BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
C.C. 62/2009
Between:
M/s. Meghadri Heights Welfare Association
Rep. by its Managing Committee.
1) President: Surinder Kumar Mehta
S/o. P.R. Mehta, Age: 66 years
Retd. Defence Officer
418, B-Block
Dokuri Meghadri Heights
Yapral, Secunderabad.
2) Vice-President
Mandana Sita Rama Rao
S/o. Late Satyanarayana
Age: 65 years, Principal I/c
305, A-Block
Dokuri Meghadri Heights
Yapral, Secunderabad.
3) Secretary
Sqn. Ldr. Jagdish Singh
S/o. Sardar Kushal Singh
Age: 62 years
Retd. Defence Officer
207, B-Block
Dokuri Meghadri Heights
Yapral, Secunderabad.
4) Treasurer
Smt. Moushmi Goswami
W/o. Rajan Goswami
Age: 39 years
413, B-Block
Dokuri Meghadri Heights
Yapral, Secunderabad.
Having its office in the premises
of M/s. Dokuri Meghadri Heights
Yapral, Secunderabad. *** Complainants
And
1) M/s. Nirmala Homes Pvt. Ltd.
Rep. by its Chairman & Managing Director
Plot No. 6 & 7, Chandragiri Colony
Tirumulgherry, Secunderabad.
2) Chairman & Managing Director
M/s. Nirmala Homes Pvt. Ltd.
Plot No. 6 & 7, Chandragiri Colony
Tirumulgherry, Secunderabad.
3) Maj. N. Natarajan (Retd)
Chairman & Managing Director
M/s. Nirmala Homes Pvt. Ltd.
Plot No. 6 & 7, Chandragiri Colony
Tirumulgherry, Secunderabad. *** Opposite Parties.
Counsel for the Complainants: M/s. CH. Sudhakar Rao.
Counsel for the Opposite Parties: M/s. P. James.
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT. M. SHREESHA, MEMBER.
MONDAY, THIS THE TWENTY EIGTH DAY OF MARCH TWO THOUSAND ELEVEN
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
***
1) This is a complaint filed by flat owners association to provide amenities, and re-lay of flooring, and pay Rs. 9, 60, 000/- towards maintenance amount, compensation of Rs. 30 lakhs towards deficiencies and costs.
2) The case of the complainants in brief is that the opposite party a private limited company a builder printed brochure informing that they were constructing 156 apartments with various amenities like, stilt, parking place, commercial complex etc., and the same would be handed over by the end of year 2006. They made a mention that the project clearance from HUDA was obtained on 5.1.2004 and Ranga Reddy municipality on 29.4.2004. It has given specifications of various structures besides promising water availability, water treatment plant, electricity through underground cabling, fire fighting equipment, lifts, standby generator, sewerage, amenities, restaurant, internal roads, security, intercom, car parking etc. It had undertaken comprehensive maintenance of apartments for a period of five years at a nominal rate of subscription from the flat owners. While so, after their purchase they could know that the opposite party has not been maintaining the apartments. As such they formed into an association under the name and style of “The Meghadri Heights Welfare Association”. The opposite party did not register the undivided share of land proportionate to the extent of flat area in the names of flat owners till date despite their repeated requests. They did not hand over the completion certificate of project from the Ranga Reddy municipal authorities. They did not hand over the building along with common facilities and amenities to the association. They found that a large number of works and fittings are sub-standard, in-complete and are required extensive repairs due to poor quality of construction. Since the opposite party had failed to maintain the building it resulted in creation of unhygienic living environment causing inconvenience and discomfort. Since the opposite party did not take up maintenance they themselves have taken some temporary measures to maintain minimum services like security, lift services, cleanliness of premises, water supply by spending Rs. 60,000/- per annum on an average. They have spent about Rs. 9, 60,000/- till date, and therefore claimed the said amount. The facilities provided for water supply, sewage, drain, rain water drain, fire fighting equipment are of poor quality causing frequent blocks in the pipelines besides dumping of huge volume of restaurant waste being run by the opposite party as such sewage pipelines got blocked. The establishment of restaurant is causing security risk to the residents. Restaurant staircase is within the residential complex premises. They were also storing more than the requisite gas cylinders on the stair case causing serious problem. They have also caused considerable damage to the structure of the duct area in ‘B’ Block by erecting an aluminium chimney. It has installed heavy machinery to blow out hot air emanating from kitchen. They are running a heavy grinder causing noise pollution. The opposite party has illegally occupied the lawns to an extent of 1500 sft which is nothing but a common facility. The Acrylic roof provided by them on the roof of ‘A’ block was of poor workmanship. One of the acrylic roofs collapsed due to recent winds and fell on the corridors of the ground floor and the same could have been fatal had it been fallen on the residents. It has to be re-fixed immediately. These acts constitute negligence for which a compensation of Rs. 5 lakhs has to be awarded. Intercom facility is not in working condition in block ‘A & B’. For some there were no connections at all. They have failed to pay Rs. 28,000/- towards Manjira water connection. In order to avoid disconnection they had paid the said amount which the opposite party was liable to reimburse. The restaurant being run by the opposite party was consuming heavy electricity. The transformer installed was unable to bear the load resulting in frequent tripping, break downs and damage to the appliances. Though they promised construction of compound wall in the brochure they did not do so. It was only 2-1/2 feet height with 2 feet height of wire gauge exposed to intrusion. They promised to provide two electrical points one for light and another for fan from the standby generator but failed to do so. The corridor flooring in both ‘A & B’ blocks was of poor quality and the children while playing are tripping and falling. They had to be re-laid uniformly. Therefore they sought the above deficiencies to be rectified, refund Rs. 9,60,000/- towards maintenance with interest @ 12% p.a., Rs. 5 lakhs towards damages for deficiencies and Rs. 28,000/- towards the amount paid to GHMC, Alwal together with interest @ 12% p.a., and further Rs. 30 lakhs towards compensation and Rs. 5 lakhs towards costs.
