Andhra Pradesh

Nellore

CC/35/2014

M/S Chamundeswari Encalve Apartments Owners and Tenants Association - Complainant(s)

Versus

1.Podalakuru Masthanaiah - Opp.Party(s)

S.P.S.Vijayasaradhi

31 Dec 2015

ORDER

                                                            Date of filing     :  10-02-2014

                                                              Date of disposal  : 31-12-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Thursday, this the 31st day of DECEMBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                                        

                                 C.C.No.35/2014

 

M/s.Chamundeswari Enclave Apartments’

Owners & Tenants Association,

24/III, Santhi Nagar, Nellore-3, rep. by its

 

1. President: Varidireddy Paramdhama Reddy,

S/o.Dasaradharami Reddy, Hindu,

Aged about 64 years, Retd. Divisional Engineer,

R/o.Flat No.302;

 

2. Secretary:  Kandula Rami Reddy,

S/o.Konda Reddy, Hindu,

Aged about 67 years,

Retd. Sr.Telephone Supervisor,

R/o.Flat No.204; 24/III, Santhi Nagar,

Nellore-3.             .                                                          …         Complainants

 

                      Vs.

                                                                            

1. Podalakuru Masthanaiah,

S/o.Masthanaiah, Hindu, aged about 61 years,

Contractor,

Resident of Chamundeswari Nilayam, Santhi Nagar,

Nellore Town.

 

2. Podalakuru Lakshmi,

W/o.Masthanaiah,

Residents of D.No.24-II/132, Sree

 Chamundeswari Nilayam Santhi Nagar,

NELLORE-524003.                                                         …     Opposite parties

 

This matter coming on 23-12-2015 before us for final hearing in the presence of Sri  S.P.S.Vijaya Saradhi, Advocate for the complainant and  Sri V.Chandrasekhar Reddy, Advocate for the  opposite parties 1 and 2 and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

 

       The complaint is filed against the opposite parties 1 and 2  by the complainant to direct them  to shift the electricity meters panel  board and get it fixed / erected  in another safest place in the cellar portion at their expenses; to direct them to reimburse the amount of Rs.78,000/- being penalty collected by  Municipal Corporation, Nellore from the flat owners of  complainant’s apartment i.e., the owners of flat numbers G1, 201, 202, 204 and 302; and also direct them to pay damages of Rs.3,00,000/- for their illegal and negligence attitude not removing hurdles which causing trouble to the complainant apartment occupiers and also grant costs of the complaint to him and also such other relief or reliefs as the Hon’ble Consumer Forum may deemed it fit and proper  in the circumstances of the case.

 

The factual matrix leading to filing of this Consumer Case as stated hereunder:

I. (a)   It is the case of the complainant that opposite parties 1 and 2 were the owners of  an extent of  83.96 ankanams  of site located at Nellore bit – I, CAS No.508, in the approved layout L.P.No.387/85 at Santhi Nagar, Nellore.  The opposite parties 1 and 2 had proposed to construct a residential apartment in that site and to sell the flats. In that context, they sold the above said site to 20 different persons under registered sale deeds and allotting undivided extents of share to them.  The opposite parties 1 and 2 had simultaneously entered into an agreement for construction of flats with each of the said 20 purchasers undertaking to construct 20 flats.  According to the stipulations and conditions of the said agreement of the opposite parties 1 and 2 had stated that they had obtained approval of necessary plans on sanction and permission from Municipal Authorities, Nellore vide B.A.C.C.No.73/2004, dated 12-03-2004 to construct a residential complex known as “SRI CHAMUNDESWARI ENCLAVE APARTMENTS” as per specifications mentioned in agreement for construction of flats.  After completion of said construction of said complex as per the above said agreement of construction of flats, all the purchasers of flats had taken possession of their respective flats from the opposite parties 1 and 2.  Thereafter, all the said 20 flat owners had constituted an association and got it registered under the Societies Registration Act bearing registered No.549/2006 under the name and style of Chamundeswari Enclave Apartments Owners and  Tenants  Association and  Executive committee was also formed for the welfare of the said flat owners and tenants of the said apartment and  it was only for smooth functioning of maintenance etc., affairs of the apartment.

