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2012 DIGILAW 765 (MP)

Shakuntala Bhadouria v. M. P. Griha Nirman Mandal

2012-07-30

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2012
Judgment: A.K. Shrivastava, J. 1. By this petition under Article 226 of the Constitution of India the petitioner is seeking following relief's: (i) To hand over the possession of the house immediately and to allow the petitioner to record the true condition of the house at the time of delivery. If required, a Court Commissioner be appointed to assess the actual condition of the house at the time of handling over of possession. The Board authorities be restrained from coercing the petitioner into falsely recording satisfaction. (ii) To provide the exact calculation for the price that has been charged from her for the house FA/H-37. (iii) To return to the petitioner the extra amount charged by the respondent Board with interest at Bank rates till payment. (iv) To change the fittings and finishing's that the sub-standard and not in accordance with the specifications. For the fittings and finishing that cannot be changed, the Respondent Board be directed to make appropriate deduction in the price of the house. (v) To rectify within a fixed reasonable time the structural defects like sinking of the floor, cracks in the walls, sub-standard finishing etc. and to issue a warranty in their regard. (vi) To provide the petitioner the No Dues Certificate without delay. (vii) To pay the petitioner the costs and compensation for the harassment caused by the Board. (viii) To pay the petitioner the costs of litigation. (ix) Any other relief that may be found proper. The admitted facts necessary for the disposal of this petition are as under: (a) The respondent No. 4 published an advertisement in the newspaper dated 28.10.2007 seeking proposals for registration of houses in Section F and G of Deendayal Nagar, Gwalior under the Self Finance Scheme; (b) According to the advertisement, the estimated price of a house under the 32 HIG (A) Delux Sector F Scheme was Rs. 13.80 lacs, the registration amount was Rs. 1.40 lacs and the amount payable before possession was Rs. 13.80 lacs, the registration amount was Rs. 1.40 lacs and the amount payable before possession was Rs. 12.40 lacs; (c) The petitioner applied for a house under the said Scheme and deposited required registration amount; (d) The fourth respondent informed the petitioner vide its letter dated 24.12.2007 that petitioner has been registered temporarily for allotment and there is a possibility of more than 10% increase in the price of the house; (e) the fourth respondent thereafter issued impugned letter dated 6.8.2008 informing the petitioner that due to escalation in the cost of building material, the selling price of the house would be approximately Rs. 18.52 lacs and the actual selling price will be communicated on completion of construction; (f) the petitioner did not give her consent and raised verbal objections; (g) it was informed to the petitioner that construction work of her house had commenced on 9.9.2008 and she was advised to pay installments according to the schedule laid out in the letter; and (h) the petitioner deposited all the installments and the registration amount Rs. 18.52 lacs; vide letter dated 13.11.2009 of fourth respondent petitioner was informed that she has been allotted House No. FA/H-37. 2. On inspecting the allotted house by the petitioner, she found several latent and patent defects in the construction and complained about the same to 2nd, 3rd and 5th respondent. The petitioner also sent e-mails on 23.11.2009 and 24.11.2009 to these respondents. The Dy. Housing Commissioner issued official website asking for information and complained about the pricing and quality of the construction and requested for correction of the defects and lacuna. 3. Further the case of the petitioner is that vide letter dated 10.12.2009, the fifth respondent-Assistant Engineer of the Housing Board informed the petitioner that the house is still under construction and any shortcomings pointed out by her during a joint inspection will be rectified during the process of finishing the work done. Despite petitioner telephonically requested fifth respondent to have joint inspection, her request was not accepted by him. The said respondent again informed the petitioner vide letter dated 29.12.2009 that the construction work is about to complete and, therefore, she should fix up a joint inspection to point out the defects in construction so that they can be rectified by the Contractor before and during finishing. The said respondent again informed the petitioner vide letter dated 29.12.2009 that the construction work is about to complete and, therefore, she should fix up a joint inspection to point out the defects in construction so that they can be rectified by the Contractor before and during finishing. In pursuant to said letter, the petitioner sent a letter on 8.1.2010 to the fifth respondent informing that she will be able to come in the month of February, 2010. The petitioner further requested the fourth respondent-Estate Officer of the Board at Gwalior to provide her approved specifications of the house; the basis of formulation of these specifications; the approved lay out; planned estimate and drawing