State Consumer Disputes Redressal Commission
R.Yashodara Rao S/O R.Surya Nagendra ... vs Satya Prakash Arcade Apartments on 26 May, 2010
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT
HYDERABAD.
F.A.No.
926 OF 2007 AGAINST C.C.NO. 4 OF 2007
DISTRICT CONSUMER FORUM-II TIRUPATHI
Between
R.Yashodara Rao S/o R.Surya Nagendra Rao
Builder/Chairman M/s Viking Realtors Pvt. Ltd.,
Flat No.402, Plot No.37, Royal Plaza, Janakpuri Colony
Karkhana P.O., Secunderabad.
Appellant/opposite party no.5
A N
D
Satya
Prakash Arcade Apartments
Flat Owners Association D.No.18-1-587
Bhavani Nagar, Tirupathi Chittor Dist.
Respondent/complainant
Pemmaraju
Venkataramana Rao (Accountant)
S/o Late P.Perraju, Flat No.401, Sneha Siri
Sampada Apartment, Sanjeevaiah Reddy
Nagar Post, Hyderabad-500 038
PVS
Mallikarjuna Rao (Superintendent in SMP
University, Tirupati) S/o Late P.Perraju, Flat No.304,
Third Floor, Sneha Siri Sampada Apartment,
18-1-587, Bhavani Nagar, Tirupati-517 507
P.Gopalam
Pantulu (Business) S/o late P.Perraju
Flat No.401, Sneha Siri Sampada Apartment,
Sanjeevaiah Reddy Nagar Post, Hyderabad-500 038
Jonnalagadda
Padma Prakashini (Govt.School Teacher)
W/o JVR Vittal Flat No.401, Sneha Siri Sampada Apartment,
Sanjeevaiah Reddy Nagar Post, Hyderabad-500 038
(Respondents no.2 to 5 are not necessary parties)
Respondents/opposite
parties No.1 to 4
Counsel for the Appellant Sri M.S.N.Prasad
Counsel for the Respondent No.1 Party in person
QUORUM:
SRI SYED ABDULLAH,
HONBLE MEMBER
& SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER WEDNESDAY THE TWENTY SIXTH DAY OF MAY TWO THOUSAND TEN Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The complainant is the appellant.
Brief facts of the case as represented by the appellant are that the complainant association was registered under the Societies Act.
The complaint is filed for non-providing of facilities and amenities such as 1) not providing two wheeler parking place to all the 20 flat owners in the building, 2) the illegal occupation of builder and previous land owner of a small size room in the cellar, 3) lack of common parking, 4) fixing of 37 iron ventilators without safety glasses in the cellar, 5) non-fixing of 279 pieces of glass to the compound wall of the cellar to 37 iron windows, 6) sale of of common toilet on the terrace, 7) development of cracks and big holes on the terrace RCC flooring, 8) non-fixing of 124 ft length and six ft width safety grill at the ground floor 9) unauthorized construction of pipe lines at drainage canals, 10) failure to carry out civil repairs, 11) not raising of the entering steps at the main entrance, 12) water leakage in the parking areas from upper flat owners bathroom and toilet and kitchen, 13) non-delivery of paper bills, vouchers, receipts guarantee cards, elevator bills, municipality paid bills and other documents to the association by the opposite party no.5.
The opposite party no.5 and previous land owners of the apartments, the opposite parties no.1 to 4 created registered sale deed bearing document No.6017 of 2006 in favour of the opposite parties no.1 to 4 in respect of a small room in the cellar. The opposite party no.1 applied for mutation and tax assessment in the name of P.V.Rammohan Rao in respect of the room in the cellar. The complainant intended to demolish the room in the cellar.
The opposite party no.2 has filed counter which was also stated to have been treated as the counter of the opposite parties no.1, 3 and 4. It was contended that the complaint is not maintainable and barred u/s 23 of AP Societies Registration Act. The opposite parties no.1 to 4 are the members of the complainant association.
Hence, the District Forum has no jurisdiction to entertain the complaint. No prior notice as provided u/s 126 of the A.P.Cooperative Societies Act was issued before filing the complaint. As per the agreement between the opposite parties no.1 to 4 and the opposite party no.5 the opposite party no.5 had to develop and construct the flat at his cost.
The share of the opposite party no.5 is 65.08% of the built up area, undivided share of land and parking etc. The complainant association is not a party to the agreement between the opposite parties no.1 to 4 and the opposite partyno.5. For proper conveyance of title in favour of the third party purchasers, the opposite parties no.1 to 4 and the opposite party no.5 executed the sale deeds irrespective of their extent of share in any such sale transactions.
The opposite party no.5 has constructed the flats as per agreed specifications, standards, design, drawing and fittings. The third party purchasers having satisfied themselves with the title to the property, the quality of construction, the nature of amenities provided, purchased the flats.
