State Consumer Disputes Redressal Commission
M/S. Magar Girme & Gaikwad Associates ... vs Palm Groves Cooperative Housing ... on 2 April, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.A/07/421
(Arisen out of Order Dated 16/03/2007 in
Consumer Complaint No.35 of 2005 of District Forum, Pune)
I. M/s. Magar Girme
& Gaikwad Associates,
Through its partner:
Shri Jayprakash
Jagannath Girme,
(a) Shri Satish A. Magar,
(b) Shri Gaikwad
Having its office
at:-
Palm Groves, Plot No.49,
B. T. Kawade Road,
Ghorpadi, Pune 411
036.
II. 1.
Smt. Krishnabai Sopanrao Watare,
2. Smt. Kalavati Murlidhar Khaladkar,
3. Smt. Shantabai Kisan Shinde,
4. Smt. Chandraprabha
Dattatraya Dhawde,
5. Smt. Kamal Narayan Shinde,
6. Smt. Suman Haresh Shinde
7. Shri Nitin G. Watare,
8. Shri Milind G. Watare,
9. Smt. Manisha T. Watare,
10. Shri Tukaram M. Watare,
For self and as Karta
of HUF
11. Shri Gulabrao M.
Watare,
For self and as Karta
of HUF
12. Smt. Radhika A. Kamthe,
13. Shri Santosh Babanrao Zende,
14. Shri Babanrao
Sopanrao Zende
For self and as Karta
of HUF
15. Smt. Vimal Anantrao Watare,
16. Shri Anil Anantrao Watare,
17. Shri Dhananjay Anantrao Watare
18. Smt. Sharada Namdeo Ghule,
19. Shri Shivaji
Narayan Watare
For Self and as Karta
of HUF
20. Shri Sunil Shivaji Watare,
21. Shri Vijay Shivaji Watare,
22. Shri Manish
Shivaji Watare
For self and as Karta
of HUF
23. Shri Babanrao
Narayan Watare,
For self and as Karta
of HUF
24. Shri Rajendra Babanrao Watare,
25. Smt. Kantabai
Murlidhar Watare,
For self and as
natural and legal
Guardian of minor
children No.26, 27 & 28
26. Kum. Shital Murlidhar Watare,
27. Kum. Smita Murlidhar Watare,
28. Kum. Archana Murlidhar Watare,
29. Shri Nivrutti
Ranu Galande,
For self and as Karta
of HUF
30. Shri Balasaheb
Tatyaba Galande,
For Self and as Karta
of HUF
31. Shri Vilas
Tatyaba Galande,
For self and as Karta
of HUF
32. Smt. Vaishali
Vijay Galande
For self and legal
guardian of
Minor Child No.1
Shri Rohan Vijay
Galande (Minor)
33. Smt. Jijabai
Tatyaba Galande
34. Smt. Pravatibai
Sudam Nimhan
35. Shri Vithoba Ganpat Wathare,
36. Smt. Lata
Dattatraya Wathare,
For self and natural
& legal guardian
Of minor children
Nos.1 to 3
Kum. Sarika
Dattatraya Wathare,
Sachin Dattatraya
Wathare,
37. Shri Dnyaneshwar
Vithoba Wathare,
For self and Karta of
HUF
38. Shri Chandrakant
Vithoba Wathare,
For self and Karta of
HUF
39. Shri Ramdas Genuji Kawade
40. Smt. Ujwala Ramdas Kawade,
41. Smt. Meenakshi Daulatrao Gulve,
42. Kum. Beena Ramdas
Kawade (Minor)
43. Shri Abhijit Ramdas Kawade,
44. Shri Laxman
Genuji Kawade,
For self and as
natural guardian of Minor children No.46, 47, 48
45. Smt. Urmila Laxman Kawade
46. Kumar Yuvraj Laxman Kawade
47. Kumar Yogesh Laxman Kawade
48. Kum. Yogita Laxman Kawade
49. Smt. Draupada Eknath Kale
50. Shri Vasantrao Genuji Kawade
51. Smt. Mangala Vasantrao Kawade
52. Kum. Jayashri Vasantrao Kawade,
53. Shri Ganesh Vasantrao Kawade,
54. Shri Manish Vasantrao Kawade,
55. Shri Baburao Genuji Kawade,
56. Smt. Muktabai Baburao Kawade
57. Shri Pratap
Baburao Kawade,
For self natural
guardian of minor
Children of 58.
