1. The Complainant Thiru J. Yoganandan has submitted in the Complaint that he had booked a Duplex Flat in the project "Annai Aradhana" Phase II in Block No. 152-D-3 developed by the Respondent Builder for a total package cost of Rs. 19,03,500/-

2. The Complainant has also submitted that the registration of Sale Deed of undivided share was executed on 22.02.2013 and as per the undertaking in the Promoter's agreement the non-independent unit 152-D-3 should have been completed and handed over the possession of the unit on or before 22.02.2014. The complainant has further submitted that they took possession of the unit 152-D-3 on 24.10.2017.

3. It is also stated by the Complainant that at the time of handover of the unit, the Builder intimated the Complainant that the bore well was dug upto 100 ft. and pipe was installed upto 80 ft. the Complainant has also submitted that he had spent Rs. 10,000/- for changing foot valve three times and then he measured the depth of Bore well and found it is up to 40 ft. depth only and pipeline for carrying water was touching the land and prone to repairs and muddy water. This is a misrepresentation by the Builder.

4. The Complainant has also submitted that there is water seepage near the beam of the ground floor bedroom and on the supporting to first floor. These are all construction deficiencies and defects due to usage of inferior and substandard materials by the Respondent Builder which are responsible for the water seepage and leakage from the first floor ceiling to ground floor within one year of possession of the unit.

5. The Complainant has prayed for the following reliefs in the Complaint.

i. To direct the Respondent to register the Annai Aaradhana Phase-1 and Phase-2 in Ashtalakshmi Nagar, Gudalur Village, Maraimalai Nagar as ongoing projects as per the direction in Para 27 of Judgment order in Complaint No. 403/2019 immediately.

ii. To direct the Respondent to undertake repairs of the building to stop leakage from ceiling and seepage on the walls of the rooms, bathrooms, water logging in the bathrooms.

iii. To direct the Respondent to replace the poor quality front door with a quality door as per the Construction Agreement and also deepen the bore well upto 100 feet and install pipe upto 80 feet and refund Rs. 10,000/-.

iv. To direct the Respondent to refund the expenses incurred in replacement of poor quality kitchen water tap, bore well and terrace door of Rs. 14830/-.

v. To direct the Respondent to pay Rs. 11,28,675.20 as per calculation in para 33 for delay in handover of possession from 22.02.2014 to 23.10.2017.

vi. To submit structural audit report duly audited by a reputed civil engineers firm as to the quality of the materials used in the construction of the flat that they were of the high standard quality or grade and the construction is high quality without any defect or deficiencies that there will be no further water leakage/seepage from ceiling and through the walls as well as the furniture and fittings like doors, water taps etc. are of high quality as promised in their Construction Agreement.

vii. To pay Rs. 50,000/- towards Lawyer's fees, legal aid fees, cost of incidental and other legal expenses like electrical, typing etc. for proceeding with the complaint.

viii. Pass such other orders as this Regulatory Authority may deem fit and thus render justice.

6. In the Counter Affidavit, the Respondent has submitted that dispute with regard to the present building in question owned by Complainant cannot be agitated before this Forum as the construction in question would not qualify as development as defined under RERA. The Complainant is an individual who purchased undivided share of land along with a house. The Respondent has further submitted that the unit has been developed on a piece of land admeasuring about 1620 sq. ft. The property which is subject matter of development owned by the Complainant is comprised in Plot No. 152 of Annai Aradhana in Ashtalakshmi Nagar layout. Totally 3 houses have been constructed in Plot No. 152 by obtaining independent permission in respect of the said plot from the local authority. This fact is admitted by the complainant and necessary permission in this regard is also enclosed by the Complainant.

7. The Respondent has further submitted that the area of land which is subject matter of development is 1620 sq. ft. and under section 3(2)(a) of the RERA the qualifying extent is 500 sq. mtrs. or 8 apartments. Therefore the present complaint in respect of the constructed area cannot be maintained before this Forum.

8. The Respondent has also stated that in so far as the layout is concerned the Respondent herein obtained planning permission for formation of lay out from the DTCP in 2010. The Ashtalakshmi Nagar layout was approved in Approval No. 78 of 2010. It is further stated that as per the conditions for approval of the layout, the lands identified for OSR site, park, roads have been gifted to the local authority under registered gift deeds in 2011. Further specific sites have been identified for school site, community hail and shop sites. Also the Respondent has submitted that it is to be noticed that the layout in question is not gated community or group development as defined under the Development Regulations. The same is a layout simplicitor.

9. It is further submitted by the Respondent that in respect of the plots sold in the layout, the customer has an option to seek for construction of building by the Respondent. In cases where the customer opts for construction by the Respondent, a plan is prepared and approval is obtained and the building is constructed by the Respondent and handed over to the customer. There are plots in the layout in which customers have constructed on their own without entering into any agreement with the Respondent. In respect of those customers who opted for certain type of plots/development offered by the Respondent, they have entered into a construction agreement and put up the construction after obtaining plan in respect of such plots. Therefore there is no compulsion for any customer who purchases plots in the layout to put up construction by exclusively using the services of the Respondent.