3) Opposite Parties resisted the case by filing an elaborate written version. While denying each and every allegation made in the complaint however they admitted that opposite party No. 3 is the Chairman & Managing Director of opposite party No.1 M/s. Nirmala Homes Pvt. Ltd. It had circulated a brochure as mentioned. After obtaining requisite permission from HUDA as well as municipality they constructed the apartments. The brochure cannot be construed as an agreement. It was an invitation to offer. There was no agreement with any of the purchasers. Agreements of sale were made and executed for each and every flat separately for construction and handing over of semi-finished flats which were strictly adhered to. Each of the flat owner individually placed work order with different time fames. Accordingly they have completed the construction. None of the purchasers raised any objection as to the quality of material used or the quality of construction at the time when possession was handed over. The period of completion of project was three years from 29.5.2004 to 28.5.2007. However, due to reasons beyond their control as there were torrential rains between August and December, 2005 they could not complete it, however they have completed the project and handed over to them with all amenities on 15.1.2008 together with documents to the elected body of the complainant association. Though they have obtained permission for construction of 180 flats they have restricted to 153 only foregoing their profits. They did not agree for maintenance of project for a period of five years or some number of years as alleged. However, it had only agreed to provide technical assistance to one of the members of the executive committee of the complainant association for a period of five years which the complainants failed to avail such services. The opposite party was always available for all the meetings held by the complainant association. The flat owners have to bear the maintenance costs. The complainants had hand picked members and non-members with an ulterior motive. They filed the complaint in order to extract money. For the notice issued they have given reply. They have been asking them to come forward for registration of undivided portion of land proportionate to flat area vide its letter dt. 15.1.2008. However, none came forward.
There was no mandatory requirement for obtaining completion certificate from the municipality. The property has been assessed to tax. Ex-service officers had also got exemption from payment of property tax. The entire building along with undivided portion of land with common areas has been handed over as and when flat owners have paid total consideration. Amenities were provided on free of cost and put into use way back on 18.11.2007 evident from photographs and the endorsement of the Secretary of the association on 18.1.2008. In fact the complainant association has been generating funds from out of the amenities such as community hall, health club etc. provided by them. The complaint that the fittings were of sub-standard and that of poor quality were all misleading. Since they had provided all the facilities the question of complainants incurring additional expenditure would not arise.
Block ‘A’ consists of 70 flats and block ‘B’ consists of 83 flats. Block ‘B’ was completed in the first instance and block ‘A’ subsequently. They were jointly handed over to the elected body of the complainant association on 18.11.2007 and the documents pertaining to the project on 15.1.2008. As a good-will gesture they have agreed to maintain the building till end of February, 2008. It is the association that has to maintain the complex. It is equally false to state that the facilities provided for water supply, sewage drain, rain water drain, fire fighting equipment etc., are of poor quality. Only on a written request of the complainant association a restaurant was established after obtaining necessary permission since none of them have come forward to run it they have themselves established a restaurant. The water consumption per day would be 1,000 – 2,000 litres which is equivalent to consumption of water by two flat owners. Solid waste is being taken by municipal authorities on payment of Rs. 700/- per month. In fact the complainant association has not been taking regular maintenance of sewage line causing inconvenience to the residents.
The stair case has been provided for easy ingress and egress for residents by avoiding coming through the main road in view of traffic. It was risky for the children and senior citizens who were coming for drinking water after their play or walk. No objection has been received from any quarter. In fact the complainant association has provided drinking water to all the shops viz., super market, barber shop, beauty parlour etc. However, it denied drinking water to restaurant. This shows their malafide intention. Monthly consumption of gas cylinders by the restaurant was six only in number. While one is put to use at a time while balance five are kept as reserve. In order to avoid damage and leakage they were kept in open as per the suggestion of the experts. This has the approval of GHMC, Alwal circle and all the gas connections were supplied by the authorised and renowned companies/agencies. No damage was caused to the structure of duct area in ‘B’ block. The blower and the chimney erected on the terrace is a standby arrangement. All precautions were taken not to allow kitchen effluent to pollute the area. One 5 HP motor was kept on the terrace not being used that too in a corner in an area of 3 sft, where as ‘B’ block alone has a terrace area of 20,000 sft. The allegation that it poses grave danger to the children is not correct. They should not allow the children to play on the terrace. Garden/play ground of more 3,000 sft is provided in ground area. It has given reply to the notice issued by the complainant.
It did not occupy the lawns to an extent of 1,500 sft. Park area has been earmarked for future widening of road to a width of 100 ft. Neighbouring colony also left 15 ft wide area along the road for the said purpose. Commercial area has been disconnected from the residential area by proper planning and construction. The alleged space does not come under the maintenance area of complainant association. Owners of the commercial area only have the usage rights for the said area. It does not come under the purview of common area.
Acrylic roof was laid by skilled workers. It should not be held liable for natural calamities like heavy winds and heavy rain fall etc. There are such roofs at 20 places. They were provided as welfare measure to prevent the rain water entering into the corridors. It was placed in the year 2007. Due to heavy winds and rain fall the mishap must have occurred and the same could be rectified. Intercom has been provided to all the flat owners. In case of any problem the association has to get it repaired. A full time manager Mr. Johan Mathew has been appointed by the very complainant association.