of the house; the basis of calculation of the cost of the house and reasons for escalation from initial cost; date of purchase of land; the report of material used in the construction etc. etc. 4. The respondents did not provide the details which were asked by the petitioner but fourth respondent sent a letter to the petitioner dated 26.3.2010 informing her that there has been an escalation in building material and some items have been changed to improve the house and as per the requirement of the site. She was also informed that Collector's guidelines have been made applicable and the Chief Architect, Housing Board, Bhopal has made some alternation/additions to the drawing, design and specifications of the house and, therefore, the estimated present price of the house would be Rs. 24,69,000/-. Vide E-mail dated 4.4.2010 the petitioner asked for item-wise rates, quantity of items used in her house, details of Collector's guidelines, specifications and improvements but no information was given to her. 5. It is also an admitted position that fourth respondent-Estate Manager issued the impugned allotment order No. 904 dated 8.4.2010 directing the petitioner to deposit the balance amount of Rs. 8,87,289/- (taking total cost to Rs. 27,39,289/-) within 15 days of receipt of the order otherwise the allotment would be deemed to have been cancelled. It was also informed that if there is any complaint in regard to construction, fifth respondent should be contacted so that the faults may be rectified within 30 days. 8,87,289/- (taking total cost to Rs. 27,39,289/-) within 15 days of receipt of the order otherwise the allotment would be deemed to have been cancelled. It was also informed that if there is any complaint in regard to construction, fifth respondent should be contacted so that the faults may be rectified within 30 days. It was also informed that the house should be inspected thoroughly and it should be entered in the register of the concerned Deputy Engineer that the house has been taken into possession in good condition otherwise no complaint in regard to construction shall be entertained. Although the petitioner objected for escalation of the price and also made correspondence in that regard but it was not decided. The petitioner vide letter dated 29.4.2010 addressed to respondent No. 4 to provide necessary information which she has sought but no information was ever given to her. Her letter dated 29.4.2010 was followed by E-mail dated 6.5.2010. At that juncture fourth respondent replied vide letter dated 20.5.2010 that petitioner should collect information from and get the defects rectified by fifth respondent. She was also directed to get the sale deed registered and to take possession of the house after rectification of defects. These facts are also not in dispute. 6. According to the petitioner, the fifth respondent failed to get the defects carried out and the documents were also not provided to the petitioner. Thereafter in order to meet out the unanticipated additional demand for the escalated price, the petitioner had to liquidate all her savings and investments and also had to apply for additional loan. The petitioner also sent respondent No. 4 an E-mail on 24.5.2010 requesting to provide information. 7. Thereafter, the petitioner paid all the dues in full on 21.6.2010 (total amount of Rs. 27,39,289/-). This fact is also not disputed. Thereafter, vide letter dated 30.6.2010 the fourth respondent informed the petitioner that the estimated price of the sale deed would be Rs. 2.90 lacs. This fact is also not disputed. 8. The petitioner thereafter wrote a letter to the fourth respondent on 5.7.2010 that full payment has been made by her subject to legal remedies to be availed later and, inter-alia asked for the information sought under R.T.I. Act, registration of sale deed at the earliest and for possession. 2.90 lacs. This fact is also not disputed. 8. The petitioner thereafter wrote a letter to the fourth respondent on 5.7.2010 that full payment has been made by her subject to legal remedies to be availed later and, inter-alia asked for the information sought under R.T.I. Act, registration of sale deed at the earliest and for possession. According to the petitioner, vide letter dated 7.7.2010 the information was supplied to her but it was vague and the documents were either illegible or incomplete. Eventually, she filed an appeal and it was disposed of on 14.9.2010 by the Appellate Authority directing respondent Board to provide petitioner all the documents and information on or before 24.9.2010. 9. It is also admitted that the sale deed was registered on 13.7.2010 and on 15.7.2010 the Estate Manager issued the possession order. The petitioner asked for No Dues Certificate but it was not provided to her for which she made written requests on 15.7.2010 but No Dues Certificate has not yet been given to her. On being inspected the impugned house several defects were found but it was not cured although it was repeatedly asked by the petitioner to the authorities to cure them. Hence, this petition has been filed. 10. By inviting our attention to the order dated 14.3.2011 passed by this Court learned counsel for the petitioner submits that the possession of the house in question was delivered to the petitioner in pursuant to the interim order passed by this Court by way of interim relief. 