BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 128 OF 2015 AGAINST C.C.NO.117 OF 2013 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
Vasu Apartment Flat Owners Welfare Assn.
Plot Nos.18 & 19, Kalyan Nagar, Gaddiannaram
Dilsukhnagar, Hyderabad, rep. by its President
BLN Reddy S/o B.C.Reddy, aged 52 years
Occ: government Servant, R/o Flat No.004
Vasu Apartments, Plot Nos. 18 & 19
Kalyan Nagar, Gaddiannaram, Dilsukhnagar
Hyderabad
Appellant/Complainant
AND
- M/s Vamshi Builders rep. by
T.Raj Kumar Singh, Plot No.43,
Amarjyothi Colony, Bowenpally
Secunerabad -500 009
- S.Vikram Reddy
- P.Sravan Reddy
- V.Chandrasekhar Reddy
- P.Madhusudhan Reddy
All are R/o Pent House of Vasu Apts
Plot Nos.18 & 19, Kalyan Nagar
Gaddiannaram, Dilskukhnagar,
Hyderabad
(Respondents/Ops 2 to 5 are formal
Parties as they are struck off as per
Orders in IA No.170/2013 dt.04.09.2013)
Respondents/opposite parties
Counsel for the Appellant M/s Y.Lakna Reddy
Counsel for the Respondent M/s M.Papa Reddy
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE FIFTH DAY OF FEBRUARY
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the complainant aggrieved by the orders of District Consumer Forum-III, Hyderabad, dated 24.06.2015 made in CC No.117 of 2015 in dismissing the complaint.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that the Complainant is a Society registered under the Societies Registration Act. The Opposite Party being a Promoter and Builder built Vasu Apartment in pursuance of an agreement entered into with and the authority obtained under a Deed of Power of Attorney from the owners of the plots of land. The opposite party built a couple of rooms in the stilt area and . When the purchasers of the flats questioned the Opposite Party about the construction of rooms, he stated that the rooms were intended to serve as office rooms of the Association of the Flat Owners to be formed. But the opposite party instead of allotting the said rooms to the association gave a shape of flat to the said rooms and sold it to third parties. Not only that the Opposite Party started building two rooms on the terrace of the house contrary to the sanctioned plant. He completed construction and let it out on a rent of Rs.5,000/- per month. The Opposite Party is collecting rents and is appropriating the amount for himself. The Opposite Party has not taken steps as required under the provisions of the AP Apartments (Promotion of Construction and Ownership) Act, 1987 and the Rules thereunder. The Opposite Party has also not handed over the records relating to the Apartment House to the Flat Owners of the Association as required under the law. The pent house is built on terrace (for the use of Association Office) which is common area. The Flat Owners as a whole body and now represented by the Association are entitled to the rents fetched on the pent house and the Opposite Party is bound to transfer the pent house to the Association under a deed. The complainant felt much inconvenience to conduct the meetings as common areas is in occupation of others. The complainant issued a notice dated 05.11.2012 seeking his co-operation and handing over the documents of the apartments etc., for advancing the welfare activities of the Apartment. When the opposite party not responded to the said notice positively, the Complainant got issued a legal notice dated 23-12-2012 calling upon the Opposite Party to hand over the records remaining with him and deliver possession of the pent house and to refrain from collecting rents from the tenants and sent a copy of the notice to the tenants requesting them to vacate the house and pay, until vacating the house, rents to the Complainant. Copy of the notice was also affixed on the door of the pent house. The Opposite Party have not complied with the notice. Hence this complaint praying to direct the opposite party to deliver possession of the Pent House constructed on the terrace of the Vasu Apartments, Plot No.s 18 and 19, Kalyan nagar, Gaddiannaram, Dilsukhnagar, Hyderabad to the Complainant or alternatively direct the Opposite Party No.1 to pay an amount of Rs.15.00 lakh in lieu thereof to the Complainant; to direct the Opposite Party to deliver the original documents relating to the title of the land in the suit property, the development agreement and Power of Attorney Documents executed between the Land owners and the Opposite Party and the declaration and other enclosures filed along with the application for sanction and the sanction proceedings and plan and all other papers relating to the properly on which the Vasu Apartment House is built and to award costs.
