direction against opposite party No.1 to get the Flat of the complainant and common areas regularized by the Government?
IV.Whether there was any deficiency in service? and if, so, whether the complainant is entitled for any compensation from opposite party No.1?
V. Whether the complainant is entitled for a direction against opposite party No.2 to receive the penal charges from opposite party No.1 and to regularize the deviations in the flat of the Complainant?
VI.To what relief?
12. To substantiate his case, the complainant has chosen to file his evidence affidavit and relied on Exs.A1 to A4. On the other hand, the contesting opposite part No.1 also has chosen to file his evidence affidavit and relied on Exs.B1 to B2. Both sides filed the written arguments and also advanced oral arguments.
13. Point No. I:- The complainant complained all leakages and also dampness in the walls of the bath rooms and other rooms of his Flat. Opposite party No.1 practically did not dispute the same. According to him poor maintenance and non cleaning of pipe lines has resulted in such leakages etc., So, the burden is on the opposite party No.1 to prove that the Flat owners have not maintained the flat properly, that there were blockages in the pipes and that the same resulted in leakages. However, he could not file the affidavit of any plumber or any other technician or the affidavit of any of the occupants of the building in that regard. Similarly, he could not file even a single scrap of paper in that regard. So, it cannot be said that the leakages and seepages occurred due to improper maintenance of the water and drainage pipes or for not clearing the blockages in the pipes. It is not in dispute that the builder would have to maintain the building (apartment) for a period of 3 years from the date of occupation by the purchasers as per Apartments Act. This complaint has been filed before the completion of 3 years. So, it is the duty of the opposite party No.1 to take steps for arresting the leakages, seepages and dampness in the rooms of the Flat of the complainant. The opposite party No.1 could not comply with the request of the complainant even after a legal notice. So, this amounts to deficiency in service and as such opposite party No.1 has to arrest all the leakages and seepages in the flat of the complainant.
14. Point No. II:- The complainant, on whom the burden lies has to prove that there was the agreement between him and opposite party No.1 to the effect that particular quality electrical fixtures or electrical wiring or corridor grills or particular type of wooden doors should be provided. Admittedly, the flat was handed over to the complainant on 14-06-2005 as evidenced by Ex.A2 pursuant to the purchase of the flat under Ex.A1. If, the complainant was not satisfied with the quality of the materials provided as agreed, he should have raised the objection before taking possession of the flat. Ex.A2 recites that the opposite party No.1 completed the flat as per the specification and that the complainant was fully satisfied with the quality of the construction and the materials used by the opposite party No.1. The complainant also agreed not to make any claims with regard to the quality of construction etc., So, at this stage without proving that opposite party No.1 failed to use the material as per the agreed specifications, he, cannot ask for replacement of the existing electrical fixtures or electrical wiring. The complainant also failed to make out that opposite party No.1 agreed to provide corridor grills. So, in the absence of any agreement to provide corridor grills, the complainant is not entitled to ask for such a facility. Similarly, there is no agreement between the parties to provide a particular variety of wood or wooden work. Further, the complaint could not make out that defective wood was provided by the opposite party No.1. So, the complainant is not entitled for the above reliefs.
15. Points III & V:- First of all the complainant failed to place any material to show that there were deviations in his flat. The Municipal Corporation or any other authority have not pointed out that the building was constructed as against the approved plans. The relief asked is a premature one and without any base. So, the complainant cannot seek a direction against opposite party No.1 at this stage to pay the penal charges either to the Government or to MCH and to get the Flat regularized. Similarly, the complainant is also not entitled to ask opposite party No.2 to receive the penal charges from opposite party No.1 as such a plea is premature in the absence of any demand from opposite party No.2. Though the complainant in his written arguments submitted that he himself took initiative to get his flat regularized by paying certain fee, he could not produce any documents to prove the same. So at this premature stage, we cannot issue any direction either to opposite party No.1 or opposite party No.2 in this regard. As a matter of fact the complainant did not plead all these things in his complaint. So, he is not entitled for these releifs.
16. Point No. IV:- As already observed, opposite party No.1 did not arrest the leakages and seepages even after a legal notice from the complainant. We have already opined that it amounts to deficiency in service. So, the complainant is entitled for adequate compensation. The ends of Justice would be met if, we direct the opposite party No.1 to pay the compensation of Rs.5,000/-(rupees five thousands) for causing deficiency in service and for putting the complainant to mental agony.
17 Point No. VI:- In the result, the complaint is partly allowed. The opposite party No.1 is directed to attend to all leakages and seepages in the Flat of the complainant by meeting the expenditure from his pocket. He should commence the work within one week from the date of receipt of the order and complete the same within one month ever since thereafter. Opposite party No.1 is also directed to pay Rs.5,000/-(Rupees Five thousands only) by way of compensation and Rs.2,000/-(rupees two thousands only) towards costs of this litigation to the complainant. The complaint against opposite party No.2 is dismissed.
For compliance, one month time is granted.

F.A.No.177/07 against C.D.No.1075/2005, Dist.Forum-1II,Hyderabad.

Between:
1.K.Harsha Vardhan, S/o.K.Ganga Bai,

The Addl. Commissioner (Works),

Municipal Corporation of Hyderabad,

Tank Bund, Hyderabad.



2. Yadagiri S/o.Laxmaiah,

Executive Engineer,

Municipal Corporation of Hyderabad –III,

Abids, Hyderabad. …Appellants/

Opp.parties

And



Nisaruddin Ahmed Jeddy,

S/o.Late I.A.Jeddy,

Age 51 yrs. Occ:Advocate,

R/o.3-5-826, Hyderguda,

Hyderabad. … Respondent/

Complainant





Counsel for the appellants : Mr. G.Parashuram

Counsel for the respondent : P.I.P.



CORAM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,



SMT M.SHREESHA, HON’BLE MEMBER

AND

SRI K.SATYANAND, HON’BLE MEMBER.



TUESDAY,THE TWENTY FOURTH DAY OF NOVEMBER,

TWO THOUSAND NINE.





Oral Order : (Per Smt. M.Shreesha, Hon’ble Member )

***

Aggrieved by the order of the District Forum-III, Hyderabad in C.D.No.1075/2005, the opposite parties 1 and 2 preferred this appeal.



The brief facts as set out in the complaint are that the complainant’s parents obtained permission from the opposite parties for construction of building at 3-5-826, Hyderguda, Main Road, Hyderabad which is in the jurisdiction of Circle No.3 MCH, Abids Road, Hyderabad by paying construction fees to the opposite party Corporation and in the month of March-April, 2003, the opposite party without any notice came to the courtyard of the complainant with 25 to 50 labourers and dug the court yard for road widening purpose. Complainant submits that they dug the telephone cables, drinking water pipelines, electricity earthing connections drainage connections and also destroyed other utilities. Complainant submits that he purchased the house in the year 1960 and the said area was taken by the Municipal Corporation in exchange for grant of permission of construction of building by the complainant on payment of permission fees and no notice was issued by the Municipal Corporation prior to digging and destroying the utilities. Complainant called private masons, plumbers, electricians and purchased all the raw material and inputs and spent nearly Rs.20,000/-. Complainant submits that as per the judgement of Apex Court in LUCKNOW DEVELOPMENT AUTHORITY vs. M.K.GUPTHA reported in CPR 1994 (1) SC complainant is a ‘consumer’ and the complaint can be filed against any statutory authority and for the damages incurred to him and seeks direction to the opposite parties to pay reasonable compensation of Rs.50,000/- and also to pay expenses incurred by him which is Rs.20,000/-.



Opposite Party Corporation filed counter stating that the property was purchased in the year 1960 and the pipelines of the complainant’s property are very old and the pipelines are laid beneath the road at about more than 3 ft. and to lay the CC road , the Corporation dug the road and it is the duty of the complainant i.e. owner of the house to shift or to attend to the repair works of all underground pipe line connections since once the road is widened the municipal authorities have to demolish the structures affected in road widening and clear of the debris and that the complainant had more than 15 days time to shift or change his pipelines but he failed to make any changes at that time and the clarification sought by the complainant with the Addl. Commissioner, Works was clarified that whatever repairs have to be effected , has to be undertaken by the complainant himself. Lastly the opposite party contends that the complainant is not a ‘consumer’ since there is no deficiency in service and no execution of the work by the opposite party which is related to ‘service’.



The District Forum based on the evidence adduced i.e. Exs.A1 to A5 and pleadings put forward allowed the complaint directing the opposite parties 1 and 2 to pay to the complainant a sum of Rs.30,000/- and also costs of Rs.2,000/- within 2 months from the date of order and dismissed the case against opposite party no.3.



Aggrieved by the order of the District Forum, the opposite parties 1 and 2 preferred this appeal .



Both sides filed their written arguments .



The facts not in dispute are that the complainant paid Rs.57,402/- on 24.3.1999 for obtaining permission for construction of his house no.3-5-826, Hyderguda, Hyderabad It is the complainant’s case that the opposite parties without issuing any notice to the complainant came to the courtyard of the complainant with a band of 25 to 50 labourers and started digging the courtyard for road widening purpose and dug the telephone cables , drinking water pipelines , electricity earthing connections, drainage connections and destroyed other utilities which has been existing since the time the complainant purchased the house in the year 1960. It is the further case of the complainant that the area that was dug for road widening belongs to the complainant and for grant of permission for construction of the building, permission fee was paid by the complainant. Complainant further submitted that he purchased all the raw material and had to engage private masons , electricians and plumbers and spent Rs.20,000/- for effecting repairs for which act , the opposite parties are liable to compensate him. It is the case of the appellants/opposite parties 1 and 2 that the complainant is not a ‘consumer’ and that no notice is required prior to effecting road widening. They contend that acceptance of land acquisition compensation and handing over the land to municipal authorities clearly reveals that the respondent/complainant was very much aware of the action to be initiated by the Municipal authorities under Road Widening Scheme. They further contend that the respondent/complainant did not file any bills but only quotations and estimates and that the quotations of materials and other plumbing spare parts are no way related to the repairs done and even if there is damage caused to the pipeline it cannot be more than a few inches or few feet and that the respondent has fabricated these bills.