10. Further, the Respondent has submitted that in so far as the alleged defect in construction is concerned, the same is false and totally 3 units were constructed in the plot in question and other 2 co-owners have till date not raised any complaint with regard to the alleged defects. Also after possession was handed over to the complainant, he kept it locked without basic maintenance for more than 1 year.

11. The Respondent has also submitted that it had used best high quality products in their projects. The Respondent has been in the construction sector for more than 30 years and done several projects and has huge customer base and there has been no complaint of the nature as alleged by this complainant. In fact the neighbor of the Complainant in Unit D1 and D2 do not have any complaints as alleged by this Complainant.

12. Also the Respondent has stated that there are no reports of any qualified Engineers, or report with regard to the alleged deficiencies and lack of quality. Further as per the covenants contained under the Promoters Agreement, the defect liability period is one year from the date of handing over possession. The admitted case of the Complainant is that the possession was handed over on 24.10.2017 and that he immediately occupied the apartment. When possession was handed over, the Complainant signed on acknowledgement dated 13.09.2017 signifying the handing over of keys after inspecting unit and recording full satisfaction for the works and quality. Therefore the complaint with regard to alleged lack of quality is after thought.

13. This Authority has examined the Complaint, the Counter Affidavit filed by the Respondent Promoter and arguments and written submission of arguments filed by both sides carefully.

14. Regarding the prayer to register the Annai Aaradhana Phase-I and Phase-II in Ashtalakshmi Nagar, Gudalur Village, Maraimalai Nagar as an ongoing projects with this Authority, this Authority has already ordered to register this real estate project in its order dated 10.02.2020 in complaint No. 403 of 2019.

15. The Respondent Promoter has raised the issue of maintainability of the Complaint. In as much as this Authority has already ordered this project to be registered with this Authority, this complaint is maintainable.

16. Also the Hon'ble Tamil Nadu Real Estate Appellate Tribunal in its order in Appeal No. 75/2019 dated 09.11.2020 in Olympia Grande Apartment Owner's Welfare Association Vs. M/s. KSM Nirman Private Limited has held that the RERA provisions specifically contemplated with regard to redressal of grievances under the RERA Act irrespective of their registration since the jurisdiction of Civil Court is also barred.

17. Taking judicial notice of the ruling of the Hon'ble TNREAT also this Authority holds that this Complaint is maintainable.

18. In the Promoter's Agreement (page No. 22 to 33 of the typed set of papers filed by the Complainant), it is seen that in the recital, it is stated as below:

Clause j) - The Promoter has formulated a scheme for development of the Schedule-A Property into residential units comprising certain facilities and amenities and the Promoter has also applied for plan approvals and other permissions for the said purpose and has further allocated various areas for construction of residential units in the complex and for providing of various amenities and other facilities thereto and is in the process of developing the project.

19. Therefore, it is very clear that the Respondent Promoter itself has admitted that it is a Promoter and has proposed to develop residential units.

20. On page No. 103 of the typed set of papers filed by the Complainant, the e-mail from the Respondent Promoter states that Annai Aaradhana Phase I & II - 26 acres as a Gated Community. Therefore, the Respondent Promoter is estopped from claiming this real estate project as a mere plotted development.

21. The Complainant has sent a letter to the Respondent Promoter on 04.04.2019 regarding leakage and seepage in his dwelling unit (page No. 111 to 113 of the typed set of papers filed by the Complainant). The dwelling unit has been handed over on 24.10.2017.

22. Therefore, the Complainant Allottee has brought to the notice of the Respondent Promoter about the seepage and leakage in his dwelling unit as per Section 14(3) of the Act, that is to say, the Allottee has brought to the notice of the Respondent Promoter the defects within a period of 5 years from the date of handing over possession.

23. Therefore, this Authority directs the Respondent Promoter to rectify the problems of seepage of water in the dwelling unit of the Complainant Allottee as per Section 14(3) of the Act. This shall be done before 31.05.2023.

24. Similarly, regarding other, defects in workmanship, quality such as door, kitchen accessories, etc., if they have been brought to the notice of the Promoter within 5 years from the date of handing over possession, the Respondent Promoter shall rectify such defects without any charge as per Section 14(3) of the Act and this shall also be complied with before 31.05.2023.

25. Regarding bore well, it is seen from the Promoter's Agreement that Clause 9 of the specifications of the Structure refers to water supply wherein one bore well has been specified. Therefore, the Respondent Promoter shall ensure that the bore well has adequate yield. This shall be done before 31.05.2023.

26. Regarding the prayer for structural audit report of the dwelling unit, this Authority directs the Respondent Promoter to furnish a copy of the Structural Stability Certificate certified by the Structural Engineer who designed the structural design of the dwelling unit and supervised the same during the construction. This shall also be done before 31.05.2023.

27. With the above findings and directions, the above Complaint is disposed of.