(b)      It is also further submitted by the  complainant  in para 4  at page No.2 of the complaint that the opposite parties 1 and 2 had sold away all the 20 flats to which  approval was also obtained.  The opposite parties 1 and 2 had not  retained  any flat in the said apartment.  As per Apartment Building Rules except vehicles parking and watch room, no other construction shall be made in the cellar  site of the said apartment.  So, the opposite parties 1 and 2 had no manner of right or interest or title whatsoever over complainant’s  apartment building and appurtenant site and the opposite parties 1 and 2 are not supposed to make any constructions either in cellar portion or terrace  portion of the said apartment and appurtenant site which is meant  for common  use and benefit of the owners and  occupiers  of the flats of the said apartment.  But violating the same, the opposite parties 1 and 2 had wantonly and highhandedly got installed the electricity meters panel board besides stair case in cellar portion which is very inconvenient and congested  place and the said opposite parties 1 and 2  had unauthorizedly and illegally got constructed a house with two rooms in the cellar   portion and another room on the terrace portion in the space  in between the water overhead tank.  The opposite parties  1 and 2 had been unauthorizedly utilizing electricity connection for the said house which is meant for watchman room and further utilizing the said room in terrace portion for keeping  their  waste   articles and things.  Inspite of repeated requests of complainants, the opposite parties 1 and 2 by putting   deaf ears, had failed to remove the said unauthorizedly and illegally constructed house in cellar site and room in terrace site.  Further, as per apartment rules car parking  shall  be allotted to the flat owners of the apartment only and outsiders  shall not have any manner of right in the car parking place of the apartment provided in the cellar site.  As it is mentioned above, the opposite parties 1 and 2 did not retain any flat for them, both of them are not entitled to retain car parking place in complainant’s apartment.  But the opposite parties 1 and 2  had been utilizing two of the said car parking places in cellar site of  complainant’s apartment without allotting to needy  owners of flats of that apartment.  So, complainants had further stated that  the opposite parties 1 and 2 are trespassers  illegally and without any manner of right enjoying the property of complainant’s apartment. 

          (c)     It is also further submitted by the complainant that  in para-5 of  at page No.3 that  nearly three years back,  it was occurred fire accident due to short circuit in electricity meter panel board and the same was caused  fear of life  danger to the residents of  the above said apartment.  The electricity department people and fire department people had faced much inconvenience to control the  said fire accident as  the said electricity panel board  was erected  in a narrow and congested place that too besides stair case  without possibility of taking any precautions.  As the opposite parties 1 and 2 are in illegal occupation of cellar site and all the owners of flats were forced to get the electricity meter panel board remained in the same congested place and for the said new installation of electricity panel board, they had incurred more than Rs.50,000/- due to latches of  the opposite parties 1 and 2.  The electricity and fire department people had also gave instructions to shift the electricity panel board to safest place in cellar site.  But the same could not be done due to illegal occupation of the opposite parties 1 and 2.

          (d)   It is  also  further submitted by the  complainant in paras 6 and 7 at page Nos.3 and 4 of his complaint that  the complainant’s had also made several representations to the opposite parties 3 and 4 of Municipal Corporation, Nellore to take immediate action to remove / demolish the said unauthorized constructions  made by the opposite parties 1 and 2 in cellar portion  and terrace portion.   But, being  influenced by opposite parties 1 and 2  who are rich and having support of  un-rulling elements of at  Municipal Corporation  Authorities, Nellore did not take any action to do so till today.   Recently, after long lapse of period of completion of apartment construction, the Municipal Authorities, Nellore threatened the flat owners by stating that  flats of Chamundeswari Enclave Apartment were built violating  and deviating the original approved plan.  Hence, all the flat owners were forced to pay penalty and regularization fees to the Municipal Corporation, Nellore.

        So, the complainant and including all flat owners of the apartment were being cheated by the opposite parties 1 and 2   as  they were assured and were made to believe that the opposite parties 1 and 2 have constructed the apartment as per the original approved plan.  So,  the opposite parties 1 and 2 are liable to  reimburse the said amount paid by each of the owners of the flats of complainants apartment.  The owners of flats   are Nos.302, 204, 202 and penalty at Rs.18,000/- each  and owners of flat Nos.201 and G1 paid at Rs.12,000/- each.  The owners of other flats of complainant apartment had also paid at Rs.18,000/- and at Rs.12,000/- to the Municipal Corporation, Nellore.  But, they had misplaced their receipts and hence the owners of flat  Nos.302, 204 and 202, 21 and G1 are herewith filing  their receipts regarding penalty  paid by them to the Municipal Corporation, Nellore.  Therefore, complainant’s claim regarding those said flats are amounting to  Rs.78,000/- .

