State Consumer Disputes Redressal Commission
M/S. Sais Ahlaadam Flat Owners ... vs 1. Sri Sai Bhagawan Constructions on 25 January, 2022
BEFORE THE TELANGANA STATE CONSUMER DISPUTESS
REDRESSAL COMMISSION : HYDERABAD.
CC.NO.273 OF 2013
Between:
M/s. Sai's Ahlaadam Flat Owners.
Association, (SAFOA),
Registered No.134/2012, represented by
Its Vice President Mr.N.S.L. Narasimha Swamy,
S/o.N B V Chalapathi Rao,
Aged about 65 years, Survey No.249,
Eshwara Villas Road, Nizampet,
Hyderabad, PIN - 500090.
.Complainant
And
1. Sri Sai Bhagawan Constructions,
Represented by its Managing Partner
Mr.B.Gopal, S/o.Sri Heranappa Swamy,
Aged about 42 years, Plot No.81,
H.No.2-22-142/B, Madhavi Nagar,
Opp.KPHB Colony, Kukatpally,
Hyderabad.
2. M/s.GITT Projects (P) Ltd., represented
by its Director Mr.Gurram Singaiah,
S/o.Sri G.Kotilingam, aged about 57 years,
39, Bhagya Lakshmi Nagar Colony,
Gandhi Nagar, Hyderabad 500080.
.Opposite Parties
Counsel for the Complainant M/s.P.Vinay Kumar
Counsel for the Opposite Parties M/s.P.Rajasripathi Rao-OP1
OP2-Set exparte
QUORUM: SRI JUSTICE M.S.K.JAISWAL, HON°BLE PrESIDENT
HON'BLE SMT.MEENA RAMANATHAN.. LADY MEMBER
TUESDAY, THE TWENTY FIFTH DAY OF JANUARY TWO THOUSAND TWENTY TWO ******* Order
1. This is a complaint filed by the Complainant under Section 17 (1) (a) of the Consumer Protection Act,1986, praying this Commission to pass an award and judgment in favour of the Complainant by directing the Opposite Parties jointly and sever to: erally
a) provide Manjeera water supply, (inserted as per orders dt.24.09.2018 in CCIA.No. 1213/2018) complete the pending construction works like laying of tiles in cellar floor, provide access door to southern side set back area from stilt floor;
b) provide GYM equipment and children play articles and to take steps to install them,
c) handover keys of office;
d handover the link documents of the property (reg.GPA doc.No.81/iv/2007, reg.AGPA doc.No.18984/2006, reg.doc.No.19374/2005, reg.GPA No.665/1987, Sale Deed doc.No.8775/2003 and title deeds and records of landlord Smt.K.Laxmamma etc; original
e) provide necessary approvals (NOCs) obtained from (1) Fire & Safety Department, (2) India (the two NOCs permissions from Airport Authority of more than 18m.
are compulsory when the building height is as per the GO.Ms.No.86, for all high rise buildings);
approved building construction plan with HMDA (permit No.676/P4/H/2006); proceeding letter of
8) take steps to transfer the common electricity connection of the apartment onto the name of the Complainant;
h) handover the As-built plan & drawings of the apartment building, electricity circuit plans, plumbing work plans, deposit receipts of common electricity connection etc;
i) get clearance for eastern encroached road from concerned revenue authorities.
OR
i) Pay Rs.99,10,000/- (Rupees ninety lakhs ten thousand only) .For Manjeera, deposit Rs.21,86,250/- For laying pipe line for Manjeer 3 (improvement charges) Indemnity value for encroaching the easternRs.39,23,500/- Road Rs.28,00,000/-
For laying tiles in cellar floor area(lump sum)Rs. 5,00,000/- For GYM equipment (lump sum) Rs. 5,00,000/- Children play articles (lump sum) Rs. 1,00,000/-
For mental agony
(compensation) Rs. 4,00,000/
Total Rs.99,09,750/-
Rounded as Rs.99,10,000/-
i) Pay the costs for this complaint.
2 The brief
facts of the that, the Opposite Parties case are jointly purchased vacant land of 2915 square yards in Survey No.249 vide registered document No.18984/2006 and constructed 89 residential flats consisting of cellar, stilt for parking and other amenities of common use, ground to 5th floor, a total of 6 floors, i.e., 16 flats per floor for ground to 4th floor and 9 flats in 5th floor) instead of constructing 40 flats i.e., 8 flats per floor in five floors. The said flats were sold to members of the Complainant during the period 2007 to 2011 by stating that the construction is as per the approved plan from Nizampet Grampanchayat and fròm HMDA, vide its permit No.676/P4/H/2006.