The secretary of the complainant association Mohd Samellulah to wreck vengeance against the opposite parties no.1 to 4 got filed the case as the opposite parties no.1 opposed the business/commercial activity in the flat by the Secretary of the complainant association under the guise of advocate profession. The members of the complainant association have been residing in their respective flats since the date of the purchase and after a period of two years got filed the complaint without raising any objection at the time of purchasing the flat.
Parking place for cars to all the flat owners is not provided anywhere and it is provided to those who needed it only and for consideration. Of the two rooms constructed in the cellar, one is provided to the watch man without taking charges by the opposite party no.5 as a goodwill gesture.
The second room was sold to one of the opposite parties as the same belongs to the opposite partyno.5. The construction of these rooms in the cellar portion does not cause any inconvenience to the flat owners for their free movement or for parking their vehicles. Fifteen percentage of the constructed area is to be left for common area, the opposite party no.5 has left 20% of the area since sufficient floor area is available and for that the opposite party no.5 has not charged any amount to the flat owners. The total extent of the land on which the apartments were constructed is 496.0 sq. yards. The undivided share that was allotted to all the flat purchasers including the flats retained by the opposite parties no.1 to 4 is 463.50 sq. yards. Hence, the complainant association or its members will not have any claim over and above the area of their total undivided share.
The remaining area of 496.0 sq. yards belongs to the opposite parties no.1 to 4 and the opposite party no.5 and they are at liberty to construct the two rooms.
The opposite party no.5 resisted the claim contending that as per he agreement between the opposite parties no.1 to 4 and it, the opposite party no.5 had to construct the flats at its own cost and in return towards its consideration the opposite party no.5 would get 65.08% of the built up area, undivided share of land and parking space etc. The opposite parties no.1 to 4 and opposite party no.5 sold flats forming part of their respective shares. The members of the complainant association are not the parties to the construction agreement. The opposite party no.5 had perfectly constructed the flats as per agreed specifications, standards, designs, drawings and fittings. The members of the complainant association having satisfied themselves with the title of the property and quality of the construction and the nature of amenities provided purchased the flats. The present Secretary of the complainant association to wreck vengeance against the opposite parties no.1 to 4 got filed the complaint as the opposite parties no1 to 4 opposed to carrying on his business/commercial activity in the building.
The fifth opposite party is proceeded against on his personal capacity.
M/s Viking Realtors Pvt. Ltd., is the property party. As per the construction agreement, four car parking slots sell to the share of the opposite parties no.1 to 4 and 8 car parking slots fell to the share of the opposite party no.5. Owing to the structural feasibility, the number of car parking slots were limited to 20 only. For the rest of the flats ample two wheeler parking was provided with specific marking. The car parking space was sold along with the flat to those who agreed to purchase the same and for others who did not require car parking slot, two wheeler parking was given without charging any amount. The members of the complainant association knowingly and willingly purchased the flats. The complainant association has no right or locus standi to claim for separate two wheeler parking slots for all the 20 flats. For the entrance and exit into the cellar of the building the opposite party no.4 had constructed ramp with steps in the middle of the same as per the construction agreement. On both sides of the ramp two rooms were constructed as per the construction agreement. Both rooms fell to the share of the opposite party no.5.
As a gesture of good will the opposite party no.5 had left the room towards the northern side of the ramp and toilet for the watchman utilization without charging any consideration from the complainant association. The other room towards the southern side of the ramp and toilet on the terrace are the absolute property of the opposite party no.5 who sold the same to the one of the opposite parties no.1 to 4. The complainant association has no right over the said property. The glasses to the ventilators in the cellar obstructed free flow of air and cause accumulation of dust. The opposite party no.5 is under no obligation to fix the safety iron grills.
The opposite party no.5 had arranged the safety iron grills without there being any request from the complainant association. The allegation of cracks and big holes on the terrace, is wrong and incorrect. The complainant for the first time has made such allegation before the District Forum.
There is a wall on the boundary lane and it does not require and grill. There is no scope for any movement over the wall.
There was no agreement to provide the grill by the opposite partyno.5. The opposite party no.5 has taken a drainage connection and laid underground drainage pipeline connected to the underground municipal sewerage line.
Initially steps were constructed along with the grewramp and at the request of the flat owners the same was removed. If the complainant association decides to make them again, the opposite party no.5 will consider for doing the same as a gesture of goodwill. It is a planned grew ramp which is easy for entry and exit even for the aged people. The complainant association has not raised the claim made in the complaint before the opposite party no.5. The opposite party no.5 had long back corrected the aircracks and got done repainting which are inevitable owing to climatic conditions. All the members of the complainant association admitted that the opposite party no.5 had constructed the building very neatly with all quality material and expressed their happiness that they became the owners of the flats in the buildling. At the instance of only one or two members of the complainant association, the other members were mislead to file the complaint. There was no deficiency of service on the part of the opposite party no.5.