          (e)  It is also further submitted by the complainant  in para-8  at page No.4 of his complaint that the complainants were constrained  to issue the legal notice dated 26-04-2013, calling upon the opposite parties and Municipal Corporation, Nellore to remove / demolish  the said unauthorized constructions made by the opposite parties 1 and 2 in cellar site and on  terrace  and also to pay the amount of penalty and fees collected by Municipal Corporation, Nellore from the complainant apartment flat owners within 10 days from the  date of the  receipt of the said notice.  The opposite parties 1 and 2 have received the above said legal notices, but failed to do so and comply with the same  and gave a reply dated 01-05-2013 with false and irrelevant allegations. 

          (f)    There are causes of action to file this complaint before the Hon’ble Consumer Forum, Nellore, which are narrated in para-9 of the complaint.

          (g)    It is also further  submitted by the complainant in para-10 at page No.5 of his complaint that  the complainant’s are being purchasers  by  paying huge amount of price to the 1^st and 2^nd opposite parties and eversince completion of construction of flats and they are in occupation and enjoyment of complainant apartment by paying property tax to the Municipal Corporation, Nellore.  The complainant association members are consumes within the definition of Consumer Protection Act, 1986 and further there is deficiency in service on the part of the opposite parties 1 and 2, who caused much inconvenience and mental agony to them for which the opposite parties 1 and 2  are also liable  to pay damages of Rs.3,00,000/- to the complainant’s association members.  Hence, the complaint.

II.  DEFENCE:

  The 1^st opposite party was resisted the complaint by filing written version/counter stating that the allegations of the complainant in the complaint are denied.  The complaint is unjust and not maintainable either in law or on facts.  The 2^nd opposite party was also resisted the complaint and denied the allegations of the complainant in it and adopts the same particulars as 1^st opposite party had stated in the written version/counter filed herein on 31-10-2014.

(i) It is the case of the opposite parties that they had admitted facts in paras 3 and 4 of their written version/counter and at the same denied that they  were not aware that 20 flats owners had constituted an association and got it registered under Society Registration Act.  It is false that the opposite parties 1 and 2 had not retained any flat in the said complainant’s Apartment.  The other allegations of the complainant about the opposite parties are denied.

(ii) It is also further submitted by the opposite parties 1 and 2 that in paras-5 and 6  of their written version/counter that nearly 3years back in the said above apartment, it was occurred fire accident due to short circuit in the meters panel board and it caused fear of life and danger to the residence of the above said apartment and those department people had faced lot of inconvenience to control the said fire accident as meter panel board which was elected in a narrow and congested place besides stair case without possibility of in taking any precautions and the flat owners had incurred  Rs.50,000/- for installation of new meter panel board due to the latches of opposite parties 1 and 2 and those departmental people had gave instructions to shift the meter panel board to safest place in the cellar site of the said apartment.  The allegations which are contained in para 6 of the complaint that the complainant had made several representations for removal of the unauthorized constructions and the Municipal Corporation, Nellore  and they did not take any action as opposite parties are influenced, rich, and support unruly elements are false and invented for the purpose of the filing this complaint.  The above said Municipal Corporation, Nellore had threatened the flat owners  stating that the flats in the said apartment were built violating on deviating original approval plan and imposed penalty and regularization fees and the owners of the flat Nos. 302, 204 and 203  paid penalty of Rs.18,000/- each and the owners of the flats nos.201and G1 paid Rs.12,000/- each and the owners of the other flats had also paid Rs.18,000/- and Rs.12,000/- to the Municipal Corporation, Nellore and some of them misplaced their receipts are all false and invented for the purpose of filing this complaint.

(iii) It is also submitted by the opposite parties that in para 8 of their written version/counter that the agreement for construction of a flat is a contract governed by the Indian Contract Act and there is no deficiency in service on the part of the opposite parties 1 and 2.  The relationship between the parties, is the seller and purchasers.  The purchase of flats in the complainant’s Apartment was about 10 years back and the said Apartment owners cannot question about the deviations etc and claim of them, barred by Law of Limitation Act.  The claim of them for damages at Rs.3,00,000/- was unjust.  They were alone liable to pay the penalty if any paid to Municipal Corporation, Nellore.

