BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 12^TH DAY OF JULY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1.         This complaint has filed by the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1.  The OPs to rectify all problems raised during DLP period
2. Cancel the stilt car parking allotment made by OP1, which is found illegal as per the law of land.
3. OP3 to 27 not to block common area and obey the law of land without creating trouble to other residents.
4. OP3 to 27 to stop supporting OP1 to indulge in unfair trade practices by making false allegations and defaming complainants character in the owners’ association.
5. To pay compensation for causing mental harassment and agony to the complainant the sum of INR.1,00,000/-.
6. Pay cost of litigation to the sum of Rs.10,000/-

2. The case of the complaint in brief is as follows:

The complainant has purchased a flat No.B2-404 from the OP1 for consideration amount of Rs.17,60,000 towards flat value + 91250 (BWSSB & BESCOM) + Inr.2,05,040  towards registration charges and totally paid Rs.20,56,290/-.  The complainant took loan of Rs.18,50,000/- for paying interest for the same.  OP1 is the seller, OP2 is the service provider.

3. It is further case of the complainant that after occupying the above flat he noticed defect in the flat which were brought to the notice of OP1 and 2. Even though there was a DLP between OP1 and 2 from 1^st November 2014 to 31^st October 2017, OP1 through OP2 failed to maintain the building properly and also failed to resolve the problems pointed out by the complainant.

4. It is further case of the complainant that the complainant did not get proper service during DLP period.  The complainant approached the OP2 and OP2 provided the details of maintenance staff and also asked the complainant to follow.  When the complainant has persistently approached the OPs for rectifying the defects in the flat and common area they accepted to provide solutions.

5. On 27.08.2016 a detail list of problems noticed in the flats and common area were submitted to the OP2 through association and a letter was submitted to OP1 through association on 25.05.2017. Since many of the problems raised during the DLP period were not resolved by the OP even though the complainant has sent the request letters through their association on 16.08.2017, 23.09.2017 and 21.10.2017 with a request to continue the maintenance for another one year.  A joint meeting was held on 23^rd October between the EC members of the owners association and OPs to discussion about the problems.  In the said meeting the OPs assured the owners association to provide better solutions and rectify all the defects brought to their notice.  But unfortunately most of the defects were not rectified even after approaching the OPs many times. 

6. The complainant has sent so many complaints through their association on multiple dates requesting the OP1 to provide basic facilities and also to cure the defects.  But, the problems are not at all resolved.  On 04.09.2021 the executive Engineer and Assistant Executive Engineer have visited the site and inspected the problems raised by the owners association and flat owners looking at the negligence of OP1 and 2 many flat owners rectified the defects in their flats individually with their own expenses to avoid further damages, still the common area problems exists in the apartment.  

7. On 21.10.2021 the complainant has received the car parking allotment notice through whatsapp message from the concerned AEE of the OP1 to get the allotment. Complainant submitted a request letter on 25.07.2021 at the office of the OP1.  Later he has not received any response from the concerned representative of the OP1.  The complainant later found that there was no proper floor plan and the price list for the available car parking slots.  There are many discrepancies in the floor plan and price list sent by the OP1 and the same was brought to the notice of owners association and the same was escalated to the representative of OP1.

8. The main grievance of the complainant is that the OP1 before issuing the notification of car parking allotment some of the car parking slots were allotted based on the request from the individual flat owners by collecting parking charges.  The procedure followed by the OP1 during allotment of car parking slots created confusion among the owners including the complainant.  Due to insufficient covered car parking slots available in the site the complainant is now may not get the car parking.

9. It is further case of the complainant that the complainant came to know through available sources like the Judgements of the apex court and the Hon’ble NCDRC and State Commission and DCDRCs as per the law of the land the promoter/builder has no right to allot car parking area and he is only entitle for sale of the flats in any apartment.  The OP1 mislead the innocent flat owners and started selling the stilt parking as covered parking by giving a paper notification which is illegal as per the law and the OP1 made unlawful gain out of it. 

