State Consumer Disputes Redressal Commission
Smt. K.S.L.P. Anjali vs 1. Shaik Abdul Azeez on 19 July, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.92/2016
Between :
Smt.K.S.L.P.Anjali,
W/o.Sri J.Venkat Das,
Occ:Employee, B12/F1,
H.No.7-1-414/A/45,
Srinivasa Colony East,
S.R.Nagar,
Hyderabad - 500 038. ... Complainant
And
1.Shaik abdul Azeez, S/o.Late Sri Shaik Meera Sahib, Aged about 63 years, Occ:Retd. Employee, R/o.H.No.8-3-22/F/16, B-68, Madhura Nagar, Near Pamputta Temple, Sanjeeva Reddy Nagar, Hyderabad - 500 038.
2. K.V.Avinash, S/o.late Sri K.Anand Bhasker Raju, Aged about 24 years, Occ:Govt. Service, R/o.H.No.25/1/147, Housing Board Colony, Podalakur Road,Nellore, A.P.
3. M.Kanthamma, W/o.Sri M.Ramaraju, Aged about 65 years, Occ:House wife, R/o.LIG B12/F2, Srinivasa Colony East, Municipal No.7-1-414/A/46, First Floor, Sanjeeva Reddy Nagar, Hyderabad - 500 038 ...Opposite parties Counsel for the Complainant : M/s.G.Maruti Rao Counsel for the Opposite Parties:M/s.Mohd.Niyamathulla-OP.No.1.
M/s.S.M.Subhani-Ops.2 & 3.
CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
W EDNESDAY, THE NINETEENTH DAY OF JULY, TW O THOUSAND TW ENTY THREE .
Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember (NJ) ).
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 praying to direct the opposite parties 1 & 2 2 to pay immediate compensation of Rs.41,24,160/- to the complainant for causing deficiency of service against the complainant and to award costs.
02). The brief facts of the case of complainant are:
The complainant is the owner of flat no.LIG B12/F1 vide Municipal no.7-1-414/A/45 situated at Sanjeeva Reddy Nagar, Hyderabad having purchased the same from A.P. Housing Board vide Sale Deed no.1069 of 1993 dt.10.5.1993; that the total built up area was 558 sq.ft with an undivided share of 62 sq.yards and since the date of purchase, she is in peaceful possession of the same and that opposite party no.3 herein is another land owner of the said building who is the resident of 1st floor i.e. flat no.B12/F2 consisting of built up area of 522 sq.ft. and having purchased the same from A.P. Housing Board vide Sale Deed no.57 of 1995 dt.7.6.1995 and due to passage of time these flats have become old and were in dilapidated condition which were unsafe to live. Therefore, the complainant and opposite party no.3 intended to demolish the said flats and develop the property; that opposite party no.1 who is an adjacent building owner had developed his house and constructed 4 floors and let out the same to run a ladies hostel.
During March, 2013, the opposite party no.1 approached the complainant and opposite party no.3 with a proposal to develop their flats and after several deliberations there was a MOU entered on 14.3.2013 in between the complainant, opposite party no.3 and opposite party no.1 for developing the entire area of 120 sq.yards on the said property. Subsequently, the opposite party no.1 introduced opposite party no.2 who is none other than maternal grand son of opposite party no.3 saying that as he has good experience in construction field both would jointly undertake the development and again executed a MOU on 29.10.2013; that as per the MOU dt.28.3.2013, the opposite party no.1 had informed the complainant that he has made an application to GHMC seeking permission for construction. Believing him, the complainant was under impression that the permission has been sought from the concerned authorities of GHMC. Later when she filed RTI application before the GHMC, she came to know that the said permission application was rejected, but the opposite party 3 no.1 without rectifying and re-submitting the application had proceeded with the construction by suppressing the said fact with the complainant and constructed the 3 rd and 4th floors in commercial manner though it was agreed that the total construction would be exclusively for residential purpose; that the opposite party failed to provide the basic amenities as agreed, such as lift facility, water sump, clear parking space etc. The opposite party no.1 who had developed his property was not having a borewell and lift. As such, he had developed the property of the complainant and opposite party no.3 in such a manner that the lift, staircase, bore water and parking space of the complainant premises be utilised by the inmates of his building and that the lift erected is in the mezzanine floor of the building and as the complainant's flat is situated in the 1st floor, it is of no use for her. This usage of lift and staircase by inmates of the ladies hostel of opposite party no.1 building has been causing continuous disturbance and nuisance to the complainant; that as per the MOU it was agreed that the ground floor was meant only for parking, but the opposite party had constructed one room in the ground floor and the same is being utilised by the employees of the ladies hostel of opposite party no.1 which is against the MOU.