(iv) It is also submitted by the opposite parties 1 and 2 that in para 9 of their written version/counter that the allegations of the complainant Apartments Owners that the opposite parties were let out the cellar portion on a monthly rent of Rs.3,000/-and they had un-authorizedly utilizing the electricity connection for the said house which was meant for watchman’s room and further utilized the said room in terrace portion for keeping  the waste material are all false.  In this context, the opposite parties 1 and 2 had obtained an electricity connection bearing no.3313106058054 for the said room for watchman in the said cellar portion.  It is also false  that the car parking  place shall be allotted to the flat owners of the Apartment only, outers shall not had any manner of right in the car parking place.  All the flat owners had not required the car parking place and the said flat owners by names T.Bhishma Rao, A. Mallikarjuna Singh and Mansoor had executed agreements dt.2-9-2005 in favour of the opposite parties 1 and 2 stating that they were not required the car parking place and hence the said opposite parties had retained two car parking places since they were the owners of the remaining site in the said apartment and using the same for their benefit.

(v) It is also further stated by the opposite parties 1 and 2 in para-10 of their written version/counter they settled flat G1 in favour of their son on         31-07-2007 and delivered possession to him.  Subsequently, the Municipal Authority, Nellore had tried to interfere with the constructions stating that it was constructed unauthorizedly and hence their son filed a suit in O.S.No.1085/2007 on the file of Jr.Civil Judge, Nellore of permanent injunction  and the said suit was dismissed as against the said decree and judgment of their son by name Mr. one Mahesh filed an appeal in  A.S.No.139/2012 which is pending before the I Addl. District Judge, Nellore.  Thus, the subject matter in respect of the unauthorized construction is

subjudice in the said appeal and the Hon’ble Forum has no jurisdiction to entertain the complaint.

(vi)  It is also further stated by the opposite parties 1 and 2 in para-11 of their written version/counter that they had already sold the flats to the flat owners in the year 2005 in accordance with the approved layout plan.  At the time of taking delivery of the flats, the members of the Complainant Apartment had executed a document on stamped paper submitting that the said construction of the said Apartment was made in accordance with the approved building plan and they had satisfied their construction of the said Apartment.  The said flat owners had also agreed that they will not lay any claim against the opposite parties 1 and 2 in respect of the construction of the said Apartment in future.  After taking delivery of the flats, the complainant’s Associations had made some unauthorized alterations in the said flats to suit their convenience and so the Municipal authorities, Nellore had levied penalty on them.

(v)  Under the said circumstances of the facts and situation, it is prayed that the Honourable Consumer Forum may be pleased to dismiss the complaint with exemplary costs.

III. That an chief-affidavit was filed on 08-01-2015 by one Mr.V.Paramdhama Reddy, retired Divisional Engineer who is resident of flat no.302 of the said complainant’s Association Apartment and marked the documents as Exs.A1 to A12 on their behalf as PW1; whereas the 1^st opposite party had also filed his chief-affidavit on 05-08-2015 and marked the documents on behalf of opposite parties 1 and 2 as Exs.B1 to B17. The complainant had also filed the written arguments of the case on 11-09-2015 whereas the written arguments of opposite parties had also field on           26-08-2015 in support of their case.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainants?

(b)Whether the complainants are entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

   V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.    It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainants:

    The learned counsel for the complainant, Sri S.P.S.Vijaya Saradhi has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has further argued that the basic facts of the case are not denied by the opposite parties.  The opposite parties 1 and 2 had not retained any flat in the said Apartment. The opposite parties were not supposed to make any constructions either in cellar portion or terrace portion of the said apartment and appurtenant site which was meant for common use and benefits of the said owners and occupiers of the flats of said apartment.  But violating the same, the opposite parties had wantonly and highhandedly got installed the electricity meters penel board besides staircase in cellar portion which causes very inconvenient and it was congested place.  In the month of March, 2012, the said opposite parties had un-authorizedly and illegally got constructed a house with two rooms in the cellar portion to outers on monthly rent of Rs.3,000/-.

    So, the opposite parties 1 and 2 had no manner of right or interest or title whatsoever over complainant’s apartment association building and appurtenant site. Fire accident took place in the apartment for nearly 3 years back.

