Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that Opposite Party No.1 has developed a residential colonly namely “Ikon Heights’ near Dhawan Palace, Ludhiana Road, Moga and Opposite Party No.9 is one of the authorized person cum responsible person of Opposite Party No.1 and it is the duty of Opposite Party No.1 to provide car parking space to all the flat purchasers uniformly and to provide other amenities to all the flat owners uniformly and as such there is relationship of consumer and service provider between the flat owners and Opposite Parties No.1 and 9. Similarly, the Complainant is also flat owner of residential colony of Opposite Party No.1, as such Complainant is consumer qua Opposite Parties No.1 and 9. The Complainant further alleges that he had purchased a flat bearing No. 503, C-Block in the project of Opposite Party No.1 from Preetinder Kaur Grewal vide sale deed dated 09.06.2015 after paying total sale consideration of Rs.18 lakhs and said Preetinder Kaur Grewal had earlier purchased said flat from Opposite Party No.1 on the same terms and conditions. Further alleges that after purchasing the said flat, the Complainant and his family shifted to the said flat and has been residing there and using parking space to park his car and bike without any hindrance and obstruction by anyone including Opposite Party No.1. As per clause 18 of the terms and conditions of the sale deed, all the flat owners i.e. buyers are given common area for their usage and the flat owners have been given one marla (i.e. 275 square feet) parking place rights to park 1 car and bike alongwith rights of 1/6th area of 1650 square feet flat i.e. 275 square feet from the common area of the floor. Even otherwise, whenever developer has to develop an area, he has to take development permission and commencement certificate from the authorities concerned. To get these approvals, the developer has to mandatorily submit a building plan which includes area earmarked for parking and the model building bye-laws of the Ministry of Urban Development mandate the presence of parking space in housing complexes, but no parking spaces were earmarked in the complex, except for 22 stilt parking. Further alleges that with the passage of time, more and more people bought flats in the said project of Opposite Party No.1 and occupied car parking spaces with which the Opposite Party No.1 came out with an illegal proposal to some flat owners, without giving option to all flat owners, that is the best time to purchase car parking space otherwise after some time, it will be sold at much higher rates. Given this situation, the Opposite Parties No.2 to 7 claim to have bought car parking spaces by paying Rs.50,000/- as above being completely unaware of the judgement of Hon’ble Supreme Court of India that the builders are completely barred from selling car parking spaces. Opposite Party No.2 is the relative of Opposite Party No.9 and Opposite Party No.2 claims that he has purchased 16-17 flats in project of Opposite Party No.1 and rented the flats for earning income. Thereafter, in the month of March, 2018 the Opposite Party No.2 came at site in question, and in connivance with Opposite Parties No.2 to 7 put locks and key chains to the parking site of Complainant alongwith that of others claiming it to have purchased it from Opposite Party No.1 and Opposite Party No.2 removed all the vehicles from the said parking place thereby making it difficult for Complainant and other flat owners to park their vehicles; that by doing this act, Opposite Party No.2 in connivance with Opposite Party No.1, 9 and Opposite Parties No.3 to 7 have taken law into their own hands and disturbed possession and peaceful enjoying the parking site by Complainant and other flat owners without proper legal remedy and without taking due course of law and hence the act of Opposite Party No.2 is illegal and can not stand in the eyes of law; that at the time of selling flat in question to the Complainant, it is specifically ensured that he will be entitled to park one car and one bike in the common area reserved for parking and the same found mentioned in the sale deed. However, subsequent act of selling parking space by Opposite Parties No. 1 and 9 shows false promises made by Opposite Parties No.1 and 9 to dupe customer like Complainant leading to deficiency in service and unfair trade practice. The Complainant further alleges that he many times requested the Opposite Parties to allow him to use the parking space, but the Opposite Parties flatly refused to admit the rightful claim of the complainant, as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following relief.
a) The Opposite Parties may be directed to allow the Complainant to use the space of one marla reserved for parking at common area in the premises of Icon Heights for parking his car and/ or bike.
b) Opposite Parties may also be directed to remove the hindrance (i.e. chain and lock) in the common parking area in the premises and
c) Further, the Opposite Parties may also be directed to make the payment of compensation of Rs.5 lakhs on account of mental tension, harassment, financial loss, hardship, inconvenience suffered by the Complainant because of illegal obstruction caused by the Opposite Parties in the parking space and
d) The cost of complaint may please be allowed.
e) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
Hence, this complaint.