The opposite party no.1 in collusion with opposite party no.2 who is none other than maternal grand son of opposite party no.3 had forced the complainant to execute a registered settlement deed by dividing the constructed area in the ratio of 50:50 and as per the said division, the complainant was allotted first floor, opposite party no.3 was allotted second floor, opposite party no.2 was allotted third floor and opposite party no.1 was allotted 4 th floor. Apart from the said Settlement Deed, MOU was entered on the same day wherein it was clearly agreed that neither of the parties should construct any other structure except one room for the watchman in the ground floor. Opposite party further removed the glass windows of the second and fourth floor thereby facilitating the inmates of third and fourth floor for using the lift for commercial purpose which has caused severe hazards to the complainant and as per the agreement, the opposite party was supposed to provide a water sump with the measurement of 8 ft. x 8 ft. x 8 ft. for exclusive use of the complainant, but the opposite party failed to provide the same and the borewell water is being 4 used by the inmates of the adjacent building and that originally, the complainant had an undivided share of 62 sq.yards, but which was subsequently reduced to 31 sq.yards which implied that it was not proportionately divided. All these acts of opposite party by violating the terms of the MOU and not providing amenities as promised amounts to deficiency in service due to which the complainant tried to counsel the opposite parties 1 & 2 but they have never mended their attitude despite several reminders, as such she got issued legal notice dt.27.6.2015 which was replied by the opposite party no.1 with all false averments. All these acts of the opposite parties are illegal and unethical which also amounts to deficiency in service. As such, having no other alternative, the present complaint is filed seeking compensation for the deficient acts of the opposite parties along with costs.
03). Opposite party no.1 filed written version admitting ownership of property by complainant and opposite party no.3, but however denied undivided share of 62 sq.yds. and had taken a preliminary objection of limitation and also denied having executed any Memorandum of Understanding dt.14.3.2016 & 29.10.2013 and stated that the same have been fabricated by the complainant only for the purpose of filing this complaint and infact the complainant had lured him by saying that the property has a good potential if the same is developed and as she is not having any finance requested the opposite parties 1 & 2 to invest money, so that the proportionate built up areas can be divided among the owners and opposite parties 1 & 2. Believing the complainant, opposite party no.1 had invested his hard earned money and also retirement benefits he has received. Similarly opposite party no.2 had invested the amounts he received by way of service benefits after demise of his father and by all such investments without there being any development agreement, this opposite party proceeded with the constructions, but unfortunately had been tangled in several unwarranted litigations by the complainant.
Infact the opposite party is neither a developer nor had taken any development activity in the locality and as a matter of fact on 15.5.2015 only a settlement deed was entered between the complainant and opposite parties wherein it was specifically agreed that the ground floor would be restricted only for parking and the 5 four floors would be divided as under: 1st floor for the complainant with undivided share of 31 sq.yards; 2nd floor for opposite party no.3 with undivided share of 29 sq.yards; 3rd floor for opposite party no.2 with undivided share of 29 sq.yards and 4 th floor for this opposite party with undivided share of 31 sq.yards and all the parties have taken the possession of their respective portions in view of the settlement deed and it was also agreed that common amenities would be utilised by all the residents commonly but the lift maintenance and its power consumption need not be shared or borne by the complainant, since she has occupied the 1 st floor which is of not much use for her, inspite of the same, the complainant has filed this present complaint with false and baseless allegations.
The opposite party further pleads that inspite of such clear recitals in the Settlement Deed, the complainant is alleging about MOU which does not have any legal sanctity, for the simple reason that the Settlement Deed which is a registered document and executed subsequently is not challenged, hence becomes final and conclusive and that the alleged room constructed in the ground floor is only as per the settlement deed and for the sake of watchman. The opposite party further pleads that as per the GHMC records, the complainant and opposite party no.3 being the land ladies have submitted an application vide no.27734/28/G3/2013/ C10(BP Permit No.) dt.28.3.2013 which implies that there were certain deviations and the complainant being the land lady is supposed to construct the building as per the guidelines stipulated under the provisions of Municipal Act. The complainant is infact using the water connection of opposite party no.1 who is holding ¾ inches connection which was obtained by this opposite party prior to the settlement deed. There is separate connection existing in the name of the complainant, as such, the question of deficiency or non providing of water connection does not arise. Infact the complainant has approached this Commission with unclean hands by suppressing true facts. Initially the complainant has filed O.S.No.1734/2015 on the file of V Civil Judge, City Civil Court at Hyderabad and obtained exparte injunction order in I.A.no.157/2015, but the said IA was dismissed on 28.12.2015, after which she had preferred C.M.A. ASR no. 2630 OF 2016 on the file of Chief Judge, City Civil Court, Hyderabad which is still 6 pending. By grossly abusing the process of law, the present complaint is filed on false and baseless allegations though there does not exist any Development Agreement between the complainant and this opposite party. This non disclosure of earlier cases reveals the conduct of the complainant and the present complaint is filed only to extract money from this opposite party, as such the same be dismissed.