Documentary evidence:

     Moreover, the said learned counsel for the complainant has further contended that the flat owners had incurred more than Rs.50,000/- because of the latches of opposite parties 1 and 2.  The electricity and fire department people had also gave instructions to them to shift the electricity panel board to safest place in cellar site. Particularly in other portion of the Apartment. They are some of them paid penalty to Municipal Corporation, Nellore without their fault.  They are entitled to reimburse the said amount in the complaint.  Inspite of legal notice dt.26-4-2013 of the flat owners to the opposite parties 1 and 2 (Exs.A7), turned be to futile and they had received a reply notice         dt.1-5-2013(Exs.A9).  Exs.A11 is relating to the list of names of 20 flat owners of Complainant’s Apartment. The demand notices               dt.15-11-2010; 30-08-2010; 23-12-2010; 27-12-2012 from the proceedings of the Commissioner, Municipal Corporation, Nellore (Ex.A5), the said Apartment’s owners are is subjected to penalty for unauthorized constructions and penalization orders issued to them.  It is clearly proved that opposite parties 1 and 2 are responsible for their illegal constructions but not the said flat owners.  The opposite parties 1 and 2 had been utilizing two car parking places in cellar site of complainant’s Apartment and they are trespassers and illegally enjoying the said place.

     Finally, the said learned counsel for complainant has urged that the flat owners of the said apartment are consumers within the meaning as laid down in the Consumer Protection Act, 1986.  They are entitled to the reliefs as prayed for in the complaint.  It is prayed that the Hon’ble Consumer Forum may pleased to allow the complaint with costs.  

 

Oral Submissions by the learned counsel for the opposite parties:

    On the other hand, Sri Venkati Chandrasekhar Reddy, the learned counsel of the opposite parties has also vehemently argued that the written version/counter, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that the complainant’s association members had purchased the flats in the said apartment about 10 years back and now they cannot question about the deviations etc. and the claim of the complainants are barred by law of limitation and the claim for damages at Rs.3,00,000/- is not at all substainable. 

    The said learned counsel for the opposite parties 1 and 2 has further advanced his oral arguments that they had obtained an electricity connection bearing no.3313106058054 for the said room meant for watchman in the cellar portion.  All the flat owners had not required the car parking place and the said owners namely one Mr.T.Bhishma Rao, Mr.Alluru Mallikarjuna Singhg and Mr.Mansoor had executed agreements dt.02-09-2005 in favour of the opposite parties 1 and 2 stating that they are not required car parking place and so opposite parties 1 and 2 had retained two car parking places since they are the owners of the flats.  The opposite parties 1 and 2 settled a flat no.G1 in favour of their son on 31-07-2007 and delivered possession to him. Subsequently, the Municipal Authorities, Nellore had tried to interfere with the construction stating that the said apartment was constructed unauthorizedly and so opposite parties son had filed a suit on the file of I Addl.Jr.Civil Judge as O.S.No.1085/2007 for permanent injunction and the said suit was dismissed as against the judgment and decree, he filed an appeal in A.S.No.139/2012 on the file of I ADJ Nellore and it is pending for disposal.  The said learned counsel has further contended that the aspect of “unauthorized construction” was made by the opposite parties in the apartment is true as per the contents of para- No.4 of opposite parties in their written arguments.

 

     He has also further urged that the electricity panels boards are standing in the names of flat owners and opposite parties are nothing to do with the same.  Exs.B1 to B17 are the documents relating to the agreements executed in favour of the opposite parties by the flat owners with regard to occupation by them and expressed their satisfaction (consent letters).  The opposite parties are nothing to do with the payment of the penalty to the Municipal Corporation, Nellore by the said flat owners nos. 302, 204 and 202.  There is no deficiency in service on the part of the opposite parties towards the complainant. Finally, it is prayed that the Hon’ble Consumer Forum may pleased to dismiss the complaint with exemplary costs.

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence. The oral arguments are also submitted to us by the learned respective counsel for their parties.  Ease case has to be judged on its own facts.

      The crucial point is involved for consideration in this consumer case that whether the opposite parties 1 and 2 have played a foul play with the construction of complainant’s Apartment and they are the root cause for issuance of the proceedings of the Commissioner, Municipal Corporation, Nellore. By issuing of such notices to some of the flat owners for payment of regularization fees and for violating the rules for unauthorized constructions” in the Apartment made by the opposite parties 1 and 2.

