Per Justice Mr.S.B. Mhase, Hon’ble President
Heard Mr.Pramod Gore, Advocate for the appellant and Mrs.Anita Marathe, Advocate for respondent No.1.
2. This appeal is directed as against the order dated 31/03/2011 passed by District Forum, Pune in consumer complaint No.242/2010. By this order, the appellant is directed to give to the respondent/complainant parking space under stilt and to execute a Conveyance Deed. The appellant is further directed to pay `4,000/- by way of compensation and `1,000/- by way of costs. Being aggrieved and dissatisfied with the order, appellant/opponent No.1-builder has filed this appeal.
3. The appellant is original opponent No.1 and he is referred to as ‘opponent No.1’ in this order. Respondent No.1 is the original complainant and he is referred to in this order as ‘complainant’. Respondent Nos.2&3 are the original opponent Nos.2&3 and they are referred to as ‘opponent Nos.2&3’ in this order.
4. The opponent No.1 is a builder-developer. Opponent No.2 is the society of the flat purchasers wherein the complainant is one of the members. Opponent No.3 is also a member of said society and flat purchaser.
5. The opponent No.1 has floated a housing scheme in Survey No.129, Sub-division No.1/2, CTS No.2513, Pune. From the said scheme, the complainant has purchased a flat bearing No.801 and it was agreed that parking space No.21 is to be given to the complainant. It further appears that the possession of their respective flats was given to the complainant and other flat purchasers and thereafter, opponent No.1 has also formed the Society of the flat purchasers, namely, opponent No.2. However, the stilt parking space No.21 was not given to the complainant and instead of that some other parking space has been allotted. Therefore, the complainant has approached to the District Forum. In addition to this grievance, grievance of the complainant is in respect of execution of Conveyance Deed by opponent No.1 in favour of the Society. There is equally a grievance in respect of seepage in the flat.
6. It is an admitted position that the complainant was put into possession of flat No.801 in the year 2007. It is equally an admitted position that there was an agreement in respect of parking space No.21, but that was not given by opponent No.1 to the complainant. Both of them agreed that in parking space No.21 there is a pillar and the grievance of the complainant is that the pillar was subsequently erected. What is important to be noted at this stage is that the presence of opponent No.3 was not necessary for adjudication of this appeal. He has been unnecessarily made party and there are no prayers against opponent No.3. Under these admitted circumstances, the above referred order has been passed by the District Forum.
7. We find that the impugned order is not sustainable in law for following reasons :-
District Forum has directed to execute conveyance deed. In a relief itself it is not stated in whose favour conveyance deed is to be executed. But in absence of that since relief has been granted to the complainant, it means the conveyance is to be executed in favour of the complainant. Apart from that position in law is that whenever housing schemes are floated by the builder-developer, the flat purchaser gets a right in the flat, but however, the land below the flat and the common area and common amenities including the structure/building is to be transferred by the builder-developer in favour of the Society of the flat purchasers and for that purpose, conveyance is to be executed. Therefore, so far as common amenities of any housing project are concerned and the land along with super structure is concerned, it is the Society of the flat purchasers who is the owner and the flat purchasers are simplicitor could claim rights in respect of their respective flats as per their membership/share certificate and entitled to enjoy common amenities. This is a position in law. So far as parking space is concerned, it is well established fact that the builders are not entitled to sell the parking space. Parking space is a common amenity and it is to be transferred by the builder at the time of conveyance in favour of the Society. Viewed from any angle, individual claim of the complainant and/or in favour of the Society, complainant alone cannot file consumer complaint for said purpose. Complainant can file complaint to get conveyance in favour of the Society provided complainant takes a permission under Section 12(1)(c) of Consumer Protection Act, 1986 (‘the Act’ for brevity) and compliance of Order I Rule 8 of Code of Civil Procedure as provided in Section 13(6) of the Act. So far as present complaint is concerned, the complainant has not taken permission from the District Forum when the complaint was presented under Section 12(1)(c) of the Act and further more, no steps were taken for the purpose of compliance of Order I Rule 8 of Code of Civil Procedure. That means, procedure in respect of representative complaint is required to be followed and that has not been followed. Therefore, the order without following the statutory and mandatory provisions is not sustainable in law and requires to be set aside. Therefore, neither execution of conveyance nor allotment of parking space is permissible unless representative complaint is filed. The present complaint is not a representative complaint.
8. What is important to be noted is that clause of the agreement under which stilt parking space has been sold is contrary to the model form provided under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Therefore, conditions which are contrary to the provisions of law are not sustainable and are not enforceable in law. We are aware that we are not sitting in authority to enforce the provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Those statutory provisions though not incorporated in the agreement are the part and parcel of the agreement and therefore, provisions have been considered in order to decide whether there is deficiency in service or not. Therefore, ultimate allotment of the parking space in favour of each of the flat purchasers as per bye-laws of the Society is the job of the Society-opponent No.2 and not of the builder. However, there is no representative complaint in this respect and therefore, complainant is not entitled for any relief in this respect.
9. It is further to be noted that in the argument submitted in the District Forum, amount of stilt parking space has been reclaimed. However, in the main complaint, no prayer to that effect is made. Apart from that after decision also complainant has not preferred any appeal and therefore, though we have noticed that stilt parking space No.21 cannot be sold by the builder yet we cannot pass the order in respect of return of money. Ultimately, we find the appeal succeeds. The order passed by the District Forum dated 31/03/2011 is hereby quashed and set aside and consumer complaint itself was found not tenable for want of necessary statutory/mandatory compliance in respect of Section 12(1)(c) of the Act and Order I Rule 8 of Code of Civil Procedure and therefore, complaint is also dismissed. In the given circumstances, both parties to bear their own costs. Copies of the order be furnished to the parties.
Pronounced
Dated 18th December 2012.