11. Return has been filed by the respondents but the denial is vague and is not specific. The petitioner has filed several photographs of the house along with the petition which speaks for itself and exposes how and in what manner by carrying out inferior quality work the construction of the house in question has been made. In pursuant to the interim order of this Court dated 14.3.2011, the possession of the disputed house was given to the petitioner and after taking possession of the disputed house it was noticed by the petitioner that the house which has been built up has not been built up as per the required specifications. In pursuant to the interim order of this Court dated 14.3.2011, the possession of the disputed house was given to the petitioner and after taking possession of the disputed house it was noticed by the petitioner that the house which has been built up has not been built up as per the required specifications. Instead of mentioning each and every minute details of those conditions of each and every item and article, the photographs which are filed along with the memorandum of writ petition Annexure P/43 to P/53 they shall be deemed to be the part of this order. The house in question has been purchased by the petitioner from her hard and meager earnings since she is not enjoying a post of I.A.S. or I.P.S. Officer or even Class I Officer. She is simply a teacher in an Army School. 12. Immediately after two days of taking the possession in pursuant to the order of this Court on 16.3.2011 a videography was done by the petitioner and several other coloured photographs were taken out and they all have been annexed and filed collectively as Annexure P/57. The two CD's are also filed. These photographs are self speaking and indicates that how and in what manner very poor and inferior quality of work has been done. We do not find any merit in the contention of learned counsel for the respondents that after taking possession respondents are not at all responsible and the inferior quality of work and the cracks etc. which are pointed out through photographs and videography must have been done by the petitioner so as to grab the money from the respondents. This argument we cannot accept for the simple reason that after investing her hard money, the petitioner herself will never cause serious damage to her own house in which she will live for her entire life along with her family members. 13. This Court by an interim measure and on the prayer made by the petitioner on 29.11.2011 appointed Shri Alok Sharma, Head, Department of Civil Engineering and Architecture, MITS, Gwalior and Shri Arun Katare who is a practicing lawyer of this Court as Court Commissioner to find out the actual position at the site. The aforesaid Court Commissioner inspected the house in question in presence of counsel for the parties. The aforesaid Court Commissioner inspected the house in question in presence of counsel for the parties. The petitioner was also present during inspection and on behalf of the respondents Executive Engineer and Sub-Engineer were present. The Court Commissioner found disparity and how disorderly the house was constructed. It would be condign to quote the relevant portion of the report which reads thus: Point 6.15 of the Writ Petition: A. On site lower reference point may vary as the ground level reference may vary after the mooram or earth filing according to the topography (levels) of the land. In this condition with reference to the earth filled ground level the plinth area is not 0.6 m on site, wherein mass housing it may be a average value for height and estimate also as well as earth filling around constructed house may be an on site decision of the engineers. B. Mooram/earth filling around house and within plot boundary is there on the site and has faced rainy season and settled down at some places, due to compaction which happen normally and may be reduced initially through proper working specifications. It required maintenance. Presently, it is giving an comparative impression, that the building is sinking but the structure of the house is not sinking. C. The vertical cracks are observed in the boundary wall of the house and required to be repaid. D. Structural frame of the building is sound and safe and architectural parts require repair and maintenance as per the specific requirements and expectations of the owner and the commitments of the construction agency. E. Electrical fittings are in working conditions & make should be referred/compared with the specification offered initially to the petitioner by the construction agency. F. The wiring in the house has been provide concealed in the house, but some of the places it is exposed as pointed out by the petitioner. G. Switches are in working condition in the house and some of the switches have been provided of different colours in the same switch board which indicates that M.P. Housing Board were cautions about to fulfill the functional requirements of various buildings services but performed poor in aesthetic senses required to use and to select the material, fittings, Fixture and their colours etc. H. There were interlocking tiles in porch on site and not of Endura make, a compacted mooram approach road has been made from main