State Consumer Disputes Redressal Commission
M/S. Sri Krishna Abhyudya ... vs Sai Annapurna Residency Owner Welfare ... on 30 January, 2014
BEFORE A.P
STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.95 OF
2013 AGAINST C.C.NO.80 OF 2011 DISTRICT FORUM, RANGA REDDY DISTRICT.
Between:
1.
M/s. Sri
Krishna Abhyudya Constructions,
Rep. by
Smt.A.Annupama Reddy, W/o A.Srinivasa Reddy,
Having
office at: H.No.2-2-23/17, SBH Colony,
Bagh
Amberpet, Hyderabad AP.
2.
Smt.A.Annupama
Reddy, W/o A.Srinivasa Reddy,
Age about:
34 years, Occ: Business,
R/o H.No.2-2-23/17, SBH Colony,
Bagh Amberpet, Hyderabad
AP.
3.
Sri Chakravartula Simha Chary, S/o
Janardhana Chary,
Age: 49 yrs, Occ: Business, R/o
H.No.3-9-8, Flat No.304,
Sharada Nagar, Ramanthapur,
Hyderabad 500 013.
4.
Smt. Chakravartula Ahalya, W/o Sri Chakravartula
Simha Chary,
Age about: 42 years, Occ: Service, R/o
H.No.3-9-8,
Flat No.304, Sharada Nagar,
Ramanthapur,
Hyderabad
500 013. ..Appellants/
Opp.parties.
And
1.
Sai Annapurna Residency
Owners Welfare Association,
Having office at:
H.No.3-9-8, Sharada Nagar,
ADRM Hospital,
Ramanthapur, Hyd-AP.
Rep. by its Gen. Secretary:
S.Laxma Reddy, S/o Narayan Reddy,
Age: 48 yrs, Occ: Business, R/o Flat No.103,
Sai Annapurna Residency, 3-9-8, Sharada Nagar,
Ramanthapur, Hyderabad. Respondent/
Complainant
2.
The Deputy Municipal Commissioner,
Greater Hyderabad Municipal Corporation,
Uppal,
R.R.District. Respondent/
OP
(Proforma
party and no relief is claimed.)
Counsel for the Appellants Smt.P.Niveditha Reddy
Counsel
for the Respondent: Mr.Md.Muneeruddin
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER.
SRI THOTA ASHOK KUMAR, HONBLE MEMBER AND SRI S. BHUJANGA RAO, HONBLE MEMBER.
THURSDAY, THE THIRTIETH DAY OF JANUARY, TWO THOUSAND FOURTEEN Order (As per Sri T.ASHOK KUMAR Honble MEMBER) *** This is an appeal preferred by the opposite parties against the order in C.C.No.80/2011 dated 18-1-2013 on the file of District Forum, Rangareddy. For convenience sake the parties as arrayed in the complaint are referred to hereunder:
The brief facts of the complaint are as under:
The complainant, a registered Association of flat owners, of Sai Annapurna Residency situated at Plot Nos.1 and 10 admeasuring 679.87 sq. yds. in Sy.No.38/3 (Old Sy.No.23 & 24) bearing Municipal No.3-9-8 (Old H.No.9-8) situated at Sharada Nagar, Ramanthapur has been registered vide registration No.175/2011. According to the complainant there are 14 flats in the apartment and they purchased flats therein between the period 2005 to 2007 under the bonafide belief that the Opposite Parties 1 to 4 are the owners and builders and they erected the apartment after obtaining prior construction permission from appropriate authorities and took possession of their respective flats but the Opposite Parties 1 to 4 failed to give them Occupancy Certificates till date. The Opposite Parties 1 to 4 collected the following regularization charges from the members of the complainant Association forcefully putting them under the fear that if they do not pay the charges, the entire building shall be demolished and hence the Opposite Parties are liable to refund the amounts which were paid by the flat owners as follows:
Flat No.101 Rs.12,000/-
Flat No.102 Rs.12,000/- Flat No.103 Rs.12,000/- Flat No.104 Rs.12,000/- Flat No.201 Rs.12,000/- Flat No.202 Rs.12,000/- Flat No.204 Rs.12,000/- Flat No.205 Rs.12,000/- Flat No.303 Rs.68,000/- Under the guise of
regularization of entire building, the Opposite Parties 1 to 4 regularized the illegal structure on the terrace. The regularization proceedings go to show the built up area as under -
Regularization Document No. On site structure shown as Doc.No.16 dt:17-7-2009 S+3+PENT HOUSE & 14.5 MTRS Doc.No.17 dt:13-8-2009 G+3 & 12 Mtrs Doc.No.18 dt:3-10-2009 G+3 & 9 Mtrs Doc No.19 dt:13-8-2009 G+3 & 12 Mtrs Doc No.20 dt:13-8-2009 G+3 & 12 Mtrs Doc No.21 dt:13-8-2009 G+3 & 12 Mtrs Doc No.22 dt:13-8-2009 G+3 & 12 Mtrs Doc No.23 dt:13-8-2009 G+3 & 12 Mtrs Doc No.24 dt:13-8-2009 G+3 & 12 Mtrs Doc.No.25 dt:26-8-2009 G+3+Pent house & 15 Mtrs
This shows the collusion between the Opposite Party No.5 and the other Opposite Parties.
