State Consumer Disputes Redressal Commission
Pravin G. Joshi & Ors vs Smt. Sarojini Gangdhar Kulkarni & Ors on 20 March, 2013
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/10/720
(Arisen out
of Order Dated 23/06/2010 in Case No. 171/2004 of District Pune)
1. PRAVIN G. JOSHI
2. SANJAY V. WALSANGKAR
3. BALKRUSHNA H. SARAWADE
4. SANJAY G. PARANJAPE
ALL R/AT:- PLOT NO.29,
'SHAILESH' CO-OPERATIVE
HOUSING SOCIETY LTD
KARVE NAGAR
PUNE - 411 052.
...........Appellant(s)
Versus
1. SMT. SAROJINI GANGDHAR KULKARNI
R/AT:- 'PUSHKRAJ', PLOT NO.10
GANESH HOUSING SOCIETY LTD.,
KALYAN RASTA, BHIVANDI
DISTRICT - THANE.
2. M/S GAJANAN CONSTRUCTION,
ADDRESS:- 'JAYADRI',
10, MUKUND NAGAR,
TAPOBHUMI CO-OP. HSG. SOC. LTD.
PUNE -411 037
3. SAMIR PRABHAKAR ACHARYA,
ADDRESS:- 'ANUBANDH',
C-43, PARANJAPE
SCHEME BUILDING,
DATTAWADI, NEAR DANDEKAR BRIDGE
SINHGAD
ROAD,
PUNE - 411 030
...........Respondent(s)
4. SHAILESH CO-OPERATIVE
HOUSING SOCIETY LIMITED
SHAILESH SABHA-GRUHA,
SAMARTHA PATH,
NEAR ALANKAR POLICE STATION,
KARVE NAGAR,
PUNE - 411 052
First Appeal
No. A/10/779
(Arisen out
of Order Dated 23/06/2010 in Case No. 171/2004 of District Pune)
1. SAROJINI GANGADHAR KULKARNI
THROUGH HER CONSTITUTED ATTORNEY
DR. AJIT GANGADHAR KULKARNI,
R/AT:- 'PUSHKRAJ', PLOT NO.10
GANESH HOUSING SOCIETY LTD.,
KALYAN RASTA, BHIVANDI
DISTRICT - THANE
...........Appellant(s)
Versus
1. PRAVIN G. JOSHI
2. SANJAY V. WALSANGKAR
3. BALKRUSHNA H. SARAWADE
4. SANJAY G. PARANJAPE
ALL R/AT:- PLOT NO.29,
'SHAILESH' CO-OPERATIVE
HOUSING SOCIETY LTD
KARVE NAGAR
PUNE - 411 052
5. M/S GAJANAN CONSTRUCTION,
ADDRESS:- 'JAYADRI',
10, MUKUND NAGAR,
TAPOBHUMI CO-OP. HSG. SOC. LTD.
PUNE -411 037
6. SAMIR PRABHAKAR ACHARYA,
ADDRESS:- 'ANUBANDH',
C-43, PARANJAPE
SCHEME BUILDING,
DATTAWADI, NEAR DANDEKAR BRIDGE
SINHGAD
ROAD,
PUNE - 411 030
7. SHAILESH CO-OPERATIVE
HOUSING SOCIETY LIMITED,
SHAILESH SABHA-GRUHA,
SAMARTHA PATH,
NEAR ALANKAR POLICE STATION,
KARVE NAGAR,
PUNE - 411 052
...........Respondent(s)
First Appeal
No. A/10/1040
(Arisen out of
Order Dated 23/06/2010 in Case No. 171/2004 of District Pune)
1. SHAILESH CO-OPERATIVE SOCIETY LTD.,
SHAILESH SABHA-GRUHA,
SAMARTHA PATH,
NEAR ALANKAR POLICE STATION,
KARVE NAGAR,
PUNE - 411 052
...........Appellant(s)
Versus
1. PRAVIN G. JOSHI
2. SANJAY V. WALSANGKAR
3. BALKRUSHNA H. SARAWADE
4. SANJAY G. PARANJAPE
ALL R/AT:- PLOT NO.29,
'SHAILESH' CO-OPERATIVE
HOUSING SOCIETY LTD
KARVE NAGAR
PUNE - 411 052
5. SMT. SAROJINI GANGDHAR KULKARNI
R/AT:- 'PUSHKRAJ', PLOT NO.10
GANESH HOUSING SOCIETY LTD.,
KALYAN RASTA, BHIVANDI
DISTRICT - THANE.
