BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 622 OF 2014 AGAINST C.C.NO.34 OF 2012 DISTRICT CONSUMER FORUM NALGONDA
Between
Smt.Koganti Padma W/o Venkateshwar Rao,
Age: 40 years, Occ: Government Teacher,
R/o Flat No.204, Srinivasa Residency,
Khammam Cross Roads,
Kodad Town and Mandal,
Nalgonda District.
Appellant/complainant
A N D
- Tummala Ganesh Babu S/o Subba Rao,
Age: 44 years, Occ: Business
Builder and Developer of Srinivasa Residency
Apartments, Khammam Cross Road,
R/o H.No.4-54/A/3, Khammam Cross Road,
Kodad Town and Mandal of Nalgonda
District, Pin: 508 206.
- Jupudi Nagendra Prasad S/o Venkata Subba Rao,
Age: 35 yrs,Occ: Business
Builder and Developer of Srinivasa
Residency Apartment, Khammam Cross Road,
R/o H.No.27-38-1, 54/A/3, Shankara Nilayam,
Gopala Krishnaiah Street,
Vijayawada-2, Krishna District.
- Kodad Municipality, Kodad Town,
Nalgonda District, Pin:508 206
Respondents/opposite parties
Counsel for the Appellants Sri V.Gourisankara Rao
Counsel for the Respondents Served
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY FIFTH DAY OF JUNE
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the complainant dissatisfied by the orders of District Consumer Forum, Nalgonda dated 11.08.2014 made in CC No.34 of 2012 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 complainant, in brief, is that the complainant, basing on the wide publicity that the opposite parties no.1 and 2 would provide basic amenities such as parking, water etc., he had purchased flat No.204. The Opposite Parties No.1 and 2 did not furnish copy of approved plan and indulged in deviations in construction. Though they applied for permission to construct G+3 with Cellar and Ground floor but the local authority approved the plan for construction of ground floor, first floor and second floor (G+2) within the height of 13 meters. However, the Opposite Parties preferred to construct stilt floor and did not construct cellar floor below the ground floor for parking and thus deprived the flat owners of the enjoyment of common area. The Opposite Parties also did not provide other basic amenities nor supplied copy of the approved plan. The Complainant issued a legal notice to the Opposite Parties, but they did not respond. The Gram Panchayath also issued a notice to the Opposite Party No.1 to stop illegal construction of the apartment in question and in spite of it, he proceeded with the same indulging in all deviations. After long time the Opposite Party No.1 agreed to fulfill the common amenities, but except providing a pump set to the drinking water on the tank existing on the terrace, he did not execute any other works. Hence, the complaint seeking various reliefs mentioned in the complaint.
4. Opposite Party No.2 remained exparte before the District Forum.
5. The Opposite Party No.1 resisted the case while admitting that he constructed the apartment in question and that the Complainant had purchased flat No.204 in the said apartment. He contended that he provided the approved plan to the complainant otherwise the Bank would not sanction the loan to her without approved plan. The then Gram Panchayath permitted the Opposite Parties No.1 and 2 to construct cellar, stilt floor, G+2 for 18 flats vide proceedings No.897/08, dated 25/06/2008, but subsequently in view of the objections raised by the neighbourhood, the Opposite Party No.1 decided to construct only stilt floor and G+2 by dropping the cellar. The permission obtained was for 18 flats, but the Opposite Party No.1 constructed only 14 flats strictly adhering to the Apartment Rules and Regulations, 2006. The height of the apartment can be up to 18 metres in case of Gram Panchayaths. The car parking was also provided to each owner in the stilt floor. As a matter of fact, the Complainant had to pay for an extent of 323 sft. to the tune of Rs.3,78,288/- towards car parking and common areas and she agreed to pay the same and when her turn to came up she had filed this frivolous complaint. There is no deficiency of services on the part of the Opposite party No.1. The Complainant has no cause of action and as such the Opposite Party No.1 prayed for the dismissal of the complaint.
