State Consumer Disputes Redressal Commission
Shri Shrinivas Srinidhi Chillara & ... vs Mrs.Usha Ganapathi & Others on 17 September, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.43/2009 Date of Filing:-12/01/2009 IN CONSUMER COMPLAINT NO.14/2008 Date of Order:-17/09/2009 DISTRICT CONSUMER FORUM, PUNE 1) Shri Shrinivas Srinidhi Chillara, 2) Smt.Swarajya Lakshmi Chillara, 3) Shri Sanjeev Jaitly, 4) Mrs.Shilpa Jaitly, (No.3 & 4 through their P.O.A. Shri R.C.Jaitly) 5) Shri Naresh Kothari, (for himself and as P.O.A. for No.6 & 7 ) 6) Shri Pradeep Thaksen Rothe, 7) Mrs.Ashwini Pradeep Rothe, 8) Shri Rajkumar Mahadeo Mulay, 9) Mrs.Chitra Rajkumar Mulay, All Residing at Building No.D, Garuda Heritage, Plot No.13, S.No.260/2/9, Baner, Pune-411 048 ... Appellants (Org. Complainants) -Versus 1) Mrs.Usha Ganapathi, 2) Shri Ananth Narayan Ganpathi, Both R/at Flat No.6, Building No.1, Guruprasad Housing Society, 24, Bund Garden Road, Pune-411 001 ... Respondent No.1 & 2 (Org. O.P.No.1 & 2 ) 3) Shri Madhusudan Jhunjhunwala, 4) Mrs.Deepti Jhunjhunwala, Both R/at Building No.D, Garuda Heritage, Plot No.13, S.No.260/2/9, Baner, Pune-411 048 ... Respondent No.3 & 4 (Org. Complainants) Corum :- Mr.P.N.Kashalkar,Honble Presiding Judicial Member, Mrs.S.P.Lale, Honble Member.
Present :- Mr.Shirish Tamhane, Adv. for the Appellants.
Mr.H.S.Aglave, Adv. for the Respondents.
O R A L O R D E R Per Mr.P.N.Kashalkar,Honble Presiding Judicial Member 1) This is
an appeal filed by the original complainants whose complaint was dismissed by the District Forum, Pune in Consumer Complaint No.14/2008 decided on 18/12/2008.
2) Facts to the extent material may be stated as under:-
3) All the complainants had purchased flats constructed by O.P.No.1 and 2 in the scheme known as Garud Heritage D Apartments situated on Plot No.13, Survey No.260/2/9 at Baner, Pune. Both the O.Ps were the owners of the said plot. They developed the said plot by obtaining permission from Local Authority. The complainants had obtained possession of the respective flats on various dates and they had no grievance about possession of the flats. Their grievances were limited to two points, the flat No.2 of the said scheme was in the name of O.P.No.2 and it has separate access and it was having garden area carved out from the common area of the plot. The O.Ps erected the wall and thereby flat No.2 is separated from rest of the flats. Premises admeasuring 139.35 Sq.Mts. was being used as garden exclusive by O.Ps. Their another grievance is that they are denied common enjoyment of the garden. Their second grievance is that O.Ps have erected a shed admeasuring about 63.09 Sq.Mts. which area is being used exclusively for parking the vehicles owned by O.Ps. They pleaded that complainants have been deprived of enjoying the common space covered by garden and parking shed. They prayed that illegal construction of partition wall, garden and the shed be removed.
4) The O.Ps filed written statement and denied the averments made by the complainants. O.Ps pleaded that the aforesaid space is reserved exclusively for use and enjoyment of occupier of flat No.2. It was not carved out from the common area of the plot. Hence, they pleaded that complaint should be dismissed with cost.
5) On the basis of affidavits and documents brought on the record by the parties, the Forum below was pleased to dismiss the complaint on the ground that flat No.2 was retained by Granters No.1 and same was so mentioned in the deed of declaration executed by the O.Ps. It was further observed by the Forum below that occupants of flat No.2 were allowed to use exclusive open space covering garden as per plan attached. Secondly, in the deed of declaration registered by O.Ps, it was clearly mentioned that space admeasuring about 63.09 Sq.Mts. was exclusively reserved for apartment No.2 for the purpose of garden and parking as per exhibits attached. The map was also attached to the deed of declaration and area of open space and parking space for flat No.2 was shown in different ink in the deed of declaration. Therefore, the Forum below observed that the said garden and parking space was exclusively reserved for use and occupation by O.P.No.2. (flat No.2) This was all mentioned in the deed of declaration and therefore the Forum below found that the main allegation made by the complainants was groundless. The Forum below found that byelaws provided the right of voting of 28% to the O.Ps and 72% to other flat purchasers for any amendment in the deed of declaration. The Forum below held that such a provision in the byelaw can not be said to be a deficiency in service. The Forum below also found that if any provision in the deed of declaration or apartment is inconsistent or arbitrary the complainants were at liberty to approach appropriate authority but on that ground itself it can not be held that O.Ps were guilty of deficiency in service and therefore it was pleased to dismiss the complaint. Hence, this appeal by the complainants.
6) We heard Mr.Shirish Tamhane, Adv. for the appellants and Mr.H.S.Aglave, Adv. for the respondents at the stage of admission.
7) We are finding that the respondents were not at all builders or developers by profession. They owned certain land at Baner, Pune. They decided to develop it and they sold under agreement some flats to the persons interested. While doing so they reserved or retained for themselves of a particular flat with some space for garden and some space for parking exclusively for themselves. This was to the knowledge of all the appellants. They had sought permission of the collector for construction of flats and for retaining exclusive rights over garden and parking shed area. After construction of the flats, the flats were given to the possession of appellants and deed of declaration was executed. So, they had done everything as permissible in law. The complainants can not question now that the portion covered by garden and parking space should be made available to them for common enjoyment. They have no right to claim common enjoyment in terms of deed of declaration executed by O.Ps. They had prayed for direction by the Forum to demolish the wall. Demolition of wall is not a province of District Forum. For getting demolition of the wall illegally constructed by O.Ps, the appellants should have approached to the civil court. In any view of the matter, we are finding that the order passed by the Forum below is just, proper and sustainable in law. There is no substance in appeal preferred by the appellants. Same is therefore liable to be rejected summarily. Hence, the following order.
O R D E R 1) Appeal stands
rejected summarily at the stage of admission itself.
2) No order as to costs.
3) Copies of this order be sent to the parties free of cost.
( Mrs.S.P.Lale ) (P.N.Kashalkar ) Member Presiding Judicial Member Malve/-