Taking advantage of non existence of flat owners Association, the Opposite Parties 1 to 4 illegally occupied parking area in the cellar and constructed two shops and one house therein due to which there is scarcity of parking area for four wheelers and no parking was allotted for two wheelers in the cellar and the Opposite Parties 1 to 4 illegally started erecting sheds and walls on the terrace for which the flat owners gave a notice to Opposite Party No.3 dt.17.07.2007 to stop illegal construction. A representation was given to the Opposite Party No.5 seeking demolition of illegal house and two shops in the parking area and the wall erected on the terrace of the apartment but there was no response and therefore two reminders were given on 21.07.2008 and 28.07.2008. In spite of lot of persuasion made by the members of the complainant Association, no action was taken for demolition of illegal structure on terrace and parking area and the members of the complainant Association are consumers of the Opposite Party No.5 by virtue of municipal tax being paid by them. The inaction on the part of the Opposite Party No.5 constitutes deficiency in service.
The complainant Association came to know that Opposite Parties No.1 to 4 initially obtained permission for construction of independent house for Ground + two floors on land admeasuring 524 sq.yds and later enjoined the adjacent land admeasuring 155 sq.yds and sold the flats to the members projecting the first floor as ground floor and second floor as first and third floor as second floor and later constructed a house in the cellar by encroaching the parking area and illegally erected shed on the terrace and raised walls. It amounts not only deficiency in service but also an unfair trade practice and due to the illegal structure in the parking area, the members of the complainant Association have only approach passage from East side and they are deprived of main entrance from the main road.
During the process of illegal erection of shed and walls on terrace on 15.02.2011, the Opposite Parties 1 to 4 damaged the overhead water tank which is a common amenity of the members and as a result there is a seepage from the overhead tank and it resulted in scarcity/loss of water and escalation in electricity consumption charges due to the excessive water pumping. The Opposite Parties refused to repair the damages caused to the overhead water tank and when the members of the complainant Association insisted for repairs, the Opposite Party No.4 lodged a false police complaint on 20.02.2011 against the members.
The Opposite Parties 1 to 4 were maintaining the apartment between the period 2005 to 2010 with the assistance of some of the flat owners and after formation of the Association, the maintenance and related work was handed over to the Association and at present, the Association is in occupation of common area and amenities and looking after the maintenance of entire Sai Annapurna Residency. The Opposite Parties 1 to 4 and its associates are in possession and enjoyment of flat Nos.105, 203, 301 and 304 and they failed to contribute their share in maintenance for the aforesaid four flats from 01.01.2011 @ Rs.500/- pm and hence they are liable to pay the arrears of maintenance to the complainant Association. The complainant Association requested the Opposite Parties 1 to 4 to mutate the electricity and water meter in the name of their Association, but they are avoiding. Hence, the complaint claiming the following reliefs:
a) To direct the Opposite Party No.5 to furnish particulars of action taken to demolish the illegal shops and house constructed in the cellar in Sai Annapurna Residency situated at Plot Nos.1 and 10 admeasuring 679.87 sq.yds in Survey No.38/3 situated at Sharada Nagar of Ramanthapur in R.R.District.
