BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                                                                                      BENGALURU – 560 027.                              

DATED THIS THE 01^st DAY OF OCTOBER, 2021

CONSUMER COMPLAINT NO. 1019/2019

PRESENT:                                                          

Sri.C.V.Maragoor, B.com, LL.M.              ….      PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.            ….         MEMBER

Complainant

1. M/s. Sriven 205,

Apartements Owners Association

Receiption Area, Ground Floor,

Sriven 205 Apartments,

Survey No.205, Panathur Railway

Station Road, Amani Bellandur

Khane Village, Varthur Hobli,

Bengaluru-560103

Rep. by its Committee Members

and Authorized Signatories.

1. Mr. Dibyasingh Pattnaik,

Aged about 41 years,

S/o Binod Bihari Pattnaik

Flat No.203

2. Mr. Mayank Gupta,

Aged about 32 years,

S/o Vishnu Dutt Gupta,

Flat No.413

3. Mr. Raja Mop0arthi,

Aged 34 years,

S/o Ranga Rao Moparthi,

Flat No.007.

(Rep by, Kamal and Co., Adv)

V/s

OPPOSITE PARTIES:

1. M/s Sriven Infra Projects

A Partnership Firm Having its

Office at No.202, Adithi Exotica,

Panathur Village, Varthur Hobli,

Bengaluru East Taluk,

Bengaluru-560103

By its Managing Partner

Sri. K. Sasidhar Reddy

Aged about 55 years,

S/o K.V.Krishna Reddy.

Also at

M/s Sriven Infra Projects,

R/at No.A-501, Fortune Exotica,

Plot No.78 & 79, Nandagiri Hills,

Jubilee Hills,

Hyderabad-500033

BY SRI C.V.MARAGOOR., PRESIDENT

******

//ORDER//

1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 to direct the opposite party to provide Occupancy Certificate to the Members of the Complainant Association in respect of their flats which are in their occupation, possession and enjoyment, b) To provide No Objection Certificate from the Pollution Control Board after complying with the requisite procedural aspects and also after complying with the norms prescribed by the Pollution Control Board in so far as the facilities installed in the Sriven@205 Apartment Complex, c) To deposit the requisite amount to BWSSB towards sanction and connection of BWSSB water connection for supply of Cauvery Water for drinking purposes to residents of the apartment in Sriven@205 Apartment Complex, d) To obtain the proceedings under Sec.143 of the Municipal Corporation Act for bifurcation of Khatha to individual apartments and assessment of tax thereon by the Municipal Authorities, e) To arrange to provide the full-fledged amenities in a proper way to the residents as promised by him while handing over the flats in Sriven@205 Apartment Complex, f) To make arrangements for proper allocation of car parking in the apartment complex as per sanctioned plan, g) To carry out Proper external wall paintings which was unattended hitherto, h) To hand over assets and title deeds of the apartment complex to the complainant association for the purpose of maintenance and management of apartment complex and to hold the title documents as custodian by the complainant association and award cost of the litigation.

3. The complainants are the office bearers of M/s SRIVEN@205 Apartment Owners Association and opposite party is the developer of the complainants flat.  The complainants association is duly registered on 30.04.2019.  The object of the association is for the purpose of the welfare and well-being of its residents/flat owners.  The opposite party had constructed and developed residential apartments known as SRIVEN@205 in Survey No.205, Panathur Railway Station Road, Amani Bellandur Khane Village, Varthur Hobli, Bangalore-560103 and has sold apartments to 77 Members of the complainant association.  The flat owners are in occupation, possession and enjoyment of flats since the date of execution of registered sale deeds.   

4. It is the case of complainant that the opposite party has not provided Occupancy Certificate even after two years from the date of handing over of the apartments.  The opposite party has not provided basic amenities as per sanction plan like Electricity and Sanitation facilities by obtaining permission from the competent authorities.  Hence this complaint.

5. In response to service of notice the opposite party appeared through its learned counsel on 27.02.2019 but he did not care to file objections with in stipulated period as such his right to file version was forfeited on 09.01.2020.  Later on opposite party had filed application u/s 13(1)(a) of Consumer Protection Act, 1986 read with Section 151 CPC on 06.02.2020 which came to be dismissed vide order dated 10.03.2020.  However the opposite party is permitted to participate in the remaining proceedings.

