State Consumer Disputes Redressal Commission
Mr.Sumanth Reddy vs Aparna Heights-Ii Owners Welfare ... on 10 December, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.772 OF 2013 AGAINST C.C.NO.60 OF 2013 DISTRICT FORUM RANGA REDDY DISTRICT Between: Mr.Sumanth Reddy J. S/o J.Janardhan Reddy Aged about 31 years, R/o Flat No.807, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties F.A.No.773 OF 2013 AGAINST C.C.NO.59 OF 2013 Between: Mrs.G.M.Sundara Valli W/o Mr.Christopher R/o Flat No.812, Aparna Heights-II Owner Welfare Society, 1-55/12/AH/II Near Chirec Public School, Kondapur, Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties F.A.No.774 OF 2013 AGAINST C.C.NO.58 OF 2013 Between: Mr.Ghulam Mustafa Khan S/o Ghulam Mohammad Khan Aged about 34 years, R/o Flat No.809, Aparna Heights-II, Owner Welfare Society 1-55/12/AH/II, Near Chirec Public School, Kondapur Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties F.A.No.775 OF 2013 AGAINST C.C.NO.61 OF 2013 Between: Mr.Suresh Kumar Natarajan S/o T.S.Natarajan aged about 37 years, R/o Flat No.809, Aparna Heights-II, Owner Welfare Society 1-55/12/AH/II, Near Chirec Public School, Kondapur Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties F.A.No.776 OF 2013 AGAINST C.C.NO.62 OF 2013 Between: Mrs.Sudha Madhurai Yellamelli W/o Madhu Sudhan Yellamelli Aged about 49 years, R/o Flat No.801, Aparna Heights-II, Owner Welfare Society 1-55/12/AH/II, Near Chirec Public School, Kondapur Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties 776 OF 2013 AGAINST C.C.NO.63 OF 2013 Between: Mr.Jaideep Ganguly S/o Rasbihari Ganguly Aged about 31 years, R/o Flat No.801, Aparna Heights-II, Owner Welfare Society 1-55/12/AH/II, Near Chirec Public School, Kondapur Hyderabad-084 Appellant/complainant A N D 1. The President, Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084, rep. by Sri Mr.Arora 2. The Secretary Aparna Heights-II Owners Welfare Society 1-55/12/AH/II, Near Chirec Public School Kondapur, Hyderabad-084 Respondents/opposite parties Counsel for the Appellants M/s P.R.Balrami Reddy Counsel for the Respondent M/s V.Gourisankara Rao (R1toR4) M/s V.Narasimha Rao (R5) QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE I/C PRESIDENT SRI THOTA ASHOK KUMAR, HONBLE MEMBER
& S.BHUJANGA RAO, HONBLE MEMBER TUESDAY THE TENTH DAY OF DECEMBER TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble I/c President) ***
1. All the appeals arise from the orders passed by the District Forum on similar facts and in the same circumstances and also involved the same proposition of law and as such all the appeals are disposed of by a common order. F.A.772/13 is taken as lead case.
2. The complainant is one of the flat owners of the Aparna Heights-II and also member of the Aparna Heights-II Owners Welfare Association residing at 8th floor in duplex house. The complainant is regular in paying the monthly maintenance charges to the society. The opposite parties are collecting the maintenance charges on the square foot basis which includes plinth area of the flat and common area of each flat owner.
The opposite parties are collecting extra amount from the residents who are residing beyond 7th floor.
The apportionment of maintenance charges is unilateral, illegal and unjustified. Out of 94 flats, 82 flats are three bed room flats which are upto 7th floor. There are 12 duplex flats with four bed rooms in each floor and the complainant is the owner of flat no.807. The opposite parties are also calculating 8th floor corridor and 9th floor corridor extra to the 12 flat owners of 8th floor only which is commonly used by all the flat owners of the society.
The opposite parties are demanding to pay an amount of `7,182/- towards maintenance charges.
3. As per bye-laws of the Association the maintenance charges shall include the expenditure incurred for day to day maintenance like water supply, common electricity, wages and the remuneration payable to the staff or other persons hired for the purpose of day to day maintenance of the common areas and facilities or periodical checking/servicing of water supply and drainage etc., maintenance or lift and generators including its service charges or any other expenditure of routine nature. The complainant made a representation to the Managing committee on 15.10.2012 and brought to the notice about the illegal demand of extra amount basing on the calculation of square foot for the services commonly used by all the members equally.
