BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Monday the 16^th day of April, 2012

C.C.No.62/2011

Between:

M/s. Lakshmi Residency Apartments Owners Welfare Association,

Represented by its Secretary Smt.G.Bharathi,

W/o G.M.Nagamalleswar Reddy,Flat No.304, Lakshmi Residency,

Saptagiri Nagar, Kurnool-518 003.                         

 …Complainant

                                              -Vs-   

1. S.C.Narsimhulu,

   S/o S.E.Ayyanna,

   Employee, R/o Flat No.204,

   Lakshmi Residency,

   Saptagiri Nagar, Kurnool-518 003.    

2. S.Ayyamma, W/o Shavala Thimmappa,

   House wife, R/o 48/93-A, Budhavarpeta, Kurnool-518 003.

3. S.Thimmakka, W/o S.Thimmanna,

   H.No.48/161, Budhavarpeta, Kurnool-518 003.

4. S.Narasimulu, S/o S.E. Ayyanna,

   H.No.48/94, Budhavarpeta, Kurnool-518 003.

5. P.Seshi Kiran Goud, S/o. P.Krishnaiah Goud,

   R/o. Flat No.101, Swapnalok Apartment,N.R.Peta, Kurnool-518 004.

6. K.Brijesh Singh, S/o K.R.Kesari Singh,

   H.No.1/30, Main Bazar, Kurnool City, Kurnool District-518 002.                         

…OPPOSITE PARTIES  

This complaint is coming on this day for orders in the presence of Sri A.Rama Subba Reddy, Advocate for complainant and Sri E.Giddaiah, Advocate for opposite parties 1 to 4 and Sri M.Sivaji Rao, Advocate for opposite party No.5 and Sri M.L.Srinivasa Reddy, Advocate for opposite party No.6 and upon perusing the material papers on record, the Forum made the following.

                                               ORDER

(As per Sri. M.Krishna Reddy, Male Member)                                                                      C.C. No. 62/2011

1.     This complaint is filed by the complainant under section 12 of C.P. Act, 1986 seeking a direction on opposite parties for:-

1.   The reconstruction of Watchman Room, Generator Room, Store Room and damaged compound wall on the same standard that was in existence prior to its damage by opposite party No.1 or the payment of Rs.1,97,467/- to the complainant as the costs of reconstruction of the damaged portion mentioned above;

1.   Not to use common areas including stilt for their personal benefits;

1.   Promotion of society for regular maintenance of apartment by filing bye laws before competent authority as required under A.P. Apartments Act.  

1.   Payment of Rs.20,000/- as compensation for causing mental agony and cost of the complaint .

2.    The case of the complainant in brief is that the complainant is a registered society, registered under A.P. societies registration Act formed for the welfare of its members, who are the owners of flats in the apartment by name M/S Lakshmi Residency, Saptagiri Nagar, Kurnool.   Out of 12 flat owners only seven (7) became members of the complainant society.  Opposite parties 1 to 4 were the land owners.  The extent of land is 622.22 Sq.yards in Plot No.12 and 18 in LP 178/83.  Opposite parties 5 and 6 are builders of Lakshmi Residency.  The land owners on one side and the builders on the other side entered in to an agreement for the construction of 12 flats in three floors and got the plan approved by the Kurnool Municipal Corporation on the name of opposite party No.1.  As per the approved plan the entire stilt is allotted for parking place except Store Room, Generator Room, and Watchman Room.  As per the development agreement, the share of opposite parties 1 to 4 was 4 flats (201 to 204) in second floor and a flat bearing No.303 in 3^rd floor.  The opposite parties 5 and 6 got the remaining 7 flats as their share.  They sold them to the present owners obtaining G.P.A. from opposite parties 1 to 4.  The stilt area is an undivided common property of all flat owners of Lakshmi Residency on which all owners have equal rights. No individual owner has an independent exclusive right over the stilt area.  All the opposite parties completed the construction as per Kurnool Municipal Corporation approved plan and handed over the flats to the purchasers, but did not discharge their responsibility of forming the society of all the flat owners as per law.  On 14-06-2010 the opposite party No.1 with an intention to occupy the stilt area for his own purpose, constructed rooms, violating the approved plan.  On the complaint given by the secretary of the complainant society and other members, Municipal Corporation demolished the illegal construction.  The opposite party No.1 is still proclaiming that the stilt area belongs to him exclusively, and no other flat owner has right on it and he would continue the construction of shops in the stilt area.  For the said purpose on 06-07-2010 at 11.00 he engaged coolies, demolished Watchman Room, Generator Room, Store Room, and compound wall 19.4ft X 5ft on western side.  The total damage was estimated to be Rs.1,97,460/-.  The opposite parties are obliged to adhere to the approved plan for the benefit of all the flat owners, who are their consumers.  The opposite parties have no right to deviate from the approved plan and have no right to use common areas for their personal ends.  Further, the opposite parties who are promoters of flats have statutory obligation to prepare a bye law as per law and file the same before the competent authority under A.P. Apartment Act, but failed in doing so.  This act of non-promotion of the maintenance society by opposite parties by framing and filing mandated bye law is deficiency of service on the part of opposite parties.  The misuse of common areas for their personal purpose by opposite parties is a kind of unfair trade practice.  Hence this case is filed before this Forum requesting for the grant of appropriate reliefs.

