COMPLAINT FILED:03.02.2010

DISPOSED ON:06.09.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

6^th DAY OF SEPTEMBER-2011

  PRESENT :-  SRI. B.S. REDDY                          PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO.233/2010

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainants filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to allot changed/alternative parking slot instead of the existing parking slot No.39 and to provide solar water connection to the bathroom attached to the master bedroom and to award costs of the proceedings on the allegations of deficiency in service on the part of the OP.

2.  The case of the complainants to be stated in brief:

     OP being a developer had formulated a scheme for construction and sale of residential apartment at property bearing No.26/1-1, Industrial Suburb, “A” Block, 1^st Main Road, Subramanyanagar, Bangalore and accordingly constructed an integrated multistoried apartment building complex called as “Renaissance Park-Phase II”. The complainants entered into a construction agreement dated 06.04.2005 with OP agreeing to own one unit with undivided right, title and interest in the land of the said property, OP assured to provide solar water heater for hot water in all bathrooms with internal piping together with installation of solar water heater on the terrace floor of the building. Further OP assured to provide car parking facility at the basement area on ownership basis. OP executed sale deed on 30.03.2007 in favor of the complainants in respect of three bedroom apartment bearing No.507 on the 5^th floor of the Renaissance Park, Phase-II, along with one covered car parking slot at the basement floor. The complainants have been allotted car parking slot bearing No.39. Bye-Law No.16 (a) (of the BBMP byelaws-2003) specifies the size of car parking slot as minimum of 18 sq. meters viz. 3 meters X 6 meters, whereas the car parking slot provided by OP is far less i.e., 13.1 sq. meters (2.62 meters X 5 meters) and in the result the complainants are not able to park their car in the said parking slot. The complainants have repeatedly requested and demanded for change in the parking slot so as to enable them to freely car was parked, the OP has not compiled the demand by giving evasive replies. OP has not provided solar water connection to the bathroom attached to the master bedroom of flat No.507. A legal notice dated 24.11.2009 was issued to the OP, OP in its reply dated 14.12.2009 raised untenable contentions. The other car parking slot No.5 was purchased by complainants after paying an amount of Rs.1,50,000\-,the same is in addition to the existing car parking slot and it is not in lieu of the car parking slot No.39 provided at the basement level. The act of OP in not complying with the obligations or providing amenities and facilities as undertaken under the construction agreement amounts to gross deficiency of service. The complainants are entitled for the facilities and amenities for which they have made payments to the OP. Hence the complaint.

3.  On appearance, OP filed version mainly contending that parking area which is allotted to the complainants is quite small which does not mean that the complainants cannot park their car. The measurement as stated with regard to the car park area is not correct. OPs having understood certain difficulty in parking the car have suggested the complainants to avail an alternative car parking area either in lieu or in addition to the existing car parking already allotted in the basement for which the complainants preferred to have an additional covered surface car space outside the basement area by expressing their willingness to retain the existing car parking in the basement. In view of the same, OP allotted one top covered surface car park to the complainants vide allotment letter dated 01.09.2009 which is now being used by the complainants. The complainants are pressurizing the OP to allot bigger size car parking area in the basement where none available as of now more so when all the flat owners have been allotted one car parking area to their respective flats. Now the situation is beyond the control of OP, they are not in a position to allot any car park area to the complainants other than what has already been allotted to them in the basement. The solar water heater though proposed to be installed in all the bathrooms as per plan initially envisaged, the same could not be implemented subsequently on account of change in the design structure and for other reasons assigned by the architects and engineers as it was practically impossible to provide solar water heater to each and every bathroom that the owner of flat possess. OP conveyed their inability to provide solar water heater to all the bathrooms including the complainant by conveying a meeting of all the flat owners who conceded to practical difficulty involved. Accordingly the OP collected the required payments for the installation of the solar water system to the common bathroom only, the complainants accepted the solar water system only to the general toilet and accepted the practical difficulty and waived their right to seek for solar water heater for the master bedroom about 2½ years back. Accordingly they have taken possession of the flat and get the sale deed executed on 13.03.2007. For the last more than 2½ years from the date of taking possession and execution of the sale deed, the complainants did not whisper about the solar water heater and now after the lapse of 2½ years have come up with plea of not providing with solar water heater to their master bathroom as an afterthought. The complaint cannot be entertain as it is barred by time under law of limitation and complainants are estopped by the principles of estopped by their own conduct. All the flat owners did not demand for any additional solar water heater. The legal notice has been suitable replied. There is no deficiency of service as alleged, the complainants having accepted the flat as stood at the time of allotment now has no right to reopen their alleged grievances and seek for additional facilities. In view of inability to provide alternative basement car park, the offer to refund the consideration paid for the basement car park may be considered as one of the modes to settle the claim of the complainants on surrendering the car park in the basement by the complainants which has to be taken place simultaneously. Hence it is prayed to dismiss the complaint.