    To appreciate the controversy between the parties, it is required to analyze the consumer case on the topic of “relevant provisions of A.P.Apartments  (Promotion of construction and owenrship) Act (29 of 1987)”

 

Case-Law :   

Initially the definition of term “service” under the Consumer Protection Act, 1986 did not included the term “Housing Construction”, but it was specifically included therein  by the C.P. (Amendment) Act 1993.So, various housing and development boards engaged in the business of  providing housing by acquiring land, developing sites and constructing houses thereon are clearly covered by the Act and they can be held liable for any deficiency in service.(“U.P.Awas Evam Vikas Parishad (U.P.Housing  Development Board) v.Garima shukla, 1991, CPR 387 (NC).

 Though flat or plot is immovable property and is not goods, there can be deficiency in sale of flat/plot/building.

 As per A.P.Apartments (promotion of construction and ownership/Act(29 of 1987),  the original sanctioned building plan, if at all if there is any modification, it can be made only with the consent of all flat owners.  (i) According to the Section 4 of the said Act, the builder has no right to touch the plan or the declaration for whatever the reasons.  From this, it follows that according to the approved plan whatever space is left for car parking in the said  floor, the same cannot be modified at all.  If the builders can make use of any common areas in any way they like, it would lead to clearly breach of the provisions of the above said Act, of 1987. (ii) When once the first flat is purchased by any person, for the first time, such purchaser and the builder become common owners for all the amenities and facilities that are provided or to be provided, only according to the plan approved. (iii) The preamble of the Act states that in view of the Eighteenth Report of the Andhra Pradesh State Law Commission and on the lines of the Maharashtra Act, a legislation is necessary to regulate the promotion of construction and sale of apartments in multi-stored buildings on ownership basis and also to provide “for the transferability and heritability by the individual purchaser of not only the particular apartment but also the fractional interest to it in the common areas and facilities”. (iv) Under Section 3(d) of the Act, “Common areas and facilities” are defined as under:-

3. “ Common areas and facilities” unless otherwise provided in the declaration, means:

1. The land on which the building is located;
2. Foundation, columns, girders, beams, supporters, main walls, roofs including terraces, halls, corridors, stairs, stairways, fire-escapes and entrances and exits of the building;
3. Basements, cellars, yards, gardens, parking areas, children’s playground and storage  spaces;
4.  The premises for the lodging of janitors or caretakers or persons employed for the management of the property;
5. Installations of general services, such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning and incinerating;
6. Elevators, tanks, wells and bore-wells, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
7. Such other community and commercial facilities as may be provided for in the building plan and declaration:

                                                                  (Emphasis supplied)

8. All other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use.”

           Under Section 4 of the Act, before selling the flats as per the agreement contemplated under Section 5, the builder should make full disclosure of his title, entire plan, specifications fittings designate under Section 6, it is further mandated that after the plans, specifications and the nature of the fixtures, fittings amenities and common areas as sanctioned by the local authorities.  In other words, once the builder constructs the building as per the disclosure of the plan under Section 4, he shall complete the building according to such plan, if some construction is yet to be done according to the plan after selling of all the flats, he shall have to simply complete those constructions and leave the building and go.  Whatever, the remaining common areas and facilities which are provided as per the plan approved and all other amenities, as contemplated under the definition of “common areas and facilities”.

Section 9 (i) The relevant portion of Section 9 of the said Act as under:- common areas and facilities.  Each apartment owner shall be entitled to the percentage of un divided interest in the common areas facilities as expressed in the declaration.  Such percentage shall be computed by taking as basic the value of the apartment in relation to the value of the property, and such percentage shall also reflect the limited common areas and facilities

(ii) The percentage of undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration shall not be altered without the consent of all the apartment owners. It is also said that the percentage of undivided interests in the common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or either instrument.

   The object of the said Act, 1987 is to protect such poor and middle class flat owners as against the builders, so as to see that the purchaser should know what are the facilities in that apartment area.   It is a common principle of law that any contract prohibited by Law would be a void contract. An appropriate decision rendered by the Hon’ble High Court of A.P. on the subject of – “Apartments” under the said Act, namely in the case of CSR    Estates, Flat Owners Welfare Association, petitioner Vs. Hyderabad  Urban Development Authority, Secunderabad and others, respondents AIR 1999 A.P. page 61 by His Lordship Hon’ble Justice B.S.Raikote J. A.P.High Court, Hyderabad.   This is the first decision on the subject of “Apartments”.

