E.J. Bellie, President

1. The complainant is Sathya Flat Owners' Association registered on 8.3.1996. The opposite parties, flat promoters constructed 24 flats and allotted to the members of the complainant Association for consideration on different dates under agreements executed individually by members of the Association and the opposite party. The flats have been handed over to the members of the Association on 30.4.1993 while some work were pending completion. The case of the complainant is that the building has not been certified by the Qualified Architect as provided in Clause 7 of the Builders Agreement. There are many deficiencies in the building.

2. The weathering course was not properly laid except in the space above flat No. 20 and it suffers from deficiency. On account of this there is seepage of rain water into the walls and it has caused considerable damage to the building constructed and also to the concealed wires. To complete the weathering course work and for the damage suffered for the past 3 years the opposite party is liable to pay compensation to the complainants.

Schedule 'C' of the agreement provides for a common well, a common borewell and a common overhead tank for supply of water. The opposite party has provided a borewell and an overhead tank but instead of a common well they have provided another borewell. They have closed the existing common well stating that there won't be water during summer and since it lies close to the building it will cause damage to the walls. But they have not made provision for lifting water to the overhead tank from the 1st borewell as also they have not done so from the 2nd borewell. They are refusing to make lifting arrangements from the 2nd borewell. In this respect also the opposite party is liable to pay compensation to the complainants.

As per the agreement, the builder shall provide a mosaic finish to a height of 5'6" in the toilet and bathroom, but they have provided mosaic only on the floor and have provided white cement (Kerala cement) finish to the walls. Thus they have committed deficiency in service and for this they are liable to pay compensation to the complainants.

The Promoters have completed only 3/4th of the cement concrete platform in the open space around the building leaving l/4th of the work unfinished. As to this also the opposite party is liable to pay compensation to the complainants.

As an amenity, a common Antenna for the 24 flats has been provided with concealed wiring to each of the flats, but the Antenna is not working. A booster has to be provided for the Antenna to function. For this also the promoters are liable to pay compensation to the complainants.

The promoters have laid a concrete drainage canal between the eastern side compound wall of the building and the road. This drainage is very low. Consequently there is no flow of drainage water towards south, into the main drainage canal. Stagnated drainage water in the canal emits very foul smell throughout the day and night and breeds mosquitoes causing health hazards. The bottom level of the drainage canal has to be raised by 6". For completion of this work also the opposite parties have to pay compensation to the complainants.

For provision of Palar water from the overhead tank there is no independent connection to each of the floors. Consequently the people in the top floor could not get water. Therefore the present system should be modified and for this too the opposite party is liable to pay compensation to the complainants. Certain works incidental to construction of flats, enumerated in the complaint, have not been provided by the promoters and to do the said works the promoters is liable to pay compensation to the complainants. The promoters have of their own accord provided to the flats 3-phase electricity connection instead of 1 phase and this they have done in their own interest and have collected charges for the same from some of the flat owners and they have to refund those amounts collected with 24% interest.

Illegally the promoters collected Sales Tax from 2 of the flat owners and they are bound to refund those amounts.

The promoters had to make arrangements for provision of a separate transformer for supply of electricity to the flats, but they have not taken proper steps for the same and it was at great effort of the flat owners, after much delay they were able to get a transformer fixed and until the transformer was provided, the flat owners suffered a lot for want of cur rent. The flat owners are entitled to get compensation for this from the opposite party.

The electrical consumption connection in respect of the flat numbers 18,19 and 24 are still in the name of the opposite parties. It is the duty of the opposite parties to get the name changed to the individual names of the flat owners. Therefore it is necessary that the opposite party is directed to do the said work. On these allegations the complainant Association has claimed various sums of money under various heads stated above totalling in all to Rs. 10,39,765/-.