The water bill that has been claimed by the municipal corporation for the use of Manjeera water by the residents at a later point of time should be borne by the user. However, if any payment is due till February, 2008 it would pay the same.
The electricity consumed by the restaurant, and the revenue that derived for using electricity goes to the electricity board. If the complainant association apprehends that the transformer installed would not bear the load it could refer to the concerned department for rectification. It has nothing to do with the transformer installed.
The compound wall and fencing have been provided as per the requirement of complainant association. The compound walls are already existed on two sides’ viz., Eastern & North Eastern side. Swanandha is on the eastern side and PEDSO II is on the southern side. A gradient of 7 ft is towards East . Septic tank is provided on the eastern side. To provide a natural slope for the sewage water to flow freely towards the main drain, there is a requirement of raising the height of septic tank by 4 ft. This resulted in lowering of height of compound wall by 4 ft. The height of the compound wall could not be increased as the houses in Swananda would not get adequate ventilation. A four feet steel mesh has been provided for the entire length of the two sides of compound wall to prevent dog menace.
There is no provision or agreement for provision of two electrical points i.e., one for light and another for fan from the stand by generator. These complaints are made almost two years after handing over possession of respective flats. Requisite permissions were obtained before constructing various structures. Out of 153 flats only 8 members started creating trouble with ulterior motive. They formed into an association and got it registered on 14.5.2007. They are obstructing construction activities of day to day work in block ‘A’. On that it was constrained to file a suit for mandatory injunction restraining them from interfering with the day to day works in O.S. No. 1433/2007 on the file of 1st Additional Senior Civil Judge, Ranga Reddy and obtained status quo in IA No. 16991/2007. When the President of the association and others have resigned the said suit was not pressed and closed on 6.12.2007.
Ms. Uma Kala, Secretary, Mr. Nitin Keesara, Treasurer, Mr. Goutham, Member were not members and their association was void-ab-initio. It has handed over all the records pertaining to the project to the elected body on 15.1.2008. The project was inaugurated with great pomp and show on 18.11.2007 and when the elected body complained by their letter dt. 29.1.2008 it has attended and rectified all the works confirmed by their letter dt. 18.2.2008. All this was provided at free of cost. This association has been formed with hand picked members of 14 in number out of 53 enrolled members as against total 153 members and in the absence of minimum quorum. It has filed a criminal case No. C.C. 838/2009 on the file of XI Addl. Chief Metropolitan Magistrate at Secunderabad for the offences committed by the President of the association u/s 268, 499, 500, 501 & 503 IPC. It has also filed a suit in O.S. No. 167/2009 on the file of III Senior Civil Judge, City Civil Court, Secunderabad against Sri C. Sanjay Kumar the so called Vice-President of the complainant association. The claims made by the complainant association are false, untenable and vexatious. Despite their invitation to the flat owners for registering undivided share of land proportionate to the extent of the flat area none has come forward till date. The undivided land will be continued to remain within the gated community. It has never claimed any interest, title or possession. There is no provision for obtaining completion certificate from the municipal authorities, more so, when assessment of property tax has already been done.
When each and every flat has been handed over individually along with common areas and defects if any are attended the question of either substandard material or poor quality of works cannot be countenanced. Even if there are any rectification works that are to be attended the same would be attended by it up to the defects liability period which is varying from flat to flat.
In fact the Chairman & Managing Director of the opposite party as a gesture and good will unmindful of loss or profit had provided the structures, furniture, fittings etc. at his own cost incurring Rs. 26,15,000/-. A legal notice was addressed to the President of the association on 22.6.2009 either to return the amount or allow the opposite party to dismantle the fixtures and fittings for which no reply was given. There is neither deficiency nor negligence on its part. The claim is vexatious, false and imaginary, and therefore prayed for dismissal of the complaint with costs.
4) The complainants in proof of their case filed affidavit evidence and got Exs. A1 to A74 marked while the opposite party filed his affidavit evidence and got Exs. B1 to B32 marked.
5) The points that arise for consideration are:
i. Whether there were any deficiencies in the residential complex as alleged by the complainants?
ii. Whether the complainants are entitled for registration of undivided share of land proportionate to the extent of flat?
iii. Whether the complainants are entitled for completion certificate?
iv. To what relief?
6) It is an undisputed fact that the flat owners formed into complainant association filed the complaint against the Chairman & Managing Director of the builder under the name and style of M/s. Nirmala Homes Pvt. Ltd., alleging various omission and commissions. It is an undisputed fact that the builder after obtaining permission constructed 153 flats in two blocks, Block ‘A’ comprising of 70 flats and block ‘B’ comprising of 83 flats. The builder in its brochure Ex. A74 has made a mention that “Nirmala Homes Pvt. Ltd. will undertake comprehensive maintenance of apartment for a period of five years at a nominal rate of subscription from flat owner.” It is not in dispute that the entire project was completed in November, 2007 and it was handed over to the elected body of the complainant association on 15.1.2008. The opposite party alleges that due to unforeseen reasons such as change in orientation of the block, rocky surface in foundation and torrential rains between August and December, 2005 the project completion was delayed by six months that apart the flat owners as and when they have paid the complete consideration they were put under occupation by duly executing handing over/taking over of the flats vide Ex. B24 pertaining to flat No. 418, 207 and 413. Since several reliefs were sought for by the complainants it would be beneficial to discuss prayer wise.