6. The Opposite Party No.3 also resisted the case contending that no part of relief is prayed against him and that any relief to be granted should be against the Opposite Parties No.1 and 2. While the construction was in progress, the Opposite Party No.3 or the then Gram Panchayath did not receive any complaint as to the deviations. However, on verification of the records maintained by the then Secretary, Gram Panchayath, it was noticed that the Secretary issued notice to the Opposite Parties No.1 and 2 vide letter No.GPK/B/897/2009, dated 22/08/2009 to stop the illegal construction whereupon the Opposite Parties No.1 and 2 got it regularized by paying the required fees. There was no act of deficiency of services committed by the Opposite Party No.3 and hence prayed for dismissal fo the complaint.
7. During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed her evidence affidavit and the documents Ex.A1 to A11 while on behalf of the opposite parties no.1 to 3, none of them filed affidavits but filed documents Exs.B1 to B10.
8. As per orders in I.A.No.10/2013 an advocate commissioner Sri Ch.Nagaraju, was appointed to make local inspection and he executed the commission work and filed his report Ex.C-1.
9. The District Forum after considering the material available on record, dismissed the complaint bearing CC No.34 of 2012 dated 11.08.2014.
10. Dissatisfied with 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 terms and conditions of Ex.A11 compromise memo in C.C.No.33 of 2012. The District Forum failed to see that i) in Ex.A9 consent letter the opposite parties no.1 and 2 have expressed their readiness to complete all the eight pending works within 15 days from 02.03.2012, ii) in Ex.A8 final notice dated 14.07.2010 the Gram Panchayat issued show cause notice to the builders demanding explanation for the illegal constructions/deviations, iii) the opposite parties no.1 and 2 have never executed any agreement with Gram Panchayat to construct the complex as per rules and regulations, iv) none of the documents filed the opposite parties no.1 and 2 reveal that the plan given by the then Kodad Gram Panchayat was regularized under BPS scheme, v) under BPS scheme no illegal construction shall be regularized I the stilt area meant for parking and vi) as per AP Apartments (Promotion of construction and Ownership) Act 1987 Occupancy Certificate is mandatory one but the builders never obtained the same. Hence, the complainant prayed to allow the appeal.
11. The appellant filed written arguments.
12. 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 ?
13. It is not in dispute that the opposite parties no.1 and are the builders and developers and constructed Srinivasa Residency Apartment in the year 2008. It is also not in dispute complainant purchased flat no.204 in the opposite parties no.1 and 2 apartment. The counsel for the appellant/complainant would contend that the opposite parties no.1 and 2 have undertaken to perform all services as per prayed in the complaint in C.C.No.33 of 2012 and the reliefs claimed in the present complaint are also similar in nature. The Opposite Party No.1 entered into compromise vide Ex.A11 and admitted all the deviations and undertook to clear them, that since the same reliefs are sought in this complaint, the compromise entered into under Ex.A-11 should be taken as an admission.
14. On the other hand, the Opposite Parties No.1 and 2 contended that the apartment was constructed strictly in accordance with rules and as neighbourhood objected for the cellar to be kept, the Opposite Parties No.1 and 2 had constructed only ground floor, first floor and second floor at the rate of four apartments on each floor and one in stilt and one flat on third floor which is misunderstood by the Complainant as pent house, that in constructing, the Opposite Parties No.1 and 2 also did not exceed the height of apartment as provided under Hyderabad Municipal Rules, according to which, in Gram Panchayath, the height of the apartments can be 18 metres. The compromise entered into in CC.No.33/2012 was only to attend to the deviations and that in fact there are no deviations and that the Complainant should stand on her own and not on the basis of the said compromise.