Builder’s obligations:

    The Supreme Court in Faqir Chand Gulati v. Uppal Agencies Pvt.Ltd. and another 2008(3)CPJ48(SC), discussed the obligations of builder.  It held “If the construction is part of a building which is law requires a completion certificate or C & D forms (relating to assessment), the builder is bound to provide the completion certificate or C & D forms.  He is also bound to provide amenities and facilities like water, electricity and drainage in terms of the agreement.  If the completion certificate and C & D forms are not being issued by the Corporation because the builder has made deviations/violations in construction, it is his duty to rectify those deviations or bring the deviations within permissible limits and secure a completion certificate and C & D forms from MCD.  The builder cannot say that he has constructed a ground floor and delivered it and therefore fulfilled his obligations.  Nor can the builder contend that he is not bound to produce the completion certificate, but only bound to apply for completion certificate.  He cannot say that he is not concerned whether the building is in accordance with the sanctioned plan or not, whether it fulfills the requirements of the municipal bye-laws or not, or whether there are violations or deviations.  The builder cannot be permitted to avoid or escape the consequences of these illegal acts.  The obligation on the part of the builder to secure a sanctioned plan and construct a building, carries with it an implied obligation to comply with the requirements of municipal and building laws and secure the mandatory permissions/certificates.

 

The concept of compensation:

   According to dictionary, the word “compensation” means compensation things given as recompense.  In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental, or even emotional suffering, insult, injury or loss. In Ghaziabad Development authority Vs.Balbir Singh, AIR, 2004 SC 2141, the Supreme Court of India held that the compensation in the form of interest should be based on finding of loss or injury and has to correlate with the amount of loss or injury in a particular case. The Supreme Court of India in the above cited case noticed that the National Commission has been awarding interest at a flat rate of 18% p.a. irrespective of the facts of each case and observed.  “This in our view is unsustainable” and gave guidelines for determining the compensation illustrating different types of situations in disputes relating to housing service.

  The Apex court in Luknow Development Authority Vs.M.K.Gupta AIR 1994 SC 787 = 2004(2) CPJ 12, held “Housing Construction service is ‘service’ within the meaning of section 2(1)(0) of C.P.Act, 1986.

  The complaint is based on deficiency in service must establish the same by leading cogent evidence. 2011(2) CPR 68 (NC).

    Compensation or damages can be awarded only, if the complainant has suffered loss or damage due to negligence of service provider – 2011(2) CPR 101(NC).  Clause(d) of Sub-section(1) of Section 14 empowers the Consumer For a to direct the opposite party to pay compensation to the consumer for any loss or injury suffered by the Consumer due to the negligence of the opposite party.  This power is exercised not only in case of deficiency in service and loss caused due to negligence.

 

        On the stand taken by both the sides in their pleadings and also in their oral arguments, we find that there are few facts which are clearly undisputed.  It is no doubt that the opposite parties 1 and 2 have obtained letters from the flat owners and they are Exs.B1 toB17.  We don’t find anywhere in the record that the opposite parties 1 and 2 have obtained letters from the concerned flat owners with regard to “car parking area” that they do not require them as alleged by the opposite parties 1 and 2.  The facts are alleged but not proved by the opposite parties 1 and 2 against the complainant.   In the instant case, it is alleged by them and stated in para-4 of written arguments of opposite parties that their son filed a suit and thereafter he filed A.S.No.139/2012 on the file of ADJ and it is pending for disposal.  Thereby, it means that subject of “unauthorized constructions” alleged by the opposite parties in the case of their son by Municipal Corporation, Nellore is true.  It is sufficient to constitute a deficiency in service and negligence on the part of opposite parties towards the complaint.  Nothing more is essential to fix up the liability of opposite parties.

We are convinced with the arguments of the said learned counsel for the complainant.  The said learned counsel for the opposite parties is miserably failed in his attempts to convince us and more over the opposite parties are clearly violated Municipal and building laws.  Mental agony of the complainant cannot be measured in terms of money.  There is no clearance certificate obtained so far by the opposite parties for their apartment from Municipal Corporation, Nellore.  The complaint is entitled to the reliefs as mentioned below in point no.3.  The electricity panel board shall be fixed in the safest place in other area and so that the members of the apartment will not suffer any more hereafter as the case may be.   These two points are held in favour of the complainants and against the opposite parties, accordingly.

