BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION :HYDERABAD

F.A.No.1527/2007  against C.C.No.115/2007,   Dist. Forum-II,Hyderabad.                    

Between:

1.Smt. G.Usha Rani, W/o.late G.V.Rao,

   aged about 76 years, Occ:Housewife ,

    R/o.Flat No.101, Sri Shailaja Castle,

    Saidabad Colony, Hyderabad. 

2. G.Jagannadha Rao, S/o.late G.V.Rao,

    Aged about 57 years, occ:Rtd. Service,

    Flat No.504, Block A, Balaji Indra Prastha

    Apartments, Gandhi Nagar, Hyderabad.

3. G.Rama Narayana Murthy, S/o.late G.V.Rao,

    Aged about 56 years , Occ:Employee,

    Flat No.101 , Sri Shailaja Castle ,

    Saidabad Colony,

    Hyderabad.                                    … Appellants/

                                                            Opp.parties 1 to 3

              AND

1.G.Shanker Rao, S/o.late Kishtaiah ,

Aged 62 years, Occ:Retd. Employee,

R/o.Flat No.504,
Sri Shailaja Castle, Saidabad Colony,

Hyderabad.                                    … Respondent/

                                                        Complainant

2. M/s. Sri Shailaja Estates,

    Shiva Jyothi Complex, Chaitanyapuri,

     Dilsukhnagar, Hyderabad, rep. by

     Managing Partner M.Venkat Reddy.      …Respondent/

                                                              Opp.party no.4 

Counsel for the Appellant       :        M/s.D.Jagadiswar Rao         

Counsel for the Respondents   :       M/s. Bhooma Goud-R2           

CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

AND

SMT. M.SHREESHA, HON’BLE MEMBER

FRIDAY, THE SIXTEENTH DAY OF  APRIL,

                                TWO THOUSAND TEN.

Oral Order :(Per  Smt. M.Shreesha, Hon’ble Member)

        Aggrieved by the order in C.C.No.115/2007  on the file of District Forum-II, Hyderabad ,  opposite parties 1 to 3 preferred this appeal.

        The brief facts  as setout in the complaint are that the opposite parties 1 to 3  are owners of the land admeasuring 676 sq. yards at Saidabad, Hyderabad  and they entered into a Development Agreement on 23.8.1998  with opposite party no.4  for development of the said property  into a residential complex known as Sri Shailaja Castle.  As per the second condition of the  agreement, the land owners and developers are entitled to the built up area  in 40:60 ratio. The complainant submits that the opposite party no.4 allotted flat nos.101,102 ,103  and 104  in the first floor , flat nos. 401 and 402 in the 4^th floor and flat nos. 503 and 504  in the 5^th floor together with proportionate land area and car parking area.   Opposite parties 1 to 3 offered to sell flat no.504 in the  5^th floor admeasuring 820 sft. super built up area including common areas along with proportionate undivided share of land admeasuring 25 sq. yards for a consideration of Rs.3,65,000/-  to the complainant and the complainant paid the entire amount  on 23.3.2001. Opposite parties 1 to 3 also executed the sale deed in his favour.  The complainant has taken possession of the flat but the opposite parties did not allot any car parking slot  to the complainant   and constructed three shops in the cellar area   contrary to the approved plan and M.C.H. also initiated action against the opposite parties for which opposite party no.1 filed O.S.No.5249/2002 against M.C.H. in the Court of 16^th Junior Civil Judge–cum 4^th  Additional Rent Controller for perpetual injunction restraining MCH from demolishing the structure.  On 12.6.2003   the said suit was dismissed and opposite party no.1 preferred an appeal in A.S.No.311/2003  which was also dismissed and the municipal authorities  demolished illegally constructed shops. The complainant even got issued a registered notice on 4.6.2006   to the opposite parties calling upon them to demarcate and allot one car parking slot to him. He sent a reminder again on 22.6.2006   but did not receive any reply.  Hence the complaint seeking direction to the opposite parties to provide convenient car parking slot  in the stilt area of Sri Shailaja Castle  to the complainant and to pay  compensation and costs. 