6. The complainant no.1 filed affidavit evidence and got marked Exs.P1 to P6 documents.

7. We have heard the oral arguments advanced by the learned counsel for the complainant whereas the opposite party learned counsel submited written arguments which runs 21 pages and the points that would arise for our determination are as under;

1. Whether the complainant proves that the opposite party has committed deficiency in service by not providing basic amenities of the apartment?

2. Whether the complainant is entitled to the reliefs sought in the complaint?

8. Our findings on the above points are as under:-

1. POINT NO.1  : In the partly affirmative
2. POINT NO.2   : As per the final order for

                       the following;

:REASONS:

9. POINT NO.1 and 2:- The learned counsel for the complainant has vehemently argued that the opposite party has not complied with Ex.P2 Construction Agreement dated 18.01.2016.  The opposite party has not paid electricity charges before handing over possession of the flats.  The opposite party has not provided Occupancy Certificate even after execution of registered sale deeds till this date.  The opposite party in the written arguments contented that Ex.P1 broacher is created by the complainants for the purpose of filing this complaint. The opposite party has not disputed construction of the apartment by name SRIVEN@205 and sale of 77 flats to the complainant’s association members.  The apartment consists of cellar, ground and 4 floors.

10. In this case Ex.P6 registered Deed of Declaration dated 30.04.2019 is material document.  This Deed of Declaration is registered by SRIVEN@205 Apartments Owners Association before the Sub Registrar, Banaswadi, Bengaluru on 30.04.2019.  This Deed of Declaration Ex.P6 contained name of the owners or authorized signatory of 77 flats.  Further it contained the amenities available in the flats, nature and structure of apartments.  The complainant alleged that the opposite party has not provided the Occupancy Certificate to the members of the complainant association.  The opposite party in the written arguments admitted that it has not provided Occupancy Certificate to the flats owners.  The opposite party in the written arguments contended that though he has applied to Bruhat Bengaluru Mahanagara Palike to furnish Occupancy Certificate on 11.02.2016 but it has not provided. It is the duty of developer or the opposite party to furnish all the information to BBMP to issue Occupancy Certificate, till then the authority will not issue Occupancy Certificate. The opposite party cannot shirk its responsibility that already he has submitted application to BBMP. The opposite party shall secure Occupancy Certificate from the concerned authority and hand over to the members of each flat.

11. The next deficiency pointed out by the complainant is that the opposite party has not taken No Objection Certificate from the Pollution Control Board after compling with requisite procedure of law aspects.  The complainant in Ex.P6 Deed of Declaration under Exhibit-A documents relating to common interest of the apartment owners admitted under clause (m) of copy of the remittance challan for having remitted the statutory fees payable to BWSSB for water supply and sanitary connection vide deposit challan dated 19.09.2013.  Though the opposite party has remitted fees for water supply and sanitary connection before commencement of the construction work, it is the obligation on the party of opposite party to take “No Objection Certificate” from the Pollution Control Board that he has constructed the building as per the sanction plan, rules and regulations.  Therefore, the opposite party shall bring No Objection Certificate from the Pollution Control Board.  Further the opposite party shall get water connection from BWSSB for supply of Cauvery Water for drinking purpose of the complainant association. The opposite party in Ex.P2 Construction Agreement under Schedule “D” has agreed to supply ample water (3-Bore Wells) plus Cauvery Water.  The complainant has not disputed existence of three bore wells which are in the premises of SRIVEN@205 apartment.  The opposite party shall make arrangement for supply of Cauvery Water to the complainant association.

