Date of Filing: 22.03.2017

                                                                                         Date of Order: 12.11.2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

HON’BLE Sri P.Vijender, B.Sc. L.L.B.  PRESIDENT.

HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER

Monday, the 12^th day of November, 2018

C.C.No.524 /2015

Between

1. Thota Venkata Swamy(83)

S/o. T.Venugopal,

Flat No.101 Sri Sai Nidhi Residency,

1028 Sri Nagar Colony, 8-3-966/7,

Hyderabad – 500073.

2. Turamalla Kusuma Kumari (74)

W/o. Thota Venkata Swamy,

Flat No.102 Sri Sai Nidhi Residency,

1028 Sri Nagar Colony, 8-3-966/7,

Hyderabad – 500073.    

Ph.No. 9440054240.                                                                     ……Complainants

And

1. Mr. Praveen Kumar,

Chief General Manager (eng.rev)

HMWSSB,

Administrative building, Transmission circle,

Khairatabad, Hyderabad – 500004.

Phone: 040-668/2222, 040-66669000.

2. The Asst. Divisional Engineer,

TSSPDCL Operation circle North Hyderabad,

Srinagar Colony Electricity Office,

Srinagar Colony, Hyderabad -500073.

As per the memo dt.4/1/2016.

3. Sri Sai Nidhi Residency Welfare Association,

President, Ms. B. Neelima,

Flat 302 Plot No.:90, Gayathri Nest,

Sri Nagar colony, Ameerpet,

Hyderabad-500073.

OP 3. Amended as per I.A.194/2016 dt.1/3/2017.                       ….Opposite Parties

Counsel for the complainants              :  Party in person

Counsel for the Opposite Parties      :  Vidyadhar Kalyani OP.No.1,

   Sri K. Lakshman OP.No.2,

   P.Vijaya Lakshmi OP.No.3.           

O R D E R

(By Sri. Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint is preferred under Section 12 of C.P. Act of 1986 alleging deficiency of services by the Opposite Party No.1 & 2 and in consequences of it seeking direction to them to restore the Water and Electricity Service connections in the name of complainant and a compensation of Rs.50,000/- for undergoing mental agony and physical strain. 

