State Consumer Disputes Redressal Commission
Mr. Siraj Ahmed, vs Inland Elite Apartment Owners on 1 March, 2010
Appeal Nos. 233/2009 & 282/2009
Appeals filed on: 24-01-2009 &
29.01.2009
Appeals Disp.on: 01-03-2010
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE.
Appeal No.233/2009
Mr. Siraj Ahmed,
S/ 0 Late Mr. Yusuf,
Aged 47 years,
Residing at Mewa,
Opp. Bendoor Church,
Mangalore - 575 003. Opposite Party-l before the DF
.... Appellant
Inland Elite Apartment Owners
Association,
Canara Hostel Road,
Near Navbharat Circle,
Mangalore - 575003. Complainant before the DF
.... Respondent
Appeal No.282/2009
Inland Elite Apartrrient Owners
Association,
Canara Hostel Road,
Near Navbharat Circle,
Mangalore - 575003.
namely
P.K.Sivananda
S/o Late P.K.Raman,
204, Inland Elite,
Near Navabharath Circle,
Mangalore - 575 003. Complainant before the DF
.... Appellant
1.Mr.Siraj Ahatned, S/o Late Mr. Yusuf, Residing at Mewa, Opp. Bendoor Church, .
Mangalore - 575 003.
2. Amrith Nayak, 8/0 Late Krishna Murthy Nayak, 304, Arjun Apartments, Bhagavathinagar, Kodialguthu, Mangalore - 575 003.
3. Mr. Arun Shetty, 8/0 Subbayya Shetty, Residing at "8uvarna Deepa"
Near Akshaya Hall, National Bolore, Mangalore - 3. Opposite Parties before the DF .... Respondents Disputes Redressal Forum, Mangalore in complaint No.67/2007 to
2. Appeal No.233j2009 is by OP-1 and Appeal No.282j2009 is by the complainant.
promoter and constructor of the multi storied residential apartment known as 'Inland Elite'. OP-2 is the purchaser of the pent house in the said building from OP-l. OP-3 is the subsequent purchaser of the pent house from OP-2. At the time of execution of agreement for sale and sale deeds in favour of apartment holders, OP-1 did not furnish the approved .plans 0 btained from Mangalore City Corporation (MCC). OP-1 constructed a pent house on the terrace portion of the apartment building and has sold the same to OP-2. Subsequently OP-2 sold it to OP-3. The pent house is not provided in the building licence referred in the Deed of Declaration (DOD). The construction of the pent house is in violation of the building licence. The said construction is an encroachment of the common area namely the terrace portion of the apartment building covering an area of 1,631 Sq. feet. The area encroached are 1445 sq. feet from the declared terrace of 3749 sq. feet. 136 sq. feet is the net area added to the restricted terrace attached to the pent house. The association has no separate facility to hold meetings on account of the conversion of open terrace portion into a pent house and the complainants have deprived of the legitimate common area. OP-1 has shown 17 approved car parking slots on the ground floor 4 Appeal Nos. 233/2009 & 282/2009 in the plans annexed to the building licence. But OP-1 has sold 23 car parking slots, thereby violated the provisions of the building licence by encroaching 441 sq. feet in common area. OP-1 has not cleared all the outstanding issues with the MESCOM. On inspection of the apartment building on 04.05.2006 the MESCOM officials issued a notice .and same has not been complied by OP-1 and the notice highlights several serious defects in the electrical installations and OP-1 failed to rectify the same. Apartment building premises consist of a bore well provided for drinking water but the water of the bore well is contaminated and the same is not consumable. The damages in the interlock flooring have not been rectified despite repeated requests. OP-1 provided 2.5 KVApower to the apartments as against 4 KVA power. The complainant addressed a notice to OP-1 dated 22.02.2006 but OP-1 though replied it, not complied the claim made by the complainant. OP-1 obtained occupancy certificate dated 27.03.2007 from MCC which does not disclose the existence of pent house and 6 additional car parking slots thereby OP-1 has committed deficiency of service. Therefore, the complainant has filed complaint against the OP's.