3.     Sworn affidavit and Ex.A1 to Ex.A6 are filed by the complainant in support of his case. 

4.     Persuing the notice and accompanying documents of this Forum opposite parties denied their liabilities to the complainant claim by filing their written version.  According to opposite party No.1, the Store Room, Generator Room, Watchman Room, were damaged in Tungabhadra Floods.  As no body came forward for reconstruction, he took the initiative and started construction with his own money for the benefit of all the flat owners.  Due to grudge against him, the members of the society gave complaint to Kurnool Municipal Corporation about demolition. He filed a suit bearing O.S.No.1045/2010 against Municipal Corporation seeking for permanent injunction form interfering with the construction of the rooms and other repairs.  The formation of society with seven flat owners is also illegal as the other tenants and flat owners of 201 to 204, 303 were informed about it.   Sri Chalapathi is one among the tenants who has no knowledge about the formation of society.  Opposite party No.1 further submits that as   opposite parties 1 o 4 belong to sc community, and to deny them the joint right of control over the entire apartments and to take revenge on them, the said seven members formed the society.  He being a responsible person took steps for reconstruction of rooms which are damaged in Tungabhadra Floods.  Being unable to digest it, the seven members passed three resolutions 1^st on 10-06-2010 for the formation of association excluding opposite parties, second on 17-06-2010 for the registration of association and third on 27-06-2010 for taking action  against S.C.Narasimululaiah i.e., opposite party No.1.  As per law the act of the said society is untenable, therefore it is prayed that the case against him may be dismissed. 

5.     Sworn affidavit and Ex.B1 is marked by opposite party No.1.

6.     Opposite parties 2 to 4 filed a memo adopting the written version filed by opposite party No.1.

7.     Opposite party No.5 who is one of the builders of Lakshmi Residency filed a written version denying all allegations made against him in the complaint.  He averred that after the completion of construction of the apartments as per the Municipal Approved Plan he handed them over to the complainant association.  He further submitted that he never got himself involved in the demolition of the rooms in the stilt area, and has no knowledge of the happening to the building now, hence the case against him may be dismissed.

8.     Opposite party No.6 is partner of opposite party No.5 and involved in building Lakshmi Apartment.  He averred that after handing over the flats to the purchasers, built as per Municipal Approved Plan, he explained the benefits of the formation of the society to them, and tried his level best to form the society.  But the flat owners due to ill feeling among them have not cooperated for the formation of society.  However, all the flat owners both opposite parties 1 to 4 and complainants occupied their respective flats with full equipments in fully livable conditions in February/March, 2008 with out any protest.  So claim of non formation of the society or non filing of bye lows is barred by limitation.  The allegation of complainants that opposite party No.1 demolished the Store Room, Generator Room and Watchman Room is not within his knowledge and even if the allegation is true, the complaints have no right to claim any relief against him.   They can claim damages against opposite party No.1 alone by filing Civil Suit and Criminal Case but not any relief under C.P. Act.  Opposite party No.6 averred that he did not violate the approved plan while constructing the flats, and he did not use common area in stilt for his personal purpose.  Hence, there is no scope to think about unfair trade practice by him.  If any damage is caused by any individual, he alone is liable to compensate the damage but not others.  Non formation of the society or non filing of bye laws has in no way established any nexus for causing the alleged damage by opposite party No.1.  The complainants unnecessarily added him as a party, so the case against him may please be dismissed.   