04). Opposite parties 2 & 3 filed their written version exactly in the same verbatim of opposite party no.1, which is nothing but a replica of written version filed by opposite party no.1, as such the same is not being repeated again.
05). Chief Examination Affidavit of complainant as PW.1 filed and got marked Exs.A1 to A13. Chief Exaination Affidavit of opposite party no.1 filed as DW.1 . Chief Affidavits of opposite party nos.2 & 3 filed as DWs.2 & 3. On behalf of opposite parties, Exs.B1 to B14 filed.
06). Heard both sides and perused the record. now the points that arise for consideration are :
i. i). Whether the opposite parties have been deficient in their services?
ii. Whether the complainant is entitled for the reliefs sought for in the complaint?
iii. If yes, to what relief?
07). Point no. 1: The grievances of the complainant in short are
as under:
1. That the opposite parties have concealed the fact
that the application for permission for construction was rejected and the opposite party proceeded with the construction without proper sanction for construction from the GHMC authorities.
2. That the opposite parties constructed the lift, staircase, bore well and parking space in such a manner that all these amenities are being utilised by the inmates of adjacent building, wherein the opposite party no. 1 is running a ladies hostel;7
which is causing lot of disturbance and nuisance to the complainant.
3. That the opposite party had constructed a room in the ground floor which is against the terms of MOU, and the same is being utilised by the employees working in the adjacent ladies hostel.
4. That as per MOU the opposite parties promised to provide a water sump in ground floor, measuring 8"
x 8". exclusively for the complainant.
5. That the division of undivided share has not been done properly, thereby the complainant has lost 4 sq. yds of undivided share.
6. That the complainant has a municipal water connection in her name which is being shared by complainant and opposite party no. 3 and the water connection which is in the name of opposite party no. 3 is being utilised by opposite party nos. 1 & 2; and opposite party no. 1 had taken a new water connection in his name which is being used for commercial purpose which is illegal, unethical and unjustified.
7. That opposite party nos. 1 & 2 have created another separate access to the building of opposite party no.1 which is adjacent to the complainant's property which is illegal and contrary to the terms and conditions as envisaged in the settlement deed. All these acts of opposite parties amount to deficiency of service, which has caused severe mental agony and hardship to the complainant, and in support of her case got marked Exs.A1 to A13.
08). Before going into the merits of the case, we would like to clarify that as per Ex A2, Sale Deed the opposite party no.3 is one of the owner of the property with an undivided share of 58.00 sq.yds and as per Ex A3 to A6 (MOUs. & Settlement Deed) she is equally in the position of the complainant, and though the complainant has pleaded that she has colluded with opposite party nos. 1 & 2 but the same is not proved, that apart none of the documents prove that she had entered into any agreement with the 8 complainant nor had promised to provide any services to the complainant. In such case, the complainant had failed to prove any deficiencies on the part of opposite party No.3 as such there does not exist any liability against opposite party no.3.
09). As far as opposite party nos. 1 & 2 are concerned they have resisted the complaint denying the execution of MOU dated 14.3.2013 & 29.10.2013 and had contended that in view of execution of Ex A 5 - Settlement Deed dated 15.5.2015 everything has been settled between the parties and nothing remains to be provided and the settlement deed becomes final and conclusive; that the complainant herself has applied for the GHMC permission and it is for her to follow the guidelines of GHMC and complete the construction in accordance with the guidelines and as they are not developers and only on the request of the complainant they had invested their hard earned money for the construction of the flats, because the complainant has promised to give a share in the constructed property.
