George Karimalli and Another Vs. M/S Sri Bhargav Builders a Registered Partnership Firm Rep. by Its Managing Partner Sri M.Gandhi (Died) as Per His Lrs and Others - Court Judgment

Oral Order (Sri R. Lakshminarsimha Rao, Member)

The appellants are unsuccessful complainants in the C.D.No.299 of 1997 on the file of District forum, Hyderabad.

The appellants purchased the undivided share of flat from the owners of the land and to the effect sale deed dated 21.11.1992 was executed in favour of the appellants. Thereafter the appellants entered into construction agreement with the respondent for construction of a flat, on the assurance of the respondent that the flat would be constructed in accordance with the rules and regulations of the Municipal Corporation of Hyderabad within 9 months from the date of handing over of the premises to them. It was agreed that the appellant would pay the amount in instalments as shown in the agreement. The appellants as such had paid entire cost of the flat. Subsequently the appellants came to know that the respondent had played fraud on them by making additions in the plan without that particular portion of the plan was not approved by the Municipal Corporation of Hyderabad.

After given delivery of possession of the flat, the respondent harassed them by not supplying electricity for 20 days, without fixing the doors and by making a demand for the appellants to stay outside of the flat for a period of three days and without fitting the electrical fittings to the taps etc. The drainage system was not provided with a cover. The electricity meter was also not provided with a cover. The municipal authorities informed the appellants that the appellants portion was not originally sanctioned and as such no water connection could be provided thereto. The appellants being employees had no sufficient capital for payment of the cost of the construction. They had borrowed the amount from financial institutions. The respondent obtained necessary finances from the financial institutions for the appellants. The appellants prayed for damages to an extent of Rs.50,000/- ( which was amended as Rs.5,00,000/- during pendency of the appeal) , refund of Rs.3500/- with interest and also sought for a direction to the respondent to provide drinking water to their premises at the cost of the respondent as also a direction for regularization of the permission in respect of the flats pertaining to the appellants.

The respondent has filed written version contending that the respondent is only a builder. The owners of the land are Chandrasekhara Konda, Vijayalakshmi Konda, Seelam Ananda Rao and Seelam Suresh who are necessary and proper parties to the complaint. The respondent had to raise the construction as per the plan signed and approved by the owners of the land. The respondent under takes to get the constructions of the flat of the appellants regularized by the corporation paying compound fees with the assistance if necessary, from the owners of the land. The respondents have no knowledge whether the flat of the appellants was not as per the approved plan that was signed and handed over to him by the owners. At the time of handing over of the flat, the lights and doors and windows were alright. After four years the appellants cannot complained of any alleged defect.

The first borewell dug by the respondents as per the geologists survey failed and it was suggested that water table is available if the borewell was dug deeply in the common area where the second borewell is situated. All the flat owners and the builder agreed to dig second borewell on 50% each bearing the expenditure . All the flat owners contributed Rs.3,500/- towards their 50% share and the respondent had to bear the balance 50% of the expenses to dig second borewell. The appellants had stayed outside the flat for two to three days because of the location of their flat in the ground floor which had to bear the noise while digging the borewell. There is no obligation on the part of the respondent as per the terms of the agreement between the appellants and him to provide municipal drinking water to them. There was no deficiency in service on the part of the appellants. Hence, prayed for dismissal of the complaint.

Basing on the evidence, Exs.A1 to A9 the District Forum dismissed the complaint holding that there was no deficiency in service on the part of the respondent.

The point for consideration is whether the respondent was guilty of constructing the flat of the appellants without obtaining requisite sanction from the Municipal Corporation of Hyderabad?

There is no disputing of the fact that the appellants had entered into construction agreement with the respondent for construction of the flat in terms of which the flat was to be completed within 9 months from the date of handing over of the premises for construction to the respondent. It is also not in dispute that the flat was constructed within the stipulated period. The appellants had contended that the respondent had tampered with the copy of the plan of the flat. Apart from this contention, further it was submitted that the respondent had not provided the electricity supply nor fixed the doors for about 21 days from the date of delivery of possession of the flat. It is also contended that the borewell was dug at a place it was practically nuisance for the flat occupied by the appellants.

