Delhi High Court
R.L. Bhardwaj vs Shivalik Co-Operative Group Housing ... on 22 November, 1994
Equivalent citations: 56(1994)DLT600, 1996 A I H C 431, (1994) 56 DLT 600
JUDGMENT Usha Mehra, J.
(1) Sh. R.L. Bhardwaj, plaintiff herein, is one of the member shareholder of defendant Co-operative Group Housing Society consisting of 50members as its shareholders. With the funds contributed by the members and the financial assistance availed from institutions, work of construction of flat was taken up and completed by the Society in the year 1986-87. The constructed Apartment/building was given the name of 'Shivalik Apartments'. The price of each allotted flat on the ground floor, first floor, second floor and third floor was fixed. The cost for additional fixture with an individual flat was also fixed. In a meeting of members held on 10/08/1986 each member was allotted a flat. Plaintiff was allotted flat No. 47. It is the case of the plaintiff that terrace attached to the flat i.e.roof above flat No. 44 was allotted to the plaintiff. The roof above flat No. 44 is situated on second floor in Block-B of the complex. It is further the case of the plaintiff that price of each category of flat was inclusive of the terrace/roof.Defendant society entered into an agreement with the plaintiff. The flat No. 47 is assessed in the name of the plaintiff in the assessment list of the Municipal Corporation of Delhi. All taxes are paid by him. Plaintiff is in exclusive use,enjoyment and possession of the premises in question. The Delhi Apartment ownership Act, 1986 (In short the Act) provides for the ownership of an individual apartment in multi-storeyed building and of an undivided interest in the common areas and facilities pertaining to such apartments. The said Act defines apartments well as common areas & facilities and the rights of the owner of the flat vis-a-vis building society.
(2) It is in this background that the present application was filed seeking interim relief. Defendant Society filed the reply therein and denied the applicability of the Act and also denied the exclusive right of the plaintiff in the use and enjoyment of the terrace attached to his flat. Defendant Society also took the plea that if the relief sought is granted by this Court it would amount to decreeing the suit as a whole. Moreover, the terrance roof of flat No. 44 was never in the exclusive use, possession and enjoyment of the plaintiff nor it formed part of his flat No. 47. The roof or the terrace as the case may be is a common area to be used and enjoyed by all the members of the Society. The exclusive use and possession claimed by the plaintiff amounts to depriving other members of the Society of thisfacility. In fact all the members of the Society contributed towards the common facilities including the terrace and roof. "The price of the carpet area of the flat was charged excluding the area of the terrace.
(3) I have heard Mr. A.K. Singhla for the plaintiff and Mr. S.K. Rungta for Defendant-Society and perused the record.
(4) Admittedly, the main relief sought in the suit seeking declaration that the Society is governed by the provisions of Delhi Apartment ownership Act, 1986 and that the terrace above the roof of flat No. 44, attached to flat No. 47 formed part ofplaintiff's apartment. Mr. Rungta rightly contended that any relief given as an interim measure would amount to decreeing the suit, because in the main suit also plaintiff has sought relief of declaration that the terrace/roof belonged to him. If this Court as an interim measure hold that the plaintiff is the exclusive owner of theroof/terrace, it would amount to accepting the suit of the plaintiff qua this relief even without going through the trial. The plaintiff has placed on record a copy of an agreement. It has not been signed by any one on behalf of the Society. It only bears the signature of the plaintiff but on behalf of the Society no one signed, though according to the plaintiff reference of the terms of this agreement were read and approved in the General Body Meeting of the Society. This fact is yet to be proved.The contention of Mr. Singhla that Along with the agreement there was a schedule attached as Annexure-B indicating that flat No. 47 was inclusive of roof of flat No.44. I am afraid, prima fade this view cannot be taken. Because reading of the alleged typed agreement and the typed schedule and annexure attached with its how that initially it was printed that flat No. 47 was excluding the roof but subsequently it appears the word 'excluding' had been deleted in hand and the word 'including' was inserted. It is not known at what stage it was so inserted.This has yet to be established. That apart the fact remains that these document shave not been signed on behalf of the Society. Time was sought by the plaintiff in order to place the original agreement on record duly signed by both the parties. But instead of filing such documents, the plaintiff has filed two affidavits, one of Sh.R.P. Mehta and other of Sh. Ramesh Chand besides giving break-up of cost of flats on the first, second and third floors. Affidavits of Mr. Mehta as well as Mr. Ramesh Chand have been relied by the plaintiff mainly to show that open terrace/roof of their own flat or that of the flat adjacent to their flat were meant for their exclusiveuse.