6. M/S GAJANAN CONSTRUCTION,
ADDRESS:- 'JAYADRI',
10, MUKUND NAGAR,
TAPOBHUMI CO-OP. HSG. SOC. LTD.
PUNE -411 037
7. SHRI SAMIR PRABHAKAR ACHARYA
ADDRESS:- 'ANUBANDH',
C-43, PARANJAPE
SCHEME BUILDING,
DATTAWADI, NEAR DANDEKAR BRIDGE
SINHGAD
ROAD, PUNE.
...........Respondent(s)
PRESENT:
Adv. S. B. Khurjekar for the original Complainants
Adv. Rajesh Datar instructed by Adv. R. S. Darandale
for the original Opponent No.1, Smt. Sarojini Gangadhar Kulkarni
Adv. Tanmayi Gadre instructed by Adv. Ashvini
Takalkar for the original Opponent No.4, Shailesh Coop. Hsg. Soc. Ltd.
Common
order in A/10/720 + A/10/779 + A/10/1040
Per - Hon'ble Mr. S.
R. Khanzode. Presiding Judicial Member These three appeals since are in the nature of sister appeals, are disposed of by this common order. All these appeals arise out of an order dated 23/6/2010 passed by District Consumer Disputes Redressal Forum, Pune (hereinafter referred to as 'the Forum' for the sake of brevity) in Consumer Complaint No.171 of 2004, Shri Pravin G. Joshi and Others Vs. Smt. Sarojini Gangadhar and Others.
Hereinafter the parties are described with reference to their respective status in the consumer complaint.
[2] Complainants, Mr. Pravin G. Joshi, Mr. Sanjay V. Valsangkar, Mr. Balkrishna H. Saravade and Mr. Sanjay G. Paranjape are the apartment-owners in a building known as 'Shri Samarth Krupa' and their respective apartments are situated on the first floor and second floor of the said building and their apartment numbers are 101, 102, 201 and 202 respectively. The Opponent No.1, Smt. Sarojini Gangadhar Kulkarni is a housewife who is occupying ground floor consisting apartment numbers 001 and 002 as well as garage attached with toilet numbered as 003.
Besides these premises she also possess surrounding open premises of 'Shri Samarth Krupa' building excluding two-wheeler parking spaces allotted to the apartment-owners of first floor and second floor and a passage leading to the road which is an approach road. Each apartment is described as 'family unit' with their respective numbers in a declaration dated 10/1/2005 made under the Maharashtra Apartment Ownership Act, 1970 (hereinafter referred to as 'the Act' for the sake of brevity) whereby the properties were submitted to the provisions of the said Act (as per Section-2 of the Act). This declaration is made by the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni since stepped into the shoes of the builder/developer, Late Mr. Vinayak Deshpande who died in the year 1994.
Admittedly, this declaration dated 10/1/2005 was made during the pendency of the consumer complaint and the consumer complaint was filed on 15/5/2004.
[3] It is revealed that the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni is a member of the Opponent No.4 Shailesh Cooperative Housing Society Ltd. (hereinafter referred to as 'the Society' for the sake of brevity). Society had leased out Plot No.29 having area 338 sq. meters to the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni and as per Society's Resolution dated 9/11/1986 permitted the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni to develop the plot and to construct the apartments or flats and also agreed to give its nominal membership to the apartment-owners or the flat-purchasers, as the case may be.