12. The complainant’s prayer is that the opposite party has to obtain the proceedings under Sec.143 of the Municipal Corporation Act for bifurcation of Khatha to individual apartments and assessment of tax thereon by the Municipal Authorities.  It is the duty of individual flat owners to bifurcate the Khatha after Sale Deeds have been executed in their names.  The prayer of complainant in clause (e) is vague as it reads as the opposite party to arrange to provide the full-fledged amenities in a proper way to the residents as promised by him while handing over the flats in SRIVEN@205 Apartment Complex.  The complainants have not taken any documents from the opposite party which amenities are not provided at the time of handing over possession.  Therefore, the complainants are not entitled to the prayer (e) of the complaint.  That apart in Ex.P6 Deed of Declaration the complainant association has declared that basic amenities have been provided in the apartment like fully equipped Gym measuring around 1980 sq.ft., located on the first floor, the club house measuring 1980 sq.ft., located on the ground floor, one Kirloskar Diesel Generator having capacity of 125 KVA, children play area measuring around 490sq.ft., two badminton court measuring around 3,000sq.ft., transformer etc. The opposite party has provided basic amenities as per the sanction plan and agreement arrived between parties at the time of joint construction agreement.

13. The complainants in Ex.P6 Deed of Declaration under head Common Areas and Common Facilities on page no.4 stated that the car parking area under clause (h) of page no.4 of 6 as per the sanctioned plan, basement consists of 74 numbers of car park and the ground floor consists of 15 numbers of car parks, thus totaling 89 car parks.  As per the actual construction all car parks are at basement only.  The complainant association can allot car parking space to each of the residence of the flats since there are 89 car parks though total flats are 77.  The direction cannot be given to the opposite party for allotment of car parks to the complainant association members.  The complainants asked the opposite party to carry out proper external wall paintings which was unattended hitherto. The complainant before taking possession of flats in 2016 would have asked the opposite party to carry out proper external wall paintings. As such now the direction cannot be issued to the opposite party as there is no agreement between the complainant and opposite party to carry out proper external wall painting.

14. The last prayer of the complainant is to hand over assets and title deeds of the apartment complex to the complainant association for the purpose of maintenance and management of apartment complex and to hold the tile documents as custodian by the complainant association.  It is the duty of the opposite party to handover all the Original documents, Construction Certificate, Completion Certificate, Survey sheet prepared by the revenue officer pertaining to land survey number where apartment is located, BBMP, BWSSB, Pollution Control Board and other documents. Already the opposite party has sold all the flats in the apartment as such the opposite party shall hand over all the original documents to the association members or complainant association forthwith.

15. The opposite party has taken contention that the complainant is barred by law of limitation.  It is the contention of opposite party that members of the complainant association have taken possession of their flats in the year 2016 and the complaint is filed in the year 2019 as such it is bared 24(A) of Consumer Protection Act, 1986.  Though the members of the complainant association have taken possession of the flats in 2016 but the opposite party itself admitted that it has not issued Occupancy Certificate from BBMP and No Objection Certificate from the Pollution Control Board.  Further the opposite party has not handed over original documents pertaining to the apartment to the complainant as such cause of action to file the complaint is continuing one. Therefore, the complaint is not barred by law of limitation. For the above reasons, we proceed to pass the following;

         The complaint is partly allowed directing the opposite party to provide Occupancy Certificate to the members of complainant association, No Objection Certificate from the Pollution Control Board, get water connection to the complainant association from the BWSSB for supply of Cauvery Water and handover all the original title deeds of the apartment complex to the complainant association.

The opposite party shall comply with the above directions within 60 days from the date of order. In case the opposite party fails to comply with the order within 60 days, it shall pay penalty of Rs.100/- per day to the complainant association till compliance of all the directions.

It is further ordered that the opposite party shall pay litigation cost of Rs.15,000/- to the complainant within 60 days from the date of this order, otherwise it carries interest at the rate of 8% p.a. from the date of default till payment. 

       Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 01^st day of October, 2021)                                            

• M.B. SEENA)         (L.MAMATHA)          (C.V.MARAGOOR)    
•  

                                    //ANNEXURE//

Witness examined for the complainants side:

Mr. Dibyasingh Pattnaik, the complainant has filed affidavit.

Documents marked for the complainant side:

1. Brochure of Opposite Party.
2. True copy of construction agreement dated 18.01.2016.
3. True copy of sale deed dated 27.06.2016.
4. Copy of letter of authorization dated 12.06.2019.
5. Copy of the legal notice dated 09.11.2018.
6. Certified copy of dead of declaration dated 30.04.2019.

Witness examined for the opposite party side:                  

-NIL-

Documents marked for the Opposite Parties side: 

-NIL-

• M.B. SEENA)         (L.MAMATHA)          (C.V.MARAGOOR)    
•