Date of Filing : 20.07.2006
Date of Order : 12.01.2016
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.610/2006
TUESDAY THIS 12TH DAY OF JANUARY 2016
1. N. Kulandaivelu,
2. S.Renganathan,
3. P. Rajashree,
4. D. Logasundari,
5. V. Kanthimathi,
6. B. Paul Hudson,
7. D. Mohan,
8. G. Manivannan,
9. V. Yamini,
10. Vinothkumar,
11. Vasudevan,
12. K. Nirmala,
13. M. Jaganathan,
14. M.Harish,
Complainants 12 to 14
are legal heirs of
G.Manivannan (deceased)
All are residing at
No.1, Kanniyappa Street,
Off Nerkunrampathai,
Vadapalani,
Chennai 600 026. .. Complainants.
..Vs..
1. Mrs. Karpagam,
No.3, First Dharmaraja Koil Street,
Suvalpet,
Arakonam.
2. Mr. D.Shaker Babu,
Proprietor,
M/s. TSL Associates Engineers and Builders,
No.1, Kanniappa Street,
Vadapalani,
Chennai 600 026.
3. Mrs. S.Jayanthi,
No.41, Nammalwar Chetty Sheet,
Choolai, Chennai 600 112.
4. The Member Secretary,
Chennai Metropolitan Development
Authority,
No.1, Gandhi Irwin Road,
Egmore,
Chennai 600 008. ..Opposite parties.
For the Complainant : M/s. Sampathkumar & Associates
For the Opposite parties 1 to 3 : M/s. Uma Shankar & another
For the opposite party-4 : Exparte.
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to demolish the unauthorized construction of the walls and to remove six concrete columns in the open terrace of the building and also to construct common toilet for the use of the watchman appointed for the premises, and to pay maintenance charges of Rs.8,000/- for five flats still in his possession, and also to pay Rs.5,00,000/- towards compensation for mental agony and cost of the compliant to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The opposite parties 1 to 3 are the promoter among them 2nd opposite party builder cum promoter had constructed the complaint mentioned apartment which contains 21 flats among the said flats complainants 1 to 11 have purchased their respective flats as mentioned in the complaint for occupying as owners. Subsequent to the purchase and occupation of the said flats the complainants have stated that they have formed a flat owners association. According to the opposite parties 1 to 3 among the above said 21 flats in the said apartment 18 flats have already been sold and occupied by the flat owners including complainant and remaining 5 flats are to be sold, though the entire apartment from the flats already constructed. The opposite parties 1 to 3 particularly opposite party-2 who is constructor with the collusion of other opposite parties 1 & 3 have constructed unauthorizedly six concrete columns in the open terrace of the said building against the objection of all the flat owners and also constructed unauthorizedly one wall on the western side of the premises 12.5 ft in length and 9.5 ft height and another wall on the eastern side 10 ft in length and 7.5 ft height inspite of objections made by the complainants which prevents the common space in between the said walls available in the premises for enjoyment of the complainants for taking their cars and their free driving of the cars for the purpose of parking in the premises which is against the approved plan and the complainants have further alleged that the necessary completion certificate for the purchase of the flat owners and the documents of patta by the flat owners including the complainants have not been furnished by the opposite parties 1 to 3 despite of several demands.
2. Further the complainant states that the Electric Transformer erected inside the premises was not provided with external protection which is to be provided by the 2nd opposite party and the 2nd opposite party has failed to construct a common toilet for the use of watchmen appointed for the premises. The relevant documents with regard to lift provided with the building and the key for the Meter box for the TNEB were not provided and not handed over to the flat owners by the opposite parties and the 2nd opposite party is without any permission of other flat owners maintaining a garden by using water from the common over tank which in unwarranted and the opposite parties having unsold flats of five number have not paid any monthly subscription to the association for the maintenance of the premises. As such the opposite parties 1 to 3 have committed deficiency of service as well as preventing the common enjoyment of the flat owners of their common space in the premises and hence the complainants have filed this complaint.
3. Written version of opposite parties 1 to 3 are as follows:-
It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite parties 1 to 3 states that the complainants having purchased the flats from the opposite parties 1 to 3 on the basis of undivided land purchased and construction agreement not considered to be a consumer and the allegation made against the opposite parties 1 to 3 are all baseless. As far as the construction of the wall on the western and eastern side of the premises is concerned it is not against the sanctioned plan or against the rules prescribed by CMDA and Corporation as alleged. The first complainant herein has converted his residential flat into commercial one by changing the same into a clinic. Hence the 2nd opposite party was forced to file a suit in OS.No.787 of 2006 on the file City Civil Court, Chennai. As far as one another complainant Mrs. V.Kanthimathi is concerned she has not paid entire amount for purchase of the flat and a sum of Rs.6,00,000/- is due to the opposite parties. As such the complaint filed by her is not maintainable. Hence there is no deficiency of service on the part of the opposite parties 1 to 3. Therefore this complainant is liable to be dismissed as not maintainable.
4. Complainants had filed Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant. Proof affidavit of Opposite parties 1 to 3 filed and Ex.B1 to Ex.B11 were marked on the side of the opposite parties 1 to 3 and also Ex.C1 & Ex.C2 were filed.
5. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs asked for?.
6. POINTS 1 & 2 : -
Perused the complaint filed by the complainant, written version filed by the opposite parties 1 to 3, proof affidavit filed by the 1st complainant for himself and for other complainants and the proof affidavit filed by 2nd opposite party for himself and on behalf of the opposite parties 1 & 3 and Ex.A1 to Ex.A7 filed on the side of the complainants and Ex.B1 to Ex.B11 filed on the side of the opposite parties 1 to 3, and Commissioner report Ex.C1 & Ex.C2 and also considered the both side arguments.
7. There is no dispute that the opposite parties 1 to 3 are the promoter among them 2nd opposite party builder cum promoter had constructed the complaint mentioned apartment which contains 21 flats among the said flats complainants 1 to 11 have purchased their respective flats as mentioned in the complaint and are occupying as owners. Subsequent to the purchase and occupation of the said flats the complainants have stated that they have formed a flat owners association. Whereas according to the opposite parties 1 to 3 among the above said 21 flats in the said apartment 18 flats have already been sold and occupied by the flat owners including complainants and remaining 5 flats are yet to be sold, though the entire apartment was constructed according to the CMDA approval plan filed herewith Ex.A5.
8. The complainants have raised grievance in the complaint against the opposite parties 1 to 3, particularly against opposite party-2, who is builder with the collusion of other opposite parties 1 & 3 had constructed unauthorizedly six concrete columns in the open terrace of the said building against the objection of all the flat owners and also constructed unauthorizedly one wall on the western side of the premises 12.5 ft in length and 9.5 ft height and another wall on the eastern side 10 ft in length and 7.5 ft height inspite of objections made by the complainants which prevents the complaints to use the common space in between the said walls available in the premises for enjoyment of the complainants for taking and free driving of their cars for the purpose of parking in the premises which is against the approved plan and the complainants have further alleged that the necessary completion certificate for the purchase of the flat owners and the documents of patta by the flat owners including the complainants have not been furnished by the opposite parties 1 to 3 despite of several demands.
9. Further the Electric Transformer erected inside the premises was not provided with external protection which is to be provided by the 2nd opposite party and the 2nd opposite party has failed to construct a common toilet for the use of watchmen appointed for the premises. The relevant documents with regard to lift provided with the building and the key for the Meter box for the TNEB were not provided and not handed over to the flat owners by the opposite parties and the 2nd opposite party is without any permission of other flat owners maintaining a garden by using water from the common over tank which in unwarranted and the opposite parties having unsold flats of five number have not paid any monthly subscription to the association for the maintenance of the premises. As such the opposite parties 1 to 3 particularly the 2nd opposite party is acting against the interest of the flat owner including the complainant as such the opposite parties 1 to 3 have committed deficiency of service as well as preventing the common enjoyment of the flat owners of their common space in the premises and the complainants have filed this complaint seeking this forum to pass an award against the opposite parties 1 to 3 for demolishing unauthorized construction of the walls as well as six columns in the open terrace of the building and for construction of Toilet for the use of watchmen and to pay a sum of Rs.8,000/- towards monthly subscription arrears and also to pay a sum of Rs.5,00,000/- for mental agony and hardship and litigation charges.
10. Whereas the opposite parties has raised objection stating that the first and foremost objection is that the complainants having purchased the flats from the opposite parties 1 to 3 on the basis of undivided land purchased and construction agreement not considered to be a consumer and the allegation made against the opposite parties 1 to 3 are all baseless. As far as the construction of the wall on the western and eastern side of he premises is concerned it is not against the sanctioned plan or against the rules prescribed by CMDA and Corporation. The first complainant herein has converted his residential flat into commercial one by using the same as a clinic. Hence the 2nd opposite party was forced to file a suit in O.S.No.787 of 2006 on the file City Civil Court, Chennai. As far as one another complainant Mrs. V.Kanthimathi is concerned she has not paid entire amount for purchase of the flat and a sum of Rs.6,00,000/- is due to the opposite parties. As such the complaint filed by her is not maintainable. Hence there is no deficiency of service on the part of the opposite parties 1 to 3 and the complaint filed by the complainant is totally liable to be dismissed as not on valid ground and not maintainable.
11. However considering the allegation made by the complainant in respect of unauthorized construction said to have been made by the 2nd opposite party in the open terrace of the apartment and the two unauthorized walls in the ground space at the east and west side of the building preventing the flat owners to use common space for the car parking and as running space of the concerned, the advocate commissioner report Ex.C1 and Ex.C2 are very relevant to decide the said issue. As per Ex.C1 and Ex.C2 report and Civil Engineer report who has assisted the Advocate Commissioner at the time of inspection, which reveals that there are existence of unauthorized construction of six concrete columns in the open terrace and the two walls in the ground space on the side of East and West, which are said to have been constructed unauthorizedly against the approved plan filed herewith Ex.A5. On perusal of Ex.A5 also there is no mention about the said six concrete column in upstairs of the building and also for the construction of alleged walls in the East and West of the building in the ground space. It is also pertinent to note that as per the Commissioner Report Ex.C1 and Ex.C2, due to the said two unauthorized walls, the common space in between the said walls was blocked and kept waste by preventing the flat owners to enjoy the said space as a common space. Further the said space is adjoined to the Nerkundram Salai which is a public road adjoins to the South of the said apartment, as such the grill gate fixed in the west side of the southern compound wall of the said apartment premises was also kept locked and found to be in rusted condition. Therefore as contended by the complainant that in the southern portion of the ground space, without any valid reason the 2nd opposite party has raised two unwarranted walls and unauthorized walls and the iron gate fixed in the southern compound wall was kept locked becoming rusted, as such common space of the said apartment on the southern side was kept waste by preventing the other flat owners including the complainant to use the same.
12. With regard to the six concrete column found in the open terrace of the apartment they were constructed by 2nd opposite party for the purpose of fixing hoarding forever as mentioned in the construction agreement and also stated in the reply notice issued by the opposite party-2 that as per construction agreement he has got right of use of open terrace as against the interest of the flat owners and despite of their objections. Contrary to this in the written argument filed on behalf of the opposite parties it is mentioned that the column raised in the terrace are only as safety measure for the residents of the flats and their use only. However as mentioned by the opposite parties in the construction agreement entered by the flat owners it is mentioned that the 2nd opposite party is entitled to raise column in terrace for the use of hoarding forever, such terms of retaining the right over portion by the builder i.e. opposite party-2 is not valid and not enforceable under law, since he has nothing to do with the title of the said premises after selling away the entire flats to the respective flat owners. Therefore this act of the 2nd opposite party is amount to deficiency of service caused against the complainant and other flat owners of the said premises are concerned. Further the contention of the opposite parties 1 to 3 that the said walls in the ground space in the side of East and West were constructed in accordance with the approved plan is not acceptable. Therefore the complainant’s request to remove or to demolish those unauthorized said concrete columns in the Terrance and the said walls in the east and west of the building in the ground space and to keep open iron gate fixed in the west side of the southern wall for access for the flat owners to the Nerkundram salai are all acceptable and the relief sought for in this regard by the complainants against the opposite parties 1 to 3 is justifiable and permissible.
13. Further the allegation and relief sought for the complainants in the complaint with regard to construction of toilet for the use of watchman in the premises by the opposite parties 1 to 3 it is not sustainable and permissible since there is no provision for providing the said common toilet for the use of watchman to be constructed by the 2nd opposite party constructor or to be provided by opposite parties 1 to 3 as per the construction agreement filed herewith in respect of the several flat owners including some of the complainant on the side of opposite parties as well as complainant side. Therefore since there is no specific terms and conditions found in the construction agreement entered between the complainants and the flat owners with the 2nd opposite party the complainants claim against the 2nd opposite party or the opposite parties 1 to 3 seeking construction of common toilet for use of watchman in the premises cannot be ordered and they are not entitled for the said relief sought for in the complaint against the opposite parties.
14. Further in respect of claiming of Rs.8000/- as arrear maintenance charges from the 2nd opposite party the complainants have stated that the five flats in the said premises were not yet sold and were kept and maintained by the 2nd opposite party himself as such the 2nd opposite party is liable to pay the maintenance charges to the association formed by the complainants and other flat owners towards monthly maintenance charges at the rate of Rs.500/-. However considering the 2nd opposite party is constructor cum promoter the unsold five flats in the said apartments were kept with the 2nd opposite party for seeking a proposed purchaser for sale of the said flats, in the said circumstances it may not be a valid ground for the complainant to claim monthly maintenance charges against the 2nd opposite party for the said unsold five flats. In the said circumstances claiming maintenance charges of Rs.8000/- as arrears against the opposite party-2 is not sustainable and the complainants are not entitled for said the relief sought for by the complainants against the opposite parties 1 to 3.