10. Later the complainant and other few owners started questioning it was come to the notice of the complainant that the OP3 to 27 have purchased the vehicle parking space at Saraswathi Apartments.  By showing the parking allottees list allegedly provided by OP1 to them. Now the said persons have totally blocked the vehicle parking area in such a way and the complainant is deprived of his parking rights assigned in the parking slots. The OP3 to 27 are not allowing the complainant to park his vehicle where the complainant have got equal right in the said property as per the sale deed executed by OP1.  The allotment made by the OP1 is illegal and they have violated the guidelines and showing a fabricated vehicle parking floor plan which has not been approved by the planning authorities. During the pendency of this complaint the complainant has impleaded OP3 to 27 in this case and sought relief against them. Hence this complaint.

11. In response to the notice, OP1 and 2 appeared and filed separate version.  OP1 admits DLP period and sale of the flat to the complainant.  The complainant has never approached the OP1 to get the defect rectified.  OP1 is not aware of the communication of the complainant.  OP1 in consultation with OP2 has made an effort to rectify the problems. In fact the representatives of OP2 were sent to the spot with labourers to rectify the issues but the flat owners did not allow them and they were sent back.  The OP1 in consultation with OP2 has made efforts to rectify some problems and the same has been resolved.   

12. It is the case of the OP1 that they have issued notification dated 31.10.2017 for allotment of available car parking on the first cum first serve basis that means to say that the available car parking slots will be allotted to the persons who pay separately the prescribed amount. This facility was made as it will be useful for the owners who do not want a car parking which is beneficial for them and financially. The OP1 has allotted the car parking slots to the allottees who paid the prescribed fees on time and allotted the parking slots as per their choice.

13. The OP1 admits notice dated 21.10.2021 issued to the owners association stating that some of the owners have been enjoying the car parking free of cost and hence they were asked to get the car parking register on a first cum first serve basis. Accepting the notice of the OP1 about 25 flat owners having approached OP1 and 23 flat owners have already paid the amount prescribed for car parking who got registered car parking slot in their respective names.  There are other flat owners who do not have any problem, but complainant is creating the problems as OP1 starting demanding the charges for car parking.  There is no deficiency of service. Hence OP1 requests to dismiss the complaint.

14. OP2 admits DLP period and ownership of the complainant over the flat.  The DLP period is already completed.  There is no deficiency of service.  The OP2 has no knowledge of communications alleged by the complainant.  Even after expiry of DLP period OP2 on good faith and humanity grounds rectified the complaints raised by the association.  OP2 is not responsible for allotment of car parking.  The complainant has made baseless allegations and there is no deficiency of service.  OP2 requests to dismiss the complaint.

15. OP3 to 18 and 20 to 25 have filed their version stating that the complaint is not maintainable either under law or on facts and liable to be dismissed.  The complainant has not made any allegation against these OPs.  The OP1 and 2 have already filed their written version. The connected matters bearing No.589/2021 and CC No.590/2021 which had the similar prayer was dismissed by this Hon’ble Commission.  In order to keep this petition alive for few days these OP.

16. It is further case of the OPs that the complainant is misleading by referring the Judgement of Hon’ble Supreme Court in Nahalchand Laloochand Pvt. Ltd., -vs- Panchali Co-operative Housing Society Ltd., which is not at all applicable to this case.  The OP1 has clearly disclosed that the car parking will be charged separately in the earlier advertisements in various daily Newspapers.  Since there are more number of flats than the number of car parking slots available in each slot, the OP1 came up with a plan to allot the car parking to the desired flat owner on first cum first serve basis.  The conditions for buying the said car parking slots are that the purchasers should be a flat owner in that block and only one car parking slot would be allotted to each flat owner.

17. It is further case of the OPs that they have purchased the said flat after due verification as per the advertisements.  The OP1 has not mislead these OPs instead it is the complainant who has created this problem and has filed this false and frivolous case by impleading these OPs who have purchased the car parking slot separately.