The documents, bills, vouchers, receipts, claimed by the complainant association are not relevant for them and they are required for the opposite party no.5 for its audit, income tax and sales tax purposes. The guarantee card of the elevator will be transferred in favour of the complainant association. The guarantee period of the elevator has already been expired. Hence, prayed to dismiss the complaint.
The President of the complainant association D.Krishnaiah Chowdhary, has filed his affidavit in support of the complainants case. Exs.A1 to A9 have been marked on behalf of the complainant association.
On behalf of the opposite parties, the opposite parties no.2 and the the opposite party no.5 have filed their affidavits. Exs.B1 to B12 have been marked on the side of the opposite parties.
Feeling aggrieved by the order of the District Forum, the opposite party no.5 has filed the appeal contending that the opposite party no.5 had not constructed the two rooms in the cellar portion from out of the total plinth area of space sold to the flat owners. The complainant association has no right to claim excess area wherein the room was constructed and that the area was not useful for parking. The opposite party no.5 provided a room in the cellar for watchman and another room constructed in the extra place available was sold to the purchaser. The complainant is not a consumer. The District Forum has held that there was no deficiency in service on the part of the opposite party no.5 in providing the amenities and facilities to the flat owners and in the light of its finding, the observation of the District Forum that the amount collected from the flat owners by the opposite party no.5 towards the car parking slot liable to be refunded is not tenable. The District Forum has no jurisdiction to order for demolition of structure which was sold through registered sale deed to one of the land owner.
The points for consideration are:
1) Whether the appellant had constructed the building in accordance with the sanctioned plan issued by the municipality?
2) Whether the opposite party no.5 has violated the provisions of the A.P. Apartments (Promotion of Constriction and Ownership) Act and Rules 1987?
3) To what relief?
POINTS NO.1 AND 2 The points no.1 and 2 are interrelated. As such they have been taken together for the purpose of discussion. The opposite parties no.1 to 4 are the land owners.
The opposite party no.5 is the builder who entered into a construction agreement, Ex.B12 with the opposite parties no.1 to 4 whereunder it was agreed that the opposite parties no.1 to 4 are entitled to 6050 sft built up area out of the total built up area of 17,325 sft inclusive of common areas balcony areas, circulation areas etc., and 34.92% area in cellar.
The opposite party no.5 would retain an area of 11275 sft built up area which is equivalent to 65.08% of total built up area inclusive of all common areas and 65.08% in cellar area which is meant for parking of the vehicles. At page no.4 of the Construction Agreement, it has been mentioned that it is hereby agreed that the owners would be entitled to hold and retained 34.92% ( thirty four point nine two) of the total built up area towards compensation for giving the property for development and the remaining 65.08% (sixty five point zero eight) of the total built up area will be held and enjoyed by the builder. The sharing of the property proposed to be constructed in the manner stated above includes the vehicle parking area in the cellar floor, the circulation areas, the terrace and other common areas and facilities. Hence, in terms of the construction agreement the property was agreed to be enjoyed by the opposite parties no.1 to 4 and the opposite party no.5 and the property included the vehicle parking area in the cellar floor, the circulation areas, the terrace and other common areas and facilities.
The complainant association has applied by submitting the memorandum of association and byelaws of the association to the District Registrar for registration. The District Registrar, Tirupathi issued certificate of registration of societies certifying that the complainant association was registered under the Societies Registration Act on 17.8.2006. Admittedly, the opposite parties no.1 to 4 had sold certain apartments as also the opposite party no.5 sold some apartments to the purchasers who by virtue of the memorandum of association and byelaws of the association became the members of the complainant association. The opposite parties no1 to 4 and the opposite party no.5 are also the members of the complainant association in view of the fact that they had retained certain number of the flats with them.
Irrespective of the extent of their share under the construction agreement, the opposite parties no.1 to 4 and the opposite party no.5 had jointly executed the sale deeds in favour of the purchasers of the flats.
The complainant association has filed the complaint claiming the amenities mentioned in the first paragraph of the complaint. According to the complainant association there are 20 flats and the owners of these 20 flats are its members. The grievance of the complainant association is that in the cellar portion parking place was not shown to all the 20 flat owners. The opposite parties no.1 to 5 had given reply that the opposite party no.5 has provided the parking space for two wheelers for two wheelers in the cellar to all the 20 flat owners. The other contention of the complainant is that the opposite party no.5 colluding with the opposite parties no.1 to 4 constructed a room measuring 10X12 and sold it in favour of the opposite party no.1 through registered sale deed whereby the members of the complainant association have been facing problems due to lack of common parking space. These two pleas being the issue raised in the appeal, we focus our attention on these issues in view of there being no challenge by the complainant association to the finding of the District Forum that all the amenities and facilities including those complained of have been provided by the opposite party no.5.
