Karnataka

Bangalore 1st & Rural Additional

CC/752/2014

Darshit Bhopendra Parmar S/o Bhupendra Narshidas Parmar & Ramya Gopal , - Complainant(s)

Versus

M/s SPL Realators Pvt.Ltd., - Opp.Party(s)

Sl

06 Feb 2015

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

 

01.  The complainant has filed this complaint against the Opposite party (hereinafter referred in short as Op) alleging deficiency in service on the part of the Op and praying for direction to the Op to pay Rs.1,75,000/- towards illegal collection of car parking charges, Rs.25,000/- towards illegal collection of club house charges, Rs.5,00,000/- towards compensation for loss of common space and pathways and unauthorized maintenance deposit, Rs.2,00,000/- towards liquidated damages for mental agony and sufferings, i.e., in all Rs.9,00,000/- along with costs of the proceedings.

 

02.  The brief facts of the complaint is that, the complainant attracted by the advertisement and offers given by the OP had booked an apartment.  On 09.03.2011 the complainant had entered into an agreement to sell with the OP in respect of the apartment bearing No.NM-102, A Type, in the property bearing No.SU-350 consisting of two bed rooms in 1^st floor having super built up area of 905 square feet in north block in a residential complex known as Shriram Surabhi apartment Complex constructed on the lands bearing Sy. No.24 and 25 measuring 07 acres and 06 guntas duly converted for non-agricultural residential purposes vide order of the special Deputy Commissioner, Bangalore District, bearing No. B.DIS.ALN.SR.(S)117/2004-05, dated: 26.06.2004, and B.DIS.ALN.SR.(s) 268/2003-04, dated: 17.11.2003 situated at Mallasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, along with undivided share of 434 square feet in the entire land including one covered car parking in the basement.  In the said agreement to sell the total sale consideration towards the price of undivided share of land and development cost was agreed for Rs.8,59,750/-.  The complainant paid Rs.1,71,950/- towards the advance and balance is payable on every stage of construction and the last installment was payable during handing over the possession and as per the schedule mentioned in the agreement to sell.  The complainant entered in to an agreement to build on 09.03.2011 and accordingly, the total cost of construction was fixed at Rs.11,76,500/- and Rs.1,75,000/- was fixed towards the allotment of one top open car parking space.  Complainant paid Rs.4,20,000/- towards advance for construction and the balance was to be paid as per the Agreement to build.  The complainant had promptly paid the balance amount to the OP as per the schedule of agreement to build.  On 17.10.2012 OP executed a Deed of Apartment in favour of the complainant.  The OP also executed the Deed of Declaration in Form-A dated: 12.12.2013 registered in the office of the Sub-registrar, Bangalore.  Despite these payments the OP illegally collected charges towards one top covered car parking space and club house without justifiable cause.  As per Agreement to Build dated: 09.03.2011 the OP had already collected Rs.11,76,500/- towards cost of construction of super built up area of 905 Sq. ft.  The OP has violated the sanctioned building plan and created extra car parking to the extent of 564 instead of 258 covered car parking and 55 open car parking.  The OP has miserably failed in provide proper service and it committed deficiency in service by encroaching the common spaces and pathways for car parking area and created difficulty to move the vehicles.  The OP also deviated the sanctioned building plan by constructing extra floors in Block-NL to NS by converting 6^th & 7^th floors as Duplex houses and digging the surface land in to lower ground level thereby caused inconvenience to other apartment owners.  The OP has collected Rs.16,290/- towards maintenance charges illegally though it specifically stated in para 14(a) of page 7 of Agreement to build dated: 09.03.2011 that, the OP will maintain the building until the completion of that project.  The OP failed to obtain the completion certificate from the designated authority because of the deviation in construction which clearly amounts to deficiency in service.  The complainant sent several communication letters to the OP regarding the problems, but OP never bothered to give reply.  Hence on 05.02.2014 complainant issued legal notice to the OP, but OP did not choose to reply.  Hence this complaint. 