4. The opposite party resisted the case contended that the Complainant cannot be considered to be consumer by any stretch of imagination and as such is not entitled to maintain the present proceeding. Therefore, the present complaint deserved to be dismissed on the said ground alone. The complaint is barred by limitation as the entire construction of the subject complex was completed way back in the year 2005 and the complaint was filed after 8 years of the completion of the said construction. Mere formation of the Complainant Association at the fag-end of 2012 does not ipsofacto extend the period of limitation, as sought to be portrayed, thereby enabling the Complainant to file the present complaint in the year 2013. The complaint therefore, deserved to be dismissed on the said ground also. In addition to the above it is submitted that there is no privity of contract between the complainant and the Opposite Party. Thus the complaint deserves to be dismissed on the said ground. It is submitted that admittedly the subject flat and the alleged office of the Complainant is situated at Gaddiannaram, Dilsukhnagar, which is situated in Ranga Reddy District. However, the Complainant has malafide mentioned that the complex is situated at Hyderabad, with the sole intention of filing the present complaint before this Hon’ble Forum, which lacks the territorial jurisdiction to try the complaint. Therefore, it is the District Forum at Ranga Reddy District alone which has territorial jurisdiction to try the subject complaint and conversely this Hon’ble Forum does not have territorial jurisdiction to entertain the complaint. The present complaint therefore deserves to be dismissed on the said ground alone. The very information of the Complainant association is questionable inasmuch as the association has not been formed by the majority of the occupants of the complex. It is submitted that there are total 17 flats in the subject complex, whereas the Complainant association is alleged to have been formed by only 7 members, who form minority. Therefore, the formation of the Complainant association itself being in dispute, the Complainant is not entitled to maintain the present proceeding. The Opposite Party had originally built a couple of rooms in the stilt area and when the purchasers of the flat questioned the said construction being without sanction, he has informed that the said rooms were intended to serve as office rooms of the association of the flat owners and that he has later given those rooms a shape of a flat and sold the same and appropriated proceeds thereof for himself is a blatant lie and hereby vehemently denied and the Complainant is put to strict proof of the same. It is pertinent to note that the purchaser of the said flat in the stilt floor is also said to be a member of the complainant association. Therefore, the Complainant is estopped from making contrary allegations in respect of the said issue. The allegation as made in para 3 (iv) of the complaint are quite contrary to the allegations as made in Para (iii) of the complaint. Even as per the complainant’s own contentions, the flat owners are alleged to have raised objections against the Opposite Party with regard to the alleged illegal constructions being made in the stilt and the terrace portion, way back in the year 2005. Therefore, admittedly cause of action, if any, for the purchasers or the persons aggrieved had arisen way back in the year 2005 itself. Thus, none of flat owners having initiated any proceedings against the Opposite Party with regard to the alleged illegal construction, even after more than 7 years, it is not open for the complainant to make contrary allegations and file the present complaint by considering the limitation from the date of formation of the Complainant association. The said contention is contrary to law and settled legal principles. Therefore, the present complaint as filed is hopelessly barred by limitation. In fact it is submitted that none of the flat owners had ever raised any such objections as alleged by the Complainant while the construction was being taken up in the stilt and on the 3rd floor. It is submitted that the flats construction in the stilt and 3rd floor have already been regularized by the G.H.M.C. In fact, the present complaint has been filed only at the behest of Mr. B.L.N.Reddy, the President of the complainant association who has instigated the other flat owners of the complex, with a malafide intention of unjustly enrich himself at the expense of the Opposite Party. It is submitted that the tenants have already vacated the subject flat and as such reliefs as sought for at prayer No.’s 2 and 4 are not maintainable and deserve to be rejected. It is submitted that the flat No.301 constructed on the 3rd floor has already been regularized by