The opposite party no.5 has sold to the opposite party no.1 under Ex.A4 the room constructed in the cellar portion and the toilet in the terrace at the top of the apartments. The complainants grievance is by virtue of the construction of the room in the cellar portion, the parking area was restricted. The opposite parties no.1 to 5 had contended that the opposite party no.5 had left 20% of the area in the cellar portion as against the 15% of the constructed area that was agreed to be left for common area. Irrespective of the area including the common area that fell to the share of the Opposite parties no.1 to 4 and the opposite party no.5, the opposite party no.5 cannot raise further construction in view of Sec.6 of the A.P.Apartments (Promotion of Construction and Ownership) Act & Rules. Sec.6 of the said Act reads as under:
Sec.6 No alterations of after disclosure of the plans etc :
1) After the plans, specifications and the nature of fixed, fittings, amenities, and common areas as sanctioned by the local authorities or urban development authority concerned are disclosed to an intending transferee u/s 4 and a written agreement of ale is entered into u/s 5, the promoter shall not make any additions and alterations therein.:-
1) if it effects any apartment without the previous consent in writing of the transfer he intends to take that apartment; and
2) If it effects more than one apartment without the previous consent in writing of all the parties who intend to take those apartment.
2) Any of the additions or alterations referred to above shall be carried out only with the prior approval of the local authority or the Urban Development Authority concerned.
The opposite party no.5 had constructed the room without obtaining any prior consent of the members of the complainant association. The opposite party no.5 thereby has violated the Sec.6 of the A.P. Apartments (Promotion of Construction and Ownership) Act and Rules.
The members of the complainant association purchased their respective flats by the assurance of the opposite parties no.1 to 5 that the cellar portion would remain as it was and the same is the case with the terrace portion of the building. Any additional structure in violation of the original sanctioned plan on the basis of which the flats were sold cannot be considered as authorized construction for any purpose. Hence, the construction of the room by the opposite party no.5 whereby the nature of the parking slots of the unsold residential flats changed is against the provisions of the A.P. Apartments (Promotion of Construction and Ownership) Act and Rules.
The opposite party no.5 has sold the room in the cellar portion of the building to the opposite party no.1. The opposite party no.1 is one of the land owners who entered into the construction agreement along with the opposite parties no.2 to 4 with the opposite party no.5.
The opposite party no.1 being the one of the land owners as also who by virtue of entering the construction agreement with the opposite party no.5 has the knowledge of the share of the constructed area, common area etc., pertaining to him and the opposite parties no.2 to 4 and the share of the opposite party no.5. The opposite party no.5 cannot construct a room in the cellar portion against the terms of the construction agreement and sanctioned plan. Equally the opposite party no.1 being one of the land owner cannot purchase the room illegally constructed by the opposite party no.5 in the cellar portion of the building. The opposite parties no.1 and 5 had thus violated the terms of the construction agreement, provisions of A.P. Apartments (Promotion of Construction and Ownership) Act and Rules as also the provisions of the Memorandum of Association and Byelaws of the Complainant Association.
The opposite party no.1, it appears obtained service connection to the room purchased by him and used it for commercial purpose. The D.E. Assessments Southern Power Distribution Company, A.P. ltd., Tirupathi has issued assessment notice to the opposite party no.1 demanding him to pay an amount of Rs.33,720/-.
In addition to these proceedings, the D.E., Assessments Tirupathi has also issued assessment notice to the opposite party no.1 in respect of his flat on the third floor of the building claiming a sum of Rs.20,044/- assigning the reason that the service connection was utilized for industrial purpose. In any case, the sale of the room in the cellar portion of the building by the opposite party no.5 and purchase of the same by the opposite party no.1 cannot be viewed leniently in view of the restriction it had caused to the other flat owners in regard to the common parking area. Hence, the opposite parties no.1 and 5 committed default and as such are liable to rectify the same by removing the constructed room from the cellar portion of the building. The opposite party no.1 was served with the notice in the appeal filed before this commission by the opposite partyno.5. Despite service of notice on him, the opposite party no.1 has not chosen to contest the case. Be that as it may, the impugned order, in our opinion does not suffer from any defect and as such the appeal is liable to be dismissed.
In the result the appeal is dismissed confirming the order dated 25.6.2007 of the District Forum. There shall be no order as to costs.
Sd/-
MEMBER Sd/-
MEMBER Dt.26.05.2010 KMK*