In so far as the tampering with the plan said to have been issued by the MCH, we will discuss this point a little later and while dealing with the other aspects of the contention of the appellants, it is essential to extract few clauses of the agreement for construction dated 25.11.1992 that was entered into between the appellants and the respondent. The relevant clauses of the agreement read as under:

1. The BUILDERS shall construct for the PURCHASER the said Flat, at a cost of Rs.1,73,250/- ( Rupees one lakh Seventy Three thousand Two hundred and Fifty only) to be paid to the BUILDERS by the PURCHASER in the manner as shown at condition no.4, hereunder:

2. The said GANDHI ARCADE shall be constructed, in accordance with the specifications prescribed in SCHEDULE ‘C hereunder with such modifications or variations as may be required by the authorities concerned or otherwise deemed necessary, or advisable by the BUIDERS.

9. The BUILDERS shall not incur any liability, if they are unable to construct

and deliver the possession of the said Flat within the date stipulated herein

above of the said GANDHI ARCADE is delayed or stopped by reasons of non-

availability of steel, cement etc., or on the account of prevention, obstruction

or prohibition by the authorities concerned for no fault of them.

10. The PURCHASER shall after the expiry of 15 days from the receipt by him of

of written notice from the BUILDRES that the said Flat is ready for use and

occupation is liable to bear and pay all the legal, municipal taxes and charges

for electricity, water and other services and outgoings payable in respect of

the said Flat unless and until the said Flat is transferred to some other

or party by reasons of any breach or default committed by the PURCHASER.

13. All demands raised by A.P.S.E.B. such as service connection charges,

transformer charges and security deposit etc., are payable by the

PURCHASER also should pay all the charges required for providing

drinking water and connection.

The appellants had not even issued a notice to the respondent to provide for the facilities those are mentioned in the complaint before the District Forum. A perusal of the conditions of the construction agreement makes it clear that it does not provide for digging a borewell, supply of electricity, providing for a meter box etc., and as such they are not covered by the terms of the construction agreement. The respondent cannot say that he had proceeded to construct the flats as per the plan obtained by the owners of the land. In so far as the allegation of the tampering of the sanctioned plan wherein the appellants flat was stated to have been shown is concerned, it appears the respondent by proceeding with the construction of the flat without obtaining the requisite sanction from the concerned authorities and made the appellants believe that the respondent had obtained the sanctioned plan for their flat along with the plan of other flats which is sufficient to hold that the respondent indulged in committing deficiency in service and unfair trade practice. Without ascertaining the bonafides of the plan the respondent cannot be expected to proceed with the construction by taking shelter under the pretext of ignorance of the bonafides of the plan stated to have been obtained by the owners of the land. The respondent in the counter had categorically stated that they are ready to get the construction of the flat of the appellants regularized by the MCH by way of paying compounding fees. Hence, the construction of the flat without obtaining any permission and making it appear to the appellants as if the permission was sanctioned amounts to deficiency in service and unfair trade practice on the part of the appellants.

The purpose of awarding compensation is to recompensate the victim and to bring a qualitative change in the attitude of the service provider. Calculation of damages depends upon various circumstances. The counsel for the appellant at the time of hearing submitted that the appellant had incurred an amount of Rs.38,000/- for regularization of the plan and the statement has not been controverted by the respondent. The statement of the respondent that he would take steps for regularization of the plan in respect of the flat of the appellant would lend support to the contention of the appellant that they had approached the MCH for regularization. Certainly, the appellants would have experienced mental tension for, the respondent no.1 had not obtained permission from the municipal authorities for construction of the flat nor did he take any steps for regularization of the plan. In the view of the matter the appeal deserves to be allowed. Taking into consideration of the hardship and mental tension suffered by the appellants we feel it just and proper to award a sum of Rs.50,000/- towards compensation.

In the result, the appeal is allowed by setting aside the order passed by the District Forum. Consequently complaint is allowed directing the respondents/opposite parties directed to pay an amount of Rs.50,000/- towards compensation to the appellants/complainants within four weeks from the date of receipt of this order failing which the said amount shall carry interest @ 9% per annum from the date of the order. No costs.