The Opponent No.1, Smt. Sarojini Gangadhar Kulkarni thereafter since she was not able to undertake the development activity and construction of the building on her own, entered into a development agreement dated 29/7/1986 with Late Mr. Vinayak Deshpande and also executed a power-of-attorney in favour of Late Mr. Vinayak Deshpande. Late Mr. Vinayak Deshpande under the said development agreement and power of attorney executed in his favour by Opponent No.1 Smt. Sarojini Gangadhar Kulkarni, was given a right to sell apartments/flats situated on the first floor and second floor of the building. Said development agreement also specifically stipulated that the entire ground floor of the building having built-up area of 1200 sq. ft. would be given to the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni as consideration for the said agreement. It also specifically provides that the garage attached with a toilet and the surrounding open space would remain with and belong to the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni. In other words this garage with toilet and surrounding open space (except the approach road) was not given for development to Late Vinayak Deshpande. (The dispute is really confined to use to this surrounding open space to which the Complainants/apartment-owners are claiming right of use).
[4] After entering into development agreement dated 29/7/1986 with the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni, Late Mr. Vinayak Deshpande floated a partnership firm of which he was one of the partners with the Opponent No.3, Mr. Sameer Prabhakar Acharya, in the name and style Opponent No.2 M/s. Gajanan Construction and got completed the construction of the building 'Shri Samarth Krupa'. Late Mr. Vinayak Deshpande also entered into sale agreements in respect of all the tenements situated on the first floor and second floor of the building with the Complainants and each Complainant purchased accordingly his respective flat/apartment. One of such agreements with the Complainant No.1, Mr. Pravin G. Joshi is dated 12/10/1987, a copy of which is in the appeal compilation of Appeal No.1040 of 2010. A copy of the development agreement dated 29/7/1986, supra, is also in the appeal compilation of Appeal No.1040 of 2010. Copies of declaration dated 10/1/2005 are also kept on record.
[5] After obtaining commencement certificate dated 26/6/1987, as further revised on 29/8/1987, the construction of building was completed as per Completion Certificate dated 26/6/1989 and the respective flat-purchasers/apartment-owners namely, the Complainants Nos.1 to 4 were placed in possession of their respective apartments. Opponent No.1 Smt. Sarojini Gangadhar Kulkarni was also put in possession of her apartments situated on the ground floor bearing Nos.001 and 002 on 25/9/1990. She was already in possession of the surrounding open space excluding common approach road, which was not parted to Late Mr. Vinayak Deshpande and garage attached with toilet described as Family Unit No.003 in the declaration.
[6] It is the contention of the Complainants that though they were required to maintain the building and keep the accounts thereof, neither a condominium of apartment-owners nor any cooperative housing society of the owners of the flats/apartments of the building 'Shri Samarth Krupa' was formed.
Therefore, the Complainants issued a legal notice to the Opponents Nos.1 to 3 to do the needful and further expected that they may be admitted as an associate member/co-member in respect of plot No.29 by the Opponent No.4 Society (It may be pointed out that as per development agreement, agreements with the Complainants and the declaration, supra, the Complainants/apartment-owners were to be given only a nominal membership of the Opponent No.4 Society and it is accordingly given to each one of the Complainants). Since the notice referred above and the subsequent notices in the year 2003-05 yield no result, ultimately a consumer complaint was filed inter-alia praying for the following relief:-
"a) The Respondents be decided to form a legal body by registering Society or by forming a condominium of the Flat Holders situated in the Building at Plot No.29 in Respondent No.4 Society;
b) the Respondents be directed to convey the Plot No.29 in favour of legal body as prayed for hereinabove:
bb) The Respondents Nos.1 and 4 be directed to execute necessary amendment to the Deed of Declaration dated 10th January, 2005 for transferring complete rights in respect of common areas, open spaces, terraces and common facilities, so also for conferring absolute and marketable right, title and interest in favour of each of the Complainants.
c) the Respondent No.4 Society be directed to enroll such legally formed body as its member;
d) in the alternative, the Respondent No.4 Society be directed to enroll Complainant as associate members of Respondent No.1 and be further directed to execute a joint lease in respect of plot No.29 in the Society;
e) the Respondent No.1 be restrained from interfering with the legal rights of the Complainants to use and enjoy the open space, parking space and other common amenities by herself or through her servants, agents or any other person acting on her behalf;
f) interim and ad-interim orders in terms of above prayers may please be passed.
g) the Complainants be awarded with costs of present complaint;
h) any other order in the interest of justice may please be passed."