All the flat owners in 8th floor requested the opposite parties to apportion the cost of maintenance charge equally. As per the equal apportionment, the cost of the maintenance for flat no.807 would be of `4,012/- p.m. whereas the opposite parties are demanding `7,182/-. The opposite parties are displayed on the notice board by giving 7 days time to pay the amount @ `7,182/- p.m. from October 2012 failing which they have disconnected the services. Issuing the notice for disconnecting the service to the flat NO.807 is illegal and unjustified. The opposite parties have no right or authority to insist the complainant to pay a particular amount based on square foot instead of equal share. The complainant got issued notice dated 28.1.2013 to the opposite parties to collect the maintenance service charges as per the bye laws of the association.
4. The opposite parties resisted the case contending that the complaint is not maintainable either in law or on facts.
The association never demanded exorbitant maintenance charges and it always adhered to the bye laws in computation and collection of the charges. The complainants proposal of equal distribution of maintenance charges are not approved by the General Body. The maintenance charges being collected varies according to the area as per the possession of each owner. The complainant owns an area of more than 4,200 sft and he cannot compare himself with the other owners who own lesser area. The complainant by virtue of sale deed the sale deed agreed to be liable to the association and abide by the bye laws in payment of maintenance charges having paid the charges on square feet basis directly to the builder for two years immediately after his purchase. The complainant cannot find fault with the association in collecting the maintenance charges. As per the bye laws if any grievance he has to approach the grievances cell at the first instantce. In the event of not getting any redressal as per the societies Act and AP. Flat Owners Act, the complainant may approach the District court or High Court for appointment of an arbitrator to settle the dispute.
The complaint is misconceived and misleading and deserved to be dismissed in limini with costs.
5. The complainant filed his affidavit and the documents, Exs.A1 to A8. The President of opposite party association filed his affidavit and the documents, Exs.B1 to B9.
6. The District Forum dismissed the complaint on the premise that there is a clear clause in the Bye-Laws which empowered the association to impose the maintenance charges proportionality such resolution cannot be treated as illegal and also that as the complainant is residing in duplex house he has to pay more maintenance charges when compared to the other houses which are less in area.
7. Aggrieved by the order of the District Forum, the complainant has filed appeal contending that the District forum failed to see that as per bye-laws Aparna Heights II is 94 apartments residential complex and the expenditure incurred for maintenance of the building is divided equally among all 94 apartments owners and the District Forum failed to see the difference in between the flats of duplex houses and flats of lesser area is only of a bedroom and as such maintenance charges should be shared equally and that calculation of maintenance charges on the basis of plinth area and common area is not proper.
8. The counsel for the opposite parties filed common written arguments.
9. The point for consideration is whether the order of the District Forum suffers from misappreciation of fact or law?
10. It is an admitted fact that the complainant is the owner of the flat bearing No.807 and 907 of the Aparna Heights-II residential complex. It is not disputed that the respondent association is formed under cooperative Societies Act and its members are the individual flat owners of the residential complex and by virtue of the covenant incorporated in the respective sale deeds of members of the respondent association who include the complainant herein, all the flat owners are bound by the bye-laws of the respondent association.
11. Admittedly, the appellant is owner of a duplex flat in 8th and 9th floors of Aparna HeightsII apartments and the respondent association is empowered to collect maintenance charges based on area of the flat i.e., square foot basis.
It is also not disputed that the complainant proposed for equal distribution of maintenance charges and the proposal was not accepted by the general body of the respondent association.
The learned counsel for the respondent has submitted that the respondent agreed by the terms of his sale deed that he is bound by the decision of the respondent association and abide by the bye laws of the respondent association and in accordance with the terms thereof, the appellant paid maintenance charges on square foot basis directly to the builder for two years immediately after his purchase of the flat and thereafter he continued to pay the maintenance charges to the respondent association.
12. The sale deed bearing document No.2248 dated 1.4.2010 was executed by the developer in favour of the appellant in respect of the apartment No.807 and 907 at floor no.8th and 9th respectively in Aparna Heights-II. Clause VI of the sale deed mandates the appellant to join the association of apartment owners form by the developer and contribute corpus fund and maintenance charges as also other amounts regularly on par with other owners to the developer till the association is formed. Clause VI of the sale deed reads as under:
The Purchaser(s) shall also join the Association of Apartment Owners formed by the Vendor Company and shall contribute the corpus fund and also the maintenance charges and other amounts regularly on par with other owners to the Vendor Company till the association is formed, and thereafter to the Association failing which the Association or the Developers shall be entitled to disconnect the services and amenities and to take any other action under the bye-laws or resolution of the Association. There shall be a separate membership and one voting right in respect of each Apartment, irrespective of the number of Apartments held by the same person or persons.