58. Kum. Suvarna Pratap Kawade,
59. Kum. Vanraj Pratap Kawade
60. Kumar Viraj Pratap Kawade
61. Smt. Shobha Pratap Kawade,
62. Shri Ashok
Baburao Kawade
For self and natural
legal guardian
Of minor children of
63, 64
63. Kum. Gauri Ashok Kawade
64. Kumar Gaurav Ashok Kawade
65. Smt. Sangeeta Ashok Kawade
66. Shri Deepak
Baburao Kawade
For natural &
legal guardian of
Minor child No.67
67. Kumar Kiran Deepak Kawade
68. Smt. Jyoti Deepak Kawade
69. Smt. Mandakini Shravan Shinde
70. Shri Tukaram Genuji Kawade
71. Smt. Pushpatai Tukaram Kawade
72. Smt. Chetan Tukaram Kawade
73. Shri Dnyaneshwar Tukaram Kawade
74. Shri Mauli Khandu Watare
75. Shri Ravindra Hiraman Watare
76. Shri Hiraman
Haribhau Watare
For self and as Karta
of HUF
77. Shri
Khandu Hiraman Watare
78. Shri Mahadeo Shankar Watare
79. Smt. Phulabai Mahadeo Watare
80. Smt. Kusum Suresh Nigade
81. Shri Vijay Nivrutti Galande
82. Shri Shamrao
Mahadeo Watare
For self and karta of
HUF
83. Shri Ramdas
Mahadeo Watare
For self and Karta of
HUF
84. Shri Ravindra
Mahadeo Watare,
For self and karta of
HUF
85. Shri Ishwar
Mahadeo Watare
86. Shri Vithoba
Ganpat Watare
For self and as Karta
of HUF
87. Smt. Lata
Dattatraya Watare
For self as natural
guardian and legal
Guardian of minor
children of
(i) (ii) (iii)
88. Kum. Sarika Dattatraya
Watare,
89. Shri Dnyaneshwar
Vithoba Watare
For self and as Karta
of HUF
90. Shri Dnyaneshwar
Khanduji Kawade
91. Smt. Yamunabai
Babanrao Kawade
92. Shri Balasaheb Babanrao Kawade
93. Shri Dattatraya Babanrao Kawade
94. Smt.Lata Maruti Khule
95. Smt. Mangala Vikas Ghule,
Through their
power-of-attorney-
Shri Jayprakash
Jagannath Girme,
Site Office:- Palm
Groves,
Plot No.49, B. T. Kawade Road,
Ghorpadi, Pune 411
036.
...........Appellant(s)
Versus
1.Palm Groves Cooperative Housing Society Ltd., Through its Chairman Shri K. V. Sonalkar and Secretary Mrs. Crasto Having its office at:-
Plot No.49, B. T. Kawade Road, Ghorpadi, Pune 411
030.