15. Ex.A-1 is the sale deed where under the Complainant purchased flat No.204. Ex.B-1 is the xerox copy of the approved plan. It shows that the Opposite Parties No.1 and 2 applied for construction of four apartments in each floor namely; ground floor, first floor, second floor, third floor and two apartments in stilt area. The same plan was approved, however restricting the height of the apartment to 13 metres only. As per the Commissioner Report there is a pent house on the terrace. As rightly stated by the District Forum that, while the Gram Panchayath granted construction of ground floor, first floor, second floor, third floor and also stilt, the Opposite Parties No.1 and 2 constructed only one flat in stilt and four flats each in ground floor, first floor and second floor, but did not make any construction in the third floor. Even if there is any construction in the third floor, it cannot be interpreted to be a pent house since the Opposite Parties No.1 and 2 had permission to make construction of four flats on third floor also. Thus, the total number of flats in the said apartment are 14 as against permissible number of 18. The report of the Commissioner also shows that there is parking place making provision for it in the stilt area and after parking one car in each such place, sufficient place is provided. Thus, as far as number of flats and provision of car parking, there is no deviation.
16. The Opposite Party No.3 Municipality, Kodad issued notices dated wherein they stated the then Secretary of the Gram Panchayath had issued notices to stop illegal construction, where upon the Opposite Parties No.1 and 2 got it regularized by paying the required fees. Thus, even if there are any deviations as pleaded by the Complainant, they were got regularized. As per Ex.A-11 compromise shows that the Opposite Parties No.1 and 2 undertook to perform services to Srinivasa Residential Apartments and to do all deficient services as prayed for. The sum and substance and spirit of the compromise memo is that in the event there being any deviations, the Opposite Parties No.1 and 2 will attend to them and make good of the deficiency. As far as the boundary walls are concerned, as per the report of the Commissioner, there is compound wall on all sides including a partial wall of the house of neighbour on the north of the apartment. With regard to removal of unauthorized and illegal constructions of flat in stilt and pent house are concerned as already stated, Ex.B-1 permission shows that the then Gram Panchayath permitted the Opposite Parties No.1 and 2 to construct two apartments in the stilt area, but they constructed only one. he Opposite Parties No.1 and 2 have permission to construct four flats in third floor, but they constructed only one flat in third floor which the Complainant and the learned Commissioner have misunderstand it as pent house. The opposite party no.3 in its written version submitted that to the notice dated 22.08.2009 issued by the then Secretary of GP to stop the illegal construction, the opposite parties no.1 and 2 gave reply and subsequently regularized the illegal constructions by paying requisite fees.
17. The opposite parties no.1 and 2 in their written version submitted that the complainant has not paid any amount to the common areas and as per her sale deed she has to pay an amount of Rs.3,78,288/- for an extent of 323 sft and the same is postponing on one pretext or the other. To rebut the said submission the complainant has not filed any evidence that she has paid the said amount or she has not stated anything with regard to the said payment in the affidavit.
18. With regard to the execution of transfer common amenities in favour of Srinivasa Residency Association, except the parking for which separate payment is to be made, are vested in the vendees of the flats according to Apartments Act and there is no need to transfer them.
19. Insofar as the claim for occupancy certificate is concerned, it is true the opposite parties no.1 and 2 have not handed over occupancy certificate to the complainant. It is also true that the complainant is entitled to the occupancy certificate at the time the property is handed over to him. The obligation cast on the opposite parties no.1 and 2 in handing over occupancy certificate obtained from the concerned municipal authorities has not been discharged. As such we hold the contention of the complainant that he is entitled to the occupancy certificate to be handed over to him by the opposite parties no.1 and 2 provided on payment of the amount, if any due by the complainant to the opposite parties no.1 and 2. Hence, the point framed at para No.10, supra, is answered accordingly in favour of the complainant.
In the result, the appeal is allowed in part directing the opposite parties no.1 and 2 to provide occupancy certificate in favour of the appellant/complainant on payment of the amount, if any due by the complainant to the opposite parties no.1 and 2. The other reliefs prayed for in the complaint/grounds of appeal are rejected. There is no order as to costs.
PRESIDENT MEMBER
Dated:05.06.2017