 

03.   Upon issuance of notice, OP appeared through its counsel and files its version contending that, the OP is a well reputed national level organization in real estate development and construction of quality buildings/apartments for about 20 years and has completed over 15 apartment projects to the utmost satisfaction of its customers.  The complainant has suppressed the material facts.  The complainant has taken possession of her apartment on 02.02.2013, by inspecting and acknowledging that, “she is fully satisfied in all respect” and after over one and half years, started grumbling like this unreasonably.  The complainant entered in to agreements dated: 09.03.2011 with the OP to purchase the apartment No.NM-102 from the OP.  A Deed of Declaration as prescribed by the Act ibid, has been executed and duly registered on 12.12.2013.  Even the Provisional Managing committee of the association, as prescribed under Bye-law No. 19(1) of the Shriram Surabhi Association, the registered Bye-law, forming part of the registered DOD, has been duly constituted.  Even the General Body meeting of the Association is also stated to have taken place and elected body of Managing Committee is installed.  Now legally, the said association is fully and exclusively in control.  Once the association is established, any matter relating to the common areas can be dealt with only by the association and no individual purchaser can validly pursue any such issue.  The claim of the complainant is not pertaining to the individual right but in relation to other larger aspects.  Hence the complainant has no locus-standi to maintain the complaint.  The allegation of the complainant that, despite payment of cost of land and towards construction of the apartment, the OP has illegally collected charges towards the top covered car parking space without justifiable cause is totally misleading one.  The total consideration of the apartment consists of several items like cost of construction of the limited common areas and facilities (consisting of the specific apartment and the car parking slot) and the specified percentage of undivided share and interest in the common areas and facilities as specifically defined in the Karnataka Apartment Ownership Act, 1972 and KEB deposit, BWSSB deposit, corpus fund, etc. and not the cost of the share of land as wrongly contended by the complainant.  The cost towards the car park as limited common area and facilities and towards the club house as common areas and facilities are merely indicative of the tentative/proportionate costs of such items, indicated only for the sake of information and knowledge enabling the purchasers of apartments to know specific ingredients or constituents/inclusive-items of the total consideration or the total amount payable by the purchaser.  If there is any deviation from the approved plan, it is to be decided by the concerned local authority and the complainant is not entitled to agitate the same. Since the number of car parking space mentioned in the earlier sanctioned plan was not sufficient more number of car parking slots are sanctioned in the modified plan which is approved by the authority.  The extra floors in Block-NL to NS were also duly constructed in accordance with the approval of the plan by not changing the total number of apartments, sanctioned in the earlier approved plan. Hence OP contended that there is no inconvenience or discomfort caused to the complainant and there is no deficiency in service on the part of the OP.  In respect of occupancy certificate OP contended that the Mallasandra village where the apartment are situated was formerly coming under the local limits of Thalagatta Village punchayath which was later included in the limits of Kagglipura grama panchayath.  The Kagglipura grama panchayath is permitted to occupy and use the apartment and validated to use and occupation of the apartments. OP further contended that due to formation of BBMP by government Gazetted Notification certain villages coming under the erstwhile Thalaghatapura Grama Panchayath were merged with the BBMP.  All the records to Mallasandra village along with some other villages are stated to have been transferred to BBMP by the Thalaghatapura Grama Panchayath due to some error, the name of the said Mallasandra village was missing in the Government Gazette Notification, which was discovered at a later stage, though the records were stated to have been already transferred.  The Op is trying to obtain formal “Occupancy Certificate” from BBMP, even though the Kaggalipura Gram Panchayat has already permitted to occupy and use the apartments.  In spite of efforts made by the OP, BBMP remained silent on record; but informal enquires revealed that, due to the said erroneous omission of the name of Mallasandra village in the notification, on technical ground, it is not issuing the Occupancy Certificate under BBMP Building Bye-laws, pending rectification of the same by the Government.  Due to some reasons, even the issue of effecting separate Katha Certificate is pending.  The Tug-of-War between the BBMP and the said Gram Panchayath caused delay in these areas, which are beyond the control of the OP.  Since the purchase of car park was optional and the complainants opted to purchase the apartment with car parking slot as limited common area and facility, the tentative cost of car park was required to be collected along with the cost of apartment.  Those who opt not to acquire car parking space along with the apartment, are not required to make such additional payment at all.  There is no deficiency in service on the part of the OP.  The allegation is imaginary to the revised approved plan.  The OP further contended that, there is already existing association and hence management of the affairs of the project, including security arrangement is being officially handed over to legally constituted managing Committee of the association and not to body of individuals.  The permission is already accorded from the local authority hence use and occupation of apartment is unquestionable.  On other grounds averred in the version and the OP prays from dismissal of the complaint.

 

04.   To substantiate their respective cases, both the parties have filed their respective affidavit evidence along with documents.    We have heard the arguments.

