State Consumer Disputes Redressal Commission
M/S. Magar Girme & Gaikwad Associates, vs Palm Groves Cooperative Housing ... on 21 April, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
Revision Petition No.RP/07/156
(Arisen out of Order Dated 20/11/2007 in E-22/2007
of District Forum, Pune)
M/s. Magar Girme
& Gaikwad Associates,
Having its site office
at:-
Palm Groves Complex,
Plot No.49,
B. T. Kawade Road,
Ghorpadi, Pune 411
036.
...........Petitioner(s)
Versus
1> Palm Groves
Cooperative Housing Society Ltd.,
Having its office
at:-
Plot No.49, B. T. Kawade Road,
Ghorpadi, Pune 411
030.
2> Smt. Krishnabai
Sopanrao Watare and 94 other landlords
Through their
power-of-attorney-
Shri Jayprakash
Jagannath Girme,
Site Office:- Palm
Groves,
Plot No.49, B. T. Kawade Road,
Ghorpadi, Pune 411
036.
3> Bungalow/Plot
Duplex House Owners
1. Brig. Vijaykant K. Paradhe,
2. Dr. Padur Balaji Raman,
3. Lt. Col. Hari Narayan Mahanto
4. Mr. Girish Patel,
5. Mr. Vasant A. Yemal
6. Dr. Ashutosh V. Sule
7. Mr. Raghunath M. Dole
All above 1 to 7
R/at:-
Palm Groves, B.
T. Kawade Road,
Ghorpadi, Pune 411
036.
...........Respondent(s)
Revision Petition No.RP/07/157
(Arisen out of Order Dated 20/11/2007 in E-22/2007
of District Forum, Pune)
1. Mrs. Neeta Pardhe
2. Brig. V. K. Pardhe (Retd.)
Both R/at:- Beautia-I,
49, Palm Groves
Bungalows Coop. Hsg. Society Ltd.,
B. T. Kawade Road, Ghorpadi, Pune.
3. Dr. Padur Balaji
Raman,
R/at:- Beautia-II,
49, Palm Groves
Bungalows Coop. Hsg. Society Ltd.,
B. T. Kawade Road, Ghorpadi, Pune.
...........Petitioner(s)
Versus
1. Palm Groves
Cooperative Housing Society Ltd.,
Having its office
at:-
Plot No.49, B. T. Kawade Road,
Ghorpadi, Pune 411
036
2. M/s. Magar Girme
& Gaikwad Associates,
Through its partners:
(a) Shri Jayprakash J.
Girme,
(b)
Shri Satish D. Magar,
(c) Shri Gaikwad
Having its office
at:-
Palm Groves, Plot No.49,
B. T. Kawade Road,
Ghorpadi, Pune 411
036.
3. Smt. Krishnabai
Sopanrao Watare and 94 Ors.
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)
Revision Petition No.RP/07/158
(Arisen out of Order Dated 20/11/2007 in E-22/2007
of District Forum, Pune)
1. Mr. Gulabrao Muktaji Watare,
2. Mr. Surendra Singh Wasu,
Both R/at:-
Palm Groves Coop. Hsg. Society Ltd.,
B. T. Kawade
Road, Ghorpadi,
Pune 411 036
...........Petitioner(s)
Versus
1. Palm Groves
Cooperative Housing Society Ltd.,
Having its office
at:-
Plot No.49, B. T. Kawade Road,
Ghorpadi, Pune
411 036
2. M/s. Magar Girme
& Gaikwad Associates,
Through its partners:
(a) Shri Jayprakash J. Girme,
(b)
Shri Satish D. Magar,
(c) Shri Gaikwad
Having its office
at:-
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 Revision Petitioners Adv. Smt. Madhuri Vaidya for the Respondent No.1 Common order in RP/07/156 + RP/07/157 + RP/07/158 Per Honble Mr. Dhanraj Khamatkar, Member All these three revision petitions challenge an order dated 20/11/2007 passed by the District Consumer Disputes Redressal Forum, Pune in an execution petition bearing No.E-22 of 2007, arising out of original Consumer Complaint No.35 of 2005 decided on 16/03/2007. Revision Petition No.156 of 2007 has been filed by original Opponent No.I M/s. Magar Girme & Gaikwad Associates (hereinafter referred to as the Builder/Developer for the sake of brevity), Revision Petition No.157 of 2007 is filed by Mrs. Neeta Pardhe and Brig. V. K. Pardhe, whereas Revision Petition No.158 of 2005 is filed by Mr. Gulabrao Muktaji Watare and Mr. Surendra Singh Wasu. Since all these revision petitions involve identical facts and common question of law, all these revision petitions are clubbed together and are disposed of by this common order.