the GHMC vide proceedings No.2683/BPS/14/52/08 dated 22.12.2010. In fact, the Opposite Party had volunteered to assist the flat owners in formation of association after construction of the complex. However, the purchasers had represented that they alone would form an association at an appropriate time. Thus the contrary allegations as made by the Complainant are absolutely false. In so far as the formation and registration of the Complainant association is concerned, it is abundantly clear that the same has been done at the behest of Mr. B.L.N. Reddy to somehow bring the complaint within the period of limitation and to harass the Opposite Party and coerce it to yield into the illegal demands of Mr.B.L.N.Reddy, the President of the complainant association. The Opposite Party had issued a reply to the letter dated 05-12-2012 issued by the Complainant. As far as applicability of A.P.Apartments (Promotion and Construction Ownership) Act, 1987 is concerned, the same is not at all applicable to the present case inasmuch as no declaration has been filed whether by the Opposite Party or the owners before the competent authority as contemplated under the Act in order to subject themselves to the said Act. It is respectfully submitted that the Opposite Party had constructed total number of 17 flats in the said complex on land totally admeasuring 624 sq. yards. The Opposite Party and the owners of the land have transferred the undivided share of land admeasuring 544 sq. yards to the flat owners in pursuance of the terms of development agreement. Admittedly, the owners of the land have already dealt with the flats that had fallen to their share under the development agreement and they have no further claim against the opposite party either in respect of flat No.301 or the balance undivided share in the land. It is submitted that flat No.301 has come to the share of the Opposite Party. The Opposite Party is still the owner of undivided share of land admeasuring 82 sq. yards in the subject property. The owners of the land having not been made as parties to the present complaint, the same deserves to be dismissed for non-joinder of necessary parties. Relief, if any, for the complainant with regard to the said flat is by way of filing a suit for declaration seeking to declare their rights before the competent civil court and not by way of the present proceedings. Hence, the opposite party prayed for dismissal of the complaint.
5. In proof of the case of the complainant, the President of the Complainant Association has filed his evidence affidavit and got Exs.A1 to A14 marked. On behalf of the opposite party, the Managing Partner has filed his evidence affidavit and got Exs.B1 and B2 marked.
6. The District Forum after considering the material available on record, dismissed the complaint bearing CC 117 of 2013 by orders dated 24.06.2015.
7. Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to appreciate the provisions of C.P Act in their true spirit in the light of responsibility cast on the opposite party under AP Apartments (Protection of Construction and Ownership) Act, 1987. The District Forum did not consider and appreciate the reliefs sought by the complainant and also contents of the complaint, evidence affidavit and documents. The regularization of the construction in an apartment’s common area without the application or approval of all the flat owners is not legal and against the principals of natural justice. Construction of flat on the terrace and in cellar is illegal and deficiency of service on the part of the opposite party. The opposite party did not hand over the documents of title etc. The legal and moral obligation on the part of the opposite party to deliver the common area and the documents of common area to the complainant is not properly understood by the District Forum. Hence, the complainant praying to allow the appeal by setting aside the order of the District Forum and grant the reliefs as prayed for in the complaint.
8. No representation for the appellant. Sri Nelson Mathew, Advocate represented counsel on record for respondent. The counsel for the both parties have filed their respective written arguments.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
10. It is an admitted fact that the members of the association have purchased the flats from the opposite party. There is no dispute with regard to purchase of flats from the Opposite Party who is the builder by the association members. The main allegation of the complainant is that the opposite party constructed flats on the terrace and in the cellar illegally which is the common area on which the complainant is having exclusive rights. Further, it is the also the allegation of the complainant that the opposite party failed to handover the documents of title etc., to the complainant.