3. It is submitted that, the boundaries of the building which were mentioned in the document No.18984/2006, the Opposite Parties have encroached the eastern public road illegally to the exterit of more than 400 square yards and deviated he construction by violating the norins of approved plan. Due to this, the Complainants are suffering inconvenience and they will face penalties from the government in future as per their apprehension. The Government may impose or levy a huge fine or demand the market value of the actual encroached road. The Opposite Parties constructed the western compound wall in the encroached road place which is prone to demolition by the concerned department at any moment. From southern side, the accessibility is closed to the members of the Complainant by constructing a surrounding wall to the leftover set back place which is part and parcel of the schedule land. It is alleged that, the Opposite Parties have done thiswith a malafide intention and to get wrongful gain. The total area covered for the apartment is 3546 square yards which shows that, they have encroached the pubic property to the extent of 631 square yards willfully with an intention to cheat the member of the Complainant. It is the allegation of the Complainants that, they have lost the absolute legal right over their respective flats and titles became defective due to the wrongful and illegal acts of the Opposite Parties. Moreover, the regularization of the building wa also rejected by HMDA. Hence, the members of the Complainant :are lacing lot of mental agony and a threat of demolition of the properties.
4. Apart from above, the Opposite Parties failed in providing Manjeera water connection to the Apartment. They also failed to provide certain amenities like GYM, Children play articles etc. They have not provided all link documents related to the.
Approved building construction plan, property.
deposit receipts common of electricity service connection, As-built plan & drawings of the building, electricity circuit plans, plumbing work plans etc. With these allegations, the Complainants allege deficiency in service on the part of the Opposite Parties and pray to allow the complaint.
5. The Opposite Party No.1 filed written version averments of the denying the Complainants. It is contended that, the Sale Deeds were executed in favour of the flat owners through Opposite Party No.1 & 2 as their agents. The Opposite Parties of original landlords.
are the agents The Opposite Party No.1 executed few agreement of sale and executed few flat with agreements of construction of prospective purchasers on transaction basis wjth each individual/transaction to purchaser. As per the terms of the agreement, the privity of contract even if any, is with regard to semi-finished flat and the same is confirmed by execution a of sale 5 deed. t is submitted that, the majoriy of flat owners were issued acknowledgements and after having been satisfied with the construction in all aspects, they took the possession of the îlats in 2007 and 2008 and complaint was there till formation of the no Complainant Association. As on the date of completion, the boundaries of the property are one and the same. Hence, there is no question of Government imposing huge fine etc. Instant itigation is the brain child af flat owners who have not paid the total sale consideration and under the guise of this complaint are trying to avoid the same.
.
It is further contended that, without prejudice to the rights of this Opposite Party, it undertakes that as and when the Manjeera Water Pipe Line is drawn to the area/locality, the same will be provided to the Complainant residential complex with due negotiations with the actual vendors. Further, the Opposite Parties promised to provide only Gym rooms for ladies and gents separately but never promised to provide gym equipment. This Opposite Party established their office at stilt floor to operate its day to day affairs before the sale of flats itself. Hence, the question of handing over of office keys does not arise. It is also submitted that,. there is no cause of action for the instant complaint, Complainant Association is not having right or authority to file the instant complaint. The complaint is also hit by limitation. With these contentions, the Opposite Parties deny deficiency in service on their part and prays to dismiss the complaint.
The Complainant filed evidence afidavit.Ex.A1 to A46 marked on their behalf. The Opposite Parties filed their evidence affidavit and Ex.B1 to B8 marked on their behalf. The Complainants filed written arguments. Both parties advanced oral arguments.
for consideration is 8, Hcard both sidcs. The point that arinc whether there is a deficiency in scrvice on the part of the Oppositr Parties and if so, to what relicf?
9. The aspcct that necds to be considercd at the outsct is, as to whether this Commission which is created under the provisions of Central Enactment viz., the Consumer Protection Act of 2019 can give any relicf to any of the parties, which, in our opinion, amounts to putting premium on the gross illegalities and violations committed by either of the parties. Our apprehension is that, if this Commission is to grant the relicfs that are sought for in the present complaint, the Opposite Party who has admittedly committed gross violations of the rule of law and the mandatory requirements of the civic laws may usc this order and submit before the authorities for obtaining the reliefs which he would have not otherwise entitled to in view of his conduct in making the constructions in gross violations of the rules and regulations which are mandatory.