1. The substance of the complaint is that, the first complainant is the owner of a House site bearing D.No.8-3-966/7 and he gave it for development to builder who constructed six (6) flats in three (3) Floors and a small flat in fourth (4) floor.  Two flats bearing Nos.101 & 102 have fallen to the share of the complainant.  The existing water connection CAN No.063191954 and power service connection bearing No.SZ015944 were in the name of first complainant and he has been paying the charges for both there service connections.  In the meanwhile the complainants have learnt that a change has been effected in respect of both service connections by transferring the same in the name of Opposite Party No.3 association in the month of March, 2015.  The first complainant requested the Opposite Party No.1 about his apprehension and thereupon Opposite Party No.1 gave direction to Subordinates in the year, 2013 to comply to his request. A letter has been received from the office of Sub-Registrar division thereupon a representation was given condemning the letter dated 10.02.2015.  The first complainant also gave representation to General Manager Mr.Ramana Rao and Dy. General Manager, Mr.Ashok Reddy not to effect change without his consent. As per the Rule Book of HMWSSB he also sent a representation to Mr.Praveen Kumar.
2. Recently some antisocial elements in the apartment building have formed an illegal association and the complainants are not members of it.  The said Association is formed by corrupt means and ACB case is filed against Dy. Registrar.  The association has been formed with Miss.Neelima as the President, Mr. Sammaiah as Secretary and Narasimhacharyulu and Swaroopa Rani as executive members and criminal case is pending against the said persons.  They have approached General Manager and Dy. General Manager to effect the change of name for the Water and Electricity Service connections but they refused on the ground of Rule Book of HMWSSB.  Then they have approached Mr.Praveen Kumar who effected change without knowledge and consent of the complainants.  
3. Second Complainant approached said Praveen Kumar on 20.04.2015 with proper material but he spoken in a rude manner and later agreed to restore the name of the first complainant for Water and Electricity Service connections.  She also met personal assistant of Managing Director and also sent a mail to him.  She gave a letter to Director, Revenue on 19.08.2015 but expected change was not effected.  The power service connection is also changed in the name of association illegally without the knowledge and consent of complainants.  The Assistant Divisional Engineer in the office of APCPDCL Srinagar Colony was approached on 09.12.2013 requesting the restore the name of the first complainant. But, he also spoke in a rude manner.  Hence, the present complaint for the above stated reliefs.
4. All the three opposite parties have filed their independent written versions. The written versions of Opposite Party Nos.1& 2 are identical and substance of the same is as under.  The first complainant had entered into a Development Agreement with M/s. Sree Sai Ram Builders for construction of a Residential complex, in respect of his house site admeasuring 386 Sq. yards.  As per the said Developmental Agreement the first complainant has authorized developer M/s. Sree Sai Ram Builders to apply to APSEB for electricity service connection transformers and for water department for water and sewerage connection.  As per the said Developmental Agreement the first complainant shall be responsible for payment of all arrears of property tax, electricity and water consumption charges till the date of agreement and after the agreement he ceased to have any right over the said connections and developer M/s. Sree Sai Ram builders has authority to deal with these connections.  It is further stipulated in the Development Agreement that, the first complainant shall join as member of association to be formed by all the flat owners of the complex and shall abide by the Rules and byelaws of the Association.  Hence, the first complainant has no authority over the existing water and electricity service connections and developer M/s. Sree Sai Ram builders has got authority to deal with these service connections.  Hence, after the completion of construction of residential complex the connections relating to water and electricity shifted to the association of the flat owners and the first complainant shall have no objection to effect the change of name of the service connections to Srinidhi Residency Welfare Association.    
5. In terms of Development Agreement between the first complainant and M/s. Sree Sai Ram Builders, the Flat Nos.101 & 102 in the first floor with an undivided share of 110 Square yards was fallen to share of complainants.  The change of name for the service connections was effected at the request of flats owners association registered under A.P. Societies Registration Act, 2001.  All the common amenities in the complex along with the water and power service connections shall be property of Flat owners Association and each flat owner has got equal right along with the owners.
6. Effecting the change for name in the water and power supply service connections in the name of the Flat owners association does not amount to deficiency of service.    Hence, the complaint has no merits and is liable to be dismissed. 
7. Opposite Party No.3 in its separate written version sailed with of Opposite Party Nos.1 & 3 and it is further pleaded that after the construction of residential flats complex under the development agreement dated 23.03.1995 complainants family retained flat no.101 & 102 and remaining five flats were sold to different person’s for value.  The complainants used to collect common maintenance from the residents of the other flats to maintain the common area.  They used to behave as if they are the owners of all the flats and other residents in the flats are their tenants.  They used to read the letters of others and if any one questioned used to lodge false complaint.  They gave false complaints of brothel activities against some of the residencies and that a drug business activity is going on.  On the said complaints an enquiry was conducted by police and they found all the allegations made in the complaints are false and baseless. 
8. The second complainant is a petition monger and all other flat owners are sufferers in her hands.  When the actions of the second complainant become intolerable to put an end to it they have formed an association of the flat owners to look after the maintenance of the flats and got registered the same.  The complainants were also invited to join as members of the association but they refused.  The second complainant lodged a false complaint against the register who registered the association.  The complainants are not paying common maintenance to the association.  She used to pour away the water purchase from tankers into the drainage. 
9. As per the sale deeds executed in favour of the purchasers of the flats it is specific that purchasers shall join as a member of association or a Society registered under the Societies Registration Act, 2001 and shall obey rules and byelaws of the association.  The Society alone should administer and supervise the common services, passages, staircases, drainage water supply, Electricity and other common amenities for common enjoyment.  Whenever properties given for development the site owner is bound to surrender the existing water service connections to enable the Society or developer to obtain new connections.  As per the rules if there is already a water connection after development of it for an apartment building no new connection will be given unless the existing one is cancelled or surrendered.  The complainant cannot claim exclusive right over the water and power service connections as they have become common property.  Effecting the change of the name for the water and power service connections was in accordance with the rules and there is no illegality.  Hence, the complaint is liable to be dismissed.     
10.       In the enquiry stage the first complainant has got filed his evidence affidavit reiterating the substance of the complaint.  Similarly Opposite Party Nos.1 to 3 concerned officials filed their evidence affidavit.  Complainant have got exhibited fifteen (15) documents and opposite parties got exhibited nine (9) documents in all.    Both the parties have filed written arguments and supplemented the same with the oral submissions. 
11. During the pendency of the complaint first complainant expired, second complainant being the wife of the first complainant continued the complaint and filed a Memo requesting to grant reliefs prayed in the complaint in her name as second complainant and also as the legal representative of first complainant.      

8.         On a consideration of material available on the record the following points have fallen for determination.        

1. Whether there is any deficiency of service by the Opposite Parties to the complainant ?
2. Whether the complainant is entitled for the direction to Opposite Party Nos.1 & 2 and compensation of Rs.50,000/- as prayed for?
3. To what relief ?