18. These OPs have purchased the car parking slot as per the sketch prepared by OP1 by paying the consideration amount and have got the sale deed registered in their individual name.  The allottees are parking their cars in the said parking slots allotted to them and they are in no way blocking the car parking area. The sale deed executed in favour of the complainant clearly shows that the car parking not included separately.  The sale deeds executed in favour of other flat owners are also identical the schedule to the property owned by flat owners as mentioned in schedule B and C of the sale deeds which clearly does not include the car parking area.  There is no reference in the sale deeds. When the sale deeds do not contemplate the car parking area indicating that the member who is the owner of the flat and more over the OP1 has already disclosed in the advertisement that the car parking will be charged separately and hence the purchase made by these OPs are in accordance with law.

19. It is further case of the OPs that the car parking allotment is as per the law and OP1 itself is the planning authority which require no sanction and the plan is as per the guidelines and OP1 has allotted the car parking as per the floor plan on first cum first serve basis and these OPs have approached the OP1 and has got allotted the car parking as per the floor plan.  It is the complainant who has created the problem in the society by raising each and every issue and also caused mental agony to these OPs and other residents in the locality.  The OP 1 along with OP2 have rectified the defects in the apartments, even after the completion of the DLP period and the complainant is not disclosing the same in this complaint.  

20. The prayer of the complainant are baseless and unreasonable as complainant has not suffered any kind of mental agony nor suffered any damages and hence he is not entitle for any compensation.  The complainant cannot seek the prayer to cancel the allotment made to OP3 to 27 and these allottees are not blocking the car parking instead they are parking their cars in the respective slots allotted to them.  The relief sought by the complainant for cancellation of the allotment is totally unreasonable and has caused mental harassment to the OP3 to 27. Hence they prayed for dismissal of the complaint.

21. The complainant has filed affidavit evidence and relies on 53 documents(out of which 4 documents of OP1 have been marked as Ex.P1 to P4).  OP1 filed affidavit evidence of its Assistant Executive Engineer and relied on 4 documents(similar documents are also marked as Ex.P1 to P4).  The Affidavit evidence of authorized person of OP2 has been filed and 2 documents are marked. OP3 to 27 have not led any evidence and not submitted any arguments. Heard the arguments of the complainant and perused the written argument of complainant and OP1 and 2.

22. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

23. Our answer to the above points are as under:

       Point No.1 :- Partly in the Affirmative

      Point No.2 :- Partly in the Affirmative

       Point No.3:- As per the final order.

                                REASONS

24. Point No.1 and 2:    It is admitted fact that the complainant has purchased flat No.B2-404 of Saraswathi Block on 3^rd July 2015 from the OP on 8^th June 2016 for consideration.  The grievance of the complainant that the OPs failed to rectify the problems raised during DLP period and he asked for cancellation of car parking allotment.

25. The four documents of the OP1 have been marked as Ex.P1 to P4 in advertently and 4 documents of OP1 are marked as Ex.R1 to R4.  Ex.P1 to P4 and Ex.R1 to R4 are the same documents.  At the first instance we would like to refer documentary evidence produced by both the parties.

26. It is admitted and proved from Ex.P1/P2 that OP1 issued a notice for allotment of car parking on 21.10.2021 area marking the car parking space under Ex.P2.  Ex.P3 indicates that block No.B1 has 32 car parking slots out of which 16 car parking have been allotted.  In block No.B2 out of 32 car parking 9 parking have been allotted.  Out of 64 car parking slots in B1 and B2 blocks only 25 car parking slots have been allotted.  Ex.P3 list further indicates that among 25 allottees 23 allottees have paid amount.  It is the specific case of the OP1 that the sale deeds have been executed in favour of the persons to whom parking slots have been allotted.

27. Complainant placing relies on the decision of the Hon’ble Supreme Court of India in Civil Appeal No.2544/2010 in the matter between Nahalchand Looluchand Pvt. Ltd., -vs- Panchali Co-operative Housing Society Ltd., argues that the complainant need not pay any extra amount for parking slot.  We carefully perused the facts and ratio involved in this decision.

