Complainants in person.
Advocate Mahesh Adagale for the Opponents
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Per :- Hon’ble Shri. S. M. Kumbhar, Member
:- JUDGMENT:-
Dated 29th June 2013
Complainant has filed this complaint against the Opponent Builder and Developer for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants have purchased a flat No. 501, 5th floor, Building No.A, “Ganga Melrose”, Sopan Baug, Ghorpadi, Pune 411 001 from the Opponents vide registered Agreement dated 9th July 2009. Complainants got the possession on 17/5/2010. On 10th June 2010 Complainant shifted to the flat from Noida and was shocked to see that the Landing Space (Common Lobby) in front of the lifts on the 5th floor was reduced to approximately 2/3rd size and 1/3rd portion of the landing space (Common Lobby) was merged with flat Nos.503 and 504, which is contrary to the approved floor plan. Hence complainants sent notice to the Opponents on 9/12/2010. In reply to the notice Opponents vide letter dt.11/1/2011 informed the complainants that they have obtained revised plan from the P.MC. on 23/9/2010. According to the complainants opponents have not taken the consent of the complainants and violated the provisions of the Maharashtra Ownership of Flats Act. Hence complainants have filed this complaint. Complainants have sought direction to the opponents to reinstate the original position as per original sanction plan dated 23/3/2007 of the common lobby in front of his flat on the 5th floor. Complainants have claimed damages of Rs.3,00,000/- on account of mental agony and loss of usage of common lobby. Complainants have sought direction to restrain the opponents from carrying out any modification beyond the sanctioned plan dated 23/3/2007.
[2] Opponents filed written statement and resisted the claim of the complainants. They have admitted that as per the Agreement dated 9/7/2009 complainants purchased flat no. A-501 from the Opponents. But the lobbies in front of the flat were not common areas and facilities. Landing space in front of the complainants flat is well intact and they have no right to claim any landing space in front of flat nos. 503 and 504. As per revised sanctioned plan from P.M.C dated 23/9/2010 the said space was included in the area of flat nos. 503 and 504. Opponents have denied that common area includes the landing space. No cause of action has arisen to file the present complaint. There is no deficiency in service or breach of any of the terms of the agreement between the parties. Hence opponents have prayed for dismissal of the complaint.
[3] After perusing the record and proceedings, affidavits filed by both the parties, plans, documentary evidence, written arguments filed by both the parties and hearing the argument and filed on record following points arise for our determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainants have proved deficiency in service on the part of the Opponents ? | In the affirmative |
2 | Whether the complainants are entitled to receive compensation and costs from the opponents ? | In the affirmative |
3 | What order ? | Complaint is partly allowed |
Reasons-
As to the Point Nos. 1 to 3-
It is not in dispute that the complainants have purchased Flat No.501-A on the 5th floor in “Ganga Melrose” from the Opponents vide registered agreement dated 9/7/2009 and that the complainants have put in possession of the flat. Opponents have obtained revised plan dated 23/9/2010 from the P.M.C. and changed the common lobby area and space was included in the area of flat nos. 503 and 504. This fact is also not disputed by the Opponents. According to the complainants the lobby in front of his flat was common and opponents have no right of any modification in the building plan without express consent of the complainants as per the provisions of the Maharashtra Ownership of Flats Act. Though the opponents have denied that the lobbies were not common areas and facilities, they have failed to prove that the lobbies were meant for anybody’s specific use. As the lobbies are situated in front of the flats on the fifth floor they are meant for the common use for landing purpose. Opponents have obtained revised plan dated 23/9/2010 from the P.M.C. and then the common lobby area and space was included in the area of flat nos. 503 and 504. The revised plan is dated 23/9/2010. Agreement between the complainant and the opponent is dated 09/07/2009. That means after execution of the registered agreement between the parties, after lapse of one year, opponents have obtained the revised plan from the P.M.C. But as per the provisions of the Maharashtra Ownership of flats Act section 7 prior consent of the complainant for effecting the change in the sanction plan dated 23/3/2007 was not taken. Opponents have failed to produce any documentary evidence on record that prior consent of the complainants for revised plan was taken. As per section 7 of the Maharashtra Ownership of flats Act it was obligatory on the part of the opponents to take prior consent of the complainant. Opponents have failed to do so and this amounts to deficiency in service on the part of the Opponents. As per Section 7 of the Maharashtra Ownership of flats Act the plans and specifications which are disclosed to the flat owner cannot be altered or varied without consent of the flat owner. Section 7 of the Maharashtra Ownership of flats Act laid down as follows-
(1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed of furnished to the person who agree to take one or more flats, the promoter shall not make -
(i) any alteration in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;
2[ (ii) any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take fiats in such building. ”
In the written notes of argument and in the written statement opponents have raised objection about the jurisdiction of this Forum. According to the Opponents under the provisions of the MOFA Act, more specifically under section 7 separate Forum is in existence before whom such grievances have to be putforth. But as per the provisions of section 3 of the Consumer Protection Act, 1986 this Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. As there is limited issue of deficiency in service, this Forum has the jurisdiction to try and entertain the present complaint.