(5) As a matter of fact in order to establish a prima fuci case the plaintiff ought to have placed on record the duly executed agreement between the parties, but the plaintiff has miserably failed to place any such record. As already observed above,the purported agreement appears to have not been executed as it is not signed by any authorised representative of the society. The Society in fact had taken specific stand that no agreement was executed. To rebut the same the burden was heavy on the plaintiff to discharge. Therefore, without recording the evidence, it cannot be declared that open terrace/roof formed part of the plaintiff's flat or that it was meant for his exclusive use and enjoyment. To strengthen his arguments Mr.Rungtaplaced reliance on the price list/index and the cost charged for the carpet area ofthe flat as well as for the common areas and facilities provided. This prima fade proves that open terrace was not part of or in the ownership of any individual.From the allottee of first floor flat. Society charged the cost for the balcony. The area underneath the balcony on the first floor was inclusive of the carpet area of that flat.Therefore, it cannot be said that the balcony provided on the first floor would be a common area. It has been exclusively used by the occupier of that flat because it form part of the carpet area. Balcony formed part of the flat, therefore, the flat owner paid full price of the carpet area inclusive of the balcony area. Prima fade it cannot be said that the plaintiff or the like have been discriminated. Similarly open space on the ground floor, according to defendant, has always been used by all flat owners of the complex as common facility. Hence it cannot be said that the open space provided on the ground floor is in the exclusive use of the flat owner ofthe ground floor flat. Hence, no analogy can be drawn from the use of the balcony area exclusively by the first floor owner. Hence, flat owners on second and third floor will not automatically become entitled to the exclusive use of the area on their roof top or of the terrace of the adjacent flat. In fact, like the plaintiff other individual flat owners also paid Rs. 900.00 for the use of the terrace/roof. Plaintiff having paid only Rs. 900.00 like other flat owners, prima fade cannot stake better right on the terrace of flat No. 44 by simply paying that Rs. 900.00. Other flat owners may not be in need of using the roof/terrace but that does not mean plaintiff has a better right. In fact till such time evidence is recorded, it cannot be said that plaintiff has exclusive right of enjoyment of this area. By use of this common area by other flat owner no right of the plaintiff would be infringed, nor any prejudice would because to the plaintiff. On the other hand, if injunction is granted, it would confer absolute individual right on the plaintiff to the detriment of other members of the Society. According to Society, roof being a common area nominal rates werecharged. Society was not fool enough to permit by giving away an area of 49.2sq.mt. for mere Rs. 900.00 in case of Lig flats. Whereas for Lig flat, carpet area as per Society's record is 68.85 sq.mt. for which Society charged Rs. 1,42,813.00 and for half the carpet area Society charged only Rs. 900.00. Society distributed the price list amongst all the allottees in which the roof/terrace has been shown as a commonarea. Hence, to my mind, plaintiff has failed to prima fade make out any case forinjunction. Even the balance of convenience is also not in favor of the plaintiff because in case plaintiff succeeds this area will fall to his exclusive use and enjoyment and can also be compensated. However, in case he looses then in that eventuality other flat owners would have been deprived of the use of this area because of being injucted by this Court.
(6) Mr. Singhla also took up legal submissions. Section 3(j) of the Act defines"Common areas and facilities" but parties by agreement can say that particular area is not a common area. This is so provided under Sections 3(g) and 24 of the Act,which Sections are reproduced as under:-Section 3(g): "authority" includes any authority constituted or established by or under any law for the time being in force;Section 24 : Act to be binding on apartment owners, tenants, etc.- (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in anycontract, undertaking or other instrument and all apartment owners, tenants of owners, employees of owners and tenants, or any other person who may,in any manner, use the property or any part thereof to which this Act applies,shall be subject to the provisions of this Act and the bye-laws and the rules made there under:Provided that nothing contained in this sub-section shall affect the right, title or interest acquired by any allottee or other person in common areas and facilities from any promoter on or before the 28th day of February, 1986.(2) All agreements, divisions and determinations lawfully made by the Association of Apartment owners in accordance with the provisions of this Act and the bye-laws shall be deemed to be binding on all apartment owners.Reading of Section 3(j) of the Act makes it clear that roof falls under the definition of "common areas and facilities", therefore also the plaintiff is not entitled to the interim relief.. Besides the legal submission, on merits the contention of Mr. Singhia that the architect had given classification before allotment of the flat that terrace/roof was not a common area. Reference in this regard can be had to the letters dated 3/06/1988 and 6/11/1989. But I am afraid this does not prima facie amounts to concluded contract. The agreement including schedule Annexure-B are not signed on behalf of the Society. In the absence of any agreement protection under Section 3(g) and 24 of the Act cannot be claimed by plaintiff.Section 3(j)(ii) of the Act provides that 'roofs' of the building to be a common area and common expenses were charged from each of the individual flat owner.Carpet area of the Lig flat is 68.85 sq.mt. and roof area is 49.2 sq.mt, therefore, from each of the flat owner of Lig a sum of Rs. 900.00 was charged besides the price ofthe flat. Reference can be made to Section 4 of the Act which indicates how much charges are to be collected for the common area i.e. of the undivided interest of each apartment owner. Sub-Section (5) of Section 4 of the Act provides that common areas and facilities shall remain undivided and no apartment owner or any other person encroach upon the same. However, exception has been carved out under Section 3(g) and 24 of the Act which stipulates exclusion of other's right by agreement and this must take place before the allotment and that agreement must have been entered into prior to 28/02/1986.
(7) As already observed, the copy of the agreement and the Schedule placed on record do not bear signature on behalf of the Society. The minutes of the General Body Meeting in which reference of this agreement was made is yet to be proved.Hence in the absence of the agreements having been executed before the allottee ofthe individual flats as stipulated under the Act, prima fade it cannot be said that plaintiff has exclusive right of use and enjoyment of the terrace/roof of flat No. 44.Nor the balance of convenience is in his favor.For the reasons stated above I find no merit in the application. The same accordingly dismissed.