Tamil Nadu

StateCommission

FA/471/2012

K.L. PALANIAPPAN - Complainant(s)

Versus

SOUTHERN INVERSTMENTS PBT. LTD., BRANCH HEAD - Opp.Party(s)

N.V.N. MARGANDEYAN

26 May 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,CHENNAI

BEFORE :  HON’BLE THIRU JUSTICE R.REGUPATHI,                   PRESIDENT 

                                                           THIRU.A.K.ANNAMALAI                                               JUDICIAL MEMBER

                                                           TMT.P.BAKIYAVATHI                                                    MEMBER

                                                                                   F.A.NO.471/2012

(Against the order in CC.No.321/2005, dated 04.04.2012 on the file of DCDRF, Chennai (South)

DATED THIS THE 26^th DAY OF MAY 2015

1.K.L.Palaniappan,

   S/o.O.KL.Kulandaivelu,

   Flat No.A-2, Anand Apartments,

   Old No.32, Hindi Prachar Sabha Street,

   T.Nagar, Chennai 600 017.

2. M.Solaiyappan,

    S/o.M.M.Meiyappa Chettiar,

    Flat No.2 – A Springdale Apartments,                   M/s.M.V.N.Margandayan

    No.55, Hindi Prachar Sabha Street,                      Counsel for Appellants / 

  T.Nagar, Chennai 600 017.                                                              complainants

3. Sameer Nagarajan,

    S/o.Nagarajan,

    No.201/202 B – Wing :

    Silver Beach Apartments,

    AB Nair Road (Opp.to Juhu Road),

    Mumbai 400 049.

                              -vs-

1. M/s.Southern Investments Pvt.Ltd,

    Rep.by its Branch Head,                                    M/s.George Cheriyan

    No.9, III Cross Street,                                      Counsel for 1^st Respondent/

    Sterling Road, Nungambakkam,                                      1^st Opposite party

    Chennai 600 034.

2. Mrs.Sarala Ramachandran,                                 M/s.S.Siva Sangarane

    W/o. Late N.Ramachandran,                               Counsel for 2^nd Respondent /

                                                                                          2^nd OPP.party

3. Dr.Anand Ramachandran,

    S/o.Late N.Ramachandran,

4.  Mrs.Geeta Sivakumar,                                       3^rd & 4^th Respondents

     D/o Late N.Ramachandran                                    Served

   2, 3 and 4 respondents are residing at

   Flat Nos.GA & 1-B, Springdale Apartments,

   No.55, Hindi Prachar Sabha Street,

   T.Nagar, Chennai 600 017.   

          The appellants are the complainants filed a complaint before the District Forum against the opposite parties praying certain relief.  The District Forum dismissed the complaint.  Against the said order, the appellants / complainants filed this appeal praying for to setaside the order of the District Forum in CC.No.321/2005, dated 04.04.2012.

               This appeal coming before us for hearing finally on 07.04.2015, upon hearing the arguments on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

A.K.ANNAMALAI,  JUDICIAL MEMBER

1.         The complainants are the appellants.           

2.       The complainants have purchased their respective properties with superstructure along with undivided shares of land from the 1^st opposite party to whom 2 to 4 opposite parties have executed power of attorney for their lands for construction and also 2 to 4 opposite parties have obtained their flats from the 1^st opposite party and in the properties during November 2004 the 1^st opposite party without getting permission or giving prior intimation to the complainants had put up a couple of structures in the said property and the 1^st construction would effectively mean with none of the complainants would be able to use Gate No.2 and they have to ingress and egress only through Gate No.1.  The other construction namely 2 planters over the side set back which was located just opposite party to the entrance of the 2^nd, 3^rd  and 4^th opposite parties and for their exclusive usage only.  The 2^nd to 4^th opposite parties after selling the undivided shares to the complainants through the 1^st opposite party trying to enjoy the property by colluding with the 1^st opposite party in putting up the illegal construction.  Hence, the complainants issued notice for removal of those illegal construction and the 1^st opposite party though removed the 1^st construction and did not remove the other construction and thereby the consumer complaint came to be filed seeking the relief to direct the opposite parties  to demolish the unauthorized construction in the form of Two planters across the front set back and to pay a sum of Rs.5,00,000/- each to the complainants as compensation for the loss and damages and for deficiency of service and for costs.

3.       The opposite parties denied the allegations except to admit the ownership and construction of building and contended that the complainants have no locusstandi to file the complaint once transactions of sale between the parties over and as per the agreement between the second and 1^st opposite parties for the purpose of giving exclusive rights to the passage constructions were made and thereby there is no unfair trade practice or deficiency in service.

4.       Based on the both sides materials after an enquiry the District Forum accepted the contentions of the opposite parties observing the opposite parties 2 to 4 are neither the defaulters nor service provider to the complainants and the 1^st opposite party constructed the building in such a way that the 2^nd opposite party would be given exclusive rights of passage and once possession taken by the complainants there is no relationship between the complainants and the 1^st opposite party and dismissed the complaint.