9. Point No.1:  The material on the record shows that the first complainant as the owner of the House bearing No.8-3-966/7 situate at Yellareddyguda, entered into a Development Agreement with M/s. Sree Sairam Builders for the construction of an apartment complex on 23.03.1995 under Ex. B2.  By virtue of this Ex.B2 Development Agreement M/s. Sree Sairam Builders after securing necessary permits constructed an apartment building consisting of six (6) flats in three floors and a small residential portion on the fourth floor.  The first complainant has received the two flats towards his share as the owner of the land and his two flats are in the first floor bearing Nos.101 & 102 and the rest of the flats appears to have been fallen to the share of builder who sold away the same to the prospective purchasers.  It appears by the date of entering into Ex.B2 Development Agreement there was a water service connection as well as an electrical service connection in the name of the first complainant and said service connections are the subject matter of present complaint.  
10.            It is evident from the record that, an association of flat owners was formed and it was registered with the Office of the Registrar of Societies, Hyderabad South on 20.06.2013.   But the complainants who owned two flats have not joined as the members of said association.  The stand of the complainants is the existing water service connection and power supply connection are exclusively belong to them and cannot be transferred in the name of flat owners association which came in to the existing on 20.06.2013 as evidenced by Ex.B1 Certificate.  But contrary to it the Opposite Party Nos.1 & 2 effected transfer of said service connections in the name of association, which prompted her to lodge different complainants with various authorities and the present complaint before this Forum.  It is also evident from the record that before effecting transfer of the subject service connections representations were submitted to the authorities of Opposite Party Nos.1 & 2 not to effect change of name and despite that they were transferred the name of flat owners association.  In the light of it now it is to be seen whether the complainants can continue to enjoy the existing water and power services connections as of their own.  As already said the apartment complex came into existing by virtue of Ex.B2 development agreement between the first complainant and M/s. Sree Sairam Builders a partnership firm.  This Ex.B2 Development Agreement had set forth the rights of the parties to it.  Clause -8 (a) of the Ex.B2 Development Agreement reads as under:

The second Party shall construct with its own funds as per the specification enclosed and deliver entire Ground Floor area above the stilt floor as per the plan enclosed admeasuring the super built up area of 2225 Sft. Or after due permission any such additional area or areas as may be built above the stilts in Ground Floor and two Car Parking spaces in stilt floor to the First Party towards his share.  The Second Party is entitled to retain the remaining area in stilt floor, entire first floor and Second Floor and a pent house of approximately 1000 Sq.ft. only towards its share with no further additions vertically.    

11.       As per the above clause the first complainant are entitled the entire ground floor which was divided into two flats as Flat Nos.101 & 102 with two car parking spaces in the stilt floor and the remaining entire first floor, second floor and a pent house are to the share of the developer.  So, what complainants are entitled is only two flats and two car parking areas.  There is no whisper in this entire Ex.B2 Development Agreement with regard to retaining of rights over the existing water supply connection and electricity connections. Clause -18 of the Ex.B2 Development Agreement further reads as under:

The First Party alone shall be responsible for payment of all arrears of property tax, electricity bills, water charges in respect of the schedule property levied or chargeable upto the date of this agreement.  They shall pay all these arrears before the commencement of construction.

12.        If the complaints claim that the existing water service and power supply connections are exclusive by belonging to them there is no need to specify that they are liable to pay all arrears of property tax,  electricity bills, water charges in respect of the schedule property levied or chargeable upto the date of this agreement.  The very mention of liability of the complainants to pay all the taxes and charges for Power and Water supply till the date of Agreements itself contemplates that, these service connections were also transferred along with the entire schedule property to the developer for construction of apartment complex.  Clause -15 of the Ex.B2 Development Agreement says: the complainant have authorized and empowered the builder to submit necessary applications to secure requisite permissions, sanctions and clearances from the concerned authorities and organizations for the construction of apartment building. 

Clause -15 (b) of the Ex.B2 Development Agreement further reads as under:

To apply to APSEB for requirement of Electricity connection Transformers, to the Water Department for water connection to the Drainage Department for drainage connection or to any Government authorities.

So by virtue of above Development Agreement the builder is empowered to secure required water and electricity service connections either fresh or to get transfer the existing once in their favour.   It is a fact that the charges for the water supplies goes along with the drainage charges and the complainants cannot claim that they got an independent and separate drainage to their flats after the construction of entire complex.  As such the claim of the complainants they continued to be owners of existing power and water service connections and the Opposite Party No.1 cannot transfer to the association has no legs to stand.  