(a) They sought for a direction against the opposite parties to register the undivided share of land proportionate to the extent of the flat area in the name of flat owners. The opposite party alleges that out of Ac. 1.13 gts viz., 11,253 sq.yds as per norms and bye laws 60% of the area has to be left for tot-lot and the remaining 40% of the area could be used for construction purpose which works out to around 4,501 sq.yds. If the same is divided each flat owner would get 30 sq.yds. In the agreement there was a categorical mention that the same would be registered at the time of execution of sale deed, and the same was conveyed and none has raised any objection. It has issued notices evidenced under Ex. B8 dt. 15.1.2008, and none has come for ward obviously as they have to pay extra charges for registration. Since the opposite party is ready to execute the sale deed to each individual flat owner by fixing a date the same could be executed in his/her name by bearing stamp duty and registration charges. The opposite party is directed to execute the same by fixing a date. Both parties by mutual exchange of notices could fix a date, and on the said date the opposite parties are directed to execute the sale deed.
(b) The complainants sought for completion certificate from Alwal municipality. In the light of the fact that there was no mandatory requirement under the law to get the project completion certificate from the municipality the opposite party cannot be directed to obtain the same and give it to the complainant association.
( C ) The complainant sought for handing over of building complex along with common facilities and amenities to the complainant association. Evidently the opposite party had handed over the flats along with common facilities and amenities evidenced under handing over /taking over certificates. In fact there was no privity of contract between the complainant association and the opposite party to hand over the building complex and common facilities as such to them. It is not known as to why the complainant association is insisting for handing over of entire building complex as well as common facilities and amenities to it when according to them it has to be maintained by the opposite party. The amenities mentioned in the agreement of sale executed in favour of flat owners have been completed besides additional amenities like the shack, water fall, toilets, fire fighting equipment and badminton court etc. evidenced under letter Ex. B8 dt. 15.1.2008.
In Ex. B8 the opposite party had clarified while handing over the documents which we reproduce here: “the project is on total area of 2 acres and 13 guntas, out of which as per the building constructions norms the technical sanctioning authority HUDA permitted to construct on only 40 percent of the total area (i.e., floor space index) balance area of 60% for roads and tot-lot. Since it is a gated project with roads and tot-lot areas are to be used exclusively by the residents of DMH and owners of the commercial area which is again part and parcel of the project, we have registered only 30 sq.yds per flat owner irrespective of the dimension of the flat. This practice is being in vogue from the inception of the firm. In case all flat owners insist for revision of undivided share of land they don’t have any hesitation. But each flat owner has to incur an expenditure of about Rs. 20,000/- as registration cost. We sincerely feel that it is not necessary. However, a certificate will be rendered to the association stating that neither the land owner nor the firm will encroach or demand open areas for their personal use. This certificate duly notarized will be handed over in due course of time.” Therefore, we are of the opinion that the complainants are not entitled to the said prayer.
(d) The complainants complain that the works were not complete and the fittings that were made were sub-standard, incomplete and require extensive repairs due to poor quality of construction. At the cost of repetition, we may state that the each of the flat owner at the time when possession was taken issued satisfaction certificate vide Ex. B24. The complainant association complains various defects by its letter Ex. B9 dt. 29.1.2008 pertaining to drain at every floor corridor, height of vent pipes in the duct , uncovered pipes in the terrace, car wash area, testing of generator, testing of swimming pool, maintenance of shack and store room in gym, gym equipment, blocks in drive way, bore wells, common area corridors, internal and external drawings, acrylic roofing sheets, terrace water storage tanks, ground sump etc. The opposite party gave a detailed reply in Ex. B10 dt. 18.2.2008 mentioning that they had attended to the above said deficiencies whatever pointed out. The complainants did not requisition the services of any qualified engineer or took a commissioner to verify the so called deficiencies attributed to construction. When the opposite party had categorically stated that it had attended to and that there is no evidence that there were deficiencies or defects that were pointed out, we have undoubtedly no other go than to state that the opposite party had complied and there is no need to issue any direction for compliance in this regard.
(e) The complainants association sought for Rs. 60,000/- per month on the ground that they had incurred Rs. 9,60,000/- towards maintenance from 3/2008 to 6/2009. The opposite party alleges that it had handed over the possession on 15.1.2008 and as a goodwill gesture they had undertaken the maintenance till 3/2008. It is liable for maintenance for a period of six months only or as contemplated in the defects liability period mentioned in the agreements/deeds. There is no such condition laid in the agreement/sale deeds to maintain till 6/2009. In the brochure Ex. A73 it was made a mention that “Nirmala Homes Pvt. Ltd., will undertake comprehensive maintenance of apartment for a period of five years at a nominal rate of subscription from the flat owner.” The opposite party by its letter Ex. A8 dt. 12.12.2007 informed the complainants association that the project was completed except some minor repairs, and they were ready to hand over the same from 1.1.2008 and it would be responsible for maintenance and security. The opposite party had suggested the following for smoothing functioning of maintenance.
a) Man power:
i) One Manager as part time job by any one of the ladies residing within the complex and you may offer Rs. 2,000/- per men sum as Honorarium. She would be responsible for executing and supervising the maintenance.
ii) One electrician - Rs. 4,000/- p.m.
iii) One plumber - Rs. 4,000/- p.m.
iv) Three sweepers - Rs. 2,500/- p.m.
v) One gardener - Rs. 2,500/- p.m.
