BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st JUNE 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.30/2014
(Admitted on 17.01.2014)
1. Mr. Tukaram Shreekar Vernekar,
2. Smt. Amitha Sheshagiri Gokarnakar,
W/o Tukaram Srikar Vernekar,
Appartment No.101, Door No.11.10.198/1,
Ganesh Prasad Apartment, Casba Bazar 91,
Trishuleshwara Temple Road, Mangalore 575001.
…........COMPLAINANTS
(Advocate for the Complainants: Sri SNB)
VERSUS
- Mr S. Subramanya Shet,
Bin S. Lakshmi Narayana Shet,
Vejendra Jewellars/Jayalakshmi Nilaya,
Ramesh Compound, B.H.S. Cross Road,
Mangalore 575001.
- City Commissioner,
Mangalore City Corporation,
Mangalore.
…........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri YBPR)
(Advocate for the Opposite Party No.2: Sri GBP)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainants against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims opposite party No.1 by obtaining required licence from opposite party No.2 the competent authority and on completion of the construction licence dated 21.12.2005 with the licence that attached sketch and obtained occupancy certificate dated 28.05.2007. On 07.12.2006 complainant entered into an agreement with opposite party No.1 of purchase of flat in the separate car parking and with car parking facilities sale deed was executed by opposite party No.1 without showing car parking on 16.02.2008 and without including the parking sketch. The complainant claims that car parking is not properly given and given car parking is insufficient and this was objected to opposite party No.1 intimated of providing 13 ft by 20 ft of car parking to complainant but did not provide the registered car parking sketch. He has not responded to the request of correction of the document dated 16.02.2008 even though entire ground floor 166.96 by 173.60 is required for car parking opposite party No.1 in the said space of car parking for residential /commercial purpose put up two apartment and gave them on rent causing inconvenience to complainant and to apartment owners. Opposite party No.1 has not registered the Apartment Owner Association. The legal notice addressed even though replied by opposite party did not respond. Hence alleging deficiency in service hence seeks the reliefs claimed in the complaint.
2. Opposite party No.1 in the version contends the claim is barred by limitation has got apartment along with the car parking space in 2008 as per registered sale deed dated 16.02.2008. At the time of construction of the apartment opposite party No.1 had provided 9 car parking space in the ground floor of the apartment building known as Ganesh Prasad in R.S.No.691, T.S.No.107 measuring 10.90 cents of Casba Bazar Village of Mangalore Taluk. In the apartment building he had constructed two apartment units in the ground floor as made clear in the deed of declaration of 18.12.2006. After completion of the building complainant purchased apartment unit No.101. Complainants after personal visit to the several times and after finding the apartment unit and car parking space to be convenient and suitable to them purchased the property under registered sale deed dated 16.02.2008. The two apartment units constructed in the ground floor has been constructed even before the execution and registration of the apartment unit and the car parking space in the name of the complainants and the complainant knowing fully well about the construction work of the two apartment units in the ground floor which is made clear in the Deed of Declaration dated 18.12.2006 registered the document which has been registered prior to the execution and registration of the sale deed of the apartment unit and car parking space purchased by the complainants. Opposite party has undertaken to provide to the complainants car parking measuring 6 ½ feet in width and 20 feet in length has already provided the same to the complainants. He also undertaken to give necessary co-operation and signature to get the electricity connection of the common area of the building and the water meter to the name of the association. To the letter dated 21.12.2013 given to opposite party by complainant opposite party gave proper reply dated 07.01.2014 there is no deficiency in service and there is no cause of action for filing the complaint hence seeks dismissal of the complaint.
3. Additional version is also field by opposite party subsequent to amendment of the complaint carried out. The relief claimed by complainant for residential flat No.001 and 002 constructed in the ground floor to get rectified beyond the scope of the Forum and has no jurisdiction to entertain the complaint. Hence seeks dismissal of the complaint.
4. Opposite party No.2 in the version the alleged changes alleged to have been made inside the apartment building association under the Karnataka Apartments Ownership Act and opposite party to give a completion certificate nearly 10 years ago when the builder had constructed the building in accordance with the terms of the license and hence question of filing any complaint before this Forum against this opposite party does and cannot arise do not taking proper care as can be seen from his complaint cannot be on Consumer Forum. Hence seeks dismissal of the complaint.
5. In support of the above complaint Mr. Thukarama Shreekar Varnekar filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C10 as detailed in the annexure here below. On behalf of the opposite parties Mr. S Subramanya Shet (RW1) Owner, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 as detailed in the annexure here below.
6. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of argument. We have considered entire case file on record including evidence tendered by the parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii) : As per the final order.
