Not impossible for experienced architect to find about condition of amenities during inspection: SC

The Supreme Court Tuesday said it is "not impossible" for an experienced architect to find out during inspection that inadequacies in the condition of amenities, like fire-fighting equipment and water softening plants in a building complex, were due to due to lack of maintenance or incomplete commissioning.

The apex court made the observation while dealing with a matter in which the residents welfare association of an apartment complex in Noida had filed a consumer complaint before the National Consumer Disputes Redressal Commission (NCDRC) raising several issues including that of water softening plants, fire-fighting equipment, and second swimming pool in the society.

The NCDRC, in its January 2010 order, had partly allowed the complaint filed by the RWA after which the builder and the association had approached the top court.

A bench comprising justices Hemant Gupta and V Ramasubramanian noted in its judgement that while adjudicating the matter, the NCDRC had appointed a local commissioner, who was an architect, to inspect the facilities regarding which the RWA had raised issues including water softening plants, fire-fighting equipment and second swimming pool in the apartment complex. The top court noted that the local commissioner had submitted a report after making an inspection in the presence of the representatives of both the parties and the NCDRC had accepted the report and allowed the complaint partly.

It said that the local commissioner had examined the facilities and found several things, including that equipment for the water softening plant was incomplete and fire-fighting equipment was not in operation due to incomplete commissioning of the system as a whole.

"In the light of the aforesaid findings by an independent architect appointed by the National Commission, it is not open to the opposite party (builder) to create a facade as though all essential services and amenities were handed over in a fully functional state," the bench said.

The court observed that if all the services had been handed over in a fully functional state, the builder should have taken an acknowledgment in writing from the RWA.

"It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non­commissioning or incomplete commissioning," it said.

The bench noted that as per the operative portion of the NCDRC order, the builder is obliged to make the facilities, including fire safety equipment and water softening plant, fully operational and is also obliged to obtain a certificate of completion from an independent architect. It said as per the order, if the builder fails to do so within the time stipulated by the NCDRC, it was obliged to pay the cost as estimated by the commissioner in his July 2008 report which comes to around Rs 1.16 crore.

The top court noted that when it had issued a notice in the matter in 2010, it had stayed the operation of the NCDRC order on the condition that the builder would deposit Rs 60 lakh, which was deposited, and the amount was invested in a fixed deposit which is renewed from time to time by the court order.

"In view of the fact that the possession of the common amenities was handed over by the opposite party (builder) to the complainant association 18 years ago (under the agreement dated November 15, 2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems…..fully operational now," it said.

The bench noted that the estimate is around Rs 1.16 crores, including the cost of fire-fighting equipment which comes to around Rs 83 lakhs. "Therefore, taking into account the overall picture, we are of the considered view that interests of justice will be met if the order of the National Commission is modified in such a manner (i) that the complainant association shall receive in the full and final settlement, the deposit now lying in the Registry of this court, towards adequate compensation for the reliefs that they are held entitled to by the National Commission….," the bench said.

It directed the builder to remove all building material stored in the clubhouse in the basement of a tower there and hand over possession of the clubhouse to the RWA.

The bench dismissed the separate plea filed by the RWA against the NCDRC order which had refused to grant certain reliefs sought by the association. The apartment complex had around 282 apartments and the completion certificate was issued in December 2001.

The RWA was registered in 2003 and the association had entered into an agreement in November 2003 with the builder for taking over the maintenance of the apartment complex. Thereafter, the RWA had filed a consumer complaint before the NCDRC which was opposed by the builder on merits as well as on the ground of limitation.

Both the builder as well as the RWA had approached the apex court against the order passed by the apex consumer commission.