State Consumer Disputes Redressal Commission
Major Sanatkumar Vishwanath Sathe ... vs Palm Grove Beach Hotels Pvt Ltd on 26 June, 2013
A-1038-2012
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. FA/12/1038
(Arisen out
of Order Dated 31/08/2012 in Case No. 261/2011 of District Pune)
1. MAJOR SANATKUMAR VISHWANATH SATHE (RETD)
206 CARNATION C WING, RAHEJA GARDENS,
WANAWADI PUNE 411040
MAHARASHTRA
...........Appellant(s)
Versus
1. PALM GROVE BEACH HOTELS PVT LTD
CONSTRUCTION HOUSE B 2ND FLOOR LINKING ROAD OPP
KHAR TELEPHONE EXCHANGE, KHAR WEST MUMBAI 400052
MAHARASHTRA
...........Respondent(s)
BEFORE:
HON'BLE MR. Dhanraj Khamatkar PRESIDING MEMBER
HON'BLE MR. Narendra Kawde MEMBER
PRESENT:
Appellant in person.
Mr.S.B. Prabhavalkar, Advocate for the
Respondent.
ORDER
Per Mr.Dhanraj Khamatkar Honble Presiding Member:
1. This appeal takes an exception to an order dated 31.08.2012 passed by the District Consumer Dispute Redressal Forum, Pune in Consumer Complaint No.261/2011.
2. The facts leading to this appeal can be summarized as under:
The Appellant/Complainant had entered into an agreement with the Opponent for purchasing Flat No.206 in Carnation C Wing Raheja Garden, Wanawadi, Pune on 26.02.2009 and the said agreement was registered with the Sub-Registrar on 9th March, 2009. It is the allegation of the Appellant/Complainant that before entering into an agreement there was a separate approach road for C Wing and adjacent to it there was a sales office of the builder. The Opponent in the month of October/November, 2009 demolished the sales office and started construction of the building and the Opponent has made a construction on the existing road meant for the C Wing of the Carnation building. The new Construction as well as the Tennis Court subsequently constructed by the builder was not there in the plan attached with the agreement executed with the Appellant/Complainant. The Appellant/Complainant further alleged that for making new construction and tennis court on the existing road the Opponent had not taken permission of the flat holders. Because of the new construction of the tennis court there can be a problem for entering the fire fighting vehicle. Appellant/Complainant further stated that he has sent letters to the Opponent, however, the Opponent has not taken any cognizance. Hence, the Appellant/Complainant has filed the consumer complaint praying that the Opponent be directed to provide direct road to Carnation C Wing as per the commitment given by him in the registered agreement within a period of one month with costs.
3. The Respondent/Opponent contested the complaint by filing written version contending that the reliefs sought by the Complainant in the complaint are beyond the jurisdiction and power of the District Forum. The complaint is barred by limitation. The complainant is guilty of suppressing the relevant facts. The internal road over which the Complainant is wrongly seeking to have access was not access road for the building Carnation and was never available to the Complainant. Complainant is seeking access over an internal road alleged to be located to the East of the building Carnation C Wing. Said building has been provided with one access with entrance gate/openings on the south west corner of the sub-plot attached to said building Carnation being A-Wing, B-Wing and C-wing that are situated. Said approach road is shown as hatched burnt sienna on the sketch plan. Said position has been acknowledged by the Complainant himself in his letter dated 7th April, 2010 addressed to the Respondent/Opponent wherein he had requested that a single society be formed for all the three wings of the said building Carnation. The building Carnation, Wings A, B and C is one building and was envisaged to be constructed in phased manner on sub-plot 1 of Survey no.74A(pt) and 74B. The building plans with regard to the building Carnation has been approved by Pune Municipal Corporation. The occupation certificate in respect of Carnation building Wing C was issued by Pune Municipal Corporation on 10.10.2008 on the basis of access road shown on the copy of the sanctioned plan. In the Agreement itself which is executed with the Appellant/Complainant, it is stated that internal road subject to variation shaded burnt sienna.
In the Agreement itself it is made clear that the layout at present prepared by the builders is a tentative layout showing the different sub-plots as well as the internal/feeder roads; it being clarified that this entire layout or any part thereof is tentative and is liable to be changed or revised as per the requirements of the builders and/or the Pune Municipal Corporation. The builders reserve the right to alter the layout/make variations in the entire layout or in part thereof. The Opponent, therefore, prayed that there is no deficiency in service on their part and hence, complaint of the Appellant/Complainant be dismissed.
4. The District Forum after going through the complaint filed by the Appellant/original Complainant, written version filed by the Respondent/Opponent, affidavit in evidence on affidavit filed by the Appellant/Complainant and Respondent/Opponent and the pleadings of the parties, came to the conclusion that there is no deficiency in service on the part of the Respondent/Opponent and dismissed the complaint by order dated 31st August, 2012. Being aggrieved by the said order passed by the District Forum, the original Complainant has preferred this appeal.
5. We heard Appellant in person and Advocate Mr.Prabhavalkar, for the Respondent.
Admittedly, the Appellant had entered into an agreement with the Respondent/Opponent for purchasing a flat no.206 in Carnation C Wing Raheja Garden, Wanawadi, Pune by an agreement dated 26.02.2009. The agreement is duly registered on 1st March, 2009.
The main grievance of the Appellant is that at the time of registering the agreement the Respondent/Opponent had attached a part plan with the agreement wherein there is existing road, approach road to C Wing. However, the Respondent/Opponent has constructed a building and Tennis Court and with a result the approach road for Carnation C Wing is not in existence. The Respondent/Opponent has not taken permission of the flat purchasers.
It is also contended by the Appellant/Complainant that because of this new construction, in the situation of emergency the fire fighting vehicle cannot reach to the C Wing of the Carnation Building. The Respondent/Opponent has produced on record a building plan, N.O.C. issued by the Fire Department of the Corporation and occupation certificate. From the building plan it is clear that there is no separate access road for the C Wing. The access road on the basis of which the plan of the building Carnation is approved it is shown in brown colour on the sanctioned plan. The occupation certificate for the C Wing is on record and it is issued on 10.10.2008 on the basis of the access road shown on the copy of the sanctioned plan, Clause Nos.42 and 46 of the agreement gives the right to the Respondent/Opponent for making changes in the layout subject to approval of the Urban Local Authorities i.e. Pune Municipal Corporation. Pune Municipal Corporation has issued occupation certificate in respect of three wings of Carnation Building.
6. The Appellant/Complainant is a retired Major from the Army. He has vehemently argued his case, however, we are unable to convince with the arguments advanced by the Appellant/Complainant. While passing the order the District Forum has judiciously considered the facts of the case and passed the order. Unfortunately, the prayer of the Complainant is not in consonance with the reliefs granted under the Consumer Protection Act. If the Appellant has apprehension regarding the approach road provided by the Respondent/Opponent for the building from the fire fighting point of view, he is at liberty to approach to the authorities of urban local body i.e. Pune Municipal Corporation. We do not find any deficiency in service on the part of the Respondent/Opponent. There is no merit or substance in the appeal filed by the Appellant. We hold accordingly and pass the following order:
O R D E R Appeal is dismissed.
Parties to bear their own costs.
Inform the parties accordingly.
Pronounced on 26th June, 2013.
[HON'BLE MR.
Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER ep