4. The DF accepting the case of the complainant allowed the complaint in part and directed the OP-1 to remove the illegal construction put up on the terrace and also on the basement encroaching the common area of the association and restore the common area as per the approved plan of Mangalore City Corporation. The DF has further directed OP-l to comply the MESCOM inspection report dated 09.05.2006. The DF has further directed OP-l to pay compensation of Rs.25,000 / - and costs of litigation at Rs.l, 000 / -. The above order is under challenge by both parties in these appeals.
constructed the apartment called 'Inland Elite'. There is also no dispute that OP-l sold the apartment to various purchasers. The complainant IS the Apartment Owner's Association. The complainant has alleged that the OP-l has committed deficiency of service seven in number, as extracted by the DF in the impugned order. They read thus;
1. The Opposite Party No.1 has not constructed the building as per the building licence No.E2 BA 27/2003-04, KNPA 424/2003-04 dated 20.10.2003 and did not furnish the copy of the approved plans obtained from the Mangalore City Corporation at the time of execution of respective agreement for sale and deed of sale in favour of the apartment holders.
2. That the 1st Opposite Party has constructed a pent house on the terrace portion of the apartment building without being in the building licence referred in the Deed of declaration and thereby violated the building licence and encroached the common terrace area of 1631 sq. ft.
3. The .Opposite Party No.1 has put up 6 additional car parking slots over and above the approved 17 parking slots encroaching ground floor common area of 441 sq. ft.
4. Non compliance of MESCOM inspection report dated 9.~.2006 addressed to Opposite Party No.1.
5. The apartment building premises consists of a borewell provided as drinking water borewell however the water of the borewell is contaminated.
6. The damage in the interlock flooring has not been rectified despite repeated requests.
7. Providing 2.5 KW power to the apartments as against the 4 KW power promised in the agreement to sell.
cases of the parties that the association has been formed and registered and the complaint has been filed by P.K.Shivananda as vice-president of the association. Therefore, there is no merit in the contention of OP-l that the complainant is not properly represented.
8. Learned Counsel for the Appellant/OP-l has argued that the direction issued by the DF is in the form of mandatory injunction and under the C.P Act no such directions can be issued. On a perusal of the impugned order, it is seen that no doubt the DF has recorded a finding that OP-l has violated the approved plans issued by the MCC, but as rightly argued by the Learned Counsel for OP-l in the event of violation of building plan approved by the MCC, the Complainant can claim dam~ges for the deficiency of service caused to them. Under the C.P Act no directions can be issued for removal of the illegal construction put up by OP-l contrary to the approved plan. If OP-l has violated the approved plan and constructed the building illegally, it is for the MCC to take appropriate action for demolition of the encroachment or contravention by the builder. Therefore, the contention of the OP-l that the DF has not right in passing the impugner order is acceptable.
9. It is seen from the impugned order that the DF on perusal of the approved plan and the DOD has come to a definite conclusion that OP-1 in contravention of the approved plan has constructed the pent house and also extended the car parking area meant for the apartment owners. Therefore, the complainant which is the apartment owners association can bring it to the notice of the MCC and request for removal of the encroachment and construction put up by the OP-1 in contravention of the compensation for causing deficient of service to the apartment owners and it cannot seek direction to the DF for removal of such encroachment etc. Further from the impugned order, we find that the DF has not considered the quantum of compensation for which the complainants are entitled for contravention of the approved plan.
10. The complainant in Appeal No.282/2009 has challenged the order of the DF with regard to supply of electricity to the apartment owners. No doubt, the DF considering the material placed in the case has recorded a finding that OP-1 supplied lesser quantity of KVA power to the apartment owners on account of rules of the MESCOM. Further it is seen from the impugned order that OP-1 has intimated the said fact to the association by writing a letter dated 28.02.2006. If OP-1 is prevented from supply 4 KVA power to the apartment owners on account existing rules of MESCOM, the complainant cannot claim that it is a deficiency of
11. However from the perusal of the impugned order as noted above, even though the complainant has established that the OP-l has contravened the approved plan in construction of the building and encroached certain area, the complainant has not produced evidence before DF to show the actual compensation for which they are entitled. Under these circumstances, in our view, it is just and proper to provide an opportunity to the complainant to prove the compensation for which they are entitled from OP-l.
12. Admitted facts of the case is that, OP-l in contravention of the approved plan has constructed a pent house and he has sold it to OP-2. It is further admitted that OP-2 in turn sold the pent house to OP-3. However, as noted above there is no power under the C.P Act to the DF for a directions to demolish the pent house and give relief to the complainant. The remedy of the complainant as noted above is to move the MCC for removal of such illegal construction.
13. In VIew of the above facts, in our 0pInlOn, the matter requIres reconsideration by the DF and hence we pass the following:
Appeal No.233j2009 is allowed. The impugned order is set aside. The matter is remitted back to the DF for reconsideration accordingly the appeal is dismissed.
~ MEMBER