Complainant through Shri. Velankar
Opponent No. 1 absent
Opponent No. 2 through Adv. Butala
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(12/06/2013)
This is the complaint filed by flat owners against the builder as well as the office bearers of the Co-operative Housing Society under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainants have purchased flat no. 39 in building ‘B’ on 21/9/2001 from the opponent no.1. The opponent no. 2 is represented by the office bearers of Co-operative Housing Society. It is the case of the complainants that they have purchased parking as shown in the agreement for sale along with their flat. On 22/05/2005, opponent no. 2 in its Annual General Body Meeting passed resolution no. 7.2 and claimed parking charges @ 300/- p.m. for closed parking and Rs. 150/- for open parking. It is alleged by the opponent that, complainants are parking two four wheelers in the parking area, which is allotted to them. In fact, the complainants are entitled to park only one four wheeler in the said parking, which is allotted by the opponent no. 1 i.e. builder and the remaining area of the said parking is part and parcel of the common area. Hence, opponent has started charging Rs. 300/- p.m. on the parking area, which is belonging to the complainants. They have also claimed arrears for the said parking since May 2010 onwards.
The opponent no. 1 had not effected conveyance deed in favour of the society and caused deficiency in service. Hence complainants have filed this complaint for directing the opponent no. 1 to effect conveyance deed and for restraining opponent no. 2 permanently from levying additional charges for parking area. The complainants have further asked relief of injunction against the opponent no. 2, restraining them from recovering the parking charges with retrospective effect.
2] The opponent no. 1 though duly served, remained absent; hence complaint proceeded ex-parte against it.
The opponent no. 2 resisted the claim by filing written version. They have denied the contents as regards deficiency in service. The facts as regards purchasing of flat and allotment of parking by the opponent no. 1 is not seriously disputed by the opponent no. 2. But it is denied by the opponent no. 2 that the complainants have purchased parking for two 4 wheelers from the opponent no. 1. According to them, the complainants are entitled to park only one 4 wheeler in the area, which is purchased from the opponent no. 1. They have also contended that the resolution is passed in Annual General Body Meeting as regards charging parking charges for additional charges; hence complainants are liable to pay additional charges as per resolution. It is further contended that there is dispute between the parties as regards the area, which is purchased by the complainants from the opponent no. 1. The complainants have challenged the resolution passed by the opponent no.2, hence Consumer Forum has no jurisdiction to entertain this complaint and they have to approach Registrar of Co-operative Society, as they have challenged resolution passed by the society. The opponent no. 2 has prayed for dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments, as well as perusing written arguments of both the parties and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Do the complainants have proved that the opponent no. 1 has caused deficiency in service by not executing conveyance deed? | In the affirmative |
2. | Do the complainants have proved that the opponent no. 2 has caused deficiency in service as alleged? | In the negative |
3. | What order? | Complaint is allowed against the opponents as regards conveyance deed only. |
REASONS :-
4] Admitted facts in this proceeding are that the complainants have purchased flat no. 39 in building no. ‘B’, which is constructed by the opponent no. 1. The Co-operative society as regards the said building is registered and the opponent no. 2 is representing the said society.
The complainants have claimed two reliefs from opponent no. 1 and opponent no. 2. The complainants have asked conveyance deed from the opponent no. 1, who has not appeared in this Forum even after service of summons. The allegations made against the opponent no. 1 as regards execution of conveyance deed remained unchallenged and corroborated by the documentary evidence. As per the provisions of Maharashtra Ownership Flat Act, the opponent no. 1 i.e. Builder Developer, is under obligation to execute conveyance deed in favour of the society after completion of the building. The opponent no. 1 has failed to discharge that obligation and thereby caused deficiency in service. Hence, I held that the complainants have proved that the opponent no. 1 has caused deficiency in service by not executing conveyance deed in favour of society. I answer point no. 1 as affirmative.
Second relief, which is claimed by the complainant in the present proceeding, is that the opponent no. 2, the office bearer of the society has passed resolution and claimed parking charges of the parking, which is allotted to the complainants by the opponent no. 1. According to the complainants, they have purchased parking along with flat and they are parking two 4 wheelers in the said parking. The opponent no. 2 has passed illegal resolution and claimed parking charges by holding that the said parking is available only for one 4 wheeler. The complainants are parking their two 4 wheelers in the private area, which is allotted to them by the opponent no. 1. It reveals from the correspondence between the parties and the documents, which are produced before this Forum, that the complainants have purchased one parking from the opponent no. 1 and he is parking two 4 wheelers in the said parking area. It is significant to note that the area for parking, which is allotted to the complainants, is not specified in the agreement to sale. But that parking is identified from the map, which is annexed with the agreement for sale and which is produced as Annexure 9 with the agreement to sale. That parking is identified by letter ‘P’ as the area of parking is not specified in the agreement; it is very difficult to adjudicate the dispute between the parties. According to the complainants, the entire parking is allotted to them by the opponent no. 1 and according to the opponent no. 2, the area, which is sufficient for parking of one 4 wheeler is allotted by the opponent no. 1 to the complainants, the remaining area is common area and the opponent no. 2 is entitled to charge parking charges for common area.
According to the opponent no. 2 this complaint is not at all maintainable against the society and the complainants have challenged the resolution, which is passed by the Co-operative society and the complainants have to approach and raise objection against the said resolution before Registrar of Co-operative Society. Secondly, the complainants have not pleaded either as regards defects in the goods, deficiency in service or unfair trade practice. Under such circumstances, the complainants are not entitled for any relief as per the provisions of the Consumer Protection Act, 1986 in the District Forum. I have perused the contents of the complaint; it reveals from the same that the complainants have asked relief of injunction against the opponent no. 2, restraining them from recovering parking charges. Recovery of parking charges as per the resolution and the dispute as regards legality of the resolution as well as the dispute as regards area, whether it is private area or common area is relating with the civil rights and not related with the rights of the consumers. Under such circumstances, I held that the claim, which is claimed by the complainant against the opponent no. 2 is
beyond the scope of jurisdiction of this Forum and the complainants are not entitled to get that relief. In the light of above discussion, I answer the points accordingly and pass the following order,
** ORDER **
1. Complaint is partly allowed.
2. The opponent no. 1 is directed to execute
Conveyance deed in favour of the opponent
No. 2, within three months from the date of
this order. If the opponent no. 1 failed to
comply with the order, the opponent no. 2
shall apply for Deemed Conveyance to the
competent authority.
3. The complaint is dismissed against the
Opponent No. 2.
4. In the peculiar circumstances, parties to bear
their own costs.
5. Copies of this order be furnished to
the parties free of cost.