 

05.   On the basis of pleadings and evidence placed before us, the following points will arisen for our consideration are:-   

 

                (A)    Whether the complainant has proved deficiency

in service on the part of the OP?

(B)   Whether the complainant is entitled to the relief

        prayed for in the complaint?

(C)     What order?

 

06.   Our answers to the above points are:-

 

        POINT (A) & (B):      In the Negative

 POINT (C):      As per the final order

                       for the following:

 

REASONS

POINT (A) & (B):-

07.   On perusing the pleadings of both the parties and the materials placed before us, it is an undisputed fact that, the complainant has duly purchased from the OP apartment bearing No.NM-102, in the property bearing No.SU-350, consisting of two bed rooms in 1^st floor having super built up area of 905 square feet in North block in a residential complex known as Shriram Surabhi Apartment.  On perusing the sale deed it reveals that, the total consideration of the sale price for the apartment was paid by the complainant.  The grievance of the complainant is that, initially for the whole apartment complex there were number of covered car parking has been fixed at 258 and number of open car parking have been fixed at 55, but the OP has violated the sanction building plan and created extra car parking to the extent of 564 car parking and that to in most of common places and pathways.  Hence the complainant contended that, on construction of more number of car parking areas it creates hindrance and difficulty for movement of vehicles and as well as other apartment owners.  Per contra, OP contended that, as per the modified plan which is approved by the authority they have constructed some more apartments and naturally the car parking also increases in respect of the area covered for construction.  The complainant is not having any kind of difficulty to access free pathways.  As per the saying of the complainant when the sale deed is executed on 09.03.2011 and also possession is taken by the complainant, if such being the case when the complainant claim to be the owner of the apartment and also the car parking allotted to his share, the complainant ought to have raised the objection or protested the same at the time of formation of number of car parking.  The complainant did not whisper anything either in his evidence or in his pleadings why he kept silent at that time.  Furthermore, the complainant has also got every right to approach to the Civil Court for mandatory injunction if he found anything obstruction to his peaceful possession and enjoyment of the property in question.  On perusing Section 14 of the Act, the finding of the District Forum

 

(1) if after proceeding conducted Under Section 13 the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the OP directing him to do one or more of the following things, namely:-

(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;

(b) to replace the goods with new goods of similar description which shall be free from any defect;

(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the OP;

Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;

(e) to remove the defects in goods or deficiencies in the services in question;

(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;

(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently;

Provided that the minimum amount of sum so payable shall not be less than five percent of the value of such defective goods sold or services provided, as the case may be, to such consumers;

(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement.

1. To provide for adequate costs to parties.

 

08.   In the light of the above, the relief sought by the complainant will not come under the purview of the Section 14 of the Consumer Protection Act, 1986. So also complainant alleged that, the OP illegally collected the club house charges but OP per contra stated that, association is fully and exclusively in control.  Once the association is established, any matter relating to the common areas can be dealt with only by the association and no individual purchaser can validly pursue any such issue.  The claim of the complainant is not pertaining to the individual right but in relation to other larger aspects.  Hence the complainant has no locus-standi to maintain the complaint.  If the association is existing it is the lookout of the said association to provide amenities to all the members of the apartment and manage the same. If the managing fund with the OP, the association got every right to get the money from the OP in order to maintain the apartment and to provide the club house facility.

 

09.   Furthermore the complainant alleges that, the OP by deviating the plan has constructed number of apartments, but it is not the Forum to question regarding illegal construction if it is so.  When the competent authority given due sanction to build the apartments in question the complainant has no right to agitate the matter before this Forum.  The consumer court functions within the time bound proceedings and the proceedings are conducted summarily.  Hence the averments made in the complaint regarding construction of illegal apartments and increased in the number of car parking areas and causing obstruction to free access of the pathways will not come under the domain of Consumer Protection Act.

 

10.   In the light of the above discussion the complainant has failed to prove the deficiency in service on the part of the OP and thereby he is not entitled to relief as sought in the complaint.  Accordingly we hold, point (A) & (B) in the negative.

 

POINT (C):-

11.   On the basis of the reasons assigned above, while answering the point (A) & (B) accordingly, we proceed to pass the following:-

ORDER

01.   The complaint is dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of costs.

(Pronounced in the Open Forum on this 06^TH DAY OF FEBRUARY 2015)