2. Brig. Vijaykant K. Paradhe,
3. Dr. Padur Balaji Raman,
4. Lt. Col. Hari Narayan Mahanto
5. Mr. Girish Patel,
6. Mr. Vasant A. Yemal
7. Dr. Ashutosh V. Sule
8. Mr. Raghunath M. Dole All above 2 to 8 R/at:-
Palm Groves, B. T. Kawade Road, Ghorpadi, Pune ...........Respondent(s) First Appeal No.A/07/423 (Arisen out of Order Dated 16/03/2007 in Consumer Complaint No.35 of 2005 of District Forum, Pune)
1. Brig. Vijaykant K. Paradhe
2. Dr. Padur Balaji Raman
3. Mr. Girish Patel
4. Mr. Vasant A. Yemal
5. Dr. Ashutosh V. Sule
6. Mr. Raghunath M. Dole All above 1 to 6 R/at:-
Palm Groves, B. T. Kawade Road, Ghorpadi, Pune ...........Appellant(s) Versus
1. Palm Groves Cooperative Housing Society Ltd., Through its Chairman Shri K. V. Sonalkar and Secretary Mrs. Crasto Having its office at:-
Plot No.49, B. T. Kawade Road, Ghorpadi, Pune 411 030
2. M/s. Magar Girme & Gaikwad Associates, Through its partner:
(a) Shri Jayprakash Jagannath Girme,
(b) Shri Satish D. Magar,
(b) Shri Gaikwad Having its office at:-
Palm Groves, Plot No.49, B. T. Kawade Road, Ghorpadi, Pune 411
036.
3. 1. Smt. Krishnabai Sopanrao Watare,
2. Smt. Kalavati Murlidhar Khaladkar,
3. Smt. Shantabai Kisan Shinde,
4. Smt. Chandraprabha Dattatraya Dhawde,
5. Smt. Kamal Narayan Shinde,
6. Smt. Suman Haresh Shinde
7. Shri Nitin G. Watare,
8. Shri Milind G. Watare,
9. Smt. Manisha T. Watare,
10. Shri Tukaram M. Watare, For self and as Karta of HUF
11. Shri Gulabrao M. Watare, For self and as Karta of HUF
12. Smt. Radhika A. Kamthe,
13. Shri Santosh Babanrao Zende,
14. Shri Babanrao Sopanrao Zende For self and as Karta of HUF
15. Smt. Vimal Anantrao Watare,
16. Shri Anil Anantrao Watare,
17. Shri Dhananjay Anantrao Watare
18. Smt. Sharada Namdeo Ghule,
19. Shri Shivaji Narayan Watare For Self and as Karta of HUF
20. Shri Sunil Shivaji Watare,
21. Shri Vijay Shivaji Watare,
22. Shri Manish Shivaji Watare For self and as Karta of HUF
23. Shri Babanrao Narayan Watare, For self and as Karta of HUF
24. Shri Rajendra Babanrao Watare,
25. Smt. Kantabai Murlidhar Watare, For self and as natural and legal Guardian of minor children No.26, 27 & 28
26. Kum. Shital Murlidhar Watare,
27. Kum. Smita Murlidhar Watare,
28. Kum. Archana Murlidhar Watare,
29. Shri Nivrutti Ranu Galande, For self and as Karta of HUF
30. Shri Balasaheb Tatyaba Galande, For Self and as Karta of HUF
31. Shri Vilas Tatyaba Galande, For self and as Karta of HUF
32. Smt. Vaishali Vijay Galande For self and legal guardian of Minor Child No.1 Shri Rohan Vijay Galande (Minor)
33. Smt. Jijabai Tatyaba Galande
34. Smt. Pravatibai Sudam Nimhan
35. Shri Vithoba Ganpat Wathare,
36. Smt. Lata Dattatraya Wathare, For self and natural & legal guardian Of minor children Nos.1 to 3 Kum. Sarika Dattatraya Wathare, Sachin Dattatraya Wathare,