In the agreement Ex. B23 clause-11 stipulates that “the owner shall observe the common usage conditions applicable to residential flat governed by A.P. Apartments (Promotion of Construction & Ownership) Act, 1987 and the rules framed there under. The owner shall pay monthly maintenance charges to the society/welfare association for upkeep maintenance, watch and ward of the residential complex.” It is dated 10.5.2005. Obviously by the date of agreement the apartments were not completed nor handed over. Contrarily Ex. A44 dt. 1.7.2008 a letter addressed by the complainant association to the opposite party shows that the opposite party had paid maintenance charges for the month of March, 2008. They claimed maintenance charges for the months of April to June, 2008. The opposite party gave a reply under Ex. A48 dt. 14.7.2008, while enclosing a cheque for Rs. 42,000/- towards maintenance charges for the six unsold flats and 22 flats belonging to the firm, or collect from the land lady from 1/2008 to 6/2008 observing that the land lady has 23 flats out of which flat No. 213 of block ‘B’ has already been rented out, hence maintenance charges be collected from the tenant. They stated that they would pay maintenance charges for unsold flats regularly. While appreciating establishing of a restaurant for the comfort of the residents vide letter Ex. A52 dt. 6.9.2008 the complainants association claimed maintenance charges for the flats owned by the opposite party and the land owner at the earliest. In Ex. A56 the opposite party by its letter in October, 2008 sent a cheque for Rs. 3,500/- mentioning that it was towards the maintenance charges for the unsold flat of the builder for the month of 9/2008. Maintenance chares for the flats bearing Nos. 510 and 513 of ‘A’ block with effect from Oct, 2008 be collected from the owners who are living there already. He directed the association to collect maintenance charges for flat No. 405 ‘B’ block from Lt. Col Rajiv Tewari who purchased the flat.
The complainant association did not protest for this. Some amount was paid towards maintenance charges that too towards unsold flats. Therefore it looks as though the opposite party had agreed to pay for a period of five years at a nominal rate of subscription for the unsold flats till sale of flats to various parties. The complainants association had to collect the maintenance charges from the flat owners. The complainants association itself has been recovering the maintenance charges from the opposite party at Rs. 3,500/- p.m. for the unsold flats. The complainants association did not file any document or account to show the amount collected towards the maintenance charges from each of each of flat owners. Undoubtedly there is suppression in this regard. It being a welfare association it has to maintain accounts regularly showing the amounts collected and expenses incurred by it. In the affidavit evidence the opposite party, at para -12, it was categorically stated that “ I beg to submit that the brochures are notices in nature which have not been signed by any one and circulated to the common public in general and not against any particular person or party. It is only an invitation to offer and not offer as such. In pursuance of brochures sale agreements/sale deeds were made between the opposite party and respective flat owners concerned which took precedence over the brochures and which were the only authenticated documents. The conditions stipulated in those documents only would prevail. The complainants association has no right or authority to claim maintenance charges from the opposite parties much less Rs. 60,000/- p.m. under any stretch of imagination except for those flats which are in possession of the opposite parties. Once the complainants association has taken over all the documents from the elected body of the association already formed and started collecting maintenance and generating funds from the common amenities the question of handing/taking over does not arise at all.”
It is not in dispute that the opposite party has handed over the flats along with common areas and common facilities to the concerned flat owners. Obviously the complainants association having been formed on 14.5.2007 even before completion of the project, evidently the project was handed over to the complainants association on 15.1.2008 the complainants did not dispute as to the payment of maintenance charges by the opposite party all through except for unsold flats by no stretch of imagination it could demand a sum of Rs. 60,000/- p.m. more so when it was collecting Rs. 3,500/- p.m. for each of the flat owner. When the complainant did not allege that the opposite party was liable to pay the maintenance charges in any of the letters , and, on the other hand admitted receipt of amount towards maintenance charges towards unsold flats, it cannot turn round and claim Rs. 60,000/- towards maintenance charges. This claim is devoid of merits and we are unable to allow the same.
(F) They sought for handover of building/project with all common facilities and amenities in good & serviceable condition. Evidently the project has been handed over to them on 15.1.2008. Evidently they have been collecting the maintenance charges from the members. They have been demanding for registration of common lands in the name of association against Section 24 of A.P. Apartments (Promotion of Construction & Ownership Act).
(G) They sought for two electrical points one for the light and the other for fan from the standby generator. The opposite party alleges that it never promised either in the agreements or in the brochure etc. It may be stated herein that the complainants association could not show where such a provision was mentioned in order to direct the opposite party to provide the said facility.
(H) They claimed Rs. 5 lakhs for re-laying corridor flooring in both A & B blocks uniformly which was mentioned in the prayer ‘I’. The complainants association could not show that the flooring of the corridors was not laid uniformly. The complainants could not take any engineer to show that the flooring was not laid properly and that it would require Rs. 5 lakhs for re-laying the flooring of the corridors. This claim was made without substantiating the same. It is unfortunate that these associations have been filing complaints claiming reliefs which some are tenable and equally some untenable, obviously, if at least some of them will be given and for any reason if some amounts granted, they would benefit. This claim is unjust made without any basis and proof.
(J) The complainants association sought an amount of Rs. 28,000/- towards the Manjeera water connection on the ground that Alwal municipality gave a notice for payment of this amount. In order to avoid coercive steps and disconnection they had paid Rs. 28,000/-. This fact was intimated to the opposite party by letter Ex. A62 dt. 2.12.2008, A65 dt. 22.12.2008 enclosing receipt Ex. A71 for Rs. 28,000/- paid towards water charges. The opposite party did not give any reply in any of the notices nor gave any explanation. Since it did not deny its liability, we are of the opinion that the said amount was liable to be reimbursed by the opposite party.
(K) The complainants association sought for a direction to opposite party to provide two electrical points one for the light and the other for fan from the standby generator. This relief is repetition of prayer ‘G’. Therefore this needs no reiteration.