[7] The Opponent No.1 Smt. Sarojini Gangadhar Kulkarni and the Opponent No.4 Society contested the consumer complaint by filing their respective written versions. In paragraph (06) of the impugned order, there is a reference to the Opponents Nos.2 and 3 also filing their written version. However, what is their case is not recounted in the impugned order and in the appeal compilation we do not find any written version filed by them.
Moreover, in these appeals these Opponents are remaining absent and failed to give response to the public notice published in the newspaper. (Notice kept alongwith record & proceeding in Appeal No.1040 of 2010).
[8] The Forum was pleased to grant following relief as per impugned order:-
"1. The complaint is hereby allowed in part.
2. The opponent No.1 is hereby directed to execute the Deed of Apartment in favour of each of the complainant within three months from the date of receipt of copy of this order by her.
3. The said Deed of Apartment shall be in accordance with sanction plan submitted before the local authority and shall be in consonance with provision of section 6(1) of Maharashtra Apartment Ownership Act, 1970.
4. The said Deed of Apartment shall be also counter signed by the opponent Nos.2 and 3 in their capacity as builder and developer and by the opponent No.4 in its capacity as owner of the plot.
5. In view of the peculiar facts of the case there is no separate order as regards the cost of the complaint.
6. All other reliefs are hereby rejected.
7. Copy of order be supplied to both the parties free of cost."
[9] Not satisfied with the impugned order, the Complainants preferred Appeal No.720 of 2010, while the original Opponent No.1, Smt. Sarojini Gangadhar Kulkarni preferred Appeal No.779 of 2010 and the Opponent No.4 Society preferred Appeal No.1040 of 2010.
[10] For the reasons stated, infra, we would not like to disturb the impugned order except for the modification mentioned as per final order but totally for different reasons and we do not subscribe to the reasoning given by the Forum particularly in paragraphs (23) and (24) of the impugned order.
[11] As earlier pointed out, Respondent/Opponent No.2, M/s. Gajanan Construction and the Respondent/Opponent No.3, Mr. Samir Prabhakar Acharya failed to appear in response to the public notice issued against them. No effective steps to serve them in appeals bearing Nos.720 of 2010 and 779 of 2010 were taken by the Appellants and, therefore, these two appeals so far as these Respondents are concerned could be dismissed on this count. But in the interest of justice and to settle the dispute in a just and proper manner, considering totality of the circumstances, infra, the relief granted is moulded as per the final order below.
[12] Heard Adv. S. B. Khurjekar on behalf of the Complainants, Adv. Rajesh Datar instructed by Adv. R. S. Darandale on behalf of the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni and Adv. Tanmayi Gadre instructed by Adv. Ashvini Takalkar on behalf of the Opponent No.4, Shailesh Cooperative Housing Society Ltd.
No one represented the Opponent No.2 and 3 before the State Commission and they chose to remain absent.
[13] Considering the nature of dispute which we find and as earlier mentioned, is in the nature as to what are the common areas or limited common areas in respect of family units i.e. apartments belonging to the Complainants and more particularly, whether these common areas include open spaces surrounding the building except an approach road and the four two-wheeler parking spaces made available to the Complainants (as mentioned in the declaration dated 10/1/2005). According to the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni the common areas do not include open space surrounding the building (excluding the approach road and the two-wheeler parking spaces), garage with toilet situated in the corner of the plot and these properties are exclusively retained by her even when the development agreement with Late Mr. Vinayak Deshpande was entered into by her and Late Mr. Vinayak Deshpande had also taken a particular care while entering into the agreements with the Complainants in respect of their respective apartments to exclude these areas. Under the circumstances, these agreements corroborate case of the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni and also support her declaration dated 10/1/2005.