REASONS
7. POINT No. (i): The allegation of complainants is of not providing the promised car parking space by opposite party No.1 and in the ground floor of the apartment building and that instead of providing space to the car parking and construction of the two apartment buildings in the ground floor though licence granted to opposite party No.1 by opposite party No.2 for construction shown as car parking spaces. Complainants allegations are the promised car parking space was not provided to them by opposite party No.1. The complainants purchased a unit No.101 apartment from opposite party No.1 in ‘Ganesh Prasad’ is undisputed. Hence there is relationship of consumer and service provider is established. There is serious dispute as to the allegation made by the complainants in respect of the facility and other aspects is scarcely falls under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
8. POINT No. (ii): There are certain aspects which are very relevant to be considered and available from the documents. The Ex.R1 is the copy of deed of declaration registered on 18.12.2006 before the Sub Registrar, Mangalore City. Opposite party No.1 is the sole signatory. As seen from the annexure A of this document in the ground floor two super built-up area units with the percentage of proportionate shown as 6.77% and 6.17% percent is mentioned. It also mentions 9 car parking provided as 0.02 x 9 and the total percentage is shown as 0.18 percent.
9. Ex.C1 is the copy of the building construction licence dated 29.12.2005 issued by opposite party No.2 to opposite party No.1. As mentioned for complainants in the complaint as well as in the arguments the sketch attached to Ex.C1 mentions the area in the column of area statement the area mentions ground floor 1st and 2 and 3rd floors. In the ground floor in the extent area mentioned in the parking extent column as parking 166.96 sq mt is shown as car parking spaces and in the index column also of extent of land ground floor is show as car parking. Hence it is clear in the licence given by opposite party No.2 to opposite party No.1 the ground floor only for car parking.
10. However it is seen from Ex.R1 annexure A mentions in the ground floor opposite party No.1 put up two apartment building. Opposite party No.1 mentions two apartment of 784 sq with door No.001 and 002 as 718 sqft. Of course as pointed out for opposite party this is inconsistent with construction licence issued to opposite party No.1 by opposite party No.2.
11. Ex.C4 is the copy of the Deed of Sale of Apartment dated 16th February 2008 under which complainants purchased the apartment description of ‘B’ schedule therein with number 101 along with car parking in the ground floor car parking with common areas and facilities. The relevant portion of description at schedule “B” as to the description of the apartment reads thus:
SCHEDULE B
(Description of the Apartment)
Apartment No.101 bearing Door No.11.10.989/1 of Mangalore City Corporation measuring 886 Sq.Ft. in the First floor of GANESH PRASAD APAPRTMENTS along with car park in the ground floor with common area and facilities of the building morefully stated in the Deed of Declaration dated 18.12.2006 along with 7.68% undivided right in the A schedule property.
12. Ex.C5 is the rectification deed of declaration executed on 14th March 2008 with in favour of complainants. As seen from the Schedule B we find no material change in this description except change in the door number from 11.10.989/1 mentioned in the B schedule of the Ex.C4 to as door No 11.10.989/1. In fact at Ex.C4 in page 2 in the 3rd para of the page there is mention made about the Ex.R1 registered on 18.12.2006 with document registered number. As pointed out for opposite party No.1 complainant cannot escape knowledge of contents of the document registered as per Ex.R1 when they made the purchase of apartment number 101 from opposite party No.1 as per Ex.C4.
13. The consequence of this is there is no mention as to the measurement of the car parking space promised by opposite party No.1 to complainants. As far as this Forum is concerned we are of the view complainants having purchased with eye vide open that there are two apartments constructed in the ground floor cannot be permitted to say that the entire ground floor was promised as car parking area. If at all it is up to the complainants and owners of other apartments to approach proper authority for violation of the construction licence if so advised.
14. It was pointed out by learned counsel for complainants that under section 321 and 321.A of the Karnataka Municipal Corporation Act 1976 mentions which are the unauthorized construction that can be regularised and Section 321(a), (b) thereafter mentioned and decided which are all unauthorised construction that cannot be regularized. Suffice to mention that if there are any dispute or violation in the construction by opposite party No.1 this Forum is not the appropriate authority to look into under section 321 and 321 (A) Karnataka Municipal Corporation Act 1976.
15. The main ground urged by complainant is only the car parking. Hence we are of the view complaint on this count is not all maintainable and the deficiency on the part of opposite party is not established by complainant.
16. Another aspect is to be noticed is that complainants purchased the property in 2008 complaint was filed in 2014 after a lapse of 6 years. As such we are of the view that on this count itself the complaint is barred by time. Thus even on this count also the complaint in not maintainable. Hence we answer point No.2 in the negative.
17. POINT NO. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 21st June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Thukarama Shreekar Varnekar
Documents marked on behalf of the Complainants:
Ex.C1: 29.12.2005: Copy of the Building construction licence
Ex.C2: 21.12.2005: Copy of the licence of approved sketch
Ex.C3: 28.05.2007: Copy of the building occupancy permission certificate
Ex.C4: 16.02.2008: Copy of the Sale Deed
Ex.C5: 14.03.2008: Copy of the Rectification Deed
Ex.C6: 11.11.2013: Request letter of complainant
Ex.C7: 21.12.2013: Request letter of complainant
Ex.C8: 07.01.2014: without signature letter of opposite party No.1
Ex.C9: 08.01.2014: Cover pertaining to opposite party No.1
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. S Subramanya Shet, Owner
Documents marked on behalf of the Opposite Party:
Ex.R1:Notarised copy of the Deed of Declaration registered as Doct.No.5986/2006.07 in the Office of the Sub-Registrar, Mangalore City.
Dated: 21.06.2017: PRESIDENT
