ORDER
(Passed this on 23rd September, 2016)
Shri Shekhar P. Muley, President.
01. All these complaints are being disposed of by a common order since facts, dispute and Opposite Parties (OPs) in all the complaints are same.
02. These complaints are regarding illegal erection of mobile tower on the building, consequent damage to the building and incomplete work of their respective flats..
03. The complainants are some of the residents of an Apartment known as Amaltash Enclave at Parsodi. By registered sale deed they have become absolute owners of their respective flats along with some portion of undivided share. The apartment has been constructed by the OP1, a firm and OP2 is its proprietor. The complainants are common owners of the terrace. Therefore the OP’s have no right to make any deal in respect of the terrace without permission of them and other flat owners. But the OP 3 has constructed mobile tower and kept other materials, electrical equipments, and generator on the terrace, which is posing danger of damage to the building. Electrical wires pose danger to the complainants and their families. Some part under the tower has been damaged and to hide it, some portion has been white washed.
04. Besides that, the OP1 and 2 have not provided all facilities. Emergency staircase in case of fire is incomplete. In the basement rain water accumulates and in the parking space unnecessary wooden materials are kept. Therefore flat owners cannot use parking space to park their vehicles. Tower has been erected by the OP-3 in connivance with the OP-2. For carrying diesel and other materials lift or staircase is being used. Since huge quantity of diesel is stored on the terrace there is every possibility of fire. All this is done illegally. Hence it is prayed that OP’s be directed to remove the mobile tower, to pay Rs.30,000/- pm compensation for the damage caused to the building till removal of the tower, to pay further compensation of Rs.1 lakh for deficiency in service in not providing all facilities and compensation for mental harassment and litigation cost.
05. OP 1 and 2 filed reply at Ex. 15. It is admitted that the complainants are owners of their flats, but it is denied that the OP’s have no right over the portion of the building. It is denied that without permission of the complainants and other flat owners they have no right to make any deal in respect of the terrace. As per the sale deed they have every right to use the terrace. Therefore they permitted OP3 to erect mobile tower on the terrace. They have kept their right over the terrace with them and not given it to flat owners. It is denied that due to tower the building is under danger. Incomplete construction is denied. Only plaster of the stair remains to be done because of NIT direction. All other facilities have been provided. A pump is installed in the basement to pump out water. Denying all other allegations it is prayed to dismiss the complaint.
06. OP-3 filed reply at Ex.16. Preliminary objections are taken that relief’s of declaration and injunction are sought which are not tenable before the forum. Removal of tower is also sought, which amounts to termination of tenancy and the forum has no jurisdiction to terminate tenancy. The complaint is filed in individual capacity and not as a secretary of the apartment. The towers are erected everywhere and there is no scientific proof of mobile tower or radiations causing danger to building. The complainants are not consumers of it. Therefore also the complaint is not tenable. Moreover as per the terms of sale deed the OP1 has retained his exclusive right to use the terrace. The complaint in individual capacity is not tenable as there are other flat owners, shops and offices in the building. Besides, the State Govt has exempted FSI for construction of towers and issue of payment of premium is sub juiced before the Hon´ble Supreme Court. The Architect has given certificate of stability of the building to erect tower. Thus denying all allegations it is prayed to dismiss the complaint.
07. Heard learned counsels for both the parties. Perused the documents and notes of arguments. Upon considering all documents and submissions we record our findings that the complaints are liable to be dismissed for the reasons given below.
REASONS
08. So far as the apprehension of radiation from the mobile tower is concerned there is no scientific proof to support it. This fact has been recognized in judgments by various High Courts. In Residents of Aforamenton v/s Francis Fernandes 2010 (1) Bom. C.R. 473 it is stated that there is no provision of law that health hazard is a ground for issuance of order of removal of mobile tower from the building. Same view is taken by Delhi HC in M/s Virmani Roy v/s Ansal Properties AIR 2003 Delhi 158. The counsel for the complainant has also submitted that the complaints are more regarding damage to the building due to weight of the generator and erection of tower without permission, not only on the health hazard due to radiations. We find that the allegation as to health hazard due to tower radiation has no proof of authenticity and so unwarranted.
