MEMBERS OF THE ATULRAJ Vs. RAJUL R SHAH

JUDGEMENT

(1.) THIS First Appeal has been filed by eight members of Atulraj Owner's Residents' Association (hereinafter referred to as the 'Appellants') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the 'State Commission') which dismissed their complaint against opposite parties Rajul R. Shah and another, Respondents herein.

(2.) IN their complaint before the State Commission, Appellants had contended that they had purchased flats from the Respondent and during the earthquake that occurred on 26.01.2001, there was heavy damage to these flats because of the unauthorized construction including penthouse, gallery etc. which had been constructed by the Respondents in violation of the sanctioned building plans and had put extra load on the building causing the damage. Further, the material used in the construction was also of inferior quality because of which the foundation of the building itself was very weak and against the stipulated safety norms. Therefore, being aggrieved because of the deficiency in service and the loss caused due of the damage to the building including the fact that during its extensive repairs, Appellants had to stay in rented accommodation, Appellants filed a complaint before the State Commission and requested that the Respondents be directed to pay Rs.16,20,000/- which included Rs.4 lakhs for physical and mental harassment and Rs.10,000/- as litigation costs. Respondents on being served filed a written rejoinder denying the allegations made in the complaint which was also barred by limitation since it was filed more than 2 years beyond the statutory period of limitation. It was specifically denied that the damage caused to the building in the earthquake was because of any defects or illegal construction as alleged. In fact, the entire construction was done under the guidance of a structural engineer the building plans were also got passed by the Ahmedabad Municipal Corporation. It was further contended that the premises were handed over to the Appellants in 1998 and no complaints were received at that time and till 2001 about any defects or unauthorized constructions. Even the present complaint has been filed by only some of the members of the Association and that too after 4 years to exploit the Respondents. The State Commission after hearing the parties and on the basis of evidence filed before it dismissed the complaint on grounds of limitation as also on merits. The operative part of the order of the State Commission reads as follows:

(3.) HENCE, the present First Appeal. Counsel for both parties made oral submissions. Counsel for Appellants reiterated that the certificate dated 08.02.2001 from the Ahmedabad Municipal Corporation which is on record clearly indicates that a Technical Team headed by a Structural Engineer who inspected the building in question in 2001 reported large cracks in the walls, columns and pillars and that the building could only be occupied by restoration and strengthening clearly confirming the defects and weaknesses in the building. Thus, an Expert found the building defective, a fact which was overlooked by the State Commission. Further, the Respondents had handed over the flats to the Appellants without getting the completion certificate which is a statutory requirement. The State Commission also erred in concluding that the case was time-barred by not appreciating the facts that the complaint could not be made in 1998 because at that time the defects in the building were not visible and became apparent following the earthquake when the building got damaged.