(L) The complainants association had sought for Rs. 30 lakhs towards compensation for deficiencies pointed in ‘A to K’. This is not only a fleeting relief that was made, but also a reiteration of the amounts claimed.
7) It is important to state that in the complaint though many deficiencies were pointed out the complainants did not seek any prayer to get them rectified for the reasons not known. They alleged that the facilities provided for water supply, sewage drain, rain water drain and fire fighting facilities were of poor quality. They were dumping huge volume of restaurant waste in the drain. It was emanating foul smell causing pollution. It was resulting in over flow of drainage on to the drive way and parking area. So also they alleged that staircase of the restaurant is provided within the premises of residential complex which has to be closed with immediate effect. They were storing more than 12 gas cylinders on the staircase which may cause serious explosion endangering the human lives. They have erected aluminium chimney and installed a heavy machinery on the terrace of block ‘B’. It has also installed a heavy grinder causing noise pollution. He had illegally occupied the lawns to an extent of 1,500 sft in the space provided for common facility. The acrylic roof laid by the opposite party on block ‘A’ was of poor workmanship. One of the roofs collapsed due to winds and fell on the corridors of the ground floor. It has to be rectified. There was poor wiring leading to failure of intercom and poor ventilation in the battery room. The transformer was unable to bear the load resulting in frequent breakdown of power. It was already causing heavy damage to the electrical and electronic appliances. The compound wall around the project though promised was not constructed. It was only at a height of 2-1/2’ with 2’ height wire gauge. It was exposed to intrusion from third parties.
8) In the reply the opposite party has given a detailed description of structures he had constructed giving adequate explanation for the so called deficiencies. We may also mention herein that when these deficiencies were pointed by the complainants under Ex. A9 dt. 28.12.2007 the opposite party gave a detailed explanation vide Ex. A10 dt. 31.12.2007. In Ex. A11 dt. 15.1.2008 the opposite party gave a further reply, and at para 6 they have categorically stated that various amenities as committed in agreement of sale were executed to all customers in all respects. Besides that at para 7 they have mentioned that “the following additional amenities are also provided with their own expenditure to ensure comforts.
(a) the shack
(b) water fall
(c) toilets
(d) 20 Nos. fire fighting equipments
(e) badminton court.
(f) Acrylic sheet
(g) Bus shelter
(h) Flood lights for badminton court
(i) Two emergency gates
(k) Tiles over terrace
(l) Oil bound painting on entry point of lift on all the floors.
9) They have also informed that other amenities such as health club, swimming pool and billiards need special attention. They offered few suggestions for their up keep. They gave clarification in regard to so called deficiencies in construction and deviations if any. When the complainants association has made certain observations pertaining to the facilities alleging deficiencies the opposite party gave reply under Ex. A16 & A17 dt. 18th & 26th February, 2008 respectively giving detailed explanation as to what were the constructions that were made and the rectifications that were conducted.
10) In Ex. A51 dt. 26.8.2008 the opposite party informed about the establishment of restaurant. It directed the association to provide drinking water, security of restaurant, bore water, smoke ducting, beautification of front side lawn, buffer system, door to door service, rates etc. The complainants association in its letter Ex. A52 has categorically submitted that they have started softening the bore water. The overhead tanks are topped up as per the daily requirement. Therefore they requested the opposite party to intimate the approximate water requirement per day so that provisional action can be taken for the supply of required quantity to the restaurant. This shows that the opposite party at the instance of the complainants association has completed the establishment of restaurant and they are aware of running condition of the restaurant.
11) In Ex. A59 dt. 27. 10. 2008 the opposite party had categorically stated that “ you have taken over the project from previous office-bearers and as such raising query at this belated stage to us does not sound well. However, since, we are also regularly subscribing monthly maintenance fee to the association, except a small minor complaint of outlet was stuck up due to rains, no major complaint was made and particularly in regard to unhygienic condition of the restaurant viz., emanating smoke etc. The opposite party filed photostat copies of photos showing inauguration of amenities etc. marked as Ex. B25. The restaurant was constructed after obtaining permissions from the concerned authorities vide Ex. B18 and also paid tax under Ex. B19.
When repeated complaints are made the opposite party by letter Ex. A21 dt. 5.1.2008 clarified stating that “ We have adhered to the norms. If the residents are still not satisfied they are at liberty to approach the Sub-Registrar, Vallabhnagar, Hyderabad to seek his guidance. In case necessity arises, we and the land lady do not have any objection to execute the sale deed in favour of MHWA, however, the cost of registration is to be borne by MHWA”
12) It looks as though there were disputes between the complainants association and the opposite party. The opposite party filed a suit in O.S. No. 1433/2007 on the file of I Addl Senior Civil Judge, Ranga Reddy seeking for declaration that the registration of the complainants association was fraudulent, grant perpetual injunction restraining the complainants association from interfering with the peaceful day to day construction activity of the builder vide copy of plaint Ex. B3. It was on 19.6.2007. Status quo was ordered in IA 1691/2007 vide Ex. B4. He filed Exs. B6 to B17 exchange of notices between them. While the complainants association asserts that there were deficiencies, the opposite party asserts that there were no such deficiencies. It seems that a criminal case was also filed against the President of the association in C.C. No. 838/2009 on the file of XI Addl. Chief Metropolitan Magistrate at Secunderabad u/s 268, 499, 500, 501 and 503 IPC. Copy of complaint was not filed in order to know the exact complaint that was made by the opposite party. The fact remains that there are disputes between the parties even prior to filing of the complaint. Obviously as a counterblast the complainants association filed this complaint making allegations without proving any of them in the year 2009, two years after the above proceedings. The complainants did not bother to prove any of those deficiencies pointed out by them.