5.       Aggrieved by the impugned order the complainants /appellants have come forward with this appeal contended that the 1^st opposite party never disputed the actual possession admitting the unauthorized construction having encountered stiff opposition from the appellants had chosen to remove the Eight Inch Tall Ledge, but however left the two planter boxes on the side set back untouched.  The Joint Venture Agreement entered into between the opposite parties as per the terms and covenant under Ex.B1 which are violated and under Ex.A1 equalent to Ex.B8, Clause-33 of the Agreement also.  The 1^st opposite party has to provide facilities which is a tripartite Agreement and as per that the opposite parties had retained the authority to grant any area in the building to another other fellow assignee only but not to the assignor / 2 to 4 opposite parties and thereby the appeal is to be allowed.

6.       We have heard both sides contentions and carefully considered the written submissions and other materials in this regard.  It is the admitted case of both sides that the complainants have entered into an agreement with the 1^st opposite party for the purchase of flats along with undivided shares of the land for which the opposite parties 2 to 4 are the owners who have given power of attorney to the 1^st opposite party and also for the construction the 2 to 4 opposite parties also have availed their respective flats under their own agreement.  It is the admitted case of the 1^st opposite party that they have constructed the two additional constructions which do not covered in the plan and those constructions are not covered under the completion certificates which are one Eight Inch Tall Ledge and another one Two planters boxes on the side set back and in which after the stiff opposition by the complainants the Eight Inch Tall Ledge was removed and other construction of two planters boxes on the side set back left un touched inspite of the objection and legal notice sent by the complainants.  The only contention of the 1^st opposite party is that in view of the agreement entered into with the 2 to 4^th opposite parties who are the erstwhile land owners entered  Joint Venture construction and also obtained their separate flats in the scheme and for the purpose of exclusive right to use the passages such construction was made as a privilege which is not an hindrance to the complainants and the planning authorities also have not objected the same and issued the completion certificate and the complainants have no locus-standi when they have taken possession of their respective flats. While considering the contentions when the 1^st opposite party being the promoters of the building and the complainants being the purchase of the flats having availed the service of the 1^st opposite party even if they handed over the possession subsequently if the flat owners have come to know or facing any problems regarding the defects or deficiency in their properties they can very well move against the builder/promoter under the Consumer Protection Act , 1986 under Sec.3 and as far as the 2^nd to 4^th opposite parties are concerned even though they had given their land for construction having obtained the flats from the 1^st opposite party in lieu of land given by them they should be considered on par with the complainants as purchasers and what are all the facilities and privileges extended by the builders / promoters /1^st opposite party to the complainants would only be available to the opposite parties 2 to 4 also and they cannot claim extra privilege and the contentions of the 1^st opposite party as per the agreement entered into with the 2^nd opposite party to provide exclusive right or passage by infringing the other co-owners right could not be considered as legally valid.  Further the complainants have stated that the two planters boxes over the side set back which was just located opposite to the entrance of the opposite parties 2 to 4 and for their exclusive usage alone and they have after selling undivided shares to the complainant through the 1^st opposite party trying to enjoy the property by colluding with the 1^st opposite party in putting up the illegal construction given and this contention was not disproved by the opposite parties and by violating the rights of the other co-owners, certain co-owners alone cannot reap the benefits of common enjoyments facilities in a pool of apartments and the contentions of the complainants that they had entered into tripartite agreement with the opposite parties and as per the joint venture agreement between the opposite parties under Page-12 Schedule –E Joint Venture Agreement under Ex.B1 as per condition No. 1 to 3, the 1^st opposite party not to construct any additional building not to use or permit the use of the construction referred to in a manner which would diminish the value….. like common amenities provided in the property described in Schedule “A” there in or in any constructions made thereon and not to use the open space in the land described in Schedule “A”  left open after completion of the constructions referred to for parking any heavy vehicle or to use the same in any manner which might cause hindrance for the free ingress to or egress from any other part of the construction and also under Ex.B8 in Clause 33 “The authority to grant any area in the building to common fellow assignee only but not to the assignor (2 to 4 opposite parties ) and against which the 1^st opposite party assigned the right to the 2^nd complainant.  Further the complainants contended that the 1^st opposite party constructed two planter boxes in such a manner that caused permanent obstruction to the appellants from having free ingress or to egress from their apartments and these are all hindrance caused to the complainants against the conditions of the Joint Venture Agreement and assignment agreement and thereby these are all clearly would amount to unfair trade practice and deficiency in service made by the 1^st opposite party with the collusion of the opposite parties 2 to 4 against which the complainants are entitled for the relief sought for to demolish those unauthorized constructions and as far as the claim of compensation of Rs.5,00,000/- each is concerned since the 1^st opposite party contended that the complainants are having dues payable for the construction and also the 2^nd complainant admitted by issuing legal notice in which praying for demolish of unauthorized construction to settle the dues payable.  Hence in those circumstances we are not inclined to give any compensation for the same accordingly 

7.       In the result, the appeal is allowed by setting aside the order of the District Forum dismissing the complaint in CC.No.321/2005, dated 04.04.2012 and the complaint is allowed in part

          The opposite parties 1 to 4 are directed jointly and severally to demolish the construction in the form of Two planter boxes across the front set back and also

          Directed the opposite parties to pay a sum of Rs.10,000/- each as costs to the complainants 1 to 3.

          The directions shall be complied within a period of six weeks from the date of this order.

 

P.BAKIYAVATHI                     A.K.ANNAMALAI                            R.REGUPATHI

    MEMBER                                 (J) MEMBER                                  PRESIDENT

 

INDEX; YES/NO

VL/D;/P/CONSTRUCTION