Advocate P.S. Kulkarni for the complainant
Advocate Nilesh Jagnade for the Opponent
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 3rd April 2013
This complaint is filed by Housing Society against the Builder Promoter u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] The complainant is body constituted under the Maharashtra Apartment Ownership Act, 1970. The Opponent is Promoter Builder who had sold out the residential units and constituted Apartment by executing Deed of Declaration as well as Deed of Apartment. The possession of the property was handed over to the complainant on 29/2/2000. That includes club house, lawns, offices, water tank etc. On 4/8/2007 the Pune Municipal Corporation informed the complainant that there is encroachment of the said building over Ram River from the eastern side and directed the complainant to demolish the compound wall within 24 hours. The members of the apartment met the opponent i.e. builder on 5/8/2007 and narrated about the said notice. According to the Opponent he had purchased the entire land and there is no encroachment and he would give necessary documents. But he had not provided any such document as assured. On 24/8/2007 complainant made inquiry about the status of the land and it was found that there was encroachment over 8000 sq.ft. area. Then the complainant was required to demolish the compound wall. It had submitted fresh plan to the Corporation and constructed compound wall by spending Rs.3,43,815/-. Complainant demanded expenses which were incurred in the construction of compound wall by sending letter dated 16/6/2008. But the Opponent did not pay any heed. Hence complainant has filed present complaint for deficiency in service and claimed Rs.3,43,815/- by way of expenses incurred for demolition and construction of compound wall, Rs.96,265/- by way of interest on the said amount and Rs.1,00,000/- by way of inconvenience and hardship. The total claim of the complainant is Rs.5,40,080/-
[2] The Opponent resisted the claim by filing written version. The contents of the complaint are flatly denied by the Opponent. According to the Opponent the complainant Condominium brought into existence by Deed of Declaration dated 22/9/1999. The Secretary of the said Condominium had no authority to file the present complaint. The complaint is time barred. The Opponent had purchased the land from one Smt. Jayashree Vasant Vaidya and developed the same. The Apartment Deed is also executed in favour of the complainant. The affairs of the Condominium were entrusted with the ad-hoc committee by letter dated 11/10/1999. It is flatly denied by the Opponent that encroachment is committed by him while constructing the said project. It is also denied that the Opponent is liable to pay the expenses which were incurred in the construction of compound wall. It is further contended that there is no deficiency in service and he is not liable to pay any compensation. The Opponent has prayed for dismissal of the complaint.
[3] After scrutinizing the voluminous documentary evidence, affidavits which were filed by both parties and considering the pleadings of both parties following points arise for my consideration. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the relations between the complainant and the opponent were in existence on the date of filing of the complaint ? | In the negative |
2 | Whether the present complaint is maintainable before this Consumer Forum ? | In the negative |
3 | Whether the complainant is entitled for any relief ? | In the negative |
4 | What order ? | Complaint is dismissed |
REASONS-
As to the Point Nos. 1 to 4-
Admitted facts in the present complaint are that the Opponent had constructed Sai Kamal Residency and executed Deed of Declaration as well as Apartment Deed long back i.e. in the year 2000. Since then till receiving notice from the Corporation dated 4/8/2007 there was no dispute between the parties. The dispute arises when the complainant had received notice as regards the encroachment committed in the Ram River from the eastern side. The Corporation had directed the complainant to demolish the wall in encroachment portion. Accordingly the complainant had demolished the said wall and reconstructed after leaving the encroached area.
It is the case of the complainant that the Opponent has promised that the said land is part and parcel of condominium and when the notice is received from the Corporation he has not produced satisfactory documentary evidence as regards ownership of the encroached area. Hence the Opponent is liable to pay compensation as well as expenses which are incurred for reconstruction of the common wall. It is the case of the Opponent that as soon as the possession of the property was delivered and documents under Maharashtra Apartment Ownership Act, 1970 were executed relation between the complainant society and opponent is extinguished and Opponent is not liable for any consequences which occurred after execution of the said Deed. It is also contended on behalf of the opponent that the construction of the project was done after obtaining sanction plan from the Corporation and after completion of seven years of construction this complaint is filed, which is baseless. According to the opponent the complainant had to approach Civil Court and obtain Injunction Order against the P.M.C. but the complainant had failed to do the same.
It is also pointed out by the Opponent that the person who has filed complaint on behalf of the Complainant Condominium is not at all authorized person. No resolution of the members of the condominium authorizing the present signatory to sing the complaint and file the present complaint is produced on record. It further reveals from the facts and circumstances of the case that the complainant has demanded damages i.e. expenses which were incurred for the construction of the wall. There is no deficiency in service and this complaint is filed only for recovery of the damages i.e. expenses and interest on the said amount. The subject matter of the complaint does not fall within the scope and ambit of the Consumer Protection Act, 1986 and the complainant has to approach Civil Court for recovery of the said damages.
The complainant has failed to prove that relation between the parties is consumer and service provider was in existence on the date of filing of the complaint. Hence on all these grounds the complaint itself is not maintainable. There is no merit in the complaint. Hence it is liable to be dismissed.
I answer the points accordingly and pass the following order-
:- ORDER :-
1. The complaint is dismissed.
2. As per peculiar circumstances parties to bear their own
costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 03/04/2013