[14] Referring to the provisions of the Maharashtra Apartment Ownership Act, 1970 and even for that purpose the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (hereinafter referred to as 'the MOFA' for the sake of brevity) once these common areas which are available to the Complainants as the apartment-owners are clearly defined and their respective share therein is also further defined as per the development agreement dated 29/7/1986 and in the agreements with the Complainants, and since the declaration dated 10/1/2005 is not contrary to it, we find, it cannot be alleged that there is any breach of statutory or contractual obligation on the part of the builder/developer, now, on part of Opponent No.1 Smt. Sarojini Gangadhar Kulkarni who steps into the shoes of Late Mr. Vinayak Deshpande, the promoter/builder.
[15] Development agreement dated 29/7/1986 is a primary document which needs to be looked into as to ascertain what was agreed with the promoter/developer, namely - Mr. Vinayak Deshpande in respect of development and construction of the building in which the apartments sold to the Complainants are sitauted. Said development agreement categorically made it clear that development rights to construct the building, 'Shri Samarth Krupa' which consists of two apartments on each floor, viz. the ground floor, the first floor and the second floor were only given to Late Mr. Vinayak Deshpande. Garage with attached toilet situated in one corner of the plot and the surrounding open space of the proposed building are exclusively retained for herself by the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni. Only access road to the said building was given from said open space. The promoter/developer Late Mr. Vinayak Deshpande was to give ground floor two apartments to the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni and he had right only to sell apartments (flats) situated on the first floor and the second floor of the building which are now recognized and described as apartments bearing Nos.101, 102, 201 and 202 and which are sold to the Complainants, Mr. Pravin G. Joshi and others as per their respective agreements. Clause (04) on internal page (03) and Condition No.(09) on internal page (05) of the development agreement dated 29/7/1986 clearly stipulates accordingly. In this background we have to look into the respective agreements with each one of the Complainants. As submitted, there are similar agreements entered into with the Complainants and a copy of one such agreements dated 12/10/1987 entered into with the Complainant No.1, Mr. Pravin Joshi is placed on the record, supra. In the said agreement, the firm floated by Late Mr. Vinayak Deshpande, namely - the Opponent No.2 M/s. Gajanan Construction is shown as the contractor/builder and as a 'vendor' who agreed to sell flats/apartments to the Complainant Mr. Pravin Joshi. Opponent No.1 Smt. Sarojini Gangadhar Kulkarni who is a 'lessee' of the plot No.29 on which the building was to be constructed was shown as the 'consenting party'.
Specific reference is made therein while explaining source of authority of the 'vendor', to the development agreement dated 29/7/1986, supra. As to description of the flat/apartment agreed to be sold, it is specifically mentioned as Flat No.3 as shown in red ink in the map attached. Further, referring to its clauses (07) to (09), particularly clause No.(09), it is revealed that the common areas in relation to each flat does not extend by any stretch of imagination to surrounding open space from the Plot No.29 of the building 'Shri Samarth Krupa' and the garage situated in one of its corners except the approach road from the colony road to the building. As per clause (09), only the stair-cases and the terrace of the building are described as 'common areas'. Under the circumstances, per-se, since the property is now submitted to the provisions of the Act, the declaration made on 10/1/2005 by the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni cannot be faulted with. Thus, the claim of the Complainants to surrounding open area except for the approach road to the building and the four two-wheeler parking spaces described as per the said declaration, is devoid of any substance and they perhaps cannot complain that the promoter/builder and for the purpose, the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni committed deficiency in service by not allowing them to use said open space surrounding the plot.
We do not subscribe to the reasoning given by the Forum covering these aspects, nay, inference tried to be drawn covering these issues were perverse since not supported by the documents and the provisions of the law. Therefore, the directions given as per impugned order subject to modification as per final order, are to be read in the light of reasoning given by us.