13) We may state that the complainants did not take any assistance of an engineer or commissioner in order to prove that there were deficiencies or deviations in construction. The facts alleged by the complainants were equally controverted by the opposite party by filing documents and evidence.
14) In the result the complaint is allowed in part directing the opposite parties :
a) to register the undivided share of land proportionate to the extent of the flat area in the name of flat owners on a mutual convenient date and the registration charges/stamp duty shall be borne by the respective flat owners.
b) Refund Rs. 28,000/- paid by the complainants towards Manjeera water connection.
c) Rest of the claims of the complainants are dismissed.
In the circumstances there shall be no order as to costs. Time for compliance six weeks from the date of receipt of this order.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 28. 03. 2011.
*pnr
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANT OPPOSITE PARTIES
None None.
DOCUMENTS MARKED FOR COMPLAINANT:
Ex A-1 Certification of Registration dt : 14/05/2007
Ex A-2 Letter addressed by complainant and opposite parties No.1 to 3
dt:08/05/2007
Ex A-3 Letter addressed by complainant and opposite parties No.1 to 3
Dt:21-05-2007
Ex A-4 Letter addressed by complainant and opposite parties No.1 to 3
dt: 10.06.2007
Ex A-5 Letter addressed by complainant and opposite parties No.1 to 3
dt:22-6-2007
Ex A-6 Letter addressed by complainant and opposite parties No.1 to 3
dt:22-06-2007
Ex A-7 Letter addressed by complainant and opposite parties No.1 to 3
dt:22-06-2007
Ex A-8 Reply letter addressed by opp.parties no.1 to 3 dt: 12.12.2007
Ex A-9 Letter addressed by complainant and opposite parties No.1 to 3
dt:28-12-2007
Ex A-10 Reply letter addressed by opp.party no. 1 to 3 dt: 31.12.2007
Ex A-11 Reply letter addressed by opp.party no. 1 to 3 dt: 15.1.2008.
Ex A-12 Letter addressed by Col.P.K. Garg to the complt. Dt : 4.1.2008 & 25.01.2008
ExA-13 Letter addressed by complainant and opposite parties No.1 to 3
dt:29.1.2008
Ex A-14 Letter addressed by Comp. To col. P.K. Garg dt: 30.01.2008
Ex A-15 Letter addressed by complainant and opposite parties No.1 to 3
dt:06.02.2008
Ex A-16 Reply letter addressed by opp.party no. 1 to 3 dt : 18.2.2008
Ex A -17 Reply letter addressed by opp.party no.1 to 3 dt : 26.2.2008
Ex A-18 Letter Addressed by complainant and opp.party no. 1 to 3 dt :30.3.2008
Ex A-19 Letter Addressed by complainant and opp.party no. 1 to 3 dt :02.04.2008
Ex A-20 Reply letter addressed by opp.party no.1 to 3 dt : 4.4.2008
Ex A-21 Reply letter addressed by opp.party no.1 to 3 dt :5.4.2008
Ex A-22 Reply letter addressed by opp.party no.1 to 3 dt :19.4.2008
Ex A-23 Letter Addressed by complainant and opp.party no. 1 to 3 dt :20.4.2008
Ex A-24 Letter Addressed by complainant and opp.party no. 1 to 3 dt :20.4.2008
Ex A-25 Reply letter addressed by opp.party no. 1 to 3 dt : 24.4.2008
Ex A-26 Letter Addressed by complainant and opp.party no. 1 to 3 dt :07.5.2008
Ex A-27 Letter Addressed by complainant and opp.party no. 1 to 3 dt :07.5.2008
Ex A-28 Reply letter addressed by opp.party no. 1 to 3 dt : 09.5.2008
Ex A-29 Reply letter addressed by opp.party no. 1 to 3 dt : 12.5.2008
Ex A -30 Letter Addressed by complainant and opp.party no. 1 to 3 dt :13.5.2008
Ex A-31 Reply letter addressed by opp.party no. 1 to 3 dt : 14.5.2008.
Ex A-32 Reply letter addressed by opp.party no. 1 to 3 dt : 15.5.2008
Ex A-33 Reply letter addressed by opp.party no. 1 to 3 dt : 17.5.2008
Ex A-34 Letter Addressed by complainant and opp.party no. 1 to 3 dt :19.5.2008
Ex A-35 Letter Addressed by complainant and opp.party no. 1 to 3 dt :21.5.2008
Ex A-36 Reply letter addressed by opp.party no. 1 to 3 dt : 7.6.2008
Ex A-37 Letter addressed by Anil Bhaskar to opp.party no. 1 to 3 dt : 12.6.2008.
Ex A-38 Reply letter addressed by opp.party no. 1 to 3 dt : 12.6.2008
Ex A-39 Reply letter addressed by opp.party no. 1 & 3 to Anil Bhaskar
dt:16.6.2008.
Ex A-40 Letter Addressed by complainant and opp.party no. 1 to 3 dt :18.6.2008
Ex A-41 Letter Addressed by complainant and opp.party no. 1 to 3 dt :24.6.2008
Ex A-42 Letter Addressed by complainant and opp.party no. 1 to 3 dt :28.6.2008
Ex A-43 Letter Addressed by complainant and opp.party no. 1 to 3 dt :01.7.2008
Ex A-44 Letter Addressed by complainant and opp.party no. 1 to 3 dt :01.07.2008
Ex A-45 Letter Addressed by complainant and opp.party no. 1 to 3 dt :01.07.2008
Ex A-46 Letter Addressed by complainant and opp.party no. 1 to 3 dt :07.07.2008
Ex A-47 Letter addressed by Anil Bhaskar to opp.party no. 1 to 3 dt: 08.7.2008.