3. The opposite party in its written version would contend that it constructed the building as per the approved plan and the M.M.D.A. had issued the completion certificate to this opposite party as early as 27.9.1994. Before completion of the building the members of the complainant Association requested the opposite party to hand over possession of the flats and carry out the remaining work subsequently, and it was in deference to their wish, they were handed over possession of the flats on 30.4.1993, and thereafter the opposite party completed the additional work. The complainant Association in its letter dated 31.3.1994 agreed to pay a sum of Rs. 2,500/- for each of the flats and requested the opposite party to complete the work, but they have not paid those amounts and in spite of it the opposite party have completed the pending works. Therefore the alleged deficiencies are only imaginary and not real. The opposite party had completed the weathering course as early as April, 1993. The opposite party is not liable to instal a second motor for lifting up water since there is no such provision made in the agreement, and as per the agreement the opposite party can provide mosaic finish or white cement finish in the toilet and bath room. Therefore there is no deficiency in service in them and the complainants cannot claim anything in this regard after a lapse of 4 years since the possession of the flat.

4. As regards the averments made in respect of some concrete platform in the open space around the building, the opposite party would contend that there is no provision regarding that in the agreement and the opposite party has provided the same for the goodwill and cordial relationship with the flat owners and as such the complainant cannot have any grievance in this respect.

As per the suggestions given by M.M.D.A. the opposite party had to provide the drainage canal and the averments made in the complaint in this regard is imaginary and the opposite party is not liable to pay any compensation as claimed.

As regards the distribution of Palar water, the individual flat owners have to make their own arrangements to get connection to the flats.

As regards the incidental works mentioned in the complaint, there is no agreement for execution of such work.

The flat owners at the time they took possession of the flats requested the opposite party to provide for 3-phase connection instead of single phase and only in consequence of it the 3-phase connection was provided and the allegations made in this regard are false.

The flat owners are liable to pay Sales Tax on works contract and therefore the opposite party is not liable to refund the amount collected as sales tax.

It is not true to say that the opposite party has not taken any effort to erect the transformer installed and it took earnest efforts in this regard and only because of non-availability of the transformer, the Electricity Board could not provide it earlier. The complainants have instead of filing a case against the Tamil Nadu Electricity Board, has complained against the opposite party.

It is further contended that the complainant is not a consumer and the claim is barred by limitation and the complaint has been filed only with a view to harass and humiliate the opposite party.

5. The point that arises for consideration is whether there was any deficiency in service on the part of the opposite party and if so, what relief can be granted to the complainants.

6. Point : As seen above the complainant is the Association of Flat Owners in the building constructed by the opposite party builders. It is common case that the flat owners have taken possession of the flats in 1993 and this complaint has been filed only subsequently. Various deficiencies have been alleged in the complaint and the opposite party have denied those allegations.

7. According to the complainant the weather course has not been properly done, and on account of this there was seepage of water into the walls and the concealed wires have been damaged. As regards this in the written version it is contended that the allegation is false and the weathering course work has been completed as early as April, 1993. In this connection, it was pointed out on the said letter of the complainant that in the xerox copy of the letter dated 30.11.1994 the opposite parties have admitted that the weathering course on the open terrace has been put up by cement jelly etc., excepting the flat tiles has not been provided on the open space. But there is no reference to this letter in the complaint and in fact no document whatsoever has been filed alongwith the complaint. The xerox copy of that letter has been brought to the notice of the Court only on the last day of the enquiry. According to the complainant the laying of the tiles alone is not the deficiency but there are more deficiencies regarding the weathering course. Even though the complainants have alleged several deficiencies in the complaint which are all have been denied by the opposite party, the complainants have not chosen to get a Commissioner appointed to make a local inspection. In these circumstances, it is difficult to believe that there was deficiency with regard to weathering course as alleged by the complainants. What is more, the complainants have not prayed for rectification of any defects but they have prayed for payment of compensation since according to them they have to do the works themselves. But no evidence whatsoever has been let in as to what would be the amount they would have to spend for the alleged defects.

