State Consumer Disputes Redressal Commission
M/S. Vivek Constructions ... vs Smt.Kamal Dhanani,Hyderabad. on 27 January, 2014
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.491/2012 against C.C.No.760/2011, Dist. Forum-II, Hyderabad. Between: 1.M/s. Vivek Constructions Corporation, Represented by Sri Balmukund Gupta, Having office at # 4-1-825/4, Victoria Chambers, J.N. Road, Hyderabad. 2. Sri Balmukund Gupta, S/o.late Sri Jaidayalji, aged about 74 years, Occ: business, R/o. IV Floor, Victoria Chambers, J.N.Road, Abids, Hyderabad. Appellants/ Opp.parties And Smt.Kamal Dhanani, W/o.Sri Choithram T.Dhanani, Aged about 70 years, Occ: Household, R/o.Flat No.4-1-826/34, III Floor, Victoria Chambers, J.N.Road, Hyderabad. Respondent/ Complainant Counsel for the Appellants : M/s. Shyam S.Agarwal Counsel for the respondent : M/s.B.Shashidhar. QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HONBLE MEMBER , SRI T.ASHOK KUMAR, HONBLE MEMBER, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
MONDAY, THE TWENTY SEVENTH DAY OF JANUARY, TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) **** This appeal is directed against the order dt.08.05.2012 of the District Forum-II, Hyderabad made in C.C.No.760/2011.
The appellants are the opp.parties and the respondent is the complainant in C.C.No.760/2011. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant purchased the flat no.4-1-826/34 from the opp. parties and the son of the opp.party no.2, admeasuring 1210 sq.ft. in the III floor of Victoria Chambers, situated at J.N.Road, Abids, Hyderabad together with 44 sq. yards of open area adjacent to the flat, the undivided share of 34 sq.yards in the land proportionate undivided share in the common areas and amenities, under the sale deed dt.24.01.1990 registered as the document no.376/1990 in the office of the Registrar, Hyderabad. At the time of executing the said sale deed, the opposite parties and the son of the opposite party no.2 represented to the complainant that though they were collecting the sale consideration for the subject property as well as car parking provision in the ground floor, they were not mentioning the same in the sale deed, to avoid burden of additional stamp duty, but assured the complainant that they would surely provide a car parking space, either in the cellar or in the ground floor.
Accordingly the opp.parties have provided to the complainant plot slot measuring 10 x 12 situated on the Eastern side of the place reserved for parking in the ground floor of the Victoria Chambers, wherein the complainant has erected a shed, painted her name and has been parking her car bearing No.AP 9 AL 1215 in the said parking shed provided by the opp.parties. In the year 2009, the complainant sold her car to her friend and hence her car parking shed has been kept vacant. To the utter shock and surprise of the complainant, on 01.06.2011, the opp.party no.2 has criminally trespassed into the car parking shed, belonging to the complainant, rubbed the name of the complainant and painted his name and started parking his car and when the complainant questioned about such criminal acts, he has threatened the complainant stating that he would not vacate the car parking shed belonging to the complainant and if she asks him for the same again, she has to face dire consequences as she resides alone in her flat. As her husband died and her children were settled abroad, the complainant resides alone in her flat .
The opp.parties have raised godowns in the cellar which was infact reserved totally for parking and by selling or as the case may be leasing out the car parking area in the cellar of Victoria Chambers, the opp.parties started grabbing the car parking places of the owners of the apartments. Even in the place provided for generator, as per the municipal sanctioned plan, the opp.parties have constructed godown and sold or leased out the same to third parties. The store rooms provided were grabbed by the opp.parties and converted for their personal commercial purpose, open area in the ground floor which has been converted as car parking place has been grabbed by the opp.parties and used for their personal car parking and the opp.parties are parking four of their cars by grabbing the common areas belonging to the Victoria Chambers Owners Association.
The opposite party no.2 is collecting huge amounts towards the monthly maintenance from all the owners and occupants of the apartment by issuing the receipts in the name of Victoria Chambers Apartment Owners Association (which is a self established association of the opp.party no.2), but not taking any care for the maintenance of the building. Despite the demand from several owners and occupants, the opposite party no.2 did not reveal information with regard to the members of the Association and also about the selected personnel in the Managing Committee of such association and also he has been refusing to give any sort of account of the amounts collected by him towards maintenance of the apartment. There is no permanent watchman for the apartment and there is not even a watchman room in the apartment.
The complainant has got issued a legal notice dt.22.07.2011 to the opp.parties calling upon them to vacate the car parking place belonging to her and to repaint her name in its original place and comply with the requirements of Multi Storied Buildings Regulations, building by-laws and the A.P.Apartments (Promotion of Construction and Ownership) Act,1987 and the rules made thereunder, within 15 days, for which, the opp.parties neither gave reply nor complied the demands made by her. Hence there is deficiency in service on the part of the opp.parties as they have resorted to utter unfair trade practice by selling as the case may be, converting for the personal purpose, the common area and amenities in the Victoria Chambers belonging to the owners of the apartments. Hence the complaint seeking directions to the opp.parties:
a). to return back to the complainant the car parking shed measuring 10 x 12 situated on the eastern side of the place reserved for parking in the ground floor of the Victoria Chambers belonging to the complainant;
b). to legally form the Victoria Chambers Apartments Owners Association by making the owners of the Apartments in the Victoria Chambers, at Jawaharlal Nehru Road, Abids, Hyderabad as members and by registering it as per the provisions of the Andhra Pradesh Societies Registration Act 2001, and handover all the account books and the remaining money collected by the opp.party no.2 from the owners of the apartments in the name of maintenance after accounting the expenses incurred towards maintenance to such legally formed Victoria Chambers Apartments Owners Association.
c). to remove illegal structures raised in common areas situated in the cellar and ground floors of Victoria Chambers and handover all such common areas in the cellar and ground floors as depicted in the sanction plan dt.25.03.1987 issued by the Commissioner, Municipal Corporation of Hyderabad, along with other common areas in Victoria Chambers to such legally formed Victoria Chambers Apartments Owners Association.
d).
to award compensation of Rs.5 lakhs to be paid by the opp.parties to the complainant and to
e).
to award costs of the complaint.