10. The Complainants are the residents of Sai Ahlaadam Flat Owners Association, situated in Eshwara VillasRoad, Nizampet and admittedly there many as 89 flats in the said complex are as which has been constructed by the Opposite Party. The reliefs that are sought for are:
1) To provide Manjeera water supply and complete the pending works such as laying of tiles in cellar providing access door etc.,
2) Provide gym equipment and children's play articles,
3) Handover keys of office,
4) Handover the link documents of the property such as registered GPA doc.No.81/iv/2007, reg. AGPA doc.No.18984/2006, reg.doc.No.19374/2005, reg.GPA No.665/1987, Sale Deed doc.No.8775/2003, and title deeds and records of original land lord Smt.K.Lakshmamma etc, 5 Provide necessary approvals and No Objection Certificates obtained from Fire & Safety Department, permissions from Airport Authority of lndia when the than building height is more 18 meters as per G.O.Ms.No.86,
6) Approved Building Construction Plan with proceeding letter of HMDA permit No.676/P4/H/2006,
7) To take steps to transfer the common electricity connection,
8) To handover the as built plan and drawings of the apartment/building etc., and get clearance for the eastern encroached road from concerned revenue authorities, or in the alternative, The Opposite Parties may be directed to pay a compensation of Rs.99,10,000/- to the Complainant Association.
11. Many of the reliefs that are now sought for in the complaint have nexus with the powers of the statutory authorities in granting the permissions and No Objection Certificates only if the construction is legal and in accordance with the requirements of law. Any construction made contrary to the regulations of the civic authorities cannot be granted the No Objection Certificates from any authorities and even direction to provide water connection to a structure which is grossly illegal may amount to putting premium on the irregularities and illegalities committed by the builder.
12. Briefly stated, the facts are that, the Opposite Party builder has taken extent of 2915 square yards of land from the an original owners and constructed thereon 89 residential flats with 16 flats per floor on ground to 4th floor and 9 flats in 5th floor. Even according to the Complainant, the builder was supposed to make construction of only 40 flats i.e., 8 flats per floor as per the approved plan. According to the Complainant, having made the above illegal constructions of 89 flats as against 40 flats approved for construction, the Opposite Party has sold the flats to different persons during the period 2007 to 2011 assuring that the said construction is approved by the Nizampet Grampanchayat and HMDA.
13. It is further alleged by the Complainant that, the Opposite Parties in the process of constructing the complex have encroached the eastern public road illegally to an extent of more than 400 square yards and deviated the construction by viólating the norms of the approved plan. According to the Complainant, this act of the Opposite Party in encroaching 400 square yards of public road is likely to put them to lot of inconvenience and they apprehend facing abnormal penalties from the Government, which may impose huge fine or may demand the market value of the encroached road, which as .at present (in the year 2013) was Rs.7,000/- per square yard which comes to Rs.28,00,000/-.
14. I t is further alleged by the Parties have constructed the Complainant that, the Opposite compound wall of the apartment by encroaching the road which is liable to be concerned authorities demolished by the at any moment. It is clearly admitted by the Complainants themselves that, now the total apartment is by area covered the 3094 square yards as against 2915 which was square yards supposed to be utilized by the construction. The Opposite Parties for Complainants themselves assert that the Opposite Parties have encroached which about 631 square yards of land meant for roads and was made the wrongful act and the members of the construction, which is a society have.lost the absolute legal right over their respective flats and the titles became defective. Furthermore, the Complainant in his very complaint has categorically admitted that, the Opposite Parties have the authorities concerned to regularize the applied to under BPS Scheme vide letter illegal constructions 2008 which was rejected by HMDANo.5605/BPS/Planning/HMDA/ on the ground that cellar + stilt +6 upper floors have been, constructed duly increasing the area with 16 units in site each floor deviating the the affected area has been covered approved plan and by building.
.
15. What ismanifest from the above is that, the builder has made an attempt to get the illegal construction regularized and being unsuccessful and we have an intuition to observe that most probably the builder is behind this litigation and is intending to get his illegal acts regularized through the process of this Commission.
16. In view of the foregoing discussion, we have no.hesitation in holding that the Complainants cannot be granted any relief and as a matter of fact, their own case is that their title is defective and the affected portions are liable to be demolished. If their apprehensions are proved right and the property is demolished, they are entitled to claim compensation and damages from. the Opposite Parties in accordance with law by availing the appropriate remedy. The complaint is however liable to be dismissed. The point is accordingly answered.
17. In the result, the complaint is dismissed. No order as to costs.
PRESIDENT LADY MEMBER
Dt: 25.01.2022:
UC*
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of PW1 to PW4 Evidence affidavit of
on behalf of the Complainant. Opposite Party No.1.
EXHIBITS MARKED
For Complainants:
Ex.A1 Copy of Agreement of Sale-cum General Power of Attorney dated 19.09.2006.
Ex.A2 Copy ofthe Receipt No.082 dated 03.11.2006 for Rs.2,21,267/-.
Ex.A3 Copy ofStilt Floor Plan 10 Ex.A4-Copy ofproceedings for building construction permission dated 03.11.2006 issued by the office of Grampanchayat, Nizampet.
Ex.A5 Copy of Brochure Ex.A6 Copy of sketch of site apartment Ex.A7 Copy of Sale Deed dated 03.11.2011 Ex.A8-Copy of Agreement of Sale dated 08.09.2007 Ex.A9 Copy of Sale Deed dated 26.09.2007 Ex.A10 Copy of Agreement of Construction dated 04.10.2007 Ex.A11 Copy of Gift Settlement Deed dated 22.12.2011
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Ex.A12-Copy of Certificate of Registration of Sai Ahlaadam Flat Owners Association., Ex.A13 Copy of Bye-laws of "SAFOA" Ex.A14 Authorization-cum-Resolution letter dated 18.03.2013. Ex.A15 Copy of BPS application No.5605/08.
Ex.A16 BPS rejection letter dated .06.2013 of Ex.A17 Office copy HMDA of notice dated 08.12.2012.
Ex.A18 Market Value Certificate dated 04.02.2013. Ex.A19 Office copy of notice dated 26.03.2013.
Ex.A20 Postal receipts dated 26.03.2013 and Ex.A21 Copy of acknowledgements Lawyer Notice No.16/2013 Ex.A22-Letter dated 30.03.2013 from Complainant regarding handing Opposite Party No.1 to the over of documents. original Ex.A23 Copy of Manjeera Water Line Estimation Ex.A24-Copy of brief information from Hyderabad Water Supply & Sewerage Board. Metropolitan Ex.A25 Office copy of legal notice dated 09.10.2013 Ex.A26 Postal receipts dated 09.10.2013 and acknowledgement Ex.A27-Courier consignment details dated 28.10.2013. Ex.A28 Notice on behalf of Sai's Ahlaadam Flat Owners Association dated 26.11.2013. Ex.A29- Returned registered post cover addressed to 2nd Party. Opposite Ex.A30 Original electricity bill dated 03.11.2013. Ex.A31 Copy of G.0.Ms.No.86 dated 03.03.2006.
Ex.A32 Certificate of Registration dated 30.04.2015.
11Ex.A33 Member details of vide Kakatiyaof Welfare Association Registration No.574 2015. Nizampet Ex.A34 Letter dated 15.06.2015 Supply. regarding Manjeera Water Ex.A35 Google Map Ex.A36 Letter No.001/004 dated Body Meeting of Kakatiya 31.07.2015 Welfare regarding General Ex.A37 Association.
Copy of receipt No.P17062255716684 dated for Rs.3,32,680/- towards connection charges22.06.2017 issued by HMWS&SB.
Ex.A38- Xerox copy of Water Bill dated 05.09.2018.
Ex.A39 Letter issued by HMWs&SB dated 07.08.2017 regarding Intimation of Customer Account Number.
Ex.A40 Copy of receipt dated
for
28.06.2017 issued by HMWS&SB Rs.9,75,296/- towards connection charges. Ex.A41 Letter dated 30.06.2017 issued by HMWS&SB to the Complainant Association regarding Intimation for Payment.
Ex.A42-Copy of receipt No.238 dated 21.08.2007 for Rs.2,00,000/- issued by Opposite Party No.1. Ex.A43-Copy of receipt No.339 . dated 31.01.2008 for Rs.1,00,000/- issue by Opposite Party No.1.
Ex.A44-Copy of repayment schedule for 12
installments of loan,
dated 31.10.2007
favouring Opposite Party No. 1. Ex.A45 Letter dated 03.07.2020 issued by HMWS&SB Ex.A46-Letter dated 03.07.2020 issued by HMWws&SB regarding pipeline provided in survey No.249 of Nizampet Village.
For the Opposite Parties:
Ex.B1 Letter dated 24.03.2014 regarding HMWSSB-0&M Dn.No.1X-Information sought for under RTI Act-2005 details of Manjeera Water No.249 of Nizampet Supply in the area of Survey Village.
Ex.B2 Acknowledgements given by some of the flat owners, Flat No.205,206,207,209,212. Ex.B3 Building Permission/NOC Letter No.676/Plg/ 2006 dated 10.09.2006. P4/HUDA Ex.B4 Building Permisssion/NOC Letter No. HUDA/2006 dated 02.11.2006.
No.676/Plg/P4/ 12 challan No.10999/2006-07 dated Ex.B5 -
Development charges 12.09.2006 for Rs.5,39,917/-.
No.11000/2006-07 dated Ex.B6- Development charges Challan 12.09.2006 for Rs.18,222/-
Ex.B7 Secretary for handing over of
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Letter to President/General 30.03.2013.
the original documents dated dated EX.B8- Statement of balance according due amounts 19.03.2010.