8. It is then complained that the opposite parties have closed the existing ordinary well and instead it had provided a borewell but they have not made any provision to lift water from that borewell to the overhead tank. But according to the opposite party the well was closed because during summer time it would dry and it was lying close to the building and therefore it would cause damage to the walls and hence that ordinary well was closed and instead a borewell was provided. This explanation of the opposite party sounds true and acceptable. But the grievance of the complainant appears to be that from the said borewell which was given in lieu of the existing ordinary well, no provision has been made for lifting the water to the overhead tank. Here it must be remembered that there is already another borewell from where provision has been made for lifting water to the overhead tank from that well. The agreement does not say that provision must be made for lifting water from the ordinary well to the overhead tank. This being the case there is no merit in the plea of the complainants.

9. The next plea of the complainant is that the agreement provides for mosaic finish to a height of 5'6" in the toilet and bathroom, but the opposite party have provided mosaic only on the floor and have provided white cement finish to the walls. The opposite party in their written version have contended that the agreement provides for either mosaic finish or white cement finish but that does not appear to be correct. However, the opposite party would further say that white cement finish is rather costlier than the mosaic finish. Here one thing that has to be considered is that it is 4 years after the was taken delivery such an accusation is made against the opposite party. There is no evidence to show that the complainants have raised this plea any time before. Therefore there is no merit in this plea of the complainants.

10. Regarding the allegation that the opposite party have left in the middle of construction of cement concrete platform around the building in the open space, it is not in dispute that the agreement does not provide for the same; and further according to the opposite party that work had been completed and there is no evidence adduced by the complainant to show that the work was not completed and that being the case the complainants cannot have any grievance.

11. Regarding the allegation about the provision of individual connection to the flats from the Antenna there is no provision in the agreement and as such the case of the complainants is untenable.

12. The grievance alleged in respect of the drainage from the eastern side of the building to the road, there is no provision for such drainage in the agreement. If the drainage is low and is causing health hazards the complainants can take up the matter with the Civic Authorities and they cannot allege any deficiency in service against the opposite party.

13. Regarding the allegations in the complaint in respect of Palar water, there is no provision in the agreement that the opposite party shall make arrangement for independent connection for each floor for supply of water and what is provided for is only one common Palar water connection. Therefore there is no merit in the plea of the complainant.

14. Regarding the incidental works alleged in the complaint, admittedly there is no provision regarding them in the agreement. The complainant seems to say that the opposite parties have agreed to provide them but that is denied by the opposite party, and there is no evidence in support of the complainants' plea. Hence the complainants' claim has to be rejected.

15. Coming to the allegation in the complaint regarding 3-phase electricity connection provided, it appears to us there is no truth in the case of the complainant. The complainant seems to say that in the place of single phase connection, purposely the opposite party, for its own benefit and profit, provided 3-phase connection and collected amounts for 3-phase connection from some of the flat owners. But the opposite party would contend that it was at the request of the flat owners only 3-phase connection was provided. To substantiate the allegation of the complainant there is no eviden

ce whatsoever, hence this plea also has to be rejected. 16. As regards the allegation that illegally sales tax has been collected from some of the flat owners, if that be true it will not amount to deficiency in service and respective flat owners can take action against the opposite party for recovery of the same. Therefore in this proceeding, no remedy can be provided. 17. Coming to the allegation of the complainant regarding transformer, according to the opposite parties they have taken full effort to get the transformer installed but because of the non-availability of the transformer the T.N.E.B. did not instal it earlier and as such there was no deficiency in service on the part of the opposite party. Regarding the allegation that there was deficiency in service on the part of the opposite party in this regard, there is absolutely no evidence let in by the complainant. Thus the alleged deficiency stands unproved. Further there is nothing mentioned in the agreement regarding transformer. 18. Lastly, it is averred by the complainant Association that in respect of 2 of the flat owners the electricity consumption connection is still in the name of the opposite party and the opposite party shall be directed to change it to the names of the flat owners. But as rightly contended by the opposite party, it is for the flat owners who have taken possession of the flats to take necessary action and not the opposite parties. 19. Thus we find no merit whatsoever in the case of the complainant Association. In the result, therefore, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed.