Smt. M. Shreesha, Honble Member
Aggrieved by the orders in C.C.No.182/2005 on the file of District Forum-II, Krishna at Vijayawada, opposite party No.1 preferred this appeal.
The brief facts as set out in the complaint are that the complainant being was attracted by the publicity of opposite party No.1 which floated Vishnupuram Colony stating that it would provide the said colony with all modern facilities like under ground drainage, under ground electricity, BT roads, temple, shopping complex, canals to drain rain water on both sides of BT road and developed park. Opposite party No.1 obtained lay out plan 9/99 from VGT UDA pertaining to phases 1 and Lay out Plan 2/2000 for phase II and collected Rs.200/- per sq. yd. from each member of the association towards development of the said facilities and in all collected Rs.55,98,000/-. The complainant association gave a detailed notice as there were lot of defects in provision of the said facilities. The BT road laid in the colony are of ½ inch thickness which show that the roads are for name sake only and very substandard. The complainant association submitted that as per lay out No.2/2000, opposite party No.1 is duty bound to lay 60 ft road between the first and 2nd phases but it neither formed 60 ft. road nor left sufficient margins to manifest the 60 ft road. In fact it formed 31 ft road but laid 18 ft BT road and this is not even any semblance for road for the remaining 29 ft. The outlet for the underground drainage is not yet formed and opposite party No.1 did not follow the mandatory rules and regulations of the Urban development authority. The complainant therefore, got issued a legal notice to VGTM UDA to take necessary action against opposite party No.1. The complainant further submitted that the levels that are to be maintained for proper flow of drainage was not maintained which resulted in blockage in the chambers due to reverse flow getting stagnated and over flowing into the vacant plots of the colony and the total drainage is a failure and causing public health hazard and inconvenience to the members of the Association. The complainant submitted that opposite party No.1 formed BT roads in March, 2004 and the drainage work continued till March, 2004 half finished and inspite of several reminders to opposite party No.1, it did not form drain canals on both sides of the colony to drain rain water. The complainant association calculated the damages for having laid substandard BT roads and drainage canals at Rs.14,40,000/- and towards remaining unfinished road at Rs.2,00,000/-, repair and maintenance of drainage pipes with proper alignments at Rs.3,00,000/- and also got issued a legal notice. Hence the complaint for a direction to opposite party No.1 to cause the above works worth Rs.19,40,000/- or in the alternative to pay the damages to the tune of the said amount for the association to carry out the same together with costs.
First opposite party filed written version admitting the floating of Vishnupuram colony and denied the other allegations made in the complaint. It denied receipt of Rs.55,98,000/- from the members of the complainant association at Rs.200/- per sq. yd. for development of the said facilities. It contended that it formed roads and other amenities as per norms and handed over the same to Gram Panchayat, Poranki. It further contended that the Gram Panchyat, Poranki has to maintain the amenities to the colony and prayed for dismissal of the complaint.
Second opposite party filed version denying the averments made in the complaint. It admitted sanctioning provisional lay out vide RC No.C8/665/2000 and later sanctioned LP 2/2000 and submitted as per the sanctioned layout, the application to lay WBM road with a width of 6 mtrs. carriage way and the first opposite party complied the specifications of the layout. There is no specific provision to form 60 ft road between 2 layouts and the concerned Gram Panchayat will undertake the development of roads etc. considering the convenience of the public, and as per the layout there must be a provision for 40 ft. road. The roads formed in L.P. No.2/2000 are as per specifications and were certified by their Engineering Section on 25-5-2000 and thereafter the layout was approved and released in the year 2000 and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to 14 and B1 to B20 and C1, the District Forum allowed the complaint in part directing opposite party No.1 to pay Rs.19,40,000/- to the complainant within one month and on failure awarded interest at 7.5% p.a. till the date of payment together with costs of Rs.5,000/-. The complaint against opposite party No.2 was dismissed.
Aggrieved by the said order, opposite party No.1 preferred this appeal.