b) To direct the Opposite Party No.5 to furnish particulars of action taken to demolish the illegal pent house with shed over the terrace of Sai Annapurna Residency.
c) To direct the Opposite Parties 1 to 4 to repair the over head water tank located on the terrace in Sai Annapurna Residency.
d) To direct the Opposite Parties to furnish Occupancy Certificate to all the members of the complainant Association in respect of their flats bearing Nos.101, 102, 103, 104, 201, 202, 204, 205 and 303.
e) To direct the Opposite Parties 1 to 4 to refund Rs.12,000/- each to the above flat owners and Rs.68,000/- to the owner of the Flat No.303 towards regularization charges.
f) To direct the Opposite Parties 1 to 4 to take immediate steps for mutation of water and electricity connection in the name of the complainant Association.
g) To grant a compensation of Rs.25,000/- to each of the nine members of the complainant Association towards pain and mental agony suffered by them due to the deficiency in service and unfair trade practice and
h) To award punitive damages of Rs.3,00,000/- U/Sec.14(d) of Consumer Protection Act, 1986 to be paid to the complainant Association towards Corpus Fund which can be utilized in the development of Sai Annapurna Residency.
The Opposite Parties 1 and 2 filed their counter and Opposite Parties 3 and 4 also filed their separate counter on the same lines as that of Opposite Parties 1 and 2 stating that M/s Mohd. Waliur Rahaman Quraishi and Sayeed Unnisa being the owners of an area of 271 sq.yds in Plot No.1 sold the same to the Opposite Parties 3 and 4 under a registered sale deed dt.22.08.1997. Further the said Qureshi and another being the owners of land of 97.77 sq.yds and 155.55 sq.yds forming part of the land in Plot No.1 and 10 in Survey No.38/3 with old building entered into an Agreement for sale cum G.P.A with the Opposite Parties 3 and 4. Thus, the Opposite Parties 3 and 4 being the owners of the said 271 sq.yds of land and being the Agreement holders and GPA holders of the said Qureshi and another entered into an Agreement for Development of the total area of 524.32 sq.yds with the first Opposite Party represented by the second Opposite Party under a deed dt.30.07.2003 to share the constructed area into 40% to the owners and 60% to the builder i.e. Opposite Party No.1. In pursuance of the said Development Agreement, the Opposite Party No.1 has obtained permission from the Opposite Party No.5 on 27.08.2003 for construction of Ground+2 upper floors.
One Mr.Gulam Mohammad Qureshi was the owner and possessor of 155.55 sq.yds forming part of Plot No.10 having purchased the same under a registered sale deed dt.26.08.1989. He in turn has entered into Agreement to develop his property by means of multistoried housing complex under a Deed dt.24.02.2004 with the Opposite Party No1. Accordingly, the Opposite Party No.1 has obtained permission from the Opposite Party No.5 on 17.04.2004 for construction of Ground+2 upper floors. In view of the fact that the Opposite Party No.1 had an Agreement for Development of the total area of 679.87 sq.yds, he could have got permission for construction of stilt + 5 upper floors and there could not have been any objection from Opposite Party No.5. But the Opposite Party No.1 had constructed Ground+3 upper floors to the knowledge of the members of the complainant Association as one block in the entire area of 679.87 sq.yds. In fact in the land of 524.32 sq.yds, the Opposite Party No.1 had constructed only flats in the Ground floor as G.1 commercial and G.1 residential under due permission and the balance of area is left for parking of the vehicles which is more than sufficient for all the flats in the entire block. The owners i.e. Opposite Party No.3 and 4 have been allotted Flat No.G.1 (residential), 205, 301 and 304 and part of Flat No.104 and out of them the Opposite Parties 3 and 4 have sold the Flat No.205 and in the remaining area of 155.55 sq.yds. Flat No.104 part and Flat No.105 had been allotted to the owner Mr.Gulam Mohammad Qureshi and while retaining the Flat No.105 for himself and the Opposite Parties 3 and 4 have sold the Flat No.104 to another person. In fact, only 16 flats had been constructed on the entire area of 679.87 sq.yds. The Flat No.201 was sold on 23.05.2005, Flat No.104 was sold on 22.06.2005, Flat No.103 was sold on 02.09.2005, Flat No.202 was sold on 31.10.2005 and G.1 commercial was sold on 05.12.2005 to M/s.T.Ramulu and T.Sarojini who have been running the shop from the beginning. The pent house was not constructed by the builder (Opposite Party No.1) and it was constructed by the owners in two portions. On the demand by the flat purchasers, one portion was allotted for the office of their society and the other portion has been retained by the Opposite Parties 3 and 4. The complainant is estopped from raising the objection at this belated stage regarding the construction of the pent house for all these years. The members of the complainant Association having purchased their flats in the year 2005 and 2006, cannot question the same in the year 2011 and thus their claim if any is barred by limitation. The other owners i.e. Mohd. Waliur Rahaman Quraishi, Sayeed Unissa and Gulam Mahamood Quraishi are also necessary parties to this proceedings since they are the owners of the flats and also the vendors of the flats and thus the complaint is not maintainable for misjoinder and non-joinder of necessary parties.