POINT NO.3:   In the result, the complaint is allowed in part, ordering the opposite parties 1 and 2 jointly and severally to shift the electricity meters panel board and get it fixed/erected in another safest place in the cellar portion at their expenses; to reimburse the amount of Rs.78,000/- (Rupees seventy eight thousand only) being penalty collected by the Nellore municipal corporation from the flat owners of complainant-apartment and also directing them to pay damages of Rs.25,000/-(Rupees twenty five thousand only) towards their illegal and negligent attitude in not removing  hurdles causing trouble to the complainant apartment occupiers and also awarding costs of Rs.5,000/- (Rupees five thousand only) towards complaint to the complainant within one month from the date of the receipt of the order.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of DECEMBER, 2015.    

 

              Sd/-                                                                            Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

08-01-2015

:

Varidireddy Paramdhama Reddy, S/o.Dasaradharami Reddy, Hindu, aged about 64 years, Retd. Divisional Engineer, R/o.Flat No.302; Chamundeswari Enclave Apartments, 24/III, Santhi Nagar, Nellore-3.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

05-08-2015

:

Podalakuru Masthanaiah, S/o.Masthanaiah, Hindu, aged 61 years, resident of Chamundeswari Nilayam, Santhi Nagar, Nellore Town.

 

                                                                               

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	-	:	Photostat copy of building plan supplied by the 2nd opposite party to the complainant.
Ex.A2	24-05-2013	:	Certified extract of title deeds i.e., Sale Deed, schedule property, Rule-3 statement and schedule-A and schedule-B and annexure-1A (Agreement for construction of Flat) of Kandula Pratap Reddy, S/o.Kandula Rami Reddy (Secretary of complainants’ Association).
Ex.A3	04-06-2010	:	Property tax receipts of members of complainant association.
Ex.A4	21-03-2013	:	Electricity bills amounts for Rs.451/- and Rs.319/- of members of complainant association.
Ex.A5               Ex.A6           Ex.A7         Ex.A8   Ex.A9     Ex.A10       Ex.A11     Ex.A12	15-11-2010               -           26-04-2013         -   01-05-2013     17-01-2014       -	:               :           :         :   :     :       :     :	Copies of proceedings issued by Nellore Municipal Corporation for the amounts collected from members of complainant apartment towards addl. Charges and penalty for deviations as respondents constructed apartment flats with deviation of approved building plan.     Photographs No.6 showing the unauthorized constructions made by respondents in Stilt portion and terrace portion between pillars of overhead tank and erection of electrical panel board in dangerous narrow space beside stair case.   Office copy of legal notice got issued by the complainant association to the respondents and to others as well to the Municipal authorities, Fire Authority and the District Collector, Nellore.   Postal acknowledgements (five in nos.).   Reply notice got issued by opposite parties with false allegations.   Authorization letter issued by the complainant association members for filing complaint.     List of names of flat owners in occupation of complainant apartment.   Photostat copy of certificate of registration of societies Act, XXXV of 2001under society No.549 of 2006.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	17-12-2005	:	Photostat copy of “Oppadala Patram” of the  1st opposite party.
Ex.B2     Ex.B3     Ex.B4     Ex.B5     Ex.B6     Ex.B7     Ex.B8     Ex.B9     Ex.B10     Ex.B11     Ex.B12     Ex.B13     Ex.B14     Ex.B15     Ex.B16     Ex.B17	17-12-2005     17-12-2005     17-12-2005     17-12-2005     08-02-2006     17-12-2005     17-12-2015     17-12-2015     04-02-2006     15-11-2006     17-12-2005     17-12-2005     17-12-2005     17-12-2005     05-08-2006     15-11-2006	:     :     :     :     :     :     :     :     :     :     :     :     :     :     :     :	Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.   Photostat copy of “Oppadala Patram” of the  1st opposite party.

                                                                            Id/-                 

PRESIDENT(FAC)

 

Copies to:

 

1. Sri S.P.S.Vijaya Saradhi, Advocate, Fathekhanpet, Nellore-3.
2. Sri Venati Chandra Sekhar Reddy, Advocate, 23-2-11, 1^st Cross Road, (CAM Compound),Ramesh Reddy Nagar, Nellore-3.

           

 

Date when order copies are issued: