State Consumer Disputes Redressal Commission
Estate Manager Garden Heights vs Dr. Mrs. Parveen Sharma on 2 February, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.414 of 2014
Date of institution : 09.04.2014
Date of decision : 02.02.2015
Estate Officer, Garden Heights, Sirhind Bye-Pass Road, New DMW,
Patiala.
......Appellant-Opposite Party No.3
Versus
Parveen Sharma wife of Braham Sharma, resident of Flat No.110-B,
Garden Heights, Sirhind Rajpura Bye-Pass Road, Patiala.
.........Respondent/Complainant
First Appeal against the order dated
6.3.2014 of the District Consumer
Disputes Redressal Forum, Patiala.
Before :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri S.R. Bansal, Advocate. For the respondent : Shri Braham Sharma, Representative. JUSTICE GURDEV SINGH, PRESIDENT:
This appeal has been preferred by the appellant/opposite party No.3 against the order dated 6.3.2014 passed by District Consumer Disputes Redressal Forum, Patiala (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Dr. (Mrs.) Parveen Sharma, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was allowed and the opposite parties were directed to allow her to make use of the stilt area, as she had been doing earlier, for the sake of parking her car and to pay Rs.25,000/-, First Appeal No.414 of 2014. 2 as compensation on account of harassment and mental agony experienced by her, which was to include costs also.
2. The complainant alleged, in her complaint, that she applied for purchase of a residential flat from the opposite parties on 1.1.2007 with a covered area of 1740 square feet and paid Rs.2,52,500/-, vide cheque dated 15.1.2007 towards booking charges. As per the terms and conditions of the Agreement, flat was to be well furnished and facilities like lift, club, swimming pool and car parking were to be provided. The possession letter was issued to her on 3.6.2011 as per the terms and conditions of that Agreement and possession was also delivered. Since the date of possession she had been parking her car in the space provided for that purpose. However, from the last 15/20 days from the date of filing of the complaint, the opposite parties are not allowing her to park the car in that space; as a result of which she is facing a lot of inconvenience and mental tension. The opposite parties are not providing the parking space to her deliberately with the mala fide intention to cause mental tension and harassment to her. The same was done by the opposite parties in view of the two complaints filed by her against them in respect of the flat and the facilities. This illegal act on their part amounts to unfair trade practice and deficiency in service; as a result of which she suffered mentally as well as physically. She issued legal notice dated 28.9.2013 through her counsel but they did not pay any heed to her genuine request. She prayed for the issuance of the following directions to them:-
First Appeal No.414 of 2014. 3
i) to provide car parking facilities and other facilities as per allotment agreement dated 28.3.2007;
ii) to pay Rs.50,000/-, on account of mental agony and harassment; and
iii) to pay Rs.5,500/-, as legal charges for the forced litigation.
3. The complaint was contested by opposite party No.3, whereas the other opposite parties did not appear before the District Forum in spite of their service and were proceeded against ex parte. Opposite party No.3 in his written reply did not deny that the flat was got booked by the complainant after the payment of Rs.2,52,500/-, as booking charges and that well furnished apartment with the facilities of lift etc. was to be given. He also did not deny that the allotment agreement was executed and in pursuance thereof possession of the flat was given to the complainant. He also admitted the filing of the other complaints against him by the complainant regarding the flat in question. While denying the other allegations made in the complaint, he pleaded that the complainant is trying to twist the facts of the case as only open car parking facility was provided to every flat owner, who had not purchased the covered car parking. The complainant never paid for covered car parking and without such payment she is claiming such covered car parking. She had been parking her car in open car parking and was never stopped from doing so. By the concealment of the facts, she managed to obtain the order dated 25.10.2013 and thereafter is threatening him and used to park her car in the covered parking allotted to other flat First Appeal No.414 of 2014. 4 owners. It was clearly mentioned in the allotment agreement under column of "Pricing Structure" that no charges were paid for covered parking and she was entitled to only open car parking. In fact, she has purchased a new car and, as such, wants to park the same in the covered parking. to which she has no right. Previously also, she filed a complaint before the District Forum, which was decided on 9.4.2013. That judgment has already been challenged by him before this Commission and, as such, the matter is sub judice and the complaint cannot be allowed to proceed further. The present complaint is an abuse of the process of law and has been filed on false facts by concocting a story with a mala fide intention to lower/spoil his goodwill. The relief claimed by her is not covered under the Act. She does not fall within the ambit of that Act and the only remedy with her is to proceed under Specific Relief Act. She has no locus-standi to file this complaint and the same is not maintainable in the present form. She has not approached the District Forum with clean hands and has tried to mislead it by making false averments. The complaint does not disclose any cause of action. He prayed for the dismissal thereof with special costs of Rs.50,000/-; being false and frivolous.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
First Appeal No.414 of 2014. 5
5. We have heard learned counsel for the appellant and the representative of the complainant. We have also carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the appellant/opposite party No.3 that it is very much clear from the evidence produced on the record, including the allotment agreement Ex.C-1, that the price for covered car parking was not paid by the complainant and she was only entitled to open car parking. The opposite parties had been allowing her to park the car in open car parking and she is not entitled to use the covered parking. The District Forum committed an illegality while recording a finding in favour of the complainant by ignoring all that evidence and by wrongly relying upon the judgment rendered in Civil Appeal No.2544 of 2010 decided by the Hon'ble Supreme Court on 31.8.2010 (Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.). The findings in that judgment were recorded keeping in view the provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (in short, "MOFA"). The provisions of that Act are not applicable to the flats being constructed in the State of Punjab and it was made clear by the Hon'ble Supreme Court in Civil Appeal No.10930 of 2013 decided on 10.12.2013 (DLF Limited v. Manmohan Lowe and others) that the said judgment is not applicable in view of the Haryana Development and Regulation of Urban Areas (Management) Act, 2003. Therefore, the finding recorded by the District Forum that the term "garage" First Appeal No.414 of 2014. 6 used by the Hon'ble Supreme Court does not cover the stilt area and the same forms part of "common areas and facilities", as provided by Section 3(j) of the Punjab Apartment Ownership Act, 1995 (in short, "the Act of 1995"). The definition of "common areas and facilities"
was not correctly interpreted by the District Forum while recording findings in favour of the complainant. It stands proved on the record that some of the flat owners purchased the covered parking in the stilt area by paying the price thereof and after the sale thereof the same cannot be treated as "common areas and facilities" and no such facility could have been granted to the complainant by resorting to the provisions of the Act of 1995. Therefore, the findings recorded by the District Forum cannot be sustained and are liable to be set aside.
7. On the other hand, it has been submitted by the representative of the complainant in person that the judgment of the Hon'ble Supreme Court in Nahalchand Laloochand Private Limited's case (supra) is fully applicable to the facts of the present case and the same was correctly relied upon by the District Forum. It was specifically held in that judgment that the stilt parking spaces are part of the common areas and facilities. Therefore, the complainant as of right can use that stilt area for parking her car, even though she had not paid for covered parking. He further submitted that previously also the complainant filed a complaint in respect of the flat in question as the super area of the flat was less than the area for which the price had been paid. The super area of the flat was mentioned as 1747.13 square feet, whereas the area thereof was First Appeal No.414 of 2014. 7 found only 1449 square feet. Thereafter, the opposite parties came up with the plea that the said super area also included the balcony area and circulation area. In the circulation area, they included the stilt level and the total circulation area was mentioned as 192.46 square feet. That itself makes it clear that the complainant had paid for stilt area also and, as such, the right to use the same for parking the car cannot be refused. Correct findings were recorded by the District Forum after deeply going into the averments of the parties, evidence brought by them and the law applicable to those facts.
There is no ground for upsetting those well reasoned findings.
8. The complainant herself alleged in her complaint that the possession of the flat/apartment was delivered to her on 3.6.2011 as per the terms and conditions of the Agreement and thereafter she used to park her car in the space provided for that purpose. She did not specifically allege in her complaint as to whether the space so provided for parking the car was open or covered one? That fact was not made clear by her even in her affidavit Ex.CA, as in that affidavit she only deposed about the allegations, as contained in the complaint. She herself relied upon the Allotment Agreement, Ex.C1. It is mentioned in the first page of that Agreement itself that no price was charged for car parking and it was the open parking, which was to be availed of by the complainant. The matter is made further clear by clause 10(e) of the Agreement, which is reproduced below:-
"e) There is a limited availability of covered car parking in the complex and the same shall First Appeal No.414 of 2014. 8 be available to the residents for purchase on a first come first serve basis."
It is not the case of the complainant nor there is any evidence on the record that besides stilt level parking there is other covered car parking also. The matter becomes further clear from the two other Allotment Agreements Ex.OP-1 and Ex.OP-2, which were executed by the opposite parties in favour of the other allottees; namely, Harsh Sethi and his wife Mrs. Poonam Sethi and Dr. Raj Kumar Gupta. It is very much clear from those two Allotment Agreements that there was covered car parking for which price of Rs.75,000/- was charged. That was the price paid by Dr. Raj Kumar Gupta, who had also been allotted flat with the same super area of 1740 square feet. Opposite party No.3 proved on record the affidavit of Sukhpal Cheema, Estate Manager, Ex.OPA, in which he deposed that the complainant is only entitled to open car parking and on account of non-payment of the price for covered car parking is not entitled to use the same. From all this evidence, it stands proved that vide Allotment Agreement, which is to regulate the relations of the parties, only open car parking was to be provided to the complainant, as she never paid the price for covered car parking.
9. While recording findings in favour of the complainant that she is entitled to park her car in the stilt area, the District Forum placed heavy reliance on the judgment of the Hon'ble Supreme Court in Nahalchand Laloochand Private Limited's case (supra). That was a case under MOFA, the provisions of which are different from the Act of 1995. On the basis of the provisions contained in MOFA, it was First Appeal No.414 of 2014. 9 held by the Hon'ble Supreme Court that the promoter has no right to sell stilt parking space, as those are neither flats nor apartment nor attachment to a flat. It was made clear by the Hon'ble Supreme Court in DLF Limited's case (supra) that the provisions of MOFA are not applicable to the apartments/flats constructed in those States, where the said Act is not applicable. Therefore, the District Forum could not have relied upon the above said judgment of the Hon'ble Supreme Court while recording a finding in favour of the complainant that the stilt parking spaces would not cease to be part of the "common areas and facilities" merely because the promoter has not described the same as such in the advertisement and the agreement with the flat purchaser.
10. The District Forum invoked the provisions of Section 5(1) of the Act of 1995 for recording the findings in favour of the complainant by observing that each apartment owner may use the "common areas and facilities", which includes the stilt area, in accordance with the purposes for which they are entitled without hindering or encroaching upon the lawful rights of the other apartment owners. That finding was recorded without going into details the different provisions of this Act. Had the District Forum gone through the definition of "common areas and facilities" as contained in Section 3(j), it would not have recorded those findings. For proper appreciation that definition is reproduced below:-
"(j) "common areas and facilities", in relation to a building, means all parts of the building or the land on which it is located and all easements, First Appeal No.414 of 2014. 10 rights and appurtenances belonging to the land or the building, which are neither in the exclusive possession of an apartment owner in terms of his conveyance deed of apartment, nor are handed over or intended to be handed over to the local authority or other public service agency and shall include the limited common areas and facilities."
A perusal of this definition makes it clear that those parts of the building, which are in the exclusive possession of an apartment owner, are not covered under common areas and facilities. According to Section 5(1) of the 1995 Act, each apartment owner may use the common areas and facilities in accordance with the purposes for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners. Thus, where the specific parts of the stilt areas have been sold to the other apartment owners on the payment of the price thereof, the complainant could not have used those very specific parts of the stilt areas, which had been so provided to those flat owners. She could have used only the common areas and facilities without hindering or encroaching upon the lawful rights of those apartment owners.
11. The best evidence in possession of the complainant was the conveyance deed, vide which the apartment was sold to her. According to Section 14 of this Act, the conveyance deed is required to contain a number of particulars mentioned in this Section and those particulars include the description of the limited common areas and facilities appurtenant to the apartment. If the stilt area had been First Appeal No.414 of 2014. 11 provided to the complainant for parking her car, the same must have been mentioned in the conveyance deed. The withholding of the conveyance deed itself shows that no such area for covered car parking (stilt area) was given to the complainant.
12. We do not find any force in the argument advanced by the representative of the complainant that in order to complete the super area of 1747.13 square feet, the circulation area of 192.46 square feet, as mentioned in the order dated 26.2.2014 passed in CC No.13/188 of 30.5.2013 decided by the District Forum (Dr. Mrs. Parveen Sharma v. Sneh Deep Aggarwal and others), was included and that itself shows that the stilt area for parking the car was included therein. It is pertinent to note that the circulation area, as mentioned in that order, included at typical floor, stilt level, Mumty Area and life Machine Room Area. It cannot be made therefrom that stilt area so included therein also covered the space for parking the car. It is a matter of common knowledge that the stilt level area is being used by the apartment owners for their ingress and outgress from the apartment. No such document was placed before the District Forum nor any evidence was produced for proving that the stilt area included the circulation area of 192.46 square feet could have been used for the said purpose and parking of the car also. Without going into deep of all these facts and by wrongly applying the above said judgment of the Hon'ble Supreme Court wrong findings were recorded by the District Forum in favour of the complainant. Such findings cannot be upheld and are liable to be set aside.
First Appeal No.414 of 2014. 12
13. In the result, the appeal is allowed and the order passed by the District Forum is set aside. Keeping in view the false and frivolous allegations made in the complaint the complaint is dismissed and the complainant is burdened with Rs.10,000/-, as costs, which are to be deposited in Free Legal Aid Fund of this Commission within 30 days of the receipt of the copy of the order.
14. The sum of Rs.12,500/- deposited by the appellant/opposite party No.3 at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to it by way of cross cheque/demand draft after the expiry of 45 days of the sending of the certified copy of this order to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER February 02, 2015. (MRS. SURINDER PAL KAUR) Bansal MEMBER