Now we address ourselves to the aspect whether the complainant is a consumer or not ?



We rely on the judgement of the Apex Court reported in CPR III 1994 (1) PAGE 568 in LUCKNOW DEVELOPMENT AUTHORITY vs. M.K.GUPTA in which the Apex Court held that a complaint can be filed against a statutory authority or a builder as a contractor for deficiency in respect of immovable property. The Apex Court also held as follows:

“Even where there is no ministerial duty as above, and even where no recognized tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate, or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury



The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome & Anr., on the principle that, ‘an award of exemplary damages can serve a useful purpose in vindicating the strength of law’. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check an arbitrary and capricious exercise of power. In Rookes v. Barnard & Ors. it was observed by Lord Devlin, ‘the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.’



The learned counsel for the complainant also relied on the judgement of the A.P.High Court reported in 2007 II ALD 328 wherein they held that for demolishing of any structure in private property it is not permissible without notice to the aggrieved party as per the Hyderabad Municipal Corporation Act 1955 Sections 405 and 406. Demolition of premises by Municipal Corporation under the guise of clearing foot path without putting petitioner on notice is against Sections 405 and 406 of the Municipal CorporationAct,1955. The learned counsel for the complainant submitted that as per Sections 146 and 147 of Hyderabad Municipal Corporation Act 1955 the proposed action of MCH in seeking demolition of Murgies belonging to a restaurant without notice under road widening programme is again the procedure prescribed under Sections 146 and 147 and the Municipal Corporation of Hyderabad is bound to follow the due procedure of law before proceeding with any demolition.



The learned counsel for the complainant relies on the citation reported in I (2003) CPJ 120 in LUCKNOW JAL SANSTHAN vs. JUSTICE J.S.TRIVEDI & ANR. Uttar Pradesh State Commission held that the opposite parties i.e. municipality is liable to pay the compensation when the sewerage line infront of the complainant’s house was blocked and was not removed by the municipality inspite of several representations. In another judgement by the State Commission, Tamilnadu in P.CHANDRAKUMARI vs. MADURAI CITY MUNICIPAL CORPORATION reported in CPR XI-XII-1994(3) it was observed as follows:

“Municipality renders service in approval of plans for construction on payment of necessary fee and complainant who has availed of services for consideration is entitled to maintain complaint before Redressal Forum”.



In the instant case also no doubt the opposite parties are performing a statutory function but as laid down by the Supreme Court in a recent judgement reported in CPR III 1994 (1) PAGE 568 in LUCKNOW DEVELOPMENT AUTHORITY vs. M.K.GUPTA even a statutory body which render service to the public comes within the ambit of the Consumer Protection Act. The National Commission in USHAL RANI AGGARWAL & ORS. vs. NAGAR PALIKA PARISHAD, HALDWANI reported in IV (2006) CPJ 20 (NC) held that the act of the opposite party in not carrying out any cleaning work despite receiving Rs.200/- consideration is a clear case of deficiency and amounts to failure to discharge duty and obligation in the manner prescribed by rules. The act of the opposite parties in not issuing any notice prior to the road widening is an act of deficiency of service. The Apex Court in a judgement reported in II (2004) CPJ 12(SC) in GHAZIABAD DEVELOPMENT AUTHORITY vs. BALBIR SINGH held as follows:

“Having examined the wide reach of the Act and jurisdiction of the Commission to entertain a complaint not only against business or trading activity but even against service rendered by statutory and public authorities the stage is now set for determining if the Commission in exercise of its jurisdiction under the Act could award compensation.

It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees.”



Now we address ourselves to the aspect whether awarding of Rs.30,000/- by the District Forum is justified or not ?



While we can hold that there is deficiency in service on behalf of the opposite parties 1 and 2 we are of the considered view that awarding an amount of Rs.30,000/- by the District Forum is excessive since the complainant has admitted that he had spent only Rs.20,000/- towards effecting the repairs. The learned counsel for the complainant has submitted that the District Forum has awarded only Rs.30,000/- while he is entitled for an enhanced compensation of Rs.50,000/-. It is pertinent to note that the complainant did not prefer any appeal. Hence his prayer for enhanced compensation cannot be considered. Taking into consideration all the facts and circumstances and the bills filed and the arguments put forth we are of the considered view an amount of Rs.20,000/- would meet the ends of justice.

In the result this appeal is allowed in part and the order of the District Forum is modified reducing amount awarded by the District Forum Rs.30,000/- to Rs.20,000/- while confirming the rest of the order of the District Forum. Time for compliance four weeks.