Both parties filed written arguments.
The facts not in dispute are that opposite party No.1 is the developer of Vishnupuram colony and the layout was sanctioned by opposite party No.2 and the members of the complainant has paid an amount of Rs.200/- per sq. yd. towards development charges and opposite party No.1 agreed to provide 60 feet road between Phase I and Phase II and also provide amenities like underground drainage, electricity, B.T.Roads, temple, shopping complex, canals to drain rain water on both sides of BT road including raising of trees and development of parks. It is not in dispute that the lay out plan 9/99 from opposite party No.2 was obtained for Phase-I and lay out plan 2/2000 was obtained for Phase-II. It is the complainants case that these amenities were not provided and they seek direction to opposite party No.1 to carry out the works or pay Rs.19,40,000/- in the alternative. This Commission by its order dated 22-12-2009 in F.A.No.556/2007 remanded back the matter to the District Forum for further enquiry.
It is the case of the appellant/opposite party no.1 that they had laid roads and provided all the facilities like underground drainage, electricity, temple, shopping complex and canals and in fact the inmates of Vishnupuram Colony in 2011 have also occupied the houses and thereafter opposite party No.1 handed over the same to Gram Panchayat, Poranki and as such there is no deficiency in service on their behalf.
Ex.A3 lists out all the amenities which opposite party No.1 has promised to provide. Ex.A5 is a letter addressed by opposite party No.1 to one Smt.R.Rajeshwari, Plot Owner No.28 that she has to pay Rs.200/- per sq. yd. towards development charges.
After the matter was remanded to the District Forum, an Executive Engineer was appointed who in turn inspected the Vishnupuram Colony Phases I and II and filed his report which is evidenced under Ex.C1, which reads as follows:
1) The width of WBM layer is 6.00 M against 6.00 M specified and is fairly tallying
2) The width of B.T. layer is varied from 5.35 M to 5.65 M against 6.00 M specified (5.80% to 10.80% less)
3) The thickness W.B.M. layers is varying from 102 mm to 125 mm against 150 mm thick specified (16.7% to 32% less thickness)
4) The thickness of B.T layer is varying from 20mm to 25 mm against 20 mm specified and is farily tallying.
The engineer submitted that opposite party No.1 was present during the inspection and promised that the underground drainage system would be cleaned and made operational and the width of the existing 30 feet road would be extended to 60 feet width. The Commissioner also filed a statement in support of his inspection report, Ex.C1. The complainant also filed the correspondence, A6, with opposite party No.1. eliciting the various deficiencies with respect to promised amenities and got also issued Ex.A7 legal notice dated 27-1-2005 for which opposite party No.1 replied vide Ex.A8. Ex.A9 is the copy of the estimation report wherein an estimation was given by the Engineer, R.Nalini Mohan that the rectification work for the roads and drainage would cost him Rs.19,40,000/-. The appellant filed the approved layouts evidenced under Exs.B1 to B4. It is also the case of appellant/opposite party no.1 that even as per Ex.B20, issued by VGTM UDA required specification for the road is 300 mm thick gravel road but not a BT road whereas this opposite party has laid BT road as per the promise made. It is also the case of the appellant/opposite party no.1 that Ex.A9 is an estimation for Rs.19,40,000/- does not bear the educational qualifications of the Consulting Engineer nor his authority to issue such a report. Exs.B3 to B7 deal with the layouts of Phase-2. Ex.B3 is the provisional lay out and Ex.B4 is the final layout. Ex.B5 is the registered Gift Deed which is registered in favour of the Gram Panchayat. It is the case of the appellant/opposite party No.1 that unless the conditions under clauses 1 and 2 are fulfilled, as per clause 4, the layout will not be approved. As such in view of clause 4 of Ex.B3, it can be concluded that the approval of final layout implies that the opposite party No.1 has formed the roads as required by law. The learned counsel for the appellant further contended that the maintenance of the drainage is the duty of the Panchayat and that the Commissioners report is not in favour of the complainant. It is pertinent to note that the Commissioner, who gave his report under Ex.C1 was also cross examined.