37. Shri Dnyaneshwar Vithoba Wathare, For self and Karta of HUF
38. Shri Chandrakant Vithoba Wathare, For self and Karta of HUF
39. Shri Ramdas Genuji Kawade
40. Smt. Ujwala Ramdas Kawade,
41. Smt. Meenakshi Daulatrao Gulve,
42. Kum. Beena Ramdas Kawade (Minor)
43. Shri Abhijit Ramdas Kawade,
44. Shri Laxman Genuji Kawade, For self and as natural guardian of Minor children No.46, 47, 48
45. Smt. Urmila Laxman Kawade
46. Kumar Yuvraj Laxman Kawade
47. Kumar Yogesh Laxman Kawade
48. Kum. Yogita Laxman Kawade
49. Smt. Draupada Eknath Kale
50. Shri Vasantrao Genuji Kawade
51. Smt. Mangala Vasantrao Kawade
52. Kum. Jayashri Vasantrao Kawade,
53. Shri Ganesh Vasantrao Kawade,
54. Shri Manish Vasantrao Kawade,
55. Shri Baburao Genuji Kawade,
56. Smt. Muktabai Baburao Kawade
57. Shri Pratap Baburao Kawade, For self natural guardian of minor Children of 58.
58. Kum. Suvarna Pratap Kawade,
59. Kum. Vanraj Pratap Kawade
60. Kumar Viraj Pratap Kawade
61. Smt. Shobha Pratap Kawade,
62. Shri Ashok Baburao Kawade For self and natural legal guardian Of minor children of 63, 64
63. Kum. Gauri Ashok Kawade
64. Kumar Gaurav Ashok Kawade
65. Smt. Sangeeta Ashok Kawade
66. Shri Deepak Baburao Kawade For natural & legal guardian of Minor child No.67
67. Kumar Kiran Deepak Kawade
68. Smt. Jyoti Deepak Kawade
69. Smt. Mandakini Shravan Shinde
70. Shri Tukaram Genuji Kawade
71. Smt. Pushpatai Tukaram Kawade
72. Smt. Chetan Tukaram Kawade
73. Shri Dnyaneshwar Tukaram Kawade
74. Shri Mauli Khandu Watare
75. Shri Ravindra Hiraman Watare
76. Shri Hiraman Haribhau Watare For self and as Karta of HUF
77.
Shri Khandu Hiraman Watare
78. Shri Mahadeo Shankar Watare
79. Smt. Phulabai Mahadeo Watare
80. Smt. Kusum Suresh Nigade
81. Shri Vijay Nivrutti Galande
82. Shri Shamrao Mahadeo Watare For self and karta of HUF
83. Shri Ramdas Mahadeo Watare For self and Karta of HUF
84. Shri Ravindra Mahadeo Watare, For self and karta of HUF
85. Shri Ishwar Mahadeo Watare
86. Shri Vithoba Ganpat Watare For self and as Karta of HUF
87. Smt. Lata Dattatraya Watare For self as natural guardian and legal Guardian of minor children of
(i) (ii) (iii)
88. Kum. Sarika Dattatraya Watare,
89. Shri Dnyaneshwar Vithoba Watare For self and as Karta of HUF
90. Shri Dnyaneshwar Khanduji Kawade
91. Smt. Yamunabai Babanrao Kawade
92. Shri Balasaheb Babanrao Kawade
93. Shri Dattatraya Babanrao Kawade
94. Smt.Lata Maruti Khule
95. Smt. Mangala Vikas Ghule, Through their power-of-attorney-
Shri Jayprakash Jagannath Girme, Site Office:- Palm Groves, Plot No.49, B. T. Kawade Road, Ghorpadi, Pune 411
036. ...........Respondent(s) BEFORE:
HON'ABLE MR. JUSTICE R. C. CHAVAN, PRESIDENT HONABLE MR. DHANRAJ KHAMATKAR, MEMBER PRESENT:
Adv. Anand V. Patwardhan for the Appellants Adv. Smt. Madhuri Vaidya for the Respondent No.1 Common order in First Appeal No.421 of 2007 + First Appeal No.423 of 2007 Per Honble Mr. Dhanraj Khamatkar, Member Appeals bearing Nos.421 of 2007 and 423 of 2007, which are filed by the original Opponents, take an exception to an order dated 16/03/2007 passed by District Consumer Disputes Redressal Forum, Pune in Consumer Complaint No.35 of 2005. Since both these appeals involve same parties, identical facts and common question of law, both these appeals are clubbed together and are decided by this common order.