We are of the opinion that the Complainants have proved that there is deficiency in service on the part of the Opponents. Complainants have claimed to reinstate the original position as per the original sanctioned building plan dated 23/3/2007 of the common lobby in front of his flat and further claimed to restrain the opponents from carrying out any modification in the building beyond the scope of the sanction plan dated 23/3/2007.
The crucks of the matter in the present proceeding is that whether the builder and promoter can revise the plan without consent of the flat owner. It reveals from the evidence which is produced on behalf of the complainants that initially the plan of the building known as “Ganga Melrose” was sanctioned on 23/3/2007 by the P.M.C. The complainant has purchased flat No.501-A on the fifth floor and the possession of the said flat was delivered to him as per the possession letter dated 24/4/2010. Thereafter in absence of complainants and without their consent the opponent i.e. builder developer applied to the Corporation on 18/09/2010 for revision of the plan. The revised plan was sanctioned within 5 days i.e. on 23/9/2010. As per the said plan the common area on the fifth floor of the building was merged in the flat nos. 503 and 504. This fact is categorically admitted by the opponents in the written statement. It is significant to note that admittedly the Opponents have violated the provisions of section 7 of the MOFA Act as there is no iota of evidence before the Forum to show that the consent of the complainants was obtained before revising the said plan. It is significant to note that as per the agreement between the complainants and the opponents the opponents have charged 25% cost per sq.ft for the common area. The Opponents have merged near about 28 sq.ft area in the flat nos. 503 and 504. It is surprising to note that the said plan was revised only as regards fifth floor. This indicates that the Opponents have joined with the authorities of P.M.C. and grabbed the common area which is available for the complainants. According to the Opponents as the P.M.C has sanctioned revised plan then complainants have no authority to challenge before this Forum. But it is crystal clear from the record that the Opponents and the Corporation have joined hands and altered and changed the plan for their own benefit without consent of complainants by contravening provisions of section 7 of MOFA. Then it is not necessary to obtain declaration that the revised plan is illegal, null and void. When the plan itself is void abinitio as it contravene the provisions of section 7 of MOFA Act, 1963 then the said plan is no plan in the eyes of law. Expert opinion is not necessary to infer what has been cooked between builder and P.M.C. Authorities.
In the ruling Kalpita Enclave Co.Op. Housing Society Ltd. versus Kiran Builder of the Hon’ble Bombay High Court it is observed that if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as of the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation.
It is observed by the Apex Court in various rulings that the Corporation has no power to regularize any construction by violating the provisions of law and the present complaint is the best example of violation of law at the hands of builder and the Corporation.
The complainants have asked relief of restoration of the building as per the original plan as his right to enjoy the common passage is taken away by the Opponent with the help of P.M.C. This is clear cut case of deficiency in service and he is entitled for restoration of the construction as per the original plan of the said building.
It reveals from the record that the Corporation authorities have hastily sanctioned revised plan within 5 days in order to support the builder and developer. It is astonishing to note that the plan of the fifth floor only revised. All these facts are suspicious and indicating that the hands in gloves of builder and Corporation. In these circumstances it is necessary to send copy of this complaint to the Commissioner of P.M.C. for taking appropriate action against the defaulter.
Alternatively the complainants have asked compensation for the area which is merged by the Opponents in adjoining flats but as this is a fit case of grant the first relief i.e. restoration of the building, the alternate relief is not granted.
The prices of the flats are rising from day to day and the builders are exploiting this situation by violating the provision of law. Eventhough the Opponents have accepted consideration for the open space from the flat owners that space is not allowed to the complainants to enjoy. Hence the complainants were required to knock the doors of this Forum. After considering the facts and circumstances I held that the complainants are entitled for compensation for deficiency in service and compensation for physical and mental torture to the tune of Rs.2,00,000/- and the cost of litigation to the tune of Rs.1000/-.
We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that Opponents have caused deficiency in service by violating the provisions of section 7 of the Maharashtra Ownership of Flats Act and by revising the plan without consent of the complainants and by merging the common passage in the flats belonging to the adjacent flat holders.
3. Opponents are jointly and severally directed to restore the open space which is available on the fifth floor of the building “Ganga Melrose” within six weeks from the date of receipt of copy of order.
4. Opponents are jointly and severally directed to pay compensation of Rs.2,00,000/- for deficiency in service and for mental and physical torture within six weeks from the date of receipt of copy of order.
5. Opponents are jointly and severally directed to pay Rs.1,000/- to the complainants towards costs of complaint.
Copy of order be supplied to both the parties free of cost.
Copy of order be sent to the P.M.C. for taking appropriate action against the defaulter.
Place- Pune
Date – 29/06/2013