9.     Complainants and opposite parties filed their written arguments.

10.    Hence the points for consideration are:

1. Whether the complainant made out any case against opposite parties to prove the deficiency?

1. Whether the complaints are entitled for any relief?

1. To what relief?

11.    Admittedly opposite parties 1 to 4 are owners of land admeasuring 622.22 Sq.yards in plot Nos.12 and 18 in L.P.No.178/83.  Opposite parties 5 and 6 are the developers, who entered into an agreement with opposite parties 1 to 4 for the construction of flats in the above said land.  They got the plan approved in the name of opposite party No.1 for construction of 12 flats, 4 in each floor for 3 floors from Municipal Corporation, Kurnool.  As per the approved plan the entire stilt is a common area allotted for parking excluding rooms for watch man, Generator and Stores.  All flat owners have equal undivided share on the entire stilt.  According to the development agreement opposite parties 1 to 4 got 5 flats as their share bearing Nos.201 to 204 and 303.  Opposite parties 5 and 6 sold the remaining 7 flats of their share obtaining G.P.A. from opposite party No.1.  The developers completed the construction without any deviation from approved plan and handed over the flats to the purchasers, who are now the complainants, with full equipments in fully livable condition in February/March, 2008.  As the flat owners did not cooperate with opposite parties 5 and 6 for the formation of society, no association is formed for the maintenance of apartments and no bye law could be filed before the competent authority.  The case of the complainants is that opposite party No.1 with an intention to occupy the common area for his own purpose began constructing rooms, on 14-06-2010 violating the approved plan.  These rooms were demolished after wards by Municipal Corporation.  Later, opposite party No.1 also demolished the Watchman Room, Generator Room, Store Room and 19.4ft X 5ft compound wall on the western side to construct shops for his own.  The total damage is estimated to be Rs.1,97,460/-.  In this regard the contention of opposite party No.1 is that the rooms and the compound wall were damaged in Tungabhadra Flood.  As no body came forward, he started constructing the room with his own money for the benefit of all flat owners.  The seven flat owners without intimating all the tenets, formed a registered society illegally and passed resolutions for taking action against opposite party No.1 and to take control over the entire flats.  Ex.A1 the copy of registration of the society, Ex.A2 the copy of Municipal corporations approved plan showing parking area Watchman Room, Generator Room and Store Room which are to be used commonly as all flat owners have undivided share.   Ex.A3 photos, showing the demolished rooms and compound wall, which need to be rebuilt in the same place as they were before to avoid violation of approved plan.  From the pleadings of both sides, it appears that the case is of Civil nature with in the domine of Civil Court.  But in the course of oral arguments also opposite party No.1 agreed that he would construct the damaged rooms and compound wall with his own money.  From what is stated above, without going deep into the details of causes of damage as could be seen that as the opposite party No.1 promised to reconstruct the Watchman Room, Store Room, Generate Room and Compound wall with his own money for the common use of all flat owners would resolve the dispute.  What remains is to accord judicial approval and confirmation ensuring implementation of the under taking.  This Forum therefore directs opposite party No.1 to complete the work within four months in the same standards at the same place that was inexistence prior to its damage, without causing any deviation to the Municipal Corporation approved plan.  As per rule 6 of Rules and regulations of the society all persons who have become the owners of apartment in the Lakshmi Residency shall automatically be the members of the association and shall abide by the society rules.  Opposite parties 5 and 6 have no knowledge of the demolition of the constructions in stilt area as they left the premises handing over the flats in full livable condition two years prior to the demolition.  Therefore, there is no case against opposite parties 5 and 6.

12.    In the result the complaint is partly allowed directing the opposite party No.1 to reconstruct the Watchman Room, Store Room, Generator Room and compound wall for the purpose of common use by all the flat owners with their undivided share in the stilt area, in the same standards at the same place that was in existence prior to the damage without violation of municipal approved plan within 4 months from the date of receipt of this order.  No direction is required to admit the opposite parties 1 to 4 as members of the society because as per rule 6 of rules and regulations of the society all persons who have become the owners of apartments in the Lakshmi Residency shall automatically be the members of the association and shall have to obey the rules of the society.  The case against opposite parties 5 and 6 is dismissed.

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 16^th day of April, 2012.

 Sd/-                                                Sd/-                                          Sd/-

MALE MEMBER                      PRESIDENT                 LADY MEMBER

                                APPENDIX OF EVIDENCE

                                    Witnesses Examined

For the complainant : Nil                 For the opposite parties : Nill

List of exhibits marked for the complainant:-

Ex.A1                Photo copy of Certificate of Registration of Society

                No.239/2010 dated 16-06-2010.

Ex.A2                Photo copy of House Plan.

Ex.A3                A Bunch of Photos (No.6).

Ex.A4                Photo copy of Lakshmi Residency Kurnool Estimation

of damage for Rs.1,97,460/-.

Ex.A5                Photo copy of Memorandum of Association Rules and

                Regulations dated 16-06-2010.

Ex.A6                Photo copy of Resolution dated 10-06-2010.

List of exhibits marked for the opposite parties:-

Ex.B1                Photo copy of Plaint copy in O.S.No.1045/2010 filed

                by the opposite party No.1 against the Municipal

                Corporation, Kurnool.

Sd/-                                       Sd/-                                          Sd/-

MALE MEMBER                 PRESIDENT                   LADY MEMBER

    // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

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Complainant and Opposite parties  :

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