28. It is clearly held in this decision the stilt parking spaces are part of the common amenities and the stilt parking space is not saleable at all.  The parking area is deemed to be a part of the undivided share and therefore the complainant is not obligated to pay an additional amount.

29. The complainant has also relied on the car parking allotment notification issued by OP1 on 03.11.2017 providing details of parking slots.  There is a mention about OP acknowledging the fact that they have not given the complete information about parking at the time of or prior to the allotment.  Hence the essential information is the OP1 responsibility to tell the consumer of any charges that will be levied at the initial stage so that the consumer can make an informed decision.  Hence the notification issued by OP1 on 31.10.2017 is against the natural justice.

30. The Hon’ble NCDRC in case No.315/2015 dated 03.01.2020 has clearly held that no law prevented developer from charging the cost of the basement parking from the allottees who were to pay on the basis of super area which included not only the apartment area but also the common area of the building. But having not done that the developer cannot be allowed to charge separately from the allottees for the club area and the basement used for car parking.  The Hon’ble NCDRC has also disposed off the complaint directing that the OP is not entitle to car parking charges and the car parking charges and the club charges wherever already paid to the developer shall be refunded to the concerned within three months from the today failing which the said charges shall carry interest at 9% p.a., from the date of the order till the date of refund.

31. The Hon’ble NCDRC while disposing off Revision petition No.2522/2013 dated 22.02.2022 has also relied upon the decision of the Hon’ble Supreme Court in Appeal No.2544/2010 in the matter between Nahalchand Looluchand Pvt. Ltd., -vs- Panchali Co-operative Housing Society Ltd., and also highlighted in the Judgement that the builder/promoter has no right to sell any area of building except the unsold flats.

32. The complainant has also relied on the Judgement of the Hon’ble High Court of Judicature at Madras in W.P.No.27538/2022 has answered the question that raised during the proceedings.

33. The point in issue is whether the TNHB can separately charge for the stilt area and the parking area? Here there is no case for the TNHB that stilt area and the parking area are not included when the sale of undivided share in the site is sold. Indeed if these are excluded there cannot exist any land over which undivided share can be created.

34. It is also clear from the above decision that the price paid for the undivided share necessarily includes stilt area and the parking area between the block since without these area there cannot exist some other area for the sale of undivided share of land. The stilt area is integral and form part of the total area which is divided and sold as undivided shares.  The demand further payment for the same area which is covered within the price for the purchase of undivided share is impermissible and would amount to fraud on the allottees. The stilt area cannot be converted for any other purpose as it is part of the amenities necessary for the apartment owners and the agreement as without any reservation has informed vide the standard form of contract that the allottees might have to park the vehicle in the stilt area and the inter space between the blocks.  The Hon’ble Supreme court has clearly held that the complainant is not entitle to pay car parking charges and the club membership to the OPs and also cannot force the complainant to pay the same.

35. Ex.P4/R4 clearly indicates that what are all the works carried out by the OPs in the area.  The complainant relies on Ex.P5 t

36. o P9.  Ex.P5 is the acknowledgement issued by the OP1 to Saraswathi Apartment Owners Association who made a complaint as per Ex.P6 on 25.06.2019.  As admitted by the complainant the DLP period between OP1 and OP2 was the period from ^1st November 2014 to 3^1st October 2017.  This complaint came to be filed on 23.12.2021 after four years from the date of expiry of DLP period.  Under such circumstances, the complainant has no right in saying deficiency of service and none carrying the required maintenance by OP2.  There is no DLP agreement subsequent to 3^1st October 2017 to fix the responsibility on OP2.

37. Ex.P7 is the copy of the representation submitted by Saraswathi Apartment owners association to the OP1 about certain problems in block No.1 and 2.  Even Ex.P8, P9, P10 and P11 are taken into consideration, the complainant never made any complaint with OP1 and 2 for alleged deficiency of service and not carrying necessary repairs.