Ex A-48 Reply letter addressed by opp.party no. 1 to 3 dt : 14.7.2008
Ex A-49 Letter Addressed by complainant and opp.party no. 1 to 3 dt :31.07.2008
Ex A-50 Reply letter addressed by opp.party no. 1 to 3 dt : 06.08.2008
Ex A-51 Reply letter addressed by opp.party no. 1 to 3 dt :26.08.2008
Ex A-52 Letter Addressed by complainant and opp.party no. 1 to 3 dt :06.09.2008
Ex A-53 Reply letter addressed by opp.party no. 1 to 3 dt : 11.09.2008
Ex A-54 Letter Addressed by complainant and opp.party no. 1 to 3 dt :02.09.2008
Ex A-55 Letter Addressed by complainant and opp.party no. 1 to 3 dt :25.09.2008
Ex A-56 Reply lettere addressed by opp.party no. 1 to 3 in Oct, 2008.
Ex A-57 Letter Addressed by complainant and opp.party no. 1 to 3 dt :16.10.2008
Ex A-58 Reply letter addressed by opp.party no. 1 to 3 dt: 17.10.2008
Ex A-59 Reply letter addressed by opp.party no. 1 to3 dt : 27.10.2008.
Ex A-60 Letter Addressed by complainant and opp.party no. 1 to 3 dt :11.11.2008
Ex A-61 Letter Addressed by complainant and opp.party no. 1 to 3 dt :02.12.2008
Ex A-62 Letter Addressed by complainant and opp.party no. 1 to 3 dt :02.12.2008
Ex A-63 Letter Addressed by complainant and opp.party no. 1 to 3 dt :02.12.2008
Ex A-64 Letter Addressed by complainant and opp.party no. 1 to 3 dt :16.12.2008
Ex A-65 Letter Addressed by complainant and opp.party no. 1 to 3 dt :22.12.2008
Ex A-66 Reply letter addressed by opp.party no. 1 to 3 dt 30.12.2008.
Ex A-67 Letter Addressed by complainant and opp.party no. 1 to 3 dt :13.01.2009
Ex A-68 Reply letter addressed by opp.party no. 1 to 3 Dt: 29.1.2009
Ex A-69 Reply letter addressed by opp.party no. 1 to 3 dt : 02.4.2008
Ex A-70 Reply letter addressed by opp.party no. 1 to 3 dt : 14.4.2009.
Ex A-71 GHMC Misc. Receipt no. 080087863 opp.party no. 1to 3 dt :1.12.2008
Ex A-72 Thirty (30) Photos
Ex A-73 Brochure
Ex A-74 Brochure
DOCUMENTS MARKED FOR OPPOSITE PARTIES :
Ex B-1 CTC of Certificate of Incorporation
Ex B-2 Board Resolution (Letter of Authority)
Ex B-3 CTC of Plaint in OS No. 1433 of 2007 on the file of Ist Addl. Senior Civil Judge
R.R. District.
Ex B-4 CTC of order dt : 23-06-2007 in IA 1691/2007
Ex B-5 office copy of circular dt : 06.11.2007
Ex B-6 Letter No. MHWA/Corres/2007-2008/1dt: 28.12.2007
Ex B-7 O/C of 8009/NH/MHWA dt : 31.12.2007
Ex B-8 O/C of 8009/NH/MHWA dt : 15-01-2008
Ex B-9 letter MHWANo.Nil dt: 29.01.2008
Ex B-10 O/C of 8009/NH/MHWA dt : 18-02-2008
Ex B-11 O/C of 8009/NH/MHWA dt : 19-04-2008
Ex B-12 O/C of 8009/NH/MHWA dt : 26-08-2008
Ex B-13 Letter MHWA /01/08-09/01 dt: 06.09.2008
Ex B-14 O/C of 8009/NH/MHWA dt : 11.-09-2008
Ex B-15 O/C of 8009/NH/MHWA dt : 27-10-2008
Ex B-16 Letter MHWA/01/0-8-09 dt : 02.12.2008
Ex B-17 O/C of 8009/NH/MHWA dt : 06.01.2009
Ex B-18 Copy of Municipality permission for Restaurant
Ex B-19 Copy of TAX Receipt for Retaurant.
Ex B-20 O/C of 8009/NH/MHWA dt : 18-04-2006
Ex B-21 Copy of Agreement of Sale for Flat No. 418, B-Block
Ex B-22 Copy of sale Deed dt: 04.07.2005 of Flat No. 418
Ex B-23 Copy of Furnishing agreement of Flat no. 418
Ex B-24 Handing /Taking over notes
a) Sameer Mehta – Flat No. 418.
b) Sqn. Ldr. Jagdish Singh – Flat No.207
c) Rajan Goswamy Flat no. 413
Ex B-25 Photos with regard to inauguration of amenities (45 No.s with negatives)
Ex B-26 Copy of complaint in CC No. 838 of 2009 on the file of XI Addl. Chief Metropolitan Magistrate.
Ex B-27 Copy of plaint in O.SNo. 167 of 2009 on the file of Ist Senior Civil Judge, City
Civil court at Secunderabad.
Ex B-28 Legal notice dt: 11.6.2009
Ex B-29 Office copy of legal reply dt : 20.6.2009
Ex B-30 postal acknowledgement
Ex B-31 office copy of legal notice dt: 22.6.2009
Ex B-32 Postal acknowledgement.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 28. 03. 2011.
*pnr
“UP LOAD – O.K.”