10). Since the opposite party nos. 1 & 2 have denied execution of MOU, we would first consider the relationship between the complainant and the opposite party nos. 1 & 2. A comparison of signatures of opposite parties on Ex. A3 & A4 with that on Ex A5 with the naked eye itself reveals that all these signatures are one and the same which implies that the opposite party had executed the MOUs. but only to avoid the liability is denying the same; that apart even if it is presumed that the opposite parties have not executed MOU Dt.14.3.2013 & 29.10.2013, a perusal of Ex.A5 - Settlement Deed reveals that the opposite parties are arrayed as developer/ settlee(s), which itself is sufficient to conclude that the opposite parties have agreed to develop the property of the complainant for consideration in the form of a flat and in Page nos. 3 and 4 of Settlement Deed date 15.5.2015 in the unnumbered paras the opposite party had agreed as under:
"WHEREAS it is agreed between the parties to this indenture that the DEVELOPER/SETTLEES shall bear all the regularization/penalization charges under BPS/BRS, whichever is applicable, for any deviations if any of the residential building on behalf of LAND OWNERS/SETTLORS too, apart from their own claim of settlement under this indenture as and 9 when raised/claimed or imposed by the State Government GHMC or other authority in this behalf".
The above clause clearly establish that the opposite party had proceeded with the constructions without having any valid permission as such they have agreed to bear regularisation charges so also the penalization charges that would be imposed by the GHMC, this one clause itself is sufficient to conclude that it was the responsibility of the opposite parties to obtain the necessary permissions prior to construction, irrespective of whether there existed any agreement in the MOU as such, though the opposite parties deny that they are Developers but their nomenclature in the Settlement Deed itself is sufficient to say that they have stepped into the shoes of Developers, at least to this particular transaction entered with the complainant and opposite party no.3. In view of the foregoing discussion, we have no hesitation to conclude that the relationship between the complainant and opposite party nos. 1 & 2 is that the consumer and service provider.
11). Now coming to the grievances of the complainant, though the complainant had not sought separate reliefs for each grievance and had collectively sought for compensation, we are of the view that we would deal with the grievances individually. As far as grievance nos. 3 & 7 above listed are concerned, the complainant has not put forth any evidence to establish the same, as such the same is not being considered here. Grievance nos 2 & 6 are concerned, these are with regard to the right of ownership and enjoyment of the property by the complainant and opposite parties, which does not fall in the category of services and for the said infringement of rights, the complainant has already proceeded by filing a suit before the appropriate authority, as such this Commission is not inclined to intervene into these issues. With regard to grievance no. 5, the complainant having agreed by way of executing a Settlement Deed for 31 sq.yds of undivided share is estopped from saying that she is deprived of 4sq.yds.
12). Coming to relief no.1 it is borne by record that the construction was completed without having any valid permission and Ex.A10 also establishes the same and in view of the clauses in 10 Settlement Deed which have been referred above, the opposite party nos.1 & 2 have agreed to bear the charges and penalties for regularisation of the property of the complainant. Having agreed to the same, the opposite party nos.1 & 2 are bound by it, as such, they are liable to bear regularisation charges that the complainant would incur.
Along with the complaint, the complainant has filed a statement of calculation of monetary compensation wherein, the amount incurred by her for regularisation is shown as Rs.1,70,160/-. Though the complainant has not filed any receipt to that effect, but the fact remains that the construction was done without any valid permission and would certainly need to be regularised by paying the charges. The complainant herself has given a figure which is not denied by the opposite party. As such, the opposite party is liable to pay the same.
As such, we are of the considered view that opposite parties be directed to pay the said amount with reasonable interest. Coming to relief no.4, the opposite party though did not deny execution of Ex.A6 MOU dt.15.5.2015, but had contended that the said claim is contrary to the Agreement that no structure except watchman room can be constructed in the ground floor, cannot now seek for sump exclusively for herself.
It is worth mentioning that the Ex.A6 - MOU and Settlement Deed are executed on the same day and in the said MOU, the opposite parties nos.1 & 2 have specifically agreed to provide water storage tank i.e. sump. For the sake of clarity , the said clause is being reproduced hereunder:
"And whereas the Second Party No.3 & 4 ( i.e. Developers) herein agreed to construct the water storage tank i.e. Sump with an admeasuring 8' x8' x8' in Cellar for the use of First Party & second party/Smt.K.S.L.P.Anjali, M.Kanthamma and no body shall have any kind of objections or claims over the same".
As the opposite parties have not denied execution of Ex.A6 , but had only opposed by stating that it is contrary to other clause in settlement deed, being fully aware of the said clause, the opposite parties proceeded by agreeing to provide the water sump. Hence, they are bound by the same and liable to provide the same.11
13). Coming to the compensation, the fact that the opposite parties have proceeded with the construction without having valid permission and this act of opposite parties had compelled the complainant to run around various courts and authorities is substantiated by Exs.B9,10,13 & 14 that is itself-sufficient to ascertain the inconvenience and hardship that the complainant had undergone due to the illegal acts of opposite parties. That apart due to the deficient and illegal acts of the opposite parties, the complainant is compelled to live in a continuous fear that, her property may be demolished at any moment by the GHMC authorities, which might have not only caused but would continue to cause mental agony until the regularisation is done. Therefore, we are of the emphatic view that the complainant be suitably compensated and Opposite parties 1 & 2 are liable to pay the same.