[2] Facts leading to these revision petitions can be summarized as under:-
Respondent No.1/original Complainant Palm Groves Cooperative Housing Society Ltd. (hereinafter referred to as the Respondent Society for the sake of brevity) had filed a consumer complaint bearing No.35 of 2005 alleging deficiency in service and seeking for a direction as against the Builder/Developer to execute the Deed of Conveyance in its favour besides consequential relief of compensation and costs.
[3] The District Forum, after hearing the parties, came to a conclusion that there is a deficiency in service on the part of the Builder/Developer and original Opponents Nos.96 to 10 viz.
Brig. Vijaykant Paradhe and Others and partly allowed the consumer complaint vide an order dated 16/03/2007 and directed the Builder/Developer viz. the Revision Petitioner herein to execute the Deed of Conveyance in favour of the Respondent Society besides payment of compensation and costs.
Being aggrieved by the said order, three appeals bearing Nos.421 of 2007, 422 of 2007 and 423 of 2007 came to be filed before this Commission challenging the said order, out of which appeal bearing No.422 of 2007 had been dismissed by this Commission at the stage of admission itself. Other two appeals were admitted only to the limited extent of quantum of compensation and costs awarded by the District Forum. This Commission, vide an order dated 02/04/2014, disposed of other two appeals bearing Nos.421 of 2007 and 423 of 2007.
[4] During the course of hearing of execution petition bearing No.E-22 of 2007, the District Forum had appointed a Court Commissioner to draft the Deed of Conveyance upon taking into consideration facts and circumstances of the case. Accordingly, the Court Commissioner prepared the draft of conveyance deed and placed it on the record before the District Forum.
Builder/Developer had placed on record its objections to the draft of Conveyance Deed before the District Forum.
Similarly, original Opponent No.96 viz. Brig.
Vijaykant Paradhe had also placed his objections in respect of draft of conveyance deed. The District Forum, after hearing the parties, vide an order dated 20/11/2007 turned down the objections raised by the Builder/Developer, original Opponents Nos.97 to 102, Mr. S. S. Wasu, Mr. Gulabrao Watare, Mrs. Neeta Pardhe and Dr. P. Balajiraman. However, minor clerical modifications suggested by the Respondent Society/original Complainant Society were accepted. Further, the draft of conveyance deed filed by the Court Commissioner was approved subject to the modifications suggested by the Respondent Society/original Complainant Society and the Builder/Developer was directed to execute the conveyance deed as prepared by the Court Commission in favour of the Respondent Society/original Complainant Society on or before 30/11/2007. Aggrieved by the said order, aforesaid three revision petitions have been filed.
[5] In all these revision petitions, we have heard Adv. Anand V. Patwardhan on behalf of the Revision Petitioners and Adv. Smt. Madhuri Vaidya on behalf of the Respondent No.1 Society. We have also carefully perused the voluminous material placed on record.
[6] Initially, on 10/02/2014 all these revision petitions were heard and reserved for orders. However, while perusing the record, it was revealed to us that the Petitioners have not placed on the record a copy of Conveyance Deed dated 17/10/2006 executed in favour of Palm Groves Bungalows Cooperative Housing Society Ltd. (hereinafter referred to as Bungalows Society for the sake of brevity).
Said document was relevant and material for effectual adjudication of these revision petitions and, therefore, on 02/04/2014 the parties present were directed to produce the same on record.
Accordingly, it was placed on record.
We have gone through the same.
[7] Admittedly, the scheme floated is a composite scheme of apartments, duplex houses and bungalows and the scheme was completed in two phases. 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. For the second phase, the local authority accorded its sanction to the plan on 14/08/2001 and accordingly, as per plans, some bungalow plots were demarcated and some duplex bungalows were also constructed. 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. Said scheme being a composite scheme, common amenities are also in composite.