2. Upon notice, none appeared on behalf of Opposite Party No.1 and hence Opposite Party No.1 was proceeded against exparte vide order dated 03.08.2018 of this District Consumer Commission.
3. Opposite Party No.9 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable and is liable to be dismissed on the ground that intricate questions of law and facts are involved in the present complaint which requires voluminous documents and evidence for determination and hence the complaint does not fall within the ambit of Consumer Protection Act; that there is no deficiency in service on the part of the Opposite Parties and that this District Consumer Commission has got no jurisdiction to try and decide the present complaint. On merits, it is averred that the Opposite Party No.9 has already provided all the amenities and common parking space as agreed to all the flat owners uniformly and the terms and conditions have already been written in the sale deed, but it is denied that as per clause 18 of the terms and conditions of the sale deed, the buyers are given one marla of parking place as mentioned, but in fact, in the said clause, it is specifically mentioned that every flat owners can be used a common area of parking for standing one car and bike only and there was not mentioned specifically about any one marla for parking. The answering Opposite Parties have already took permission from the concerned authorities and after that the above said building has been constructed and sold the flat to different persons. It is also pertinent to mention here that common area of parking has already been provided to all the flat owners as per the requirement and terms and conditions of the authority concerned and as per the rules and regulations and by-laws of the authority concern. It is denied that Opposite Party No.2 had locked the parking site and it is also denied that Opposite Party No.9 had also locked the parking site of the Complainant. In fact, there is no specific parking for the Complainant and it is only a common area used by every flat owners and it is mentioned here that the common area parking still there and every flat owner including the Complainant use the same for standing their vehicles. Hence, there is no deficiency in service on the part of the answering Opposite Party. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
4. In order to prove his case, the complainant has placed on record his affidavit Ex.CW1/A in support of the allegations made in the complaint and copies of documents Ex.C1 to Ex.C16.
5. On the other hand alongwith written version, Opposite Party No.9 placed on record the affidavit of Sh.Mohan Lal Manchanda Ex.OP9/1.
6. We have heard the ld.counsel for the parties and also perused the written arguments placed on record by the Opposite Parties and have carefully gone through the evidence on record.
7. During the course of arguments, the ld.counsel for the complainant has mainly reiterated the facts as narrated in his complaint and contended that Opposite Party No.1 has developed a residential colony namely “Ikon Heights’ near Dhawan Palace, Ludhiana Road, Moga and Opposite Party No.9 is one of the authorized person cum responsible person of Opposite Party No.1 and it is the duty of Opposite Party No.1 to provide car parking space to all the flat purchasers uniformly and to provide other amenities to all the flat owners uniformly and as such there is relationship of consumer and service provider between the flat owners and Opposite Parties No.1 and 9. Similarly, the Complainant is also flat owner of residential colony of Opposite Party No.1, as such Complainant is consumer qua Opposite Parties No.1 and 9. Ld.counsel for the Complainant further contended that the Complainant had purchased a flat bearing No. 503, C-Block in the project of Opposite Party No.1 from Preetinder Kaur Grewal vide sale deed dated 09.06.2015 after paying total sale consideration of Rs.18 lakhs and said Preetinder Kaur Grewal had earlier purchased said flat from Opposite Party No.1 on the same terms and conditions. Further contended that after purchasing the said flat, the Complainant and his family shifted to the said flat and has been residing there and using parking space to park his car and bike without any hindrance and obstruction by anyone including Opposite Party No.1. As per clause 18 of the terms and conditions of the sale deed, all the flat owners i.e. buyers are given common area for their usage and the flat owners have been given one marla (i.e. 275 square feet) parking place rights to park 1 car and bike alongwith rights of 1/6th area of 1650 square feet flat i.e. 275 square feet from the common area of the floor. Even otherwise, whenever developer has to develop an area, he has to take development permission and commencement certificate from the authorities concerned. To get these approvals, the developer has to mandatorily submit a building plan which includes area earmarked for parking and the model building bye-laws of the Ministry of Urban Development mandate the presence of parking