State Consumer Disputes Redressal Commission
Arenja Towers Co-Op Housing Society Ltd vs Smt Namita Promod Jaiswal on 14 December, 2017
1 (A/2015/483)
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. A/15/483
(Arisen out of order dated 30/01/2015 passed in complaint
No.256/2013 by Additional Thane District Consumer Forum, Navi
Mumbai)
Arenja Towers Co-op Housing Society Ltd.
Through its Chairman
Mr. Mukesh Kumar Maheshwari
Plot No. 49/50/51, Sector-11.
Late Rajiv Gandhi Road,
Near Vihar Sarovar, CBD Belapur,
Navi Mumbai ...........Appellant (s)
Versus
Smt. Namita Pramod Jaiswal
Owner of Flat No. B-103,
Arenja Towers Co-op Housing Society Ltd.
Plot No. 49/50/51, Sector-11.
Late Rajiv Gandhi Road,
Near Vihar Sarovar, CBD Belapur,
Navi Mumbai
Now Present Residing at -
2A/22 Seema Society, N. Dutta Road,
Four Bungalows, Andheri West,
Mumbai - 400 053. ............Respondent (s)
BEFORE:
Justice A.P. Bhangale PRESIDENT
D.R. Shirasao JUDICIAL MEMBER
For the Shri.Digamber Thakare, Advocate
Appellant: for appellant.
For the Shri. H. H. Mohan, Advocate for
Respondent: respondent.
ORDER
Per Justice Mr.A.P. Bhangale, Hon'ble President [1] Heard Shri.Digamber Thakare, Advocate for appellant and Shri. H. H. Mohan, Advocate for respondent.
2 (A/2015/483) [2] This is an appeal questioning validity and legality of the impugned judgment and award passed in consumer complaint no. 256/2013 decided on 30/01/2015 by learned Additional Consumer Disputes Redressal Forum, Thane District at Konkan Bhavan, Navi Mumbai, whereby appellant society was directed to repair open terrace, which is the part of the flat belonging to the complainant, on the ground that the complainant is entitled to get repairs of the terrace done from the Co-operative Housing society and the expenses for repairs required to be borne fully by the society. [3] The grievance of the appellant is that such direction against the society could not have been given by the learned Forum below for want of jurisdiction and, secondly, on account of the fact that the terrace concerned, is the part of the flat in occupation of the complainant. Therefore, according to the Advocate for the appellant, it was the responsibility of the flat occupant to keep her flat in proper and good repairs. The learned Advocate for the appellant also relied upon the Resolution and the Bye-laws of the society, whereby it is contended that, the society is only responsible for the structural repairs of the building and the same do not include maintenance and repairs of the terrace. However, it is not in dispute that the complaint was made by the shop keepers, who complained about the leakage of rain water from the terrace and order was passed for repair of the terrace. It is not in dispute that the shop keepers, who made complaint regarding leakage from the roof of the shops, are members of the appellant society and the roof of the shop is the same terrace, which is in occupation of the complainant, which is flat no. B-103. It is the building consisting of 13 floors. Our attention was invited to clause no. 160 in the Bye-laws, which is at Ex-'G 3 (A/2015/483) (collectively) at page no. 105 of the appeal proceeding. Clause no. 160 is reproduced for the sake of convenience, Clause No. 160 "The following repairs and maintenance of the property of the society shall be carried out by the society at its costs:
(a) (i) All internal roads, (ii) Compound walls, (iii)External water pipe lines, (iv) Water pumps, (v) Water storage tanks, (vi) Drainage lines, (vii) Septic tanks, (viii) Stair cases, (ix) Terrace and parapet walls, (x) Structural repairs of roofs of all flats, (xi) Stair-case lights, (xii) Street lights, (xiii) Outside walls of the building/ Buildings, (xiv) All leakages of water including leakages due to rain water and leakages due to external common pipe line and drainage line, (xv) Electric lines up to main switches in the flats (xvi) Lifts, (xvii) The damaged ceiling and plaster thereon in the top floor flats on account of the leakage of the rain water through the terrace.
(b) All the repairs not covered by the bye-law No. 160(a) shall be carried out by the members at their cost.
[4] Reading the aforesaid clause indicates that, society is responsible for the structural repairs of the roofs of all the flats and all leakages of water including leakage due to rain water and the damaged ceiling, plaster on account of the leakage of the rain water through the terrace in all the top floor flats. That being so, since the building is also consisted of shops and the shop keepers already made complaint regarding rain water leakage from the roof of the shops, which is the terrace of flat no. B-103 (Complainant's flat). Reading aforesaid Bye-laws, it appears prima-facie clear that, it is obligation on the part of the co-operative housing society, i.e. appellant society.
4 (A/2015/483) [5] Our view is also supported by the order passed against the appellant society dated 04/12/2013 by the said learned Forum in the matter of "Ms. Laxmi Venkatachalam V/S Arenja Towers Co-operative Housing Society, through its Secretary and Chairman" in complaint no. 203/2010. In that order also learned District Forum directed the appellant society to repair the terrace above shop no.5 & 6 to stop the leakage in the said shops. Appellant society was also directed to pay sum of Rs.1,00,000/- as compensation and cost. We are informed that the said order had attained finality. Moreover, clause no.160 of the Bye-law is aptly interpreted by the learned District Forum below.
[6] Further, our attention is attracted to the ruling of Hon'ble Court in the matter of "Humble Home Co-op. Hsg. Soc. Ltd. V/S Shri. Sham Balani & ors." In Writ Petition no. 7231/2002 decided on 28/06/2006. Hon'ble High Court had interpreted the Bye-laws. It had considered that the claim of ownership of the terrace above the roof of the flat no.11 in that case, was irrelevant and it was not required to be adjudicated. The society was required to pay for the repairs of parapet walls and the roof of the flat as well. Thus, in the facts and the circumstances of the case, we have no hesitation to observe that, when appellant society is charging maintenance for terrace as well, apart from the flat and further more when complaint was made by the shop owners or occupants regarding repairs of roof of their shops, which is in fact terrace in occupation of the flat occupant owner of the flat no. B-103, the society is liable to stop leakages of the rain water, as also to prevent structural damage, if any, by effecting necessary and good repairs under the supervision of Architect concerned. We make it clear that, if at all flat owner wants to have tiles of her choice for flooring of the terrace, the expenses for 5 (A/2015/483) the tiles be made by the flat owner concerned (i.e. the complainant). Rest of the repairs to prevent the rain water leakage, percolation, effecting plastering etc. shall be done in the supervision of the Architect of the society, so that rain water percolation shall be prevented in future. We therefore dismiss the appeal. No order as to the costs.
The amount of cost and compensation, as ordered by learned District Forum below shall be allowed to be withdrawn by the complainant. Copies of the order be furnished to the parties.
Pronounced on 14th December 2017 [ Justice A.P. Bhangale ] PRESIDENT [ D.R. Shirasao] JUDICIAL MEMBER kk