Common amenities are provided as per the list of the amenities attached with the agreements. 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 Builder/Developer 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. Said problem would have been sorted out had the Respondent No.1 Society accepted the bungalow-owners and duplex bungalow-owners to its membership either by changing the nature of the Society or by granting them associate membership. Unfortunately, this had not happened.
[8] We have perused the Conveyance Deed dated 17/10/2006 executed in favour of Palm Groves Bungalows Cooperative Housing Society Ltd. Together with the Conveyance Deed a copy of registration certificate pertaining to Palm Groves Bungalows Cooperative Housing Society Ltd., issued by Sub-Registrar of Cooperative Societies under the Maharashtra Cooperative Societies Act, 1960 is also produced. We have gone through the same. Relevant paragraph on internal page (06) of the said Sale Deed reads as under:-
AND WHEREAS the Society No.I and Society No.II are part of composite layout of the land and have been developed and promoted by the Promoters of the said land M/s. Magar Girme and Gaikwad i.e. Consenting Party as a complex collectively known as PALM GROVES in terms of the revised amalgamation and layout plan of Plots on S. No.49, Hissa Nos.2 to 9, 16 to 19 and 23 at Ghorpadi, Pune bearing No.DPO 6904/XI/54 dated 17/11/2003 and hence the facilities and amenities described in Schedule IV A & IV B provided to each of them are in common to the Bungalow/Unit holders of the layout.[9]
Further, relevant paragraph on internal page (07) of the said Sale Deed reads as under:-
AND WHEREAS however the Consenting party i.e. the Promoters with a prudence and vision for better and undisputed use of the common amenities, facilities by both the Society No.I & II (since the Society No.I at no time denied the rights of the Society No.II to the common areas of the layout described in Schedule IV A and IV B have hereunder agreed to convey the open spaces being
1. Open Space No.B, bearing S. No.49, Hissa No.2 to 9 + 16 to 19 + 23 admeasuring 2571 sq. mtrs.
2. Amenity space bearing Plot No.42 out of S. No.49, Hissa No.2 to 9 + 16 to 19 + 23 admeasuring 928.25 sq. mtrs., more particularly described in schedule III hereunder in favour of the Society No.I always subject to the Society No.I covenant & undertaking to share & permit the use of the aforementioned common open spaces, amenity space more particularly described in the schedule III & IV A, along with the Amenities described in Schedule IV B yet to conveyed, with the flat owners of the Society No.II in terms of their respective agreements with the Consenting party and subject to the Society No.II reciprocally.
i. sharing proportional maintenance and common expenses of the common areas described in schedule III and in IV A & IV B. ii. entering into a separate agreement with the Society No.I for definition & maintenance of common areas jointly.
iii. forming a committee comprising of 5 members each of Society No.I & II for the common maintenance with a casting vote vesting unto the authorized representative of the Consenting Party.
[10] Draft of Conveyance Deed under challenge in these revision petitions expects the Builder/Developer viz.
the Revision Petitioner in Revision Petition No.156 of 2007 to execute the Deed of Conveyance in respect of entire common amenities and facilities alongwith land and building in the composite layout in favour of Respondent No.1 Society, which is not representative of all the occupants. Legally, conveyance of property means transfer of title in the land, building and common amenities and facilities.
[11] Respondent No.1 Society is claiming exclusive ownership over the land, building common amenities on the basis of agreements executed with its members. However, some agreements are also executed in favour of bungalow owners and duplex owners. Main contention of the Respondent No.1 Society is that they have paid the consideration for common amenities and facilities whereas the duplex/bungalow owners have not paid any consideration. It cannot be said that duplex/bungalow owners have not paid any consideration. Some of the duplex/bungalow owners are the original land-owners. In the development agreements executed by the Builder/Developer, these land-owners got a duplex/bungalow, which is a consideration. Looking to the complexity of the issues involved, we suggested the parties to sit together and explore the possibility of amicable settlement of dispute outside the Commission. However, unfortunately, the parties could not arrive at an amicable settlement.
We must put it on record that in the scheme executed, the occupants are from all walks of life and many of the occupants are from army background. Thus, the scheme comprises of a cosmopolitan social status.