space in housing complexes, but no parking spaces were earmarked in the complex, except for 22 stilt parking. Further alleges that with the passage of time, more and more people bought flats in the said project of Opposite Party No.1 and occupied car parking spaces with which the Opposite Party No.1 came out with an illegal proposal to some flat owners, without giving option to all flat owners, that is the best time to purchase car parking space otherwise after some time, it will be sold at much higher rates. Given this situation, the Opposite Parties No.2 to 7 claim to have bought car parking spaces by paying Rs.50,000/- as above being completely unaware of the judgement of Hon’ble Supreme Court of India that the builders are completely barred from selling car parking spaces. Opposite Party No.2 is the relative of Opposite Party No.9 and Opposite Party No.2 claims that he has purchased 16-17 flats in project of Opposite Party No.1 and rented the flats for earning income. Thereafter, in the month of March, 2018 the Opposite Party No.2 came at site in question, and in connivance with Opposite Parties No.2 to 7 put locks and key chains to the parking site of Complainant alongwith that of others claiming it to have purchased it from Opposite Party No.1 and Opposite Party No.2 removed all the vehicles from the said parking place thereby making it difficult for Complainant and other flat owners to park their vehicles; that by doing this act, Opposite Party No.2 in connivance with Opposite Party No.1, 9 and Opposite Parties No.3 to 7 have taken law into their own hands and disturbed possession and peaceful enjoying the parking site by Complainant and other flat owners without proper legal remedy and without taking due course of law and hence the act of Opposite Party No.2 is illegal and can not stand in the eyes of law; that at the time of selling flat in question to the Complainant, it is specifically ensured that he will be entitled to park one car and one bike in the common area reserved for parking and the same found mentioned in the sale deed. However, subsequent act of selling parking space by Opposite Parties No. 1 and 9 shows false promises made by Opposite Parties No.1 and 9 to dupe customer like Complainant leading to deficiency in service and unfair trade practice. Ld.counsel for the Complainant further contended that that the Complainant many times requested the Opposite Parties to allow him to use the parking space, but the Opposite Parties flatly refused to admit the rightful claim of the complainant, as such, there is deficiency in service on the part of the Opposite Parties. To support his contention, the ld.counsel for the Complainant has also relied upon the judgement of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Appeal No. A/14/845 titled Mrs. Joyti Ramesh Agrawal Vs. Silver Ridhi Sidhi CHS Ltd.
8. On the other hand, ld.counsel for Opposite Party No.9 has repelled the aforesaid contention of the complainant on the ground that intricate questions of law and facts are involved in the present complaint which requires voluminous documents and evidence for determination and hence the complaint does not fall within the ambit of Consumer Protection Act and that there is no deficiency in service on the part of the Opposite Parties and that this District Consumer Commission has got no jurisdiction to try and decide the present complaint. Ld.counsel for Opposite Party No.9 further contended that the Opposite Party No.9 has already provided all the amenities and common parking space as agreed to all the flat owners uniformly and the terms and conditions have already been written in the sale deed, but it is denied that as per clause 18 of the terms and conditions of the sale deed, the buyers are given one marla of parking place as mentioned, but in fact, in the said clause, it is specifically mentioned that every flat owners can be used a common area of parking for standing one car and bike only and there was not mentioned specifically about any one marla for parking. Further contended that Opposite Party No.9 has already took permission from the concerned authorities and after that the above said building has been constructed and sold the flat to different persons. It is also pertinent to mention here that common area of parking has already been provided to all the flat owners as per the requirement and terms and conditions of the authority concerned and as per the rules and regulations and by-laws of the authority concern. It is denied that Opposite Party No.2 had locked the parking site and it is also denied that Opposite Party No.9 had also locked the parking site of the Complainant. In fact, there is no specific parking for the Complainant and it is only a common area used by every flat owners and it is mentioned here that the common area parking still there and every flat owner including the Complainant use the same for standing their vehicles. Hence, ld.counsel for Opposite Party No.9 contended there is no deficiency in service on the part of the answering Opposite Party.