The members of the complainant Association have verified the documents and the construction being made and purchased the flats with eyes open. Now, they cannot make a complaint after six years from the date of taking possession. The opposite Party No.1 did not undertake for the formation of the Society on behalf of the purchasers and did not undertake to get the Occupancy Certificates. The complainant Association never demanded the builder for providing the Occupancy Certificates. The members should have refused to take possession of the flat until the Occupancy Certificates are produced and not known as to how the purchasers are affected by the non-furnishing of Occupancy Certificates. All the flats are assessed to Property Tax during the year 2006 itself and the purchasers are paying the taxes. It is for the Association to obtain the Occupancy Certificates.
It is false to allege that the Opposite Parties 1 to 4 have forcibly collected the regularization charges from the owners of the flats. The purchasers of the flats on their own desire filed declarations as required by G.O.Ms.No.901, Municipal Administration and Urban Development dt.31.12.2007 and paid necessary amounts. No notice was given to the Opposite Party No.1 regarding the regularization. Hence, the complainant Association is not entitled to demand for reimbursement. The Opposite Parties 1 and 2 have no connection with the affairs of Sai Annapurna Residency after handing over the possession of the flats to the purchasers. The Opposite Parties are not aware as to why some of the owners of the flats are not paying the maintenance. In fact, flat No.105 is owned by Mr.Gulam Mohammad Qureshi who was the owner of the plot. He is not made a party to this complaint. It is for the purchasers to get the required amenities transferred on their respective names. Therefore, they prayed to dismiss the complaint with costs.
The Opposite Party No.5 filed their separate counter and mainly contended that the complaint is liable to be dismissed for misjoinder of the parties. The Opposite Parties have obtained permission for construction on 27.08.2003 and 17.04.2004 for construction of residential building consisting of Ground+2 upper floors and constructed apartment. They applied for regularization under G.O.Ms.No.901 dt.31.12.2008 and the same was regularized after following due procedure. The Opposite Parties have not obtained permission for construction of apartment and no parking area was shown in the sanctioned plan. Therefore, the entire unauthorized construction of the building was regularized after satisfying the conditions of the above said G.O. There is no cause of action for filing this complaint against them and thus prayed to dismiss the complaint with costs.
Both sides filed affidavits reiterating their respective contentions and Exs.A1 to A23 were marked on behalf of the complainant.
Having heard both sides, considering the material on record and written arguments of both sides, the District Forum vide impugned order directed opposite parties 3 and 4 to make necessary repairs to the overhead water tank located on the terrace in Sai Annapurna Residency. Opposite parties 1 and 2 are directed to pay Rs.98,400/- to the complainant association towards reimbursement of regularization charges and opposite parties 3 and 4 are further directed to pay Rs.65,600/- the regularization charges collected from the flat owners and the complainant association was directed to distribute these amounts to the respective nine flat owners as shown in the complaint and opposite parties 1 to 4 were directed to Rs.2,500/- each (total Rs.10,000) towards costs and the complaint against opposite party No.5 was dismissed.