4. The complainant filed response to the version of OP-2 and filed affidavit evidence to substantiate the complaint averments. One Mr.Sathyanarayana Reddy filed affidavit evidence in support of defence version of OP-1 and produced documents

5.Written arguments submitted by both the parties, the arguments heard. Points for our considerations are:

      Point No.1:- Whether the complainants proved the        

                          deficiency in service on the part of

                            the OP?

Point No.2:- Whether the complainants is entitled

                   for the reliefs now claimed?

       Point No.3:- To what Order?

6. We record our findings on the above points:

Point No.1:- Negative.

Point No.2:- Negative.

Point No.3:- As per final Order.

R E A S O N S

7. At the out set, it is not in dispute that OP being a developer had formulated a scheme for construction and sale of residential apartment at property bearing No.26/1-1, Industrial Suburb, “A” Block, 1^st Main Road, Subramanyanagar, Bangalore. The complainants entered into the construction agreement dt.06.04.2005 for purchasing 3 bedroom apartments in the said project and OP assured to provide car parking facility at the basement on ownership basis and solar water heater for hot water in all bathrooms with internal piping together with installation of solar water heater on the terrace floor of the building. OP executed the registered sale deed dt.30.03.2007 in favour of the complainants in respect of three bedrooms apartment bearing No.507 on the 5^th floor of the building with one covered parking slot at the basement floor. The car parking slot bearing No.39 has been allotted to the complainants in the basement floor.

8. The main grievances of the complainants is as per bye-law No.16(a) of the Bruhath Bangalore Mahanagara Palike building bye-laws 2003 the minimum size of car parking slot is 18 sq meters viz 3 X 6 meters, where as the area of the car parking slot allotted to the complainants at the basement floor is of 13.1 sq meters(2.62 X 5 meters), in the result the complainants are not able to park their car in the said parking slot. In spite of repeated requests and demands for allotting alternative parking slot to enable them to freely park their car, OP has not complied the demand. Thus, the act of OP in not providing the car parking slot with an area as specified in the building bye-laws of 2003 amounts to deficiency in service.

9. It may be noted that neither in the construction agreement dt.06.04.2005 nor in the registered sale deed dt.30.03.2007 the area of car parking slot is mentioned. In the construction agreement at schedule ‘B’ car park is mentioned as car parking facility shall be provided in the open area/basement area on ownership basis.  In schedule ‘B’ of sale deed it is mentioned one covered car parking space. At the time of obtaining possession of the apartment, it appears that the complainants have not raised any objection with regard to the car parking slot area. BBMP has issued occupancy certificate on 22.02.2008 by imposing penalty of Rs.22,66,000/- by regularizing deviation. As per revised Master Plan 2015-Bangalore approved by the State Government on 22.06.2007, zoning of land use and regulations as part of the revised Master Plan 2015, the area for one car parking is mentioned as 2.5 meter X 5.5 meter. OP claims that as per this zoning of land use and regulations under chapter VIII table 23, the area of one car park is stipulated as 2.5 meter X 5.5 meter and the area of car park slot NO.39 allotted to the complainants measuring 2.6 meter X 5.10 meter, as such the area allotted to the complainants is more or less inconsonance with the prescribed area under the revised Master Plan of 2015.