9. The first plea taken by ld.counsel for Opposite Party No.9 is that intricate questions of law and facts are involved in the present complaint which requires voluminous documents and evidence for determination and hence the complaint does not fall within the ambit of Consumer Protection Act, but we are not in agree with the aforesaid contention of the ld.counsel for the Opposite Party No.9. Hon’ble Supreme Court of India in the matter of CCI Chamber Hsg. Society Limited dVs. D.C.Bank Limited 2003(7) 233 has held that mere complication either of facts or law can not be ground for the denial of hearing by a Forum under the Act and thus, the District Forums should not relegate the Complainants to the remedy of Civil Court in each and every case but should decide the case on the material produced by the parties.
10. Further on merits, it is not the denial of the parties that the Complainant had purchased a flat bearing No. 503, C-Block in the project of Opposite Party No.1 from Preetinder Kaur Grewal vide sale deed dated 09.06.2015 after paying total sale consideration of Rs.18 lakhs and said Preetinder Kaur Grewal had earlier purchased said flat from Opposite Party No.1 on the same terms and conditions. Further contended that after purchasing the said flat, the Complainant and his family shifted to the said flat and has been residing there and using parking space to park his car and bike without any hindrance and obstruction by anyone including Opposite Party No.1. As per clause 18 of the terms and conditions of the sale deed, all the flat owners i.e. buyers are given common area for their usage and the flat owners have been given one marla (i.e. 275 square feet) parking place rights to park 1 car and bike alongwith rights of 1/6th area of 1650 square feet flat i.e. 275 square flat from the common area of the floor. In this way, the complainant has stepped into the shoes of the previous owner i.e.Preetinder Kaur Grewal from whom the complainant has purchased the flat in question and all the terms and conditions of the previous owner also applicable ifso facto and as mentioned above, the clause 18 of the terms and conditions of the sale deed (Ex.C3), fully applicable on the present owner i.e. complainant. Reliance in this regard has been placed on Bawa Singh Vs. M.D. India Health Care Services & Others 2015(2) CLT page 418 of Hon’ble Punjab State Commission, wherein it has been laid down that:-
“In case the complainant is basing his claim on the basis of policy taken by him, there is presumption that he must have gone through the terms and conditions of the policy. A reference can be made to the judgement given by Constitutional bench of our Hon’ble Apex Court reported in 1966(7) CPSC 44 “General Assurance Society Limited Vs. Chandmull Jain” wherein it has been observed in para 11 (relevant extract as under):-
“…..The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side.”
Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Appeal No. A/14/845 titled Mrs.Joyti Ramesh Agrawal Vs. Silver Ridhi Sidhi CHS Limited, decided on 10.10.2017 has held that as per this by-law, a flat purchaser who is entitled for getting parking space cannot be denied from giving the same. The relevant portion of the judgement is reproduced as under:-
13) As per bye-law no.82, when number of vehicles of eligible members are in excess then available parking space is to be allotted by lot on yearly basis. As per this bye-law, a flat purchaser who is entitled for getting parking space cannot be denied from giving the same. Under such circumstances, we are of the opinion that, the society is required to give one parking space to complainants. If parking space is available in the premises of the society they can give parking space from that space to complainants. If parking space is not available then society has to take action and to give parking space to complainants by lot on yearly basis. However, in any case, they cannot deny the complainants from giving parking space. We are of the opinion that, the Ld.District Forum had not considered all these facts in prospective manner and had wrongly dismissed the claim of complainants. Hence, appeal is to be allowed by directing the respondent/opponent to give car parking space to complainants along with costs and compensation.
11. In view of the aforesaid facts and circumstances of the case and the complaint filed by complainant is hereby allowed against Opposite Parties No.1 and 9. Opposite Parties No.1 and 9 are hereby directed to allot one car and one bike parking space at the common area in the premises of Icon Heights for parking his car and bike. Opposite Parties No.1 and 9 are further directed to remove the hindrance (i.e. chain and lock) if any, in the common parking area in the premises. Further as the Opposite Parties No. 1 and 9 have denied car parking space to the complainant, hence the Opposite Parties No.1 and 9 are jointly and severally directed to pay the lump sum compensation to the complainant to the tune of Rs.20,000/- (Rupees twenty thousands only) on account of harassment, mental tension and litigation expenses. The compliance of this order be made by Opposite Parties No. 1 and 9 jointly or severally within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