14). In the result, complaint is allowed in part directing the opposite parties 1 & 2 jointly and severally :
i. to refund Rs.1,70,160/- with interest @ 6% p.a. from the date of the complaint till realisation towards the regularization charges as claimed by the complainant;
ii. to construct a water sump in the ground floor for the use of complainant as per MOU dt.15.5.2015 ;
iii. to pay compensation of Rs.5 lakhs towards the hardship, inconvenience and mental agony caused to the complainant;
iv. to pay Rs.25,000/- towards costs of
litigation; and
v. the complaint against opposite party no.3
is dismissed .
Time for compliance is 30 days from the date of receipt of this order.
MEMBER(J) MEMBER(NJ)
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Dated : 19.7.2023 12 APPENDIX OF EVIDENCE Witnesses examined For the complainant For the opposite parties Chief Examination aff. of Chief Examination aff. of OP.1 Complainant filed as PW.1 filed as DW.1.
Chief Examination aff. of OP.2 filed as DW.2.
Chief Examination aff. of OP.3 filed as DW.3.
Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of sale deed dt.6.5.1993 between APHB and complainant.
Ex.A2 : Photostat copy of sale deed dt.3.6.1995 between APHB and opp.party no.3.
Ex.A3 : Photostat copy of Memorandum of Understanding/ Agreement dt.14.3.2013.
Ex.A4 : Photostat copy of Memorandum of Understanding/ Agreement dt.29.10.2013.
Ex.A5 : Photostat copy of Deed of Settlement dt.15.5.2015. Ex.A6 : Photostat copy of Memorandum of understanding Dt.15.5.2015.
Ex.A7 : Photostat copy of legal notice dt.29.6.2015 issued on behalf of the complainant to opposite parties 1 & 2. Ex.A8 : Photostat copy of reply letter dt.29.6.2015 issued on behalf of opposite party no.1.
Ex.A9 : Photostat copy of lr.dt.2.2.2016 from complainant to the Public Information Officer, Off. of Asst.City Planner, GHMC.
Ex.A10 : Photostat copy of reply lr.dt.19.3.2016 from GHMC. Ex.A11 : Photostat copy of lr.dt.11.4.2016 from the complainant to the Commissioner, GHMC, Hyd.
Ex.A12 : Copy of order in WPMP.No.41855/2016 in WP.No.33921/16.
Ex.A13 : Photographs of building.
Exhibits marked on behalf of the opposite parties:
Ex.B1 : Photostat copy of order in I.A.No.157/2015 in O.S.No 1734/2015.
Ex.B2 : Photostat copy of Property Tax Special Notice dt.4.1.2015 Ex.B3 : Photostat copy of receipt issued by H.M.W.S.&S.B. Dt.29.9.2015.
Ex.B4 : Electricity bill and payment receipts issued by GHMC( originals).
Ex.B5 : Original of Property Tax Receipt (2018-2019) issued in the name of opp.party no.2.
Ex.B6 : Original Payment receipt dt.16.4.2019 issued by GHMC in favour of opposite party no.3. Ex.B7 : Original Electricity Bill cum Notice issued by TSSPDCL. Ex.B8 : Demand Notice dt.14.11.2016 issued by HMWS&SB. Ex.B9 : Copy of order in IA.no.157/2015 in O.S.No. 1734/2015 issued by Jr.Civil Judge, City Civil Court, Hyd. dt.28.12.2015.
Ex.B10 : Copy of order in CMA No.9/2016 dt.27.2.2020 13 issued by IX.Addl. Chief Judge, City Civil Court, Hyd. Ex.B11 : Copy of notice issued by GHMC dt.26.8.2013. Ex.B12 : Photostat copy of lr.dt.29.8.2013 from Sri.Anam Vivekananda Reddy to Sri M.Maheedhar Reddy, Minister, Municipal Administration &Urban Dev. Ex.B13 : Photostat copy of Plaint O.S.No.1734/2015 on the file of V Jr. Civil Judge, City Civil Court, Hyd. Ex.B14 : Copy of order in WPMP no.41855/2016 in WP.No.33921/2016 dt. 20.3.2017.
MEMBER(J) MEMBER(NJ)
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Dated : 19.7.2023