09. It is contended that due to erection of tower and keeping generator and equipments and electrical materials on the terrace, the structure of the building is being damaged. In this respect some photographs of the building are produced. But from the copies of photographs it is difficult to say that the building or any portion of it is damaged or is in danger. It is pertinent to note that Nagpur Municipal Corporation (NMC) so far has not issued notice to the OP 3 regarding erection of tower or regarding danger being posed by tower or generator. The complainants have also not given notice or letter to NMC for taking action against the such tower and generator placed on the terrace. The complainants could have obtained expert report from an architect regarding the condition of the building. Only on mere complaint it is not possible to infer that the building is damaged or is under threat of danger due to mobile tower and generator.
10. The counsel for the OP3 has submitted that he is paying rent and maintenance to the OP 2 for the use of the terrace. He is a tenant of the OP1 and 2. Therefore he cannot be evicted without following due procedure of law. The forum is not the authority to evict him. The complainants are not his consumers as there is no privity of contract between them. In this respect we agree with the submission of OP 3. The complainant has sought relief of removal of tower which amounts to eviction of the OP3 from using the terrace. This does not fall within the jurisdiction of consumer forum.
11. Both the parties have heavily relied on the sale deed regarding the use of terrace. A perusal of the sale deed reveals that the purchaser has agreed that the vendor/ developer reserves exclusive right to use the terrace of the building. However, the counsel for the complainants relying on Ramagauri Keshavlal Virani v/s Walkeshwar Triveni Co-Op Society 1999 (3) Mh. L. J.145 contended that there is no statutory provision authorising the builder to sell terrace. It is contended that the words such as common areas, facilities, carpet area do not include the terrace. Therefore the act of the OP 1and 2 to allow the OP 3 to use terrace without permission of the complainants is illegal and unfair trade practice. We have perused the judgment in Ramagauri case. In that case the petitioner alleged that along with a flat he purchased the terrace appertaining to his flat. The flat had 2 doors opening in to the terrace and therefore his ownership of the terrace should be accepted. Referring to Section 4 of the Mah. Ownership Flats Act it was held that the provision does not authorise a builder to sell a
terrace of the building. The facts of that case can be distinguished from the facts of present case. Here the OP 1 and 2 by specific agreement with the complainants have reserved their exclusive right to use the terrace. The terrace is simply given on rent to the OP 3 for using it to erect mobile tower and keeping equipments, generator, etc thereon. The ownership right over the terrace has not been transferred to the OP 3. The OP 3 is not claiming ownership over the terrace. The OP 1 and 2 also cannot restrain the complainants from using the terrace and that is not the complaint also of the complainants. The Mah. Ownership Act does not restrict a builder from keeping the terrace for his use. Hence, in our opinion the Ramagauri case in not applicable.
12. The counsel for the complainants has submitted that the complainants do not deny right of OP’s to use the terrace, but they cannot allow the OP 3 to erect tower and keep generator on terrace. Such restricted meaning to the word ¨USE¨ given in the sale deed is not permissible. The OP’s placed reliance on M/s Virmani Roy v/s Ansal Properties AIR 2003 Delhi 158 wherein it is held that if flat buyers agreement does not confer any right in respect of terrace in their favour then they cannot restrict the developer from using the terrace. However that judgment was given on the provision of Delhi Apartment Ownership Act with which we are not concerned. But even in Mah. Flat Ownership Act use of terrace by the developer is not denied.
13. Thus after giving due consideration to rival contentions we are of the opinion that the complainants have no case to direct the OP’s to remove the tower and other equipments from the terrace. They have, for that purpose, to approach appropriate authority. Hence, we dismiss the complaint and pass the following order.
ORDER
(1) All the complaints are dismissed.
(2) No order as to cost.
(3) Copy of the judgment be provided free of cost to
both the parties.
(4) Copies of the judgment be kept in C. C.
Nos. –RBT/CC/11/ 368, CC/11/370 & CC/11/384.