13. Clause 9 of the sale deed provides for common area and empowers the developer to regulate driveways and car parking slot till the association is formed and thereafter it is agreed that the association will regulate them. The common areas mentioned in clause IX are referred to those described in schedule-C annexed to the sale deed. In the schedule C of the sale deed it is categorically mentioned that the appellant has proportionate undivided and impartible shares in the common areas such as bore well, motor elevator machine room, staircase, lobby and watchman quarter.
14. Clause 9 of the sale deed prescribes that the developer company alone is entitled to maintain and manage the common areas and amenities to the exclusion of all other persons till the formation of the respondent association and after construction and delivery of the apartment to him, the appellant agreed to be liable to pay all taxes including property tax to the government and also contribute proportionately towards the electricity, water and sewerage, service connection and deposits.
15. Clause XI of the sale deed entitled the developer company to collect transfer fees in case of transfer of ownership and credit the amount to the corpus fund which was agreed not to be utilized for day to day maintenance such payment of salaries, security, watch and ward, cleaning, sweeping, common electricity and water bills servicing of elevator, motor, generator, water and sewerage system etc. Thus, it is manifest from the terms of the sale deed that the appellant agreed to pay corpus fund and maintenance charges and the developer has agreed to credit to the account of the corpus fund the amount it received from the purchaser towards corpus fund.
16. Now the question to be addressed is whether the terms of bye laws provide for payment of maintenance charges by the appellant and other flat owners on 8th and 9th floors vis--vis the owners of the flats at 1st floor to 7th floor of the residential complex.
17. The bye laws had made clear distinction between corpus fund and the funds raised by the respondent society for the purpose of maintenance of the building. It is stated in the bye laws that the interest accrued on the corpus fund also become part of the corpus fund to be used for the purpose of exterior painting structural repairs to the building, replacement of acquisition of any equipment like motor, elevator, generator etc., or major repairs to or replacement of water/supply/drainage system etc. In regard to the funds for maintenance charges and utilization thereof is mentioned in clause VI of byelaws that the funds raised by the respondent society to be utilized for the management and maintenance of common area and amenities like compound wall, roads, water supply common drainage, lighting of common areas, gardening cleanliness and sanitation, security operation costs of the office of the respondent society, elevator, generator, pumps, storage tanks, water supply drainage etc., and any taxes and other amounts payable to the governments.
18. Further, distinction has been made by clause VI of the byelaws between maintenance charges and operational charges and the operational charges are meant to include payment of salaries to the staff employed by the respondent society, expenses towards printing, stationery, postage, audit fees, legal fees, water charges, electricity charges and pest control services for common areas and any other charges to be decided by the President/Secretary/Treasurer of the respondent society.
19. The District Forum observed that under the head investment of funds of byelaws that the respondent association is entitled to impose maintenance charges proportionately on its members. Clause ii under the head of Investment of Funds of the byelaws provide for division of the expenditure incurred by the respondent society towards maintenance charges, equally among all the 94 apartments. It is to be noted that apartment is different from the owner of the apartment. The appellant is the owner of not a single apartment and he is the owner of the apartments bearing No.807 and 907 and as such he is rightly charged by the respondent association proportionally.
20. Admittedly, the Flats existing in floors beyond the 7th floor of the building i.e,. 8th and 9th floors are of larger extent and naturally they require much light and other amenities etc. It is to be noted that the appellant has not raised objection for considerable of time and paid a sum of `7,182/- towards maintenance charges to the respondent association while the flat owners from first floor to seventh floor of the building paid a sum of `3,200/- to `4,012 per month.
21. Even in the case of the Flats from first floor to seventh floor of the building, the respondents association charged in proportionate to the area thereof and the appellant has not questioned the variation in the amount collected from the flat owners of the flats existing in first floor to seventh floor of the building. As such it can be said that the respondent association has fixed uniform slab for similar flats with same extent of the area. The appellant having paid the amount towards maintenance charges as per the decision of the respondent association, he is estopped from questioning the mode of fixing of the maintenance charges. We do not find any merit in the appeal and the appeal is liable to be dismissed.
In the result the appeal F.A.No.772 of 2013 is dismissed without costs and for the very same reasons and discussions the appeals F.A.No.773, 774, 775, 776 and 777 of 2013 are dismissed without costs.
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I/C PRESIDENT Sd/-
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MEMBER Dt.10.12.2013 కె.ఎం.కె.*