road to porch. I. The putty work on the house walls does not completing its purpose and require to be redone to get smooth surface finish. Again it can be concluded herewith the comment that as M.P. Housing Board works at community level and involve in solving housing problem in M.P. but here the M.P. Housing Board the construction agency were conscious about to give a sound and safe structure and just to fulfill the architectural and functional requirements of the building. Here in the building under consideration, the construction agency has performed poor in achieving aesthetical requirements to select and proper use of the material fittings, fixture etc. In the house the cleaning, polishing and painting work are required to be upgraded or redone. The floor under sink require to be repaired. The specifications of the fittings and buildings services are required to be compared with the initial commitments and offers of the construction agency if differs required to be upgraded accordingly. Submitting the site technical report prepared by myself Dr. Alok Sharma Professor, Architecture Department to fulfill the purpose required, to the Hon'ble High Court through Shri Arun Katare Ji, Court Commissioner appointed for this matter. Report is submitted before the Hon'ble Court. 14. Indeed, the case of the petitioner is further strengthened from the report of the Commissioner. Right from the very beginning the petitioner is complaining again and again to the respondents that the work which is being carried out is of inferior quality and the material which has been used for constructing the house and the equipments which are fixed do not tally with the specifications. It is further relevant to mention here that as an interim measure when this Court directed the writ petitioner to take possession on 14.3.2011, a videography was done and a CD has been placed on record along with several other photographs which shall be deemed to be the part of this order. These photographs speaks for themselves and no argument is required in this regard. No where it is stated by the respondents that the photographs etc. are not of the house in question. Therefore, according to us, the respondents are legally required to pay compensation to the petitioner. 15. These photographs speaks for themselves and no argument is required in this regard. No where it is stated by the respondents that the photographs etc. are not of the house in question. Therefore, according to us, the respondents are legally required to pay compensation to the petitioner. 15. We are deliberately not passing any order directing respondents to carry out the necessary repairs etc. and to fix the fixtures and equipments according to the specifications because we are afraid that again inferior quality of work would be done and again the petitioner would be forced to come to this Court. Even otherwise also, one can understand that in order to carry out the necessary repairs and to change the equipments etc. according to the specifications, the respondents would harass the petitioner and the petitioner would require to go again and again to the office of the respondents and she will be made pendulum and inspite of teaching the students, she would be forced to go to the office of the respondents daily. In order to save all these agonies, it would be appropriate to direct the respondents to pay a sum of Rs. 5 lacs (Rupees Five lacs only) to the petitioner so that the house in question which has been purchased by her from hard earnings, can be brought to in order so that she can live along with her family like a human being and not like a wild animal. 16. Since the respondents have not constructed the house in question according to the specifications as well as the fixtures were not affixed which were in the specifications, they are liable to pay exemplary costs Rs. 25,000/- (Rupees Twenty Five Thousand only). The petitioner is also entitled for the costs of Rs. 25,000/- (Rupees Twenty Five Thousand only). The petitioner is also entitled for the costs of this petition because instead of requesting and bowing her head to the feet of the respondents, as a vigilant citizen of India she has invoked the jurisdiction of this Court under Article226 of the Constitution. Since right to life includes meaningful living which is a fundamental right as enshrined under Article 21 of the Constitution of India and to maintain the human dignity, the citizen should be permitted to live like a human being, therefore, the respondents are also liable to pay costs. This petition is accordingly allowed with costs. Since right to life includes meaningful living which is a fundamental right as enshrined under Article 21 of the Constitution of India and to maintain the human dignity, the citizen should be permitted to live like a human being, therefore, the respondents are also liable to pay costs. This petition is accordingly allowed with costs. Counsel fee Rs. 5000/- (Rupees Five thousand only). Let compensation Rs. 5 lacs (Rupees Five lacs), exemplary cost Rs. 25,000/- (Rupees Twenty Five Thousand) and cost of this petition including counsel fee Rs. 5,000/- (Rupees Five thousand) be paid to the petitioner on or before 30.9.2012, failing which from 1st October, 2012, the petitioner shall be entitled to the interest @ 6% per annum.