Feeling aggrieved by the order of the District Forum, the opposite parties 1 to 4 preferred this appeal contending that the District Forum had no jurisdiction to entertain the complaint and the remedy available to the complainant was to only file civil suit. The complaint is bad for non joinder of necessary parties and the District Forum did not consider the said aspect. The complaint is barred by limitation. The opposite parties 3 and 4 are also members of the complainant association and the dispute if any between the members of registered society has to be resolved only by the Forum provided under the Special Act and not by the Consumer Forum.
Half of the area of the construction portion on the terrace by opposite parties 3 and 4 is being shared by the complainant association and therefore it is stopped from making a complaint about the construction and the alleged damage to the building in connection with repair of the water tank is not proved.
None of the opposite parties forcibly collected the regularization charges and in fact the flat owners voluntarily paid the charges and thus prayed to allow the appeal and set aside the impugned order.
Heard both counsel who also filed written arguments.
Now the point for consideration is whether the order of the District Forum is vitiated in law or on facts?
The learned counsel for the opposite parties contended that the District Forum has no jurisdiction to pass orders against opposite parties 3 and 4 since they are not builders. We observe from the record that opposite parties 1 and 2 are builders and opposite parties 3 and 4 are power of attorney holders of Md.Waliur Rahman Qurashi and Smt.Sayeedunnisa who are owners of part of the land and the remaining land on which the apartment was constructed belonged to one Mr.Gulam Mohammed Qureshi on which the schedule property was constructed vide registered agreement of sale cum GPA document No.7775/2003 dated 02-7-2003. The opposite parties 1 and 2 on one hand and opposite parties 3 and 4 on the other hand shared the constructed portion in the ratio of 60.40. In such circumstances the contention of appellants 3 and 4 they were allotted some of the flats and they along with the builders executed Exs.A3 to A11 sale deeds where under the members of the complainant association purchased flat Nos. 101 to 104 and 201, 202, 204 and 205 and 303. in the years between 2005-2007 and the members of the complainant association did not enter into any agreement with Gulam Mohammad Qureshi and the entire sale consideration was paid to opposite parties and the therefore presence of previous owners is not necessary and the District Forum discussed at length and held that the complaint is maintainable under the Consumer Protection Act, 1986. Hence the other contention of the opposite parties 3 and 4 that they are also members of the complainant association and the dispute if any between the members of registered society has to be resolved only by the Forum provided under the Special Act and not by the Consumer Forum cannot be accepted.
It is also the specific case of the complainant that the opposite parties 3 and 4 constructed pent house stepping into the shoes of builders which is not rebutted by the opposite parties 3 and 4.
The contention of the opposite parties is that the complaint is barred by limitation as the flats were purchased during the years 2005-2007. The complainant association pleaded that its members were compelled to pay regularization charges on account of illegal construction made by the builders on 13-8-2009 vide Exs.A12 to A20 and hence the cause of action is continuing and when opposite parties deviated the plan and made illegal construction which was regularized, certainly we are in agreement with the finding of the District Forum that the complaint is within limitation.
It is the case of the complainant that there is a damage to the water tank in the process of construction of shed on the terrace, and the opposite parties 3 and 4 did not deny the same and on the other hand stated that one pent house was in the occupation of the complainant association.
Therefore, the District Forum has rightly directed opposite parties 3 and 4 to make necessary repairs to the overhead tank and we do not see any reason to interfere with the said part of the District Forum. We also do not see any ambiguity in the finding of the District Forum in directing the opposite parties 1 and 2 to pay Rs.98,400/- and opposite parties 3 and 4 to pay 65,600/- towards regularization charges as they deviated and constructed G + 3 instead of G + 2 and also pent house as it is the duty of the builder to get regularized the building for any deviations made and as opposite parties also deviated by constructing pent houses, no interference by this Commission is required. The complainant did not choose to file cross appeal except pleading in the written arguments for enhancement of costs and hence we see no reason to interfere with the order of the District Forum.
In the result this appeal fails confirming the order of the District Forum. There shall be no order as to costs in this appeal.
MEMBER.
MEMBER.
MEMBER.
Jm Dt.30-1-2014.