[12] Now, the question arises before us whether the Fora constituted under the Consumer Protection Act, 1986 have a power to declare a Conveyance Deed, which is already executed, as null & void? Our answer to this question is in the negative.
[13] Since, the original land-owners and the Builder/Developer has already executed the conveyance in favour of Palm Groves Bungalows Cooperative Housing Society Ltd., vide a Sale Deed dated 17/10/2006, now there arises no question of setting aside that Sale Deed or declaring it as null & void by the Fora constituted under the Consumer Protection Act, 1986. If at all the Respondent No.1 Society viz. Palm Groves Cooperative Housing Society Ltd., has any objection or grievances in respect of Sale Deed dated 17/10/2006, it has an appropriate remedy before the Civil Court to file a civil suit seeking for a declaration that Sale Deed dated 17/10/2006 executed in favour of Palm Groves Bungalows Cooperative Society Ltd., as null & void.
[14] During the course of hearing, both the learned counsels drawn our attention to an order dated 16/04/2007 passed by this Commission. Vide an order dated 16/04/2007, this Commission had directed all the owners of flats, row-houses and bungalows to pay `500/- per month for enjoyment of common facilities and the parties were directed to deposit this maintenance charges with the Registrar, District Forum, Pune. Further, the parties were directed to submit bills of maintenance charges on or before 10th day of each month and the Registrar of the District Forum was directed to defray the expenses and maintain the accounts.
[15] Learned Counsel for the Revision Petitioners pointed out that the Revision Petitioners, as per order dated 16/04/2007 passed by this Commission, have deposited with the Registrar, District Forum, Pune; a total amount of `14,00,000/-
from time to time. However, the Revision Petitioners were not allowed by the Registrar of the District Forum to withdraw the amount for the expenses which they have incurred towards maintenance of common amenities. Learned Counsel further stated that Respondent No.1 Society was expected to deposit an amount of `59,000/- per month and for a period of 80 months, it comes to a total amount of `55,20,000/-.
However, the Respondent No.1 Society has deposited only an amount of `42,40,000/- and as against this amount, it has withdrawn an amount of `35,27,263/-. Though the Revision Petitioners have incurred expenses to the tune of `27,86,693/-, they have not been paid even a single pie inspite of the fact that they have deposited an amount of `14,00,000/-. Learned Counsel for the Revision Petitioners also pointed out that amounts withdrawn by the Respondent No.1 Society have not been spent on maintenance of common amenities and facilities but some of those amounts have been spent on building maintenance of the Respondent No.1 Society.
[16] Learned Counsel for the Respondent No.1 Society submitted that the Registrar of District Forum, Pune has only partially complied with order passed by this Commission in defraying the bills and that the bills pertaining to house-keeping, security of common facilities have not been defrayed. Electricity bills inspite of being an essential service are being paid partially. Thus, it has resulted into great financial difficulty with pending dues amounting to the extent of `40,97,586/- inspite of the fact that the Respondent No.1 Society is continuing to maintain the common facilities for the enjoyment of all owners of flats, row-houses and bungalows and the Revision Petitioners are not cooperating in the maintenance of common amenities and facilities.
[17] Registrar, District Forum, Pune is hereby directed to ensure that as per the earlier directions given by this Commission on 16/04/2007 maintenance charges are regularly paid by all the owners of flats, row houses and bungalows till the date of this order and while defraying the expenses he shall insist for audited statement of expenses and hand-over copies thereof to the disputing parties and after going through rival claims defray the expenses to the extent the amount is deposited by both the parties.
[18] In the result, all these revision petitions are allowed. Consequently, order dated 20/11/2007 passed by the District Consumer Disputes Redressal Forum, Pune in Execution Petition No.E-22 of 2007, arising out of original Consumer Complaint No.35 of 2005, decided on 16/03/2007, directing the original Opponent No.I viz. Revision Petitioner in Revision Petition No.156 of 2007 to execute the conveyance deed as prepared by the Court Commissioner in favour of the Respondent No.1/original Complainant Society is hereby set aside.
Parties shall bear their own costs.
Pronounced on 21st April, 2014 [HON'ABLE MR. JUSTICE R. C. CHAVAN] PRESIDENT [HONABLE MR. DHANRAJ KHAMATKAR] MEMBER KVS