âW.B.M. means Water Bound Mecadum. WBM will be laid with Metal, gravel and stone dust which is called as metal road in common. It is true after metal road/over metal road BT layer would be formed. Shoulder is different from BT for the purpose of base. WBM and BT layer width will be one and the same unless specifications are mentioned. It is true in Ex.B3 it is mentioned as if B.T. surface is to be done, 2 cm. (3/4) thick B.T. carpet is to be laid over which 6 mm (1/4) B.T. seal coat is to be laid. For adopting two layers of metalling in R and B Department 150 MM thickness is adopted. But in VUDA specifications the first layer thickness is 100 mm second layer thickness is 75 mm total thickness for these layers will be 175 mm against 150 mm mentioned in the report. It is true road laying (thickness) will be planned according to traffic in case of High ways. But in colonies there is no special but minimum specifications will be adopted. As per my report BT road is good. Wear and tear only on BT road. It is not true to say that my observation regarding drainage is beyond the scope of Commission. The witness adds that working was on physical observation only and it is only a suggestion. It is not true to say that my report is false and that I am deposing false evidence to help petitioner/complainant association. It is not true to say that I have not followed the standard specification.
From the aforementioned cross examination, it is clear that the Executive Engineer who inspected the roads and amenities filed Ex.C1 report denied the suggestion put to him by opposite party No.1 counsel and contended that the thickness of the BT road as given by him in his report is true. It is the contention of the appellant/opposite party No.1 that once a competent authority had approved the final layout after fulfillment of the lay out conditions by the appellant herein, the same cannot be denied without examining the concerned officer. But in the instant case, the appellant himself has not chosen to take appropriate steps to do so. The appellant also denied that their representative promised before the Commissioner that the underground drainage system would be cleaned and they contend that the maintenance of drainage system is the duty of the Gram Panchayat only and not the appellant but we are of the view that the initial basic amenity of drainage has to be provided by the opposite party and it is only the maintenance which the Gram Panchayat can undertake. The appellant submitted in his written arguments that the complaint is filed after 4 years after taking possession in the year, 2001 and therefore is barred by limitation. Keeping in view the judgement of Honble HIGH COURT of A.P. in B.VENU MADHAV v. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, REPRESENTED BY ITS REGISTRAR, NEW DELHI and OTHERS in W.P.No.30394 of 2011 dated 18-1-2012 reported in CDJ 2012 APHC 421 when there is immovable property and amenities promised by the opposite party were not provided, it can be construed as continuing cause of action and therefore this complaint cannot be said to be barred by limitation. Even otherwise as per Article 54 of the Limitation Act, the cause of action begins from the date of refusal or denial from the opposite party, which in the instant case is the reply notice dated 04-2-2005 evidenced under Ex.A8 and the complaint has been filed in the year 2005 which says that the complaint is not barred by limitation.
The Executive Engineer who inspected the locality categorically mentioned in his report that 1st opposite party has not formed 60 feet road and there are variations in the thickness and has not provided proper drainage amenityies also. Keeping in view the Commissioners report as well as the cross examination and the fact that the complainant has been able to establish that there is deficiency in service on behalf of appellant in not laying the roads as per the proper specifications and providing drainage and other amenities inspite of collecting Rs.200/- per sq. yds. towards development charges, we are of the considered view that appellant/opposite party No.1 has not complied with the amenities promised in the brochure and this amounts to deficiency in service. However, the District Forum has awarded the amount of Rs.19,40,000/- together with 10% escalation charges and we set aside the escalation charges of 10% (which was not prayed for) while confirming the amount of Rs.19,40,000/- as estimated by the Engineer in Ex.A9, together with interest at 7.5% and costs of Rs.5,000/-.
In the result this appeal is allowed in part and the order of the District Forum is modified by setting aside the escalation charges of 10% while confirming the rest of the order of the District Forum. There shall be no order as to costs.