15. Further the complainants have raised over other allegations against the opposite parties 1 to 3 in respect of non production of patta and completion certificate for their purchase flats for which no specific relief sought for in the complaint., Further as contended by the opposite parties the completion certificate would have been possible to entitle after pending from the CMDA that too only after selling away of the flats of the apartments is acceptable. Further with regard to the allegation in respect of the electric transformer within the premises without providing protection covered by the opposite parties are deficiency of service and is to be removed seeking for the same by the complainants in the complaint is not sustainable since it is fixed on the advice of the TNEB only. Therefore for existence of the transformer within the premises the opposite parties cannot be found fault and seeking prayer for removal of the same against the opposite parties is also not sustainable the grievance if any in respect of the same to be worked out by the flat owners by approaching and taking action with E.B department. It is also pertinent to note that the common patta for the said premises would have been given to the flat owners, as such the flat owners on production of the same they have been obtained loan from the bank for the purchase of the flats are all acceptable as contended by the opposite parties.
16. However the complainants have claimed Rs.5,00,000/- as compensation against the opposite parties 1 to 3 for their deficiency of service which caused mental agony and hardship to the complainants. However considering the facts and circumstances of the case and different issues in respect of the allegations as discussed above we are of the considered view that the compensation of Rs.5,00,000/- sought for by the complainants in this case against the opposite parties 1 to 3 is very exorbitant. However considering the facts and circumstances of the case and as per above discussion we are of the considered view that the opposite parties 1 to 3 are jointly and severally directed to remove the complaint mentioned unauthorized six concrete columns existing in the open terrace of the apartment and the walls in passage one on the eastern side to a length 16.5 ft and height of 7.5. ft and another wall on the western side to a length 15 ft and height of 8.5 ft and the iron gate which is kept locked found rusted is to be opened for use as an access for the said premises to the Nerkundram Salai and the opposite parties are also directed to pay a sum of Rs.15,000/- as just and reasonable compensation and also to pay a sum of Rs.5,000/- towards litigation charges to the complainants and as such the points 1 & 2 are answered in favour of the opposite parties.
In the result the complaint is partly allowed. The opposite parties 1 to 3 are jointly and severally directed to remove the complaint mentioned / Ex.C1 & Ex.C2 Commissioner Report mentioned unauthorized six concrete columns existing in the open terrace of the apartment and the walls in passage one on the eastern side to a length 16.5 ft and height of 7.5 ft and another wall on the western side to a length 15 ft and height of 8.5 ft and the iron gate which is kept locked found rusted is to be opened for use as an access for the said premises to the Nerkundram Salai and the opposite parties are also directed to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) as compensation to the complainants within three months from the date of this order and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards litigation charges to the complainants. In respect of opposite party-4 the complaint is dismissed.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 12th day of January 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 18.1.2006 - Copy of notice from the complainant’s counsel to the
opposite parties
Ex.A2- 29.1.2006 - Copy of reply notice.
Ex.A3- 11.2.2006 - Copy of letter from the complainants to the opposite party.
Ex.A4- - - Photographs.
Ex.A5- - - Copy of Approved building plan.
Ex.A6- 18.2.2005 - Copy of Construction agreement.
Ex.A7- 18.2.2005 - Copy of Sale agreement.
Opposite parties’ Exhibits:-
Ex.B1- 22.8.2003 - Copy of construction agreement.
Ex.B2- 26.1.2004 - Copy of construction agreement.
Ex.B3- 10.5.2004 - Copy of Construction agreement.
Ex.B4- 12.5.2004 - Copy of construction agreement.
Ex.B5- 18.12.2004- Copy of construction agreement.
Ex.B6- 18.12.2004 Copy of construction agreement.
Ex.B7- 14.4.2005 - Copy of construction agreement.
Ex.B8- 12.10.2005 –Copy of construction agreement.
Ex.B9- 10.3.2005 - Copy of Memorandum of understanding.
Ex.B10- 6.7.2005 - Copy of Memorandum of understanding.
Ex.B11- 24.1.2006 – Copy of letter sent to Mr.P.Suresh by TSL
Associates.
Court’s side documents:-
Ex.C1- - - Advocate Commissioner Report.
Ex.C1- 2.8.2008 - Engineer’s Report.
MEMBER-I MEMBER-II PRESIDENT.