13.          It is evident from the material on record that the builder after construction of the apartment complex and sale of the flats to third parties, has to transfer all the common amenities to the flat owners association.  After the formation of flat owners association they have submitted the applications to Opposite Party Nos.1 & 2 to effect the transfer of water and power service connections in its name and Opposite Party Nos.1 & 2 having examined the covenants of Ex.B2 Development Agreement effected the transfer and there is no illegality in doing so.  One of the stand taken by the complainants is the association is illegally formed by bribing the concerned persons.  It is also urged that an association cannot be registered under A.P. Societies Registration Act, 2001 and in support of it they are relying on the judgment of the Hon’ble High Court in Writ Petition No.33.  The complainants have also filed Xerox copy of judgment in the said writ petition.  A reading of the said judgments shows the registration of an association of flat owners under A.P. Societies Act, 2001 is not permissible and the Hon’ble High Court quashed the registration with the liberty to the association to register itself under any other enactment.  In the present case the complainant has not approached the Hon’ble High court for quashing the registration of the Opposite Party NO.3 Association.  This Forum has no jurisdiction either to quash registration of the Opposite Party No.3 association or to declare it as an illegal association.  Since, as on today no authority has declare registration of Opposite Party No.3 Association as illegal and not valid.  The transfer of connections by Opposite Party Nos.1 & 2 is on the basis of applications submitted under Ex.B8 letter and it cannot be termed as illegal.          
14.        The complainants are canvasing that, the so called members of the association are indulging in antisocial and illegal activities and association was formed illegally.  This Forum cannot examine these allegations.  Infact, it is evident from enquiry report submitted to Assistant Director General of Police, under EX.B6, that the second complainant is a litigant lady right from her entry into her flat in the subject apartment complex she started picking up quarrels with all the reddens one after the other on some or other silly and flimsy reasons, even intrudes into the personal matters of the residents and creates hell of nuisance for the reasons best known to her alone. 
15.  The entire material on the record does not disclose either deficiency of service by the authorities of Opposite Party Nos.1 & 2.  Hence, the point is answered against the complainant.
16.  Point No.2: In view of the above findings it is to follow that the complainants is not entitled for any of the directions and compensation prayed for.
17. Point No.3: In the result the complaint is dismissed.  No order as to costs.   

                  Typed by Typist, corrected and pronounced by us on this the 12^th day of November, 2018.

MEMBER                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

PW1                                                                                                      DW1                                                

Thota Venkata Swamy                                        M.PRabhu, O & M Div.,No.VI, OP.No.1

G. Hari Krishna A.D.E., OP.No.2

Exs. filed on behalf of the Complainant:

Exhibit: A-1 is copy of g.mal correspondence, dt.19.04.2015.

Exhibit: A-2 is copy of Letter addressed to G.M., O&M Dvi.,No.VI,Hyd.,dt.27.03.2015.

Exhibit: A-3 is copy of Letter addressed to Managing Director, HMWS & SB Board,Hyd.,dt.06.12.2013.

Exhibit: A-4 is copy of Receipt from HMWS &SB, DT.26.03.2015. 

Exhibit: A-5 is copy of Receipt from HMWS &SB, DT.21.04.2015. 

Exhibit: A-6 is copy of Electricity Bill.

Exhibit: A-7 is copy of Receipt from HMWS &SB, Dt.07.10.2015. 

Exhibit: A-8 is copy of Letter addressed to Director, HMWS & SB Board,Hyd.,dt.09.08.2013.

Exhibit: A-9 is copy of Letter addressed to Complainant No.1 from G.M.,(Engg), O & M.Div., NO.VI, HMWSSB, dt.10.02.2013.

Exhibit: A-10 is copy of Receipt from HMWS &SB. 

Exhibit: A-11 is copy of Electricity Bill.

Exhibit: A-12 is copy of W.P.No.3319 of 2013, dt.05.03.2013.

Exhibit: A-13 is copy of G.O.Ms. No.42, dt.02.02.2013.

Exhibit: A-14 is copy of Representation from Chief Minister’s Office to Complainant No.2, dt.18.07.2013.

Exhibit: A-15 is copy of Declaration form –III.

Exs. filed on behalf of the Opposite party No.1

Exhibit: B-1 is copy of customers ledger copy issued by HMWSSB.           

Exhibit: B-2 is copy of Development Agreement.

Exs. filed on behalf of the Opposite party No.3

Exhibit: B-3 is copy of Certificate of Registration.

Exhibit: B-4 is copy of Sale deeds of purchasers of flats document No.446/2012 etc.

Exhibit: B-5 is copy of Property Tax Dues details -2015-2016.

Exhibit: B-6 is copy of letter addressed to ADGP, Crime Investigation Dept., Hyd., Dt.25.10.2014

Exhibit: B-7 is copy of Development Agreement.

Exs. filed on behalf of the Opposite party No.1

Exhibit: B-8 is copy of Letter to G.M (Engg.) by O & M Div.VI by Sri Sai Ram Builders, dated 14.10.2014.

Exhibit: B-9 is copy of Letter to C.G.M. (Rev) by Sri Sai Nidhi Residency Welfare Association, dt.02.03.2015.

MEMBER                                                                                            PRESIDENT

Kps