        Opposite party no.3 filed counter  and opposite parties 1 and 2 filed a memo adopting the counter of opposite party no.3.  Opposite party no.3 while admitting the said development agreement and ratio of allotment of 40:60  between the land  owner and developer   denied that flat nos. 101 to 104 in first floo,  flat nos.401 and 402 in 4^th floor and  flat nos.503 and 504 in fifth floor  were allotted to the opposite party no.4   with proportionate undivided share of land . The said flats under development agreement  were allotted along with the proportionate share  in the land  and car parking was allotted to them and also proportionate share to opposite party no.4 who is the developer of the said building. Flat no.504 in the 5th floor was sold to the complainant by way of registered sale deed on 23.3.2001   and there was no car parking area allotted to the complainant.  Car parking  areas allotted to them were sold under development agreement  and  the developer also sold his car parking areas to his purchasers and the complainant after a lapse of 6 years is raising this issue only with the dishonest intention that too when he  has not purchased any car parking area while purchasing the flat.  He submits that there is no deficiency in service on his behalf and further contended that the municipal corporation authorities removed the   shutters at the behest of the complainant and others which is  now used as  closed car parking by some flat owners and the complainant cannot demand  car parking area  when there is no car parking area available.

        The District Forum based on the evidence adduced i.e. Exs. A1 to A5  allowed the complaint directing the opposite parties 1 to 3 jointly and severally to provide car parking area to the complainant   together with compensation and  costs.

        Aggrieved by the said order , opposite parties 1 to 3 preferred this appeal.

        The facts not in dispute are that the complainant purchased flat no. 504 in the 5^th floor  admeasuring 820 sft. together with proportionate undivided share of land admeasuring 25 sq. yards  for a total consideration of Rs.3,65,000/- .  The main point for  consideration here is whether the complainant   is entitled for car parking area? 

        It is the case of the complainant that the opposite parties constructed three shops in the cellar area meant  for car parking and the Municipal Corporation of Hyderabad initiated action against them for which opposite parties filed case in the Court of 16^th Junior Civil Judge  which was dismissed and also preferred an appeal before the Addl. Chief Judge which was also dismissed and consequently municipal authorities demolished illegally constructed shops in the cellar area.  It is further case of the complainant that he sent a legal notice on 4.6.2006   to the opposite party for allotment of car parking along with the reminder on 22.6.2006   but did not receive any reply.  It is the case of the appellant/opp.parties that the complainant did not purchase any car parking area in the stilt portion and that the flat no.504 was  delivered to the complainant and  he was  in possession of this flat over a period of 6 years  before filing this complaint . They contend that Ex.A1 sale deed does not specify any car parking area and that the District has erred in  interpreting Ex.A1.    They further contend that there is no car parking area left for the appellant  to allot to the complainant specially  in the absence of any contract or agreement .   Ex.A1  is the sale deed between the complainant and opposite parties 1 to 3  / In page 13 of the sale deed  in Schedule of Property it is stated as follows:

        “An undivided   share of land equivalent to 25 sq. yards or 20.90 sq. Mts. Out of the total area admeasuring 676 sq.yards covered by premises no.1/M2, MCH No.16-1-24/1 m situated at Saidabad Ward No.16 – Block No.1 Municipal Corporation of Hyderabad and residential flat no.504 in fifth floor admeasuring 820 sq. feet super built- up area including common area in the residential  complex by name SRI SHAILAJA CASTLE, registration Sub District Azampura, Hyderabad.”   

As per the Apartments Act “Common areas and facilities”  unless otherwise  provided in the declaration means:

(i)                  the land on which  the building is located. 

(ii)                 Foundation, columns , girders, beams, supporters main walls, roofs  including terraces, halls, corridors, stairs , stairways , fire escapes and entrances and exists of the building:

(iii)                basements, cellars, yards, gardens, parking areas, children’s playground and storage spaces;

(iv)               the premises for the lodging of janitors or caretakers or persons employed for the management of the property;

(v)                installations of general services such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning and incinerating ;

(vi)               elevators, tanks, wells and bore-wells, pumps, motors, fans compressors, ducts and in general all apparatus and installations existing for common use;

(vii)              such other community and commercial facilities as may be provided for in the building plan and declaration;

(viii)            all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use

 As per the said Act common areas  include car parking.   The contention  of the appellants  is that the flats were sold without car parking  when  in their schedule it is clearly mentioned that the sale consideration for the flat no.504  and the common areas. As per the Apartments Act common areas include car parking. Hence   we are of the considered view that there is no reason to interfere with the well considered order of the District Forum. 

        In the result appeal is dismissed . Time for compliance four weeks. 

                                                                PRESIDENT

                                                                MEMBER

                                                                16.4.2010

Pm*