[16] As far as the role of the Opponent No.4 Society is concerned, it had no direct role in respect of making declaration pertaining to the apartments or execution of the deed of apartment. Considering the position that the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni is a 'lessee' of the Opponent No.4 Society, the fact which is not in dispute; in relation to the Complainants, Mr. Pravin Joshi and others, Opponent No.4 Society stands in a position of 'superior landlord' only. It is not the case that the Opponent No.4 Society failed to discharge any obligation on its part as per resolution dated 9/11/1986 whereby the Opponent No.4 Society gave permission to its lessees like the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni to develop the plot and further agreed to give nominal membership to the flat-purchasers/apartment-owners.
Therefore, signature of the Opponent No.4 Society on the Deed of Apartment is not necessary and if at all the Opponent No.4 Society is asked to sign the deed of apartment then that would be only in its capacity as a 'superior landlord' and nothing more.
[17] As far as the Respondent/Opponent No.2, M/s. Gajanan Construction, a partnership firm, is concerned, only surviving partner of the said firm is the Respondent/Opponent No.3, Mr. Samir Prabhakar Acharya. On the death of Mr. Vinayak Deshpande whether said firm survived or not, is not made clear. Said firm was established by Late Mr. Vinayak Deshpande only to get constructed the building consequent to his development agreement dated 29/7/1986 and to discharge the obligation which arises as a power-of-attorney holder of the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni. Therefore, rightly, as earlier observed, upon the death of Mr. Vinayak Deshpande, now, the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni stepped into the shoes of Late Mr. Vinayak Deshpande as a builder/developer in respect of apartments of the Complainants.
Therefore, presence of the Opponent No.2 firm, if at all it exists, and the Opponent No.3 Mr. Samir Prabhakar Acharya is not that mandatory to validate the declaration deed of the apartments which the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni is supposed to make in favour of the Complainants in respect of their respective apartments. Opponent No.1, Smt. Sarojini Gangadhar Kulkarni has already made a declaration and submitted the property to the provisions of the Act as per her declaration dated 10/1/2005. Though in view of the discussion held above and the conclusions reached it is not necessary to consider prayer to give direction in terms of prayer clause (bb) of the complaint and for modification of the declaration.
However, it will be proper to make it clear that any relief in the nature of declaration that a particular part of the declaration dated 10/1/2005 is void or not operative and/or to give direction for its modification, may not be within empowerment of the consumer fora in view of provisions of Section-14 of the Consumer Protection Act, 1986.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
1. Appeal No.720 of 2010 filed by the Complainants stands dismissed.
2. Appeal No.779 of 2010 filed by the Opponent No.1 Smt. Sarojini Gangadhar Kulkarni and Appeal No.1040 of 2010 filed by the Opponent No.4 Shailesh Cooperative Housing Society Ltd., are partly allowed.
3. In the operative part of the impugned order dated 23/June/2010 in place of paragraphs (2), (3) & (4) substitute the following:-
"Opponent No.1 Smt. Sarojini Gangadhar Kulkarni to execute the Deed of Apartments in respect of the apartments of each one of the Complainants as per the provisions of Section-12(1) of the Maharashtra Apartment Ownership Act, 1970 within a period of four months from today (i.e. the decision of the appeal).
The Opponent No.2, firm duly represented by its partner, Opponent No.3, Mr. Samir Prabhakar Acharya do countersign those declarations.
The Opponent No.4, Society shall also countersign it in their capacity as a 'superior landlord'."
4. Except for these modifications, impugned order 23/June/2010 is not disturbed.
5. In Appeals Nos.720 of 2010 and 779 of 2010, the parties to bear their own costs.
6. In Appeal No.1040 of 2010, Respondents to bear their own costs and the Respondents Nos.1 to 4 viz. the Complainants shall bear costs of the Appellant/Opponent No.4 Society which are quantified at `10,000/-.
Appeals stands disposed of accordingly.
Pronounced on 20th March, 2013 [HON'BLE MR.
S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR.
S.B.Sawarkar] MEMBER KVS