10. The learned counsel for the complainants contended that the building plan was sanctioned on 29.12.2004; the Bruhath Bangalore Mahanagara Palike bye-laws 2003  was applicable to the construction, as per that byelaw  the area of car parking slot should have been 3 X 6 meters, the revised Master Plan 2015 has been approved on 22.06.2007; the same cannot be made applicable with regard to the area of car parking. In our view, as per the OP the car parking slot allotted to the complainants measures 2.6 X 5.10 meters, the required area is not provided as per the building bye-laws 2003 but OPs have produced photographs to show that the vehicles can easily be parked in the parking  slot allotted to the complainants. The very fact of revised Master Plan 2015 prescribing the area of one car parking as 2.5 X 5.5 meters goes to show; that much of space is sufficient for car parking. The car parking slot No.39 allotted to the complainants measures 2.6 X 5.10 meters which is sufficient for car parking.

11.The complainants have filed a Memo with the copy of plan sanctioned with regard to the basement area stating that as per the basement sanctioned plan parking is provided for 36 car parking slots where as OP has allotted 64 parking slots and parking slot No.39 (located between the lift room) allotted to the complainants is not reserved area qualified to be called as a parking slot as per bye-law NO.16 (a) of BBMP Bye-laws 2003. Photographs of parking slot Nos.38, 39, 40 are produced. In our view, when once the BBMP has issued the occupancy certificate by imposing penalty by regularizing the deviation and modified plan is issued, it is not open now to contend that the parking slot allotted to the complainants was not shown in the sanctioned plan. Now there are no any other vacant parking slots available to consider the prayer to allot alternative parking slot. OP is prepared to refund the amount collected for car parking slot on surrendering the same. Additional car parking has been purchased by paying an amount of Rs.1,50,000/- by these complainants. Though the said additional car parking is not in lieu of the car parking allotted but as per the OPs, considering the fact of the allotted car parking slot area is less, the additional car parking has been allotted. Merely because the area of the car parking slot allotted to the complainants is not inconsonance with area prescribed in the car parking slot as per bye-laws 16(a) of building bye-laws 2003, it cannot be said that there is deficiency in service on the part of the OP.

12.The other grievances of the complainant is as per the construction agreement, OP assured to provide solar  heater hot water to all bathrooms but failed to provide the same to the bathroom attached to the Master bedrooms  of apartment No.507. Hence, there is deficiency in service on the part of the OP. The contention of the OP is the solar water heater though proposed to be installed in all the bathrooms as per the plan initially envisaged, the same could not be implemented subsequently on account of change in the design structure and for other reasons assigned by the Architects and Engineers as it was practically impossible to provide solar water heater to each and every bathrooms. OP conveyed their inability to provide solar water heater to all the bathrooms including the complainant by convening the meeting of all the flat owners, who conceded to the practical difficulty involved. Accordingly OP collected the required payments for the installation of the solar water system to the common bathroom only from all the flat owners. The complainants have accepted the solar water system only to the general toilet and accepted the practical difficulty and waived their right to seek for solar water heater for the Master bedroom. Accordingly they have taken possession of the flat and got the sale deed executed on 30.03.2007.

13.The learned counsel for the complainants contended that OP has not produced any document to prove the fact that the complainant and other apartments owners accepted the proposal for providing solar water system only to the common bathroom. There was no meeting convined by the OP with regard to that subject. In our view when it was not practicable to provide solar water system to all the bathrooms due to change in the design structure and for other reasons assigned by the Architects and Engineers, OP was able to provide solar water system to the common bathrooms only and collected required costs of the same. The other owners of the apartments have accepted the proposal, now OP cannot be directed to provide solar water system to the bathroom of the master bedroom of the apartment. The complainants could have insisted that facility at the time of taking possession of the apartment. Under these circumstances, we are of the view that the complainants failed to prove the deficiency in service on the part of the OP. The complaint is liable to be dismissed. Accordingly, we proceed to pass the following:

O R D E R

          The complaint filed by the complainants is dismissed.

Considering the nature of dispute no order as to costs.

 Send copy of this order to both the parties free of costs.  

 (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 6^th day of Septermber-2011.)

MEMBER                           MEMBER                   PRESIDENT

Cs.

COMPLAINT FILED:03.02.2010

DISPOSED ON:06.09.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

6^th DAY OF SEPTEMBER-2011

  PRESENT :-  SRI. B.S. REDDY                          PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO.233/2010