[2] Facts leading to these appeals can be summarized as under:-
Original Complainant Palm Groves Cooperative Housing Society Ltd., has filed a consumer complaint inter-alia contending that the members of the Society are the flat-purchasers in the scheme known as Palm Groves Scheme of Apartments, Duplex Houses and Bungalows. Said scheme was floated by the original Opponent No.I, whereas the original Opponent No.II are the original land owners and the Opponents Nos.96 to 102 are the bungalow-owners in the scheme.
It is contended by the Complainant Society that its members have purchased the flats from the Opponent No.I vide an agreement dated 28/06/1999 and they were put in possession of their respective flats and they subsequently formed the society styled as Palm Groves Cooperative Housing Society Ltd.. It is the case of the Complainant Society that the agreement enumerates list of amenities and facilities, particulars of which can be summarized as follows garden, swimming pool, club-house, common terrace, basket ball court, tennis court, centralized security, intercom facility etc. The Complainants have alleged various defects in the construction and deficiency in service in not providing amenities. They further contended that the Complainants have removed the defects or provided facilities themselves for which they incurred expenses and suffered inconvenience. It is also alleged that they have not been furnished accounts and the Opponent No.I has not executed the Deed of Conveyance in favour of the Society as per the agreement. Alleging deficiency in service on the part of the Opponent No.I, the Complainants filed a consumer complaint with a prayer that the Opponent No.I may be directed to execute the Deed of Conveyance, hand-over papers regarding formation of society, lift plans, drainage and plumbing plans etc. and claimed compensation to the tune of `19,10,000/- for the restoration of facilities and amenities. Complainants also sought injunction as against the Opponent No.I and other Opponents.
[3] Opponents Nos.I & II resisted the complaint as well as application filed by the Complainants for grant of interim relief by filing their written version inter-alia contending that the complaint is not tenable before the Consumer Forum for want of jurisdiction. It was also contended that there is no privity of contract between the Complainants and the Opponents Nos.I & II. They further contended that the construction was carried out as per sanctioned layout plan and they have right, title and interest in the common amenities and facilities. Opponents also contended that the Complainants have not approached the District Forum with clean hands and the Complainants have suppressed material facts. Opponents Nos.I & II further contended that the Palm Groves Scheme is a composite scheme of apartments and bungalows and the plot-owners and all other unit holders have right to use common areas, facilities and open spaces.
[4] During the pendency of consumer complaint, Opponents Nos.96 of 102 had applied to the District Forum to implead them as the necessary parties and they are the owners of the bungalows and plots in the said scheme. They also had staked claim on common amenities and facilities. They filed their affidavit and a copy of a civil suit bearing Regular Civil Suit (RCS) No.472 of 2005 filed before the Civil Judge, Junior Division, Pune. They also filed certain documents as per lists dated 22/2/2001, 25/10/2001 and 05/09/2002. In these documents common facilities have been shown to be provided to the third party viz. Opponents Nos.96 to
102. District Forum impleaded them as necessary parties in the array of Opponents as Opponents Nos.96 of 102 and accordingly, the complaint was amended.
[5] Complainants filed rejoinder challenging the claims of the Opponents Nos.96 of 102 contending that these Opponents had not paid any consideration for common amenities and facilities and their agreements are subsequent to the agreements executed with the members of the Complainant Society. It is further contended that the Complainants have exclusive right over the common amenities and facilities and this right cannot be divested from them by subsequent agreements.
[6] During the pendency of the complaint filed an interim application dated 26/12/2006 seeking grant of temporary injunction against the Opponents Nos.96 to
102. Together with the said application, the Complainants filed certain documents which reveal that possession of the swimming pool and club house were handed over to the Opponents Nos.96 of 102. Complainants also filed a copy of FIR dated 24/12/2007 and statement of the Complainant filed in civil suit bearing RCS No.472 of 2005. Opponents Nos.96 of 102 did not file their written version in the complaint proceeding.
[7] The District Forum, after going through the complaint, written version filed by the Opponents Nos.I and II, rejoinder filed by the Complainant, evidence filed by the parties on affidavits and pleadings of respective advocates, came to a conclusion that there is deficiency in service on the part of the Opponent No.I and directed the Opponent No.I to execute the Deed of Conveyance in favour of the Complainant Society in terms of agreement dated 28/06/1996. Aggrieved by the said order, original Opponents Nos.I & II have filed these two appeals. Opponents Nos.1 to 95 filed an appeal bearing No.421 of 2007, whereas the Opponents Nos.96 of 102 filed an appeal bearing No.423 of 2007.
[8] Upon hearing the parties concerned, this Commission granted partial and conditional interim stay to execution of the order dated 16/03/2007 only with regard to quantum of compensation and costs of proceeding subject to deposit of an amount of `30,000/- within a period of four weeks with the District Forum. Again on 26/09/2007, after hearing the parties, this Commission made the interim stay operative and directed that all the owners of the flat, row-houses and bungalows to pay an amount of `500/-
per month for enjoyment of common amenities and facilities. Parties were directed to deposit monthly maintenance charges with the District Forum and further all interested parties were directed to submit bills of maintenance charges on or before 10th day of each month to the Registrar of the District Forum and the Registrar of the District Forum was directed to defray the expenses and maintain the accounts.
[9] We have heard learned Adv. Anand V. Patwardhan on behalf of the Appellants and learned Adv. Smt. Madhuri Vaidya on behalf of the Respondent No.1. Both the learned counsels have also filed their respective written notes of arguments. With the help of both the learned counsels, we have carefully perused the voluminous material placed on record.
[10] Admittedly, scope of both these appeals is limited to the extent of award of compensation, costs and execution of the conveyance deed.
[11] Admittedly, the original Opponent No.I viz. the Appellant in Appeal No.421 of 2007 is the builder & developer and the scheme floated is a composite scheme of apartments, duplex houses and bungalows and the scheme was completed in two phases. In the first phase of the scheme, the part and parcel of the land which got N.A. permission and the building permission of the municipal corporation was constructed. Same is reflected in the agreements executed with all the flat-holders, duplex-holders and the bungalow-holders. In the first phase, building Listonia and building Estonia, totally having 138 flats had been constructed. In the said plan, other structures are also shown. In the brochure prepared for the scheme, it is stated that it is a composite scheme. Plans for first phase of the construction were approved and sanctioned on 23/05/1997 and accordingly, the construction activity started and the possession of the flats were handed over till the year 2001. Agreements specify the amenities and additional amenities provided under the scheme. For the second phase, the local authority accorded its sanction to the plan on 14/08/2001. Respondent No.1/original Complainant Society was registered on 19/05/2003 and the affairs were handed over to the provisional committee on 20/07/2003. On perusal of the sanctioned plans, it is seen that the open spaces and common amenities areas have been allotted as per Building & Control Rules. From the records available, it is seen that in the extra-ordinary general meeting of the Respondent No.1/original Complainant Society, the bungalow-owners had requested the Respondent No.1 for admitting them as members of the Society. It is also seen that Annual General Meeting of the Respondent No.1 was called on 14/08/2004 wherein unanimous resolution was passed that bungalow/plot owners are not in a position to seek membership of the Respondent No.1 Society unlike the member who are the owners of the flat in the land belonging to the Society. Reason assigned was as the bungalow/plot owners do not fall under this category, they cannot apply for membership or associate membership. It is also seen that the Appellant/original Opponent No.I had written to the Respondent No.1/original Complainant Society requesting them to make everyone its member. However, said request was turned down. As the other members of the common scheme have not been made members, the dispute started. Clause No.(01) of the agreement reads as under:-
Promoter shall construct the said building/s consisting of ground and upper floors on the said property in accordance with the plans, designs, specifications approved by the concerned local authority and which have been seen and approved by the purchaser/s with only such variations and modifications as the promoters may consider necessary or as may be required by the concerned local authority/the Government to be made in them or any of them. Provided that the Promoters shall have to obtain prior consent in writing of the purchaser/s in respect of such variations or modifications which may adversely effect the unit/s of the purchaser/s.
[12] In the said scheme, the plans are duly approved by the local authorities and at the time of construction, the Respondent No.1/original Complainant Society had not raised any objection. Appellant/original Opponent No.I has executed the first phase and second phase and as per Development Control Rules, provided open spaces and common amenities. So present dispute is not in respect of not providing adequate common amenities or adequate open spaces as per Development Control Rules but, the present controversy is regarding to whom the common amenities and facilities and open spaces and land in building is to be handed over.
[13] In the agreement, it is stated that price of the tenement is inclusive of the proportionate price of the common areas & facilities. Respondent No.1 Society had not raised any objection when the construction activity was going on. No doubt, in a composite scheme there cannot be separate ear-marked spaces. Dispute started with the denial of the membership of the Respondent No.1 Society.
[14] After denying the membership of the Respondent No.1 Society, the members who have been denied membership had approached the Civil Court by filing a regular civil suit bearing No.472 of 2005 staking claim in the common amenities an obtained an interim injunction against the Opponent No.I herein restraining the Opponent No.I from preventing the Opponents Nos.96 to 102 from enjoying the common amenities.
[15] Original Opponents Nos.96 to 102 had filed an appeal bearing No.422 of 2007 against the impugned order dated 16/03/2007 passed by the District Forum. However, said appeal was dismissed by this Commission.
[16] District Forum, after going through the complaint and evidence filed by the parties on affidavits, allowed the complaint filed by the Respondent No.1/original Complainant Society and directed the original Opponent No.I to execute the Deed of Conveyance in favour of the Society and to hand-over relevant papers regarding formation of society, lift plans, drainage and plumbing etc. and to pay compensation of `5,00,000/- to the Society. Original Opponents Nos.96 to 102 were also directed to contribute an amount of `2,00,000/- and to pay the same to the original Complainant Society by way of compensation. Present appeals are admitted only with regard to quantum of compensation awarded and costs. In the order itself, learned District Forum had made it clear that all the unit holders have an equal right of enjoyment in common areas and facilities on payment of regular subscription.
[17] While awarding compensation, the District Forum itself observed that the Respondent No.1/original Complainant Society has not adduced any concrete evidence in support of their claim of compensation and the compensation of `5,00,000/- was granted observing the facts and circumstances and upon taking a overall view of the grievances.
[18] Appellant/Builder & Developer was always ready & willing to execute the conveyance.
Dispute was regarding how to execute the conveyance in the name of the Respondent No.1/original Complainant Society when other owners of the plot, duplex houses and bungalows were not members of the Complainant Society. Further, as observed by the District Forum, the Respondent No.1/original Complainant Society had not adduced any concrete evidence in support of their claim of compensation. Here, it is pertinent to note that the Respondent No.1/original Complainant Society is a creature of law and it is an artificial legal person and it is not a living human being and as such, there arise no question of causing any mental agony or physical harassment to such juristic entity. Thus, award of compensation in favour of the Respondent No.1/original Complainant Society was unwarranted and, therefore, operative part of the impugned order to that effect needs to be set aside.
[19] As regards compensation directed to be paid by the original Opponents Nos.96 to 102 to the original Complainant Society is concerned, it is to be noted that since the appeal filed by these Opponents was dismissed by this Commission, that part of the impugned order has achieved finality.
We hold accordingly and pass the following order:-
ORDER Appeals bearing Nos.421 of 2007 and 423 of 2007 are partly allowed.
Impugned order dated 16th March, 2007 passed by the District Consumer Disputes Redressal Forum, Pune in Consumer Complaint No.35 of 2005 is partly-modified. Order passed by the District Forum, Pune directing the original Opponents Nos.I and II to pay compensation of `5,00,000/- to the original Complainant Society is hereby set aside. Rest of the order stands confirmed.
Parties shall bear their own costs.
[HON'ABLE MR. JUSTICE R. C. CHAVAN] PRESIDENT [HONABLE MR. DHANRAJ KHAMATKAR] MEMBER KVS