11. On the other hand the opposite party contended that the complaint is barred by limitation as the construction of the apartment has completed way back in the year 2005 and the complaint has filed the complaint in the year 2012 which is barred by limitation. It is also contended by the opposite party that the association has not been formed by the majority of the occupants of the complex. There are total 17 flats in the subject complex whereas the complainant association is alleged to have been formed by only 7 members who form minority. None of flat owners have initiated any proceedings against the opposite party no.1 with regard to alleged construction even after more than 7 years. The flats construction in the stilt and 3rd floor have already been regularized by GHMC. The tenants who alleged to have been residing in the alleged flats have already vacated the said flats.
12. We carefully perused the entire material placed on record. It is clearly seen from the record the opposite party left the apartments in the year 2005 by delivering the flats to the purchasers. The consumer complaint is admittedly filed on 27.9.2013. As per Section 24(A) of Consumer Protection Act, 1986, consumer complaint is required to be filed within two years from the date on which cause of action has arisen. Consumer complaint can be entertained ever after the period specified in Section 24(a) sub-Section (2) if the complaint satisfy the Forum that he had sufficient cause for filing consumer complaint within such period. In the case in hand the complainant did not file application for condonation for delay. In the case in hand the complainants did not file application for condonation for delay. In the absence of prayer for condonation of delay, the delay in filing the consumer complaint cannot be condoned suo-moto. The point of limitation is raised in the written statement. The flat purchasers brought the time barred stale claim before the District Forum. The consumer complaint is hopelessly time barred. The complainants did not place on record application for condonation of delay. The point of limitation goes to the root of the matter. Admittedly, possession of the flats in question were received by members of the association in the year 2005 onwards and at that time no objection was taken by them with regard to alleged construction, having over the documents etc.. Complainant had two years to file the Consumer Complaint but as per complainant own case, the complaint was filed only on 27.09.2013, that is, much beyond the period of limitation.
13. In H.U.D.A . Vs. Kamaljeet Kaur (Supra) this Commission has held;
In our view, from the facts stated above it is apparently clear that in the present case, there was no question of directing the HUDA to pay compensation for delay in handing over possession of the plot, firstly on the ground that possession was accepted by the complainant without any objection. Secondly complainant has accepted the possession in 1992 and, therefore, complaint after lapse of five years for the said cause was not maintainable. Thirdly, there was no delay in allotment of the plot.
14. In Pushpa Builders Flat Buyers Assn. (Supra) it was held;
The cause of action in the case at best emanated from the date of possession, i.e., 1995 and 1996, whereas the complaint in this case has been filed in the year 2000 which shows that this complaint before us is clearly barred by time under Section 24A of the Consumer Protection Act. There is no plea or application for condonation of delay on record nor is there any rejoinder filed by the complainant meeting this point. We are unable to sustain this complaint, hence, dismissed. No order on costs.
15. In view of clear proposition of law that complaint has to be filed within two years from the date of cause of action, and hence the complaint filed by the complainant is hopelessly barred by limitation is barred by time under Section 24A of the Act. Cause of action cannot arise from the date when legal notice is served. By serving the legal notice or by making representation, the period of limitation cannot be extended by complainant. In this context, reference can be made to the law laid down by Honble Supreme Court in Kandimalla Raghavaiah& Co. Versus National Insurance Co. Ltd. and another 2009, CTJ 951 (Supreme Court) (CP) wherein it was held by the Honble Supreme Court as under;
By no stretch of imagination, it can be said that Insurance Companys reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground .
16. Even on merits it is not the case of the complainant for the reason that the alleged construction of flats in the stilt area and on the terrace have been regularized by GHMC. If the complainant felt it is illegally regularized by the GHMC without the consent of the members of the association, it is the GHMC who have to answer for the said question. As far as vacating the tenants in the alleged flats is concerned the opposite party already stated in their written version that the tenants have already vacated the flats and the complainant also made them as proforma parties in the appeal. With regard to handing over of the documents is concerned, the complainant is at liberty to approach proper authorities for necessary steps to be taken for getting the said documents. With the above observations the appeal is liable to be dismissed. Accordingly, the point no.9 supra is answered accordingly.
In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.
PRESIDENT MEMBER
05.02.2018