The opp.parties though received notice, did not choose to contest the case.
In order to prove her case, the complainant filed her evidence affidavit and Exs.A1 and A2 were marked on her behalf.
The District Forum allowed the complaint, in part, directing the opp.parties to return back to the complainant, the car parking shed measuring 10 x 12 situated on the Eastern side of the place reserved for parking in the ground floor of the Victoria Chambers belonging to the complainant. The opp.parties are further directed to pay a sum of Rs.1000/- towards compensation and Rs.500/-
towards costs of the complaint within four weeks from the date of receipt of the order.
Aggrieved by the said order, the opp.parties preferred this appeal questioning the legality and validity of the order of the District Forum.
We heard counsel for both parties and perused the entire material on record.
Now the point for consideration is whether the order of the District Forum is vitiated for misappreciation of fact or law?
Under the Ground No.2 of the Grounds of Appeal, the appellants/opposite parties submitted that there is no car parking place on the Eastern side of the building as alleged and therefore, the question of the opposite parties returning back to the complainant, the alleged car parking area, does not arise. Therefore, the order of the District Forum is not being capable of performance by the opposite parties and is liable to be set aside on that ground.
The fact that the opposite parties along with son of the opposite party no.2 namely Mr.Vinod Kumar Gupta (since deceased) have sold the flat no.4-1-826/34 admeasuring 1210 sq.ft. in the third floor of Victoria Chambers, situated at J.N.Road, Abids, Hyderabad to the complainant under the registered sale deed bearing document no.376 of 1990 dt.24.01.1990, is not in dispute. The contention of the respondent/complainant is that she has purchased the subject property and the car parking provision in the ground floor, under the said sale deed, but the said fact was not mentioned in the sale deed, to avoid the burden of additional stamp duty. However, the opposite parties assured the complainant that they would surely provide the car parking space for the complainant either in the cellar for parking or in the ground floor, a part of which is also reserved for parking, as they have assured the other apartment owners in the Victoria Chambers, wherein the complainant has erected a shed and has been parking her car in the said parking shed, provided by the opposite parties. In the year 2009, the car parking shed has been kept vacant as the complainant sold her car to her friend. To the utter shock and surprise of the complainant, on 01.06.2011, the opposite party no.2 has criminally trespassed into the car parking shed, belonging to the complainant and when the complainant questioned such criminal act, the opposite party no.2 threatened the complainant.
The opposite parties denied the above case of the complainant and contended that the complainant was not entitled for any exclusive car parking, as no car parking place was allotted to her nor she purchased either from the opposite parties or from anybody else.
The opp.parties further contended in this appeal that subsequent to filing of the complaint on 17.08.2011, the complainant had addressed a letter to the Asst. Commissioner, Town Planning Section, Circle VIII, Greater Hyderabad Municipal Corporation, Hyderabad on 20.09.2011 withdrawing her complaint in regard to the parking place stating that her problem was solved and she did not have any dispute in that regard. A copy of the said letter was furnished to the opposite parties making the opposite parties to believe that the complainant would withdraw the complaint before the District Forum, which made them not to contest the case. The complainant proceeded the matter behind the back of the opp.parties, resulting in passing of the impugned order. The opposite parties further submitted that in the entire building there is no exclusive car parking area to any of the occupants of the building including the opposite parties. Therefore, the question of complainant having or getting any such car parking area does not arise.
The opposite parties further submitted that they were served with notice in the complaint filed by the complainant in the month of September,2011 asking to appear before the District Forum on 14.09.2011. Though the opposite parties have engaged an advocate and were intending to contest the matter, as the complainant approached them stating that she was no more interested to carry the dispute forward and that she would withdraw the complaint before the District Forum, the opposite parties have given instructions to their advocate not to appear in the matter and accordingly they did not contest the case.
Infact it is an admitted that the opposite parties did not contest the complaint by filing any written version. In view of the averments in the complaint and counter submissions of the appellants in the appeal grounds, we are of the considered view that the issues arise in this case are to be decided on evidence, after giving opportunity to both parties, to adduce evidence, in support of their respective contentions.
Under these circumstances, to meet the ends of justice and to give one more opportunity to the opposite parties, to put forth their case and to decide the matter on merits, we are of the considered view that the matter is to be remanded to the District Forum for disposal of the complaint, afresh.
Accordingly the appeal is disposed of setting aside the impugned order of the District Forum. The matter is remanded to the District Forum to decide the case afresh according to law, after giving opportunity to both the parties to adduce evidence, in support of their respective contentions. Both parties are directed to appear before the District Forum on 14.02.2014. The District Forum is directed to dispose of the complaint as early as possible, preferably within two months. The appellants/opp.parties are directed to pay a sum of Rs.5000/-, to the respondent/complainant, towards the costs of the appeal.
MEMBER MEMBER MEMBER Pm* Dt.27.01.2014