38. It is the specific case of the OP2 that DLP period is already been expired and OP2 is not responsible.  Ex.R5 is the copy of the authorization issue by OP2 to RW1 Mr.Vijay.  Ex.R6 is the contract certificate indicates that the measurement was taken on 05.04.2017. The complainant has not produced any documents to show that there is a DLP agreement between OP1 and 2 subsequent to 2017.  Moreover, the complainant has not made any representation with OP1 pointing out the problem and to resolve the problems.

39. It is pertinent to note here that the complainant during the pendency of the complaint and after disposal of CC No.590/2021 dated 11.10.2022 the connected matter has impleaded the OP3 to 27 in this complaint.  Since CC No.590/2021 was dismissed for not impleading the said purchasers of the parking area in the complaint. After that the OP3 to 27 have appeared before this commission through their counsel and they have also filed their version by taking the contention that in view of the notification Ex.P24 by the OP1 they have purchased the parking spaces by paying Rs.2,00,000/- each.  The complainant and others who are using the parking place without paying any charges and the amount have raised objection for paying the amount and for purchase of the parking places as per the circular issued by the OP1 as per Ex.P24.  These OPs after obtained the registered deed from OP1 for the parking places are using the parking places for parking their vehicle lawfully.  The complainant and others who have not purchased the parking area are interfering with their lawful enjoyment of their parking places even though they are using the parking place by purchasing the same by paying Rs.2,00,000/- to the OP1.

40. The complainant has failed to establish about the OP1 and 2 have not rectify all the problems raised during the DLP period.  The complainant has also failed to establish that the OP3 to 27 are indulging in unfair trade practice. When the OP3 to 27 have purchased the parking slots from the OP1 as per the notification Ex.P24 they are using the parking spaces as rightful owners and that cannot be treated as interference to the complainant for using the parking place to park his vehicle. 

41. Admittedly the notification issued by OP1 as per Ex.P1 dated 21.10.2021 and Ex.P24 dated 31.10.2017 are not at all challenged by the complainant or any other interested flat owners of Saraswathi Apartment and these notifications are not at all set aside by the competent court or authority.  On the basis of the Ex.P1 and P24 third party rights are created. The OP3 to 27 have purchased the parking on the basis of Ex.P1 and P24 by paying the valuable consideration amount and obtained the registered sale deed from OP1. The O3 to 27 are enjoying the said parking slots as lawful owners. Unless and until these two notifications are set aside or declared as null and void by the competent court or authority the allotment made in favour of OP3 to 27 cannot be cancelled. This commission being a consumer Commission has no authority or jurisdiction to declare that Ex.P1 and P24 are illegal and has no power to set aside the Ex.P1 and P24. Hence the prayer of the complainant for cancellation of stilt car parking allotment made in favour of OP3 to 27 cannot be granted.

42. The complainant being the owner of the flat in the same apartment has got every right to use the stilt car parking in the apartment.  The OP3 to 27 have no right to interfere with the complainant’s parking of the vehicle in the stilt parking area.  Hence the complainant is only entitled for the relief to restrain OP3 to 27 from interfering with the parking of the complainant’s vehicle in the stilt car parking area.  Accordingly we answer point NO.1 and 2 in partly affirmative.

43. POINT NO.3: In view of the discussion referred above, complaint requires to be allowed in part. We proceed to pass the following;

O R D E R

1. Complaint is allowed in part.  The prayer of the complainant to direct the OPs to rectify all the problems raised during DLP period is hereby rejected.
2. The prayer of the complainant to cancel the stilt car parking allotment made by OP1 as per notification dated 31.10.2017 and 20.10.2021 in favour of OP3 to 27 is hereby rejected.
3. The complainant is entitled to use the stilt car parking for parking his vehicle.  The OP3 to 27 are hereby restrained from interfering with the complainant’s parking of the vehicle in the stilt car parking area.
4. Furnish the copy of this order to both the parties and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 12^th day of JULY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party NO.1 :  

Documents produced by the representative of opposite party NO.2 :